Criminal Law


Criminal Law


Herring, J. (2019). Criminal Law (11th ed.). Red Globe Press.

Chapter Summary

The preface provides an introduction to the book, explaining its purpose as an introductory text on criminal liability and significant criminal offenses. It emphasizes the need for clarity and comprehensibility in criminal law for students and mentions the updates made in the eleventh edition.

Chapter 1: Introduction to Criminal Law
This chapter discusses the scope of criminal law, its role, and what constitutes criminal conduct. It covers the concepts of harm, culpability, and various theories related to them. The chapter also touches on the Human Rights Act 1998 and its impact on criminal law.

Chapter 2: Procedures and Structures of Criminal Law
The focus here is on the role of the state and judges in criminal proceedings, the burden of proof, and punishment. It also considers the proposal for a Criminal Code and addresses issues like ‘rape myths.’

Chapter 3: The External Elements
This chapter delves into the elements of a criminal offense, particularly actus reus (the external element), including omissions, voluntariness, automatism, and accessorial liability.

Chapter 4: Causation
Causation is dissected into its basic principles, including ‘but for’ causation, novus actus interveniens (intervening acts), and the role of mens rea in causation.

Chapter 5: The Mental Element
The mental element (mens rea) of a crime is explored, covering intention, recklessness, negligence, transferred mens rea, and the coincidence of actus reus and mens rea.

Chapter 6: Corporate Crime and Strict Liability
This chapter addresses strict liability offenses, their justifications, and alternatives. It also covers the criminal liability of corporations and vicarious liability.

Chapter 7: Assaults
Assaults are analyzed, including common law and statutory assaults, consent as a defense, and specific issues like spreading infectious diseases and racially aggravated assaults.

Chapter 8: Sexual Offences
Sexual offenses are covered extensively, focusing on rape, consent, sexual assault, and offenses protecting children and those with mental disorders.

Chapter 9: Murder
The chapter on murder covers its actus reus and mens rea, intention, and issues related to mandatory life sentences.

Chapter 10: Manslaughter
Different forms of manslaughter (voluntary and involuntary) are discussed, including constructive manslaughter, gross negligence, reckless manslaughter, and specific defenses like loss of control and diminished responsibility.

Chapter 11: Theft
The definition of theft, elements of the offense (appropriation, property, belonging to another, dishonesty, and intent to permanently deprive), and issues like borrowing and conditional intent are explored.

Chapter 12: Offences Connected to Theft
This chapter covers robbery, burglary, aggravated burglary, and handling stolen goods, with a focus on the elements and nuances of each offense.

Chapter 13: Fraud
Fraud and deception offenses are examined, including fraud by false representation, failing to disclose information, abuse of position, obtaining services dishonestly, and making off without payment.

Chapter 14: Other Offences Against Property
Criminal damage, arson, blackmail, taking conveyances, computer crimes, and possession offenses are covered, along with issues like the criminalization of graffiti.

Chapter 15: Denial of Elements of Offences
Defenses that deny elements of the offense, such as infancy, insanity, self-defense, automatism, mistake, and intoxication, are analyzed.

Chapter 16: General Defences
General defenses, including justifications and excuses like duress, necessity, and superior orders, are discussed.

Chapter 17: Accessories
The liability of accessories in crime, including principals, joint enterprise, and withdrawal from liability, is detailed.

Chapter 18: Inchoate Offences
Inchoate offenses such as conspiracy and attempt are examined, along with issues related to their actus reus and mens rea.

This summary provides an overview of each chapter’s content, offering a comprehensive understanding of the textbook’s scope and key areas of focus.

Key Concepts

1. Basic Principles of Criminal Liability

  • Actus Reus: The physical element of a crime, which includes all actions, omissions, or states of affairs specified in the definition of the offense.
  • Mens Rea: The mental element or state of mind that the defendant must have had at the time of committing the actus reus. Types include intention, recklessness, negligence, and knowledge.
  • Concurrence: The principle that the actus reus and mens rea must occur together.
  • Causation: The requirement that the defendant’s conduct must be shown to have caused the prohibited consequence. This includes factual causation (“but for” test) and legal causation (proximate cause).

2. Criminal Procedure and Structure

  • Burden of Proof: In criminal law, the prosecution bears the burden of proving the defendant’s guilt beyond a reasonable doubt.
  • Roles of Legal Actors: The roles of the judge, jury, prosecution, and defense in the criminal trial process.
  • Human Rights Act 1998: This Act incorporates the European Convention on Human Rights into UK law, influencing various aspects of criminal procedure and rights of the accused.

