This chapter explains the two main sources of criminal law in the UK: legislation, that is, Acts of Parliament (or statutes), and case law. It will give you an overview of the process by which Acts of Parliament come into existence as well as introducing you to European Union legislation and the European Convention on Human Rights, both of which have an influence on the law in the UK. You will also gain an understanding of the criminal courts in which cases are heard and the systems of law reporting which allow access to the judgments of those courts. As well as exploring the sources of law, this chapter will show you how to find legislation and case law using a variety of online resources. Finally, the chapter will give a brief introduction to finding the criminal law of overseas jurisdictions. An understanding of the criminal law is important to the study of criminology as it is the criminal law that defines certain forms of conduct as criminal. This criminal law can be contained in both statute law and case law, so it is essential that you understand the origins of both and the ways in which they interrelate. You should see that the criminal law is constantly changing and evolving in response to social, political, and technological influences which manifest themselves in new statutes or judicial interpretation of existing law. If you are studying criminology as an option on a law degree, then the content of this chapter should already be familiar to you, but if you are encountering criminal law for the first time, then this chapter should give you a grounding in the essentials that you need to know.
L E A RNI NG O U TC O MES
After reading this chapter, you will be able to:
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Explain the process by which Acts of Parliament come into being Find criminal legislation online Understand the hierarchy of the courts in England and Wales and the role of case law within the legal system Explain the meaning of case citations and use the neutral citation system Search for cases online
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Legislation
Legislation is a very important source of criminal law, since the majority of criminal offences are defined in statute law, created by Acts of Parliament.
UK Acts of Parliament
Parliament passes legislation in the form of statutes, or Acts of Parliament. On average, Parliament enacts around sixty or seventy statutes per session and, although this figure remains largely constant, the length of statutes seems to have expanded in recent years, hence increasing the overall volume of legislation. Most Acts of Parliament will begin life as Public Bills, which are introduced by the Government as part of its programme of legislation. Although many people think that most Public Bills arise from the commitments made by the Government as part of its election manifesto, in fact most Public Bills originate from Government departments, advisory committees, or as a political reaction to unforeseen events of public concern (such as the Dangerous Dogs Act 1991 in response to public and media outcry over a number of attacks by pit-bull terriers in which some unfortunate individuals were severely injured or disfigured). If enacted, most Public Bills result in Public General Acts which, as their name suggests, affect the general public as a whole. Private Members’ Bills are non-Government Bills that are introduced by private Members of Parliament (MPs of any political party who are neither Government Ministers nor members of the House of Lords). They may be introduced in a variety of ways. Relatively few Private Members’ Bills end up as Acts of Parliament. Although they often deal with relatively narrow issues, they may also be used to draw attention to issues of concern that are not within the legislative agenda of Government. Statutes may also be passed to consolidate or codify the law. A consolidating statute is one which re-enacts particular legal subject matter which was previously contained in several different statutes, whereas a codifying statute is one which restates legal subject matter previously contained in earlier statutes, the common law, and custom. Unlike consolidation, codification may change the law. An example of a codifying Act is the Theft Act 1968, which attempted to frame the law of theft in ‘ordinary language’.
The domestic law-making process
Before a Bill is introduced into Parliament, it may be preceded by a White Paper or a Green Paper. White Papers set out Government proposals on topics of current concern. They signify the Government’s intention to enact new legislation and may set up a consultative process to consider the finer details of the proposal. Green Papers are issued less frequently. They are introductory, higher-level Government reports on a particular area put forward as tentative proposals for discussion without any guarantee of legislative action or consideration of the legislative detail. Proposed Government legislation is then passed to the Parliamentary draftsmen who draft the Bill acting on the instructions of the Government department responsible for the proposal. Once drafted, a Government Bill can be introduced into either the House of Commons or the House of Lords. Most Bills begin life in the House of Commons and follow the procedure depicted in Figure 1.1.
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Proposed Bill
House of Commons First Reading Title read
House of Lords
Second Reading Main debate
Committee stage Amendments proposed Any amendments from the House of Lords are sent back to the House of Commons for consideration
Report stage Further amendments and debate
Third Reading Final debate
First Reading Title read
Second Reading Main debate
Committee stage Amendments proposed Procedure under the Parliament Acts 1911 and 1949
Report stage Further amendments and debate
Third Reading Final debate
Royal Assent
New Act of Parliament
Figure 1.1 The Parliamentary procedure for Bills introduced in the House of Commons
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House of Commons—First Reading
The First Reading in the House of Commons is a formality. The Title of the Bill is read by the Clerk of the House and a date is fixed for the Second Reading. Conventionally, the Second Reading does not normally take place before two weekends have passed.
