Comprehensive Notes on Criminal Law Principles and Systems

Foundations and Nature of Criminal Law

• Definition of Criminal Law: Criminal law establishes specific norms and values deemed so vital to society that the state is justified in using legitimate violence, via punishment, against individuals who infringe upon them.
• Dual Role of Criminal Law:
  • Authority: It justifies the state's use of force and coercive control.
  • Limitation: It acts to limit state power and protect individual freedom by delineating exactly what actions can be punished; for everything else, citizens remain free from interference.
• Core Values Protected: Examples include life, property, and sexual freedom. An attack on these is viewed as an attack on society as a whole, necessitating state-codified laws (e.g., penal codes) to reaffirm societal norms.
• Procedural Requirements: Strict procedural elements must be satisfied—from investigation to trial—to ensure punishment is a legitimate response to proven behavior and to prevent disproportionately harsh responses.
• Interpretive Perspectives:
  • Repressive Viewpoint: Focuses on the state's authority to define punishable acts and coercively control behaviors through the threat of penalties.
  • Freedom Viewpoint: Emphasizes that everything outside the precise scope of prohibited acts is allowed without the risk of punishment, protecting individual liberty.

Main Conditions for Establishing Criminal Liability

For the state to legitimately punish an individual, several key steps must be fulfilled:

• 1. Pre-existing Law (Legality Principle): There must be a clearly defined law that exists before the act occurs. It must be precise, published, and written ($Lex Certa$).
• 2. Actus Reus (External Element): The accused must have committed a voluntary act or omission. This includes all physical aspects of the crime.
  • Example: In stealing a car, simply damaging it or taking it by accident does not satisfy the external element of theft.
• 3. Mens Rea (Mental Element): The accused must have the requisite intent for the crime. The mental state must correspond to the prohibited conduct.
  • Example: One must knowingly and purposefully take a car they know is not theirs.
• 4. Jurisdiction: The law forbidding the act must apply to the accused (e.g., they cannot be punished under foreign law without jurisdiction).
• 5. Causation: A causal link must exist between the accused’s actions and the prohibited outcome.
• 6. Blameworthiness and Lack of Defenses: The accused must be mentally sound and mature enough to be blamed (precluding instances like insanity or extreme youth). There must be no valid excuses (e.g., necessity in an emergency).
• Precision as Protection: Criminal law must be very precise; vagueness leaves room for excessive state violence or punishment.

Substantive vs. Procedural Criminal Law

• Substantive Criminal Law: Outlines what constitutes an offense and the corresponding punishment.
  • Example: Defining murder as intentionally killing another and prescribing life imprisonment.
  • Key Principle: Prohibition on $ex post facto$ laws—laws cannot be applied retroactively to acts that were legal when committed.
• Criminal Procedure: The process of investigating and prosecuting through the court system.
  • Function: Counters the natural human instinct for immediate revenge by introducing logical, unbiased standards.
  • Mechanisms: Separates the roles of victim, accused, and judge. Ensures due process rights, such as access to legal representation and impartial adjudication.

Concepts of Wrongful Acts and Theories of Punishment

• Forms of Criminal Wrongs:
  • Moral Wrongs: Acts wrong according to individual values; these may not warrant criminalization as moral viewpoints vary.
  • Mala in se: Acts that are inherently harmful (e.g., violent crimes).
  • Mala prohibita: Acts criminalized only because they are prohibited by law for the sake of social order (e.g., regulatory offenses like spraying graffiti).
• Criminalization vs. Punishment:
  • Criminalization: The legislative act of making behavior illegal.
  • Punishment: Specific penalties imposed on those convicted.
• Expressive Function: The severity of a penalty communicates the societal value of the conduct.
  • Example: In France, the creation of the crime "Involuntary death through your pet" after a fatal dog bite was a form of communication to the public that the government took the tragedy seriously.
• Functions of Punishment:
  • Retribution: Negative repayment; society hurts the criminal proportional to the harm caused (e.g., caning, fines).
  • Deterrence: Discouraging future acts through fear—applies to the individual and society (e.g., public shaming, mandatory rehab).
  • Incapacitation/Elimination: Removing dangerous criminals (e.g., imprisonment, deportation, execution).
  • Rehabilitation: Reforming the criminal for reintegration (e.g., community service, suspended sentences).

