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
Limitations on capacity
Participation
Inchoate offence
Defences
Categories of criminal offences
Punishment
Adversary vs. Inquisitorial procedure
Criminal trial

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

4. 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

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

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

7. 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)

8. 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)

9. 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’

10. 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)

11. 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

12. Levels of intention Intention
Subjective recklessness: the defendant knows that there is a risk of forbidden consequence but decides to take that risk; taking an unjustifiable risk
Negligence; only if the defendant is under the duty of care and his behaviour is below the standard of care of a reasonable person; gross negligence – a higher degree of negligence sufficient for manslaughter
Strict liability – no need to prove the intention

13. 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

14. 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

15. Participation
Principal offender: directly causes the actus reus; has mens rea; can have two or more joint principals
Innocent agent: where the principal acts through another, who is not guilty, because: no capacity, or no mens rea, or has a defence such as insanity or automatism
Secondary party (accessory): actus reus (aids, abets, counsels, procures the commission of an offence); mens rea: intends to assist principal; knowledge of type of offence or contemplation of what principal might do; liable to the same punishment as the principal

16. Inchoate offences
Incomplete offences; the main offence has yet to be committed
Three types:
1. Incitement
2. Conspiracy
3. Attempt

17. Incitement
A person who incites is one who ‘seeks to influence the mind of another to the commiwion of a crime’ (S v Nkosiyana 1966)

18. Conspiracy
‘if a person agrees with any other person or persons that a course of confuct shall be pursued which, if the agreement is carried out in accordance with their intentions, either:
A)will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement
B) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, he is guilty of conspiracy to commit the offence or offences in question

19. Attempt
‘If, with intent to commit an offence… a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence’ (Criminal Attempts Act 1981)

20. Limitations on Capacity
Children under age of 10: doli incapax; ten and over: fully liable for actions BUT different method of trial and different sentencing powers
Mentally ill: may be ruled unfit to plead; if tried may be found not guilty by reason of insanity; diminished responsibility – partial defence to murder – reduces it to manslaughter
Corporations: have legal personality so can be guilty of criminal offences; cannot be convicted of some physical crimes, e.g. rape; liable under one of three principles: 1) identification; 2) vicarious liability; 3) breach of statutory duty

21. 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’

22. 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

23. 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’
The judge can make: a hospital order, a supervision order (with a treatment requirement), or an absolute discharge

24. 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

25. 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, or rape though it may be possible for a corporation to be liable as an accessory
A corporation can be liable for manslaughter: corporate killing

26. The principle of identification
As a corporation has no physical existence it is necessary to identify those people who can be considered as ‘the directing mind and will of the company’
The acts and intentions of those who are identified as the ‘embodiment of the company’ are considered the acts and intentions of that company

27. Vicarious liability
Corporations may be vicariously liable for the acts of their employees in the same way as a natural person
Vicarious liability - a legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently: employers may be liable for the actions of their employees, principals for the actions of their agents
Reasons for vicarious liability: it ensures that employers train and control staff properly; it helps keep high standards

28. 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)

29. General defences
Available for all offences: insanity, automatism, mistake, self- defence
Available for some offences: intoxication (not available for crimes of basic intent); duress (not available for murder, attempted murder, or treason); necessity (very rarely successful as a defence; consent (not available for murder or some assaults)

30. Crimes of basic intent vs crimes of specific intent
Crimes of basic intent – based on recklessness or negligence where the defendant intended the conduct but not the result
Crimes of specific intent – intentional crimes where the defendant intended both the crime and the result

31. Insanity
The defendant must prove that at the time of committing the act ‘he was labouring under such a defect of reason, from disease of the 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’
The defence has to be established on the balance of probabilities
A defence to all crimes except for crimes of strict liability where no mental element is required

32. Disease of the mind A legal term, not a medical one
Any mental illnes which has manifested itself in violence and is prone to recur is a disease of the mind
The disease can be one which causes a transient or intermittent impairment of reason, memory or understandng
When the cause is external and not a disease, then this is not insanity (e.g. the effect of a drug)

33. Automatism
‘an act done by the muscles without any control of the mind, such as a spasm, a reflex action or 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’

34. Intoxication
Covers intoxication by alcohol, drugs or other substances such as glue-sniffing
Intoxication does not provide a defence as such, but is relevant to whether or not the defendant has the required mens rea for the offence
Whether the defendant is guilty or not depends on whether the offence charged is one of specific or basic intent and whether the intoxication was voluntary or involuntary

35. Duress
Duress is a defence because the defendant has been forced to commit the crime. The defendant had to choose between being killed or seriously injured or committing a crime. In such a situation there is no real choice
Duress can be either through a direct threat by another (duress by threats) or through external circumstances (duress of circumstances). Duress of circumstances overlaps with the defence of necessity
Duress can be used as defence to all crimes except murder, attempted murder and treason

