C1.1 Exploring Criminal Law
Colour coding:
Bolded blue: Case name + (Year)
Bolded red: Legislation + Year
Lecture 1: Introduction to criminal law
MODULE STRUCTURE
Term 2:
Term 1: • Non-fatal
• Criminalisation offences
& punishment • Sexual
• Actus reus offences
Term 3:
• Mens rea • Inchoate
• Revision
• Capacity: offences
• Exam
intoxication & • Terrorism
insanity offenses
• Murder & • Defences
manslaughter • Property
offences/theft
Lecture 2: Exploring the criminal law
The focus of this course is on substantive criminal law: study of the components & structure of criminal liability.
• examine the law concerning criminal offences and defences
• asking questions like:
• why and how certain conducts/activities are criminalised
• how individuals are held liable for a crime (criminal liability)
Substantive criminal law =/= other areas of criminal law, e.g.
• criminology: what are the causes of crime, how crime is measured and perceived
• law of evidence: rules that determine how things have to be presented and proven in court
• law of sentencing: rules that determine the ways in which individuals are punished, how the courts can deliver
punishment
• criminal process: details of how police investigations and criminal trials work
• criminal justice: studies the institutional framework & practices of the police, prosecution, courts, prisons, probation,
etc.
Criminalisation:
• Formal, doctrinal, black-letter understanding: the conducts, consequences, circumstances which are proscribed by
criminal law, why and how they are proscribed
• Contextual, critical perspective: how criminalisation is put in practice: who it affects, how it is distributed, the PESTLE
dynamics behind it, what is not criminalised
Criminal law:
• a politically determined restriction on individual rights, through the threat/imposition of a penal sanction
• criminal offences are breaches of rules of conduct that are punishable by the state, may either:
◦ prohibit:
▪ a certain act, e.g. theft
▪ certain consequences/results under certain circumstances, e.g. murder
1
, ▪ certain states of affair, e.g. belonging to a terrorist organisation
◦ require certain action, e.g. taking due care towards health and safety
Sources of criminal law:
• Statutes:
◦ great majority of criminal offences today are statutory
◦ some are open to interpretation: courts sometimes need to interpret ambiguities, issues, omissions in the statutes
through case law
• Common law/case law:
◦ some important offences remain common law offenses, defined by case law: murder, manslaughter, conspiracy to
defraud
• International law/EU law/Human rights
Structure of criminal law:
• lose overall: rules & principles scattered through statutes and cases
• 'dream' of codification - fruitless so far
• role of the Law Commission: advises the government on issues of criminal law, analyse and report to improve on
different areas
An ideal structure:
• general part: general elements & principles of criminal liability
• special part: specific criminal offences
Elements of criminal liability:
• Actus reus - external elements of the offence, the harm or conduct (conduct element)
◦ may include conducts, circumstances, consequences
◦ may also be constituted by an omission (failure to act)
• Mens rea - mental elements of the offence, culpability (fault element)
◦ level/category of fault, in relation to an element of actus reus
◦ e.g. intent to kill, to fatally wound, unintentional harm in self-defense
◦ distinguish murder from manslaughter
• Absence of a valid defence
◦ e.g. alibi, insanity, constitutional violations, etc.
Reading
J. Child and D. Ormerod, Smith, Hogan, and Ormerod's Essentials of Criminal Law (OUP, 2021, 4th ed.) Chapter 1 (pp. 1-
38)
1.1 Focusing on substantive criminal law
About how offences like theft and murder are defined, not:
• who commits them or why (criminology)
• how they are investigated by the police (policing and criminal procedure)
• how they are prosecuted and proved in court (evidence)
• how they are sentenced (sentencing)
Theories of criminalisation:
• what should be criminalised?
• how do we define 'harm'?
• how to apply 'harm' to pre-emptive offences, e.g. attempting to commit a crime?
• distinction between private wrong vs public wrong?
