Structure and Outline of the Report on Criminal Law

Executive summary

The reports first section defines crime and further illustrates the actus reus and mens rea elements of a crime. Additionally, in the second part, the burden of proof is also described. The third part will involve an examination of the roles of the CPS and further illustration of the background of the Criminal Prosecution Service. The fourth part examines the roles of judges in criminal cases, with the fifth part examining the role the jury plays in criminal cases. The final section explores and expounds the concept of rape and further explores its mens rea and actus reus elements.

Definition of crime

Crimes are unlawful acts punishable by the state or any other authorities in ordinary language. While statutory definitions are typically provided for specific purposes of defining crime, in modern criminal law, there is no universally accepted and simple definition for crime (Dressler, Strong and Moritz, 1986). One of the proposed definitions of crime is a harmful act to both communities, the state, and other individuals. The law forbids and punishes such acts. Across the globe, there is the notion that prohibits acts like theft, rape, and murder. The nature of the legal consequence that follows committing an action is what determines whether a given omission or act makes up a crime and not the nature of the omission or the act.

For an act to be classified by as a crime, it’s always necessary that the act of doing something criminal (actus reus), with certain expectations needs always to be accompanied by intentions of doing criminal acts (mens rea). Actus reus is defined as a crime`s objective element which produces criminal liability in criminal law jurisdictions when proved beyond reasonable doubt in combination with the guilty mind, Mens rea (Colvin and Anand, 1986). Actus reus mainly consists of: conduct, result, a state of affairs or an omission. The actus reus may relate to the result of the defendant's omission or act (Sayre, 1932). While the conduct by itself may not be criminal, the conducts result may be. For example, while throwing a stone is not a crime, if the rock shatters a window or hits a person then it amounts to a crime, in all result claims, it is necessary to establish causation. Different types of result crimes are; battery, murder, and manslaughter, criminal damage, assault among many others. Mens rea encompasses knowledge that acting in such a way or not acting in such a way could lead to a crime being committed. It is the mental element of a person`s intention to commit a crime (Perkins, 1938).

From time to time, omissions can amount to a crimes actus reus (Miller, 2003). There is a general rule regarding omissions that one can never be held liable when they fail to act. It is worth noting that while all crimes are violations of the law, it`s not all law violations amount to crimes. The state does not automatically punish breaches of contract and breaches of tort. Civil procedures could be used to enforce these types of violations.

Burden of proof

According to the legal burden of proof, it is always the responsibility of the prosecution to prove the guilt of the defendant (Farley and Freeman, 1995). The presumption usually is that the defendant is innocent until their guilt is proven. In legal disputes, while one of the sides to the case is generally presumed as being correct and is awarded the benefit of doubt, the burden of proof is borne by the other hand, In the event that the side bearing the burden of proof meets its burden, the burden of proof would automatically switch to the other side.

There may be different types of burdens for all parties to a case throughout the different legislative phases. The party to a case that does not carry the burden of proof is presumed to be correct and carries the benefit of assumption of being right and that goes on until such a point that a shift in the burden is observed after the party that brought the action brings about evidence (Jeffries and Stephan, 1979). To effectively fulfill the burden of proof, it would be necessary to capture the benefit of assumption, passing the burden of proof to the other party. The case of Woolmington v DPP first articulated the presumption of innocence. In the lawsuit, Lord Justice Avory coined the Woolmington principle which is considered to be one of the foundations upon which the law of evidence and also its rules operate (Stein, 1993). According to the principle, the burden of proof in criminal cases lies with the prosecution. Courts have championed the principle as the English legal systems golden thread. The trial can only be considered to have fulfilled this burden if the jury returns a guilty verdict. There however exists exceptions to Woolmington whereby the defendant carries the burden of proof in some of the facts of a case. For example in the case of R v M`Naghten, whereby the judges held that any defendant that wishes to rely on the defense of insanity has to prove that; 1) it was under a defect of reason that they labored, 2) and their actions were caused by a disease of the mind so that either they did not know their actions quality and nature or they were not aware that their actions were wrong.

Those parties who bear the legal burden also bear the responsibility of producing the evidence, and that is customarily discharged through calling witnesses to give evidence orally, making documentary evidence available before courts, presenting expert opinion and real evidence (Ashworth and Horder, 2013).

