English criminal law

The Old Bailey, a Crown Court centre, is situated on the site of the former bailey of the London wall

English criminal law refers to the body of law in the jurisdiction of England and Wales which deals with crimes and their consequences. Criminal acts are considered offences against the whole of a community. The state, in addition to certain international organizations, has responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes and common law, and why some forms of behaviour are considered criminal.

The English legal system is common within other Commonwealth states, notably Australia, although government legislative practices and rare legal procedures, example being court hierarchy, may differ to both a significant and minor extent.

The fundamentals of a crime are known as the actus reus and the mens rea. These two Latin terms mean "guilty act" (doing that which is prohibited) and "guilty mind" (i.e. the intent to commit the crime). The traditional view is that moral culpability requires that one should have recognized or intended that one was acting wrongly.

Defences exist to some crimes. A person who is accused may in certain circumstances plead they are insane and did not understand what they were doing, that they were not in control of their bodies, they were intoxicated, mistaken about what they were doing, acted in self defence, acted under duress or out of necessity, or were provoked. These are issues to be raised at trial, for which there are detailed rules of evidence and procedure to be followed.

History

See History of English criminal law.

Not codified

England and Wales does not have a Criminal Code, though such an enactment has been often recommended and attempted (see English Criminal Code).

Bulk and complexity

In 1980, a Committee of JUSTICE said that, upon conducting a search, they found over 7,200 offences, and that they thought that there were probably many more. They said that "it is now impossible to ascertain the entire content of the criminal law at any given time".^[1] In 1989, the Law Commission said that a hypothetical criminal code that contained all existing criminal offences would be "impossibly bulky".^[2] In 2001, Peter Glazebrook said the criminal law was "voluminous, chaotic and contradictory".^[3] In March 2011, there were more than ten thousand offences excluding those created by by-laws.^[4]

Growth

In 1999, P J Richardson said that as the case for a moratorium on legislation in the field of criminal justice was becoming stronger and stronger, governments seemed ever more determined to bring forward more legislation.^[5]

Statutory offences and common law offences

Crimes are either common law offences or they are statutory. Most crimes are now statutory.

Common law offences

• Murder
• Manslaughter
• Mayhem
• Kidnapping
• False imprisonment
• Cheating the public revenue
• High treason
• Misprision of treason (disputed - alleged to be statutory)
• Compounding treason
• Contempt of the sovereign
• Misconduct in public office
• Refusal to execute public office
• Doing an act tending and intended to pervert the course of public justice - a.k.a. perverting the course of justice, defeating the ends of justice, obstructing the administration of justice
• Contempt of court a.k.a criminal contempt
• Fabrication of false evidence
• Escape
• Permitting an escape
• Breach of prison/breaking prison
• Rescue/rescuing a prisoner in custody
• Public nuisance
• Outraging public decency
• Conspiracy to defraud
• Conspiracy to corrupt public morals
• Conspiracy to outrage public decency

Prospectively abolished offences

• Bribery will be abolished when section 17(1)(a) of the Bribery Act 2010 comes into force
• Embracery will be abolished when section 17(1)(a) of the Bribery Act 2010 comes into force

Abolished offences

See History of English criminal law#Common law offences

Offences held no longer to exist or never to have existed

See History of English criminal law#Common law offences

Status not clear to the editor

• Common assault aka assault (disputed - held to now be statutory, said obiter not to be)
• battery (disputed - held to now be statutory, said obiter not to be)
• Assault with intent to rob (may now be statutory)
• Rape
• Assault with intent to rape (continued existence disputed)

Criminal law elements

The two basic elements of a crime are the act of doing that which is criminal, and the intention to carry it out. In Latin this is called the actus reus and the mens rea. In many crimes however, there is no necessity of showing criminal intention, which is why the term "strict liability" is used.

Actus reus

Main article: Causation in English law

See also: Omissions in English criminal law

An English court room in 1886, with Lord Chief Justice Coleridge presiding

Actus reus is Latin for "guilty act" and is the physical element of committing a crime. It is usually the application or threat of unlawful force, though exceptionally an omission or failure to act can result in liability. Simple examples might be A hitting B with a stick, or X pushing Y down a water well. These are guilty acts and the unlawful application or force. Alternatively, one may have a pre-existing duty to another person and by deliberately not performing it, one commits a crime. For instance, not giving food is an omission rather than an act, but as a parent one has a duty to feed one's children. Pre-existing duties can arise also through contract,^[6] a voluntary undertaking,^[7] a blood relation with who one lives,^[8] and occasionally through one's official position.^[9] As the 19th century English judge, Lord Coleridge CJ wrote,

“It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation.”^[10]

Furthermore, one can become bound by a duty to take reasonable steps to correct a dangerous situation that one creates. In R v Miller^[11] a squatter flicked away a still lit cigarette, which landed on a mattress. He failed to take action, and after the building had burned down, he was convicted of arson. He failed to correct the dangerous situation he created, as he was duty bound to do.^[12] In many countries in Europe and North America, Good Samaritan laws also exist, which criminalize failure to help someone in distress (e.g. a drowning child). On the other hand, it was held in the U.K. that switching off the life support of someone in a persistent vegetative state is an omission to act and not criminal. Since discontinuation of power is not a voluntary act, not grossly negligent, and is in the patient's best interests, no crime takes place.^[13]

