Common law offences
Encyclopedia
Common law offences are crime
s under English criminal law
and the related criminal law of Commonwealth of Nations
countries. These are offences of the common law
which are developed entirely by the courts over the years, and for which there is no actual legislation.
The various common law offences are developed using the concept of malum in se
.
Criminal Code Act 1995 (Cth) abolished all common law federal offences. The Australian Capital Territory
, the Northern Territory
, Queensland
, Tasmania
, and Western Australia
have also abolished common law State offences. Common law State offences still apply in New South Wales
, South Australia
and Victoria
, the 1953 consolidation of criminal law abolished all common law offences, except Contempt of Court
under section 9 of the Criminal Code of Canada
.
's programme of codification of the criminal law had the eventual aim to abolish all the remaining common law offences and replace them, where appropriate, with offences precisely defined by statute. The common law offences were seen as unacceptably vague and open to development by the courts in silly ways which might offend the principle of certainty. However, they still exist under English law. In England and Wales
, common law offences are punishable by unlimited fines and unlimited imprisonment.
Extant common law offences are listed at English criminal law#Common law offences and abolished etc offences are listed at History of English criminal law#Common law offences.
, the Crimes Act 1961
abolished common law offences, except for contempt of court
and for courts martial.
, 11 U.S. 32 (1812). At the state level, the situation varies. Some states, such as New Jersey
, have abolished common law crimes (see State v. Palendrano
), while others, such as Kentucky
, have chosen to continue to recognize them (see Commonwealth v. Donoghue
).
See also criminal libel
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
s under English criminal law
English criminal law
English criminal law refers to the body of law in the jurisdiction of England and Wales which deals with crimes and their consequences. Criminal acts are considered offences against the whole of a community...
and the related criminal law of Commonwealth of Nations
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
countries. These are offences of the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
which are developed entirely by the courts over the years, and for which there is no actual legislation.
The various common law offences are developed using the concept of malum in se
Malum in se
Malum in se is a Latin phrase meaning wrong or evil in itself. The phrase is used to refer to conduct assessed as sinful or inherently wrong by nature, independent of regulations governing the conduct...
.
Australia
In AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
Criminal Code Act 1995 (Cth) abolished all common law federal offences. The Australian Capital Territory
Australian Capital Territory
The Australian Capital Territory, often abbreviated ACT, is the capital territory of the Commonwealth of Australia and is the smallest self-governing internal territory...
, the Northern Territory
Northern Territory
The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions...
, Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
, Tasmania
Tasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...
, and Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
have also abolished common law State offences. Common law State offences still apply in New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
, South Australia
South Australia
South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland...
and Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
Canada
In CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, the 1953 consolidation of criminal law abolished all common law offences, except Contempt of Court
Contempt of court
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
under section 9 of the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
.
England and Wales
In England and Wales, the Law CommissionLaw Commission (England and Wales)
In England and Wales the Law Commission is an independent body set up by Parliament by the Law Commissions Act 1965 in 1965 to keep the law of England and Wales under review and to recommend reforms. The organisation is headed by a Chairman and four Law Commissioners...
's programme of codification of the criminal law had the eventual aim to abolish all the remaining common law offences and replace them, where appropriate, with offences precisely defined by statute. The common law offences were seen as unacceptably vague and open to development by the courts in silly ways which might offend the principle of certainty. However, they still exist under English law. In England and Wales
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, common law offences are punishable by unlimited fines and unlimited imprisonment.
Extant common law offences are listed at English criminal law#Common law offences and abolished etc offences are listed at History of English criminal law#Common law offences.
New Zealand
In New ZealandNew Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
, the Crimes Act 1961
Crimes Act 1961
The Crimes Act 1961 is an Act of the Parliament of New Zealand administered by the Ministry of Justice.-Amendments:The Homosexual Law Reform Act 1986 amended the Crimes Act, allowing for consensual homosexual relationships between men....
abolished common law offences, except for contempt of court
Contempt of court
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
and for courts martial.
United States
Common law offences no longer exist at the federal level, as per the U.S. Supreme Court's decision in United States v. Hudson and GoodwinUnited States v. Hudson and Goodwin
United States v. Hudson and Goodwin, 11 U.S. 32 , was a case in which the United States Supreme Court held that Congress must first enact a law criminalizing an activity, attach a penalty, and give the federal courts jurisdiction over the offense in order for the court to render a...
, 11 U.S. 32 (1812). At the state level, the situation varies. Some states, such as New Jersey
New Jersey
New Jersey is a state in the Northeastern and Middle Atlantic regions of the United States. , its population was 8,791,894. It is bordered on the north and east by the state of New York, on the southeast and south by the Atlantic Ocean, on the west by Pennsylvania and on the southwest by Delaware...
, have abolished common law crimes (see State v. Palendrano
State v. Palendrano
State v. Palendrano, 120 N.J. Super. 336, 293 A.2d 747 , was a legal case decided by the New Jersey Superior Court, Law Division, holding that the common law offense of being a common scold was no longer a crime despite the presence of reception statutes in the state...
