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25 Cards in this Set

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Principle of minimum criminalization

Aim is to reduce criminal liability to its absolute minimum to protect individual autonomy and allowing people to exercise said autonomy

Policy of social defence --> argument against min criminalization

Criminal law needs to be used against any form of activity which threatens good order or is reprehensible --> hence, there should be no limits

Principle of liability for acts and not omissions

Reason for restricting the ambit of criminal sanction

Positive duties to acts are regarded as an incursion on individual liberty

The courts have however held that familial ties and voluntary assumption of responsibility may be acceptable as bases from criminalizing omissions but there is no legislative or judicial enthusiasm for a general duty to assist strangers or to take steps towards enforcing the law

Principle of social responsibility --> in favour of liability for omissions

Welfare-based proposition that society requires a certain level of cooperation and mutual assistance between citizens --> supports duties to act to protect others in dire situations

Arguments against:

1) It will inevitably be unclear what is expected of citizens --> "reasonable" does not give a fair warning of what should be done and when

2) Prosecutorial discretion then becomes a major determinant of criminal liability --> wakens the rule of law and transfers effective power to officials

3) Calls for much greater justification than the imposition of liability for acts --> reflects a moral distinction

Conflicting rights and the principle of necessity

When protecting your own rights from being infringed, it can be necessary to use force --> similarly, when it is necessary to prevent a lawfully detained person to escape of protect someone from an attack

Principle of proportionality

Limits the amount of force used in conditions of necessity --> should apply equally to law enforcement and citizens --> Strasbourg Court has read a requirement on "strict proportionality" into Art 2

There also may be arguments for differentiating between sudden and instinctive responses and those cases where there is ample time for reflection

Rule of Law -->Hart, Punishment and Responsibility --> fundamental principle with both substantive and procedural implications

According to the ideal of the rule of law, the law must be such that those subject to it can reliably be guided by it, either to avoid violating it or to build the legal consequences of having violated it into their thinking about what future actions may be open to them. People must be able to find out what the law is and to factor it into their practical deliberations. The law must avoid taking people by surprise, ambushing them, putting them into conflict with its requirements in such a way as to defeat their expectations and to frustrate their plans.

Non-retroactivity principle --> principle of legality

A person should never be convicted or punished except in accordance with a previously declared offence governing the conduct in question --> founded in Art 7 of ECHR --> links to autonomy principle and the rule of law --> autonomy means time the ability to plan and to rely on the law --> courts cannot invent crimes to punish people if they fall into the definition

Non-retroactivity principle -

Came to head in Shaw v DPP --> no precedent for an offence of conspiracy to corrupt public morals --> justification was that of social responsibility and stopping filthy sex stuff on the part of the HoL --> criticized as it fails to respect people as rational autonomous individuals and we cannot be sure of avoiding criminal sanction if it is open to the courts to invent new crimes without warning

Shaw v DPP

Could be argued the courts were usurping the powers of Parliament as the behavior had only recently been considered by Parliament --> it wasn't even something crazy, just something controversial (prostitution) -->democratically elected folks need to create laws and Shaw admits that the police and authorities may press a hitherto unknown charge and the courts will uphold its validity at common law

R v R (marital rape)

Similarly, the HL abolished a husband's immunity from raping his wife

R v R (marital rape) --> SW and CR v United Kingdom in Strasbourg --> concerning art 7 (non-retoractivity)

Court said that the removal of the marital rape exception by the Lords did not amount to retrospective change in the elements of the offence --> said the existing elements could be clarified or adapted to new circumstance or developments inn society in so far as can reasonably be brought under the original conception of the offence. It is the constituent elements of the offence which cannot be essentially changed to the detriment of the accused and any progressive development by way of interpretation must be reasonably foreseeable to him with the assistance of appropriate legal advice if necessary

R v R --> in favour --> from Lord Lowry in C v DPP

The decision (since given statutory effect by section 142 of the CriminalJustice and Public Order Act 1994) was quite general in its terms and thuscontemplated that a husband living with his wife could, if he forced himselfupon her, have been charged with rape contrary, it could be argued, to the non-retrospective principle of law reform. Reg. v. R. dealt with a specific act and not with ageneral principle governing criminal liability. It was based on a very widely accepted modern view ofmarital rape and it derived support from a group of up-to-date decisions.The principle rejected in Reg. v. R. stood ona dubious legal foundation. A definite solution could be, and was,achieved.

Hale's doctrine had not been given the stamp of legislative, judicial,governmental and academic recognition.

SW and CR v United Kingdom in Strasbourg --> concerning art 7 (non-retoractivity)

Courts decision was clearly influenced by the subject matter (damn libs) -->degree of flexibility into what is thought to be a fundamental rule of law --> says that it is not that the law ought to exist before the conduct took place, but it needs to be foreseeable that the law would be changed in that particular direction

C v DPP (Lord Lowry at p 28) --> 5 criterial for judicial law making

(1) If the solution is doubtful, the judges should beware of imposing their own remedy. (2) Caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated, while leaving the difficulty untouched. (3) Disputed matters of social policy are less suitable areas for judicial intervention than purely legal problems. (4) Fundamental legal doctrines should not be lightly set aside. (5) Judges should not make a change unless they can achieve finality and certainty.

