The operation of the western legal system shows that criminal law exhibits two separate paradigms of responsibility. This becomes evident from the fact that individual justice is paramount and requires proof of definitional fault whereas fairness to the individual is trumped by the social utility. These two paradigms are brought into play by the liability conditions, which can be applied to the secondary participation crime in general, and refers to the way the criminal law influences criminal responsibility between gang members in particular. Justice for individuals overrides criminal law.
The Main Purpose of Criminal Law
The main purpose of criminal law is to ensure that other persons do not infringe individual rights. Moreover, the law punishes those who chose to infringe such rights. Criminal law serves as a device for protecting every individual in pursuing their own aims from being trampled by other people in the pursuit of theirs (Ashworth 2010). Any attempt to defend rights presupposes the recognition or reasonableness of individuals' acts of pursuing their own good (Cryer 2010). Criminal law targets certain undesirable individuals in order to protect society. The enforcement of offenses against public order as well as morality is required in order to maintain social stability and order.
Nevertheless, individual justice requires proof of definitional fault; individuals must prove actual malice. On the other hand, social utility tramples individual justice. Individual justice is different from social justice, as not only do people make claims of justice against other persons, a person has claims against the society which he or she is a part of, just as well as society has claims against him/her.
Justice makes it necessary for all people to have things that belong to them and it is an individual who renders to the state what is due to it (Loewy 2003). Alternatively, people make claims against the state as the state is charged with protecting their rights and governing the whole body for the good of all people. When it comes to secondary participation in crime, criminal statutes refer to an individual who offers help while the rest are commissioned by another individual, the final solution is to claim someone guilty of similar crimes having lead to his/her trials. As a result, the person faces the same charges as the principal.
Section 8 of the Accessories and Abettors Act 1861 states that "whoever shall abet, aid, procure or counsel the commission of an indictable offense shall be legally answerable to be punished, tried, and indicted as the main offender. Similarly, the Magistrate's Court Act has the same provisions when it comes to summary offenses in section 44. The man rea required for the secondary parties is that "the defendant intended to do the acts which he knew to be capable of assisting or encouraging the commission of the crime, and (b) knowledge that the principal will commit a crime of a certain type". As a result, persons committing secondary crimes are convicted of the same crime as the principal.
The secondary party can also be convicted in that case when the principal offender is acquitted, in case there is proof that an offense was committed. It mentions that "If there is an actus reus, but the principal has been acquitted because he has a defense or because the men's rea of the crime has been negated, then in certain circumstance the secondary party may nevertheless be liable".
This is evident in the following cases: R v Cogan and Leak  QB 217; R v Bourne (1952) 36 Cr App R 1251. In this case, individual justice is paramount for the people who commit crimes as secondary parties as it requires proof of definitional fault (Dressler 2001). It has to be proved beyond a reasonable doubt that the defendant "abets, aids, procures or counsels the principal to commit a certain type of crime" before he or she is found guilty as a secondary party to a crime that was committed by the principal. On the other hand, the fairness of the secondary party to the crime is trampled by the social utility.
Social utility governs all the moral elements in this case in the notion of justice. The two important aspects in the justice notion are the violation of the rights of another person and further punishment. Punishment in this case depends on the level of collective social sympathy as well as revenge. As a single entity, revenge does not have moral components.
However, shared mutual social sympathy equals social utility. Violation of other individuals' rights is derived from the social utility as the rights are the claims that people have for society to protect them. Social utility is thus the reason why society protects people affected by the actions of the secondary party (Hostettler 2006). As a result, the elements of justice are anchored in social utility. The impact of criminal law on criminal responsibility between gang members also shows that criminal law exhibits two separate paradigms of responsibility. The fairness of the secondary party to the crime is trampled by the social utility.
