Summaries- Part A- week 1
Week 1 Summaries
Fletcher- Substantive v procedural law pgs 7-9
Statute of limitations= time in a common law system after which legal proceedings may no longer be initiated.
Substantive law Procedural law
Define the crimes that are punished in the particular state Being prosecuted is procedural criminal law- whether an
or country individual is held liable for the offense is governed by
procedural criminal law.
Guilt in principle Guilt in fact
Judge expresses the substantive law to the jury Jurys have to discover the facts (governed by procedural
rules) and be convinced beyond a reasonable doubt
Governed by the principle of legality in most jurisdictions Governed by procedural safeguards in the law
Rights include foreseeability, accessibility, precise Rights include, right to silence, right to counsel, right to
legislation, no retroactive effect, no extensive appeal, right to a fair trial, right to be heard at the trial,
interpretation, written laws as supposed to customary laws. scope of admissible evidence, criteria for reversing the
judgement.
The legality principle- Christina Peristeridou
Principle of legality-
nulla poena sine lege (no punishment without law)
PROTECTION OF INDIVIDUALS AGAINST ARBITARY STATE ACTION
In many legal systems it is the first article of the code, therefore it governs allot of the criminal law, it is
very important in every civilised legal system. It is not fair to punish somebody if they do not know it is
a criminal offense, people need a fair opportunity and foreseeability.
The principle of legality deals with behaviour and the scope of its prohibition under criminal law. Not
all harmful/immoral acts are prohibited under criminal law such as tort, civil and administrative. The
principle applies to both the criminal liability and the punishment, prohibiting criminalisation and the
imposition of a criminal sanction without a criminal norm. It is important that only the law (legislator)
can attach criminal character to a behaviour (not judge/prosecutor)- generally speaking the executive
and court are not involved in proscribing liability. Nowadays, some of its requirements cannot be
applied strictly and interpretation of the scope of criminal liability can be challenging. There are four
aspects to the legality principle, overall criminal liability needs to be based on a pre-existing, written,
precise parliamentary criminal norm, which should not be applied extensively by courts.
EG ART: 103 German constitution is very concise
They mean the same thing
Art 7 ECHR: much lengthier (emphasises accessibility and foreseeability.
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Four aspects of the legality principle
Lex Scripta Lex Certa Lex stricta Lex praevia
Judges: decisions based on written Legislator: makes Precise laws that can Judges: The law may not be interpreted too legislator and judge: prohibit them to draft
be interpreted with certainty sometimes extensively to cover situations not proscribed by
parliamentary statute sometimes called the the legislator sometimes known as the
and apply- respectively- criminal liability in a
prohibition of customary laws known the prohibition of vague laws. retroactive manner also known as the
prohibition of analogy.
prohibition against retroactive effect.
Directed at: Courts and judges, Judges need Directed at: Legislator Directed at: Courts and judges Directed at: Both the legislator and judge
to base criminal liability on written statutes
rather than customary laws. Criminal liability basis: Criminal Criminal liability basis: prohibits Criminal liability basis: Means that a
Criminal liability basis: needs to be based on liability needs to be described in a extensive judicial interpretation of punishment already has to be established in
written parliamentary criminal statute and precise manner criminal liability, interpretation must the law and that aggravating punishment is
the following are therefore excluded from so that citizens can understand remain faithful to the wording of the prohibited.
the concept of law from the wording what norms are criminal statute. A law cannot have effect from a date in the
1.) Executives decisions (unless prohibited with certainty it need to past, it has to be a law at the time of the
delegated) be foreseeable. Vague criminal Different methods of interpretation offense if there is to be criminal liability (lex
2.) courts opinions (case law) norms violate the principle of exist and are allowed by the legality mitior exception.)
