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 after the end of the Second World War. The Council (which is entirely distinct from the EU) was established to prevent any repetition of the atrocities that had occurred during the war and the period leading up to it. The ECHR was signed in Rome in 1950, ratified by the UK in 1951 and came into force in 1953. From 1966 onwards, citizens of the UK had the right to petition the ECtHR (which sits in Strasbourg) where there was an alleged breach of human rights.
The ECHR was transposed (ie incorporated) into national law by the Human Rights Act 1998, which came into effect on 2 October 2000. Prior to the incorporation of the ECHR in domestic law, there was no opportunity for citizens to enforce their Convention rights in the domestic courts, meaning that individual petition directly to the ECtHR was the only way to seek a remedy for alleged breaches.
Convention rights
Unlike domestic legislation or the common law, which sets out the offences that an individual may commit and the defences they may equally plead to a charge, the ECHR sets out a number of ‘Convention rights’ that apply to all natural persons. Table 1.2 lists these rights and considers examples of their application in the criminal law.
Table 1.2 Convention rights under the ECHR
| Article | Application |
| Article 2: Right to life | All persons are granted the right to life and the protection of such right by the state.In cases where a defendant kills another in self-defence, the law has to be interpreted in light of Article 2. |
| Article 3: Prohibition of torture | All persons are granted the freedom from torture and other inhuman and degrading treatment. Whether the chastisement of children (by parents or those responsible for children (eg teachers in schools)) falls within the prohibition in Article 3 has long been the subject of argument. Torture is a criminal offence under s 134 of the Criminal Justice Act 1988. |
| Article 4: Prohibition of slavery | All persons are granted the freedom from slavery and other forms of forced labour. Slavery is now criminalised under s 1 of the Modern Slavery Act 2015, which is particularly relevant in the context of human trafficking and sexual exploitation. |
| Article 5: Right to liberty | All persons are granted the right to liberty and security. Article 5 is particularly relevant in terms of pre-trial imprisonment and detention pending trial and is also relevant regarding the state’s obligations to those found to be legally insane. |
| Article 6: Right to a fair trial | All persons are granted the right to a fair trial and to have their case heard and decided by an impartial tribunal. This right grants the presumption of innocence to a defendant and enforces obligations on the prosecution to prove the case against the defendant. |
| Article 7: Prohibition on retrospective law | All persons are granted the freedom from retrospective application of laws. Article 7 also requires sufficient clarity and consistency in the law and a minimised allowance of discretion. |
| Article 8: Right to private life | All persons are granted the right to private and family life. This right means that the life of an individual cannot be interfered with by another. Such rights include the right to privacy and the protection of personal information. |
| Article 9: Freedom of thought, conscience and religion | All persons are granted the freedom from other persons interfering with their thought or religion. Specific offences have been created to reflect the freedom of religion, eg aggravated offences based on religion or belief. |
| Article 10: Freedom of expression | All persons are granted the freedom of speech and the freedom to express themselves in a particular way. This right must be balanced against the right to privacy in Article 8. |
| Article 11: Freedom of assembly and association |
All persons are granted the freedom to assemble. Article 11 is particularly relevant where the defendant is liable for a public order offence involving the assembly of more than one person (eg riot).
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