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CRIMINAL LAW AND PROCEDURE
Criminal law as we all know is the part or body of law that relates to crime and mostly established by statute and also includes punishment for people who violates these laws. Therefore any conduct seen as threatening, harmful, endangering property, health, safety and moral welfare of people, can be called an act of crime.
Criminal law varies according to jurisdictions and it has a penalty that involves the forfeiture of ones rights and imprisonment.
The main theories for criminal law includes the following;
1. To deter crime
2. To reform the perpetrator
3. To provide retribution for the act
4. To prevent further crimes
However, there are only five man theories that have been widely accepted for the enforcement of criminal law by punishments. These are;
1. Retribution: done in a way of punishment
2. Deterrence: done in a way of discouraging the offender from criminal behaviors
3. Incapacitation: done in a way of keeping the criminals away from the society through prison sentences
4. Rehabilitation: done in a way of transforming the offender into a valuable member of the society
5. Restoration: done in a way of repairing an harm done to the victim through state authority
There are two types of criminal laws. These are;
1. Misdemeanor: this is an offense considered as a lower offense. For example, minor assaults, traffic offences or petty thefts and the penalty is mostly one year or less.
2. Felony: this is an offense considered as a more serious offense. For example, murder, manslaughter, dealing drugs, rape, robbery and arson and the penalty is mostly one year or more.
Elements of Criminal Law
What comes to mind here are;
1. The Actus reus or guilty act
2. The Mens rea or guilty mind
However, judges have concluded that in crimes where both elements are required, then they both must be present at the same moment because it is not enough that they occured sequentially at different times.
Actus Reus
Actus Reus is the latin word for guilty act and it is the physical element of commiting a crime.
Actus Reus can be accomplished by the following;
1. An action
2. Threat of action
3. An omission to act
However, a failure to act can also be an Actus Reus but in this case, there must be a duty of care. This duty of care can arise through the following;
1. Contract
2. Voluntary undertaking
3. Blood relation
4. Official position
An Actus Reus can be nullified by an absence of causation, that is, it is said that a crime involves when an harm has been done to a person, and the harm must have been caused by another person's action. So if the harm was not caused by anyone, there maybe no crime, because there is an absence of causation.
Mens Rea
Mens Rea is also a latin phrase that means guilty mind and it is the mental element of crime.
Mens Rea is defined as the intention to do a wrongful act it is satisfied to have been completed when a person recognized that what he or she wants to do is dangerous and still decides to do it.
When the intent is wrong, it may vary how serious the offense is and can reduce the punishment. An example is where a person kills or knows that death or serious body harm would be the result could be seen as murder while killing that happened under recklessness and not knowing that death or serious body harm would be the result could be called manslaughter.
Strict Liability
Strict liability is described as a criminal or civil liability that lacks mens Rea or intent by the defendant but deals with negligent acts by the defendant.
In strict liability, it is not necessarily needed to show that the act was intentional because most of it are not truly crimes at all but administrative regulations and civil penalties that were created by statute. An example of strict liability crime is the crime against the traffic or highway code.
Fatal Offenses
The following are seen or regarded as fatal Offenses;
1. Murder: this is an unlawful killing and it is divided into various gradiations of severity below;
a. Murder in the first degree: this is based on intent and it requires malice as an element
b. Manslaughter culpable homicide is seen as lesser variety of killing done in the absence of malice and can be caused by reasonable provocation or diminished capacity.
c. Involuntary manslaughter when recognized is also a type of killing that lacks all but guilty intent or recklessness.
Personal Offenses
Talking about personal offenses, we would be seeing battery which is traditionally seen as unlawful touching. When a person is scared of an imminent battery to be committed upon him, this is an assault and can give rise to criminal liability. Another example is non-consensual intercourse or rape.
Property Offenses
Under the property Offenses are the following;
1. Trespass: which is an unlawful entry onto the real property of another
2. Conversion
3. Embezzlement
4. Theft
5. Robbery: which is a theft by force
6. Fraud
Participatory Offenses
Participatory Offenses talks about getting associated with crims in one way or the other even if the crime does not actually come to fruition.