3.) Moral or religious beliefs legality, these include very principle;
4.) Customary laws generalised phrases that could be → Grammatical interpretation This principle is usually codified in the
NB: Executive can only prescribe criminal interpreted differently. This means →Historical interpretation criminal codes and constitutions→ the other
norms if the power is delegated by that where the origin of criminal →Teleological interpretation aspects of the legality principle can be easily
parliament under strict limitations liability lies in international law it (will or telos of the legislator) interpreted from this codification as vague,
prescribed by the constitution. must be translated. be extensively interpreted or unwritten criminal
problematic. The legislator must Analogical interpretation is liability can be considered as retroactive.
Example: European directives have to be make laws accessible to the public prohibited by the legality principle→
implemented by parliamentary statute at through publication similar situations are treated Retroactive effect happens if the legislator
national level, if they did not implement a (accessible)anything vague could similarly-using indication by the gives a statute they have just made, an
parliamentary statute, and implemented the be declared by the courts as a sense and purpose of the statute to enactment date that is in the past or if the
directive then they would violate the legality violation of the legality principle. bring criminal liability to a situation judge applies a statute that was published after
principle (it is simply an aim at the early not specifically covered by the the behaviour took place (there is an
stage.) NB: vague terms cannot be avoided wording. exception to this rule.)
completely, the legislator has to do
justice to the diversity of life, Example: The Dutch electricity case-
changes in conditions and the the court ruled theft of ‘goods’ NB: EXCEPTION TO LEX PRAEVIA-
particularities of cases. This can be included electricity and thus adjusted when an amendment to the legislation is for
problematic because if you are too the existing legislation, this was the benefit of the accused
precise then an individual can get deemed fine because it falls within ▪ Behaviour is
away with a criminal offense eg if the scope decriminalised
you list all the specific ways you ▪ Scope of criminal
cannot kill somebody. NB: judges sometimes reason that an liability is limited
interpretation is needed in (reduced sentence)
NB: may be necessary for the conformity with the modernisation of ▪ New grounds of
individual to enlist legal assistance life. justification or excuse
for interpretation. The principle of lex praevia now does not
apply and on the contrary courts must apply
more lenient legislation retroactively. The
obligation to apply a more lenient amendment
of criminal liability is known as lex mitior
The rationale of the principle of legality (in all European legal systems)
Historical roots Individual liberty, Rule of law (law is above Separation of powers
autonomy and human individuals)
dignity
Without the principle of legality, Legality principle shows The principle of legality is based on In order for the rule of law to safeguard
citizens would be subject to the powers respect for human liberty the rule of law. democracy powers are separated.
of the state (prosecutor, judiciary, and dignity
government, executive, parliament) Rule of law means that processes Trias politica: Separates role of
which would be unfair and cruel. Human beings are should be governed by law rather judiciary, parliament and government
approached as subjects than arbitrary decisions of state (executive)
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The criminal system is now armed with rather than objects of the authorities. Rule by laws not Purpose is to decentralise the power in
protective guarantees against law individuals. a state taking into account the
uncertainty and state arbitrariness democratic principle and protection
Restriction of liberty Neutrality of the state as a priority from state arbitrariness.
The principle has its historical roots in should be minimised within of justice
western cultural values; criminal law system based on checks and balances-
→individual autonomy, liberty and Criminal laws are produced by no power should have absolute control;
dignity A legitimate criminal law democratic procedures and find each power needs to check the other.
→Separation of powers must safeguard a climate of their legitimation in that they are NB: Although courts should not create
→The rule of law legal certainty. products of the general will- or expand criminal liability, they are
individuals as perpetrators and able to interpret statutes and clarify
During the enlightenment period these victims have agreed upon these- words along with compatibility with
values were embedded into our criminal they have helped to create the the constitution in systems that allow
law systems to counter oppressive state boundaries of their own autonomy. constitutional review (German system,
power. Dutch does not.)
Article 120 The courts may not examine if a
statutory provision is in conformity with the
Constitution
The constitutionality of Acts of Parliament and
Treaties shall not be reviewed by the court
Comparison of the principle of legality- common law v civil law
The differences between common and civil law systems have diminished significantly but traditionally common
law had n principle of legality, the ECrHR has changed this.