Role of CPS in criminal cases

The Crown Prosecution Service (CPS) is an independent public authority in England and Wales that is ordinarily responsible for prosecuting individuals charged with criminal offenses by the police. Some of the activities they undertake in the role is; 1) Advising police on cases for probable prosecution, 2)review of cases that the police have submitted for purposes of prosecution in line with The Code for Crown Prosecutors principles, 3)put into consideration the available alternatives to prosecution in circumstances that are appropriate,

4)whenever the decision is to prosecute, make decisions on all but cases that are minor, 5) prepare cases for court, and 6) present such cases at courts (CPS, 2018). It is necessary that prosecutors must always be independent, objective and fair. Whenever making a decision on whether to prosecute criminal cases, lawyers must also always abide by the Code for Crown Prosecutors. That implies that for someone to be charged with a criminal offense, it is compulsory to satisfy the prosecution that the available evidence is sufficient for providing prospects of conviction that are realistic and that it is in the interests of the public to prosecute.

To deliver justice, the Crown Prosecution Service closely works with the judiciary, courts, police and other partners. Their work is overseen by the Attorney General who briefly receives briefings from the Director of Public Prosecution on issues of concern to the parliament and also to the public (Martin, 2014). The Attorney General, however, has no role in the organizations daily running nor making decisions on whether suspects are to be prosecuted. The only instance when the Attorney General personally consents to prosecutions is when the cases at hand are issues of national security.

Role of judges in criminal cases

Judges make use of their experience and knowledge of the law to ensure that trials are conducted in ways that are fair and legal. It is worth noting that judges play different roles in different types of legal cases. Across England and Wales, judges listen to criminal cases in the Crown Courts. In such cases, judges manage trials and make decisions about the law. By considering the evidence presented before them, the jury makes decisions on whether the person on trial is innocent or guilty (Judiciary, 2018). In the event the defendant is found to be guilty by the jury, the judges go ahead and issue their sentences. It is the responsibility of the judge that throughout a trial that the jury is well aware of their role legally and what it should do or not do to ensure the court case stays within the law.

Before the onset of a criminal case, judges are typically required to familiarise themselves with the details of the case which they achieve through reading the case papers that are relevant. Such documents could include indictments which contain in them the charges with which the defendant is being tried, exhibits, statements from witnesses, and documentation on applications that are to be made by any party concerning the admissibility of evidence in the trial. The judges usually supervise the selection and subsequent swearing of the jury in the Crown Court during jury trials. The judges provide the jurors with directions on their roles in the trial of deciding the facts and further warning them against discussing such cases with other people (Pakes, 2017).

When the trials commence, it is up to the judges to ensure that all the involved parties are presented with opportunities of presenting their cases and being fully considered with all due fairness. Judge`s summing up happens when all evidence has been heard.

Judges usually are independent of the government, and the police and their handling of cases cannot be interfered with by anybody. In the event that an individual is not happy with the decision of a judge, they are given the opportunity to appeal at higher courts. Decisions which judges in higher courts make are customarily recorded, and the judges in courts that are lower are required to use the decisions to help them in making their decisions in the course of court cases.

Role of the jury in criminal cases

A jury is usually a sworn body of people who are generally convened to render verdicts that are impartial officially. Every person charged with a criminal offense is typically entitled to a trial by the jury unless the offenses alleged are minor or in offenses that are heard in special criminal courts. To a large extent, the jury is considered to be an integral part of the legal system of England and Wales even though the cases tried by the jury are few nowadays. To a large extent, it plays a role that is quite vital in making sure that the criminal justice system works for the public`s benefit and not for the benefit of leaders who are not just (Fairfax, 2017).

In 1956, Lord Devlin considered trial by jury to be more of a wheel of the constitution than an instrument of justice; it is the lamp that shows that freedom exists. The jury weighs up the evidence that is presented to them to make decisions on a case`s facts and what actually happened. The jury receives direction from the judges on the law that is relevant and which they have to apply to a case`s facts so as reach verdicts. In the event of a criminal case, in the instances where juries give verdicts of guilty, judges then make decisions on the most appropriate sentences (Roberts, 2018).

