An Introduction to Criminal Law (Two lectures)

Professor Paul Almond

Essential Reading:
Horder (Ashworth), Principles of Criminal Law, chs 1, 3, 4

See also:
Ashworth (2000) "Is the Criminal Law a Lost Cause?", Law Quarterly Review 116: 223
Ashworth (1991) 'Interpreting Criminal Statutes: A Crisis of Legality?', Law Quarterly
Review 107: 419
Buxton (2000) 'The H.R.A. and the Substantive Criminal Law’, Criminal Law Review
331; and response by Ashworth (2000) Criminal Law Review 564
Chalmers & Leverick (2008) ‘Fair Labelling in Criminal Law’, Modern Law Review 71/2:
217.
Soubise (2017) ‘Prosecuting in the magistrates' courts in a time of austerity’, Criminal
Law Review 847.
The Secret Barrister (2017) The Secret Barrister: Stories of the Law and How it’s
Broken (Macmillan)

In these introductory lectures, we will discuss the following issues:

 The difference between criminal and civil liability

 The court system and separation of powers in relation to the criminal law
 The purposes and conditions of criminal liability

1. Distinguishing criminal law from civil law1

Civil law
- Primarily concerned with providing redress for legal wrongs on an
interpersonal level
- A civil action is brought by a the party who sustains the loss (the “claimant”)
- The remedy is usually damages for any loss suffered.

Criminal law
- Concerned with duties owed by individuals to society as a whole
- Prosecuted by, or in the name of the State
- If found guilty, a defendant will receive a criminal sanction (penalty).

The distinction between a civil and criminal charge is important under the European
Convention on Human Rights (ECHR). The courts look at consequences; if the
charge results in a penalty it will almost certainly be deemed a crime.
 Benham v. United Kingdom (1996) 22 EHRR 293.

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NB the same action might attract both civil and criminal liability e.g. assault and trespass to the
person.

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 2. The Criminal Court system

You need to be familiar with the prosecution system, the court system and the
appeal system for criminal cases. These issues are all detailed in Horder Ch.1.

A: Criminal offences are triable in one of two main ways:

 Summarily – the Magistrate’s Court [MC] (no jury). Almost all cases start here,
and most (over 90%) are heard here (low-level offences like motoring
offences).
 On indictment – the Crown Court [CC] (with a jury). The most serious cases
must be heard here (example – murder).
o Some offences are triable either way – depending on their severity and
seriousness (example – theft)

B: Appealing against a verdict:

 From the MC – to the CC.
 From the CC – to the Court of Appeal (Criminal Division) [CA]
o Permission (leave) must be granted to bring an appeal, on the basis
that there are grounds for thinking that the conviction is unsafe
(Criminal Appeal Act 1968 s.2)
 From the CA – to the Supreme Court (formerly House of Lords) [SC]
o Permission (leave) must be granted by the CA or SC to appeal; must
be certified as involving a point of law of general public importance
which ought to be considered (Criminal Appeal Act 1968 s.33)

C: Precedent
 CC and MC are bound to follow the decisions of the CA and SC
 CA bound to follow the decisions of the SC
 SC normally bound to follow its own earlier decisions – Practice Note [1966] 3
All ER 77.

D: Separation of Powers – limiting judicial power to develop common law

principles and interpret statute law.
 Knuller v D.P.P. [1973] AC 435
 R [1992] 1 AC 599
 Rimmington; Goldstein [2005] 3 WLR 982
 C v. D.P.P. [1995] 2 All ER 43: five criteria for judicial law-making:
1. if the solution is doubtful, the judges should beware of imposing their
own remedy;
2. caution should prevail if Parliament had rejected opportunities of
clearing up a known difficulty, or had legislated leaving the difficulty
untouched;
3. disputed matters of social policy are less suitable areas for judicial
intervention than purely legal problems;
4. fundamental legal doctrines should not be lightly set aside;
5. Judges should not make a change unless they can achieve finality and
certainty.

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  Caldwell [1982] AC 341/G and another [2003] 1 AC 1034
 Ireland, Burstow [1998] AC 147
 B (a minor) v. DPP [2000] 2 WLR 452 [2000] 2 AC 428

3. The purpose(s) and conditions of criminal liability

What concepts help us to define what should be criminalized?

