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Criminal law

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"Penal law" redirects here. For the historic British laws punishing nonconformists, seePenal law (British).
For the 1988 film, seeCriminal Law(film).
Criminal law
Elements
Scope of criminalliability
Severity of offense
Inchoate offenses
Offense against the person
Sexual offenses
Crimes against property
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Criminal lawis the body oflawthat relates tocrime.It prescribes conduct perceived as threatening, harmful, or otherwise endangering to theproperty,health,safety,andwelfareof people inclusive of one's self. Most criminal law is established bystatute,which is to say that the laws are enacted by alegislature.Criminal law includes thepunishmentandrehabilitationof people who violate such laws.

Criminal law varies according tojurisdiction,and differs fromcivil law,where emphasis is more on dispute resolution and victim compensation, rather than onpunishmentorrehabilitation.

Criminal procedureis a formalized official activity that authenticates the fact of commission of a crime and authorizes punitive or rehabilitative treatment of theoffender.

History

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The first civilizations generally did not distinguish betweencivil lawandcriminal law.The first written codes of law were designed by theSumerians.Around 2100–2050 BCUr-Nammu,theNeo-Sumerianking ofUr,enacted written legal code whose text has been discovered: theCode of Ur-Nammu[1]although an earlier code ofUrukaginaofLagash( 2380–2360 BC ) is also known to have existed. Another important early code was theCode of Hammurabi,which formed the core ofBabylonian law.[2]Only fragments of the early criminal laws ofAncient Greecehave survived, e.g. those ofSolonandDraco.[3]

TheOld BaileyinLondon(in 1808) was the venue for more than 100,000 criminal trials between 1674 and 1834, including all death penalty cases.

InRoman law,Gaius'sCommentaries on theTwelve Tablesalso conflated the civil and criminal aspects, treating theft (furtum) as atort.Assault and violentrobberywere analogized totrespassas to property. Breach of such laws created an obligation of law orvinculum jurisdischarged by payment of monetary compensation ordamages.The criminal law ofimperial Romeis collected in Books 47–48 of theDigest.[4]After the revival of Roman law in the 12th century, sixth-century Roman classifications and jurisprudence provided the foundations of the distinction between criminal and civil law inEuropeanlaw from then until the present time.[5]

The first signs of the modern distinction between crimes and civil matters emerged during theNorman Invasionof England.[6]The special notion of criminal penalty, at least concerning Europe, arose in Spanish Late Scholasticism (seeAlfonso de Castro), when the theological notion of God's penalty (poena aeterna) that was inflicted solely for a guilty mind, became transfused into canon law first and, finally, to secular criminal law.[7]Codifiers and architects of Early Modern criminal law were the German juristBenedikt Carpzov(1595–1666), professor of law inLeipzig,and two Italians, the Roman judge and lawyerProspero Farinacci(1544–1618) and the Piedmontese lawyer and statesmanGiulio Claro(1525–1575).[8]

The development of thestatedispensingjusticein a court clearly emerged in the eighteenth century when European countries began maintaining police services. From this point, criminal law formalized the mechanisms for enforcement, which allowed for its development as a discernible entity.

Objectives of criminal law

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Criminal law is distinctive for the uniquely serious, potential consequences orsanctionsfor failure to abide by its rules.[9]Every crime is composed ofcriminal elements.Capital punishmentmay be imposed in some jurisdictions for the most serious crimes. Physical orcorporal punishmentmay be imposed such aswhippingorcaning,although these punishments are prohibited in much of the world. Individuals may beincarceratedinprisonorjailin a variety of conditions depending on the jurisdiction. Confinement may be solitary. Length of incarceration may vary from a day to life. Government supervision may be imposed, includinghouse arrest,and convicts may be required to conform to particularized guidelines as part of aparoleorprobationregimen.Finesalso may be imposed, seizing money or property from a person convicted of a crime.

Five objectives are widely accepted for enforcement of the criminal law bypunishments:retribution,deterrence,incapacitation,rehabilitationandrestoration.Jurisdictions differ on the value to be placed on each.

