(p. 1) 1. Introduction to criminal law
By the end of this chapter, you should be able to:
● distinguish between criminal law and other areas;
● understand the nature and function of the criminal law;
● explain the criminal process;
● outline the hierarchy of the criminal courts;
● understand the burden and standard of proof; and
● identify the actus reus and mens rea of a criminal offence.
Criminal law is a subject which affects us all. Consider for a moment whether you have ever committed a criminal offence. Have you ever exceeded the speed limit whilst driving? Used your mobile phone while waiting in a traffic jam? Jumped a red light? Eaten loose cherries or grapes whilst shopping in a supermarket and before paying for them? Noticed that you’ve been given too much change in a shop or been overpaid by your employers, but said nothing? ‘Borrowed’ a friend’s CD without returning it? Been in possession of cannabis? Drawn graffiti on property belonging to another person? Given somebody an unwanted kiss? Touched somebody when they did not want you to? Each of these might amount to a criminal offence and carry a sanction. The vast majority of people have, at some stage in their lives, been a victim of a crime, witnessed a criminal offence, or committed one (quite possibly without being caught and prosecuted). Indeed, many people are able to claim experience from all three perspectives. The scope of criminal law is vast, encompassing an enormous range of offences. This book focuses on the criminal offences commonly covered on criminal law modules, including murder and manslaughter (chapters 5 and 6); non-fatal offences against the person and sexual offences (chapters 7 and 8); property offences such as theft, fraud, and burglary (chapters 9 to 11); and drugs offences (chapter 12). The general principles of criminal law are also covered, including the elements of an offence (chapters 1 to 3); general defences (chapters 13 and 14); and principles of liability, including inchoate and accessorial liability (chapters 4, 15, and 16).
(p. 2) 1.1 Crime statistics
The Office for National Statistics publishes a statistical bulletin on crime in England and Wales. The bulletin provides statistics from the annual Crime Survey for England and Wales (CSEW, formerly known as the British Crime Survey) as well as statistics on police reported crime. The statistics from the Crime Survey for England and Wales for the year ending March 2018 show ‘no significant change’ in overall levels of crime compared to the previous year’s survey. While the CSEW showed no change in the level of lower-harm violent offences, police recorded crime showed that there was a 6 per cent increase in the number of police recorded offences involving knives or sharp instruments, a 6 per cent increase in the number of homicides, and a 2 per cent decrease in the number of police recorded offences involving firearms. The CSEW estimated an increase of 8 per cent in overall theft offences, a 12 per cent increase in fraud offences, and a 28 per cent decrease in computer misuse. However, the accuracy of any official statistical analysis can always be questioned. The extent of the Crime Survey for England and Wales is limited in the sense that it only covers crimes against those aged ten and above who are resident in households (as such, it does not cover crimes committed against businesses and other organisations, homeless people, and visitors from abroad). The statistics of police recorded crime only present data from crimes which have actually been reported to the police. It is difficult to conduct an accurate and comprehensive analysis of all crimes.
1.2 What is criminal law about?
Criminal law is a fascinating subject which students find highly enjoyable. During your criminal law module, you will come across cases which you will remember for years; ask any lawyer or law graduate about Brown  1 AC 212 or Collins  QB 100, and you will probably be regaled with the glorious facts of these cases. There exists a very wide range of criminal offences, which has increased substantially in recent years. Examples range from the obvious offences against property, such as theft and burglary; and offences against the person, such as murder, rape, and assault; to drug offences, road traffic offences, pollution offences, offences against the administration of justice, offences against public order, and offences against public morals. On your criminal law module you will be introduced to only a fraction of these. Nevertheless, you will explore the law relating to some of the most serious and/or common criminal offences, including murder, manslaughter, non-fatal offences against the person, and theft. In addition to these offences, you will explore a range of both specific and general defences, such as loss of control, self-defence, duress, and automatism. You will also encounter a number of key concepts and fundamental principles of criminal liability, for example actus reus and mens rea, the doctrine of transferred malice, liability for inchoate offences, and accessorial liability.
(p. 3) 1.3 Criminalisation
What constitutes criminal behaviour varies from country to country and from era to era. For example, homosexuality is a criminal offence in Saudi Arabia, although it is not in England and Wales. Similarly, behaviour which historically amounted to a criminal offence may not amount to a crime today. For example, suicide constituted a criminal offence in England and Wales up until 1961, when the offence was abolished by the Suicide Act 1961. Rape of a woman by her husband was once not deemed to be an offence, but the House of Lords recognised this conduct to be a criminal offence in the case of R v R (Rape: Marital Exemption)  1 AC 599.
