anglolawyer
Banned
There is a lot of discussion of and interest in crime here and not a little confusion about criminal law so I thought I would put that right for anyone interested. I am an English solicitor with about ten years' criminal practise under my belt (long time ago) mostly small potatoes but with the odd smidgen of serious stuff in there too. I still take the occasional criminal case now but always within a narrow sphere of corporate or regulatory crime, not the exciting stuff.
English criminal law gives a very solid basis for understanding the criminal laws of North America and the ANZAC countries (and vice versa, no doubt) and a good enough feel for everywhere else I've come across so far (South Africa, Italy, Germany etc etc) since these laws address universal problems. To begin:
Actus reus and mens rea
Wrongful act, wrongful thought or intent. Aside from some special cases, all crimes have these two. There are no thought crimes. There must be an act. This pair of concepts is fundamental.
Definition
This part comes with a test, so concentrate
. Crimes must be defined because the consequences of infringement are serious. The definitions tend to be very precise and clear. The definitions contain elements (not a term of art) each of which must be present. Thus:
murder is the unlawful killing of a reasonable creature under the Queen's peace with malice aforethought
The elements are:
unlawful = not self defence or other justified killing
killing = death must ensue
reasonable creature = human being but not an unborn foetus (contrast California where it is possible to murder a foetus)
under the Queen's Peace = not an enemy combatant
malice aforethought = means intent to kill or to cause grievous bodily harm (the men's rea of the offence)
Subtract any one of these and, whatever the crime is, it cannot be murder. Often, the definition of a crime includes a lesser one. Thus, murder includes manslaughter, malicious wounding and plain old assault. So, you can prosecute for murder and secure a conviction for a lesser offence, even though not separately charged, if all its elements are proved even though murder itself is not made out because one of them is missing.
Test: without using google, define theft.
Joint enterprise
If you aid, abet, counsel or procure a crime you are liable to be convicted as a principal. The guy who keeps the motor running in the getaway car is just as liable for robbery as the guys holding up the bank, although if they shoot and kill someone in the process his liability for murder will depend on his mental state.
Burden and standard of proof
The prosecution has the burden of proving all the elements of the crime alleged beyond reasonable doubt. Mr Justice Sweeney in the trial of Vicky Pryce was asked by the jury what 'reasonable doubt' means and he answered that 'reasonable doubt means a doubt that is reasonable' before dismissing the dopes for being unable to reach a decision and presiding over a second trial in which she was convicted and jailed for conspiring to pervert the course of justice.
It's that simple. Forget Bayesian statistics and 95% probabilities and all that nonsense. If after taking account of all the evidence any reasonable doubt remains the jury must acquit. Although opinions will differ, in mine, the acquittal of Oscar Pistorius of the charge of murder is a good example of reasonable doubt in operation while two that go the other way are Jodi Arias and Scott Peterson because the remaining areas of doubt in those cases are fanciful in the extreme. It will almost always be possible to contrive by some extraordinary construction of the facts a scenario consistent with innocence but that will not give rise to a reasonable doubt.
Scott Peterson's heavily pregnant wife might just have decided to head off for a swim in San Francisco Bay on Christmas Eve, without telling anybody and coincidentally in the same place he went 'fishing' that same day, also without telling anybody, and that would explain how her remains washed up ashore a few months later otherwise than as a result of being murdered and deposited in the bay by him, but it is not reaonable to think that she did.
That's about it, except for the general defences. Have a crack at the test and see if you can get all the elements. Precise language is not required but the elements are.
English criminal law gives a very solid basis for understanding the criminal laws of North America and the ANZAC countries (and vice versa, no doubt) and a good enough feel for everywhere else I've come across so far (South Africa, Italy, Germany etc etc) since these laws address universal problems. To begin:
Actus reus and mens rea
Wrongful act, wrongful thought or intent. Aside from some special cases, all crimes have these two. There are no thought crimes. There must be an act. This pair of concepts is fundamental.
Definition
This part comes with a test, so concentrate
. Crimes must be defined because the consequences of infringement are serious. The definitions tend to be very precise and clear. The definitions contain elements (not a term of art) each of which must be present. Thus:murder is the unlawful killing of a reasonable creature under the Queen's peace with malice aforethought
The elements are:
unlawful = not self defence or other justified killing
killing = death must ensue
reasonable creature = human being but not an unborn foetus (contrast California where it is possible to murder a foetus)
under the Queen's Peace = not an enemy combatant
malice aforethought = means intent to kill or to cause grievous bodily harm (the men's rea of the offence)
Subtract any one of these and, whatever the crime is, it cannot be murder. Often, the definition of a crime includes a lesser one. Thus, murder includes manslaughter, malicious wounding and plain old assault. So, you can prosecute for murder and secure a conviction for a lesser offence, even though not separately charged, if all its elements are proved even though murder itself is not made out because one of them is missing.
Test: without using google, define theft.
Joint enterprise
If you aid, abet, counsel or procure a crime you are liable to be convicted as a principal. The guy who keeps the motor running in the getaway car is just as liable for robbery as the guys holding up the bank, although if they shoot and kill someone in the process his liability for murder will depend on his mental state.
Burden and standard of proof
The prosecution has the burden of proving all the elements of the crime alleged beyond reasonable doubt. Mr Justice Sweeney in the trial of Vicky Pryce was asked by the jury what 'reasonable doubt' means and he answered that 'reasonable doubt means a doubt that is reasonable' before dismissing the dopes for being unable to reach a decision and presiding over a second trial in which she was convicted and jailed for conspiring to pervert the course of justice.
It's that simple. Forget Bayesian statistics and 95% probabilities and all that nonsense. If after taking account of all the evidence any reasonable doubt remains the jury must acquit. Although opinions will differ, in mine, the acquittal of Oscar Pistorius of the charge of murder is a good example of reasonable doubt in operation while two that go the other way are Jodi Arias and Scott Peterson because the remaining areas of doubt in those cases are fanciful in the extreme. It will almost always be possible to contrive by some extraordinary construction of the facts a scenario consistent with innocence but that will not give rise to a reasonable doubt.
Scott Peterson's heavily pregnant wife might just have decided to head off for a swim in San Francisco Bay on Christmas Eve, without telling anybody and coincidentally in the same place he went 'fishing' that same day, also without telling anybody, and that would explain how her remains washed up ashore a few months later otherwise than as a result of being murdered and deposited in the bay by him, but it is not reaonable to think that she did.
That's about it, except for the general defences. Have a crack at the test and see if you can get all the elements. Precise language is not required but the elements are.
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