Drawing on theories of criminalisation to discuss why a conduct has been legitimately criminalised helps analyse
substantive criminal law:
2
, • when interpreting an imprecise offence/defence
• when we are evaluating the effectiveness of an offence
• when discussing the potential for a new offence
Other areas of criminal law:
• Criminology: Why do people commit crime? (more psychological than strictly law-based liability)
• Criminal evidence: How can we prove a crime has been committed? (procedural)
• Sentencing: What are the punishments for committing crimes? (less black/white, liability based on the offence's
seriousness)
Criminal vs. Civil law?
• both focus on harms one private party has caused to another
• in tort: claimant seeks monetary compensation, must prove their case on the balance of probabilities (civil standard
of proof)
• in criminal: an action by the State (as prosecutor) against D to lead to their punishment, the State must prove its case
beyond reasonable doubt (criminal standard of proof)
International comparisons of criminal law between different common law systems can help in:
• interpreting the law: criminal law in England and Wales is established through a combination of (i) statutes defining
offences and defences, and (ii) decisions of the courts interpreting the law and creating precedent
• when evaluating the law: see if English law compares favourably to seek reforms
Main actors in the process and procedure of trying a criminal case:
1. Police: where there is suspicion of an offence, they investigate to obtain evidence for any potential criminal trial.
2. Crown Prosecution Service (CPS): prosecute on behalf of the State/Crown, has a duty to review the evidence
gathered by the police in order to assess whether a prosecution is viable before any criminal trial commences.
3. Defence: represented in court by their own legal team, aim is to raise a ‘reasonable doubt’ within any essential
element of the prosecution’s case, when they raise a defence they must satisfy an evidential burden
4. Jury: only involved in Crown Court trials, made up of 12 people, role is to decide matters of fact and not matters of
law.
5. Judge: adjudicate on any legal conflict relating to rules of evidence and admissibility and any other matter of law,
also responsible for summing up the facts and directing the jury on the law before they consider their verdict, in
non-Crown Courts they are responsible for the whole process of trial
Note: civil law cases typically involve two private parties in opposition and are therefore referred to using both parties’
names (eg Jones v Smith). In contrast, criminal law cases typically include only one party name (eg R v Smith). This is
because in criminal cases the action is between the State as prosecutor (Regina: R) and a private defendant (party name).
Burden of proof in criminal trials:
• ‘criminal burden of proof’: prosecution must prove D's guilt beyond reasonable doubt (‘criminal standard of proof’)
• designed to limit the risk of innocent people being wrongly convicted
• recognises the inequality of parties' resources, with the State possessing vast resources & personnel for investigatory
powers
• D is presumed innocent until proven guilty
• reverse burdens of proof: D has to prove a particular element or defence
◦ need only prove the relevant element to the civil standard of proof: ‘on the balance of probabilities’
◦ controversial: defence is raised before the prosecutorial offence, so the presumption of innocence is infringed
Criminal court structure and appeals process:
• doctrine of precedent dictates that interpretations of the law made by higher courts will bind lower courts in future
cases
• distinguish between:
◦ ratio decidendi: legal interpretations that were required by the court to reach their decision (can create binding
precedent)
3
, ◦ obiter dicta: interpretations additionally made, but not necessary to reach the decision (persuasive but non-
binding precedent)
Bottom-to-top, appeals work their way up
1. Magistrates' court
• lowest criminal courts in England and Wales.
• usually made up of volunteer magistrates who are not legally qualified and rely on a legal advisor for legal
guidance.
• sentencing power is limited to six months’ imprisonment for each offence (12 months overall), and unlimited
fines.
• tries all ‘summary only’ offences (eg assault and battery) and less-serious ‘triable either way’ offences.
• over 95% of all criminal cases will be settled in the magistrates’ court without appeal.
• APPEAL: on conviction, level of the sentence, ‘way of case stated’ (legal mistake), or judicial review (ultra vires)
2. Crown Court:
• include both a professional judge (High Court Judge, Circuit Judge, or recorder) and a jury.
• judge decides on matters of law, jury decides on matters of fact.
• sentencing power only limited by the individually prescribed maximum sentence for each offence (Sentencing
Council).
• limited precedent value when it comes to clarifying the substantive law.