If someone's act is to have any consequence legally, it must have in some way caused a victim harm. The legal definition of "causation" is that "but for" the defendant's conduct, the victim would not have been harmed.^[14] If more than one cause for harm exists (e.g. harm comes at the hands of more than one culprit) the rule states that to be responsible, one's actions must have "more than a slight or trifling link" to the harm.^[15] Another important rule of causation is that one must "take his victim as he finds him." For instance, if P gives his friend Q a playful slap on the head, but Q suffers from a rare cranial condition and dies, then P can be guilty of manslaughter regardless of how unlucky he is to have bickered with Q. This is known as the thin skull rule.^[16]

Between the defendant's acts and the victim's harm, the chain of causation must be unbroken. It could be broken by the intervening act (novus actus interveniens) of a third party, the victim's own conduct,^[17] or another unpredictable event. A mistake in medical treatment usually will not break the chain, unless the mistakes are in themselves "so potent in causing death."^[18] For instance, if emergency medics dropped a stab victim on the way to the hospital and performed the wrong resuscitation, the attacker would not be absolved of the crime.^[19]

The interplay between causation and criminal responsibility is notoriously difficult, and many outcomes are criticized for their harshness to the unwitting defendant and sidestepping of hospitals' or the victim's own liability. In R v Dear^[20] a stab victim reopened his wounds while in the hospital and died. But despite this suicidal behavior, the attacker was still held fully responsible for murder.

Mens rea

Main article: Intention in English law

Mens rea is another Latin phrase, meaning "guilty mind". It is the mental element of committing a crime and establishes the element of intent. Together with an actus reus, mens rea forms the bedrock of criminal law, although strict liability offenses have encroached on this notion. A guilty mind means intending to do that which harms someone. Intention under criminal law is separate from a person's motive. R v Mohan [1975] 2 All ER 193, intention defined as "a decision to bring about... [the actus reus] no matter whether the accused desired that consequence of his act or not." In the special case of murder, the defendant must have appreciated (i.e. consciously recognized) that either death or serious bodily harm would be the result of his actions. In R v Woolin,^[21] a man in a fit of temper threw his three month old son onto a wall, causing head injuries from which he died. Although death was certain and the father should have realized, he did not in the least desire that his son be killed or harmed. The English House of Lords sentenced him for manslaughter, but not murder.^[22] If a defendant has foresight of death or serious injury the jury may, but is not bound, to find the requisite mens rea.^[23]

A lower threshold of mens rea is satisfied when a defendant recognizes that some act is dangerous but decides to commit it anyway. This is recklessness. For instance if C tears a gas meter from a wall to get the money inside, and knows this will let flammable gas escape into a neighbor's house, he could be liable for poisoning.^[24] This is called "subjective recklessness," though in some jurisdictions "objective recklessness" qualifies as the requisite criminal intent, so that if someone ought to have recognized a risk and nevertheless proceeded, he may be held criminally liable.^[25] A novel aspect of the law on intention is that if one intends to harm somebody, it matters not who is actually harmed through the defendant's actions. The doctrine of transferred malice means, for instance, that if a man strikes another with his belt, but the belt bounces off and hits a nearby woman, the man is guilty of battery toward her.^[26] Malice can also be general, so that terrorists who plant bombs to kill random people are certainly guilty.

The final requirement states that both an actus reus and a mens rea coincide. For instance, in R v Church,^[27] For instance, Mr. Church had a fight with a woman which rendered her unconscious. He attempted to revive her, but gave up, believing her to be dead. He threw her, still alive, in a nearby river, where she drowned. The court held that Mr. Church was not guilty of murder (because he did not ever desire to kill her), but was guilty of manslaughter. The "chain of events", his act of throwing her into the water and his desire to hit her, coincided. In this manner, it does not matter when a guilty mind and act coincide, as long as at some point they do.^[28]

Strict liability

See also: Strict liability

Not all crimes have a mens rea requirement, or the threshold of culpability required may be reduced. For example, it might be sufficient to show that a defendant acted negligently, rather than intentionally or recklessly. In offences of absolute liability, other than the prohibited act, it may not be necessary to show anything at all, even if the defendant would not normally be perceived to be at fault.

England and Wales has strict liability offences, which criminalize behavior without the need to show moral wrongdoing. Most strict liability offences are created by statute, and often they are the result of ambiguous drafting. They are usually regulatory in nature, where the result of breach could have particularly harmful results. An example is drunk driving.

Criminal offences

Offences against the person

Main article: Offence against the person

Offences against property

Main articles: Property crime, Theft in English law, Robbery in English law, and Criminal Damage in English law

See also: Burglary

• Offences under the Explosive Substances Act 1883
• Offences under the Computer Misuse Act 1990

Firearms and offensive weapons

See also: Gun law and Gun politics in the United Kingdom

See also: Offensive weapon

• Offences under section 1(1) of the Prevention of Crime Act 1953
• Offences under sections 139 and 139A of the Criminal Justice Act 1988
• Offences under the Knives Act 1997

Forgery, personation and cheating

See forgery:

• Offences under Part I of the Forgery and Counterfeiting Act 1981
• Falsification of pedigree, contrary to section 183(1)(b) of the Law of Property Act 1925
• Improper alteration of the registers, contrary to section 124 of the Land Registration Act 2002
• Offences under section 8 of the Non-Parochial Registers Act 1840
• Offences under sections 36 and 37 of the Forgery Act 1861
• Forgery of passport, contrary to section 36 of the Criminal Justice Act 1925
• Offences under sections 133 and 135 of the County Courts Act 1984
• Offences under section 13 of the Stamp Duties Management Act 1891; and supplementary offences under sections 14 and 15
• Offences under section 6 of the Hallmarking Act 1973
• Offences under section 126 of the Mental Health Act 1983
• Offences under sections 121 and 122(6) of the Gun Barrel Proof Act 1868

Motor vehicle document offences:

• Offences under section 97AA and 99(5) of the Transport Act 1968
• Offences under section 65 of the Public Passenger Vehicles Act 1981
• Offences under section 115 of the Road Traffic Regulation Act 1984
• Offences under section 173 of the Road Traffic Act 1988
• Offences under regulations 11(1) to (3) of the Motor Vehicles (E.C. Type Approval) Regulations 1992 (S.I. 1992/3107) made under section 2(2) of the European Communities Act 1972
• Offences under section 44 of the Vehicles Excise and Registration Act 1994
• Offences under regulations 10(1) to (3) the Motor Cycle (E.C. Type Approval) Regulations 1995 (S.I. 1995/1531) made under section 2(2) of the European Communities Act 1972
• Offences under section 38 of the Goods Vehicles (Licensing of Operators) Act 1995

See personation:

• Offences under section 90(1) of the Police Act 1996
• Offences under section 30(1) of the Commissioners for Revenue and Customs Act 2005
• Offences under section 34 of the Forgery Act 1861
• Offences under section 24 of the Family Law Reform Act 1969
• Offences under section 60 of the Representation of the People Act 1983

See cheating:

• Offences under section 17 of the Gaming Act 1845
• Offences under section 1 of the Fraudulent Mediums Act 1951

Offences against the State or Crown or Government and political offences

• High treason
• Misprision of treason
• Compounding treason
• Treason felony
• Attempting to injure or alarm the Sovereign, contrary to section 2 of the Treason Act 1842
• Contempt of the sovereign
• Trading with the enemy
• Offences under the Official Secrets Acts 1911 to 1989
• Offences under the Incitement to Disaffection Act 1934
• Causing disaffection, contrary to section 91 of the Police Act 1996
• Causing disaffection, contrary to section 6 of the Ministry of Defence Police Act 1987
• Incitement to sedition or disaffection or promoting industrial unrest, contrary to section 3 of the Aliens Restriction (Amendment) Act 1919
• Offences of procuring and assisting desertion under military law
• Offences relating to terrorism
• Offences of directing quasi military organisations and wearing uniforms for political purposes under the Public Order Act 1936
• Piracy iure gentium
• Piracy with violence, contrary to the Piracy Act 1837
• Offences under the Slave Trade Act 1824
• Offences under the Foreign Enlistment Act 1870
• Offences under the Immigration Act 1971
• Coinage offences under Part II of the Forgery and Counterfeiting Act 1981
• Offences relating to public stores under the Public Stores Act 1875
• Offences relating to military stores under military law
• Offences against postal and electronic communication services
• Misconduct in public office
• Refusal to execute public office
• Offences of selling public offices under the Sale of Offices Act 1551 and Sale of Offices Act 1809
• Purchasing the office of clerk of the peace or under-sheriff, contrary to section 27 of the Sheriffs Act 1887
• Cheating the public revenue
• Offences under the Customs and Excise Management Act 1979
• Tax evasion and money laundering offences

See also Offences against military law in the United Kingdom

Harmful or dangerous drugs

• Offences under the Misuse of Drugs Act 1971, the Intoxicating Substances (Supply) Act 1985, the Licensing Act 2003, section 7 of the Children and Young Persons Act 1933 and other provisions relating to tobacco, and the Drug Trafficking Act 1994.

Offences against religion and public worship

• Offences under section 7 of the Burial Laws Amendment Act 1880
• Offences under sections 75 to 77 of the Marriage Act 1949

Offences against the administration of public justice

• Doing an act tending and intended to pervert the course of public justice - a.k.a. perverting the course of justice, defeating the ends of justice, obstructing the administration of justice
• Concealing evidence, contrary to section 5(1) of the Criminal Law Act 1967
• Contempt of court a.k.a criminal contempt
• Intimidation, contrary to section 51(1) of the Criminal Justice and Public Order Act 1994
• Taking or threatening to take revenge, contrary to section 51(2) of the Criminal Justice and Public Order Act 1994
• Perjury, contrary to section 1 of the Perjury Act 1911
• Perjury, contrary to section 6 of the Piracy Act 1850
• Offences under sections 2 to 4 of the Perjury Act 1911
• Making a false statutory declaration, contrary to section 5 of the Perjury Act 1911
• Offences under section 6 of the Perjury Act 1911
• Fabrication of false evidence
• Offences under section 89 of the Criminal Justice Act 1967
• Offences under 106 of the Magistrates' Courts Act 1980
• Offences under section 11(1) of the European Communities Act 1972
• Escape
• Permitting an escape
• Assisting a prisoner to escape, contrary to section 39 of the Prison Act 1952
• Breach of prison/breaking prison
• Rescue/rescuing a prisoner in custody
• Harbouring an escaped prisoner, contrary to section 22(2) of the Prison Act 1952
• Taking part in a prison mutiny, contrary to section 1(1) of the Prison Security Act 1992
• Offences under section 128 of the Mental Health Act 1983
• Causing a wasteful employment of the police, contrary to section 5(2) of the Criminal Law Act 1967
• Administering an unlawful oath, contrary to section 13 of the Statutory Declarations Act 1835

