2. Criminal Law Lecture 1: Introduction to Criminal Law
By Feruza Bobokulova

3. Sources of Criminal Law
The two main areas from which criminal law is derived are case decisions (common law) and Acts of Parliament
An offence which is not defined in any Act of Parliament or delegated legislation is called a common law offence. Murder is such an offence
Other common law offences include manslaughter and assault and battery. Equally, some defences have been entirely created by the decisions of judges
One problem with common law offences is that they can be very vague
In some instances the courts will develop the law and then it will be absorbed into a statute. This happened with the defence of provocation (a defence to murder). It had been developed through case law but was then set out in the Homicide Act 1957

4. Sources of Criminal Law
Nowadays the majority of offences are set out in an Act of Parliament or through delegated legislation
Most offences today are statutory ones. Examples include theft, robbery and burglary, which are in the Theft Act 1968
Even when offences have been created by Acts of Parliament or delegated legislation, judges still play a role in interpretation

5. Codification of the Criminal Law
One of the main problems in criminal law is that it has developed in a piecemeal way and it is difficult to find all the relevant law
Some of the most important concepts, such as the meaning of ‘intention’, still come from case law and have never been defined in an Act of Parliament.
Other areas of the law rely on old Acts of Parliament, such as the Offences Against the Person Act which is nearly 150 years old
In 1965 the Government created a full-time law reform body called the Law Commission. The Law Commission has the duty to review all areas of law, not just the criminal law.

6. Codification of the Criminal Law
The Law Commission decided to attempt the codification of the criminal law to include existing law and to introduce reforms to key areas. A first draft was produced in 1985, and this was followed by consultation which led to the publication of A Criminal Code for England and Wales (1989)
The Draft Criminal Code has never been made law. Parliament has not had either the time or the will for such a large-scale technical amendment to the law
In 2008 the Law Commission removed the codification of criminal law from its law reform programme

7. Crime and Prosecution
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
As the criminal law is set down by the state, a breach of it can lead to a penalty, such as imprisonment or a fi ne, being imposed on the defendant in the name of the state
Therefore, bringing a prosecution for a criminal offence is usually seen as part of the role of the state
The majority of criminal prosecutions are conducted by the Crown Prosecution Service (CPS), which is the main state agency for criminal prosecutions

8. Crime and Prosecution
There are other state agencies which bring prosecutions for certain types of offences. For example, the Serious Fraud Office brings cases relating to large scale frauds, and the Environmental Agency handles breaches of law affecting the environment
It is also possible for a private individual or business to start a prosecution. However, it is unusual for an individual to bring a prosecution. Even where an individual brings a prosecution, the state still can control the case by the CPS taking over the prosecution and then making the decision on whether to continue with the prosecution or not

9. Conduct Criminalized by Judges
Some conduct is criminalised not by the state but by the courts. This occurs where the courts create new criminal offences through case law.
In modern times this only happens on rare occasions, because nearly all law is made by Parliament.
An example of conduct criminalised by the courts is the offence of conspiracy to corrupt public morals. This offence has never been enacted by Parliament. Its creation was recognised in Shaw v DPP (1962) AC 220. In this case the defendant had published a Ladies Directory , which advertised the names and addresses of prostitutes with their photographs and details of the ‘services’ they were prepared to offer
Another offence which has been recognised in modern times by the judges is marital rape. This was declared a crime in R v R (1991)

10. Retroactive Effect of Case Law
One of the arguments against the courts making law involves the fact that judge-made law is retrospective in effect
This means that when courts decide a case, they are applying the law to a situation which occurred before they ruled on the law
At the time of the trial or appeal they decide, as a new point of law, that the conduct of the defendant is criminal. That decision thus criminalises conduct which was not thought to be criminal when it was committed months earlier

11. Classification of Offences
There are many ways of classifying offences depending on the purpose of the classification. They are:
by source
by police powers
by type of offence
by place of trial

12. Classifying Law by its Source
Law can be categorised as
common law (judge-made)
statutory (defi ned in an Act of Parliament)
regulatory (set out in delegated legislation)

