The civil and criminal legal systems are wholly separate – there are different enforcement agencies, differing court structure, different procedures and different penalties. There is an instant question here – why do we distinguish? With crime, the state directly seeks to control particular forms of behaviour whereas in civil wrongs, it simply provides a mechanism for redress for the private individual. If you steal, you face the collective wrath of society whereas if you break a contract, it is seen as a private affair?
A further philosophical question is why we punish and harm people when they have breached criminal law rather than force them to make compensation of some kind? We return to these questions later. Sources of criminal law and key characteristics When can the state intervene? The whole idea of the criminal law rests on the idea of criminal offences – people cannot be arrested, charged, prosecuted or punished without legal authority. What gives this legal authority and defines an offence? This is straightforward – an offence must either be created by statute or by the operation of the doctrine of precedent in case law.
Offences exist: 1. created by Parliament as Acts of Parliament (also known as statutes or legislation) 2. created by the courts (also known as common law offences) – the House of Lords as the highest court has essentially eschewed the creation of new offences (Withers) but consider R v R (1992) 1 AC 599 above and indeed their role in the interpretation of statutes Although the majority of offences are statutory, a number of significant ones are still common law offences, including murder and manslaughter.
The core definition is still to be found in the common law itself although sometimes these common law crimes have been affected by statutory amendment – for example, the Homicide Act 1957 introduced various defences to murder. The Act of Parliament or the appellate decision will give us the basic elements of an offence, which the prosecution must prove to obtain a conviction. Without such specific legal authority, the police cannot proceed. This is the basic principle of legality for criminal lawyers – the Latin tag is nulla poena sine lege.
This principle is to fetter the power of public officials – if certain formal steps to create law must be followed, officials cannot exercise arbitrary powers. Such powers are the hallmarks of totalitarian societies where immense control is placed in the hands of state officials over what constitutes crime as well as over the manner of enforcement. An example would be the Nazi legislation that proscribed 'anything which is deserving of punishment according to the fundamental idea of a penal law AND the sound perception of the people'.
Ashworth stresses that there are central characteristics of this principle, in particular the principles of non-retroactivity, maximum certainty and strict construction: 1. Article 7 of the European Convention, which states that nobody shall be found guilty of a crime, which was not an offence under national law at the time when it was committed. Statutes were unlikely to be expressed retrospectively and Article 7 now reinforces this. This has been more of a problem for the English common law, because of its reliance on judicial interpretation and law-making, necessarily involves amendments to the law which infringe the principle of legality.
It is shown at its worst in Shaw (1962) AC 220 where the accused published a reference book to London prostitutes, only to be convicted of a conspiracy to corrupt public morals. In Shaw Lord Simonds said: … I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for.
Although the courts now disclaim their lawmaking role, this re-emerged as recently as 1992 in R v R (1992) 1 AC 599 where the defendant was convicted of raping his wife. The House of Lords upheld the conviction despite the centuries-old rule that the marriage vow implied consent to sex and thus a husband was not capable of raping a wife. This can be seen as creating a new offence or at the very least as denying the defendant the benefit of a defence that had existed for centuries. 2.
The idea of certainty itself reflects the principle of non-retroactivity but it also means that penal laws should be accessible and specific, with only the minimum necessary scope for discretion. General terms such as 'reasonableness' and 'dishonesty' are difficult to avoid. There are certain offences, such as conspiracy to defraud, which are so inherently vague that the outer limits are barely discernible. There is a principle of statutory interpretation that requires penal statutes to be interpreted narrowly and in favour of the liberty of the defendant.
This principle is rarely mentioned, let alone invoked by the appeal courts. One example would be the extension of the law of theft by the House of Lords in Gomez  1 All E R 1, an obvious case of obtaining property by deception contrary to section 15 of the Theft Act 1968 but which had been charged as theft. Their Lordships chose the broader of the possible interpretations of the term 'appropriation' under section 3 of that Act, reducing the offence to one where the key element of the offence is the 'dishonesty' of the accused and obliterating any sensible distinction between theft and deception.
Although the accused was patently dishonest in this case and to that extent deserved to be convicted, there is a further principle that offences should be properly demarcated and labelled and that people are entitled to rely on this. Offences The existence of an offence at either common law or under statute: 1. empowers the police to exercise their powers of investigation, arrest, detention against those suspected of committing such offences 2. empowers the Crown Prosecution Service to launch a prosecution against the suspect (soon to be known as the defendant) 3. authorises the court to try the accused according to the procedural laws
Defines the elements of the offence for the trial court – each and every element must be proved to have occurred or to exist. This may be: a. conduct such as taking another's property or stabbing them b. circumstances – the property must 'belong to another' or in burglary, you must 'enter as a trespasser' c. consequences – the conduct itself may not be criminal unless certain consequences flow from it d. a mental state of the accused – who must intend to commit the crime or know about circumstances a-c are physical elements of an offence and are often called the ACTUS REUS whereas d is the mental state, known as MENS REA.
It is for the state/prosecution to prove that all these elements exist, that the accused is guilty – Woolmington 1932 – and they must do so beyond reasonable doubt 5. authorises the court to impose punishment where the accused is convicted Without an offence, the state is relatively powerless: 1. you cannot be arrested or detained – you have freedom of movement 2. you cannot be tried for being hostile to the government, to the local political party or being a nasty person – there must be an allegation of an offence known to law
More technically, if the police/CPS arrest a person but charge the wrong offence, this can lead to acquittal The criminal justice system Crime is conduct prosecuted by the state, which results in a court punishing the individual. This requires a vast network of criminal justice agencies, following complex procedures at no little cost to the public: the involvement of the state suggests that there has to be a definable public interest as criminal justice should not be a way of pursuing purely private affairs.
But even where there is a discernible public interest, penal approaches should be kept to a minimum if that interest can be protected by other means. The criminal trial is the tip of an iceberg of the criminal justice system – this is an enormous industry, encompassing not only hundreds of thousands of people employed in the formal and public agencies (police, lawyers, judges, court personnel, prison officers, probation officers, civil servants and local government officers) but also informally in the private sector (private security firms, crime prevention industries, psychologists, criminologists).
1. police (also customs and excise, British Transport Police etc) 2. prosecution: Crown Prosecution Service 3. defence lawyers and the Criminal Defence Service 4. courts – magistrates and Crown Courts as well as an appeal system 5. court personnel such as magistrates clerks 6. victim support agencies 7. correctional agencies a. probation b. prison service 8. youth justice system with Youth Offending Teams in all areas 9. Criminal Cases Review Commission.
Thus we need to consider briefly the context in which the criminal law operates. Investigation The mobilisation of the criminal law starts on the streets – we all have a general conception of what is criminal, whether it is the burglary, the theft, assault, drunken rowdy behaviour or a speeding or drunken motorist. We look to the police to act but action is normally initiated by members of the public who complain to the police – many fewer actions are the result of the police's own observation or initiative.
Thus what is dealt with by the criminal justice system is the product of the public's own decisions. Thus one starting point is who are the police? In medieval common law, there was an office, held directly under the Crown, called a constable whose duty was to enforce the law. This office has evolved into the modern police service with approximately 125,000 officers, regulated by statute (their organisation by the Police Act 1996 and their powers by the Police and Criminal Evidence Act 1984).
Their organisation merits a brief comment – constitutionally they are dissimilar to other public services which are organised under a minister directly responsible to Parliament. The police is divided into 43 regional forces in England and Wales under a chief constable who has operational control of the force, independent of local and national government (though subject to considerable interference by the Home Office through particular mechanisms, not least budgetary controls).