CRIMECRIME

Unit 19Unit 19

PreviewPreview 1. Purpose of criminal law 1. Purpose of criminal law 2. Defining a crime2. Defining a crime 3. Classification of offences 3. Classification of offences 2. What constitutes a crime?2. What constitutes a crime? 3. Burden and standard of proof3. Burden and standard of proof 4. Criminal law and human rights4. Criminal law and human rights 7. Participation7. Participation 8. Inchoate offences8. Inchoate offences 9. Limitations of capacity9. Limitations of capacity 10. General defences10. General defences 11. Types of offences11. Types of offences

Purpose of criminal law?Purpose of criminal law?

Protect individuals and their property Protect individuals and their property from harmfrom harm

Preserve order in societyPreserve order in society Punish offendersPunish offenders Enforce moral values? Enforce moral values?

Should the law enforce moral Should the law enforce moral values?values?

Intervention in private lives should Intervention in private lives should only be (Wolfenden Committee 1957):only be (Wolfenden Committee 1957):

To preserve public order and decencyTo preserve public order and decency To protect the citizen from what is To protect the citizen from what is

offensive and injuriousoffensive and injurious To provide safeguards against To provide safeguards against

exploitation and corruption of others, exploitation and corruption of others, esp. those who are especially esp. those who are especially vulnerablevulnerable

DEFINITIONDEFINITION

““A crime is a conduct forbidden by A crime is a conduct forbidden by the State and to which a punishment the State and to which a punishment has been attached because the has been attached because the conduct is regarded by the State as conduct is regarded by the State as being criminal”being criminal”

What conduct is criminal varies from What conduct is criminal varies from country to country, and from one country to country, and from one time to anothertime to another

Example of the changing nature Example of the changing nature of criminal lawof criminal law

The Criminal Law Amendment Act 1885 The Criminal Law Amendment Act 1885 criminalised consensual homosexual acts criminalised consensual homosexual acts between adults in privatebetween adults in private

The Sexual Offences Act 1967 decriminalised The Sexual Offences Act 1967 decriminalised such behaviour between those aged 21 and oversuch behaviour between those aged 21 and over

The Criminal Justice and Public Order Act 1994 The Criminal Justice and Public Order Act 1994 decriminalised such behaviour for those aged 18 decriminalised such behaviour for those aged 18 and overand over

In 2000 the Government reduced the age of In 2000 the Government reduced the age of consent for homosexual acts to 16, though the consent for homosexual acts to 16, though the Parliament Act had to be used as the House of Parliament Act had to be used as the House of Lords voted against the change in the lawLords voted against the change in the law

Judicial law-makingJudicial law-making

Some conduct is criminalised not by Some conduct is criminalised not by the State but by judgesthe State but by judges

Marital rape has been criminalised by Marital rape has been criminalised by the decisions of judges (R v R 1991)the decisions of judges (R v R 1991)

Classification of offencesClassification of offences

Classification by where a case will be Classification by where a case will be triedtried

Classification by the type of harm Classification by the type of harm caused by the crimecaused by the crime

Classification by where a case will Classification by where a case will be triedbe tried

1. Indictable offences- tried on indictment 1. Indictable offences- tried on indictment at the Crown Court (murder, at the Crown Court (murder, manslaughter, rape)manslaughter, rape)

2. Offences triable either way (theft, 2. Offences triable either way (theft, burglary, assault occasioning actual bodily burglary, assault occasioning actual bodily harm)harm)

3. Summary offences which can only be 3. Summary offences which can only be tried at the Magistrates’ Court (common tried at the Magistrates’ Court (common assault)assault)

Classification by the type of harm Classification by the type of harm caused by the crimecaused by the crime

Offences against the personOffences against the person Offences against propertyOffences against property Offences against public orderOffences against public order

What constitutes a crime?What constitutes a crime?

