Criminal Law

• Publisher: Straightforward Publishing Digital
• Year: 2013
• ISBN:
  9781847164070
• Topic: Jura
• Subtopic: Strafrecht

A Guide to Criminal Law, second edition, is a comprehensive guide to the legal system and the area of criminal law as it affects people in a day-to-day capacity. The book is clear and concise and covers all the relevant areas of the criminal justice system and is designed for those people who either wish to understand more about the legal system or wish to know more about a specific area of law.

1

The Development of Law

The law in England and Wales has developed gradually over time. Law has been developed in a number of different ways, and the methods of developing law are known as sources of law. Historically, the most important ways were custom and decisions of judges. Parliament became more powerful in the eighteenth and nineteenth centuries, with Acts of Parliament becoming the main source of new laws, although judicial decisions were, and are, still important. During the twentieth century, statute law and judicial decisions continued to be the main sources of law, but increasingly two new sources of law became important: delegated legislation and European legislation. Together, all these sources of law have combined to create the present day legal system. We shall be looking further at sources of law in the next chapter, the purpose of criminal law.

Customs

Customs are rules of behaviour which develop in a community. There are two main types of custom: general and local customs.

General customs

General customs are common customs that have developed and have been absorbed over time into law.

Local customs

Local customs is a term used where a person claims that he or she is entitled to some local right, such as a right of way or the right to use land in a certain way, because this is what has happened locally over time. Judges have a test of what constitutes local customs. These are as follows:

• The custom must have existed since ‘time immemorial’

• The custom must have been exercised peaceably openly and as of right

• The custom must be definite as to locality, nature and scope

• The custom must be reasonable

It is very rare for a new custom to be considered by courts nowadays. There have been certain exceptions. For example, in Egerton v Harding (1974) the court decided that there was a customary duty to fence land against cattle straying from the common. Although customs develop they are not part of the law until recognised by the courts.

Common law

The legal system historically could not rely on customs alone. In Anglo-Saxon times there were local courts that decided disputes but it was not until after the Norman conquest in 1066 that a more organised system of courts developed. Norman kings realised that control of the country was that much easier if the legal system was also controlled. William the Conqueror set up the Curia Regis (The Kings Court) and appointed judges to hear disputes from the nobles. In addition to this central court, judges were sent to major towns to decide important cases.

In the time of Henry 11 (1154-89) these tours became more regular and the country was divided up into circuits, or areas for the judges to visit. Initially the judges would use the local customs or the old Anglo-Saxon laws to decide cases. On return to London the judges would discuss customs and gradually these evolved into a uniform or common law.

Common law is the basis of our law today, an unwritten law that developed from customs and judicial decisions. The phrase ‘common law’ is still used to distinguish laws that have been developed by judicial decisions, from laws that have been created by statute or other legislation. For example murder is a common law crime whilst theft is a statutory crime.

Common law also has another meaning. It is used to distinguish between rules that were developed by the common law courts (the Kings Courts) and the rules of equity which were developed by the Lord Chancellor and the Chancery Courts.

Equity

Historically this is an important source still playing a part today with many of our legal concepts having developed from equitable principles. The word ‘equity’ has a meaning of fairness and this is the basis on which it operates.

Equity developed because of problems in the common law. Only certain types of cases were recognised. The law was also very technical; if there was an error in the formalities, the person making the claim would lose the case. People who could not obtain justice in the common law courts appealed to the King. Most of these cases were referred to the Kings Chancellor. This was because the Chancellor based his decisions on principles of natural justice and fairness, making a decision on what seemed right in a particular case as opposed to the strict following of previous precedents. Account was also taken of what the parties had originally intended.

To ensure that decisions were fair, new procedures were introduced such as subpoenas, which ordered a witness to attend court. New remedies for compensation were developed which were able to compensate plaintiffs more fully than those previously used. The main equitable remedies were: injunctions; specific performance; rescission and rectification. These are all still in use today and will be explained more fully later on in this book.

Judicial precedents

The doctrine of precedents

Judicial precedent refers to the source of law where decisions of judges in the past create law for future judges to follow. This source of law is also known as case law and is a major source of law. The English system of precedent is based on the Latin maxim stare decisis et non quieta movere which is usually shortened to stare decisis and which translated means ‘stand by what has been decided and do not unsettle the established’. This supports the idea of fairness and certainty in law.

Ratio Decidendi

Precedent is only relevant and can only be effective if the reasons for past decisions are known. Judges will outline reasons for decisions and the rationale for a judgement outlining the principles of law used. These principles are an important part of any judgement and are known as the ratio decidendi which means the reason for deciding. This is what creates the precedent for future judges to follow.

Obiter Dicta

The remainder of the judgement is called obiter dicta (other things said) and judges in future cases do not have to follow it.

Original precedent

If the point of law in a case has never been decided before, then whatever the judge decides will form a new precedent for future cases to follow. As there are no past cases for a judge to base his decision on, he is likely to look at cases which are the closest in principle and he may decide to use similar rules. This way of arriving at a judgement is called reasoning by analogy. The idea of creating new law by analogy can be seen in Hunter and others v Canary Wharf Limited and London Docklands Development Corporation (1995). Part of the decision involved whether the interference with television reception was capable of constituting an actionable private nuisance. The facts of the case were that the main tower Canary Wharf built in the Isle of Dogs East London, was 250 metres high and 50 metres square. The claimant and others claimed damages from the defendant for continuing interference over a number of years with the television reception in the area as a result of the height of the tower. In the Court of Appeal, the Lord Justice Pill stated:

‘Lord Irving (counsel for the defendants) submits that interference with television reception by reason of the presence of a building is properly to be regarded as analogous to loss of aspect (view). To obstruct the receipt of television signals by the erection of a building between the point of receipt and the source is not in law a nuisance.................... I accept the importance of television in the lives of people. However, in my judgement the erection or presence of a building in the line of sight between a television transmitter and other properties is not actionable as an interference with the use and enjoyment of land. The analogy with loss of prospect is compelling. The loss of a view, which may be of the greatest importance to householders, is not actionable and neither is the mere presence of a building in the site lines to the television transmitter’.

Binding precedent

This is a precedent from an earlier case which must be followed even if the judge in the later case does not agree with the principle. A binding precedent is only created where the facts of the second case are sufficiently similar to the original case.

Persuasive precedent

This is a precedent that is not binding on the court but the judge may consider it and decide that it is a correct principle and is persuaded that it should be followed. Persuasive precedent comes from a number of sources:

• Courts lower in the hierarchy

• Decisions by the Judicial Committee of the Privy Council

• Statements made obiter dicta

• A dissenting judgement

• Decisions of courts in foreign countries.

The hierarchy of courts and precedent

In England and Wales courts operate a rigid hierarchy of judicial precedents. Every court is bound to follow any decision made by a court above it in the hierarchy. In general, appellate courts (appeal courts) are bound by their own decisions. The diagr...