theories of criminal law

• Harm


  Each person in society should feel secure that they will be free from harm.

  For example, we have our fatal and non-fatal offences for the specific reason of punishing those who create physical harm on others.

  As well as individual harm, there can also be community harm. For example, where large communities are affected by acts of terrorism.

  Regulatory offences deal with harms that affect the wider public.
• Harm - Paternalistic Law

  Some hold that view that conduct should be criminalised in instances to avoid harm being done to ourselves.

  For example, criminal offences surrounding the supply and use of certain drugs are in place to protect individuals from harming themselves.

  Another example includes criminal offences which have been imposed on private conduct between consenting adults where the Courts have been concerned about 'harm. - R v Brown + R v Wilson
• Legal Moralism


  This is the idea that conduct is wrong where it is morally wrong.

  Patrick Delvin, in his book The Enforcement of Morals, argues that where there is a collective judgement that a behaviour is immoral, a law will likely be formed because of it.

  Case - R v Hinks
• Autonomy


  An individual should be able to do what they want, without any interference. Any interference of autonomy should only be used where the aim is to limit harm (e.g., harm against another person or to yourself (e.g., R v Brown (1994))

  Some groups have limited autonomy. These include: those under 18, those suffering from a mental disorder.

  Where someone has limited autonomy, the law needs to protect these groups.
• Fault - Strict Liability or No-Fault Offences

  Although, in some strict liability cases, the defendant has tried to do everything they can to prevent an offence from being committed, the Courts have still imposed fault and criminal liability (e.g., Harrow LBC v Shah and Shah (1999))
• Individual Responsibility


  Individual responsibility is what is considered when assigning criminal culpability onto a person.

  You cannot be responsible for a crime someone else commits, unless you have contributed to that crime in some way.

  For example: Attempting to commit a crime, Assisting in a crime, Aiding or abetting a crime
• Fair Labelling


  The offence that a person is convicted of must match the conduct committed. This also means ensuring that the correct level of offence is attached to the right harm/injury committed.

  For example, S. 47 OAPA 1861 has a clear description of the level of injury caused which can be clearly differentiated from S. 20 and S. 18 OAPA 1861.

  This is especially important due to the moral stigma and 'labels' assigned to certain offences. e.g., we cannot call someone a murderer if they did not have an intention to kill or cause GBH.
• Correspondence


  Where the actus reus and mens rea do not correspond, the liability of the accused cannot go beyond the defendant's actual level of mens rea.

  With theft, the actus reus and mens rea elements nicely correspond.

  However, murder does not have corresponding actus reus and mens rea elements. In murder, we have an intention to kill or cause GBH. The intention to cause GBH mens rea element does not correspond with what is required of the actus reus (unlawful killing).
• Maximum Certainty


  The law needs to be certain, which is key for the rule of law. This means ensuring that we know what is needed for a conviction.

  Although it is rare for uncertain areas of the law to be challenged, it is an avenue available to use: R v Misra and Srivastava (2004) - the defendant's tried to challenge the certainty of the tests of gross negligence manslaughter. However, the Court of Appeal rejected this argument, stating that R v Adomako (1995) had already set out clearly the elements of the offence
• No Retrospective Liability


  A person cannot be convicted of an offence that is not illegal. This also means that if later down the line that conduct does become a criminal offence, then we cannot hold someone liable retrospectively for that crime.

  One law that did create retrospective criminal liability was the War Crimes Act 1991. This was based on public interest.

  Another law that created retrospective criminal liability was the Criminal Justice Act 2003 that allows for retrials of people committed of murder if there is 'new, compelling, reliable and substantial evidence - Stephen Lawrence.
• Fault


  When attributing blame, the law generally will take the view that a defendant will be responsible for their own actions. However, there are some instances where the law will recognise when this is not the case: children under the age of criminal liability, when an act was committed unvoluntarily, when a person commits an offence whilst lacking capacity, when a person commits an offence out of necessity + when a person lacks the necessary mens rea of an offence.