Specific Performance

This video is about the equitable contractual remedy of specific performance. Specific reference to lease covenants are made.

Cases used: Rainbow Estates v Tokenhold 1998, Beswick v Beswick 1967, Co-operative v Argyll Stores 1998

Although, I used cases regarding leases they are still good demonstrations of when specific performance will be utilised in any contract.

 

Involuntary Manslaughter

In the case of involuntary manslaughter the accused lacks malice aforethought, the mens rea for murder.

There are three forms of involuntary manslaughter: constructive manslaughter, gross negligence manslaughter and reckless manslaughter.

The Whiteboard in the background

 Constructive Manslaughter

Gross Negligence Manslaughter

Reckless Manslaughter

Causation

This video introduces the causation requirement in criminal law.

But before preceding to the videos here is a JPEG overview:

photo-10

There are 6 types of Novus Actus Interveniens that will be explored:

1. Natural Interventions/Acts of God

2. Third Party Interventions

3. Medical Interventions

4.  Drug Supply

5. Thin Skull/Egg Shell Rule

6. Victim Flight

Principles of Criminal Law

Below competing principles in criminal law are discussed.

  1. Individual Autonomy vs Social Welfare

This is the principle that criminal law should proceed on the basis that individuals should be responsible for their own behaviour. This is of course different to the way children and those with mental illness are treated within the law and that is because they don’t fit into this principle. Example of this principle can be seen in the criminal liability for omissions in English law.

However, critics of this point out that most of our behaviour is anyway socially determined though so this principle is fiction and more accurate principle should be used such as welfare.

The welfare principle comes in direct opposition to the individual autonomy view which stresses on the protection of individuals/society for the greater good. Rouse argues that the law should create conditions so that individuals can make the best autonomous decision and this involves reaching communal good.

The Welfare principle can be see in the law’s adoption of human rights.

Most law making decision revolves around balancing individual autonomy with what is best for society.

 2. Minimalism vs Over-criminalisation and Policy of Social Defence

This is the principle that criminal law should only be implemented in situations where it is absolutely necessary. The idea is that having laws which are difficult to enforce undermines the power of criminal law and thus should be restricted.

Another reason for holding a minimalist position is that the law is intrusive, particularly criminal law, as it involves the state into the lives of individual and some are worried that this could lead to abuse e.g. police corruption.

Further issues that cause many to hold the minimalist stance is that it bears the biggest burden on a small sect of society i.e. those that are male, young and from ethnic backgrounds. This can send negative messages to society. Also, criminal proceedings are expensive, how much public money can we justify spending on criminal proceedings, there are also unaccounted for costs e.g. those found in the black market.

However, this view is challenged by those who support over-criminalisation and a policy of social defence. The over-criminalisation view stresses on the symbolic and powerful nature of law and how this can be used. For example, prior to the criminalisation of drinking and drive offence, it was socially accepted to drink and drive.

Furthermore, advocates of the policy of social defence argue that in order to preserve the good working of the state and state control, it is necessary to criminalise to a level above necessary.

3. Liability for acts only vs Social responsibility and the thin ice principle

The general principle is that criminal liability only exists for positive acts and not omissions, unless a duty situation exists which gives rise to criminal liability.

There are those like Professor Ashworth who advocate a social responsibility view saying that to optimise the potential of criminal law what is necessary to enact some kind of good Samaritan law which makes people liable for omissions to too. The justification for this lies in the fact that that society needs corporation between individuals to function, criminalises those who fail to help others helps in the operation of this.

Furthermore, the thin ice principle suggests that those who are skating on thin ice can’t complain if they fall in, the metaphor being for the criminal legal system. And again here we can compare this to the idea of individual autonomy.

4. Maximum certainty vs Social defence vs Strict Construction vs Proportionate response

Maximum certainty is the idea that the law should be certain because if you had no idea what you were doing is criminal then it unfair to convict you. This supports the idea of individual autonomy and the principle of non-retroactivity found in art 7 of ECHR.

