Rules Of Criminal Law


Defining a Crime

There are thousands of different criminal offences.

The only way in which it is possible to define a crime is to say that it is conduct which is :

Forbidden by the state and 

For which there is punishment.

What is considered criminal will change over time.  

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Overview of the Theory of Criminal Law

The question of why an act is considered a criminal act or not is a matter for moral philosophy.

E.g. Parliament will enact that something is a crime or change the law to make something no longer  a crime.  

Similarly judges have established that some behaviour is or is not criminal. 

The jury system also reflects this when so called perverse verdicts are reached (Ponting (1985))

Law and justice- criminal law is often seen as retributive justice , a theory of justice that considers proportionate punishment a morally acceptable response to crime.  

Seen in the biblical view, an eye for an eye etc.  

Modern criminal law is no longer a purely retributive exercise, it is not just about punishment.

The idea of deterrence is much more to the fore as well-corrective justice  

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Overview of the Theory of Criminal Law

If a person is found guilt, justice demands the offender is sentenced. 

Aims of sentencing are taken into account as well as other factors.

Deterrence, rehabilitation, denunciation.

Criminal law provides a form of social control over society.

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The Role of State

Criminal law mainly set out by the state.

Acts of Parliament

A breach of criminal law leads to a penalty.

Bringing a prosecution for a criminal offence is usually seen as part of the role of the state. 

Majority of criminal prosecutions are conducted by the CPS.

Possible for a private organisation to start a prosecution.    

E.g. RSCPA regularly bring prosecutions against people for cruelty or neglect of animals 

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Conduct Criminalised By the Judges

Some conduct is criminalised by judges.

Occurs where judges create new criminal offences through case law.

In modern times, only happens on rare occasions.

E.g. offence of conspiracy to corrupt public morals.  This offence has never been enacted by Parliament.

Judges recognised that it existed in Shaw v DPP (1962)

Another e.g. of and offence created by judges is marital ****.  In R v R (1991) there can be **** in marriage.  

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Elements of a Crime

For all crimes (expect strict liability) there are two elements which need to be proven by the prosecution:

Actus reus and 

Mens rea

Latin terms ‘the act itself does not constitute guilt unless done with a guilty mind’ 

Both an act (or omission) and a guilty mind must be proven for most criminal offences

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Actus Reus

Wider meaning than ‘an act’, as it covers omissions or a state of affairs.

The term ‘actus reus’ has been criticised as misleading, Lord Diplock in Miller (1983) preferred the term ‘prohibited conduct’.

The Law Commission in the Draft Criminal Code (1989) used the term ‘external element’ 

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Mens Rea

‘Guilty mind’ but is seen as misleading.

The levels of ‘guilty mind’ required for different offences vary from the highest level (specific intent) to lower levels (negligence or knowledge of a certain fact) for less serious offences. 

AR and MR will be different for different offences. 

The AR and Mr must be present together, but if there's an ongoing act, then the existence of the necessary MR at any point during the act is sufficient. 

Even if the D has the AR & MR he/she may not be found guilty if he/she has a defence.  

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Standard of proof & the rules of the burden of pro

The prosecution have to prove ‘beyond reasonable doubt’ that the defendant is guilty.  

Higher standard of proof than civil law, as a person’s lability is at risk. 

An accused is presumed innocent until proven guilty. 

Prosecution have to prove both the AR & MR.

Woolmington v DPP (1935) 

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Raising a Defense

If a defendant raises a defence it is for the prosecution to disprove that defence. 

For all common law defence, expect insanity, there must be some evidence given in the trial.  

Can be from evidence given by the defence or prosecution.

If evidence of a defence is given at trial then, even where the defendant has not specifically raised the defence, the prosecution must disprove at least one element of that defence. 

The trial judge must direct the jury to acquit unless it is satisfied that the defence has been disapproved by the prosecution. 

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Reverse Burden

For certain defences, the burden of proof is on the defendant. 

E.g. insanity (common law defence), and applies to certain statutory defences (diminished responsibility).

Where a statute places  the burden of proof on the D to prove the defences, it is ‘on the balance of probabilities’   

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