Dianne Roe’s definition:
A crime is a wrong against the state.
Either by commission or omission.
Classified by the state as criminal.
And one to which a punishment is attached.
Lord Atkin:
‘The criminal quality of an act cannot be discerned by intuition (made out by ‘gut feeling’); nor can it be discovered by reference to any standard but one: is the act prohibited by punishment?
Decide on crimes:
As the UK, is a democratic society - crimes are most often determined by our representatives in Parliament.
Because the UK is democracy, it respects pluralism: the right to hold different points of view in society - this is why somethings that may have historically been criminalised are now not as pluralism requires tolerance - without enforcement of a dominant viewpoint.
For example, the David Steels Private Members Bill in 1967 challenged the religious views around abortion.
Two main methods:
judicial creativity in the common law:
DPP V Shaw - judges created the offence of conspiracy to corrupt public morals.
This was highly controversial:
There is an argument that this violates the separation of powers (in Knuller V DPP, the HOL decided the courts do not feel that creating offences was in their remit - however, applied Shaw anyway)
What needs to be proven for a crime to have occurred?
Actus Reus (guilty act/omission) + Mens Rea (guilty mind) = guilty.
Who’s involved in a criminal prosecution:
Most criminal cases are brought by the monarch on behalf of the state.
This is why many criminal cases start with the letter “r” which is a latin abbreviation for:
Rex - the King; or
Regina - the Queen.
The King, in practice, does very little cases are brought by the Crown Prosecution Service (CPS).
Note (some bodies have the power to prosecute privately - Doughty Street Chambers (a barrister set) found records of the Royal Mail Prosecuting in 1683!
It is also possible, but very rare, for a party to bring a private prosecution.
The Criminal Standard of proof
The standard of proof in crime is beyond all reasonable doubt.
The burden rests on the prosecution (they must prove it; D can choose to do nothing)
If a defence is raised, P must disprove at least one element of the defence or, depending on the defence, the judge must order the jury to acquit.
There are a few defences, such as insanity, however, where the burden reverses. In these cases D must prove that they had the defence - but only on balance.
If a defence is raised, P must prove it does not exist beyond all reasonable doubt.
The importance of fault in the Criminal Law
Remains the same as in torrt - the idea that someone should be to blame for their actions.
In some instances, a person can be guilty of an offence even if their not at fault (termed no fault offences (Winzar V Chief Constable of West Yorkshire).
Mens Rea is a key element of fault - a person must usually have the mental element of an offence to be guilty and this must be proven beyong all reasonable doubt.
As D can remain silent, as the law assumes defendants are innocent until proven guilty, this lack of obligation assumes D is not at fault.
Further, by allowing D to raise defences, there is the possibility of D being able to show due to externa circumstances they were not liable
Actus Reus
conduct based crime
consequence based crime
state of affairs crimes
omissions
Conduct based crimes
conduct based crimes- the conduct you are doing is an offence. battery (the unlawful touching of a person) is a conducted.
Voluntary Acts
For most offences, the actus reus must be done voluntarily.
If i do something accidentally, or as a direct result of some other factor (meaning i cannot control myself), it will not be an offence - this looks at automatism.
This is seen in Hill V Baxter - a person is not acting voluntarily if stung by a swarm of bees and accidentally hits someone whilst swatting a bee, they are not at fault.
State of Affairs based actus reus
This type of actus reus is fulfilled simply because a person is in a certain state of affairs.
They do not even need to find themselves in that situation voluntarily.
R V Larsonneur - Aliens Order 1920.
The Law on Omissions
The normal position for the law to take is - do nothing. The law does not impost an obligation on anyone to do anything.
There are, however, six exceptions to the rule, where a duty can arise:
Acts of Parliament
Contractual duty
Special relationship
Voluntary acceptance of a duty
An official position
Creation of a dangerous situation
What is the Law | How does it work | Why does it apply |
Statutory duty | An Act of Parliament compels a person to do something - for example, the Road Traffic Act 1988 compels a person to provide a breadth example if requested. | |
Contractual duty | ||
An existing special relationship | ||
Voluntary acceptance of duty | A pre-existing relationship between the parties means they would be expected to care for eachother. | |
A duty imposed by an official position | ||
The creation of a dangerous situation | As a result of the defendant’s actions, a dangerous situation is created that D fails to deal with when aware of it (R V Miller). |