Common law system Civil law system
Historically Historically
Governed by the rule of law Governed by the rule of law
Arbitrary intervention by state power protected in a customary Arbitrary intervention by state is protected by the codification of
manner, commitment among legal practise to this. Courts are the law, to limit the powers of judges the main culprits.
considered the protectors against sovereign law-makers.
The law is traditionally discovered by the courts (case law.) The law is traditionally made by parliament (statutory law)
No written constitution or criminal statutes Written constitution and criminal statutes (which are the superior
source of law.)
Judges are superior Legislator is superior
Traditionally the principle of legality was an alien concept in The legality principle is indigenous to the continental systems
traditional common law.
Precedent and stare decisis function as a barrier to retroactivity and Principle of legality functions as a barrier to retroactivity and
uncertainty uncertainty.
Modern adaptation Modern adaptation
The lack of a code in England caused problems for the Criticism of such strict interpretation, the application of lex certa
foreseeability and accessibility of laws. The codification movement and lex stricta have been relativized with the changing and
involved parliament taking up the task of prescribing criminal law modernisation of society. Courts have been allowed more leeway to
in statutes. Although there is still no official criminal code almost concretise abstract legislation in line with modern views and
all previous common law offenses are covered by parliamentary understanding minimum standards of foreseeability and accessibility
have to be adhered to. Although statutes form the basis of law in
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statutes and courts have now gradually renounced their power to continental systems, judicial interpretation is also recognised as
create or expand criminal offenses. shaping the law, prompting discussion about weather precedent
should also feature in the continental systems.
The ECtHRs interpretation of the legality principle
→Article 7 of the ECHR is the legality principle
→ The ECrHR does not have an affiliation to a particular legal tradition or source and so it accepted both case
law and statutes as the basis of criminal liability.
→The ECHR bought the ‘principle of legality’ to England→The ECHR has bought common and civil law
systems closer together, courts have access to a single legal doctrine in order to prohibit retroactivity and
vagueness.
→Shifted the focus of the principle from the sources of criminal liability to interpretation of criminal liability as
reasonably foreseeable and accessible (quite lex certa.)
→says sometimes you need to consult a lawyer
i) The law must be adequately accessible…..
ii) A norm cannot be regarded as law unless it is formulated with sufficient precision to enable the
citizen to regulate his conduct. He must be able- if need be with appropriate advice (consulting a
lawyer) to foresee to a degree that is reasonable in the circumstances, the consequences which a
given action may entail.
NB: the courts case law has established that rigid laws must adapt to changing social circumstances, and that
these changes are foreseeable.
Two example judgements showing problems with legality principle
German Constitutional Court (civil law) ECHR and immunity of spouses in rape UK
Finding the definition of coercion (lex certa problem with vague Adapting archaic laws to modern society
laws)
Case: Prosecuted for exercising extreme psychological force on a Case: A British man was accused of raping his wife, despite the
truck driver during a protest. fact that at the time of the act the definition gave immunity to
spouses (lex praevia)
Result: violation of principle of legality
Result: English court did not violate article 7
Facts: ‘Force’ was interpreted to also mean psychological force.
Article 103 is violated: it’s no longer foreseeable with sufficient Facts: The law that a husband could not be held accountable for
certainty which forms of behaviour will give rise to criminal the rape and held ‘immunity’ was still in place at the time of the
liability. Lack of consolidation from jurisprudence-criminalisation act (1989.) In 1994 the parliament removed the word ‘unlawful’
of psychological force would create chaos in future cases. The from description, applicant argue that it is this word precisely that
norm would become so open that it would be impossible to gave him the authority to rape and that it is only after 1994
predict which acts of emotional intimidation are coercive and therefore that it is unacceptable conduct.
which are not→prohibition against reasoning by analogy
ECHR: The ECHR agrees with the national courts reasoning that
To allow interpretation of this vague law in this way (lex certa) by this point the word unlawful was just surplusage and that a
would allow for extensive interpretation by the courts in the perceptible line of case law had been established dismantling the
future (lex stricta.) immunity of a husband in the raping of his wife. There was no
→Would lead to further interference with the principle. doubt under the law as it stood in 1989 that the husband could
have foreseen this change which is also in line with the essence of
the offense ‘rape is rape’, and the fundamental objectives of the
convention to respect human dignity.