Social utility governs all the moral elements in this case in the notion of justice. The parties have to have the same intention and make it evident to one another through their deeds that that was their mutual intent. Every member of the gang is liable for the other individuals in the gang. This paper will further explore two separate paradigms of responsibility by focusing further on the western criminal law treatment of secondary participation in crime, individual Justice in Western Criminal Law, the impact of criminal law on criminal responsibility between gang members. These aspects will show that in western criminal law individual justice is paramount and requires proof of definitional fault whereas fairness to the individual is trumped by the social utility.
Secondary Participation in Crime
Under western law, the prosecution does not necessarily need to recognize beforehand if the accused is charged as principal or secondary party (Shaw 2008). Secondary liability offers an opportunity to the prosecution in proceeding against the primary offender who commits the crime as well as others who were involved in committing the crime (The Law Commission 2007). The secondary liability is law doctrine, which is common.
In general, there are many participants involved in a given crime, so that various participants will almost play different roles inevitably. The principal offender is usually immediately as well as directly linked to the act, regarding the overwhelming offenses where it can also include secondary parties; for instance, the party encouraging or cheering the attacker's side. The fact of the presence of secondary parties does not necessarily create multiplicity on the crimes, therefore it remains with only one crime (Keogh 2013).
Relevant statute law is that of section eight that was amended by the schedule, providing that whoever offers any aid, counsel, abet, or even procure the commission on an offense that is indictable, whether it is the same offense based on common law or by virtue on any act passed or is to be passed and which will be liable of being tried, is punished as well as being indicted by a principal participant. Liability is a secondary factor that is taken as a common law concept, unless it is explicitly excluded or through implication, which can be applied to all crimes, indictable or even summary and notwithstanding the reference to the indictable offenses as in section eight (Zahar & Sluiter 2008).
In addition, the magistrate court act provides that an individual who offers help and the rest be commissioned by another individual of a crime summary is treated as guilty of similar crimes that have to lead to his/her current trials (Mens rea for secondary participation 2013). This can be done by the court if it has jurisdiction over trying the other individual or can be tried by a court that, by virtue of the crime, has jurisdiction over trying him.
The given crime can hold several principles, and there is no clear distinction between principle and abettor. Joint enterprises, as well as parties thereto, are freely used, having no distinction between the secondary and principal participants. More confusion is experienced in that the principal needs to act directly in regards to the criminal act or even to be present for the offense commissioning (Keogh 2013). On the other hand, secondary offenders are given the following ordinary meanings: aid, counsel, abet, as well as procure. Aiders and counselors may be equated with accessories prior to the fact.
For encouragement to exist, there should be not only the act constituting encouragement but also the elements of willingness. The fact that the presence of non-accidental nature has been an encouragement to principle is not well enough (Shuy 1993). The important point here is in the entitlement and the ability to intervene.
In case the secondary party decides to withdraw from the agreement made, a more effective withdrawal before commissioning the offense can absolve the secondary party from the responsibilities brought about by the act. An effective withdrawal brings about communication, which is unequivocal on the secondary participants in changing their minds (Rodriguez & Santos 2005). A change of mind, which remains in the mind, that is, without expressing it externally, will not suffice. It becomes doubtful whether secondary participants would withdraw from the agreement after the commission has commenced it (The Law Commission 2007).
At least, communication must, for instance, give the principal an opportunity to stop the commission from committing the crime. It is said that on the basis of the encouraging act or the counseling act, necessary mental elements have been practiced and they are followed by an act that counters and makes it necessary to avoid criminal liability. Evidence to withdraw is a jury matter to assess as well as what is needed for demonstrating its variables, concerning what the circumstance is. An effective withdrawal, as well as a crime that is substantive, cannot absolve the secondary offender from a conspiracy charge, where the offense is out of an agreement (Shaw 2008).
A substantive crime has to be proved by means of a conviction, irrespective of the secondary participant's category. However, it can as well be the case where a secondary participant can be convicted properly without withstanding the acquittal of the primary offender, for instance, when evidence is admissible on the secondary offender and not the primary offender, or even when a defense is applicable only to the principal and the secondary party.
