Common law offences are crimes under English criminal law, the related criminal law of some Commonwealth countries, and under some U.S. state laws. They are offences under the common law, developed entirely by the law courts, having no specific basis in statute.
Australia Under the criminal law of Australia the Criminal Code Act 1995 (Commonwealth) abolished all common law offences at the federal level.History of Australian Criminal Law, Parliament of Australia Library 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. Although some common law offences still exist in New South Wales, many common law offences – for example nightwalking, riot, rout, affray, keeping of bawdy houses, champerty and maintenance, eavesdropping and being a common scold – have been abolished in that State.
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 the UK Parliament have completed the necessary revisions of the law, so some common law offences still exist. In England and Wales, unless a specific maximum sentence has been codified, common law offences are punishable by unlimited fines and unlimited imprisonment.
Common law offences that have been abolished or redefined as statutory offences are listed at .
List of offences under the common law of England
Offence Status Statute (where applicable) Accessory Statutory (variable) Accessories and Abettors Act 1861 Affray Statutory (either way) Public Order Act 1986 Arson Statutory (indictable) Criminal Damage Act 1971 Assault with intent to rob "Rob" and sentence and mode of trial statutory (indictable) Theft Act 1968 Attempt Statutory (variable) Criminal Attempts Act 1981 Barratry (being a common barrator) Abolished Criminal Law Act 1967 Battery Sentence and mode of trial statutory (summary, or either way against an emergency worker) Criminal Justice Act 1988 Being a common scold Abolished Criminal Law Act 1967 Blasphemy Abolished Criminal Justice and Immigration Act 2008 Blasphemous libel Breach of prison (escape with use of force) Current Bribery Statutory (either way) Bribery Act 2010 Buggery Abolished Sexual Offences Act 1967 Burglary Statutory (indictable) Theft Act 1968 Champerty Abolished Criminal Law Act 1967 Cheating Abolished (except for offences regarding the public revenue) Theft Act 1968 Common assault (or assault) Sentence and mode of trial statutory (summary, or either way against an emergency worker) Criminal Justice Act 1988 Compounding treason Current Criminal Law Act 1967 (preserved) Compounding a felony Partially statutory, in the form of giving false information relating to an arrestable offence (now one punishable by imprisonment for 5 years or more; indictable); otherwise abolished Criminal Law Act 1967 Concealment of treasure trove Statutory (failure to notify coroner of discovery or acquisition of treasure; summary) Conspiracy Contempt of court a.k.a. criminal contempt, contumacy Statutory for magistrates' courts and under the strict liability rule, otherwise current but regulated by statute Contempt of Court Act 1981 Contempt of the sovereign Obsolete Defamatory libel (sometimes known as criminal libel, although this can refer to several offences of libel) Abolished Coroners and Justice Act 2009 Eavesdropping Abolished Criminal Law Act 1967 Embracery Abolished (now usually dealt with as perverting the course of justice, q.v.) Bribery Act 2010 Escape from lawful custody Current Forcible entry Statutory (using violence to secure entry; summary) Criminal Law Act 1977 Forcible detainer Statutory (adverse occupation of residential premises; summary) Forgery Statutory (either way) Forgery and Counterfeiting Act 1981 High treason Statutory (indictable) Treason Act 1351 Incitement Statutory (encouraging or assisting crime; variable) Serious Crime Act 2007 Kidnapping Current (some statutory restrictions on initiating proceedings) Child Abduction Act 1984 Larceny Reformed (generally as theft; indictable) Theft Act 1968 Maintenance Abolished Criminal Law Act 1967 Manslaughter Sentence and mode of trial statutory (indictable) Offences against the Person Act 1861 Mayhem Obsolete (usually charged as grievous bodily harm aka wounding) Misprision of felony Abolished, but may never have existed Criminal Law Act 1967 Misprision of treason Current Murder Sentence and mode of trial statutory (indictable). Felony murder abolished Being a common night walker Abolished Criminal Law Act 1967 Obscene libel Abolished Coroners and Justice Act 2009 Outraging public decency Current Perjury Statutory (indictable) Perjury Act 1911 Perverting the course of justice Current Petty treason Abolished (now simply murder) Offences against the Person Act 1828 Preventing lawful burial Current Challenging to fight Abolished Criminal Law Act 1967 Effecting a public mischief Current Public nuisance Abolished Police, Crime, Sentencing and Courts Act 2022 Rape Statutory (indictable) Sexual Offences Act 2003 Refusing to assist a constable when called upon to do so Current Riot Statutory (indictable) Public Order Act 1986 Robbery Statutory (indictable) Theft Act 1968 Rout (unlawful assembly with intent to riot) Statutory (violent disorder; indictable) Public Order Act 1986 Running a disorderly house Obsolete, usually charged as other statutory offences Sedition Abolished (except incitement of sedition by an alien; either way) Seditious libel Theft Statutory (indictable) Theft Act 1968 Unlawful assembly Statutory (indictable) Public Order Act 1986
High crimes and misdemeanours
New Zealand In New Zealand the ability to be proceeded against at common law for being a party to a criminal offence was abolished by section six of the Criminal Code Act 1893. Section five of the Crimes Act, 1908 (which replaced the 1893 enactment), and section 9 of the Crimes Act 1961 (which replaced the 1908 enactment) affirmed the abolition of criminal proceedings at common law, with the exception of contempt of court and of offences tried by courts martial.
United States The notion that common law offences 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). A woman, Anne Royall, was nonetheless found guilty of being a common scold in Washington, D.C. in 1829; a newspaper paid her fine. Some have argued that common law offences are inconsistent with the prohibition of ex post facto laws.
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. In some states, the elements of many crimes are defined mostly or entirely by common law, i.e., by prior judicial decisions. For instance, Michigan's penal code does not define the crime of murder: while the penalties for murder are laid out in statute, the actual elements of murder, and their meaning, is entirely set out in case law.
See also Nullum crimen, nulla poena sine praevia lege poenali
References
External links CASE LAW on free B.E.A.G.L.E.S. legal resource centre