CRIME Unit 19

Preview 1. Purpose of criminal law 2. Defining a crime 3. Classification of offences 2. What constitutes a crime? 3. Burden and standard of proof 4. Criminal law and human rights 7. Participation 8. Inchoate offences 9. Limitations of capacity 10. General defences 11. Types of offences

Purpose of criminal law? Protect individuals and their property from harm Preserve order in society Punish offenders Enforce moral values?

Should the law enforce moral values? Intervention in private lives should only be (Wolfenden Committee 1957): To preserve public order and decency To protect the citizen from what is offensive and injurious To provide safeguards against exploitation and corruption of others, esp. those who are especially vulnerable

DEFINITION “A crime is a conduct forbidden by the State and to which a punishment has been attached because the conduct is regarded by the State as being criminal” What conduct is criminal varies from country to country, and from one time to another

Example of the changing nature of criminal law The Criminal Law Amendment Act 1885 criminalised consensual homosexual acts between adults in private The Sexual Offences Act 1967 decriminalised such behaviour between those aged 21 and over The Criminal Justice and Public Order Act 1994 decriminalised such behaviour for those aged 18 and over In 2000 the Government reduced the age of consent for homosexual acts to 16, though the Parliament Act had to be used as the House of Lords voted against the change in the law

Judicial law-making Some conduct is criminalised not by the State but by judges Marital rape has been criminalised by the decisions of judges (R v R 1991)

Classification of offences Classification by where a case will be tried Classification by the type of harm caused by the crime

Classification by where a case will be tried 1. Indictable offences- tried on indictment at the Crown Court (murder, manslaughter, rape) 2. Offences triable either way (theft, burglary, assault occasioning actual bodily harm) 3. Summary offences which can only be tried at the Magistrates’ Court (common assault)

Classification by the type of harm caused by the crime Offences against the person Offences against property Offences against public order

What constitutes a crime? In order to be convicted, the accused must be shown to have committed an unlawful act (actus reus) with a criminal state of mind (mens rea)

Elements of a crime ACTUS REUS + MENS REA = OFFENCE Lat: Actus non facit reum nisi mens sit rea = ‘the act itself does not constitute guilt unless done with a guilty mind’

Actus reus The physical element of a crime It can be: 1. An act (e.g. theft) 2. An omission to act (e.g. wilful neglect of a child) 3.A state of affairs (e.g. being drunk in a public place)

Mens rea The mental element of an offence; the state of mind that the prosecution must prove that defendant had at the time of committing a crime in order to secure conviction Intention to bring about a particular consequence, or recklessness as to whether such consequences may come about

Strict liability Liability for a crime imposed without the necessity of proving mens rea E.g. offences relating to the production and marketing of food, offences relating to road traffic

Burden and standard of proof The burden is on the prosecution to prove its case by establishing both actus reus and mens rea The standard of proof: ‘beyond reasonable doubt’ If a defendant raises a defence, it is for the prosecution to negate that defence. In Woolmington the defendant stated that the gun had gone off accidentally, raising the defence of accident.

Burden and standard of proof For certain defences the burden of proof is on the defendant, e.g. the defence of insanity Where the defendant has to prove a defence, the standard is the civil one of balance of probabilities

Criminal law and human rights The Human Rights Act 1998 incorporated the European Convention on Human Rights into English law

Criminal law and human rights The most relevant rights under the Convention: The right to a fair trial (Art 6(1) The presumption of innocence (Art 6 (2) No punishment without law (Art 7(1)

No punishment without law Nulla poena sine lege ‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time it was committed.’ (Art7(1)

Criminal law and human rights Other relevant Convention rights: The right not to be subjected to inhuman or degrading treatment or punishment (Art(1) The right of respect for a person’s private life (Art 8) That, in the application of the Convention rights and freedoms, there should be no discrimination on the grounds of sex, race, colour, religion or political opinion (Art 14)

Participation Principal offender Innocent agent Secondary party

Principal offender The person whose act is the immediate cause of the actus reus and has the necessary mens rea to be guilty of an offence There can be two or more joint or co-principals

Innocent agents An innocent agent is someone whom the principal uses to do the act; one who acts as a ‘puppet’

Innocent agents The agent may be innocent because: They do not have the capacity to commit the offence, e.g. where a child under the age of ten is used by an adult to steal, or They do not have the necessary mens rea, or They have a defence such as insanity or automatism

Secondary parties Also: accessory Guilty of the main crime and liable to the same punishment as the principal Can be convicted if there was an actus reus for the main offence

Secondary parties A secondary party can be convicted even though the principal is acquitted, if the actus reus was committed, but the principal lacked the required mens rea, or has a defence not available to the secondary party

The actus reus and mens rea for secondary participation The secondary party must ‘aid, abet, counsel or procure’ the commission of an offence

Inchoate offence An incomplete offence; one which is just begun or is undeveloped; the main offence has yet to be committed

Inchoate offences Incitement Conspiracy attempt

Inchoate offences For an inchoate offence the defendant is charged with inciting or conspiring or attempting to do the substantive crime involved, e.g. conspiring to murder or attempting to steal

Limitations on capacity Children under the age of ten Mentally ill persons: unfitness to plead, insanity at time of offence, diminished responsibility Corporate liability

Children under the age of 10 S50 Children and Young Persons Act 1933 ‘it shall be conclusively presumed that no child under the age of ten can be guilty of any offence’ – doli incapax presumption