In order to be convicted, the accused In order to be convicted, the accused must be shown to have committed must be shown to have committed an unlawful act (an unlawful act (actus reusactus reus) with a ) with a criminal state of mind (criminal state of mind (mens reamens rea))

Elements of a crimeElements of a crime

ACTUS REUS + MENS REA = ACTUS REUS + MENS REA = OFFENCEOFFENCE

Lat: Lat: Actus non facit reum nisi mens Actus non facit reum nisi mens sit rea sit rea = ‘the act itself does not = ‘the act itself does not constitute guilt unless done with a constitute guilt unless done with a guilty mind’guilty mind’

Actus reusActus reus

The physical element of a crimeThe physical element of a crime It can be: It can be: 1. An act (e.g. theft)1. An act (e.g. theft) 2. An omission to act (e.g. wilful 2. An omission to act (e.g. wilful

neglect of a child)neglect of a child) 3.A state of affairs (e.g. being drunk 3.A state of affairs (e.g. being drunk

in a public place)in a public place)

Mens reaMens rea

The mental element of an offence; The mental element of an offence; the state of mind that the prosecution the state of mind that the prosecution must prove that defendant had at the must prove that defendant had at the time of committing a crime in order to time of committing a crime in order to secure convictionsecure conviction

Intention to bring about a particular Intention to bring about a particular consequence, or recklessness as to consequence, or recklessness as to whether such consequences may whether such consequences may come aboutcome about

Strict liabilityStrict liability

Liability for a crime imposed without Liability for a crime imposed without the necessity of proving the necessity of proving mens reamens rea

E.g. offences relating to the E.g. offences relating to the production and marketing of food, production and marketing of food, offences relating to road trafficoffences relating to road traffic

Burden and standard of proof Burden and standard of proof

The burden is on the prosecution to prove The burden is on the prosecution to prove its case by establishing both actus reus its case by establishing both actus reus and mens reaand mens rea

The standard of proof: ‘beyond reasonable The standard of proof: ‘beyond reasonable doubt’doubt’

If a defendant raises a defence, it is for the If a defendant raises a defence, it is for the prosecution to negate that defence. In prosecution to negate that defence. In WoolmingtonWoolmington the defendant stated that the defendant stated that the gun had gone off accidentally, raising the gun had gone off accidentally, raising the defence of accident.the defence of accident.

Burden and standard of proofBurden and standard of proof

For certain defences the burden of For certain defences the burden of proof is on the defendant, e.g. the proof is on the defendant, e.g. the defence of insanity defence of insanity

Where the defendant has to prove a Where the defendant has to prove a defence, the standard is the civil one defence, the standard is the civil one of balance of probabilitiesof balance of probabilities

Criminal law and human rightsCriminal law and human rights

The Human Rights Act 1998 The Human Rights Act 1998 incorporated the European incorporated the European Convention on Human Rights into Convention on Human Rights into English lawEnglish law

Criminal law and human rightsCriminal law and human rights

The most relevant rights under the The most relevant rights under the Convention:Convention:

The right to a fair trial (Art 6(1)The right to a fair trial (Art 6(1) The presumption of innocence (Art 6 The presumption of innocence (Art 6

(2)(2) No punishment without law (Art 7(1)No punishment without law (Art 7(1)

No punishment without lawNo punishment without law

Nulla poena sine legeNulla poena sine lege ‘‘No one shall be held guilty of any No one shall be held guilty of any

criminal offence on account of any criminal offence on account of any act or omission which did not act or omission which did not constitute a criminal offence under constitute a criminal offence under national law or international law at national law or international law at the time it was committed.’ (Art7(1)the time it was committed.’ (Art7(1)

Criminal law and human rightsCriminal law and human rights

Other relevant Convention rights:Other relevant Convention rights: The right not to be subjected to inhuman The right not to be subjected to inhuman

or degrading treatment or punishment or degrading treatment or punishment (Art(1)(Art(1)

The right of respect for a person’s private The right of respect for a person’s private life (Art 8)life (Art 8)

