One of the biggest criticisms of the law of murder is the fact that an individual may be guilty of murder where they kill but did not intend to kill; rather, they intended to cause serious harm. Is it appropriate, or ‘fair’, to label these individuals as murderers in circumstances where they lacked the actual intention to kill? The label must fit the crime.
1.5.3 Principle of ‘welfare’
The idea behind this principle is that the law acts in a quasi-paternalistic way by ensuring that society is protected from harm. This involves harm to individuals and harm to property. The concept of welfare, however, depends on the perception one adopts. From the standpoint of a victim, the welfare principle ought to be designed to ensure that the victim is protected from interference by another (linked closely with the autonomy principle), and in circumstances where an interference has occurred, the legal system is designed to promote the conviction of the offender. At the same time, the welfare principle must ensure that those alleged to have committed offences are appropriately safeguarded through ensuring proper procedures are adopted, a fair trial is in place and any sentence passed, should there be one, is reflective of the offence committed. The difficulty here is finding that appropriate balance between conflicting interests and understanding the circumstances where the interests come into play.
1.5.4 Principle of ‘autonomy’
The last principle is that of autonomy. The idea behind autonomy is that an individual is subject to little restraint with minimal interference from another person. Autonomy is often linked with self-determination and integrity in the sense that no undue influence, pressure or interference should be made. Naturally, of course, the criminal law is designed to restrict the manner in which we can act – therefore interfering with our autonomy. In this respect, any interference with autonomy should be kept to a minimum as over-criminalisation is likely to interfere with this sacred principle.
1.6Sources of criminal law
Throughout this textbook, references will be made to a multitude of legal authority stemming from both domestic and international sources. Before it is possible for you to get to grips with these sources of law, it is first necessary identify the basis, use and relevance of the authority in England and Wales. Being able to identify the relevant source of law is key when answering questions in criminal law.
1.6.1 Common law
For many years, the common law acted as the driving force for legitimising and providing authority for legal principles. The common law has developed over hundreds of years from the judgments and decisions of the judiciary in the senior appellate courts. Through the operation of case precedent and the principle of stare decisis (‘let the decision stand’), England and Wales has operated, and continues to operate, as a common law system. Although many rules and principles have now been codified in legislative provisions, the common law continues to act alongside and fortify legislation in major areas of the criminal law. One important example of this is the law of murder, which continues to this day to operate as a common law offence defined, and interpreted, by judicial decision making. In addition, as part of their role, the judiciary are responsible for interpreting and giving effect to legislative provisions – such interpretations add to the common law and the judicial law-making system that we have today.
1.6.2 Legislation
The term ‘legislation’ is used, and preferred here, over the term ‘statute’ to refer to any law, primary or secondary, created by Parliament. Although the majority of criminal legislation is set out in statute, ie Acts of Parliament, a number of provisions continue to operate by other forms of legislation, such as byelaws (a form of delegated legislation). Unfortunately, there is no ‘catalogue’ of legislation for the criminal law. Many offences are contained within statutes which, for the most part, do not concern the criminal law. For example, the Companies Act 2006 creates a number of statutory criminal offences.
1.6.2.1 Case law and legislation
Although the starting point in any case is to consider the wording of the statute that creates the offence, if there is one, this is merely the first step. In order to properly understand legislation, one needs to appreciate how the courts interpret such legislation. For example, s 18 of the Offences Against the Person Act (OAPA) 1861 prescribes the offence of maliciously causing grievous bodily harm with intent. Without an appreciation of the meaning of such words as ‘maliciously’, ‘causing’ and ‘bodily harm’, one cannot truly understand the circumstances in which the offence applies. In this respect, case law is as important, if not arguably more important, than its legislative counterpart. Indeed, the Law Commission in a 1992 Consultation Paper, ‘Legislating the Criminal Code: Offences against the Person and General Principles’ (Law Com No 122, 1992) noted that some of the most important offences under the OAPA 1861 ‘have become in effect common law crimes, the context of which is determined by case-law and not by statute’.
For a discussion of the principles of statutory interpretation, see Sanson, Statutory Interpretation, 2nd edn (OUP, 2016).
1.6.3 International influences
Although the English legal system is distinct and admired across the world, it cannot of course be said to be perfect. Nor can it be said that the English legal system operates in a vacuum without any influence or information from other international states and organisations. This section will briefly consider international influences on the criminal law.
1.6.3.1 European Union
The origins of the EU, as we know it, can be located in the Treaty establishing the European Economic Community (EEC) 1957 (Treaty of Rome), signed by six founding states. This was the Treaty that set the foundations that the EU is built upon today. The UK joined the EEC in 1973 following the enactment of the European Communities Act (ECA) 1972.
The EU is built on three pillars and its role was traditionally understood as regulating trade and commercial matters in Member States. Criminal law matters have remained, largely, a matter for the Member States to decide for themselves. In this respect, it can be said that, traditionally, the EU lacked the competency to legislate in criminal law matters – this would explain the lack of consistency or uniformity across EU Member States in such matters as the age of criminal responsibility (see Chapter 7) and the age of consent to sexual conduct (see Chapter 10). In more recent years, however, EU law has been seen to have some impact on the domestic criminal law in the context of trafficking offences and European arrest warrants.
Ultimately, however, English and Welsh criminal law remains largely a matter of national regulation. As a result of the European Union Referendum Act 2015, a national referendum as to whether the UK should leave the EU was held on 23 June 2016. By a narrow margin, the vote to leave was successful and the UK is now in the process of formally removing itself from the EU. The future influence of EU law generally remains largely unknown; however, it is certain that the domestic criminal law will for the most part go untouched.
1.6.3.2 European Convention on Human Rights (ECHR)
The ECHR was drawn up by the Council of Europe, a body set up