Principles of Jurisdiction

• Territorial Jurisdiction: Jurisdiction over events on a state's own territory ($lex loci delicti$).
• Extra-Territorial Jurisdiction:
  • Active Nationality Principle: Jurisdiction based on the nationality of the perpetrator abroad.
  • Passive Nationality Principle: Jurisdiction based on the nationality of the victim abroad.
  • Protective Principle: Jurisdiction over acts threatening fundamental national interests/security, even by foreigners abroad.
  • Universal Jurisdiction: Jurisdiction over specific international crimes (war crimes, genocide, torture) regardless of where or by whom they were committed.
• Double Criminality: Requirement that the act must be a crime in both the territorial nation and the nation claiming jurisdiction.

The Principle of Legality ($Nullum Crimen Sine Lege$)

• Definition: There can be no crime or punishment without a pre-existing law. It is a human right and part of the Right to a Fair Trial.
• The Four Sub-Norms:
  • 1. Lex Scripta (Written Law): Liability requires a codified basis. The law must be accessible and foreseeable.
    • Unwritten laws: Generally cannot serve as the basis for liability, except when providing a justification for a defendant (e.g., historical custom of parents disciplining children).
  • 2. Lex Certa (Certainty): Acts must be defined with sufficient clarity. There is a tension between the need for generality (to cover more situations) and specificity (to prevent ambiguity).
    • Rule of Lenity / In Dubio Pro Reo: Ambiguities must be resolved in favor of the defendant.
  • 3. Lex Stricta (Strict Interpretation): Law must be interpreted narrowly.
    • Accepted Forms: Literal, Grammatical, Historical, Teleological (Purposive).
    • Forbidden for liability enhancement: Analogical (taking a similar but distinct act and banning it by analogy), Extension of the text.
    • Case Example (France): In a car accident where a fetus died, the court restrictive interpreted "someone else" in manslaughter laws as meaning one born alive to avoid jeopardizing abortion rights.
  • 4. Lex Praevia (Non-Retroactivity): Law must be in force at the time of the offense. Relies on dates of facts, dates of laws entering force, and final judgment dates.
    • Severity Rule: If a new law is more severe, it cannot be applied to past acts. If a new law is less severe ($lex mitior$), it applies if a final judgment has not yet been rendered.
    • Case Study: S.W. v United Kingdom (1995): The ECtHR ruled that prosecuting a man for marital rape (at a time when it was not explicitly prohibited by statute) did not violate $Lex Praevia$ because the change in law was foreseeable and the act was inherently immoral.

Elements of Criminal Liability: Actus Reus and Mens Rea

• Actus Reus (AR): The physical element.
  • Conduct Crimes: Completion depends on the behavior alone (e.g., perjury/lying under oath).
  • Result Crimes: Requires proving the conduct caused a specific harm (e.g., murder requires death).
  • State of Affairs: Criminality based on a condition (e.g., being drunk in control of a vehicle).
  • Omissions: Failure to act. Liability only exists if there is a legal duty to act:
    • Statutory duty: Written in law.
    • Contractual duty: e.g., firemen.
    • Creating a dangerous situation: e.g., accidental fire.
    • Voluntary assumption of responsibility: e.g., life guarding.
• Mens Rea (MR): The mental element.
  • Direct Intent ($Dolus Directus$): Desiring the consequence.
  • Indirect Intent (Oblique Intent): Knowing a consequence is near-certain but not desiring it for its own sake (e.g., insurance arson).
  • Conditional Intent ($Dolus Eventualis$): Foreseeing the possibility of harm and proceeding regardless.
  • Recklessness: Foreseeing a risk but taking it while hoping for a "miraculous" safe outcome.
  • Negligence ($Culpa$): Failure to perceive a risk that a reasonable person would have noticed.

