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مشاهدة النسخة كاملة : Criminal law

د/سالي جمعة
17-06-2010, 04:09 PM
Criminal law

From Wikipedia, the free encyclopedia

Criminal law, sometimes called penal law, refers to the body of law which deals with crimes and their consequences. Criminal acts are considered offences against the whole of a community. Responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders is carried out by the state. The police, the criminal courts and prisons are all publicly ***ded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes passed by legislatures as well as common law, and why they criminalise some forms of behaviour. What purpose overall criminal law serves is hotly contested. Some believe criminal law is about punishing offenders because they deserve it and the victim deserves renumeration. Others feel perhaps with enough punishment people will also be deterred from committing crimes in the first place. Perhaps criminal law is simply about removing people from society, to protect law abiding citizens by incapacitating the offender. Perhaps then, prisons can reform and rehabilitate people to go back into society. And perhaps in some way, offenders can be made to recognise their wrongs in relation to victims and make restitution for the harm. There are many more aims, which are often combined, which produces the mix of systems operating today.

The ***damentals of criminal law are known as the actus reus and the mens rea of the crime. These two Latin terms mean "guilty act" (doing that which is prohibited) and "guilty mind" (i.e. meaning to do it). The traditional view is that moral culpability requires one should have recognised or intended that one was acting wrongly. The loss of one's liberty and the power or the sanctions of the state against the individual are serious issues. Nevertheless, most jurisdictions have as many strict liability offences, which criminalize behaviour without the need to show moral wrongdoing. These are usually regulatory in nature, where the result of breach could have particularly harmful results, for instance drunk driving. Offences can range from ones resulting in fatality, such as murder and manslaughter, to non-deadly offences against people, such as actual or grievous bodily harm, to offences concerning people's property, like criminal damage, theft, robbery or burglary. Importantly, one can still be liable for helping another person's criminal act, conspiring to do something prohibited or merely attempting. Criminal law is concerned with seeking out wrongdoers and preventing wrongdoing, so the law casts a critical eye on all those involved in mischief. Defenses exist to some crimes, so that a person who is accused can 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. Laws vary in detail between jurisdictions, particularly in relation to the sentences handed down, though the issues are the same and the need for just laws just as great in every place

Criminal law history

A depiction of a 1600s criminal trial, for witchcraft in Salem
A depiction of a 1600s criminal trial, for witchcraft in Salem

The first civilizations had little of the distinction we do today between civil and criminal law and used to rules mixed together. The first known written codes were produced by the Sumerians. King Ur-Nammu in the 21st century BC who acted as the first legislator, creating a formal system in thirty-two articles. "The Sumerian," wrote Professor Kramer "was deeply conscious of his personal rights and resented any encroachment on them, whether by his King, his superior, or his equal. No wonder that the Sumerians were the first to compile laws and law codes."[1] One of the most important of ancient times was the Code Hammurabi, which formed the core of Babylonian law.

The distinction between wrongs to the whole community and wrongs against individuals had still not been established by Roman times, and punishment for infringement of one's legal rights could be carried out by the victim himself. The pater familias was in possession of all the family and its property (including slaves). Hence, interference with any property was enforced by the pater. The Commentaries of Gaius on the Twelve Tables treated furtum (modern theft) as if it was a tort. Similarly, assault and violent robbery were allied with trespass as to the pater's property (so, for example, the rape of a slave would be the subject of compensation to the pater as having trespassed on his "property") and breach of such laws created a vinculum juris (an obligation of law) that could only be discharged by the payment of monetary compensation (modern damages). The first signs of the modern distinction between crimes and civil matters emerged around the Norman Invasion of England.[2] All the earliest criminal trials were wholly extraordinary and arbitrary without any settled law to apply, whereas the civil delictual law was highly developed and consistent in its operation (except where the King wanted to raise money by selling a new form of Writ). The development of the idea that it is the "State" dispensing justice in a court only emerged in parallel with or after the emergence of the concept of sovereignty. Furthermore it was only in the eighteenth century that European countries began maintaining police services. It was only from this point that criminal law had the mechanisms for enforcement which allowed criminal law to develop as a credible and self sufficient entity.