The following are examples of participatory Offenses;
1. Aiding
2. Abetting
3. Conspiracy
4. Attempt
Mala Inse v. Mala Prohibita
All kind of offenses are divided into the latin legal terms Mala Inse and Mala Prohibita.
Mala Inse are crimes that are evil or morally wrong and are widely called regardless of jurisdiction.
Examples of Mala Inse offenses are;
1. Felonies
2. Property crimes
3. Immoral and corrupt acts by public officials
Mala Prohibita are offenses that does not associate with wrongfulness.
Examples of Mala Prohibita offenses are;
1. Parking in a restricted area
2. Driving the wrong way down a one-way street
3. Jay walking or unlicensed fishing
Mala Prohibita are acts prohibited by statutes but not considered wrong because they are imposed strictly and there would be no need for mens Rea but the act itself to have been done.
General defences to criminal liability
The defences of criminal liability includes the following;
1. The defence of De Mininis Non Curat Lex: the maxim “De Mininis Non Curat Lex” means the law does not concern itself with trifles. This defence is used where the injury is so slight that no person of ordinary sense and temper would complain of the injury.
2.The defence of accident: this is provided for under section 24 of the criminal code. This defence makes someone not liable when the injury occurs independently of their will or by accident. See the case of Iromantu v. State
However, if the injury is reasonably foreseeable to occur then the defence of accident would not work. See the case State v. Appiah and Uket v. State
3. The defence of mistake: this defence can only be used when it is of fact only as provided for under section 25 of the criminal code.
However, the following must be fulfilled before the defence of mistake could be successful;
a. It must be mistake of fact and not law
b. The mistake must be honest and reasonable
c. There would be no greater liability of the mistaken facts were found to be true
4. Mistake of Fact and not of Law: according to section 22 of the criminal code, ignorance of the law is not an excuse (ignorantia juris non excusat) unless where the law that creates the offense states clearly that there has to be knowledge of the law as an element of the offense. See the case of Sherras v. De. Rutzen
Where the defence of mistake wild apply then the mistake must be one that is honest and reasonable. See the case of R v. Gaddam
5. The defence of bonafide claim of right: this defence is provided for under section 23 of the criminal code. This defence can be applied successfully where the act or omission done in relation to property happened with an honest claim of right and without intention to defraud.
Property in this context is defined under section 1 of the criminal code to cover all kind of property, including land. See the case of R v. Vega
6. The defence of necessity and extraordinary emergency: this defence is provided for under section 26 of the criminal code. This defence is only valid where the act or omission were done in sudden circumstances or extraordinary emergency that a normal person would not have acted otherwise.
The exceptions to these defences includes;
a. Compulsion
b. Provocation
c. Self defence
See the cases of R v. Dudley and Buckcoke v. Greater London council
Judicial Officers and the Execution of the Law
Section 1 of the criminal code includes the Justices of the Supreme court, court of appeal, federal high court, state high court and any administrative officer that engages in judicial acts, proceedings or inquiry as Judicial officers.
Section 31 of the criminal code makes no judicial officer criminally responsible for act done or omitted to be done when he or she exercises the said functions. See the case of Anderson v Gorrie (1894)
Section 32(1) of the criminal code does not make someone liable in the performance of the provisions of the law.
Section 32(4) of the criminal code will make the person laible if the acts or omissions results in death or grievous bodily harm.
Criminal law starts with a procedure which begins with the criminal charge and then conviction or acquittal of the defendant.
Criminal procedure can be in two forms;
a. Inquisitorial criminal procedure
b. Adversarial criminal procedure
Basic Rights
It is the duty of the prosecutor to prove that the defendant is guilty beyond reasonable doubt as oppose the defendant having to prove innocence. If there is any doubt the case would be resolved in favor of the defendant.
The defendant has a right to a legal counsel and any defendant who can not afford one will be provided with one by the courts, this is called court - appointed lawyer.
The fundamental or basic Rights of the defendant are as follows;
a. Right to be informed about the crime arrested for
b. Right to be presented before a Judicial officer within three days of custody
c. In Zimbabwe, right to be granted bail upon application.
