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Criminal Law The Law Commission (LAW COM. No. 143) CRIMINAL LAW CODIFICATION OF THE CRIMINAL LAW A Report to the Law Commission Laid before Parliament by the Lord High Chancellor pursuant to section 3(2) of the Law Commissions Act I965 Ordered by the House of Commons to be printed 28 March 1985 LONDON HER MAJESTY’S STATIONERY OFFICE S9.90 net H.C. 270 The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Commissioners are- The Honourable Mr. Justice Ralph Gibson, Chairman. Mr. Trevor M. Aldridge. Mr. Brian J. Davenport, Q.C. Professor Julian Farrand. Mrs. Brenda Hoggett. The Secretary of the Law Commission is Mr. J. G. H. Gasson, and its offices are at Conquest House, 37-38 John Street, Theobald’s Road, London WClN 2BQ. .. U CODIFICATION OF THE CRIMINAL LAW A Report to the Law Commission CONTENTS Paragraph Page Introduction by the Law Commission 1 INTRODUCTION .................... 0.1 15 CHAPTER 1 THE AIMS OF CODIFICATION 17 The background ...................... 1.1 17 The aims. ......................... 1.3 17 Codification and law reform ................ 1.10 19 CHAPTER 2 THE CODE 21 Nature and scope of the Code. .............. 2.1 21 The application of Part I ................. 2.4 21 The extent of Part I1 ................... 2.10 23 The style and language of the Code 24 Style. ......................... 2.14 24 Language ....................... ' 2.20 26 Interpretation ..................... 2.25 28 Coping With complex provisions ............. 2.28 29 The enactment and revision of the Code ......... 2.29 29 The development of Part I1 ............. 2.3 1 30 The Code and common law offences. ........ 2.32 30 Machinery for revision ................ 2.33 31 CHAPTER 3 CONSTRUCTION OF THE CODE 32 Rules of construction ................... 3.1 32 Illustrations, headings and sidenotes ........... 3.6 34 Resolution of ambiguities ................. 3.8 35 Definitions. ........................ 3.10 36 CHAPTER 4 PRELIMINARY PROVISIONS 37 Short title, commencement and extent .......... 4.1 37 The application of Part I ................. 4.6 37 Creation of offences .................... 4.7 38 Law determining liability .................. 4.8 38 Jurisdiction of criminal courts .............. 4.14 39 Offences on, or by persons employed on, British-controlled vessels .......................... 4.17 40 Indictable offences committed by Crown servants .... 4.18 41 ... lll Paragraph Page CHAPTER 5 PROSECUTION AND PUNISHMENT 42 Prosecution, punishment and miscellaneous matters ... 5.1 42 Alternative verdicts .................... 5.6 42 Conviction of preliminary offence when ulterior offence completed ........................ 5.19 45 Act constituting two or more offences .......... 5.23 46 Double jeopardy. ..................... 5.24 46 Multiple convictions. ................... 5.42 50 CHAPTER 6 PROOF 52 Burden of proof. ..................... 6.1 52 Proof or disproof of states of mind ............ 6.9 54 CHAPTER 7 EXTERNAL ELEMENTS OF OFFENCES 55 Introduction: Elements of offences ............ 7.1 55 Use of “act”. ....................... 7.3 56 Liability for omissions. .................. 7.6 56 Offences which may be committed by omission ..... 7.7 57 The duty to act ...................... 7.11 58 Causation ......................... 7.16 60 CHAPTER 8 FAULT (1) PRINCIPLES OF INTERPRETATION 62 Introduction ........................ 8.1 62 Fault terms ........................ 8.5 63 Degrees of fault ...................... 8.26 71 General requirement of fault ............... 8.29 71 CHAPTER 9 FAULT (2) PRINCIPLES OF LIABILITY 73 Ignorance or mistake ................... 9.1 73 Intoxication ........................ 9.7 75 Definitions. ................. ...... 9.18 78 Supervening fault ..................... 9.23 81 Transferred fault and defences .............. 9.27 81 CHAPTER 10 PARTIES TO OFFENCES (1) PRINCIPALS, ACCESSORIES AND VICARIOUS LIABILITY 83 Introduction ........................ 10.1 83 Parties to offences ..................... 10.2 83 \ Principals ........................ .“, 10.4 84 Accessories ........................ 10.10 85 Parties-procedural provisions .............. 10.2 1 90 I Vicarious liability ..................... 10.25 9 1 I iv Pal fagraph Page CHAPTER 11 PARTIES TO OFFENCES (2) CORPORATIONS AND CHILDREN 94 Corporations........................ 11.1 94 Liability of officer of corporation ............. 11.17 99 Children .......................... 11.21 100 CHAPTER 12 MENTAL DISORDER AND INCAPACITY 102 Mental disorder 102 Present law ...................... 12.1 102 Disability in relation to trial ............. 12.4 103 Mental disorder verdicts ............... 12.5 104 Plea of not guilty by reason of mental disorder ... 12.22 110 Evidence of mental disorder and automatism .... 