A stabs B. B does not die, but is rushed to hospital. B requires 4 pints of blood, but C, the doctor, acting in an emergency, only provides B with 2 pints. B dies.

Who caused Bs death?

Criminal Law Lecture 1 Concepts, Theories and Elements of Criminal Law

Dr Paresh Kathrani

Twitter: @PKathrani

Welcome: Structure of Criminal Law this Year Welcome: Dr Paresh Kathrani

Module Leader: 1LAW500 LLB Criminal Law

Criminal Law Lectures Joint:

1. LLB (Hons); 2. LLB Solicitors Exempting Degree (SED); and 3. Graduate Diploma in Law (GDL)

A. Joint Lecture Handbook; but also

B. Separate LLB, ED and GDL Tutorial Handbooks

Both Handbooks on Blackboard

Two Handbooks dovetail together

Welcome: Structure of Criminal Law this Yearcont1. Joint Lecture Handbook

- Indicative lecture content;- Recommended and other sources; - Lecture schedule note, four ISW weeks; and- Lecture outlines - reading important

2. Specific Tutorial Handbooks

- Specific LLB, SED and GDL details - please read;- Importantly, module assessment rationales; and - Tutorial Questions

Also details of LLB, SED and GDL Module Leaders

Any questions, please contact relevant module leader

Welcome: Structure of Criminal Law this YearcontIntroduction to LLB, SED and GDL Module Leaders: Dr Paresh Kathrani (LLB), Ade Makinde (ED) and Dr Oliver Phillips (GDL)

Joint Lecturers: Dr Paresh Kathrani, Dr Oliver Phillips, Hannah Camplin and Dr Stephanie Roberts

Lecture Breaks

To begin withWhat is Criminal Law? Why is this important?This module is first and foremost about the:

Criminal Law All module aims generally specify that you must be able to identify and apply the law e.g.

LLB Criminal Law Learning Outcomes:

A detailed understanding of the knowledge base, theories and concepts that permeate the area of Criminal Law... etcWhat is this law???

This is an important question that may

To begin withWhat is Criminal Law? Why is this important?...cont

influence how you approach Criminal Law

To begin withWhat is Criminal Law? Why is this important?...cont

What is Criminal Law?One approach may be Michael Allen, Textbook on Criminal Law: a crime may be defined as an act (or omission or a state of affairs) which contravenes the law and which may be followed by prosecution in criminal proceedings with the attendant consequence, following conviction, of punishment.Clear definition focussing on law AND its procedures Thus, law of murder would fall within this:

i. contravenes the common law; ii. followed by prosecution; and iii. potential punishment

What is Criminal Law?...contThinking point: is there anything more to criminal law??Consider Clarkson, Keating and Cunningham: Criminal Law is a reflection of community values aimed at isolating the blameworthy who are deserving of punishment. Equally, it is a means of social control; it attempts to uphold, as well as reflect, these community values; it sets a standard, albeit at times a minimal one, of necessary compliance. In short, it is a set of moral commandments that are backed up by the legal threat of punishment.Normative view of criminal law

Question: Under this, why is murder a crime?

What is Criminal Law? Relevance?

Why is this important to you???

Does it have any practical purpose?

Criminal Law Reasoning Will be using Hypothetical Problem Question Method (HPQ) throughout

HPQ: A stabs B. B does not die, but is rushed to hospital. B requires 4 pints of blood, but C, the doctor, acting in an emergency, only provides B with 2 pints. B dies. Who causes Bs death?The law of homicide says that causation is important for homicide one legal principle here is: did As act significantly contribute to Bs death?How would you analyse this legal issue + how is the above relevant here???

Criminal Law Reasoningcont

Criminal Law Reasoningetc Over the course of this module, you will be learning many laws e.g. actus reus and omissions, mens rea and recklessness, murder, theft etc andwhile being aware of rules is important

legal reasoning is too

Consider working in groups etc

Look at respective assessment criteria

What does it require?

Criminal Law: Burden and Standard of ProofAnother way to reflect on Criminal Law is through i. burden and ii. standard of proof

Legal cases generally revolve around two broad issues:

A. The law; and B. The facts

HPQ

X takes Y, a strangers, property

A. Here, the law would be theft; and

B. The facts would include that X did in fact take the property

Criminal Law: Burden and Standard of Proofcont1. What is the burden of proof?

The facts are fundamental in any legal case

Basis of the caseBut, in a case, facts may be unclear in a caseConsider HPQ:C and D have big argument at a party one evening in front of 20 guests. The next morning D is found dead at his home. Witnesses saw C getting on a bus near Ds home around the time of the killing. C is charged with murder.

Are facts clear that C killed D???

Criminal Law and Burden and Standard of ProofcontBefore the law of murder can apply, facts need to be establishedQuestion1: in a criminal case, by who?Question 2: And how? Should there be a presumption of guilt? Or, should A have to prove he is innocent?Woolmington v DPP [1935] AC 462 Generally for state to prove C is guilty Have the legal burden of proofQuestion: Why the state???In contrasting this with civil law, understand criminal law

However, the legal burden can move to the defendant. When?

Criminal Law and Burden and Standard of ProofcontFurther, C may want to explain that there was another reason that he was in Ds area In order to make this a live issue, will have to introduce evidence Evidential burden of proof and states role 2. What is the standard of proof?

Again, consider the HPQ above As mentioned, state has legal burden. But can state ever prove beyond all doubt that C actually killed D?Would it be acceptable to expect state to absolutely prove that C killed D?