Section 76 of the Serious Crime Act 2015 created a new offence of controlling or coercive behaviour in an intimate or family relationship. Why do you think this has been criminalised? Why has this only been criminalised in recent years?
Section 1 of the Voyeurism (Offences) Act 2019 inserted s.67A into the Sexual Offences Act 2003, changing the law on voyeurism to include conduct such as taking photographs up a person’s skirt (known as ‘upskirting’). Identify the rationale for criminalising this type of conduct. Why do you think this has only just become an offence?
So, how is a crime defined? Although we are able to provide many examples of criminal offences, defining what constitutes criminal conduct is a difficult task. In Principles of Criminal Law, Professor Ashworth stated:
There are certain serious wrongs which are criminal in most jurisdictions, but in general there is no straightforward moral or social test of whether conduct is criminal. The most reliable test is the formal one: is the conduct prohibited, on pain of conviction and sentence? (7th edn, p.5)
A crime is conduct which the law deems to be criminal under statute (an Act of Parliament) or common law (case law). Such conduct is prohibited because it involves the threatening or causing of harm to individuals or to public interests. Conduct may be deemed to be criminal due to moral and/or social reasons. Although a crime may be committed against a specific individual, a crime is classed as a public wrong as it affects the public at large by making society feel less secure and safe from harm.
1.3.1 The harm principle
The question of whether conduct constitutes a criminal offence is usually relatively easy to determine; criminal offences are prescribed by statute or common law and, in theory, the law should be clear and accessible in accordance with the rule of law. However, the question of whether conduct should constitute a criminal offence is often more difficult to determine. The rationale for criminalising offences such as murder, manslaughter, and offences against the person is straightforward; these are crimes because of the harm that is caused to others. State interference with the liberty of an individual can be justified on the basis that it is necessary to prevent harm to others in society. The harm principle was espoused by John Stuart Mill in 1859 in his book, On Liberty: ‘the only purpose for which power can be rightfully exercised over any (p. 4) member of a civilized community, against his will, is to prevent harm to others’ (Mill 2008: 14). This principle is often relatively straightforward to apply because it relies on an objective standard of whether harm is caused to others. However, it is not sufficient on its own as a barometer of whether conduct should be criminalised as it does not justify the criminalisation of conduct which does not cause harm, such as attempted offences or regulatory offences.
It is useful to consider the scope of the term ‘harm’; for instance, a narrow interpretation of harm which is based solely on physical harm would fail to justify the criminalisation of offences such as hate speech and harassment. Criminal law needs to strike a balance between protecting the autonomy/freedom of individuals and social welfare (Wilson 2002: 20). Thus, the harm principle formed the basis of the ‘offence principle’ put forward by Joel Feinberg in 1987. This principle looks more broadly at the criminalisation of conduct that causes offence to others. Feinberg argues that the prevention of shock, disgust, or revulsion justifies the criminalisation of certain conduct. This principle might be used as the rationale for criminalising hate speech, harassment, and some social media offences.
1.3.2 Enforcing morality
Lord Devlin famously argued that morality should play a part in the criminalisation of conduct, such that conduct which was deemed by the reasonable man to be morally wrong should be criminalised in order to prevent the breakdown of society, irrespective of whether that conduct actually caused harm to others (Devlin 1965). This view was opposed by Hart (1968 and 1965).
Consider the offence of possession of cannabis with intent to supply. What harm is caused as a result of this offence? Does the offence affect only one or two individuals or society as a whole?
Imagine that your room in the university halls of residence is burgled. How do you think this offence might affect the public at large?
1.4 Distinguishing criminal law, the law of tort, and contract law
Criminal law can be distinguished from other areas of law such as the law of tort and contract law. However, there are areas in which these subjects overlap. Criminal law is a branch of public law in that it affects society at large. By contrast, the law of tort and contract law are branches of private law in that they affect individuals. Different terminology is used in criminal proceedings to that which is used in civil proceedings. For example, in criminal proceedings, a prosecution is brought by the State (the Crown), whereas in tort and contract an individual sues another individual or a body. In criminal law, the State prosecutes a defendant, whereas in tort and contract an individual sues another person. Criminal law is concerned with the prosecution (p. 5) of individuals whose behaviour or conduct has not met the standards of acceptable behaviour expected of citizens. These individuals have committed a public wrong. The law of tort and contract law govern the law relating to private wrongs.
In criminal proceedings, a verdict is delivered at the end of the trial, according to which the defendant will usually either be found guilty or not guilty. Criminal law is concerned with the punishment of offenders and a defendant who has been found guilty (convicted) of a criminal offence will be sentenced. Sentences range from terms of imprisonment to community sentences, such as community punishment orders and community rehabilitation orders, and fines. A defendant who is found not guilty is acquitted. By contrast, at the conclusion of a civil trial, there will be a finding that the defendant was either liable or not liable. Civil law is concerned with compensating the wronged individual through the payment of damages.
1.5 The function of criminal law
The criminal law has a number of functions:
• The law sets standards of behaviour which citizens must meet and these standards reflect the values of society (such as morality or religion).
• Criminal law prohibits conduct which threatens or causes harm to individuals or to the wider public.
• The criminal justice system is punitive, punishing defendants for criminal conduct.
• Another argument often put forward in favour of criminalising certain conduct is that of deterrence. It is argued that if certain behaviour is deemed to be criminal, then members of society will refrain from such conduct. By punishing offenders, the criminal justice system seeks to encourage other members of society to comply with the law.
1.6 Sources of criminal law
1.6.1 Statute and common law
Whilst studying criminal law, you will meet two main sources of law: statute and common law. Some criminal offences have been created over the years by case law. These offences are called common law offences. Murder is a common law offence, as is manslaughter. These offences have been defined by judges in previous cases and the current definitions of these offences are still to be found in case law. Other offences are set down in statute (Acts of Parliament); these offences are called statutory offences. Examples include: theft, which is charged contrary to s.1 of the Theft Act 1968; rape, which is charged contrary to s.1 of the Sexual Offences Act 2003; and wounding or causing grievous bodily harm with intent, which is charged contrary to s.18 of the Offences Against the Person Act 1861. The definitions of these offences are found in statute, although the elements of such offences may be further defined by case law. Occasionally, offences are charged contrary to statute, but the definition of the offence is found in common law. Examples include assault and battery, which are charged contrary to s.39 of the Criminal Justice Act 1988, but are defined in the case of Fagan v Metropolitan Police Commissioner  1 QB 439.
(p. 6) 1.6.2 A Criminal Code?
Some countries have a Criminal Code, which is a comprehensive document setting out the definitions for all criminal offences and defences. For many years, the Law Commission has given consideration to the adoption of such a Criminal Code in England and Wales, and in 1989, the Commission proposed a Draft Criminal Code. However, the Government has yet to adopt any such Code.
The advantage of having a Criminal Code is that the law would be much more readily accessible; in addition, there would be clear definitions for all offences and defences, avoiding the ambiguity which sometimes arises under the common law. One major disadvantage with a Criminal Code is its inflexibility. A key advantage of the common law is that it changes as attitudes in society do. As seen in 1.3, it was the common law which in 1991 confirmed rape by a husband of his wife to be a criminal offence. At present, such changes can be made relatively quickly as the judiciary can define or clarify key elements of our criminal offences. A Criminal Code would be less flexible as such alterations to the law would have to go through a lengthy administrative procedure before taking effect.
1.7 The classification of offences
Offences are often classified by their seriousness. There are three categories of offences:
• indictable only offences;
• either way offences;
• summary only offences.
Indictable only offences are the most serious offences and include murder, manslaughter, rape, robbery, and wounding or causing grievous bodily harm with intent. These offences carry high penalties upon conviction, sometimes with a maximum sentence of life imprisonment. These offences must always be tried in the Crown Court with a jury.
Summary offences are the least serious offences. They include driving offences, assault, and battery. These offences carry much lighter penalties, which may be anything from an endorsement (points) on a driving licence, to a fine or a short term of imprisonment. Summary offences are tried in the magistrates’ court without a jury. The maximum sentence for a summary offence will depend upon the offence in question: some summary offences carry maximum sentences of imprisonment while others do not. The maximum sentence of imprisonment that a summary offence may carry is six months (this will increase to 51 weeks if ss.280 and 281 of the Criminal Justice Act 2003 are brought into force). A defendant charged with a summary offence does not have a right to trial by jury.
Either way offences are offences of medium seriousness, where the facts of the particular incident will usually determine the severity of the offence. These include theft, assault occasioning actual bodily harm, wounding or inflicting grievous bodily harm, and burglary. Where a defendant is charged with an either way offence, he may be tried either in the Crown Court (with a jury) or in the magistrates’ court (without a jury). A mode of trial hearing will take place in the magistrates’ court in order to determine where the defendant will be tried. If the magistrates consider the offence to be too serious for the magistrates’ court, they will commit (send) the (p. 7) defendant to the Crown Court for trial. The defendant will have no choice in this. On the other hand, if the magistrates consider the case to be suitable for summary trial, they will accept jurisdiction over the case. The defendant then has a choice to make: he can either elect to be tried in the magistrates’ court, or he may choose to be tried in the Crown Court by a jury (this is often referred to as the ‘right to trial by jury’). It will be noted, therefore, that a right to a trial by jury is not always available: the defendant has no such right if he is charged with a summary only offence. For a classification of offences, see figure 1.1.