  • Retribution– Criminals ought toBe Punishedin some way. This is the most widely seen goal. Criminals have taken improper advantage, or inflicted unfair detriment, upon others and consequently, the criminal law will put criminals at some unpleasant disadvantage to "balance the scales." People submit to the law to receive the right not to be murdered and if people contravene these laws, they surrender the rights granted to them by the law. Thus, one who murders may be executed himself. A related theory includes the idea of "righting the balance."
  • Deterrence–Individualdeterrence is aimed toward the specific offender. The aim is to impose a sufficient penalty to discourage the offender from criminal behavior.Generaldeterrence aims at society at large. By imposing a penalty on those who commit offenses, other individuals are discouraged from committing those offenses.
  • Incapacitation– Designed simply to keep criminalsawayfrom society so that the public is protected from their misconduct. This is often achieved throughprisonsentences today. Thedeath penaltyorbanishmenthave served the same purpose.
  • Rehabilitation– Aims at transforming an offender into a valuable member of society. Its primary goal is to prevent further offense by convincing the offender that their conduct was wrong.
  • Restoration– This is a victim-oriented theory of punishment. The goal is to repair, through state authority, any injury inflicted upon the victim by the offender. For example, one whoembezzleswill be required to repay the amount improperly acquired. Restoration is commonly combined with other main goals ofcriminal justiceand is closely related to concepts in thecivil law,i.e., returning the victim to his or her original position before the injury.

Selected criminal laws

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Many laws are enforced by threat ofcriminal punishment,and the range of the punishment varies with the jurisdiction. The scope of criminal law is too vast to catalog intelligently. Nevertheless, the following are some of the more typical aspects of criminal law.

Elements

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Main article:Element (criminal law)

The criminal law generally prohibits undesirableacts.Thus, proof of a crime requires proof of some act. Scholars label this the requirement of anactus reusorguilty act.Some crimes – particularly modern regulatory offenses – require no more, and they are known asstrict liabilityoffenses (E.g. Under theRoad traffic Act 1988it is a strict liability offence to drive a vehicle with an alcohol concentration above the prescribed limit). Nevertheless, because of the potentially severe consequences of criminal conviction, judges atcommon lawalso sought proof of anintentto do some bad thing, themens reaorguilty mind.As to crimes of which bothactus reusandmens reaare requirements, judges have concluded that the elements must be present at precisely the same moment and it is not enough that they occurred sequentially at different times.[10]

Actus reus

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Main article:Actus reus
An English court room in 1886, withLord Chief Justice Coleridgepresiding

Actus reusisLatinfor "guilty act"and is the physical element of committing a crime. It may be accomplished by an action, by threat of action, or exceptionally, by anomissionto act, which is a legal duty to act. For example, the act ofAstrikingBmight suffice, or a parent's failure to give food to a young child also may provide the actus reus for a crime.

Where the actus reus is afailureto act, there must be aduty of care.A duty can arise throughcontract,[11]a voluntary undertaking,[12]a blood relation with whom one lives,[13]and occasionally through one's official position.[14]Duty also can arise from one's own creation of a dangerous situation.[15]On the other hand, it was held in the U.K. that switching off the life support of someone in apersistent vegetative stateis an omission to act and not criminal. Since discontinuation of power is not a voluntary act, not grossly negligent, and is in the patient's best interests, no crime takes place.[16]In this case it was held that since a PVS patient could not give or withhold consent to medical treatment, it was for the doctors to decide whether treatment was in the patient's best interest. It was reasonable for them to conclude that treatment was not in the patient's best interest, and should therefore be stopped, when there was no prospect of improvement. It has always been illegal to take active steps to cause or accelerate death, although in certain circumstances it was lawful to withhold life sustaining treatment, including feeding, without which the patient would die.

