At what point could courts in England no longer legally create new Common Law offenses? Common Law offenses, of course, were crimes created solely through case law rather than statute. At what point was the legal authority of courts in England to create new Common Law offenses abolished? In a practical sense, the actual creation of new Common Law offenses via court rulings seems to have ended by the end of the Middle Ages, but was this accompanied by a formal abolition of the authority to do so, or did this simply fall into disuse? This question has nothing to do with: The abolition of existing Common Law offenses (e.g. Murder, Larceny, etc.) in favor of purely statutory ones. Some countries, notably Canada, have passed statutes completely abolishing any remaining common-law offenses in favor of a purely statutory criminal codes. By contrast, some US states (Virginia is one) still retain some common-law offenses for which the punishment is defined in statute, but the definition is found in case law. The specific elements of existing, known Common Law offenses. If English courts still technically possess legal authority to create new Common Law offenses, but do not do so as a result of social or political pressure, that's an answer.
They still have the power They generally don’t because: Most activities of a criminal nature no matter how novel can be shoehorned as a new instance of an existing crime. Parliament is much more pro-active in its legislative agenda. The judicial system moves much more slowly.
The following is my attempt at the question after a very brief historical research. The history of the court system and of the regulation of legal professions in English is just... chaotic until late 19th century, so there will be many points that are incorrect or can be more precise below. At the advent of legal system, advocacy was a different from representation. Barristers advocate at the bar under instruction; attorneys and solicitors represent their clients. At their roots, attorney means one appointed as an agent (e.g. power of attorney = power to act on behalf of someone), and solicitors are called solicitors because they solicit causes on behalf of a client. Champerty and maintenance, or the encouragement of disputes by non-affected parties, were and remain (though with various modifications) in several jurisdictions illegal or contrary to public policy. The profession of lawyers, who are not parties to a dispute, is also concerned, even today (e.g. the controversy about contingency fees). Barristers were the original men who were learnt at (English) law and the King allowed them to give counsel as their profession against payment without being found guilty of maintenance or champerty. It was only in 1967 that a person other than a barrister may represent another person in a litigation before a court (although various exceptions existed) in England. At the same time, barristers considered themselves learnt men who should not practice laws only for the fees, but for the advancement of public good and justice; this is also why the lawyer fees are still sometimes called honorarium. Attorneys and solicitors were not originally persons who learnt law &quot;properly&quot;, at least in the eyes of the Inns, and could not represent their clients before a court without violating the prohibition against maintenance, as law was not their profession. The high fees and limited number of barristers, as well as the explosion of commercial and industrial activities, made it attractive for people to consult &quot;lesser&quot; legal practitioners, such as those who were in the business of soliciting (acting as an agent in) causes for a master (e.g. instructing a barrister on behalf of a client). The Inns of barristers were not very happy about it; it should be noted that Inns are professional guilds that have an interest in having a monopoly over their profession (much like the case of many professions, including legal ones, in modern times). But non-barrister legal practitioners became commonplace anyway and the regulation of these non-barristers became necessary. While initially solicitors were not seen as independent professional advocates, a limited right of audience was gradually granted. As the regulation becomes necessary to protect the public, attorneys in common law courts, and solicitors in equity courts, were given the privilege of practicing the law in limited form by the courts themselves. An attorney or a solicitor was sworn and accredited as an officer of their respective court by a judge, whose court controlled the legal practitioners (other than barristers) in their court and regulated them in absence of royal or statutory intervention. The courts maintained rolls of admitted attorneys and solicitors, which still exist today. The Roll of solicitors (the profession most attorneys were absorbed into) is now maintained by the Solicitors Regulation Authority (originally by the Master of the Rolls in the Chancery court, then by the Law Society, then by the SRA). In England and Wales, solicitors today are subject to statutory regulations under the various Solicitors Acts (notably the 1974 one). They are statutorily officers of the Senior Courts who retain disciplinary power over the solicitors admitted to practice before them. Barristers on the other hand are mostly self-regulated by the Inns. Although the regulation of barristers now has a statutory basis and subject to public supervision (from the Courts and Legal Services Act 1990 to Legal Services Act 2007), they are not as extensively subject to rules set by the Parliament or government as solicitors. To summarize, the barristers always had the &quot;vibe&quot; of being the learnt men (and now persons of all genders) of law who are independent, honourable and capable of self-regulation, while the profession of solicitors developed from mostly unregulated legal service agents, who were eventually regulated at the motion of the courts in the way of requiring them to be sworn as officers of the courts (such to give the courts disciplinary powers over them). With the development of modern legal system, the distinction between barristers and legal professions has become less clear in some jurisdictions and ceased to be relevant at all in others. As to the reason why the distinction is still so much more pronounced in the UK than elsewhere. I would guess the following. The legal, justice and judicial systems in the colonies benefited from the fact everything was started from the beginning, without historical baggage of the several different English courts which were not consolidated until 1870s. And it is also easier to never afford such privileges in the first place, or to take them away without the historical baggage, than to take away existing privileges with historical claims in England. The general anti aristocratic attitudes in colonies probably also restricted the rather elitist tendency of the likes of the Inns of barristers. The governments were more willing to regulate the legal profession in its state capacity. The articles Counsellors and Barristers. An Historical Study, Solicitors and the Law of Maintenance 1590-1640, and the book Introduction to English Legal History (chapter 10), were particularly helpful during my research.
