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 basis 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 maintenance, eavesdropping and being a common scold – have been abolished in that State.
In Canada the consolidation of criminal law in the Criminal Code, enacted in 1953, involved the abolition of all common law offences except contempt of court (preserved by section 9 of the Code) and contempt of Parliament (preserved by section 18 of the Constitution Act, 1867).
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:
- Administration of drugs with intent to enable or assist the commission of a crime
- Administration of poison with intent to injure, aggrieve or annoy any person
- Assault with intent to rape
- Assault with intent to rob
- Barratry, inciting litigation for profit
- Being a common scold
- Blasphemous libel
- Breach of prison
- Bribery – Offering or paying a bribe
- (Causing a) public nuisance
- Champerty and maintenance - Maintenance
- Common assault aka assault
- Compounding treason
- Compounding a felony
- Concealment of treasure trove
- Contempt of court a.k.a. criminal contempt, contumacy
- Contempt of the sovereign
- Defamatory libel (sometimes known as criminal libel, although this can refer to several offences of libel)
- Disabling in order to commit an indictable offence (in other words choking or strangulation)
- Effecting a public mischief (disputed - held to no longer exist)
- Escape from lawful custody
- Malicious mischief
- Misprision of felony (disputed - alleged not to exist)
- Misprision of treason (disputed - alleged to be statutory)
- Nightwalking (so as to cause alarm)
High crimes and misdemeanours
- Abuse of authority
- Acceptance of a bribe
- Failure to supervise
- Conduct unbecoming
- Dereliction of duty, Refusal to execute public office
- Desertion, Away without leave
- Failure to appear: subpoena, militia call-up, jury notice
- False imprisonment
- Insubordination, Failure to obey a lawful order
- Misappropriation of funds
- Misconduct in public office
- Obstruction of justice, perverting the course of justice, defeating the ends of justice, obstructing the administration of justice
- Perjury of oath
- Permitting an escape
In New Zealand the ability to be proceeded against at common law for being a party to a criminal offence was abolished by section five of the Crimes Act, 1908. The Crimes Act, s9, 1961 (which replaced the 1908 enactment) affirmed the abolition of criminal proceedings at common law, with the exception of contempt of court and of offences tried by courts martial.
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). A woman, Anne Royall, was nonetheless found guilty of being a common scold in Washington, D.C. in 1829; a newspaper paid her fine. Some have argued that common law offences 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 30 March 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, 1908 No. 42, s. 5" (PDF). The University of Auckland, Early New Zealand Statutes. Retrieved 4 January 2018.
- "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.
- Anthony J. Fejfar (2009), "Common Law Crimes Are Unconstitutional as Ex Post Facto Laws"
- 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.