Transcript Introduction to Criminal Law

Copyright …
• Strode’s College Laws students are free
to make use of this ‘Pdf Print files’ for
study purposes (they should print them
off and take them to class).
• Others should ask before copying or
using these ‘Pdf Print Files’.
• Copyright of Dr Peter Jepson [email protected]
Introduction to
A2 Criminal Law
Text Book …
‘Criminal Law’
by Diana Roe (3rd edition - 2005)
Presentation notes by Dr Peter Jepson
PRECIS NOTES WILL BE CHECKED
At the start of the Lecture
1
Silence in this Lecture
• Take Notes
• Turn off all mobiles
• Please raise your hand if you have a
question
No eating of food or
sweets in this
classroom
2
Nature and definition of a crime
• Civil actions involve one person
taking another to court.
• In Criminal law nearly all
proceedings involve the State taking
an individual to court for violating
the rules or law of society
3
This is because …
• Broken the rules of the state
• Serious matters that cannot be left
to individuals
• Compensation would be inadequate
and some people could not afford
the legal costs – so crimes would go
unpunished
4
and because …
• There could be a need to send D to
prison to deter others
• Unfair for V to bear the cost of a
prosecution
• Can you think of other reasons?
5
Crime is a wrong against the state
• Either by commission or omission
• Name some examples of crimes
• Are laws influenced by morals?
6
Statute and/or Common Law
• Criminal law is an uneasy mixture of
common law rules and statute law.
• For example the Treason Act of 1361
is still law. The Offences Against the
Person Act 1861 is used many times
daily in our courts.
• Some of the case law dates back
centuries.
7
Statute and/or Common Law
• Theft Act 1968 is governed by Statute.
In the case of Knuller v DPP
1973 the judges decided that it is
now not their province to make
new law – so this is now done by
Parliament (between 30 and 80
new laws each year)
8
Statute and/or Common law
Murder is a common law offence – but
the Homicide Act 1957 provides for
some statutorily determined defences
and the Law Reform (Year and a Day
Rule) Act 1996 extended the Actus
reus (How?)
In A2 we will be looking at Murder,
Offences Against the Person and
property offences such as Theft.
9
Criminal Code call
• Discovering much of Criminal Law
can be a difficult process.
• The solution is to have a draft code
– in which all criminal law is listed
(done in France).
10
Criminal Code call
• First done for the UK in 1879 – but
never passed by Parliament
• Again in 1989 – but no
implementation. Now appears
some provisions may be being
gradually enacted.
11
Who Prosecutes?
• The State – via the CPS
• Prosecutions are initiated by the
Police (prior to the Prosecution of
Offences Act 1985 the police
prosecuted)
12
Who Prosecutes?
• Trading Standards Officers also
prosecute. So do the Serious Fraud
Office.
• There can also be Private
Prosecutions (Steven Lawrence case
is one such example). However,
these can be taken over by the
Attorney General and dropped.
13
Who Prosecutes?
With regards to serious offences under
the Official Secrets Act, the
Attorney General must give
permission for a prosecution. This
also applies to prosecutions for
incitement to racial hatred under
Part III of the Public Order Act
1986.
14
Classification of Offences Summary
• Two broad categories – summary
and indictable.
• However, the James Committee
recommended three types of
offences: summary, indictable and
triable-either-way.
15
Classification of Offences Summary
• Summary Offences must be tried in
the Magistrates Court because an
Act of Parliament decrees they
must be dealt with summarily
16
Classification of Offences Summary
• Summary cases involve three
Magistrates, or a District Judge
sitting alone, with a maximum six
month sentence and/or £5000 fine
• (this could be changed to 12
months due to powers under the
Criminal Justice Act 2003).
17
Classification of Offences Summary
Examples of Summary Offences
include – Traffic Offences such as
speeding, illegal parking, drink
driving, assaulting a PC in the
execution of his duty, minor
criminal damage, assault or battery
18
Classification of Offences Indictable
• Serious offences tried on indictment
in the Crown Court.
• Start in Magistrates, but referred for
a Jury Trial or sentencing (if
pleading guilty)
• Examples of Murder, Manslaughter,
Rape, arson, blackmail
19
Classification of Offences Indictable
• Magistrates still decide whether
accused is remanded in custody or
given bail
• Under the Bail Act 1976 everyone as
a right to bail unless the offence is a
serious violent one, in which case
M’s must explain in open court why
they are giving bail.
20
Classification of Offences Indictable
• In other cases, bail will be allowed
unless there is a good reason why it
should be refused, such as the
likelihood of D committing further
offences or absconding.