12.25 110 Disposal after mental disorder verdict ........ 12.29 111 Further effect of mental disorder verdict ....... 12.30 111 Incapacity 111 Automatism and physical incapacity ......... 12.31 111 CHAPTER 13 DEFENCES 114 Introduction ........................ 13.1 114 Belief in circumstance affording a special defence .... 13.2 114 General defences...................... 13.8 115 Defence of duress ..................... 13.15 117 Defence of Necessity ................... 13.25 119 Use of force in public or private defence. ......... 13.30 121 1 Acts authorised by law .................. 13.58 128 Acts justified or excused by law .............. 13.64 129 Non-publication of statutory instrument ......... 13.68 129 CHAPTER 14 PRELIMINARY OFFENCES 131 Introduction ........................ 14.1 131 Incitement to commit an offence ............. 14.4 132 Prosecution and punishment of incitement ..... 14.13 135 Conspiracy to commit an offence ............. 14.17 136 Prosecution and punishment of conspiracy ..... 14.27 140 Attempt to commit an offence .............. 14.28 140 Prosecution and punishment of attempt ....... 14.36 142 Impossibility and preliminary offences .......... 14.40 142 1 Jurisdiction and preliminary .offences ........... 14.42 143 Possible defence of withdrawal .............. 14.44 144 CHAPTER 15 OFFENCES AGAINST THE PERSON 145 Introduction ........................ 15.1 145 Murder .......................... 15.2 145 Manslaughter ....................... 15.5 145 Diminished responsibility ................. 15.9 146 Provocation ........................ 15.16 148 V Paragraph Page Killing by the use of excessive force in public or private defence ......................... I 5. I8 149 Jurisdiction over murder and manslaughter ....... 15.20 149 Attempted manslaughter ................. 1 5.25 150 Liability of party not having a defence .......... 15.26 150 Killing in pursuance of a suicide pact ........... 15.29 151 Complicity in suicide ................... 15.3 1 151 Infanticide ......................... 15.32 152 Threats to kill or cause serious injury ........... 15.34 152 Causing the death of another ............... 15.35 152 Abortion .......................... 15.38 153 Supplying article for abortion ............... 15.40 153 Child destruction ..................... 15.4 1 153 Intentional serious injury ................. 15.43 154 Reckless serious injury .................. 15.45 154 Intentional or reckless injury ............... 15.46 154 Assault ...............1 ........... 15.47 154 Administering a substance without consent ........ 15.52 156 Endangering traffic .................... 15.5 3 156 CHAPTER 16 OFFENCES OF DAMAGE TO PROPERTY 157 Introduction ........................ 16.1 157 Destroying or damaging property ............. 16.3 157 Threats to destroy or damage property .......... 16.7 158 Possessing anything with intent to destroy or damage property ......................... 16.8 159 Meaning of “belonging to another” ............ 16.9 159 Fungi and plants growing wild .............. 16.10 159 Application of special defences .............. 16.12 159 Consent or belief in consent ................ 16.13 159 Protection of persons and property ............ 16.15 159 Ancillary Provisions .................... 16.17 160 Concluding remarks .................... 160 Appendix A The contents of Part I1 of the Code .... 161 Appendix B: Proof and verdict at a trial for “murder in mitigating circumstances” ........ 164 Draft Criminal Code Bill ................. 167 vi CODIFICATION OF THE CRIMINAL LAW A Report to the Law Commission INTRODUCTION BY THE LAW COMMISSION To the Right Honourable the Lord Hailsham of St. Marylebone, C.H., Lord High Chancellor of Great Britain 1. This report has been drafted by a group of distinguished academic lawyers chaired by Professor J. C. Smith, C.B.E., Q.C., who have worked under the auspices of the Law Commission. It contains their Report on the General Principles of Law applicable to a Code of Criminal Law together with a Draft Criminal Code Bill which demonstrates how the principles of liability described in the Report might be enacted in legislative form. The Report and Draft Bill are submitted by the Commission as a further stage towards the codification of the criminal law, which it is one of the aims of the Commission to achieve. It is intended by the Commission to be a document for discussion upon which the views of the professions and the public are invited. 2. This Introduction to the Report of Professor Smith and his colleagues (hereafter referred to as the Criminal Code team) does not attempt to analyse or assess the content of the Report. Its principal concern is to point to those issues raised by the Report which, in the Commission’s view, will be of greatest
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