House of Commons—Second Reading
The Second Reading in the House of Commons involves the main debate on the principles of the Bill. For Government Bills, the debate is usually opened by the Minister responsible for the Bill and closed by a junior Minister. A vote is generally taken on the Bill as a whole at the end of the Second Reading. The Bill will then move to a Standing Committee (unless it is moved that the Bill be sent to a Committee of the whole House, a Select Committee, or a Special Standing Committee).
House of Commons—Standing Committee
Following the Second Reading in the House of Commons, most Bills are sent to a Standing Committee which examines the provisions of the Bill in detail and votes on whether each clause, as proposed, ‘stands part of the Bill’. Amendments may be moved in Standing Committee. These amendments are also voted upon. The Bill (as amended in Standing Committee) then moves into a Report Stage.
House of Commons—Report Stage
Unless a Bill has been considered by a Committee of the whole House without amendment, the Committee Stage is followed by a Report Stage (sometimes referred to as a Consideration Stage). Here, further amendments may be proposed and introduced, often in an attempt to undo the changes made in Committee. Once the Report Stage is complete—which may take two or three days—the Bill finally proceeds to its Third Reading in the Commons.
House of Commons—Third Reading
In the Third Reading of the Bill, its contents are debated for a final time. It is unusual for any further amendments to be made at this stage. Indeed, the Third Reading does not have to involve any debate at all. Once the Third Reading is over, the Bill is sent to the House of Lords.
Procedure in the House of Lords
The procedure in the House of Lords mirrors that in the House of Commons. Bills have a formal First Reading, are debated on a Second Reading, proceed to consideration in Committee (although, unlike in the House of Commons, the Committee Stage is almost invariably taken in the Committee of the whole House), are debated again on Report, and then receive a final Third Reading. At the end of the Third Reading there is a formal motion ‘that this Bill do now pass’. Assuming that the Bill survives the motion at the end of the Third Reading in the House of Lords, it is returned to the House of Commons with the Lords’ amendments, which must be considered in the Commons. If the House of Commons does not agree with the Lords’ amendments it can send it back with counter-amendments and its reasons for doing so. Therefore, a Bill can go back and forth between the Houses several times until proceedings are terminated or the Parliamentary session runs out of time. However, in practice, the House of Lords often accepts the second offering from the House of Commons.
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The Parliament Acts 1911 and 1949
These Acts provide a means by which the House of Commons can, under certain circumstances, bypass the House of Lords to present a Bill for Royal Assent without it having been passed by the House of Lords. The procedure under the Parliament Acts has historically been used infrequently, although the 1997 Labour Government used the Acts to force through legislation on more occasions than the Acts had been used in total before its election. Relatively recent examples of the use of this procedure in the criminal law are the Sexual Offences (Amendment) Act 2000, which lowered the age of consent for male homosexual activities from 18 (or, for some activities, 21) to 16, and the Hunting Act 2004, which criminalized certain forms of hunting wild mammals with dogs.
Royal Assent
Royal Assent is required before any Bill can become law. The monarch is not required by the constitution to assent to any Act passed by Parliament. However, assent is conventionally given by the monarch acting on ministerial advice. All that is now required for Royal Assent is a formal reading of the short title of the Act with a form of words signifying the fact of assent in both Houses of Parliament.
The impact of the Human Rights Act 1998
Section 19 of the Human Rights Act 1998 provides that the Minister in charge of each new Bill in either House of Parliament must, before the Second Reading of the Bill, either:
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make a statement of compatibility—that is, state that the provisions of the Bill are compatible with the European Convention on Human Rights; or make a statement acknowledging that it is not possible to make a statement of compatibility, but, despite this, the Government still wishes the House to proceed with the Bill.
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The courts have no power to set aside any Act of Parliament that is incompatible with Convention rights; although they may make a ‘statement of incompatibility’ under s 4 of the Human Rights Act 1998 if they are satisfied that the provision is incompatible with a Convention right. Such a statement does not affect the validity, continuing operation, or enforcement of the provision in respect of which it is given; and is not binding on the parties to the proceedings in which it is made.
