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This essay is going to explain and judge the rules and standards
of criminal law as well as the issues they have in the light of certain guiding
principles of restraint in the construction and use of the criminal law.

The principle of harm presents a concept of crime where a conduct
must only be banned if it results in harming another person. This principle puts
a standard in place for what types of conducts a liberal should be able to rightly
forbid. The harm principle does not say that conducts that are harmful, should
be prohibited; rather, it says that harmful conducts alone should be able to be
prohibited.1 John
Stuart Mill’s essay, ‘on liberty,’ regarding
the principle of harm argues that: ‘Power
should only be exercised over civilians against their will if the reason is to
prevent harm to others.’ Thus, the idea behind this principle is that individuals
should be able to do as they please if their actions do not harm the interest
of others. 2

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The principle of individual autonomy is one of the crucial
concepts in the justification of criminal laws. An individual’s right of living
his or her life as he or she please (The right or autonomy). This principle is
used in criminal law to forestall somebody’s exercise of autonomy from obstructing
another individual’s autonomy. The criminalisation of certain conducts,
restricts our option by construction of the legal code. In relation of
criminalising failures to act, the law is hindering the individuals’ decisions
and demanding an explicit course of conduct. Henceforth, if we perceive
autonomy as something that should be perpetuated and increased, criminal
offenses, especially those regarding omissions liability, that restrain our
autonomy ought to be kept to a minimum.

Autonomy is also the primary approach for the advancement of
‘choice’ as a critical component of both legal and moral blame.  As a result, conducts that the defendant
cannot evade must not be criminalised. The most fundamental implications of
this would rule out the legislation of, for example, sleeping and respiration,
where we carry out these actions without choice. Accordingly, the fairness or
criminalising unrealistic choices is debateable. In other words, where the
defendant commits an offence to avoid threatened sever violence, the defence or
duress is applied. Notwithstanding, duress is not in any way permitted as a
defence to murder, irrespective if it is highlighted that a reasonable person
would have responded within same manner, and therefore the defendant’s response
was in a way an inevitable response.3

A principle that assists the role of
the law in protecting society from harm is the principle of welfare. From a
possible victim’s point of view, the principle of welfare is in accordance with
the principle of autonomy mentioned previously: for someone to exercise their
right of autonomy, he should be protected from others that would unfairly
hinder his ability to do so, physically or otherwise.4 Nonetheless, the protection of an individual’s
right to autonomy entails the limitation of another individuals right to autonomy.
Therefore, the principle of welfare delivers a counterbalance to that if
autonomy, and one could validate an extremely limiting criminal law. For
instance, if an individual was to harm someone whilst suffering from an
epileptic seizure the concept of autonomy would suggest that there is no liability
as the individual did not have the necessary men’s rea. This means that harming
someone whilst having a seizure is not a voluntary act and only a blameworthy should
be punished. However, the welfare principle could potentially favour
criminalisation since the victim’s welfare was still hindered.5 Finding
the stability to encourage maximum autonomy and welfare by making the
conditions, through minimum criminalisation, that permit and encourage
individuals to peruse their genuine social goals is a challenge in criminal law.
Joseph Raz argued in ‘The Mortality of Freedom’
that: ‘the social conditions required
for the full exercise of autonomy must be provided for the states to appreciate
the importance of autonomy.’6

The principle of minimum criminalisation proposes that criminal law
ought to prohibit a certain conduct only if it is compulsory. This is due to several
logical reasons. Firstly, there is a limitation on the quantity of individuals
that can be incarcerated due to lack of space and facilities in prisons.
Creating more offenses regularly would cause courts and prisons to become
overcrowded. More so, criminalising more serious conduct carries the message
that there are certain conducts that aren’t simply just immoral, but immoral
enough to result in criminal proceedings. Criminalising conducts that aren’t as
serious will remove the importance of this message and will not be as effective
in reducing unpleasant social behaviours. Civil proceedings and gratifying good
behaviours are other ways in with the law deals with immoral behaviour. Therefore,
having such many statutes that create criminal offences is questionable.7

This is the principle that people ought to solely be guilty of
conduct that they are accountable. In other words, individuals must not be
guilty for conduct that they are not responsible for or had no control over. This
principle can be infringed if the legal code punished an individual for the
behaviour he carried out while having an episode from an epileptic fit, for
instance. This would be unreasonable as the individual did not have the necessary
men’s rea as he was not in the right state of mind to make the decision for the
actions he carried out and therefore didn’t intend on causing harm.8

In pursuance for a criminal sanction to take effect, judges
as well as lords must consider numerous conditions and principles before concluding.
As the society today would desire a more liberal perspective. Thus, elements
such as the Human Rights Act 1998 are viewed in more depth by courts.  The rudimental components for conducts to be
deemed as a crime are not as adequate as they previously were as there are
measures that could potentially developed to enhance the society and make the
world a better place.

Bibliography

Ashworth A & Horder J, Principles of Criminal Law, (7th edition, Oxford
University Press, 2013)

Herring J, Criminal
Law: Text, Cases, and Materials, (6th edition, Oxford University
Press)

Child J & Ormerod D, Smith,
Hogan, and Ormerod’s Essentials of Criminal Law, (2nd edition, Oxford
University press, 2017)

Raz J, The Morality of
Freedom, (1st edition, Oxford University Press, 1986)

2014)

Allen M , Textbook on
Criminal Law, (13th edition, Oxford University Press, 2015)

1 John Child & David Ormerod’s, Smith, Hogan, and Ormerod’s Essentials of
Criminal Law, (2nd edition, Oxford University press, 2017)

2 Andrew Ashworth & Jeremy Horder,
Principles of Criminal Law, (7th
edition, Oxford University Press, 2013)

3 Jonathan Herring, Criminal Law: Text, Cases, and Materials,
(6th edition, Oxford University Press) 2014)17 – 18

4 Andrew Ashworth & Jeremy Horder,
Principles of Criminal Law, (7th
edition, Oxford University Press, 2013) 26

5 Michael J. Allen, Textbook on Criminal Law, (13th edition,
Oxford University Press, 2015)

6 Joseph Raz,
The Morality of Freedom, (1st
edition, Oxford University Press, 1986)

7 Jonathan
Herring, Criminal Law: Text, Cases, and
Materials, (6th edition, Oxford University Press) 2014)31-33

8 Michael J. Allen, Textbook on Criminal Law, (13th edition,
Oxford University Press, 2015)

 

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