Worksheet 1 With Notes

Law and Morality

What is a crime?

“...a legal wrong for which the offender is liable to be prosecuted by or in the name of the State,
and if found guilty, liable to be punished.”
-- Card, Cross & Jones

There must be a “legal wrong”. How do we decide what is a “legal wrong”?

A. Legal Moralism
The Test: Does the conduct (or omission) offend the community spirit?

B. The Harm Principle

The Test: Will this conduct (or omission) cause harm or serious offence to others?

C. Paternalism
The Test: Is the conduct (or omission) something from which we must protect the offender?

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 What is the difference between criminal and civil liability?

Criminal Liability Civil Liability

•Concerned with public wrongs •Concerned with private rights
•Concerned with condemning and punishing the •Concerned with compensating the
guilty injured victim
•The State brings action (in the form of the police •Victim decides whether to bring suit .
and the DPP)
•Criminal case is brought in the name of the Crown •Civil case is brought in the name of the
(R v. Defendant) injured party (Claimant v. Defendant)
•Concerned with moral fault and blameworthiness •Concerned with victim compensation
•Prosecution must establish its case by proof beyond •Claimant must establish her case on a
a reasonable doubt balance of probabilities

Nature and Purpose of Criminal Law

What is at the heart of criminal law?

Criminal law is about:

•Public wrongs
•Harm to society
•Moral fault
•blameworthiness
•Coercing behaviour

C. Aims of Criminal Punishment

What are the aims of criminal punishment?

American Law Institute’s Modern Penal Code (Art. 1 1.02)

(a)To forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens
substantial harm to individual or public interests
(b)To subject to public control persons whose conduct indicates that they are disposed to
commit crimes
(c)To safeguard conduct that is without fault from condemnation as criminal
(d)To give fair warning of the nature of the conduct declared to be an offence
(e)To differentiate on reasonable grounds between serious and minor offences

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 What are the aims of criminal punishment?

Retribution: Biblical justification Leviticus 24:17-22 – When one man strikes another and kills
him, he shall be put to death. Whoever strikes a beast and kills it shall make restitution, life for
life...fracture for fracture, eye for eye, tooth for tooth... Forestalls the need for private revenge

Restraint: Offenders need to be separated from the rest of society in order to protect citizens
from their committing other offences -- goal is preventing future offending but this often leads
to a disproportionate sentence

Rehabilitation: Offenders must be given the social, educational, or vocational training necessary
to allow them to behave the way in which we would want them to behave

Deterrence: Would-be offenders must be discouraged from engaging in criminal activity so

actual offenders are made examples of

D. Relationship Between Law and Morals

“Morality and criminality are far from co-extensive, nor is the sphere of criminality necessarily
part of a more extensive field covered by morality.”
-- Lord Atkin Proprietary Articles Trade Association v. A.G. for Canada [1931] A.C. 310, 324

What does the Wolfenden Committee Report say?

The Function of the Criminal Law is to:

•preserve public order and decency
•protect the citizen from what is offensive or injurious
•provide sufficient safeguards against exploitation or corruption of others The Function of the
Criminal Law is not to:
•intervene in the lives of citizens or to seek to enforce any particular pattern of behaviour

There must remain a realm of private morality and immorality, which is in brief and crude
terms, not the law’s business

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 What is the Libertarian view? Who espouses this view? What cases discuss this view?

John Stuart Mill: “...the only purpose for which power can be rightfully exercised over any
member of a civilised community against his will is to prevent harm to others.”

What is the Authoritarian view? Who espouses this view? What cases discuss this view?

Sir James Stephen: “...there are acts of wickedness so gross and outrageous that... they must be
prevented as far as possible at any cost to the offender, and punished... with exemplary severity.”

LORD DEVLIN H.L.A. HART

➭Touted the dangers of a prejudiced ill-informed ➭Society may use criminal law to preserve
majority public morality when public feeling rises to
“intolerance, indignation and disgust”
➭Like John Stuart Mill, we must protect against ➭The man in the jury box is the person who
harms decides what is moral
➭Rejected the idea that deviation from accepted ➭There are no theoretical limits to legislation
sexual morality, even by adults in private, is against immorality
something which, threatens the existence of society
Cases to support argument: Cases to support argument:
Shaw v D.P.P. (1962) A.C. 220
Knuller v D.P.P. (1972) 2 All E.R. 898
R v Brown (1993) 2 All E.R. 75

Shaw v. D.P.P (1962) A.C. 220

The Court is the custos morum of the people
➭Lord Simonds: “courts of law [has] a residual power … to conserve …the moral welfare of the
State …”
➭Lord Reid (dissenting): It is not the courts place to be making laws to protect morality
“Parliament is the proper place” to do so.

Knuller Ltd. v. D.P.P (1972) 2 All E.R. 898

Conspiracy to corrupt public morals is an offence

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 ➭Lord Reid: “...if people choose to corrupt themselves in this way that is their affair and the law
will not interfere. But no licence is given to others to encourage the practice.”

