Where relevant in this text, we shall be referring to key proposals made in the draft Code. At the time of writing, Parliament is yet to adopt the Code, and it is unlikely that the Code will ever be adopted, which Child and Ormerod (Smith, Hogan, & Ormerod's Essentials of Criminal Law, 3rd edn (OUP, 2019)) consider to be ‘regrettable’. The Law Commission’s response to this is to produce so-called ‘mini-codes’ that deal with specific areas of legal reform.
1.6.4.3 Judicial law making
It is essential to open this section by explaining that the role of judges and the courts is not to make law – it is to interpret law. Prior to the decision in Knuller v DPP [1973] AC 435, the appellate courts were understood as holding a power to create new criminal offences. In Knuller, however, the House of Lords renounced this power on the basis that any such changes should be made by Parliament.
Despite the decision in Knuller, many examples exist of the appellate courts exercising law-making powers. For instance, in R v R (Rape: Marital Exemption) [1992] 1 AC 599, the House of Lords took it upon itself to rule that non-consensual sexual intercourse within marriage should no longer be exempt from criminal liability. In essence, the House of Lords created a new offence of marital rape. I prefer to view R v R as more of a reflection of the gradual development of the common law. Indeed, this was the view taken by the ECtHR in CR v UK [1996] 1 FLR 434 upon a referral of R v R. The Court was of the view that, although Article 7 of the ECHR restricts and prevents the operation of retrospective laws, it does not prevent the evolution of the common law.
With the implementation of the Human Rights Act 1998, judicial law-making powers must now be read in accordance with their international obligations of consistency. As a result of the inherent change it was about to face, the House of Lords in C v DPP [1996] AC 1 gave the following guidance to judges (per Lord Lowry):
(1) If the solution is doubtful, the judges should beware of imposing their own remedy. (2) Caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated while leaving the difficulty untouched. (3) Disputed matters of social policy are less suitable areas for judicial interventions than purely legal problems. (4) Fundamental legal doctrines should not lightly be set aside. (5) Judges should not make change unless they can achieve finality and certainty.
1.7Criminal procedure, evidence and sentencing: an overview
As discussed earlier, the substantive criminal law is concerned with the definition and categorisation of offences; it concerns what features or elements must be present in a given case for a person to be ‘liable’ for a criminal offence. It is, however, naïve to believe that the substantive criminal law operates to the exclusion of other areas of criminal justice. The following section considers briefly some of the fundamental principles that shape the criminal justice system as we know it today. You are advised to consult a textbook on English legal system for a broader discussion (see, for example, Thomas and McGourlay, English Legal System Concentrate, 2nd edn (OUP, 2020)).
1.7.1 Criminal procedure
Criminal procedure refers to the manner in which an individual, charged with an offence, proceeds through the criminal justice system. The rules governing this procedure are set out in the Criminal Procedure Rules (Crim PR) (available at <www.justice.gov.uk>).
Figure 1.2 Process of the criminal justice system
For our purposes, we shall focus on classification of offences and sentencing, as these considerations will feature when discussing the substantive criminal offences.
1.7.1.1 Charge
Following the alleged commission of the offence and any investigation thereafter, if there is sufficient evidence against the individual suspected of committing the offence, that individual will be ‘charged’. The decision to charge a suspect rests, largely, with the CPS. In order for a suspect to be charged, the ‘Full Code Test’ must be satisfied. The Full Code Test is provided under section 4 of the Code for Crown Prosecutors and is set out in two parts. The Code states that the individual or body considering a charge must be satisfied that:
(a) there is sufficient evidence to provide for a realistic prospect of conviction (known as the evidential stage); and
(b)it is in the public interest to prosecute (known as the public interest stage).
If the relevant officer is content that the Full Code Test has been met, he or she may proceed to charge the suspect with an offence. See the fascinating case of SXH v CPS [2017] UKSC 30 in which the Supreme Court had to consider whether it was a breach of Article 8 of the ECHR (right to private life) to prosecute an individual for a criminal offence.
1.7.1.2 Classification of offences
In charging an individual with an offence, it is essential to understand how criminal offences are classified in England and Wales. Such classification is generally provided by the statute creating the offence by way of the description of the nature of the penalty on conviction. Three types of classification can be identified:
(a) Summary-only offences: These are the least serious of the three classes of offences and are triable only in the magistrates’ court.
(b) Either-way offences: Either-way offences may be tried either in the magistrates’ court or in the Crown Court. Where an either-way offence is tried in the magistrates’ court, it is tried as a summary offence, and where tried in the Crown Court, it is tried as an indictable offence.
(c) Indictable-only offences: These are the most serious of the three classes of offences and are triable only in the Crown Court with a jury.
Examples of such offences are provided in Table 1.3.
Table 1.3Understanding the classification of offences
| Type of offence | Court in which it will be heard | Examples and maximum sentence |
| Summary-only | magistrates’ court | Common assault – 6 months |
| Either-way | magistrates’ court/Crown Court | ABH – 6 months (summary); 5 years (indictment) Theft – 6 months (summary); 7 years (indictment) |
| Indictable-only | Crown Court | Murder – LifeRape – Life |
1.7.1.3 Conviction and sentencing
Following trial, whether in the magistrates’ court or the Crown Court, it will then be the responsibility of the jury or magistrates to return their verdict. Should the verdict be one of not guilty, the defendant is acquitted and is free to go. Should the verdict be one of guilty, the defendant is convicted and sentence must be passed.
For the principles of sentencing and the types of sentences available to the courts, see 1.7.3.
1.7.2