Parliamentary debates—Hansard or the Official Report
Parliament once prohibited all reporting and publishing of its proceedings, believing that it should deliberate in private. Indeed, it regarded any attempt to publicize its proceedings as a serious punishable offence. However, by the late 1700s, dissent both from the public and within Parliament coupled with the attacks of the press, persuaded Parliament to relax its stance. In 1803, the House of Commons passed a resolution giving the press the right to enter the public gallery and Cobbett’s Weekly Political Register added reprints of reports of speeches taken from other newspapers in a new supplement. In 1812, publication was taken over by Thomas Hansard, who changed the title of the reports to Hansard’s Parliamentary Debates in 1829. In 1888, a Parliamentary Select Committee recommended that, rather than let Hansard publish the debates, an authorized version ought to be published, which was officially adopted by Parliament in 1907 as a full report of Parliamentary proceedings. Therefore Hansard (or, less commonly, the Official Report) is the edited verbatim report of proceedings in both the House of Commons and the House of Lords. Commons Hansard
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covers proceedings in the Commons Chamber, Westminster Hall, and Standing Committees. Lords Hansard covers proceedings in the Lords Chamber and its Grand Committees. Both contain Written Ministerial Statements and Written Answers. Reference to Hansard is particularly useful as it can give a good insight into the thinking that went behind the enactment of a particular piece of legislation and can help to locate the Act in its social and political context. For instance, in the debates which led to the Computer Misuse Act 1990, computer hackers were described as ‘often poor’, ‘unemployed’, living a ‘drug-based lifestyle’, and likely to suffer ‘profound sexual inadequacy’. You will find more on searching Hansard for Parliamentary debates in chapter 3 on statistics and official publications.
Chapter numbers and Regnal years
Each Act passed in any calendar year is given its own number, known as the chapter number. The official citations—comprising year and chapter number—are therefore unique. Look at Extract 1.1 from the Youth Justice and Criminal Evidence Act 1999.
Youth Justice and Criminal Evidence Act 1999
1999 CHAPTER 23 An Act to provide for the refereal of offenders under 18 to youth offender panels; to make provision in connection with the giving of evidence or information for the purposes of criminal proceedings; to amend section 51 of the Criminal Justice and Public Order Act 1994; to make pre-consolidation amendments relating to youth justice; and for connected purposes. [27th July 1999]
Legislation reproduced by permission of OPSI.
In this example, the Youth Justice and Criminal Evidence Act 1999 was the twenty-third statute passed in 1999. The word ‘chapter’ can be abbreviated to ‘c’. The chapter number is often given in Harvard references for Acts of Parliament post-1963. See chapter 7 on referencing for more information on citing Acts of Parliament using the Harvard system. For Acts prior to 1963 (when the Acts of Parliament Numbering and Citation Act 1962 came into force) the Regnal year citation is given. This is derived from the year of the sovereign’s reign corresponding to the Parliamentary session in which the Act was passed. It was common for Parliamentary sessions to span more than one year, in which case all are shown. Look at the example in Figure 1.2. This is the citation for the one-hundredth Act that was passed in the session beginning the twenty-fourth year of Queen Victoria’s reign and which ended in the twenty-fifth year. It is more commonly (and conveniently) known as the Offences against the Person Act 1861.
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REGNAL YEAR CITATION Year(s) of reign Sovereign Chapter number
24 & 25 Vict., c. 100
Figure 1.2 Regnal year citation
There is a very useful calendar year to Regnal year conversion table covering 1235–1862 available on the JustCite website at http://www.justcite.com/support/faq-calendar-to-regnal.aspx.
UK statutory instruments
An Act of Parliament may delegate the power to make statutory instruments, usually to a Minister of the Crown. The scope of this power can vary greatly, from the technical (for example, varying the dates on which different provisions of an Act will come into force or changing the levels of fines or penalties for offences) to much wider powers such as filling out the broad provisions in Acts. Often, Acts only contain a broad framework and statutory instruments are used to provide the necessary detail that would be considered too complex to include in the body of an Act.
European Union legislation
An increasingly influential range of sources of law emanates from Europe. The majority of this arises by virtue of the UK’s membership of the European Communities from 1 January 1973. Historically, the European Union (EU) was primarily concerned with trade and reluctant to engage with matters of criminal law. However, it has evolved into a broader economic and political partnership and, following ratification of the Lisbon Treaty, the EU has increased its competence more definitively into the realm of the criminal law. Article 69B(1) of the Treaty of Lisbon allows the European Parliament to establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a crossborder dimension.