The reason why there are fewer cases listened to by the jury these days is that the offenses that are not as serious are heard at the magistrate's court and the Crown Court only looks into offenses of a serious nature. Additionally, even in the serious offenses, there are those that are classified as "triable either way" which could either be tried at either the magistrates' court or the Crown Court. The jury has no role in the magistrate's court (Judiciary, 2018). The jury can only try a Crown Court case in the event the defendants plead not guilty. A huge percentage of criminal cases fall under the summary only category which implies that they are not serious. Additionally, most of the defendants in the serious offenses plead guilty. As such, the jury only tries around 1% of the criminal cases.

Rape

In England and Wales, rape is considered to be a statutory offense which happens when a man, without consent, penetrates another person. The Sexual Offences Act of 2003 creates the offense. In the event a victim is penetrated forcefully with an object, that is usually classified as "Assault by Penetration." On the other hand, if a person is forced to penetrate another person, such an act could be prosecuted as causing a person to engage in activities of a sexual nature without their concept.

Actus reus of rape

Consent is what separates sex and gestures of affection from sexual assault. Consent implies both people being in agreement with what is happening by choice and being free and having the ability to make such a choice. The actus reus of rape is usually the intentional penile penetration of other individuals mouth, anus or vagina without their consent (McGregor, 2017). That implies that it is necessary that the act of penetration is a voluntary act; that means that it is only a man who can commit the crime of rape as a primary party, and today, it is also possible to commit rape through oral penetration. Rape is also gender neutral as men can now also be raped after the repeal of buggery an old offense which involved anal rape of other men. The reason why consent is included as part of the actus reus of rape is to prevent all other acts of sexual intercourse from being considered as rape (Faulkner, 1991).

Intent us defined as the decision to bring about consequences that are prohibited. A person is considered to having intended a consequence if they foresaw what would happen if they acted in way and when they desired a certain consequence to happen.

In most cases, the most common defenses are; intercourse actually never happened, that it happened but only by the person who was accused of committing the rape, that the sex happened with the accused believing that the victim had consented or intercourse took place with the consent of the victim. Criminal law considers individuals who plans crimes and consequently executes them as posing more serious dangers to the public than individuals whose actions are spontaneous.

In the case of R v Kaitamaki, it was further established that in the event a person consented to penetration and later withdrew their consent when the penetration was going on, if the man failed to withdraw, then he would be held liable of rape. In the case, the defendant had been charged with rape. In his defense, he argued that he had believed that the women had given her consent when he penetrated her, and midway when he realized that the consent had been revoked, he continued and failed to withdraw. It was held that rapes actus reus was a continuing act and at that point, the defendant realized that the women was no longer consenting, the mens rea had been formed. As such, if a man continues penetration even after he has realized that the woman is no longer consenting, then the man is guilty of rape (Westmarland, 2004).

Mens rea of rape

For the mens rea of rape to be satisfied, it is a must that it is proven that the defendant had the intentions of penetrating and the defendant did not reasonably believe that the victim had given consent to the penetration. Additionally, whether a belief is reasonable is generally determined by having regard to all these circumstances including any such steps that the defendant took to ascertain if the victim consented (Kinports, 2001). In the past, the mens rea which implies to an individual who commits a crime`s state of mind was not always required. The Sexual Offenses Act of 1956 introduced the requirement for mens rea. The case of DPP v Morgan shed light on rape and its mental element. In the lawsuit, Morgan had invited three men to have sex with his wife. The three men were strangers to the wife. Allegedly, Morgan had informed the three men that his wife was kinky and that there was a high likelihood that she would try to resist and say no to sex which would mean that she was consenting to sex but was against being turned on. Morgan refused ever saying such words to the men. The three strangers and Morgan had sex with Mrs. Morgan against her resistance by using violence and force. In their defense, the men claimed that they believed in resisting, Mrs. Morgan was consenting due to the information Morgan had given them before inviting them over. The judges directed the jury by informing them that their belief could not constitute a defense to rape unless it was based on the grounds that were reasonable. While Morgan was convicted of abetting and aiding, the other three were convicted of rape. It was held that there could never be a conviction of rape if a man honestly thought that the women had given consent to sexual intercourse and it is not a must that the belief was reasonable.

One thing that can be pinpointed from this case is that there is nothing like marital rape. What that implies is that a husband can never be found guilty of a rape that has been committed by himself upon a woman who is his wife lawfully. By their mutual matrimonial consent and contract the wife gives up herself unto the husband, and it is not possible to retract that consent. The contract of marriage is considered to be consent by itself.

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