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NATURE, PURPOSE AND FUNCTION OF CRIMINAL LAW STUDY GUIDE 2 What is Law?

Law is a rule of conduct or procedure established by custom, agreement or authority. In some cases there is an overlap between custom and authority or custom and agreement. Example: It is customary to marry one person but that is also the state exercising its authority by passing bigamy law. Authority Examples - To pay VAT - To pay income tax - To pay drivers license Law could therefore consist of a countrys moral code for example, offences regarding rape, incest, marrying within bloodline etc. In Guyana you may not marry your father, grandfather, and son. In some countries you may marry cousins. It depends on moral code. Moral codes may depend on Religion (The commandments). Morals are regulated by a legislative body. Society's perception of what is legal may therefore be coloured by the culture of that society but in some cases there may be conflict if the views of citizens, electorate.

Definitions of Crime Crime is whatever the law declares to be a criminal offence and punishes with a penalty. The difficulty with this approach is that not all criminal convictions result in a fine or imprisonment. Rather than punishing a defendant, the judge may merely warn him or her not to repeat the criminal act. The person is liable to be punished. Anything that is prohibited in law without a penalty attached to it is NOT a crime. Board of Trade v Owen (1957) The court considered that the correct definition of a crime in the criminal law was the following passage from Halsburys Laws of England: A crime is an unlawful act or default (omission) which is an offence against the public and renders the person guilty of the act or default liable to legal punishment. Characteristics of a Crime Every criminal offence is made up of a number of elements, each of which must be proved before a defendant can be convicted of the offence with which he or she has been charged. Traditionally criminal offences are analyzed by reference to the actus reus1 and the mens rea2. The Latin maxim actus non facit reum, nisi mens sit rea means that the act itself does not constitute guilt unless it was done with a guilty mind.

1 2

Guilty act; the objective element of a crime; the external element of a crime Guilty mind: the intention to commit an offence whilst knowing it to be wrong or against the law

NATURE, PURPOSE AND FUNCTION OF CRIMINAL LAW STUDY GUIDE 2 Principles of Criminal Law The core principles of Criminal Law are: Criminal act or omission Criminal intent Concurrence Causation Responsibility Defences

The Functions of Criminal Law i) To define and identify conduct which should be criminalized: a) Legal Moralism b) Libertarian View c) Necessity d) Authoritarian View e) Legal Paternalism f) Symbolism

Shaw v DPP [1962] AC 220 The appellant published a 'ladies directory' which listed contact details of prostitutes, the services they offered and nude pictures. He would charge the prostitutes a fee for inclusion and sell the directory for a fee. He was convicted of conspiracy to corrupt public morals, living on the earnings of prostitution and an offence under the Obscene Publications Act 1959. The appellant appealed on the grounds that no such offence of conspiracy to corrupt public morals existed. The appeal was dismissed. The House of Lords in effect created a new crime. Viscount Simonds: "In the sphere of criminal law I entertain no doubt that there remains in the Courts of Law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for. That is the broad head (call it public policy if you wish) within which the present indictment falls. It matters little what label is given to the offending act. To one of your Lordships it may appear an affront to public decency, to another considering that it may succeed in its obvious intention of provoking libidinous desires, it will seem a corruption of public morals. Yet others may deem it aptly described as the creation of a public mischief or the undermining of moral conduct. The same act will not in all ages be regarded in the same way. The law must be related to the changing standards of life, not yielding to every shifting impulse of the popular will but having regard to fundamental assessments of human values and the purposes of society." Lord Reid dissenting: "Even if there is still a vestigial power of this kind it ought not, in my view, to be used unless there appears to be general agreement that the offence to which it is applied ought to be criminal if committed by an individual. Notoriously there are wide differences of opinion today as to how far the law ought to punish immoral acts which are not done in the face of the public. Some think

NATURE, PURPOSE AND FUNCTION OF CRIMINAL LAW STUDY GUIDE 2 that the law already goes too far, some that it does not go far enough. Parliament is the proper place, and I am firmly of opinion the only proper place, to settle that. When there is sufficient support from public opinion, Parliament does not hesitate to intervene. Where Parliament fears to tread it is not for the courts to rush in."

