Criminal law (intro to common law)

Standard

Criminal Law.
Criminal Law concerns breaches of the law that are regarded as so serious that the state is obliged to take action. This is different from civil law where individuals and organisations take action against each other. Criminal Law can end up with someone being sent to prison. Civil cases cannot end in a prison sentence.
Many courtroom dramas would make you think that most legal cases are criminal. That is not the case. These cases are more likely to be depicted on television because they are more dramatic.
Lawyers and judges who specialise in Criminal Law are called criminal lawyers and criminals judges. This does not imply that these lawyers and judges are criminals themselves!
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STATUTES
Various statutes govern criminal Law. The Offences against the Person Act (1861) is one of these. The Homicide Act is another of these. There are many other such acts such as the Sexual Offences Act, the Piracy Act, the Theft Act and so forth.
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Theft
What is theft? It is depriving another of his possession with the intention of permanently depriving him of it. That means that if you borrow something without permission that is not theft so long as the item is returned within a reasonable time. What is a reasonable period of time? A court will decide.
Note that Taking a car without the owner’s consent is not theft. This offence is abbreviated to TOC (taking without consent). It is a crime but this is tantamount to borrowing a car without permission.
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Criminal Damage.
Criminal damage is willfully or recklessly injuring the property of another.
Hugo McDonald threw a chair through the window of McDonald’s during a riot in 1999. He was convicted of criminal damage and awarded 6 month’s imprisonment. He was under 18 at the time of the offence so he was sent to Feltham Young Offenders’ Institute.
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Murder
Murder is deliberately killing another person without lawful excuse. A lawful excuse is justifiable homicide. If a man bursts into my house with a knife saying he is hellbent on killing me and I then hit him on the head with a bottle this would be justifiable homicide. I would be invoking a claim of self-defence.
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Manslaughter.
Manslaughter is accidentally killing a person where there is some culpability on the part of the person who killed the other. If I fire a gun into the air and the bullet comes down and kills someone that is manslaughter. I did not try to kill someone but I was very foolish in causing the risk that resulted in death.

Phillippa is driving her car safely within the speed limit. Quentin dashes out across the road without looking. Phillippa slams on the breaks but it is too late. Her car hits Quentin and kills him. Phillippa is not guilty of manslaughter and would probably not have charges laid against her. This is because she did not cause the death – Quentin caused his own death.
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Suicide.
Attempting suicide has not been a crime since the 60s. Encouraging or assisting suicide is a crime. Some people have sometimes helped their spouse commit suicide when the spouse is terminally ill and in grave pain. Sometimes these people have not been prosecuted. At least one person has been found guilty of murder for helping his wife kill herself when she was in agony.
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Rape.
This is penile penetration of any orifice without the consent of the person concerned. This includes rape of a man or a woman. A woman is not capable of raping a male. If someone is so drunk that he or she cannot meaningfully consent then intercourse with such a person is rape.
The definition of consent is exacting. Submission does not count as consent.
Someone engaged in intercourse is entitled to withdraw consent at any point. If a man continues to engage in intercourse after this point it is rape.
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Buglary.
This is breaking into any building to steal items. Even if the items are not actually stolen it is still burglary. Suppose Raj is caught once he breaks into a building and has not laid hands on any item he is still guilty of burglary if a court can be persuaded that Raj planned to steal items.
What is a building? It can be a house, an office, a factory, a hotel etc… How about a boat? Yes, this counts as a building. A tent is not a building.
Stealing things that are outside a building is a crime but is not burglary. Burglary is more heavily punished than theft especially if the burglary is of a house rather than a non residential building.
Going armed for buglary is also a crime. If Simone is caught at the back of a jewellery shop at 3 o clock in the morning in an all over black outfit and balaclava with a crow bar and a bar it might be believed that she has gone there with the intent to burgle the place.
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Assault.
There are several categories of assault. Common assault is very minor. It can be spitting at someone or even swearing at them. Assaults this trivial are very seldom prosecuted.
There is actual bodily harm. This is more serious and usually involves kicking and punching.
Then there is grievous bodily harm. This amounts to gross personal violence. This often involves the use of a knife or bar. However, it could occur without using any weapon.
Attempted murder is when the suspect is believe to have tried to kill another person without lawful excuse.
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MALICIOUS WOUNDING.
This is purposefully hurting someone’s body with a weapon. It can be a knife or a blunt instrument.
A man falsely claimed to be a doctor and gave injections. This was held to be malicious wounding.
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CO-ERCION.
Someone accused of a crime may claim that he has been forced to do it. This defence will only be effective if the person relying on it can persuade the court that he was in immediate danger of heavy violence. Courts expect people to show some courage and to stand up to threates rather than commit a crime.
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SEXUAL ASSAULT.
This is touching the genitals, buttocks or breast against the person’s will for a sexual purpose. Medical treatment, hygiene and childcare are all permissible reasons for such touching especially if permission is granted.
If someone bogusly claims to be a doctor and touches a person’s gentials under this pretence this is sexual assault.
Any contact with the erogenous zones of someone under 16 is automatically considered sexual abuse unless one of the lawful excuses applies such as medical care, childcare or hygiene. This is even so if the person under 16 agrees to the touching.
There is an lawful excuse of honest belief. If an adult has sexual contact with someone aged 13 to 16 and honesty believe this younger person to be over 16 at the time then the older person will be acquitted.
Someone aged 16 or 17 will usually not be prosecuted for sexual conduct with someone aged 13-16. This is a Romeo and Juliet law. If a boy aged 16 was sent to prison for kissing a girl aged 15 that would seem to be unduly harsh.
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Positions of trust.
An adult in position of trust is not allowed to have any sexual contact with someone in his charge who is under 18. A parent, stepfather, stepmother, teacher, doctor, nurse, dentist or police officer is not permitted to have any sexual contact with someone under 18 in their charge. This stepfather and stepmother situation does not just apply to married couples. A man or woman living in a relationship with the parent of a minor is considered to be a stepfather or stepmother.
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DRUGS.
Certain drugs are outlawed.
Some drugs are forbidden for anything other than medical use. This includes heroin and cocaine.
Possession of some of these drugs without a licence is a crime.
Supplying illegal drugs is also a crime. Even if the drugs are given for free that is still supply. If someone possesses more than a certain amount it is assumed that he or she had the drugs for the purpose of supply and not for personal usage.
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KIDNAPPING
This is taking someone against their will is kidnapping. This is whether a ransom is demanded or not.
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FALSE IMPRISONMENT
This is preventing someone having a reasonable way to leave a place. Locking someone in a room is false imprisonment.
If there is a way to leave the place where a person has been confined by this exit is dangerous then it is false imprisonment.

