Criminal law
- For the 1988 film see Criminal Law (film)
Criminal law (also known as penal law) is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses. It is law prohibiting conduct that disrupts social order or challenge's the authority of the state, and consequently deals with matters of significant public concern. In contrast with civil law, actions are pursued by the state rather than private citizens. Criminal law has been seen as a system of regulating the behavior of individuals and groups in relation to societal norms whereas civil law is aimed primarily at the relationship between private individuals and their rights and obligations under the law.
Criminal law is divided into two fields:
- Criminal procedure regulates the process for addressing violations of criminal law
- Substantive criminal law details the definition of, and punishments for, various crimes.
Origins of criminal law
The earliest example of criminal law is Hammurabi's Code. Many European jurisdictions are still influenced by Roman codes such as the Twelve Tables.
Aims of criminal law
There are five main goals of criminal justice: retribution, deterrence, incapacitation, rehabilitation and restitution. Jurisdictions differ on the value to be placed on each, if any at all.
Retribution
Retribution is the theory that criminals ought to somehow suffer for the crimes that they have committed. Reasoning behind this is often very varied.
One theory, and that which is most widely seen as the goal of criminal law, is that of punishment.
Of greater persuasiveness is the idea of "righting the balance". Although superficially similar, it instead suggests that criminals have taken improper advantage, or inflicted unfair detriment, upon others. Consequently, the criminal law will put criminals at some disadvantage to "balance the scales". This theory has some connection with utilitarianism.
Another theory of retribution is that society sets rules in the form of criminal law (restricting people's autonomy) in order to increase their freedom in other ways. People submit to the law not to commit murder, but in return receive the right not to be murdered. If people contravene these laws, they surrender the rights granted to them by the law. This is heavily influenced by the ideas of liberalism.
Deterrence
There are two strands of deterrence. Individual deterrence and general deterrence.
Individual deterrence is aimed towards the specific defender. It is only of significance at sentencing. Its aim is to impose a sufficient penalty to discourage the offender from repeating their criminal behaviour.
General deterrence instead aims at society in general. By imposing a large penalty on those who commit specific offences, the public at large will be discouraged from committing those offences. While of useful rhetoric value, studies do not generally suggest increasing penalties for a specific offence reduces the commission of that offence.
Incapacitation
Incapacitation aims simply to keep criminals away from society, so that society is protected from their criminal conduct. This is normally achieved through long prison sentences.
Rehabilitation
Rehabilitation aims at transforming an offender into a valuable member of society. Its primary goal is to discourage further offending by convincing the offender that their conduct was wrong.
Restitution
A more recent aim of the criminal law, restitution is victim-oriented. Its goal is to repair any hurt inflicted by the offender on the victim through state authority. It is commonly combined with other aims.
Criminal conduct
Criminal statutes spell out the exact behaviors, mental states, results and circumstances which constitute liability for a particular crime. These required parts of a crime are known as the elements of the offense. Unless all the elements are proven beyond a reasonable doubt by the prosecuting authority, the defendant is not guilty of the offense. There are four kinds of elements: the act itself, the actus reus, (guilty act); the requisite culpable mental state, the mens rea, (guilty mind); the result, and the attendant circumstances. Not all crimes contain all four elements.
To be guilty of crime, the offender's culpable mental state must have existed at the time of the required act, and it must have been committed in the proscribed circumstances. If a result is required it must have been caused by the act.
If all the elements are found, the accused may still be able to escape liability by way of a defense. Examples of these are self-defence, automatism, or necessity.