13. Police Power Offences Category
Police powers to detain a suspect who has been arrested depend on the category of offence. There are three categories:
summary offences
indictable offences
terrorism offences

14. Summary Offences
A constable can make an arrest for any offence. However, an arresting officer can only arrest if he or she has reasonable grounds for believing that it is necessary to make the arrest
Where the offence is NOT one of terrorism or an indictable offence, the police can only detain a person for a maximum of 24 hours
They must also allow someone to be informed of the arrest and for the suspect to have legal advice as soon as possible after arrest

15. Indictable Offences
For these the police have the power to detain any person who has been arrested for an initial period of 24 hours. This can then be extended to 36 hours
The police then have the right to apply to a magistrate for permission to detain the suspect for up to a maximum of 96 hours
In addition there are restrictions on the rights of the suspected person. The right to have someone informed of their arrest may be delayed for up to 36 hours
The right to legal advice may also be delayed for up to 36 hours

16. Terrorism Offences
The Terrorism Act 2000 controls powers of detention for terrorism offences
Under s 8 of this Act, as amended by the Terrorism Act 2006, the police can detain a person arrested on suspicion of terrorism offences for 48 hours
After this they can apply to a judge to extend the period up to a maximum of 14 days

17. offences against the person offences against property
Type of Offence Classification
The main categories of offences according to the type of the harm caused are:
offences against the person
offences against property
offences against public order

18. Place of Trial Classification
One of the most important ways of classifying offences is by the categories that affect where and how a case will be tried. For this purpose offences are classified as:
1. Indictable only offences These must be tried on indictment at the Crown Court (eg murder, manslaughter, rape)
2. Triable either way offences These can be tried either on indictment at the Crown Court or summarily at a magistrates’ court (eg theft, burglary, assault occasioning actual bodily harm)
3. Summary offences These can be tried only at a magistrates’ court (eg assaulting a policeman in the execution of his duty, common assault)

19. Criminal Justice System
There are two types of courts which try criminal cases. These are:
The magistrates’ courts
The Crown Court

20. Trials in the Magistrates’ Courts
Magistrates can try summary offences and any triable either way offences where they accept jurisdiction and the defendant elects for the case to be tried in a magistrates’ court
Cases are tried by a panel of two or three lay justices or by a District Judge (Magistrates’ Courts)
Lay justices have no legal qualifications, sit only part-time and are not paid a salary, although they are paid expenses. They are appointed from ordinary members of the community

21. Trials in the Magistrates’ Courts
The only qualifications lay justices need are six key qualities:
good character
understanding and communication
social awareness
maturity and sound temperament
sound judgement
commitment and reliability
Those appointed must be prepared to sit at least 26 half- days per year

22. Trials in the Crown Court
The offences which can be tried at the Crown Court are all indictable only offences and any triable either way offences where the magistrates have declined jurisdiction or the defendant has elected trial at the Crown Court.
Where the defendant pleads not guilty the case is heard by a judge and a jury of 12. The judge decides the law and sums up to the jury. The jury decide the facts and, accordingly, whether the defendant is guilty or not guilty. If the defendant is found guilty, it is then the role of the judge to pass sentence.
Where the case continues, then, at the end of the whole case, the judge will direct the jury on any relevant points of law and they will then decide whether the defendant is guilty or not guilty. If they find the defendant not guilty, he is acquitted
Where they convict then the judge decides the appropriate sentence to impose on the defendant. If a defendant pleads guilty then the judge deals with the case on his own. There is no jury.

23. Use of Juries
The use of a jury in the Crown Court is regarded as an important constitutional right and a way of protecting human rights
There have been several attempts to restrict the use of juries in criminal cases. In both 1999 and 2000, the Government tried to get a Bill passed which would have removed from offenders charged with triable either way offences the right to choose jury trial
On both occasions the House of Lords voted against the Bill so that it was not made law

25. Appeals from a Magistrates’ Court
There are two different appeal routes
Case stated appeal to the Queen’s Bench Divisional Court
This is used where the appeal is on a point of law. The magistrates are asked to
state a case (finding of facts). This route is available for both the prosecution and the defence. The Divisional Court can quash the decision, confirm it or remit the case to a magistrates’ court for a rehearing
A further appeal is possible to the Supreme Court. This must be on a point of law of general public importance, and the Supreme Court (or QBD) must give permission to appeal. Very few cases reach the Supreme Court by this route: only about two or three per year.

