A stabs B.
B does not die, but is rushed to
hospital. B requires 4 pints of blood, but C, the
doctor, acting in an emergency, only provides B
with 2 pints. B dies.
Who caused Bs death?
Criminal Law
Lecture 1
Concepts, Theories and
Elements of Criminal Law
Dr Paresh Kathrani
Twitter: @PKathrani
Welcome: Structure of Criminal
Law this Year
Welcome: Dr Paresh Kathrani
Module Leader: 1LAW500 LLB Criminal Law
Criminal Law Lectures Joint:
1. LLB (Hons);
2. LLB Solicitors Exempting Degree (SED); and
3. Graduate Diploma in Law (GDL)
A. Joint Lecture Handbook; but also
B. Separate LLB, ED and GDL Tutorial Handbooks
Both Handbooks on Blackboard
Two Handbooks dovetail together
Welcome: Structure of Criminal
Law this Yearcont
1. Joint Lecture Handbook
-
Indicative lecture content;
Recommended and other sources;
Lecture schedule note, four ISW weeks; and
Lecture outlines - reading important
2. Specific Tutorial Handbooks
- Specific LLB, SED and GDL details - please read;
- Importantly, module assessment rationales; and
- Tutorial Questions
Also details of LLB, SED and GDL Module Leaders
Any questions, please contact relevant module leader
Welcome: Structure of Criminal
Law this Yearcont
Introduction to LLB, SED and GDL Module
Leaders: Dr Paresh Kathrani (LLB), Ade
Makinde (ED) and Dr Oliver Phillips (GDL)
Joint Lecturers: Dr Paresh Kathrani, Dr Oliver
Phillips, Hannah Camplin and Dr Stephanie
Roberts
Lecture Breaks
To begin withWhat is Criminal
Law? Why is this important?
This module is first and foremost about the:
Criminal Law
All module aims generally specify that you must be able to identify and apply
the law e.g.
LLB Criminal Law Learning Outcomes:
A detailed understanding of the knowledge base, theories and concepts that
permeate the area of Criminal Law... etc
What is this law???
This is an important question that may
To begin withWhat is Criminal
Law? Why is this important?...cont
influence how you approach
Criminal Law
To begin withWhat is Criminal
Law? Why is this important?...cont
What is Criminal Law?
One approach may be Michael Allen, Textbook on Criminal Law:
a crime may be defined as an act (or omission or a state of
affairs) which contravenes the law and which may be followed
by prosecution in criminal proceedings with the attendant
consequence, following conviction, of punishment.
Clear definition focussing on law AND its procedures
Thus, law of murder would fall within this:
i. contravenes the common law;
ii. followed by prosecution; and
iii. potential punishment
What is Criminal Law?...cont
Thinking point: is there anything more to criminal law??
Consider Clarkson, Keating and Cunningham:
Criminal Law is a reflection of community values aimed at isolating
the blameworthy who are deserving of punishment. Equally, it is a
means of social control; it attempts to uphold, as well as reflect, these
community values; it sets a standard, albeit at times a minimal one, of
necessary compliance. In short, it is a set of moral commandments
that are backed up by the legal threat of punishment.
Normative view of criminal law
Question: Under this, why is murder a crime?
What is Criminal Law? Relevance?
Why is this important to you???
Does it have any practical
purpose?
Criminal Law Reasoning
Will be using Hypothetical Problem Question Method (HPQ)
throughout
HPQ: A stabs B. B does not die, but is rushed to hospital. B requires
4 pints of blood, but C, the doctor, acting in an emergency, only
provides B with 2 pints. B dies. Who causes Bs death?
The law of homicide says that causation is important for homicide
one legal principle here is: did As act significantly contribute
to Bs death?
How would you analyse this legal issue + how is the above relevant
here???