That, in the application of the Convention That, in the application of the Convention rights and freedoms, there should be no rights and freedoms, there should be no discrimination on the grounds of sex, race, discrimination on the grounds of sex, race, colour, religion or political opinion (Art 14)colour, religion or political opinion (Art 14)

ParticipationParticipation

Principal offenderPrincipal offender Innocent agentInnocent agent Secondary partySecondary party

Principal offenderPrincipal offender

The person whose act is the The person whose act is the immediate cause of the immediate cause of the actus reus actus reus and has the necessary and has the necessary mens rea mens rea to to be guilty of an offencebe guilty of an offence

There can be two or more joint or co-There can be two or more joint or co-principalsprincipals

Innocent agentsInnocent agents

An innocent agent is someone whom An innocent agent is someone whom the principal uses to do the act; one the principal uses to do the act; one who acts as a ‘puppet’who acts as a ‘puppet’

Innocent agentsInnocent agents

The agent may be innocent because:The agent may be innocent because: They do not have the capacity to They do not have the capacity to

commit the offence, e.g. where a child commit the offence, e.g. where a child under the age of ten is used by an under the age of ten is used by an adult to steal, oradult to steal, or

They do not have the necessary They do not have the necessary mens mens rearea, or, or

They have a defence such as insanity They have a defence such as insanity or automatismor automatism

Secondary partiesSecondary parties

Also: accessoryAlso: accessory Guilty of the main crime and liable to Guilty of the main crime and liable to

the same punishment as the the same punishment as the principalprincipal

Can be convicted if there was Can be convicted if there was an an actus reusactus reus for the main offence for the main offence

Secondary partiesSecondary parties

A secondary party can be convicted A secondary party can be convicted even though the principal is even though the principal is acquitted, if the acquitted, if the actus reus actus reus was was committed, but the principal lacked committed, but the principal lacked the required the required mens reamens rea, or, or

has a defence not available to the has a defence not available to the secondary partysecondary party

The The actus reus actus reus and and mens rea mens rea for secondary participationfor secondary participation

The secondary party must ‘aid, abet, The secondary party must ‘aid, abet, counsel or procure’ the commission counsel or procure’ the commission of an offenceof an offence

Inchoate offenceInchoate offence

An incomplete offence; one which is An incomplete offence; one which is just begun or is undeveloped; the just begun or is undeveloped; the main offence has yet to be main offence has yet to be committedcommitted

Inchoate offencesInchoate offences

IncitementIncitement ConspiracyConspiracy attemptattempt

Inchoate offencesInchoate offences

For an inchoate offence the For an inchoate offence the defendant is charged with inciting or defendant is charged with inciting or conspiring or attempting to do the conspiring or attempting to do the substantive crime involved, e.g. substantive crime involved, e.g. conspiring to murder or attempting conspiring to murder or attempting to stealto steal

Limitations on capacityLimitations on capacity

Children under the age of tenChildren under the age of ten Mentally ill persons: unfitness to Mentally ill persons: unfitness to

plead, insanity at time of offence, plead, insanity at time of offence, diminished responsibilitydiminished responsibility

Corporate liabilityCorporate liability

Children under the age of 10Children under the age of 10

S50 Children and Young Persons Act S50 Children and Young Persons Act 1933 ‘it shall be conclusively 1933 ‘it shall be conclusively presumed that no child under the presumed that no child under the age of ten can be guilty of any age of ten can be guilty of any offence’ – offence’ – doli incapax doli incapax presumptionpresumption

Children aged ten and overChildren aged ten and over

S34 Crime and Disorder Act 1998 S34 Crime and Disorder Act 1998 abolished the presumption that a abolished the presumption that a child aged 10 to 13 is incapable of child aged 10 to 13 is incapable of committing an offence; a child aged committing an offence; a child aged 10 and over is considered to be ‘as 10 and over is considered to be ‘as responsible for his actions as if he responsible for his actions as if he were 40’were 40’

