Criminal Law: Sources and Principles

‘Criminal Law is not static. The process of criminalisation defines what behaviour should and should not constitute a crime and we see criminal wrongdoing changing as values and tensions in society change’.

To label an act or omission as ‘criminal’ it must violate the law and is usually an offence against the state however the act or omission may also be punishable in a civil matter. This is demonstrated in a case of medical negligence involving Mr Mahesh Goel (a doctor) removing the only working kidney in Mr Graham Reeves's body by mistake resulting in death. Therefore, this would be a case of manslaughter and medical negligence. Deviance and crime violate the norms and the laws of societies. Some acts may be deemed as criminal and deviant, therefore they can overlap. Society's opinions and views change and therefore the law changes. You can see this in the Sexual Offences Act 1967 which replaced the old law on same-sex relationships between men. This was a result of the Wolfenden Report. The report proposed that there ‘must remain a realm of private morality and immorality which is, in brief, and crude terms, not the law's business' and recommended that homosexual acts between two consenting adults should no longer be a criminal offence. This demonstrates how people’s views can influence the law supporting Lawrence Friedman's argument that Parliament does not lead in law-making, but it responds as to public response and views. As seen in the Firearms (Amendment Act) 1977 and the Marriage (Same Sex Couples) Act 2013. 

There are three main sources of Criminal Law. Common Law is a law created by judges that are not set out in statutes, developed through Judicial Precedent, established by the Courts. This is used in unusual cases where the outcome cannot be determined based on existing Statutes or written rules of law. An example of a common law offence would be murder. Legislation is a law created by Parliament that must go through different stages to be passed as an Act. In contrast to Common Law, these crimes are set out in Acts such as the Road Traffic Act 1988 and the Criminal Justice Act 1998. Rather than just having a definition to the crime, the legislation involves multiple sections in the Acts setting out exceptions and what offences the Act applies to. Another source of Criminal Law would be the judge's interpretation of the crime. This is called Statutory Interpretation and it is how judges interpret and apply the law using multiple rules to assist them. This can be used to interpret difficult words and phrases in Acts that have multiple meanings, such as in the Dangerous Wild Animals Act 1976 where the act states that no person shall keep any dangerous wild animal except under the authority of a license granted in accordance with the provisions of this Act by a local authority and it is then the judge's decision to interpret what a ‘dangerous wild animal’ is. The decisions they make through this process are binding to lower courts. 

Proposals for new crimes such as the ban on smoking in public areas as a result of the pressure group ASH, and proposals for the reform or abolition of existing crimes such as the most common Sexual Offences Act 1967 which decriminalised homosexual acts between men over the age of 21, may come from a variety of sources such as; The Government (the Home Office), The Law Commission for England and Wales whose job is to keep the law under constant review and Campaigning groups such as Action on Smoking and Health (ASH) and Justice 4 Fathers. A present-day example of proposals for new crimes would be shown in the Coronavirus Act 2020. There are new laws in place on social gatherings capping the maximum number of people in a group (inside) to 6. However, when on a national lockdown, it is a crime to meet with anyone from a different household whether you're inside or out.

There are many principles to criminalisation as said here by Allen in the Textbook on Criminal Law, these decisions are not easy: “The decision to criminalise or decriminalise particular activities, whether by judicial decision or legislation, is far from straightforward”. The question is, how should legislators and judges decide what should be criminalised or decriminalised it comes down to many principles such as analysing the immorality, harmfulness and offensiveness of the behaviour in question. They also look at the lack of alternative methods of preventing or dealing with the behaviour, the ability of the State to enforce the criminal law against the behaviour and the rights of those affected by the behaviour v. the rights of those engaging in it.

Since the coming into force of the Human Right Act 1998, a principle which legislators and appeal judges must apply is whether the criminalisation of the activity in question is compatible with the Convention rights contained in the HRA 1998.