), while others, such as Kentucky
Kentucky
The Commonwealth of Kentucky is a state located in the East Central United States of America. As classified by the United States Census Bureau, Kentucky is a Southern state, more specifically in the East South Central region. Kentucky is one of four U.S. states constituted as a commonwealth...
, have chosen to continue to recognize them (see Commonwealth v. Donoghue
Commonwealth v. Donoghue
Commonwealth v. Donoghue, 63 S.W.2d 3 , was a case decided by the Kentucky Court of Appeals that upheld the ability of judges to create common law crimes in the state of Kentucky, which has complemented codified criminal laws with common law criminal offenses imported through reception statutes...
).
List of offences under the common law of England
This list includes offences that have been abolished or codified in one or more or all jurisdictions:- MurderMurderMurder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
- ManslaughterManslaughterManslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
- MayhemMayhem (crime)Mayhem is a criminal offence consisting of the intentional maiming of another person.Under the common law of England and Wales and other common law jurisdictions, it originally consisted of the intentional and wanton removal of a body part that would handicap a person's ability to defend himself in...
- Common assaultCommon assaultCommon assault was an offence under the common law of England, and has been held now to be a statutory offence in England and Wales. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. It was thought to include battery...
aka assaultAssaultIn law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more... - BatteryBattery (crime)Battery is a criminal offense involving unlawful physical contact, distinct from assault which is the fear of such contact.In the United States, criminal battery, or simply battery, is the use of force against another, resulting in harmful or offensive contact...
- Assault with intent to rob
- Assault with intent to rape
- KidnappingKidnappingIn criminal law, kidnapping is the taking away or transportation of a person against that person's will, usually to hold the person in false imprisonment, a confinement without legal authority...
- False imprisonmentFalse imprisonmentFalse imprisonment is a restraint of a person in a bounded area without justification or consent. False imprisonment is a common-law felony and a tort. It applies to private as well as governmental detention...
- RapeRapeRape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
- ArsonArsonArson is the crime of intentionally or maliciously setting fire to structures or wildland areas. It may be distinguished from other causes such as spontaneous combustion and natural wildfires...
- LarcenyLarcenyLarceny is a crime involving the wrongful acquisition of the personal property of another person. It was an offence under the common law of England and became an offence in jurisdictions which incorporated the common law of England into their own law. It has been abolished in England and Wales,...
- RobberyRobberyRobbery is the crime of taking or attempting to take something of value by force or threat of force or by putting the victim in fear. At common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear....
- BurglaryBurglaryBurglary is a crime, the essence of which is illicit entry into a building for the purposes of committing an offense. Usually that offense will be theft, but most jurisdictions specify others which fall within the ambit of burglary...
- Concealment of treasure trove
- CheatingCheating (law)At law, cheating is a specific criminal offence relating to property.Historically, to cheat was to commit a misdemeanour at common law. However, in most jurisdictions, the offence has now been codified into statute....
- ForgeryForgeryForgery is the process of making, adapting, or imitating objects, statistics, or documents with the intent to deceive. Copies, studio replicas, and reproductions are not considered forgeries, though they may later become forgeries through knowing and willful misrepresentations. Forging money or...
- High treasonHigh treasonHigh treason is criminal disloyalty to one's government. Participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplomats, or its secret services for a hostile and foreign power, or attempting to kill its head of state are perhaps...
- Petty treasonPetty treasonPetty treason or petit treason was an offence under the common law of England which involved the betrayal of a superior by a subordinate. It differed from the better-known high treason in that high treason can only be committed against the Sovereign...
- Misprision of treasonMisprision of treasonMisprision of treason is an offence found in many common law jurisdictions around the world, having been inherited from English law. It is committed by someone who knows a treason is being or is about to be committed but does not report it to a proper authority...
(disputed - alleged to be statutory) - Compounding treasonCompounding treasonCompounding treason is an offence under the common law of England. It is committed by anyone who agrees for consideration to abstain from prosecuting the offender who has committed treason.It is still an offence in England and Wales, and in Northern Ireland...
- SeditionSeditionIn law, sedition is overt conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent to lawful authority. Sedition may include any...
- Seditious libelSeditious libelSeditious libel was a criminal offence under English common law. Sedition is the offence of speaking seditious words with seditious intent: if the statement is in writing or some other permanent form it is seditious libel...
- Contempt of the sovereignContempt of the sovereignContempt of the Sovereign was an ancient doctrine in English law dating from medieval times, and now obsolete...
- Misconduct in public office
- Refusal to execute public office
- Doing an act tending and intended to pervert the course of public justice - a.k.a. perverting the course of justicePerverting the course of justicePerverting the course of justice, in English, Canadian , and Irish law, is a criminal offence in which someone prevents justice from being served on himself or on another party...
, defeating the ends of justice, obstructing the administration of justice - Contempt of courtContempt of courtContempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
a.k.a criminal contempt - Misprision of felonyMisprision of felonyMisprision of felony was an offence under the common law of England and was classified as a misdemeanour. It consisted of failing to report knowledge of a felony to the appropriate authorities.Exceptions were made for close family members of the felon....