However, advocates of social defence policy would argue alternatively, suggesting that you need flexibility to function effective e.g. it is hard to set out all the possible situations in which murder can be established.

The principle of strict construction relates to the idea that individual’s should be given a fair warning. This entails making sure the language of the law is clear and is relieved of any ambiguities. This ties into the the principle of proportionate response which is that criminal law sanctions should reflect the infliction of harm and should not go above necessary and proportionate.

 5. Men rea vs Objective Liability vs Correspondence vs Fair labelling

The mens rea principle is absolutely crucial to the criminal law function because it ensures that only those with a guilty mind are punished.

However, the competing principle to mens rea is that of objective liability i.e. situations where strict liability or negligence is sufficient to establish a crime e.g. gross negligence manslaughter.

Both these principles tie into the idea of fair labelling, the notion that the crime should describe behaviour and punishment should be appropriate.

What makes a crime?

This video is about the theoretical background behind the criminal legal system. I look at what makes a crime and three main philosophical foundations: legal moralism, the harm principle and paternalism.

Notes

A crime is an offence punishable by law. Arguably there are two reasons for criminalising an act or creating a crime:

1. The conduct itself is wrongful

There are three central arguments that make a conduct wrongful:

i. Legal Moralism

Lord Devlin in “Morals and The Criminal Law” 1959: immorality is what every right-minded person is presumed to consider immoral.

He argues that ‘immorality’ is a necessary and sufficient condition of criminalisation.  This view is based on the premise hat social harmony is jeopardised if morality is not underwritten by the law.

He argues that morality forms a ‘seamless web’. By this metaphor, he intended to convey the notion that ‘society’s morals’ form a fragile structure and that is morality is not reinforced legally, then damage to the entire structure will follow.

Problems:

Rejects rationality, doesn’t look at an empirical investigation of the effects of criminalisation, based it upon feelings.

Bentham warned us to be suspicious when officials claim they are acting in the name of ‘right minded people’. In many cases it just justifies the prejudices of legislators themselves and is dangerous.

Seamless web is also problematic as Hart points out people don’t abandon their moral views if they are not punished by law itself.

ii. The Harm Principle

People should exhibit free will and the state should only intervene if harm is caused to others.

The problem is, is this primary harm e.g. assault or secondary harm e.g.  seat belts

The Report on the Wolfenden Committee on Homosexual Offences and prostitution 1957 argues that the law is to intervene to protect vulnerable people and preserve public order but not to intervene in private lives of citizens or enforce any particular pattern of behaviour. The Committee was recommending that homosexual behaviour between consenting adults in private should no longer be a criminal offence.

The principle was famously articulated by J.S.Mill as “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others’

Harm is to be understood not just as physical harm but a violation of any recognised interest.

Problems:

Is that if you are focused on only harm to others it becomes impossible to criminalise drugs or the wearing of seatbelt.

However, many modern harm theorists point out they would support it because it is potentially harmful to others. Kaplan explains that there are different categories of harm such as ‘public ward harm’. That is, he may impose on other the cost of rectifying the damage he causes himself. He may not be able to take up the economic responsibilities he owes others as a result . Furthermore, other individuals may copy the behaviour and suffer harm as a result.

However, this is still problematic because if we acknowledge the broad concept of harm, there are few actions that one can perform that threaten harm only to oneself. Thus leading to a world where almost all acts are criminalised.

Prohibition of harmful conduct may in itself result in harmful consequences such as the sale of say drugs may indirectly or directly harm consumers as well as the potential economic harm to business enterprises involved.

Bentham advocated a utilitarian outlook.

iii. Paternalism

Preventing someone from harming themselves – inferring with autonomy for their own good.

2. It is necessary to employ criminal law to prevent such conduct.

– This refers to the principle of minimising interference in an individual’s autonomy.