Criminal Justice and Law Enforcement

This assignment delves into various aspects of criminal justice and law enforcement. It encompasses a range of topics such as hate crimes, organized crime, defense sourcing in military logistics, and the ethics of active defense. The provided documents consist of academic journal articles exploring these themes from diverse perspectives. Students are expected to analyze these articles to gain a comprehensive understanding of the complexities within the criminal justice system.

Criminal law

TABLE OF CONTENTS
Introduction......................................................................................................................................3
Question 1........................................................................................................................................3
Principle of autonomy..................................................................................................................4
Principle of legality......................................................................................................................5
Principle of harm.........................................................................................................................5
Question 2........................................................................................................................................6
Issue.............................................................................................................................................6
Legal facts....................................................................................................................................6
Applicability of legal provisions..................................................................................................7
Conclusion...................................................................................................................................8
Conclusion.......................................................................................................................................8
References........................................................................................................................................9
2

INTRODUCTION
English criminal law can be termed as legislative body in the jurisdiction of England and
Wales which deals with the criminal acts and their consequence. In order to establish obligation
under criminal law two crucial factors are required to be satisfied i.e. mens rea and actus rea.
However, there are certain exceptions (such as omissions and strict liability) to these provisions
in which individual is charged obliged for criminal conduct. Present study is focused on the
description of legal provisions of omissions in criminal law by considering various legal
principles. Described provisions will be applied in the given case scenario in order to determine
the legal outcome.
QUESTION 1
‘Imposing criminal liability for omissions is inconsistent with other interests that criminal
law should protect such as the principle of autonomy, the principle of legality and the
harm principle.’
In accordance with the provisions of the criminal law, presentation of actus rea (guilty
action) and mens rea (guilty reaction) is compulsory in order to prove a criminal conduct of
defendant. However, in several situations there are exceptions i.e. strict liability in which
criminal action does not require evidence of mens rea. Further, provisions of actus rea states that
there must be voluntary act and criminal conduct should be consequence of the same. However,
in these provisions there are also certain exceptions to the requirement of voluntary actions
which is termed as omissions1. Legal provisions of English criminal law states that to establish
the fact that crime is committed by omission individual is required to show three elements i.e.
duty of care, breach of duty and proximate relationship between action and injury occurred.
Legislatory provisions in the English law is not consistent for the establishment of
criminal liability for the criminal action. In this aspect, few criminologists recommend that all
omissions should be punished while others are in against of this factor2. Criminal law in UK
1 Robert Morris, The teaching of law to non‐lawyers: An exploration of some curriculum
design challenges [2010] 2(3) International Journal of law in the built environment Pl. 232 – 245.
2 Petter Gottschalk and Robert Smith, Criminal entrepreneurship, white‐collar criminality,
and neutralization theory [2011] 5(4) Journal of Enterprising Communities: People and Places in
3

does not impose any obligation for such actions and it is reluctant for the extension of list of
duties for fear of adverse impact on autonomy of an individual.
In present era, all the criminal actions cannot be result of the omission. Due to this aspect,
defence of omission cannot be uniformly by the legislation. In general, omissions of the
individuals are not criminalized in English criminal. However, this provision is subjected to the
legal aspects of contractual duty, special duty and the foreseeability of hazardous situations.
Approach of inconsistency in imposing obligation for criminal conduct can be determined
through following legal principles:
Principle of autonomy
Principle of autonomy is considered by court of law prior to making decision regarding
criminal conduct. In accordance with this principle an activity that causes injury or damage to the
society is said to be prohibited by law. For this aspect examples of drugs can be considered. As
per this principle, consumption of all type of drugs should be legal because consumption of drug
is decision of the individual3. However, state had stated that possession of certain type of drugs
must be criminalized because it has severe adverse impact such as addiction and illness (the
utilitarian and paternalism argument)to the other people. In this aspect case of Regina v Brown
can be considered. In accordance with the case facts, five appellants were convicted on various
counts of ABH and wounding under the provisions of Offences Against the Person Act 1861.
In this case, there was group of sadomasochistic homosexuals. Some of these men were
sadist who had attained sexual satisfaction by causing pain to the others and there were some
masochists who enjoyed the pain. These activities were inclusive of piercing, branding and
beating sensitive parts4. These activities were conducted in private and it not resulted in the
permanent disability due to which client had provided their consent. In this case main issue was
the Global Economy Pl.300 – 308.
3 Anna Sergi, Organised crime in English criminal law: Lessons from the United Kingdom
on conspiracy and criminal enterprise [2015] 18(2) Journal of Money Laundering Control Pl.182
– 201.
4 Catherine Heard, The law on hate crime [2013] 15(3) The Journal of Adult Protection
Pl.164 – 166.
4

