Crime and law relationship test

Causation (law) - Wikipedia

crime and law relationship test

in the Bible and the criminal law, is not at all clear and has traditionally .. ment of the "good and evil" test and the close jurisprudential relationship between the. The criminal law sets out both crimes and punishments, which are designed to align with each other. This lesson defines criminal punishment. relationship. The erroneous assumption-often unconsciously made- that the test of causation must be the same in all these areas of criminal law, notwithstanding .

Section 3 describes the data analyzed and the empirical strategy employed. Section 4 presents the results, and Section 5 concludes with a discussion of the implications and directions for future work. A touchstone of community prosecution is its contrast with the traditional model of prosecution under which mostly reactive prosecutors devote their energies to the use of adversarial legal process Jacoby, The prosecutor is resource-constrained in that she cannot prosecute all violations of the law that police have detected, and she must choose a small subset for prosecution.

Prosecutorial discretion in this setting consists of weighing factors, such as the seriousness of the offense, the sufficiency of the evidence, and the equal treatment of similar defendants, in deciding whether to prosecute, whether to offer a plea bargain, and how generous that bargain should be. The success of traditional prosecutors is usually assessed with metrics such as the rates of cases pursued, percentage of convictions obtained, and average sentence lengths.

Indeed, most of the empirical literature on prosecutors has focused on these outcomes Coffee et al. The economic model of prosecutors, which imagines expected sentence lengths as the objective of their constrained optimization, draws heavily upon the traditional account Landes, ; Reignanum, Community prosecution contrasts with the traditional approach in that it seeks to involve neighborhood residents in identifying local public safety priorities and in developing and implementing strategies to address them.

It also emphasizes efforts to prevent crime ex ante rather than relying exclusively on ex post punishments. The community prosecution strategy does not offer a fixed set of programmatic initiatives or organizational and managerial changes for securing community engagement. Any estimates of community prosecution's impact, however well identified, may not have external validity. Despite these limitations, several functionally and geographically specific changes to prosecutorial work are paradigmatic of community prosecution.

The first element is the definition of a target area, the set of neighborhoods or a geographic territory that are the subject of the change in prosecutorial strategy. Often, the community prosecutor is located in an office within the target neighborhood rather than in the central courthouse. The purpose of a local office is to facilitate communication with the community and even to permit residents to walk in and voice concerns directly to prosecutors.

The community prosecutor learns the neighborhood's priorities and enlists its support primarily by developing relationships with various neighborhood associations, such as business, school, and resident groups. Representatives of these organizations are sometimes assembled into a formal advisory board, and the board may also include representatives from other governmental units, such as the police and social welfare agencies.

While the community prosecutor receives information and advice from the board, she retains final decision-making authority. When a community prosecutor selects a case for prosecution, she may take responsibility for shepherding it through all steps of the criminal process, from indictment to trial and sentencing, rather than specializing in handling many cases at a single stage of the criminal process.

Community prosecution's emphasis on preventing rather than punishing crime typically implies that a community prosecutor often attempts to address broader causes of offending rather than relying exclusively on criminal prosecutions to reduce crime. Examples are nuisance suits and civil enforcement of local health and safety ordinances in order to close drug houses.

A community prosecutor may attend or even help design youth intervention programs. Occasionally, she may mediate disputes in the neighborhood.

Frequently, she employs her knowledge of and access to other agencies to marshal resources and coordinate governmental responses to problems identified by the community.

Advocates of community prosecution generally leave undefined the goals that the restructuring of prosecutorial work is intended to accomplish.

crime and law relationship test

Yet, community prosecution's emphasis on public safety makes crime rates plausible metrics of its performance. The disordered environment leads to more serious offending. The theory translated into at least two specific policy proposals: To date, cities have been quicker to adopt some form of community policing. Yet, there are other potential mechanisms through which community prosecution could influence crime.

From an economic perspective, community prosecution may facilitate the acquisition of more accurate information and thus allow a more effective allocation of prosecutorial resources. It may do this in several ways. The placement of a prosecutor, who was previously located in a remote courthouse, in the neighborhood may lower a resident's cost of providing information.

