Everything about Criminal Law totally explained
The term
criminal law, sometimes called
penal law, refers to any of various bodies of rules in different
jurisdictions whose common characteristic is the potential for unique and often severe impositions as punishment for failure to comply.
Criminal punishment, depending on the
offense and
jurisdiction, may include
execution, loss of
liberty, government supervision (
parole or
probation), or
fines. There are some archetypal crimes, like
murder, but the acts that are forbidden are not wholly consistent between different criminal codes, and even within a particular code lines may be blurred as civil infractions may give rise also to criminal consequences. Criminal law typically is enforced by the
government, unlike the
civil law, which may be enforced by private parties.
Criminal law history
The first civilizations generally didn't distinguish between civil and criminal law. The first written codes of law were produced by the
Sumerians. Around 2100-2050 BC
Ur-Nammu, the
Neo-Sumerian king of
Ur, enacted the oldest written legal code whose text has been discovered: the
Code of Ur-Nammu although an earlier code of
Urukagina of
Lagash is also known to have existed. Another important early code was the
Code Hammurabi, which formed the core of
Babylonian law. These early legal codes didn't separate penal and civil laws.
The similarly significant Commentaries of Gaius on the
Twelve Tables also conflated the civil and criminal aspects, treating theft or
furtum as a
tort. Assault and violent
robbery were analogized to
trespass as to property. Breach of such laws created an obligation of law or
vinculum juris discharged by payment of monetary compensation or
damages.
The first signs of the modern distinction between crimes and civil matters emerged during the
Norman Invasion of England. The special notion of criminal penalty, at least concerning Europe, arose in Spanish Late Scolasticism (see
Alfonso 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. The development of the
state dispensing
justice in a court clearly emerged in the eighteenth century when European countries began maintaining police services. From this point, criminal law had formalized the mechanisms for enforcement, which allowed for its development as a discernible entity.
Criminal sanctions
Criminal law is distinctive for the uniquely serious potential consequences of failure to abide by its rules. Every crime is composed of
criminal elements.
Capital punishment may be imposed in some jurisdictions for the most serious crimes. Physical or
corporal punishment may be imposed such as
whipping or
caning, although these punishments are prohibited in much of the world. Individuals may be
incarcerated in
prison or
jail in 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, including
house arrest, and convicts may be required to conform to particularized guidelines as part of a
parole or
probation regimen.
Fines also 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 by
punishments:
retribution,
deterrence,
incapacitation,
rehabilitation and
restitution. Jurisdictions differ on the value to be placed on each.
- Retribution - Criminals ought to suffer in 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." This belief has some connection with utilitarianism. 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 murdered himself. A related theory includes the idea of "righting the balance."
- Deterrence - Individual deterrence is aimed toward the specific offender. The aim is to impose a sufficient penalty to discourage the offender from criminal behavior. General deterrence 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 criminals away from society so that the public is protected from their misconduct. This is often achieved through prison sentences today. The death penalty or banishment have served the same purpose.
- Rehabilitation - Aims at transforming an offender into a valuable member of society. Its primary goal is to prevent further offending by convincing the offender that her conduct was wrong.
- Restitution - This is a victim-oriented theory of punishment. The goal is to repair, through state authority, any hurt inflicted on the victim by the offender. For example, one who embezzles will be required to repay the amount improperly acquired. Restitution is commonly combined with other main goals of criminal justice and is closely related to concepts in the civil law.
Criminal law jurisdictions
International law
Public international law deals extensively and increasingly with criminal conduct, that's heinous and ghastly enough to affect entire societies and regions. The formative source of modern international criminal law was the
Nuremberg trials following the
Second World War in which the leaders of
Nazism were prosecuted for their part in
genocide and atrocities across Europe. In 1998 an
International criminal court was established in the
Hague under what is known as the
Rome Statute. This is specifically to try heads and members of governments who have taken part in
crimes against humanity. Not all countries have agreed to take part, including
Yemen,
Libya,
Iraq,
Israel and the
United States.
United States
In the
United States, criminal prosecutions typically are initiated by
complaint issued by a judge or by
indictment issued by a grand jury. As to
felonies in Federal court, the
Fifth Amendment to the United States Constitution requires
indictment. The Federal requirement doesn't apply to the states, which have a diversity of practices. Three states (Connecticut, Pennsylvania, and Washington) and the District of Columbia don't use grand jury indictments at all. The
Sixth Amendment guarantees a criminal defendant the right to a
speedy and
public trial, in both state and Federal courts, by an impartial jury of the State and district wherein the crime was committed, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of Counsel for his defense. The interests of the state are represented by a prosecuting attorney. The defendant may defend himself
pro se, and may act as his own attorney, if desired.
In most U.S. law schools, the basic course in criminal law is based upon the
Model Penal Code and examination of Anglo-American common law. Crimes in the U.S. which are outlawed nearly universally, such as
murder and
rape are occasionally referred to as
malum in se, while other crimes reflecting society's social attitudes and morality, such as
drug prohibition and
alcohol laws are referred to as
malum prohibitum.
England
Criminal law in England derives from a number of diverse sources. The definitions of the different acts that constitute criminal offenses can be found in the common law (murder, manslaughter, conspiracy to defraud) as well as in thousands of independent and disparate statutes and more recently from supranational legal regimes such as the EU. As the law lacks the criminal codes that have been instituted in the United States and
civil law jurisdictions, there's no unifying thread to how crimes are defined, although there have been calls from the Law Commission for the situation to be remedied. Criminal trials are administered hierarchically, from magistrates' courts, through the
Crown Courts and up to the
High Court. Appeals are then made to the
Court of Appeal and finally the
House of Lords on matters of law.
