Within the criminal fault there are two main fundamentals which need to be established to establish liability. The first part is known as the “actus reus”, which is Latin for “guilty act”. This refers to when a person has committed a crime either voluntary or intentionally. The second part is known as “mens rea” which is Latin for “mental element”. This is when an individual commits a crime involuntary or with no intention of doing so. As a result of this, for a conduct to be approved unlawful it has to be completed voluntarily otherwise it will not be considered as an unlawful conduct.
A civil wrong is an offence when the action for damages may be brought. This can be seen in the infamous snail and the ginger beer bottle case, or better known as “Donoghue v Stevenson (1932)”. It was in this case that the House of Lords ruled that a person “must have duty to take reasonable care to avoid reasonably foreseeable injuries”. The actual concept of “reasonable care” and “reasonable foresee” are two foundations that a judge must take into consideration when trying to decide liability in any civil case that relates to any form of negligence.
There are a lot of factors that influence both when and why a conduct is to be considered as unlawful. These include areas such as; technological developments – this could be seen as being the use of the internet in some form, as it is now a very common tool that is used in most peoples lives to perform daily activities. Unfortunately, this creates a door for criminals to perform activities that could be seen as being unlawful. This could include areas such as copying other people’s credit cards and hacking into large companies to obtain financial reward in one form or another. It is this action that has made the government take stock of these actions and to both reform and create where necessary laws which allow people who use the internet to be protected against any such actions.
There are laws within the English system that are there to protect both the society as a whole and individuals from any harm and as such these are labelled as unlawful conduct. These could be driving a car over the speed limit in a given area, as the government sets these limits in order to protect all drivers from causing accidents (both minor and fatal) to either themselves or another. The smoking age which is currently set at 18 was put into place to try and prevent underage people from smoking and try and reduce the health complications of the nation. As with everything society over the years changes and therefore has to adapt to new developments and reforms. Pre 1967 it was illegal in England and Wales to be homosexual, as a result any adult who had homosexual intercourse would have been punished as it was deemed to be unlawful conduct. As times and society has changed this is no longer seen as illegal but some people see that its still an offence due to their religious belief or personal upbringing. This however, is no longer deemed to be an unlawful conduct.
For a conduct to be deemed as unlawful there must first be a law in place to enforce it. This can be seen with the above of homosexuality, as it was illegal up to and before 1967 but was abolished in 1967 due to reform of society. Some conducts can be seen by others as being wrong due to a moral conduct however they don’t necessarily become unlawful. This is also taken into consideration when a conduct is being approved as being unlawful. Abortion in some religions is against their beliefs as it’s deemed the same as murder as the foetus is classed as a human, however, although this can be a strong belief it is not unlawful in this country for the person carrying out the abortion or for the person receiving it.
With modern society constantly changing parliament are in constant action reviewing and amending laws in order for them to be up to date as possible. Current conducts which are not currently approved as being unlawful as they could cause harm or offence are also constantly reviewed to ensure every aspect is covered.
Laws can also be amended or reformed through the court system, although it can be said that for many judges reform of the law isn’t their first or major concern but rather the breach of the system. Judges do however, require reform when something need clarification, this is dealt with via the interpreting status as it allows for any anomalies or out of date information to be looked into and amended as required.
An independent body was set up in 1965 and called the Law Commission, it was their main function to keep the law up to date and in constant review to allow changes to take place accordingly. Other duties include drafting bills to go to government, producing law reform reports and revising statute law. Other procedures of law reform include the advisory committee, who look at and review some aspects but not all of law. The Criminal Law Revision Committee has the main duty of examining areas of the criminal law and then to advise the home secretary of areas and issues that may arise. There is also the Royal Commission whose role is to advise on the improvements that are required within the legal system.
A conduct therefore cannot be considered as being unlawful unless it has been written down as a law. These are created along side the social changes to enable society as a whole to be safe in its activities.
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References: The Open University Law School - W100 Rules, Rights and Justice: An Introduction to Law.
The Open University Law School - W100 DVD Rules, Rights and Justice: An Introduction to Law.
