Understanding Criminal Law

Rodger Geary

• Publisher: Routledge-Cavendish
• Year: 2012
• ISBN:
  9781135336851
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

Understanding Criminal Law clarifies a subject which students often find somewhat difficult and confusing. This difficulty stems partly from the rapid changes which criminal law undergoes, through frequent statutory amendments and judicial decisions, but more importantly from the sheer complexity of the subject matter.

This book provides a clear and concise text for those studying traditional black-letter substantive criminal law. The author takes a logical and straightforward approach, specifically designed to enable the reader to quickly master the basic principles and ensure examination success. Emphasis is given to major case law, relevant statutory provisions and writings of academic commentators. In selected areas the book evaluates the law and suggests possible reforms; this evaluative aspect is intended to stimulate the reader to think more critically about the subject without engendering confusion about basic principles.

Although designed primarily for full-time undergraduate LLB students, the book should also prove useful for those studying criminal law on part-time courses, as well as those on Diploma in Law courses, and students of A and AS Level Law. It is also ideal for the study of criminal law on modular courses and joint degrees.

Chapter 1

Introduction to Criminal Law

The Definition of a Crime

When a student of criminal law is asked to define the subject matter of his field of study, he is immediately put into a position somewhat reminiscent of a First World War infantryman being sent over the top to negotiate his way through a minefield of unexpected procedural, linguistic and philosophic difficulties. The main problem originates from the fact that the concept of crime encompasses two distinct although overlapping ideas: that of behaviour; and that of the official status, or criminal label, which is attached to the behaviour. Because the official status of the same behaviour may well change over time, it is impossible to formulate a definition which would enable us to identify any individual act as a crime or not a crime. When the criminal label is applied to, or removed from, a particular form of behaviour by the legislature or the courts, the nature of the act does not change only its legal status. Any attempt at a definition of crime based on behaviour will include a description of the behaviour both when it is and when it is not afforded the status of a crime. For example, the act of taking one’s own life was a crime until the Suicide Act 1961 made this activity perfectly lawful. The nature and, possibly, the morality of the act of suicide did not change dramatically in 1961, but its legal status did.

Although a definition of crime based on behaviour would appear impossible, it is possible to identify several characteristics which are generally found among actions which are labelled as crimes. One characteristic of a crime which is often emphasised is that it involves immoral conduct. To some extent, criminal law can be seen as an embodiment of a society’s moral beliefs; the crimes of murder, rape, robbery and theft, among many others, no doubt reflect a widespread consensus about what amounts to unacceptable behaviour. However, immorality cannot constitute a defining characteristic of a crime, since many forms of behaviour have been criminalised on grounds of social expediency rather than because of their immoral nature. Moreover, some acts which may be widely regarded as immoral, for example, adultery, are not crimes. Additionally, a consensus about the morality of some actions may not always be possible in a pluralistic society such as modern Britain. Thus, the immorality of particular behaviour, even assuming that agreement can be reached on what constitutes immorality, cannot amount to a satisfactory defining feature of crime.

A separate but related and much debated question is whether an act ought to be defined as a crime simply because it is considered to be immoral. The view of the Wolfenden Committee on Homosexual Offences and Prostitution was that: ‘It is not ... the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined.’These ‘purposes’ included the preservation of public order and decency, the protection of the public from offensive and injurious conduct, and the provision of safeguards against exploitation and corruption, but did not involve preventing mere outrage and disgust (Wolfenden Committee on Homosexual Offences and Prostitution, 1957, Cmnd 247, London: HMSO, para 13). An alternative view was put by Lord Devlin in his book, The Enforcement of Morality. He argued that there is a public morality which bonds society together and which ought to be enforced by the criminal law. Lord Devlin’s views have had their supporters and critics and the debate has been given fresh impetus by the decision of the House of Lords in R v Brown and Others (1993), where consensual homosexual, sado-masochistic acts, performed in private for the mutual enjoyment of all concerned, were held to be crimes (for an assessment of Lord Devlin’s views, see Hart, HLA, Law, Liberty and Morality, 1962, Oxford: OUP;Williams, G, ‘Authoritarian morals and criminal law’ [1966] Crim LR 132).