Lawful imprisonment is allowed.

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TERRORISM.

This crime is defined by the Terrorism Act. It states that terrorism is unlawful violence in any part of the world for the furtherance of any national, political, religious, political or other ideological cause. To engage in this is a crime. This includes acts of violence for the advancement of such a cause, furnishing financial support, providing arms, providing intelligence, providing logistics and inciting others to do any of the same.

Note that violent crime that has no ideological basis is illegal but is not terrorism.

Terrorists often set off bombs. If a bomb goes off an kills someone that is murder even if a warning was given. Moreover, there is a crime of conspiracy to cause an explosion with intent to endanger life. Terrorists often said they did not wish to kill anyone with their bombs which is why they informed the authorities that a bomb was in a certain location and due to explode at a particular time. However, such warning were often inadequate, garbled and deliberately misleading. Nevertheless the defence could argue that the terrorists did not try to kill anyone. Therefore the offence was changed to ”with intent to endanger life.” Note that is not an intent to kill. By setting off a bomb in a town and issuing a warning there was nonetheless an indisputable wish to put life at risk. Otherwise there would be no need for a warning.

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THE CRIMINAL PROCESS.
Terence is arrested on suspicion of theft. The police take him to a police station. He is fingerprinted and a DNA sample. A duty sergeant is responsible for his custody. Terence is checked to see he is healthy. The polie must make sure he does not die or come to serious harm in their custody. The police can hold Terence for up to 24 hours. After that they must either charge him with a crime or release him. Even if they do charge him with a crime they will probably release him within 24 hours because the crime is not very serious and he can await trial at home. His wallet and mobile phone are taken away.
The police want to question Terence. A solicitor is provided for him while the police question him. If it is late at night a solicitor might not be available. In that case the police can say to Terence they will hold him overnight and question him in the morning when a solicitor is available. Terence is told that he can be questioned right now and released after the interview if he agrees to be interviewed without a solicitor.
Terence is keen to get home. He waives his right to have a solicitor there while he is questioned. He signs a waiver form.
The police question him. The interview is sound recorded so that there can be no dispute what was said. The interview is not always filmed. The police do not shout or act menacingly. The police are not even allowed to stand up in case that is intimidating. The verify with him that he is fit and well to be interviewed. If at any point he feels sick he can end the interview until he feels able to continue.
Terence refuses to answer some questions. He simply says ”no comment”. He answers other questions. He is not obliged to say anything. However, his failure to answer some questions can undermine his defence later. He refuses to say where he was at the time of the alleged offence. The police tell him they have an eyewitness who say him commit the theft. This is a lie. The police are allowed to lie to suspects. The police tell Terence they know he did it and he should help himself by confessing..
Terence denies the crime. The police feel they have sufficent evidence despite his denials. The charge him with the crime of theft in relation to a television stolen from a van. After the interview he is released on police bail.
The police send a file of evidence to the Crown Prosecution Service (CPS).
The CPS look at the file. They could choose not to prosecute if they do not believe it is in the public interest to pursue the case. They also have to ask if there is a reasonable prospect of securing a conviction.
The CPS decide to prosecute Terence. He is contacted and told a trial date.
Terence is advised to contact a solicitor. Terence gets legal aid. He meets a criminal defence solicitor from a company specialising in this sort of work. Terence does not have to pay a penny for his defence. The solicitor is called Usha. Usha informs him that he must tell her the truth. If he tells Usha that he committed the crime then she will not lie for him. She will not defend him on the basis that he did not do it. That would be unethical and she could be kicked out of her profession for doing that. If he informs Usha that he did commit the theft then she will defend him on the basis that it was a mistake, he is very sorry for it, he was financially desperate, it was a first time offence, no real harm was done, he will return the item and he had a difficult childhood.
Terence maintains his innocence. Usha does not believe him but she is entitled to defend him by saying that he is innocent because he said he is. She is allowed to do this. It is up to the court not up to the solicitor to judge his guilt.
Terence is told not to go abroad before his trial. The police tell him this.