Residents may perceive prosecutors as more trustworthy than police and thus may be more forthcoming. Residents and even local beat officers may have greater confidence that a prosecutor focused on the neighborhood rather than mass-processing a large volume of cases is more likely to act upon any information provided. Hence, the test is hybrid, looking both at what the defendant actually knew and foresaw i.

So if, for example, the plaintiff unexpectedly contributed to the extent of the loss suffered, that additional element would not be included in the damages award even though the plaintiff would not have had the opportunity to make this mistake had it not been for the defendant's breach.

In cases involving the partitioning of damages between multiple defendants, each will be liable to the extent that their contribution foreseeably produced the loss.

Risk[ edit ] Sometimes the reverse situation to a novus actus occurs, i. Abbott Laboratories, P. The manufacturer of the particular medication that caused the injury could not be ascertained for certain. The defendant was held liable because of the amount of risk it contributed to the occasioning of the harm. However, it does show that legal notions of causation are a complex mixture of factual causes and ideas of public policy relating to the availability of legal remedies.

In R v Miller [] UKHL 6, the House of Lords said that a person who puts a person in a dangerous position, in that case a fire, will be criminally liable if he does not adequately rectify the situation.

Evidence proving causation[ edit ] To be acceptable, any rule of law must be capable of being applied consistently, thus a definition of the criteria for this qualitative analysis must be supplied. Let us assume a purely factual analysis as a starting point. A injures B and leaves him lying in the road. C is a driver who fails to see B on the road and by running over him, contributes to the cause of his death. It would be possible to ask for a detailed medical evaluation at a post mortem to determine the initial degree of injury and the extent to which B's life was threatened, followed by a second set of injuries from the collision and their contribution.

If the first incident merely damaged B's leg so that he could not move, it is tempting to assert that C's driving must have been the more substantial cause and so represents a novus actus breaking the chain. Equally, if B was bleeding to death and the only contribution that the driving made was to break B's arm, the driving is not a novus actus and does not break the chain. But this approach ignores the issue of A's foresight. Roads are, by their nature, used by vehicles and it is clearly foreseeable that a person left lying on the road is at risk of being further injured by an inattentive driver.

Hence, if A leaves B on the road with knowledge of that risk and a foreseeable event occurs, A remains the more proximate cause. This leaves whether the test of foresight should be subjective, objective or hybrid i. Obviously, there is no difficulty in holding A liable if A had actual knowledge of the likelihood that B would be further injured by a driver.

The fault which caused the initial injury is compounded by the omission to move B to a safer place or call for assistance. But let us assume that A never averts the possibility of further injury.

The issue is now the extent to which knowledge may be imputed objectively. In Chester v Afshar [] 4 All ER HLa doctor negligently failed to warn a patient of risks inherent in an operation, specifically cauda equina syndrome. Accordingly, the doctor neither caused the injury because but for the failure to warn, the patient would still have gone ahead with the operationnor increased the risk of its occurrence because the risk was the same either way.

Yet the House of Lords, embracing a more normative approach to causation, still held the doctor liable. Lawyers and philosophers continue to debate whether and how this changes the state of the law. Believing that the victim had sexually interfered with his year-old daughter, the defendant attacked the victim with a Stanley knife. The defendant argued that the chain of causation had been broken because, two days later, the victim had committed suicide either by reopening his wounds or because he had failed to take steps to staunch the blood flow after the wounds had reopened spontaneously i.

It was held that the real question was whether the injuries inflicted by the defendant were an operating and significant cause of or contribution to the death. Distinctions between the victim's mere self-neglect no break in the chain and the victim's gross self-neglect break in the chain were not helpful.

The victim's death resulted from bleeding from the artery severed by the defendant. Whether the resumption or continuation of that bleeding was deliberately caused by the victim, the defendant's conduct remained the operative and significant cause of the victim's death.

  • Causation (law)
  • But-for test
  • Criminal law

Third party's inadvertent contribution R v Smith 2 QB 35 the defendant stabbed his victim twice in a barrack room brawl. Another soldier carried him to the medical centre but dropped him twice. The medical captain was very busy and failed to recognise the extent of the injuries. If the soldier had received proper treatment, he would have had a good chance of a complete recovery.

