Criminal Law (A)

What is the legality principle?

• No punishment without law beforehand

• Art. 7 ECtHR: No one shall be liable for a commission or omission which did not constitute criminality before the act was committed.

What is lex praevia?

Prohibition of retroactive effect establishing punishment

Prohibition of retroactive effect aggravating punishment

What is the exception to the lex praevia principle?

lex mitor clause: If the existing law is changed before the judgement then the lenient law will be applied. So changes in the law can apply if favorable to the defendant.

What is lex certa?

Prohibition of vague statutes

• Criminal statutes have to be sufficiently precise

However this is difficult to achieve

What is lex stricta?

Prohibition of analogy

• Courts must interpret the law strictly

What is the Lenity principle?

The lenity principle is a legal rule in criminal law that requires courts to interpret ambiguous or unclear criminal statutes in a way that is most favorable to the defendant.

What is the Thin-ice principle?

The "Thin Ice" principle is a concept in criminal law that refers to the idea that individuals who take risks must also bear the consequences of those risks.

What is lex scripta?

Prohibition of customary laws.

• Courts should base criminal liability only on written statutes

What is punishment?

1. It is assumed to be unpleasant to the recipient

2. Infliction is intentional

3. In response to breaking the law

4. Person punished has broken the law voluntarily

5. It is the belief of the person who orders the

   punishment that settles the question.

   whether it is punishment

What is Retributivism?

Punishment is deserved: people who commit crimes deserve to be punished because they have done something morally wrong.

Deontological: Retributivism is based on moral duty and the inherent rightness or wrongness of actions.

Backward-looking: Looks to the past and the crime that was already committed and not what effects it might have in the future.

Punishment is good: It restores moral balance by serving justice and what is deserved.

What is Utilitarianism?

Punishment is useful: They only justify punishment if it has positive outcomes for society as they aim to maximize happiness.

Consequentialist: Punishment is judged based on consequences

Forward-looking: How will this punishment prevent future crime?

Punishment is evil: See punishment as inherently evil, therefore only justified when the positive consequences outweigh the negatives.

Explain negative and positive retributivism

Positive: The guilty must be punished to the extent f their deserts

Negative: The guilty may be punished to the extent of their deserts

What are examples of retributivist theories?

Assaultive retributivism: It is morally right to hate criminals, because they harmed society first so we can harm them back.

Punishment as communication: Punishment communicates to criminals and society about their wrongdoings.

What does Utilitarianism aim to achieve?

Aims to achieve maximum amount of happiness in a society by prevention of crime

How to calculate deserved punishment?

r (responsibility) x H (harm) = Deserved punishment

What are the means of crime prevention?

• Individual deterrence

• General deterrence

• Moral influence (positive general deterrence)

• Rehabiliation

• Incapacitation

What is the Parsimony principle in Utilitarianism?

A sanction may only be as severe as it is necessary to achieve prevention

What are mixed theoried?

Mens rea required

Amount of punishment determined by both utilitarian and retributive theories

What are some disadvantages of each theory of punishment?

Retributivism: Creates more harm

Utilitarianism: In principle even the innocent may be punished if it helps society

Mixed theories: Mixing both theories is difficult

What are intentional offences?

These are offences where the offender wants the harmful result or at least accepts the possibility that it will occur.

What are negligent offences?

These are offences where the offender did not intend the harmful result, but the result occurred because the offender failed to meet a required standard of care.

What are result qualified

Concept in criminal law where the offender intends one unlawful act, but a more serious result occurs, and the law treats this more serious outcome as part of the offence

What are conduct offences?

The action itself is punishable even if there were no harmful results

What are result offences?

They require a specific harmful result to be incriminating

Explain abstract and concrete endangerment

Abstract: Punishes conduct because it is dangerous

Concrete: Requires proof that actual specific danger occurred.

Explain omission and commission offences

Commission: Doing something is punishable

Omission: Not doing something is punishable

• Proper omission: Not doing anything when it is a must under law

• Improper omission: Commission by omission so doing something by not doing anything (Such as not feeding a baby for days)

What is the Tripartite framework of criminal liability?

1. Legal elements of the offense

2.  Unlawfulness

3. Culpability

What is the 1st stage of Legal elements of the offense in the tripartite framework?

Legal definition of the act

Actus reus (Act, result, and causation)

Mens rea (Intentional?)

What is the 2nd stage of unlawfulness in the tripartite framework?

Is the act lawful or justifiable

What is the 3rd stage of culpability in the tripartite framework of offences?

Can the defendant be blamed for his wrongful conduct?

Any excuses?

What are the 2 types of causation?

Factual causation: If not for the defendant’s acts would the result have happened as it happened and when it happened.

Legal causation: Is it reasonable to attribute the result to the defendant’s actions

• Is the defendant the direct cause?

• Does an intervening cause make it unreasonable to attribute the result to the defendant?

What are the types of intervening causes and contributions in legal causation?

1. Insubstantial contribution: When the contribution of the defendant is insubstantial to the result in comparison to the intervening cause. Not reasonable to attribute the result to the defendant’s act.

2. Responsive intervening cause: When the intervening cause occurred in response to the defendant’s prior wrongful conduct. The defendant is liable unless the the intervening cause was bizarre.

3. Coincidental intervening cause: When the intervening cause has not occurred in response to the defendant’s prior wrongful act. (Defendant is not liable)

4. Naturally occurring intervening cause: When it is foreseeable then it is attributed to the result of the defendant’s act.

5. Culpability perpetrator: When a perpetrator acts in high culpability then even if something else happens later such as an intervening cause, the law will attribute the final result to the original perpetrator.

6. When the intervening cause is a highly culpable human action by a third person, it is usually unreasonable to attribute the result to the defendant's act.

7. There is no liability on the defendant if the victim’s behavior is irrational and unforeseeable.

8. Predisposition victims: If the victim has a pre-existing weakness or vulnerability, the defendant is still liable.