Finding legislation
There is a vast amount of legal information available online. Some online resources are free to access, although many of the commercially-produced databases require a subscription. Most institutions will subscribe to most of the main databases that are covered in this book. These typically require you to log in to gain access and most are accessible via the Athens or Shibboleth access management systems, which will allow you use a single login to access the whole range of databases to which your institution subscribes. Each institution will have its own registration procedures, so a good first point of enquiry will be your institution’s library. A detailed description of the operation of each of the various databases is beyond the scope of this book. Most institutions provide a guide to using each of the main databases and you
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should check with your librarian for details. Lexis Library and Westlaw often have student representatives at institutions. They are another useful source of information. You may find other perfectly reputable sources of statute law online—such as websites from local authorities and law firms. However, these sometimes provide a summary or paraphrase of the law—often to make it more accessible to the non-lawyer—rather than using the precise wording of the statute. You should, therefore, make sure that your sources use the official wording. All the resources listed in this section do so.
Practical exercise
Find as many of the legal databases from this section you can Make list those to which you are Find as many of the legal databases from this section as you can. Make a list of those to which you are legal databases this section can. list those which allowed access. allowed access. Have look each them Perform few practice searches allowed access Have a look at each of them. Perform a few practice searches. look each them. Perform practice searches.
Legislation.gov.uk http://www.legislation.gov.uk The UK legislation website is published by The National Archives on behalf of HM Government and is the official source of online legislation from 1267 to date. It was launched on 29 July 2010. The new site brings together legislation from the Statute Law Database with the ‘as enacted’ legislation currently published on the Office of Public Sector Information website to provide a single legislation service that will replace the current services. The statute law database site will remain in place until all content and functionality is available on the new site. The aim is to publish legislation on legislation.gov.uk simultaneously, or at least within 24 hours of its publication in printed form.
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BAILII http://www.bailii.org BAILII is the abbreviated name of the ‘British and Irish Legal Information Institute’. It is a free service which provides a fully searchable collection of statutes and statutory instruments as enacted or passed. The data is derived from the Statute Law Database.
Westlaw provides a range of browsing and searching facilities which can be used to find both Acts of Parliament and statutory instruments. It also contains a useful search facility to find historic law at a particular point in time.
Lexis Library http://www.lexisnexis.com/uk/legal/ Lexis Library provides searchable legislation and statutory instrument databases. It has various online interactive tutorials.
Lawtel provides a good legislation search facility. It also has a full range of browsable legislation.
Practical exercise
Find the following statutes online using the database your choice: Find the following statutes online using the database of your choice: following statutes online using database your choice: Police and Justice Act 2006 Crime and Disorder Act 1998 Disorder 1998 Crime Crime and Disorder Act 1998 Football (Disorder) Act 2000 Offences against the Person Act 1861 Person Offences against Offences against the Person Act 1861 You will find video walkthroughs of each of these searches on the Online Resource Centre.
Case law
Legislation is not the only source of criminal law. Not all criminal offences are defined in statute law but arise instead from common law: that is, law that is defined in decided cases. Murder, for example, is not defined in any Act of Parliament. The courts are also called upon to decide the meaning of statutes and how they apply to the particular facts of the case that they are considering. The decisions of such cases may set a precedent to be followed in later cases and thus develop new legal principles from those set out in the statute. The next section will take a brief look at the court system as it applies to criminal law and explain where to find criminal case law.
The court system
Without a set of institutions to enforce legal rules, there would be no legal system. A set of rules cannot usefully exist in isolation. There needs to be a system of courts to hear cases at first instance, as well as higher courts which offer the mechanism for individuals to bring appeals arising from the outcome of cases in lower courts. The domestic courts can be depicted as shown in Figure 1.3. Criminal courts determine the guilt or innocence of defendants according to the parameters of the criminal law and dispense punishment to convicted offenders. Trial courts hear cases ‘at first instance’. This refers to the first time that a case is heard in court, before any appeals. They consider the matters of fact and law in the case and make an appropriate ruling. Appellate courts consider the application of legal principles to a case that has already been heard at first instance. Some appellate courts also have jurisdiction to reconsider disputed issues of fact.
Supreme Court
The Supreme Court took over the judicial function of the House of Lords and became the highest court in the UK in October 2009. At the current time, for practical purposes, it is safe to assume that the Supreme Court has simply replaced the House of Lords and that whatever applied to the House of Lords applies equally well to the Supreme Court.
