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About this book

This textbook is an introduction to more advanced writings on criminal law, primarily designed to allow students to think critically and analyse specific topics. Each chapter is structured around key questions and debates that provoke deeper thought. It asks questions such as: Why do we have the laws that we have? Could the criminal law look differently? How should the law be applied to novel situations? Does the law in fact reflect prejudices?

The aim of the book is not to present a complete overview of theoretical issues in criminal law, but rather to illustrate the current debates among those working in shaping the area. The text features summaries of the views of notable experts on key topics and each chapter ends with a list of guided further reading.

Table of Contents

CHAPTER 1. Criminalization

Abstract
What acts should constitute criminal offences? No one would dispute that murder, rape and burglary should be. However, for other kinds of conduct it is not so obvious. Should allowing a dog to foul a park be a criminal offence? Or walking around nude in a public place? Or hunting foxes with dogs?
Jonathan Herring

CHAPTER 2. Causation

Abstract
For many crimes, a central aspect of the offence is that the defendant caused a particular harm. Hence in murder the prosecution must prove that the defendant caused the death of the victim. In many cases, this question of causation creates no real problems. If the defendant stabs the victim and the victim drops down dead, even Rumpole of the Bailey would face an uphill task in persuading the jury to doubt for a moment that the defendant caused the victim’s death. In other cases, however, the issue is far from straight-forward. In this chapter we shall consider three categories of cases where the approach of the law has proved controversial and over which there has been considerable debate.
Jonathan Herring

CHAPTER 3. Mens Rea

Abstract
Most crimes require proof that the defendant had mens rea: most commonly intention, recklessness, knowledge or dishonesty. Without a mens rea requirement there would be a danger that blameless defendants could be subject to criminal punishment. The criminal law is concerned with not only preventing harm, but also allocating blame. Only a defendant who should properly have to account for the harm he or she has caused should face punishment.
Jonathan Herring

CHAPTER 4. Assaults

Abstract
As students of criminal law soon discover to their surprise, the law on assaults is found in a nineteenth century statute: the Offences Against the Person Act 1861. That statute consolidated a large number of offences, most of which originated from many years prior to 1861. So, some of the most commonly used criminal offences are well over 200 years old. That also explains why we have some very odd-sounding criminal offences. Remarkably the following is still an offence:The age of the statute may explain some of the difficulties the courts have had in applying the statute to situations which would never have entered the minds of those drafting the legislation.
Jonathan Herring

CHAPTER 5. Sexual Offences

Abstract
We live in a world in which 150 million girls under the age of 16 – representing 14 per cent of the world’s female population – are sexually abused each year. One in five girls and one in thirteen men will experience sex abuse during their childhood. In England and Wales there were a total of 68,657 recorded rapes of women in 2018/19 and 103,337 other sexual assaults. However, the Office for National Statistics itself states that ‘sexual offences recorded by the police are not a reliable measure of trends in this type of crime’. There are two reasons for this. First, it should also be noted that these statistics relate to people over 16, whereas 32 per cent of reported victims are under the age of 16. Second, most victims of sexual offences do not report the incident to the police. More than 83 per cent of victims of sexual crime do not report the incident to the police. In 2018/19 it is estimated that 3.7 per cent of women (560,000) and 0.9 per cent of men (140,000) aged 16–59 experienced sexual assault in the last year and that 20 per cent of women and 4 per cent of men have experienced some type of sexual assault since the age of 16.
Jonathan Herring

CHAPTER 6. Homicide

Abstract
Homicide is the most serious criminal offence. Although homicide is not common in the UK, it has enormous symbolic significance in the criminal law. You can tell a lot about a legal system from the way that it structures its homicide laws. The law on murder and manslaughter sends important messages about how the law understands blame, responsibility and harm. It is not surprising, therefore, that this is a controversial area.
Jonathan Herring

CHAPTER 7. Property Offences

Abstract
The law on property offences is a complex and controversial area. In large part this is because the notion of property itself is complex and controversial. In political terms the ownership of property can represent power and hence the infamous claim that ‘property is theft’. Lawyers tend to work on the assumption that the role of the criminal law is to protect property interests. However, as we shall see, that is not uncontroversial. The goals of property law may not match those of the criminal law, it has been claimed. Further the law must deal with the extent to which an interference with property should be regarded as a matter for civil law or one for criminal law. The concept of dishonesty plays a crucial role here. It is used to distinguish those cases which are, for example, a straight-forward breach of contract; and those which are criminal offences. As we shall see, the notion of dishonesty is a notoriously difficult one to pin down.
Jonathan Herring

CHAPTER 8. Inchoate Offences

Abstract
An inchoate offence is one which is incomplete in the sense that the defendant’s planned attack on the victim has not yet come to fruition. Most inchoate offences are attempts, conspiracies and offences under the Serious Crimes Act. In all of these crimes the defendant has not achieved all that he or she intended to do. A classic example would be a person who is about to pick the victim’s pocket but is seized by a police officer just before he did so. That would be an attempted theft.
Jonathan Herring

CHAPTER 9. Accomplices

Abstract
This chapter will consider the law on accessories. An accessory, or accomplice, is a person who helps or encourages another to commit an offence. Most legal systems accept that the reach of the criminal law can extend beyond those who actually commit the harm, to those who assist or encourage the causing of harm. However, there is much debate over the basis for doing so. Indeed for English criminal lawyers the theoretical basis for liability for accomplices has been blown open with the new offences in the Serious Crimes Act 2007 and the publication of two Law Commission Reports recommending widespread reform of the law.
Jonathan Herring

CHAPTER 10. Defences

Abstract
The criminal law needs defences. Without them there would be many unjust convictions. There are plenty of cases where defendants have committed the actus reus and mens rea of an offence, but still a conviction would be inappropriate. There are even circumstances in which intentionally killing another person is permissible, most obviously self-defence. However, defences create problems for the law. A full moral assessment of each defendant in each case would be impossible. The courts lack the time, evidence or moral authority to make that kind of moral judgment. The law must work with general rules that we hope can apply across the board. This, as we will see, can create problems in cases where unusual facts arise.
Jonathan Herring

CHAPTER 11. Strict Liability

Abstract
Most serious crimes require proof that the defendant had a mens rea, such as intention or recklessness. However, some crimes require no mens rea, and they are known as strict liability offences. For a strict liability all that is required is proof of an actus reus: for example, that the defendant caused a particular result or produced a state of affairs. Some crimes are only partially strict liability: the mens rea needs to relate only to a part of the actus reus, or an aspect of it. For example, in relation to the offence of rape of an under-13-year-old, the defendant needs to intend to penetrate the victim, but there is no need to show that he had any mens rea in relation to the age. Grant Lamond suggests that when a crime requires no mens rea in relation to any part of the actus reus it should be described as a strict liability crime in the narrow sense, and when it requires a mens rea only for some elements of the actus reus it should be described as a strict liability crime in the broad sense.
Jonathan Herring
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