LAW1114 Lecture Notes - Lecture 1: Glanville Williams, International Covenant On Civil And Political Rights, Harm Principle
TOPIC&1:&INTRODUCTION&TO&CRIMINAL&LAW&
What%is%Crime?%
Waller & Williams [1.1]: The Criminal Law
•
The History of the Criminal Law of England
(1883) (Sir Fitzjames Stephen – English jurist): “No
department of law can claim greater moral importance than that which, with the detail and precision
necessary for legal purposes, stigmatises certain kinds of conduct as crimes, the commission of which
involves, if detected indelible infamy and the loss, as the case may be, of life, property or personal liberty.”
Waller & Williams [1.2]: What is Crime?
•
Textbook of Criminal
(Professor Glanville Williams): “A crime (or offence) is a legal wrong that can be
followed by criminal proceedings which may result in punishment.”
o It is possible to identify and distinguish civil and criminal proceedings in countries with English-
based legal systems
o Representative of the ‘positivist’ definition of criminal law where the focus is on the form of a law
(i.e. whether it is correctly made rather than its substance)
§ Does not consider why certain behaviour is criminalised and how this is justified by the state
o Relies on the fact that the civil and criminal law are distinct, which is not the case
o Suggests that ‘punishment’ is a means of distinguishing crime from civil wrongs
§ Criminal laws are the only laws that can impose punishment upon guilt
• ‘Prolegomenon to the Principles of Punishment’ (Professor Herbert Hart):
(i) It must involve pain of other consequences normally considered unpleasant.
(ii) It must be for an offence against legal rules
(iii) It must he of an actual or supposed offender for his offence
(iv) It must be intentionally administered by human beings other than the offender
(v) It must be imposed and administered by an authority constituted by a legal system against which
the offence is committed
What%is%Crime?%
Waller & Williams [1.3]: Justification for criminalisation or ‘the aims of the criminal law’
• Fitzjames Stephen: Provide an organised means for controlling the passion of revenge
Waller & Williams [1.5]: The prevention of harm
•
Harm principle
(John Stuart Mills – liberal philosopher): restrictions on individual liberty must be
curtailed and are justifiable only in order to prevent harm to others
o Balances interests of the state whilst protecting the freedom and autonomy of the individual (i.e.
cannot prohibit non-harmful behaviour or possibly self-harm)
o Uncertainty of what constitutes harm to others’
Waller & Williams [1.8]-[1.9]: The public interest
• Must be injurious to the public in an offence against one or more individuals
• Criminal law addressed public wrongs and civil law addresses private wrongs
• Article 7 of the International Covenant on Civil and Political Rights (ICCPR):
1. No one shall be subjected to arbitrary or unlawful interference with his [or her] privacy, family, home
or correspondence, nor to unlawful attacks on his [or her] honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
• Existence of private sphere has played a significant role in legitimating subordination of certain groups
(e.g. state’s reluctance to intervene in domestic violence cases)
Waller & Williams [1.8]-[1.14]: Morality
