Common law, Apuntes de Derecho Comparado

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COMMON LAW SYSTEMS

Criminal law

Prof. Carolina Villacampa

Nations that trace their legal heritage from England: England andWales, Northern Ireland, Ireland, USA (except Louisiana), Canada(except Quebec), New Zealand, Australia, other generally English-speaking countries or Commonwealth countries (except Malta andScotland)

Origin of common law
^ 1154 Henry II

institutionalized common law
^ Creation of

unified system of law

common to the

county: elevation of local custom to national, endof local control and peculiarities
Kings judges

ruled cases in counties, returned to London and recorded their decisions: creation ofprecedent (stare decisis)
As colonies gained independence from Britain,most adopted British common law as the basisfor their legal systems

Stare decisis
^ Heart of all common law systems
^ Principle of

recognizing previous decisions

as precedents to guide future deliberations
Two dimensions^ ^ Vertical

: decisions made by a higher court be taken into consideration by lower courts  Horizontal

: the courts on the same level should be consistent in interpretation

Sources of Criminal Law II
^ Limit in most common law countries:^ crimes should be created by statutory law^ (statutory crimes)
^ Differences USA-UK^ ^ USA: American legislatures have nowadaysexpressly abolished common law crimes (untilmid 19th century)^ ^ English judges still occasionally apply commonlaw crimes to novel situations^

E.g.: House of Lords: 1962, crime of “conspiracy tocorrupt public morals”.

Criminal Justice System in CommonLaw Countries
^ Analysis:

UK^ (England/Wales) and

USA

^ Differences^ ^ USA: federal penal system^ ^ USA: Death penalty^ ^ USA: transition to civil law system
^ Common elements^ ^ Substantive criminal law^ ^ Procedural criminal law

General features of crime
^ Essence of

concept of crime

^ 3 elements:^ ^ Actus reus

: the criminal act ^ Mens rea

: a culpable mental state ^ Concurrence

of the two

^ Actus reus:^ ^ The external element^ ^ Event, behaviour, state or affairs

General features of crime II
^ Mens rea^ ^ Guilty mind: defendant’s specific mental stateat the time the behaviour occurred^ ^ Levels/types of mens rea:^

Intention (purpose):

action undertaken to achieve a goal^ ^ transferred intent (the killer intended to kill someone)
Recklessness:

no intention to cause a harmful result, but taking an unjustifiable risk of causing it, beingconscious of taking it (subjective recklessness)
Negligence:

the inadvertent taking of an unjustifiable risk (the person should have known better)

General features of crime IV
^ Inchoate offences:^ ^ Just begun, incipient o in an initial or earlystage offences^ ^ Attempt

: who, with the intent to commit an offence (indictable), does an act which is morethan merely preparatory  Conspiracy

: agreement between two or more persons to commit a crime  Incitement

(UK): common law misdemeanour to incite another to commit an offence inEngland and Wales. Abolished by the SeriousCrime Act 2007 (creates 3 new offences)

Principles of criminal responsibility
^ Generally:

personal liability existing mens

rea
Exceptions:^ ^ Strict liability/absolute liability offences

: crimes

that not require intention, recklessness ornegligence^
^ Basis: causing harm is itself blameworthy^
^ Routine traffic offences, possession of firearms (UK),possession of indecent images of children, etc.

Types of defences
^ Defences

(USA defenses): evidence and

arguments offered by a defendant to showwhy that person should not be held liablefor criminal defenses
Categories of defences

^ Alibi ^ Justifications (General defences in GB) ^ Excuses (mental condition defences in GB) ^ Procedural defenses (USA) ^ Innovative defenses (new excuses- USA)

Alibi
^ Shows that defendant could not havecommitted the crime because he or she^ was somewhere else
^ Defendant

truly innocent