Overview of crime and criminal law

We all think we know about crime—it is a theft, murder, fraud or assault. The British public are avid watchers of television crime dramas, and readers of crime fiction.

But what exactly is a crime, and what are the basic elements of the criminal law?

What is a crime?

A crime is an action that is forbidden by the courts, or by Parliament.

It must have two elements—‘mens rea’ and ‘actus reus’. Classical Latin scholars will note that these words translate as ‘to have in mind’ and ‘to do an act’. In short, in order to commit a crime, a person must carry out the forbidden action and intend to do it. If you pick up someone else’s purse thinking it is your own, then you have carried out the ‘actus reus’ necessary for theft, but there is no ‘mens rea’ as you thought the purse was your own. Therefore, no crime has been committed.

Crimes range in seriousness from fairly straightforward driving offences through to murder or terrorist activity.

In England and Wales, nearly all criminal cases are heard in the Magistrate’s Courts. Depending on how serious they are, they can then be referred to the Crown Court, which has the power to sentence offenders to long periods in prison or impose large fines.

Criminal cases are divided by the courts into three categories.

Minor offences such as disorderly conduct are called ‘summary offences’ and are heard by the magistrate.

More serious cases such as serious assault and theft can be tried either in a Magistrates’ Court or the Crown Court, and are known as ‘triable either way offences’.

Very serious crimes such as rape and murder are usually tried by a Crown Court, although a Magistrates’ Court will decide if bail can be allowed, and are known as ‘indictable offences’.

Northern Ireland has a judicial system separate from, but broadly similar to, that of England and Wales.

Scotland has an entirely separate legal system. Criminal cases are heard by the Sheriff Court, or the High Court of Justiciary for serious offences. (The High Court is a civil court in England and Wales, but a criminal court in Scotland.) From there, criminal cases can be appealed to the High Court sitting as an appeal court only. There is no appeal in Scottish criminal case to the House of Lords.

In England and Wales, criminal cases can be appealed from the Crown Court to the Court of Appeal (Criminal Division) and then to the House of Lords.

Many elements of criminal law are different in Scotland and England. More corroboration is needed in Scotland to secure a conviction, than in England. The jury system and the rules regarding evidence are different. One of the biggest differences is the controversial ‘not proven’ verdict, which is unique to Scotland, and which means the defendant may be guilty but there is not enough evidence to secure a conviction.

Even the definition of ‘murder’ is slightly different in Scotland, where the definition includes ‘wicked intent to kill’ or action ‘displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences’. In England, the definition relies on ‘intent to kill’ or ‘intent to cause grievous bodily harm’.

Basic elements of criminal law

We are all familiar with the term, ‘presumed innocent unless proven guilty’. This means that a person is, in the eyes of the law, innocent until they have been convicted of a crime by a court. This is a basic principle of criminal justice.

The ‘defendant’ is the person accused of crime. After they have been arrested, they may be released on ‘bail’. This means they have been released from police custody but with certain conditions attached. Examples of typical conditions include paying a certain amount of money to the court (‘bail money’), handing over their passport, agreeing not to contact certain people, agreeing to stay in their home during certain times of day or within a certain geographical area, or reporting to a police station every day. Bail can be refused in certain circumstances, such as that the police believe the accused person will flee the area, intimidate witnesses or fail to turn up at court.

A ‘witness’ is a person who can provide evidence as to the guilt or otherwise of the defendant. They could be someone who knows the defendant and can provide a ‘character witness’, or a person who saw something at the crime scene, or they could have specialised knowledge in a particular field that is relevant to the case, for example, psychiatry, in which case they’re known as an ‘expert witness’.

The ‘victim’ is the person against whom the crime has been committed. ‘Evidence’ is produced to help the court decide what really happened. It can be anything from a DNA sample to a CCTV shot.

The defendant must be proven ‘beyond reasonable doubt’ to have committed the crime. This is a very high threshold of proof, and means there must be no doubt in the minds of the judge or jury but that the defendant committed the crime.

The ‘prosecution’ puts the case against the defendant. The ‘defence’ has the job of defending the person accused of committing the crime.

The ‘judge’ oversees the journey of the case through court. He or she is responsible for making sure the defendant has a fair trial and that all legal procedures are properly followed. He or she may decide on the defendant’s guilt or innocence, or they may direct a jury to decide this. If the defendant is convicted, then the judge decides on the appropriate sentence, which could be a fine, time spent in prison, a community order or a suspended sentence.

How is crime detected, prosecuted and punished?

The police investigate crime and arrest suspects. They then pass on their information to the Crown Prosecution Service, which has the job of prosecuting the suspect—persuading the court that the person should be convicted of the crime. In Scotland, there is no Crown Prosecution Service, and the police pass their information on to the Crown Office and Procurator Fiscal Office.

A Crown Prosecutor, who is a lawyer who works for the Crown Prosecution Service, decides whether there is enough evidence to bring a criminal case forward, and whether it is in the public interest to do so. If both these tests are satisfied, then the Crown Prosecutor will proceed with the case. In Scotland, the role of the Crown Prosecutor is taken by the Procurator Fiscal.

The police and the Crown Prosecution Service are separate organisations, (as are the police and the Procurator Fiscal’s Office) and completely independent of each other.

Ends