Criminal law

Week one

Functions Legality principle:

  1. Foreseeability-

principle of fairness, citizens have the right to know which act leads to which punishment, what constitutes a criminal offence and what can make them liable

  1. Instrumental function of law-

    Clear precise written law, prevention of crimes, influencing behaviour

Legality principles of criminal law:

  1. Prohibition of retroactive effect ( Lex praevia)

    In establishing punishment- nulla poene sine lege

    In aggravating punishment- when the punishment changes it can not be applied retroactively.

    EXCEPTION: lex mitior clause- when the law at the time of the completion of the offence is changed before the final judgement, the most lenient law is to be applied (mitigation of punishment, cancellation or restriction of a criminal provision and new grounds of justification or excuse)

  2. Prohibition on analogy reasoning

    The application of a rule to cases that are not covered by the statutes wording but whose inclusion into the rules range of application is indicated by the sense and purpose of the statute

  3. Lex certa

    The law has to be precise and clear

    Serves as the prohibition on vague laws, one cannot be punished if the law is not sufficiently precise

    The justifications for having the principle of legality are fairness and foreseeability ( if the law is not precise it is not fair or foreseeable to the citizens, and it is impossible to influence behaviour )

  4. Prohibition on customary law ( lex scripta)

    Law has to have a statutory basis as opposed to customary law ( because of nulla poene sine lege)

    This only applies to civil law countries, for example the UK is a common law system, although many common law crimes have already been codified in practice.

Punishment

  1. Has to be unpleasant for the recipient

  2. Has to be as a response to breaking the law

  3. The infliction of the punishment has to be intentional

  4. The person punished has to have broken the law voluntarily

  5. It is the belief of the person inflicting the punishment that decides on wether it is a punishment.

Retributivism v. Utilitarianism

Retributivism

  1. Punishment is deserved

  2. Deontological-It’s the right thing to do

  3. Backwards looking-takes in considerate the intention, the crime committed, excuses etc.

  4. Punishment is good- if a person did wrong they deserve to be punished

Utilitarianism

  1. Punishment is useful

  2. Consequentialist- it will be useful to society, to prevent and detter

  3. Forwards looking

  4. Punishment is evil

Positive or real retributivism

  • The guilty must be punished to the extends of their deserts

  • Strict harsh theory

  • The punishment may not be shortened

Negative retributivism

  • The guilty may be punished to the extends of their deserts

  • Mixed theory- within the bounds of their deserts, the amount of punishment is determined by retributive and/or utilitarian theories. It takes into account other factors such as prevention and retribution.

Retributivism and proportionality

  • Punishment should be proportional to the severity of the crime

  • Deserved punishment is responsibility x amount of harm (r x h)

  • Responsibility is about intent, negligence, excuses and justifications

  • Harm is about result ( death, injury theft etc) in cases of attempt there is no harm

  • Is it more about harm or the intention? There is no clear answer, it is rather a moral debate

Utilitarianism

Utilitarianism aims to achieve the maximum amount of happiness in a society by preventing crime

Evil vs bad- a balance which results in the highest amount of happiness should be achieved

Evil : crime and punishment

Good : prevention of crime

Means of crime prevention

  1. Individual deterrence

  2. General deterrence

  3. Retribution

  4. Incapacitation

  5. Moral influence- communicates to society what is right and what is wrong.

Utilitarianism and proportionality

  • Utilitarianism does not consider proportionality

  • If the measure leads to happiness it should be applied even though it might not be proportional

  • There are no moral objections to disproportionate punishment however in practice punishment is usually proportional.

  • The greater the offence is the greater the reason there is for a severe punishment → BUT disproportionate punishment may lead to a public outrage ↓happiness :(

  • Parsimony principle ( subsidiarity) the punishment may only be as severe as is necessary to achieve prevention, if you can achieve the same result by inflicting a sanction that regulates less harm, the punishment that inflicts less harm should be imposed.

Classification of offences

1.Intentional and negligent offences

Unless the law expressly provides for criminal liability based on negligence, only intentional conduct shall attract criminal liability.

  1. Intentional offences

    Whenever you see the word intention (or a similar word implying intention) in the provision, the intention for doing the offence has to be in order for the person to be convicted.

    Negligent offences

    Negligence has to be proven

  2. Result qualified offences

    A casual connection between the act and the result (causatio n)

    A worse result may cause a worse sentence

    For example :

    Art X( result qualified offence)

    Intent AND causation have to be proven

    Art Y(not a result qualified offence)

    Only intent has to be proven

  3. Result offences

    Result and causation have to be proven

  4. Conduct offences

    Only conduct has to be proven , intent, result and causation are not important.

    For example: lying under oath, drunk driving, speeding etc.

  5. Endangerment offences

    Concrete endangerment- Actual danger caused and has to be proven

    Abstract endangerment- concerns conduct offences, does not have to be proven, it is meant to prevent danger even if no actual danger was caused.

  6. Commission offence

    “Normal offences “- Means actively doing something that is punishable by law

  7. Omission offences

    Refusing to do something that is assigned by the law

    Proper omission offence- violations a command ( duty to act) command is always explicitly mentioned in the definition of the offence

    Improper omission offence- commission by omission, punished for not doing something. Is not explicitly mentioned in provision.

    Importance of the presence of the duty to care ( because of your special connection to the victim)

Tripartie framework of criminal offences

Three consecutive stages

  1. Legal elements of the offence

  2. Unlawfulness

  3. Culpability or blame worthiness

Legal elements of the offence- prove every element in the definition of the offence committed

Objective elements(actus reus)

  • Act -killing, theft etc

  • Result- harm, death etc

  • Causation- needs to be proven if it’s a result offence

Subjective elements(mens rea):

  • Need to be proven only if mentioned in provision, when it is a serious and intentional offence.

Unlawfulness or wrongdoing

  • Only go to this after proving the elements.

  • Is the act lawful or justifiable ?

  • Are there any grounds for legal justification? ( self defence, necessity, state order)

Culpability or blameworthiness

  • Are there any legal excuses? ( duress, excess self defence, insanity, etc)

Causation

Only has to be proven in result offences , if the provision mentions “causes” “results in” etc. Proving a direct link between the offence (act) and the result.

Factual causation-if it was not for the act, the outcome would not have happened.

Legal causation- is it reasonable to attribute the outcome to the defendants act? If not, causation does not have to be proven.