Sources of Criminal Law

As with most branches of the law in England and Wales, the sources of criminal law are found partly in common law and partly in statute law.

Common Law

Common law originated from the customs of the early communities; there is no authoritative text on the common law, and its sources generally lie in the principles of law declared by the judges of The High Court in the course of deciding particular cases. Their decisions are authoritative in the same way as an Act of Parliament.

The decision in a criminal trial as to the guilt or innocence of the defendant is a matter for the jury (or the magistrates), although this decision will only be left to them when the trial judge is satisfied that a verdict of guilty would be proper in law on the facts and that there is evidence which, if believed, would justify such a verdict.

The Courts and Decided Cases

The system of courts in England and Wales is a hierarchy; an "inferior" court is generally bound by the decision and directions of a "superior" court.

When it is said that a decision is binding, what is meant is that the principle of law on which the decision is based, or the reason for the decision, is binding. This principle is known as the "ratio decidendi" of the case.

Sometimes, when giving its opinion, a court goes beyond the facts of a particular case and gives an opinion on some connected matter. Such opinion is known as "obiter dictum", and is not binding on other courts in a future case. It may, however, be persuasive authority.

Legislation

Statues, in the form of Acts of Parliament can be properly regarded as supplementary to the common law. They are enacted by Parliament, and it is the duty of the court to interpret and give effect to the intention of Parliament as expressed in the words of the statute. They can have regard to the content of any debates with either House as reported in Hansard, and must be construed so far as possible in conformity with the common law. Where the 2 cannot be reconciled, the statute prevails.

The courts have the same task in relation to Orders in Council, statutory instruments and bye-laws, also referred to as "delegated legislation", but there are 2 important distinctions: -