Common law offence

{{Short description|Criminal category under some jurisdictions}} {{Use dmy dates|date=June 2019}} {{Use British English|date=June 2019}}

'''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.<ref name="aph">[http://www.aph.gov.au/library/intguide/law/crimlaw.htm#history History of Australian Criminal Law], Parliament of Australia Library {{webarchive |url=https://web.archive.org/web/20100330101954/http://www.aph.gov.au/library/intguide/law/crimlaw.htm#history |date=30 March 2010 }}</ref> 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.<ref>{{cite web|url=https://www.lawcom.gov.uk/project/legislating-the-criminal-code/|title=Legislating the Criminal Code |publisher=Law Commission}}</ref><ref>{{cite web|url=https://www.lawcom.gov.uk/project/criminal-law-a-criminal-code/|title=Criminal Law: A Criminal Code |publisher=Law Commission}}</ref> 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.<ref>{{cite web |url=https://rozenberg.substack.com/p/more-than-a-nuisance |website=A Lawyer Writes |title=More than a nuisance |first=Joshua |last=Rozenberg |date=14 March 2021}}</ref>

Common law offences that have been abolished or redefined as statutory offences are listed at {{slink|History of English criminal law|Common law offences}}.

===List of offences under the common law of England=== {{see also|Category:Common law offences in England and Wales}} {{more citations needed section|reason=Every entry needs a citation, unless its status as a (current or former) common law offence is supported by a linked article (which will need its own sources)|date=January 2023}}  {| class="wikitable" ! 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 | rowspan="2" | Abolished | rowspan="2" | Criminal Justice and Immigration Act 2008 |- | Blasphemous libel |- | Breach of prison (escape with use of force) | Current<ref name="cps pjo">{{cite web|url=https://www.cps.gov.uk/prosecution-guidance/public-justice-offences#_pub4|title=Public Justice Offences|work=Prosecution Guidance|publisher=Crown Prosecution Service|access-date=2 April 2026}}</ref> | |- | 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) | {{ubli|Theft Act 1968 (codified)|Treasure Act 1996 (reformed)}} |- | Conspiracy | {{ubli|Current (to defraud, to corrupt public morals or to outrage public decency)|Statutory (otherwise; variable)}} | {{ubli|Offences against the Person Act 1861 (murder, obsolete)|Criminal Law Act 1977 (codification, including murder)}} |- | 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{{cn|date=April 2026}} | |- | 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) | rowspan="2" | 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) | rowspan="2" | 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{{cn|date=April 2026}} | Criminal Law Act 1967 |- | Misprision of treason | Current | |- | Murder | Sentence and mode of trial statutory (indictable). Felony murder abolished | {{ubli|Homicide Act 1957 (abolition of felony murder)|Murder (Abolition of Death Penalty) Act 1965 (sentence)}} |- | 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<ref name="cps pjo"/> | |- | 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<ref name="cps pjo"/> | |- | 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 | {{ubli|Sexual Offences Act 1956 (keeping a brothel for prostitution)|Misuse of Drugs Act 1971 (permitting use of premises for consumption etc. of controlled drugs)|Licensing Act 2003 (serving alcohol on unlicenced premises)}} |- | Sedition | rowspan="2" | Abolished (except incitement of sedition by an alien; either way) | rowspan="2" | {{ubli|Coroners and Justice Act 2009|Aliens Restriction (Amendment) Act 1919 (sedition by an alien)}} |- | Seditious libel |- | Theft | Statutory (indictable) | Theft Act 1968 |- | Unlawful assembly | Statutory (indictable) | Public Order Act 1986 |}

====High crimes and misdemeanours==== {{importance section|date=January 2023}} {{columns-list|colwidth=20em| *Abuse of authority *Acceptance of a bribe *Failure to supervise *Conduct unbecoming *Dereliction of duty *Desertion, Away without leave *Failure to appear: subpoena, militia call-up, jury notice *False imprisonment *Insubordination, Failure to obey a lawful order *Misappropriation of funds *Misconduct in public office *Obstruction of justice, perverting the course of justice, defeating the ends of justice, obstructing the administration of justice *Perjury of oath }}

==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.<ref>{{cite web |last1=White |first1=Stephen |title=The making of the New Zealand Criminal Code Act of 1893: A sketch [1986] |url=http://www6.austlii.edu.au/nz/journals/VUWLawRw/1986/22.pdf |website=Victoria University of Wellington Law Review 353 |publisher=Victoria University of Wellington |access-date=4 November 2021}}</ref> Section five of the Crimes Act, 1908 (which replaced the 1893 enactment),<ref>{{Cite web|url=http://www.enzs.auckland.ac.nz/docs/1908/1908C032.pdf#page=3|title=Crimes Act, 1908 No. 42, s. 5|website=The University of Auckland, Early New Zealand Statutes|access-date=4 January 2018}}</ref> 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.<ref>{{cite web|url=http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM328048.html|title=Crimes Act 1961 No 43 (as at 28 September 2017), Public Act 9 Offences not to be punishable except under New Zealand Acts – New Zealand Legislation|website=www.legislation.govt.nz}}</ref>

==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.{{cn|reason=Previous supporting source was unreliable and dead|date=November 2025}}

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.<ref>{{cite court |litigants= People v. Aaron|vol= 409|reporter= Mich.|opinion=672 |pinpoint= 713 |court=Michigan Supreme Court |date=1980 |url= https://scholar.google.com/scholar_case?case=5726386068390560061&hl=en&as_sdt=6&as_vis=1&oi=scholarr |access-date= 2 April 2018 |quote=In Michigan, murder is not statutorily defined.}}</ref><ref>{{cite act|type=Mich. Comp. Laws |number= § 750.316 |date= 2014 |url= http://www.legislature.mi.gov/(S(nvfvqjm1rwzrroym1e2jcurt))/mileg.aspx?page=GetObject&objectname=mcl-750-316|access-date= 2 April 2018}}</ref><ref>{{cite act|type=Mich. Comp. Laws |number= § 750.317 |date= 2014 |url= http://www.legislature.mi.gov/(S(nvfvqjm1rwzrroym1e2jcurt))/mileg.aspx?page=GetObject&objectname=mcl-750-317|access-date= 2 April 2018}}</ref>

==References== {{Reflist}}

==External links== *[https://web.archive.org/web/20040121192433/http://www.freebeagles.org/caselaw/CL_frontpage.html CASE LAW on free B.E.A.G.L.E.S. legal resource centre]

Category:Common law Category:English criminal law Category:Common law offences in England and Wales