For a secondary party, one does not necessarily need to have the details about the crime type. Having some knowledge of the crime type is enough (Oughton 2003). For instance, in Bainbridge, a defendant supplied an oxygen-cutting machine that was to be used in carrying out a crime. He was later charged as an accessory. He was advocated that he was not aware of what the machine was to be used for and thought that something illegal was happening though the tools he provided would be used in the breakage of the stolen goods (Mens rea for secondary participation 2013). The appeal that he made was rejected because the court believed him to know about the crime, although not completely about all details.
It might be enough to be aware of the ranges of crimes to be committed. In DPP for Northern Ireland v Maxwell where the defendant was a local individual as well as a member of the terrorist group that was prohibited, he led the main offender to a house that was public and owned by a catholic. He noted that the principal was intending to either shoot a person or plant a bomb at a pub, while the real intention was to plant a bomb, which he did. The accused felt guilty of the act. It was held by the court that the crime made by the principal could be one of the crimes within the contemplation of accomplice.
The foresight that a crime is to be committed by the principle is just enough (Guild & Minderhoud 2006). According to the principle which was established in the year 1985 in Chan Wing-Siu, a secondary party is criminally responsible for the action of any type done by the primary offender, where the former foresee it as a probable outcome even though it was not the intension of the secondary party.
If the principal offender only commits a fundamental act that is a very different one, the secondary offender would not be liable at all (The Law Commission 2007). In 1997, Englishman followed by another man-made agreement to kill a policeman using wooden posts. The man used a knife to attack him, stabbing the police to death. As an agreement was made, the English man could not be aware that the other man carried a knife. Thus, it was stated that English was not a secondary offender in the act.
Individual Justice in Western Criminal Law
Justice can be explained as the process of administering and enforcing the rule of law in situations that require law and order administration to provide the affected persons with the service and protection that they need. It provides the first line of defense to individuals of a given country, helps those in need, and develops a personally rewarding career in community service (Gallant 2009). Criminal laws, on the other hand, are the rules and statutes that direct and guide the actions that are punishable by the state (Crime, justice, and the law n.d).
It entails tribunal by the government of an individual because of an act that he or she has committed and which has been classified as a crime. Criminal law, therefore, regulates social conduct in the society and activities that threaten, harm, and endanger the health, safety, and moral welfare of the persons in a given country (Duff 2010). In a criminal case, therefore, the state, using the knowledge and expertise of a prosecutor, commence the suit. Individuals condemned of a crime may be incarcerated, fined, or both.
Therefore, in the UK, individual justice denotes the tribunal by the government of an individual for an action, which is divergent from the nation's established laws and regulations. The first concept of individual justice in criminal law in western countries is that the state is governed by the rule of law (Evans 2012). This concept shows that the established rules and regulations in the counties of the west are those used in the daily administration of justice for the persons that may have committed crimes and done things that are not in line with the established laws and regulations and the human rights.
Furthermore, in western countries, the laws are enforced by the threat of criminal punishment for the offenders. The punishment range varies with the jurisdiction i.e. the area or persons that are administering the rules and the extent of crime committed by the offender (Del 2003).
Another concept of criminal law in western countries is humanity and here, it can be established that the criminal law in the west takes a keen interest in the humanity of the persons involved, both the offended persons and the offenders. Their law is mainly guided and influenced by humanism and therefore is applied to protect society and individual liberty (Haveman & Haveman-Kavran-Nicholls 2003).
Therefore, in comparison with other states and countries, in which their criminal law application and implementation do not take into consideration the fact that criminals are also human beings who need to be treated with dignity and also have their rights respected, individual justice in criminal law of the western countries takes this fact into consideration.
Another very important concept that should be considered in the analysis and discussion of individual justice in criminal law in western countries is the purpose of criminal law. This law is usually seen to have the main purpose of protecting the society against persons that have the wrong intentions and strive to do something wrong to other people (Cartwright 2001; Ashworth 2010). This is done by means of ensuring that the people who are charged with the mandate of pursuing the rule of law and order is maintained and protection of the interests of all the persons in the society carry out their activities with the highest integrity possible (Eser 1986).
