[1] concluding. As the society, today would desire a

1 John Child & David Ormerod’s, Smith, Hogan, and Ormerod’s Essentials of
Criminal Law, (2nd edition, Oxford University press, 2017)

2 Andrew Ashworth & Jeremy Horder,
Principles of Criminal Law, (7th
edition, Oxford University Press, 2013)

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3 Jonathan Herring, Criminal Law: Text, Cases, and Materials,
(6th edition, Oxford University Press) 2014)17 – 18

4 Andrew Ashworth & Jeremy Horder,
Principles of Criminal Law, (7th
edition, Oxford University Press, 2013) 26

5 Michael J. Allen, Textbook on Criminal Law, (13th edition,
Oxford University Press, 2015)

6 Joseph Raz,
The Morality of Freedom, (1st
edition, Oxford University Press, 1986)

7
Jonathan Herring, Criminal Law: Text,
Cases, and Materials, (6th edition, Oxford University Press)
2014)31-33

8 Human
Rights Act 1998

9 Michael J. Allen, Textbook on Criminal Law, (13th edition,
Oxford University Press, 2015)

 

 

 

Allen M, Textbook on
Criminal Law, (13th edition, Oxford University Press, 2015)

2014)

Raz J, The Morality of
Freedom, (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, Criminal
Law: Text, Cases, and Materials, (6th edition, Oxford University
Press)

Ashworth A & Horder J, Principles of Criminal Law, (7th edition, Oxford
University Press, 2013)

Bibliography

In pursuance of a criminal sanction to take effect, judges
as well as lords, must consider numerous conditions and principles before
concluding. As the society, today would desire a more liberal perspective.
Thus, elements such as the Human Rights Act 1998 are viewed in more depth by
courts.  The rudimental components for
conducts to be deemed as a crime are not as adequate as they previously were as
there are measures that could be potentially developed to enhance the society
and make the world a better place.

Culpability is the principle that people ought to solely be
guilty of conduct that they are accountable. In other words, individuals must
not be guilty of conduct that they are not responsible for or had no control
over. This principle can be infringed if the legal code punished an individual
for 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 the
necessary men’s rea as he was not in the right state of mind to make the
decision for the actions he carried out and therefore didn’t intend on causing
harm.9

 

The principle of legality is that conducts that could cause
individuals to be criminalised should be defined to allow those that want to
abide by the law to do so confidently. The concept of legality is an important
reflection of the ‘rule of law’ it is highlights that every civilian should
have a right to know the law that they are required to abide by. It would be
impossible for individuals to avoid breaking the law if they were not actually
aware of which conducts in detail would cause them to break the law. The
concept is incorporated in the Human Rights Act 1998 which states that; ‘the law must be clear the law must be
capable of being obeyed. A law which prohibited breathing in public would
clearly infringe the principle, and the law must be readily available to the
public.’  An issue with this
principle is that laws can sometimes be interpreted in a number of different
ways and there are conducts that are socially unacceptable that might not have
been carried out in the past. Therefore, no law has been made against the
conduct. This would mean that there is a chance that an individual could be
criminalised even if he was not aware that the actions he carried out was
against the law. Hence why an ever-growing number of laws are being made and
which can be a problem in terms of minimum criminalisation as discussed
previously.8

The principle of minimum criminalisation proposes that criminal
law ought to prohibit a certain conduct only if it is compulsory. This is due
to several logical reasons. Firstly, there is a limitation on the quantity of
individuals that can be incarcerated due to lack of space and facilities in
prisons. Creating more offenses regularly would cause courts and prisons to
become overcrowded. More so, criminalising more serious conduct carries the
message that there are certain conducts that aren’t simply just immoral, but
immoral enough to result in criminal proceedings. Criminalising conducts that
aren’t as serious will remove the importance of this message and will not be as
effective in reducing unpleasant social behaviours. Civil proceedings and
gratifying good behaviours are other ways in with the law deals with immoral
behaviour. Therefore, having such many statutes that create criminal offences
is questionable.7

A principle that assists the role of
the law in protecting society from harm is the principle of welfare. From a
possible victim’s point of view, the principle of welfare is in accordance with
the principle of autonomy mentioned previously: for someone to exercise their
right of autonomy, he should be protected from others that would unfairly
hinder his ability to do so, physically or otherwise.4 Nonetheless, the protection of an
individual’s right to autonomy entails the limitation of another individual’s
right to autonomy. Therefore, the principle of welfare delivers a
counterbalance to that if autonomy and one could validate an extremely limiting
criminal law. For instance, if an individual was to harm someone whilst
suffering from an epileptic seizure the concept of autonomy would suggest that
there 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 act
and only a blameworthy should be punished. However, the welfare principle could
potentially favor criminalisation since the victim’s welfare was still
hindered.5 Finding
the stability to encourage maximum autonomy and welfare by making the
conditions, through minimum criminalisation, that permit and encourage
individuals to peruse their genuine social goals is a challenge in criminal
law. Joseph Raz argued in ‘The Mortality
of Freedom’ that: ‘the social
conditions required for the full exercise of autonomy must be provided for the
states to appreciate the importance of autonomy.’6

The principle of individual autonomy is one of the crucial
concepts in the justification of criminal laws. An individual’s right to living
his or her life as he or she pleases (The right or autonomy). This principle is
used in criminal law to forestall somebody’s exercise of autonomy from
obstructing another individual’s autonomy. The criminalisation of certain
conducts restricts our option by the construction of the legal code. In
relation to criminalising failures to act, the law is hindering the
individuals’ 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, that
restrains our autonomy ought to be kept to a minimum. Autonomy is also the
primary approach for the advancement of ‘choice’ as a critical component of
both legal and moral blame.  As a result,
conducts that the defendant cannot evade must not be criminalised. The most
fundamental 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 threatened
sever violence, the defence or duress is applied. Notwithstanding, duress is
not in any way permitted as a defence to murder, irrespective if it is
highlighted that a reasonable person would have responded within the same
manner, and therefore the defendant’s response was in a way an inevitable
response.3

The principle of harm presents a concept of crime where a conduct
must only be banned if it results in harming another person. This principle
puts a standard in place for what types of conducts a liberal should be able to
rightly forbid. The harm principle does not say that conducts that are harmful,
should be prohibited; rather, it says that harmful conducts alone should be
able to be prohibited.1 John
Stuart Mill’s essay, ‘on liberty,’ regarding
the principle of harm argues that: ‘Power
should only be exercised over civilians against their will if the reason is to
prevent harm to others.’ Thus, the idea behind this principle is that
individuals should be able to do as they please if their actions do not harm
the interest of others. 2

This essay is going to explain and judge the rules and standards
of criminal law as well as the issues they have in the light of certain guiding
principles of restraint in the construction and use of the criminal law.