Chief of Police v. Nias (2008) 73 WIR 201

➭Rawlins CJ: Parliament is the voice of the people and makes the law not the court

Dolly Kendall v. Khan (1979) 26 WIR 433

➭Crane CJ: “virtue ought not be secured by legislation but should be inculcated on the minds of
the people.”

Principle of Legality (NULLA POENA SINE LEGE)

What is the Principle of Legality?

“No penalty without a law”

Conduct which is not proscribed by law should not be punished

Legality in Shaw
Shaw v. D.P.P (1962) A.C. 220
Is conspiracy to corrupt public morals an offence?
➭Majority of the court says no: But, the courts has a duty to superintend those offences which
were prejudicial to the public welfare
➭Lord Reid says yes: Conspiracy to corrupt public morals was a common law misdemeanour and
there was evidence fit to be left to the jury on which the appellant could be found guilty of this
offence.

Legality in Knuller

Knuller Ltd. v. D.P.P (1972) 2 All E.R. 898

Is it a crime to encourage legal behaviour?

➭Per Curiam: Yes because though not illegal, the conduct might be calculated to corrupt public
morals - it was for the jury to decide whether by present-day standards the advertisements did
so”
➭Lord Reid: “...if people choose to corrupt themselves in this way that is their affair and the law
will not interfere. But no licence is given to others to encourage the practice.”

What is the presumption of innocence? Which cases discusses this?

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 The notion in criminal law that the defendant is presumed to be innocent until proven guilty.
Thus the burden of proving all the elements of the offence lies with the prosecution and the
prosecution must prove its case beyond any reasonable doubt.

Supporting Case: Woolmington v D.P.P. (1935) A.C. 462

F. Sources of Criminal Law in the West Indies

What are the sources of Caribbean criminal law?

1.The Written Constitution – Ultimate source of power and authority

•Establishes fundamental principles governing society
•Savings Law Clause (Does this simply codify existing rights? What about the death
penalty?)
2.Legislation – The will of the people
•Can be an instrument of change and innovation
3.Common Law
•Stare decisis :- The policy of courts to abide by or adhere to principles established by
decisions in earlier cases
•Obiter dicta:- An opinion voiced by a judge that has only incidental bearing on the case
in question and is therefore not binding
4.International Law

Woolmington v D.P.P. (1935) A.C. 462

D in an attempt to persuade his wife to return home threatened her that he would
commit suicide, as he showed her the gun that he was going to kill himself with, it went
off accidentally killing her. D was convicted of murder and sentenced to death.
Appeal made on the grounds of Jury misdirection and death penalty thrown out

Rule: Burden of proof in criminal trials lies on the prosecution.

R v Price (1883-84) 12 Q.B.D. 247

Shaw v D.P.P. (1962) A.C. 220

D was convicted of conspiracy to corrupt public morals for publishing for sale a 'ladies
directory' which listed contact details of prostitutes, the services they offered and nude

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 pictures.
D appealed on the grounds that no such offence of conspiracy to corrupt public morals
existed.

Held: The appeal was dismissed. The House of Lords in effect created a new crime.

Rule: A publisher who encourages immoral behaviour through explicit content in a

magazine or periodical is guilty of conspiracy to corrupt public morals.

Knuller v D.P.P. (1972) 2 All E.R. 898

The defendant published a magazine with advertisements of homosexuals seeking to

meet other like-minded individuals to engage in sexual practices.
They were charged with conspiracy to corrupt public morals as established in Shaw v
DPP.
The House of Lords doubted the correctness of the decision in Shaw but declined to
depart from it.

Rule: A publisher who encourages immoral behaviour through explicit content in a

magazine or periodical is guilty of conspiracy to corrupt public morals.

R v Brown (1993) 2 All E.R. 75

5 defendants were found guilty of assault occasioning bodily harm for participating in
consensual sado-masochistic homosexual activity in which the defendants suffered no
permanent injury.

Rule: Consent is no defence to an assault causing grievous bodily harm.

Kendall & others v Khan (1979) 26 W.I.R. 433

The three persons were arrested in a cinema by a party of policemen after they failed to
stand up while the national anthem of Guyana was being played. They were charged for
insulting a police officer and eventually found guilty.
On appeal the conviction and sentence for the three appellants were set aside because
though the conduct may be viewed as annoying, it cannot be said to be insulting
conduct.

Rule: “virtue ought not be secured by legislation but should be inculcated on the minds
of the people.”

Chief of Police and another v Nias (2008) 73 W.I.R. 201

The respondent was found guilty of using abusive language to a woman in a public place
contrary to a section of the Small Charges Act of St Christopher and Nevis. An appeal
was made on the grounds that this infringed on the constitutional right to freedom of

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 speech.

Rule: Parliament is the voice of the people and makes the law not the court

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