This page intentionally left blank Lacey, Wells and Quick: Reconstructing Criminal Law: Text and Materials Since the publication of the first edition, this textbook has offered one of the most distinctive and innovative approaches to the study of criminal law. Looking at both traditional and emerging areas, such as public order offences and corporate manslaughter, it offers a broad and thorough perspective on the subject. Material is organised thematically and is clearly signposted at the beginning of each section to allow the student to navigate successfully through the different fields. This new edition looks at topical issues such as policing, the Serious Crime Act 2007, and reform of the Fraud Act 2006. Relevant case law and extracts from the most topical and engaging debates give the subject immediacy. The book is essential for both undergraduate and postgraduate study of criminal law and justice. Celia Wells is Professor of Criminal Law at the , where her research focuses on criminal law and, in particular, corporate criminal liability. In 2006 she was awarded the OBE for services to legal education. Oliver Quick is a Senior Lecturer in Law at the School of Law, University of Bristol, where he teaches undergraduate and postgraduate courses in Criminal Law, Criminal Justice, Medical Law and Public Health Law. The Law in Context Series Editors William Twining (University College London), Christopher McCrudden (Lincoln College, Oxford) and Bronwen Morgan () Since 1970 the Law in Context series has been in the forefront of the movement to broaden the study of law. It has been a vehicle for the publication of innovative scholarly books that treat law and legalphenomena critically in their social, political and economic contexts from a variety of perspectives. The series particularly aims to publish scholarly legal writing that brings fresh perspectives to bear on new and existing areas of law taught in universities. A contextual approach involves treating legal subjects broadly, using materials from other social sciences, and from any other discipline that helps to explain the operation in practice of the subject under discussion. It is hoped that this orientation is at once more s timulating and more realistic than the bare exposition of legal rules. The series includes original books that have a different emphasis from traditional legal textbooks, while maintaining the same high standards of scholarship. They are written primarily for undergraduate and graduate students of law and of other disciplines, but most also appeal to a wider readership. In the past, most books in the series have focused on English law, but recent publications include books on European law, globalisation, transnational legal processes, and comparative law. Books in the Series Anderson, Schum & Twining: Analysis of Evidence Ashworth: Sentencing and Criminal Justice Barton & Douglas: Law and Parenthood Beecher-Monas: Evaluating Scientific Evidence: An Interdisciplinary Framework for Intellectual Due Process Bell: French Legal Cultures Bercusson: European Labour Law Birkinshaw: European Public Law Birkinshaw: Freedom of Information: The Law, the Practice and the Ideal Cane: Atiyah’s Accidents, Compensation and the Law Clarke & Kohler: Property Law: Commentary and Materials Collins: The Law of Contract Cranston: Legal Foundations of the Welfare State Davies: Perspectives on Labour Law Dembour: Who Believes in Human Rights?: The European Convention in Question de Sousa Santos: Toward a New Legal Common Sense Diduck: Law’s Families Elworthy & Holder: Environmental Protection: Text and Materials Fortin: Children’s Rights and the Developing Law Glover-Thomas: Reconstructing Mental Health Law and Policy Gobert & Punch: Rethinking Corporate Crime Goldman: Globalisation and the Western Legal Tradition: Recurring Patterns of Law and Authority Harlow & Rawlings: Law and Administration Harris: An Introduction to Law Harris, Campbell & Halson: Remedies in Contract and Tor t Harvey: Seeking Asylum in the UK: Problems and Prospects Hervey & McHale: Health Law and the European Union Holder & Lee: Environmental Protection, Law and Policy Kostakopoulou: The Future Governance of Citizenship Lewis: Choice and the Legal Order: Rising above Politics Likosky: Law, Infrastructure