Another characteristic of crimes is that they are actions which go often beyond mere interference with private rights and are said to have a harmful effect on the public. Thus, Lord Hewart CJ, in R v Bateman (1925), stated that the degree of negligence required for the crime of killing by gross negligence was a failure, by the defendant, to conform to the standards of the reasonable man, which was so gross as to go beyond a mere matter of compensation between subjects. It must involve negligence so culpable that the State would intervene to punish it in the criminal courts, regardless of whether the victim decided to pursue the matter in the civil courts. This approach involves circular reasoning in that it does not amount to much more than stating that a crime is a crime if it is sufficiently serious to merit the application of a criminal sanction.

Because of the definitional difficulties mentioned above, the by now somewhat shell-shocked student of criminal law can be excused for taking refuge in a pragmatic definition which focuses on the criminal label, rather than the nature, of the act. A crime is an act which the judiciary or the legislature have laid down should warrant the application of criminal procedure. This is a sound, although limited, definition from which to commence a study of criminal law, provided it is remembered that it tells us nothing about the nature of criminal acts, nor does it help identify actions which ought to be crimes.

The Classification of Criminal Offences

At common law, prior to the enactment of the Criminal Law Act 1967, crimes were classified as being either treasons, felonies (that is, the more serious offences) or misdemeanours (that is, the less serious offences). Felonies and misdemeanours were abolished by the 1967 Act, although the difference between serious and minor offences in now reflected for procedural purposes in a distinction between summary and indictable offences. The important distinction between trial on indictment and summary trial is that the former involves trial by jury whereas the latter does not. Of course, there are many crimes whose gravity depends upon the circumstances of the individual case and which constitute a third category of offences: triable either way (that is, an offence which can be tried on indictment or summarily). It should be noted that the whole issue of which crimes should involve trial by jury is currently being debated, as it tends to be during periods when there are concerns about the cost and efficacy of the criminal justice system, and the position may well change. However, the basis for the present method of classification is now to be found in the Magistrates’ Courts Act 1980.

Offences Triable Summarily Only

Summary offences can be only heard in the magistrates’ court. These offences tend to be the least serious and are the creation of statute. Examples of this type of offence include common assault and battery and taking vehicles without consent (Criminal Justice Act 1988).

Offences Triable Only on Indictment

These offences are the most serious and can only be heard before a judge and jury in the Crown Court. Such offences include murder, treason, robbery and causing death by dangerous driving.

Offences Triable Either Way

These offences are capable of being tried either in the magistrates’ court or the Crown Court. Such offences tend to encompass a wide range of behaviour, varying in seriousness. For example, an 11 year old child who steals sweets from a corner shop and a professional criminal who takes millions of pounds from a bank both commit theft. Although the two forms of behaviour are very different, they fall within the same legal definition. Clearly, it would be incongruous and unjust if the proceedings were the same in both cases. Theft, together with obtaining property by deception and handling stolen goods, are examples of offences triable either way.

In the case of offences triable either way, it is for the court to decide, having heard representations from both the prosecution and the defendant and having given due consideration to the circumstances of the case, which is the more appropriate mode of trial (s 19 of the Magistrates’ Courts Act 1980). Even if the magistrates decide that the offence ought to be dealt with summarily, the defendant can still exercise his right to trial by jury in the Crown Court. However, a defendant has no right to insist on a summary trial if the court considers trial on indictment to be appropriate.

Burden of Proof and Standard of Proof

It is a general principle of English and Welsh criminal law that a person is innocent of any criminal offence until proved guilty. The burden, therefore, falls on the prosecution, who must prove that the defendant is guilty beyond reasonable doubt (that is, the standard of proof). In Woolmington v DPP (1935), the House of Lords held that it is not for the defendant to prove his innocence and that he is entitled to the benefit of any doubt as to his guilt. There is only one exception to this principle at common law – the defence of insanity – when the defendant has the burden of proving that he was insane at the time the crime was committed. He does not have to satisfy the heavy onus of proving insanity beyond reasonable doubt; proof on a balance of probabilities will suffice (R v Carr-Briant (1943)).

In the case of other defences, such as non-insane automatism, provocation, duress and self-defence, the law usually requires that the defendant produce some credible evidence to support the defence and then the onus of proof will shift back to the prosecution who must prove that the defendant is not entitled to the defence beyond reasonable doubt.

The Appeals Process

It is important to understand the appeals process because much of the criminal law is established as a result of appeal decisions. Crown Court decisions are relatively unimportant since this court occupies a relatively lowly position in the hierarchy of courts. The most important decisions are those of the House of Lords, those of the Court of Appeal and, to a lesser extent, those of the Divisional Court of the Queen’s Bench Division of the High Court.

