1.) Introduction to Criminal Law Principles 1.1 Criminal Law Principles In the ever expanding growth of the criminal law system, the role of criminal law principles and philosophical arguments have play an important role to the judges in their final decision for criminal and non-criminal proceedings to deliver fairness and justice for the interest of individuals as well as the public. To build on this idea is the basic application of the criminal law principles in case law. It can be said that these principles help shape the foundation of case laws and are tools for defining and evaluating the reasoning behind the rulings of judges . Thus, based on this understanding the following cases will be critically analysed on the application of legal …show more content…
And went on to state that in the current era of modernisation marriage is regarded as partnership of equals and that a wife is not a subservient chattel of the husband. Moreover, towards the viewpoint of a reasonable man the concept of marital rape exemption will be an absurdity to the law. It could be argue that in the decision of the courts in R v R, the judges took a retrospective approach to the case and allowed criminal sanction for a husband to rape his wife. The courts had also confirmed this view in the case of R v Miller. The case of R v R has also bought profound effects to the development of the law in the case of CR v United Kingdom , where the appellants argued that there was a breach of Article 7 of the Convention which the European Courts of Human Right held that to convict under the circumstances of rape is not in accordance with Article 7 of the Convention. Moreover, to discard the idea that a husband could rape his wife goes against the fundamental objectives of the Convention which is the principle of human dignity. 2.2) Application of Theoretical …show more content…
As we can see R argue that it wasn’t possible for a husband to rape his wife and it also laid down in the English common law but by applying the welfare principal it has become a mechanism to also criminalise the conduct of R when he attempted to rape his wife which has allowed the development of the law by repealing old laws. 3.) R v Brown  2 All ER 75 In the case of Brown, the appellants who were a group of consensual sadomasochist engaged in acts of violence towards each other to obtain sexual gratification. The appellants were charged under s20 and s47 of the Offence Against the Person Act 1861 (OAPA 1861) . The appellants proceed to argue that there was consent among the appellants as a defence against their conviction that they have consented to the bodily harm. 3.1 Legal Reasoning of the Courts The issue arose whether or not consent is a valid defence against the harm that was inflicted between the appellants in private. With this defence of consent, the House of Lord had to consider the following situation where D harms V, does the prosecution have to prove that V has a lack of consent towards the harmful act of D before convicting D of OAPA 1861 under s20 and
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Although the New England Indians felt that law and justice were, “a personal and clam mater and did not involve a third party of an impersonal public institution or ‘state’” (p. 67), the law of England defined murder as, “an offence against the state, not a private matter between two groups of people” (p. 70), thus the jurisdiction of the General Court was fair to the defendant’s case.
Keeping the facts of the case in mind the accused was aware of her husband’s tendencies towards acting angrily and impulsively, Creakle’s rage at Esther’s departure was further fueled by their prior argument. After she told him to “go away” the reasonable person would believe that if she could no longer see him he had taken heed to her advice. Knowing the nature of her husband Esther was cautious and double checked to confirm he had left, due to her restricted visibility she was unable to see him. In this situation, her actions did not fall below the expected standard of care as she was cautious towards the outcome and took steps to ensure Creakle’s safety. As was ruled in Beatty (2008) if a reasonable person holding the knowledge of the accused, could not have foreseen the consequences of their actions they are not morally blameworthy, and therefore lack the mens rea necessary for the criminal offence (Verdun-Jones, 2015, p.120)
The case of R. v. Schoenborn is a troubling case involving the death of three children and the defence of not criminally responsible on account of mental disorder. This defence must be critically analyzed along with the evidence and expert opinions as it could absolve the accused of the charges. As well, the precedent that the verdict provides is critical to the legal system and its future implication and thus give the decision more importance. After a thorough examination of the facts, it is evident that the verdict of the Supreme Court of British Columbia is correct and reflects the administration’s objectives and beliefs. This will be demonstrated through the application of legal principles and elements.
To measure if justice was achieved, the case must be reviewed with the three main characteristics of justice, Was it fair? Was it equal? Did both parties have equal access? with further analysis of the back story, charges and both parties cases considered with the characteristics of Justice an educated decision can be made whether the case R v Loveridge  NSWSC 1638, achieved Justice Kieran Loveridge was convicted by the courts for an unprovoked attack on 18- year old Thomas Kelly at Kings Cross and assaults on Rhyse Saliba, Aden Gazi, Marco Compagnoni and Matthew Serrao. Kieran Loveridge was also found as intoxicated through the process of the assaults although there is no legitimate proof on how much Kieran Loveridge consumed, but
This paper discusses the case of The Queen v. Dudley and Stephens from November 7th, 1884 and the verdict that was reached by the judges who tried this case. Through thorough analysis of the texts it is clear that the final judgement, which was that Thomas Dudley and Edward Stephens was guilty of the murder of a fellow sea man, followed a method that examined both sides to the case to reach a verdict that seemed the most suitable and justified; in other words, Ronald Dworkin’s method of interpretive adjudication was followed, but due to the moral analysis of the laws and the situation it is evident that the method was not consistent with Hart’s legal positivism. The facts of the case and an explanation of the relevant theories are described below. The Queen v. Dudley and Stephens case was tried by Lord Coleridge along with others, that convicted Thomas Dudley and Edward Stephens of the murder of one Richard Parker at sea, in 1884.
