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Criminal Law

Benefits of Criminal Law for Society

Introduction To Criminal Law

A person who committed a crime is known as criminal. Criminal law is the body of law that related to crime and solve the problem related to crime. Criminal law and civil law are different different laws. Thus in civil case two individuals dispute their rights, a criminal prosecution involves the people as a whole deciding whether to punish an individual for his conduct or lack of conduct. Criminal law protect the society from the wrong. Criminal activities harm society that make bad environment. A 'crime' is any act or omission in violation of a law prohibiting it' or omitted in violation of a law ordering it. Criminal law cover some of the most series issue in society, such as murder rape or robbery. In criminal law include the punishment of people who violate these laws(Moore, 2010).

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Section A

Criminal liability

Criminal law serves several purposes and benefits society in the following ways:

  • Maintaining order that maintain the order to and provide criminal law provides letting people know what to expect from other. And maintain that order so people do not repeat these activity again and again (Schmalleger, 2009). if both the parties know the conciseness that they might not take that action as per the tom and David case.
  • Providing for smooth functioning society criminal law enables the government to collect taxes, control pollution, and accomplish other socially beneficial tasks.
  • Safeguarding civil liberties criminal law protect every individuals or society from the wrong and protect individual's right.

Resolving disputes criminal law resolve conflicts and disputes between the society and solve the quarries between the citizen (Hall, 2010). criminal liability solve the dispute than means that if tom and David did any wrong and the dispute is resolve to see the criminal liability on both of them.

Protecting individuals and property Criminal law protects citizens from criminals who would inflict physical harm on others or take their worldly goods. It is the main motive to protect the rights of individual and give them a safeguarded felling in the country. As David harm property of tom in the criminal liability to protect every individual from damage so that liability arise on both of them to not harm.

Retribution The literal meaning of retribution is punishment inflicted on someone as vengeance for a wrong or criminal act. Objective of this aimed at satisfying the thirst for revenge, anger, and hate. In simple language criminal ought to be punished in same way. (Stephen, Smith, 2014). because of same felling David harm tom.

Deterrence literal meaning of this word means the use of punishment as a threat to deter people from offending. The objective of deterrence has it's two sub parts that is individual deterrence is aimed toward specific offender (Husak, 2010).

Incapacitation it keeps offenders away from society, protecting the general public from their disordered behaviour. Prison sentences are the most common form of incapacitation today. As per both of them they both are mentally fit so the behaviour tom did that was under provocation.

Restoration it give benefits to victim that in some crimes the offender may be ordered to restore or repair any damages inflicted on the victim. This form of justice is combined with other criminal law objectives to come to a conclusion for an offending suit (Barkow ,2006). as per both the crime was not done for restoration in tom and David case.

ISSUE

As per the facts the tom and David was in relationship for the five years. Later tom discovered that David has formed new relationship in very short time after their five year breakup (Sloane, 2007). Tom was furious to confront David about his relationship. He was on the way to David home he saw the car in the driveway tom knows that that was the David's partner's car. At the time when tom show the car he got jealous at the instance and he pick up a stone and from the floor and through it along the side of the car door and that stone leave a scratch on the car. David notice from inside his flat that tom is acting very strangely beside kasem's car (Cole, Dioso-Villa, 2009) . Kasem is David's boyfriend. From the flat David call out to tom and ask him that what he is doing why he is acting like this. Tom throws the stone to David to hit him but luckily and the it misses him and that smashes the window glass instead. David was upsets because of tom's action. Later David decide to take revenge from tom. David was sure that there no one will be around he want to tom's antiques furniture shop and he set on fire. David was not aware about that tom was working in the shop doing his paperwork but luckily noting happened to tom but whole furniture was burned and the furniture inside the shop cannot be saved. The facts describe that the criminal activity done by both the parties. They both are liable for different different crime and on both of them will get the punishment according to their action done by them (Winick, Wexler, 2006).

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1. ACTUS REUS

Actus reus means that the guilty act and this is physical element of committing a crime. It consist (1) Destroying or damage there is no specific definition of destroy and damage in law but in general it means that some physical harm, impairment or deterioration which can be usually perceived by the séance. This issue arise normally from defendant's freely willed act (Halley, 2008). Criminal Damage act does not provide a defined term of Damages which is why the court have defined them liberally. When damages occur they are not limited to percentage of damages. Case law: Roe v. Kingerlee [1986] Crim LR 735.

Property:- according to section 10 sub section 1 of the act, property means the property from tangible nature. It include money also plant assets and all. According to this to damage a car or damage a shop that also include in this.