• APPEAL: on the judge’s rulings relating to the way the trial will be conducted, a point of law, conviction, level of
the sentence.
• Criminal Cases Review Commission can step in and appeal D's conviction and/or sentence.
• Crown (prosecution) may not appeal D's acquittal, they will only be tried again if there is new evidence.
3. Court of Appeal (Criminal Division):
• usually comprised of three judges presided over by a Lord Justice of Appeal (senior judge).
• decisions create precedent that binds the lower court's future interpretations and sometimes their own too.
• majority of cases relate to the substantive law.
• APPEAL: will only be available where the disputed point of law is of ‘general public importance’.
4. Supreme Court:
• highest court in the UK (formerly the House of Lords).
• there are 12 Justices of the Supreme Court, but the Court usually sits with five Justices in a hearing.
• decisions create binding precedent for all lower courts, including the Court of Appeal.
• creating the strongest judicial precedent for our identification of the substantive law.
5. Extra - Privy Council:
• not part of the criminal court structure for cases originating in England and Wales.
• is the court of final appeal for UK overseas territories and Crown dependencies, other Commonwealth countries,
etc.
• opinions have no binding effect on the courts within the structure outlined above.
• however, the judges are usually also Supreme Court Justices, so the Board’s opinions can have a strongly
persuasive effect.
1.2 Sources of the substantive criminal law
1. Statute: principal binding source of criminal law, beneficial because it is democratic and more accessible than
common law.
• but needs a degree of caution on:
◦ quantity of legislation (always use newest update)
◦ form and detail of legislation (vagueness can be misleading, but too detailed can be impenetrable)
◦ type of legislation (1. criminal offences often created in non-criminal statutes, so difficult to find and set in
context, 2. many criminal offences are created through subordinate or secondary legislation which lacks
parliamentary scrutiny)
• Common law: still important but courts now are no longer at liberty to create new offences or defences, rules should
be appropriately dictated by a democratically accountable Parliament, case law is also retrospective as defendants
can be convicted of a newly-made crime without knowing it is a crime before
Note: in an assessment,
4
Colour coding:
Bolded blue: Case name + (Year)
Bolded red: Legislation + Year
Lecture 1: Introduction to criminal law
MODULE STRUCTURE
Term 2:
Term 1: • Non-fatal
• Criminalisation offences
& punishment • Sexual
• Actus reus offences
Term 3:
• Mens rea • Inchoate
• Revision
• Capacity: offences
• Exam
intoxication & • Terrorism
insanity offenses
• Murder & • Defences
manslaughter • Property
offences/theft
Lecture 2: Exploring the criminal law
The focus of this course is on substantive criminal law: study of the components & structure of criminal liability.
• examine the law concerning criminal offences and defences
• asking questions like:
• why and how certain conducts/activities are criminalised
• how individuals are held liable for a crime (criminal liability)
Substantive criminal law =/= other areas of criminal law, e.g.
• criminology: what are the causes of crime, how crime is measured and perceived
• law of evidence: rules that determine how things have to be presented and proven in court
• law of sentencing: rules that determine the ways in which individuals are punished, how the courts can deliver
punishment
• criminal process: details of how police investigations and criminal trials work
• criminal justice: studies the institutional framework & practices of the police, prosecution, courts, prisons, probation,
etc.