(disputed - alleged not to exist) - Compounding a felonyCompounding a felonyCompounding a felony was an offence under the common law of England and was classified as a misdemeanour. It consisted of a prosecutor or victim of an offence accepting anything of value under an agreement not to prosecute, or hamper the prosecution of, a felony...
- Fabrication of false evidence
- Escape
- Permitting an escape
- Breach of prison/breaking prison
- Rescue/rescuing a prisoner in custody
- Effecting a public mischief (disputed - held to no longer exist)
- RiotRiotA riot is a form of civil disorder characterized often by what is thought of as disorganized groups lashing out in a sudden and intense rash of violence against authority, property or people. While individuals may attempt to lead or control a riot, riots are thought to be typically chaotic and...
- RoutRoutA rout is commonly defined as a chaotic and disorderly retreat or withdrawal of troops from a battlefield, resulting in the victory of the opposing party, or following defeat, a collapse of discipline, or poor morale. A routed army often degenerates into a sense of "every man for himself" as the...
- AffrayAffrayIn many legal jurisdictions related to English common law, affray is a public order offence consisting of the fighting of two or more persons in a public place to the terror of ordinary people...
- Unlawful assemblyUnlawful assemblyUnlawful assembly is a legal term to describe a group of people with the mutual intent of deliberate disturbance of the peace. If the group are about to start the act of disturbance, it is termed a rout; if the disturbance is commenced, it is then termed a riot.- Section 144 :Section 144 is a...
- Breach of the peaceBreach of the peaceBreach of the peace is a legal term used in constitutional law in English-speaking countries, and in a wider public order sense in Britain.-Constitutional law:...
- Defamatory libelDefamatory libelDefamatory libel was originally an offence under the common law of England. It has been abolished in England and Wales and Northern Ireland. It was or is a form of criminal libel, a term with which it is synonymous.-England and Wales and Northern Ireland:...
- Public nuisancePublic nuisanceIn English criminal law, public nuisance is a class of common law offence in which the injury, loss or damage is suffered by the local community as a whole rather than by individual victims.-Discussion:...
- Obscene libelObscene libelThe publication of an obscene libel was an offence under the common law of England. Prior to the abolition by of the Criminal Law Act 1967 of the distinction between felony and misdemeanour, it was regarded as a misdemeanour...
- BlasphemyBlasphemyBlasphemy is irreverence towards religious or holy persons or things. Some countries have laws to punish blasphemy, while others have laws to give recourse to those who are offended by blasphemy...
- Blasphemous libelBlasphemous libelBlasphemous libel was originally an offence under the common law of England. It is an offence under the common law of Northern Ireland. It is a statutory offence in Canada and New Zealand...
- IncitementIncitementIn English criminal law, incitement was an anticipatory common law offence and was the act of persuading, encouraging, instigating, pressuring, or threatening so as to cause another to commit a crime....
- Maintenance
- ChampertyChampertyChamperty and maintenance are doctrines in common law jurisdictions, that aim to preclude frivolous litigation. "Maintenance" is the intermeddling of a disinterested party to encourage a lawsuit...
- EmbraceryEmbraceryEmbracery is the attempt to influence a juror corruptly to give his verdict in favour of one side or the other in a trial, by promise, persuasions, entreaties, money, entertainments and the like....
- Challenging to fight
- EavesdroppingEavesdroppingEavesdropping is the act of secretly listening to the private conversation of others without their consent, as defined by Black's Law Dictionary...
- Being a common barrator - see BarratryBarratryBarratry is the name of four legal concepts, three in criminal and civil law, and one in admiralty law.* Barratry, in criminal and civil law, is the act or practice of bringing repeated legal actions solely to harass...
- Being a common scoldCommon scoldIn the common law of crime in England and Wales, a common scold was a species of public nuisance—a troublesome and angry woman who broke the public peace by habitually arguing and quarreling with her neighbours...
- Being a common nightwalker
- Outraging public decencyOutraging public decencyOutraging public decency is a common law offence in England and Wales. As a common law offence it is punishable by unlimited imprisonment and/or an unlimited fine.-Definition:...
- Forcible entryForcible entryForcible entry is defined by Merriam-Webster's Dictionary of Law as the unlawful taking of possession of real property by force or threats of force or unlawful entry into or onto another's property, especially when accompanied by force....
- Forcible detainer
- AttemptAttemptAttempt was originally an offence under the common law of England.Attempt crimes are crimes where the defendant's actions have the form of the actual enaction of the crime itself: the actions must go beyond mere preparation....
- ConspiracyConspiracy (crime)In the criminal law, a conspiracy is an agreement between two or more persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement...
- BriberyBriberyBribery, a form of corruption, is an act implying money or gift giving that alters the behavior of the recipient. Bribery constitutes a crime and is defined by Black's Law Dictionary as the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official or...
See also criminal libel
Criminal libel
Criminal libel is a legal term, of English origin, which may be used with one of two distinct meanings, in those common law jurisdictions where it is still used....