Discuss the reasons why behaviour may become unlawful and explain how the law can change.

Suzy Harris

PI – A2381845

eTMA 03

Question: Discuss the reasons why behaviour may become unlawful and explain how the law can change.

There are many ways in which behaviour may become unlawful and the ways in which law can change in response to such behaviour.
This essay will look to position unlawful conduct and more specifically the definitions, of which it holds. Discussing why conduct becomes unlawful and the actions of our UK Parliament, Judiciary and the European Court of Human Rights in response to the growth of unlawful conduct. Highlighting the key facts and cases and also looking into the strengths and weaknesses in the methods of law reform.

“Unlawful conduct is any conduct that is contrary to or forbidden by law” (Arthur, 2011)
Conduct can be considered as unlawful in a number of different ways, most commonly known actions are burglary, theft or even murder, these are only criminal acts, businesses can also be affected by criminal acts, such as fraud for example.
Criminal acts are only one form of unlawful conduct, as the other are civil disputes, these disputes can affect all walks of life from businesses through to families, examples are custody of children in a divorce, validity of marriage, customers who refuse to pay bills.
Two fundamentals in criminal fault to establish liability, Actus reus, a Latin term meaning the guilty act which refers to doing the unlawful conduct, such as the action of assault on another human being and mens rea, another Latin term translating to the mental element, which refers to the state of mind when the unlawful conduct took place. For the conduct to be unlawful, the act must have been voluntarily done as described in the case of R v Bell, Court of Appeal, Criminal Division [1984] 3 All ER 842 . There are two fundamentals when considering fault with regards to negligence in civil disputes, reasonable care and reasonably foresee, as shown in the case of Haley v London Electricity Board [1965] AC 778.

This is a preview of the whole essay

Since the 1980’s the largest technological advancement was the launch of the internet, with the advantages it has brought to everyday life, “These give rise to a myriad of genuinely new legal issues” (Kohl, 1999). These actions can include identity theft, downloading music illegally and money laundering, with its growth came a necessity of law reform to give people certainties about their rights and responsibilities. An example is of a conventional law which also applies to the internet is the Defamation Act 1996, when a statement of defamation is in a fixed form this is known as Libel, the other form of defamation is slander which is of a verbal kind, and the Computer Misuse Act 1990. There have also been a lot of social and moral developments over the years; the legal marrying age is now 16 years old for men and women where it used to be 12 for a girl and 14 for a boy around the 15th Century. A more recent development was that of the Civil Partnership Act 2004 which gave Gay and lesbian relationships the same rights as any married couple. Some actions are considered unlawful to protect the individual from any harm, for example wearing seatbelt when driving a car or wearing a helmet when riding a motorbike. This subject matter can often be taken into dispute when discussing the subject matter of euthanasia, as many people believe this should be made lawful action. “Is this enforceable?” is a consideration for any new laws or amendment before it becomes an Act, and there are many points to consider including the human rights of the individual.

There are three main methods of reforming the law; there is the UK Parliament, the judiciary system and The European Court of Human Rights (ECoHR). Parliament is a publicly elected body and will often take into account the changes in society when creating a new criminal offence. Such as Dangerous Dogs Act 1991 or in the event of national crisis the Anti-terrorism, crime and security act 2001. Judges will follow statutory interpretation rules to interpret Acts of Parliament, they are also able to overrule and distinguish against a precedent which has been put in place to reform the law. An example of a such a case whereby a common law was re-interpreted is, R v R [1992] 1 AC 599, the House of Lords abolished a rule which led to the acknowledgment of feasibility of rape occurring during a marriage. ECoHR any law passed by the ECoHR is binding on all states within the convention therefore any decisions will affect what is acknowledged as unlawful in the UK. ECoHR was created to defend a series of basic human rights, in British schools corporal punishment was eradicated in July 1986 brought about by an ECoHR. Following the judgement by the ECoHR in case of Goodwin v United Kingdom [2002] ECHR 28957/95, the Gender Recognition Act 2004 was passed by the UK parliament.

Further areas of law reform, include The Law Commission which was set up in 1965; its purpose is to review areas of the law and to make suggestions for amendments. The Law commission will publish a consultation paper and collate any comments they may receive from attracted groups, with these the commission will produce a report and assign a draft bill. The Law Reform Act 1995 was introduced in 1996 succeeding a 1995 report, which subsequently removed the year and a day rule.
The Criminal Law Revision Committee set up in 1959, as a counsel for the home secretary. Will advise and make recommendations on any criminal law which may need amending. An act which has been put into place since the committee started is the Theft Act 1968. The Royal Commission will only be brought into effect for major assessments in areas of the legal system; an example of their work influencing the creation of an act is the Police and Criminal Evidence Act 1984.
Before a bill will start the process to become a law it must first go through the stages of being published as a green paper whereby proposals are set out to seek any advice or comments, following this consultation the government will publish a white paper which is a much firmer document outlining the concepts for the bill, the secretary of state for the relevant department will often make a statement to go forward with the white paper.

In conclusion this essay acknowledges that defining factors such as technological, social and moral developments are pivotal parts how behaviour can become unlawful. The law making and law reform processes in the UK are wide spread covering all aspects of the law, there are advantages and disadvantages to each area of law reform in the UK. Many of the disadvantages will relate to law reform in the judiciary and within the ECoHR, reasons being that around accountability as neither are publically elected. The main disadvantage with Parliament is that Acts can take a long time to pass however it is imperative to recognise that although this is often the case Parliament is a highly accountable body to the public, it has been proven in the Anti-terrorism, crime and security act 2001, Parliament will swiftly act in the event of public outcry or in the event of a national crisis.

Word Count:

1195

Bibliography:

The Open University (2011), Assessment Guide Part 1, Milton Keynes, The Open University (Printed).

Arthur, R. (1999) ‘The European Court of Human Rights and the abolition of corporal punishment in Ireland’, Irish journal of family law, round hall sweet & Maxwell, no. 4, Nov 1999, pp. 13 – 14.

Arthur, R. (2011) ‘Unit 7 Unlawful conduct’, Block 2 Legal Personality, W100 Rules, rights and justice, Milton Keynes, The Open University, pp. 42-72

R v Bell, Court of Appeal, Criminal Division [1984] 3 All ER 842.

Haley v London Electricity Board [1965] AC 778

Kohl, U. (1999) ‘Legal reasoning and legal change in the age of the internet – why the ground rules are still valid’, international journal of Law and IT, June 1999, 7 (123).

Defamation Act 1996

Computer Misuse Act 1990.

Civil Partnership Act 2004

Dangerous Dogs Act 1991

Anti-terrorism, crime and security act 2001.

R v R [1992] 1 AC 599

Goodwin v United Kingdom [2002] ECHR 28957/95

Gender Recognition Act 2004

Arthur, R. (2011) ‘Unit 6 The natural legal person’, Block 2 Legal Personality, W100 Rules, rights and justice, Milton Keynes, The Open University, p 17

The Law Reform Act 1995

Theft Act 1968

Police and Criminal Evidence Act 1984

Anti-terrorism, crime and security act 2001

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