Criminal Law Reasoningcont
Criminal Law Reasoningetc
Over the course of this module, you will be learning many
laws e.g. actus reus and omissions, mens rea and
recklessness, murder, theft etc and
while being aware of rules is important
legal reasoning is too
Consider working in groups etc
Look at respective assessment criteria
What does it require?
Criminal Law: Burden and
Standard of Proof
Another way to reflect on Criminal Law is through i. burden and ii.
standard of proof
Legal cases generally revolve around two broad issues:
A. The law; and
B. The facts
HPQ
X takes Y, a strangers, property
A. Here, the law would be theft; and
B. The facts would include that X did in fact take the property
Criminal Law: Burden and
Standard of Proofcont
1. What is the burden of proof?
The facts are fundamental in any legal case
Basis of the case
But, in a case, facts may be unclear in a case
Consider HPQ:
C and D have big argument at a party one evening in front of 20 guests.
The next morning D is found dead at his home. Witnesses saw C getting
on a bus near Ds home around the time of the killing. C is charged with
murder.
Are facts clear that C killed D???
Criminal Law and Burden and
Standard of Proofcont
Before the law of murder can apply, facts need to be established
Question1: in a criminal case, by who?
Question 2: And how? Should there be a presumption of guilt? Or, should A
have to prove he is innocent?
Woolmington v DPP [1935] AC 462 Generally for state to prove C is guilty
Have the legal burden of proof
Question: Why the state???
In contrasting this with civil law, understand criminal law
However, the legal burden can move to the defendant. When?
Criminal Law and Burden and
Standard of Proofcont
Further, C may want to explain that there was another reason that he was
in Ds area
In order to make this a live issue, will have to introduce evidence
Evidential burden of proof and states role
2. What is the standard of proof?
Again, consider the HPQ above
As mentioned, state has legal burden. But can state ever prove beyond all
doubt that C actually killed D?
Would it be acceptable to expect state to absolutely prove that C killed
D?
Criminal Law and Burden and
Standard of Proofcont
So in proof, we talk about degrees of certainty
In criminal cases, proof beyond a reasonable doubt
In civil cases, on a balance of probabilities
Why is it different? Question: Is the criminal standard fair?
3. Conclusion: Burden and Standard of Proof
Discussion feeds into our understanding of Criminal Law above
E.g. consider Clarkson, Keating and Cunningham again
Criminal Law is a reflection of community values
Can also apply in legal reasoning
Theories of Crime
Discussion above has been about exploring contours of
Criminal Law
Reasoning with legal rules important
Will see this in case of R v Brown [1994] 1 AC 212
But can also identify and use certain theories of Criminal
Law to legally reason too
1. Legal Formalism
Mainly focussing on the form and procedures of law
Theories of Crimecont
2. Theory of Utilitarianism
Justifying purpose of any social rule or institution must be the maximisation of
happiness
Jeremy Bentham human beings guided by two main forces happiness and pain
But how do we quantify happiness??? Think about how you would gauge and
argue it
3. Harm Principle
J.S. Mill was an proponent of the harm principle:
The content of criminal law should be circumscribed according to the principle that
the coercive powers of the state should only be invoked as a means of preventing
harm to others and never to control non-harmful behaviour or to prevent the
person harming herself
Theories of Crimecont
Harm principle thus purports to accommodate the concerns of the state while respecting individual freedom.
Liberalism - people possess free will and must be allowed to make free
choices
But think about how you gauge and argue harm???
4. Paternalism
The state decides what is criminal
Conduct is wrongful if it causes harm to others or to the person
themselves
Any issues with this?
Theories of Crimecont
5. Legal Moralism
Lord Devlin: Primary function of the criminal law to maintain public morality
In his opinion intolerance, indignation and disgust were so vital to a society and
conduct which aroused such feelings amongst right-thinking members of society
deserved suppression by means of the criminal law
So think about standards of decency and indecency in society
Any issues with this?