Criminal law aims

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 law elements

Actus reus

An English court room in 1886, with Lord Chief Justice Coleridge presiding
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, in the case R v. Gibbons and Proctor[3] 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 also through contract, a voluntary undertaking,[5] a blood relation who you live with[6] and occasionally through one's official position.[7] As 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.”[8]

Furthermore, one can become bound by a duty to take reasonable steps to correct a dangerous situation that one creates. In R v. Miller[9] 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. After 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.[10] In many countries in Europe, and North America especially 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 the life support of someone in a persistent vegetative state is an omission to act and not criminal. Since discontinuation of power not a voluntary act, not grossly negligent, and is in the patient's best interests, no crime takes place.[11]

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.[12] If there is more than one cause for harm (e.g. harm comes at the hands of 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.[13] 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 can be guilty of murder regardless of how unlucky he is to have bickered with Q. This is known as the thin skull rule.[1*] 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,[15] 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."[16] For instance, medics dropping a stab victim on the way to hospital and performing the wrong resuscitation, would not absolve the attacker.[17] 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 hospitals' or the victim's own liability. In R v. Dear[18] a stab victim reopened his wounds 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. A guilty mind means intending to do that which harms someone. Crucially, intention under criminal law is separate from a person's motive. 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.[19] In the special case of murder, the defendant must have appreciated (i.e. consciously recognised) that either death or serious bodily harm would be the result of his actions. In R v. Woolin[20] a man in a fit of temper threw his three month old son onto a wall, causing head injuries from which the little boy died. 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 English House of Lords sentenced him for manslaughter, but not murder.[21] If a defendant has foresight of death or serious injury the jury may find the requisite mens rea but they are not bound to.[22]

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 tears a gas meter from a wall to get the money inside, and knows this will let flammable gas escape into a neighbour's house, he could be liable for poisoning.[23] 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.[2*] 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.[25] 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[26] 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 ever desire to kill her), but was guilty of manslaughter. 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 coincide, just so long as at some point they do so.[27]

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. Most strict liability offences are created by statute, and often they are the result of ambiguous drafting. In the U.K. of 3500 offences, over half are strict liability offences today.

Criminal law offences

Fatal offences

Murder, Involuntary manslaughter, and Voluntary manslaughter

Personal offences

Assault, Battery (crime), Rape, and ***ual abuse

[Property offences

Criminal damage, Theft, Robbery, and Burglary

Contingent offences
Accomplice, Aid and abet, and Inchoate offences

د/سالي جمعة
17-06-2010, 04:13 PM
Criminal law 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. Intoxication is only a defence where the defendant's state confused and dissolved his criminal intention. Duress operates as defences to anything except murder and necessity is always available but very rarely granted.


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

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 not is a requirement. An old case which lays down typical rules on insanity is M'Naghten's case[28] 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 person 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 making a lady walk from a supermarket without paying for a jar of mincemeat.[29] 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.[30] So epilepsy can count, as can an artery problem causing temporary loss of consciousness (and a man to attack his wife with a hammer).[31] Diabetes may cause temporary "insanity"[32] and even sleep walking has been deemed "insane".[33] "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[3*] 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.[35]

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.[36] One important reform, introduced in many jurisdictions by statute[37] is the diminished responsibility defence. The requirements are usually more lax, for instance, in England and Wales 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."[38]


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,[*0] or even be "attacked by a swarm of bees" and go into an automatic spell.[*1] 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.[*2]

Automatism can also be self induced, particularly by taking medical treatment.[*3] Self induced automatism can always be a defence to crimes of specific intent (i.e. the more serious crimes like murder, grievous bodily harm, 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[**] 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.


The Drunkenness of Noah by Michelangelo
The Drunkenness of Noah by Michelangelo

Technically, intoxication is not a defence, but negatives the mens rea for specific intent offences (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.[*5] Voluntary intoxication is considered reckless, a state of basic intent,[*6] 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.[*7] 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.[*8]

Sometimes intoxicated people make mistakes, as in R v. Lipman[*9] 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]


"I made a mistake" is only a defence in criminal law if the mistake is about a fact and is genuine, whether or not it is reasonable to make.[51] In R v. Williams[52] an upstanding citizen saw a man, apparently, assault a boy. When he intervened the man said he was a police officer arresting the boy for mugging. Mr Williams demanded identification. The man could not show any, so Mr Williams got involved. Defending himself against a charge of assaulting a police officer, Mr Williams said he made an honest mistake. The court agreed and he was set free.