Difference in criminal and civil procedures
Criminal Procedures
- higher standard of proof
- prove beyond reasonable doubt (Plomp v R)
- started by the federal or state government
- criminal action is brought by the prosecution
Civil Procedures
- lower standard of proof
- prove on the balance of probabilities
- started by individuals
- civil action is brought by the plaintiff
Constitutional Law
The term constitution comes from a latin word 'constitutio' and it is defined as the set of rules and principles that define the nature and extent of government.
The constitution is the most basic law of a territory from which all the other laws and rules are hierarchically derived.
The constitution can be codified, that is, written down to make a single document whole some are not codified. An example is the constitution of the United Kingdom as they are written in numerous basic acts of legislature , court cases or treaties.
The constitution can be of different modes;
a. Constitution for sovereign states
b. Constitution for companies
c. Constitution for unincorporated associations
A codified constitution can serve as a limiter for state power by drawing lines for rules with the help of fundamental rights.
The longest constitution is of India - 444 articles, 22 parts 12 schedules, 18 amendments and 146, 385 words in English language. While the shortest constitution is of Monaco - 10 chapters, 97 articles and 3, 814 words.
General Features
Activities done within the power of the constitution is called in Latin Intra Views and beyond the power of the constitution is called in Latin Ultra Vires
The constitution has power of supremacy over ordinary statutory law and if such statutory law does not follow the provisions of the constitution, it will be regarded as null and void ab initio.
Types of constitution
Written Constitution - this constitution is written in form of a book or series of documents combined in the form of a book. It is always duly passed and enacted. Examples are the constitution of India, USA, Germany, Japan, Canada, France, Switzerland etc.
Unwritten Constitution - this constitution is neither drafted, enacted nor written in the form of a book. It can only be found in charters and laws and conventions as a product of slow and gradual evolution of the people. An example is the constitution of the United Kingdom.
Differences between written and unwritten Constitution
Written Constitution
- form of a book
- made and enacted by the people
- less flexible
- it is definite
Unwritten Constitution
- not in form of a book
- result of gradual evolution of the people
- depends on unwritten rules
- need to be proved by quoting sources and practices
Flexible constitution
Flexible constitution is the one which can be easily amended. An example is the British constitution.
Merits of a flexible constitution
a. It changes easily according to the environment
b. Can meet emergencies with the ability to be amended easily
c. The people do not feel the need for revolutionary changes as it changes alongside the peoples way of life
d. It is always up to date
Demerits of a flexible constitution
a. It lacks stability as it can be changed easily
b. It is not suitable for a federation as it can lead to undesired changes by the federal government.
Rigid Constitution
Rigid constitution is the one which can not be easily amended and can only be amended by the legislature having to pass a bill of amendment and supported by a big majority of its members. An example is the constitution of the United States of America.
Merits of Rigid Constitution
a. It has stability
b. It ensures administration continuity
c. It prevents autocratic exercise of government power
d. It is ideal for a federation
e. It is the basic will of the sovereign people
Demerits of Rigid Constitution
a. It does not change easily with the pace of the environment
b. It slows down social development
c. It is not suitable for emergencies
d. The people might need a revolution for a change
e. It becomes conservative and gets old
Enacted Constitution
Enacted Constitution is the one which is man made.
It is passed after there is a thorough discussion over it's objectives, principles and provisions.
Qualities of a Good Constitution
a. It must be systematically written
b. It must contain the states law in order to be supreme
c. It must have the ability to change flexibly or rigidly
d. It must not be too rigid or too flexible
e. It must ensure fundamental rights of the people
f. It must define the powers of the government and it's organs
g. It must provide a representable , responsible , limited and accountable government
h. It must provide support for free and fair elections
i. It must show that the people are sovereign
j. It must not be ambiguous in it's language
Importance of Constitution
a. It shows the people are sovereign
b. It shows the goals and objectives of the people
c. It shows the guarantee of fundamental rights of the people
d. It shows the account of government powers and functions of its organs
e. It shows the separation of powers between the federal and state government
f. It shows how the constitution should be amended
g. It shows election system and people's right in election
h. It shows the independence of the judiciary
i. It governs all and it's rules can not be violated.
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