Prospectively abolished offence

• Embracery will be abolished when section 17(1)(a) of the Bribery Act 2010 comes into force

Public order offences

Main article: Public order offence

• Offences under the Public Order Act 1986
• Offences under section 31 of the Crime and Disorder Act 1998
• Offences under Part V of the Criminal Justice and Public Order Act 1994
• Offences under Part II of the Criminal Law Act 1977
• Offences under the Protection from Eviction Act 1977
• Bomb hoaxes, contrary to section 51 of the Criminal Law Act 1977

Offences against public morals and public policy

• Bigamy, contrary to section 57 of the Offences against the Person Act 1861

See also: Obscenity and Indecency

• Offences under section 2(1) of the Obscene Publications Act 1959
• Offences under section 2(2) of the Theatres Act 1968
• Certain offences under the Postal Services Act 2000
• Offences under section 1(1) of the Indecent Displays (Control) Act 1981
• Offences under section 1(1) of the Protection of Children Act 1978
• Offences under section 160 of the Criminal Justice Act 1988
• Offences under section 170 of the Customs and Excise Management Act 1979 consisting of importation in breach of the prohibition under section 42 of the Customs Consolidation Act 1876

Prospective offences

Offences under the Bribery Act 2010

Prospectively abolished offences

• Offences under the Prevention of Corruption Acts 1889 to 1916 will be abolished when section 17(3) of, and Schedule 2 to, the Bribery Act 2010 come into force
• The common law offence of bribery will be abolished when section 17(1)(a) of that Act comes into force

Protection of children and vulnerable adults

Protection of animals and the environment

See Cruelty to animals#United_Kingdom and Environmental crime

Road traffic and motor vehicle offences

Main article: United Kingdom traffic laws

Participatory and inchoate offences

See also: Accomplice, Aid and abet, Inchoate offenses, and Inchoate offences in English law

• Encouraging or assisting crime - Part 2 of the Serious Crime Act 2007
• Soliciting to murder, contrary to section 4 of the Offences against the Person Act 1861
• Aiding, abetting, counselling or procuring the commission of an offence
• Conspiracy, contrary to section 1(1) of the Criminal Law Act 1977
• Conspiracy to defraud
• Conspiracy to corrupt public morals
• Conspiracy to outrage public decency
• Attempt, contrary to section 1(1) of the Criminal Attempts Act 1981

Parts 1 to 3 of Schedule 3 to the Serious Crime Act 2007 list numerous statutory offences of assisting, encouraging, inciting, attempting or conspiring at the commission of various crimes.

Criminal law defences

The defences which are available to any given offence depend on the wording of the statute and rules of the common law. There are general defences. Insanity, automatism, mistake and self defence operate as defences to any offence. Inadvertence due to intoxication is a defence to all offences requiring proof of basic intent if the intoxication is involuntary, and in cases where the risk would not have been obvious to a reasonable and sober person and/or the defendant, if it is voluntary, and to offences that require proof of a specific intent. Duress and necessity operate as a defence to all crimes except murder, attempted murder and some forms of treason. Marital coercion is a defence to all crimes except treason and murder.^{[citation needed]}

Partial defences that reduce murder to manslaughter

Diminished responsibility

Main article: Diminished responsibility in English law

If one succeeds in being declared "not guilty by reason of insanity" then the result is going to an asylum, a clearly inadequate result for somebody suffering from occasional epileptic fits, and many conditions unrecognized by nineteenth century medicine. The law has therefore been reformed in many ways.^[29] One important reform, introduced in England and Wales by statute is the diminished responsibility defence. The requirements are usually more lax, for instance, being "an abnormality of mind" which "substantially impair[s] mental responsibility for his acts and omission in doing or being a party to the killing."^[30]

Loss of control

See sections 54 and 55 of the Coroners and Justice Act 2009

Partial defence to murder and manslaughter: infanticide

Infanticide now operates as a defence to both murder and manslaughter. See the Infanticide Act 1938 as amended by the Coroners and Justice Act 2009.

Consent

Main article: Consent (criminal law)

The consent of the 'victim' of what would otherwise be an offence is sometimes an excuse that will exculpate the offender from criminal liability. This is of particular relevance to offences against the person and against property.

Insanity

Main article: Insanity in English law

See also: Insanity defence

William Hogarth's A Rake's Progress, depicting the world's oldest psychiatric hospital, Bethlem Hospital

Insanity, is a deranged state of mind, and consequently no defence to strict liability crimes, where mens rea not is a requirement. An old case which lays down typical rules on insanity is M'Naghten's case^[31] where a man suffering extreme paranoia believed the Tory party of the United Kingdom, were persecuting him. He wanted to shoot and kill Prime Minister Sir Robert Peel, but got Peel's secretary in the back instead. Mr M'Naghten was found to be insane, and instead of prison, put in a mental hospital. The case produced the rules that a person is presumed to be sane and responsible, unless it is shown that (1) he was laboring under such a defect of reason (2) from disease of the mind (3) 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. These elements must be proven present on the balance of probabilities.