Also, it could be said that the case of Ghaidan v Godin-Mendoza opened the floodgates and its decision helped future case where it concerned human rights especially section 3 of Human Rights Act 1998. For instance, in the case of Nutting v Southern Housing Group Ltd , the claimant and the defendant formed a homosexual relationship. However, their relationship was volatile and Mr Roberts stated that it has ended. Then he died and the association brought possession proceedings against the defendant, which he defended on the ground that he was entitled to succeed to the tenancy under Housing Act 1988, s.17. The court set out the test to be applied when determining whether a person applying to succeed to an assured tenancy had been the deceased tenant's "spouse".
Supreme Court heard and ruled 7 to 2 decision it was unconstitutional to impose a death punishment on someone for rape. The court reasoned that punishments violate the Eighth Amendment of the are “excessive in relation to the crime committed”, that determination about excessiveness are properly informed by the “country’s present Judgement” and that the Georgia law could not survive this type of inquiry because no other state subjected persons convicted of the rape of an adult woman to execution. Moreover the Court explained the Eighth Amendment bars not only those punishments that are “barbaric” but also those that are “excessive” and unconstitutional if it makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering, or is grossly out of proportion to the severity of the crime (pp. 433 U.S. 591-592). ‘The death is disproportionate penalty for rape is strongly indicated by the objective evidence of present public judgement, as represented by the attitude of state legislatures and sentencing juries, concerning the acceptability of such a penalty, it only State authorizing the death sentence, it appearing that Georgia is currently the only state authorizing the death sentence for rape of an adult woman, that it is authorized for rape in only two other states, but only when the victim is a child, and that in vast majority of rape convictions in Georgia
Sexual assault laws have been amended and created over time to ensure the criminal justice system remains sensitive to the tribulations involved in rape trials for the victim. However, the connotative capacity of language used in evidentiary testimonies in rape trials can defeat the purpose of these reforms as ‘language is not merely a means of putting forth evidence in a case, but it in fact transforms the nature of evidence itself, thus influencing the outcome of the case’ (Maheshwari 2014:1). As theorised by Bourdieu (1982) symbolic power as ‘the power to create reality through language’ (Matoesian 1995:38) is successfully employed in rape trials to instil patriarchal and legal domination over the victim. The use of language in courtroom
The three tiers of scrutiny in equal protection cases have its pros and cons. First, the tiers of scrutiny aid the Courts in the decision making process that are used to as guidelines for consistency in “complex task of adjudication or lawmaking” or to “facilitate adjudication by providing off-the-rack decision rules” . (Stearns; Huq 577). Additionally, due to the establishments of stable and predictable definitions, the three tiered of scrutiny provide financial advantages by decreasing decision costs as well as expedite legal proceedings (Huq 577). On the other hand, a disadvantage of applying the tier of scrutiny is the method of application, the Courts approaches are inconsistent, thereby the results are also inconsistent (Stearns).
In a democracy, the rule of law defends the rights of citizens, upholds order, and bounds the power of government. All people are equal under the law. The rule of law. Martin Krygier, Professor of Law at the University of New South Wales, argues that there are four essential principles underlying the rule of law. They are universality of the scope of the law, clarity for all citizens, supportive and culturally appropriate institutions and an appropriate legal culture.
The feminists change these traditional views about rape and now rape is considered a crime against the victim itself (Feminist Perspectives on Rape, 2009). Burgess & Jackson (1996), argue that the fines or the compensations ware paid to the father or to the husband for the raped woman (Burgess & Jackson (1996) cited in (Feminist Perspectives on Rape, 2009). Another example is the marital rape. It is not a crime when a man forces his wife to have sex, because the woman is his property. Moreover, women who were not the property of a man, like prostitutes, and being raped, was not an important issue, because no one was harmed by their rape.
The willingness of the victim to commit an offence upon him or her makes the offender legally stronger. The consent of the victims whom the law intended to protect encourages the offender. Victim solicitation even more than victim’s consent, confers on the act a kind of legitimacy
 Common law works in a different way, the judges rather than the Parliament make common law or ‘judge-made law’. Considering criminal and civil cases, the judges take decisions based on the stare decisis principle (Latin “to stand by things decided”, the legal principle of determining points in litigation according to precedent ), deliver rulings and create precedents, thus applying the law to real life situations. Therefore, the value of the precedent is very high in the English Common Law system. The strengths of common law
These 6 cardinal principles are: (i) Judicial Deference; (ii) Classification of offences; (iii) construction of criminal liability: element of offences and defences; (iv) Significance of maximum penalties; (v) ease of proof and peculiar knowledge; and (vi) presumption of innocence. Each of the principles influences the courts on examining the reversal burden differently. Judicial