There is no &quot;different legal procedure&quot; for challenging the constitutionality of a law. The only way to do so is through the process that this question contemplates: to argue that the law is unconstitutional in a civil or criminal trial. Whether the law bears directly on the matter at trial or only on ancillary matters such as discovery, the court has the power to find the law unconstitutional and to issue orders accordingly. The extent to which such a ruling binds other courts depends on which court issues the ruling.
The Howard League for Penal Reform, who I presume are well informed about the subject, issued a press release including the following: “There remains the problem of people who have had the criminal courts charge imposed on them, many of whom will simply not be able to pay. We call on magistrates to exercise compassion and common sense when these unfortunate people are returned to court.” So the answer is yes, unless they can convince a magistrate that the charge is unaffordable when they get hauled back to court for non-payment. As the abolition of the charge was done by secondary legislation, I doubt there would be powers to act retroactively, even if this was thought desirable.
Jan Böhmermann faces prosecution in Germany for violating their penal code section 103 as discussed here. Lèse-majesté is not a crime in the UK, though apparently it was a common law crime in Scotland until 2010 (though not prosecuted since 1715). Though there is always the possibility of a defamation lawsuit, depending on what you say.
It does not need to be expressly defined in statute in order to be legally effective. Courts have no trouble interpreting ordinary words used in their conventional way. And there is no other definition that could work instead, considering the full body of law that (1) intends to apply to the whole of the United Kingdom, (2) often distinguishes between &quot;Great Britain&quot; and &quot;Northern Ireland&quot;, (3) often distinguishes between &quot;England&quot;, &quot;Wales&quot;, &quot;Scotland&quot; and &quot;Northern Ireland&quot;, (4) treats &quot;Great Britain&quot; as synonymous with England, Wales and Scotland, and (5) often uses &quot;Great Britain&quot; without further ceremony, as if it's a term that doesn't need to be explained. It is helpful that legislation (at least in the modern era) is consistent about the view that &quot;Great Britain&quot; refers precisely to England, Wales and Scotland all together. By virtue of the Interpretation Act 1978, &quot;United Kingdom&quot; means Great Britain and Northern Ireland. from which we may deduce immediately that Great Britain means the United Kingdom except for Northern Ireland. There is no sibling '&quot;Great Britain&quot; means...' clause, but construing it any other way than the normal meaning would not work. From the combined definitions of &quot;England&quot;, &quot;Wales&quot;, &quot;British Islands&quot;, etc. - which by reference, also deal with such historically doubtful areas as Berwick and Monmouthshire - there is no other way to interpret the term &quot;Great Britain&quot; without distorting the required meaning of &quot;United Kingdom&quot;. Including too much or too little in &quot;Great Britain&quot; would give the wrong result, in particular for statutory extent clauses that refer to the whole United Kingdom and ought not to accidentally leave out Cornwall or include Hanover. We do not need to go as far as the Acts of Union, which is lucky since that would entangle us in concerns about whether &quot;England&quot; includes &quot;Wales&quot;, or other historical anomalies that are not relevant in current law. I would treat the Acts of Union as giving added force to the conventional meaning, rather than being the source of that meaning, since there are uses of the term which seem to be more about Great Britain considered as a place than the political entity. For example, the Food Safety Act 1990 s.18(3) talks about &quot;any food which has not previously been used for human consumption in Great Britain&quot;, which seems to talk more about the food culture of the place, even predating the Acts of Union, than about the Kingdom of Great Britain or its successors. The term &quot;Great Britain&quot; is frequently used in statutes in the customary way. For example, The Political Parties, Elections and Referendums Act 2000 s.28 creates a &quot;Great Britain register&quot; and a &quot;Northern Ireland register&quot; of political parties, and s.38(1)(3)(b) provides for the &quot;Great Britain register&quot; to cover precisely England, Scotland and Wales. The Northern Ireland Act 1998 s.87 is about provisions of UK social security law that operate differently in Great Britain and Northern Ireland. The Electricity Act 1989 (as amended) provides for the issue of &quot;GB certificates&quot; as opposed to &quot;NI certificates&quot;, and also defines &quot;the relevant part of Great Britain&quot; as meaning either &quot;England and Wales&quot; or &quot;Scotland&quot; (s.32M(1)). The Agriculture Act 2020 s.35 provides for a &quot;red meat levy&quot; to be paid between &quot;one country in Great Britain&quot; and &quot;another such country&quot;, and goes on in 35(8) to list the levy bodies for England, Scotland and Wales. So all of this points to the same common meaning as in everyday life. In court, for example, Lord Hoffman in Serco v Lawson [2006] UKHL 3 had to consider the Employment Rights Act 1996 s.196, since repealed, which governed &quot;work wholly or mainly outside Great Britain&quot;. (And by the way, in 196(1)(b) is a listing of &quot;England and Wales&quot; and &quot;Scotland&quot; as the two possible bodies of law relating to Great Britain.) In his judgement, he says: It is true that section 244(1) says that the Act &quot;extends&quot; to England and Wales and Scotland (&quot;Great Britain&quot;). But that means only that it forms part of the law of Great Britain and does not form part of the law of any other territory (like Northern Ireland or the Channel Islands) for which Parliament could have legislated. That is, he does not find it difficult to gloss the extent provision in 244(1), which doesn't include the exact words &quot;Great Britain&quot;, as actually referring to Great Britain. Other legislation refers to &quot;Great Britain&quot; as a locale, like the Wild Animals in Circuses Act 2019 which talks about &quot;an animal of a kind which is not commonly domesticated in Great Britain&quot;. This is a straightforward reference to the kind of activities typically going on in that location, treating it as the island(s) and not the political entity. The expression does not include the territorial sea, by default; some statutes include it, like the Gas Act 1986 s.5(9) which says: For the purposes of this section a place is within the jurisdiction of Great Britain if it is in Great Britain, in the territorial sea adjacent to Great Britain or in an area designated under section 1(7) of the Continental Shelf Act 1964. There are several other instances of particular statutes defining &quot;Great Britain&quot; to include adjacent waters, but they do not define the core concept of Great Britain otherwise. They do not need to.