An actus reus may be nullified by an absence ofcausation.For example, a crime involves harm to a person, the person's action must be thebut forcause andproximate causeof the harm.[17]If more than one cause exists (e.g. harm comes at the hands of more than one culprit) the act must have "more than a slight or trifling link" to the harm.[18]

Causation is not broken simply because a victim is particularly vulnerable. This is known as thethin skull rule.[19]However, it may be broken by an intervening act (novus actus interveniens) of a third party, the victim's own conduct,[20]or another unpredictable event. A mistake inmedicaltreatment typically will not sever the chain, unless the mistakes are in themselves "so potent in causing death."[21]

Mens rea

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Main article:Mens rea

Mens reais anotherLatinphrase, meaning "guilty mind". This is the mental element of the crime. A guilty mind means anintentionto commit some wrongful act. Intention under criminal law is separate from a person'smotive[22](although motive does not exist in Scots law).[23]

A lower threshold ofmens reais satisfied when a defendant recognizes an act is dangerous but decides to commit it anyway. This isrecklessness.It is the mental state of mind of the person at the time the actus reus was committed. For instance, ifCtears a gas meter from a wall to get the money inside, and knows this will let flammable gas escape into a neighbour's house, he could be liable for poisoning.[24]Courts often consider whether the actor did recognize the danger, or alternatively ought to have recognized a risk.[25]Of course, a requirement only that oneoughtto have recognized a danger (though he did not) is tantamount to erasingintentas a requirement. In this way, the importance ofmens reahas been reduced in some areas of the criminal law but is obviously still an important part in the criminal system.

Wrongfulness of intent also may vary the seriousness of an offense and possibly reduce the punishment but this is not always the case. A killing committed with specific intent to kill or with conscious recognition thatdeathorserious bodily harmwill result, would be murder, whereas a killing effected by reckless acts lacking such a consciousness could be manslaughter.[26]On the other hand, it matters not who is actually harmed through a defendant's actions. The doctrine oftransferred malicemeans, for instance, that if a man intends to strike a person with his belt, but the belt bounces off and hits another, mens rea is transferred from the intended target to the person who actually was struck.[Note: The notion of transferred intent does not exist within Scots' Law. In Scotland, one would not be charged with assault due to transferred intent, but instead assault due to recklessness.[27]

Strict liability

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Main article:Strict liability (criminal)

Strict liability can be described as criminal or civil liability notwithstanding the lack of mens rea or intent by the defendant. Not all crimes require specific intent, and the threshold of culpability required may be reduced or demoted. For example, it might be sufficient to show that a defendant actednegligently,rather thanintentionallyorrecklessly.In offenses ofabsolute liability,other than the prohibited act, it may not be necessary to show the act was intentional. Generally, crimes must include an intentional act, and "intent" is an element that must be proved in order to find a crime occurred. The idea of a "strict liability crime" is an oxymoron. The few exceptions are not truly crimes at all – but are administrative regulations and civil penalties created by statute, such as crimes against the traffic or highway code.

Fatal offenses

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Main articles:MurderandCulpable homicide

Amurder,defined broadly, is an unlawful killing. Unlawful killing is probably the act most frequently targeted by the criminal law. In manyjurisdictions,the crime of murder is divided into various gradations of severity, e.g., murder in thefirst degree,based onintent.Maliceis a required element of murder. Manslaughter (Culpable Homicide in Scotland) is a lesser variety of killing committed in the absence ofmalice,brought about by reasonableprovocation,ordiminished capacity.Involuntarymanslaughter,where it is recognized, is a killing that lacks all but the most attenuated guilty intent, recklessness.

Settled insanityis a possible defense.

Personal offenses

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Main articles:Assault,Battery (crime),Rape,andSexual abuse

Many criminal codes protect the physical integrity of the body. The crime ofbatteryis traditionally understood as an unlawful touching, although this does not include everyday knocks and jolts to which people silently consent as the result of presence in a crowd. Creating a fear of imminent battery is anassault,and also may give rise to criminal liability. Non-consensualintercourse,orrape,is a particularly egregious form of battery.

Property offenses

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Main articles:Criminal damage,Criminal trespass,Theft,Robbery,Extortion,Dacoity,Burglary,andFraud

Property often is protected by the criminal law.Trespassingis unlawful entry onto the real property of another. Many criminal codes provide penalties forconversion,embezzlement,andtheft,all of which involve deprivations of the value of the property.Robberyis a theft by force.Fraudin the UK is a breach of the Fraud Act 2006 by false representation, by failure to disclose information or by abuse of position.

