for;
•what the elements of that offence are and whether Jill satisfies those elements; and
•whether Jill has a potential defence to the charge against her.
Although a simple factual scenario, a number of questions should hopefully spring to mind. For example:
•Did Jill intend to push Jack down the hill or did she just intend to push him to the floor?
•Did Jill intend to push Jack at all or were her actions an accident?
•What level of harm did Jack suffer? Was he seriously hurt or just bruised?
•Did the pail of water fall down with Jack, and did that cause him any harm that would not have been caused had he not held the pail of water?
These questions, although abstract in nature, are essential for assessing the true extent of Jill’s liability and the direction the criminal law will take in relation to her activities.
As a result, we are not concerned, for example, with:
•how it might be proved that Jill pushed Jack down the hill, eg through the testimony of an eye witness – a matter for the law of evidence;
•how Jill will be charged, prosecuted and sentenced for the offence in question – a matter for criminal procedure and sentencing;
•why Jill pushed Jack down the hill – a matter for the study of criminology.
Although our concern is with the substantive law, the remainder of this chapter will explain a number of key concepts that will help you to understand the wider context and dynamism of the criminal law in England and Wales.
The chapter will conclude with an overview of the three key components to establishing the criminal liability of an individual. This will then provide us with a comfortable transition into a more detailed appreciation of the substantive criminal law.
1.3Defining crime
It is worth noting immediately that there is no ‘universal’ definition of a crime. What constitutes a crime in one country may not constitute a crime in another. For example, in Iran, homosexual relations are illegal and punishable in some cases by death. In England and Wales, homosexual acts were illegal prior to the Sexual Offences Act 1967. In this respect, it is also relevant to note that whether particular conduct amounts to a criminal offence will vary and change as time progresses. By way of another example, prior to the Suicide Act 1961, the act of suicide was a criminal offence. Where an individual failed in such an attempt, they would be liable to a criminal conviction, with the penalty ranging between a fine and imprisonment. Historically, where an individual succeeded in taking their own life, their belongings would be surrendered to the Crown. By way of a final example at this stage, prior to the ground-breaking case of R v R (Rape: Marital Exemption) [1992] 1 AC 599, it was not considered unlawful for a man to rape his wife.
These examples, however, do not actually tell us how we can define ‘crime’. They merely provide examples of what amounts, or has amounted, to a criminal offence. For the most part, academics agree that the starting point in defining a crime is the attitude adopted by the state in relation to certain conduct. For instance, Farmer (‘Definitions of Crime’ in Cane and Conaghan (eds), The New Oxford Companion to Law (OUP, 2008)), contends:
It is now widely accepted that crime is a category created by law—that is, a law that most actions are criminal because there is a law that declares them to be so— so this must be the starting point for any definition.
In Board of Trade v Owen [1957] AC 602, Lord Tucker in the House of Lords concluded that a crime could be defined as
an unlawful act or default which is an offence against the public, and renders the person guilty of the act or default liable to legal punishment.
This definition, unfortunately, offers no assistance as to why certain conduct is considered ‘criminal’. According to Farmer, modern definitions of crime fall under two headings:
•the moral definition; and
•the procedural definition.
Farmer explains the moral definition as
based on the claim that there is (or should be) some intrinsic quality that is shared by all acts criminalized by the state. This quality was originally sought in the acts themselves—that all crimes were in an important sense moral wrongs, or mala in se—and that the law merely recognized this wrongful quality.
It can be explained then, by this definition, that certain conduct or actions are considered crimes in order to recognise public wrongs as violations of the rights and duties owed to the whole community. This view accords with that of Hart (‘The Aims of the Criminal Law’ (1958) 23 L & CP 401) who considered that a crime is ‘conduct which … will incur a formal and solemn pronouncement of the moral condemnation of the community’.
The procedural definition is favoured by other writers such as Williams (‘The Definition of Crime’ (1955) 8 CLP 107), who defined a crime as
An act capable of being followed by criminal proceedings having a criminal outcome, and a proceeding or its outcome is criminal if it has certain characteristics which mark it as criminal. … Criminal law is that branch of law which deals with conduct … by prosecution in the criminal courts.
Albeit a rather circular term (a crime is a crime if it is a crime), this definition accords with the modern practicalities of the criminal law as providing a rigid and detailed structure for the operation of charging and punishing the commission of criminal offences (see below at 1.7).
1.4The need for the criminal law?
In speaking of the ‘need’ for the criminal law, we are essentially considering the justifications for the imposition of criminal liability. In addition, we are concerned with the respective ‘functions’ of the criminal law in its operation. By way of overview, the ‘Report on Homosexual Offences and Prostitution’ (1957) (Cmnd 247) (the ‘Wolfenden Report’) considered the purpose of the criminal law to be
to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable … It is not … the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined.
1.4.1 Functions of the criminal law
The functions (or ‘purposes’) of the criminal law are many and varied. Some commentators rank certain functions above others, whilst other commentators argue that the functions act in conjunction to provide for a consistent and clear approach. Understanding these functions is often helpful when critically analysing the state of the criminal law and observing whether the substantive law achieves, or fails to achieve, one of its functions. Some of the main functions of the law can be listed as follows:
•protection of individual rights and liberties;
•maintenance of public order;
•enforcement of legal rules and orders;
•the conferral of obligations;
•the regulation of human behaviour and relationships; and
•punishment of behaviour contrary to legal rules and orders.
1.4.2 An ‘overuse’ of the criminal law?
Ashworth (‘Is the Criminal Law a Lost Cause?’ (2000) 116 LQR 225) questions the extent to which the