criminal law essay exam

criminal law essay exam

Criminal Law: A Comprehensive Examination

1. Introduction to Criminal Law

Since criminal law is the means by which the state can punish those who threaten the safety and welfare of the public, criminal law states what conduct will amount to a crime and what the nature of the punishment will be. This means that criminal law performs a number of functions and offers scope for wide discussion. Before we examine the function and elements of crime, it is important first to understand what is meant by a crime and how the state can punish law breakers.

Criminal law is the body of law that relates to crime. It may be defined as the body of rules that defines conduct that is prohibited by the state because it is held to threaten the safety and welfare of the public, and that sets out the punishment to be imposed on those who breach these laws. Criminal law is part of public law and is not only the concern of the offender but also the concern of the victim and the public. When the state prosecutes an individual for an act which has caused harm to an individual, the state is acting in the public interest. This means that the offender has committed an offence against the state and not just the individual. This is why if the prosecution is successful, it is the state that punishes the offender and the state will then have to consider compensation to the victim.

2. Elements of a Crime

The following sections go into more detail about each of these and describe various attributes of the concepts, as well as exceptions and other considerations. An important thing to note is that variance exists with all of these elements depending on the specific crime in question and also by the jurisdiction in which the trial is held.

– Mental state – Conduct – Attendant circumstances – Results – Causation – Harm – Legality

There are several different elements that make up the concept of a crime; the general idea behind this concept is that acts do not deserve punishment unless the person committing the act intended to perform a criminal act. This is known as the general principle of a criminal element and is usually broken down into the following seven sub-categories:

In order for a person to be convicted of a crime, many different factors must be proven; collectively, these factors are known as the elements of a crime. The prosecution must prove all of these elements in order for a person to be found guilty and convicted.

3. Defenses in Criminal Law

An issue of increasing importance in recent years is the preemptive action of persons fearing a terrorist attack. Under s.76 Criminal Justice and Immigration Act 2008, where D claims to have used force in self-defence from the home, it is no longer necessary to determine if the threat was imminent. Moreover, s.76(6) provides that it is to be assumed that the person attacked believed that the force was absolutely necessary to defend it or another from attack. But the most problematic instances of self-defence are those where the accused is compelled to use force against an innocent aggressor. Under s.76(8), necessity is only available where D is resisting another who is using or threatening to use unlawful violence. This leaves D with no choice. It is also available where D is seeking to end unlawful violence or where he believes the person he is defending himself from is about to use unlawful violence. This is a complex issue, and application to specific instances will be discussed during consideration of those instances.

Self-defence is probably the only defence that a layperson can discuss with any degree of sophistication. In the wake of the Tony Martin case, this defence received a lot of popular media attention, though it does not explain the outcome of that case. Self-defence is roughly stated that a person is entitled to use reasonable force to defend himself or others or to defend property. This is a common law defence, and the extent of its reasonableness will turn on the interpretation of the word “reasonable”. In deciding whether the action was reasonable, the jury should take into account a subjective test. This will involve asking the accused what he believed the circumstances to be and whether he believed his actions were necessary. To some degree, the jury sitting as men of the general community will use an objective test, asking whether they believe the action was reasonable in the circumstances. A person acting in self-defence who makes an honest error with regard to the circumstances can be acquitted. For instance, in R v Williams, the accused, thinking he was about to be attacked by a group of Hells Angels, was not guilty of a crime when he shot a member of the public. This is known as the “mistaken circumstances” rule. If a mistake with regard to the circumstances is made but it is not honest, then it is not a defence. In R v Williams (Gladstone), it was held that though the accused was entitled to use force to defend himself against a student who was protesting and trespassing on the accused’s pig farm, it was not reasonable for him to hit the student with a spade.

Keyed to growth directives in the criminal law, the defences that have been developed are vast and complex. The legal and psychological sophistication required to understand them and the volume of information necessary to write about them in any detail says more about our punitive aims and methods than it does about our collective understanding of human conduct. This said, an effort will be made to give a comprehensive overview of the general principles of the law of defences. The main aim should be to understand how a defence relates to the concept of crime, whether a defence is created by statute or common law, how it succeeds or fails, and its particular application to specific crimes. A secondary aim is to understand why the defences developed as they did. This involves exploring the rationales of the defences, and as some have developed from a complex web of history, following the twists and turns of legal evolution.

4. Criminal Procedure and Due Process

The most fundamental law that defines the rules and standards of criminal procedure is the Fourteenth Amendment, as most of the laws are derived from this amendment’s defining of civil rights for the individual. The Fourteenth Amendment’s due process clause has been the basis for much criminal procedure law. It states that “nor shall any State deprive any person of life, liberty, or property without due process of law.” This provision serves to provide many basic protections to individuals in dealing with the state: a guarantee against taking away life, liberty, or property without a fair procedure, and it places the burden of proof on the prosecution (government) to prove its case and deprive the accused of the aforementioned rights. It also implies that an accused has a right to a fair trial. This is a very general right guaranteed by many western nations in various forms and is also a subject of much law and jurisprudence. The constitutions of most countries also contain a similar provision for protection from deprivation of rights. Due process has also been interpreted to imply a right to equal protection of the laws. A criminal procedure that is loaded against one group in society may, in effect, be depriving that group’s members of a right to due process. This interpretation has spawned a vast array of laws and decisions that require not only fair treatment of the accused but fair treatment of all groups in society by the criminal justice system.

The phrase “criminal procedure” refers to the rules and laws that govern the process by which the criminal justice system investigates, tries, and punishes individuals for committing crimes. There are many laws on the books for this area of criminal law, and this field of law is a subject of much debate as to legislative effectiveness. However, the laws pertaining to criminal procedure are held to be of a higher authority than simple legislation and are so important that they are enshrined in most countries’ constitution as a set of rights which cannot be abrogated.

5. Contemporary Issues in Criminal Law

The introduction of the amended right to silence is most clearly epitomized in s.34 of the Criminal Justice and Public Order Act 1994, which, with certain qualifications, allows adverse inferences to be drawn from the failure of the accused in criminal proceedings to mention any fact relied upon in his defense. Prior to this, it had been well established that the right to silence was an important and long-standing right enshrined in the common law. This meant that the accused had no obligation to answer questions or to give evidence, that if he chose not to do so, no inference adverse to his interests could be drawn, and that if he did give evidence or answer questions, his failure to address or mention a particular fact could not be commented upon in evidence or summing up. Any departure from this position required a clear statutory statement to the contrary. S.34 represents such a departure and has been the subject of much criticism.

The final section of the essay introduces the reader to what are, in the opinion of the writers, the two leading contemporary issues in criminal law. The erosion of the right to silence and the introduction of provisions which allow a judge or magistrate to draw adverse inferences from the failure of the accused to mention a particular fact when questioned on caution are intrinsically linked. Both issues stem from the same root and are born of the desire to bolster the evidence available to the prosecution and thereby increase the conviction rate. It is submitted that these introduce an undesirable element of compulsion into the criminal process.