Children aged ten and over S34 Crime and Disorder Act 1998 abolished the presumption that a child aged 10 to 13 is incapable of committing an offence; a child aged 10 and over is considered to be ‘as responsible for his actions as if he were 40’

Children aged ten and over For all but the most serious offences children (10-13) and young persons (14-17) are tried in the Youth Court Where a child or a young person is tried in the Crown Court special arrangements must be made to allow him to participate effectively in the trial Sentencing powers – different from those for adults

Mentally ill persons Where the defendant is unable to understand the charge against him so as to be able to make a proper defence, he may be found unfit to plead (Criminal Procedure (Insanity) Act 1964) Where a person is fit to plead but is found to be insane at the time he committed the offence a special verdict of ‘Not guilty by reason of insanity’ is given by the jury’

Diminished responsibility A partial defence which is only available on a charge of murder operates where a person suffers from an abnormality of the mind which substantially impairs his mental responsibility for his acts or omissions in doing or being a party to the killing (s2 Homicide Act 1957) If the defence is successful the charge of murder is reduced to manslaughter

Corporate liability A corporation – a legal person A corporation cannot be convicted of an offence where the only punishment available is physical, e.g. life imprisonment for murder A corporation cannot commit crimes of a physical nature, such as bigamy, rape or perjury, though it may be possible for a corporation to be liable as an accessory A corporation can be liable for manslaughter (P&O European Ferries (Dover) Ltd (19919

General defences Insanity Automatism Duress Necessity Mistake Self-defence Consent

Insanity The defendant must prove that at the time of committing the act, ‘he was labouring under such a defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong’.

Insanity The burden of proof is on the defendant and it is established on the balance of probabilities If proved, the verdict is ‘not guilty by reason of insanity’

Automatism ‘an act done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep-walking’

Types of automatism Insane automatism; the defence of insanity Non-insane automatism; external cause

Duress If the defendant has been forced to commit the crime The defendant has to choose between being killed or seriously injured or committing a crime

Necessity Principles: The act was done in order to avoid consequences which could not otherwise be avoided Those consequences, if they had happened, would have inflicted inevitable and irreparable evil That no more was done than was reasonably necessary for the purpose That the evil inflicted was not disproportionate to the evil avoided

Mistake A mistake about a fact; no mens rea (e.g. X picks up an umbrella from a stand as he is leaving in the mistaken belief that it is his; no mens rea required for theft)

Self-defence Covers not only actions needed to defend oneself from an attack, but also actions taken to defend another or prevent crime The force used to defend oneself or another must be reasonable in the circumstances

Consent Whether the victim has consented or not is an essential factor in many offences Not strictly a defence, because where the other person consents there is no offence (sexual offences) Minors under the age of 16 cannot consent to an indecent assault

Homicide Murder Manslaughter: 1. voluntary (defences: diminished responsibility; provocation; suicide pact); 2. involuntary (constructive, gross negligence; reckless) Statutory offences: 1. causing death by dangerous driving; 2. infanticide

Constructive manslaughter The death must be caused by an unlawful act; a civil wrong is not enough E.g. assisted suicide There must be an act: an omission is not enough

Gross negligence A defendant who owes the victim a duty of care does a lawful act or omission in a very negligent way (e.g. a duty of a doctor to his patient; duty of the owner of a sailing ship to his crew)

Non-fatal offences against the person Common assault Assault occasioning actual bodily harm Maliciously wounding or inflicting grievous bodily harm Wounding or causing grievous bodily harm with intent Racially aggravated assaults

Common assault Assault Battery

Assault The defendant intentionally or recklessly causes another person to fear immediate unlawful personal violence Actus reus: some act or words; fear of any unwanted touching is sufficient: the force or unlawful personal violence which is feared need not be serious

Battery The defendant intentionally or subjectively recklessly applies unlawful force to another Force can include the slightest touching

Assault occasioning actual bodily harm Requires an assault or battery This must cause actual bodily harm Actual bodily harm – ‘any hurt or injury calculated to interfere with the health or comfort’ of the victim

Malicious wounding/inflicting grievous bodily harm Grievous bodily harm – ‘really serious harm’; severe bruising when the victim is a young child or frail person; serious psychiatric injury; a cut of internal skin

Racially aggravated assaults Under s29 Crime and Disorder Act 1998, a common assault or an offence becomes a racially aggravated assault if the offender demonstrates towards the victim hostility based on the victim’s membership of a racial group The maximum penalty increased from 6 months to 2 years for common assault and from 5 to 7 years for serious assaults

Sexual offences Rape Assault by penetration Sexual assault (replaces indecent assault) Rape and other offences against children under 13 Sexual activity with a child (replaces the offence of unlawful sexual intercourse with a girl under 16) Offences involving family members

Theft and related offences Robbery Burglary Vehicle taking Handling stolen goods Making off without payment Blackmail

Deception offences Deception Fraud

Deception Obtaining property by deception Obtaining a money transfer by deception Obtaining a pecuniary advantage by deception Obtaining services by deception Evasion of liability

Fraud Fraud by false representation Fraud by failing to disclose information Fraud by abuse of position Obtaining services by deception

Criminal damage Endangering life Arson

Public order offences Riot (12 or more persons) Violent disorder (3 or more persons) Affray (1 person; if a person uses or threatens to use violence, e.g. carrying dangerous weapons) Fear or provocation of violence (using threatening, abusive or insulting words or behaviour; distributing or displaying any writing, sign or other visible representation which is threarening, abusive or insulting) Harassment offences Racially aggravated offences