Belonging to another:- this define in the section 10(2) of this act it states that "Property shall be treated for the purposes of this Act as belonging to any person- a) having the custody or control of it; b) having in it any proprietary right or interest or c) having a charge on it."

2.MENS REA

it means that the guilty mind of a person. It describe that person have intention to damage. A guilty mind means an intention to commit some wrongful act.

The offence requires either

  1. Iintension
  2. Recklessness

Intension the defendant must have intention to damage or to harm the person. In intention person know that what wrong he is going and what are the consequence he need to handle (Bush, 2009). As per this intension David went to destroy the property with the intention to harm him.

Recklessness the mental state of mind of the person at the time the actus reus was committed.

Aggravated criminal damage that include in section section 1(2). in this where property has been destroyed or damaged with the aggravating factor being that life is endangered by the destruction or damage to the property (Schomburg, Peterson, 2007). For example the cutting of electricity cables leaving live wires exposed or the damaging safety equipment. Destroy or damage has the same meaning as simple criminal damage, as does property. Note that for the aggravated offence a person can be liable where they destroy or damage their own property.
Case law: R v G and R [2003] 3 ALL ER 257

Arson

it is under the section 1(3), literal meaning the criminal act of deliberately setting on fire. All the fire offence shall be charged as arson (Chin, Miller, 2011).

1.Threats to destroy or damage property it define in section 2 making threats to damage or destroy another's property, intending to cause fear there by without lawful excuse and making threats to damage his own property in a way which he knows is likely to endanger life, again intending to cause fear as a result (Uhlmann, 2011). As per the facts there was no threats to both the parties but that was sudden provocation by tom and a David plan to destroy the property.

2.Possessing anything with intent to destroy or damage property it define in section 3

it makes an offence for any person, without lawful excuse, to have in his control:

(a) anything he intends to use to damage another's property;
or (b) which he intends to use to damage his own property in a way which he knows is likely to endanger life (Baylis, 2009).

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3.punishment a person who is guilty for the arson or of an offence under s1(2) shall on conviction on indictment be liable to imprisonment for life section 4 (1). a person who is guilty for nay other offence

under this act shall on conviction on indictment be liable to imprisonment for a term not exceeding ten year (Ashworth, 2009). As per the facts David will get the punishment under this act.

Aggravated Arson

in this the damages will occur due to fire, and such damages shall be entitled as criminal damages. This concept is contrary to section1(2) and 1(3) of criminal Damage Act 1971. any law related to section 5 of the act does not apply to Aggravated Arson. For an example if A is a person who sets fire to his own farm and later claim damages to insurance company despite being aware that someone may b present inside.

Application

In this the facts describe the liability of both the parties as per the facts tom and David was in relationship for five year and that is ended between them. Tom was furious to decides to confront David at

his flat when he was going to David's place he saw the car of kasem he is the boyfriend of David. When suddenly he saw the care he got jealous and he throe a stone along the side of car and also tom threw a stone toward her on her window and smashes his window glass. As per the facts in this tom was not went to David's flat with the intention to hit him. But when tom saw the situation than he get provoked by the all the situation and he did that act in his anger (Jalloh, 2009). In this Actus reus liability arise on him. It means that the guilty or omission known as 'actus reus'. The actus reus may relate to the result of the act or omissionof the defendant. In this when tom went to his pace his intension was not to harm or damage him but he got sudden provocation because by saw the kasem car.

But when he throw the stone toward the window than he had intention to hit him. 'Actus reus' in criminal law consists of all elements of a crime other than the state of the mind of defendant (Cassese, 2006). In particular actus reus may consist of conduct, result, a state of affairs or an omission. In result the actus reus may relate to the result of the act or omission of the defendant. In this the conduct itself may not be criminal, but the result of the conduct may be criminal. Related case laws – Duck v. peacock [1949] and R v larsonneur.

On other hand when tom hit David all the conduct happen than later David decide to take revenge from tom and he want with the intension to harm him. He decide the time hat was in the planning and that show the proper intension of a person to harm him (Blackwood, 2007). So the concept of ' actus non facit reum nisi mens sit rea' derived in this condition and that means that the act will not make a person guilty unless the mind is also guilty. And with the intension to damage the person and also done the aggravated criminal damage under section 1 (2). and criminal damage by arson under s.1(3) when a person damage or destroy the property belonging to them is come under the Arson and that also include possession of item with intent to use them or permit others to use them to destroy or damage property belonging to another. So in this as per the facts stated that he want to his shop with the intention to set on fire and he did that and that cause the damage to him. So the strict liability arise on him and the other damage Arson was done by him and the punishment of this is 10 year more than 10 year (Ramsay, 2006). And in this David intension was to set the shop on fire but if negligently something happen to tom than he would have been liable for the heinous harm or injury and the punishment for that is life time imprisonment or death punishment.

