criminal law essay topics

criminal law essay topics

Criminal Law Essay Questions and Answers

1. Introduction

The purpose of this essay is to compare and contrast criminal and civil law. Civil law is concerned with and deals with the relationship between individuals and also concerns wrongs against individuals. Criminal law is concerned with acts of which the consequences are of significant impact to the whole of society and its framework. It provides punishment through the state. The purpose of criminal law is to provide the specific punishment for the offense. In some instances, the same act can have civil and criminal proceedings. The Actus Reus of the offense can be the same throughout. However, the standards of proof required in the court for the Actus Reus to be proven are different. In a civil case, the Actus Reus only has to be proven on the balance of probabilities. For example, the case of Donoghue v Stevenson [1932] where Mrs. Donoghue drank ginger beer from a bottle and she claimed that the ginger beer made her ill. She tried to sue the ginger beer bottle manufacturer. However, her case was unsuccessful because the ginger beer bottle manufacturer had not sold the ginger beer directly to Mrs. Donoghue and hence there was no contract between them. She was successful on the basis that someone else had bought her the ginger beer, so she sued the retailer instead. She was successful in this case because she had proven on the balance of probabilities the Actus Reus.

Introduction

2. Theories of Criminal Law

In support of the latter suggestion, it has been argued that if a criminal – say a vandal – were to be punished in a manner which far outweighed that of the suffering he had caused, it would be unfair or unjust. Theories such as utilitarianism would suggest that it is a good thing to punish the criminal in such a way as this would deter him and others from repeating the same or a similar act. The retributivist, however, would be critical of such a sentence, suggesting that it is inhumane and that the criminal does not ‘deserve’ to be punished in such a way. The idea of deserved punishment then can be inexorably linked with the finality of the sentence. This is not to say that a retributivist would not be concerned with the prevention of further crimes and would be more concerned with the rehabilitation of a first-time offender. However, the most important factor for a retributivist would be the nature of the sentence that a person receives.

Retributive theory It has been argued that retribution is at the very heart of the criminal law and that it is the theory of punishment that is best able to justify the practice of ‘an eye for an eye’. The central tenet is that the punishment of the criminal is necessary to ‘pay back’ the debt that he has incurred through the commission of the crime. This theory is often encapsulated in the Latin maxim “Suum Cuique Tribuere” (to give each his own). Taking such an approach to the theory of retribution can suggest one of two things: a person deserves to be punished and that they deserve to be punished in a way which is proportional to the suffering that they have caused.

3. Elements of a Crime

A1. Mens Rea (The Guilty Mind) – Mens Rea is the state of mind that is legally required in order to constitute a crime. It can come in different forms, the most extreme form being intent (purposely), followed by knowing, reckless and criminally negligent. An offense must have a coinciding mens rea to the actus reus.

There are a number of actus reuses which are themselves criminal offenses, while others may be valid as predicate acts to a criminal offense. An example of the former is sexual assault, while an example of the latter is DUI.

A. Actus Reus (The Guilty Act) – this is a voluntary and overt act that causes harm to a person or the community. It can be an act, a threat to act, or failure to act, so long as the failure to act would be legally required (i.e. a parent’s failure to take a sick child to the doctor). Although it is said that “possession is 9 points of the law”, there is no such thing as “criminal possession” unless an act is first committed.

The basic components of a criminal offense are listed below; for the purpose of this work, an “offense” may be defined as (1) an act or omission forbidden by law, and (2) punishable upon conviction. Each of these components is identified and defined.

4. Defenses in Criminal Law

In the case of C v Kanapathipillai, the defendant had hit the victim over the head with an iron bar whilst the victim was unarmed, but had not yet attacked or made any aggressive movements towards the defendant. The defendant had been convicted of causing grievous bodily harm with intent, but the conviction was quashed on the grounds that the defendant was entitled to use preemptive force, and that the offence was committed in response to the immediate threat posed by the victim. He was therefore entitled to use self-defence. If the defendant successfully raises self-defence, then the effect is an acquittal. Jurors do not need to consider whether the force was reasonable unless it is unclear whether the defendant was acting in self-defence.

A commonly known defence is self-defence. This is defined as ‘the use of reasonable force to protect oneself or members of the family from bodily harm from the attack of an aggressor’. Self-defence is available as a defence to crimes committed in circumstances by which the defendant was seeking to protect themselves or others, from unlawful violence. A scenario within which the defendant would raise self-defence is a situation involving the use of a preemptive strike against an assailant.

If an individual is to be found guilty of a criminal offence, the prosecution must prove that a crime has occurred and that the defendant is the person who is criminally responsible for it. Once the prosecution has done this, it is for the defendant to raise any defence which is open to them, and for the prosecution to disprove that defence. If the prosecution cannot disprove the defence, then the defendant will be entitled to an acquittal. There are a wide range of defences available in the criminal law. Some of these defences are fairly well established and have featured in the criminal law for many years. Others are more recent and have only come about as a result of changes in the law. This section will go through each of them.

5. Conclusion

Many of the distinctions between the two types of laws come down to the way that the harm is caused, with intention or recklessness to bring about harm sorely lacking in many areas of tort that still give rise to compensation, such as negligence and the strict liability principles applying to occupiers’ and employers’ liability. It is the fact that the harm is caused by a prohibited act that renders such a big difference between the two systems – doing something that is prohibited is a more serious matter than failing to take precautions to prevent the harming of another or oneself, and this is reflected in the way the different laws deal with causation and omissions. The criminal law and procedure provide more protection to the defendant’s rights than does the civil law. Contrary to what many critics claim with regard to New Zealand’s burdens of proof, it is essential to a criminal conviction that the case against a defendant be proved beyond reasonable doubt. This stands in contrast to the usual test in a civil case where the plaintiff must prove his/her case on the balance of probabilities. The high standard required in criminal matters recognizes the stigma and punishment that comes with being convicted of a crime, and serves to protect those individuals who may be innocent of the offense with which they have been charged. A higher burden of proof is also seen in the array of presumptions against the accused that various statutes and common law apply only on the satisfaction of stringent evidential burdens. The defendant’s rights and the protection of these by the courts are also seen in the heavy onus that rests on the prosecution to prove all elements of the offense, and the fact that the defendant does not have to act in his/her own interests at any stage of the proceedings.

The criminal/civil distinction is a very important one, and one that reflects a great deal of our received moral intuitions. Society punishes individuals for the commission of offenses that cause harm, which can be both to their own or others’ rights and interests. As we have seen in the fact situations that give rise to criminal liability, harm can take many forms. This is quite different from the civil law system, whose general purpose is to compensate individuals for wrongful injuries suffered at the hands of others, which will include actions for breach of statutory duties, such as the example of Donoghue v Stevenson.