You can use academic sources when arguing in court if you like, but be aware of the following: Academic texts are not primary sources of law in Jamaica. What is in them may be persuasive but does not bind a court in the same way as statute law or case law. Sometimes, it's appropriate to cite works of legal scholarship to flesh out an argument. If the book contains a succinctly-phrased statement that matches what you want to prove, but prior case law isn't quite as neatly applicable, then you might cite both - subject to points below. Citing the book alone is weaker. At other times, when there is authority on both sides of a point, you might find academic argument tipping the balance, but again not to be used in isolation. Whether a text is persuasive may not be obvious, especially for older works. Sometimes, perhaps often, the law has changed since the book was published. Don't assume that an old book by a famous author will automatically be revered. You can check to see if newer books say something different from the older one, and in general start your search looking backwards from now in order to identify the current state of the law. It is more common these days to see references to current editions of textbooks than comparatively ancient authorities, no matter how illustrious the name of Blackstone might be. If a point of law is not actually contested, then there is no need to argue about it. It can form part of the background material that is agreed on between the parties. Basic principles of the way contracts work don't need elaboration or authority. Judges would prefer to have you limit the number and range of authorities you bring in, because they only have so much time in their day and they don't want to struggle through a lot of unnecessary background reading. In a skeleton argument, the strong preference is for only one principal authority to be mentioned in support of each point of law. You can mention a recent decisive case rather than reciting the entire history of case-law on the topic, and you don't need to include cases where a well-understood precedent was applied without difficulty. It may be that a textbook brings you to the relevant statute or judgement but then that is what you need to cite, not the textbook itself, especially if it simply quotes or restates what is found in the primary material. For filing court documents in general, pay close attention to the Civil Procedure Rules and the Practice Directions, including PD No. 8 of 2020 on the format of the judge's bundle. If the judge is annoyed enough about non-compliance with the court's rules about submissions, then various sanctions are available to them. For example, they can refuse costs on the legal research that led to the preparation of the submission. In correspondence, which I think you allude to, you can be more free than when dealing with the judge's bundle. In a letter to the opposing party you can certainly bring in additional references that you think would be helpful to you as a matter of rhetoric and argumentation. Do note that doesn't mean it is a good idea to make correspondence too aggressive or lengthy. For one thing, a judge can end up reviewing the correspondence and will notice whether or not you are making a good-faith effort to resolve the matter, or at least identify the salient issues to bring to the court.
The Theft Act 1968 replaces the Larceny Act 1916, which replaces in part the Larceny Act 1901, ad nauseum. In the current act, the exception is accomplished in the definitions section. Redefinition is a device commonly used by legislatures to clarify intent, where traditional wording does/did not express the desired prohibition. In addition, a special definition excluding a case makes it easier to define the general rule. To be certain, one would need a historical record of legislative discussion (and I suspect that there is no record), but it is reasonably likely that it was not previously against the (common) law to pick a wild blackberry for a snack. A reading of various prior versions of the larceny statutes suggests that it was never a crime to pick a wild blackberry, instead the crime was taking cultivated goods (which a person put some effort or resources into creating), and destroying resources on a person's land. Those are the kinds of actions explicitly identified in the prior statutes. §4(3) does state a traditional view of "property" (which is why it's in the "property" section), and would have the (presumptively desired) effect without complicating other parts of the statute. Moreover, s1(3)(a-b) of the 1916 act conveys similar "exceptionality". Norwegian theft law has a similar provision Tilegnelse av naturprodukter, herunder stein, kvister, vekster mv., av liten eller ingen økonomisk verdi under utøvelse av lovlig allemannsrett, straffes likevel ikke Appropriation of natural products, including stones, twigs, vegetation etc. with little or no economic value (taken) under the exercise of the legal right to roam is not punished