1.8 The criminal justice process
In order to get the most out of your criminal law module, you will need to have some understanding of criminal procedure and the process by which a case proceeds through the criminal justice system. There are various sources of law which govern the criminal justice process from investigation to trial and sentencing. The most important for you to be aware of at this stage in your studies are the Police and Criminal Evidence Act 1984, which governs police powers and the admissibility of evidence gathered during the investigation, as well as the Codes of (p. 8) Practice which provide the police with guidance on the exercise of their powers. The Criminal Procedure Rules 2015 govern the management of a criminal case within the courts and provide that there is an overriding objective that criminal cases be dealt with justly (see rule 1.1). Finally, the Criminal Justice Act 2003 is a major piece of legislation governing most aspects of the criminal justice system, from procedural matters to the law of evidence and the sentencing of offenders. You may delve into these Acts of Parliament and Rules in much greater detail in your future studies. For now it is sufficient to briefly run through the criminal justice process in very general terms.
When a criminal offence occurs, it is usual practice for the police to investigate the alleged offence and for the State (more specifically, the Crown Prosecution Service (CPS)) to prosecute the alleged offender. However, it is also possible (although rare) for an individual to bring a private prosecution in criminal law. Let us take a practical example. Imagine that one day, a person takes your iPod out of your bag without your knowledge and keeps it. Presumably, you would make a phone call to the police in order to report the offence. On reporting the offence, the criminal process begins (figure 1.2).
The next step would be for the police to investigate this offence. They would take a witness statement from you and from any other witnesses who may have been around at the time, they would seize any CCTV footage which might be available, and they would try to find the offender.
1.8.2 Arrest and charge
In order to simplify our example, let us assume that the investigating officer finds a person (the suspect), whom he believes is the offender. The officer would next arrest the suspect for the criminal offence of theft and interview him at the police station (be aware that there is law and guidance governing the treatment of arrested persons and various other procedures at the police station). The officer may ask you to attend an identification parade at the police station in order that you to try to pick out the offender. If there is enough evidence, the officer would then (after consulting the CPS) charge the suspect with the offence of theft and send the case papers to the CPS. The CPS is the body responsible for the decision to bring a criminal prosecution against an individual. If the CPS decides not to prosecute the suspect (now referred to as the accused), it will not proceed with the case.
An option open to you would then be to privately prosecute the accused. The major disadvantages of a private prosecution are that you would then bear all the costs inherent in bringing a prosecution and you would have limited access to scientific resources and expert witnesses, and again, these cost money. Consequently, the vast majority of criminal prosecutions are brought by the State.
(p. 9) 1.8.3 First court appearance
The next stage in the criminal process is the first court appearance. The accused (or defendant) would appear at court as soon as possible after he has been charged with the offence. The case would be called R v [Defendant] or Regina v [Defendant]. The ‘R’ or ‘Regina’ refers to the Queen (the State), who brings the case against the defendant. The first court appearance always takes place at a local magistrates’ court. At this hearing, the charge would be read to the defendant and he would simply be required to confirm details, such as his name and address. At this stage, the date for the next court hearing will be set.
After a number of pre-trial hearings (depending upon the offence charged), the case will be given a date for trial. The trial will take place either at the magistrates’ court or at the Crown Court. The court at which the trial takes place will depend upon the classification of the offence with which a defendant is charged. In our example, the defendant has been charged with theft, which is an either way offence. Mode of trial proceedings will take place to determine whether the defendant will be tried in the Crown Court or in the magistrates’ court.
Refer back to 1.7 for an explanation of mode of trial proceedings.
1.8.4 The trial
As the prosecution bring the case against the defendant, the prosecution must prove that the defendant committed a criminal offence. The prosecution will, therefore, present their case and call their witnesses first (figure 1.3). When the prosecution have finished calling all of their witnesses, it is open to the defence to make a submission of no case to answer. This is often called a ‘half-time submission’: the defence argue either that the prosecution have failed to prove the elements of the offence, or that the evidence that they have put forward is so weak that a jury (or magistrates) properly directed could not convict on it. If this submission is successful, the judge will direct an acquittal and the trial is over. If the submission fails, the trial continues with the defence presenting their case and calling their witnesses. At the conclusion of the defence case, both the prosecution and defence will give closing speeches.
