Cases & Materials on Criminal Law

Fourth Edition

Mike Molan

• Publisher: Routledge-Cavendish
• Year: 2009
• ISBN:
  9781134096213
• Edition: 2
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Cases and Materials on Criminal Law provides a comprehensive selection of key materials drawn from law reports, legislation, Law Commission consultation papers and reports, and Home Office publications.

Clear and highly accessible, this volume is presented in a coherent structure and provides full coverage of the topics commonly found in the criminal law syllabus. The range of thoughtfully selected materials and authoritative commentary ensures that this book provides an essential collection of materials and analysis to stimulate the reader and assist in the study of this difficult and challenging area of law.

New features include:

• revised text design with clear page layout, headings and boxed and shaded sections to aid navigation and readability
• chapter introductions to highlight the salient features under discussion
• short chapter table of contents to enable easier navigation
• "Comments and Questions" sections to encourage students to reflect on their reading
• expanded further reading to encourage students to engage further with the subject
• a Companion Website to provide regular updates to the book.

Recent decisions of note that are extracted and analysed include R v Kennedy (manslaughter based on supply of heroin); Attorney General for Jersey v Holley (provocation); R v Mark and R v Willoughby (elements of killing by gross negligence); R v Barnes (consent as a defence to sporting injuries); Attorney General's Reference (No 3 of 2004) (accessorial liability) and R v Hatton (intoxicated mistake in self defence cases).

Consideration is also given to the likely changes to the law relating to corporate manslaughter, at the time of writing contained in the Corporate Manslaughter and Corporate Homicide Bill currently before Parliament.

Two major law reform publications are extensively extracted and contextualised in this 4th edition - the Law Commission's report on Murder, Manslaughter and Infanticide (Law Com No 304) and the Law Commission's Report on Inchoate Liability for Assisting and Encouraging Crime (Law Com No 300).

This book is an invaluable reference for students on undergraduate or CPE/PG Diploma in Law criminal law courses, particularly those studying independently or on distance learning programmes.

CHAPTER 1

INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES

CONTENTS

1.1	Introduction
1.2	What is criminal law?
1.3	Sources of criminal law
1.4	Interpreting criminal statutes
1.5	Classification of offences
1.6	The decision to prosecute
1.7	Establishing criminal liability – the burden and standard of proof
1.8	Criminal appeals
1.9	Codification of the criminal law
1.10	The impact of the Human Rights Act 1998 on substantive criminal law

1.1 INTRODUCTION

As a source of reference materials this is not a book designed to be read from beginning to end in a linear fashion. Most readers will dip into the chapters that follow in search of material relating to a specific aspect of the substantive criminal law. The substantive criminal law does not, however, exist in a vacuum. It is hard to have an effective understanding of the doctrinal aspects of criminal law without also having a grasp of the operational context. The materials that follow in this first chapter, therefore, provide a brief overview of the sources of criminal law, the approach taken by the courts in applying criminal statutes, the procedural options open to the prosecuting authorities, and the appeals processes that give rise to many of the precedents forming the backbone of the substantive law. The materials also illustrate the impact of the Human Rights Act 1998 on the operation of domestic substantive criminal law, and the contribution of the Law Commission to the on-going programme of law reform. There are many other interesting aspects of the criminal justice system that could be considered, such as punishment, crime prevention, and theories of deviancy, but they lie beyond the scope of this text.

1.2 WHAT IS CRIMINAL LAW?

Attempts to define criminal law are generally unhelpful if they stray far beyond restating the obvious – that criminal laws are prohibitions backed up by penal sanctions imposed on the actions of individuals (and corporate bodies) by those who hold sovereignty within the state. Attempting to find some moralistic basis for criminal law proves more elusive. It is not difficult to think of immoral activities that are not criminal (arguably infidelity), and activities that are criminal that one would hesitate to denounce as immoral (e.g. failing to display a car tax disc). In any event, notions of immorality are something of a moveable feast – consider the way in which the law relating to homosexual activity between consenting adult males has changed since 1967.

How does criminal law differ from other areas of law, and how does one define the subject? In terms of purpose criminal law is properly seen as falling within the sphere of public, as opposed to private, law. Whereas the law of negligence is largely concerned with determining liability to financially compensate the victim of a tort, criminal law looks at the broader issues – should the defendant’s wrongdoing be labelled as criminal; if so, what should be the degree of fault required for liability; what punishment should be imposed to ensure that others are deterred from similar wrongdoing and the public protected from the defendant? In short there are considerations that arise in criminal law that have no direct counterpart in private law. Whereas in a negligence action the victim is at the core of the case in terms of compensation, the interests of the victim in a criminal case are very much a secondary consideration. A negligence action cannot proceed unless the victim wants it to. A criminal case can proceed even with a reluctant or unwilling victim because the prosecution is in the hands of the state and its agencies. The proceedings are fulfilling a public purpose.

