Category:Common law offences in England and Wales
Pages in category "Common law offences in England and Wales"
The following 31 pages are in this category, out of 31 total, this list may not reflect recent changes (learn more).
The following 31 pages are in this category, out of 31 total, this list may not reflect recent changes (learn more).
1. Blasphemous libel – Blasphemous libel was originally an offence under the common law of England. Today, it is an offence under the law of Northern Ireland, it is a statutory offence in Canada and New Zealand. It is a form of criminal libel, historically, the common law offences of Blasphemy and Blasphemous libel were adopted from the common law of England as common law offences in British countries. The Stephen Code included the offence of Blasphemous libel but omitted Blasphemy, such prohibitions must also comply with the strict requirements of article 19, paragraph 3, as well as such articles as 2,5,17,18 and 26. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine, in both Canada and New Zealand it is not blasphemous libel to express in good faith any opinion on a religious subject. It remains an offence in some Australian states and territories, although the Commonwealth, for details, see Blasphemy law in Australia. In Canada, blasphemous libel is an offence under the Criminal Code and it is an indictable offence and is punishable with imprisonment for a term not exceeding two years. The offence of blasphemous libel, like all laws of Canada, is subject to section 2 of the Canadian Charter of Rights and Freedoms. To date, no court has been asked to consider whether blasphemous libel is consistent with the Charters guarantee of freedom of expression, the last prosecution of a charge of blasphemous libel was in 1935, in R v Rahard, in Quebec. In that case, the adopted a argument that prosecutor E. J. Murphy had proffered in the case of R v Sperry in 1926. If so, they are not to be tolerated any more than any other nuisance is tolerated and we must not do things that are outrages to the general feeling of propriety among the persons amongst whom we live. In Rahard, the Court found the Rev. Victor Rahard of the Anglican Church of Canada guilty of libel for his aspersions upon the Roman Catholic Church. In the Republic of Ireland, §13 of the Defamation Act,1961 prescribed penalties for blasphemous libel, in New Zealand it is an offence under section 123 the Crimes Act 1961 to publish any blasphemous libel. The maximum punishment is one year imprisonment, no one can be prosecuted without the consent of the Attorney General. In England and Wales, the common law offence of blasphemous libel was abolished on 8 July 2008 by the Criminal Justice, the Racial and Religious Hatred Act 2006 created an offence of inciting hatred against a person on the grounds of their religion. Blasphemous libel is an offence under the law of Northern Ireland. Section 7 of the Libel Act 1843 creates a defence, see also the Criminal Libel Act 1819, the Libel Act 1792 and section 8 of the Law of Libel Amendment Act 1888
2. Common assault – Common assault was an offence under the common law of England, and has been held now to be a statutory offence in the United Kingdom of Great Britain and Northern Ireland. It is committed by a person who causes another person to apprehend the immediate use of violence by the defendant. It was thought to include battery and it was also held that common assault and battery are two distinct offences, so that a charge that the accused assaulted and battered another person would be bad for duplicity. Section 39 of the Criminal Justice Act 1988 does not contain a definition of the common assault that appears there. What the offence consists of must be determined by reference to case law. A person commits an assault if he does an act by which he intentionally or recklessly causes another person to apprehend immediate unlawful violence, there must be some quality of reasonableness to the apprehension on the part of the victim. More generally, if the defendant threatens injury tomorrow, the victim has the opportunity to take avoiding action, thus, what is threatened must be capable of being carried out immediately. This would exclude a conditional threat, normally, both the one making the threat and the victim must be physically present because, otherwise, there would be no immediate danger. However, if a phone is used to transmit the threat and, from the words used, the victim reasonably understands that an attack is imminent. In Fagan v. Metropolitan Police Commissioner a police officer ordered the defendant to park his car and he reluctantly complied. In doing so, he drove the car on to the policeman’s foot and. Because of the toe cap in his boot, the policemans foot was not in actual danger. Albeit accidentally, the driver had caused his car to rest on the officers foot and this actus reus was a continuing act and the mens rea was formed during the relevant time. Whether realistically or not, the officer apprehended the possibility of injury so the offence was complete, in R v. Ireland, it was found that causing a person to apprehend violence can be committed by way of action or words. Words can also mean that otherwise threatening actions are rendered not capable of being an assault, in that case, the plaintiff told the defendant that he would not stab him, because the circuit judge was visiting town for the local assizes. On that basis, the defendant was deemed to have known that he was not about to be injured, the immediacy requirement has been the subject of some debate. The leading case, again, is R v. Ireland, one example of immediacy adopted by the House in that case was that a man who said, I will be at your door in a minute or two, might be guilty of an assault. The mens rea is that this fear must have been caused intentionally or recklessly
3. Common law offence – Common law offences are crimes under English criminal law and the related criminal law of other Commonwealth countries. They are offences under the law, developed entirely by the courts. In Australia the Criminal Code Act 1995 abolished all common law offences at the federal level, in Canada the consolidation of criminal law in the Criminal Code, enacted in 1953, involved the abolition of all common law offences except contempt of court. Common law offences were seen as vague and open to development by the courts in ways that might offend the principle of certainty. However, neither the Law Commission nor Parliament have completed the revisions of the law. In England and Wales common law offences are punishable by unlimited fines, in New Zealand common law offence were abolished under the Crimes Act 1961, with the exception of contempt of court and of offences tried by courts martial. The notion that common law offenses could be enforced in courts was found to be unconstitutional by the U. S. Supreme Court in United States v. Hudson. Some have argued that they are inconsistent with the prohibition of ex post facto laws, at the state level, the situation varies. Some states, such as New Jersey, have abolished common law crimes, nullum crimen, nulla poena sine praevia lege poenali CASE LAW on free B. E. A. G. L. E. S
4. Common scold – The Latin name for the offender, communis rixatrix, appears in the feminine gender and makes it clear that only women could commit this crime. The offence, which was exported to North America with the colonists, was punishable by ducking, being placed in a chair, although rarely prosecuted it remained on the statute books in England and Wales until 1967. In the Commentaries on the Laws of England, Blackstone says of this offence, Lastly, the prescribed penalty for this offence involved dunking the convicted offender in water in an instrument called the cucking stool. The cucking stool, according to Blackstone, eventually known as a ducking stool by folk etymology. Other writers disagree with Blackstones assertion equating the two sorts of punishment seat, the Domesday Book notes the use of a cucking stool at Chester, a seat also known as cathedra stercoris, a dung chair, whose punishment apparently involved exposing the sitters buttocks to onlookers. This seat served to punish not only scolds, but also brewers and bakers who sold bad ale or bread, whereas the ducking stool dunked its victim into the water. Francois Maximilian Misson, a French traveller and writer, recorded the method used in England in the early 18th century, The way of punishing scolding women is pleasant enough. They set up a post on the bank of a pond or river, and over this post they lay, almost in equilibrio, the two pieces of wood, at one end of which the chair hangs just over the water. They place the woman in this chair and so plunge her into the water as often as the sentence directs, another method of ducking was to use the tumbrel, which consisted of a chair on two wheels with two long shafts fixed to the axles. This would be pushed into the pond and the shafts would be released, tipping the chair up backwards. A scolds bridle, known in Scotland as a brank, consists of a metal mask or head cage that contains a tab that fits in the mouth to inhibit talking. Some have claimed that convicted common scolds had to wear such a device as a preventive or punitive measure, legal sources do not mention them in the context of the punishment of common scolds, but there are anecdotal reports of their historical use as a public punishment. A plaque on the Fye Bridge in Norwich, England claims to mark the site of a stool. On her fourth conviction, the Kings Bench declined to dunk her again, and instead ordered her to pay a fine of three marks, and ordered her imprisoned until payment took place. And a 1780 poem by Benjamin West, who wrote that, There stands, my friend, in pool, An engine calld a ducking-stool, By legal powr commanded down, The joy. While these literary sources do not prove that the punishment still took place, in The Queen v. Foxby,6 Mod. 11, counsel for the stated that he knew of no law for the dunking of scolds. The tenor of Holts remarks however suggests that he found the punishment an antiquarian curiosity, the last recorded uses of the stool for ducking involve a Mrs. Ganble at Plymouth and Jenny Pipes, a notorious scold from Leominster
5. Compounding a felony – Compounding a felony was an offence under the common law of England and was classified as a misdemeanour. It consisted of a prosecutor or victim of an offence accepting anything of value under an agreement not to prosecute, or to hamper the prosecution of, to compound, in this context, means to come to a settlement or agreement. It is not compounding for the victim to accept an offer to return stolen property, or to make restitution, under the common law, compounding a felony was punishable as a misdemeanor. Many states have enacted statutes that punish the offense as a felony, compounding a misdemeanor is not a crime. However, an agreement not to prosecute a misdemeanor is unenforceable as being contrary to public policy, compounding has been abolished in England and Wales, in Northern Ireland, in the Republic of Ireland, and in New South Wales. In each of these cases, it has replaced by a statutory offence
6. Conspiracy to defraud – Conspiracy to defraud is an offence under the common law of England and Wales and Northern Ireland. Conspiracy to defraud therefore contains two key elements, that the conspiracy involved dishonesty, and that if the conspiracy was undertaken, if the victim has suffered of any financial or other prejudice there of, there is no need to establish that the defendant deceived him or her. For the mens rea, it is necessary to prove that the purpose of the conspirators to cause the victim economic loss, for the test of dishonesty, see R v Ghosh 2 All ER689. Section 32 of the Theft Act 1968 did not, by abolishing the common law offence of cheating, section 5 of the Criminal Law Act 1977 does not affect the common law offence of conspiracy so far as it relates to conspiracy to defraud. Paragraphs and are derived from section 1 of the Criminal Law Act 1977, as to section 12, see R v Rimmington, R v Goldstein UKHL63. History Before 20 July 1987, section 1 of the Criminal Law Act 1977 did not apply in any case where the agreement in question amounted to a conspiracy to defraud at common law, see section 5 of the Criminal Law Act 1977. A person guilty of conspiracy to defraud is liable on conviction on indictment to imprisonment for any term not exceeding ten years, or to a fine, Conspiracy to defraud is a Group B offence for the purposes of Part I of the Criminal Justice Act 1993. See article 11 of the Criminal Justice Order 1988 Conspiracy Law Commission Report No 228 Conspiracy To Defraud Smith, some Comments On The Law Commissions Report CLR209. Clarkson and Keating Criminal Law, Text and Materials, Criminal Law, Text, Cases and Materials. Sentencing Manual - Conspiracy to Defraud Her Majestys Attorney General, guidance on Use of the common law offence of Conspiracy to Defraud January 2007
7. Embracery – In English law, it was an offence both at common law and by statute, punishable by fine and imprisonment. As a statutory offence it dates back to 1360, the offence is complete, whether any verdict has been given or not, and whether the verdict is in accordance with the weight of evidence or otherwise. The person making the attempt, and any member of the jury who consents, are equally punishable. The legal term embracery comes from the Old Fr. embraseour and this is unrelated to the common word embrace, i. e. to hold or clasp in the arms, which is from French embracer, from Latin bracchia, arms. The false verdict of a jury, whether occasioned by embracery or otherwise, was considered criminal. The Juries Act 1825, in abolishing writs of attaint, made an exemption as regards jurors guilty of embracery. Prosecution for the offence has been so extremely rare that when a case occurred in 1891 it was stated that no precedent could be found for the indictment, the defendant was fined £200, afterwards reduced to £100. By 2010 the offence was regarded as obsolescent and such misconduct more likely to be charged as perverting the course of justice, the offence was abolished by section 17 of the Bribery Act 2010, as from 1 July 2011. In the United States, embracery prosecutions have occurred as recently as 1989, jury tampering This article incorporates text from a publication now in the public domain, Chisholm, Hugh, ed. article name needed
8. Kidnapping – In criminal law, kidnapping is the abduction or unlawful transportation of a person, usually to hold the person against his or her will. This may be done for ransom, wikipedia. org/wiki/Stockholm_syndrome Kidnapping that does not result in a homicide is an offence that comes with a maximum possible penalty of life imprisonment. A murder that results from kidnapping is classified as 1st-degree, with a sentence of imprisonment that results from conviction. Part 1 allows sentencing kidnappers to maximum imprisonment of 8 years or a fine of the fifth category, part 2 allows maximum imprisonment of 9 years or a fine of the fifth category if there are serious injuries. Part 3 allows maximum imprisonment of 12 years or a fine of the fifth if the victim has been killed. Part 4 allows sentencing people that collaborate with kidnapping, part 1,2 and 3 will apply also to them. Kidnapping is an offence under the law of England and Wales. In R v D, Lord Brandon said, First, the nature of the offence is an attack on, and infringement of and this is the case regardless of the age of the child. A very small child will not have the understanding or intelligence to consent and this means that absence of consent will be a necessary inference from the age of the child. It is a question of fact for the jury whether a child has sufficient understanding. Lord Brandon said, I should not expect a jury to find at all frequently that a child under fourteen had sufficient understanding and intelligence to give its consent. If, on the hand, the child did not consent. Mode of trial Kidnapping is an indictable-only offence, sentence Kidnapping is punishable with imprisonment or fine at the discretion of the court. There is no limit on the fine or the term of imprisonment that may be imposed provided the sentence is not inordinate. The use of force to take and detain will also be regarded as an assault, law in the United States follows from English common law. The fact that a victim may have been taken across state lines brings the crime within the ambit of federal criminal law. Most states recognize different types of kidnapping and punish accordingly, New York bases its definition of first-degree kidnapping on the duration and purpose. There are several deterrents to kidnapping in the United States of America, among these are, The extreme logistical challenges involved in successfully exchanging the money for the return of the victim without being apprehended or surveiled
9. Manslaughter in English law – In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea. In England and Wales, the practice is to prefer a charge of murder. The jury then decides whether the defendant is guilty or not guilty of murder or manslaughter. On conviction for manslaughter, sentencing is at the judges discretion, manslaughter may be either voluntary or involuntary, depending on whether the accused has the required mens rea for murder. Voluntary manslaughter occurs when the defendant kills with mens rea, the Homicide Act 1957 now provides two defences which may be raised to allow the court to find the accused guilty of voluntary manslaughter, diminished responsibility and suicide pact. The Coroners and Justice Act 2009 creates the defence of loss of control, under section 2 of the Homicide Act 1957 there are three requirements for the defendant to raise the defence of diminished responsibility. Under section 2 of the Act it is for the defendant to prove he suffered such a condition on the balance of probabilities. An abnormality of mind has been defined by Lord Parker CJ as ‘as state of mind so different from that of human beings that the reasonable man would term it abnormal’. In deciding whether this state of mind exists the jury should consider medical evidence, the jury does not have to accept the medical evidence if other material conflicts with and outweighs it. The Homicide Act specifies three causes one of which must cause the abnormality, they are a condition of arrested or retarded development of mind, whether the abnormality is caused by one of the specified causes is a matter for medical evidence alone. Alcoholism is capable of being an abnormality of mind even if there is no damage to the brain. Whether the abnormality substantially impaired the defendant’s mental responsibility for the killing is a question of degree for the jury, in R v Lloyd the Court of Appeal held that the lack of control must simply be ‘more than trivial’. See sections 54 and 55 of the Coroners and Justice Act 2009, section 4 of the Homicide Act 1957 introduced the defence of suicide pact. Parliaments intention was to show compassion for those who had been involved in a suicide pact. Section 4 defines a suicide pact as ‘a common agreement between two or more persons having for its object the death of all of them, whether or not each is to take his own life’. Further the accused must have had an intention of dying in pursuance of the pact to avoid the accused entering into a supposed pact with the real intention of committing murder. Involuntary manslaughter arises where the accused did not intend to cause death or serious injury, for these purposes, recklessness is defined as a blatant disregard for the dangers of a particular situation. An example of this would be dropping a brick off a bridge, landing on a persons head, killing him
10. Murder in English law – Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in one person kills another with the intention to unlawfully cause either death or serious injury. The element of intentionality was originally termed malice aforethought although it required neither malice nor premeditation, the unlawful killing of a reasonable person in being under the King peace with malice aforethought express or implied. Die of the wound or hurt, etc. within a year, the latter clause was abolished in 1996. A further historic rule, the felony murder rule, was abolished in the Homicide Act 1957, the effect of this rule are partly retained despite abolition, since intent to kill is not necessary - intent to cause serious injury is sufficient for murder if death results. Unlawfully means without lawful justification or excuse, thus, the defendant cannot choose how the victim is to act, nor what personality to have. There are conflicting authorities on the point, R v Jordan. In short, any contingency that is foreseeable, will maintain the chain, put the other way, only some unexpected act by a third party which places the original attack as a merely a background context, or some unpredictable natural phenomenon will break the chain. For a killing to amount to murder by a defendant, the defendant must have caused the death of a creature in rerum natura. The phrase as a whole is usually translated as a life in being, i. e. where the cord has been severed. The case Attorney Generals Reference No.3 of 1994 is a recent case involving a murder charge for death of an unborn child. The Law Lords considered the case of a man who stabbed his pregnant wife in an argument, the wife recovered but delivered the baby prematurely. The baby died some time after the premature birth, the cause of death was simply that she had been born prematurely due to the effect of the attack on the mother, rather than due to any injury. The Law Lords concurred that a foetus, although protected by the law in a number of ways, is not a separate person from its mother in English law. As such in the case where a husband stabbed his pregnant wife, causing premature birth. Until she had been alive and acquired a separate existence she could not be the victim of homicide. Attention to the foreseeability on the part of the accused that his act would create a risk. All that it is needed, once causation is established, is an act creating a risk to anyone, the unlawful and dangerous act of B changed the maternal environment of the foetus in such a way that when born the child died when she would otherwise have lived
11. Obscene libel – The publication of an obscene libel was an offence under the common law of England. Prior to the abolition by section 1 of the Criminal Law Act 1967 of the distinction between felony and misdemeanour, it was regarded as a misdemeanour and it has been abolished in England and Wales and Northern Ireland. The existence of this offence was denied by Hawkins, and by Holt and it was an offence under the common law of England and Wales to publish an obscene libel. For this purpose the word obscene was defined by section 1 of that Act. This was probably not the case, because the definition is a paraphrase of the definition given by Lord Cockburn. The offence was abolished when section 73 of the Coroners and Justice Act 2009 came into force on 12 January 2010, obscenity Criminal libel Libel Halsburys Laws of England, 4th Edition,2006 reissue, vol. 753 Archbold Criminal Pleading, Evidence and Practice, para
12. Perverting the course of justice – Perverting the course of justice is an offence committed when a person prevents justice from being served on him/herself or on another party. In England and Wales it is a common law offence, carrying a sentence of life imprisonment. Statutory versions of the offence exist in Australia, Canada, Hong Kong, Ireland, doing an act tending and intending to pervert the course of public justice is an offence under the common law of England and Wales. This offence is sometimes referred to as attempting to pervert the course of justice. An attempt to pervert the course of justice is a common law offence. It is not a form of the offence of attempt, and this offence is triable only on indictment. In Canada, the equivalent offence is referred to as obstructing justice and it is set out s 139 of the Criminal Code,139. The maximum penalty is 14 years imprisonment
13. Public nuisance – In English criminal law, public nuisance is a class of common law offence in which the injury, loss or damage is suffered by the local community as a whole rather than by individual victims. In Kent v Johnson 21 FLR177203, Public nuisance is an act or omission. Which endangers the lives, safety, health, property or comfort of the public or by which the public are obstructed in the exercise or enjoyment of any right common to all. And also, Public Nuisance is an offense at some common law and by statute under some states, for example in case Kent v Johnson, Criminal Code s 230. Title to sue In the case Walsh v Ervin VLR361, as the principle is usually stated. In modern world, daily inconveniences and annoyances are part of unreasonable, however, there are some examples that shows even if it could cause interference to the public, there is no public nuisance. The test is not whether an obstruction has been caused,147, and cf. Fabbri v. Marris. The nuisance action began in twelfth century England as a criminal writ and it was used in cases that involved encroachments upon the King’s land or the blocking of public roads or waterways. The King sought to punish these criminal infringements, commonly known as “purprestures, ” through criminal proceedings. ”As these examples demonstrate, spencer describes the offence as. a rag-bag of odds and ends which we should nowadays call public welfare offences. But the common feature of the crime is that members of the public suffer a common injury through interference with rights which they enjoy as citizens, in Attorney General v PYA Quarries Ltd. It is, however, clear, in my opinion, that any nuisance is public which materially affects the reasonable comfort, in R v Madden 1 WLR1379 the defendant telephoned a bomb hoax to a steel works whose business was disrupted for about an hour. LR435 the defendant made 605 obscene telephone calls to 494 different women over a period of four years and this repetitive behaviour over a long period, intended to cause offence and alarm, was held the kind of behaviour which the public has an interest in condemning. This is not without its problems because each telephone call lacks the element of common injury, as a comparison, the cases of R v Ruffell 13 Cr. At each party there was major disruption and the noise of music. R.295 a group who agreed to secure the release of a restricted Broadmoor patient was convicted of conspiracy to effect a public nuisance. The court seems to have assumed that the public would have exposed to danger had the plan been put into effect. That the Crown had failed to any actual danger or common injury was not considered. Similarly, in R v Millward 8 Cr, app R209 the defendant made hundreds of telephone calls to a young woman police officer with whom he had become infatuated, at the police station where she worked
14. Sedition – Sedition is overt conduct, such as speech and organization, that tends toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent to lawful authority, Sedition may include any commotion, though not aimed at direct and open violence against the laws. Seditious words in writing are seditious libel, a seditionist is one who engages in or promotes the interests of sedition. Typically, sedition is considered an act, and the overt acts that may be prosecutable under sedition laws vary from one legal code to another. Where the history of legal codes has been traced, there is also a record of the change in the definition of the elements constituting sedition at certain points in history. This overview has served to develop a sociological definition of sedition as well, the term sedition in its modern meaning first appeared in the Elizabethan Era as the notion of inciting by words or writings disaffection towards the state or constituted authority. Australias sedition laws were amended in anti-terrorism legislation passed on 6 December 2005, updating definitions, opponents of these laws have suggested that they could be used against legitimate dissent. He had also brushed aside recommendations to curtail new clauses outlawing “urging conduct” that “assists” an “organisation or country engaged in armed hostilities” against the Australian military and these laws were amended in Australia on 19 September 2011. The ‘sedition’ clauses were repealed and replaced with ‘urging violence’, during World War II former Mayor of Montreal Camillien Houde campaigned against conscription in Canada. On 2 August 1940, Houde publicly urged the men of Quebec to ignore the National Registration Act, three days later, he was placed under arrest by the Royal Canadian Mounted Police on charges of sedition. After being found guilty, he was confined in internment camps in Petawawa, Ontario, upon his release on 18 August 1944, he was greeted by a cheering crowd of 50,000 Montrealers and won back his position as the Mayor of Montreal in the election in 1944. A Sedition Ordinance had existed in the territory since 1970, which was consolidated into the Crime Ordinance in 1972. The bill was shelved following massive opposition from the public, in 2010, writer Arundhati Roy was sought to be charged with sedition for her comments on Kashmir and Maoists. Two individuals have been charged with sedition since 2007, binayak Sen, an Indian paediatrician, public health specialist, and activist was found guilty of sedition. He is national Vice-President of the Peoples Union for Civil Liberties and they were sentenced to life imprisonment, but he got bail in Supreme Court on 16 April 2011. On 10 September 2012, Aseem Trivedi, a political cartoonist, was sent to judicial custody till 24 September 2012 on charges of sedition over a series of cartoons against corruption. Trivedi was accused of uploading ugly and obscene content to his website, trivedis arrest under sedition has been heavily criticised in India. The Press Council of India termed it a stupid move, in February 2016, JNU student union president Kanhaiya Kumar was arrested on charges of Sedition under section 124-A of Indian Penal Code