Knuller v DPP [1973] AC 435 The defendant published a progressive magazine. In this magazine advertisements were placed by homosexuals seeking to meet other like-minded individuals to engage in sexual practices. They were charged with conspiracy to corrupt public morals as established in Shaw v DPP. The House of Lords doubted the correctness of the decision in Shaw but declined to depart from it. Lord Reid: "I dissented in Shaws case ([1961] 2 All ER at 446, [1962] AC 220). On reconsideration I still think that the decision was wrong and I see no reason to alter anything which I said in my speech. But it does not follow that I should now support a motion to reconsider the decision. I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act." R v Brown [1993] 2 WLR 556 Facts: Each of the defendants participated in sado-masochistic homosexual activity in which the victims in each case consented to the activity and did not suffer permanent injury. The defendants faced charges of assault occasioning actual bodily harm and unlawful wounding and plead guilty when the trial judge ruled that consent was not a defence. The defendants appealed on the consent issue. Issue: Is consent a defence to an assault causing grievous bodily harm? Holding and Rule: No. Consent is not a defence to an assault causing grievous bodily harm. Consent is immaterial when the unlawful act involves a degree of violence such that the infliction of bodily harm is a probable consequence. A defendant may be convicted of unlawful wounding and assault occasioning actual bodily harm for committing sado-masochistic acts which inflicted injuries neither transient nor trifling, despite that the acts were committed in private, the person on whom the injuries were inflicted consented to the acts, and the victim did not sustain permanent injury.

The Wolfenden Committee Report on Prostitution and Homosexual Offences 1957 Shaw and Knuller followed a major review of prostitution and homosexuality by the Wolfenden Committee which took the view that the criminal law had no role in the enforcement of morality. Its function was to maintain public order and decency, to protect the public from what was offensive or injurious and to protect the vulnerable from exploitation. But given the vagueness of what qualifies as decent, offensive, injurious or even exploitation, it is little surprise that cases with a moral element continue to be decided on a moralistic basis and some would say discriminately. Such concepts are

NATURE, PURPOSE AND FUNCTION OF CRIMINAL LAW STUDY GUIDE 2 not neutral either by definition or in practice as we can see from the fact that, despite obscenity laws and the element of exploitation, pornography flourishes yet common prostitutes continue to be prosecuted for soliciting customers in the street under the Street Offences Act 1959 at four times the rate of their male kerb-crawlers whose conduct was not criminalised until the Sexual Offences Act 1985. (Prostitutes were exclusively female until s56 and schedule 1 Sexual Offences Act 2003 rendered them gender neutral. Soliciting or kerb-crawling is also now gender-neutral under the same provisions.) The liberal views of the Wolfenden Committee were contested by a leading jurist of the time, Lord Devlin, who felt that the law should rightly enforce moral principles and nothing else. The morality of right-minded people was fundamental to the cohesion of society which would disintegrate unless upheld by the law (The Enforcement of Morals (1961, 1965)). Endorsement of the liberal views of the Committee came from legal philosopher HLA Hart who argued that the criminalisation of morality led to laws based on ignorance or superstition (HLA Hart: The Listener, 30 July 1959). The only justification for the laws intervention into morality was protection of the vulnerable from exploitation. The moral debate continues and it raises the question of whether there is any point in a law that cannot be effectively enforced. Abortion was illegal until 1967 but back-street abortions flourished. Possession and the use of recreational drugs such as cannabis and ecstasy are against the law. Despite that, their use has escalated and, meanwhile, the debate continues as to whether the social or personal ills they convey are any worse than those arising from alcohol abuse or smoking. Individuals are allowed by the law to make certain but not all moral choices for themselves. ii) To reduce crime by enforcement and punishment: there are a number of theories of why we punish those who break the criminal law. a) Retribution Under a retributive theory of penal law, a convicted defendant is punished simply because he deserves it. There is no exterior motive such as deterring others from crime or protecting society here the goal is to make the defendant suffer in order to pay for his crime. Retributive theory assigns punishment on a proportional basis so that crimes that cause greater harm or are committed with a higher degree of culpability (e.g., intentional versus negligent) receive more severe punishment than lesser criminal activity. R v Sawoniuk (1999) unreported R v Newberry (2004) unreported R v Owen (1992) unreported b) Incapacitation c) Deterrence Punishment is justifiable if, but only if, it is expected to result in a reduction of crime. Punishment must be proportional to the crime, i.e., that punishment be inflicted in the amount required (but no more than is required) to satisfy utilitarian crime prevention goals. Utilitarian consider the effect of a form of punishment in terms of both general deterrence and specific (or individual) deterrence. When the goal is general deterrence, punishment is imposed in order to dissuade the community at large to forego criminal conduct in the future. When the goal is specific deterrence, punishment is meant to deter future misconduct by an individual defendant by both preventing him from committing crimes against society during the period of his

