Smith and Hogan Criminal Law Textbook Aggregated Notes TEST POST TO CHECK REACTION

COPY AND PASTE KINDLE NOTES EMAIL TO GMAIL?

NOTETAKING IN KINDLE EDITION IS HIGHLIGHTING THE TEXT THEN COPYING INTO AN MEDIUM LENGTH DOCUMENT FOR EASE OF USE AND SCROLLING. I CAN THEN ADD COMMENTARY.  SINCE SMITH AND HOGAN IS MY FIRST FORMAL UNDERGRADUATE LAW BOOK READING AND FIRST 1000 PAGE PLUS THEN ITS A BIT OF A BIG DEAL TO REVEAL THE FORM OF MY NOTATION.

not all crimes are readily identifiable even to the lawyer. This is inevitable when there are well in excess of 10,000 crimes in England and Wales2 covering such diverse activities as murder, rape, being in possession of an unlicensed dangerous dog3 and

David Ormerod (2011-07-28). Smith and Hogan’s Criminal Law (p. 3). Oxford University Press. Kindle Edition.

A crime may remain a crime long after it has ceased to be a threat to the security or well-being of society.

Laws then not being not being under sufficient judicial scrutiny in order to eliminate excess, bad laws etc. Role of the Law Commission and effectiveness thereof. The theory of Judges treating  Parliament like a naughty schoolboy with their Legislation is an appealing one.

David Ormerod (2011-07-28). Smith and Hogan’s Criminal Law (p. 5). Oxford University Press. Kindle Edition.

V unlawfully possessed them. The law of theft protects the Queen’s peace and is not a means of enforcing personal property rights.

What is the  Queens Peace?

David Ormerod (2011-07-28). Smith and Hogan’s Criminal Law (p. 5). Oxford University Press. Kindle Edition.

In particular, there has been a disproportionate use of the criminal law to deal with regulatory misconduct. The Law Commission has recently proposed that: the criminal law should only be employed to deal with wrongdoers who deserve the stigma associated with criminal conviction because they have engaged in seriously reprehensible conduct. It should not be used as the primary means of promoting regulatory objectives.24 . Which I believe is used for Corporate  Criminal Acts. I note he does not devote much space to Corporate malfeasance which I find offputting. I may be wrong.

 

David Ormerod (2011-07-28). Smith and Hogan’s Criminal Law (p. 7). Oxford University Press. Kindle Edition.

Shaw v DPP,45 in which Lord Simonds asserted that: there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state; and that the King’s Bench was the custodian of the morality of the people and had the superintendency of offences contra bonos mores. ‘Lord Devlin, regarded Shaw’s case’, as settling ‘for the purpose of the law that morality in England means what twelve men and women think it means – in other words it is to be ascertained as a question of

fact’.46 Subsequently, however, the particular rule of law that caused the Wolfenden Committee to formulate its general principle 47 – that homosexual conduct between consenting male adults is an offence – was repealed by the Sexual Offences Act 1967. The House of Lords also repudiated the suggestion that it has power to extend the criminal law to enforce good morals.48 The debate is echoed in more recent times with the question of what levels of harm or injury a sane adult might consent to in the course of consensual sexual sadomasochism. The issue divided the House of Lords in the case of Brown,49 prompted two Law Commission Consultation Papers and provoked a torrent of legal academic writing.50

This is I find out a Long running dispute in Legal Academia.

David Ormerod (2011-07-28). Smith and Hogan’s Criminal Law (pp. 9-10). Oxford University Press. Kindle Edition.

David Ormerod (2011-07-28). Smith and Hogan’s Criminal Law (p. 9). Oxford University Press. Kindle Edition.

 

Husak in his work Overcriminalisation.67 ( I now have this book. This complements John Cooper QC on ‘Too many Laws’ part of the same thing)

David Ormerod (2011-07-28). Smith and

Hogan’s Criminal Law (p. 11). Oxford University Press. Kindle Edition.

So extensive is the problem of criminalizing by secondary legislation that the Law Commission recently proposed that no new criminal offence making provision should be created otherwise than in primary legislation.21

David Ormerod (2011-07-28). Smith and Hogan’s Criminal Law (p. 18). Oxford University Press. Kindle Edition.

Ministerial statements. It has been suggested that it is not permissible to use the doctrine in Pepper v Hart24 and refer to the parliamentary debates to enlarge the scope of liability, according to Thet v DPP.25 However, in Tabnak,26 Lord Philips CJ, again giving the

judgment of the court, qualified, obiter, what had been said in Thet v DPP:27 the inappropriateness of reliance on Pepper v Hart, by the prosecution to admit parliamentary material in a criminal case as an aid to statutory construction may not have the same force where a defendant in a criminal case seeks to rely on parliamentary material. The criminal courts’ use of Pepper v Hart continues to be rather unorthodox.28

Drafting of Legislation. How well or badly. Parliamentary intent. How amenable the Government is to Judicial scrutiny?  Failing Grayling example of legally reckless Government.

David Ormerod (2011-07-28). Smith and Hogan’s Criminal Law (p. 18). Oxford University Press. Kindle Edition.

2.5.2.1 Definition and interpretation In terms of definition of crimes, the greatest impact might be under Art 7, which proscribes retrospective criminalization. Article 7 has been interpreted so as to prohibit vague criminal offences, as well as those that are truly retrospective.

From what I have learned on #SaveUKJustice Twitter.  You don’t usually admit  Bad Character Evidence unless it is absolutely needful. Previous Offences ? don’t come into the picture as the Current? Offence is the one being tested for Evidence in the  Trial as a matter of due process. Innocent until proven guilty beyond reasonable doubt?

Article 7 provides: (1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. (2) This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognized by civilized nations. The European Court held in Kokkinakis v Greece,68 and has reiterated many times since, that: Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for

instance by analogy . . . it follows that an offence must be clearly defined in the law.

It would help if all the Criminal Law Legislation was codified into one document instad of being scattered all over the place which causes problems. Clear drafting etc, proper debate and parliamentary scrutiny are all integral to the process as well as public debate.

References

David Ormerod (2011-07-28). Smith and Hogan’s Criminal Law (p. 24). Oxford University Press. Kindle Edition.

David Ormerod (2011-07-28). Smith and Hogan’s Criminal Law (p. 24). Oxford University Press. Kindle Edition.

David Ormerod (2011-07-28). Smith and Hogan’s Criminal Law (p. 24). Oxford University Press. Kindle Edition.

David Ormerod (2011-07-28). Smith and Hogan’s Criminal Law (p. 18). Oxford University Press. Kindle Edition.

This entry was posted in Chunky Mark Non Lawyers, Save UK Justice Campaign, Teaching myself Law until I am able to get to law school and tagged , , , , , . Bookmark the permalink.

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