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Positive Obligations in Criminal Law

Positive Obligations in Criminal Law

Author: Andrew Ashworth
Publisher: Hart Publishing
ISBN: 9781849469890

Published In: November 2015
Format: Paperback , 232 pages
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Hardback Edition ISBN: 9781849465052

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This book offers a set of essays, old and new, examining the positive obligations of individuals and the state in matters of criminal law. The centrepiece is a new,
extended essay on the criminalisation of omissions-examining the duties to act imposed on individuals and organisations by the criminal law, and assessing their
moral and social foundations. Alongside this is another new essay on the state's positive obligations to put in place criminal laws to protect certain individual rights.
Introducing the volume is the author's much-cited essay on criminalisation 'Is the Criminal Law a Lost Cause?' The book sets out to shed new light on contemporary
arguments about the proper boundaries of the criminal law, not least by exploring the justifications for imposing positive duties (reinforced by the criminal law) on
individuals and their relation to the positive obligations of the state.

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 Offences

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

Andrew Ashworth CBE QC FBA is Vinerian Professor of English Law at All Souls College and the Faculty of Law at the University of Oxford.

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