Actus reus
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 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, in the case R v. Gibbons and Proctor[1] the man, and his spouse, kept their daughter locked separately from their other children, who were from another marriage. When she was seven, they gave her so little food that she starved. Not giving food is an omission, rather than an act, but as a parent one has a duty to feed one's children. This fulfilled the actus reus requirement and they were convicted of murder. Pre existing duties can arise through contract,[2] a voluntary undertaking,[3] a blood relation who you live with[4] and occasionally through one's official position.[5] Furthermore, one can come bound by duty to take reasonable steps to correct a dangerous situation that one creates. In R v. Miller[6] a squatter flicked away a still lit cigarette, which landed on a mattress. He was tired and saw it smouldering, but could not be bothered to do anything except move to another room. When the building burnt down he was convicted of arson because he failed to correct the dangerous situation he created, as he was duty bound to do.[7] In some countries, and many parts of the United States there are also good samaritan laws which criminalise failure to help somebody in distress, e.g. a drowning child. On the other hand, it was held in the U.K. that switching off someone's life support, who was in a persistent vegetative state is not criminal, is an omission to act. Since discontinuation was neither a voluntary act, nor was it grossly negligent, and that it was in fact in his best interests, no crime took place.[8]
If someone's act is to have any consequence legally, it must have in some way caused a victim some harm. The legal definition of "causation" is that "but for" the defendant's conduct the victim would not have been harmed.[9] If there is more than one cause for harm (i.e. the harm results from more than one culprit) the rule is that to be responsible, one's actions must have "more than a slight or trifling link" with the harm.[10] Another important rule of causation is that one must "take his victim as he finds him." For instance, if P gives his mate Q a playful slap on the head, but Q suffers from a rare cranial condition and dies, then P will be guilty of murder, regardless of how unlucky he is to have chosen Q. This is known as the thin skull rule.[11] 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,[12] or another unpredictable event. Something going wrong in medical treatment usually will not break the chain, unless the bungles are in themselves "so potent in causing death."[13] For instance, dropping a stab victim on the way to hospital and performing the wrong resuscitation, did not absolve the attacker.[14] The interplay between causation and criminal responsibility is notoriously difficult, and many outcomes are criticised for their harshness to the unwitting defendant and sidestepping of hospital's or the victim's own liability. In R v. Dear[15] a stab victim opened his wounds again, while in hospital and died, but despite this suicidal behaviour, the attacker was still held fully responsible for murder.
Mens rea
Mens rea is another latin phrase, meaning guilty mind. It is the mental element of committing a crime and together with an actus reus forms the bedrock of criminal law, although strict liability offences have encroached on this notion (see below). A guilty mind means intending to do that which harms someone. Crucially, intention under criminal law is separate from a person's motive, so that if Mr Hood robs from rich Mr Nottingham because his motive is to give the money to poor Mrs Marion, his "good intentions" do not change his criminal intention to commit robbery.[16] In the special case of murder, the defendant must have foreseen (i.e. consciously recognised) that either death or serious bodily harm would be the result of his actions. In R v. Woolin[17] a man in a fit of temper threw his three month old son onto a wall, giving him head injuries and later dying. Even though it was virtually certain and he should have realised, the father did not in the least desire that his son be killed or harmed. The House of Lords sentenced him for manslaughter, but not murder.[18] If a defendant has foresight of death or serious injury the jury may find the requisite mens rea but they are not bound to.[19]
A lower threshold of mens rea is satisfied when a defendant recognises that some act is dangerous but decides to go ahead anyway. This is recklessness. For instance if C tore a gas meter from a wall to get the money inside, and knew this would let flammable gas escape into a neighbour's house, he could be liable for poisoning.[20] This is called "subjective recklessness", though in some jurisdictions "objective recklessness" qualifies as the requisite criminal intent, so that if someone ought to have recognised a risk and nevertheless proceded they may be held criminally liable.[21] 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 in a pub fight, but the belt bounces off and hits a nearby woman, the man is guilty of assault towards her.[22] Malice can also be general, so that terrorists who plant bombs to kill random people are certainly guilty.
The final requirement is that both an actus reus and a mens rea coincide. So for instance, in R v. Church[23] Mr Church had a fight with a woman and knocked her out cold. He got very scared and tried to revive her, but gave up, thinking she was dead. He threw her, still alive in a nearby river and then she drowned. It was held that Mr Church was not guilty of murder (because he did not desire to kill her ever) but for manslaughter, since over a chain of events his act of throwing her into the water and his desire to hit her, coincided. In this way it does not matter when a guilty mind and act coincidence, just so long as at some point they do so.[24]
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.
Participation
Inchoate offences
Murder
Manslaughter
Defences
There are a whole range of defences, depending on the wording of a criminal statute or obscure rules of the common law. There are however seven general defences, which mitigate or extinguish the defendant's sentence. Insanity, automatism, mistake and self defence are the first four and operate as a defences to any offence. Duress operates as defences to anything except murder and necessity is always available but very rarely granted. Lastly, intoxication is only a defence where the defendant's state confused and dissolved his criminal intention.
Insanity
Insanity, known as mental disorder in Australia and Canada, is a deranged state of mind, and consequently no defence to strict liability crimes, where mens rea is a requirement. An old case which lays down typical rules on insanity is M'Naghten's case[25] where a man suffering extreme paranoia believed the Tory party of the United Kingdom, were perscuting 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 persumed is presumed to be sane and responsible, unless it is shown that (1) he was labouring 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 caused by diabetes and depression making a lady walk from a supermarket without paying for a jar of mincemeat.[26] 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.[27] So epilepsy can count, as can an artery problem causing temporary loss of consciousness (and a man to attack his wife with a hammer).[28] Diabetes may cause temporary "insanity"[29] and even sleep walking has been deemed "insane".[30] "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[31] a man helped his wife commit suicide by giving her a hundred aspirin. He was in fact mentally ill, but as he recognised 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 (he was not hanged!).