and Human Rights Likosky: Transnational Legal Processes Maughan & Webb: Lawyering Skills and the Legal Process McGlynn: Families and the European Union: Law, Politics and Pluralism Moffat: Trusts Law: Text and Materials Monti: EC Competition Law Morgan & Yeung: An Introduction to Law and Regulation, Text and Materials Norrie: Crime, Reason and History O’Dair: Legal Ethics Oliver: Common Values and the Public – Private Divide Oliver & Drewry: The Law and Parliament Picciotto: International Business Taxation Reed: Internet Law: Text and Materials Richardson: Law, Process and Custody Roberts & P almer: Dispute Processes: ADR and the Primary Forms of Decision-Making Rowbottom: Democracy Distorted: Wealth, Influence and Democ ratic Politics Scott & Black: Cranston’s Consumers and the Law Seneviratne: Ombudsmen: Public Serv ices and Administrative Justice Stapleton: Product Liability Tamanaha: Law as a Means to an End: Threat to the Rule of Law Turpin & Tomkins: British Government and the Constitution: Text and Materials Twining: General Jurisprudence: Understanding Law from a Global Perspective Twining: Globalisation and Legal Theory Twining: Human Rights, Southern Voices: Francis Deng, Abdullahi An-Na’im, Yash Ghai and Upendra Baxi Twining: Rethinking Evidence Twining & Miers: How to Do Things with Rules Ward: ACriticalIntroductiontoEuropeanLaw Ward: Law, Te xt, Terror Ward: Shakespeare and Legal Imagination Wells & Quick: Lacey, Wells and Quick: Reconstructing Criminal Law Zander: CasesandMaterialsontheEnglishLegalSystem Zander: The Law-Making Process Lacey, Wells and Quick Reconstructing Criminal Law Text and Materials Fourth edition CELIA WELLS OLIVER QUICK CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK First published in print format ISBN-13 978-0-521-73739-5 ISBN-13 978-0-521-51913-7 ISBN-13 978-0-511-74266-8 © Celia Wells and Oliver Quick 2010 2010 Information on this title: www.cambrid g e.or g /9780521737395 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Published in the United States of America by Cambridge University Press, New York www.cambridge.org Hardback eBook ( Dawsonera ) Pa p erback Contents Preface page xiii Tabl e of c ases xv Tabl e of s tatutes xxxvi Section I Approaching Criminal Law 1 Images of Criminal Law 3 a. Theories of criminal law: history, sociology and philosophy 5 i. Explaining criminal law 5 ii. Justifying criminal law 9 iii. The power of criminal law 13 2 Criminal Laws in Context 19 a. Social norms 20 b. Shaping criminal law 28 c. Constructing crime: processing suspects and offenders 33 i. Institutions, people and practices 34 ii. Investigating crime 37 iii. Prosecuting crime 51 iv. Constructing crime in the trial 52 v. Sentencing and punishment 59 3 Foundations of Criminal Law 72 a. Due process and human rights 72 i. Legal ideology and the rule of law 74 ii. The presumption of innocence: in search of ‘the golden thread’ . . . 79 iii. Miscarriages of justice 91 b. Concepts in criminal law 94 i. ‘Actus reus’ 98 ii. ‘Mens rea’ 104 viii Contents iii. The ‘actus reus’/‘mens rea’ combination 117 iv. Exemption, justification and excuse 119 v. Inchoate offences and participatory liability 123 Section II Law, Order and Security 4 Social and Political Constructions of Disorder 129 a. Conceptions of disorder 135 b. Legitimate protest or moral panics? 138 c. Problem populations 141 5 Securing Order: Pre-emptive Measures 144 a. The trend towards p reventive justice 144 b. Breach of the peace: arrest and binding over 146 i. Arrest 146 ii. Binding over 147 c. Football banning orders 149 d. Anti-social behaviour orders 155 6 Public Order: Control Mechanisms 160 a. Controlling mass assemblies 161 i. Marches and demonstrations 161 ii. Trespass 171 b. Riot, violent disorder and affray 176 i. Outline of offences 176 ii. Common elements 178 iii. Mental element 181 c. Harassment offences 181 i. Public Order Act 1986 181 ii. Protection from Harassment Act 1997 189 d. Hate crimes 192 7 Criminal Law and Justice: Emerging Themes 198 a. Territory, technology, youth 198 b. Public order and criminal law 205 c. Public order and criminal process 214 d. Thematic summary 225 [...]... 