3. Types of Offences

  • Offences Against the Person: These include assault, battery, and more serious forms such as grievous bodily harm (GBH) and manslaughter. Consent and self-defense are critical concepts within these offenses.
  • Sexual Offences: Detailed coverage of offenses like rape, sexual assault, and offenses against children and those with mental disorders. Consent is a central element.
  • Homicide: Differentiation between murder and manslaughter, the specific intents required, and partial defenses such as diminished responsibility and loss of control.

4. Property Offences

  • Theft: Defined as the dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it.
  • Robbery: Theft with the use of force or the threat of force.
  • Burglary: Entering a building as a trespasser with the intent to commit theft, GBH, or unlawful damage.
  • Fraud: Encompasses offenses such as fraud by false representation, failing to disclose information, and abuse of position.

5. Corporate and Strict Liability

  • Strict Liability: Offenses where mens rea is not required for at least one element of the actus reus. Often applied to regulatory offenses.
  • Corporate Liability: How companies can be held liable for criminal acts, including the actions of their employees and representatives.

6. Inchoate Offences

  • Conspiracy: Agreement between two or more persons to commit a criminal offense.
  • Attempt: Acts done with intent to commit a crime, even if the crime is not completed.
  • Incitement: Encouraging another person to commit a crime.

7. Defenses

  • Insanity and Automatism: Defenses based on the defendant’s mental state at the time of the offense.
  • Intoxication: Can negate specific intent in crimes requiring such mens rea but is not generally a defense to crimes of basic intent.
  • Self-Defense: Justifies the use of force in protection of oneself, others, or property under certain conditions.
  • Duress and Necessity: Defenses where the defendant argues they committed the crime under threat of death or serious harm, or to avoid a greater evil.

8. Causation and Liability

  • Factual Causation: Established using the “but for” test – but for the defendant’s actions, the harm would not have occurred.
  • Legal Causation: Considers whether the defendant’s conduct is sufficiently connected to the resulting harm to justify imposing liability.

These key concepts form the foundational principles and categories within criminal law, providing the necessary framework for understanding how various offenses and defenses operate within the legal system.

Critical Analysis

1. The Scope and Role of Criminal Law
Criminal law serves as a mechanism for maintaining social order and protecting individuals and property from harm. It reflects societal values and norms, evolving over time to address new issues and changing perspectives. Critical analysis often questions whether criminal law is effective in achieving its goals and whether it adequately balances the interests of the state, victims, and defendants.

2. Theories of Punishment
The justification for punishment in criminal law is a subject of significant debate. Theories include:

  • Retribution: Punishment as a morally appropriate response to wrongdoing.
  • Deterrence: Punishing offenders to deter others from committing similar acts.
  • Rehabilitation: Reforming offenders so they can re-enter society as law-abiding citizens.
  • Incapacitation: Removing dangerous individuals from society to prevent further harm.
  • Restoration: Emphasizing repairing the harm caused by criminal behavior, often involving reconciliation between the offender and the victim.

Each theory has its strengths and weaknesses, and practical application often involves a combination of these approaches.

3. Human Rights and Criminal Law
The Human Rights Act 1998 has a profound impact on criminal law, ensuring that the rights of individuals are protected throughout the criminal justice process. This includes the right to a fair trial, the prohibition of torture, and the right to privacy. Balancing these rights against the need for effective law enforcement and public safety is a continual challenge.

4. Mens Rea and Moral Blameworthiness
The requirement of mens rea ensures that only those with a culpable state of mind are punished. However, the exact nature of mens rea required for different offenses can be contentious. For example, the distinction between intention and recklessness can be blurry, and the fairness of strict liability offenses is often questioned.

5. Corporate and Strict Liability
The imposition of strict liability and corporate liability raises questions about fairness and effectiveness. Critics argue that strict liability can lead to unjust outcomes where individuals or corporations are punished without proof of fault. Conversely, proponents believe it is necessary for regulatory offenses to ensure compliance and protect public welfare.

6. Defenses and Moral Justifications
Defenses such as self-defense, necessity, and duress recognize that there are situations where breaking the law may be justified. These defenses highlight the importance of context in determining criminal liability. The moral underpinnings of these defenses often involve complex ethical considerations, such as the value of human life and the permissibility of harm in certain circumstances.

7. Sexual Offenses and Consent
Sexual offenses, particularly those involving consent, are areas of intense debate. Issues such as the definition of consent, the impact of intoxication, and the protection of vulnerable individuals are central to these discussions. The law’s ability to effectively address these issues while respecting the rights of all parties involved is critically examined.

8. Reforms and Future Directions
The law is constantly evolving in response to new challenges and societal changes. Areas of potential reform include the simplification of legal definitions, the introduction of new offenses to address emerging issues (e.g., cybercrime), and the improvement of the criminal justice process to ensure fairness and efficiency. Ongoing debates about the balance between individual rights and public safety, the role of punishment, and the effectiveness of different legal approaches continue to shape the future of criminal law.

