Criminal Law. Mark Thomas
href="#ulink_56e8ff87-b03e-5576-b6d1-af7fb650ecfd">10, 14, 424, 503, 543
Article 9 10, 537, 538
Articles 10–14 10
Rome Statute (1998) 11
United Nations Charter
Article 2(1) 10
France
Penal Code
Article 63 40
Germany
Penal Code
Article 323c 40
Hong Kong
Hong Kong Ordinance
s 40(2A)(b) 127
New Zealand
Securities Amendment Act 1988 286
chapter 1 Introduction to the Criminal Law
study points
After reading this chapter, you will be able to understand:
•what is meant by the study of the ‘criminal law’
•how substantive criminal law differs from procedural or evidential law
•the definition of crime, and whether such definition is possible
•the principles and values that underpin the criminal law, and the functions of the criminal law
•the sources of the criminal law
•the process of the criminal justice system
•the basic principles of criminal liability.
1.1Introduction
Welcome to the criminal law!
In this text, we shall be taking an expedition through the criminal law of England and Wales. The criminal law is a vast and diverse subject and arguably one of the most popular foundations of a law degree. I often explain to my own students that the criminal law is ‘real life’, in that it is easy to identify situations where the criminal law is involved in some way. This may be compared with other areas of law, such as equity and trusts, which, although essential to an understanding of law, does not fix itself quite so easily in the minds of students.
In this text, you will learn about the core features of the substantive criminal law. We shall explore the necessary elements for a criminal offence to exist, the participants involved in the criminal process and the main criminal offences covered on an undergraduate criminal law syllabus.
1.2The purpose of this text
This text has been written to provide you with a clear and accurate account of the substantive criminal law in England and Wales. It is worth pausing here to consider why we refer in this book to the law of ‘England and Wales’ and not the ‘United Kingdom’. England is a constituent part of the ‘United Kingdom of Great Britain and Northern Ireland’, alongside Wales, Scotland and Northern Ireland. However, as a result of different traditions and devolution over the years, the legal system of the UK has diverged. Legally speaking, the UK is divided into three ‘constituent’ countries, each of which is subject to the laws of the UK; however, each constituent country possesses devolved powers allowing it to legislate in particular areas. This text concerns only the law of England and Wales and does not deal with Scots law or the law of Northern Ireland.
1.2.1 ‘Substantive criminal law’
The term ‘substantive criminal law’ is used here to distinguish it from the wider concept of the criminal law, incorporating criminal procedure and the law of evidence. Substantive criminal law refers to the criminal offences that exist in our legal system and the elements that must exist in order for an individual to be liable for those offences. The term ‘liability’ will feature throughout this text and simply refers to the legal obligations or responsibilities that may arise against a particular individual. In the context of the criminal law specifically, ‘liability’ means ‘responsibility for illegal behaviour that causes harm or damage to someone or something’ (Cambridge Business English Dictionary (CUP, 2011)).
We can helpfully distinguish the substantive criminal law from other areas by observing the following table.
Table 1.1Distinguishing the substantive criminal law
| Term | Explanation |
| Substantive criminal law | The law relating to the manner in which criminal offences are defined and the elements of the offence necessary in order for an individual to be found liable. |
| Criminal procedure | The law relating to court structure and the progression of a criminal case through the criminal justice system, including the investigation of the crime by the police, the prosecution of offenders and criminal appeals. Criminal procedure also includes sentencing and the principles behind sentencing powers. |
| Criminal evidence | The law relating to the material that may be produced at trial in order to prove, or disprove, a particular issue in a criminal offence. The law of evidence is often referred to as ‘adjectival’ in nature. |
| Criminal justice | Criminal justice refers to the theory behind the criminal law in terms of its operation and its rationale. Criminal justice also includes a concept known as ‘restorative justice’ which is concerned with bringing those harmed by crime and those responsible for the harm into communication, enabling everyone affected by a particular incident to play a part in repairing the harm and finding a positive way forward. |
| Criminology | Criminology refers to the socio-legal study of why crime is committed, the reasons behind the commission of crime by certain individuals or groups of individuals and how legal policy may be implemented to prevent the commission of offences. A number of ‘strands’ of criminology exist, for example penology (the study of punishment of crime and prison management) and ‘deviance’ (the study of actions that violate social norms). |
An example may assist you in understanding the focus of this book.
example
Jack and Jill go up the hill to fetch a pail of water. Jill pushes Jack down the hill and he is injured as a result (he breaks his crown).
In this very simple scenario, our concern is whether Jill, through her actions in pushing Jack down the hill, is criminally liable for an offence. That is the focus of the substantive law. In order to determine Jill’s liability, we would have