"Defect of reason" means much more than, for instance, absent mindedness making a lady walk from a supermarket without paying for a jar of mincemeat.^[32] A "disease of the mind" includes not just brain diseases, but any impairment "permanent or transient and intermittent" so long as it is not externally caused (e.g. by drugs) and it has some effect on one's mind.^[33] So epilepsy can count, as can an artery problem causing temporary loss of consciousness (and a man to attack his wife with a hammer).^[34] Diabetes may cause temporary "insanity"^[35] and even sleep walking has been deemed "insane".^[36] "Not knowing the nature or wrongness of an act" is the final threshold which confirms insanity as related to the act in question. In R v Windle^[37] a man helped his wife commit suicide by giving her a hundred aspirin. He was in fact mentally ill, but as he recognized what he did and that it was wrong by saying to police "I suppose they will hang me for this", he was found not insane and guilty of murder.^[38]

Automatism

Main article: Automatism in English law

See also: Automatism (law)

Automatism is a state where the muscles act without any control by the mind, or with a lack of consciousness.^[39] A successful automatism defence negatives the actus reus element of a crime. If someone raises this defence, then it is for the prosecution to disprove. Automatismic actions can be a product of insanity, or not. One may suddenly fall ill, into a dream like state as a result of post traumatic stress,^[40] or even be "attacked by a swarm of bees" and go into an automatic spell.^[41] However to be classed as an "automaton" means there must have been a total destruction of voluntary control, which does not include a partial loss of consciousness as the result of driving for too long.^[42]

Automatism can also be self induced, particularly by taking medical treatment.^[43] Self induced automatism can always be a defence to crimes of specific intent (such as murder, wounding or causing grievous bodily harm with intent, theft, robbery and burglary). But automatism is no defence to other crimes (i.e. of basic intent, e.g. manslaughter, assault and battery) if the defendant was reckless in becoming automatismic or it happens through alcohol or illegal drugs. Only where the defendant does not know his actions will lead to an automatismic state where he could harm something can self induced automatism be a defence to these crimes. For example, in R v Hardie^[44] Mr Hardie took his girlfriend's Valium, because she had just kicked him out and he was depressed. She encouraged him to take them, to make him feel better. But he got angry and set fire to the wardrobe. It was held that he should not be convicted of arson because he expected the Valium to calm him down, and this was its normal effect.

Intoxication

Main article: Intoxication in English law

See also: Intoxication defence

The Drunkenness of Noah by Michelangelo

Technically, intoxication is not a defence, but negates the mens rea for specific intent offenses (e.g. it commutes a murder sentence to manslaughter). In other words, a defendant may have been so drunk, or drugged, that he was incapable of forming the criminal intention required.^[45] Voluntary intoxication is considered reckless, a state of basic intent,^[46] which means one cannot have ones sentence reduced for crimes of basic intent (e.g. manslaughter, assault, etc.). So for instance, in R v Sheehan and Moore two viciously drunken scoundrels threw petrol on a tramp and set fire to him. They got off for murder, but still went down for manslaughter, since that is a crime of basic intent. Of course, it can well be the case that someone is not drunk enough to support any intoxication defence at all.^[47] On the other hand, if someone becomes involuntarily intoxicated, because her drink is laced or spiked, then the question is whether the normal mens rea was present at the incident's time. So where a blackmailer drugged a man's coffee, invited him to abuse a 15 year old boy, and photographed it, the man was denied the defence of intoxication because the court simply did not believe that the man did not intend to commit the abuse.^[48]

Sometimes intoxicated people make mistakes, as in R v Lipman^[49] where the defendant took LSD, thought his girlfriend was a snake and strangled her. Here, intoxication operated as a defence because Mr Lipman was mistaken in his specific intent of killing a snake. But intoxication does not negative the basic intent crime of manslaughter, with his "reckless course of conduct" in taking drugs. Lastly, while a mistake about a person or the actual action is acceptable, a mistake about how much force to use to defend oneself is not. Using a sledgehammer to fend off an "attacker" after 20 pints of beer is disproportionate.^[50]

Mistake

Main articles: Mistakes in English law#Criminal law and Mistake (criminal law)

Self defence

See also: Self-defence in English law

In all instances, one may only use reasonable, and not excessive force in self defence. In R v Clegg^[51] a soldier in Northern Ireland shouted at a car approaching a checkpoint to halt. When it did not, Mr Clegg fired three shots, killing a woman. It had hit her in the back, and Mr Clegg was sentenced for murder because by then the car had passed, the force was excessive and there was no justification for self defence. Another way of expressing the rule on defensive force is that it must be proportionate to the threat. For instance, as the notorious case of R v Martin^[52] shows, shooting a teenager in the back with a shotgun several times as he tries to escape is not a justified or proportionate exercise of self defensive force for Norfolk hermit, even if robbers had trespassed on his property. In that case, Mr Martin was found to have diminished responsibility for his actions, because he was mentally ill.

Duress

Main article: Duress in English law

Sir Galahad, a medieval hero displaying qualities that Lord Halisham did not expect everyone could display under duress

One who is "under duress" is forced into something. Duress can be a defence for all crimes, except murder, attempted murder, being an accessory to murder^[53] and, seemingly, treason involving the death of the Sovereign. In relation to such serious crimes, Lord Halisham, Lord Griffiths and Lord Mackay, giving their decision in the appeal case R v Howe^[54] said that to allow the defence of duress as a defence to murder would involve overruling the decision in Dudley and Stephens (1884), which decided that duress was not a defence to a charge of murder. Following R v Howe, there was uncertainty as to whether duress would be available as a defence on a charge of attempted murder, but Lord Griffiths, obiter, stated that it was not. This arose before the Gotts case went to the House of Lords in 1992. R v Gotts dealt with the problems of attempted murder.

If it is shown that the defendant reasonably believed the threat,^[55] it must also be shown that "a sober person of reasonable firmness, sharing the characteristics of the accused" would have responded similarly.^[56] Examples of someone's characteristics that might be relevant are age, gender, pregnancy, physical disability, mental illness, sexuality, but not IQ.^[57]

Using duress as a defence is limited in a number of ways. The accused must not have foregone some safe avenue of escape.^[58] The duress must have been an order to do something specific, so that one cannot be threatened with harm to repay money and then choose to rob a bank to repay it, because that choice implies a free will.^[59] Intoxication is irrelevant to duress, but one cannot also say one is mistaken about duress, when intoxicated. Then a number of cases turn on the choice to join a gang, and inevitably do bad things. The rule is that where one is aware of the gang's nature and puts himself in a position where he could be threatened, duress is not a defence. So joining a gang that carries out armed robberies probably precludes any duress defence^[60] but joining a shoplifting gang may well not.^[61]

Necessity

Main article: Necessity in English law

Sketch of the Mignonette by Tom Dudley from R v Dudley and Stephens

Whilst a duress defence relates to the situation where a person commits an offense to avoid death or serious injury to himself or another when threatened by a third party, the defence of necessity related to the situation where a person commits an offense to avoid harm which would ensue from circumstances in which he/she or another are placed. Duress operates as an excuse but necessity operates as a justification, rendering the defendant's conduct lawful. Necessity is a defence that argues "I desperately needed to do X, because consequence Y would have been really bad." Logically, this is identical to the concept of "duress of circumstance", where the situation rather than a person is the threat.^[62] The common elements are (1) an act is done to prevent a greater evil (2) the evil must be directed to the defendant or someone for who he is responsible (3) the act must have been a proportionate response. But only necessity is a potential defence for murder.

The defence of necessity was first tested in the 19th century English case of R v Dudley and Stephens.^[63] The Mignotte, sailing from Southampton to Sydney, sank. Three crew members and a cabin boy were stranded on a raft. They were starving and the cabin boy close to death. Driven to extreme hunger, the crew killed and ate the cabin boy. The crew survived and were rescued, but put on trial for murder. They argued it was necessary to kill the cabin boy to preserve their own lives. Lord Coleridge, expressing immense disapproval, ruled, "to preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it." The men were sentenced to hang, but public opinion, especially among seafarers, was outraged and overwhelmingly supportive of the crew's right to preserve their own lives. In the end, the Crown commuted their sentences to six months.

Since then, in the 1970s, in several road traffic cases, although obiter dicta, it has been stated that there is a defence of necessity. In Johnson v Phillips [1975], Justice Wein stated that a police constable would be entitled to direct motorists to disobey road traffic regulations if this was reasonably necessary for the protection of life or property. In a later case, Woods v Richards,^[64] Justice Eveleigh stated that the defence of necessity depended on the degree of emergency which existed or the alternative danger to be averted. In DPP v Harris^[65] a police officer, charged with driving without due care and attention through a red traffic light contrary to s 3 of the Road Traffic Act 1988, and having collided with another vehicle containing armed robbers whilst pursuing that vehicle, was not allowed to advance the defence of necessity. Again in Chicon v DPP [1994] the defence of necessity was not allowed in a case of a pit bull terrier dog being kept in a public place without a muzzle - the owner had removed the muzzle to allow the dog to drink. But in the case of In re F (Mental Patient Sterilization),^[66] the defence of necessity was allowed. In the case of R v Bournewood Community and Mental Health NHS Trust,^[67] the defence of necessity (in the case of Tort law) was recognized and applied by the House of Lords to justify the informal detention and treatment of a mentally incompetent person who had become a danger to himself. This approach was subsequently found to be a violation of Article 5 of the European Convention of Human Rights by the European Court of Human Rights in HL v United Kingdom. Subsequent to this decision, individuals who lack capacity must be deprived of their liberty in accordance with the Deprivation of Liberty Safeguards (an amendment to the Mental Capacity Act 2005), not under the common law doctrine of necessity.

But more recently, duress of circumstance^[68] and necessity have been recognized and used by courts. In a leading case, Re A (Conjoined Twins),^[69] conjoined twins were born, one reliant on the other for her heart and lungs. Unless they were separated, both would die, but if separated, the reliant twin would die, the doctors therefore being liable to prosecution for murder. It was, however, held that in this special and incredibly sensitive situation, that the separation was necessary to save the first twin's life.