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The Supreme Court * The final court of appeal for all United Kingdom civil cases and criminal cases from England, Wales and Northern Ireland
(*not administered by HMCS)
Court of Appeal Criminal Division Appeals from the Crown Court Civil Division Appeals from the High Court, tribunals and certain cases from county courts
High Court Queen’s Bench Division Contract and tort, etc, Commercial Court Admiralty Court Family Division Chancery Division Equity and trusts, contentious probate, tax partnerships, bankruptcy and Companies Court, Patents Court Divisional Court Appeals from the county courts on bankruptcy and land
Administrative Court Supervisory and appellate jurisdiction overseeing the legality of decisions and actions of inferior courts, tribunals, local authorities, Ministers of the Crown and other public bodies and officials
Divisional Court Appeals from the magistrates’ courts
Crown Court Trials of indictable offences, appeals from magistrates’ courts, cases for sentence
County Courts Majority of civil litigation subject to nature of the claim
Magistrates’ Courts Trials of summary offences, committals to the Crown Court, family proceedings courts and youth courts
Tribunals Hear appeals from decisions on: immigration, social security, child support, pensions, tax and lands
(* not administered by HMCS)
Figure 1.3 The court structure in England and Wales Figure reproduced by permission of Her Majesty’s Courts Service.
The Supreme Court consists of 12 judges with a President and a Deputy President. It is located in Middlesex Guildhall on Parliament Square opposite the Houses of Parliament. The Supreme Court does not hear evidence from witnesses but instead considers legal argument and documentary evidence. It hears criminal appeals from the Court of Appeal (Criminal Division) and the High Court.
Court of Appeal (Criminal Division)
The Court of Appeal is one court which is divided into two divisions—the Civil Division and the Criminal Division. Like the Supreme Court, the Court of Appeal does not hear witnesses.
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The Court of Appeal (Criminal Division), as its name suggests, has a predominantly appellate jurisdiction. It also has jurisdiction to hear certain other matters which may be referred to it. It mainly deals with appeals from the Crown Court against conviction, sentence, or both; Attorney General’s References; cases referred by the Criminal Cases Review Commission where there has been a possible miscarriage of justice; and applications for leave (permission) to appeal to the Supreme Court.
High Court (Queen’s Bench Division)
The High Court is one court. However, it is divided into three ‘divisions’ for administrative purposes. These are the Queen’s Bench Division, Chancery Division, and Family Division. The Queen’s Bench Division hears criminal appeals from magistrates’ courts and from the Crown Court sitting without a jury (for example, a Crown Court hearing an appeal from the magistrates’ court).
Crown Court
The Crown Court deals with trials on indictment (by jury); cases where the magistrates have declined jurisdiction before trial; offences triable either-way where the defendant has elected for trial by jury in the Crown Court; and referrals for sentence from the magistrates’ court where the magistrates consider that their sentencing powers are inadequate for the case in question. The Crown Court hears appeals from defendants against conviction or sentence or both in the magistrates’ court.
Magistrates’ court
All criminal proceedings begin in the magistrates’ courts and well over 90 per cent end there. The main types of hearing are the trial of summary offences; applications for bail; issue of summonses and warrants for arrest or search; Youth Courts (formerly known as Juvenile Courts) for defendants between the ages of 10 and 18; and committal proceedings for Crown Court trial or sentence. Magistrates’ court proceedings are either heard by Justices of the Peace (lay magistrates), usually sitting as a bench of three, or a single district judge (magistrates’ courts) working on a full-time salaried basis.
Law reporting
Unless you are actually present in court at the time that the judgment in a particular case is made, you will have to rely on a report of the case to find out what happened. Clearly, then, accurate law reporting is extremely important. Before looking at finding law reports in more detail, it is first important to clarify some terminology.
