Common Law: Criminal Prosecutions Friend Or Foe?

Common law is used in criminal prosecutions in many countries, including the UK, US, Canada, Australia, India and Singapore. In the UK, for example, the common-law offence of 'outraging public decency' has been used to prosecute upskirting. In the US, common law is used to exclude confessions unless they are made freely and spontaneously. In Australia, common law offences have been abolished at the federal level, but they still apply in some states.

Common law offences are crimes under English criminal law, the related criminal law of some Commonwealth countries, and under some U.S. state laws

In the U.K., for example, there is a common-law offence of "outraging public decency". In the last decade, the authorities have used this ancient common law to prosecute a new intrusive activity called upskirting. In February 2019, the U.K. Parliament passed the Voyeurism (Offences) Act that officially makes upskirting a crime, punishable by up to two years in prison and the possibility of placing a convicted individual on the sex offenders register.

Under the criminal law of Australia, the Criminal Code Act 1995 (Commonwealth) abolished all common law offences at the federal level. The Australian Capital Territory, the Northern Territory, Queensland, Tasmania and Western Australia have also abolished common law offences, but they still apply in New South Wales, South Australia and Victoria. Although some common law offences still exist in New South Wales, many common law offences – for example nightwalking, riot, rout, affray, keeping of bawdy houses, champerty and maintenance, eavesdropping and being a common scold – have been abolished in that State.

The United States, Canada, and Great Britain continue the common-law tradition of jury trials. However, in many common-law countries, their use is limited to serious felonies.

Common law has been used to prosecute upskirting in the UK

Common law is used to prosecute crimes under English criminal law, the related criminal law of some Commonwealth countries, and under some U.S. state laws. In the UK, common law has been used to prosecute upskirting, the practice of sticking a camera in between a person's legs, without their consent or knowledge, to take a photo or video of their private parts for sexual gratification or to humiliate or distress.

Upskirting was previously prosecuted under the common law offence of 'outraging public decency'. However, the previous law didn't cover all instances of upskirting. In February 2019, the UK Parliament passed the Voyeurism (Offences) Act, which officially made upskirting a crime. This Act introduced two new provisions under Section 67 of the Sexual Offences Act: Section 67A(1) criminalises individuals who use equipment beneath someone's clothing, aiming to view their genitals or buttocks, whether recorded or not, with or without underwear. Section 67A(2) criminalises individuals who record images beneath someone's clothing without consent, intending to view or enable others to view their genitals or buttocks.

The new law captures instances where the purpose is to obtain sexual gratification or cause humiliation, distress or alarm. The Voyeurism Act allows this intrusive behaviour to be treated as a sexual offence and ensures that the most serious offenders are made subject to notification requirements (commonly referred to as the 'sex offenders register').

Private prosecutions are allowed in many jurisdictions under common law, but have become less frequent in modern times as most prosecutions are now handled by professional public prosecutors.

Confessions are generally excluded in English and U.S. law unless they are made freely and spontaneously

Common law can be used in criminal prosecutions. For example, in the UK, the common-law offence of "outraging public decency" has been used to prosecute a new intrusive activity called upskirting. In the US, common law offences are crimes under some state laws.

In English and US law, confessions are generally excluded unless they are made freely and spontaneously. This is because coerced confessions are testimonially untrustworthy and may be false. Confessions are considered involuntary when a suspect asks for an attorney but the police ignore the request and continue questioning, or when a suspect is deprived of basic life necessities until they confess. In these circumstances, a court should find that the confession was involuntary and cannot be used in court. The voluntariness of a confession will depend on an analysis of all the circumstances surrounding it. For example, a confession that was initiated by a suspect rather than by police questioning will be viewed as more likely to be voluntary.

In many common-law countries, jury trials are limited to serious felonies

Common law can be used in criminal prosecutions. For example, in the UK, the common-law offence of "outraging public decency" has been used to prosecute the intrusive activity of "upskirting". In the US, evidence found by unlawful means, such as searching a house without a warrant, can be used in court. In Australia, private prosecutions are allowed under common law.

Private prosecutions are allowed in many jurisdictions under common law

Common law offences are crimes under English criminal law, the related criminal law of some Commonwealth countries, and under some US state laws. They are offences under the common law, developed entirely by the law courts, having no specific basis in statute. In Australia, the Criminal Code Act 1995 (Commonwealth) abolished all common law offences at the federal level. However, common law offences still apply in New South Wales, South Australia and Victoria.

In the United States, Canada, and Great Britain, the common-law tradition of jury trials continues. However, in many common-law countries, their use is limited to serious felonies. Other common-law countries, like India and Singapore, have abolished the jury trial.

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