36. Necessity
Implicitly recognized in some cases (Re A (Conjoined twins) 2000

37. Mistake
To be a defence a mistake must be a mistake about a fact, so that if the facts had been as the defendant believed them to be, it would mean:
Either there was no mens rea for the offence;
Or that the defendant would have been able to rely on another defence

38. Self-defence
Covers not only actions needed to defend oneself from an attack, but also actions taken to defend another or prevent crime
The defence can be a defence to any crime, including murder, as the defendant is justifying the use of force
The force used to defend oneself or another must be reasonable in the circumstances. If excessive force is used the defence will fail

39. Consent
Not strictly a defence, because where the other person consents there is no offence. This is particularly true of sexual offences.
For some statutory offences, Parliament has set down an age below which a person cannot consent

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

41. 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

42. 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

43. 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

44. 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)

45. Homicide = unlawful killing of a human being
Murder – intention to kill or cause grievious bodily harm
Mansloughter:
1)voluntary – mens rea for murder but has special defence: a)diminished responsibility, b) provocation, c) suicide pact;
2) involuntary – a)constructive, b) gross negligence, c) reckless
3) statutory offences: a) causing death by dangerous drivig; b) infanticide

46. Constructive manslaughter
The death must be caused by an unlawful act
Difficulties in deciding whether there is an unlawful act where the defendant prepares an injection of a drug but the victim injects himself

47. Gross negligence
The negligence is gross when it goes beyond a mere compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime deserving prosecution and punishment by the state
Where a defendant who owes the victim a duty of care does a lawful act or omission in a very negligent way, e.g. the duty of a doctor to his patient; the duty of care a lorry driver held to illegal immigrants he knew were in the back of his lorry and dependent on him to open the air vent

48. infanticide
Available to a woman who has killed her child, provided the child is under the age of twelve months

49. Causing or allowing the death of a child or vulnerable adult
The elements of the offence are that D:
Was aware that V was at significant risk of serious physical harm from a member of the household
D failed to take reasonable steps to prevent that person coming to harm
V subsequently died from the unlawful act of a member of the household in circumstances D foresaw or ought to have foreseen

50. Non-fatal offences against the person
Common assault
Assault occasioning actual bodily harm
Maliciously wounding or inflicting grievious bodily harm
Wounding or causing grievious bodily harm with intent

51. Common assault
Assault: psychic assault; the defendant causes another person to fear immediate personal violence; requires some act or words; an ommission is not enough
Battery: the defendant intentionally or recklessly applies unlawful force to another

52. Assault occasioning actual bodily harm
Offences against the Person Act 1861: ‘whosoever shall be convicted of any assault occasioning bodily harm shall be liable…to imprisonment for five years’.
The offence is triable either way
Actual bodily harm is ‘any hurt or injury calculated to interfere with the health or comfort’ of the victim

53. Malicious wounding/inflicting grievous bodily harm
‘whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without a weapon or instrument, shall be guilty of an offence’
The offence is triable either way and the maximum sentence is five years

54. Wounding or causing grievous bodily harm with intent
Indictable offence and the maximum sentence is life imprisonment

55. Racially aggravated assaults
The offender demonstrates towards the victim hostility based on the victim’s membership of a racial group
The maximum penalty is increased from six months to two years for common assault and from five years to seven years for assault causing actual and grievous bodily harm

56. Sexual offences
Rape
Sexual assaults: assault by penetration, sexual assault
Sexual offences on children
Offences involving family members
bigamy

57. Theft and related offences
‘a person is guilty of theft if he dishonestly appropriates property belonging to another with he intention of permanently depriving that other of it…
Robbery
Burglary
Taking a conveyance without consent
Handling stolen goods
Making off without payment
blackmail

58. Deception offences Deception Obtaining property by deception
Obtaining a money transfer by deception
Obtaining a pecuniary advantage by deception
Obtaining services by deception
Evasion of a liability
Fraud by false representation
Fraud by failing to disclose information
Fraud by abuse of position

59. Criminal damage
When a person without lawful excuse destroys or damages any property belonging to another intentionally or recklessly
Endangering life (aggravated offence of criminal damage)
Arson

60. Public order offences
Riot: 12 or more persons together use or threaten unlawful violence
Violent disorder: 3 or more persons use or threaten unlawful violence
Affray: a person is guilty of affray if he uses or threatens unlawful violence towards another
Fear or provocation of violence
Harassment offences: intentional harassment, alarm or distress
Racially aggravated offences

61. 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)

62. Criminal law and human rights
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’

63. 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)

64. Other Convention rights
The right not to be subjected to inhuman or degrading treatment or punishment (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)

65. 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.

66. 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

67. 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

68. 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.

69. 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

70. 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

71. 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

72. 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

73. 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

74. 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)

75. 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

76. 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

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

78. 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

79. 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.

80. 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 may appeal on a point of law of general public importance

81. 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’)

82. 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?

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

84. 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

85. 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_________________

86. 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

87. 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._______________

88. 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.

89. 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.

90. 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
Defence 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

91. 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.

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

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