Criminal Law Doctrine and Theory

Transcription

1 Criminal Law Doctrine and Theory Third edition William Wilson Hartow, England - London New York Boston San f rancisco Toronto Sydney Tokyo Singapore Mong Kong Seoul Taipei New Delhi Cape Town Madrid Mexico City Amsterdam Muntch Paris Milan

2 Contents in detail Preface Table of cases Table of Statutes Table of statutory instruments Table of United States legislation Table of international Conventions Abbreviations xxi xxiii xxxviii xliii xliv xlv xlvi Part I Introduction 1 1 Understanding criminal law Introduction What is the criminal law? What are the concerns of the criminal law? 4 A The support of public interests 6 B The support of private interests How are the criminal law's purposes discharged? 6 A Law enforcement 6 B Bringing proceedings 8 C Trial 8 1 Bürden of proof 9 2 Evidential bürden and bürden of persuasion 10 3 The presumption of innocence 10 4 Judge and jury Where do the rules of criminal law come from? 12 A Common law 13 1 Historical perspective 13 2 The modern perspective 14 B Statute law 18 1 Interrelationship of Statute and common law 18 2 The principle of legality 1 g 3 Interpreting criminal Statutes 19 4 Fair warning and social protection 21 C The European Convention on Human Rights 23 1 The Human Rights Act Logic and rationality in the criminal law Codification The Draft Criminal Code 28

3 VÜi Contents in detail 2 Decisions to criminalise 2.1 Introduction 2.2 Principles and ideas informing decisions to criminalise 31 A Autonomy Jl 1 The härm principle 3^ 2 The härm principle: its influence on criminal doctrine 32 3 Alternative notions of autonomy 33 B Harm prevention and other welfare values 34 1 Enforcing morality 3^ 2 Liberal objections to the enforcement of morality 37 3 Is there a meaningful difference between legislating to enforce morality and legislating to prevent härm? 38 4 Principled approaches to the enforcement of morals 38 C Practical criteria underpinning decisions to criminalise: thresholds of seriousness 40 1 Grading wrongs 2 Remote harms and non-victimising crimes 41 3 Practical limiting criteria 43 3 Punishment 3.1 Introduction 3.2 Punishment in the liberal State 3.3 Theories of punishment A Retributive theories 1 In general 49 2 Forms of retributive theory 3 Punishment as an expression of censure B Utilitarianism 53 1 In general 5 2 Forms of utilitarian penal theory 3 Criticisms ^4 C Mixed theories 57 1 Hart's solution 57 2 Criticisms of Hart Rationality and politics in sentencing Conclusion Part II General principles of criminal liability 4 Actus raus Introduction Elements of liability Interrelationship of actus reus, mens rea and defences The act requirement Exceptions to the act requirement 70

4 Contents in detail ix A Situational liability 70 B Possession offences 72 C Omissions 74 1 Is it appropriate to criminalise omissions? 74 2 Acts and omissions: what's the difference? 77 3 Omissions: the common law approach 80 4 Circumstances giving rise to a duty to act: duty situations 82 5 Circumstances goveming the scope of duty 89 6 Omissions: an alternative approach 91 Summary 93 5 Causation Introduction Causation in crime and tort Causation and blameworthiness The purpose of establishing causal responsibility Causation: the legal position 98 A Factual cause 98 1 Causes and conditions contrasted 99 2 Particular instances of factual causation 99 B Legal cause The general framework for imputing cause Particular examples of causal sequences giving rise to causation problems 103 A Subsisting conditions Medical conditions Other subsisting conditions 104 B Intervening acts and events Victim's conduct contributing to the occurrence or extent of injury Third party's act contributing to the occurrence of injury Intervening cause supersedes defendant's act Causation and social justice 111 Summary Mensrea Introduction Choice and character: two modeis of responsibility Subjective and objective fault Mens rea and the structure of crime The mens rea words and their meanings Intention 121 A Everyday usage and its relevance to criminal responsibility Intention and risk taking Summary 127 B Intention in the criminal law: intention, purpose and motive 128 C The meaning of intention in the criminal law 129 D Conclusion 132

