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To what extent is it justifiable to deviate from fundamentals principles of criminal Law by creating driving offences of strict liability in the interests of maintaining road safety ?

By HugoArzel Feb 16, 2014 1873 Words
To what extent is it justifiable to deviate from fundamentals principles of criminal Law by creating driving offences of strict liability in the interests of maintaining road safety ?

Introduction :

Road Safety Act 2006  After creating two more offences under the Road Sagety Act 2006 of causing death by careless driving and causing death by driving uninsured, disqualified or uninsured, the Government justified those new driving offences by saying that ‘[t]he whole purpose of such legislation is to ensure that we take greater care and that we avoid dangerous driving’1 In order to adress this question, one has to appreciate the basic rules relating to Criminal Law, and more precisely to the creation of strict liability offences in order to maintain society safety. Moreover, one should consider the essential principles which would be minimized with the creation of strict liability offences. Criminal Law is a formal system of written law which establishes guidelines to govern human behaviour. It can be boiled down to answer two questions : What behaviour deserves criminal punishment ? And also, what is the appropriate punishment for criminal behaviour ? Criminal law is one kind of social control, one form of responsibility for deviating from social norms, considered as principle. This latter is a fundamental truth or proposition that serves as the foundation for a system of belief or behaviour or for a chain of reasoning2 . For a man to be convicted of a crime, it is necessary for the prosecution to prove that a certain state of affairs which is forbidden by the criminal law has been caused by his conduct, and also, that this event was accompanied by a prescribed state of mind. So, most of the crimes will require proof of mens rea, which is the fundamental mental element. But the difficulty that one should appreciate in this subject is the interrelation that can exist between criminal law and offences in which the state of mind of the defendant does not acquire an important place. In order to define those kind of criminal offences, there is a tendency to use the word strict liability to refer to a broad range of divergent ways in which a criminal offence might be deficient in moral content. Imposing driving offences of strict liability would significate that you deviate from the Principle of Minimum Criminalization, coupled with the Principle of Proportionality. As it is clearly stated in the paragraph 27 of the judgement of R v Hughes3, the Parliamentary sovereignty would allow the Parliament , if it has chosen to do so, to legislate contrary to fundamentals principles of Human Rights. This essay will seek to illustrate until which point can the Parliament create new strict liable criminal legislation so as to prevent issues related to road safety. (What am i going to tell them in this essay : mes parties). Should the Law, constantly reformed, should create new rule to punish unintentionnal crimes ? After reading this essay, one should be able to answer this endlessly debated question.

I. Why should criminal law enforce some driving offences of strict liability to maintain road safety ?

Ashworth’s principled objective of the criminal law should be its utilization to censure person for substantial wrongdoing. In fact, Criminal Law seeks to enforce moral values, to punish those who deserve punishment and to educate people about appropriate conduct and behaviour. The government of the day possess the power to draw the limits of the criminal law, and also to limit the role of jury, magistrate and judge by the statutory framework. But the main rule of the criminal law is to preserve order. In fact, in the case of R v Hughes, one could ask himslef : what would be a world where driving without a licence would not be an offence ? A licence is the representation that someone is able to drive. Thus, an individual with a licence possess a required standard of driving. (Document Karen). As profesor Herbert Packer stated, intimidation must be a potentially useful criterion, to impose strict liability offences. But, unfortunately, we do not have important information on the affirmative side of intimidation. One should by this way ask himself if it exists offences whose repetition can be shown to be inhibited by past punishment ? If we could answer this question by the positive, punishment would result to be likely to prevent the people of further crimes. As the Court of Appeal said in R v Williams4, « It may be a harsh and punitive measure with an evident deterrent element, but it is difficult to see how everything else can have been intended ». The common argument in favor of punishment is that the latter results as protection of the society, notably by actiong as a deterrent. So, the conviction of Mr Hughes for the death of Mr Dickinson would result as an example for many persons who drive without insurance or license. One should quote the arguments summed up by Thomas (1978), to impose strict liability : « The effect of imposing strict liability is not necessarily to eliminate fault as a requirement of liability, but to delegate to the enforcer both the responsibility of deciding what kind of fault will in general justify a prosecution (with the certainty of conviction) and the right to determine wether in the circumstances of the particular case that degree of fault is present. It would also allow to decrease the maddening total of 193969 injuries cause by road accident in 2012 in the United Kingdom5. To paraphrase, Parliament is free to impose strict liability as and when it wishes, the presumption of innoncence rings hollow. It is also important to consider that punishment, and conviction of murder, is an effective deterrence from re-offending. In fact, someone who has been declared guilty under section 3ZB would have his mind guilty of ‘causing’ the death of another person. Thereby, he realizes what the outcome of risk taking may be. But, that would obviously mean deviate from the principle of Minimum criminalization.

