CRIMINAL LAW IN ENGLAND AND WALES
A crime may be defined as an act or omission deemed by the law to be a public wrong which is therefore punished in criminal proceedings. This definition does not explain what a public wrong is, and invites the question: "What is the difference between criminal and civil law?"
Broadly speaking, the differences are the same as in other European jurisdictions. Most crimes are also civil wrongs. However, civil law focuses on private rights, and thus on compensation for the victim; whilst criminal law is concerned with public wrongs, and thus with punishing the offender. Procedurally, this means that whilst civil cases are brought by individuals and written, for example, as Smith v Jones (pronounced Smith and Jones), criminal cases are brought in the name of the Crown, called Rex or Regina, and written as R v Jones (and usually
called, simply, Jones).
The student of English criminal law will find two important differences between criminal law in the UK and in Europe. These relate to the sources of law and to the delimitation of criminal law as a subject of study.
Historically, the common law is the foundation of the criminal law. The courts defined crimes and defences which could be relied upon by defendants. These were known as common law crimes and defences. Increasingly, however, statute is taking over as the main source of the criminal law. This is because some areas of the law have become overcomplicated and in need of codification. This happened in the case of the law of theft, for example. Additionally, it is felt that in the criminal law certainty and consistency are best provided by parliament, as there has been a tendency for judges to distort the law in their anxiety to punish a particular offender.
However, it remains important to study the case law because many of the words used to describe crimes, defences and basic principles are undefined by statute. Thus it is left to the judges to define them, using rules of statutory interpretation and drawing on definitions created by the common law. An example of this is the law of murder, which was modified by the Homicide Act 1957. The statute did not, however, define murder. This it left the judges to do.
Moreover, even when a statute does define crimes, as do the Theft Acts of 1968 and 1978, it still requires interpretation by the judges.
We have noted a definition of criminal law, that is to say, what criminal law is. It is relevant to mention what criminal is not. In England, very little time is given on the criminal law course to discussing why some conduct is defined by society as criminal. Nor is much attention given to the rationale of punishment: retribution, deterrence and so on. All these issues are discussed on another of the central courses of the law degree: the Jurisprudence course. (In England "jurisprudence" means, not case law - as in "the jurisprudence of the European Court of Justice" - but the philosophy of law.)
Another subject which receives little attention on the criminal law course is procedure. It will, however, interest the student from abroad to know how crime is dealt with in the English courts.
There are two kinds of crimes: indictable and summary. Indictable crimes are the more serious crimes, such as murder and rape. They are triable on indictment ie by judge and jury in a Crown Court (see General Introduction). The defendant may appeal on law or fact or against sentence, to the Criminal Division of the Court of Appeal. If the appeal is successful, the court may quash (annul) the conviction or substitute a conviction for another offence for which the defendant could have been convicted. Appeal from the Court of Appeal is to the House of Lords. At this stage the Crown can also appeal.
Summary offences are less serious ones such as minor motoring offences. They are heard without a jury in magistrates’ courts. Appeal from the magistrates’ court is to the Crown Court or, on a point of law, to a Divisional Court of the Queen’s Bench Division, and hence to the House of Lords.
Finally, some offences, such as theft, are triable either way. The magistrates’ court decide.
Either the magistrates or the accused may insist that the case be heard in a Crown Court.
Though procedural rules and sentencing powers differ depending on the court in which the offence is tried, the elements of the crime and the fundamental principles of law remain the same.
The accused is presumed innocent until proved guilty. All the elements of the crime must be proved beyond all reasonable doubt and it is for the Crown to prove them.
In the case of Woolmington (1935), a man shot his estranged wife. He had gone to her house with a gun and, he claimed, had threatened to kill himself but had shot her accidentally. The judge directed the jury that, the Crown having shown that W had shot his wife, it was for W to prove that the killing was an accident. The House of Lords said that this was a mistake. W had raised the defence that his wife’s death was an accident, and thus there was an evidential burden on him to testify or examine witnesses; but it remained for the prosecution to disprove his defence.
One exception to this rule is insanity. If the defendant wishes to use this defence he must prove that he was insane when he committed the offence. The burden of proof in such a case is less rigorous than for the prosecution: it is the civil law burden of proof, that of the balance of probability.
When the case is tried on indictment, the judge is in control of the proceedings. It is for the judge to decide whether evidence is admissible or not, and who can be compelled to testify as a witness. It is also the judge who interprets the law and explains it to the jury, particularly in the summing up, before the jury retire to consider their verdict.
The task of the jury is to decide questions of fact (ie whether witnesses are telling the truth) and to apply the law to the facts of the case as they believe these to be. The jury must accept the law as explained by the judge; the judge’s interpretation of the law can only be challenged on appeal to a higher court. Usually, they can only find the defendant guilty of the offence of which he is accused. The exception to this rule is when they find him guilty of a lesser offence the elements of which are included in the more serious one. For example, they may find the defendant not guilty of the crime of wounding (section 18 of the Offences Against the Person Act 1861) but guilty of common assault.
