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Summary CRIMINAL LAW; EVERYTHING IN ONE
- Instelling
- Haagse Hogeschool (HHS)
A mixture of notes from the colleges, workshop and required readings
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CRIMINAL LAWWeek 1: Intro to Comparative Criminal Law and Justice
Date: 17 November 2020
Lecturer: C. Desesquelles
The general definition of a crime = An action or omission that constitutes an offence that may be
prosecuted by the stat and is punished by law. An illegal activity or serious wrongdoing. An action or an
instance of negligence that is deemed harmful to the public welfare or morals or to the interest of the state
and that is legally prohibited.
Whether a crime is committed don’t always depend on the results of the action, such as: conduct crimes
(being in a country without a visa) or result crimes (causing death by dangerous driving).
If one commits an act that is morally bad it may lead to both civil and criminal wrongs however not all
morally wrongful conduct is classified as criminally or even civilly wrong.
To determine whether something constitutes as crime depends on the sources of law apply in a certain
jurisdiction, those sources are:
1. Codes
2. Statutes
3. Other regulations Made under authority of law)
Crimes are usually defined within the governing legislation.
Criminal law: involves prosecution of a person for an act that has been classified as a crime or
offence. It is the body of law that relates to crime, it includes the punishment regime for people
who violate criminal laws and its a component of the rule of law. It is designed to control human
behaviours which might threaten, harm, or endanger the property, health, safety or moral welfare
of others in society.
The rule of law is intended to be a safeguard against arbitrary governance, so governmental authority is
legitimately exercised only in accordance with written, publicly disclosed laws that are adopted and
enforced in accordance with established procedure. It is one of the cornerstone of a democratic society, no
one is above the law.
The three essential characteristics of a modern constitutionalism are: limiting the power of the
government, adherence to the rule of law and the protection of fundamental rights.
Principle of Legality:
• Legal ideal that requires all the law to be clear, accessible and forward-looking.
• It requires decision makers to resolve disputes by applying legal rules that have been declared
beforehand not to alter the legal situation from a date in the past.
• In criminal law actions that weren’t criminal when committed cannot be prosecuted once they become
criminal. Art. 11 UDHR (1948)
,Expression principle of legality in Latin:
lnullum crimen sine lege (no crime without law)
lnulla poena sine lege (no penalty without law)
When committing in a criminal act the consequences vary on the committed crime and the involved
circumstances. There are 5 theories of the purpose of criminal sanctions:
1. Retribution: the offender should “payback” society for the caused harm.
2. Incapacitation: the person should be denied the opportunity to commit crimes in the future.
3. Rehabilitation: the offender should be transformed into a law-abiding citizen through programs of
medical, psychological, economic, or educational improvement
4. Deterrence: the offender, through various devices, such as certainty of punishment or length or
severity of punishment, should come to the conclusion that the crime isn’t with the risk of the
resulting punishment
5. Restoration: the community, victim and offender are involved in the sentencing process with the aim
to restore the victim and the community back to its previous sate.
To decide whether a state can prosecute an offender they need the jurisdiction over the criminal offence in
order to prosecute, there are several types of jurisdiction:
1. Territorial jurisdiction: A state can only prosecute a criminal case where at least some part of the
conduct (AR) of the alleged criminal offence occurred within the geographic territory of the state in
question.
2. Extraterritorial Jurisdiction: Situation where a state extends its legal power beyond its territorial
boundaries.
Extradition: The international lawful process whereby a person who is accused or convicted of an
extradition crime is transferred from one jurist ion to another jurisdiction.
Substantive Criminal Law vs. Procedural Criminal Law
Substantive and procedural criminal law are the two main categories within the law. Substantive
criminal law: refers to the main body of rules that determine the rights/onligations of the individuals.
Procedural law: is the body of legal rules that govern the process determing the rights of the parties.
Substantive criminal law defines crimes and may establish punishments dictates, and is most referred to
in criminal law.
Crimes are often defined within their governing legislation.
The criminal procedure describes the process through which criminal laws are enforced. The manner in
which the justice system enforces this substantive law; through the introduction of evidence and
prosecution, is governed by laws of procedure.
Procedural rules help courts decide cases in a fair and uniform manner, it makes sure that 1 party doesn’t
party can “surprise” the other party in the litigation process.
Week 2: Basic Fair Trial Principles
Date: 24 November 2020
Lecturer: G. Townsend
, Fair trial rights: Entails the granting of various procedural requirements, guaranteeing due process of a
criminal justice system. These rights aim to protect individuals from unlawful and arbitrary deprivation of
other basis rights and freedoms, the most prominent of which is the right tom liberty of the person. Art.
14 ICCPR and Art. 6 ECHR cover these rights
Fair trial principles:
• presumption of innocence: be presumed innocent until proven guilty in a court of law.
• The burden of proof being on the prosecution, the defence doesn’t bear the burden of proof unless the
have an affirmative defence.
• Right against self-incrimination: the right to remain silent.
• Right to council: be defender by a lawyer, paid by the state if the defendant can’t afford one.
• Right to bail: provisional release pending trial (depends on the flight risk/ risk of tamper evidence).
• Right of being informed of charges and case against the defendant.
• Right to be tries without undue delay.
• Right of confrontation: right to challenge evidence at trial and exclude unlawfully obtained evidence.
• Right to be tires in public by impartial court to jury.
• Right tot fair punishment.
• Right to appeal conviction and sentence (legal remedies).
• The prohibition of ne bis in idem (tried multiple time for the same crime).
Presumption of innocence:
Dates back to the 6th-century in the digest of Justinian: “Proof lies on him who asserts, not on him who
denies.”
The presumption is defined in a large number of legislation:
• UDHR, Art. 22: "Everyone charged with a penal offence has the right to be presumed innocent until
proved guilty according to law in a public trial at which he has had all the guarantees necessary for his
defence.”
• It is also laid down in the ICCPR Art. 14(2): Everyone charged with a criminal offence shall have the
right to be presumed innocent until proved guilty according to law."
• ECHR, Ar.t 6.2: “Everyone charged with a criminal offence shall be presumed innocent until proven
guilty according to law”
• ICC statute, Art. 66: “Everyone shall be presumed innocent until proven guilty before the court….”
Right to remain silent:
This right flows from the presumption of innocence, in that the state has the burden of proof, and the
defendant doesn’t have to assist the state to prove its case.
The legal privilege against self-incrimination confers the right way not to be compelled to speak in a
potentially incrimination way, whether upon arrest, in police custody or in a court. ICCPR, Art, 14 s3(g)
This protection helps to prevent coerced confessions.
The UK amended its laws in 1994 and now an adverse inference can be drawn If the defendant seeks to
rely on a fact that a reasonable person would have mentioned. Whilst in the US no adverse inference can
be drawn, and your legal rights are mentioned during the arrest Miranda warning. Only in common law
countries.
Right to counsel
Art. 6 s3 (c) ECHR and ICCPR Art. 14 s3 (d) includes the right to be defended by a lawyer. If a defendant
is unable to provide a lawyer for him/herself, the state must provide a lawyer. The right to council also
includes the right to effective counsel
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