Topic 1 - Introduction to Criminal Law Principles

Question 1

What is the study of criminal law?

Answer 1

The study of the criminal law is the study of liability.

It deals with whether a person is innocent or guilty of an offence (ie whether or not they can be convicted). It is not about whether a person can be charged with a crime, how the prosecution proves that a person is guilty of a crime, or what sentence they may face if convicted.

Answer 2

The criminal law consists of complex and sometimes contradictory rules which, when applied to a set of facts, allow us to conclude whether or not a person is guilty or not guilty of a crime. From the chapters which follow, you will see that we can reach a conclusion as to liability only by deciding three things:

1. Whether the defendant (D) performed in the way required by the definition of the offence. This might be by acting in a certain way; failing to act in particular circumstances; causing a particular result; or being in a certain situation. We call this the actus reus (see chapter 2), and
2. Whether D either had the prohibited state of mind (the mens rea, see chapter 3), or none was needed (for an offence of strict liability, see chapter 4), and
3. Whether or not there is a defence (see chapters 14 and 15).

Answer 3

What has to be proved depends on the particular elements of the crime charged (chapters 5–13). Obviously what has to be established for a defendant to be guilty of theft is very different from what has to be shown for them to be guilty of murder.

Answer 4

We are not usually concerned with why D committed the crime. So, D’s motive is generally irrelevant to liability. If, for example, D stole goods from a shop we consider only whether, on the facts, D committed theft. The reason why D committed theft is not relevant to that question. D will be as guilty of theft whether he was stealing to get money to feed his addiction to drugs or to get his mum a Christmas present.

For example, if D commits an assault because he is in danger from an aggressor, then the reason that D lashed out is certainly important as it may provide him with a defence (self-defence). Similarly, D may have killed his girlfriend because whilst experiencing an uncontrollable epileptic fit he hit her so hard she died. You may find it surprising, but such a defendant is probably insane (see further chapter 14).

Answer 5

Generally, in studying criminal law you should not deal with what sentence will be imposed on someone found guilty of an offence. Sentencing and forms of punishment are usually taught as part of English Legal System and/or Criminology modules.

Answer 6

Most prosecutions are brought by the Crown Prosecution Service (CPS) in the name of the Crown. This means that the prosecution is brought on behalf of the state, rather than the victim. It is perfectly permissible for the CPS to decide to charge someone with an offence, even though the victim opposes the prosecution.

For example, sometimes in cases of domestic violence, the victim might have forgiven the offender and not want them to be prosecuted, but the CPS may decide they will be prosecuted nonetheless. This also explains why in some cases where the victim may feel seriously wronged, the CPS may decide that it is not in the public interest to bring a prosecution.

Answer 7

The fact that prosecutions are brought by the CPS helps to explain an important distinction between criminal law and civil law. Civil law deals with relationships between individuals and includes, for example, claims for breach of contract or loss caused by negligence. The primary aim of civil law is to give the victim compensation for loss wrongfully caused by the defendant.

Criminal law, by contrast, is about punishing the defendant for the wrong they did, not just to the victim but the public good more generally.

You should appreciate that the same incident could give rise to proceedings in both criminal and civil law. So if Sarah deliberately damaged Simon’s car, Simon could sue Sarah for damages, for the loss he suffered, and the Crown could bring criminal proceedings against Sarah for the offence of criminal damage.

Question 8

What does burden of proof mean?

Answer 8

The burden of proof means the requirement on a party to adduce sufficient evidence to persuade the fact-finder (the magistrates or the jury), to a standard set by law, that a particular fact is true. For example, if a defendant is charged with murder, the burden of proving they are guilty lies on the prosecution, who must do so beyond reasonable doubt.

Question 9

Which party bears the burden of proof in criminal cases?

Answer 9

You are, no doubt, aware of the presumption of innocence, commonly phrased that a defendant is presumed to be innocent until proven guilty. This is a fundamental principle of the common law and is also one of the rights specifically mentioned to guarantee a fair trial according to Article 6(2) European Convention on Human Rights (ECHR).

Answer 10

Woolmington [1935] AC 462

The House of Lords held that there is a ‘golden thread’ running throughout the criminal law, that it is the duty of the prosecution to prove the defendant is guilty, not for the defendant to prove he is innocent. Viscount Sankey said the presumption of innocence is part of the common law ‘and no attempt to whittle it down can be entertained’.

Question 11

What does the burden of proof mean in practice?