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Article 7 of the ECHR should not be read as outlawing the
gradual clarification of the rules of criminal liability through
judicial interpretation from case to case, provided that the
resultant development is consistent with the essence of the offense
(eg rape is rape) and could be reasonably foreseen (The
requirement of reasonable foreseeability is fulfilled when the
Weighing of interests: weighs the impact of criminalising a evolution of the new legal rule has reached a stage where judicial
passive act such as psychological intimidation in the specific recognition of it has become a reasonably foreseeable development
context of German society with the right to foreseeability in of the law.)
future cases
NB: both these requirements have to be fulfilled.
Weighing of interests: weighing art 7 foreseeability from the
husbands claims with the wife’s claim of violation of her human
dignity, also enshrined by the ECHR
Conclusion: Legal certainty cannot be assured to the greatest possible extent and individuals need to pay
attention to developments in jurisprudence as well as changes in society, it is often stated that the principle of
legality is eroding
Criminalisation- Andrew Ashworth
There is no master principle from which we establish the content of criminal law. It is important to establish the
frontiers of criminal liability
Each individual should be treated as responsible for
their own behaviour. An individual should only be
held criminally liable if they had the capacity and fair
opportunity.
The principle of autonomy goes against the idea of
creating criminal offense individual’s liberty can only
be infringed with strong justification so individuals
interests are protected against collective state
interests. However, the focus on free will does not
The principle of individual autonomy account for the fact that individuals of a socially
Pursue their conception of ‘the good life’ deprived background do not necessarily have such
choices.
Individual rights are given high priority in the social Applies mainly to adults, which means for example
structure- doctrine of freedom drinking below the age of 18 and engaging in sexual
activities below the age of 16 are criminalised.
Factual element normative element
Sane adults have the (normative behaviour)
capacity and free will to Individuals should be
make meaningful choices. respected and treated as
They may be held liable agents capable of
for their conduct and for choosing their acts and
matters within their omissions, they are a
control, except in so far capable and independent
as they can point to some agency.
excuse for their conduct
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(eg duress, metal illness
etc.)
Promotes the ‘community’ which causes problems
because there is no specific weighing of individuals
rights
Citizens benefit from the existence of facilities and
structures that are protected (as a last resort) by the
criminal law. Criminalisation is for the general good.
Some acts are just not appropriately analysed in terms
The principle of welfare of individual autonomy and have an effect on the
public welfare at large eg areas of industrial safety
Law must operate within the social context and give food safety, environmental protection etc.
weight to collective goals. Eg seatbelt controversy- in the interests of the
community and to avoid unnecessary expenditure on
attending injuries potentially argues for
criminalisation.
Traditional starting point for any criminalisation,
state is justified in criminalising any conduct that
causes harm to others or creates an unacceptable risk
of harm to others.
The harm principle: The criminal law may only be
used to prevent harm to others
Strong version: conduct that causes harm to others
Weak version: prevents unacceptable risk of harm to
others eg criminalisation of remote harms such as
possession of a firearm or speeding which usually
does no harm to others. This justifies criminalising
conduct/behaviour. Whenever it can be established
The harm principle that criminalising an offense helps make sure people
aren’t hurt it is a strong foundation for
criminalisation.
Restricts criminal law from penalizing conduct which
is regarded as immoral or otherwise unacceptable, but
which is not harmful to others eg seatbelt controversy
There is a discussion on criminalisation of not
wearing seat belts or crash helmets due to the harm it
can cause to others (human misery and public
expenditure) but it is doubtful this would succeed-
this is indirect hardship and the possibilities are
enormous!
