4

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.
  • 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.

2

They still have the power

They generally don’t because:

  1. Most activities of a criminal nature no matter how novel can be shoehorned as a new instance of an existing crime.

  2. Parliament is much more pro-active in its legislative agenda. The judicial system moves much more slowly.

  • 1
    How did this work in practice? could prosecutors charge you with “not illegal yet but we think the court will make something up”? or would it be more a case of “what you did doesn’t fit the law but we’ll expand it to fit?” – CCTO Jul 27 at 18:33
  • @CCTO what prosecutors? The local citizens held the person until the shire reeve (sheriff) or travelling magistrate turned up and then said “he did this”. – Dale M Jul 27 at 22:58
  • @DaleM right, I get the impression that the modern role of the prosecutor post-dates the era of the earliest Common Law courts, leaving the judges with a more "inquisitorial" role to say something like, "Yeah, what you did was sort of like Forgery. While it doesn't fulfill all of the elements of Forgery, we think it was highly antisocial and should be punished, therefore we convict you of the offense of Reticulating Splines, which shall be defined as signing a TPS report in the presence of a court jester with intent to do the Hokey Pokey and turn yourself around." – Columbia says Reinstate Monica Jul 28 at 11:34
  • While I agree that this answer is probably correct, it would be a lot better if you had some source for the assertion, such as a law review article or even a dictum (e.g. "While this Court still possesses its ancient right to characterize the defendant's behavior as a new Common Law crime, we choose to acquit and defer to Parliament to decide whether to criminalize this highly novel form of antisocial behavior."). – Columbia says Reinstate Monica Jul 28 at 11:40
  • @RobertColumbia when you find that case, please post it. I am aware of an Australian civil case where the judge described the situation as “like” certiorari and ruled on that basis, on appeal the court found that it wasn’t “like” certiorari it “was” certiorari. This illustrates that judges are still willing to create novel solutions even if it ultimately wasn’t novel. To remove this power in the Uk there would need to be an act of Parliament and AFAIK there hasn’t been one. In Australia, Federally the powers of the High Court are constitutional, it could be done by an Act at state level. – Dale M Jul 28 at 21:08

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.