5 X Contents in detail 6.7 Negligence 134 A Liability for risk-taking: recklessness and negligence compared 134 B Negligence in the criminal law 135 C The justification for punishing negligence Negligence and capacity Recklessness 138 A Recklessness in the criminal law The subjectivist stance Caldwell recklessness The retreat from Caldwell 1 42 B Conclusion: recklessness and the politics of social control Knowledge and belief I 45 A What counts as knowledge? 146 B How extensive does knowledge have to be? 147 Summary Strict, corporate and vicarious liability 7.1 Introduction Strict liability offences A Public welfare offences B Stigmatic offences 7.3 Justifying strict liability offences 7.4 The presumption of mens rea 7.5 Rebutting the presumption A The statutory context B The social context 1 Real crime and public welfare crime: a false dichotomy? 1 5 ' C Penal efficacy 7.6 Defences ^ 7.7 Evaluation 7.8 Corporate and vicarious liability 7.9 The delegation principle 7.10 The scope of vicarious liability 7.11 Corporate liability The scope of corporate liability 7.13 Problems of attribution 7.14 Why punish companies? Summary 8 Relationship between actus reus and mens rea 8.1 Introduction A Temporal coincidence 1 Qualifications to the requirement of temporal coincidence I 74 B Definitional concurrence 1 Qualifications to the requirement of definitional concurrence Mistake 183 Summary

6 Contents in detail XI 9 Defences(1) Introduction Categorising defences A rationale to defences 187 A Excuses 187 B Justificatory defences The point of distinguishing between justification and excuse Moral forfeiture Defence of autonomy Balancing interests A common defence template Excuses Involuntary behaviour: general Involuntary behaviour (I): physical incapacity 198 A Prior fault Involuntary behaviour (II): automatism 200 A Automatism, negligence and strict liability 201 B Automatism and crimes of mens rea 202 C Conditions of automatism 203 D Prior fault: self-induced automatism Involuntary behaviour (III): insanity 205 A The legal test of insanity Defects of cognition Defects of reason Disease of the mind 212 B Involuntary behaviour: evaluation Mistake 219 A Definitional mistakes 220 B Mistake as to defences Intoxication 223 A Intoxication: its effect on criminal liability 223 B Involuntary intoxication 225 C Voluntary intoxication Crimes of specific intent identified The rationale for restricting the exculpatory scope of voiuntary intoxication 228 D Intoxicated mistakes Intoxication and true defences Intoxication and statutory defences Intoxication and mental disorder 231 E Conclusion 232 Summary Defences (2): affirmative defences Compulsion: introduction The rationale for excusing on grounds of compulsion 236

7 XÜ Contents in detail 10.3 Compulsion (I): duress by threats - the legal position 237 A What threats are required? 238 B Threats against third parties 238 C A part subjective and part objective test The first question The second question 241 D Immediacy of the threat 243 E Prior fault Intoxication Criminal organisations 244 F Scope of the defence Compulsion (II): duress of circumstances Necessity 247 A The scope of necessity 248 B Necessity as an excuse - duress of circumstances 249 C Necessity as justification Necessity operating to defeat interests 255 D Necessity/duress of circumstances and murder Necessary action consented to and in the public interest Double effects and the preservation of life Use of force in public and private defence Purposes for which reasonable force may be used 260 A Rules goveming the use of force The use of force must be necessary The degree of force must be proportionate Proportionate from whose point of view? What counts as force? What offences may be committed for defensive purposes? Justifying killing Justificatory defences: concluding remarks 2 68 Summary 270 Part III Offences against the person Non-fatal offences Introduction Offences protecting physical integrity 274 A Wounding or causing grievous bodily härm with intent Actus reus Mens rea 278 B Malicious wounding/infliction of grievous bodily harrn Actus reus Mens rea 285 C Aggravated assaults 286

8 Contents in detail XÜi D Assault occasioning actual bodily härm Actus reus Mens rea 288 E Other offences against the person Offences protecting personal autonomy 289 A Common assault Assault Battery Defences to offences against the person 296 A Consent The reality of consent Capacity to give consent What can be consented to? Consent and the Law Commission 307 B Necessity 308 C Lawful chastisement Reform of offences against the person Sexual offences: general The historical context The social context Rape: the elements 314 A Actus reus (Penile) penetration Consent Force/coercion: evidential presumptions 322 B Mens rea 325 Summary Homicide Introduction Meaning of homicide Punishing homicide 330 A Criminal homicide: the actus reus Reasonable creature Unlawful killing In being Murder 337 A Malice aforethought: an overview The mental element for murder before Thelawpost B Conclusions: a rational mens rea for murder? Malice mitigated: voluntary manslaughter 345 A Provocation General Historical development The rationale of provocation 348

