Criminal Law (England and Wales)
The Criminal Law of England and Wales' refers to that part of England and Wales law that deals with the elements and consequences of criminal acts. English criminal law is largely not regulated by law, but in the tradition of common law judges . In English law, the criminal act is composed of actus reus and mens rea .
Legal sources
English criminal law is structurally - like all law in England and Wales - case law, common law . It is not shaped by deduction from general principles, but in the empirical-inductive tradition of thought in the Anglo-Saxon world by solving specific problems. Skepticism about codifications results from skepticism about the derivation of general principles : to this day England has no penal code, no written constitution. It is replaced by reasoning from case to case, the individual decision of the court. The decisions of the higher courts are binding for the courts of the same and lower order (rule of binding precedent, stare decisis ). They are published in so-called law reports ; the most important are the All England Law Reports and the English Reports . The binding part of a judgment is referred to as the ratio decidendi , incidental discussions as the obiter dictum .
Of course, there are also in England penal law ( statute law ) of Parliament. They owe their genesis less to the need for comprehensive regulation of a sub-area, but rather to the reaction to current events of political relevance or the alleviation of hardships or ambiguities in common law. In terms of the hierarchy of norms, these stand above common law, even if they do not have the dignity of centuries-old common law in the legal-political discussion . Nevertheless, their application is not at the discretion of the judge; English law has no judicial control of the sovereign, the Queen-in-Parliament under God . The interpretation of the laws by the judges is in turn binding according to the rules of binding precedent. The judiciary tends towards a literal, extremely narrow and restrictive interpretation of the statutes, probably so as not to "disturb" the evolutionary development of common law .
In 2011 there were about 8,000 criminal laws. Its scope of regulation mostly comprises individual criminal offenses, while the general part, i.e. the structure of the criminal offense, is still largely common law . The main crimes that remain under common law are murder , manslaughter , assault and conspiracy . In principle, the courts are empowered to create new criminal offenses. In 1975, however , the House of Lords refrained from creating new common law offenses.
The sometimes incoherent and unsystematic structure of English criminal law has not remained without criticism: It collides with the principle nulla poena sine lege , criminal liability often depends on historical contingencies. The Law Commission therefore tried to codify the current criminal law in the so-called Draft Criminal Code (DCC). The ongoing skepticism about codifications, however, led in 2008 to the Law Commission officially saying goodbye to parliamentary enforcement of the DCC.
Doctrine of criminal liability
The English doctrine of criminal liability assumes that a person makes himself liable to prosecution through an active act if it was committed intentionally or negligently.
Actus reus
According to the traditional view of English law, criminal behavior cannot consist of omission. So describes Lord Diplock in R v Miller (1983), the legal situation, see reference to the parable of the Good Samaritan as follows:
"The conduct of the parabolic priest and Levite on the road to Jericho may indeed have been deplorable but English law has not so far developed to the stage of treating it as criminal."
However, this basic rule has been restricted by many exceptions: For example, failure to do so leads to criminal liability if the statute law only mentions that a success must be "caused". However , several exceptions are also being discussed in the area of common law offenses that are not legally stipulated:
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Continuous act: In the case of Fagan v Metropolitan Police Comr (1969), the defendant (hereinafter D ) accidentally ran over the foot of a police officer. Despite being told to drive away, he stayed on his foot for several minutes. He was convicted of assaulting the police officer in the execution of his duty . The Divisional Court upheld the conviction. The mere driving on the foot is not a criminal offense, since there was no mens rea here . Lingering on the foot should, however, be regarded as a continuous act ('ongoing action') with driving on the foot. Bridge J disagreed with the majority on the grounds that lingering was mere omission.
In the case of Meli v R (1954), D first beat up the victim (hereinafter V ) and then thought V was dead. He then threw the alleged corpse off a cliff. A medical report proved in the process that V only died after the litter. D was convicted, but made an appeal to the Privy Council on the grounds that no mens rea was available during the litter . The Privy Council did not agree to this, but pointed out that the entire process should be treated as a continuous act . -
Dangerous situation: In R v Miller (1983), D fell asleep while smoking a cigarette. The cigarette started a fire. When D woke up and saw the fire, he switched rooms. The House of Lords upheld its arson ('arson') conviction : anyone who creates a dangerous situation has a duty to remove the danger. D was therefore punishable despite a mere omission.
In 2003 the High Court followed this decision in DPP v Santa-Bermudez . The DPP put in the way of case stated -Verfahrens appeal against a judgment of the Crown Court one. This had confirmed an acquittal by the Magistrates' Court : D was searched in a subway station by a policewoman . When asked, D said he was carrying syringes in his pockets. The policewoman was injured by a syringe during the search. The High Court overturned the acquittal on the grounds that, following Miller, failure to do so would also be punishable if D created a dangerous situation. - Special relationship: If there is a special closeness between D and V (e.g. mother / child, doctor / patient), this results in an obligation that leads to criminal liability for omission. The Court of Criminal Appeal in R v Gibbins and Proctor (1918) sentenced D and his lover, who let D s child starve to death for murder (~ 'murder').
- Undertaking a duty: In R v Stone and Dobinson (1977) the Court of Appeal convicted D and his mistress of manslaughter for having D' s seriously ill sister who was with them Rent lived, did not call a doctor.
- Statutory duty: The Children and Young Persons Act 1933 (CYPA) imposes a duty on parents to fully care for their children. A violation of this obligation, even if it is a mere omission, can lead to criminal liability.
- Contractual duty: In R v Pittwood (1902) the Court of Assizes in Taunton convicted a railroad attendant who had opened a barrier and not closed it again. The contractual obligation towards a third party could also lead to criminal liability.
- Duty to law enforcement (, duty to enforce the law '): In R v Clarkson (1971) who raised Court Martial , the conviction of a soldier as accomplice of rape (rape) on. He had entered a room where other soldiers were sexually abusing a woman. He observed the process, did not participate, but did not intervene either. The Court Martial justified its view with the fact that mere presence could not suffice for the conviction as accomplice ; this is a mere omission.
literature
Textbooks
- David Ormerod (Ed.): Smith and Hogan Criminal Law . 12th edition. Oxford University Press, Oxford 2008, ISBN 978-0-19-920258-4 .
- David Ormerod (eds.): Smith and Hogan Criminal Law: Cases and Materials . 10th edition. Oxford University Press, Oxford 2009, ISBN 978-0-19-921869-1 .
- Nicola Padfield: Criminal law . 7th edition. Oxford University Press, Oxford 2010, ISBN 978-0-19-958204-4 .
Individual representations
- Volker Helmert: The definition of a criminal offense in Europe . Duncker & Humblot, Berlin 2011.
Web links
- Max Planck Information System for Comparative Criminal Law Country Report England and Wales