Children aged ten and overChildren aged ten and over

For all but the most serious offences For all but the most serious offences children (10-13) and young persons children (10-13) and young persons (14-17) are tried in the Youth Court(14-17) are tried in the Youth Court

Where a child or a young person is tried Where a child or a young person is tried in the Crown Court special in the Crown Court special arrangements must be made to allow arrangements must be made to allow him to participate effectively in the trialhim to participate effectively in the trial

Sentencing powers – different from Sentencing powers – different from those for adultsthose for adults

Mentally ill personsMentally ill persons

Where the defendant is unable to Where the defendant is unable to understand the charge against him so as understand the charge against him so as to be able to make a proper defence, he to be able to make a proper defence, he may be found unfit to plead (Criminal may be found unfit to plead (Criminal Procedure (Insanity) Act 1964)Procedure (Insanity) Act 1964)

Where a person is fit to plead but is Where a person is fit to plead but is found to be insane at the time he found to be insane at the time he committed the offence a special verdict committed the offence a special verdict of ‘Not guilty by reason of insanity’ is of ‘Not guilty by reason of insanity’ is given by the jury’given by the jury’

Diminished responsibilityDiminished responsibility

A partial defence which is only available A partial defence which is only available on a charge of murder operates where a on a charge of murder operates where a person suffers from an abnormality of person suffers from an abnormality of the mind which substantially impairs his the mind which substantially impairs his mental responsibility for his acts or mental responsibility for his acts or omissions in doing or being a party to omissions in doing or being a party to the killing (s2 Homicide Act 1957)the killing (s2 Homicide Act 1957)

If the defence is successful the charge of If the defence is successful the charge of murder is reduced to manslaughtermurder is reduced to manslaughter

Corporate liabilityCorporate liability

A corporation – a legal personA corporation – a legal person A corporation cannot be convicted of an offence A corporation cannot be convicted of an offence

where the only punishment available is physical, where the only punishment available is physical, e.g. life imprisonment for murdere.g. life imprisonment for murder

A corporation cannot commit crimes of a physical A corporation cannot commit crimes of a physical nature, such as bigamy, rape or perjury, though it nature, such as bigamy, rape or perjury, though it may be possible for a corporation to be liable as may be possible for a corporation to be liable as an accessoryan accessory

A corporation can be liable for manslaughter A corporation can be liable for manslaughter (P&O European Ferries (Dover) Ltd (19919(P&O European Ferries (Dover) Ltd (19919

General defencesGeneral defences

InsanityInsanity AutomatismAutomatism Duress Duress Necessity Necessity MistakeMistake Self-defenceSelf-defence Consent Consent

InsanityInsanity

The defendant must prove that at The defendant must prove that at the time of committing the act, ‘he the time of committing the act, ‘he was labouring under such a defect of was labouring under such a defect of reason, from disease of mind, as not reason, from disease of mind, as not to know the nature and quality of the to know the nature and quality of the act he was doing, or if he did know it, act he was doing, or if he did know it, that he did not know he was doing that he did not know he was doing what was wrong’.what was wrong’.

Insanity Insanity

The burden of proof is on the The burden of proof is on the defendant and it is established on defendant and it is established on the balance of probabilitiesthe balance of probabilities

If proved, the verdict is ‘not guilty by If proved, the verdict is ‘not guilty by reason of insanity’reason of insanity’

Automatism Automatism

‘‘an act done by the muscles without an act done by the muscles without any control by the mind, such as a any control by the mind, such as a spasm, a reflex action or a spasm, a reflex action or a convulsion; or an act done by a convulsion; or an act done by a person who is not conscious of what person who is not conscious of what he is doing, such as an act done he is doing, such as an act done whilst suffering from concussion or whilst suffering from concussion or whilst sleep-walking’whilst sleep-walking’