Terence shows up at court on the day appointed. It is a magistrate’s court. Three lay magistrates are hearing the case. These three people are respectable local citizens who are not solicitors or barristers themselves. They are educated people without a criminal record. The work as magistrates part time on top of their normal jobs and they do this without being paid at all. One of the magistrates is a teacher, another is a dentist and another is a pilot. In fact they could belong to any profession but these three professions would be typical of stipendary magistrates. These magistrates put the letters JP (Justice of the Peace) behind their names.
Terence is asked to plead guilty or not guilty. He pleads not guilty.
There is a brief trial. The officer who arrested Terence testifies. This policeman swears on the Bible to to tell the truth, the whole truth and nothing but the truth. There can be no casuistry. He is not allowed to tell a half truth. He must not keep quiet about anything that might be relevant to the case.
The prosecution question the police officer. The defence solicitor is then allowed to question the same officer. However, Usha does not manage to shake his testimony.
Then an eyewitness is questioned by both sides. Before this woman is cross examined she swears to tell the truth. She is a Muslim so she chooses to swear on the Koran.
The police show some CCTV footage. The prosecution solicitor reads out some of the interview testimony that Terence gave to the police. There is also some fingerprint evidence.
Terence chooses not to speak in his own defence.
The trial only takes a couple of hours. The magistrates briefly go into another room to discuss the case. After a few minutes they come back into the court room. They announce that they all agree that Terence is guilty. All three of them must agree that he is guilty if the verdict is to be guilt.
They then announce the sentence. Terence is sentenced to 12 weeks in prison. Court officers take him down immediately and handcuff him. He is soon taken to prison. If he had pleaded guilty then he would have been found guilty immediately. He would have had a one third reduction in his sentence if he had pleaded guilty – as in he would have been awarded an 8 week sentence and not a 12 week sentence.
He has the chance to appeal but decides not to. That would simply delay things.
He only serves 3 weeks of his 12 week sentence. This is typical in the case of very short sentences – people are usually released very early when the sentence is brief.
Terence has a criminal record. He works as a builder so this sentence is not an obstacle to finding work. Some jobs would ask for a basic disclosure of a criminal record. His sentence would show up. However, after a few years a basic disclosure would not show this conviction because it is minor and he conviction would be shown to be spent. The aim of this is to allow criminals to reform and put their past behind them. If Terence ever applies to work with children or in the financial sector he will have to provide an enhanced disclosure. In that case the conviction will always show up. It is never wiped. Terence will not be able to become a solicitor or barrister. He will find it almost impossible to get a job in the financial sector.
Terence can appeal at any point in his life. If a court finds the conviction was unsafe it will be overturned. In that case his criminal record will be wiped.
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A CASE STUDY. TERRORISM.
Violet and Will are arrested on suspicion of conspiracy to cause an explosion. The police go through the normal procedures in the police station. Violent and Will are immediately separated and not allowed to communicate. Their personal effects are confiscated.
Solicitors are brought. The two suspects are questioned separately.
The solicitors advise their clients not to admit anything unless they absolutely have to.
The police question the two for a few days. They are able to hold them for up to 28 days because the arrest was under the Terrorism Act.
The police tell Will that Violet has cracked under questioning and told them everything. They also tell him they found his fingerprints on some explosives In fact these statements are false. The solicitor advises Will not to answer further questions. Will goes against the solicitor’s advice.
Will then panics and confesses that he planned to set off a bomb.
Violet refuses to co operate.
The police charge both with the crime. Will then tells the solicitor that he committed the crime but has changed his mind and wants to withdraw his confession. The solicitor says that as Will has told her that he did the crime she will not defend him by claiming that Will is innocent. She willing to defend him by pleading mitigation – that he is remorseful and did it when he was furious and that he is otherwise a good person. But she refuses to lie for him. If he wants to commit perjury in court the solicitor will resign from the case. In that case Will shall be given a different solicitor whom he has not asked to lie for him. Will changes his mind again and decides to stick to his confession.
They are kept in. There is a bail hearing next day. The police oppose bail. This is because the crime the two are charged with is very heinous. There is a flight risk. Moreover, Will is previously known to police. He has a conviction for supplying drugs.
The two are remanded in custody. This means they await the trial in prison. As they are remand prisoners they are allowed to wear their own clothes.
The trial begins after a month. Violet pleads not guilty. Will pleads guilty. The trial takes a further month. There is a jury because this is in the Crown Court.

