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Posts Tagged ‘Criminal Law’

“My Lords, it would I think be conducive to clarity of analysis of the ingredients of a crime that is created by statute, as are the great majority of criminal offences today, if we were to avoid bad Latin and instead to think and speak … about the conduct of the accused and his state of mind at the time of that conduct, instead of speaking of the actus reus and mens rea.” ~ Lord Diplock in R v Miller, [1983] 1 All ER 978 (House of Lords, England)

So what is actus reus? Lord Diplock explains, earlier in this same judgment:

“This expression is derived from … ‘Actus non facit reum, nisi mens sit rea,’ by converting incorrectly into an adjective the word reus which was there used correctly in the accusative case as a noun.”

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“In terms of the protection of society, [isolation/imprisonment] is the option of last resort. Even as such, it suffers from the ultimate weakness that if the fundamental requirement of proportionality* is observed, the individual concerned must eventually be released from jail. Experience teaches us that most people emerge from prison a worse threat to society than when they entered. Thus care and restraint must be exercised when imposing a sentence of imprisonment even when the goal is to isolate the offender.” ~Justice of Appeal Wood. in R v Sweeney (1992), 11 C.R. (4th) 1, 71 C.C.C. (3d) 82, 1992 CarswellBC 460 (BC Court of Appeal)

*fundamental requirement of proportionality, put less eloquently, is the idea that “the punishment fits the crime”. It can also encompass the idea that a penalty should be proportional to the “aims” or desired outcome of the penalty, and not excessive.

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“You’re no longer playing an academic game that you have mastered.”
~ Criminal Law professor Blair Crew to the new 1st year Law Students

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