Common law offence
Common law offences are crimes under English criminal law and the related criminal law of other Commonwealth countries. They are offences under the common law, developed entirely by the law courts, and therefore have no specific bases in statute.
Under the criminal law of Australia the Criminal Code Act 1995 (Cth) abolished all common law offences at the federal level. The Australian Capital Territory, the Northern Territory, Queensland, Tasmania and Western Australia have also abolished common law offences, but they still apply in New South Wales, South Australia and Victoria. Although some common law offences still exist in New South Wales, many common law offences- for example nightwalking, riot, rout, affray, keeping of bawdy houses, champerty and maintainence, eavesdropping and being a common scold- have been abolished in that State.
England and Wales
In England and Wales, the Law Commission's programme of codification of the criminal law included the aim of abolishing all the remaining common law offences and replacing them, where appropriate, with offences precisely defined by statute. Common law offences were seen as unacceptably vague and open to development by the courts in ways that might offend the principle of certainty. However, neither the Law Commission nor the UK Parliament have completed the necessary revisions of the law, so common law offences still exist. 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 those that have been abolished or redefined as statutory offences are listed at History of English criminal law § Common law offences.
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:
- Common assault aka assault
- Assault with intent to rob
- Assault with intent to rape
- Kidnapping / abduction
- Concealment of treasure trove
- High treason
- Petty treason
- Misprision of treason (disputed - alleged to be statutory)
- Misprision of felony (disputed - alleged not to exist)
- Compounding treason
- Seditious libel
- Contempt of the sovereign
- Contempt of court a.k.a. criminal contempt, contumacy
- Compounding a felony
- Fabrication of false evidence
- Escape from lawful custody
- Breach of prison/breaking prison
- Rescue/rescuing a prisoner in custody
- Harboring a fugitive or felon
- Effecting a public mischief (disputed - held to no longer exist)
- Malicious mischief
- Unlawful assembly
- Breach of the peace
- Defamatory libel
- (Causing a) public nuisance
- Obscene libel
- Blasphemous libel
- Challenging to fight
- Barratry, inciting litigation for profit
- Being a common scold
- Nightwalking (so as to cause alarm)
- Outraging public decency
- Forcible entry
- Forcible detainer
- Offering or paying a bribe
- Inebriation, public intoxication, posing a danger to others
- Running a disorderly house
- Administration of drugs with intent to enable or assist the commission of a crime
- Housebreaking with intent to steal
- Use of threats with intent to extort money or property
- Wilful fireraising and culpable and reckless fireraising
See also criminal libel
High crimes and misdemeanours
- Misconduct in public office
- Perjury of oath
- Abuse of authority
- Failure to appear: subpoena, militia call-up, jury notice
- Failure to supervise
- Misappropriation of funds
- Acceptance of a bribe
- Dereliction of duty, Refusal to execute public office
- Conduct unbecoming
- Desertion, Away without leave
- Insubordination, Failure to obey a lawful order
- Obstruction of justice, perverting the course of justice, defeating the ends of justice, obstructing the administration of justice
- False imprisonment
- Permitting an escape
See also Uniform Code of Military Justice for codification of what had been common law crimes.
The notion that common law offenses could be enforced in federal courts was found to be unconstitutional by the U.S. Supreme Court in United States v. Hudson and Goodwin, 11 U.S. 32 (1812). Some have argued that they are inconsistent with the prohibition of ex post facto laws.
At the state level, the situation varies. Some states, such as New Jersey, have abolished common law crimes (see State v. Palendrano), while others have chosen to continue to recognize them. In some states, the elements of many crimes are defined mostly or entirely by common law, i.e., by prior judicial decisions. For instance, Michigan's penal code does not define the crime of murder: while the penalties for murder are laid out in statute, the actual elements of murder, and their meaning, is entirely set out in case law.
- History of Australian Criminal Law, Parliament of Australia Library Archived March 30, 2010, at the Wayback Machine.
- "Legislating the Criminal Code - Law Commission". www.lawcom.gov.uk.
- "Criminal Law: A Criminal Code - Law Commission". www.lawcom.gov.uk.
- "Crimes Act 1961 No 43 (as at 28 September 2017), Public Act 9 Offences not to be punishable except under New Zealand Acts – New Zealand Legislation". www.legislation.govt.nz.
- Common Law Crimes Are Unconstitutional as Ex Post Facto Laws, Anthony J. Fejfar (2009)
- People v. Aaron, 409 Mich. 672, 713 (Michigan Supreme Court 1980) (""In Michigan, murder is not statutorily defined."").
- Mich. Comp. Laws No. § 750.316 of 2014. Retrieved 2 April 2018.
- Mich. Comp. Laws No. § 750.317 of 2014. Retrieved 2 April 2018.