Included Offences
| Date | 01 May 1991 |
| DOI | 10.1177/002201839105500209 |
| Published date | 01 May 1991 |
| Subject Matter | Article |
INCLUDED
OFFENCES
Glanville Williams*
Our
system of criminal justice requires that the prosecution state
distinctly the charges on which they bring the defendant to court.
It
would be theoretically possible to have a different system (which
indeed we once had): the prosecution would write out a farrago
of facts alleged against the defendant, and leave it to the judge
and jury to sort out which, if any, offences they find him to have
committed. No one advocates such a system, or lack of system;
but recent developments mean that we are edging towards it. The
Achilles heel of our present arrangements is the included offence.
The traditional rule, found (I believe) throughout the common-
law world, is that an included offence is one that is made out of
bits of the offence charged. The rule is expressedin the Model Penal
Code of the American Law Institute. Section 107(4)
(P.O.D.)
reads
in part as follows:
'An
offence is included when it is established
by proof of the same or less than all the facts required to establish
the commission of the offence charged.'
Note a possible source of confusion. An included offence
normally has a wider definition than the offence charged (if all the
implied elements of both offences are taken into account). This is
because the included offence either lacks a matter of aggravation
in the offence charged or requires a mitigating circumstance or a
mitigated fault element. Manslaughter is the chief example of the
latter group; it can include the mens rea required for murder, but
only if special mitigations (provocation or diminished responsibil-
ity) are present; otherwise it requires a lesser fault element. It
became an included offence as a result of faulty reasoning on the
part of the judges; because of its special features it is separately
dealt with in the Criminal Law Act 1967, s 6, and should now be
regarded not as an included offence but as an alternative verdict
specially provided for (as the Draft Code proposes).1Except for
*QC, Fellow of Jesus College, Cambridge.
ILaw Com No 177 ii P 122 (Sched 1).
234
Included Offences
manslaughter, the classical common law maintained unblemished
the principle that an offence was not included unless one could
say that every instance of the offence charged was at the same
time the included offence.
An example of the normal and simple case of an included
offence is theft as an included offence on a charge of robbery.
Theft has a broader definition than robbery (since the definition
of robbery includes that of theft, and adds ingredients of its own),
and theft is an included offence on a charge of robbery. Every
charge of robbery is a charge of theft.
Though included in robbery as a matter of definition (and,
indeed, because it is so included), theft is of wider scope than
robbery. So if one depicts the two crimes in respect of the
appropriations to which they apply, theft will be a big circle with
robbery a small circle inside, which may make it seem that robbery
is included within theft. In law it is the
other
way round, because
the law is concerned not with statistical scope but with definitions.
As a
matter
of definition, theft is included within robbery.
The offences under the Offences against the Person
Act
1861,
ss 20 and 47 are peculiar. Section 47 is regarded as included under
s 20; yet both offences carry a maximum sentence of five years'
imprisonment. Logically, an included offence being definitionally
less serious than the offence charged should carry a lighter
maximum. This anomaly led Lord Roskill in Clarence Wilson2to
declare that an included offence need not be a 'lesser offence'.
Technically he was right, because of this one anomalous instance;
but substantially he was wrong, because in sentencing practice s 20
is treated as creating the more serious offence. As the Court of
Appeal recently observed;' although the sentences specified for
the two offences are identical, no one can doubt that they are seen
in quite different terms by sentencing judges. So it is convenient
to go on thinking of an included offence as a lesser offepce.
Having announced his insight that an included offence need not
be a lesser offence, Lord Roskill went on to suggest, with the
concurrence of the
other
law lords, that two offences could actually
include each other.
'A
may include B, but B will not necessarily
2[1984) AC 242, at p 258.
3Parmenter (1990) 140
NU
1231.
235
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