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What is criminal law?
Criminal law can helpfully be characterised as a law of wrongs. It sets rules for citizens to follow and the conditions under which breaches of these rules may be punished. It can be divided into two loose parts along these lines: The special part : defines particular criminal offences, e.g. murder, assault, theft The general part : the doctrines governing liability for offences, e.g. definitions of key concepts; rules of criminal responsibility; defences This is not a complete definition, however, as it could also apply to civil wrongs: e.g. delict and breach of contract. Thus, it is also important to distinguish criminal law from civil law. In this regard, it is often said that civil law concerns 'private' wrongs, whilst criminal law concerns 'public' wrongs.
2. The Criminal Process A. Investigation Role of the police Powers effectively set by criminal law: e.g. arrest, investigation, detention Non-court disposals available, e.g. cautions B. Prosecution Public prosecution: state agencies bring cases to court rather than victims The responsibility of the Lord Advocate, assisted by: o Crown Office o Advocates depute o Procurators fiscal Independent from the police (in theory if not in practice) C. Criminal trials (i) Criminal courts High Court of Justiciary Sheriff courts Justice of the Peace courts 1
(ii) Trial procedure Depending on the offence charged, one or both of the following procedures may be used for criminal trials: Summary procedure : cases are tried by a judge sitting without a jury. This may be a sheriff or lay Justices of the Peace, who sits with a legally qualified clerk. Solemn procedure (or trial on indictment): cases are tried by a judge with a jury of 15 people, who are the sole judges of fact. Cases may be heard in either the High Court or sheriff court. As in common law jurisdictions generally, trials are adversarial in character: judges and juries are passive and make decisions based solely on the evidence as it is presented to them. (iii) Verdict Guilty Not guilty Not proven (functionally identical to not guilty) D. Sanctions Conviction : expresses condemnation of the offender and goes on their criminal record, thus affecting future employability Punishment : 'hard treatment' going beyond mere compensation, e.g. imprisonment, fines, community penalties. Sentencing powers: High Court: maximum sentence available (up to life imprisonment) Sheriff in solemn procedure cases: five years' imprisonment, unlimited fine Sheriff in summary cases: 12 months' imprisonment or a fine of £10, JP Court: 60 days' imprisonment or a fine of £2, E. Appeals Appeals are to the High Court (or the High Court sitting as a court of appeal) High Court is final court of appeal: no appeal to Supreme Court (except on issues of compatibility with the ECHR or EU law) 2
Much core criminal law doctrine is still derived from case law. Common law crimes have the advantage of flexibility: they are capable of changing and expanding to respond to new environments. As a result of this, though, their scope can be highly uncertain. This raises potential human rights concerns. (We will discuss the characteristics of common law crimes further in the lectures on offences against the person.) C. Legislation Both UK and Scottish Parliaments may make criminal laws for Scotland Criminal law per se is not reserved to Westminster However, criminal legislation may touch on reserved matters, e.g. drugs, firearms, terrorism (see Scotland Act 1998 sch 5) Legislation of the Scottish Parliament on reserved matters is invalid unless its purpose is to make criminal law 'apply consistently to reserved matters and otherwise' (s. 29(4)). D. 'Law in the books' v 'Law in practice' Criminal law – like all forms of law – is a social practice that exists in a social context. How the law operates is not just a product of what cases and statute books say. Police, prosecutors and courts all possess degrees of discretion in their interpretation of the law. Although it is not a formal source of law, this discretion has a real impact on the outcome of criminal cases. See e.g. R (Purdy) v DPP [2010] 1 AC 345.
4. The Structure of Criminal Liability There are two ingredients of criminal liability: offences and defences. Offence elements can be sub-divided into actus reus (conduct) elements and mens rea (mental) elements. These elements will be covered in detail in the coming lectures, but it will be helpful to introduce them briefly here. A. Offences To find an accused criminally liable, the court must first be satisfied beyond reasonable doubt that the accused has committed a criminal offence. As a general rule, criminal offences require an actus reus (or 'guilty act') accompanied by mens rea (or 'guilty mind'). (i) Actus reus Mere thoughts do not constitute an actus reus. Beyond this, though, a wide range of things are prohibited by criminal offences, including: Causing a given result ('result crimes') 4
Performing actions in specified circumstances ('conduct crimes') States of affairs Omissions (ii) Mens rea Normally, at least some of the actus reus elements of an offence must be accompanied by mens rea : i.e. some form of culpable mental state. For example, an assault is defined not just as an attack but as an intentional attack. Some statutory offences require no mens rea. These are called 'strict liability' offences. Strict liability offences are controversial because one can commit them accidentally or faultlessly. They are sometimes not thought to be 'true' crimes at all. (This will be discussed further in the lectures on mens rea .) B. Defences Criminal liability also requires that the accused has no defence to his/her criminal actions. The accused bears the burden of raising a defence. In most cases, however, the prosecution must prove beyond reasonable doubt that the accused is not entitled to a defence if it is successfully raised. (The notable exceptions to this are the defences of insanity and diminished responsibility.)