Case naming conventions
Before you can start finding cases, you will need to understand the conventions used in criminal case names and their reports. In criminal matters, cases are brought by the Crown, which is shown as R. This is short for Regina (meaning the Queen) or, if the monarch at the time of the case was a King, then R is short for the masculine form Rex. The person against whom a
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criminal case is brought is referred to as the defendant. On appeal, the names of the parties change. The person bringing an appeal is the appellant and the person against whom the appeal is brought is known as the respondent. You may see defendants referred to by single letters, rather than by name. This is common practice in cases where the defendant is a minor, where they are vulnerable (such as having mental health issues), or where their identity needs to be protected due to the nature of the case, such as in certain sexual offences or terrorism cases. For example, R v B [2008] EWCA Civ 1997 concerned mentally incapable defendants unfit to plead before a jury on various counts of child cruelty, rape, indecent assault, and sexual activity against a child family member. Finally, you may also encounter Attorney General’s References. These arise in cases where a defendant has been acquitted on all or part of an indictment. The Attorney General has the discretion to seek the opinion of the Court of Appeal (Criminal Division) (or the Supreme Court if the Court of Appeal (Criminal Division) has already been involved) on a point of law which has arisen in the case. The Attorney General’s reference procedure is to clarify the law and is not a means to change the outcome of the individual case. For instance, the Attorney General’s Reference (No. 3 of 1994) [1998] AC 245 sought clarification on whether the crimes of murder or manslaughter could be committed where unlawful injury is deliberately inflicted on a mother carrying an unborn child, and where the child is subsequently born alive but dies sometime afterwards as a result of the injuries inflicted before birth. The Attorney General may also make reference against an unduly lenient sentence imposed by a lower court.
Case citations
Case citations are an abbreviated form of reference to a particular report of a case. This section deals with the main citations for cases heard in England and Wales. By was of example, we will look at the case of R v Mirza which dealt with misconduct in the jury room during a criminal trial. The citation for R v Mirza is [2004] UKHL 2; [2004] 1 AC 1118 and indicates where this particular reported case can be found. You will notice that this particular case has two citations: one neutral citation and one law report citation (see Figure 1.4)
NEUTRAL CITATION Year Court Case number
[2004] UKHL 2; [2004] 1 AC 1118
Year
Volume of reports
Series Page of reports
LAW REPORT CITATION
Figure 1.4 Case citations
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Neutral citation
The neutral citation system was introduced to the Court of Appeal and the Administrative Court in 2001 and extended to all divisions of the High Court in 2002. The main reason for the introduction of the neutral citation system was to facilitate the publication of judgments online and the access of judgments stored on electronic databases. First, the year of the judgment is given in square brackets. This is followed by an abbreviation for the court, preceded by UK (for ‘United Kingdom’ in relation to the jurisdiction of the Supreme Court and its predecessor, the House of Lords) or EW (for ‘England and Wales’ in relation to the jurisdiction of the other courts). The abbreviations used for each of the criminal courts that use the neutral citation system are set out in Table 1.1 below:
Table 1.1 Abbreviations used in the neutral citation system
Court Supreme Court House of Lords Court of Appeal (Criminal Division) Queen’s Bench Division
Abbreviation UKSC UKHL EWCA Crim EWHC (QB)
Finally, a unique serial number is given to each approved judgment issued by the Supreme Court, Court of Appeal, and High Court and is appended to the end of the citation. Therefore, R v Mirza was the second reported judgment of the House of Lords in the UK in 2004. The neutral citation precedes the citation for any law report in which the case has been published. If the report has not been published then the neutral citation stands alone.
Law report citations
The judgments of cases are also published in various series of law reports, the most authoritative of which are published by the Incorporated Council for Law Reporting. References to law reports follow a different convention to that used for neutral citations. Firstly, the year shown here is the year in which the case was reported. Although cases are usually reported in the same year as the judgment is given, there can be situations where the reports are published later. This can occur if the case was heard late in one year, but was reported early in the next year. Another possible cause of delay between judgment and report can occur if the importance of the case was not appreciated at the time of the judgment. To complicate matters further, there is a convention surrounding the use of round or square brackets around the year of the report. Prior to 1890, the year was not part of the citation; in other words, it was not necessary to know the year of the report in order to find the case report. However, the date is now inserted for ease of reference, but is put in round brackets to indicate that it is for information only. An example of this can be found in R v Dudley and Stephens (1884) 14 QBD 273, which considered the defence of necessity in relation to murder: specifically the killing and cannibalization of a young crewmember following a shipwreck. Since 1890 the year of the case is part of the citation, so it must always be provided. The year of the report is put in [square] brackets when the volume of the report series in question is identified by the year itself. When the year of the report is not required to find the particular volume number, it is given in (round) brackets. This convention is frequently misused. Practically
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Table 1.2 Some common law report series
Abbreviation AC All ER CLR Cox CC Cr App R Cr App R (S) Crim LR KB QB WLR
Law report series Appeal Cases All England Law Reports Commonwealth Law Reports Cox’s Criminal Law Cases Criminal Appeal Reports Criminal Appeal Reports (Sentencing) Criminal Law Review King’s Bench Queen’s Bench Weekly Law Reports
speaking, you should remember that the use of round and square brackets is important and you should be accurate when you are copying citations from materials that you find. Table 1.2 will guide you on the use of the convention for commonly encountered series of law reports. Following the year, the volume number of the law report series is given, if there is more than one volume of the reports for a particular year. If not, then it is omitted. Next comes an abbreviation for the series of law reports in which the case was reported. Some common series of law reports are listed in Table 1.2. The final part of the citation is the page number on which the report begins. If there is no neutral citation, an abbreviation for the court in which the case was heard may follow the case citation in brackets: for example, R v R [1992] 1 AC 599 (HL) was heard in the House of Lords (and can be found on page 599 of volume 1 of the Appeal Cases Reports for 1992). You may see HL for House of Lords, CA for Court of Appeal, or DC for Divisional Court.