related to the consent of parties as masochists had provided consent for the actions of sadist and
defence of consent is said to valid for the removal of obligation. However, court of law had
stated that even the act is supported by consent defendant will be held liable for the criminal
conduct.
In situation where there is consent of injured party in any action than defendant will not
be held liable for the criminal conduct even there is situation of omission. For example if sexual
harassment is supported by the consent of employee than employer cannot be held liable under
the provisions of Equality Act or Human Rights Act. Furthermore, in the case of R v Brown
[1993] 2 All ER 75 it was concluded that consent of victim for bodily harm will be valid if it
supported with the provision of benefit of society5. Further, defence of consent will not be
applied in case of actual or grievous bodily harm.
Principle of legality
This principle is derived from the Latin phrase “nullum crimen sine lege, nulla poena sine
lege” which means there will be no punishment and crime without existence of legislation. In
general words, an individual should not be prosecuted under criminal law for the act which is not
previously published. Thus, in order to claim a criminal conduct act of defendant must be
unmistakably and plainly within the provisions of legislation.
Principal of legality provides assurance that no defendant may be punished arbitrarily or
retroactively by the state6. By considering this aspect, an individual cannot be convicted for a
criminal conduct that is never publicly announced. In addition to this, it also states none of the
party is superior from law. Due to this aspect, ignorance of law will never be considered as
legitimate defence.
In the case of R v Gibbonsand Proctor, a father and his partner were convicted for the
killing of their children as they failed to feed them and due to starvation children were dead. By
applying the provisions of Children's and Young Persons Act 1933 it was held that parents are
5 Christiaan Davids and Robert Beeres, Operational defense sourcing: organizing military
logistics in Afghanistan [2013] 43(2) International Journal of Physical Distribution & Logistics
Management Pl.116 – 133.
6 Mary Haley, Information technology and the quality improvement in defense industries
[2014] 26(4) The TQM Journal Pl.348 – 359.
5

obliged to take care of their children and to satisfy their requirements. However, in case of R v
Smith court of law had held that there is no legal obligation for one brother to feed their siblings
thus he was not held liable under criminal provisions.
Principle of harm
There is important role of harm principle in the promotion of protection and fairness in
the society. According to the provisions of this principal, conduct by individual must be limited
to the prevention of harm to other individuals. For this aspect, case of R v Miller can be
considered. In this case, defendant slept on a mattress with the lighted cigarette in his hand as he
was drunk. Due to this action there was small fire was occurred and he awoke from that. Instead
of calling fire brigade, he went in another room for sleep7. In this court held that defendant is
liable because he had created a dangerous situation as he owed duty of care to call the fire
brigade by getting aware of the fire. However, he failed to do so and was held liable for the
damages. In the similar situation, if he was not aware of the fire than provisions of recklessness
has been applied in the decision of the court.
Above described statement is true that there is inconsistency in provisions of omissions in
English criminal law. It is because, all criminal conduct cannot be consequence of the omissions
of the defendant. By considering the legal principles, individual has duty to act in reasonable
manner for the prevention of injury. However, in situation where failed to do so they will be held
liable for the criminal conduct because criminal liability has been occurred due to consequence
of their action8.
QUESTION 2
Issue
In the described case situation main issue is of applicability of criminal liability for the
omission occurred by the Andy and Beth. It is because; omission by Beth and Andy had caused
to the situation of risk of injury to the innocent parties and damage to the warehouse of publisher.
7 Kenneth Einar Himma, Targeting the innocent: Active defense and the moral immunity
of innocent persons from aggression.
8 Marvin Schaffer, Moral nuclear deterrence – the ascendancy of missile defense [2012]
14(3) Foresight Pl.260 – 271.
6