NATURE, PURPOSE AND FUNCTION OF CRIMINAL LAW STUDY GUIDE 2 incarceration (incapacitation), and reinforcing to him the consequences of future crimes (intimidation) R v Whitton (1986) Times 20/5/86, CA D a persistent football hooligan was convicted of riotous assembly outside a football ground and the trial judge imposed a sentence of life imprisonment, intending it to serve as a deterrent to others. Held: Except where life imprisonment is mandatory it should be reserved for crimes of exceptional gravity or cases where the defendant is likely to be a danger to others or suffers from marked mental instability. Football hooliganism was a serious matter, he said, and sentences aimed at discouraging such behaviour were necessary, but the sentence imposed was nowhere near justified by the circumstances of the case. Term reduced to three years, consecutive to seven years for other offences. R v Cunningham [1993] 2 All ER 15, CA D robbed a small shop. Held: The purposes of a custodial sentence are primarily punishment and deterrence. The vulnerability of small shops, the prevalence of this offence, and the resulting public concern, are factors that can legitimately be taken into account in assessing the seriousness of an offence, but it would be wrong to increase the sentence beyond a level commensurate with the offence simply to "make a special example of" an individual. Sentence varied to allow D's immediate release R v Q (2000) Times 11/2/02, CA d) Rehabilitation Another form of utilitarianism is rehabilitation (or reform). Examples of rehabilitative punishment include: psychiatric care, therapy for drug addiction, or academic or vocational training. iii) To identify who should and who should not be punished and the appropriate level of punishment.

NATURE, PURPOSE AND FUNCTION OF CRIMINAL LAW STUDY GUIDE 2 Sources of Caribbean Commonwealth Law English Common Law - is judge-made law. Even when superceded by statutory law, common law may serve to interpret ambiguous statutory terms. Criminal Code International Law treaties, war crimes, genocide Municipal Ordinances regulate the usage of streets, sidewalks, parapets even buildings and littering. Constitutions - established limits on power of government or legislative arm to enact criminal law we cannot pass law that will interfere with certain freedom rights that do not pass test of constitutionality. International Treaties Judicial Decisions European Community Law

Crimes as Distinguished from Civil Wrongs Moral Wrongs The civil law is that branch of the law that protects the individual rather than the public interest. A legal action for a civil wrong is brought by an individual rather than by a state prosecutor. A crime is a crime or an offence that is committed against a public interest whereas a civil wrong, rights of an individual. A single act can give rise to a liability in civil and criminal law. For example, driving above the speed limit and causing an accident, this can be both a civil and criminal offence, as the civil wrong would be brought by the person injured and the criminal offence would be speeding or reckless endangerment. Classification of Offences Felonies/ Misdemeanors crime punishable by death or imprisonment On basis of moral turpitude Mala inse crimes Mala Prohibita only lawful because the law so stipulated example not paying taxes, disorderly conduct Core Victim Crimes against the state Treason Against persons Espionage Burden and Standard of Proof in Criminal Law The maintained rule in Criminal Law is that the prosecution has the burden of proving all the elements of the offence. The defendant is always considered to be innocent until the prosecutions have proven him guilty. Although a defendant may rise as a defence that his conduct was not voluntary, the voluntariness of an act proscribed by criminal law is in fact an element of the crime, and as such, the prosecution bears the burden of proving such fact. The prosecution does not need to show, however, that every act was voluntary in order to establish culpability. It is sufficient that the defendants conduct which is the actual and proximate cause of the social harm included a voluntary act.

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Woolmington v DPP [1935] AC 462 The defendant claimed that he had taken a gun with him to the house of the victim his mother to show his estranged wife that he planned to commit suicide if she failed to return to him. He alleged that the gun had gone off by accident, i.e. while he was showing it to her. Despite this claim the defendant was convicted of murder. At the trial, the Judge directed the jury and suggested that the defendant had to prove it was an accident. The defendant appealed. The House of Lords accepted the defendant is claim that the trial judge had misdirected the jury, with it being established that the prosecution needs to prove beyond reasonable doubt two things. Firstly, that the defendant had actually committed the offence in question. Secondly, that he had done so with the necessary guilty mind. Miller v Minister of Pensions [1974] All ER 372

R v Majid [2009] EWCA Crim 2563 Criminal law Evidence. The Court of Appeal, Criminal Division, dismissed an appeal against conviction by the defendant on the basis that despite their having been defects in the trial, the prosecution had had such a strong case that in all the circumstances the verdicts were not rendered unsafe.

Limits of Criminal Law Advisory system Confession - conviction cannot rests upon a confession of the accused unless there is a corroboration Punishment inflicted must meet test of constitutionality Double Jeopardy Due Process

General Defences Kwame v Roberts (No. 2) 198231 WIR 219 It was established by the Court of Appeal of Guyana that where a hybrid offence has been tried summarily, the person who has been tried retains the right to appeal to the Court of Appeal.

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