First year CRIMINAL LAW - major issues summary

Benefit from unique experiences, networking and professional development opportunities by getting involved with one of the School's many student societies. More about student societies. Gain experience of another culture as well as valuable overseas connections by studying abroad as part of your degree.

Study abroad placements are available for one year between years 2 and 3, making your degree four years in total. More information about studying abroad. We use a variety of teaching methods. The traditional university lecture is complemented by a range of other teaching methods including small group work, project work, independent study, workshops and seminars. We use internet resources to make material available to you wherever you are and whenever you need it.

You will be encouraged to take responsibility for your own learning, for example by undertaking individual and group presentations. You will be encouraged to support and get support from your fellow students.


  1. A Glossary of Terms For First Year Students | Scalia Law School.
  2. Criminal Law - Open Textbook Library?
  3. Criminal Justice Overview;
  4. Theories of Criminal Law.
  5. Landscapes on the Edge: New Horizons for Research on Earths Surface;
  6. 1-L Survival Guide.
  7. Criminal Law.

Methods of assessing your work are as varied as the teaching methods we use. In addition to the usual exams and essay, some of your work will be assessed through oral presentations, short exercises or written pieces such as book reviews, and project work. We are keen that learning also takes place through the detailed feedback we give you when assessing your work.

You will get constructive comments, criticism, and suggestions for improvement on all your written and oral work. In this way we hope to make the process of learning a positive and enjoyable process. In the first year you are introduced to sociological and psychological explanations of crime and criminal behaviour; you are given a foundation for understanding the criminal justice system and criminal law and you will become familiar with the evidentiary basis for theories of social behaviour. The course unit details given below are subject to change, and are the latest example of the curriculum available on this course of study.

I have decisive reason not to go out in the rain without my umbrella. But it does not seem morally wrongful to do so Tadros , 11— Whatever the correct criterion, we must ask how law-makers are to apply it. We must also ask whether just any morally wrongful act will do. Some wrongful acts also violate rights, such that those who commit them wrong others. Some crimes are mala in se —they criminalize conduct that is morally wrongful independently of the law. Most crimes are mala prohibita —they criminalize conduct that, if morally wrongful at all, is morally wrongful partly in virtue of the fact that it is unlawful.

Is W compatible with the existence of mala prohibita? That depends on the extent to which changes in the law can produce changes in morality. The rules of the road are the classic case. Apart from the law, it is morally wrongful to drive dangerously. Such conduct is malum in se. What we should do to conform to this moral norm is not always obvious. To help, the law puts in place rules that tell us which side of the road to drive on, when to stop, and how fast we may go. Imagine we obey these rules. In doing so, we drive more safely than we otherwise would have: One proposal is that it is morally wrongful to violate legal norms that have this effect: Mala prohibita of this kind would then be compatible with W.

Of course, things are not so straightforward. Even if legal conformity generally improves our moral conformity, there may be exceptional cases in which it does not—in which we can violate the rules of the road without putting anyone in danger, or in which violation helps keep everyone safe.

And there may be people for whom even the generalization is not true—whose expertise enables them to systematically violate legal norms without creating risks any greater than those created by the rest of us. Can an explanation be given of why these violations are nonetheless morally wrongful? If not, W implies that even morally beneficial mala prohibita —like the rules of the road—must ultimately be removed from the criminal law Husak , —; Simester and von Hirsch , 24—29; Wellman Most views are comparative: One challenge is to identify the relevant baseline.

Are we harmed by an event if we are worse than we would have been if things had been different? If so, different how? Are we harmed if we are worse off than we were immediately beforehand? Or should we focus not on the position we were or would have been in, but on the position we should have been in morally speaking Holtug ; Tadros , —? A second challenge is to determine in what way we must be worse off. The wider our answer to this question, the more likely it is that harm principles collapse into their supposed rivals.

Some say we are harmed when our interests are set back Feinberg , 31— But it is plausible to think that we have interests in avoiding disgust, annoyance, and dismay. Many people are disgusted, annoyed, or dismayed by what they take to be morally wrongful. On an interest-based view, they are also harmed. Any harm principle that uses this notion of harm thus threatens to permit criminalization of much conventional immorality Devlin A narrower view has it that we are harmed only if our future prospects are reduced, because we are deprived of valuable abilities or opportunities Raz , —; Gardner , 3—4; Simester and von Hirsch , 36— Disgust, annoyance, and offence need not—and often do not—have this effect.