CONCLUSION

In this case there describe the criminal liability. There exist three offence of criminal contained in the criminal damage act 1971. there are two element describe in the the criminal liability. As per the case there are there are different different liability arise. In this actus reus and mens rea use and the most important Latin maxim is ' actus non facit reum nisi mens sit rea' it means that the act will not make a person guilty unless the mind is also guilty. This maxim give a idea about the criminal liability.

Section B

Question 4

Defences in criminal liability

In this modern era law is very important aspect for every country to safeguard legal rights of their citizens and to maintain peaceful environment in that nation particularly and for that purpose, the power to enforce these laws are in hands of legislature and executive. But to protect these laws and to provide justice for that person whose rights are violated by other there is an specific presence of courts which performs judicial functions of nation. Further in category of law it is mainly divided among two categories i.e., criminal law and civil law. Civil law deals with the violation of legal right of an individual which is a wrong against an individual and criminal law deals with the violation of legal right of any person which is a wrong against whole of the society(Ashworth, 2009). Crime is a wrong which is harmful for every person in modern context of time because it emerges a feeling of rage and enmity in mind of convicted person to commit a crime. In criminal law the person who committed a crime has a right to safeguard him by the reason of performing private defence at the time of commission.

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Specifically there are two types of defences i.e., public and private defence which broadly covers the category of common defences under law of self-defence and the prevention of crime mentioned in Criminal law act 1967 and also the defence of protection of property mentioned in Criminal damage act 1971. In this project the focus is on private defence. Private defence is defined as in certain circumstances the reasonable and lawful use of force in self-defence to prevent a crime from its commencement or to prevent a property from damage. Or in simple language it is a right of every person and gives authority to a person to use a necessary amount of force against the wrongdoer to protect a person's own body and property or that person can also use reasonable force to protect other person's body and property where immediate assistance for that person from the side of legal machinery like police authorities are not available or absent(Bantekas, 2006). In that case the person who performed reasonable for the protection need to give any explanation in front of court for the commitment of that force.

In private defence if a person acted under a mistaken belief and applied his private defence in a particular situation than that person is also protected excepting the case that the court should clarify that the mistake occurred should be reasonable. To apply private defence it is very mandatory that the application of the force was in fact necessary for defence. In this particular context the necessary force applied should not be only for avoiding the attack but it should be reasonable too. That means the force applied for self-defence should be in proportion of threatened harm. In other words if we define it in negative form than it should be defined as the force used is not so much of high potential that may not be in proportion of the danger. Right to private defence is also available for persons against illegal arrest done by police but the defendant is not able to take defence in mistake of law as mistake of law is not excusable(Jalloh, 2009).

The necessity of Defence

to apply private defence there will be twin requirements in which fist one follows that there should be the an imminent present of threat or attack and the other one follows that the force applied must be proportionate to danger. where David has to choose between breaking the criminal law and some some other evil and this defence is recognised in limited circumstance. There is a case related to this

R v. dudley and stephens1884.
Ex for necessity :-
A shown his aggressive nature towards B and behaves accordingly. B squares up on A and in reply to that A makes to retreat expressly showing that he is thinking of about to attack on B. B suddenly gives a blow on his head and pleaded that the act done was in under private defence but the act was not justified because the act of private defence was already passed away.
Ex for proportionality :-
A wants to slap a person named B. But in self-defence B extract out a gun from his pocket and shoots A. It was not justified act from the side of B because the force used by B was not in proportion to the harm expected.

Requirements for private defence


The attack which will about to be initiated by a person
1). must be of unlawful nature i.e., must not bear any kind of legality in eyes of law(Jalloh, 2009).
2). surely in against of the interests which are ought to be or supposed to be protected.
3). Must bears a nature of threat but yet not completed or bears an incomplete nature.

Requirements to apply private defence

Private defence taken by a person :

  • Must be applied against the person who want to commit an attack.
  • Should be necessary to perform otherwise it may bear certain harm to that person.
  • Must apply a force which is in proportion to the harm threatened.
  • Must be performed by defender if he knows that the he is acting under private defence.