21
Triable either way
• Under the Magistrates’ Court Act
1980 it is for the courts to decide
that a case is more suited for trial by
indictment.
• If M’s decide they do have enough
power, D can still opt for trial by
Jury
22
Triable either way
• Vast majority choose summary trial – but in
dangerous driving and theft (for example)
some D’s may believe (often wrongly) that a
jury trial will give a better chance of
acquittal
• If D chooses Magistrates Trial he must be
warned that M’s have power to send him to
the Crown Court for sentencing
23
Examples of Triable either way
include …
• Theft, dangerous driving, burglary,
ABH, Criminal Damage over £5000,
Indecent Assault, Obtaining Property
by Deception.
24
Examples of Triable either way
…
• Labour Govt tried recently to curtail
jury trial in such cases – twice
defeated in the Lords. Since had a
change of heart.
25
System of Criminal Courts
• Most crimes have a maximum
sentence fixed by law – with
discretion to the judge.
• Treason, Piracy and Murder have a
fixed Life Sentence.
26
System of Criminal Courts
• However, the Crime (Sentences)
Act 1997 lays down an automatic
life sentence, save in exceptional
circumstances, where D is found
guilty of a second serious violent
offence.
27
System of Criminal Courts
Professor Smith called this Act ‘an
absurd piece of legislation’.
Lord Bingham, a former Lord Chief
Justice, has called for it to be left to
the judges to set a minimum lifesentence term a convicted person
should serve.
28
System of Criminal Courts
He claimed that Lord Irvine, the
Lord Chancellor, endorsed his view
along with the vast majority of QB
Judges.
29
System of Criminal Courts
Lord Bingham’s proposals involved
the Judge specifying in open court
the minimum sentence. This would
allow either D or the CPS to appeal
After the minimum sentence has been
served the Parole Board - rather than
the Home Secretary - would
determine release
30
System of Criminal Courts
Read and Précis the discussion on
life sentencing …
http://www.peterjepson.com/law/lifesentence.htm
PRINT OFF and bring to class
31
Possible reform of the criminal
courts
• The Auld Report – published in
October 2002 – suggested major
changes to the court of first
instance, recommending the
insertion of a middle tier of courts
where a tribunal will make the
decision
32
Criminal Appeal Process from
Magistrates
• Two main types of appeal
• To the Crown Court against the verdict
(not if D pleads guilty) or sentence
• The case is re-heard by a Circuit Judge and
two M’s.
• Only D can appeal by this route and
sentence can be increased
33
Criminal Appeal Process from
Magistrates
• On a point of Law (e.g. Elliott v C [a
minor] 1983), or claims that M’s
have acted ultra vires. Held by way
of ‘case stated’ to the Queen’s Bench
Division
• Case is then considered by two or
three judges who will give their view
of the law
34
Appeals from the
Crown Court
• To the Court of Appeal (Criminal
Division)
• Rules governed by the Criminal
Appeal Act 1995
• Against sentence – Leave of
Appeal of the trial judge needed and
only granted in 1 out of 4 cases
35
Appeals from the Crown Court
Criminal Justice Act 1988 allows
the Attorney General to appeal
against an unduly lenient
sentence. This is rarely
successful, but between 1989
and 1997 there were 367
applications
36
Appeals from the
Crown Court
• Only D can appeal Against the
verdict, except in exceptional
circumstances where the Prosecution
can show that the jury has been
nobbled.
37
Appeals from the
Crown Court
• D can appeal on a point of law or
because there are reasons to suggest
that the verdict is unsafe. Leave is
required for this
• Most appeals are on the grounds that
the judge mis-directed the Jury (e.g.
Woollin)
38
Appeals cont’d
• Court of Appeal may allow the
appeal, dismiss it, or order a re-trial
• Either D or the Prosecution can
appeal to the H of L if a point of
law has been certified as being one
of general public importance (there
are rarely more than 10 per year)
Example of Woollin
39
Binding precedent in Criminal
Law
• The hierarchal principles of binding
precedent – as learnt in AS – still apply
• However, following the case of Taylor
[1950] it is accepted that the Criminal
Division has more freedom when it comes
to being bound by past decisions. This is
because it affects the liberty of a person
40
Binding precedent in Criminal
Law
Doctrine of binding precedent is
certainly very important when it
comes to interpreting statute and
issues of law, as we shall find out later
(in A2). It is CENTRAL to the special
study paper.
41
Reforming
Criminal Law
• The A2 Law exam requires
students to answer questions
related to reforming the law …
• Undertake the précis exercise …
Reforming Criminal Law (this
includes some Self-assessment
Questions)
42