Before moving on to the substantive criminal law, it is necessary to note some principles central to criminal law. As in other European jurisdictions, no one can be prosecuted for an offence not existing when that offence was committed (nullum crimen sine lege); nor can an act be punishable as a crime unless the law has prescribed a punishment for doing that act. These requirements apply just as much to common law crimes as to statutory crimes. Thus the offence and the punishment need not be on the statute book, but it must be written down in the decisions of judges.
Another important principle of criminal law has traditionally been encapsulated in the Latin phrase "Actus non facit reum nisi mens sit rea": an act does not make a person guilty of a crime unless that person also has a wrongful state of mind.
In order to analyse a crime it is necessary to break it down into its constituent elements. The basic components of a crime are the conduct of the actor and his or her state of mind at the time. The first component is known as the actus reus, the second as the mens rea. In more serious crimes, the prosecution must prove both components before the court can convict the accused.
The actus reus is, in reality, more than just the actor’s conduct. It is really the sum of all the elements which define the offence except the mental element. Thus it may include both circumstances and results. For example, in the crime of criminal damage (Criminal Damage Act 1971), a necessary part of the actus reus is that the property belongs to someone else: you cannot be convicted of damaging your own property. Again, for the crime of murder to be committed, the victim must die. The death is part of the actus reus.
Both these crimes are "result crimes" ie crimes which are defined by their consequences. There are also "conduct crimes", which need have no result. For example, if a person makes a statement under oath which he does not believe to be true, that person commits the crime of perjury, whether or not anyone believes him.
Mens rea is probably the most crucial component of a crime, as it will determine how (and whether) the actor is to be punished. Thus if a driver, Zachary, hits and kills a child, he is guilty of murder if he intended to kill him; and of manslaughter, if he was driving recklessly. If the child jumped in front of his car and Zachary was unable to stop in time, he has committed no crime.
It can be seen, too, that the mens rea, like the actus reus, varies from crime to crime. For example, the crime of murder requires intention to kill or at least do serious bodily harm to a person; the crime of manslaughter only requires recklessness. Mens rea covers many states of mind, from intention to negligence.
Let us suppose that Natasha, furious with Fernando, decides to kill him. Whilst driving to his house she accidentally runs him over and he dies of his injuries. She is not guilty of murder because her intention (mens rea) does not coincide with her act (actus reus). Or, as an English lawyer would say, there is no concurrence.
Again, suppose that a vagrant lights a cigarette and then falls asleep. He later awakes and finds his bed on fire. Instead of putting out the fire he moves to another room. The actus reus happened when the man fell asleep with a cigarette in his hand; the mens rea, when he awoke and failed to put out the fire. Thus, again, there is no concurrence. The law has two possible ways of dealing with this problem. Firstly it can say that all the man’s actions, from lighting the cigarette to letting the house burn down, amount to one continuous act, and so the mens rea
can occur at any time during that act. This analysis looks at the man’s actions as a "course of conduct". Alternatively, the law may say that, having created a danger, the man has the duty to prevent or minimize the damage resulting from his original act. This approach is known as the "duty theory".
When the vagrant in our example failed to put out the fire, he was of course not acting but failing to act. UK law, in contrast to the law in some European countries, imposes no general duty to act in order to help people. Thus if Harry, whilst walking in the park, sees a child drowning in a lake, he is under no legal obligation to rescue the child. However, the law does recognize specific instances in which a duty arises to help others. These include, besides the duty arising from creating danger, above, a special duty of family members, and contractual and official responsibility. Thus if Harry is the child’s father, the park-keeper or a policeman he may be held responsible for the child’s death. His omission will then be treated as if it were a positive act. (Note that some crimes - for example, robbery - cannot be committed by omission.)
For an actor to be convicted of a result crime (see above), there must be a link between his or her act (or omission) and the resulting harm. For example, in our example above, but for
Natasha hitting him with her car, Fernando would not have died. This "but for" causation - also known as cause in fact - is a necessary requirement for Natasha to be convicted; necessary, but not sufficient. Other people may satisfy this test, for example, Fernando’s mother, who sent him out to buy some bread.
Once the prosecution has established that without the defendant’s act (or omission) the harm would not have occurred, it must go on to prove that the defendant’s act was the legal cause of the harm. It will try to show a direct and substantial link between the act and the harm caused. Problems now arise when the act of the victim or of a third party intervenes. Does this novus actus interveniens break the chain of causation?
A victim’s contributory negligence does not break the chain. Nor does a victim’s refusal of treatment, as shown by the famous case of Blaue (1975), in which the victim was a Jehovah’s Witness who refused a life-saving blood transfusion after being stabbed by the defendant.
The position with respect to intervening acts of third parties is more complex. Third party acts will not break the chain if they are "free, deliberate and informed". Thus a man resisting arrest by armed police who used his girlfriend as a "human shield" could be guilty of murder if in the performance of their legal duty the police fired at him and killed her.
As can be seen, legal causation is not the same as causation in a physical sense. To say that there is causation is really to say that the law considers it morally just to find the defendant criminally responsible.
What will probably intrigue the visiting student when comparing English criminal law with the systems of other European countries is the way the law frequently comes to similar conclusions but by a very different thought process. This, allied to the perennial problem of the tension between certainty on the one hand and justice in the individual case on the other, makes criminal law a fascinating subject of study.