In recent time since from some previous years private defence is a topic of criticism among the citizens and in courts also and in this defence there are so many legislative interventions occurred because this principle was not very comprehensive and due to that persons were misguided by this(Cassese, 2006).
Some problems occurred in this context are as follows:

1). In this context the person is still cannot be able to understand the term reasonable force to avoid threatened harm. Reasonable force is something that a mind can think is able to stop and to prevent oneself from that particular harm. For example if A is about to slap B and B in self-defence may stop his hand or may slap him but in self defence it is not right to take out a knife and kill that person to prevent himself just from a slap(Ramsay, 2006).

2). In this context to apply a private defence in police detention a person may not avoid a liability having the reasoning that the act done by that person is due to mistake of fact. But instead of keeping this principle in mind persons may commit serious acts for private defence after ignoring the mistakes that are supposed to be not occurred from his side because the mistake of fact is not excusable in any case

3). Private defence should be defence nature not of revenge nature :- This point implies the meaning that if a person wants to attempt a private defence than it should be committed just before the harm may be supposed to commit but if harm committed than after the force will applied by that person than it was considered as revenge not as private defence.

General defence is appropriate in modern context :-

1) Aim of prevention of a person from defend himself from crime :- Private defence is available to every person so he/she should not be a victim of crime as it is already stated above that crime is wrong against whole of the society and crime also bears a grave result of its commission which really bears a harsh nature.

2). It is a right which is available for every person :- Rights are provided to every person or citizen by his own country's government to safeguard themselves from the violation and not become a victim of crime(Drumbl, 2006).

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3). To save a persons own body and property :- Mainly this right is provided to every person to protect himself or herself from injury to persons own body or property or other persons body or property. To attempt this right the person must have the immediate presence of threat and for that purpose that person can use reasonable force which is in proportion to the harm threatened.

Illustrations :-

1). A is a person who is after steeling a bread from a store ran away. B is a servant in store and he started following him. After that to prevent himself A extract out his gun and give a shot in air but B is still not stopped and to stop A suddenly B extract out his gun and shot A and A died on the spot. It was not a justified action from the side of B because the force used by B was not in proportion to stop

2). A about to hit a big stone on a person B who is not facing A at that time. C a passers-by after seeing the whole scene extracted his knife and gave a cut on his hand. A files a lawsuit against C for having that cut. But in reply to that C said that the act done by him is under private defence to protect body of B. It was then justified act because the act was also in proportion to the threatened harm and also was to protect body of other person.

CONCLUSION

It has been concluded from the above project that private defence is very important for every person to protect their body and property from any harm and to protect it a person can use a reasonable amount of force which is totally in proportion to the harm expected (Delmas-Marty,2006). It must be confirmed that the act committed in defence should be defence itself not a revenge. There are also certain problems listed above which is a kind of hindrance while enjoying right of private defence. Further it was concluded that general defence is very important because it is responsible to safeguard a persons own body or property. Further the whole report was assisted by certain illustrations which really assist everyone to comprehend the concept of private defence(Maroney,2006).

References

  • Ashworth, A., 2009. Criminal law. Human Rights and Preventive Justice” in McSherry, Bernadette, Alan W Norrie, and Simon Bronitt (eds.). Regulating Deviance: the Redirection of Criminalisation and the Futures of Criminal Law. Oxford: Hart.
  • Bantekas, I., 2006. Reflections on some sources and methods of international criminal and humanitarian law. International Criminal Law Review
  • Barkow, R.E., 2006. Separation of powers and the criminal law. Stanford Law Review,
  • Baylis, E.A., 2009. Reassessing the Role of International Criminal Law: Rebuilding National Courts Through Transnational Networks. Boston College Law Review.
  • Blackwood, E., 2007. Regulation of sexuality in Indonesian discourse: Normative gender, criminal law and shifting strategies of control. Culture, Health & Sexuality.
  • Bowles, R., Faure, M. and Garoupa, N., 2008. The scope of criminal law and criminal sanctions: An economic view and policy implications. Journal of Law and Society.
  • Bush, J.A., 2009. The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said. Columbia Law Review.
  • Cassese, A., 2006. Balancing the Prosecution of Crimes against Humanity and Non-Retroactivity of Criminal Law The Kolk and Kislyiy v. Estonia Case before the ECHR. Journal of International Criminal Justice.
  • Chin, G.J. and Miller, M.L., 2011. The unconstitutionality of state regulation of immigration through criminal law. Duke Law Journal.
  • Cole, S.A. and Dioso-Villa, R., 2009. Investigating the'CSI Effect'Effect: Media and Litigation Crisis in Criminal Law. Stanford Law Review.
 

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