1. Crime, Justice and the Law
Criminal law
Crime, Justice and the Law

2. Preview Criminal law Purposes of criminal law Definition of crime
Elements of crime
Burden of proof
Categories of criminal offences
Punishment
Exemptions from criminal liability
Adversary vs. Inquisitorial procedure
Criminal trial

3. Who is who in a criminal court?
Match the persons with their activities. Find Croatian equivalents.
juror
Brings a prosecution and outlines the facts of the case
Defece counsel
Pleads guilty or not guilty
Judge/magistrate
Presents expert opinion/evidence
Expert witness
Presides over court and pronounces sentence
defendant
Passes a verdict of guilty or not guilty
prosecutor
Represents clients

4. Scan the text on p. 127 and finish the following sentences
A crime is an offence committed against________________
The three categories of criminal offences in England and Wales are:
1. ________________; 2. ____________________; 3. __________________

5. Criminal law
Involves prosecution by the state of a person for an act that has been classified as a crime

6. Prosecution Criminal prosecutions – in the name of the Crown
The duty of conducting prosecutions in the UK.: Crown Prosecution Service (CPS), created by Prosecution of Offences Act 1985

7. Purposes of Criminal Law
1. to protect individuals and their property from harm
2. to regulate social behaviour
3. to provide sanctions

8. DEFINITION OF CRIME
Crime: offence against community, punishable by the State
An illegal act which may result in prosecution and punishment by the state

9. DEFINITION OF CRIME
“A crime is a conduct forbidden by the State to which a punishment has been attached because the conduct is regarded by the State as being criminal”
What conduct is criminal varies from country to country, and from one time to another (e.g. homosexuality; marital rape - criminalised by judicial decisions: R v R 1991)

10. What constitutes a crime?
In order to be convicted, the accused must be shown to have committed
an unlawful act (actus reus)
with a criminal state of mind (mens rea)

11. Elements of a crime ACTUS REUS + MENS REA = OFFENCE
Lat: Actus non facit reum nisi mens sit rea = ‘the act itself does not constitute guilt unless done with a guilty mind’

12. Actus reus The physical element of a crime. It can be:
1. An act (e.g. theft)
2. An omission to act (e.g. wilful neglect of a child)
3.A state of affairs (e.g. being drunk in a public place)

13. Mens rea
The mental element of an offence; the state of mind that the prosecution must prove that defendant had at the time of committing a crime in order to secure conviction
Intention to bring about a particular consequence, or recklessness as to whether such consequences may come about

14. Burden of proof The duty to prove a fact or facts in issue
Defendant: presumed to be innocent until
proved guilty
The duty of the prosecution: to prove its case by establishing both actus reus and mens rea
It must first satisfy the evidential burden to show that its allegations have sth to support them

15. Burden of proof
If the posecution has established a basis for its case, it must continue to satisfy the persuasive burden by proving its case beyond reasonable doubt

16. CATEGORIES OF CRIMINAL OFFENCE
Summary offences
Indictable offences
Offences triable either way

17. Summary offence
Summary offence a minor crime which can be tried summarily, i.e. before magistrates (e.g. common assault, driving offences, criminal damage of less than £5,000);
Prosecutions must be started within 6 months of the commission of the offence
Maximum sentence: 6 months imprisonment
Tried in magistrates’ courts by a judge/magistrate without a jury

18. Offences triable either way
Cases which can be heard in either the Magistrates' Court or the Crown Court (theft, burglary, assault causing bodily harm, obtaining property by deception)
Wide- ranging culpability

19. Indictable offences
Serious crimes which are tried on indictment in the Crown Court (murder, manslaughter, rape)
Indictment: formal document accusing a person of committing an indictable offence; read out to the accused at trial

20. Form of indictment
Headed with the name of the case and the place of trial
Statement of offence, stating what crime has allegedly been committed, followed by particulars of the offence
If the accused is charged with more than one offence, each allegation and charge appears in a separate paragraph called a count

21. TYPES OF CRIME
Offences against the State and public peace and order (treason, sedition, unlawful assembly, riot, incitement to racial hatred, conspiracy, perjury, public mischief, etc.)
Offences against the person (murder, manslaughter, infanticide, assault, battery, rape, bigamy)
Offences against property (theft, robbery, burglary, fraud, blackmail, forgery, malicious damage, handling stolen goods)

22. Punishment
A penalty imposed on a defendant duly convicted of a crime by an authorized court
Declared in the sentence of the court
Basic principles: 1) nullum crimen sine lege (no crime without a law), 2) nulla poena sine lege (no punishment without a law)

23. No punishment without law
Art. 7 (1) ‘No one shall be held guilty of any criminal offence on account of any act or omission which did not consitute a criminal offence under national law or international law at the time it was committed’