Conclusion
The discussion above shows us that there is no one right theory of criminal law
Reasoning with rules
Theories of Crimecont
Sentencing Theory
Another important component of the criminal justice
system is sentencing
The view that D ought to suffer some consequence if
guilty
Arguably one of the end points of the criminal justice
system
What should be the objectives of criminal punishment?
There are several theories here that can be considered
as well
Sentencing Theorycont
A. Retribution
What do crimes consist of?
Private and societal effect
Response
Need for order and role of the state
B. Deterrence
Crimes consist of bad conduct and result
Need for prevention
Sentencing Theorycont
Human reasoning
Types of punishment e.g. custodial, community sentences, fines
But does it always work?
C.
Incapacitation
Need for crime prevention
Remove the offender from society
Detention
D.
Rehabilitation
Why do people commit crimes?
Reform and second chance
Lecture Recap
Thus, criminal cases have at least several aspects:
1. Criminal law as procedure and values;
2. Facts, burden and standard of proof;
3. Criminal law theory; AND
4. Sentencing etc
In this module, mainly concerned with substantive criminal law
But others relevant as well
Elements of a Crime: Actus
Reus and Mens Rea
We will conclude by looking at two elements of a crime:
1. Actus Reus; and
2. Mens Rea
Over the next couple of weeks we will consider them in a
lot more detail
There is a step by step process for analysing them
Elements of a Crime: Actus
Reus and Mens Reacont
General Steps:
1. Identify the offence;
2. Access its legal source;
3. Extract its definition;
4. Separate the definition out into distinct parts
(elements);
5. Pinpoint those that identify the guilty conduct
(Actus Reus);
6. Distinguish those that identify the state of mind
in which the crime must be committed (Mens Rea).
Elements of a Crime: Actus
Reus and Mens Reacont
Practical Example: Theft
Step 1. Offence of Theft
Step 2. Look at its legal source: section 1 of the Theft Act 1968
Step 3. Distinguish its definition: person is guilty of theft if dishonestly
appropriates property belonging to another with the intention of permanently
depriving the other
Step 4. Separate its definition into parts:
-
Appropriation;
Property;
Belonging to another;
Dishonestly;
Intention to permanently deprive
Elements of a Crime: Actus
Reus and Mens Reacont
Step 5. Identify those that go to external behaviour (Actus Reus):
- Appropriation;
- Property;
- Belonging to another
Step 6. Then those that represent the required internal state of
mind (Mens Rea):
- Dishonestly;
- Intention to permanently deprive
Cardinal Principle: AR and MR
All the elements need to be proven because
Where a criminal definition contains both, there is a cardinal
principle that both must be proved:
A cardinal principle of the criminal law is embodied in the maxim actus
non facit reum, nisi mens sit rea an act does not make a man guilty of
a crime unless his mind is also guilty. Card, Cross, and Jones, 2004,
p.55
Though note:
It would I think be conducive to clarity of analysis of the ingredients of a
crimeif we were to avoid bad Latin and instead to think and speak
about the conduct of the accused and his state of mind at the time of that
conduct, instead of speaking of actus reus and mens rea. (per Lord
Diplock in Miller [1983]2 AC 161, @174)
AR, MR and Defence?
Arguable that crimes may involve a third element too
HPQ:
A forces B to appropriate property belonging to C otherwise A will
seriously harm Bs family
Here, B may have a defence
So, in order to prove liability, prosecution not only needs to prove:
1. AR
2. MR but also
3. Absence of defence
Conclusion: AR and MR
For the reasons above, I would recommend that you take
the following approach to the crimes you consider on this
module:
1. Identify the offence;
2. Access its legal source;
3. Extract its definition;
4. Separate the definition out into distinct parts
(elements);
5. Pinpoint those that identify the guilty conduct (Actus
Reus);
6. Distinguish those that identify the state of mind in
which the crime must be committed (Mens Rea).
Complete Tables as you go
Along: AR and MR
Name
Source
Definition
AR
MR
