1.5Principles of criminal law
A number of principles or ‘ideals’ that underpin the operation of the substantive criminal law have been identified over the long history of our common law system. The principles, similar to the concept of the Rule of Law, are essentially the ‘aims’ or ‘models’ of behaviour and attitude expected of the criminal law.
The four key principles are identified in Figure 1.1 and explained below at 1.5.1–1.5.4.
For a more detailed account of the four principles, see Horder, Ashworth’s Principles of Criminal Law, 9th edn (OUP, 2019).
Figure 1.1The principles of the criminal law
1.5.1 Principle of ‘fair warning’
This principle reflects the idea that the law should be communicated in a clear and accessible manner to the public. Given that England and Wales has a common law legal system, it has long been advocated that, in order to give true effect to this principle, the criminal law should be codified, as in civil law systems. Robinson (‘A Functional Analysis of Criminal Law’ (1994) 88 Nw UL Rev 857) is of the view that multiple codes are required in order to promote this principle. Robinson advocates the use of a code written in simple language explaining to the public what they can and cannot do (a ‘rule articulation’ code) and codes that are used for the administration and enforcement of law (a ‘liability assessment’ code).
The principle of fair warning is essential to understanding how an offence should be defined. References to undefined or ambiguous terms in a statute, for example, would be contrary to the principle of fair warning. By way of example, the term ‘dishonesty’ used in the Theft Act 1968 has not been afforded a statutory definition, despite its dominating presence in the law. The common law has had to step in to provide such a definition, but it is necessary, for the promotion of this principle, that the definition is clear, accessible and informs the general public of what they cannot do (ie what is dishonest and, as such, what they cannot do which is dishonest).
1.5.2 Principle of ‘fair labelling’
Horder (Ashworth’s Principles of Criminal Law, 9th edn (OUP, 2019)) states that the concern of fair labelling is as follows:
… to see that widely felt distinctions between kinds of offences and degrees of wrongdoing are respected and signalled by the law, and that offences are subdivided and labelled so as to represent fairly the nature and magnitude of the law-breaking.
In essence, there must be an accurate and visible link between the label (ie the name of the offence) and the conduct criminalised. The fairness of labelling is relevant for two main reasons:
•It promotes the fair warning principle in that people who understand the label associated with the offence will inevitably understand the offence and what they can and cannot do.
•It promotes transparency and objectivity in the criminal justice system by stigmatising individuals with an accurate label (eg a rapist or a murderer).
The key in this discussion, however, is on the concept of fair labelling. 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