24. Criminal law and human rights
The right to a fair trial (Art. 6 (1)
The presumption of innocence (Art. 6 (2)
No punishment without law (Art. 7 (1)

25. Other Convention rights
The right not to be subjected to inhuman or degrading treatment (Art 3(1)
The right of respect for a person’s private life (Art 8)
No discrimination on the grounds of sex, race, colour, religion or political opinion (Art 14)

26. Exemptions from criminal liability
A person can be exempted from criminal liability if:
A) something had deprived them of their free will and control (insanity, coercion), or
B) s/he is one of the class of persons subject to special rules (foreign sovereigns, diplomats, minors)

27. Limitations on capacity
Children under the age of ten
Mentally ill persons: unfitness to plead, insanity at time of offence, diminished responsibility
Corporate liability

28. Children under the age of 10
S50 Children and Young Persons Act 1933 ‘it shall be conclusively presumed that no child under the age of ten can be guilty of any offence’ – doli incapax presumption
S34 Crime and Disorder Act 1998 abolished the presumption that a child aged 10 to 13 is incapable of committing an offence; a child aged 10 and over is considered to be ‘as responsible for his actions as if he were 40’

29. Children aged ten and over
For all but the most serious offences children (10-13) and young persons (14-17) are tried in the Youth Court
Where a child or a young person is tried in the Crown Court special arrangements must be made to allow him to participate effectively in the trial
Sentencing powers – different from those for adults

30. Mentally ill persons
Where the defendant is unable to understand the charge against him so as to be able to make a proper defence, he may be found unfit to plead (Criminal Procedure (Insanity) Act 1964)
Where a person is fit to plead but is found to be insane at the time he committed the offence a special verdict of ‘Not guilty by reason of insanity’ is given by the jury’

31. Diminished responsibility
A partial defence which is only available on a charge of murder operates where a person suffers from an abnormality of the mind which substantially impairs his mental responsibility for his acts or omissions in doing or being a party to the killing (s2 Homicide Act 1957)
If the defence is successful the charge of murder is reduced to manslaughter

32. Corporate liability A corporation – a legal person
A corporation cannot be convicted of an offence where the only punishment available is physical, e.g. life imprisonment for murder
A corporation cannot commit crimes of a physical nature, such as bigamy, rape or perjury, though it may be possible for a corporation to be liable as an accessory
A corporation can be liable for manslaughter

33. Assisting offenders
Incitement, assisting offenders, concealing offences, giving false information – punishable offences

34. Strict liability
Liability for a crime imposed without the necessity of proving mens rea (e.g. offences relating to the production and marketing of food, offences relating to road traffic)

35. ACCUSATORIAL PROCEDURE
Accusatorial (adversary procedure): A system of criminal justice in which conclusions as to liability are reached by the process of prosecution and defence.

36. INQUISITORIAL PROCEDURE
In countries where Roman law is applied, a procedure by which an examining magistrate has the duty to investigate a case and produce evidence

37. ACCUSATORIAL (OR ADVERSARY) PROCEDURE
A procedure in common law countries where each side collects and presents their own evidence and attacks their opponent’s by cross examination

38. ACCUSATORIAL PROCEDURE
It is the primary duty of the prosecutor and defence to press their respective viewpoints within the constraints of the rules of evidence while the judge acts as an impartial umpire, who allows the facts to emerge from this procedure.

39. Criminal trials
Most cases – magistrates’ courts (summary offences): before magistrates or a district judge: facts and legal issues
The Crown Court – indictable offences: before the judge (legal issues) and the jury (facts)
The Youth Court

40. CRIMINAL TRIAL
The accused enters the dock (‘part of a court where an accused prisoner stands’)
The charge is read out
The accused pleads ‘guilty’ or ‘not guilty’
On a “guilty plea”, the Magistrates’ Court can either proceed to sentence or commit to the Crown Court for sentence
On a ‘not guilty plea’ the trial proceeds to establish the person’s guilt or innocence

41. STAGES OF A CRIMINAL TRIAL
1. Accusation
2. Jury sworn in
3. Prosecution opening speech
4. Prosecution evidence
5. Defence opening speech
6. Defence evidence
7. Prosecution closing speech
8. Defence closing speech
9. Judge’s summing up
10. Jury’s verdict
11. Sentence

42. THE JURY
Trial by jury – an ancient and important feature of English justice; the main element in criminal trials in the Crown Court
Jury membership – in the past, linked to the ownership of property

43. THE JURY
Today – before the start of a criminal trial, 12 jurors are chosen from a list of some 30 names randomly selected from local electoral registers
They listen to the evidence and give their verdict on the facts