Types of automatismTypes of automatism

Insane automatism; the defence of Insane automatism; the defence of insanityinsanity

Non-insane automatism; external Non-insane automatism; external causecause

Duress Duress

If the defendant has been forced to If the defendant has been forced to commit the crimecommit the crime

The defendant has to choose The defendant has to choose between being killed or seriously between being killed or seriously injured or committing a crimeinjured or committing a crime

Necessity Necessity

Principles: Principles: The act was done in order to avoid consequences The act was done in order to avoid consequences

which could not otherwise be avoidedwhich could not otherwise be avoided Those consequences, if they had happened, Those consequences, if they had happened,

would have inflicted inevitable and irreparable would have inflicted inevitable and irreparable evilevil

That no more was done than was reasonably That no more was done than was reasonably necessary for the purposenecessary for the purpose

That the evil inflicted was not disproportionate to That the evil inflicted was not disproportionate to the evil avoidedthe evil avoided

Mistake Mistake

A mistake about a fact; no A mistake about a fact; no mens reamens rea (e.g. X picks up an umbrella from a (e.g. X picks up an umbrella from a

stand as he is leaving in the stand as he is leaving in the mistaken belief that it is his; no mistaken belief that it is his; no mens mens rea rea required for theft)required for theft)

Self-defenceSelf-defence

Covers not only actions needed to Covers not only actions needed to defend oneself from an attack, but defend oneself from an attack, but also actions taken to defend another also actions taken to defend another or prevent crimeor prevent crime

The force used to defend oneself or The force used to defend oneself or another must be reasonable in the another must be reasonable in the circumstancescircumstances

Consent Consent

Whether the victim has consented or Whether the victim has consented or not is an essential factor in many not is an essential factor in many offencesoffences

Not strictly a defence, because Not strictly a defence, because where the other person consents where the other person consents there is no offence (sexual offences)there is no offence (sexual offences)

Minors under the age of 16 cannot Minors under the age of 16 cannot consent to an indecent assaultconsent to an indecent assault

Homicide Homicide

Murder Murder Manslaughter: 1. voluntary Manslaughter: 1. voluntary

(defences: diminished responsibility; (defences: diminished responsibility; provocation; suicide pact); 2. provocation; suicide pact); 2. involuntary (constructive, gross involuntary (constructive, gross negligence; reckless)negligence; reckless)

Statutory offences: 1. causing death Statutory offences: 1. causing death by dangerous driving; 2. infanticideby dangerous driving; 2. infanticide

Constructive manslaughterConstructive manslaughter

The death must be caused by an The death must be caused by an unlawful act; a civil wrong is not unlawful act; a civil wrong is not enoughenough

E.g. assisted suicideE.g. assisted suicide There must be an act: an omission is There must be an act: an omission is

not enoughnot enough

Gross negligenceGross negligence

A defendant who owes the victim a A defendant who owes the victim a duty of care does a lawful act or duty of care does a lawful act or omission in a very negligent way omission in a very negligent way (e.g. a duty of a doctor to his patient; (e.g. a duty of a doctor to his patient; duty of the owner of a sailing ship to duty of the owner of a sailing ship to his crew)his crew)

Non-fatal offences against the Non-fatal offences against the personperson

Common assaultCommon assault Assault occasioning actual bodily Assault occasioning actual bodily

harmharm Maliciously wounding or inflicting Maliciously wounding or inflicting

grievous bodily harmgrievous bodily harm Wounding or causing grievous bodily Wounding or causing grievous bodily

harm with intentharm with intent Racially aggravated assaultsRacially aggravated assaults

Common assaultCommon assault

AssaultAssault Battery Battery

Assault Assault

The defendant intentionally or The defendant intentionally or recklessly causes another person to recklessly causes another person to fear immediate unlawful personal fear immediate unlawful personal violenceviolence

