What do jurists consider a crime to be?

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