Real-World Applications and Examples

1. Case Law Illustrations

  • R v Cunningham (1957): Established the definition of recklessness in mens rea, illustrating the importance of foresight in determining culpability.
  • R v G and Another (2003): Overturned the previous understanding of recklessness established in R v Caldwell, emphasizing a subjective standard of recklessness.

2. The Impact of Human Rights Act 1998

  • R v A (No 2) (2001): Addressed the conflict between the right to a fair trial and the prohibition of evidence that may prejudice the jury, showcasing the balancing act required in applying human rights within criminal law.

3. Corporate Crime Examples

  • P&O Ferries (1990s): Corporate manslaughter case where the company was held liable for the deaths of passengers due to gross negligence, highlighting the challenges and importance of corporate accountability.

4. Self-Defense in Practice

  • R v Martin (2002): The defendant’s use of force in self-defense was deemed excessive, leading to a conviction for manslaughter. This case illustrates the complexities and limits of self-defense as a legal defense.

5. Public Order and Anti-Social Behavior

  • Public Order Act 1986: Laws designed to address behaviors that disrupt public peace, such as rioting, violent protests, and hate speech, demonstrating the application of criminal law in maintaining social order.

6. Cybercrime and Modern Challenges

  • Computer Misuse Act 1990: Addresses offenses related to unauthorized access to computer systems, reflecting the evolving nature of criminal law in response to technological advancements.

7. Consent in Sexual Offenses

  • R v Bree (2007): The court’s decision clarified that consent is invalid if the complainant loses the capacity to consent due to intoxication, underscoring the nuanced nature of consent in sexual offense cases.

8. The Burden of Proof in Criminal Trials

  • Woolmington v DPP (1935): This landmark case established the principle that the prosecution must prove the defendant’s guilt beyond a reasonable doubt. It emphasizes the importance of the presumption of innocence in criminal law.

9. Reforms in Sentencing and Punishment

  • Criminal Justice Act 2003: Introduced significant changes to the sentencing framework in England and Wales, including the introduction of mandatory life sentences for certain serious offenses and the creation of new sentencing guidelines to ensure consistency and fairness in sentencing.

10. Rehabilitative Justice

  • Drug Treatment and Testing Orders (DTTOs): These orders are part of a rehabilitative approach to dealing with drug offenders, focusing on treatment and rehabilitation rather than solely on punishment. This reflects a shift towards addressing the root causes of criminal behavior.

11. Strict Liability in Regulatory Offenses

  • Alphacell Ltd v Woodward (1972): A case where the company was held strictly liable for pollution caused by its activities, demonstrating the application of strict liability in environmental regulation to protect public health and safety.

12. Corporate Manslaughter and Homicide Act 2007

  • This Act allows for the prosecution of corporations for gross negligence leading to death. The legislation aims to ensure that companies are held accountable for serious failures in managing health and safety, providing a strong deterrent against corporate negligence.

13. Automatism and Legal Accountability

  • R v T (1990): The defendant claimed automatism due to a post-traumatic stress disorder induced by a violent attack. This case illustrates the challenges in proving automatism and the fine line between medical conditions that negate mens rea and those that do not.

14. Duress as a Defense

  • R v Hasan (2005): This case clarified the conditions under which duress can be used as a defense, emphasizing that the threat must be immediate and the defendant must not have had a reasonable opportunity to avoid committing the offense.

15. Necessity and Ethical Dilemmas

  • Re A (Conjoined Twins) (2000): A case where the defense of necessity was considered in a complex ethical scenario involving the separation of conjoined twins, where the operation would save one twin but inevitably lead to the death of the other. The court’s decision reflects the difficult moral decisions sometimes involved in applying the law.

16. Impact of Technological Advances on Crime

  • Cyberstalking and Harassment: The development of new offenses under the Protection from Harassment Act 1997 to address the rise of cyberstalking highlights how the law adapts to new forms of criminal behavior enabled by technology.

17. Child Protection and Sexual Offenses

  • Sexual Offences Act 2003: Introduced new provisions to protect children from sexual exploitation and abuse, including offenses related to grooming and exploitation through technology. This reflects the evolving nature of criminal law in safeguarding vulnerable populations.

18. Rehabilitation and Restorative Justice Programs

  • Programs aimed at rehabilitating offenders and involving them in restorative justice processes, such as victim-offender mediation, illustrate a shift towards more humane and constructive approaches in the criminal justice system. These programs seek to repair harm and reintegrate offenders into society, rather than focusing solely on punishment.

These examples demonstrate how criminal law is applied in various real-world situations, addressing both traditional and emerging challenges. They highlight the dynamic nature of the law and its continuous evolution in response to societal changes and advancements in technology.

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