Topic 1 - Introduction to Criminal Law Principles Flashcards
What is the study of criminal law?
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.
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:
- 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
- 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
- Whether or not there is a defence (see chapters 14 and 15).
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).
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.
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.
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.
What does burden of proof mean?
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.
Which party bears the burden of proof in criminal cases?
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).
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’.
What does the burden of proof mean in practice?
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.
What is a reverse proof burden?
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.
Do reverse proof burdens breach the presumption of innocence?
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.
How is guilt proved?
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.
What needs to be proven for the offence of murder and the defence of insanity?
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.