How and why some Conduct is Considered Unlawful

In order to understand unlawful conduct it is important to know the differences between civil and criminal law and fault. Factors which influence why conduct is considered unlawful and how conduct is labelled as unlawful will be looked at in depth in following paragraphs. For the purpose of this essay unlawful conduct may be defined as any conduct that is forbidden by law. There are fundamental distinctions between civil and criminal law. In civil law a private party, known as the claimant, initiates the lawsuit and remedies available rarely end up with incarceration. The remedy, if the claimant is successful on his or her litigation usually involves payment of compensation, also known as damages by the defendant. The burden of proof in civil law normally rests with the claimant. The standard of proof is based on the balance of probabilities, meaning there must be greater than a fifty per cent chance in either the claimants or the defendants evidence. This is also known as the preponderance of evidence. In criminal law a range of sanctions are at the disposal of the state ranging from community punishment through to incarceration. The lawsuit in criminal proceedings is initiated by the Crown Prosecution Service (CPS) on behalf of the state. The burden of proof lies with the state, with the defendant being innocent until proved guilty. This presumption of innocence is based on the legal inference that most people are not criminals. The standard of proof is beyond reasonable doubt. Whilst it is difficult to quantify this term, the prosecution must establish that there must be no reasonable doubt in the mind of a reasonable person that the defendant is guilty. This higher standard of proof is required due to the more severe nature of sanctions that may be applied. Fault in civil proceedings was generally established through the tort of negligence in Donoghue v Stevenson [1932] AC 562 and was summarised by Lord Atkin who stated that “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”. In establishing liability for fault in criminal wrongs, two basic elements are needed to establish liability. The Actus Reus, a Latin phrase literally meaning the “guilty act” by which the defendants conduct must be shown to be a voluntary and wrongful act or omission that constitutes the physical components of a crime. The second element is known as the Mens Rea, the Latin term for “guilty mind”, which establishes the state of mind of the defendant in relation to the act. Both of these elements must be proved to establish criminal liability. There are certain factors which influence why conduct is considered unlawful. Over time technological developments take place which the law may not have considered previously. Legislation is then enacted in response to these technological advances. The Digital Economy Act 2010 was enacted to protect online infringement of copyright and also updates the Communications Act 2003 and the Copyright, Designs and Patents Act 1988 amongst its provisions. This Act was introduced primarily to halt losses from internet piracy. Changes in the moral and social climate may also occur over the years. Prior to 1967, homosexual activity was illegal in England and Wales. The introduction of the Sexual Offences Act 1967 decriminalised private sexual acts between men aged 21 years or older in England and Wales. This was in direct response to changing societal attitudes to homosexuality. Protection of individuals and society from harm may also invoke legislative change. Prior to 1973 it was legal to ride a motorcycle without a crash helmet. Numerous studies have suggested that the compulsory wearing of a crash helmet reduces the chances of a traumatic brain injury. The Road Traffic Act 1972 Section 32 addressed this safety concern by introducing compulsory wearing of protective headgear for motor cyclists. Some conduct is considered unlawful due to economic reasons. Legislative change may occur on a yearly basis with the presentation of the budget in Parliament in relation to spending, taxation and duty. After presentation the budget is debated and the respective years Finance Act is passed. Current legislation is in the form of the Finance Act 2009. Enforceability of the law must also be considered. Whilst legislative change may be introduced to change antisocial behaviour, in certain instances it may contradict other forms of legislation and may be deemed as oppressive and overbearing. Current methodology to label conduct as unlawful may be introduced by law reform. Parliament may create a new Act, reacting to public and media concern creating or amending an offence. The Animal Health Act 2002 was created in response to the foot and mouth outbreak in 2001 and gives a greater ability to deal with animal disease outbreaks. The judiciary also play a role in law reform through statutory interpretation. This is evident in the case of R v R [1992] 1 AC 599, whereby the House of Lords removed a long standing misconception and gave true meaning and effect to the law overruling previous decisions that refused to recognise spousal rape. The European Court of Human Rights (ECHR) also influences law reform. In the case of S and Marper v UK (Application nos 30562/04 and 30566/04) the Grand Chamber ruled that indefinite retention of DNA samples for unconvicted persons was a violation of Article 8 of the Human Rights Act 1998. This decision has highlighted a need for Parliament to change domestic law. The Law Commission is an independent body established in 1965 whose role is to research areas of law that have been criticised and propose legislative change via a consultation paper. An example of the Law Commissions influence in law reform was the introduction of Law Reform (Year and a Day Rule) Act 1996 abolishing the common law principle that a death was conclusively presumed not to be murder if it occurred more than a year and a day since the causative act or omission. Advisory Committees ensure improvements are made in the law. These may be the Criminal Law Revision Committee or Royal Commissions which were instrumental in the introduction of the Theft Act 1968 and the Police and Criminal Evidence Act 1984 respectively. Green and White Papers outline proposals for legislative change and are open to public consultation. Green Papers may contain alternative policy options inviting public comment whilst White Papers are more detailed. In summary, distinctions exist between civil and criminal unlawful conduct. Unlawful conduct has differing burdens and standards of proof. Fault liability and available sanctions differ, dependant on whether the unlawful conduct was of a civil or criminal nature. The reasons why conduct becomes unlawful is due to influences from factors such as technological developments, social change, protection of individuals and society from harm, economic reasons and law enforceability. The rationale as to how conduct may be labelled unlawful is influenced through law reform. This is primarily driven by Parliament, the judiciary, ECHR, the Law Commission, Advisory Committees and Green and White Papers which endeavour to keep the law both relevant and contemporary in modern society. (1196 Words) [1]

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