Criminal law |

Smith was convicted of manslaughter because the wound was the "operating and substantial cause of death". In hospital, he suffered pneumonia and respiratory problems in intensive care so had a tracheotomy. After two months, he died. There was some medical negligence because the tracheotomy had caused a thickening of tissue ultimately causing suffocation. In upholding the conviction for murderBeldam LJ laid down the following test: Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant.

Third party's deliberate intervention R v Malcherek 73 Cr. The victim was placed on a life support machine and, after determining that she was brain dead, the doctors turned off the machine. The defendant appealed the conviction of murder arguing that the doctors had broken the chain of causation by deliberately switching off the life support machine.

It was held that the original wounds were the operating and substantial cause of death, and that a life support machine does no more than hold the effect of the injuries in suspension and when the machine is switched off, the original wounds continue to cause the death no matter how long the victim survives after the machine's disconnection.

In R v Pagett 76 Cr. The police instinctively fired back and killed the girl. The Court of Appeal held that the defendant's act caused the death and that the reasonable actions of a third party acting in self-defence could not be regarded as a novus actus interveniens because self-defence is a foreseeable consequence of his action and had not broken the chain of causation.

Foreseeability[ edit ] Victim's conscious actions R v. Blaue [14] is a criminal law application of the " thin skull rule " in criminal law. The defendant visited the home of a Jehovah's Witness and demanded sex.

When she refused, he stabbed her four times. Some value is relational—it exists in virtue of relationships in which people stand. That a relationship has such value is a reason to do what will bring it into existence.

The value of friendship is a reason to make friends.

crime and law relationship test

The value of egalitarian social relations is a reason to break down barriers of status and rank. Some argue that we have sufficient reason to have criminal law because it helps us enter a valuable relationship: This argument can be developed as follows. Just as slaves are dependent on their masters, so we are dependent on one another in the absence of a framework of legal rights: To avoid this, we need more than just rights that exist on paper.

We need sufficient assurance that our rights will be respected, and we need a mechanism by which their supremacy can be reasserted in the face of wilful violation.

Criminal punishment amounts to reassertion. Crime prevention provides reassurance. At the level of function, this is what the last section called a mixed view. But the value of fulfilling both functions is one and the same: It is not clear why we should accept this claim. One source of doubt is the fact that some agents are unavoidably dependent—they lack the capacities required to live as independent beings. This is true of some non-human animals, and some of those with serious disabilities.

Precisely because of the capacities they lack, these agents are especially vulnerable to being abused or exploited. Ex hypothesi, this does nothing to secure independence. So it is not something that can be accommodated by the exhaustive form of the Kantian view Tadros b.

On another view, the value of criminal law derives from a relationship that pre-exists it: Any such community has values in terms of which it is understood by its members. If this self-understanding is to be more than a charade, the community must actually value its defining values—it must do what those values are reasons to do. Part of what it is for a community to value life is for it to respond to the taking: Criminal law is a body of law that requires the accounting.

Functionally, this is a version of the curial view. But the value of fulfilling that function is relational: This line of thought lends support to what I earlier called the communitarian view. On that view, criminal proceedings discharge secondary duties owed to the community as a whole. That such duties are part and parcel of a valuable form of relationship helps explains why we should think that they exist.

One objection to the view described in the previous paragraph is that it is unduly conservative. What justifies criminalizing a wrong—on that view—is that the wrong has a pre-existing foothold in the defining values of the community: Some communities, however, are characterised by systematic neglect of important values—by patriarchy, or racism, or distributive inequality.

When this is so, part of the justification for criminalization is not that it helps the community remain true to itself, but that it helps transform the community by reconstituting it in valuable ways Dempsey ; Both versions of the relational view—Kantian and communitarian—face another doubt. It is plausible to think that this wrong is of concern to the criminal law in its own right.