So they need not be—and often are not—harmful. Whatever view of harm we take, we must also decide whether all harms count for the purposes of a given harm principle. People sometimes harm themselves, they are sometimes harmed by natural events, and harm is sometimes done consensually. Recall that if we endorse HPP , we must decide whether the harm criminalization prevents is proportionate to the harm it does. Can we include all the aforementioned harms in our calculations? Or must we only include harm done to others without their consent Mill ; Dworkin ; Feinberg ; Coons and Weber ?

Be that as it may, whether we take into account other harms remains important: As well as asking how constraints might be clarified, we must ask how they might be defended. One type of defence proceeds from within our theory of ideals. A theory of ideals includes an account of the values that bear upon how we should act, and of the priority relations between those values Hamlin and Stemplowska To see how such a theory might generate constraints, consider W.

One argument for that principle is the argument from conviction Simester and von Hirsch , 19— One response to these arguments is that criminal law does not always censure or stigmatize. Another is that the arguments rely on priority claims that cannot be sustained.

The argument from conviction depends on our accepting that moral defamation cannot be justified. The argument from punishment depends on our accepting that those who do not act wrongly have an absolute right not to be punished. These claims may be too strong. To test the second, think again about possession of guns. Imagine that we criminalize possession, and that we have good reason to think that we can thereby save many lives.

It is plausible to think not. This would likely result in some lives being lost. The fact that not punishing safe possessors would probably have this effect is a good reason to think that safe possessors lack a valid complaint if they are punished. It is a good reason to think that it sometimes is permissible to punish the morally innocent. If it is, premise 3 of the argument from punishment is false Tadros , — Whatever one thinks of this means of prevention, it is not the means we utilize when we make use of criminal law. Absent perfect compliance, criminal law prevents wrongs by publicly making accusations, condemning people as wrongdoers, and punishing them for their wrongs.

Public accusations often stick even if nothing comes of them. Punishment is harmful by its very nature. Some claim that we can justify causing such harm—at least when the state does the harming—only if this is a necessary and proportionate means of preventing people being harmed. So it is impermissible to criminalize when this condition is not satisfied. One might reply that the harm internal to justified punishment is harm we lack reason not to impose. Leaving this aside, it is far from obvious that harm has lexical priority over other values.

The above argument for HPP seems to depend on this claim. But there is wrongdoing that is both serious and harmless. It is plausible to think that the value of preventing such wrongs, even when this does not prevent harm, is at least sometimes capable of justifying the harm done by criminalization Tadros , — A second defence of constraints proceeds from within non-ideal theory: One might say that all criminal law theory is part of non-ideal theory—that we have reason to have criminal law precisely because people will otherwise act wrongly.

Be that as it may. As well as fallible agents who would otherwise commit crimes, there are fallible agents who make, apply, and enforce criminal laws. Any non-ideal theory must also take account of the errors the latter are disposed to make. Some are errors of application and enforcement—errors made when police officers arrest, prosecutors charge, and courts punish the innocent. More important for present purposes are the errors law-makers are disposed to make when creating crimes. These errors matter here for the following reason.

If followed, speed limits prevent some drivers from driving in ways that are impeccable in isolation. Let us grant that, when followed, constraints like W or HPP prevent some law-makers from criminalizing in ways that are impeccable in isolation. Many defenders of HPP offer defences that proceed in the manner just described. One error is that of underestimating the value in lives very different from our own: A second error is that of underestimating the value of toleration.

That value includes making space for experiments in living, which both help combat prejudice by exposing people to the unfamiliar, and help people develop deliberative faculties by exposing them to that with which they disagree Mill ; Brink If the main effects of criminalizing drug use are felt in communities the affluent shun, it is not hard to see how law-makers could be blind to the amount of damage criminalization does.

Law-makers who make each of these errors will be tempted to create criminal laws that are anything but impeccable—laws designed to suppress activities the value in which has been missed, which do much more harm than their designers anticipated. The case for HPP is that it stands in the way of this temptation. Those who follow it must tolerate conduct—however offensive or immoral they deem it to be—unless they can show that criminalization is a necessary and proportionate means of preventing harm. Harm-based arguments are nowadays ubiquitous when proposed criminal laws are discussed.

Some think this shows that HPP is no constraint at all Harcourt But it is no surprise that those who merely pay lip service to a principle are not constrained by it. The argument of the previous paragraph was an argument that HPP should be followed. To follow that principle is to take seriously the need for an empirical showing—grounded in adequate evidence—that a given law is necessary to prevent a proportionate amount of harm. A better objection is that the error-based argument is incomplete. How widespread would error be if law-makers took themselves to be free of HPP?

When are the benefits of following HPP —in errors prevented—worth the costs—in otherwise impeccable criminal laws? Might there be some other rule that brings us those benefits at a lower cost than HPP? We need answers to all these questions, and more, to know if an argument from within non-ideal theory can support HPP Tadros , 94— A number of other possible constraints on the criminal law have been proposed Dan-Cohen , —; Ripstein As mentioned earlier, some are skeptical of all such principles.