Violet is found not guilty and set free. Will is found guilty. In view of his early guilty plea he is sentenced to only 10 years in prison.
He then asks for leave to appeal. The leave (permission) is given. He appeals on the basis of the facts – he says that the information presented to the court was wrong. A new judge hears the case – as in she was not the judge at the original trial. She decides that the appeal is false and upholds the appeal.
A few years after Will appeals again. He says the judge at his original trial erred in law. Another judge hears this appeal. The appeal is ongoing when the Will comes up for parole. He decides to end his appeal. If he wants to get out on parole there must be no outstanding appeals. He then goes before a parole board. He convinces then he is truly sorry for his crime.
They give him day release. He is allowed out of prison for 12 hours for his sister’s wedding. Next month is grandmother dies. They let him out for 12 hours for the funeral.
Two months later they allow him to start working on a farm 6 hours a day outside the prison. This carries on for a year. Then they allow him out for a weekend. Next month he gets another weekend out. Next month he gets a week out of prison. He always returns on time. He is being prepared for freedom.
He is released on licence after 6 years. His leg is tagged. He has to report to a probation officer weekly. He lives in a half way house If the police suspect he is doing anything wrong they can return him to prison to serve the rest of his sentence.
AFter a year his probation is ended. He is free.
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MILITARY LAW.
The armed forces have their own system of justice. This is outside the scope of this course.
Serving members of the military are usually dealt with by the military’s own judicial system unless the offence is very heinous such as murder.
Soldiers who go away for the weekend and get drunk and into a fight will be arrested by the police. The police will usually hand these soldiers over to the Royal Military Police (RMP) who will take the suspect back to his or her unit. The military may prosecute these people according to their own procedures. The military has its own prison at Colchester.
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ABSOLUTE DISCHARGE.
Very rarely a court can grant someone an absolute discharge. This means that the charges are set aside.
If Xenophon finds someone old ammunition in the forest he might pick it up and decide to bring it to the police station to hand it in. Xenophon is stopped on the way and searched. He is arrested when the bullets are found. He is charged with unlawful possession of ammunition. He would then probably be given an absolute discharge by a court.

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THE CROWN PROSECUTION SERVICE (CPS).

The CPS handles prosecutions. The CPS has to examine whether there is a good chance of someone being found guilty. It would be a waste of time and money to proceed to court if there was little prospect of securing a conviction. The CPS asks – is it in the public interest to prosecute? The CPS can decided to issue a  nolle prosequi  order (do not prosecute).

Sometimes charges are ordered to lie on file. This means that the person is not prosecuted in relation to the charges but neither are they dropped. The CPS can revive these charges at a later date if new evidence comes to light and the CPS judges that there is a good chance of a conviction.

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PRIVATE PROSECUTION.

If the CPS chooses not to prosecute then people can take out a private prosecution which they fund themselves. These are very unusual. The CPS can nevertheless intervene and stop the prosecution.

In the Stephen Lawrence case the murder suspects were first of all prosecuted by the Lawrence family when the CPS decided there was insufficient evidence to warrant a prosecution. The Lawrences were warned not to go ahead with the prosecution because it would likely end in a not guilty verdict as indeed it did.

 

 

 

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About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

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