262 264 a Drug and alcohol control i The nature of the problem ii Prohibition and regulation 9 244 244 249 251 278 Intoxication and criminal responsibility Offence Preparation and Participation 292 a Preparation i Attempt ii Conspiracy iii Assisting and encouraging iv Inchoate liability, impossibility and patterns of criminality 292 293 297 306 311 b 316 317 322 Participation i Aiding and abetting ii... 410 e Criminal damage 413 f Duress, necessity and property 416 g Respect for property? 447 Property Rights and Criminal Enforcement 449 a Crime prevention i Situational prevention ii Diversifying and privatising control iii Money laundering 450 450 458 462 b 13 Constructing Property in Criminal Law 463 Enforcement patterns: ‘real’ crime and ‘intangible’ property 381 Section V Regulating Sexuality and. .. mainstream than now Yet we sense that criminal law teaching often still relies on a view of the subject against the grain of which this book has always tried to venture We continue to believe that historical, sociological and philosophical insights help to explain and bring to life the complexity that is criminal law and justice This has eased our task in producing this fourth edition We have considered all... Trust and Intimacy? 14 477 a Attitudes to sexuality and autonomy 478 b 15 The Social Construction of Sexuality and Bodily Autonomy 479 Sexual freedom and sexual discipline 489 a Sexual violence and the criminal process i A continuum of violence ii Investigating and prosecuting sexual violence 489 490 494 b 16 Sexual Violence 499 501 503 506 513 525 534 The offence of rape i Penile penetration ii Rape and. .. terrain of criminal law and justice The intellectual drive behind the book came largely from Nicola Lacey who has played an advisory role in this edition The re-ordering, re-writing, and selection of extracts have been carried out by the two of us In terms of lead author, we have always done some swapping around between editions; for this edition Celia was mainly responsible for Sections I to IV and Oliver... comprehensive account of criminal law and criminal xiv Preface justice but we can now more confidently assert that the aim of the book is to stimulate rather than to answer questions Many people have helped to get this edition out We wish to thank in particular Will Turner and Lyndy Davies who provided some initial research assistance, and to Sharon Cowan, Richard Huxtable and Emily Jackson for providing... and provided extremely useful comments on a draft of Section II Most of all, we would like to thank our families Celia’s children – Joe Wells, Alice and Lydia Morgan – were 14, 9 and 4 when the black and shocking pink first edition arrived in 1990 They contributed lively arguments then, and still do as adults, but we haven’t let Lydia choose the cover colours again Oliver would like to thank Celia and. .. 21 707 717 Murder and Manslaughter 725 a The penalty for murder 726 b 746 The mental element in murder c Reform: three tiers for homicide? i Murder – one and two? ii Partial defences to murder (one?) iii Involuntary manslaughter 765 765 767 796 d Self-defence 810 Bibliography Index 819 859 Preface Reconstructing Criminal Law first appeared 20 years ago at a time when the law in context movement in legal... Drug and Alcohol Abuse; Offence Preparation and Participation 8 Offences Against the Person 233 a 234 236 The framework i Assault and battery ii Occasioning actual bodily harm, wounding and grievous bodily harm 238 b Boundary issues i Psychiatric harm ii Consent iii Disease transmission c Practice and reform i Crime patterns ii Charging practice iii Reforming offences against the person Drug and Alcohol... V and VI We have re-ordered some parts and updated all of it The pace of legislative change has been relentless But other major transformations have taken place The impact of the Human Rights Act 1998 can now be seen more clearly than at the time of the last edition in 2003 The book has always emphasised the importance of public order law, of policing and of enforcement strategies in the study of criminal . CasesandMaterialsontheEnglishLegalSystem Zander: The Law- Making Process Lacey, Wells and Quick Reconstructing Criminal Law Text and Materials Fourth edition CELIA. ACriticalIntroductiontoEuropeanLaw Ward: Law, Te xt, Terror Ward: Shakespeare and Legal Imagination Wells & Quick: Lacey, Wells and Quick: Reconstructing Criminal Law Zander: