Download Criminal Law by Jonathan Herring MA, BCL, Marise Cremona BA, LLM (auth.) PDF

By Jonathan Herring MA, BCL, Marise Cremona BA, LLM (auth.)

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4) Special defence Although the defendant had the required mental state, he may claim that nevertheless he is not to be blamed because he had a particular defence. These defences arise when the circumstances of the offence lessen or remove any blame the defendant would otherwise face. For example, he was acting in self-defence, or had been threatened with death or serious injury if he did not commit the crime. Although we have discussed harm and culpability separately, they are in fact closely linked.

It is necessary to calculate the severity of the harm an act has caused. This is important for two reasons. First it is used to determine whether certain conduct is sufficiently harmful for it to be criminalized, and secondly to decide the hierarchy of offences. Generally the more harmful the conduct, the more serious the crime, and the higher the sentence is expected to be. But how we grade harm is controversial and difficult. From one perspective it is an impossible task as the victims' circumstances and perceptions vary from crime to crime.

One theory is reformation - that the goal of punishment should be to reform the criminal so that he will not commit a crime again. Another is detelTence - that the criminal himself and other potential criminals will be discouraged from committing a crime through fear of punishment. A further theory is incapacitation - that the criminal should be prevented from committing a crime, typically by imprisonment. The dominant theory at present appears to be )ust deserts' or retribution. This theory is that a defendant should be punished in proportion to their blameworthiness, and is the main philosophy behind the Criminal Justice Act 1991, which is one of the main statutes governing sentencing.

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