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Introductory Lectures‘Complainants’ not victims. If deceased, ‘victim’.
Pre-trial – ‘suspect’. Trial – ‘defendant’. Convicted and appealed – ‘appellant’
s.24 PACE 1984 contains power of arrest. PACE Code C contains the police caution.
Public Interest, and Evidential tests are applied by CPS to decide whether to bring a charge.
Woolmington v DPP [1935] is authority for the idea of presumption of innocent.
Appeal via point of fact (jury incorrect), or point of law (judge misdirection/fault).
Require leave to appeal (ask CoA, or ask trail judge). Can appeal again, where 2/3 strong panel will
decide. CoA tends to grant appeals where is about substantive law in public interest. Also ask
whether conviction was safe.
Minor errors may not result in a decision being upheld.
Criminal Cases Review Commission is last point of call for appeal – can only advise retrial where new
evidence has come to light.
AG can refer cases to CoA whether sentences are ‘unduly lenient’ or where ‘law has been applied
wrongly’ resulted in acquittal. However, this will not result in a conviction.
Prosecution have less rights to appeal. Most rights relate to evidence, and any mistakes are usually
raised by prosecution before jury returns verdict. Exceptions allowing retrial may apply to very
serious offences.
Retrials can be ordered where an defence’s appeal is successful, and a retail is in interests of justice.
Criminal Law – Lecture 1
The module’s textbook is: Smith, Hogan and Ormerod’s ‘Criminal Law’ by David Ormerod
and Karl Laird (16th ed 2021).
Assessment is entirely end of year, with opportunity for favourable 25% in 3 hour January
exam.
The Criminal Law module is about:
The various definitions of crimes (we will focus on murder, voluntary and involuntary
manslaughter, gross negligence manslaughter, violent crimes that do not lead to
death, sexual offences, theft and fraud. But there will be other offences discussed).
criminal capacity and defences (self-defence, duress, necessity).
secondary and inchoate liability.
The study of Criminal Law covers the ‘recipes’ that make up specific offences* and defences,
the underlying principles by which they are interpreted, and the case for reform.
(* ‘crimes’ and ‘offences’ are used interchangeably)
,A criminal case is an action between the State (as prosecutor) and a private party (or
defendant). The victim of the offence, where relevant, may be simply a witness for the court.
That is why, unlike with civil law, the victim is not on our list of main actors’. (Smith, Hogan,
Child & Ormerod Essentials of Criminal Law – hereafter Essentials - 1.1.7.1.)
What is the basis on which conduct ought to be criminalized? Should conduct be
criminalised where it is morally wrong, a public wrong (wrongs concerning the public) , or
merely where it causes harm? For people interested: Douglas Husak, Overcriminalization —
The Limits of the Criminal Law (OUP, 2007).
Crimes as ‘Public’ Wrongs
‘[B]esides the injury done to individuals, [crimes] strike at the very being of society, which
cannot possibly subsist, where actions of [that] sort are suffered to escape with impunity…’
‘Victimising crimes such as murder, rape, wounding and fraud … are wrongs that properly
concern ‘the public’, ie wrongs that properly concern us all as citizens.’
Blackstone 1765-9 Book IV, quoted by Duff, Answering For Crime (2009) at 52.
Crimes as being ‘Morally wrong’
Ronald Dworkin, “Lord Devlin and the Enforcement of Morals,” 75 Yale L.J., 986 (1966):
“No doubt most Americans and Englishmen think that homosexuality, prostitution, and the
publication of pornography are immoral. What part should this fact play in the decision
whether to make them criminal?”
Legal stances on Adultery, Pornography, Abortion etc. do not reflect the idea of morality in
the law.
Mala is se – offences which are criminalised because they are morally wrong.
Mala prohibita – offences which are a crime because the state says so.
The Harm Principle - the state may create a criminal offence and interfere with one’s
freedom to act only to prevent harm to others (Based on John Stewart Mill).
There is no Criminal Code, however most important offences are in statutory form. Some
offences are defined at common law e.g. Most general defences, and general principles of
criminal law. Reform mechanism exists (Law Commission http://www.lawcom.gov.uk/ ) – but
many proposals not enacted
Common law offences include:
Murder
Manslaughter
Assault and Battery
Secondary Liability
Capacity (Insanity, Intoxication, Automatism)
Duress, Duress of Circumstances, Necessity, Consent to injury
Statutory offences include:
Serious Non-Fatal Offences (1861)
Sexual Offences (2003)
, Theft, Fraud (1968, 2006)
Conspiracy, Attempt, Encouraging/Assisting (1977, 1981, 2007)
Diminished Responsibility; Loss of Self-Control (1957; 2009)
Self-Defence (2008)
What does a ‘Utopian’ Criminal Law consist of:
• Specific offences that are necessary, certain, fair and discoverable.