This will give the assurance that these people in jurisdiction levels do not take for granted the rights of their people and they cannot be manipulated so as to alter the system of justice in favor of the criminal offenders, just because they have much money and in the process trample upon the weak and poor people in the society, those who have no ability to fight for their rights.
It is a matter of prudence to discuss the elements that entail this justice system and the processes that are involved in the maintenance of law and order. Criminal law in general prohibits and does not allow the commitment of undesirable acts (An introduction to UK criminal law 2013).
The undesirable acts, in this case, can be described as the guilty acts that people engage in and these are accomplished through the action itself, threatening to carry out a certain action that is not in line with the rules and regulations of the society, and intentional omission of an action that is in most cases a legal action or a legal duty. The actions that involve an intentional omission of duty of action by certain individuals are considered punishable, under the justice of the western criminal law (Oughton 2003).
The other elements applicable in the individual justice in relation to the criminal law in western countries involve fatal offenses, personal offenses, and property offenses. The fatal offenses usually involve murder and other unlawful killings. These are the actions that are mainly targeted and severely punished by the individual justice of the criminal law in the western countries. Personal offenses are not judged as harshly as fatal offenses and they mostly include battery and assault among others (Furse 2010).
There are criminal codes that protect and ensure the integrity of the body that deals with the assessment and judging of the personal offenses are maintained and upheld always. Property offenses are also judged by criminal law (Tonry & Frase 2001). This is because the property is often protected by criminal laws which also provide the necessary penalties that are relevant to the crimes involved. These may, for instance, include deprivation penalties for crimes of embezzlement, theft, fraud, conversion, false representation, and failure of disclosure of information among others.
Crimes in the western counties are classified to ensure that each case is dealt with accordingly (Shaw 2008). These classifications entail legal cases in which crimes are categorized as those that presuppose the use of the severe offense into felonies as well as misdemeanors. Exemplars of felonious crimes include burglary and child theft among others. All the non-felonious ones are regarded as misdemeanors. Classification by the western jurisdiction categorizes crimes into offenses against individuals, property, as well as other offenses (crimes without victims), in addition to offenses in opposition to local ordinances (Zahar & Sluiter 2008).
Crimes are also categorized by the age of the offender, according to which an individual of 17 years and above is regarded as an adult. Juveniles are those between 12 and 16 years whereas 7 and 11-year-olds are regarded to be children. The juvenile courts are in charge of children and juvenile offenders. Age of criminal responsibility is another form of classification and any person who is 17 years or older is considered an adult. These junior courts are ad hoc as well as informally administered in which a county magistrate presides over together with a layman and a laywoman (Zahar & Sluiter 2008).
Victim assistance institutions, as well as compensation programs, exist in the UK (Omaji 2003). Victims cannot take the law into their own hands. Nonetheless, they can take extraordinary action against an offender under the self-defense statute, in case his/her life is at serious risk. Individual justice in Western Criminal Law puts much emphasis on accountability to ensure that the rights of all people are maintained and respected.
Individual justice in Western Criminal main objectives and goals are those of ensuring that the rights of all citizens are maintained and the people who commit crimes are judged fairly and justly according to the law (Ventrella 2010). The Individual justice in Western Criminal Law also has powerful technology and highly specialized personnel among their staff that handles the crimes.
Impact of Criminal Law on Criminal Responsibility between Gang Members
Criminal law is one of the prevailing laws in the west. In all aspects, citizens'' criminal law finds and plays a great role in influencing a vast of decisions made. Criminal law influences every citizen in his or her daily life in many ways. It plays a great role in the alleviation of crimes and promotion of the development of justice (Shuy 1993). Due to the rights provided by the criminal justice system and the criminal law, every citizen has a chance to enjoy the liberty to do whatever he/she wishes.
