Criminal Law

General Principles of Criminal Law Criminal Law “Criminal law should be founded upon principles that are permanent, uniform and universal, and always conformable to the dictates of truth and justice, the feeling of humanity and the indelible rights of mankind” – Blackstone. The most important function of the state is that which it discharges as the guardian of the order, preventing and punishing all injuries to itself and all disobedience to the rules which it has laid down for the common welfare. Those acts or omissions which the state considers as a threat to the common welfare are thereof punished in the Criminal Code and other laws – the penal laws. Every penal law consists of two elements, that is to say, the precept (preceptum legis) whereby the state prohibits or commands the doing of a certain act, and the sanction (sanctio legis) whereby the punishment is threatened against the transgressor. In simple and primitive communities it is no doubt possible that rulers and magistrates execute judgements in such a manner as best commends itself to them. Early law is conceived as Jus (the principle of justice) rather than lex (the will of the state). The function of the state in its earlier conception is to enforce the law not to make it. The rules to be enacted are those of right which are found realised in the immemorial customs of the people or which are sanctioned by religious faith and practice, or which have been divinely revealed to man. But as the state grew up and the machinery of Government became more complex, things become different; and in almost all modern countries, legislation by the state has asserted its exclusive claim. The state needs to enact positive laws whereby it authoritatively declares the rules which it intends to enforce and initiates the penalties which the breech if those rules will entail. The enactment of such laws is the guarantee of the rights of the individual. Every member of the community has complete freedom unless he hinders the freedom of others as it is laid down in the law. 1 Relationship between Criminal Law and Morality According to Denning J L at the time of Henry I it was believed that: “In order that an act should be punishable it must be morally blameworthy. It must be a sin”1 The fact whether Criminal Law should be based on morality so as to enforce it is a debate that is still being discussed until today. According to H.L.A. Hart in his book “Law, Liberty and Morality”, wrote that the main intent of Criminal Law was not to enforce morality. On the other hand, Dablet argues that the Criminal Law should do so. In the past, Criminal Law was based on the social values thus on the morals. Thus for an act or an omission to be punishable it had to be either an immoral action or a sin. The traditional attitude of the common law, has bee that crimes are essentially immoral acts deserving of punishment. In the early days of law, when the number of crimes was relatively few and only 1 SMITH, J.C. & HOGAN, B, Criminal Law (London Buttersworths 1978) p. 4 1 General Principles of Criminal Law the most outrageous acts were prohibited – murder, robbery, rape etc. – this was, no doubt, true. But now many acts are prohibited on the grounds of social expediency and not because of their immoral nature2. Today the element of morality is not the only element that determines whether an act is to be as a Criminal offence or not. Today, the act must be directly harmful to individuals or to the collective interests. Still some immoral actions can be considered as Criminal acts but not all of them and not all criminal acts are immoral. So one can notice that there is an overlapping between these two spheres of life. But still the fact that an act is immoral does not entail that it is also a criminal act and the fact an act is a criminal act cannot obviously be considered as immoral. As an example, one can easily mention adulatory. According to the Christian Morality this is an immoral act and until 1971 it was still considered to be a Criminal offence by the Maltese Criminal Code but today it is not any more. On the other hand, in Islamic law adulatory is till this very day punishable. There are also Criminal acts that are considered as morally praiseworthy but are punished severally. Rebellion against any form of Tyranny is one. When a law punishes an immoral act, it does this because there are other factors that apply. Maltese law punishes the Solicitor of prostitution and not the prostitution of oneself. This does not mean that prostitution is not immoral. The same happens with abortion and with pornography. Both are considered as offences because they are a threat to social order and not just because they are immoral. This happens because law can only regulate that conduct which is externalised. Anything that remains in the human mind or hearth cannot be punished. Wanting without doing is not considered as a criminal offence but it is still considered to be immoral. Man can only take into account what he sees and hears. Thus criminal offence must be clearly defined and possible to proof, therefore envy, greed and feelings in general cannot be considered as punishable even though they are considered to be immoral. Even if in most cases of criminal offences there is an element of immorality is not the rule. If law would be done to enforce morality, this would mean that there is only one moral system in a country, but this is certainly not true. With the advent of ethnic amalgamation morals have mixed up and changed and will continue to change. One can say that there is a plurality of morals but only one Criminal Law valid to a particular country. If punishment is assessed accordance with the degree of moral blameworthiness, it seems to follow that it is imposed because of the moral blameworthiness3 and therefore no further justification is needed. As regards the difference between morality and law a further idea developed. The same offence might be liable o the maximum or minimum of punishment. Morally speaking an attempt to kill and the intent of killing are as blameworthy as actual killing. However for reasons of policy, since harm in the first is less than in the second, a lesser punishment is given. This is also done to keep the persons from persisting in the same attempt. 1.1 Actus Reus and Mens Rea 4 This close relationship between morality and law developed two very important notions in criminal law which are still used today as to determine whether a person is to be held criminally responsible or not. 2 SMITH, J.C. & HOGAN, B, Criminal Law (London Buttersworths 1978) p. 20 3 SMITH, J.C. & HOGAN, B, Criminal Law (London Buttersworths 1978) p. 6 4 JONES, T. H. & CHRISTIE M. G. A. Greens Concise Scots Law CRIMINAL LAW (W. Green Sweet and Maxwell- Chapter 3 2 General Principles of Criminal Law Strict liability is what used to be the rule before and what today is considered to be as an exception to the rule. This liability arises simply from the commission of the material act prohibited by the law. No particular state of mind was required and thus even an inanimate object or an animal could be held criminally responsible. The fact that the act is prohibited was enough for the agent to be punished. This concept of strict liability was also called absolute liability since the phrase absolute used to imply that no possible defence could be raised to acquit the agent. By the accomplishment of the material act the agent would be exposed to criminal liability. Under the influence of Canon Law and Roman Law, a change gradually took place and the courts began to require proof an element of blameworthiness – ‘a guilty mind’. Today the act is not sufficient to render the agent punishable since it has to be accompanied by a guilty state of mind (both the Actus rues and the Mens rea are needed and one without the other is not useful to condemn a person). The following dictums explain this concept: ACTUS NON FACIT REUM NISI MENS SIT REA That is: The act alone is not sufficient to make a person responsible unless accompanied by a guilty state of mind. Where the Actus Reus is the conduct (action or omission) prohibited by law and the mens rea is the particular state of mind, which must accompany the Actus Reus. The Actus Reus is simply the act for example in the case of homicide there are three classifications. The Actus Reus is the same for all of them because the final product is that a person is killed. But the mens rea is considered to be different for the three of them. (see table 1). As one can easily notice from the table below, the Actus Reus is the same since in all the three cases the person kills another person, but the Mens rea is different. The mental intention behind each type of homicide is different. This means that the punishment will be different and if one is missing the person accused will not be considered to be guilty Action Actus Reus Mens Rea Voluntary The same One wilfully kills another Neglect and/or there was no Involuntary The same desire and/or was not foreseen One does not intend to kill As a result of a The same or put his life in jeopardy grievous harm but to harm Table 1: Classifications of homicide.

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