44. The Jury
If a jury cannot reach a decision, it will be discharged and a new one sworn in
Until 1967 the verdict had to be unanimous
Today: a majority verdict (ten to two)

45. The Jury System
safeguards individual liberty and justice; the ordinary citizen’s link with the legal process
Criticism: high acquittal rates; subjective jurors; intimidation of jurors; costs

46. THE JUDGE
Controlling influence in the battle between defence and prosecution
Applies the rules of the court and gives directions on procedure and evidence
Should not interfere nor show bias
Passes sentence

47. Purposes of sentencing
Punishment (retribution)
Public protection
Crime reduction
Reparation
Rehabilitation of offenders

48. TYPES OF PUNISHMENT
Unconditional discharge (if it is a person’s first offence, and if it is not serious)
Conditional discharge (the accused is set free but if he commits another crime within a stated time, the first crime will be taken into account; he may be put on probation: regular meetings with a social worker)
Fine
Community service

49. Types of Punishment Imprisonment Life sentence
Death penalty – abolished in the UK in (except for treason); in 1998 the home secretary signed the 6th protocol of the European Convention of Human Rights which formally abolished the death penalty in the U.K.

50. CRIMINAL APPEALS The Court of Appeal (Criminal Division):
1) The conviction may be quashed (the jury’s previous verdict is overruled and the accused is pronounced ‘not guilty’
2) The sentence may be reduced
The Supreme Court:
Either prosecutor or defendant my appeal on a point of law of general public importance

51. The royal prerogative of mercy
The power to pardon convicted individuals exercised by the Crown on the advice of the Home Secretary:
1) A free pardon: quashing a conviction
2) A conditional pardon: excusing or varying the conviction subject to conditions
3) Remission of a sentence (‘reduction of a prison sentence’)

52. Read the text and answer the following questions
What is criminal law concerned with?
What is the purpose of criminal law?
What is a crime?
What are two basic elements of a crime?
What is the role of the prosecutor?
What is the criterion for classification of offences in English law?
What are the features of the adversarial system?
Which courts try which offences?
What are the purposes of sentencing?
What are the main types of punishment?

53. Classify the following: burglary, assault causing bodily harm, manslaughter, rape, theft, driving offences, common assault, obtaining property by deception
Summary
Triable either way
Indictable

54. Put the steps in the correct order
Reviewing a case by CPS
Bringing a prosecution
Sending the suspect to court
Releasing the suspect on bail
Investigating a crime
Detaining a suspect in custody
Arresting a suspect

55. Explain the following terms
To bear the burden of proof
Presumed to be innocent
To hold a person liable for breaking the law
Ignorance of the law is no excuse
To persuade the judge/jury beyond reasonable doubt
To prove beyond reasonable doubt

56. Match each verb with a noun: „(not) guilty”, the law (2x), in custody, bail, a sentence, a warrant of arrest, a charge, a criminal offence, a rule
To violate _____________
To issue________________
To grant _______________
To detain______________
To breach_____________
To plead_________________
To impose_______________
To bring _________________
To commit______________
To break_________________

57. Basic intent crimes vs. Specific intent crimes
Basic intent crimes – crimes based on recklessness or negligence; the defendant intended the conduct but not the result (negligent homicide, arson)
Specific intent crimes – intentional crimes where the defendant intended both the conduct and the result (murder)

58. Match the defences with their definitions: involuntary intoxication, infancy, insanity, self-defence, duress, voluntary intoxication, necessity
1. A state in which a person’s physical and mental capabilities are impaired by the voluntary intake of any alcohol or drug can be used as evidence to disprove the mens rea of specific but not basic crimes ___________________
2. Lack of mens rea due to involuntary intoxication is a defence to crimes of both specific and basic intent ___________
3. A child under the age of 10 is not criminally responsible_______
4. A defendant is insane if suffering from a defect of reason so as not to know what s/he is doing or not to know that it is wrong

59. Match the defences with their definitions: involuntary intoxication, infancy, insanity, self-defence, duress, voluntary intoxication, necessity
5. The defendant’s will must be overborne by a threat of death or serious personal injury (no defence to murder or attempted murder)
_____________________
6. It may be available as a defence where the defendant’s action arises from a fear of death or serious injury (no defence to murder except in highly exceptional circumstances)_________
7. A person is entitled to use reasonable force in defence of themselves or another and also to prevent a crime or effect an arrest._______________

60. Read the following statements and decide if they refer to the inquisitorial or adversarial procedure
The defence and prosecution present their case to a judge or jury.
____ The case is decided by a judge (or a jury) who does not investigate the facts but acts as an umpire.
____ The judge remains neutral and passive throughout the proceedings.
____ The judge takes an active role while the lawyers have a passive role.