If one succeeds in being declared "not guilty by reason of insanity" then the result is going to mental hospital, a clearly insane result for somebody suffering from occasional epileptic fits, and many conditions unrecognised by nineteenth century medicine. The law has therefore been reformed in many ways.[32] One important reform, introduced in many jurisdictions by statute[33] is diminished responsibility. The requirements are usually more lax, for instance, in England and Wales being "an abnormality of mind" which "substantially impair[s] his mental responsibility for his acts and omission in doing or being a party to the killing."[34]
Automatism
Automatism is an act done by the muscles without any control by the mind, or an act by someone who is not conscious of what he is doing.[35] If someone raises this defence, then it is for the prosecution to disprove. Automatismic actions can be a product of insanity, or not, for instance because one is suddenly ill, in a dream like state as a result of post traumatic stress,[36] or even "attacked by a swarm of bees".[37] 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.[38]
Automatism can also be self induced, particularly by taking medical treatment.[39] Self induced automatism can always be a defence to crimes of specific intent (i.e. the more serious crimes like murder and grievous bodily harm) but not to other crimes (i.e. of basic intent) if (1) the defendant was reckless in becoming automatismic or (2) it is 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[40] Mr Hardie took his girlfriend's valium, because she had just kicked him out and he was depressed. She encouraged him, 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 thought the valium would calm him down, and this was its normal effect.
Mistake
Self-defense (theory)
Duress
Necessity
Intoxication
Criminal law by jurisdiction
United States
The criminal justice process begins with an alleged crime. A complainant makes an accusation, which is investigated by the police, acting as agents of the government. A formal charging document called a complaint or an indictment brought by a grand jury is filed with a court in the appropriate jurisdiction. If the offense is classified as a felony, the Fifth Amendment of the Constitution of the United States requires that a federal case be referred to a grand jury for an indictment. The Supreme Court has held that the right to a grand jury does not apply to the states. Therefore, each state has its own set of grand jury procedures. Some follow rules that mirror the federal system, but others make use of the indictment optional, and allow the prosecutor to file a complaint or information to formally charge the defendant with the crime. Three states (Connecticut, Pennsylvania, and Washington) and the District of Columbia do not use grand jury indictments.
The interests of the state are represented by a prosecuting attorney, while the interests of the defendant are represented by his defense attorney or by the defendant as pro se, acting as his own attorney. The Sixth Amendment of the Constitution of the United States guarantees a criminal defendant the right to a speedy and public trial, in both state and federal courts, by an impartial jury of the State and district wherein the crime was committed, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of Counsel for his defense. This last right of Counsel for all United States citizens was upheld by the 1963 Supreme Court case Gideon v. Cochran.
While the specific process varies according to the local law, the process culminates with a jury trial (as required by the Sixth Amendment), followed by mandatory or discretionary appeals to higher courts.
In most U.S. law schools, the basic course in criminal law is based upon the English common criminal law of 1750 (with some minor American modifications like the clarification of mens rea in the Model Penal Code). In civil cases, the Seventh Amendment guarantees a defendant a right to a jury trial in federal court, but that right does not apply to the states (in contrast with criminal cases).
United Kingdom
Criminal law in the United Kingdom derives from a number of diverse sources. The definitions of the different acts that constitute criminal offences can be found in the common law (murder, manslaughter, conspiracy to defraud) as well as in thousands of independent and disparate statutes and more recently from supranational legal regimes such as the EU. As the law lacks the criminal codes that have been instituted in the United States and civil law jurisdictions, there is no unifying thread to how crimes are defined, although there have been calls from the Law Commission for the situation to be remedied. Criminal trials are administered hierarchically, from magistrates' courts, through to county and crown courts and finally up to the Court of Appeal and the House of Lords on matters of law.
Procedurally, offences are classified as indictable and summary offences; summary offences may be tried before a magistrate without a jury, while indictable offences are tried in a crown court before a jury. The distinction between the two is broadly between that of minor and serious offences. At common law crimes are classified as either treason, felony or misdemeanor.
The way in which the criminal law is defined and understood in the United Kingdom is less exact than in the United States as there have been few official articulations on the subject. The body of criminal law is considerably more disorganised, thus finding any common thread to the law is very difficult.
Controversy in the criminal law
As the goals of criminal law are broad (condemnation of socially unacceptable or immoral conduct, enforcement of social order, protection of the state), it is not always clear what should and should not be criminal. While some crimes (malum in se) are outlawed nearly universally, such as murder and rape, other crimes (malum prohibitum) reflect society's social attitudes and morality, such as laws prohibiting use of marijuana.
