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1 | Introduction to criminal law |
1.1 The purpose of criminal law The main purposes are to:
1 Protect individuals and their property from harm.
2 Preserve order in society.
3 Punish those who deserve punishment. (N.B. There are also other aims when sentencing offenders, including incapacitation, deterrence, reformation and reparation.)
1.1.1 Should the law enforce moral values?
This area is controversial. It is argued that it is not the function of criminal law to interfere in the private lives of citizens unless it is necessary to try to impose certain standards of behaviour. The Wolfenden Committee (1957) felt that intervention in private lives should only be:
ā¢ to preserve public order and decency;
ā¢ to protect the citizen from what is offensive or injurious; and
ā¢ to provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable
Lord Devlin in the Enforcement of Morals (1965) disagreed. He felt that āthere are acts so gross and outrageous that they must be prevented at any costā.
1.1.2 Conflicting cases
The courts are not always consistent in their approach to this area of law. Brown (1993): The House of Lords upheld convictions for assault causing actual bodily harm (s 47 Offences against the Person Act 1861) and malicious wounding (s 20 Offences against the Person Act 1861) for acts done in private by a group of consenting adult sado-masochists. Wilson (1996): The Court of Appeal quashed a conviction for assault causing actual bodily harm (s 47 Offences against the Person Act 1861) where a husband had branded his initials on his wifeās buttocks, at her request.
1 A crime is conduct forbidden by the State and to which a punishment has been attached because the conduct is regarded by the State as being criminal.
2 The statement above is the only definition which covers all crimes.
3 What conduct is criminal will, therefore, vary from country to country and from one time to another. The law is likely to change when there is a change in the values of government and society.
1.2.1 Example of the changing nature of criminal law
ā¢ The Criminal Law Amendment Act 1885 criminalised consensual homosexual acts between adults in private.
ā¢ The Sexual Offences Act 1967 decriminalised such behaviour between those aged 21 and over.
ā¢ The Criminal Justice and Public Order Act 1994 decriminalised such behaviour for those aged 18 and over.
ā¢ In 2000, the government reduced the age of consent for homosexual acts to 16, though the Parliament Acts had to be used as the House of Lords voted against the change in the law.
1.2.2 Judicial law-making
1 Some conduct is criminalised not by the State but by judges.
2 This happened in Shaw v DPP (1962) where the offence of conspiracy to corrupt public morals was created. The creation of the offence was confirmed in Knuller (Publishing, Printing and Promotions) Ltd v DPP (1973).
3 Another example is the offence of outraging public decency which has never been enacted by Parliament. It is an invention of the judges, yet people can be convicted of it (Gibson (1991)).
4 Marital rape has also been criminalised by the decisions of judges (R v R (1991)).
5 See also the cases of Brown (1993) and Wilson (1996) in 1.1.2.
1.3 Classification of offences There are many ways of classifying offences depending on the purpose of the classification.
1.3.1 Classification by where a case will be tried
One of the most important ways of classifying offences is by the categories that affect where and how a case will be tried. For this purpose offences are classified as:
1 Indictable only offences, which must be tried on indictment at the Crown Court (e.g. murder, manslaughter, rape).
2 Triable either way offences which can be tried either on indictment at the Crown Court or summarily at the magistratesā court (e.g. theft, burglary, assault occasioning actual bodily harm).
3 Summary offences which can only be tried at the magistratesā court (e.g. assaulting a policeman in the execution of his duty, common assault).
1.3.2 Categories for police powers of detention
1 Police powers to detain a suspect who has been arrested depend o...