Legal facts
Creation of dangerous situation
According to the provisions of English law, individual will be held liable for the criminal
conduct in clear situation where they had created a dangerous situation which may result in the
risk of other parties. This principal is stated in the case fact of R v Miller by Lord Diplock.
Decision of this case shows that there is duty of risk creator to take reasonable measure for the
prevention of injury and failure of such duty may result in the criminal liability9.
Provisions of described duty will also be applied in situation where individual are not
aware of that risk created through their conduct but later they are aware of the fact that they had
created risk and fail to take measure for the risk. This aspect was described in the case of Fagan v
Metropolitan Police Commissioner [1968] 1 QB 439. In this case, an individual drove
unintentionally on the foot of policeman but it was his failure to move back by getting aware of
this fact. As a consequence he was held liable for the conviction.
Duties arising from statue
This provision is applicable in situation where criminal liability is imposed by legislation
for the act of omission. In such circumstances individual will be charged for the criminal
conduct.
Defence of necessity in the criminal law
Defence of necessity is applied in the criminal law in situation commitment of crime was
necessary for the defendant. For example, a prisoner escapes from the prison because fire had
been set at that place. In this situation, prisoner will not be held guilty because escape was
necessary for him as per the situation10. Defence of necessity is applied in situation where
defendant has two options, first is to commit crime and second is to suffer from the extreme
hardship. For the applicability of defence of necessity following provisions are required to be
satisfied:
 Criminal conduct should be occurred in order to avoid irreparable or inevitable evil
9 Marvin Schaffer, Moral nuclear deterrence – the ascendancy of missile defense [2012]
14(3) Foresight Pl.260 – 271.
10 Turtogtoh Janar,A basis of Mongolian defense policy and armed forces for self-defense,
in Giuseppe Caforio [2009] 12(2) Emerald Group Publishing Limited Pl.327 – 342.
7

 Criminal conduct should be done to the reasonable extent
 Inflicted evil must not be in disproportion to the avoided evil.
Applicability of legal provisions
As per the described scenario, Andy was famous married footballer and Beth was famous
model. They had caused damaged to the publisher house due to the omission in their dispute.
Andy had signed various lucrative deals due to his good family background but now he is
worried of losing his contract. It is because; Beth was planning to publish the details of their
affairs in her autobiography11. Andy went to the home of Beth to plead her to not to do such
things but he failed to do so as books were already in publishing house. Due to this aspect, he
went to the publishing house with a can of petrol to burn the book. However, while the
destroying autobiography of Beth he had destroyed entire warehouse and ran off. At that time
Beth arrived and made attempt to stop the fire but by mistake she had destroyed the valuable
addition A Christmas Carol’ by Charles Dickins.
Omission by Andy
In the given case scenario, intention of Andy was not to impose injury to the warehouse
of publisher as he only wants to destroy the autobiography of Beth. However, in this process he
had caused fire in the warehouse. It is general presumption that use of can of petrol in a place can
create a risky situation12. Further, he was aware of the fire but he failed to take reasonable
measures for the prevention of injury as he ran away instead of making attempt to prevent fire. In
accordance with the provision of negligence law, it was duty of Andy to not to use petrol at the
warehouse as there were high possibility of injury.
Omission by Beth
Omission occurred by Beth in good intention. She had acted for the prevention of fire in
order to reduce injury. She had made attempt to call fire brigade but she failed to do so due to
11 Donna Youngs and David Canter, When is an offender not a criminal? Instrumentality
distinguishes self-reported offending of criminals [2014] 4(2) Journal of Criminal Psychology
Pl.116 – 128.
12 Abdullah Cihan, Citizens' opinions about police discretion in criminal investigations
[2011] 34(2) Policing: An International Journal of Police Strategies & Management Pl.347 –
362.
8

