Criminal Law

Jonathan Herring

• Publisher: Red Globe Press
• Year: 2019
• Print ISBN: 9781352005332
• eBook ISBN: 9781352005349
• Edition: 11
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

This bestselling, classic textbook provides a clear and straightforwardaccount of criminal law, while also introducingcurrent debates about the nature, scope and functions of thelaw and discussing wider controversies surrounding the basicdoctrines. Written by one of the UK's leading experts on criminal law, this book is compact yet comprehensive, well-structured, stimulating and engaging.

This edition includes:

• A detailed discussion of the significant new definition of dishonesty
  
• Consideration of case law developments on diminished responsibility
  
• Analysis of the new law on accessories
  
• Exploration of recent cases on loss of control
  
• Summaries of recent academic analysis of criminal law

This is an ideal text for all students taking undergraduate LLB and GDL/CPE courses incriminal law.

Part I

Basic principles of criminal liability

Chapter 1

Introduction to criminal law

Key terms

Culpability – the blameworthiness of the defendant.

Harm – the wrong done to the victim of a crime.

Objectivism – a view which states the defendant should be judged by his or her conduct.

Subjectivism – a view that the defendant should be judged on the basis of his or her beliefs, intents and knowledge.

1.1The scope of this book

In 2017 a survey by BT found that that the average Briton committed 32 crimes a year. This means it is very likely that you have committed a criminal offence at some time in your life. Probably quite a few of them! So, it is worth reading this book carefully.

This book is about the basic principles of criminal liability. These principles are the tools for understanding and applying the criminal law, and so can be used when you are faced by an unfamiliar or new offence. Central offences against persons and property provide the basis upon which the judges have built the criminal law, and all students of criminal law need to understand them. Murder, for example, although a comparatively rare crime, has played this role because it is one of the most serious offences and so provides a testing ground for fundamental notions of culpability. The offences which are discussed in this book are chosen as examples of offences against persons and property. These offences (for example, murder) have either performed a key role in developing important legal principles, or are common offences arising every day in the courts (for example, theft).

Although criminal law used to be seen as a straightforward subject, it can be extremely complex and is often controversial. The aim of this book is to ensure that the basic principles are centrally presented, so that the wood does not disappear among the trees. Some of the underlying theoretical themes and conflicts are also introduced, as these are an inescapable part of current criminal law, which is undoubtedly alive and provocative.

1.2What is criminal law?

This is a question which is surprisingly difficult to answer. Most people would imagine the criminal law to be about murders, assaults and thefts, which, of course, it is; but the scope of criminal law is wider than this. It also includes pollution offences, crimes against public morals and traffic offences. It is the values and culture of a particular society which determine what conduct is regarded as criminal. It should be noted that conduct which is contrary to criminal law at one point in time may not be seen as criminal at another time or in another country. For example, before 1967, sexual acts between two men were contrary to the criminal law, but following the Sexual Offences Act 1967, the legal prohibition on private sexual acts between two men over 21 was removed. (The age limit was subsequently reduced to 18, and in 2001 it was reduced to 16.) This was in part a result of changes in the general public’s attitudes towards male same-sex relationships. Indeed, using that example, it is notable that female same-sex relationships have received virtually no attention from the criminal law. Whether that is because such behaviour was thought unimaginable or unproblematic may be open for debate. However, there are some crimes, such as murder, which have always been crimes and always will be, although even in the case of murder there are disagreements over whether euthanasia, abortion or capital punishment should be lawful. But how can criminal law be distinguished from other parts of the law? Probably the best answer was given by Professor Glanville Williams, one of the great criminal law scholars, who argued that criminal law is best defined by the procedures it uses (see Chapter 2). He suggested that a crime is ‘an act that is capable of being followed by criminal proceedings having one of the types of outcome (punishment etc.) known to follow these proceedings’ (Williams, 1955, p. 108). Although this may be the best definition, it is not especially useful, as it tends to be a circular one: What is criminal law? It is that part of the law which uses criminal procedures. What are criminal procedures? Those which apply to criminal law.

1.3The role of criminal law

The criminal law plays a distinctive role in society, including the following functions: to deter people from doing acts that harm others or society; to set out the conditions under which people who have performed such acts will be pun-ished; and to provide some guidance on the kinds of behaviour which are seen by society as acceptable. Of course, it is not only the criminal law which has a role in these areas. For example, deterrence from crime may occur as a result of pressure from families, friends and communities. But the criminal law is different from these other influences. It is the established state response to crime. This is reflected in the fact that prosecutions under the criminal law are brought on behalf of the state in the name of the Crown (see Section 2.1). Further, the breaking of the criminal law is seen as different from the breaking of other kinds of law, in that a breach of the criminal law involves a degree of official moral censure. To be ordered by a court to pay damages following a breach of contract (which is not a criminal offence) does not carry with it the same kind of moral stigma that it would if you had been found guilty of a criminal act and then ordered to pay a fine. As Professor Ashworth (1993, p. 62) has written, ‘criminal liability is the strongest formal condemnation that society can inflict’.

1.4What conduct is criminal?

