Introduction to Criminal Law and Legal studies - Essay Example

Introduction to Criminal Law and Legal Studies Part I The courts in the UK are organised in a hierarchical way. There are roughly five stages in this hierarchy. Figure 1. Hierarchy of Courts in the UK *taken from Google pictures (http://www.google.com.ph/imglanding?q=diagram+of+the+hierarchy+of+courts+in+the+UK&um=1&hl=tl&sa=N&rlz=1C1DVCC_enPH352PH352&tbm=isch&tbnid=45irz-eIbDfC6M:&imgrefurl=ht) As shown in the above diagram, the Supreme Court is the uppermost court in the UK. Moreover, their rulings are binding on courts directly under it. In actual fact, the justices of the Supreme Court are inclined to pursue their own earlier judgments unless there is a valid basis not to (Gardner & Anderson, 2005, p. 349-350). The Court of Appeal is the second level in the hierarchy. Its rulings are binding on courts directly beneath it. The third level is the Divisional Courts. These courts function as appeal courts where in judges of the High Court work (Robinson, 1997, p. 81). The High Court judges are obligated by rulings of the Supreme Court and the Court of Appeal. On the other hand, inferior courts, such as the magistrates’ court and county courts, do not possess any binding power over the other courts (Robinson, 1997, p. 81). England’s and Wales’s Courts of Justice are the criminal and civil courts accountable to the justice administration in England and Wales (Fletcher, 1998, p. 71). England and Wales have a single legal system. In England and Wales, the Supreme Court holds the highest position in virtually all cases (Fletcher, 1998, p. 71). 2) The Human Rights Act 1998 and the European Communities Act 1972 have particular standing in the United Kingdom. It will be the duty of the higher courts to evaluate conformity to the European Court of Human Rights (ECHR), and the duty of all UK courts to make sure that trials are in agreement with its pledges (Carson, 2009, p. 24). Any circumstance in which the individual comes into contact with the state will be influenced by the Human Rights Act. The domestic law in the UK has been largely influenced by the European Convention on Human Rights (Gardner & Anderson, 2005, p. 112). This has had the consequence that the courts in the UK now bear a responsibility to interpret the statues and the common law in a manner that, where feasible, the UK law is in harmony with the European Convention on Human Rights (Gardner & Anderson, 2005, p. 112). Different judicial and legislative decrees of the European Union (EU) have indirect or immediate legal influence in the UK. The lawmaking bodies in the UK cannot be in breach of the European Community Law (Fletcher, 2000, p. 88). 3) The Law Commission is the constitutional self-governing agency formed to continuously carry out the evaluation of the law and to suggest change where it is required. The objective of the Commission is to guarantee that the law is straightforward, up to date, and just (Shapiro & Sweet, 2002, p. 110). The duty of the Law Commission is to suggest changes to enhance and modernize UK law. The body gives free counsels on law amendment (Shapiro & Sweet, 2002, p. 110). This usually requires evaluating entire aspects of law and making proposals to enhance them. Normally, drafting of a new criminal law starts with an evaluation of the aspect of the law under consideration to identify its limitations. A discussion report will be written to determine what other people view as potential solutions (Shapiro & Sweet, 2002, p. 111). A draft Bill setting in motion the proposal of Law Commission will normally be added to the report. Once the report has been presented the Government will then assume its responsibility whether to implement the proposals or not (Shapiro & Sweet, 2002, p. 111). 4) For the law to be viewed as just and impartial, it is vital that the courts reach similar judgments of similar cases presented in the courts. Due to this, once a philosophy of law is created or modified by the courts, it should afterwards be exercised constantly by courts of law in the future (Carson, 2009, p. 25). Several case laws articulate or successfully create the law and some is interested with and engaged in statute interpretation. Nevertheless, what is prevalent to any court trial is that the judge weighs the details and evidence of law before him/her against the details and evidence of law of earlier cases (Robinson, 1997, p. 91). This process is consistently conformed to. To the level that earlier details and evidence of law diverge, earlier cases are considered not binding albeit they may be credible. In instances where details or evidence of law diverge from the earlier cases the judge could discern the veracities and details of the case from those resolved in the past and hence make a different judgment (Carson, 2009, p. 28). This procedure is expressed as reasoning by ‘comparison’ and is a critical procedure for every hearing of the British Court (Gardner & Anderson, 2005, p. 203). 