Maximum Certainity Flashcards
(9 cards)
1
Q
What does maximum certainty require
A
- that the law be as certain as possible
- if it is not known what elements constitute a crime, then it is not fair a person be convicted of that crime
2
Q
How does maximum certainty align with the rule of law
A
- the rule of law states law must be known and accessible
- maximum certainty ensures laws are clear, predictable and precise
3
Q
What did Tony Honore state about maximum certainty
A
- in his book - ‘about law’ - he stated ‘a person should not be punished…except for a crime defined by law in advance’
4
Q
Give an example of maximum certainty in the law
A
- offences are not often challenged for uncertainty but some examples of cases that were are:
- DPP v Shaw - the offence was uncertain/unknown until a final decision of the HOL
- ‘Gross’ in gross negligence manslaughter is left to the jury to decide, it is unclear
5
Q
Outline the legal support for the principle of maximum certainty
A
- article 7 in the European convention on human rights requires clarity in defining criminal cases
6
Q
What does fuller argue about maximum certainty
A
- fullers ‘inner morality of law’ argues clarity is a ‘necessary component’ of a functioning legal system
7
Q
What are the positives of the concept of maximum certainty
A
- supports the rule of law and democratic accountability
- ensures fairness- people know what is legal and what is not legal
8
Q
List some ‘challenges’ to maximum certainty
A
-the law must evolve with society - some flexibility (and thus ambiguity) is necessary
- overly rigid or technical rules can become outdated/unjust
9
Q
How can the legal system overcome challenges to maximum certainty
A
- statues should be clear but allow for judicial interpretation