Criminal Law Doctrine and Theory – William Wilson (2nd ed, 2003) p 6

The major concerns of the criminal law may be expressed, therefore, as follows:

A The support of public interests in:

1 preventing physical injury. This accounts for the crimes of murder, manslaughter, arson and other crimes of violence; also certain road traffic offences and those relating to public health and safety.

2 proscribing personal immorality deemed injurious to society’s well-being. This accounts for crimes such as bigamy, incest, sado-masochism, bestiality and obscenity, drug possession and supply.

3 preventing the moral corruption of the young through crimes such as gross indecency with children and unlawful sexual intercourse.

4 maintaining the integrity of the state and the administration of justice through crimes such as treason, perjury, perverting the course of justice, tax evasion.

5 maintaining public order and security through offences such as riot, affray, breach of the peace, public drunkenness.

B That citizens remaining free from:

(a) undesired physical interference through crimes such as rape, assault, sexual assault, false imprisonment, harassment;

(b) offence through crimes such as indecent exposure, indecency in public, solicitation;

(c) undesired interference with property through crimes such as theft, robbery, taking and driving away a road vehicle, deception.

The Definition of Crime – Glanville Williams (1955) Current Legal Problems 107

Is the effort [to define crime] worth making? The answer is that lawyers must try to clarify the notion of ‘crime’, because it suffuses a large part of the law. For example: there is generally no time limit for criminal proceedings, whereas civil proceedings are commenced differently, and often in different courts. A criminal prosecutor generally need not be the victim of the wrong, and a private criminal prosecutor is for many purposes not regarded as a party to the proceedings; he is certainly not ‘master’ of the proceedings in the sense that he can drop them at will; these rules are different in civil cases. The law of procedure may generally be waived in civil but not in criminal cases. There are many differences in the law of evidence, and several in respect of appeal…

…The common-sense approach is to consider whether there are any intrinsic differences between the acts constituting crimes and civil wrongs respectively. It is perhaps natural to suppose that since ‘a crime’ differs from ‘a civil wrong’, there must be something in a crime to make it different from a civil wrong.

As everybody knows, there is one serious hindrance to a solution of this kind. This is the overlap between crime and tort. Since the same act can be both a crime and a tort, as in murder and assault, it is impossible to divide the two branches of the law by reference to the type of act. So also it is impossible to divide them by reference to the physical consequences of the act, for if the act is the same the physical consequences must be the same.

It has occurred to some that there is a possible escape from this difficulty. Although the act, and its consequences, are the same, the act and consequences have a number of different characteristics or aspects; and it may be possible to identify some of these characteristics as criminal and some as civil. Pursuing this line of thought, two separate aspects have been seized upon as identifying crime: the aspect of moral wrong and the aspect of damage to the public…

The proposition that crime is a moral wrong may have this measure of truth: that the average crime is more shocking, and has graver social consequences, than the average tort. Yet crimes of strict responsibility can be committed without moral wrong, while torts and breaches of trust may be, and often are, gross moral wrongs.

Even where a forbidden act is committed intentionally, a court deciding that it is a crime is not committed to the proposition that it is a moral wrong…

The second intrinsic difference between crimes and civil wrongs found by some writers is in respect of the damage done. In tort there is almost invariably actual damage to some person, whereas in crime such damage is not essential, the threat being to the community as a whole…Again there are formidable objections. Some torts do not require damage (such as trespass and libel), while many crimes do involve private damage. Some crimes are punished as an affront to the moral feelings of the community although they cause no damage to the community as a whole. This is true of the group of crimes having in differing degrees a religious aspect: blasphemy, attempted suicide, abortion, bigamy. It is also largely true of obscenity and adult homosexuality. Even murder need not cause public damage: for example, when a mother kills her infant child. This creates no general sense of insecurity; the only material loss to society is the loss of the child, and whether that is economically a real loss or a gain depends on whether the country is under- or over-populated at the time. Evidently, the social condemnation of infant-killing rests on non-utilitarian ethics…

…We have rejected all definitions purporting to distinguish between crimes and other wrongs by reference to the sort of thing that is done or the sort of physical, economic or social consequences that follow from it. Only one possibility now remains. A crime must be defined by reference to the legal consequences of the act. We must distinguish, primarily, not between crimes and civil wrongs but between criminal and civil proceedings. A crime then becomes an act that is capable of being followed by criminal proceedings, having one of the types of outcome (punishment, etc) known to follow these proceedings…