Answer 11

In practice, this means that defendants do not have to prove they are not guilty; the prosecution has to prove beyond reasonable doubt that they are. It is important to note that the burden of proof is (almost always) on the prosecution. Even when dealing with defences, it is usually the prosecution’s task to disprove the defence. This is because most defences are no more than a denial of an element of the crime, so the burden of proof remains on the prosecution.

For example, the prosecution carries the burden of proof in relation to self-defence. So, if the defendant asserts that they were acting in self-defence, they do not have to prove they were; rather, the prosecution must prove they were not. That is not to say the defendant has no burden at all; they just do not have a burden of proof.

They do, however, have a burden of introducing some evidence supporting the defence of self-defence. This is called being under an evidential burden. Evidential burdens are not proof burdens, but are duties to make issues ‘live’ in the case.

Question 12

What is a reverse proof burden?

Answer 12

There are a few occasions on which the defendant has to prove a defence. There are certain defences which D must prove, and if they cannot, they may well be convicted. For almost all criminal law modules, the only defences where the defendant has to prove anything are:

insanity, and

diminished responsibility (s 2(2) Homicide Act 1957 expressly states the defendant has to prove this defence).

Whenever the burden of proof is reversed to the defendant, they have to prove the defence on a balance of probabilities. We will return to proof issues where they arise throughout this book.

Question 13

Do reverse proof burdens breach the presumption of innocence?

Answer 13

Article 6(2) ECHR provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. All Acts of Parliament must be interpreted (as far as possible) to comply with this article (s 3 Human Rights Act 1998). Other than for insanity, reverse proof burdens are statutory, so a question that needs to be addressed is how judges should interpret any UK legislation which imposes a proof burden on D in light of Article 6(2). That is to say, can a defendant receive a fair trial under a statute (which must comply with Article 6) if the burden of proof of some element of the defence is reversed to him?

According to the House of Lords in R v DPP, ex p Kebilene [1999], the answer is a provisional ‘yes’, provided it is reasonable and proportionate to reverse that element to D, see Salabiaku v France (1998). Lord Steyn said in R v Lambert [2002] that the courts must focus on the extent to which the reversal is connected to the moral dimension of the offence through the mens rea requirement, which is closely linked to another key issue—whether the offence is ‘truly criminal’ or merely regulatory in nature. He continued that the burden is on the state to show that the legislative means were not greater than necessary. The leading case on the burden of proof, and reverse proof burdens, is the conjoined appeals of Sheldrake v DPP; Attorney-General’s Reference (No 4 of 2002) [2005] which you will find in ‘Key cases’ on p 9.

Question 14

How is guilt proved?

Answer 14

There are extensive rules of evidence governing the admissibility of evidence which do not concern us here. One of the most common questions which taxes a student of the criminal law, though, is how the prosecution can prove what D was thinking. Certainly, if the crime has a mens rea requirement (see chapter 3), failure by the prosecution to prove the mens rea means D will be acquitted.

However, you must resist the temptation to be distracted by this. Suffice to say (and once said, you must move on), mens rea can be proved because the fact-finder (usually the jury for our purposes) infers it from what D did or did not do. If D pulls out a gun and shoots V in the head, the jury will not find it difficult to infer that D intended to kill V. D might try and say he was simply trying to produce a loud noise, but he would have a tough time persuading the jury. That said it would be wrong of the jury to simply assume that because a reasonable person would have foreseen an outcome the defendant foresaw that outcome. This is made clear in Section 8 Criminal Justice Act 1967 which provides:

> A court or jury, in determining whether a person has committed an offence—(a)shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions; but(b)shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

Question 15

What needs to be proven for the offence of murder and the defence of insanity?

Answer 15

Offence—murder (see chapter 7)

What has to be proved? The prosecution must prove that:

D killed the victim (V) under the Queen’s Peace (the actus reus), and

D intended to kill or cause serious harm (the mens rea).

Defence—insanity (see chapter 14)

What has to be proved? The defendant must prove on a balance of probabilities that:

he was suffering from a defect of reason

arising from a disease of mind so that

he did not know the nature and quality of his act, or

he did not know it was wrong.

Answer 16

You may have heard the phrase that the law is an ass. There are, at least, some curiosities and there are many inconsistencies in the criminal law. One of the statute laws still in force is over 150 years old; so too are some of the case authorities. Consequently, some are in desperate need of reform.