Procedurally, offenses are classified as indictable and summary offenses; summary offenses may be tried before a magistrate without a jury, while indictable offenses are tried in a crown court before a jury. The distinction between the two is broadly between that of minor and serious offenses. At common law crimes are classified as either
treason,
felony or
misdemeanor.
The way in which the criminal law is defined and understood in England is less exact than in the United States as there have been few official articulations on the subject. The body of criminal law is considerably more disorganised, thus finding any common thread to the law is very difficult. A consolidated
English Criminal Code was drafted by the
Law Commission in 1989 but, though codification has been debated since 1818,
as of 2007 hasn't been implemented. Scotland has a completely separate legal system.
Selected criminal laws
Many laws are enforced by threat of
criminal punishment, and their particulars may vary widely from place to place. The entire universe of criminal law is too vast to intelligently catalog. Nevertheless, the following are some of the more known aspects of the criminal law.
The criminal law generally prohibits undesirable
acts. Thus, proof of a crime requires proof of some act. Scholars label this the requirement of an
actus reus or
guilty act. Some crimes — particularly modern regulatory offenses — require no more, and they're known as
strict liability offenses. Nevertheless, because of the potentially severe consequences of criminal conviction, judges at
common law also sought proof of an
intent to do some bad thing, the
mens rea or
guilty mind. As to crimes of which both
actus reus and
mens rea are requirements, judges have concluded that the elements must be present at precisely the same moment and it isn't enough that they occurred sequentially at different times.
Actus reus
Actus reus is
Latin for "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 an
omission to act. For example, the act of
A striking
B might 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 a
failure to act, there must be a
duty. A duty can arise through
contract, a voluntary undertaking, a blood relation with whom one lives, and occasionally through one's official position. Duty also can arise from one's own creation of a dangerous situation. Occasional sources of duties for bystanders to accidents in Europe and North America are
good samaritan laws, which can criminalise failure to help someone in distress (for example a drowning child).
An actus reus may be nullified by an absence of
causation. For example, a crime involves harm to a person, the person's action must be the
but for cause and
proximate cause of the harm. If more than one cause exists (for example harm comes at the hands of more than one culprit) the act must have "more than a slight or trifling link" to the harm.
Causation isn't broken simply because a victim is particularly vulnerable. This is known as the
thin skull rule. However, it may be broken by an intervening act (
novus actus interveniens) of a third party, the victim's own conduct, or another unpredictable event. A mistake in
medical treatment typically won't sever the chain, unless the mistakes are in themselves "so potent in causing death."
Mens rea
Mens rea is another
Latin phrase, meaning "guilty mind." A guilty mind means an
intention to commit some wrongful act. Intention under criminal law is separate from a person's
motive. If
Mr. Hood robs from rich
Mr. Nottingham because his motive is to give the money to poor
Mrs. Marion, his "good intentions" don't change his
criminal intention to commit
robbery.
A lower threshold of
mens rea is satisfied when a defendant recognises an act is dangerous but decides to commit it anyway. This is
recklessness. For instance, if
C tears 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. Courts often consider whether the actor did recognize the danger, or alternatively
ought to have recognised a risk. Of course, a requirement only that one
ought to have recognized a danger (though he did not) is tantamount to erasing
intent as a requirement. In this way, the importance of
mens rea has been reduced in some areas of the criminal law.
Wrongfulness of intent also may vary the seriousness of an offense. A killing committed with specific intent to kill or with conscious recognition that
death or
serious bodily harm will result, would be murder, whereas a killing effected by reckless acts lacking such a consciousness could be manslaughter. On the other hand, it matters not who is actually harmed through a defendant's actions. The doctrine of
transferred malice means, 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.
Strict liability
Strict liability can be described as a "but for" cause of harm on part of the defendant. "But for" the action or product that caused the harm, nothing bad would have happened. Not all crimes require bad intent, and alternatively, the threshold of culpability required may be reduced. For example, it might be sufficient to show that a defendant acted
negligently, rather than
intentionally or
recklessly. In offenses of
absolute liability, other than the prohibited act, it may not be necessary to show anything at all, even if the defendant wouldn't normally be perceived to be at fault. Most strict liability offenses are created by statute, and often they're the result of ambiguous drafting unless legislation explicitly names an offense as one of strict liability.
Fatal offenses
A
murder, defined broadly, is an unlawful killing. Unlawful killing is probably the act most frequently targeted by the criminal law. In many
jurisdictions, the crime of murder is divided into various gradations of severity, for example, murder in the
first degree, based on
intent.
Malice is a required element of murder. Manslaughter is a lesser variety of killing committed in the absence of
malice, brought about by reasonable
provocation, or
diminished capacity.
Involuntary manslaughter, where it's recognized, is a killing that lacks all but the most attenuated guilty intent, recklessness.
Settled insanity is a possible defense.
Personal offenses
Many criminal codes protect the physical integrity of the body. The crime of
battery is traditionally understood as an unlawful touching, although this doesn't 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 an
assault, and also may give rise to criminal liability. Non-consensual
intercourse, or
rape, is a particularly egregious form of battery.
Property offenses
Property often is protected by the criminal law.
Trespassing is unlawful entry onto the real property of another. Many criminal codes provide penalties for
conversion,
embezzlement,
theft, all of which involve deprivations of the value of the property.
Robbery is a theft by force.
Fraud in 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
Some criminal codes criminalize association with a criminal venture or involvement in criminality that doesn't actually come to fruition. Some examples are aiding, abetting,
conspiracy, and attempt.
Defenses
Further Information
Get more info on 'Criminal Law'.
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