5) The judge is in charge of cases tried in the Crown Court. The duties, roles, regulation, training, and appointment of judges differ broadly across various jurisdictions. In several jurisdictions, the judge and the jury have joint powers. A judge may be an ‘examining magistrate’ in inquisitorial process of investigation of the criminal justice system (Simester & Smith, 1996, p. 79). A magistrate is a person who possesses the power to implement laws, usually with a defined jurisdiction, like a district or prefecture. The definite function of a magistrate differs, depending on the legal system which s/he works in (Fletcher, 1998). For instance, in several instances, a magistrate functions as a high-status judge, whereas in other cases a magistrate is only assigned to implementing minor violations (Fletcher, 1998, p. 76). Basically, in a court hearing, the judge embodies the letter of the law as selected by lawmakers and read by the highest court; the judge also evaluates the precedents of other court rulings (Fletcher, 1998, p. 82). The prosecutor speaks for the welfare of the judicial structure and the society. The defence counsel speaks in behalf of the indicted. However it is the jury that determines the law’s legitimacy, its purpose, and the culpability of the indicted (Fletcher, 1998, p. 82). 6) There are roughly four rules of statutory interpretation. First is the literal rule which states that words, terms, or concepts in a statute should be furnished with their literal, common sense or definition, regardless of the irrationality of the decision (Gardner & Anderson, 2005, p. 162). Once the statute has been sanctioned as a law, every legal representative may be searching for an interpretation which would serve the interests of his/her client. Second is the purposive approach which is used by the judges to interpret the words literally as possible, but not in a manner that will generate illogical outcomes (Gardner & Anderson, 2005, p. 162). Third is the mischief rule which states that any rule the judges take on, it is undoubtedly that, in principle, a statute remains the most powerful source of law (Fletcher, 2000, p. 105). The last one is minor rules which states that other, less essential, statutory interpretation rules are exercised by every judge (Fletcher, 2000, p. 105). The rule ‘of the same kind rule’ states that broad terms which follow particular ones should be assigned with the same kind of meaning as the particular terms (Gardner & Anderson, 2005, p. 168). 7) The verification of the presence of mens rea could be subjective, in which the court should accept that the indicted really had the necessary mental feature existing in his/her mind at the pertinent time (Simester & Smith, 1996, p. 83); objective, in which the necessary mens rea component is attributed to the indicted, based on the fact that a rational individual would have had the psychological component in the same conditions. The court will easily determine mens rea if there is concrete substantiation for example, if the accused gave an acceptable admission (Simester & Smith, 1996, p. 83). This would meet the criteria of a subjective trial. However a large number of those accused give no similar admissions. Thus, a certain level of objectivity should be involved to play as the ground upon which to charge the necessary element/s (Gardner & Anderson, 2005, p. 94). It is constantly logical to think that individuals of average intelligence are conscious of their immediate environment and of the mundane cause and effect laws, or causation. Hence, when an individual thinks of what to do or what not to do, s/he will recognise the array of possible results from specified behaviour. 8) The notion of actus reus originated from the English common law. As stated in the principals of the English common law, ‘an act alone did not make a person guilty of committing a crime’ (Gardner & Anderson, 2005, p. 35). The criminal intent and the criminal action were both needed. These principals are vital, for an individual should both think of perpetrating a crime, and actualise the crime in order to be culpable before the law (Gardner & Anderson, 2005). In addition, an act does not essentially have to be a physical one, but can be the ‘act of possessing something’ (ibid, p. 35) or omission as well. Under particular conditions, an act can be deemed illegal due to the purpose behind it (Carson, 2009, p. 78). For instance, sending e-mails is usually not an offence. If the message is e-mailed as a means to swindle, it can become a criminal act, and comprise the actus reus for the offence. 9) Justifications are different from general exculpatory excuses, mitigation, or defence, of which immaturity, coercion or threat, and mental instability are cases in point. In defences, there is no assertion that the act is morally correct or that it promotes a public goal (Carson, 2009, p. 105). In contrast, the assertion of excuse is recognition that the act is adverse but an appeal that, due to particular circumstances demeaning the capability of an individual to avoid carrying out an action, the individual should not be held culpable and castigated for it. Dissimilar from justified action, excused action is to be circumvented if necessary, although excusing circumstances are present (Carson, 2009, p. 105). However, although one can claim all this about defences and justification and how they are different theoretically from excuses, the justification theory is still unclear in a major regard. In a usual case, an individual is aware of the justifying conditions and, due to them, performs the justified action (Fletcher, 2000, p. 128). However, it is not rare that an individual thinks that his/her action is justified, assumes that it will generate a societal advantage, when actually it is not and never will be (Fletcher, 2000, p. 128). 10) In relation to the bases of responsibility it is vital to understand that for an individual to inflict loss, injury, or harm to another is under the law not a required or an adequate criterion of being legally culpable for the crime (Carson, 2009, p. 85). It is not a requisite criterion for two rationales. Primarily, in legal perspectives individuals are usually made culpable for injury inflicted by other individuals, animals, procedures, or inorganic objects (Simester & Smith, 1996, p. 96). In these circumstances the basis of responsibility is, from the accused individual’s perspective, not that s/he has caused harm but that s/he take the possibility that some other individual may cause harm. The possibility could be willingly taken or could be enforced by law (Simester & Smith, 1996, p. 96). Therefore, in the law the primary bases of culpability for harm are (1) the culpability of an individual for bringing about harm and (2) an individual’s culpability stemming from the fact that s/he takes the possibility of having to take part in court hearings for the harm under consideration (Carson, 2009, p. 92). A second rationale why bringing about harm is not a required prerequisite of legal culpability is that there are several situations where in an individual is criminally or civilly accountable regardless if harm has been caused by their behaviour or not (Fletcher, 1998, p. 119). Both outside and within the law a large number of actions are considered criminal whether or not they brought about physical harm. Furthermore the enforcement of punishments in criminal law and penalties in civil law should not acquire any connection to the harm brought about by the action for which the punishment or penalty is enforced (Fletcher, 1998, p. 119). Part II It is in my opinion that criminalisation of harms should not be justified without consideration of fault. Nevertheless, aside from prohibition and punishment, another component of the criminal procedure, is conviction. Specifically, although it facilitates the enforcement of corrective punishments, a criminal conviction is considered as a punishment ‘in its own right’, by legal authorities, like judges and juries, and by the general public (Simester & Smith, 1996, p. 103); because it has the consequence of labelling the accused as an offender. Thereby, it creates a reproving, public declaration about that accused: that s/he is culpable for committing the actus reus, for causing the loss or harm forbidden (Carson, 2009, p. 79). If this is the case, then it would be just for the criminal law to throw its conviction-rooted defamations accurately, in order not to denigrate the individuals it convicts. And, of course, we detest the conviction of individuals who are innocent of the actus reus. The law is concrete, not abstract. Hence, the law’s conviction of an accused as ‘criminal’ must be performed with a consideration of the social meaning of that concept. And presume, as well, that the criminal law were to forbid it. Holding someone culpable is a difficult dilemma, and legal treatises are consistently strengthened by scholarly theories that claim to describe how to do so. It is difficult due to the fact that at times deeds which are detrimental or illegal do not compel us to blame the accused; this could occur, for instance, when a woman kills a rapist in self-defence. Murder is, as such, adverse. And it is a crime’s actus reus. However, we would not condemn or convict a woman who defended herself from an attempted rape. Nor would we hold a physician culpable of a patient’s death because of an allergic reaction to a prescribed medication. Any justification of the relationship or disconnection should acknowledge that there are various potential forms of point of moral evaluation. One may reach a decision about some outcome, act, or actus as an immoral or moral aspect. Hence, we believe that killing is an immoral