Answer 17

The Law Commission is very active in the field of the criminal law (see www.lawcom.gov.uk). In 1989, the Law Commission published a full Draft Criminal Code: Criminal Law: A Criminal Code for England and Wales (Law Com No 177, 1989). It was a huge report and contained recommendations for the codification of the whole of the criminal law of England and Wales. On reflection, it was more than Parliament could cope with in terms of the volume of legislative change required, so the Law Commission took on smaller, discrete tasks. This piecemeal approach attracted more political support, and the Law Commission has since enjoyed more success, seeing some of its recommendations for reform reach the statute books.

Answer 18

On the theme of change to the criminal law, judicial reform is unlikely to occur on a large scale. Judges cannot create new criminal offences, and can develop existing laws only within the rules of precedent (stare decisis) and then only where the facts of the case before them give rise to that legal issue (Shaw v DPP [1962]). You should therefore have an awareness of the judicial developments in the criminal law that occur during your studies, but for wholesale reform, watch carefully the proposals of the Law Commission and Parliament.

Answer 19

Another key reform in the criminal justice system is, of course, the Human Rights Act 1998 which provides that English law must comply, if possible, with the Articles in the European Convention on Human Rights 1950. Most students are able to cite Article 6, at least, which is the right to a fair trial. It may, however, surprise you to learn that the Act has had very little impact on the substantive criminal law. One of the reasons is because Article 6 is limited to procedural matters (the rules on the admissibility of evidence, etc) and not the substantive criminal law (the rules which govern liability). The Act is not totally without effect, however. Two Articles in particular have the potential to impact the substantive criminal law. Article 2 provides for the right to life, and this has an effect where a person uses self-defence to kill an aggressor (see ‘Self-defence and the right to life’ in chapter 15, p 182). Article 7 states that ‘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 or international law at the time when it was committed’. This means criminal law cannot operate retrospectively. In other words, if something is not a crime at the time you do the act, the Government cannot later declare that what you did was unlawful. Article 7 might yet have an impact on a few key crimes; notably strict liability offences (see ‘Can strict liability be justified?’ in chapter 4, p 45), manslaughter by gross negligence (‘Gross negligence manslaughter’ in chapter 8, p 97), and the element of dishonesty in theft (‘Dishonesty’ in chapter 11, p 136).

Answer 20

Lambert [2002] 2 AC 545

Facts: D appealed against his conviction for possession of a class A drug with intent to supply. He had been found in possession of a bag containing a drug but said he neither knew, nor suspected, nor had reason to suspect the nature of the contents of the bag. The question on appeal was whether he had to prove his lack of knowledge of the contents, or if the prosecution had to prove he did know. The section in issue was s 28 Misuse of Drugs Act 1971.

Principle: Section 28, insofar as it contained an express reverse proof burden, should be ‘read down’ as imposing an evidential burden only on the accused (note: this is in fact obiter as the majority of the House held that the Human Rights Act 1998 did not have retrospective application).

Answer 21

Sheldrake v DPP; Attorney-General’s Reference (No 4 of 2002) [2005] 1 AC 264

Facts: Sheldrake: D was convicted of drink-driving. He appealed on the ground that the defence, which cast upon the defendant the burden of proving that there was no likelihood of his driving the vehicle while over the limit, violated his right to a fair trial under Article 6.

Principle: The House of Lords held that the allocation of a proof burden to the accused did not violate Article 6. It was directed to a legitimate objective (the prevention of death, injury, and damage caused by unfit drivers); and the likelihood of the defendant driving was a matter so closely conditioned by his own knowledge as to make it much more appropriate for him to prove on a balance of probabilities that he would not have been likely to drive than for the prosecution to prove, beyond reasonable doubt, that he would. In addition, the imposition of a legal burden on D did not go beyond what was necessary and reasonable, and was not in any way arbitrary.

Fact: Attorney-General’s Reference: D was charged with two offences relating to terrorism (belonging to and professing to belong to a proscribed organization). The appeal concerned the elements of the offences and related defences, and who had to prove them.

Principle: The House held that if there was a reverse proof burden, there was a real risk that a person who was innocent of any blameworthy or properly criminal conduct, but who was unable to establish a defence to one of these charges, might nevertheless be convicted. The provisions in question therefore breached the presumption of innocence.

Answer 22

Woolmington [1935] AC 462

Fact: D was charged with murder. The trial judge directed the jury that, once the prosecution had proved a person had died at D’s hands, it was for D to prove it was not murder.

Principle: Viscount Sankey held that the burden of proof lies on the prosecution, and that includes proof of each element of the crime, and the elements of any defence, other than the defence of insanity and other ‘statutory provisions’.