Professional Documents
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Criminal law is a criminal justice system which is based upon criminal laws
It is concerned with a set of rules, which if breached enable the courts to take
action against the wrongdoer
Clarkson, Keating and Cunningham, Clarkson and Keating Criminal Law: Text
and Materials: The function of the criminal law is to lay down a set of standards
of what is permissible or not. It is a method of social control, a framework
specifying the parameters of acceptable behaviour.
Aims differ -> Criminal Law is about punishing the wrongdoer via a
sentence or a compensatory element to the victim. The punitive elements
of Tort law are about compensation to the victim.
Requirement of a mental element -> Criminal law requires the need of a
mental element of intention and guilty mind. E.g. if the defendant did
something wrong but did not have the intention, this is not a criminal act.
In Tort Law there is not a requirement of a mental element.
Rabea Ashraf
Rabea Ashraf
Lord Templeman: Society is entitled and bound to protect itself against a cult of
violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is
uncivilised.
Lord Jauncey: in considering the public interest it would be wrong to look only
at the activities of the appellants alone This House must therefore consider the
possibility that these activities are practised by others and by others who are not so
controlled or responsible as the appellants claim to be.
Lord Mustill dissenting judgement: the issue before the House is not whether the
appellants conduct is morally right, but whether it is properly charged under the
1861 Act.
Principles of Legality
The state can only intervene where there is an offence - nulla poena sine lege
Elements of principle of legality are:
- Non-retroactivity - A person can only be tried for an offence if it is criminalised
in legislation already. This means that a person cannot be criminalised for an offence
retrospectively.
- Certainty The person needs to know what behaviour is tolerated and what
behaviour is not tolerated.
- Strict construction The law will be delivered in way that is fearest for the
defendant. Criminal law has to be applied in the narrow sense. The defendant is given
the benefit of doubt until proven otherwise.
The Burden of Proof in Criminal Law has to be beyond all reasonable
doubt and has to be 99% sure. This links with the principle of legality as it has
to be construed narrowly with the benefit of doubt for the defendant. The
prosecution has the burden of proof, apart from in cases of insanity where the
defendant has it.
Offences
Rabea Ashraf
- Woolmington DPP (1935), Viscount Sankey LC: Throughout the web of the
English criminal law one golden thread is always to be seen, that is the duty of the
prosecution to prove the prisoners guilt If, at the end of and on the whole of the
case, there is a reasonable doubt the prosecution has not made out the case and
the prisoner is entitled to an acquittal. No matter what the charge or where the
trial, the principle that the prosecution must prove the guilt of the prisoner is part
of the common law of England and no attempt to whither it down can be
entertained.
Terms actus reus and mens rea are useful shorthand but nothing more.
Key is:
- to know the legal elements of any offence
- to analyse the facts to see whether these elements are provable
- to know the relevant law (statute and case law)
- to apply the relevant law to the facts
Each offence has its own actus reus and mens rea
- NB not all offences require mens rea to be proven (strict liability offences)