Participatory offenses

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Main articles:Accomplice,Aid and abet,andInchoate offenses

Some criminal codes criminalize association with a criminal venture or involvement in criminality that does not actually come to fruition. Some examples are aiding, abetting,conspiracy,and attempt. However, in Scotland, the English concept ofAiding and Abettingis known asArt and Part Liability.See Glanville Williams, Textbook of Criminal Law, (London: Stevens & Sons, 1983); Glanville Williams, Criminal Law the General Part (London: Stevens & Sons, 1961).

Mala in se v. mala prohibita

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While crimes are typically broken into degrees or classes to punish appropriately, all offenses can be divided into 'mala in se' and 'mala prohibita' laws. Both are Latin legal terms,mala in semeaning crimes that are thought to be inherently evil or morally wrong, and thus will be widely regarded as crimes regardless of jurisdiction. Mala in se offenses are felonies, property crimes, immoral acts and corrupt acts by public officials.Mala prohibita,on the other hand, refers to offenses that do not have wrongfulness associated with them. Parking in a restricted area, driving the wrong way down a one-way street, jaywalking or unlicensed fishing are examples of acts that are prohibited by statute, but without which are not considered wrong. Mala prohibita statutes are usually imposed strictly, as there does not need to be mens rea component for punishment under those offenses, just the act itself. For this reason, it can be argued that offenses that are mala prohibita are not really crimes at all.[28]

Defenses

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Main article:Criminal defenses

Criminal law jurisdictions

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Main articles:Crimes against humanityandUnited States and the International Criminal Court
The exterior of theInternational Criminal Court's headquarters building inthe Hague

Public international lawdeals extensively and increasingly with criminal conduct that is heinous and ghastly enough to affect entire societies and regions. The formative source of modern international criminal law was theNuremberg trialsfollowing theSecond World Warin which the leaders ofNazismwere prosecuted for their part ingenocideand atrocities acrossEurope.The Nuremberg trials marked the beginning of criminal fault for individuals, where individuals acting on behalf of a government can be tried for violations of international law without the benefit of sovereign immunity. In 1998 anInternational criminal courtwas established in the Rome Statute.[29]