There are two aspects to the definition of most serious crimes. The first, and more important, is that the defendant has done an act which has caused a prohibited kind of harm. The second is that the defendant is culpable – worthy of censure – for having caused that harm. We will now consider these aspects separately.

1.4.1Causing harm

The criminal law is not only concerned with the causing of direct harm to other people; it also outlaws harm to the state, public morals and the environment, for example. The criminal law goes further and punishes conduct which may not cause harm on a given occasion but endangers others (for example, dangerous driving), attempted crimes and acts which help other people commit crimes. There are also a few criminal laws which are designed mainly to protect people from their own folly. One obvious example is the law requiring the wearing of seat belts in cars.

It is often argued that the criminal law should seek to punish only conduct which causes harm to others. Such an argument is in line with the well-known ‘harm principle’ articulated by J.S. Mill (1859), who stated: ‘The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.’ Some conduct may be immoral, but if it does not harm others or harms only the actor, it is seen as unsuitable for punishment under the criminal law. The prohibition of non-harmful conduct is seen as too great an infringement on individuals’ liberty. Although this principle has been widely accepted, there has been much dispute over what the term ‘harm’ means. For example, does it cover feelings of outrage some may feel at the conduct of their fellow citizens or damage to ‘the moral fabric of society’? In Gough v DPP [2013] EWHC 3267 (Admin) the court heard the appeal of a man who for many years has been walking around Britain naked. His conviction was upheld, but the case is controversial. He was not directly hurting anyone and most people were not particularly bothered by him. A few people were upset and that was emphasised by the court, but it must be asked whether that is sufficient to justify criminalisation.

The ‘harm principle’ has received support not just from academics, but also from the judiciary. For example, Lord Hobhouse in the House of Lords case of Hinks* [2000] 4 All ER 833 stated:

An essential function of the criminal law is to define the boundary between what conduct is criminal and what merely immoral. Both are the subject of the disapprobation of ordinary right-thinking citizens and the distinction is liable to be arbitrary or at least strongly influenced by considerations subjective to the individual members of the tribunal. To treat otherwise lawful conduct as criminal merely because it is open to such disapprobation would be contrary to principle and open to the objection that it fails to achieve the objective and transparent certainty required of the criminal law by the principles basic to human rights.

It may be necessary to calculate the severity of the harm an act has caused. This can be important for two reasons. It is used, first, to determine whether certain conduct is sufficiently harmful for it to be criminalised and, second, to decide the hierarchy of offences. Generally, the more harmful the conduct, the more serious the crime, and the higher the sentence is expected to be. But how to grade harm is controversial and difficult. From one perspective, it is an impossible task as the victim’s circumstances and perceptions vary from crime to crime. For example, some victims seem able to shrug off a burglary with little difficulty, while others find it a deeply traumatic and invasive experience. One could try to ignore the effect on a particular victim and instead look at the effect on an average victim, but then victims may feel that they are being pigeonholed and that their individual responses are not being taken seriously. The harm to society caused by any particular act is similarly difficult to gauge.

1.4.2Culpability

Criminal law should be distinguished from civil law, which includes breaches of contract or claims for damages for negligent conduct. Civil law is concerned more with who should compensate the victim for a loss than with determining blame. Given that the defendant has damaged the victim’s property, the question in civil law is ‘Who should pay for that damage?’ If the victim is wholly innocent, and the defendant even only a little to blame, then the defendant should shoulder the liability. However, in criminal law, as explained above, the censuring function plays a crucial role. Defendants should be found guilty of a crime only when they truly deserve the stigma of a criminal conviction, and so normally a higher level of blame needs to be shown in criminal law than in civil law, at least for serious offences. For less serious offences, it is common for there to be a requirement of only a low level of culpability, partly because there is a correspondingly low level of censure attached to such crimes (see, for example, Chapter 6). Despite these points some commentators have pointed out that the line between civil law and criminal law is being increasingly blurred. For example, antisocial behaviour orders were civil under the Crime and Disorder Act 1998, but breach of them amounted to a criminal offence (see Clingham v RB Kensington and Chelsea [2002] UKHL 39).

In deciding whether a defendant is to be blamed for her conduct, the criminal law generally presumes that a defendant is responsible for both her actions and the consequences of her actions. The criminal law does not accept that a person’s conduct is simply a result of her environment and/or socio-economic background. Cases would become far too complex if each time it had carefully to be determined to what extent the defendant was responsible for her personality and the causing of the harm. Instead, the law assumes that every person is a free autonomous agent who is responsible for what she does. Although generally the defendant’s deprived background itself does not provide the defendant with a defence to a crime, the law does not ignore it entirely. For example, a defendant’s social and financial circumstances may be taken into account at the sentencing stage of the criminal process.

The law has four main ways of recognising that a defendant may not be to blame, or not fully to blame, for the harmful results of her actions, and so is not guilty of an offence:

1.Exemption from liability. The law accep...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• Preface
• Table of cases
• Table of legislation
• International documents
• Part I: Basic principles of criminal liability
• Part II: Offences against the person
• Part III: Offences against property
• Part IV: Defences
• Part V: Participation in crime
• Index