At this stage in the magistrates’ court, the judge (usually three Justices of the Peace or one District Judge) will retire to consider their verdict. On the other hand, if the trial took place in the Crown Court, the trial judge would give a summing up speech to the jury (summarising the evidence they heard and directing them on the law) and the jury would retire to consider its verdict. When the magistrates or jury reach their verdict, they will deliver it in open court.
1.8.5 The verdict and sentencing
If the jury or magistrates return a not guilty verdict, the defendant is acquitted and is free to leave court. If the jury or magistrates return a guilty verdict, the defendant is convicted of a criminal offence and the court will sentence him. The sentencing hearing may not take place straight away. It is quite usual for the trial judge to adjourn proceedings for four weeks in order to obtain a Pre-Sentence Report (PSR) on the offender. A PSR is written by a probation officer who has regular meetings with the offender during the adjournment. The report will recommend certain types of sentence for the offender and the judge will take this into account in sentencing. At the sentencing hearing, after hearing representations from both the prosecution and the defence, the judge may impose one of a variety of sentences on the offender, depending upon the offence for which he has been convicted.
There is an enormous range of sentences available. These include: imprisonment, suspended sentences of imprisonment, community rehabilitation orders, community punishment orders, (p. 10) curfew orders, supervision orders, attendance centre orders, drug treatment and testing orders, drug abstinence orders, reparation orders, action plan orders, parenting orders, fines, endorsements, conditional discharges, absolute discharges, bind overs, forfeiture orders, compensation orders, restitution orders, confiscation orders, hospital orders, and anti-social behaviour orders. However, these do not form the subject of this book and you will need to refer to a textbook on criminal procedure or sentencing for further information on sentencing.
(p. 11) 1.9 The hierarchy of the criminal courts
As mentioned in 1.8.3, a defendant’s first appearance at court is always at the magistrates’ court. This is the lowest of the criminal courts in the hierarchy and is where trials for summary offences take place. There is no jury in a magistrates’ court. Defendants are tried either by one judge who is legally qualified, a District Judge, or a bench of three lay (not legally qualified) judges, Justices of the Peace. The Crown Court is a higher court in the hierarchy. This is where trials for indictable only offences must take place. Trials for either way offences may take place in either the magistrates’ court or the Crown Court, depending upon the seriousness of the circumstances of the offence and/or the defendant’s wishes. Trial in the Crown Court involves a judge and a jury. Each has a different role to play. The jury is the tribunal of fact and decides whether or not the defendant is guilty of the offence charged. The judge in a Crown Court is legally qualified and is called a circuit judge. The judge is the tribunal of law: it is his job to make rulings on the law, decide upon the admissibility of evidence, and summarise the case to the jury and direct them on the law.
Where a defendant has been tried and convicted in the magistrates’ court, he has a right of appeal against conviction and/or sentence. The appeal will be heard in the Crown Court. Where a defendant has been tried and convicted in the Crown Court, he also has a right of appeal against conviction and/or sentence. The appeal will be heard in the Court of Appeal (Criminal Division). Another option potentially available to defendants convicted in the magistrates’ court or the Crown Court, or even to the prosecution, is to appeal to the High Court by way of (p. 12) case stated. This procedure applies to appeals on a point of law. Alternatively, an application for judicial review of the magistrates’ or trial judge’s decision may be made to the High Court.
Appeals from the Court of Appeal may be made to the Supreme Court by either the prosecution or the defence. Prior to 1 October 2009, appeals from the Court of Appeal were made to the House of Lords. A case will only proceed to the Supreme Court if the Court of Appeal certifies a question of law of public importance and grants leave to appeal. If leave to appeal is refused by the Court of Appeal, an application for leave can be made directly to the Supreme Court.
Under s.58 of the Criminal Justice Act 2003, the prosecution may appeal against an acquittal to the Court of Appeal. This may occur where the prosecution think that the trial judge has made an error in a legal ruling which results in the case collapsing before the jury have a chance to deliver a verdict. The Attorney General may also refer a case to the Court of Appeal if clarification on the law is required. You will notice such cases throughout this book; they are referred to as Attorney General’s Reference (No. [x] of [Year]). (For the process of appealing against conviction and/or sentence from the Crown Court, see figure 1.4; for appealing from the magistrates’ court, see figure 1.5.) (p. 13)
1.10 The burden and standard of proof
You will no doubt have heard phrases such as ‘innocent until proven guilty’ and ‘beyond reasonable doubt’. These phrases relate to the burden and standard of proof in criminal law. This area is really a topic which is studied in greater detail on modules on the law of evidence. However, in studying criminal law, it is important to have some understanding of what these concepts actually mean. Students often confuse the terms ‘burden of proof’ and ‘standard of proof’, but these are distinct concepts which should be considered and applied separately.