Objective thought

“The principle of utility…approves or disapproves of every action whatsoever,

according to the tendency which it appears to have to augment or diminish
happiness”. Bentham, (1789) Principles of Morals and Legislation, 11

 Laws should seek to maximise pleasure and minimise pain; the only basis for
criminalising conduct is to “achieve the greatest good for the greatest
number”. Criminalisation does this by deterring the dangerous, preventing
harm to victims, and cutting costs of offending.
 Linked to objective model of liability, which imposes fault on D if he inflicts
harm when a reasonable person would not have acted that way. It is
outcomes and the standards of society which matter.
 Gives rise to the Harm Principle: Law can only be justified if it prevents or
addresses a harm done to others.
 Feinberg (1984) Harm to Others (Oxford UP) identifies harm as ‘set-back
interests that are the consequence of wrongful acts of others’.
 Furthermore, we should operate a ‘minimal harm’ principle – don’t criminalise
anything unless it causes more than minimal harm and the law will be
effective and useful in tackling the harm.

Subjective thought

"Always act according to that maxim whose universality as a law you can at
the same time will" / “Act with reference to every rational being (whether
yourself or another) so that it is an end in itself”. Kant (1785), Foundations of
the Metaphysics of Morals, 437

 Laws should respect the dignity of rational beings and treat them as ends not
means to an end. Criminalisation does this by protecting fundamental rights.
 Linked to subjective model of liability, which imposes fault on D if he D
chooses to fundamentally infringe the autonomy or rights of another. It is
choices and the values of the offender which matter.
 Gives rise to the Principle of Autonomy: Criminal liability entails
responsibility for one’s actions or conduct: “individuals should be respected
and treated as agents capable of choosing their acts and omissions, and that
without recognizing individuals as capable of independent agency they could
hardly be regarded as moral persons” (Ashworth p26).

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  Which categories of person should not be held responsible for their actions?
What is the meaning of the term ‘autonomy’ and how important is it to criminal
law?

Some core principles and concepts

A: Morality
Could an individual/society be seriously wronged by immoral conduct?
“The chief concern of the criminal law is to prohibit behaviour that represents
a serious wrong against an individual or against some fundamental social
value or institution” (Ashworth (2013) p1).

Wolfenden Report on Homosexual Offences and Prostitution (1957) Cmnd 247:

"The function of the law is to preserve public order and decency, to protect the
citizen from that which is offensive or injurious and to provide sufficient
safeguards against exploitation and the corruption of others, particularly those
who are especially vulnerable" (para. 13).

Lord Devlin, The Enforcement of Morals (1965):

"There are acts so gross and outrageous that they must be prevented at any
cost...the suppression of vice is as much the law's business as the suppression
of subversive activities."

Should ‘offensive’ behaviour be criminalized or does this involve sacrificing other

values?
Brown [1993] 2 All ER 75, [1994] 1 AC 212
Wilson [1996] 3 WLR 125

B: The Correspondence principle

The different elements of a crime must correspond with one another.
 D must be responsible for what they do and what they choose/aim to do; should
not be held liable for a more serious criminal outcome than the one envisaged.
 ‘Moral luck’ – random circumstances shouldn’t make you more or less liable
than you would have been.
 Thin Ice principle: Knuller v DPP [1973] AC 435 per Lord Morris: ‘Those who
skate on thin ice can hardly expect to find a sign which will denote the precise
spot where he will fall in’.

C: The principle of legality

Officials should act in accordance with law, and that no one should be punished for an
act that does not have a clear legal basis.
 Christian and others v. The Queen [2006] UKPC 47
 Power [2007] Crim LR 609
 R v Misra and Srivastava [2005] 1 Cr App Rep 328

D: Fair Labelling
The label applied to an offender (what he is charged with) should relate directly to what
he has done. Why?

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  The symbolic power of the criminal law requires that it speak clearly about what
D has done and why it is wrong.
 Chalmers and Leverick (2008): it describes the wrongdoer as well as
differentiating their acts from those of others.

4. Criminal Law and the European Convention on Human

Rights and Fundamental Freedoms (1953) (ECHR)
 S.3 of the Human Rights Act 1998: "so far as it is possible, primary legislation
and subordinate legislation must be read and given effect in a way which is
compatible with Convention rights".
 S.4: allows Courts to declare that an Act is incompatible with the ECHR right.
 Section 19: requires a Minister in charge of a Bill before Parliament to make a
statement that the Bill is (or is not) compatible with the ECHR.

The ECHR rights include:

Article 6 (ECHR)
Right to a fair trial. Everyone charged with a criminal offence shall be presumed
innocent until proven guilty according to law.

Article 7 (ECHR)
1. No one shall be held guilty of a 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.
2. This article shall not prejudice the trial and punishment of a person for any act or
omission which, at the time when it was committed was criminal according to the
general principles of law recognised by civilised nations.

CR and SW v U.K. - 18 EHRR CD 119

R v C (Barry) [2004] EWCA Crim. 292

Article 8 (ECHR)
1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic well-
being of the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others.

Brown v U.K. (1997) 24 EHRR 39

Southerland v. U.K. (1997) 24 EHRR CD 22