Criminal Law motions

1. Criminal Law motions Who’s guilty of what and how should we punish them

2. What is the law for? Wolfenden Committee Report of the Committee on Homosexual Offences and Prostitution 1957:“To preserve public order and decency, to protect the citizen from what is offensive or injurious and to provide sufficient safeguards against exploitation or corruption of others, particularly those who are specially vulnerable… It is not… the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined”

3. Morality and the law • Right to be free from harm from others – is there a distinction between allowing you to be harmed and harming you? • Is condemnation from most of society enough to mean something is illegal – should we outlaw adultery or is only immoral acts in the public sphere or abuses of publically accepted power structures – what’s the distinction? • How far should law be paternalistic – is it my right to take drugs? Perpetrator of crime & victim are the same – does this change the punishment metric

4. Actus Reus –The guilty act • Laws generally aren’t designed to punish thoughts – something bad has to happen • Even if you intended something bad to happen and someone else did it before you did – you’re still not a criminal – why? • If I sell a car I think is faulty to someone but it turns out it’s not – I meant to commit a crime, but I didn’t – is this a good thing? • You have to prove some level of causation between actions and bad results in a debate – don’t simply assume

5. Mens Rea – the guilty mind • Did they intend to cause the result – was it a necessary step in achieving some other aim, were they reckless, • Is there a reasonable burden on this person to know the likely results of their actions – if I see a broken train track I’m not expected to recognise it as such but an employed engineer is • Can I argue that I have been coerced into an action – duress is a defence in law and pretty uncontroversial but what about social conditioning? If not affecting the crime should it affect the sentence? • What about mistakes – if I am mistaken that theft is not a crime I am still guilty, if I am mistaken that the object is mine should I be guilty? • If a belief is honestly held must it also be reasonable?

6. Purpose of Punishment 1 - Retribution • Existence in society forfeits our individual ability to take “vengance” perhaps legitimately desired – is this right? • Societal condemnation of certain action – Dose a “community service” project achieve this? • Intrinsically links the “gain” or intended gain by committing the crime to the punishment for it to be “just” – do other reasons for punishment achieve this?

7. Purpose of Punishment 2- Deterrence/Incapacitation • Can the person be safe existing in society? If not should they be in jail – what about those who will never be safe for society? • How likely are people to be aware of the punishment – what is the punishment for illegal downloading? • Do people think about the punishment or how likely they are to be caught and in what weight – motoring offences are a great example here • What sort of crime are we dealing with – is it one people do in the heat of the moment or do they plan or in between? • Should deterrence trump proportionality – death to the shop-lifters! • Does law create or perpetuate unconscious inhibitions to conduct

8. Purpose of Punishment 3 - Rehabilitation • Sentencing will focus on the needs of the prisoner and not the act committed • How do we create nice prison atmospheres (let out early for participation in drug trials?) • Does giving them responsibilities and trust affect their engagement?

9. Why do we have Juries • Generally speaking there purpose is to rule on decisions of fact – did Mens Rea and the Actus Reus exist • Sometimes they acquit because they regard the law unfair – was it ever in the public interest to pursue prosecution, should juries decide this as well as police? • Intended to broaden societies input into the law at point of enforcement • Should they be socially selective given they already throw out bias- can I not be bias given my social conditioning as a juror? • Particularly in Mens Rea who the jurors are may be very important and how the lawyers go about persuading them – should the rich get more expensive defence lawyers?