act, and that undesirable death is an adverse aspect when it occurs. Per se, we are bounded by morality. In contrast, we may make an opinion about an individual; particularly, about his/her personality. That a person desires to slaughter people is a rationale to defame him/her. However, it is not rather this option that Glover claims when he states, ‘to blame a person for an action is more than merely to say that he has brought about something we object to. We disapprove, not merely of the action or its consequences, but of him’ (Simester & Smith, 1996, p. 7). Another form of moral evaluation is of individuals in relation to a deed. It is merely a moral evaluation of this final form that can qualify as a situation of blame—hence, unfavourable decisions of this form are the things that criminal law’s culpability provisions should endorse. We do not blame a physician who unknowingly killed his/her patient due to an allergic reaction to a prescribed medication. The physician may be criticised as an individual, and s/he brings about something that people usually consider adverse, but we do not hold him/her for committing it. If this is the case, then what are the circumstances under which a fault may be attributed as an actus reus? The admission or explanation that an individual gives may have large-scale repercussions for the criminal justice system. Suppose two such explanations, objective and subjective. Subjectivist explanation of responsibility focuses on the accused himself/herself. There are numerous such assumptions, but the theory that I will consider here claims that criminal responsibility rests on morally imperfect decisions. We hold a person accountable for deciding to carry out something immoral—for example, for deciding to commit arson. Crime is committed whenever a person intentionally prioritises immoral objectives or intentions over moral ones. For subjectivists, there should be reference due to the manner morality works, which is in order to offer us means of assessing actions. Nevertheless, if the action to be examined is not anticipated, then the moral bases for or against it do not influence the evaluation of the accused of whether it is moral or immoral to behave as s/he does. Moreover, it seems sensible that an individual will not think about something s/he does not know to be important. On the perspective of the subjectivist, it is wholly rational to open a door if I do not know that the hinges are already rusty and will cause harm to my friend. Failure to consider the danger of opening a door is not a thing for which I can be held culpable of. On the other hand, it is when an accused behaves for immoral intents that we think not only that his/her deed in murdering a person is immoral, but also that s/he is responsible for carrying it out. Under the law, on this perspective, the accused should be judged on the detail and evidence as they assume them to be. In contrast, the objectivist will claim that criminal responsibility relies upon (1) the evidence as they really are, regardless of the personal beliefs of the accused about them; and (2) the assessment of what a rational individual would anticipate or understand, not to say, act out (Carson, 2009, p. 83). Objectivists put emphasis on the crimes that accused people really commit. And their point is that if, for instance, murder is an adverse act, then that is a basis not to act it out, whether or not one knows the danger. Murder does not become reasonable merely because it is perpetrated unintentionally. If it is an immoral aspect, then an individual not only does possess a moral, and, at this point, lawful, obligation not to carry it out, but a person also has an obligation to pay attention or be careful so that s/he does not perform in unintentionally either. A clear-cut combat zone has already been distinguished, namely, the law of recklessness. No trivial fight or conflict for recklessness is the minimum prerequisite of mens rea for a large number of disgraceful criminal acts. Suppose that Jack causes a vehicular accident and death of many passengers and is indicted with reckless homicide. In numerous jurisdictions ‘recklessness’ necessitates some form of concrete forethought. Hence for Jack to be culpable he should have really anticipated the danger of overtaking when he carried out the act that caused it; if he is only careless then he is not guilty of the crime. The subjectivists dominate in these jurisdictions. In contrast, the law in the UK is presently objective: a person can be charged of reckless homicide when s/he only fails to foresee the danger, given that the danger produced by one’s decision is apparent and severe (Shapiro & Sweet, 2002, p. 64). Furthermore, the assessment, whether the danger is apparent, questions whether it would be evident to a rational individual, rather than should it have been evident to the accused. It has a major implication. On the perspective