The correct response to this skepticism remains unclear. One possibility is that a defensible general line can indeed be found. The question is where the line is, and how it is to be defended against objections like those sketched above. If so, we must ask what shape that theory ought to take, and how lofty should be the ambitions of those who construct it. Elements of offences that require particular mental states are known as mens rea elements.

Acing Series

Other elements are known as actus reus elements. Responsibility is understood here as answerability Duff , 19— While we are answerable to the courts for committing offences, we may avoid liability by offering satisfactory answers in the form of defences. This account of criminal responsibility—call it the answerability account —relies on a distinction between offence and defence to which we will return.

One argument for the answerability account invokes rules of criminal procedure and evidence. The best explanation of these rules, so the argument goes, is that offending acts generate a duty to answer that is otherwise absent. Some think that, on closer inspection, our rules of procedure and evidence fail to support the answerability account, and help to undermine it.

This matters here for the following reason. It suggests that we owe the criminal courts answers not for acts that are offences but for acts that are crimes —for offending acts which do not satisfy an available defence. Obviously enough, it is for crimes that we are criminally liable. If responsibility is answerability, and we are answerable for crimes, the conditions of criminal responsibility and the conditions of criminal liability are one and the same.

What should these conditions be? There has been much discussion of the mens rea principle MR:. Standard mens rea requirements include intention and recklessness. Whether criminal responsibility should require mens rea , and what mens rea it should require, both depend on the reasons we have to accept MR. Perhaps the most familiar defence appeals to the culpability principle C:. Culpability, as that term is used here, is a moral notion. It is synonymous with moral fault or moral blameworthiness. Mens rea is not sufficient for culpability—even intentional killings are sometimes excused.

But it may well be necessary—culpability may presuppose at least some element of mens rea Simester ; cf. If this is so, the debate shifts to whether we should accept C. One worry about this principle is its generality. The consequences of criminal liability are not always especially burdensome. And the benefits of liability without culpability may be especially significant.

To take but one example, think of regulations that govern the activities of corporations, and which protect the health and safety of the public at large. Making it a criminal offence to violate these regulations, and imposing hefty fines, need have none of the destructive effects of imprisoning individuals.

Dispensing with culpability requirements may increase the deterrent effects of the law, by making it harder for violators to escape conviction. Whether C is sound depends on whether effects like these—which, ex hypothesi , protect the health and safety of many—can justify imposing criminal liability without culpability. That C may admit of exceptions does not, of course, show that C is not generally sound.

I suggested above that, where C does apply, it entails MR. How much mens rea C requires is a further question. Take the offence of causing death by dangerous driving. The actus reus of the crime requires two things: Some think that C calls for two mens rea requirements: The idea that each actus reus element should have a corresponding mens rea element is known as the correspondence principle Ashworth Whether C in fact supports that principle is a matter of debate.

It is sometimes the case that the risk of causing some harmful outcome like death helps make it the case that an act like dangerous driving is wrongful. There is an internal connection, in these cases, between our assessment of the act and the risk of the outcome. Conformity to RL is a matter of degree. But an especially high degree of conformity is expected of the criminal law. Another is the damage a guilty verdict does to the life of the accused.

In this way, mens rea requirements contribute to personal autonomy by increasing our ability to steer our lives away from criminal conviction and punishment. So RL supports MR. Does it also support the correspondence principle? This is less clear. A third argument for MR appeals to liberty Simester and Chan , — Obviously enough, the degree to which we should care about taking options off the table depends on how much value they have. This makes the liberty-protecting role of mens rea especially important where criminal responsibility extends beyond paradigmatic cases of wrongdoing.

Consider the law of complicity. Under what conditions should S be criminally responsible for participating in wrongs committed by P? Imagine it is sufficient that S realises P might act wrongly. Anyone who sells goods that are liable to misuse is then in danger of being turned into a criminal by their customers. Shopkeepers must run the gauntlet or close their doors.

Narrower mens rea requirements enable them to both stay in business and ensure they remain on the right side of the law Simester , — It is worth concluding this section by returning to two questions distinguished at its outset: Question i is often discussed under the heading of strict liability. The literature distinguishes between various senses in which liability can be strict Duff ; Gardner , 68—69; Simester , 22— This second category can itself be subdivided.

Liability is formally strict in the strong sense when there is no mens rea element at all. Liability is formally strict in the weak sense when at least one actus reus element has no corresponding element of mens rea. If C is a sound principle, criminal liability should not be substantively strict.

