Introduction to Criminal Law

Hello everybody and welcome to an introduction to the criminal law. Now this is going to be the first in a long series of lessons covering criminal law from the perspective of the jurisdiction of England and Wales and we're going to be doing so over the course of the next few weeks and months. This lesson specifically though is going to take an introduction to the subject of the criminal law. We'll also be introducing some of the more theoretical approaches to crime, criminalization and criminal theory. This is going to serve as the first major section on our studies but I'll get to that in a minute when we look at the final slide. And we're also just going to be talking a little bit more generally about the nature of crime, the nature of the criminal law, what the purpose of the criminal law is and some of the ways in which the criminal law has been interpreted through both the eyes of legal theorists, legal scholars, but also through philosophers, sociologists, criminologists etc etc etc. So this is the first of a series of lessons on a new updated series on the criminal law. We are updating all the way from all the way to 2023 so we're going to be covering new cases and new crimes that have or at least new cases that have come out in recent years and this lesson as I've said is going to be taking a major introduction to the subject bearing in mind however that the first five or six of these lessons are probably going to be quite introductory in terms of their content and in terms of the approaches that we are going to be looking at. This is because it's important and one of the things that I want to instill in this new series of lessons on the criminal law is these new theoretical and critical approaches to the idea of the criminal law. Looking at the criminal law not just from a descriptive perspective but also looking at some of the normative implications. This is something that we look at when we if you go to our introductory lesson to jurisprudence which we have done recently as well when we look at the difference between just simply describing what the law is describing how the law works and then also going into and examining the actual normative approaches i.e what ought the law be why are some parts of the criminal law subject to socio-legal critiques etc etc etc. So all of this is going to be really important in this new series. This does not mean that we're going to just be avoiding the talking about and the and the discussion of substantive crimes as well. Of course we're going to be talking about murder manslaughter sexual offences we're going to be talking about principles of essential elements of crime so for example the actus reus the mens rea of an offence causation but we're also going to be doing so through the lens of more critical approaches as well as and when we as and when we need to actually approach it from a critical understanding. So as an early introduction let's think about this through the perspective of taking ourselves back all the way away from the substantive crimes themselves so looking at what murder is for example let's just think well what is crime what is a crime what does it mean for something to be a crime. Now you might think that this is a relatively easy way to or an easy question to answer should I say especially because for the most part you would argue that the criminal law is most colloquially well understood and well known. People know what a crime is for example less people will know what it means to say that something is put on trust or something is a tort. Those are areas of law which are while still very accessible to the general public they are not as accessible in terms of the sort of deep embedded colloquial understanding as that of crime. Well despite this fact and despite the fact that we can all name a crime and we can all define what we think crime is the definition of a crime is one which has attracted a lot of debate and deliberation from various different philosophers throughout the centuries legal theorists throughout the centuries. According to the Oxford English Dictionary for example they suggest that a crime or that the idea of crime is potentially some kind of act or omission. I have added that bit in there they've said that essentially an unlawful activity but I've also made it clear that you can have an omission as part of a crime as well. But they say that it is an act or omission which is considered to be unlawful and in addition to this they suggest that maybe one of the caveats for criminal liability and for a crime is this idea of the unlawful nature of the act or the omission being sufficient to warrant the intervention from the state or potentially that not necessarily it meets a particular threshold for the intervention of the state but that the state intervenes and that that is what makes something a crime. All of these are generally acceptable theories and generally acceptable definitions they're not necessarily universally accepted. Some may argue that it is to talk about crime as being quote something unlawful because then you might say well what does it mean for something to be unlawful and you could almost define something being unlawful as something as being a crime. That would sort of blur the lines between the idea of the civil and the criminal in terms of in terms of the two jurisdictional elements of the English legal system but some of these definitions are debated is the point of this slide and essentially the idea of what a crime is is not universally understood and is not universally accepted and so we can have general conditions should we say or general features of what a crime may be so some kind of unlawful act the intervention of the state the state prosecuting that individual rather than the rather than the individual who is harmed or who is wronged in some way being the person who does the prosecuting which is of course what happens when we look at civil liability for certain actions and in this case you can actually look at quite useful parallels between between civil and criminal