C v DPP --> criminal responsibility of kids

The defendant, who was aged 12, wasseen by police officers to be holding the handlebars of a motor cycle whileanother boy was attempting to force the chain and padlock which secured it witha crowbar. · When the police officers approached,the two boys ran off, leaving the crowbar in the chain. The defendant wascharged with interfering with a motor cycle with the intention that an offenceof theft should be committed, contrary to section9(1) of the Criminal Attempts Act 1981.· On the basis of the facts found thejustices drew the inference that the defendant had known that what he had donewas seriously wrong and found that therewas sufficient evidence to rebut the presumption that since he was only 12years old he was incapable of committing a crime and they convicted him.

C v DPP --> criminal responsibility of kids

Held that the presumption that a child between the ages of 10 and 14 wasdoli incapax was a rule of the common law that could only be abrogated bystatute; that the presumption could only be rebutted by clear positive evidence, not consisting merely in the evidence ofthe acts amounting to the offence itself, that the child knew that his act wasseriously wrong; 1

C v DPP --> criminal responsibility of kids

The prosecution must prove thatthe child defendant did the act chargedand that when doing that act he knewthat it was a wrong act as distinct from an act of mere naughtiness or childishmischief. The criminal standard ofproof applies. What is required has been variously expressed, as inBlackstone, 'strong and clear beyond alldoubt or contradiction,'

The second clearly establishedproposition is that evidence to provethe defendant's guilty knowledge, as defined above, must not be the mere proofof the doing of the act charged, however horrifying or obviously wrong thatact may be --> a guilty knowledge that hewas doing wrong - must be proved by the evidence, and cannot be presumed from the mere commission of the act.

C v DPP 1996

'Whether there continues to be a presumption that a child between the ages of 10 and 14 is doli incapax and, if so, whether that presumption can only be rebutted by clear positive evidence that he knew that his act was seriously wrong, such evidence not consisting merely in the evidence of the acts amounting to the offence itself.'

The law presumed him to be doli incapax. Such a presumption applies, it is said, in any case where a defendant to a criminal charge is between the ages of 10 and 14 at the time of the alleged offence. Below the age of 10, of course, there is an absolute presumption that a child is incapable of committing a crime. Thereafter until he is 14, so the submission goes, there is a rebuttable presumption that he does not know that his act is 'seriously wrong' as opposed to 'merely naughty.' The presumption must be rebutted by positive proof adduced by the prosecution that in fact he knew full well that what he did was seriously wrong.

R v R Commentary -Marianne Giles

Arguments for this form of "judicial law making"

R v R Commentary -Marianne Giles

Arguments against this form of "judicial law making"

Thin ice principle --> those who skate on thin ice can hardly expect to find a sign which will depict the precise point at which they point in --> from Lord Morris in Knuller v DPP --> citizens who know their conduct is on the borderline of illegality take the risk that their behaviour will be held to be criminal --> courts have applied this in the creation of new offences and the extension of existing ones e.g. Shaw and Tan

Thin ice principle should trump Art 7

Contradicts max certainty and rule of law

Neglects that the role of the criminal law in sanctioning and punishing, imposing considerable stigma and social disadvantage

Violates personal autonomy when a person is convicted on the basis of a law that did not clearly cover the conduct at the time it took place

Maximum certainty principle --> embodies the fair warning and void for vagueness principles in the US

-Officials must show they have acted in accordance with the law

-Max certainty not absolute and so there may need to be some vagueness in certain situations

-Importance of a person's ability to know of the existence and extend of a rule --> personal autonomy --> should not be difficult to know what the law is so you can act accordingly --> keep moral distinctions --> fair labeling and fair warning

-Without it, can give wide scope for courts and law enforcement to act in a way not envisaged by the legislature

Social defence policy --> slaps max certainty in the face --> maintains that some vagueness in criminal laws is good because it socially benefits us because the police and courts can flexibly deal with new varioations in misconduct without having to run to Parliament --> e.g. public order offences in the Acts of 1986 and 1994, the power to make an anti-social behaviour order, and the common law offence of conspiracy to defraud

Argument for: ignorance of the cirminal law should be no excuse --> even if it were difficult for a person to be aware of the existence of a crime --> derrogades max certainty and fair warning

Ashworth is particularly critical of conspiracy to defraud --> says it should be repealed and replaced by discrete offences that comply with the principle of max certainty

Principle of strict construction (comes under legality umbrella) --> relates to courts interpreting legislation --> it appears that any doubt in the meaning of any statutory provision should be resolved, by construction, in favour of D

Unfair to convict on a wider meaning if a person has acted on the apparent meaning --> European courts have said that the criminal law must not be extensively construed to an accused's detriment --> ignored e.g. in Gomez and Hinks