Cameron Miranda
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means to stand by things decided. Common law influences the decision-making process in unusual cases where existing statutes or written rules of law cannot be applied. While civil law is regularly updated, common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. In common law systems, there is a greater separation between the judicial branch and the executive branch, with the prosecutor and adjudicator being two separate people. In criminal cases, the prosecutor presents the evidence to a neutral adjudicator, who makes a decision. Common law is practiced in several countries, including the United States, the United Kingdom, Canada, Australia, and India. While it is not common in the US, some states have statutes that allow for common law marriage under certain requirements. In criminal law, which addresses crimes that harm society as a whole, common law plays a role in defining crimes, establishing procedures, and determining sentencing guidelines.
| Characteristics | Values |
|---|---|
| Basis of common law | Judicial decisions and rulings made in previous similar cases |
| Common law vs civil law | Civil law is regularly updated and is a comprehensive, codified set of legal statutes created by legislators |
| Common law marriage | Legal framework that may allow couples to be considered married without having formally registered their union |
| Common law in criminal cases | Used in criminal cases in the US, UK, Canada, Australia, New Zealand, India, and Hong Kong |
| Common law and evidence | English law permits evidence found by unlawful means, but US law generally does not |
| Common law and criminal procedure | In the US, criminal procedure has become a constitutional matter, with federal common law overriding state law in many instances |
| Common law and social harm | Criminal law addresses social harm, where society as a whole is responsible for the case and its outcome |
| Common law and accessories | Accessories are those who aid or encourage a criminal and are generally punished less severely than the principal |
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What You'll Learn
Common law and criminal procedure in the US
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. The judge presiding over a case determines which precedents apply to that particular case. The example set by higher courts is binding on cases tried in lower courts.
In the United States, criminal procedure has become a constitutional matter, with a kind of federal common law of criminal procedure overriding state law in many instances. Due process of law under the Fourteenth Amendment to the federal Constitution and the Federal Rules of Criminal Procedure confer protection on accused persons. The Federal Rules of Criminal Procedure also codify the specific procedures that must take place during a criminal proceeding.
The substance of criminal law is much the same throughout common-law countries, including the United Kingdom and the United States. In both countries, the 20th century saw the criminalization of much personal behaviour, including some sexual practices, gambling, and the use of alcohol and drugs, that was previously beyond the reach of the law.
In the US, evidence found by unlawful means, such as searching a house without a warrant, is generally not permitted to be used in court. However, significant exceptions have been created by the Supreme Court since the late 20th century. The USA PATRIOT Act (2001) expanded the search and surveillance powers of law enforcement agencies, allowing limited monitoring of telephone and electronic communications without probable cause.
At the state level, the situation varies. Some states, such as New Jersey, have abolished common law crimes, while others continue to recognize them. In some states, the elements of many crimes are defined mostly or entirely by common law, i.e., by prior judicial decisions. For example, Michigan's penal code does not define the crime of murder, but the actual elements of murder and their meaning are set out in case law.
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Common law and criminal procedure in the UK
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law influences decision-making in unusual cases where no relevant written rule of law or statutory provision exists. The common law system evolved from a British tradition that spread to North America during the colonial period in the 17th and 18th centuries. Common law is practised in several countries, including the United Kingdom, the United States, Canada, Australia, New Zealand, India, and Hong Kong.
In the United Kingdom, common law continues to play a significant role in criminal procedure. While there have been attempts to codify criminal law in England and Wales, many criminal offences remain common law offences rather than being specified in legislation. The Law Commission's programme aimed to abolish common law offences and replace them with offences defined by statute, but this process is not yet complete. As a result, some common law offences are still punishable by unlimited fines and imprisonment in England and Wales.
The substance of criminal law in common law countries like the UK and the US is largely similar. In the 20th century, both countries embraced rigorous law enforcement as a means to eliminate undesirable behaviour, leading to the criminalisation of personal behaviours such as certain sexual practices, gambling, and drug use. However, in the 21st century, some of these behaviours are increasingly treated as medical or psychological issues rather than criminal offences.
English law and procedure differ from those in the US in several ways. English law permits the use of evidence obtained by unlawful means, such as warrantless searches, whereas US law generally does not. English courts are reluctant to admit recordings of private conversations without supporting direct evidence, a position generally shared by US courts. However, emergency wiretapping and electronic monitoring may be permitted in both countries with court authorisation or in cases involving national security. The USA PATRIOT Act expanded US law enforcement's surveillance powers, allowing limited monitoring of electronic communications without probable cause.
In conclusion, common law remains a relevant aspect of criminal procedure in the United Kingdom, influencing the legal system's substance and approach to criminal offences. While similarities exist between the UK and other common law countries, particularly the US, notable differences in evidence admissibility and investigative powers reflect the evolving nature of common law traditions.
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Common law and criminal procedure in Canada
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is practised in several countries, including Canada.