If MR is sound, there should be no criminal liability that is formally strict in the strong sense. If the correspondence principle is sound, liability that is formally strict in the weak sense also should not exist. So much for question i. What about question ii? The above discussion assumed that mens rea at the very least requires awareness. Some writers claim that negligence has no place in criminal law.

If C is sound, and culpability requires awareness, then criminal liability should require recklessness at the very least. Others take a different view. They claim that when we are unaware of risks because of vices like arrogance or indifference, this makes us culpable for running those risks. So C is compatible with at least some instances of negligence liability in criminal law Hart , —; Simester , Alexander and Ferzan , 69—85; Moore and Hurd Whether or not mens rea should be necessary for criminal responsibility, it is rarely claimed that it should be sufficient.

The widespread belief that we should not countenance thought crimes, leads most writers to claim that there should be an actus reus element to each criminal offence. This paradigm does, of course, admit of a number of exceptions. As well as inchoate offences—like attempts or conspiracies—most systems of criminal law include liability for some omissions.

Move the drama to Paris and we have ourselves a crime. As this example suggests, both academics and legal systems remain divided over the positive obligations that should be imposed by criminal law Alexander ; Ashworth Exceptions aside, the building blocks of our paradigm are each open to interpretation.

Consider, for instance, the need for causation. Or do the rules of causation—at least in criminal law—lie downstream of moral judgments about the fair attribution of responsibility? Does the truth, perhaps, lie somewhere in between? The criminal liability of many—as well as the punishments they face—turns on the answer we give to such questions. Academic debate about causation and omissions largely takes our paradigm for granted.

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Some writers, however, take a more radical view: One group of radicals focuses on outcomes. In any system of criminal law this is an attempt. The radicals claim that what happens next should make no difference: Criminal responsibility, in short, should be insensitive to the outcomes of what we do Ashworth ; Alexander and Ferzan , — Consider again what I earlier called C:.

Uncontrolled factors do not only bear on whether we succeed. They also bear on whether we try, on the choices we make, and on the character traits that influence our choices. Pursued to its logical conclusion, it implies that we are never culpable for anything Nagel ; Moore , — We can add that 3 radically understates the conclusion of the argument offered above. When combined with C , that argument does not imply that we should not be criminally responsible for outcomes. It implies that no one should ever be criminally responsible. But it also renders the argument from 1 — 3 invalid.


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  • On this account of control, 1 and 2 do not support 3: We have already seen that, for some, we are criminally responsible for committing offences and criminally liable for committing crimes. This distinction relies on a further distinction between offences and defences: Offence elements must be proved if conviction is to be the legally correct verdict of the court. The same is not true of defence elements, like those that make up the defence of duress.

    The same is true where consent is a defence-element—as it is in the offences created, in England and Wales, by the Offences Against the Person Act If the issue of consent never comes up, a conviction may still be the legally correct verdict of the court. These writers accept that offences and defences are governed by different procedural rules. Their claim is that the distinction between offences and defences explains why those rules differ.

    Perhaps the most well-known version of this view runs as follows. Offence elements are individually necessary, and jointly sufficient, to describe an act that there is general reason not to perform. On this view, whether we should think of the absence of consent as an element of the offence of sexual assault, depends on whether we think that there is a general reason not to have consensual sex with others. If there is no such reason, the absence of consent is necessary to give us an act we have general reason not to perform.

    So it is an element of the offence of sexual assault. If, on the other hand, there is a general reason not to have consensual sex, consent is properly thought of as a defence to sexual assault Campbell ; Gardner , — In addition to distinguishing between offences and defences, many writers distinguish between types of criminal defence. The most familiar distinction is between justifications and excuses. The most familiar account of the distinction has it that while justified actors deny wrongdoing, excused actors deny either responsibility or culpability Austin ; Fletcher ; Greenawalt ; Baron Two questions are worth asking here.

    Is the familiar distinction worth drawing? If so, is the familiar account of the distinction the right way to draw it? There are two reasons to answer the first question in the affirmative. If courts are to develop criminal defences so that their contours track culpability, they need to know why each defence makes it the case that those who plead it are not culpable. Is there a defence of necessity because we sometimes do the right thing by choosing the lesser of two evils?

    Or does the defence exist because actors sometimes make wrongful choices under enormous pressure, and because there is sometimes nothing culpable about giving into the pressure? How courts should develop the defence depends on how they answer these questions. It depends on whether they conceive of the defence as a justification or an excuse. A second reason to make the familiar distinction invokes the idea that criminal trials call defendants to account.

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    Theories of Criminal Law (Stanford Encyclopedia of Philosophy)

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    Criminal law

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