Nevertheless, the law plays a great role in monitoring and safeguarding the rights and freedoms of the Western people. A gang is an association of criminals. Terrorists, prison gangs, or hate groups could form a gang. The members of a gang have a group identity that identifies them with their group (Fletcher 2000). This identity can be in form of a symbol such as a tattoo. Young people form the majority of gangs. A group of persons usually forms a gang. The number of members of a gang can reach three or more people who are driven by the intention to commit a particular crime or sets of crimes.
Gangs usually intimidate people before carrying out their individual crime activities. Gangs sometimes use rules that guide them in their groups and may meet on regular basis to plan various criminal activities and advance on crime commission tactics. Criminal evidence reforms in Western criminal law have greatly influenced gang's involvement. These reforms include bad character evidence, hearsay evidence, sentencing reforms, and life sentence for murder crimes (Ezine Mark 2013).
Without criminal law, there is an accompanying increase in human rights abuse. Criminal law engages the citizens and the government in ensuring mutual consensus aimed at creating an environment that gives freedom to the people to enjoy their rights while protecting them from lawbreakers, such as gang members (Guild & Minderhoud 2006). In essence, criminal law is the custodian of social justice. Justice can only be achieved through the enforcement of western criminal law. Being void of criminal law means the contemporary violation of citizens' right to enjoy various freedoms outlined by the constitution (Ashworth 2003).
Criminal law entails several aspects that are outlined in the criminal procedure (Hostettler 2006). Despite the criminal protects the citizens from the actions that violate their chances to enjoy their liberty, he or she also provides the offenders with the rights and freedoms. It also gives provisions and codes for handling offenders. It is through criminal law that those suspects and victims involved in felonies are given their due justice. Felonies are investigated and due punishment is given to the perpetrators according to the criminal justice and criminal law (Alexander, 2007). This has positively influenced the West while reducing the number of gangs involved in crimes.
Under western criminal law, the evidence act looks at how evidence is obtained from suspected criminals. Before the arrest of any suspected member of the gang, the arrestee has to be explained the reason for the arrest. The suspect confession should also be voluntary rather than involuntary. If confession is involuntary, then the evidence is deemed inadmissible in the court of law. If evidence results from illegal activity presented by the legal officers, such as a search without a warrant, the evidence is not acceptable in the court of law (Alexander 2007).
Evidence obtained and analyzed outside constitution rights is also considered inadmissible in the court of law. For example, in a court of law one cannot be compelled in any criminal case to a witness against him/herself. The evidence act has greatly influenced the rights of arrested members of gangs who are arraigned in court for law-breaking.
Bad character evidence reforms changed the admissibility of evidence based on the defendant's history of offense. This reform was enacted by the 2003 Act. Bad character ensures that the prosecution does not collect the pieces of evidence regarding the history of the defendants. However, it allows bad character evidence only when the defense gives good character evidence. Bad character evidence has greatly led to the repetition of crimes committed by gang members. This is because their history of crimes may not always be necessarily used in judging their offenses (Cartwright, 2001).
The hearsay evidence reform was also enacted to allow hearsay evidence in certain circumstances. Hearsay evidence reform has impacted gang offenses positively, by ensuring that judgment of offenders is based on only admissible evidence (Ormerod 2005). On the other hand, the sentencing reforms have largely influenced gang members. The sentence reforms were enacted to threaten with long terms imprisonment as well as heavy punishments. Many gang members have quitted gangs since then.
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Criminal Law influences Deterrence, Rehabilitation, and Correction of Gang Members
Criminal law is mandated in deterrence, rehabilitation, and correction of gang members. According to the National Institute of Justice (2013), the criminal justice system has developed several anti-gang strategies to ensure that gang members cease to be part of their gang. These strategies are enhanced, complemented, and reinforced by western criminal law. These schemes include prevention, intervention, assessment, and suppression. Prevention has drastically reduced the number of young people who join gangs (Molan 2005).
