A Brief Introduction Criminal Law

A Brief Introduction to Criminal Law

Aims
In the UK, as in much of the world, the idea of breaking the law is closely aligned with the idea of committing a crime. However, crimes in truth only result from breaches in criminal law, a defined and restricted area of law which is looked at further in this two part article. Criminal law can generally be thought of as the law of the land or the law of the state. That is, it refers to the laws that the state puts down in writing, legislature, to protect itself and its citizens. As a result, a breach in criminal law will result in a case being brought by the state (in the UK, the crown prosecution) against the accused offender.

It is helpful to consider criminal law in contrast to civil law, where cases are brought by individual parties against other parties, and which is based on a common law (or case law) framework where the law is not defined in legislature but instead cases are settled in accordance with precedents set elsewhere in the judicial system.

In criminal law a breach which leads to a conviction will, generally speaking, result in a punishment for the offender. These punishments will have a number of aims including one or more of the following: Retribution - inflicting hardship on the offender to reflect the hardship they inflicted on their victim. Deterrence - of the offender from committing further crimes as well as other potential offenders Incapacitation - of the offender to prevent them committing further crimes Rehabilitation - of the offender so that they can add value to society and to prevent further crimes Restitution - to restore the legal status of the victim, as is the aim of civil law (see below)

These aims are not mutually exclusive. Incarceration as a punishment, for example, may fulfill the

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first three and, depending on the nature of their time in prison, the fourth as well.

The aim of retribution for retribution's sake is less popular now despite being key to the development of criminal law down the ages. It originated from a concept similar to restitution but with the aim of restoring a universal balance where the offender should suffer the equivalent consequences as experienced by the victim. This lead to the establishment of institutions to restore this balance, to determine, formalise and measure out the retribution rather than allow personal retributions (vendettas, revenge) within a society which may have gone beyond the scale of the original offence.

The earliest forms of criminal law therefore followed the lines of lex talionis (a punishment to fit a crime) otherwise referred to as an eye for an eye (after a passage in the Old Testament/Torah). However, the ideas of turning the other cheek from the New Testament and more generally that two wrongs dont make a right (an eye for an eye leaves everyone blind) have tempered this philosophy, particularly in the west.

The similar concept of restitution is still the aim of civil law; similar except that civil law aims to restore the legal status of the victim as if the offence hadnt happened regardless of whether that acts as a punishment and/or deterrent and instead of aiming to restore universal balance.

The second part of this article looks at the key concepts that define a crime and criminal law including those of actus reus and mens rea.

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A Brief Introduction Criminal Law

Actus Reus & Mens Rea

The first part of this article looked at the definition, aims and origins of criminal law, in particular in comparison with civil law. The second part however outlines what constitutes a crime in a little more detail.

There are two legal concepts which are particularly key to the understanding and administration of criminal law and these are Actus Reus and Mens Rea.

Actus Reus, which is Latin for the guilty act represents the idea of the act of a crime and therefore can be considered to be anything that an individual does, or doesnt do, or even threatens to do, that can be said to have caused a crime. There has to be clear link between the act and the crime (the consequence) and this brings into play ideas such as causality and proximity in determining whether the accused was actually responsible for the crime.

Mens Rea, translates from Latin as the guilty mind and represents the intention to commit a crime or take a course of action which risks a criminal act occurring (i.e., recklessness). This is a concept that is distinct from that of motive where the accused my have had a potential reason which could have grown into an intention to commit a crime (but doesnt necessarily) and must be present at the point in time when a crime is committed to be relevant to the outcome and severity of a case. The presence and manifestation of mens rea can influence the classification of a crime when the actus reus is the same as another and the most salient example of this is manslaughter versus murder. If an individual committed an act which resulted in death they could be convicted with murder if they intended to take that life, or the lesser charge of manslaughter if they intended to take a risk that they could or should have realised could lead to death even if they didnt intend to take the life.

Whats more, intent to commit a crime is not specific to a victim. In a process known as transferred malice, someone who kills their victim whilst intending to kill another individual will still be convicted of murder due to their original intent to kill.

The definition of what constitutes a crime is defined by the presence of both of these concepts; an otherwise criminal consequence that results from events where no-one was intending to commit a crime, or was being reckless, broadly speaking, will be accidental. Having said that, there are however a limited number of offences that dont require mens rea, where the legislation determines that the intention of the offender is not relevant, and these are termed strict liability offences. Strict liability offences are more common in civil law but are still found in criminal law where they often involve motoring offences. As an example, the mens rea of someone who is speeding is not relevant to their prosecution, instead simply the actus reus of speeding is sufficient for a conviction. All areas of law can be complicated, convoluted and hold profound consequences, so anyone looking for further advice on criminal or civil law proceedings should seek professional advice from qualified criminal or civil law solicitors respectively.

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If you need anymore information and advice on the issues raised above then you can get in touch with a law firm such as these criminal solicitors based in London, this firm of solicitors in Cambridge or this South Coast based law firm.

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