Criminal Case Law and Precedent Flashcards
(9 cards)
How does the Rule of Law relate to the arrest of the defendant?
Police action in arresting D must be grounded by the Rule of Law
- They must enter property with a reason, arrest with an explanation and only detain with an explanation of the offence D has committed
- Onus is on the state to explain its actions
How has case law affected the offences of manslaughter and murder?
No statutory basis for these offences
- They are common law offences
Murder requires intent to kill, whereas manslaughter does not
Law is more forgiving of manslaughter
Large bank of case law in relation to these offences for courts to draw on in reaching a judgment
Essential elements have remained broadly the same for centuries
How has case law affected the offence of assault?
Offences Against the Person Act 1861 provided a statutory basis for various types of assault
- However, case law was needed to provide clarity on what would amount to assault and has been used to develop the law
How has case law affected the offence of theft?
Case law has approached theft in a similar way for a considerable length of time
The law was codified by the Theft Act 1968 – defines theft as:
- A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it
Case law has aided the interpretation of the Theft Act
To deliver sentences in a systematic, fair and proportionate way, the courts look at the Criminal Justice Act 2003, which sets out 5 principles of sentencing.
What are these principles?
- Punishment of offender
- Reduction of crime
- Reform and rehabilitation
- Protection of the public
- Making good to victims
With the 5 sentencing principles in mind, how do the courts generally decide on a punishment?
Courts firstly consider imposing a lesser punishment before working their way up the ‘sentencing ladder’
- Sending D to prison should be the last resort
There are Sentencing Council guidelines which assist MC and CC in administering sentences – they must consider:
- Culpability of D – the blame to be shouldered by D
- Harm suffered – impact on V
- They also consider mitigating factors which may result in a lower sentence (Early guilty plea, remorse, D’s personal and family circumstances etc)
Case law provides precedent on how case might be applied
Courts do not presume someone’s past convictions mean they are guilty of the current charge
- Jury may be entitled to know about any though, which can influence decisions and shows nature of D’s character
What is the relationship between case law and legislation for criminal cases?
Court interprets legislation and is the only body capable of giving a ruling on a statute
Courts can develop and extend the reach of legislation through interpretation
Case law also assists the court in reaching decisions
The Sentencing Council guidelines, case law and legislation + societal factors influence decisions
What are some of the key professional conduct obligations for solicitors and barristers to uphold?
Solicitors and barristers have key obligations to uphold:
- Rule of Law
- Proper administration of justice
- Public trust and confidence
- Act with independence, honesty and integrity
- Encourage EDI
- Act in best interests of clients
- Must not mislead the court
- Maintain client confidentiality
If one concept conflicts with another, the public interest prevails
What are a lawyer’s obligations when a client confesses to a crime?
Lawyer’s obligations when D confesses to a crime
- Must continue to act unless professional conduct obligations mean you should cease for some reason
- Duty of confidentiality means you cannot disclose confession to anyone outside your firm
- They can continue to plead not guilty, provided lawyer doesn’t mislead court by pleading their innocence
- Cannot let the client take the stand to give evidence, but can test the evidence by letting the prosecution present their case