Prevention ensures that young people do not join gangs by addressing various environmental and timeserving factors that affect gang offender's decision-making (Del 2003). The intervention involves the use of intermediaries in influencing youths not to join the gang sects while developing strategies, aimed at discouraging gang members as well as getting the gang members away from the manners of living that reflect their values and attitudes. This involves the process of rehabilitation of gang members' guilt of crimes by various religion and non-governmental organizations while they are serving their terms (Gross 2005).
This incentive has greatly influenced gang membership by means of reduction of the people affiliated with gangs. Suppression targets gang members through sharing of intelligence information relating to gang members. Suppression can involve heavy and harsh punishments that could make persons refrain from participating in gangs (Furse 2012). Through criminal law, the Western criminal justice system has adopted these strategies in order to reduce the number of youths joining gangs. This has resulted in a drastic decline in the number of persons who involved themselves in gangs.
Criminal law provides strategies that ensure deliberate and coordinated investigations against the gangs. Criminal law guarantees public safety from gangs. Through the help of criminal law and the criminal justice systems gangs are investigated and prosecuted by the state (Ashworth 2010). Gangs operate against the law and therefore their illegal activities are matched to the level of crime, stated in the criminal law. Therefore, criminal law gives the measure of criminal activity committed by gang perpetrators. Criminal law also provides the code for the investigation of gangs. Through forensic science, provision crimes, committed by gangs, can be investigated. Gang militias can be linked to each other (National Institute of Justice 2013).
Criminal law also provides for various fines and punishments given to the lawbreakers. It states the length of punishment through incarceration or the size of the fine. Members of gangs make themselves involved in various activities. These could range from illicit drug trafficking to robbery or fraud. Gangs can also commit other crimes, such as rape and even malicious damage to their opponents' properties. Only through criminal law as well as the criminal justice system can these crimes be investigated and proper mitigation against the emergence of such gangs in the future can be initiated (Cryer 2010). The criminal law, as well as the criminal justice systems, provide for an efficient anti-gang strategy aimed at mitigating crimes related to gangs.
Criminal law thus plays a crucial role in criminal obligation between gang members. Through mitigating and discouraging criminal activities, the criminal law addresses largely alleviates gang membership. Through the limitation of what people can do with their bodies, criminal law greatly reduced gang membership by restricting the activities that can be done by a group of people. The criminal law also provides for criminal penalties and rehabilitation programs that help nurture incarcerated gang offenders to more responsible citizens. Nevertheless, the importance of criminal law in managing gang crimes cannot be exclusively described.
According to western criminal law, no individuals should be convicted of any criminal offense unless there is enough proof of every element of the crime. The defendant in the criminal action is usually regarded as innocent till his/her guilt is proved. He or she is entitled to a not guilty verdict, in case of a judicious doubt whether his or her guilt is satisfactorily proved. The presumption normally places upon the prosecution the duty of proving beyond a reasonable doubt every crime element charged in the information as well as proving that the defendant perpetrated the crimes for which he/she has been charged.
This represents one separate paradigm of responsibility. Individual justice is paramount and requires proof of definitional fault. The other paradigm shows that fairness to the individual is trumped by social utility. These two paradigms are evidenced by the liability conditions, which apply to the secondary participation crime in general, and by the way, the criminal law influences criminal responsibility between gang members in particular. When it comes to secondary participation in crime, criminal statutes direct individual who offers help and the rest be commissioned by another individual of a crime summary is taken as guilty of similar crimes leading to his/her trials.
As a result, the person faces the same charges as the principal. The fairness of the secondary party to the crime is trampled by the social utility. The parties have to have a mutual intention and make it evident to one another through their acts that that was their mutual intent. Every member of the gang takes liability for the other individuals in the gang.
Social utility governs all the moral elements in the case of application of criminal law for gang members and secondary participation in crime in the notion of justice. The elements of justice are anchored over social utility in these cases although individual justice is paramount and requires proof of definitional fault.