Criminal Law & Litigation – CPQ Advanced - The context of criminal law

Overview and Study Guidance

  • Recording forms part of the CPQ Advanced Stage, “Criminal Law & Litigation” (A-2 module)
  • Use alongside:
    • Brightlink/SILEX e-book chapters
    • Audio recordings, exercises, flashcards
    • 1-to-1 tutor appointments or workshop sessions if further clarification needed
  • Learning strategy: watch repeatedly, read parallel texts, make personal notes, attempt practice questions

Nature and Purpose of Criminal Law

  • Criminal law = body of rules enforced by the state in the name of the Crown (Regina/Rex)
  • Distinguished from civil law:
    • Civil = compensatory, claimant vs defendant
    • Criminal = punitive, community condemnation, state vs defendant
  • Sentencing aims (often coexist):
    • Punishment (retribution)
    • Deterrence (individual & general)
    • Protection of the public
    • Reparation (compensation/restorative justice)
    • Rehabilitation (reform of offender)

Moral Basis and Evolution of Criminalisation

  • No single authoritative definition of “crime”
    • Classical liberal view (Feinberg): conduct should be criminalised where it causes harm, lacks social value, and prohibition is not an unreasonable intrusion on autonomy
    • Hart–Devlin debate: tension between private morality & legal enforcement
  • Morality v. Criminality:
    • Some immoral acts are not crimes, some crimes are not immoral
    • Moral climate changes over time → law adapts (e.g. homosexuality, abortion)
  • Key official interventions:
    • Wolfenden Committee 1957 (homosexuality) → law should not intrude on private life
    • Lord Devlin (1965, “Enforcement of Morals”): some acts so outrageous they must be prohibited
  • Contrasting case law on consensual harm:
    • R !\ v !\ Brown\ (1993) – convictions upheld for private, consensual sadomasochism between adult males (House of Lords)
    • R !\ v !\ Wilson\ (1996) – conviction quashed where husband branded wife with her consent (Court of Appeal)

Sources of Criminal Law

  1. Statutory (Acts of Parliament) – majority of modern offences (e.g. Dangerous Dogs Act 1991; OAPA 1861 s.47)
  2. Regulatory/Delegated legislation – by-laws, regulations (e.g. parking orders)
  3. Judicial (common law precedents) – e.g. murder definition, defences of automatism/intoxication/duress
    • Debate over legitimacy of unelected judges creating offences – see R !\ v !\ R\ (1991) (marital rape), Shaw v DPP (1962) (conspiracy to corrupt public morals)

Key Definitions & Legal Terminology

  • Crime: “conduct forbidden by the state which, when performed, incurs punishment” (Halsbury)
  • Parties in criminal case:
    • R (Regina/Rex) = Crown/State
    • D = Defendant; minors / sensitive matters may use initial (e.g. DPP v K)
  • DPP: Director of Public Prosecutions (heads CPS)
  • AG: Attorney-General – senior government lawyer overseeing public‐interest integrity of criminal law
  • Actus reus: physical element (act/omission + circumstances + consequence)
  • Mens rea: mental element (intention, recklessness etc.)
  • Objective test: would a reasonable person foresee X?
  • Subjective test: did THIS defendant foresee/know X?
  • Basic-intent offences: mens rea = intention OR recklessness (e.g. assault)
  • Specific-intent offences: mens rea = intent to bring about a specific consequence (e.g. intent to cause GBH)

Burden and Standard of Proof

  • Legal (persuasive) burden generally on prosecution to prove both actus reus + mens rea
  • Occasionally defendant bears evidential burden to raise a defence → prosecution must rebut
  • Presumption of innocence (ECHR Art. 7(1))
  • Standard of proof:
    • Criminal: “beyond all reasonable doubt” ≈ \,\text{~}98\% certainty (jury must be sure)
    • Civil: “balance of probabilities” (>$50\%$; often cited 51\%)

Mens Rea Categories & Recklessness Tests

  • Intention (direct / oblique)
  • Recklessness (Cunningham/MPC v Caldwell standards → objective vs subjective elements)
  • Negligence (rare in criminal law)

Defences in Criminal Law

  • Insanity → special verdict; may lead to hospital order
  • Automatism → complete acquittal if external cause
  • Intoxication → specific vs basic intent distinction; voluntary vs involuntary
  • Duress / Necessity → may excuse otherwise criminal act
  • Self-defence / Prevention of crime (statutory & common law overlay)
  • Procedural note: once prima facie defence raised, defendant often bears persuasive burden on balance of probabilities, prosecution must disprove beyond reasonable doubt

Witnesses & Evidential Rules

  • Witness competence vs compellability
    • All adults generally competent & compellable
    • Children <14: competent but give unsworn evidence
  • Evidence modes:
    • On oath / affirmation
    • Special measures for vulnerable/intimidated witnesses: live-link, screens, private hearing, removal of wigs & gowns
  • Primary evidence = oral testimony; exhibits, expert evidence, CCTV admissible through witness foundation