Self defence

In all instances, one may only use reasonable, and not excessive force in self defence. In R v. Clegg[53] 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[5*] 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.


Sir Galahad, a mediaeval hero displaying qualities that Lord Halisham thought everyone could display under duress
Sir Galahad, a mediaeval hero displaying qualities that Lord Halisham thought everyone could display under duress

If you are "under duress" it means you are being forced into something. Duress can be a defence for all crimes, except murder, attempted murder, being an accessory to murder[55] and in many countries, treason. In relation to such serious crimes, Lord Halisham explained the judiciary's thinking.

"I do not at all accept in relation to the defence of murder it is either good morals, good policy or good law to suggest... that the ordinary man of reasonable fortitude is not to be supposed to be capable of heroism if he is asked to take an innocent life rather than sacrifice his own."

This strict rule has been upheld in relation to a sixteen year old boy told by his father to stab his mother.[56] The duress must involve the threat of imminent peril of death or serious injury, operating on the defendant's mind and overbearing his will.[57] If there are mixed set of threats, for example, by the mafia, such as threatening to disclose your ***uality, put financial pressure on you, as well as killing you if you do not smuggle drugs, then the death threat need not be the sole reason for committing the offence.[58] The threats can also be towards one's family,[59] close friends, or under certain circumstances, car passengers.[60] Some jurisdictions also count threats to innocent strangers as duress. If it is shown that the defendant reasonably believed the threat,[61] it must also be shown that "a sober person of reasonable firmness, sharing the characteristics of the accused" would have responded similarly.[62] Examples of someone's characteristics that might be relevant are age, pregnancy, physical disability, mental illness, ***uality, but not IQ.[63]

Using duress as a defence is limited in a number of ways. The accused must not have foregone some safe avenue of escape.[6*] 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.[65] 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[66] but joining a shoplifting gang may well not.[67]


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.[68] 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.[69] 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.

Necessity lay buried in criminal law for a long time, although was regularly used in contract cases. But more recently, duress of circumstance[70] and necessity have been recognised and used by courts. In a leading case, Re A (Conjoined Twins),[71] 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 murder. It was however held that in this special and incredibly sensitive situation, that it was necessary to save the first twin's life.

Criminal law jurisdictions

International law

The fine architecture of the new International Criminal Court in The Hague
The fine architecture of the new International Criminal Court in The Hague

Public international law deals extensively and increasingly with criminal conduct, that is heinous and ghastly enough to affect entire societies and regions. The formative source of modern international criminal law was the Nuremberg trials following the Second World War in which the leaders of Nazism were prosecuted for their part in genocide and atrocities across Europe. In 1998 an International criminal court was established in the Hague under what is known as the Rome Statute. This is specifically to try heads and members of governments who have taken part in crimes against humanity. Unfortunately, not all countries have agreed to take part, including Yemen, Libya, Iraq and the United States.

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 to the United States Constitution 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 ****d 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). Crimes in the US which are outlawed nearly universally, such as murder and rape are referred to as malum in se, while other crimes reflecting society's social attitudes and morality, such as laws prohibiting use of marijuana are referred to as malum prohibitum.

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 the Crown Courts and up to the High Court. Appeals are then made to the Court of Appeal and finally 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.


