English Criminal Law Sources Paper Example

Sometimes referred to as Penal Law, is a body of statutory and common law that deals with crime and the legal punishment thereof. It is concerned with punishment, deterrence, incapacitation and rehabilitation. There are various sources of criminal law with the most important arguably being Common Law. This is based on custom and tradition as interpreted by judges. It encompasses judge made laws as well as legislation. New statutes have been part of the common law since very early on when legislatures became interested in defining crimes (Singer & La Fond, 2007).

Previously, common law was solely judge made laws with this custom originating from England where certain felonies e. g. mayhem, homicide and rape had long been identified as offences. These classifications were referred to as common law as they were jointly shared. Written Law provides yet another source of Criminal Law and this is broader in scope. It includes constitutions, statutes, court decisions/case law and administrative regulations. Constitutions contain bill of rights which are basic principles and procedural safeguards.

They have a direct bearing on criminal law as they guarantee the right to a fair trial, jury trial, representation by counsel etc. Statutes on the other hand, are laws that are passed by legislative bodies such as Congress and they can be substantive or procedural in nature. A state’s penal code gives a true definition of the crime as covered by the code. Certain crimes e. g. drug possession can be dealt with by the National, state or local rules and it is up to law enforcement to decide which is applicable.

Administrative regulations can be made by Federal, state or local authorities and they deal with concerns such as health, safety and the environment etc. They are a source of criminal law as they offer many of the rules with violations being processed through the criminal justice system (Cole & Smith, 2006). Court cases provide the last source of criminal law as they basically look to the decisions made by judges earlier and which serve as a guide to future rulings. The purpose of criminal law is mainly to prevent behavior which is deemed by society to be undesirable.

As stated in the introduction, this can be two fold in that there is specific and general deterrence. The former is about punishing someone who has already committed a crime and preventing him/her from doing it in the future. The latter aims at educating the general public since on seeing someone being punished, other intent on doing the same would have to think twice about it. Incapacitation prevents criminal conduct as opposed to deterring it as it prevents criminals from coming in to contact with the public thereby decreasing chances of harm.

Rehabilitation ensures that the criminal comes out of prison with training to enable them conform to societal norms. Lastly, retribution can also be said to be a purpose of criminal law. Simply put, the society is avenging a wrong and the case for this is as old as the Bible where an ‘eye for an eye’ is spoken of (Hall, 2008). Jurisdiction is defined as legal power which refers to the rights and powers of law professionals to interpret and then apply the law. It can also allude to a territory or area within which these legal powers and rights can be exercised.

Jurisdiction questions could concern geographical boundaries, a significant characteristic of the case, subject matter or some characteristic of the parties involved e. g. where the crime was committed may determine what court has jurisdiction to hear it. Courts are involved in enforcing criminal law and they operate within four main divisions of jurisdiction i. e. original, appellate, exclusive and concurrent. A court of original jurisdiction refers to the first court that has authority to hear a case and decide on it. Appellate jurisdiction refers to the power to review decisions of a lower court.

Exclusive jurisdiction infers courts that have statutory authority to only hear certain cases whilst Concurrent jurisdiction means that two or more courts have authority to hear and rule on a matter (Regoli & Hewitt, 2007). According to Gillespie (2007), the Adversarial system is the hallmark of the English Legal system. It is mainly seen as a contest between two or more sides with a neutral umpire who can either be a judge, jury or a combination of both. In this system, both parties gather their own evidence and call upon witnesses who in turn can be cross-examined by the other party.

Orality is important here as providing oral evidence is the best way to ascertain the facts. Standard of Proof on the other hand, refers collectively to the amount of evidence that a prosecuting attorney in a criminal case must present before the court in order to win a trial. It differs from case to case and the burden of proof lies with the prosecution. Imposing a high standard of proof is fundamental to ensure that a guilty individual is not allowed to slip through the wheels of justice. Common standards here include the prosecutor proving beyond reasonable doubt that the defendant committed the crime with which they are charged.

Clear and convincing evidence should then be adduced and should have few chances of rebuttal. A preponderance of evidence is also important as it generally denotes that a party will win if they can show that their contention is more likely true. Criminal liability involves the breaking of a criminal law by an accused person who must have been intent on committing the act or committed it recklessly. The accused must be at an age of criminal responsibility and know what they did to be wrong. The basic principles underlying the prosecution of a crime include mens rea and actus reus.

This essentially means the defendant’s state of mind when committing the offence and the offence itself. Accomplice liability, commonly referred to as aiding and abetting, carries with it an expansive extension of liability principles as a net of additional liability is created (Delaney, 2004). It includes all those with the requisite mens rea to aid others in committing crime e. g. the ‘lookout’ who keeps watch as others steal or the driver of the getaway car who drives them from the crime scene. Those who aid in crime are as culpable as the main culprits.

Accomplice liability unlike criminal liability is not a separate crime on its own but a doctrine that attributes liability for the crime of another to those who have aided it. Inchoate offences are described as such because the substantive offences are not completed. Here, criminal liability for culpable conduct is recognized besides the fault that lies between innocent behavior and successful completion of a substantive offence (Roach, Healy & Gary Trotter, 2004). A person who tries to commit a criminal offence but is unsuccessful can nevertheless be found guilty of that attempt e.

g. intent to commit murder and committing the actual crime. This can happen if anyone having intent of committing an offence does so, whether or not it was possible under the circumstances to commit the offence. It can also be a question of law i. e. is preparation to commit the murder the same as attempt to commit it. References Cole, G. F. , & Smith, C. E. (2006). The American System of Criminal Justice. California, USA: Cengage Learning. Delaney, J. (2004). Learning Criminal; Law as advocacy argument: complete with exam problem and answers. New York, USA: John Delaney Publications.

Gillespie, A. A. (2007). The English Legal System. New York, USA: Oxford University Press. Hall, D. E. (2008). Criminal Law and Procedure. New York, USA: Cengage Learning. Regoli, R. M. , & Hewitt, J. D. (2007). Exploring Criminal Justice. Massachusetts, USA: Jones & Bartlett Learning. Roach, K. , Healy, P. , & Gary Trotter. (2004). Criminal Law and Procedure: cases and materials. Montgomery, Canada: Edmond Montgomery Publications. Singer, R. G. , & La Fond, J. Q. (2007). Criminal Law: examples and explanations. New York, USA: Aspen Publishers Online.