As stated at the outset, there are many differences of procedure between crimes and civil wrongs. Often these differences are of no help in distinguishing between the two, because they are consequential differences – it is only when you know that the act is a crime or a civil wrong respectively that you know which procedure to select. However, some elements in procedure do assist in making the classification. When Parliament passes a statute forbidding certain conduct, it may refer in terms to certain procedural matters – such as trial on indictment, or summary conviction – which indicate that the act is to be a crime. Again, when it is disputed whether a given proceeding, such as a proceeding for a penalty, is criminal or civil, a point can be scored by showing that this proceeding has been held in the past to be governed by some procedural rule which is regarded as indicative of a criminal or civil proceeding, as the case may be…

Since the courts thus make use of the whole law of procedure in aid of their task of classification, an attempt to define crime in terms of one item of procedure only is mistaken. This remark applies to the test of crime adopted by Kenny, following Austin and Clark, which links crime with the ability of the Crown to remit the sanction. This test tells you whether an act is a crime only if you already know whether the sanction is remissible by the Crown. Almost always, however, the latter has to be deduced from the former, instead of vice versa. Thus Kenny defines ignotum per ignotius. This objection would not be open if Kenny’s chosen procedural test were made available along with all the others. The procedural test does not give full assistance unless one is allowed to use the whole law of procedure.

…In short, a crime is an act capable of being followed by criminal proceedings having a criminal outcome, and a proceeding or its outcome is criminal if it has certain characteristics which mark it as criminal. In a marginal case the court may have to balance one feature, which may suggest that the proceeding is criminal, against another feature, which may suggest the contrary.

Walker, Crime and Criminology: A Critical Introduction (1987) pp 140–141

Objectives of the criminal law

Is it possible to discuss the proper content of the criminal law in general terms? If the contents of criminal codes are examined with a sociological eye, no fewer than fourteen different objectives can be discerned:

(a) the protection of human persons (and to some extent animals also) against intentional violence, cruelty, or unwelcome sexual approaches;

(b) the protection of people against some forms of unintended harm (for example from traffic, poisons, infections, radiation);

(c) the protection of easily persuadable classes of people (that is, the young or the weak-minded) against the abuse of their persons or property (for example by sexual intercourse or hire-purchase);

(d) the prevention of acts which, even if the participants are adult and willing, are regarded as ‘unnatural’ (for example incest,…bestiality, drug ‘trips’);

(e) the prevention of acts which, though not included under any of the previous headings, are performed so publicly as to shock other people (for example public nakedness, obscene language, or…copulation between consenting adults);

(f) the discouragement of behaviour which might provoke disorder (such as insulting words at a public meeting);

(g) the protection of property against theft, fraud, or damage;

(h) the prevention of inconvenience (for example the obstruction of roads by vehicles);

(i) the collection of revenue (for example keeping a motor car or television set without a licence);

(j) the defence of the State (for example espionage or – in some countries – political criticism);

(k) the enforcement of compulsory benevolence (for example the offence of failing to send one’s children to school);

(l) the protection of social institutions, such as marriage or religious worship (for example by prohibiting bigamy or blasphemy);

(m) the prevention of unreasonable discrimination (for example against ethnic groups, religions, the female sex);

(n) the enforcement of the processes regarded as essential to these other purposes (for example offences connected with arrest, assisting offenders to escape conviction, and testimony at trials).

1.3 SOURCES OF CRIMINAL LAW

The criminal law of England and Wales is made up of a patchwork of common law and statutory offences. Offences such as theft, burglary, robbery and fraud are based on comparatively recent statutory enactments; see the Theft Acts 1968, 1978 and the Fraud Act 2006. Sexual offences are now governed by the Sexual Offences Act 2003. Other offences, whilst statute based, are somewhat venerable – see for example grievous bodily harm, wounding and actual bodily harm – all offences still...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Preface
• Outline Contents
• Detailed Contents
• Table of Cases
• Table of Statutes
• 1 Introduction to Criminal Law: Framework and Procedures
• 2 Actus Reus: The External Elements of an Offence
• 3 Mens Rea: The Mental Element
• 4 Homicide
• 5 Non-fatal Offences Against the Person
• 6 Sexual Offences
• 7 Accessorial Liability
• 8 Inchoate Offences
• 9 Theft
• 10 The Fraud Act 2006
• 11 Robbery, Blackmail, Burglary and Going Equipped
• 12 Criminal Damage
• 13 Defences Where Mens Rea is Denied
• 14 Defences of Compulsion
• Index