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In one of the episodes of the British-Irish television series The Fall, a person is charged by PSNI, in Northern Ireland, with multiple counts of murder. The police officer reads out the charges in full, one by one, stating the actual offence and each time using the phrase contrary to common law to describe the offence.

I searched online a bit and the Wikipedia page on common law offence says

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.

However, it seems that there is indeed a statute, Offences against the Person Act 1861, currently in effect in England and partially in effect in Northern Ireland as well which makes homicide of the type covered in that series an offence.

My questions therefore are:

  1. Is my interepreation of the phrase contrary to common law correct in that it implies that the offence mentioned in the charges were common law offences and not statutory offences? If not then what does that phrase actually mean?
  2. Did the writers of that episode make an error or is it that homicide is indeed a common law offence and not a statutory offence?
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  1. Is my interepreation of the phrase contrary to common law correct in that it implies that the offence mentioned in the charges were common law offences and not statutory offences? If not then what does that phrase actually mean?

Yes. If it was statute, the officer would probably say something like "contrary to section 1(a) of the Dramatic License (Education of Scriptwriters) Act 2020".

  1. Did the writers of that episode make an error or is it that homicide is indeed a common law offence and not a statutory offence?

No, murder is contrary to common law in England and Wales (and I believe throughout the UK, but don't quote me on it). Offences Against the Person and related legislation only deals with personal injury, diminished responsibility, penalties for the act of murder etc. and not the act itself. The scriptwriters got this one right.

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It can be both

Many common law jurisdictions have codified common law crimes in statute. However, unless that (or another) statute abolished the common law crime then the statutory crime and the common law crime exist in parallel. You would need to look through all relevant statutes to see if the common law crime was abolished.

For an example, s80AD of the Crimes Act 1900 says “The common law offences of rape and attempted rape are abolished.”

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  • Thank you and any thoughts on question 1 (meaning of the phrase contrary to common law)? Oct 17 '20 at 14:59
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Murder is a common law offence in Northern Ireland (as it is for England and Wales, and Scotland).

s.6 of the Offences Against the Persons Act 1861 once gave the statutory terms for an indictment of murder but this was repealled by s.9 of the Indictments Act 1915.

...it shall be sufficient in any Indictment for Murder to charge that the Defendant did feloniously, wilfully, and of his Malice aforethought kill and murder the Deceased...

So to answer the OP:

  1. correct; it is indeed a common law offence
  2. the script writers did not make an error in citing the common law offence

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