• A body of law made up of these offences which is comprehensive, coherent and
consistent, and readily accessible.
• This body of law should also provide Defences that clearly exempt any cases that should
not lead to conviction;
• A clear set of guiding principles to underpin the specific offences/defences, and to
support interpretation;
• A mechanism to improve the law (dealing with new social problems, removing outdated
laws, resolving inconsistency etc)
If statutory offences/defences are like written ‘recipes’ for criminal liability, common law
offences/defences are more like the recipes handed down through the generations by word
of mouth! Each new decision is merely ‘declarative’ – the common law is not altered so
much as discovered – even if the declaration is that the law has been on the wrong track for
years (as in Jogee [2016] UKSC 8)! It has been stated repeatedly by courts in recent decades
that they will not create new offences (Jones et al; Goldstein; Rimmington).
Common law provides most of the defences in English Law.
Most of English criminal law is now statutory offences.
Rule of interpretation: if a provision is ambiguous it ought to be interpreted in the manner
favourable to the accused (Tuck v. Priester (1887) 19 QBD 627).
• Reform:
The Law Commission’s Draft Criminal Code 1989: A Missed opportunity
This “historic event”(Criminal Law Review editorial 1989) never made it past the drafting
stage: by 2009 the editorial read “RIP the Criminal Code ”
See Law Com 177 vol 1 (the Bill)
https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/
2015/06/Criminal_Code_177_1.pdf
Vol 2 (commentary) https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-
11jsxou24uy7q/uploads/2015/06/Criminal_Code_177_2.pdf
, • The Law Commission’s Draft Criminal Code 1989: A Missed Opportunity
“In the words of Lord Gardiner: ‘I still hope to see my ideal statute. It will be a codification of
the statute law in one field (which will already have been consolidated) and the existing case
law. It will be written in ordinary simple words and will be accompanied by a commentary
explaining what are the things which it is intended to achieve’ … Is that really too much to
ask?” (ATH Smith, “Criminal Law and the Law Commission” [2016] Criminal Law Review 381)
Principles of criminal law – The Principle of Legality
Criminal offences should be clearly defined to enable people to live their life without the
fear that they are breaking the law. This is supported in Article 7 ECHR.
Art 7 ECHR
“No one shall be held guilty of any criminal offence on account of any act or omission which
did not constitute a criminal offence under national or international law at the time when it
was committed.”
Article 7 Combines prohibition on retrospectivity with principles of ‘fair warning’ and
certainty, reflecting the above principle of legality (Rimmington [2005] UKHL 63 per Lord
Bingham at [33]).
Article 7 ECHR: interpreted as to prohibit vague criminal offences – “an offence must be
clearly defined in law.” (ECtHR in Kokkinakis v. Greece (1994)). However, “Article 7 of the
Convention cannot be read as outlawing the gradual clarification of the rules of criminal
liability through judicial interpretation from case to case, provided that the resultant
development is consistent with the essence of the offence and could reasonably be
foreseen.” (ECtHR in SW v UK (1995)).
Criminal Law and ‘fair warning’
‘There are two guiding principles: no one should be punished under a law unless it is
sufficiently clear and certain to enable him to know what conduct is forbidden before he
does it; and no one should be punished for any act which was not clearly and ascertainably
punishable when the act was done. If the ambit of a common law offence is to be enlarged,
it "must be done step by step on a case by case basis and not with one large leap”’ per Lord
Bingham in Rimmington, at [33],quoting R v Clark (Mark) [2003] EWCA Crim 991, [2003] 2
Cr App R 363.
Criminal Law’s Basic Formula
Criminal Conviction = AR + MR – D (Defences)
“A key skill that the criminal lawyer must develop is the ability to identify which elements of
an offence are those of actus reus and which relate to the mens rea.” (Smith&Hogan, 2.1.2).
• What are AR/MR – The Basics
AR: all the elements in the definition of the crime except D’s mental element (S&H 2.1.3).
Physical elements of the crime (conduct, circumstances, causal link, result). External.
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