Finding case law
In a library, if you know the citation for the case you want to find, then you simply need to find if the library carries the particular series of reports to which the citation refers. If so, look along the shelf for the year and volume you have identified from the citation. The report you require should be at the page listed in the citation. Sometimes, however, this will not be so. Citations can sometimes be misprinted, or you may have misinterpreted the abbreviation for the report series. Double-check your citation. If the report still proves elusive, or the library does not carry the particular series of reports you want, then you will have to find an alternative citation. Although there are a number of different legal databases available online, not all databases contain all reports. Table 1.3 provides a summary of some of the more common criminal law report series and the database (or databases) in which they are covered. You will have already encountered some of these databases as they contain both legislation and case law. In general terms, the databases allow you to search by a name, citation, or keywords, or any combination of the above. The best strategy with all database searches is to try and keep it as simple as possible. For instance, if you are searching for a case called R v Sed it would be simple
Weekly Law Reports All England Law Reports Criminal Appeal Reports
to put in the defendant’s name. It is an uncommon name so you would therefore not expect there to be too many cases involving a party called Sed. However, if the case was R v Smith and you did not know the year, you would need to try to find some appropriate subject-matter keywords to narrow your search results; otherwise you would very likely end up with an unmanageable number of potential cases. The pictures that follow in this chapter show the options available on the main search screen of a range of different online resources.
BAILII http://www.bailii.org BAILII is a free service which contains judgments from a wide range of sources. It has an extremely comprehensive coverage of case law. BAILII’s coverage extends beyond England and Wales to Scotland, Northern Ireland, the Republic of Ireland, and the EU.
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Westlaw http://www.westlaw.co.uk Westlaw allows searching for cases by free text, party name, citation, or keyword, in addition to cases or legislation referred to in the case or the judge or judges involved. Even if the case is not available as full text in Westlaw, links will be given to the location of the report or transcript (if available). Westlaw also contains transcripts of recent cases. However, Westlaw does not contain all series of reports (see Table 1.3 above) and for this reason it is often best used together with another broad database such as Lexis Library.
Like Westlaw, Lexis Library is also a subscription service which contains a very broad selection of reports. As well as the standard criteria, it also allows searches by the judge (or judges) that heard the case or searches for cases that considered a particular statutory provision. This can be useful if you need to research how a particular piece of legislation has been applied by the courts.
Lawtel http://www.lawtel.com Lawtel is updated daily. It includes the following:
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A daily update Summaries of cases since 1980, with some links to full text from 1993 to date Personal injury quantum reports Practice directions since 1980.
It contains summaries and transcripts only. The summaries provide links to full reports. Lawtel covers an immense range of cases and often carries judgments which are not included in the other databases.
Justis
Justis is a full text online legal library of UK, Irish, and EU case law dating back to 1163 and legislation from 1235.
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http://www.justis.com
Practical exercise
Find the following statutes online using the database of your choice: g g your R v Gold; R v Schifreen R v Young (1995) Attorney General’s Reference (No. 6 of 1980) R v Wallwork (1958) k [2008] EWCA i R v T [2008] EWCA Crim 815 [2008] EWCA Crim 815 You will find video walkthroughs of each of these searches on the Online Resource Centre.