It is plausible to think that whatever further effects it might have, preventing the wrong of murder itself helps justify criminalizing murder, and bringing criminal proceedings against murderers. On both the Kantian and communitarian views this is not the case. What justifies criminalizing wrongs, and bringing criminal proceedings against wrongdoers, is that this contributes to some larger social good—to the framework of legal rules we need for independence, or to the community remaining true to itself.

We may reasonably doubt that wrongs like murder matter to the criminal law only for these further reasons.

crime and law relationship test

The above remarks concern the kind of value that justifies having criminal law. We can also ask who is capable of realizing that value. If that value is to be realised, someone must act on behalf of those who stand in the relationship. In most systems of criminal law, the job is done by the state—agents of the state create, apply, and enforce criminal laws.

Some argue that in a legitimate system of criminal law this is the only possibility. This view can be developed in a number of ways. Consider again the Kantian view. Some claim that coercion secures independence only if the coercer speaks for all those coerced.

Otherwise it is just another independence violation. Only state agents can speak for all of us. So the enforcement of the criminal law must remain in their hands Thorburn a, 98— Defenders of the communitarian view tell a similar story. On both views, it is impossible for private persons to realise the values that justify criminal law. If these arguments go through, they have obvious implications for debates about the privatization of prison and police services Dorfman and Harel They also offer us a sense in which criminal law theory must be political.

It must face up to the question of whether there are essentially public goods, and ask what role they play in justifying the existence of criminal law Harel96— Consider the prevention of harm, or the prevention of moral wrongdoing. A number of writers appeal to one or both values to justify the existence of criminal law Feinberg—; Alexander and Ferzan17; Simester and von Hirsch29— Because there are wrongless harms think of sporting injures caused without foul play and harmless wrongs think of botched conspiracies or undiscovered attempts the aforementioned values do not always wax and wane together.

A third possibility is that harms and wrongs provide two independent sources of general justification compare Tadros— Whatever the answer, this preventive value is impersonal in two ways: It is worth distinguishing between two versions of this view. According to Moore, all culpable wrongdoers incur a duty to allow themselves to suffer.

Retributive justice is done when punishment imposes that suffering, and this is what justifies the imposition of criminal punishment Moore70— Moore argues that the suffering of culpable wrongdoers is intrinsically good. On a rival view, suffering is always intrinsically bad. We must accept, however, that in some cases not all suffering can be avoided.

Sometimes we must choose between wrongdoers suffering now and others suffering at the hands of wrongdoers later. Only by imposing the former can we protect against the latter.

It might look as though punishing wrongdoers for these protective reasons amounts to treating them as mere means. But this is not necessarily so. Tadros argues that some wrongdoers incur duties to protect others at the cost of some harm to themselves. We can justify imposing punishments that come at this cost to these wrongdoers, when the punishments protect others by preventing future wrongs. As those punished are only doing their duty, we can reasonably claim that they are not treated as mere means Tadros c; Though Moore and Tadros disagree on many things, their views also have something in common.

The value to which both appeal to justify punishment is impersonal: General justifications of criminal law like those sketched in the last few paragraphs face a number of criticisms. One objection has it they are unduly expansive: But as the failure is a private matter—to be resolved by the friends themselves—there is no reason for law-makers to criminalize the wrong Duff b; Husak— There is certainly no reason for them to criminalize it when the friends are both citizens of another state, and the failure occurs in the other jurisdiction Duff Reasons to criminalize exist, as it is often put, only where law-makers have standing.

And the mere fact that a wrong generates the aforementioned secondary duties does not itself give law-makers standing to criminalize it. According to a second objection, the focus on moral wrongdoing is unduly restrictive: According to one argument for this conclusion, the stable existence of almost any valuable social institution—be it financial, educational, familial, military, or political—depends on widespread compliance with its rules. Under realistic conditions, criminal liability for violation is necessary for stability.

It is the value of stable institutions, not the moral wrongfulness of violating their rules, that justifies bringing criminal law into existence Chiao A third objection returns us to the asymmetry discussed at the end of section 1. Many of the powers and permissions by means of which criminal justice is done are withheld from private persons.

