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Criminal Law 171 Term 1 Class notes
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Criminal Law 171 Term 1 Flashcards
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13 Flashcards
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Some examples from this set of practice questions
1.
What are the elements of a crime?
Answer: 1. Conduct 2. Causation 3. Unlawfulness 4. Criminal liability 5. Fault (intent or negligence)
2.
Why do we punish?
Answer: 1. Inflict suffering 2. Exacting revenge 3. Express social condemnation 4. Rehabilitate criminals 5. Achieve restorative justice
3.
What is criminalisation?
Answer: Criminalisation is the process whereby a competent law maker (e.g., Parliament or the legislature) defines and prohibits conduct as a crime.
4.
Why is over-criminalisation bad?
Answer: 1. Lessens criminal law\'s authority 2. Stigmatising individuals as criminals 3. Encouraging crime 4. Overloading the criminal justice system
5.
Possible forms for punishment?
Answer: 1. Imprisonment 2. Paying a fine 3. Community service 4. Suspended sentence
6.
What are factors that influence a judge\'s decision on a suitable punishment?
Answer: 1. Seriousness of crime 2. Interests of society 3. Accused\'s personal personal cirstances
7.
What are the principles of legality?
Answer: 1. Ius acceptum 2. Ius praevium 3. Ius certum 4. Ius strictum 5. Nulla piena, sine leg
Content preview
WHAT IS A CRIME, VALUES UNDERLYING CRIMLAW & CRIMINALISATION
Elements of a crime
Crim law defines some forms of conduct as crimes and involves punishment.
Crim law determines liability & punishment for a crime.
Q: Why do we punish?
Requires proof of:
1. Conduct 1. Inflict suffering
2. Causation 2. Exacting revenge
3. Unlawfulness 3. Express social condemnation
4. Criminal capacity 4. Prevent crime
5. Fault (intent or negligence) 5. Rehabilitate criminals
6. Achieve restorative justice
Q: What are the values and interests we
Basically: if you commit
are trying to protect?
a crime, you should be
punished 1. Human rights (e.g., right to life,
right to property, right to bodily
integrity)
2. Individual autonomy &
responsibility
3. Public welfare (which risks
paternalism)
4. Maintenance of the govt. of state
5. Morality
• Criminalisation = the process whereby a competent lawmaker (e.g.,
parliament/the legislature) defines and prohibits conduct as a crime
(in terms of common law which originates from old SA legal sources
(e.g., murder)/in terms of statutory law (legislation) which originates
from parliament or legislation).
Courts cannot make laws.
Can’t add common law crimes but can take away or change existing common law
crimes.
,Q: What conduct is criminalised?
1. Conduct that is inherently bad &/or harmful according to the material
definition of a crime.
2. Conduct for which the offender can be prosecuted & punished according to
procedural definition of a crime.
In theory, parliament can criminalise anything, if it is Constitutional.
Parliament has been found to over-criminalise.
Q: Why is over-criminalisation bad?
1. Lessens crim law’s authority
2. Stigmatising individuals as criminals
3. Encouraging crime
4. Overloading the criminal justice system
PUNISHMENT THEORIES
Punishment = way to recognise what is a crime.
• Punishment theories = ways that have formed over the years to
explain why we can limit certain rights in certain situations.
Rights possibly Q: Possible punishments?
limited by
punishment: 1. Imprisonment
1. Freedom of 2. Paying a fine
movement 3. Community service
2. Dignity 4. Suspended sentence
3. safety 5. Others?
1. Absolute/retributive theory
Look back at what person has done & decide punishment.
Basically says: you have done something wrong; you must be punished.
Punishment is deserved (not revenge).
E.g., commission of crime has unbalanced the scale of justice, person who has
committed the crime has an unfair advantage at expense of victim, punishment
rebalances scale
, Punishment must fit the crime (just desert).
Individual responsibility.
2. Relative/utilitarian theories
Look forward at what other purposes punishment could have.
How could punishment possibly help person?
Punishment = further end.
2.1. Prevention or incapacitation
Goal: make it hard/impossible for person to commit another crime.
Potentially dangerous person can’t commit a crime because they’re punished.
E.g., house arrest, capital punishment, losing license, imprisonment.
Problem: how do we know if person is rehabilitated? People treated like animals.
This theory is only temporarily effective.
2.2. Deterrence
Presupposes that we are rational human beings – rational person would try and avoid
the unpleasantness of punishment.
If you commit a crime, you will face horrible consequences.
• Individual deterrence = someone found guilty of crime and punished will deter
them from committing a crime again. (e.g., suspended sentence)
Problems: relies on people being rational; doesn’t affect everyone the same; only for
people who have already offended.
• General deterrence = people in general will be put off from committing a crime,
because of the thought that there will be punishment.
E.g., someone steals bike, but judge wants to send a message to community, sentences
person to 10 years in prison. Other people are deterred, but person isn’t being
punished for what they did, being used as means to an end/example.
Problem: undermining person’s dignity.
Q: Which is a better deterrent: severe or certain punishment?
Certainty of punishment is more of a deterrent. If you’re sure you will be punished for
a crime, you are less likely to commit the crime.
3. Rehabilitation
Q: Who are good candidates?
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