1. ^ Kramer, Samuel Noah. (1971) The Sumerians: Their History, Culture, and Character, p.*, University of Chicago ISBN 0-226-*5238-7
2. ^ see, Pennington, Kenneth (1993) The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western Legal Tradition, University of California Press
3. ^ R v. Gibbons and Proctor (1918) 13 Cr App R 13*
*. ^ 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
5. ^ e.g. the partner in Gibbons who was not a blood parent, but had assumed a duty of care
6. ^ R v. Stone and Dobinson [1977] QB 35*, 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.
7. ^ R v. Dytham [1979] QB 722, where a police man on duty just stood and watched three men kick another to death
8. ^ R v. Instan (1893) 1 QB *50, where a bedridden Aunt, ostensibly in her neice's care developed gangrene, a "slur on justice" were it not punishable.
9. ^ R v. Miller [1983] 1 All ER 978
10. ^ 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
11. ^ Airedale NHS Trust v. Bland [1993] 1 All ER 821
12. ^ 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.
13. ^ 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.
1*. ^ 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.
15. ^ 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 ***ual 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.
16. ^ per Beldam LJ, R v. Cheshire [1991] 3 All ER 670; see also, R v. Jordan [1956] *0 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.
17. ^ R v. Smith [1959] 2 QB 35, the stab was still an "operating" and "substantial" cause of death.
18. ^ R v. Dear [1996] Crim LR 595
19. ^ 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."
20. ^ R v. Woolin [1998 * All ER 103]
21. ^ 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.
22. ^ R v. Matthews and Alleyne [2003] EWCA Crim 192
23. ^ 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]
2*. ^ previously in the U.K. under Metropolitan Police Commissioner v. Caldwell [1981] 1 All ER 961
25. ^ 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 (187*) LR 2 CCR 119
26. ^ R v. Church [1966] 1 QB 59
27. ^ see also, Fagan v. Metropolitan Police Commissioner [1968] 3 All ER **2, where angry Mr Fagan wouldn't take his car off a policeman's foot
28. ^ M'Naghten's case (18*3) 10 C & F 200
29. ^ 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.
30. ^ R v. Sullivan [198*] AC 156
31. ^ R v. Kemp [1957] 1 QB 399
32. ^ R v. Hennessy [1989] 2 All ER 9; though see R v. Quick [1973] and the automatism defence.
33. ^ R v. Burgess [1991] 2 All ER 769
3*. ^ R v. Windle [1952 2 QB 826
35. ^ Mr Windle was not hanged!
36. ^ 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.
37. ^ though Scottish judges recognised the defence in the 1920s
38. ^ s.2(1) Homicide Act 1957
39. ^ Bratty v. Attorney-General for Northern Ireland [1963] AC 386
*0. ^ R v. T [1990] Crim LR 256
*1. ^ see Kay v. Butterworth (19*5) 61 TLR *52
*2. ^ Attorney-General's Reference (No. 2 of 1992) [1993] * All ER 683
*3. ^ 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 [198*] 1 WLR 6*
*5. ^ per Lord Birkenhead, DPP v. Beard [1920] AC *79
*6. ^ DPP v. Majewski [1977]] AC *33, where M was drunk and drugged and attacked people in a pub. He had no defence to ABH.
*7. ^ R v. Gallagher [1963] AC 3*9
*8. ^ R v. Kingston [199*] 3 All ER 353
*9. ^ R v. Lipman [1970] 1 QB 152
50. ^ see R v. Hatton [2005] All ER (D) 230
51. ^ DPP v. Morgan and others [1976] AC 182, where an RAF man told three officers to have *** with his wife, and she would pretend to refuse just to be stimulating. They pleaded mistake, and the jury did not believe them.
52. ^ R v. Williams [1987] 3 All ER *11
53. ^ R v. Clegg [1995] 1 All ER 33*
5*. ^ R v. Martin [2002]
55. ^ c.f. 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 *17, where the defendant helped torture, ***ually abuse and strangling. Being threatened into helping was no defence.
56. ^ R v. Gotts [1992] 2 AC *12, convicted for attempted murder
57. ^ R v. Abdul-Hussain [1999] Crim LR 570, where two Shiites escaped from persecution in Iraq by going to Sudan and hijacking a plane. The threat was not imminent but "hanging over them" so they were not convicted.
58. ^ R v. Valderrama-Vega [1985] Crim LR 220, n.b. had there been no death threat, the others would not amount to duress.
59. ^ R v. Martin [1989]
60. ^ R v. Conway [1988] 3 All ER 1025
61. ^ 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]
62. ^ R v. Graham [1982], where duress was rejected
63. ^ R v. Bowen [1996]
6*. ^ 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.
65. ^ R v. Cole [199*]
66. ^ R v. Sharp [1987]
67. ^ R v. Shepherd [1987]
68. ^ per Lord Woolf, R v. Shayler [2002] 2 All ER *77
69. ^ Regina v. Dudley and Stephens ([188*] 1* QBD 273 DC)
70. ^ e.g. R v. Cairns [1999] EWCA Crim *68 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.
71. ^ Re A (Conjoined Twins) [2000] * All ER 961


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