II. Principle of minimum criminalization + presumption of innocence :

English criminal justice system relies on the notion that individual are responsible for their actions. And so on, they are punished if they violated social standards6.

If we take in consideration the rationalist position, a moral fault is independent of consequence, thus they consider that an equal moral fault deserve an equal blame. One should consider the following situation in which a driver A and a driver B are involved. Both of them are driving without license, and disqualified, in reference to the section 3ZB of the Road Traffic Act 1988. But the mere fact arrives when driver A hits a car oncoming, in which the engine driver dies. It results that the crash is entirely the fault of the latter. In relation to the driver B, as a lucky man, he hits nothing and arives home safely. The rationalist position would say that both of the unlicensed drivers should have the same blame, and so if under section 3ZB, driver A is held liable, driver B should also be declared outlaw. Thus, having this new vision of the events, the rationalist position seems much more suitable to the english legal system adopting strict liability offences. To be able to deviate from fundamentals principles of criminal law, the parliament and the English legal system should ensure that everyone could be judge without discrimination and with fairness. In fact, strict liability cases apply to certain offences which can be punished regardless of the accused’s mindset, such as speeding and driving uninsured. In the example above, Driver A does not possess a mind more « guilty » than Driver B, so, they should be blame as much as the other. Moreover, as referring to the section 3ZB, and more precisely the wording, neither driver A or driver B is more liable regarding this particular section, for the risk they have both taken. In fact, it is clearly said, in section 3ZB, «causing the death », which it involves more than placing a car on a road. It requires an « element of fault » which would lead to a proof of a poor driving standard. Or, this is not the case of both driver. In this manner, one would agree with Profesor Sullivan, Profesor Simester, and Profesor Ormerod who consider that a correct construction of the section is required for it to be applicable and less uncoherent. To convict a defendant, as Mr Hughes, the general rule is that the criminal act charged must have been committed voluntarily7. But, whether or not drive a car on the road with the knowledge of being uninsured, unqualified and without license is a voluntary act is question to resolve to determine if Mr Hughes can be convicted of ‘causing’ death by driving unlicensed and uninsured. In the English justice system, the dominant justicfication for punishing individuals is that offenders have made a voluntary choice to break the law, thus validating the imposition of a societal sanction. In fact, crime is a socially constructed concept that can loosely be defined as taking a particular action with a designated mental state8, which is considered as punishable. The man convicted decided to act in this way, with the knowledge of breaking the law. By assuming that individual possess free will when they go against the legal norms and standards of society and, moreover that individual are responsible for their actions, the necessary level of culpability and blameworthiness is met. To ilustrate this vision of the fact, one could quote profesor Herbert Packer : « The idea of free will in relation to conduct is not, in the legal system a statement of fact, but rather a value preference. The law treats man’s conduct as autonomous and willed, not because it is, but because it is desirable to proceed as if it were »9. Looking at the law from this point of view, Mr Hughes was inevitably aware that he was wrong, and outlaw. With the knowledge of the risk of driving uninsured and unqualified, there is obviously from Mr Hughes a reckless driving which involves intention, so mens rea is present. This way of presenting the facts prove that the section 3ZB is not contrary to certain principles of the English legal system, as the principle of mens rea and the clear fact, that the latter has shown a preference for free will as the basis for its underlying philosophy.

III. Principle of Minimum criminalization :

Conclusion : Criminal Law involves a description of the behaviour which makes a person liableto punishment by the state, but unfortunately for the authorities, the line is not always easy to draw. The government claims that the new offences will deter dangerous and careless driving: ‘[t]he whole purpose of such legislation is to ensure that we take greater care and that we avoid dangerous driving’10. Punishment has been designed to improve people behaviour in various ways. ‘[the] primary criterion should be the risk created, taking account of the magnitude of the harm risked and the probability of its occurrence. If the harm did occur this may provide evidence which assists in assessing magnitude and probability, but resulting harm does not alter the intrinsic seriousness of the risk-taking’11. To what extent  tant qu’il respecte le principle of mens rea, pierre necesaire à la construction de criminal alw.

Société anarchique

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