1.10.1 Burden of proof
Generally, where a person (the defendant) is prosecuted for a criminal offence, the prosecution is brought by the State. As the State (with all its powers and resources) is accusing an individual (who lacks such powers and resources) of committing a criminal offence, the law states that the prosecution bear the burden of proving their case against the defendant and of disproving any defence that the defendant might raise. The defendant does not have to prove anything, as he is presumed to be innocent until proven guilty by the prosecution. This is often referred to as the ‘presumption of innocence’. This is enshrined within Article 6.2 of the European Convention on Human Rights and has been incorporated into the law of England and Wales by the Human Rights Act 1998.
The job of defence counsel in a criminal case is to undermine the prosecution’s case and to put forward his client’s defence, but he has no obligation to prove anything. The general rule, that the burden of proof is on the prosecution in criminal cases, means that the prosecution must prove each and every element of the offence charged in order to establish that the defendant is guilty. This fundamental principle of evidence is derived from the case of Woolmington v DPP  AC 462. (p. 14)
Woolmington v DPP  AC 462
In Woolmington v DPP, the defendant, Reginald Woolmington, had separated from his wife, Violet Woolmington. Violet had moved back to her mother’s house. Reginald went to visit her in order to persuade her to come back to him. In pursuance of this, he decided to take a loaded shotgun with him and hid it under his coat. He claimed that he was going to threaten to kill himself with the shotgun. Arriving at his mother-in-law’s house, Reginald removed the shotgun, which accidentally went off, killing Violet. Reginald was charged with her murder. At trial, the trial judge misdirected the jury in relation to the burden of proof. He stated that it was for the prosecution to prove that the defendant had killed Violet, and that once they had done this, the offence of murder was to be presumed unless the defence could satisfy the jury that the defendant did not have the necessary guilty state of mind for murder or that he had another defence.
Look at 1.11 for an explanation of the elements of an offence.
The House of Lords held that this was a misdirection and Viscount Sankey LC pronounced:
Throughout the web of English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt … No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.
Finally, it should be noted that there are some exceptions to the general rule that the burden of proof is on the prosecution. The burden of proving the elements of the offence will always be on the prosecution. However, in certain circumstances, the burden of proving the defence may lie with the defence. Whether or not this occurs depends on the defence raised and to some degree on the offence charged; however, such detail is beyond the scope of this book. It is only necessary at this stage to explain that where a defendant pleads the defences of insanity or diminished responsibility, the burden of proving that defence will be on the defendant. It should also be noted that where the burden of proof is on the defence, the standard of proof is different.
1.10.2 Standard of proof
When the burden of proof is on the prosecution, the standard of proof is ‘beyond reasonable doubt’. This is an intentionally high standard of proof because (in contrast to civil cases such as contract and tort) there is potentially much at stake for a defendant. In civil matters, a defendant who is held liable will only have to pay an amount of money in compensation (albeit a large amount of money in some cases). By contrast, in criminal cases, a convicted defendant may lose his liberty through a sentence of imprisonment. Another reason for the higher criminal standard of proof lies with the fact that criminal cases are usually brought by the State, which has many resources and much money at its disposal. Hence, a criminal case is quite unbalanced as it involves a battle between the State and an individual. By contrast, civil cases involve disputes between two individuals, who are usually on much more of a level playing field (although there are exceptions to this, for example where an individual sues a company). The standard of proof in criminal proceedings is such that the jury can only convict the defendant if the prosecution have proved beyond reasonable doubt that the defendant is guilty. If the jury think that a reasonable doubt remains, they must acquit. This phrase has been the subject of much criticism, but no satisfactory alternative has been found yet. In the case of Miller v Minister of Pensions  2 All ER 372, Denning J explained the meaning of the criminal standard of proof:
Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt … If the evidence is so strong as to leave only a remote possibility in the defendant’s favour, which can be dismissed with the sentence, ‘Of course it is possible, but not in the least probable’, the case is proved beyond reasonable doubt. But nothing short of that would suffice.
The common explanation of the standard of proof which is usually given to juries by the trial judge is, ‘You must be satisfied so that you are sure’, and the Court of Appeal has confirmed that ‘beyond reasonable doubt’ and ‘to be sure’ are synonymous (see Folley  EWCA Crim (p. 15) 396 at ). Occasionally, the trial judge might explain to the jury that they have to be as sure as they would be if they were making a decision about something important in their lives, such as a mortgage. If the jury are ‘satisfied so that they are sure’ about the defendant’s guilt, then they must convict. If they are not sure, then they must acquit.
Occasionally, in criminal proceedings, the burden of proving a defence is on the defendant. Where this is the case, the standard of proof is ‘on a balance of probabilities’, a lower standard. Incidentally, this is also the standard of proof applied in civil proceedings. When something is judged on a balance of probabilities, the jury (or magistrates) only need to be 51 per cent sure of the facts put forward. As an example, suppose that a defendant, X, is charged with murder. At trial, the prosecution bear the burden of proving the elements of murder: that X killed the victim (the actus reus of murder) and that he intended to kill or cause grievous bodily harm to the victim (the mens rea for murder). They will have to prove these elements beyond reasonable doubt, so that the jury are satisfied that they are sure that the elements of murder are satisfied. Suppose that the prosecution achieve this; so far, the defendant is guilty of murder. However, if the defendant raises the defence of insanity or, as is more likely, the defence of diminished responsibility, the defendant will bear the burden of proving the elements of insanity or diminished responsibility. He will have to prove his defence on a balance of probabilities, so that the jury are 51 per cent sure that he was legally insane or that his responsibility was diminished. If the jury are 51 per cent sure that the defence is made out, they must acquit the defendant (table 1.1).
1.10.3 Evidential burden
Another concept which we have yet to discuss is the ‘evidential burden’. An evidential burden is not a burden of proof—it does not require a party to prove anything. In fact, Lord Devlin once stated that ‘it is misleading to call it a burden of proof … when it can be discharged by the production of evidence that falls short of proof’ (Jayasena v R  AC 618 at 624). As such, it does not have a corresponding standard of proof. Students often confuse the legal burden of proof with the evidential burden. An evidential burden is simply a burden to raise some evidence in order to make an issue a ‘live one’: ‘a party may be required to adduce some evidence in support of his case, whether on the general issue or on a particular issue, before that issue is left to the jury’ (per Lord Devlin in Jayasena v R  AC 618 at 624). The evidential burden in a criminal trial only really becomes significant where the defendant relies upon certain defences such as self-defence, loss of control, automatism, and duress. In such cases, the defendant will bear the evidential burden, i.e., he/she will have to raise ‘enough evidence to suggest a reasonable possibility’ that he acted in accordance with the relevant defence (per Lord Devlin in Jayasena v R  AC 618 at 624). The legal burden remains with the prosecution to prove beyond reasonable doubt that the elements of the defence are not satisfied. (p. 16)
Table 1.1 Burden and standard of proof
On the prosecution
On the defence
Burden of proof
• To prove all the elements of the offence
• To disprove the defence
• Occasionally to prove the defence (e.g., if pleading insanity or diminished responsibility)
Standard of proof
Beyond reasonable doubt
Balance of probabilities
1.11 The elements of an offence
As we approach the end of this chapter, we need to focus on the substantive criminal law which is the subject of this textbook. In this section, we will explore the elements which need to be proved by the prosecution in order to establish liability for a criminal offence. The Latin maxim, actus non facit reum nisi mens sit rea, is fundamental to criminal liability. In the case of Haughton v Smith  AC 476, Lord Hailsham stated that it meant that, ‘an act does not make a man guilty of a crime, unless his mind be also guilty’.
For a discussion on strict liability, see chapter 4.
Consequently, criminal offences are generally made up of three key elements: actus reus, mens rea, and the absence of a defence. The Latin terms, actus reus and mens rea, are fundamental to the study of criminal law and you will come across them in most chapters in this book. The term actus reus, literally translated, means ‘guilty act’. The term mens rea, literally translated, means ‘guilty mind’. So, criminal liability involves a defendant committing a guilty act with a guilty mind. If either the guilty act or the guilty mind is missing, no offence will have been committed (with the exception of strict liability offences, which do not require mens rea).
In order to prove that a defendant is guilty of a criminal offence, the prosecution will need to break down the definition of the offence and identify the parts of it which constitute the actus reus and the parts which constitute the mens rea. They will then need to prove that the defendant did the actus reus of the criminal offence, and that at that time, he also had the mens rea of the offence (this is often referred to as the requirement of coincidence of actus reus and mens rea). However, their job does not end there. Criminal liability is only established if, in addition to the actus reus and mens rea, it is proved that the defendant has no defence in law. This is conveniently summarised in figure 1.6.
If we now refer back to our defendant who has been charged with theft in the earlier example (see 1.8), we can explore the elements of the offence charged. The offence of theft is defined in s.1 of the Theft Act 1968:
Section 1, Theft Act 1968
A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.
This definition sets down the five elements of the offence of theft:
• Belonging to another;
• With the intention to permanently deprive.