Causation

• Factual Causation: The "But-for" test ($Conditio sine qua non$). But for the defendant's act, would the harm have occurred?
  • Thin Skull Principle: The defendant must take the victim as they find them. Pre-existing vulnerabilities do not break factual causation.
• Legal/Proximate Causation: Determines if it is fair to blame the defendant.
  • Adequate Cause: Did the action significantly contribute to the result?
  • Intervening Causes ($Novus Actus Interveniens$):
    • Dependent: Reasonably foreseeable results of the act (e.g., poor medical care for a gunshot wound) do not break the chain.
    • Independent: Unforeseeable events (e.g., an earthquake or a victim drinking poison after the initial act) break the chain.

Comparative Criminal Procedure

• Adversarial (Common Law):
  • Focus on a contest between two parties; the judge is a passive "referee."
  • Burden of proof on prosecution; strict rules on the admissibility of evidence (Fruit of the poisonous tree).
  • Heavy use of oral cross-examination during trial.
  • Verdicts can be very long, setting detailed precedents.
• Inquisitorial (Civil Law):
  • Focus on truth-seeking; the judge/magistrate is active in investigating and questioning.
  • Evidence is collected in a pre-trial dossier.
  • Broad rules on evidence admissibility.
  • Trial is often a verification of what is in the dossier; verdicts are descriptive and shorter.

The Right to a Fair Trial (Article 6 ECHR)

• Engel Criteria: To determine if a charge is "criminal" (and thus Art 6 applies):
  1. Classification in domestic law.
  2. Nature of the offense.
  3. Severity of the penalty (deprivation of liberty usually triggers protection).
• Specific Protections:
  • Reasonable Time: Ferrantelli and Santangelo v Italy (16-year delay violated Art 6).
  • Equality of Arms: Meaningful opportunity to defend. Includes right to legal aid (Salduz v Turkey).
  • Presumption of Innocence: Includes the right to silence and the right against self-incrimination.
  • Double Jeopardy ($Non Bis In Idem$): One cannot be tried twice for the same offense by the same jurisdiction.

Justifications and Excuses

• Justification: Negates wrongfulness. The act was legally permissible to prevent greater harm (e.g., self-defense).
  • Self-Defense: Requires an imminent unlawful attack. Must be necessary and proportionate.
    • Intensive Excess: Too much force used.
    • Extensive Excess: Force continued after the threat ended.
• Excuse: Negates blameworthiness. The act was wrong, but the actor is not responsible.
  • Insanity: Mental disorder existing at the time of the act that abolishes discernment.
  • Duress: Coercion by imminent threat (unusable for murder).
  • Intoxication: Only involuntary intoxication is typically a valid excuse.
    • Case Example (France): The Traoré/Halimi case led to new laws stating voluntary drug consumption is not an excuse for violent crime.

Criminal Participation

• Models:
  • Derivative Model: Accessory liability depends on the principal committing a crime.
  • Autonomous Model: Liability assessed independently (e.g., conspiracy).
• German System (Control Theory):
  • Indirect Perpetrator ($Hintermann$): Controlling an innocent agent (e.g., child or person under duress).
  • Instigation: Inducing another to commit a crime. Requires intent for both the instigation and the underlying crime.
• Dutch System:
  • Functional Perpetrator: Assigns liability to those in authority who fail to stop crimes by subordinates.
  • Co-perpetration: Requires "complete and close collaboration."
• English Law:
  • Primary Party: The most immediate cause of the $Actus Reus$.
  • Doctrine of Joint Criminal Enterprise (JCE): Previously required only foresight of a risk ($R v Powell$), but the Supreme Court in R v Jogee (2016) ruled that the accessory must actually intend to assist or encourage the crime.

Criminogenic Laws

• Definition: Laws that unintentionally trigger or generate more crime (e.g., Prohibitive drug/prostitution bans driving markets underground and empowering gangs).
• Examples: Slavery laws, corporate personhood (shielding individuals from liability), and restrictive migration laws pushing migrants into illegal employment.
• Solutions:
  • Decriminalization: Removing criminal penalties but leaving the area unregulated.
  • Legalization: Incorporating the behavior into the legal system with government oversight (e.g., licensed cannabis shops).
  • Toleration: A social shift from legal acceptance to societal legitimacy.