Criminalisation:
• Formal, doctrinal, black-letter understanding: the conducts, consequences, circumstances which are proscribed by
criminal law, why and how they are proscribed
• Contextual, critical perspective: how criminalisation is put in practice: who it affects, how it is distributed, the PESTLE
dynamics behind it, what is not criminalised
Criminal law:
• a politically determined restriction on individual rights, through the threat/imposition of a penal sanction
• criminal offences are breaches of rules of conduct that are punishable by the state, may either:
◦ prohibit:
▪ a certain act, e.g. theft
▪ certain consequences/results under certain circumstances, e.g. murder
1
, ▪ certain states of affair, e.g. belonging to a terrorist organisation
◦ require certain action, e.g. taking due care towards health and safety
Sources of criminal law:
• Statutes:
◦ great majority of criminal offences today are statutory
◦ some are open to interpretation: courts sometimes need to interpret ambiguities, issues, omissions in the statutes
through case law
• Common law/case law:
◦ some important offences remain common law offenses, defined by case law: murder, manslaughter, conspiracy to
defraud
• International law/EU law/Human rights
Structure of criminal law:
• lose overall: rules & principles scattered through statutes and cases
• 'dream' of codification - fruitless so far
• role of the Law Commission: advises the government on issues of criminal law, analyse and report to improve on
different areas
An ideal structure:
• general part: general elements & principles of criminal liability
• special part: specific criminal offences
Elements of criminal liability:
• Actus reus - external elements of the offence, the harm or conduct (conduct element)
◦ may include conducts, circumstances, consequences
◦ may also be constituted by an omission (failure to act)
• Mens rea - mental elements of the offence, culpability (fault element)
◦ level/category of fault, in relation to an element of actus reus
◦ e.g. intent to kill, to fatally wound, unintentional harm in self-defense
◦ distinguish murder from manslaughter
• Absence of a valid defence
◦ e.g. alibi, insanity, constitutional violations, etc.
Reading
J. Child and D. Ormerod, Smith, Hogan, and Ormerod's Essentials of Criminal Law (OUP, 2021, 4th ed.) Chapter 1 (pp. 1-
38)
1.1 Focusing on substantive criminal law
About how offences like theft and murder are defined, not:
• who commits them or why (criminology)
• how they are investigated by the police (policing and criminal procedure)
• how they are prosecuted and proved in court (evidence)
• how they are sentenced (sentencing)
Theories of criminalisation:
• what should be criminalised?
• how do we define 'harm'?
• how to apply 'harm' to pre-emptive offences, e.g. attempting to commit a crime?
• distinction between private wrong vs public wrong?
Drawing on theories of criminalisation to discuss why a conduct has been legitimately criminalised helps analyse
substantive criminal law:
2
, • when interpreting an imprecise offence/defence
• when we are evaluating the effectiveness of an offence
• when discussing the potential for a new offence
Other areas of criminal law:
• Criminology: Why do people commit crime? (more psychological than strictly law-based liability)
• Criminal evidence: How can we prove a crime has been committed? (procedural)
• Sentencing: What are the punishments for committing crimes? (less black/white, liability based on the offence's
seriousness)
Criminal vs. Civil law?
• both focus on harms one private party has caused to another
• in tort: claimant seeks monetary compensation, must prove their case on the balance of probabilities (civil standard
of proof)
• in criminal: an action by the State (as prosecutor) against D to lead to their punishment, the State must prove its case
beyond reasonable doubt (criminal standard of proof)
International comparisons of criminal law between different common law systems can help in:
• interpreting the law: criminal law in England and Wales is established through a combination of (i) statutes defining
offences and defences, and (ii) decisions of the courts interpreting the law and creating precedent
• when evaluating the law: see if English law compares favourably to seek reforms
Main actors in the process and procedure of trying a criminal case:
1. Police: where there is suspicion of an offence, they investigate to obtain evidence for any potential criminal trial.
2. Crown Prosecution Service (CPS): prosecute on behalf of the State/Crown, has a duty to review the evidence
gathered by the police in order to assess whether a prosecution is viable before any criminal trial commences.
3. Defence: represented in court by their own legal team, aim is to raise a ‘reasonable doubt’ within any essential
element of the prosecution’s case, when they raise a defence they must satisfy an evidential burden
4. Jury: only involved in Crown Court trials, made up of 12 people, role is to decide matters of fact and not matters of
law.
5. Judge: adjudicate on any legal conflict relating to rules of evidence and admissibility and any other matter of law,
also responsible for summing up the facts and directing the jury on the law before they consider their verdict, in
non-Crown Courts they are responsible for the whole process of trial
Note: civil law cases typically involve two private parties in opposition and are therefore referred to using both parties’
names (eg Jones v Smith). In contrast, criminal law cases typically include only one party name (eg R v Smith). This is
because in criminal cases the action is between the State as prosecutor (Regina: R) and a private defendant (party name).