In Canada, the criminal law system was initially inconsistent across jurisdictions, with each colonial and provincial legislature passing its own criminal laws. However, the British North American Act (now the Constitution Act, 1867) transferred the power to amend criminal laws to the federal government. This act included a clause covering criminal law and procedure.
In 1892, the criminal law of Canada was composed of several elements, including the common law and statute law of England, the statute law of individual provinces, and federal legislation. The Criminal Procedure Act formed the basis for much of today's criminal procedure in Canada.
In 1947, the Government of Canada appointed a Royal Commission to revise the Criminal Code, which was enacted in 1953 and came into force in 1955. This revised code abolished all common law offences, offences under Imperial acts, and pre-Confederation acts.
Today, criminal law and procedures in Canada are subject to the provisions of the Canadian Charter of Rights and Freedoms, which is part of the Constitution. The Charter may directly affect criminal law procedures and influence the definition of certain crimes and their punishments.
The Charter of Rights and Freedoms holds that there can be no crime or punishment without a predetermined law. This means that a criminal prohibition must be in place at the time of the alleged crime, and the offence must be clearly defined. For example, the concept of "mens rea" ("guilty mind") has been refined in light of the Charter, with the Supreme Court of Canada holding that murder requires a murderous state of mind at the time of the killing.
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Common law and criminal procedure in New Zealand
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law influences decision-making in unusual cases where no relevant written rule can be applied. It draws from institutionalized opinions and interpretations from judicial authorities and public juries.
In New Zealand, the Criminal Code Act of 1893 abolished the ability to be proceeded against at common law for being a party to a criminal offence. This was affirmed by the Crimes Act of 1908, and again by the Crimes Act of 1961, with the exception of contempt of court and offences tried by courts-martial.
New Zealand's criminal procedure is governed by the Criminal Procedure Act, which sets out the procedure for the conduct of criminal proceedings and provides for the use of technology in relation to criminal procedure and the court record. The country's commitment to human rights and fundamental freedoms is outlined in the New Zealand Bill of Rights Act 1990, which includes civil and political rights, life and security, democratic rights, freedom from discrimination, and rights for those arrested, detained, or charged.
Other notable legislation in New Zealand includes the Bail Act 2000, which covers rules and restrictions regarding bail; the Crimes Act 1961, which includes punishments, defences, and various crimes; the Evidence Act 2006, which provides rules of evidence to protect the rights affirmed in the Bill of Rights Act; the Health and Safety at Work Act 2015, which provides a framework for worker and workplace safety; and the Land Transport Act 1998, which promotes safe road user behaviour and vehicle safety.
The New Zealand Police aim to work with Māori to help prevent crime, crashes, and victimisation in communities. They also provide a Police Manual chapter on criminal procedure, which includes information on the five stages of the criminal procedure process for adult offenders.
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Common law and criminal procedure in Australia
In Australia, responsibility for criminal law is divided between state and territory parliaments and the Commonwealth Parliament. The criminal law system differs across Australian states, with distinctions found across jurisdictions regarding criminal offences, sentencing, and criminal procedure.
There exists a distinction between Australia's "code states" and "common law states". The code states of Western Australia, Queensland, and Tasmania have wholly replaced the system of judge-made criminal law inherited from England with legislative instruments that exhaustively define the criminal law within those states. Other Australian states have retained the criminal law as inherited through the common law, albeit modulated through legislation and subsequent common law development by Australia's courts. The common law jurisdictions of Australia are New South Wales, South Australia, and Victoria; the code jurisdictions are the Australian Capital Territory, the Northern Territory, Queensland, Tasmania, and Western Australia.
In common law jurisdictions, legislation does not always exhaustively define the elements of an offence. For example, while larceny is defined as an indictable offence punishable by five years in prison in section 117 of the Crimes Act 1900 (NSW), the meaning of larceny is not defined. The offence of larceny in NSW remains defined by the common law.
Common law, also known as case law, relies on detailed records of similar situations and statutes because there is no official legal code that can apply to a case at hand. The judge presiding over a case determines which precedents apply to that particular case. The example set by higher courts is binding on cases tried in lower courts. This system promotes stability and consistency in the legal justice system. However, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case.
In common-law countries, departments of justice are executive-branch agencies and usually have no oversight over the judiciary. Australia's Attorney General's Department is part of the executive branch and is responsible for law and justice, as well as industrial relations.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law or judge-made law.
Common law influences the decision-making process in unusual criminal cases where the outcome cannot be determined based on existing statutes or written rules of law. In common law systems, criminal cases follow an adversarial system, in which the prosecutor and adjudicator are two separate people. The prosecutor presents the evidence to a neutral adjudicator, who makes a decision.
Common law is not common in the US, but some states have statutes or allow for common law marriage if they meet certain requirements. In the US, criminal law is primarily a matter of state law, with federal law also playing a role in some instances.
Common law is more prevalent in the UK, with England, Scotland, Wales, and Northern Ireland sharing a Supreme Court for civil cases. However, Scotland has a separate criminal law system from the rest of the UK. In England and Wales, there have been efforts to abolish common law offences and replace them with offences defined by statute.
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