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Common law offence

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Common law offence

Common law offences are crimes under English criminal law and the related criminal law of Commonwealth of Nations countries. These are offences of the common law which are developed entirely by the courts over the years, and for which there is no actual legislation.

The various common law offences are developed using the concept of malum in se.[1]

Australia

In Australia Criminal Code Act 1995 (Cth) abolished all common law federal offences.[2] The Australian Capital Territory, the Northern Territory, Queensland, Tasmania, and Western Australia have also abolished common law State offences. Common law State offences still apply in New South Wales, South Australia and Victoria.

Canada

In Canada, the 1953 consolidation of criminal law abolished all common law offences, except Contempt of Court under section 9 of the Criminal Code of Canada.

England and Wales

In England and Wales, the Law Commission's programme of codification of the criminal law had the eventual aim to abolish all the remaining common law offences and replace them, where appropriate, with offences precisely defined by statute. The common law offences were seen as unacceptably vague and open to development by the courts in silly ways which might offend the principle of certainty. However, they still exist under English law. 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 abolished etc. 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 misdemeanors

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

New Zealand

In New Zealand, the Crimes Act 1961 abolished common law offences, except for contempt of court and for courts martial.[3]

United States

The notion that Common Law offenses could be enforced in a federal (as opposed to state) court was found to be unconstitutional in the U.S. Supreme Court decision United States v. Hudson and Goodwin, 11 U.S. 32 (1812). Some have argued they are inconsistent with the prohibition on ex post facto laws, which are also prohibited to the states.[4] 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. ^ Canadian Law Dictionary, John A. Yogis, Q.C., Barrons: 2003
  2. ^ History of Australian Criminal Law, Parliament of Australia Library
  3. ^ Crimes Act 1961, Part 1, sec. 9
  4. ^ Common Law Crimes Are Unconstitutional as Ex Post Facto Laws, Anthony J. Fejfar (2009)

External links

  • CASE LAW on free B.E.A.G.L.E.S. legal resource centre
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