5. What is Criminal Law for? There is a surprising amount of disagreement about what the purpose of criminal law is – and hence about what justifies its existence. Possibilities include: Deterrence (general and special) Retribution Incapacitating dangerous people Condemning offenders / affirming the rights of victims Rehabilitation / restoration Discouraging 'mob justice' Maintaining social structure and social order 6. The Limits of the Criminal Law Most people are likely to associate criminal law primarily with traditional 'core' offences of harm to person and property. Contemporary criminal law, however, extends far beyond these offences, and its scope is expanding at an unprecedented rate. This should lead us to ask: what limits are there, or should there be, on the state's power to criminalise? 5
'Harms' that are consented to Trivial / fleeting harms Psychological harm / hurt feelings 'Remote' harms 'Harm' to public interests and public order D. Crimes as public wrongs An alternative approach proceeds from the idea that crimes are 'public wrongs'. According to this approach, the state would not be justified in condemning and punishing crimes if they were not wrongs. But not everything that is immoral – even seriously so – should be criminal. The criminal law should rather focus on wrongs that are public, in the sense that they are the public's business. A problem with this approach is that 'the public's business' is an uncertain and contingent notion. There may be controversy over whether something is a public or a private matter. Matters related to sexual conduct are perhaps the best example of this. See e.g. the various opinions in R v Brown [1994] 1 AC 212. E. Balancing liberty and security A further important question for criminal policy is the balance that it strikes between increasing citizens' security and restricting their liberty. This has become an important issue in recent times as security has risen on the political agenda. A dramatic illustration is the expansion of criminal law in relation to terrorist activity. For instance, consider this offence: Terrorism Act 2000, s. 58: "(1) A person commits an offence if – (a) he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or (b) he possesses a document or record containing information of that kind…" On the face of it, this offence appears to criminalise possession of literally any record of information that might be useful to terrorists: for example, train timetables or maps. Courts have therefore attempted to limit the scope of the offence: see R v G [2010] 1 AC 43. But should we trust the discretion of courts and prosecutors as a way of limiting such a broad offence? Does the prevention of terrorism justify restrictions of liberty of this kind? F. Criminal law as 'last resort' 7
Criminal sanctions are the most severe sanctions that the state imposes on its citizens. It is therefore sometimes said that criminal law should be a 'last resort' for dealing with problematic behaviour. Possible alternatives to criminal law include: Non-criminal regulation Civil law (injunctions) Alternative dispute resolution Licensing Taxation Public education strategies Doing nothing (the 'moral coercion of public opinion') G. The Limits of the Criminal Law: Problems for consideration
1. Consent to harm and sadomasochistic sex How should the criminal law balance individual liberty against the need to protect society? For example, should the criminal law prohibit us from consenting to behaviour that may harm us? Should we be able to consent to, for example, not wearing a motorcycle helmet? What about consenting to harm against the person, such as assault? What about sado-masochist sexual acts? See the cases of: R v Brown [1994] 1 AC 212 R v Wilson [1997] QB 47 R v Emmet , Times, October 15, 1999 2. Breach of the Peace Breach of the peace is a notoriously wide common law offence that has been used in a huge variety of circumstances to impose liability for a large range of behaviours. On the definition of breach of the peace see: Raffaelli v Heatly 1949 JC 101, 104 (Lord Justice Clerk Thompson). ** Smith (P) v Donnelly 2002 JC 65. How ‘public’ does the breach of the peace have to be? Young v Heatly 1959 JC 66 * Harris v HM Adv 2010 JC 245 WM v HM Adv 2011 JC 49 8