Burden of proof in criminal trials:
• ‘criminal burden of proof’: prosecution must prove D's guilt beyond reasonable doubt (‘criminal standard of proof’)
• designed to limit the risk of innocent people being wrongly convicted
• recognises the inequality of parties' resources, with the State possessing vast resources & personnel for investigatory
powers
• D is presumed innocent until proven guilty
• reverse burdens of proof: D has to prove a particular element or defence
◦ need only prove the relevant element to the civil standard of proof: ‘on the balance of probabilities’
◦ controversial: defence is raised before the prosecutorial offence, so the presumption of innocence is infringed
Criminal court structure and appeals process:
• doctrine of precedent dictates that interpretations of the law made by higher courts will bind lower courts in future
cases
• distinguish between:
◦ ratio decidendi: legal interpretations that were required by the court to reach their decision (can create binding
precedent)
3
, ◦ obiter dicta: interpretations additionally made, but not necessary to reach the decision (persuasive but non-
binding precedent)
Bottom-to-top, appeals work their way up
1. Magistrates' court
• lowest criminal courts in England and Wales.
• usually made up of volunteer magistrates who are not legally qualified and rely on a legal advisor for legal
guidance.
• sentencing power is limited to six months’ imprisonment for each offence (12 months overall), and unlimited
fines.
• tries all ‘summary only’ offences (eg assault and battery) and less-serious ‘triable either way’ offences.
• over 95% of all criminal cases will be settled in the magistrates’ court without appeal.
• APPEAL: on conviction, level of the sentence, ‘way of case stated’ (legal mistake), or judicial review (ultra vires)
2. Crown Court:
• include both a professional judge (High Court Judge, Circuit Judge, or recorder) and a jury.
• judge decides on matters of law, jury decides on matters of fact.
• sentencing power only limited by the individually prescribed maximum sentence for each offence (Sentencing
Council).
• limited precedent value when it comes to clarifying the substantive law.
• APPEAL: on the judge’s rulings relating to the way the trial will be conducted, a point of law, conviction, level of
the sentence.
• Criminal Cases Review Commission can step in and appeal D's conviction and/or sentence.
• Crown (prosecution) may not appeal D's acquittal, they will only be tried again if there is new evidence.
3. Court of Appeal (Criminal Division):
• usually comprised of three judges presided over by a Lord Justice of Appeal (senior judge).
• decisions create precedent that binds the lower court's future interpretations and sometimes their own too.
• majority of cases relate to the substantive law.
• APPEAL: will only be available where the disputed point of law is of ‘general public importance’.
4. Supreme Court:
• highest court in the UK (formerly the House of Lords).
• there are 12 Justices of the Supreme Court, but the Court usually sits with five Justices in a hearing.
• decisions create binding precedent for all lower courts, including the Court of Appeal.
• creating the strongest judicial precedent for our identification of the substantive law.
5. Extra - Privy Council:
• not part of the criminal court structure for cases originating in England and Wales.
• is the court of final appeal for UK overseas territories and Crown dependencies, other Commonwealth countries,
etc.
• opinions have no binding effect on the courts within the structure outlined above.
• however, the judges are usually also Supreme Court Justices, so the Board’s opinions can have a strongly
persuasive effect.
1.2 Sources of the substantive criminal law
1. Statute: principal binding source of criminal law, beneficial because it is democratic and more accessible than
common law.
• but needs a degree of caution on:
◦ quantity of legislation (always use newest update)
◦ form and detail of legislation (vagueness can be misleading, but too detailed can be impenetrable)
◦ type of legislation (1. criminal offences often created in non-criminal statutes, so difficult to find and set in
context, 2. many criminal offences are created through subordinate or secondary legislation which lacks
parliamentary scrutiny)
• Common law: still important but courts now are no longer at liberty to create new offences or defences, rules should
be appropriately dictated by a democratically accountable Parliament, case law is also retrospective as defendants
can be convicted of a newly-made crime without knowing it is a crime before
Note: in an assessment,
4
