Keith Mack
Common law is a body of unwritten laws based on legal precedents established by the courts. Common law offences are crimes under English criminal law and the criminal law of some Commonwealth countries, as well as under some U.S. state laws. They are offences under the common law, developed entirely by the law courts, having no specific basis in statute. Common law offences that have been abolished or redefined as statutory offences include contempt of court, defamatory libel, disabling to commit an indictable offence, and obstruction of justice. Common law defences include consent, abandonment/withdrawal, entrapment, insanity, and intoxication.
| Characteristics | Values |
|---|---|
| Definition | Crimes under English criminal law, the related criminal law of some Commonwealth countries, and under some U.S. state laws |
| Basis | Legal precedents established by the courts |
| Examples | Nightwalking, riot, rout, affray, keeping of bawdy houses, champerty and maintenance, eavesdropping, being a common scold, outraging public decency |
| Jurisdictions | Australia, Canada, England, Hong Kong, India, New Zealand, United Kingdom, United States |
| Defences | Affirmative, Negating, Consent, Abandonment/withdrawal, Entrapment, Insanity, Intoxication, Mistake of law/fact, Self-defence, Defence of others |
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What You'll Learn
- Common law offences and defences vary by country and state
- Common law is unwritten and based on legal precedents
- Common law offences are crimes under English criminal law
- Common law offences are punishable by unlimited fines and imprisonment
- Common law defences include insanity, intoxication, consent, abandonment, and entrapment
Common law offences and defences vary by country and state
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law and is practised in countries like the US, Australia, Canada, the UK, and others. Common law offences are crimes under English criminal law and the criminal law of some Commonwealth countries, as well as under some US state laws.
While common law offences have been abolished or redefined as statutory offences in some countries, they still exist in others. For example, in New Zealand, the ability to be proceeded against at common law for being a party to a criminal offence was abolished by the Criminal Code Act 1893. Similarly, the Australian Criminal Code Act 1995 abolished all common law offences at the federal level, and several Australian territories have followed suit. However, common law offences still apply in some Australian states, such as New South Wales, South Australia, and Victoria.
In Canada, the consolidation of criminal law in the Criminal Code in 1953 abolished all common law offences except for contempt of court. In England and Wales, while there have been efforts to abolish common law offences, some still exist. These offences are punishable by unlimited fines and imprisonment unless a specific maximum sentence has been codified.
In the US, the situation varies by state. While some states, like New Jersey, have abolished common law crimes, others continue to recognize them. For example, in Michigan, the elements of murder are defined entirely by common law, with the penalties laid out in statute.
Common law defences also vary by country and state. For example, the defence of insanity is recognized in some US states, where a defendant must prove that they had a mental disorder that rendered them incapable of understanding right from wrong or controlling their actions. Similarly, the defence of intoxication relies on the argument that the defendant did not understand the nature of their actions due to intoxication.
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Common law is unwritten and based on legal precedents
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law and draws from institutionalised 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.
Common law offences are crimes under English criminal law, the 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. For example, the UK has long had a common-law offence of "outraging public decency". In recent times, the authorities have used this ancient common law to prosecute a new intrusive activity called upskirting.
In some US states, the elements of many crimes are defined mostly or entirely by common law. For instance, Michigan's penal code does not define the crime of murder, but the actual elements of murder and their meaning are entirely set out in case law. In Canada, the consolidation of criminal law in the Criminal Code enacted in 1953 involved the abolition of all common law offences except contempt of court.
Common law offences have been abolished or redefined as statutory offences in many jurisdictions. For example, in Australia, the Criminal Code Act 1995 (Commonwealth) abolished all common law offences at the federal level. Similarly, in New Zealand, the ability to be proceeded against at common law for being a party to a criminal offence was abolished by section six of the Criminal Code Act 1893.
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Common law offences are crimes under English criminal law
In England and Wales, the Law Commission's programme of codification of criminal law includes the aim of abolishing all remaining common law offences and replacing them with offences defined by statute. Common law offences are seen as vague and open to development by the courts in ways that might violate the principle of certainty. For example, the U.K. has long recognised the common-law offence of "outraging public decency". In recent years, this ancient common law has been used to prosecute a new intrusive activity called "upskirting". In February 2019, the U.K. Parliament passed the Voyeurism (Offences) Act, which officially made upskirting a crime.
Some common law offences that have been abolished or redefined as statutory offences include contempt of court, defamatory libel, disabling to commit an indictable offence, and obstruction of justice. While the Australian Criminal Code Act 1995 abolished all common law offences at the federal level, some Australian states still recognise them. In Canada, the consolidation of criminal law in 1953 abolished all common law offences except for contempt of court.
Common law defences are also available to defendants in criminal cases. For example, affirmative defences eliminate liability despite all the elements of the offence being present. Negating defences negate one or more of the essential elements of the prosecution's case. Defences of consent, abandonment, entrapment, insanity, intoxication, and mistake of fact or law are also recognised in common law jurisdictions.
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Common law offences are punishable by unlimited fines and imprisonment
Common law offences are crimes under English criminal law, the 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, and have no specific basis in statute.
However, this process of abolishing common law offences has not been completed, so some common law offences still exist. These include "outraging public decency", which has been used to prosecute a new intrusive activity called "upskirting". Other common law offences that have been abolished or redefined as statutory offences include contempt of court, defamatory libel, obstruction of justice, and nightwalking.
In other countries, such as Australia, Canada, and New Zealand, common law offences have been abolished at the federal level, but they may still apply in some jurisdictions. For example, in Canada, the Criminal Code enacted in 1953 abolished all common law offences except contempt of court. In the US, the Supreme Court found that common law offences could not be enforced in federal courts, but some states continue to recognize them.
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Common law defences include insanity, intoxication, consent, abandonment, and entrapment
Common law is a body of unwritten laws based on legal precedents established by the courts. It is practised in several countries, including the US, the UK, Canada, Australia, and India. Common law offences are crimes under English criminal law and the criminal law of some Commonwealth countries, as well as under some US state laws. These offences are developed entirely by the law courts and have no basis in statute.
Common law defences are arguments used to assert that a defendant did not commit a criminal act. These defences include insanity, intoxication, consent, abandonment, and entrapment. The insanity defence, for example, is used when a defendant is incapable of understanding what they were doing or determining right from wrong due to a mental disorder. This defence has been used in several high-profile cases, resulting in a public perception that it is too frequently applied. However, studies show that it is only used in about 1% of felony cases in the US.
Intoxication is another defence that relies on the theory that the defendant could not understand their actions due to the influence of substances. Consent is also a defence, as seen in cases of battery or assault, where the victim consented to the harm. Abandonment or withdrawal can be argued if the defendant initially intended to commit a crime but later changed their mind and withdrew from participation.
Lastly, entrapment occurs when the government induces an individual to commit a crime and then attempts to punish them for it. The defendant may argue that they were induced by the government and should not be held responsible for the crime.
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Frequently asked questions
Common law offences are crimes under English criminal law, the related criminal law of some Commonwealth countries, and under some U.S. state laws. They are offences under the common law, developed entirely by the law courts, having no specific basis in statute.
Common law offences include contempt of court, defamatory libel, disabling to commit an indictable offence, and obstruction of justice. Some other examples are nightwalking, riot, rout, affray, and eavesdropping.
A common law defence is when a defendant goes on trial for allegedly committing a crime and presents a legal and reasonable defence for their actions. Some examples of common law defences are consent, abandonment/withdrawal, entrapment, insanity, and intoxication.