of Cunningham, imprudence or failure to care is not a ground for criminal responsibility (Simester & Smith, 1996, p. 10). On the contrary, the emphasis of Caldwell is not on assumptions, but on apathy and risky behaviour (Simester & Smith, 1996, p. 10). A perfect case in point is the earlier crime of reckless driving, which apparently was aimed at the driver’s actions rather than at his psychological condition. What is remarkable about this crime is that the term ‘reckless’ was functioning as an expression of actus reus. Reckless homicide necessitates that a person anticipate the possibility of fatal outcome, but reckless driving required merely that the way of driving be adequately hazardous. For instance, one might intentionally drive irresponsibly. The justification presented for granting such an obvious expansion of the domain of mens rea into omission is that lack of concern for an apparent danger is frequently just as morally wrong as real forethought of an actus reus, and hence is sufficiently blameworthy, deserving criminal conviction. Nevertheless, it can be questioned whether this argument is analytically valid, for, on the perspective adopted in Caldwell, it would be rational to hold the accused culpable, which obviously exactly what an English court carried out (Shapiro & Sweet, 2002, p. 65). However, is it still vital to differentiate recklessness from negligence? A subjectivist who goes up against culpability for Caldwell recklessness would encounter difficulty in defending culpability for negligence (Shapiro & Sweet, 2002, pp. 65-66). Certainly, what we encounter is that subjectivists frequently propose that individuals should never be indicted for carelessness. In contrast, an objectivist will discover culpability for negligence simpler to justify. Negligence is irrational conduct. We do not have to transcend the core concept of the perverseness of the conduct to establish criminal responsibility. However, the objectivist, having opportunely founded criminal responsibility for both negligence and recklessness equally on the conduct of the accused rather than his/her assumptions, will at this point encounter a new dilemma. If the ground of culpability is similar, why is it that severe cases of recklessness are convicted but not negligence? A proponent of subjective account can constantly claim that, if unintentional negligence is culpable whatsoever, it is in any case less culpable than is intentional irresponsibility, and hence not be criminalised as frequently. A proponent of objective account has no power to do that. There is no apparent solution to this problem, apart from searching a different solution completely, and to cite H.L.A. Hart’s Rule of Law rule (Simester & Smith, 1996, p. 10): ‘that if there is widespread exposure to state interference for inadvertent wrongdoing, then it is going to be much harder for citizens to plan and get on with their lives, without fearing the unforeseen disruption that facing criminal charges entails’ (Simester & Smith, 1996, p. 10). However, such rule would qualify against criminal responsibility for unintentional recklessness in Caldwell’s perspective. Furthermore, to the degree that the Rule of Law principle deals with random intervention by the State, criminal responsibility for negligence is logically expected. Nor should the confines of the Rule of Law be reversing; except if negligence culpability were no prevention, the restriction prima facie robs injured parties of protection from equally unwanted interference by other people (Gardner & Anderson, 2005, p. 60). The dilemma of actus reus cannot be resolved here. Nevertheless, what is interesting is how numerous other domains of criminal law are influenced by the debate between objectivists and subjectivists. Certainly, every opinion in this essay which relates to the broad component of the criminal law is essentially influenced by some assumption of what is the fundamental relationship between the accused and the action that can establish criminal responsibility. References Carson, D. (2009). Introduction to Criminal Law and Legal Studies. Institute of Criminal Justice Studies, 1-111. Fletcher, G.P. (1998). Basic Concepts of Criminal Law. New York: Oxford University Press, pp. 71-122 Fletcher, G.P. (2000). Rethinking Criminal Law. Oxford: Oxford University Press, pp. 88-135 Gardner, T. & Anderson, T. (2005). Criminal Law. Belmont, CA: Wadsworth Publishing, pp. 35, 60, 94, 112, 162, 168, 203, 349-350. Mackay, R.D. (1995). Mental Condition Defences in the Criminal Law. Oxford: Clarendon Press. Robinson, P.H. (1997). Structure and Function in Criminal Law. Oxford: Clarendon Press, pp. 81- 105 Shapiro, M. & Sweet, A.S. (2002). On Law, Politics and Judicialisation. Oxford, England: Oxford University Press, pp. 64-72, 110-111 Simester, A. & Smith, A.T.H. (1996). Harms and Culpability. Oxford: Oxford University Press, pp. 7-15, 79-107 Read More