9 XIV Contents in detail 4 Provocation, self-defence and the bürden of proof Provocation: the elements The future of provocation Diminished responsibility 361 A General matters 3ß 1 B Statutory definition 362 C Elements of the defence Abnormality of mind Specified causes of mental abnormality Substantial impairment of responsibility 364 D Overlap with provocation 365 E Infanticide Involuntary manslaughter 368 Introduction 369 A Constructive manslaughter The elements of constructive manslaughter 370 B Manslaughter by breach of duty Elements of manslaughter by breach of duty: overview 376 C Corporate manslaughter The scope of liability Reforming criminal homicide Criminal act manslaughter Grass negligence manslaughter 381 Summary 383 Part IV Property offences Theft Theft: introduction 13.2 Theft: the elements 388 A Actus reus 39u 1 The appropriation Property: general definition 3 " 3 'Belonging to another': who does property belong to? 4^6 4 The property must belong to another at the time of the appropriation 413 B Mens rea Intention to deprive the owner permanently of his property Dishonesty 421 Summary Fraud and making off without payment 14.1 Fraud: the law which it replaces 14.2 The individual offences A Obtaining property by deception ^

10 Contents in detail XV B Obtaining a money transfer by deception 430 C Obtaining Services by deception 430 D Evading liability by deception 430 E The problem with deception offences 431 F The solution 432 G The new offence of fraud Fraud by false representation Fraud by failing to disclose information Fraud by abuse of position Obtaining Services dishonestly 446 A Actus reus Services 447 B Mens rea Making off without payment 448 A Actus reus Making off Payment for goods supplied or Service done Without having paid as required or expected 450 B Mens rea 451 Summary Other property offences Robbery 452 Introduction 452 A Theft 453 B The use or threat of force On any person Immediately before or at the time of the stealing In order to steal Mental element Burglary Common features in burglary 457 A Entry 457 B Entry as a trespasser Entry with occupier's consent Entering in excess of permission 459 C Building or part of a building Burglary from part of a building Inhabited vessels or vehicles Modes of committing burglary 462 A Section 9 (1) (a): entering with intent to commit certain offences 462 B Section 9 (1) (b): committing certain offences having first entered as a trespasser Handling 464 A Actus reus Stolen goods 464

11 XVI Contents in detail 2 Handling fj 3 The goods must be stolen at the time they are handled 4oö B Mens rea 1 Knowledge or belief J) Dishonesty Summary 16 Criminal damage 16.1 Introduction 16.2 Criminal damage A Actus reus 1 Destroys or damages 2 Property 3 Belonging to another B Mens rea C Lawful excuse 16.3 Criminal damage endangering life A Actus reus B Mens rea Summary AR? Part V Inchoate offences and complicity Inchoate offences 17.1 Introduction 17.2 Charging inchoate offences 17.3 Inchoate offences and accessorial liability Attempt A Justification for punishing attempts B The potential scope of attempts 1 Thwarted attempts: subjectivist and objectivist approaches Failed and impossible attempts C The level of punishment: retributivist and utilitarian approaches Attempt: the Substantive law 494 A Mens rea Intention 4Q5 2 Attempts and recklessness as to circumstances Conditional intention B Actus reus 4 " 1 The common law tests The act interpreted Evaluation 5 C Voluntary abandonment 506 D Impossibility 1 Impossibility under the act

12 Contents in detail XVli 17.6 Conspiracy 510 Introduction 510 Justification for punishing conspiracies Statutory conspiracies 512 A Actus reus The agreement Constructing the agreement The parties to the agreement Subject-matter of the agreement Agreements subject to conditions 517 B Mens rea Knowledge of facts and circumstances Must the Substantive offence be intended? An intention to thwart the criminal purpose Common law conspiracies 523 A Conspiracy to defraud 524 B Conspiracy to corrupt public morals 525 C Conspiracy to outrage public decency 525 D Impossibility Incitement 526 A Relationship with accessorial liability: the future Incitement: the elements 527 A Actus reus The manner of inciting Incitement must be communicated 528 B Mens rea Intention to procure the offence Knowledge of the relevant facts and circumstances 530 C Exempted persons 532 D Impossibility Part 2 Serious Crime Act A Intentionally encouraging or assisting an offence 536 B Defences 537 Summary Complicity Introduction 540 A C as sole principal offender 542 B C and W as Joint principal offenders 542 C W as principal offender Complicity: definitions and terminology 544 A Principals 544 B Innocent agents 545 C Accessories 545 D Charging accessories 545 E Trial procedure The conduct element 547

13 XVÜi Contents in detail A 'Aid, abet, counsel or procure' Level of participation 548 B Is a causal link between the accessory's contribution and Substantive crime necessary? The mental element 555 A An intention to aid or encourage: the authorities Assent or approval-based tests of accessorial intention Knowledge as the test of accessorial intention Which test is to be preferred? The Law Commission's Response 559 B Knowledge of circumstances How much does an accessory need to know? 561 C Liability for unintended consequences Relationship between liability of the parties 571 A Conviction of secondary party where perpetrator is not liable 571 B Level of liability Limits of accessorial liability 575 A Victim participation 575 B Intention to frustrate crime 575 C Withdrawal 576 Summary 580 References 582 Index 600