Most obviously, private persons are not typically permitted to use force to punish others for crime. Few think that this should be changed. Vigilantism should remain criminal. If the values that justify having criminal law are essentially public, we appear to have an easy explanation of this fact: If those values are not essentially public, things are more difficult.

Let us take the third objection first. If impersonal values justify having criminal law, we have reason to opt for whichever set of legal rules will realise those values most efficiently. If one set of powers and permissions will achieve more of the value in question at a lower cost, we should—all else being equal—opt for that set. Now compare two sets of rules. One permits state officials and private persons alike to use force to punish criminals.

Theories of Criminal Law (Stanford Encyclopedia of Philosophy)

Another withholds the permissions granted to the former from the latter. We have good reason to think that the first set of rules would bring with it significant costs. Private persons are likely to make more mistakes about who committed crimes, and about how much punishment is appropriate for criminality.

Different private punishers are unlikely to punish similarly placed offenders in similar amounts. And as their actions are less easily subjected to public scrutiny, private persons are less easily compelled to punish for the right reasons—in order to do justice rather than settle scores, get revenge, or maximise their profit margins Moore a, 42; Edwards forthcoming.

Avoiding these costs is a strong reason to opt for the second set of rules. True, that set prevents proportionate punishment being imposed by our imagined moot court.

But it is plausible to think that this benefit is outweighed by the aforementioned costs. If it is, those who appeal to impersonal values to justify criminal law can explain why the moot court is not permitted to force us to give up our money. According to the second objection, what justifies having criminal law is its role in stabilizing valuable institutions. By preventing these wrongs, and holding wrongdoers responsible, we stabilize the institutions. The contrast between a general justification focused on moral wrongdoing, and one focused on institutional stability, therefore turns out to be a false contrast Tadros These observations help make a more general point.

We can accept that criminal law is a tool properly used to support financial, educational, familial, military, and political institutions. If this kind of general justification is not too restrictive, is it nonetheless too expansive? This was the first of the three objections raised above. We need not infer that criminal law is unconcerned with moral wrongness. We need only accept that there are facts about criminalization which give law-makers a duty not to criminalize some moral wrongs.

There are many such facts, and their force varies depending on the wrong Simester and von Hirsch—; Moore In some cases, criminalizing a wrong will inevitably result in selective enforcement, raising concerns about selection being made on discriminatory grounds.

In others, enforcement would necessitate gross invasions of privacy, and require the law to take sides in conflicts better resolved by the parties themselves. There is often value in freely choosing not to act wrongly, and in so choosing for the right reasons, rather than because one was coerced: It will almost inevitably divert scarce resources from other valuable priorities. And there is often reason to think that criminalization will not result in there being less wrongdoing in the world.

Criminal conduct may be driven underground rather than made less common. Institutions of punishment may house unseen abuse and victimization.

Ex-offenders may be driven towards crime by their reduced prospects in life. Where reasons like these generate a duty not to criminalize a wrong, the conduct in question is no business of the criminal law.

The Limits of Criminal Law No-one denies that some things should not be criminalized. What is less clear is how we are to work out what these things are. One approach is to seek constraints on permissible criminalization. Even if the values that justify having criminal law count in favour of criminalization, our reasons to do so may be defeated by reasons that count against.

A constraint identifies conditions under which the latter reasons always win.

crime and law relationship test

Consider, for example, the wrongfulness constraint: Principles like W give us a line we can draw without reference to at least some morally salient particulars. Conduct that falls outside the line may not be criminalized come what may. Imagine we are considering whether to make it a crime to possess guns. Doing so will prevent a great deal of harmful wrongdoing that cannot be prevented otherwise. This is a powerful moral reason to criminalize. But if W is sound, and gun possession is not morally wrongful, that powerful reason is irrelevant to the decision with which we are faced.

We are not permitted to criminalize, however much harm criminalization would prevent Moore72—73; Simester and von Hirsch22—23; Duff b, — Some suspect that all purported constraints on criminalization fail Duff et al44—52; Tadros91— This is not to say that anything goes.

