1 John Child & David Ormerod’s, Smith, Hogan, and Ormerod’s Essentials ofCriminal Law, (2nd edition, Oxford University press, 2017) 2 Andrew Ashworth & Jeremy Horder,Principles of Criminal Law, (7thedition, Oxford University Press, 2013) 3 Jonathan Herring, Criminal Law: Text, Cases, and Materials,(6th edition, Oxford University Press) 2014)17 – 184 Andrew Ashworth & Jeremy Horder,Principles of Criminal Law, (7thedition, Oxford University Press, 2013) 265 Michael J.
Allen, Textbook on Criminal Law, (13th edition,Oxford University Press, 2015)6 Joseph Raz,The Morality of Freedom, (1stedition, Oxford University Press, 1986)7Jonathan Herring, Criminal Law: Text,Cases, and Materials, (6th edition, Oxford University Press)2014)31-338 HumanRights Act 19989 Michael J. Allen, Textbook on Criminal Law, (13th edition,Oxford University Press, 2015) Allen M, Textbook onCriminal Law, (13th edition, Oxford University Press, 2015)2014)Raz J, The Morality ofFreedom, (1st edition, Oxford University Press, 1986)Child J & Ormerod D, Smith,Hogan, and Ormerod’s Essentials of Criminal Law, (2nd edition,Oxford University Press, 2017) Herring J, CriminalLaw: Text, Cases, and Materials, (6th edition, Oxford UniversityPress) Ashworth A & Horder J, Principles of Criminal Law, (7th edition, OxfordUniversity Press, 2013) Bibliography In pursuance of a criminal sanction to take effect, judgesas well as lords, must consider numerous conditions and principles beforeconcluding. As the society, today would desire a more liberal perspective.Thus, elements such as the Human Rights Act 1998 are viewed in more depth bycourts. The rudimental components forconducts to be deemed as a crime are not as adequate as they previously were asthere are measures that could be potentially developed to enhance the societyand make the world a better place. Culpability is the principle that people ought to solely beguilty of conduct that they are accountable.
In other words, individuals mustnot be guilty of conduct that they are not responsible for or had no controlover. This principle can be infringed if the legal code punished an individualfor the behaviour he carried out while having an episode from an epileptic fit,for instance. This would be unreasonable as the individual did not have thenecessary men’s rea as he was not in the right state of mind to make thedecision for the actions he carried out and therefore didn’t intend on causingharm.
9 The principle of legality is that conducts that could causeindividuals to be criminalised should be defined to allow those that want toabide by the law to do so confidently. The concept of legality is an importantreflection of the ‘rule of law’ it is highlights that every civilian shouldhave a right to know the law that they are required to abide by. It would beimpossible for individuals to avoid breaking the law if they were not actuallyaware of which conducts in detail would cause them to break the law. Theconcept is incorporated in the Human Rights Act 1998 which states that; ‘the law must be clear the law must becapable of being obeyed.
A law which prohibited breathing in public wouldclearly infringe the principle, and the law must be readily available to thepublic.’ An issue with thisprinciple is that laws can sometimes be interpreted in a number of differentways and there are conducts that are socially unacceptable that might not havebeen carried out in the past. Therefore, no law has been made against theconduct. This would mean that there is a chance that an individual could becriminalised even if he was not aware that the actions he carried out wasagainst the law. Hence why an ever-growing number of laws are being made andwhich can be a problem in terms of minimum criminalisation as discussedpreviously.
8The principle of minimum criminalisation proposes that criminallaw ought to prohibit a certain conduct only if it is compulsory. This is dueto several logical reasons. Firstly, there is a limitation on the quantity ofindividuals that can be incarcerated due to lack of space and facilities inprisons. Creating more offenses regularly would cause courts and prisons tobecome overcrowded. More so, criminalising more serious conduct carries themessage that there are certain conducts that aren’t simply just immoral, butimmoral enough to result in criminal proceedings. Criminalising conducts thataren’t as serious will remove the importance of this message and will not be aseffective in reducing unpleasant social behaviours.
Civil proceedings andgratifying good behaviours are other ways in with the law deals with immoralbehaviour. Therefore, having such many statutes that create criminal offencesis questionable.7A principle that assists the role ofthe law in protecting society from harm is the principle of welfare. From apossible victim’s point of view, the principle of welfare is in accordance withthe principle of autonomy mentioned previously: for someone to exercise theirright of autonomy, he should be protected from others that would unfairlyhinder his ability to do so, physically or otherwise.
4 Nonetheless, the protection of anindividual’s right to autonomy entails the limitation of another individual’sright to autonomy. Therefore, the principle of welfare delivers acounterbalance to that if autonomy and one could validate an extremely limitingcriminal law. For instance, if an individual was to harm someone whilstsuffering from an epileptic seizure the concept of autonomy would suggest thatthere is no liability as the individual did not have the necessary men’s rea.This means that harming someone whilst having a seizure is not a voluntary actand only a blameworthy should be punished. However, the welfare principle couldpotentially favor criminalisation since the victim’s welfare was stillhindered.5 Findingthe stability to encourage maximum autonomy and welfare by making theconditions, through minimum criminalisation, that permit and encourageindividuals to peruse their genuine social goals is a challenge in criminallaw. Joseph Raz argued in ‘The Mortalityof Freedom’ that: ‘the socialconditions required for the full exercise of autonomy must be provided for thestates to appreciate the importance of autonomy.’6The principle of individual autonomy is one of the crucialconcepts in the justification of criminal laws.
An individual’s right to livinghis or her life as he or she pleases (The right or autonomy). This principle isused in criminal law to forestall somebody’s exercise of autonomy fromobstructing another individual’s autonomy. The criminalisation of certainconducts restricts our option by the construction of the legal code. Inrelation to criminalising failures to act, the law is hindering theindividuals’ decisions and demanding an explicit course of conduct.
Henceforth,if we perceive autonomy as something that should be perpetuated and increased,criminal offenses, especially those regarding omissions liability, thatrestrains our autonomy ought to be kept to a minimum. Autonomy is also theprimary approach for the advancement of ‘choice’ as a critical component ofboth legal and moral blame. As a result,conducts that the defendant cannot evade must not be criminalised. The mostfundamental implications of this would rule out the legislation of, for example,sleeping and respiration, where we carry out these actions without choice.
Accordingly, the fairness or criminalising unrealistic choices is debateable.In other words, where the defendant commits an offence to avoid threatenedsever violence, the defence or duress is applied. Notwithstanding, duress isnot in any way permitted as a defence to murder, irrespective if it ishighlighted that a reasonable person would have responded within the samemanner, and therefore the defendant’s response was in a way an inevitableresponse.3The principle of harm presents a concept of crime where a conductmust only be banned if it results in harming another person. This principleputs a standard in place for what types of conducts a liberal should be able torightly forbid. The harm principle does not say that conducts that are harmful,should be prohibited; rather, it says that harmful conducts alone should beable to be prohibited.
1 JohnStuart Mill’s essay, ‘on liberty,’ regardingthe principle of harm argues that: ‘Powershould only be exercised over civilians against their will if the reason is toprevent harm to others.’ Thus, the idea behind this principle is thatindividuals should be able to do as they please if their actions do not harmthe interest of others. 2This essay is going to explain and judge the rules and standardsof criminal law as well as the issues they have in the light of certain guidingprinciples of restraint in the construction and use of the criminal law.