law battery and along with this she had called for staff help but no one appeared. Due to this
aspect, she picked up a brick and smashes a nearby glass
cabinet that is protected by a burglar alarm and caused damaged to the valuable addition A
Christmas Carol’ by Charles Dickins. By considering the case facts, it can be said that she is
entitled for the defence of necessity. This can be considered by following facts
 Criminal conduct was occurred by Beth in order to aware staff for the prevention of fire
 Criminal conduct should be done to the reasonable extent as burglar alarm was last
option for her13
 Inflicted evil by Beth was not in disproportion to the avoided evil.
Conclusion
Criminal liability of Andy
In the described case situation, Andy will be held criminal liable for his conduct by
applying the case facts of R v Miller. It is because he was aware of the fact of risk but still he ran
away from the warehouse of publisher. Due to this aspect, he will be charged under the
provisions of English criminal law.
Criminal liability of Beth
As per the described situation, Beth will not be liable for the criminal conduct as she can
avail benefit of defence of necessity. She had committed criminal conduct in order to aware staff
for the fire. In addition to this, evil committed by the Beth is less that damages that can be
occurred from the fire.
CONCLUSION
In accordance with the present study conclusion can be drawn that omissions will be
considered for criminal liability if individual is aware of its consequence. By considering this
aspect, there is inconsistency in the provisions of English criminal law for the applicability of
liability in case of omissions. On the basis of case facts of Beth and Andy, it can be said Andy
will be obliged for his omission while Andy is applicable for the defence because of their
13 Gerald Toner, New ways of thinking about old crimes: Prosecuting corruption and
organized criminal groups engaged in labor‐management racketeering [2009] 16(1) Journal of
Financial Crime Pl.41 – 59.
9

intention and cause of omissions. Due to this aspect, Beth will be charged for his omission under
English legislation.
10

REFERENCES
Books and journals
Abdullah Cihan, Citizens' opinions about police discretion in criminal investigations [2011]
34(2) Policing: An International Journal of Police Strategies & Management Pl.347 –
362.
Anna Sergi, Organised crime in English criminal law: Lessons from the United Kingdom on
conspiracy and criminal enterprise [2015] 18(2) Journal of Money Laundering Control
Pl.182 – 201.
Catherine Heard, The law on hate crime [2013] 15(3) The Journal of Adult Protection Pl.164 –
166.
Christiaan Davids and Robert Beeres, Operational defense sourcing: organizing military logistics
in Afghanistan [2013] 43(2) International Journal of Physical Distribution & Logistics
Management Pl.116 – 133.
Donna Youngs and David Canter, When is an offender not a criminal? Instrumentality
distinguishes self-reported offending of criminals [2014] 4(2) Journal of Criminal
Psychology Pl.116 – 128.
Gerald Toner, New ways of thinking about old crimes: Prosecuting corruption and organized
criminal groups engaged in labor‐management racketeering [2009] 16(1) Journal of
Financial Crime Pl.41 – 59.
Kenneth Einar Himma, Targeting the innocent: Active defense and the moral immunity of
innocent persons from aggression. [2014] 2(1). Journal of information communication
Pl.31 – 40.
Marvin Schaffer, Moral nuclear deterrence – the ascendancy of missile defense [2012] 14(3)
Foresight Pl.260 – 271.
Mary Haley, Information technology and the quality improvement in defense industries [2014]
26(4) The TQM Journal Pl.348 – 359.
11

Petter Gottschalk and Robert Smith, Criminal entrepreneurship, white‐collar criminality, and
neutralization theory [2011] 5(4) Journal of Enterprising Communities: People and Places
in the Global Economy Pl.300 – 308.
Robert Morris, The teaching of law to non‐lawyers: An exploration of some curriculum design
challenges [2010] 2(3) International Journal of law in the built environment Pl. 232 – 245.
Turtogtoh Janar,A basis of Mongolian defense policy and armed forces for self-defense, in
Giuseppe Caforio [2009] 12(2) Emerald Group Publishing Limited Pl.327 – 342.
12