See also

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International criminal law

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National criminal law

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Publications

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References

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Citations

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  1. ^Kramer, Samuel Noah. (1971)The Sumerians: Their History, Culture, and Character,p.4, University of ChicagoISBN0-226-45238-7
  2. ^Harper, Robert Francis (1999).The Code of Hammurabi, King of Babylon: About 2250 B.C.: Autographed Text, Transliteration, Translation, Glossary Index of Subjects, Lists of Proper Names, Signs, Numuerals...The Lawbook Exchange, Ltd.ISBN9781584770039.
  3. ^Albrecht, James F."Law and Order in Ancient Civilizations".St. John's University (NYC). Archived fromthe originalon July 31, 2009.RetrievedMay 22,2014.
  4. ^Craies, William Feilden (1911)."Criminal Law".InChisholm, Hugh(ed.).Encyclopædia Britannica.Vol. 7 (11th ed.). Cambridge University Press. pp. 454–464.see page 454, para: Rome
  5. ^"Law, Criminal Procedure",Dictionary of the Middle Ages: Supplement 1,New York: Charles Scribner's Sons-Thompson-Gale, 2004: 309–320
  6. ^see, Pennington, Kenneth (1993)The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western Legal Tradition,University of California Press
  7. ^Harald Maihold,Strafe für fremde Schuld? Die Systematisierung des Strafbegriffs in der Spanischen Spätscholastik und Naturrechtslehre,Köln u.a. 2005
  8. ^Pennington, Kenneth, "Canon Law in the Late Middle Ages: The Need and the Opportunity", inProceedings of the eleventh International Congress of Medieval Canon Law:Catania, 30 July – 6 August 2000, p. 37.
  9. ^Dennis J. Baker (2011)."The Right Not to be Criminalized: Demarcating Criminal Law's Authority".Ashgate. Archived fromthe originalon 2011-10-13.Retrieved2011-11-11.
  10. ^This is demonstrated byR v. Church[1966] 1 QB 59. Mr. Church had a fight with a woman which rendered her unconscious. He attempted to revive her, but gave up, believing her to be dead. He threw her, still alive, in a nearby river, where shedrowned.The court held that Mr. Church was not guilty of murder (because he did not ever desire to kill her), but was guilty ofmanslaughter.The "chain of events," his act of throwing her into the water and his desire to hit her, coincided. In this manner, it does not matter when a guilty mind and act coincide, as long as at some point they do. See also,Fagan v. Metropolitan Police Commissioner[1968] 3 All ER 442, where angry Mr Fagan would not take his car off a policeman's foot
  11. ^R v. Pittwood(1902) 19 TLR 37 – a railway worker who omitted to shut the crossing gates, convicted of manslaughter when someone was run over by a train
  12. ^e.g. the partner inGibbonswho was not a blood parent, but had assumed a duty of care
  13. ^R v. Stone and Dobinson[1977] QB 354, where an ill tended sister named Fanny could not leave bed, was not cared for at all and literally rotted in her own filth. This isgross negligencemanslaughter.
  14. ^R v. Dytham[1979] QB 722, where a policeman on duty stood and watched three men kick another to death.
  15. ^R v. Miller[1983] 1 All ER 978, a squatter flicked away a still litcigarette,which landed on amattress.He failed to take action, and after the building had burned down, he was convicted ofarson.He failed to correct the dangerous situation he created, as he was duty bound to do. See also,R v. Santana-Bermudez(2003) where a thug with a needle failed to tell a policewoman searching his pockets that he had one.
  16. ^Airedale NHS Trust v. Bland[1993] 1 All ER 821
  17. ^e.g.R v. Pagett[1983] Crim LR 393, where 'but for'the defendant using his pregnant girlfriend for ahuman shieldfrom police fire, she would not have died. Pagget's conduct foreseeably procured the heavy police response.
  18. ^R v. Kimsey[1996] Crim LR 35, where 2 girls were racing their cars dangerously and crashed. One died, but the other was found slightly at fault for her death and convicted.
  19. ^e.g.R v. Blaue[1975] where a Jehovah's witness (who refuse blood transfusions on religious grounds) was stabbed and without accepting life saving treatment died.
  20. ^e.g.R v. Williams[1992] Crim LR 198 where a hitchhiker who jumped from a car and died, apparently because the driver tried to steal his wallet, was a "daft" intervening act. c.f.R v. Roberts[1972] Crim LR 27, where a girl getting drunk jumped from a speeding car to avoid sexual advances and was injured andR v. Majoram[2000] Crim LR 372 where thugs kicked in the victims door scared him to jumping from the window. These actions wereforeseeable and therefore creating liability for injuries.
  21. ^perBeldam LJ,R v. Cheshire[1991] 3 All ER 670; see also,R v. Jordan[1956] 40 Cr App R 152, where a stab victim recovering well in hospital was given an antibiotic. The victim was allergic, but he was given it the next day too, and died. The hospital's actions intervened and pardoned the defendant through condemning themselves instead.
  22. ^R v. Mohan[1975] 2 All ER 193, intention defined as "a decision to bring about... [theactus reus] no matter whether the accused desired that consequence of his act or not. "
  23. ^seehttps://archive.org/stream/cu31924024627675#page/n5/mode/2up
  24. ^c.f.R v. Cunningham[1957] 2 All ER 863, where the defendant did not realise, and was not liable; alsoR v. G and Another[2003] UKHL 50
  25. ^previously in the U.K. underMetropolitan Police Commissioner v. Caldwell[1981] 1 All ER 961
  26. ^R v. Woolin[1998] 4 All ER 103
  27. ^R v. Latimer(1886) 17 QBD 359; though for an entirely different offense, e.g. breaking a window, one cannot transfer malice, seeR v. Pembliton(1874) LR 2 CCR 119
  28. ^Perkins, Rollin M. (1982).Criminal Law, 3rd ed.The Foundation Press, Inc. pp. 15–17.ISBN0-88277-067-5.
  29. ^"Rome Statute of the International Criminal Court".Retrieved24 April2015.

Sources

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