The easiest way to differentiate between the actus reus elements and the mens rea elements is to first identify the mens rea elements and then subtract these from the definition. Everything (p. 17) remaining in the definition is part of the actus reus. The elements which relate to the guilty mind (the mens rea) of the defendant are ‘dishonesty’ and ‘intention to permanently deprive’, as these are states of mind. The remaining elements, ‘appropriation’, ‘property’, and ‘belonging to another’, are part of the actus reus of theft. Consequently, before our defendant can be convicted of theft, the prosecution will need to prove (burden of proof) beyond reasonable doubt (standard of proof) that: the defendant committed the actus reus of theft (appropriated property belonging to another), at the same time as having the mens rea of theft (a dishonest intention to permanently deprive), and that the defendant had no defence in law to this offence. Chapters 2 and 3 will explore the concepts of actus reus and mens rea in more detail.
• Criminal behaviour varies from country to country and from era to era.
• A crime is classed as a public wrong as it affects the public at large.
• The criminal law is punitive and seeks to act as a deterrent.
• In criminal proceedings, a prosecution is brought by the State (the Crown Prosecution Service (CPS)).
• There are two sources of criminal law: statute and common law.
• Offences may be classified as: indictable only, either way, or summary only.
• Criminal trials will take place either in the magistrates’ court (with three Justices of the Peace or one District Judge) or in the Crown Court (with a judge and jury).
• The prosecution bear the burden of proving that the defendant committed the offence.
• The standard to which they must prove this is ‘beyond reasonable doubt’.
• Criminal liability requires actus reus (a guilty act) and mens rea (a guilty mind) and the absence of a defence.
• For the latest crime statistics and more detail regarding these, you could refer to the Crime Survey for England and Wales published by the Office for National Statistics: http://www.crimesurvey.co.uk.
• For more information on criminalisation, the harm principle, and morality, you should refer to the following authoritative works:
Lord Devlin, The Enforcement of Morals (1965), Oxford: Oxford University Press (p. 18)
Joel Feinberg, The Moral Limits of the Criminal Law, Volume 2 Offense to Others (1987), Oxford: Oxford University Press
H. L. A. Hart, The Morality of the Criminal Law (1965), Oxford: Oxford University Press
H. L. A. Hart, Law, Liberty and Morality (1968), Oxford: Oxford University Press
John Stuart Mill, On Liberty and Other Essays (2008), Oxford: Oxford University Press
• You might want to consider the operation of the legal burden and evidential burden in relation to some of the defences that feature in this book. For instance, 5.5.1 and 13.4.2 respectively cover the reversal of the legal burden in cases involving defences of diminished responsibility and insanity, and 14.2.1, 14.3, and 5.4.1 cover the reversal of the evidential burden only for the defences of self-defence, duress, and loss of control respectively.
1. Outline the main differences between criminal law and civil law.
2. What is the distinction between indictable only offences, either way offences, and summary offences?
3. In which court is each offence in question 2 tried?
4. Briefly describe the criminal justice process and the hierarchy of the criminal courts.
5. What is the ‘golden thread’ in English criminal law? How is the ‘golden thread’ justified?
6. What is the meaning of the maxim actus non facit reum nisi mens sit rea?
7. Define and distinguish between the terms actus reus and mens rea.
8. Explain the requirement of coincidence.
For suggested approaches, please visit the online resources.
Please visit the online resources for suggested approaches to answering these self-test questions.
Ashworth, A. and Horder, J. Principles of Criminal Law (7th edn, 2013), Oxford: Oxford University PressFind this resource:
Devlin, P. The Enforcement of Morals (1965), Oxford: Oxford University PressFind this resource:
Feinberg, J. The Moral Limits of the Criminal Law, Volume 2 Offense to Others (1987), Oxford: Oxford University PressFind this resource:
Hart, H. L. A. The Morality of the Criminal Law (1965), Oxford: Oxford University PressFind this resource:
Hart, H. L. A. Law, Liberty and Morality (1968), Oxford: Oxford University Press (p. 19) Find this resource:
Mill, J. S. On Liberty and Other Essays (2008), Oxford: Oxford University PressFind this resource:
Wilson, W. Central Issues in Criminal Theory (2002), Oxford: Hart PublishingFind this resource:
Ashworth, A. and Blake, M. ‘The Presumption of Innocence in English Criminal Law’  Crim LR 306Find this resource:
Lord Bingham, ‘A Criminal Code: Must We Wait Forever?’  Crim LR 694Find this resource:
Lamond, G. ‘What is a Crime?’ (2007) 27 OJLS 609Find this resource:
Roberts, P. ‘Taking the Burden of Proof Seriously’  Crim LR 783Find this resource:
Williams, G. ‘The Definition of a Crime’ (1955) 13 CLJ 107Find this resource: