Routledge Student Statutes

Book Information

Criminal Law Statutes 2012-2013

4th Edition

Author: Jonathan Herring

Publication date: 15th August 2012

Purchasing Options:

• Paperback
• Examination Copy

How to use this Book

Sometimes students are rather nervous of statutes. They seem long, complex and designed to confuse or bore, rather than enlighten the reader. But be bold. Once you get the hang of them statutes can (believe it or not) be interesting. Well, fairly interesting! Some people end up spending their whole lives drafting statutes. I met one such person (a statutory draftsman) at a party and he was great fun!

For criminal lawyers it is natural, when looking at a statute to break down the offence into three elements:

• The conduct element (sometimes called the actus reus)
• The mental element (sometimes called the mens rea)
• Defences

For example consider this offence from the Criminal Damage Act 1971, section 1:

A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

Reading this carefully you should be able to see that the conduct element is "destroying or damaging property belonging to another". The mental element is that tend defendant must intend or be reckless that property will be destroyed or damaged. A defence is provided if there is a lawful excuse. That is explained in section 5 of the Act.

A couple of things to remember about criminal statutes. First, there are a few offences which are common law offences and so not found in statutes. Second, some defences are general defences and so may not be mentioned in the statute. For example, insanity is a defence to all crimes, and so is not mentioned in the definition of an offence in a statute. Third, don't expect the statute to provide all the answers. Sometimes statutes are ambiguous and a court will need to interpret them. If you read the definition of criminal damage above very carefully you may see that it is unclear whether the defendant must intend or be reckless that the property he is damaging belongs to another. Such questions need to be resolved by the courts. A key job for a lawyer can be to see how the statute applies to a particular case and whether there can be any debate over whether a certain kind of conduct falls under the definition of the offence in a statue.

Jonathan Herring

Quizzes

Interpreting Statutes

Scenario 1

Albert sends Brenda an unpleasant text. He then puts a rude message about her up on a website. Brenda is very upset. Albert says that he only meant it as a joke. Has Albert committed an offence under the Protection from Harassment Act 1997?

Scenario 2

Michael throws his shoe at Nigel. The shoe hits Nigel and gives him a black eye. Michael says he did not realise that Nigel would be that badly hurt. Has Michael committed the offence of assault occasioning actual bodily harm?

Scenario 3

Penny tells Queenie to kill Tim. Penny does not mean Queenie to take her seriously, but realises that she might. Has Penny committed an offence under s. 44 Serious Crime Act 2007?

Interpretation: A History

It is tempting to think that once a statue has been passed it has become law and that is the end of the story. But by no means... its adventure has just begun. That is because the beautifully crafted language of the draughtsman now falls into the hands of crafty lawyers who will do all they can to twist the words to their advantage. It falls to the judiciary to decide who is right. It sometimes takes only a matter of time before a statute which appeared to have a crystal clear meaning has been interpreted in the rough and tumble of the court room in a way beyond all recognition to its original.

Consider this:

CRIMINAL DAMAGE ACT 1971

1. DESTROYING OR DAMAGING PROPERTY

1. A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

Pretty clear you might think. Not so.

First that word "reckless". At first the courts thought that was straight forward. The House of Lords in Cunningham explained that in relation to another offence it meant that it meant that a defendant foresaw a risk and took it. Not long afterwards, however, in Caldwell their lordships said the word reckless in the Criminal Damage Act 1971 did not have the same meaning as other offences and that it included a defendant who had failed to foresee an obvious risk. Their Lordships later went back on their view and decided that in fact recklessness was restricted to the meaning given in Cunningham.

The word "damage" has also undergone much discussion. Does it include very minor harm to property? Is spitting on a coat damage? In R v A it was held not to be, whereas graffiti which would soon be washed away by rain was damage (R v Hardman). And what about scratching a scaffolding pole. Could that be damage given that it did not render the pole less useful or valuable (Morphitis v Salmon)? You can begin to see why a word which appeared to have a straight-forward meaning, suddenly became hard to interpret.

We could go on about the difficulties the court have had in interpreting this provision. But the point is that when drafting statutes it is impossible to imagine every bizarre fact that can arise. Even if you tried it would mean producing statutes that were absurdly long in trying to deal with every imaginable case. So Parliament passes legislation which should be sufficiently clear to deal with most cases and trusts the judges to interpret in a sensible way when dealing with less straight-forward ones.

Useful Websites

1. www.homeoffice.gov.uk
   This is the website for the Home Office.  The Home Office oversees policy towards the police and crime generally.  Here you can find out about areas of the law where the government is considering reform.  The Home Office also oversees prosecution and punishment.
2. www.victimsupport.org.uk
   This is the website for the organization Victim Support.  This group seeks to assist those who have been the victims of crime.  The website can give you an insight into the effects of crime upon victims. 
3. www.alcoholconcern.org.uk
   This is the website of Alcohol Concern.  This is an organization which concerned about the impact of alcohol on our society.  There is plenty of information on the website about the links between excessive drinking and crime.  It produces reports which seek to address these issues.
4. www.sfo.gov.uk
   This is the website for the Serious Fraud Office.  It investigates and prosecutes deceptions and financial malpractice on a large scale.  It examines most frauds involving substantial sums or the national interest.
5. www.rapecrisis.org.uk
   This is the website of rape crisis.  It is an organization that works for female victims of rape.  It produces reports that consider the impact of rape and propose reforms to the law. 
6. www.statistics.gov.uk
   This is the website for UK National Statistics.  It provides data on a wide range of issues.  In particular, it produces details on the numbers of crimes reported to the police and estimates of the numbers of crimes committed.
7. www.cps.gov.uk
   This is the website for the Crown Prosecution Service.  This is the body which has responsibility for the prosecution of crimes.  It gives useful information about how it is decided which crime to charge a defendant with.
8. www.sentencingcouncil.judiciary.gov.uk
   This is the website for the Sentencing Council.  This produces guidance to judges on how to sentence for particular offences.  It provides suggestions for what factors might mitigate or aggravate the sentence.
9. www.howardleague.org
   This is the website for the Howard League for penal reform.  It is particularly interested in finding ways of rehabilitating offenders into society.  It promotes the use of sentences which are beneficial to offenders.
10. www.lawcom.gov.uk
    This is the website for the Law Commission, which is an independent body, set up by Parliament to recommend reform to the law.  It has been particularly active in the area of criminal law.