Positive Obligations in Criminal Law

Abstract

1: Is the Criminal Law a Lost Cause? 1.1 Distinguishing Criminal Offences by Reference to their Content 1.2 The Procedural Distinction 1.3 The Functional Distinction 1.4 Proceedings and Protections 1.5 The Seriousness of Wrongdoing 1.6 Equal Treatment, Countervailing Interests and Differential Enforcement 1.7 Criminalisation and Sentencing 1.8 The Principled Core of Criminal Law 2: Criminalising Omissions 2.1 The Place of Omissions in the Criminal Law 2.2 The Foundations of Legal Duties 2.3 A Re-appraisal of Duty-Situations 2.4 Omissions Offences and the Rule of Law 2.5 The Contours of Omissions Liability 2.6 Omissions as Offence-Elements 2.7 What Duty-Situations Should Require 2.8 Conclusions 3: Ignorance of the Criminal Law, and Duties to Avoid it 3.1 Is Ignorance of the Criminal Law No Defence? 3.2 The Ignorance-of-Law Doctrine and the Principle of Legality 3.3 Three Different Contexts for Ignorance of the Criminal Law 3.4 What are the State's Obligations? 3.5 Some Practical Implications 3.6 Conclusions 4: Should Strict Criminal Liability be Removed from All Imprisonable Offences? 4.1 What is Strict Criminal Liability? 4.2 Reasons for Requiring Fault for Criminal Conviction 4.3 Serious Crime: Limitations and Exceptions 4.4 Imprisonment Without Fault 4.5 Conclusions 5: A Change of Normative Position: Determining the Contours of Culpability in Criminal Law 5.1 Unlawful Act Theory 5.2 The Nub of Subjectivism 5.3 Moderate Constructivism, Autonomy and the Rule of Law 5.4 The Idea of Change of Normative Position 5.5 Determining the Effect of a Change of Normative Position 5.6 Change of Normative Position by Acting Knowingly 5.7 Moderate Constructivism Re-Stated 6: The Unfairness of Risk-Based Possession Offences 6.1 Risk-Based Possession Offences9 6.2 Possession Offences and Core Doctrines 6.3 Possession as a Form of Endangerment 6.4 If Possession is Criminalised, How should it be Sentenced? 6.5 Conclusions: Possession Offences and Criminal Law Doctrine 7: Child Defendants and the Doctrines of the Criminal Law 7.1 Childhood 7.2 Children as Moral Agents 7.3 The State's Response to Children's Bad Behaviour 7.4 The Effect of Childhood on General Defences to Criminal Liability 7.5 The Effect of Childhood on Consent 7.6 The Effect of Childhood on Mens Rea 7.7 Conclusions 8: Human Rights and Positive Obligations to Create Particular Criminal Offences 8.1 The Range of Positive Obligations under the European Convention on Human Rights 8.2 Duty to Secure Article 8 Rights 8.3 Duty to Secure Article 3 Rights 8.4 Duty to Secure Article 2 Rights 8.5 Duty to Secure Article 4 Rights 8.6 Conclusions 9: Epilogue: Emphasising the Positive