Prosecution Authorities & Institutions

  • State prosecutions mainly via CPS
  • Other prosecuting bodies:
    • Private individuals (rare; e.g. Stephen Lawrence case)
    • Serious Fraud Office (SFO) – investigation & prosecution of complex fraud
    • Department for Business (formerly DTI) – company law offences
    • Health & Safety Executive (HSE) – workplace safety; interface with CPS over corporate manslaughter
    • HMRC / Customs & Excise – smuggling, excise offences
    • Local Authorities – trading standards, environmental health
    • Environmental Agency – pollution, waste, fisheries
    • Charities/NGOs: RSPCA, RSPB, NSPCC (animal cruelty, egg theft, child protection)
    • Attorney-General: references on unduly lenient sentences, consent offences

Crown Prosecution Service (CPS) – Roles & Decision Tests

  • Receives police files; independent of police
  • Three decision thresholds:
    1. Evidential Test – “realistic prospect of conviction” (more likely than not that jury would find guilt beyond reasonable doubt)
    2. Public Interest Test – factors favouring/against prosecution (gravity, victim impact, culpability etc.)
    3. Threshold Test – used when bail risk precludes release but evidential test not yet met; requires reasonable grounds + ongoing investigation
  • Core functions:
    • Review evidence, direct further investigation
    • Select & draft charges
    • Case conferences with police & counsel
    • Disclosure duties under CPIA 1996
    • Conduct advocacy: Magistrates (96% of cases) via CPS prosecutors / agents / designated caseworkers; Crown Court (4%) via CPS Higher Court Advocates or instructed barristers
    • Apply for compensation / ancillary orders; present bad-character evidence; tender previous convictions for sentencing

Court Structure & Classification of Offences

  1. Summary offences (minor)
    • Heard only in Magistrates’ Court
    • Tribunal: 3 lay magistrates or District Judge (MC) sitting alone
    • Max sentence: 6 months imprisonment and/or unlimited fine (post-LASPO changes)
    • Examples: common assault, taking vehicle w/o consent, minor criminal damage, road traffic offences
  2. Triable Either Way (hybrid)
    • Magistrates conduct “Mode of Trial” hearing (Magistrates’ Court Act 1980)
    • Defendant may elect jury trial in Crown Court
    • Magistrates may commit to Crown Court for sentence if powers inadequate
    • Examples: theft, ABH, burglary, dangerous driving, criminal damage >£5{,}000
  3. Indictable offences (serious)
    • Initial appearance in Magistrates’ Court (for paperwork/bail), then transferred to Crown Court for trial on indictment before Judge + Jury
    • Examples: murder, manslaughter, rape, arson, blackmail

Roles within courts:

  • Magistrates: decide facts, law, verdict & sentence in summary/either-way where retained
  • Crown Court Judge: rules on law, directs jury, sentences
  • Jury (12 citizens): decide facts → verdict (guilty/not guilty)

Bail & Pre-Trial Liberty

  • Bail Act 1976: presumption in favour of bail
  • Grounds for refusal: risk of absconding, reoffending, interfering with witnesses, serious nature of offence (violent/sexual), defendant’s past record
  • If bail granted in serious/violent offences, magistrates must state reasons in open court

Sentencing Framework

  • Most offences: statute sets maximum; judge retains discretion within sentencing guidelines
  • Mandatory life for murder (also treason & piracy historically)
  • Crime (Sentences) Act 1997: automatic life sentence for second serious violent/sexual offence (unless exceptional circumstances)
  • Ancillary orders: compensation, disqualification, forfeiture, restraining orders

Precedent, Appeals & Importance for Criminal Law

  • Large body of criminal definitions/defences created by judicial precedent (common law)
  • Understanding hierarchy of courts critical: Magistrates → Crown Court → Court of Appeal (Crim Div) → Supreme Court (formerly House of Lords) → ECtHR (interpretative influence)
  • Appeal routes:
    • From Magistrates: Crown Court (re-hearing) or High Court (case stated) or JR
    • From Crown Court: Court of Appeal (Criminal Division) on law, then Supreme Court with leave

Reflective / Revision Questions (from tutor)

  1. What is criminal law and how does it differ from civil law?
  2. Which courts handle criminal cases and what are their respective roles?
  3. Enumerate the aims of the criminal justice system.
  4. Distinguish summary, triable-either-way, and indictable offences; provide examples.
  5. Who bears the burden of proof in criminal trials and what is the standard?

Use these consolidated notes as a standalone revision aid, ensuring fluency with definitions, case examples, statutory references, and procedural frameworks. Revisit original materials for deeper case-law reading and practice applying the concepts to problem scenarios.