26. Appeals from a Magistrates’ Court
Appeal to the Crown Court
This route is only available to the defendant. The appeal can be against sentence or conviction or both
The whole case is reheard at the Crown Court by a judge and two lay magistrates. They decide whether the defendant is guilty or not guilty and, if guilty, can pass any appropriate sentence
There is no further appeal from the Crown Court, unless a point of law is involved in which case the appeal then goes to the QBD and Supreme Court as above

28. Appeals from the Crown Court
Appeals by the defendant
The defendant has the possibility of appealing against conviction and/or sentence to the Court of Appeal (Criminal Division)
In all cases the defendant must obtain leave to appeal from the Court of Appeal, or a certificate that the case is fit for appeal from the trial judge
On the hearing of an appeal the Court of Appeal can allow a defendant’s appeal and quash the conviction
Alternatively it can vary the conviction to that of a lesser offence of which the jury could have convicted the defendant. So far as sentence is concerned, the court can decrease it, but cannot increase it on the defendant’s appeal. Finally, the court can dismiss the appeal.

29. Appeals from the Crown Court
Appeals by the prosecution
Originally the prosecution had no right to appeal against either the verdict or sentence passed in the Crown Court. Gradually, however, some limited rights of appeal have been given to it by Parliament.
With one small exception, the prosecution cannot appeal against a finding of not guilty by a jury. The exception is for cases where the acquittal was the result of the jury being bribed or threatened by associates of the defendant. In these circumstances, the prosecution is allowed to appeal and the High Court can order a retrial

30. Appeals from the Crown Court
Appeals to the Supreme Court
Both the prosecution and the defence may appeal from the Court of Appeal to the Supreme Court, but it is necessary to have the case certified as involving a point of law of general public importance and to get leave to appeal, either from the Supreme Court or from the Court of Appeal
Very few criminal appeals are heard by the Supreme Court

32. The Hierarchy of the Courts
This hierarchy of the appeal courts is important for judicial precedent. Decisions by the Supreme Court (formerly the House of Lords) on points of law are binding on all the other courts in England and Wales
The only exception to this is where there has been a decision by the European Court of Justice when lower courts should follow this and not a Supreme Court decision
Also, all courts have to take account of judgments of the European Court of Human Rights and may choose to follow such a decision. However, decisions of this court do not have to be followed.

33. The Hierarchy of the Courts
The lower courts must also follow decisions of the Court of Appeal where there is no decision by the Supreme Court. However, decisions made by the Court of Appeal can be overruled by the Supreme Court
The Divisional Court is below the Court of Appeal in the hierarchy for the purposes of precedent, but lower courts are bound to follow any decisions made by the Divisional Court if there is no decision by either the Court of Appeal or the Supreme Court

34. Presumption of Innocence
An accused person is presumed innocent until proven guilty. The burden is on the prosecution to prove the case
This means that it must prove both the required actus reus and the required mens rea
The prosecution may also have to disprove a defence which the defendant raises. This was confirmed in the case of Woolmington v DPP [1935]

35. Raising a Defence
If the defendant raises a defence then it is for the prosecution to negate that defence
For all common law defences, except insanity, the defendant only has to raise some evidence of the key points of the defence. This can be from evidence given by the defence or by the prosecution
If evidence of a defence is given at the 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 they are satisfied that the defence has been disproved by the prosecution.

36. Raising a Defence: Reverse Onus
For certain defences, the burden of proof is on the defendant. For example, if the defendant claims that he was insane at the time of the crime, the burden of proving this is on the defendant
This shifting of the burden of proof to the defendant is known as the ‘reverse onus’

37. Standard of Proof
The standard of proof in order for a defendant to be found guilty is ‘beyond reasonable doubt’
This is usually explained by the judge telling the jury that they should only convict if they are satisfied that they are sure of the defendant’s guilt.

38. Thank You for your Attention!