It is rather to say that we cannot use a line like that drawn by W to work out what is permissibly criminalized. To trace the limits of the criminal law, we must engage in a more complex normative exercise: The limits of the criminal law cannot be traced in advance of this exercise.

Instead, they are determined by it. The constraint to which most attention has been paid is the so-called harm principle. It is nowadays widely recognised that there is no single such principle. Rather, there are many harm principles Tadros a; Tomlin b; Edwards These principles have very different implications. That conduct is harmful, or unreasonably risks harm, does not show that we will prevent a proportionate amount of harm by criminalizing it.

Conversely, we may be able to prevent harm only by criminalizing conduct that is harmless, and that does not unreasonably risk harm. To see the first point, consider the use of drugs. Criminalizing use may turn a drug into forbidden fruit that is more attractive to potential consumers, and place production in the hands of criminal gangs who make consumption ever more harmful.

Users may become less willing to seek medical treatment for fear of exposing their criminality, and may end up with criminal records that lead to social exclusion, and damage their employment prospects for years to come United Nations Where criminalization does have these effects, the harm it does is out of all proportion to any harm prevented.

To see the second point, consider the possession of guns. Possessing a gun is not itself harmful. And many possess guns without unreasonably risking harm. If one endorses HPPthings are different.

crime and law relationship test

What matters is not the effect of each instance of gun possession, but the effect of criminalizing all of them: To apply W we need to know what makes something morally wrongful. But while this is necessary, it may not be sufficient. I have decisive reason not to go out in the rain without my umbrella. But it does not seem morally wrongful to do so Tadros11— Whatever the correct criterion, we must ask how law-makers are to apply it. We must also ask whether just any morally wrongful act will do.

Some wrongful acts also violate rights, such that those who commit them wrong others. Some crimes are mala in se—they criminalize conduct that is morally wrongful independently of the law. Most crimes are mala prohibita—they criminalize conduct that, if morally wrongful at all, is morally wrongful partly in virtue of the fact that it is unlawful.

Is W compatible with the existence of mala prohibita? That depends on the extent to which changes in the law can produce changes in morality. The rules of the road are the classic case. Apart from the law, it is morally wrongful to drive dangerously.

Such conduct is malum in se. What we should do to conform to this moral norm is not always obvious. To help, the law puts in place rules that tell us which side of the road to drive on, when to stop, and how fast we may go.

Imagine we obey these rules. In doing so, we drive more safely than we otherwise would have: One proposal is that it is morally wrongful to violate legal norms that have this effect: Mala prohibita of this kind would then be compatible with W. Of course, things are not so straightforward. Even if legal conformity generally improves our moral conformity, there may be exceptional cases in which it does not—in which we can violate the rules of the road without putting anyone in danger, or in which violation helps keep everyone safe.

And there may be people for whom even the generalization is not true—whose expertise enables them to systematically violate legal norms without creating risks any greater than those created by the rest of us.

Theories of Criminal Law

Can an explanation be given of why these violations are nonetheless morally wrongful? If not, W implies that even morally beneficial mala prohibita—like the rules of the road—must ultimately be removed from the criminal law Husak—; Simester and von Hirsch24—29; Wellman Most views are comparative: One challenge is to identify the relevant baseline.

Are we harmed by an event if we are worse than we would have been if things had been different? If so, different how? Are we harmed if we are worse off than we were immediately beforehand? Or should we focus not on the position we were or would have been in, but on the position we should have been in morally speaking Holtug ; Tadros—?

A second challenge is to determine in what way we must be worse off. The wider our answer to this question, the more likely it is that harm principles collapse into their supposed rivals. Some say we are harmed when our interests are set back Feinberg31— But it is plausible to think that we have interests in avoiding disgust, annoyance, and dismay. Many people are disgusted, annoyed, or dismayed by what they take to be morally wrongful. On an interest-based view, they are also harmed.

Any harm principle that uses this notion of harm thus threatens to permit criminalization of much conventional immorality Devlin A narrower view has it that we are harmed only if our future prospects are reduced, because we are deprived of valuable abilities or opportunities Raz—; Gardner3—4; Simester and von Hirsch36—