Theory in paper 1

Harm
Theory of harm is that everyone should be free of harm. The only justifiable basis in which criminal
liability can be imposed is when harm is committed.
Harm can be seen through physical injury for example GBH. The consequences of this for the person
(harm done) would be pain and suffering, time off work and potential long term affects. Therefore
criminal liability can be imposed.
Harm can be done through property damage. This can be seen in a few ways: when there is a high
value and therefore it costs a lot to replace, or if the person is poor and unable to replace the item.
Some items cannot be replaced and harm is permanent, for example sentimental items.
Paternalism refers to the limiting of freedom with the intent of protecting them from harm. Generally
it is meant to benefit the individual even if they don’t consent to it. Heart believed that stopping
someone from harming themselves was a justification for criminalising conduct.
Harm is helpful to understand which behaviours in society should be criminalised and what shouldn’t.
Harm however is decided by the government and courts and they may not know what is best. A good
example of this would be that you cannot consent to ABH outside of sport, it could be argued that
people should be free to choose what they want to do with their body.

Fair labelling
Fair labelling means that crimes should be defined to reflect their severity. There are two elements for
fair labelling, one is ‘description’ all crimes should be described and clear with all necessary elements
communicated.
The second element of fair labelling is differentiation. Crimes must be easily distinguished from each
other, especially when relating to fault, for example murder and manslaughter must be distinguished
as they have different levels of fault.
Fair labelling also relates to the ‘label’ someone gets after committing a crime, for example someone
who commits murder will be called a murderer.
Theft is a good example of fair labelling, it is clearly distinguished from robbery and all elements of
the crime are clearly established under the theft act s.1-8 (including robbery).
Murder could be an example of where fair labelling is not used correctly as it would be unfair to deem
someone a murderer when they had no intent to kill (can have intent to cause serious harm).
This must be taken into account when drafting a new law.

Correspondence
This principal relates to the actus reus and the mens rea matching. Someone should not be convicted
of harm done if they did not intent or at least foresee the risk of the outcome occurring.
A good example of this would be the common law offence of assault, the actus reus relates to
unlawful apprehension of immediate, physical violence, the mens rea relates to intention or
recklessness for apprehension of immediate physical violence. As you can see these match and
therefore it would be fair to convict someone of this.
An example that shows weakness is the non fatal offences defined under the Offences against the
person act 1861 (ABH and s.20 GBH). The mens rea doesn’t match and is essentially one level of
harm down from the actus reus (some harm to battery / assault) and serious harm to some harm. This
is unfair as the person committing the offence doesn’t have to intend or even foresee the actual harm
done but will get convicted for it.
This must be taken into account when drafting a new law.
Overall, this is a good thing as it ensures people are only punished based on what they (at least) think
could happen which appears fair on the surface. however it could be seen as unfair as if somone
suffers harm, the person who subject them to harm should still be punished even if they didnt intend
to cause that level of harm.

Maximum certainty
Maximum certainty relates to legal clarity so that citizens can organise their behaviour in such a way
that does not break the law.
Laws should be written in clear and unambiguous language so that everyone can understand the law.
This is because law applies to everyone in the country.
Laws should be precise in their wording, vague or broad language that can be interpreted in multiple
ways brings confusion of how the law is applied.
Maximum certainty allows people to abide by the law and also protects people through the law by
assuring accountability through precise language.
It also protects against arbitrary enforcement. Clear laws prevent authorities from interpreting laws in
discriminatory ways ensuring fairness and equality
However not done eg ‘malicious’ in GBH.

No retrospective liability
This means the law does not apply back in time, for example if there was a new act created in 2024
stating that abortion was illegal, people who had an abortion in 2023 could not be held guilty for this.
However in the criminal justice act 2003, if new evidence appears for someone who has been
acquitted of murder, that points to them actually being guilty they can be re-prosecuted. This act can
also be used in cases before 2003.
Precedent can sometimes do this, however it is usually clarifying the law instead of changing or
adding to law. Although it does sometimes happen for example R v R (rape case)
Overall no retrospective liability could be seen as a good thing as it would be unfair for people to be
punished for what wasn’t a crime at the time. However it could also be seen as a bad thing as people
who have had a crime committed on them don’t have justice.

Autonomy, fault and individual responsibility

Autonomy means being responsible, independent and being able to act free of influence. This means
most adults who are free from illness and free from opresive and constricting conditions are
autonomous. This means they are responsible for their own actions and have to suffer the
consequence.
Fault in the mind relates to mens rea, there are different levels of this. Intent is desire to bring about
the consequence (r v Mohan) whereas recklessness is to see the risk of an act and do the act anyway (r
v Cunningham). Intent is the worse of the two and so the defendant is held more to blame and suffers
worse consequence. Mens rea requires autonomy to be complete, this can be seen through defences
such as insanity and automatism which both remove blame from the defendant as it would be unjust to
punish someone of a crime they did non-autonomously.