jurisdictions because you can look at for example certain torts which can be considered to be both civil and criminal in terms of the actual act itself so intentional torts such as that of assault and battery will find you will be able to at least or there will or could potentially be liability in both civil and criminal jurisdictions so you might look at that and go well the acts are essentially the same the acts are the same in these in both of these circumstances the facts themselves what is it that makes this one a crime and this one a tort something that is civilly liable and one that is criminally liable most would answer that in the case of the criminal liability for assault or battery for example you would say that it is the state that intervenes rather than in the civil elements of assault and battery within tort it is the person who is making the claim who is actually wronged who is harmed in some way that can therefore make the claim and sue the defendant now in terms of statute law there are also definitions of what constitutes a crime and i've just picked an example here section 243 subsection 2 of the trade union and labor relations consolidation act from 1992 where it says that a crime for this purpose means an offense punishable on indictment or an offense punishable on summary conviction and for the commission of which the offender is liable under the statute making the offense punishable to be imprisoned either absolutely or at the discretion of the court as an alternative for some other punishment now this gives a definition of a crime for the purposes of the specific legislation so this is in relation to trade union and labor law which is of course something that we are not covering in this series of lessons as you can imagine but it also gives us some further delineations relating to what a crime could potentially be or at least a different way in which we can classify different kinds of crime you have here for example as stated in this particular provision the idea of an offense being punishable either on indictment or punishable by way of summary conviction what is the distinction between a summary conviction and an indictment what is therefore the distinction between the jurisdictions of the various elements of the english judiciary sorry um so for example that of the crown court versus that of magistrates the the lay magistrates well ultimately this is things that we're going to be talking about in future lessons time this is also content and and subject matter that we're going to be focusing on when we look in more detail in a series on the english legal system just as a general introductory legal series as well so these are things that are going to be covered in far more detail but it just i've just put this here as a general indication of how crime is defined in other in other contexts and in other circumstances and also how crime can be delineated by way of maybe an offense being punishable on indictment or through a summary conviction so essentially what i want to take away from this is this theoretical approach towards criminalization and and criminal offenses the idea of really the debate around what makes something a criminal offense and then what are potentially the necessary or sufficient factors in the process of criminalization for those who have never studied or had any kind of interaction with philosophy the terms necessary and sufficient are philosophical terms so in terms of what it means for something to be a thing there are often a lot of conditions attached to the idea of that thing being a thing so for example the idea of a crime being a crime there are often conditions attached to that something is a necessary condition if it is required for that to exist so if i say that for example and this is not necessarily true but let's just for a hypothetical example i say that there has to be some kind of harm in order for something to be a crime then that would suggest that it is a necessary condition such that if that condition is not there then the thing that we are identifying is not a crime now a sufficient condition is one that essentially brings the thing into existence in and of itself so for example i could say well what is a crime well a sufficient condition for a crime is that it is either expressed through the common law or through statute or potentially through international international treatise for example or at least in the in the context of england and wales it would either be through the common law or through statute those are actually sufficient conditions for a crime if parliament passes a law tomorrow suggesting that for example waving to your neighbor is a crime they have the right to do so through the idea of parliamentary sovereignty and that would be a sufficient condition for that thing to become a crime but again these are very heavily debated this is going beyond not just the specific doctrinal analysis of criminalization but also the philosophical and socio-legal approaches to criminalization as well just for example an act or a mission required the person the perpetrator to commit some kind of harm this is what is known as the harm principle the idea that what makes something a crime is it's an act that causes some kind of harm now there are various pros and cons to this particular approach and there are various different alternatives and and variations on this approach but this is one of the major approaches within the sort of general philosophy of criminal law does an act or a mission require the breach of public morals or just general ethics this is again another major approach known as legal moralism and again you can come to a conclusion that actually for something to be a crime it has to be immoral now you're getting into the weeds as to what constitutes something that is immoral there and people will also come back with you come back at you should i say with a number of different examples of acts which are probably considered to be immoral but are not considered to be a crime so for example cheating on your significant other would be