Summary Trials

The defendant or the prosecution can appeal by way of case stated to the Divisional Court of the Queen’s Bench Division on the grounds that the magistrates’ court exceeded its jurisdiction or that it misunderstood or misapplied the law. The appeal will normally be heard by two or three Court of Appeal or High Court judges. There can be a further appeal direct to the House of Lords if the Divisional Court certifies that a point of law of general public importance is involved and either the Divisional Court or the House of Lords grants leave to appeal. Cases in the House of Lords are normally decided by five Law Lords.

A defendant may also appeal from the magistrates’ court against conviction to the Crown Court. The appeal is usually heard by a circuit judge assisted by two lay magistrates.

Trials on Indictment

A defendant can appeal from the Crown Court to the Court of Appeal with the permission of the trial judge, or leave from the Court of Appeal, on the sole ground that the conviction was ‘unsafe’ (s 2(1) of the Criminal Appeal Act 1995). If the defendant was acquitted at first instance, the Attorney General may appeal to the Court of Appeal for a ruling on a point of law, although the defendant’s acquittal remains unaffected. There can also be an appeal by the Attorney General to the Court of Appeal if he considers that a sentence given in the Crown Court was unduly lenient and wrong in law. The Court of Appeal will then pronounce a ‘guideline sentence’ which trial judges are, thereafter, expected to follow (s 35 of the Criminal Justice Act 1988). It is also possible for a defendant convicted in the Crown Court, with leave of the Court of Appeal, to appeal to the Court of Appeal against the sentence imposed. Appeals in the Court of Appeal may be heard by two or three Court of Appeal judges, but are more usually heard by one Court of Appeal judge sitting with one High Court judge and one senior circuit judge.

Either the prosecution or the defence may make a further appeal to the House of Lords on a point of law, provided the Court of Appeal has certified the point as being of general public importance, and either the Court of Appeal or the House of Lords has granted leave to appeal.

It should be noted that in July 2002, the Government announced its intention of abolishing the ‘double jeopardy’ rule, thus allowing defendants to be tried more than once for the same crime.

Miscarriages of Justice

Following revelations in the cases of the ‘Guildford Four’ and the ‘Birmingham Six’, considerable disquiet arose concerning the operation of the criminal justice system in general and, in particular, the role of the Court of Appeal. In March 1991, the then Home Secretary announced the establishment of a Royal Commission, under Lord Runciman, to investigate ever y aspect of the criminal process, from pre-trial procedures to the handling of alleged miscarriages of justice by the Court of Appeal. As a result of the Royal Commission’s recommendations, the Criminal Cases Review Commission has been established to investigate cases involving an alleged miscarriage of justice and to refer the case, if appropriate, to the Court of Appeal (Criminal Appeal Act 1995).

Chapter 2

The Elements of a Crime

Actus Reus and Mens Rea

As we have noted, a crime is conduct which has been defined as such by statute or by common law. It is a general principle of the criminal law that a person may not be convicted of a crime unless he has acted in a prohibited way with a defined state of mind. The prohibited act is called the actus reus and the defined state of mind is the mens rea of the crime. The main exceptions to this principle are ‘state of affairs’ offences, where no conduct as such need be established, and crimes of ‘strict liability’, where no mens rea need be proved. Of course, a defendant who commits an actus reus with the appropriate mens rea may still avoid conviction if he has a valid defence. A crime can therefore be said to consist of an actus reus and mens rea together with the absence of a valid defence.

A convenient way of remembering this is:

crime = AR + MR + absence of a valid defence.

Characteristics of an Actus Reus

Definition

An actus reus consists of all the elements in the statutory or common law definition of the offence except the accused’s mental elements. This can be remembered as:

actus reus = definition of the offence – mens rea.

Analysis of the Actus Reus

An actus reus can be identified by looking at the definition of the offence in question and subtracting the mens rea requirements of ‘knowingly’, ‘intentionally’, ‘recklessly’, ‘maliciously’ or ‘negligently’. What is left can generally be further analysed into the central conduct of the offence, the surrounding circumstances in which it takes place and, sometimes, the consequences of the conduct.

This process of identifying and analysing an actus reus can be illustrated in relation to s 1(1) of the Criminal Damage Act 1971 which provides:

A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether such property would be destroyed or damaged shall be guilty of an offence.

Once expressions relating to the mens rea requirements of intention or recklessness have been subtracted, it becomes clear that the actus reus consists of destroying or damaging pro...