61. Adversarial or inquisitorial?
____ The judge actively steers the search for evidence and questions the witnesses, including the respondent or defendant.
____ The judge and/or the jury determine the truth in the case.
____ The judge conducting the trial determines what questions to ask and defines the scope of the case under a highly structured and rigid code of rules.
____ A case is argued by two opposing sides who have the primary responsibility for finding and presenting facts.
____ The judge oversees the case and cannot ask to see additional witnesses.

62. Defences: Insanity
To establish the defence of insanity the defendant must prove that at the time of commiting the act, ‘he was labouring under such a defect of reason, from disease of mind, 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’.
‘Not guilty by reason of insanity’
Defence to all crimes, except for crimes of strict liability’

63. Defences: automatism
‘An act done by the muscles without any control by the mind, such as spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep-walking’.
1. insane a.: ‘Not guilty by reason of insanity’
2. non-insane automatism (external cause): ‘Not guilty’

64. Defences: Intoxication
1. voluntary: can negate the mens rea for a specific intent offence; if the defendant has the mens rea, he is guilty; for basic intent offences – not a defence
2. involuntary: did the defendant have the mens rea when he committed the offence? If he did not have the intent, - not guilty

65. Defences: duress
If the defendant was forced to commit the crime; the defendant had to choose between being killed or seriously injured or coimmitting a crime
Defence to all crimes except murder, attempted murder, and treason

66. Defences: necessity
A defendant was forced to act by the surrounding circumstances
Available for all crimes except murder, attempted murder, and treason

67. Self-defence
Covers not only actions needed to defend oneself from an attack, but also actions taken to defend another or prevent crime

68. Diminished responsibility
Diminished responsibility is one of three special defences which exist solely for the offence of murder

69. Diminished responsibility
Diminished responsibility is one of three special defences which exist solely for the offence of murder. It is contained in the Homicide Act as modified by the Coroners and Justice Act Where the defence of diminished responsibility is successfully pleaded, it has the effect of reducing a murder conviction to manslaughter. The three special denfeces of diminished responsibility, loss of control and suicide pact differ from general defences in that they do not apply to all crimes and also the effect is to reduce criminal liability rather than to asolve the fefendant from liability completely

70. From s. 2 of the Homicide Act 1957 as amended by s
From s.2 of the Homicide Act 1957 as amended by s.52 of the Coroners and Justice Act 2009.
Persons suffering from diminished responsibility..
[F1(1)A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which—
(a) arose from a recognized medical condition,
(b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and
(c) provides an explanation for D's acts and omissions in doing or being a party to the killing.
(1A)Those things are—
(a) to understand the nature of D's conduct;
(b) to form a rational judgment;
(c) to exercise self-control.

71. R v Dietschmann [2003] 1 AC 1209 The facts (from the judgement of the House of Lords)
In the early hours of the morning on 18 July 1999 the appellant, Anthony Dietschmann, killed Nicholas Davies by punching him and kicking him on the head in a savage attack. At the time of the killing the appellant was heavily intoxicated and he was also suffering from a mental abnormality which the medical witnesses for the Crown and the defence described as an adjustment disorder, which was a depressed grief reaction to the death of his aunt, Sarah, with whom he had had a close emotional and physical relationship.

72. R v Dietschmann [2003] 1 AC 1209 The facts (from the judgement of the House of Lords)
Held:
His conviction for murder was substituted for a manslaughter conviction.
Key principle:
According to Section 2(1) the abnormality of mind does not have to be the only cause of the defendant’s acts. Where it may have been caused by various factors the jury should consider diminished responsibility by reference only to factors falling within Section 2.

73. R v Dietschmann [2003] 1 AC 1209 The facts (from the judgement of the House of Lords)
"Assuming that the defence have established that the defendant was suffering from mental abnormality as described in section 2, the important question is: did that abnormality substantially impair his mental responsibility for his acts in doing the killing? You know that before he carried out the killing the defendant had had a lot to drink. Drink cannot be taken into account as something which contributed to his mental abnormality and to any impairment of mental responsibility arising from that abnormality. But you may take the view that both the defendant's mental abnormality and drink played a part in impairing his mental responsibility for the killing and that he might not have killed if he had not taken drink. If you take that view, then the question for you to decide is this: has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts, or has he failed to satisfy you of that? If he has satisfied you of that, you will find him not guilty of murder but you may find him guilty of manslaughter. If he has not satisfied you of that, the defence of diminished responsibility is not available to him."

74. Discussion
What are the advantages and disadvantages of the adversarial and the inquisitorial procedures?

75. Research How are criminal offences classified in the USA?
How are they classified in Croatia?