1 intro to law

• Law


  A body of rules enforceable against everyone in the jurisdiction whether by state or citizen
• Law of England and Wales

  • Adversarial system- prosecution vs defence
  • Legislature; Executive; Judiciary
  • Separation of Powers
  • Adversarial nature
  • No written constitution, Bill of Rights or Criminal Code
  • Constitutional law is based on custom and convention
• Substantive law

  The law that defines rights and duties
• Procedural law


  The law that governs the process by which substantive law is administered
• Criminal Justice Act 2003 s.143 sets a definition of the purpose of punishment but not criminal law
• Positivist approach

  • A branch of the law of England and Wales
  • One of many legal sub-disciplines
  • A branch of Public Law
  • An area of law that is initiated by the state
• Crime


  An act capable of being followed by criminal proceedings having a criminal outcome
• Contextual/socio-legal academics have criticised the reliance on state labelling of crime
• Criminal law


  The chief concern is to prohibit behaviour that represents a serious wrong against an individual or some fundamental social value or institution
• What criminal law seeks to achieve

  • Enforce moral values
  • Punish those who harm society
  • Deter offending
  • Protect the public from harm
  • Protect the human rights of citizens
  • Rehabilitate and reform offenders
• Not all that is recognised as deviant is a crime (e.g. 'Anti-Social Behaviour')
• Regulatory offences are a part of criminal law
• Homosexuality was decriminalised by the Sexual Offences Act 1967
• Sado-masochism is criminalised under the Offences Against the Persons Act 1861 and R v Brown [1994] 1 AC 212
• Criminal law


  Has a moral and retributive aspect, as well as a regulatory, instrumental or utilitarian aspect
• Differences between civil and criminal law


  • Initiator of Action
  • Action
  • Financial Risk of Defence
  • Standard of Proof
  • Outcome
  • Sanction
• The same action can lead to both a criminal and civil law response
• There is an increasing breakdown of the civil/criminal dichotomy
• Professor Hart argued the law should only interfere with liberty where harm is caused
• Lord Devkin argued the law should reflect society's morality and punish transgressive behaviour
• Principles of criminal law

  • Jurisdiction
  • Non-retrospectively
  • Equality before the law
  • Principle of Individual Autonomy
  • Principle of Welfare (Harm)
  • Proportionate sentences
  • Maximum Certainty and Fair Labelling
  • Burden of Proof – the Presumption of Innocence
  • Standard of Proof (Guilt Beyond Reasonable Doubt)
  • Right to a fair trial
  • Openness of criminal trials
  • Trial by Jury?
• There is no Criminal Code in England and Wales
• Sources of criminal law

  • Common Law
  • Statute
  • European and International Law
• Common law


  • Judge-made law
  • Binding Precedent and Stare Decisis
  • Ratio decidendi
  • Obiter dicta
  • Common law must give way to Legislation
• Legislation


  • Parliamentary supremacy
  • Legislative power - 'The Queen in Parliament'
  • All new criminal offences must be created by statute, not common law
• Statutory interpretation methods


  • Literal Rule
  • Golden Rule
  • Mischief Rule
  • Purposive/Teleological approach
• International and European law

  • Law Relating to Trade Agreements and other International Obligations
  • The European Convention on Human Rights
  • Human Rights Act 1998
• It is estimated that only 6% of crimes committed result in conviction
• Reasons for police discretion

  • Best interests of first-time offenders
  • Officer misunderstands the law/fails to recognise an offence
  • Officer decides time will be better spent pursuing more serious crimes/criminals
  • Officer does not want to spend the time bringing the offender into custody
  • Officer engaged in other duties preventing apprehension
  • Long term management of communities
  • Alternative options – eg dispersal orders, fixed penalty fines
• Reasons the CPS may decide not to prosecute

  • Lack of evidence
  • Public interest
  • Triviality of offence
  • Delay between offence and trial
• Types of criminal courts

  • Magistrates Court
  • Crown Court
  • High Court (Divisional Court)
  • Court of Appeal (Criminal Division)
  • Supreme Court
• Criminal appeals


  • Appeals against conviction on the ground of misdirection
  • Attorney General (A-G) appeals against an acquittal
  • Criminal Cases Review Commission (CCRC)
• Sentencing


  • Sentences set down by statute –minimum and maximum
  • Sentences can be custodial or noncustodial
  • Sentences can be 'suspended'
  • No corporal or capital punishment
  • Appeals against sentence
• You are expected to engage with primary legal material and articles in peer-reviewed journals
• Avoid using online resources like LawTeacher.net as they are often inaccurate
• Stick to official government resources or peer-reviewed academic literature