Marital coercion

Main article: Marital coercion

International criminal law

Main articles: International criminal law and Crimes against humanity

The architecture of the new International Criminal Court in The Hague

Criminal procedure

See also: Criminal procedure and Evidence (law)

• Hearsay in English law

Sentencing

See also: Sentence (law) and Life imprisonment in England and Wales

There is a Sentencing Council.

General power to impose a fine on indictment

See also: Fine (penalty)

This power is now created by section 163 of the Criminal Justice Act 2003

It was formerly created by each of the following provisions in turn:

• The Criminal Justice Act 1948, section 13. Only applied to felony.
• The Criminal Law Act 1967, section 7(3). Only applied where no enactment specified a maximum fine.
• The Powers of Criminal Courts Act 1973, section 30(1). Amended by the Crime (Sentences) Act 1997, section 55 and Schedule 4, paragraph 8(3). The Criminal Law Act 1977, Schedule 13 repealed "limiting the amount of the amount of the fine that may be imposed or" and see section 32(1) (removed all statutory limits on fines imposed on convictions on indictment). Repealed in part by the Criminal Justice Act 1991, Schedule 13.
• The Powers of Criminal Courts (Sentencing) Act 2000, section 127.

General power of Crown Court to impose a sentence of imprisonment on conviction on indictment

See also: Imprisonment

This power is created by section 77 of the Powers of Criminal Courts (Sentencing) Act 2000

It was formerly created by each of the following provisions in turn:

• The Criminal Law Act 1967, section 7(1)
• The Powers of Criminal Courts Act 1973, section 18(1)