considered immoral in most circumstances if not all circumstances but it is not a crime to do so so again heavily debated in a number of different ways does knowledge of wrongdoing matter does the perpetrator have to know that what they're doing is wrong in order for that to be considered a crime this brings into the idea of the idea of a guilty mind the idea of the mens rea of an offense the intent to commit an offense versus what is known as strict liability where intent doesn't not doesn't necessarily matter the fact that you did it does not does not deter or at least the fact that you did it and you may have done it not knowing that you've done it or not knowing that what you had done was a crime that does not necessarily absolve you from liability and so again does it matter in all contexts some crimes are not strict liability some crimes are we'll get to what which crimes are which as we go on in future lessons do all crimes require a victim if so what relationship does the state have with that victim in question and this brings us to another point which is essentially one of the purposes of the criminal law and this relates to this approach known as paternalism and a paternalistic outlook towards the state in a great many different cases within criminal law it seems to be the case that they that the state exists to protect those who may be victims of crimes or essentially to support those who may be victims of crimes or who have been a victim of a crime in the past and i guess this all also ties into an idea of of a theory of punishment being one to essentially to to essentially deter people from from committing crimes in the first place you're doing so potentially to protect those who could be the victims of said crimes and this gives the state a certain a state idea of paternalism it gives the state a certain role as being paternalistic the idea of paternalism is this idea that you limit the autonomy of certain individuals in society's actions or all of society's actions and the justification for doing so is to protect those who are in society who need it most it is quite paternalistic and so this is really a question of the relationship between the criminal law and the state and the relation that those two have with the people and society more generally do do does the state utilize the criminal law and justify the existence of the criminal law on the basis of protecting those in society who need it most if so then we are talking about it from a particularly paternalistic standpoint it's a generally accepted view that when we when we see the state intervening and instituting criminal offenses and prosecuting criminal offenses and that they are doing so with the understanding that and this is a sort of generally understood belief that it is a good thing for society for the state to be able to prosecute those who commit criminal offenses and therefore also limit have the power to limit the actions of anyone who tries to commit a criminal offense whether that be through a post hoc prosecution of people who commit that or even if it maybe deters people from potentially committing it in the future by labeling it as a criminal offense so this first lesson has been very theoretical and i'm afraid it's going to be even more theoretical as we go on in the next few lessons time but i will just want to outline the scope of this series in more detail here we're going to be dividing this series into a number of specific sections within each of those sections are going to be specific lessons and those the sections are going to be highlighted at the start of each lesson just above the title as is the case in every single presentation that we do and the first section is going to be as you may think already theories and principles of the criminal law we're going to talk about some more of the theoretical elements not going into too much detail as to the philosophy of criminal law because that is a beast in and of itself but also talking about the concept of punishment the idea of evidence within criminal proceedings the idea of defense prosecution the common law system and just general subsidiary issues related to criminalization we will then talk about the question as to what it what makes a crime this is going to be a little bit more doctrinal and getting into actually the law itself the black letter law itself this section is going to examine the what it means for something to be a crime what are required what are the essential elements for a crime to exist this involves looking at the concept of the actus reus the mens rea the idea of criminal offense or lack thereof in terms of giving rise to criminal liability the idea of an omission being a crime as opposed to just an act the causation of the acts and the mens rea towards the actual the actual bringing about of the events that takes place the concept of strict liability the concept of secondary participation in criminal liability so parties to a crime and then a subsidiary issue in relation to parties to a crime which is this idea of inchoate liability as well and then in the third section we're going to actually get on to using all of the things that we have talked about in these first two sections to apply those to specific criminal offenses talking first about murder then manslaughter sexual offenses non-fatal offenses such as assault and battery for example and then property offenses we'll spend a lot of time on property offenses because they can be divided into a variety of different different types so we're going to be talking about for example theft fraud making off without payment burglary etc etc etc and then finally we'll talk about defense to criminal liability these can be broadly delineated into three major categories we have defenses related to capacity so things such as the defense of insanity intoxication things like automatism for example we also have compulsion relation related defenses so things relating to things such as duress the division between duress by threats and duress by circumstance and then also the idea of mistake within criminal law