Example: seat belt laws were introduced and seen as a
violation of the harm principle which justifies
criminalisation only based on the harm you can do to
others. The seat belt laws prevented self-harm, not
harm to others, citizens argued that this violated the
principle of autonomy and that it should be your
own business what you do to yourself. seat belt laws
invade your liberty to an extent.
Counter argument: how about children who cannot
make an autonomous decision themselves?
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Exception: Violenti non fit injuria
The harm principle does not apply to people who
consent to being harmed.
The principle of respect for human rights
The criminal law should respect human rights
protections as enshrined by the ECHR, many rights
are not absolute, but interference must be justified as
necessary in a democratic society.
The right not to be punished
Generally democratic societies that recognise
individual’s autonomy require string justification for
criminalising conduct, the burden of proof should
therefore lie on those who would impose criminal
The minimalist approach- liability. Much stronger justification is required
where deprivation of liberty is the punishment.
Minimising the use of criminalisation The principle of subsidiarity-criminalisation as a last
resort
Morality, social convention and peer pressure are left
to regulate certain unwelcome behaviour.
Criminal law should only be considered when the
objective cannot be achieved in a less intrusive way
-Civil law
-Administrative law
-Education
Criminalisation should be reserved for the most
serious invasions of interests. Appropriateness of
criminalisation should regard;
-The public element (addressed to the public at
large)
-Severity of the harm, it should not be used for
minor wrongs (de minimis limitation)
The effectiveness principle (utility principle.)
The legislator should not create a criminal offense
where this might cause a greater social harm than
leaving the conduct outside of the criminal law or
where criminalisation is ineffective (often with crimes
like speeding.)
Example: criminalisation of the possession of soft
drugs
Problem: hard to regulate this underground market
effectively
Social consequences
i.) Produces a black market
ii.) Leads police to adopt intrusive methods of
enforcement
iii.) Allows the police to be selective in their
enforcement (eg enforced more regularly against
black citizens due to police racism)
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iv.) Leads to a degree of police corruption
The seatbelt controversy- the seatbelt controversy
would be acceptable using this theory because loss of
life is prevented massively so it is in accordance with
this principle.
Where criminalisation is productive and cost
effective it should be used- this is the inverted form
of the effectiveness principle, some argue this leads to
over criminalisation.
Theories of punishment- Keiler and Roefs (goals of punishment)
What is punishment?
Nobody has come up with a conclusive definition, but we often use Harts classical definition
Harts definition of punishment is the classic definition and is based on five cumulative elements;
Essentially the intentional infliction of suffering
1.) It must involve pain or other consequences normally considered unpleasant (it has been argued that the
Netherlands prison system is not unpleasant enough, Americas certainly is.)
2.) It must be for an offense against legal rules
3.) It must be for an actual or supposed offender for his offense
4.) It must be intentionally inflicted by human beings other than the offender
5.) It must be imposed and administered by an authority constituted by a legal system against which the offense is
committed, it is the perspective of this authority that settles the question of the punishment.
NB: Perhaps this definition can be considered to mitigate the option of a treatment clinic since this is not means
to intentionally cause suffering.
Extent of punishment
➢ Netherlands and United Kingdom-life means life policy (de facto detention for the rest of ones life.)
➢ Most of Europe- review policy- the life sentence is reviewed after a period of time
➢ Norway, no life sentence at all, maximum imprisonment is 21 years
The concept of punishment
Hart defines punishment based on five cumulative elements (criminal law scholars)
This is the classic definition
1.) It must involve pain or other consequences considered unpleasant
2.) It must be for an offense against legal rules
3.) It must of an actual or supposed offender for his offense
4.) It must be intentionally administered by human beings other than the offender
5.) It must be imposed and administered by an authority constituted by a legal system against which the
offense is committed
