English Criminal Law and Criminal Trial

1. English Criminal Law and Criminal Trial Professor Di Birch JC Smith Professor of Law University of Nottingham Diane.birch@nottingham.ac.uk

2. The Criminal Law • No Criminal Code • General principles laid down by common law • Some important specific offences are still defined only by the common law – though most have been put into statutory form (many in the last 50 years) • Most defences still defined by common law • Subject to Human Rights Act 1998 scrutiny

3. Major offences and defences Common Law Statutory Serious Non-Fatal Offences (1861) Sexual Offences (2003) Theft, Fraud (1968, 2006) Conspiracy, Attempt, Incitement (1977, 1981, 2007) Diminished Responsibility; Loss of Self-Control (1957, 2009) Self-Defence (2008) • Murder • Manslaughter • Assault and Battery • Secondary Liability • Capacity (Insanity, Intoxication, Automatism) • Duress, Duress of Circumstances, Necessity, Consent to injury

4. The Law Commission’s Draft Criminal Code 1989 • “This is a historic event for English criminal law” (Criminal Law Review editorial 1989) • “RIP the Criminal Code (1968-2008)” (Criminal Law Review editorial 2009) • “In the words of Lord Gardiner: ‘I still hope to see my ideal statute. It will be a codification of the statute law in one field (which will already have been consolidated) and the existing case law. It will be written in ordinary simple words and will be accompanied by a commentary explaining what are the things which it is intended to achieve … Is that really too much to ask?” (ATH Smith, [2016] Criminal Law Review, celebrating 50 years of the Law Commission)

5. The Trial: Criminal Law in Context • “The judge decides the law; the jury decides the facts” • Burden of proving all matters in issue on prosecution (apart from insanity/statutory exceptions) • Strict regulation of prejudicial evidence including bad character and hearsay • Close scrutiny of confessions (though not of guilty pleas) • Pre-trial disclosure (both sides) • Subject to Human Rights Act 1998 scrutiny

6. Why the Criminal Law Works … (Most of the time) • Well- trained judges at all levels • Trust in adversarial system to ‘play the game’ • The law (though fragmented) is grounded in general principle and consistently applied • Accessibility of precedents • Respectful relationships • Judges and Government departments • Judges and Academics • Judges and Law Commission

7. Common Law Crimes: Restrictions • No new offences may be ‘recognised’ at common law (Knuller v DPP [1973] AC 435) • Where Parliament has legislated in an area previously covered by common law, the statutory offence/s should be preferred (Rimmington[2005] UKHL 63) • Existing common law offences should not be put to unorthodox uses (Rimmington); but can be used to respond to novel situations (Ireland [1998] AC 147)

8. ‘Restaurant owner jailed for six years over death of peanut allergy customer’ (The Guardian, 24 May 2016)

9. Common Law and Certainty • Common law offences may appear vulnerable to challenge on grounds of uncertainty, but they tend to survive - Misra [2005] 1 Cr App R 328 (manslaughter by gross negligence) • Convictions for common law offences may appear vulnerable where the law is later changed in favour of the accused - Woollin [1999] AC 82 (murder); G [2003] UKHL 50 (recklessness); Jogee [2016] UKSC 8 (secondary participation) but only in exceptional circumstances are convictions revisited.

10. Judges ‘Interpreting’ Legislation Outdated statutory offences may be ‘adapted’ to modern needs: “The [OAPA] Act of 1861 is a statute of the ‘always speaking’ type: the statute must be interpreted in the light of the best current scientific appreciation of the link between the body and psychiatric injury.” (Lord Steyn in Ireland, rejecting the idea that the court was confined to what ‘bodily’ meant in 1861)

11. Judges ‘Interpreting’ Legislation: Case Study In Clarence in 1888, it was held that a husband could not be guilty under OAPA 1861 s.20 of ‘inflicting’ serious injury on his wife by giving her a sexually-transmitted disease, both because ‘inflict’ implies an assault and because she consented to intercourse. Neither proposition is now regarded as correct. Where HIV is transmitted through consensual intercourse, a conviction for a s.20 offence may occur if the accused has concealed his HIV status and there is no ‘informed’ consent by the victim (Dica (2004); Konzani(2005)). If his case had arisen today , Clarence could have been convicted.

12. When Judges Change the Law • Most changes benefit defence (Woollin, G, Jogee) – no retrospective punishment • Changes that benefit prosecution are unlikely to be unexpected: Clarence was ‘dismantled’ over time • Defendants adversely affected likely to be behaving anti-socially (Ireland; Dica/Konzani) so attract little sympathy • Possible Human Rights challenge; inevitable intense academic scrutiny

13. Judges and ‘Bad’ Legislation • Where a statutory crime conflicts with a general principle of law it may be re-interpreted so as not to do so: • R v Hughes [2013] UKSC 56 (causing death by driving whilst uninsured) • R v Taylor [2016] UKSC 5 (aggravated vehicle-taking) • Government may re-state its intentions using different language (eg in relation to provisions regarding the age of victims in sexual cases: Sexual Offences Act 2003, B (a Minor) v DPP (2000) K (2001))

14. Conclusions Criminal Law may be many things, but it is never dull Obrigada!