Principles of Criminal Law The principle of individual autonomy Individual Responsibility Freedom to choose? (education, culture, upbringing, peer pressure, economic circumstances, class etc.) =>held responsible for choices => justification for state punishment if choose crime A precondition of criminal liability Elliot v C 1983, a genuine free choice? Respect for the liberty and rights of the individual R v Brown 1994, consent, acts of violence for sexual pleasure, ABH and wounding, sadomasochistic homosexuals, private. Should their acts be criminal ? Pri nciple of autonomy, allow people to live as they choose, no threat to others, respect them as individual moral agents. Should the acts in Brown be Criminal Criminal in light of the principle of autonomy: autonomy: allow people to live life as they choose no threat to others, respect them as individual moral agents. Principle of welfare Collective goals Policy of social defence- “According to this view the criminal law may be properly used use d against any form of activity which threatens good order o r is though reprehensible. There, on this view, no limits to use of the criminal law sanction apart from financial ones”. Ashworth Principles of Criminal Law Lord Templeman on drugs… “it is an offence offe nce for a person to abuse his own body and mind by taking drugs. Although the law is often broken, the criminal law r estrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to to society generally” generally” (per Lord Templeman in Brown (supra)) He would criminalise because 1. Drugs bad for individuals = paternalism 2. Drugs are harmful to society generally= policy of social defence Morally wrong behaviour and paternalism: in Brown “Without going into details of all the rather curious activities in which the appellants engaged it would appear to be good luck rather than good judgment which has prevented prevented serious injury from occurring” occurring” ( per Lord per Lord Jauncey in Brown (supra)) supra))
Principle of legality Non-retroactivity The Adultery Act 2010 •
Section 1 (1)
“It shall be an offence for any man to commit adultery.”
•
Section 1(2)
“This statute shall have effect from the 1st October 2009 .” Article 7 ECHR, “no one shall be held guilty of any offence on account of any ac t or omission which did not constitute a criminal offence under national or international law at the time when it was committed.”
R v R [1992] 1 AC 599 •
It is November 1989
•
R attempts to force his wife to have sex with him against her will.
•
Common law precedents suggest husband cannot be guilty of raping wife
•
Should he have been convicted of attempted rape?
•
ECHR- article 7 no one to be guilty of any offence on account of any act or omission which did not constitute a criminal offence at the time when it was committed
•
ECtHR upheld conviction in SW and CR v United Kingdom 1995 explaining abolition of marital rape exception as a reasonably foreseeable development of the law.
“Thin Ice” Principle- “citizens who know their conduct is on the borderline of illegality take the th
risk that their behaviour will be held to be criminal” (Principles of Criminal Law 5 edn). P73 Shaw v DPP [1962] AC 220 •
Published “The Ladies’ Directory’”
•
Indicted for “conspiring to corrupt public morals”
•
No such offence existed
•
House of Lords upheld his conviction
Maximum Certainty “This condition is satisfied where individual can know from wording of relevant provision and, if need be, with the assistance of the courts’ interpretation o f it, what acts and omissions will make him liable” (from the judgement of the ECHtHR in Kokkinakis v Greece (1994) 17 ECHRR 397 at para 52 What is ‘anti-social behaviour’? Asbos Strict Construction
“The practical implication of this approach is that the courts should exercise restraint in their interpretative role, favouring the defendant where they are left in doubt about the legislative th
purpose” (Ashworth Principles of Criminal Law (5 edn. At p80)
Presumption of innocence Article 6 (2) ECHR “everyone charged with a criminal offence to be presume d innocent until proved guilty according to law” “Throughout web of English criminal law one golden thread is awlays seen, duty of prosecution to prove prisoner’s guilt” paraphrasing Lord Sankey LC in Woolmington v DPP 1935
The Principle of fair labelling •
“This principle is chiefly applicable to the legislature. Its concern is to see that widely felt distinctions between kinds of offences and degrees of wrongdoing are respected and signalled by the law, and that offences are subdivided and labelled so as t o represent fairly the nature and magnitude of the law-breaking” (Ashworth Principles of Criminal Law (4th edn.) at pp89-90)
•
“The practical implication of this approach is that the courts should exercise restraint in their interpretative role, favouring the defendant where they are left in doubt about the legislative purpose” (Ashworth Principles of Criminal Law (5th edn.) at p80)
Tutorial on Brown
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 defense. The defendants appealed on the consent issue. Issue: Is consent a defense to an assault causing grievous bodily harm? Holding and Rule: No. Consent is not a defense 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 sadomasochistic 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.