Actus reusActus reus: some act or words; fear : some act or words; fear of any unwanted touching is of any unwanted touching is sufficient: the force or unlawful sufficient: the force or unlawful personal violence which is feared personal violence which is feared need not be seriousneed not be serious

Battery Battery

The defendant intentionally or The defendant intentionally or subjectively recklessly applies subjectively recklessly applies unlawful force to anotherunlawful force to another

Force can include the slightest Force can include the slightest touchingtouching

Assault occasioning actual Assault occasioning actual bodily harmbodily harm

Requires an assault or batteryRequires an assault or battery This must cause actual bodily harmThis must cause actual bodily harm Actual bodily harm – ‘any hurt or Actual bodily harm – ‘any hurt or

injury calculated to interfere with the injury calculated to interfere with the health or comfort’ of the victimhealth or comfort’ of the victim

Malicious wounding/inflicting Malicious wounding/inflicting grievous bodily harmgrievous bodily harm

Grievous bodily harm – ‘really serious Grievous bodily harm – ‘really serious harm’; severe bruising when the harm’; severe bruising when the victim is a young child or frail person; victim is a young child or frail person; serious psychiatric injury; a cut of serious psychiatric injury; a cut of internal skininternal skin

Racially aggravated assaultsRacially aggravated assaults

Under s29 Crime and Disorder Act 1998, Under s29 Crime and Disorder Act 1998, a common assault or an offence a common assault or an offence becomes a racially aggravated assault if becomes a racially aggravated assault if the offender demonstrates towards the the offender demonstrates towards the victim hostility based on the victim’s victim hostility based on the victim’s membership of a racial groupmembership of a racial group

The maximum penalty increased from 6 The maximum penalty increased from 6 months to 2 years for common assault months to 2 years for common assault and from 5 to 7 years for serious and from 5 to 7 years for serious assaultsassaults

Sexual offencesSexual offences

Rape Rape Assault by penetrationAssault by penetration Sexual assault (replaces indecent assault)Sexual assault (replaces indecent assault) Rape and other offences against children Rape and other offences against children

under 13under 13 Sexual activity with a child (replaces the Sexual activity with a child (replaces the

offence of unlawful sexual intercourse with offence of unlawful sexual intercourse with a girl under 16)a girl under 16)

Offences involving family membersOffences involving family members

Theft and related offencesTheft and related offences

Theft Theft Robbery Robbery BurglaryBurglary Vehicle takingVehicle taking Handling stolen goodsHandling stolen goods Making off without paymentMaking off without payment Blackmail Blackmail

Deception offencesDeception offences

DeceptionDeception Fraud Fraud

Deception Deception

Obtaining property by deceptionObtaining property by deception Obtaining a money transfer by Obtaining a money transfer by

deceptiondeception Obtaining a pecuniary advantage by Obtaining a pecuniary advantage by

deceptiondeception Obtaining services by deceptionObtaining services by deception Evasion of liabilityEvasion of liability

Fraud Fraud

Fraud by false representationFraud by false representation Fraud by failing to disclose Fraud by failing to disclose

informationinformation Fraud by abuse of positionFraud by abuse of position Obtaining services by deceptionObtaining services by deception

Criminal damageCriminal damage

Endangering lifeEndangering life Arson Arson

Public order offencesPublic order offences Riot (12 or more persons)Riot (12 or more persons) Violent disorder (3 or more persons)Violent disorder (3 or more persons) Affray (1 person; if a person uses or threatens to use Affray (1 person; if a person uses or threatens to use

violence, e.g. carrying dangerous weapons)violence, e.g. carrying dangerous weapons) Fear or provocation of violence (using threatening, abusive Fear or provocation of violence (using threatening, abusive

or insulting words or behaviour; distributing or displaying or insulting words or behaviour; distributing or displaying any writing, sign or other visible representation which is any writing, sign or other visible representation which is threarening, abusive or insulting)threarening, abusive or insulting)

Harassment offencesHarassment offences Racially aggravated offencesRacially aggravated offences