Criminal Law and Burden and Standard of ProofcontSo in proof, we talk about degrees of certaintyIn criminal cases, proof beyond a reasonable doubt In civil cases, on a balance of probabilitiesWhy is it different? Question: Is the criminal standard fair?3. Conclusion: Burden and Standard of Proof

Discussion feeds into our understanding of Criminal Law above

E.g. consider Clarkson, Keating and Cunningham again Criminal Law is a reflection of community values

Can also apply in legal reasoning

Theories of Crime Discussion above has been about exploring contours of Criminal Law Reasoning with legal rules importantWill see this in case of R v Brown [1994] 1 AC 212But can also identify and use certain theories of Criminal Law to legally reason too 1. Legal Formalism Mainly focussing on the form and procedures of law

Theories of Crimecont2. Theory of Utilitarianism Justifying purpose of any social rule or institution must be the maximisation of happiness

Jeremy Bentham human beings guided by two main forces happiness and pain But how do we quantify happiness??? Think about how you would gauge and argue it 3. Harm Principle

J.S. Mill was an proponent of the harm principle: The content of criminal law should be circumscribed according to the principle that the coercive powers of the state should only be invoked as a means of preventing harm to others and never to control non-harmful behaviour or to prevent the person harming herself

Theories of CrimecontHarm principle thus purports to accommodate the concerns of the state - while respecting individual freedom.Liberalism - people possess free will and must be allowed to make free choices But think about how you gauge and argue harm???4. Paternalism The state decides what is criminal Conduct is wrongful if it causes harm to others or to the person themselvesAny issues with this?

Theories of Crimecont5. Legal Moralism

Lord Devlin: Primary function of the criminal law to maintain public morality In his opinion intolerance, indignation and disgust were so vital to a society and conduct which aroused such feelings amongst right-thinking members of society deserved suppression by means of the criminal lawSo think about standards of decency and indecency in society Any issues with this?Conclusion

The discussion above shows us that there is no one right theory of criminal law Reasoning with rules

Theories of Crimecont

Sentencing TheoryAnother important component of the criminal justice system is sentencingThe view that D ought to suffer some consequence if guilty Arguably one of the end points of the criminal justice system What should be the objectives of criminal punishment? There are several theories here that can be considered as well

Sentencing TheorycontA. RetributionWhat do crimes consist of? Private and societal effect ResponseNeed for order and role of the state B. Deterrence

Crimes consist of bad conduct and result Need for prevention

Sentencing TheorycontHuman reasoning Types of punishment e.g. custodial, community sentences, finesBut does it always work?C. IncapacitationNeed for crime prevention Remove the offender from society Detention D. RehabilitationWhy do people commit crimes?Reform and second chance

Lecture RecapThus, criminal cases have at least several aspects:1. Criminal law as procedure and values;

2. Facts, burden and standard of proof; 3. Criminal law theory; AND 4. Sentencing etc

In this module, mainly concerned with substantive criminal law But others relevant as well

Elements of a Crime: Actus Reus and Mens ReaWe will conclude by looking at two elements of a crime:1. Actus Reus; and 2. Mens Rea

Over the next couple of weeks we will consider them in a lot more detail

There is a step by step process for analysing them

Elements of a Crime: Actus Reus and Mens ReacontGeneral Steps:

1. Identify the offence; 2. Access its legal source; 3. Extract its definition; 4. Separate the definition out into distinct parts (elements);5. Pinpoint those that identify the guilty conduct (Actus Reus);6. Distinguish those that identify the state of mind in which the crime must be committed (Mens Rea).

Elements of a Crime: Actus Reus and Mens ReacontPractical Example: Theft

Step 1. Offence of Theft

Step 2. Look at its legal source: section 1 of the Theft Act 1968

Step 3. Distinguish its definition: person is guilty of theft if dishonestly appropriates property belonging to another with the intention of permanently depriving the other

Step 4. Separate its definition into parts:- Appropriation;- Property; - Belonging to another; - Dishonestly; - Intention to permanently deprive

Elements of a Crime: Actus Reus and Mens ReacontStep 5. Identify those that go to external behaviour (Actus Reus):- Appropriation;- Property; - Belonging to another Step 6. Then those that represent the required internal state of mind (Mens Rea): - Dishonestly; - Intention to permanently deprive

Cardinal Principle: AR and MRAll the elements need to be proven becauseWhere a criminal definition contains both, there is a cardinal principle that both must be proved: A cardinal principle of the criminal law is embodied in the maxim actus non facit reum, nisi mens sit rea an act does not make a man guilty of a crime unless his mind is also guilty. Card, Cross, and Jones, 2004, p.55Though note:It would I think be conducive to clarity of analysis of the ingredients of a crimeif we were to avoid bad Latin and instead to think and speakabout the conduct of the accused and his state of mind at the time of that conduct, instead of speaking of actus reus and mens rea. (per Lord Diplock in Miller [1983]2 AC 161, @174)

AR, MR and Defence?Arguable that crimes may involve a third element too HPQ:A forces B to appropriate property belonging to C otherwise A will seriously harm Bs familyHere, B may have a defence

So, in order to prove liability, prosecution not only needs to prove:

1. AR 2. MR but also

3. Absence of defence

Conclusion: AR and MR For the reasons above, I would recommend that you take the following approach to the crimes you consider on this module:1. Identify the offence; 2. Access its legal source; 3. Extract its definition; 4. Separate the definition out into distinct parts (elements);5. Pinpoint those that identify the guilty conduct (Actus Reus);6. Distinguish those that identify the state of mind in which the crime must be committed (Mens Rea).

Complete Tables as you go Along: AR and MR

NameSource DefinitionAR MR

*