Because much of the criminal law is aimed towards the preservation of liberty, it is argued that victimless crimes, such as drug offences or driving without a seatbelt, are an unneccessary intervention into the lives of private citizens. Others argue that drug offences do affect society, as society depends upon the rationality of its populace, or that failing to follow the prescribed standard costs society financially.
Notes
- ^ R v. Gibbons and Proctor (1918) 13 Cr App R 134
- ^ 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
- ^ e.g. the partner in Gibbons who was not a blood parent, but had assumed a duty of care
- ^ R v. Stone and Dobinson [1977] QB 354, where an ill tended sister named Fanny couldn't leave bed, developed gangrene and was not cared for at all. This is gross negligence manslaughter.
- ^ R v. Dytham [1979] QB 722, where a police man on duty just stood and watched three men kick another to death
- ^ R v. Miller [1983] 1 All ER 978
- ^ 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
- ^ Airedale NHS Trust v. Bland [1993] 1 All ER 821
- ^ 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.
- ^ 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.
- ^ 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.
- ^ 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. c.f. 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.
- ^ 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.
- ^ R v. Smith [1959] 2 QB 35, the stab was still an "operating" and "substantial" cause of death.
- ^ R v. Dear [1996] Crim LR 595
- ^ 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."
- ^ R v. Woolin [1998 4 All ER 103]
- ^ 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 of a woman he didn't like and lit it. A child died in the fire. He was convicted of manslaughter.
- ^ R v. Matthews and Alleyne [2003] EWCA Crim 192
- ^ c.f. R v. Cunningham [1957] 2 All ER 863, where the defendant did not realise, and was not liable; also R v. G and Another [2003 UKHL 50]
- ^ previously in the U.K. under Metropolitan Police Commissioner v. Caldwell [1981] 1 All ER 961
- ^ R v. Latimer (1886) 17 QBD 359; though for an entirely different offence, e.g. breaking a window, one cannot transfer malice, see R v. Pembliton (1874) LR 2 CCR 119
- ^ R v. Church [1966] 1 QB 59
- ^ 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
- ^ M'Naghten's case (1843) 10 C & F 200
- ^ R v. Clarke [1972] 1 All ER 219, where a lady pleading guilty because she did not want to defend herself as insane. Her conviction was later quashed.
- ^ R v. Sullivan [1984] AC 156
- ^ R v. Kemp [1957] 1 QB 399
- ^ R v. Hennessy [1989] 2 All ER 9; though see R v. Quick [1973] and the automatism defence.
- ^ R v. Burgess [1991] 2 All ER 769
- ^ R v. Windle [1952 2 QB 826
- ^ e.g. in the U.K. Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, giving the judge discretion to impose hospitalisation, guardianship, supervision and treatment or discharge.
- ^ though Scottish judges recognised the defence in the 1920s
- ^ s.2(1) Homicide Act 1957
- ^ Bratty v. Attorney-General for Northern Ireland [1963] AC 386
- ^ R v. T [1990] Crim LR 256
- ^ see Kay v. Butterworth (1945) 61 TLR 452
- ^ Attorney-General's Reference (No. 2 of 1992) [1993] 4 All ER 683
- ^ 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.
- ^ R v. Hardie [1984] 1 WLR 64
References
- Farmer, Lindsay (2000). "Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833-45". Law and History Review. 18(2).
- Fletcher, George P. (1998). Basic Concepts of Criminal Law. Oxford University Press.
- Fletcher, George P. (2000). Rethinking Criminal Law. Oxford University Press.
- Gorr, Michael, Sterling Harwood, eds. (1992). Controversies in Criminal Law. Westview Press.
{{cite book}}:|author=has generic name (help)CS1 maint: multiple names: authors list (link) - Gross, Hyman (2005, reissue). A Theory of Criminal Justice. Oxford University Press.
{{cite book}}: Check date values in:|year=(help)CS1 maint: year (link) - 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.
- Harwood, Sterling (2000, formerly 1996). "Is Mercy Inherently Unjust?". Crime and Punishment: Philosophic Explorations. Wadsworth Publishing Co., formerly Jones & Bartlett Publishers.
{{cite book}}: Check date values in:|year=(help)CS1 maint: year (link) - Murphy, Jeffrie; et al. (1990). Forgiveness and Mercy. Cambridge University Press.
{{cite book}}: Explicit use of et al. in:|author=(help) - Smith, K. J. M. (1998). Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence, 1800-1957. Clarendon Press.
- van den Haag, Ernest (1978). Punishing Criminals: Concerning a Very Old and Painful Question. Basic Books.
- Ormerod, David (2005). Smith and Hogan: Criminal Law. Oxford University Press.