See also

• Criminal law

Notes

1. ^ Breaking the Rules (1980) at page 53
2. ^ The Law Commission, Criminal Law:A Criminal Code for England and Wales (Law Com 177), Volume 1, paragraph 3.3 at page 12
3. ^ Glazebrook, P R. How Old Did You Think She Was? [2001] Cambridge Law Journal 26 at 30
4. ^ Ormerod, David. Smith and Hogan's Criminal Law. Thirteenth Edition. Oxford University Press. 2011. pp. vii and 3.
5. ^ Archbold Criminal Pleading, Evidence and Practice, 1999, preface, page vii
6. ^ R v Pittwood (1902) 19 TLR 37 - a railway worker who omitted to shut the crossing gates, convicted of manslaughter when someone was run over by a train
7. ^ e.g. the partner in Gibbons who was not a blood parent, but had assumed a duty of care
8. ^ R v Stone and Dobinson [1977] QB 354, where an ill tended sister named Fanny couldn't leave bed, was not cared for at all and literally rotted in her own filth. This is gross negligence manslaughter.
9. ^ R v Dytham [1979] QB 722, where a police man on duty just stood and watched three men kick another to death
10. ^ R v Instan (1893) 1 QB 450, where a bedridden aunt, ostensibly in her niece's care developed gangrene, a "slur on justice" were it not punishable.
11. ^ R v Miller [1983] 1 All ER 978
12. ^ see also, R v Santana-Bermudez (2003) where a thug with a needle failed to tell a policewoman searching his pockets that he had one
13. ^ Airedale NHS Trust v Bland [1993] 1 All ER 821
14. ^ e.g R v Pagett [1983] Crim LR 393, where 'but for' the defendant using his pregnant girlfriend for a human shield from police fire, she would not have died. Note, Pagget's conduct foreseeably procured the heavy police response.
15. ^ R v Kimsey [1996] Crim LR 35, where 2 girls were racing their cars dangerously and crashed. One died, but the other was found slightly at fault for her death and convicted.
16. ^ e.g. R v Blaue [1975] where a Jehovah's witness (who refuse blood transfusions on religious grounds) was stabbed and without accepting life saving treatment died.
17. ^ e.g. R v Williams [1992] where a hitchhiker who jumped from a car and died, apparently because the driver tried to steal his wallet, was a "daft" intervening act. cf R v Roberts [1971] Crim LR 27, where a girl jumped from a speeding car to avoid sexual advances and was injured and R v Majoram [2000] Crim LR 372 where thugs kicked in the victims door scared him to jumping from the window. These actions were foreseeable, creating liability for injuries.
18. ^ per Beldam LJ, R v Cheshire [1991] 3 All ER 670; see also, R v Jordan [1956] 40 Cr App R 152, where a stab victim recovering well in hospital was given an antibiotic. The victim was allergic, but he was given it the next day too, and died. The hospital's actions intervened and absolved the defendant.
19. ^ R v Smith [1959] 2 QB 35, the stab was still an "operating" and "substantial" cause of death.
20. ^ R v Dear [1996] Crim LR 595
21. ^ R v Woolin [1998] 4 All ER 103
22. ^ overturning R v Nedrick [1986] 1 W.L.R. 1025, whose guidelines for the jury were to be certain "[1] that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and [2] that the defendant appreciated that such was the case." Here the defendant poured paraffin through the letter box owned by a woman he didn't like and lit it. A child died in the fire. He was convicted of manslaughter.
23. ^ R v Matthews and Alleyne [2003] EWCA Crim 192
24. ^ cf R v Cunningham [1957] 2 All ER 863, where the defendant did not realize, and was not liable; also R v G and Another [2003] UKHL 50
25. ^ previously in the U.K. under Metropolitan Police Commissioner v Caldwell [1981] 1 All ER 961
26. ^ R v Latimer (1886) 17 QBD 359; though for an entirely different offense, e.g. breaking a window, one cannot transfer malice, see R v Pembliton (1874) LR 2 CCR 119
27. ^ R v Church [1966] 1 QB 59
28. ^ see also, Fagan v Metropolitan Police Commissioner [1968] 3 All ER 442, where angry Mr Fagan wouldn't take his car off a policeman's foot
29. ^ e.g. in the U.K. Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, giving the judge discretion to impose hospitalization, guardianship, supervision and treatment or discharge.
30. ^ The Homicide Act 1957, section 2(1)
31. ^ M'Naghten's case (1843) 10 C & F 200
32. ^ R v Clarke [1972] 1 All ER 219, caused by diabetes and depression, but the lady pleaded guilty because she did not want to defend herself as insane. Her conviction was later quashed.
33. ^ R v Sullivan [1984] AC 156
34. ^ R v Kemp [1957] 1 QB 399
35. ^ R v Hennessy [1989] 2 All ER 9; though see R v Quick [1973] and the automatism defence.
36. ^ R v Burgess [1991] 2 All ER 769
37. ^ R v Windle [1952 2 QB 826
38. ^ Mr Windle was not hanged!
39. ^ Bratty v Attorney-General for Northern Ireland [1963] AC 386
40. ^ R v T [1990] Crim LR 256
41. ^ see Kay v Butterworth (1945) 61 TLR 452
42. ^ Attorney-General's Reference (No. 2 of 1992) [1993] 4 All ER 683
43. ^ R v Bailey [1983] 2 All ER 503, a diabetic who did not eat enough after taking his dose of insulin hit someone with an iron bar. He was still convicted because automatism did not exist on the facts.
44. ^ R v Hardie [1984] 1 WLR 64
45. ^ per Lord Birkenhead, DPP v Beard [1920] AC 479
46. ^ DPP v Majewski 1977 AC 433, where M was drunk and drugged and attacked people in a pub. He had no defence to assault occasioning actual bodily harm.
47. ^ R v Gallagher [1963] AC 349
48. ^ R v Kingston [1994] 3 All ER 353
49. ^ R v Lipman [1970] 1 QB 152
50. ^ see R v Hatton [2005] All ER (D) 230
51. ^ R v Clegg [1995] 1 All ER 334
52. ^ R v Martin [2002]
53. ^ cf DPP for Northern Ireland v Lynch [1975] 1 All ER 913, the old English rule whereby duress was available for a secondary party to murder; see now R v Howe [1987] 1 AC 417, where the defendant helped torture, sexually abuse and strangling. Being threatened into helping was no defence.
54. ^ R v Howe [1987] 1 AC 817
55. ^ n.b. this may differ to the state of mind in the case of mistake, where the only requirement is that one honestly believes something. Here it may need to be a "reasonable belief", see also R v Hasan (formerly Z) [2005] UKHL 22
56. ^ R v Graham [1982], where duress was rejected
57. ^ R v Bowen [1996]
58. ^ R v Gill [1963], where someone told to steal a lorry could have raised the alarm; see also R v Hudson and Taylor [1971] where two teenage girls were scared into perjuring, and not convicted because their age was relevant and police protection not always seen to be safe.
59. ^ R v Cole [1994]
60. ^ R v Sharp [1987]
61. ^ R v Shepherd [1987]
62. ^ per Lord Woolf, R v Shayler [2002] 2 All ER 477
63. ^ R v Dudley and Stephens [1884] 14 QBD 273 DC
64. ^ Woods v Richards [1977]
65. ^ DPP v Harris [1995]
66. ^ In re F (Mental Patient Sterilization) [1990]
67. ^ R v Bournewood Community and Mental Health NHS Trust [1998]
68. ^ eg R v Cairns [1999] EWCA Crim 468 where a perceived threat of men running at car (when they wanted to help) was held acceptable as duress of circumstance, when one man was run over.
69. ^ Re A (Conjoined Twins) [2000] 4 All ER 961

References

• Farmer, Lindsay (2000). "Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833-45". Law and History Review 18 (2). http://www.historycooperative.org/journals/lhr/18.2/farmer.html. 
• Fletcher, George P. (1998). Basic Concepts of Criminal Law. Oxford University Press. ISBN 0195121708. 
• Fletcher, George P. (2000). Rethinking Criminal Law. Oxford University Press. ISBN 0195136950. 
• Gorr, Michael J., Sterling Harwood, eds. (1992). Controversies in Criminal Law. Westview Press. 
• Gross, Hyman (2005, reissue). A Theory of Criminal Justice. Oxford University Press. ISBN 0195023498. 
• Hall, Jerome (1960). General Principles of Criminal Law. Lexis Law Pub. ISBN 0-672-80035-7. 
• Hart, H.L.A. (1968). Punishment and Responsibility. Oxford University Press. ISBN 0198251815. 
• Smith, K. J. M. (1998). Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence, 1800-1957. Clarendon Press. ISBN 0198257236. 
• van den Haag, Ernest (1978). Punishing Criminals: Concerning a Very Old and Painful Question. Basic Books. ISBN 0819181722. 
• Ormerod, David (2005). Smith and Hogan: Criminal Law. Oxford University Press. ISBN 0406977305. 

External links

• Directgov Crime and justice (Directgov, England and Wales)