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 courts, and therefore have no specific bases in legislation.

Australia

In Australia the Criminal Code Act 1995 (Cth) abolished all common law offences at the federal level.[1] 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.

Canada

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).

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 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:

See also criminal libel

High crimes and misdemeanours


See also Uniform Code of Military Justice for codification of what had been common law crimes.

New Zealand

In New Zealand common law offence were abolished under the Crimes Act 1961, with the exception of contempt of court and of offences tried by courts martial.[2]

United States

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.[3]

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.

See also

References

  1. ↑ History of Australian Criminal Law, Parliament of Australia Library Archived March 30, 2010, at the Wayback Machine.
  2. ↑ Crimes Act 1961, Part 1, sec. 9
  3. ↑ Common Law Crimes Are Unconstitutional as Ex Post Facto Laws, Anthony J. Fejfar (2009)
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