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Criminal Law Criminal Law CONTENTS PAGES CHAPTER 1 OUTCOMES 2 INTRODUCTION TO CRIMINAL LAW 3-7 ACTUS REUS 8-16 MENS REA 17-31 STRICT LIABILITY 32-35 INCHOATE OFFENCES 36-45 CHAPTER 2 OUTCOMES 46 NON-FATAL OFFENCES AGAINST THE PERSON 47-57 FATAL OFFENCES 58-68 PROPERTY OFFENCES 69-80 CHAPTER 3 OUTCOMES 81 GENERAL DEFENCES 82-94 OVERVIEW OF POLICE POWERS 95-105 2 Chapter 1 Learning outcomes After studying this chapter you should understand the following main points: þ the principles of criminal liability; þ the general rule in relation to actus reus; þ the rules on causation; þ the different levels of mens rea; and þ what is meant by an incomplete offence and the justification for punishing those that do not complete and offence. 1.1 Introduction to Criminal Law 1. Introduction The criminal law is not just a set of rules; it is underpinned by ethical and political principles created to ensure justice for the individual and protection to the community. If the application of a particular rule to a case results in the acquittal of a dangerous person, or convicts someone that is not dangerous or blameworthy according to ordinary standards, something has gone wrong. Crimes are distinguished from other acts or omissions which may give rise to legal proceedings by the prospect of punishment. It is this prospect which separates the criminal law from the law of contract and tort and other aspects of the civil law. The threshold at which the criminal law intervenes is when the conduct in question has a sufficiently serious social impact to justify the state, rather than (in the case of breach of contract or trespass) the individual affected, taking on the case of the injured party. 2. What is Crime? A crime is conduct defined as such by statute or by common law. Every textbook writer tries to define “crime”. It is difficult to attach an exact definition to something which is so diverse. There are motoring offences ranging from simple parking errors, to death by dangerous driving. Offences against the person range from a slap to murder. Criminal law is usually found under the heading of public law because it is against the state and is punished by the state. First, it is an offence against the public, although it might affect only one person. However, a crime is regarded as being contrary to the interests of society. Crimes are therefore punished by the state and usually reflect the morality of society. Secondly, that the person who committed an offence will be punished in some manner prescribed by the state. In the case Board of Trade v Owen [1957] AC 602 the court considered that the correct definition of a crime in the criminal law was the following passage from Halsbury's Laws of England: "A crime is an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment." Whilst this is the standard definition, you may feel it does not encompass modern attitudes to crime, for example, what about compensation? The Human Rights Act 1998 has affected criminal law in a number of ways, the most notable of which is the right to a fair trial, which is enshrined in Article 6 of the European Convention on Human Rights (ECHR). © Association of Costs Lawyers Training 2019 3 3. Distinguish between Civil and Criminal Law There is a lot of overlap between tort and crime and there can also be liability in both; e.g. a defendant can be liable to compensate for assault and battery in tort and also be punished for an assault offence in crime. Differences include: þ The parties: the state brings the action in crime, whereas an individual brings the action in tort. þ The outcomes: a criminal action may result in a conviction and punishment while an action in tort may result in liability on the part of a defendant and a remedy awarded to the claimant. þ Terminology and procedure. þ The standard of proof: this is higher in crime. 4. Sources of Criminal Law Many offences are defined by statutes, although some very serious crimes – including murder and involuntary manslaughter – remain common law offences. Codified offences may either have originated in statute or are common law offences whose elements have been incorporated into statute, such as theft and most crimes of violence. Where the offence originated in common law before the statute was created you may still need to look to the common law to find the definition of the full offence. European Law and the European Convention on Human Rights are other key sources of criminal law. It is important in particular to understand the Convention and its impact. Rarely a month goes past without some aspect of domestic law being challenged for being inconsistent with the Convention. 5. Criminal Procedure The criminal law’s aims and objectives are met through the operation of the criminal justice system. This includes preventing crime, typically by policing, and also by bringing offenders to justice. The procedure varies according to the nature of the offence committed, an offence may be arrestable or non-arrestable. The former, which includes more serious crimes, allows a suspect to be arrested without an arrest warrant. The Crown Prosecution Service (CPS) has the overall responsibility for bringing proceedings, they will assess the weight of evidence and decide whether a prosecution should proceed. The CPS follow charging standards when exercising their discretion of whether to charge a person and what to charge a person with. Offences are triable: 1. Summarily: before magistrates 2. on indictment: in the Crown Court before a judge and jury 3. either way: either summarily or on indictment. In respect of offences triable either way all defendants have the right to a jury trial but in practice, the majority of offences are heard by magistrates. Whether heard summarily or © Association of Costs Lawyers Training 2019 4 on indictment, the conduct of the trial in a case is dictated by the rules of evidence and procedure. The formal accusation made against a defendant is in the form of an indictment or, where the matter is tried summarily before magistrates, an information. This contains a statement of the offence and particulars of the offence charged. The judge and jury have separate roles in the conduct of a trial. The judge directs the jury as to the meaning and operation of the law and the jury are judges of fact. This means that it is for the jury ultimately to decide how much weight to ascribe to the various pieces of evidence adduced by the prosecution and defence. In the course of the trial, the judge will ensure that no evidence is taken into account which is either irrelevant to the proof of guilt of the defendant or, if relevant, less probative than prejudicial. After the prosecution and then defence have presented their cases, the judge will sum up and will review the facts for the jury. Then the judge will explain to the jury what the law is and what facts they have to find to sustain a conviction. The judge will also tell the jury that the burden of proof is at all times on the prosecution and that the standard of proof is ‘beyond reasonable doubt’. These instructions to the jury are known as jury directions. If the judge makes a mistake in directing the jury this can be appealed on the ground of misdirection. 6. The Elements of Criminal Liability These basic elements or an offence are prohibited conduct (the external element), and an accompanying mental element (the internal element). The specific elements of a crime may vary enormously; the prohibited conduct may consist of snatching someone’s handbag, poisoning their pet or even killing them. The mental element may be intention, recklessness, wilfulness or knowledge. These elements can be reduced to an equation: prohibited conduct + mental element = criminal liability Actus non facit reum nisi mens sit rea is the most important Latin maxim in criminal law. The rough translation is that "the act is not blameworthy unless the mind is guilty". Thus, in the criminal law, a distinction is made between the criminal act and the guilty mind. In general, both must be present for criminal liability. There are three elements of criminal liability: þ actus reus: the blameworthy conduct of the defendant (D) (“guilty act”); þ mens rea: the blameworthy state of mind relevant to that crime (“guilty mind”); and þ the absence of a defence. For almost all crimes, all these elements must be present. There are some offences where the commission of the actus reus is sufficient to establish guilt. These are known as strict liability offences. The actus reus and mens rea of a crime is in its definition. So assume you are asked to decide whether it is murder where A has killed B, his wife, by poisoning her drink with cyanide in revenge for cheating on him with C. To be guilty of murder A must have committed the actus reus of murder and with the requisite mens rea for murder. © Association of Costs Lawyers Training 2019 5 6.1 Actus reus The actus reus of a crime is the behaviour which the law prohibits. The law may prohibit acting in a particular way, as in the offence of careless driving, or bringing about a particular result, as in murder or manslaughter. The law may also prohibit doing something such as in the crime of rape, having intercourse with another without their consent.
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