Finding criminal law in other jurisdictions
There may be times at which you may wish to investigate the state of the criminal law in other jurisdictions. This may be other Commonwealth jurisdictions such as Australia, New Zealand, and Canada, for example, or for a particular comparative study with another country or continent. The WorldLII service is extremely useful in this regard. It is a free service which currently comprises 1165 databases from 123 jurisdictions via 14 Legal Information Institutes, including BAILII which you have previously encountered. WorldLII provides a single search facility for databases located on the following Legal Information Institutes:
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AustLII (Australia) BAILII (Britain and Ireland) CanLII (Canada)
WorldLII also includes databases of decisions of international courts and tribunals together with databases from a number of Asian countries and South Africa.
CH A PTER S UMMARY SU MMARY Legislation
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Government Bills can be introduced in the House of Commons or House of Lords and can be preceded by a White Paper or a Green Paper The Parliament Acts 1911 and 1949 provide a means by which the House of Commons can (under certain circumstances) bypass the House of Lords to present a Bill for Royal Assent without it having been passed by the House of Lords Royal Assent is required before any Bill can become law; it is customarily given The Human Rights Act 1998 requires that new Bills must be accompanied by a statement of compatibility (or a declaration that a statement of compatibility is not possible) The courts may make a declaration of incompatibility for Acts of Parliament which are incompatible with the European Convention on Human Rights; this does not affect the validity of the Act Hansard is the official report of Parliamentary proceedings. It is particularly useful in helping to discern the thinking behind an Act
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The most common form of delegated legislation is the statutory instrument The EU is beginning to increase its legislative competence into the area of criminal law
Finding legislation
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The UK legislation website is the official source of online legislation from 1267 to date BAILII provides a free legislation search Westlaw, Lexis Library, and Lawtel are commercially-available databases with extensive search facilities
Case law and the courts
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Criminal courts determine guilt or innocence of defendants and dispense punishment to convicted offenders Trial courts hear cases at first instance—before any appeals Appellate courts consider the application of legal principles to cases that have already been heard at first instance The Supreme Court hears criminal appeals from the Court of Appeal (Criminal Division) and the High Court The Court of Appeal is divided into Civil and Criminal Divisions The High Court is divided into three divisions for administrative purposes—the Queen’s Bench Division deals with criminal cases The Crown Court primarily deals with trial by jury in criminal cases All criminal proceedings begin in the magistrates’ court
Finding case law
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BAILII provides a free case law search Westlaw, Lexis Library, Lawtel, and Justis are commercially-available databases with a range of case law searching facilities
Other jurisdictions
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WorldLII is a free service which currently comprises 1165 databases from 123 jurisdictions
F U RTHER READ I NG
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Clinch, P. (2001) Using a Law Library. 2nd Ed. London: Blackstone Press provides a very detailed guide to finding legal materials in a law library. Although the sections on electronic sources are now somewhat out of date, the book does provide a wealth of additional information on tracking down paper-based sources. The Cardiff Index to Legal Abbreviations available online at http://www.legalabbrevs. cardiff.ac.uk/ allows you to search for the meaning of abbreviations for English language legal publications, from the UK, the Commonwealth, and the United States, including those covering international and comparative law. A wide selection of major foreign language law publications is also included.
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FINDING CRIMINAL LAW IN OTHER JURISDICTIONS
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GLO S ARY G L O S SARY
The appellant in a criminal appeal is the party who is bringing the appeal. Appellate courts hear appeals; they consider the application of legal principles to a case that has already been heard at first instance. An Attorney General’s Reference is made to the Court of Appeal (Criminal Division) either to clarify a point of law following an acquittal or to appeal against an unduly lenient sentence imposed by a lower court following conviction. A codifying statute is one which restates legal subject matter previously contained in earlier statutes and case law. A consolidating statute re-enacts a topic contained in several different earlier statutes. Criminal courts determine guilt or innocence of parties accused of a criminal offence and dispense sentences accordingly. The defendant in a criminal case is the party accused of wrongdoing. A Green Paper is an introductory, high-level Government report which expresses tentative proposals for discussion without any commitment to new legislation. Private Members’ Bills are non-Government Bills that are introduced by private Members of Parliament. Public Bills are proposals for legislation which are put forward by the Government as part of its legislative programme. The respondent in a criminal appeal is the party against whom the appeal has been brought; they are responding to the appellant’s appeal. Statutes or Acts of Parliament are written laws enacted by Parliament. Trial courts hear cases for the first time (at first instance), consider the matters of fact and law in the case and make an appropriate ruling. A White Paper is a precursor to a Bill which sets out Government proposals on topics of current concern and signifies intent to enact new legislation.
