Criminal Law. Enforcing the Law

UNIT 3

CRIMINAL LAW. ENFORCING THE LAW

Warming-up

Comment on the statements below. Give your reasons.

1)The criminal justice system cannot function without public participation. The effectiveness of legislation can be dependent upon the degree of public support it attracts.

2)If members of the public hold strongly negative views about the criminal justice system, they will be less likely to report crimes or serve as witnesses.

3)People can only be deterred from offending if they are aware of what penalties may follow a conviction.

4)What do you think would be the most appropriate sentence to be served by a person, convicted of the following crimes? Why?

• a man assaulting his female partner;
• burglary with a weapon;
• rape;
• drunk driving;
• fraud;
• possession of 10 grams of marijuana.

TEXT 1. Read the text and answer the questions that follow it.

Criminal law. A crime.

Criminal law is a very broad and complex subject. It tends to represent society’s attitude towards conduct, which directly and in serious degree threatens the society and well-being of society, and it is not safe to leave it repressible only by compensation of the injured party. The question of what acts can be followed by criminal proceedings can only be answered by reference to the law as laid down by the legislature of the country.

Criminal acts vary in seriousness; the same act may be a criminal offence in one country and not in another. Equally, the same act can be both a criminal offence and a civil wrong. This gives rise to several questions. For instance, what is a crime and how do you know whether given conduct is or is not a crime? Unfortunately, no such definition has ever, or is ever likely to be found. The best can be offered to say is that a criminal offence is a conduct, which may be followed, by criminal proceedings and sentence. So the difference lies not in the nature of the act but in the legal consequences, which follow it.

Crime is categorized as a part of public / criminal law — the law regulating the relations between citizens and the state. Crimes can be thought of as acts which the state considers to be wrong and which can be punished by the state. Criminal law is one of two main branches of law (the body of law imposed by the state); the other is civil law.

In different times and places what has been considered a crime has varied widely. However, in the modern world there are certain acts such as treason, murder, robbery, assault, and rape that are almost universally regarded as crimes. Treason, or disloyalty to one's group, especially in time of war is perhaps one of the most universal and among the earliest acts to have been recognized as a public wrong.

In all modern civilized societies, murder is regarded as a crime. In ancient cultures and in some primitive societies that still exist, however, killing a human being was and is a relatively private matter to be dealt with by families or larger kinship groups. Deliberate killing such as infanticide, cannibalism, head hunting, or the killing of the very old is classified as murder in modern societies, but such practices were viewed as customary and acceptable by ancient cultures and even by some 21st-century tribes in remote parts of the world.

New laws or new interpretations of existing laws may make activities criminal that were once legal or, on the other hand, they may legalize acts that were once criminal. For example, the 18th Amendment to the United States Constitution, ratified on Jan. 29. 1919, prohibited the manufacture or sale of alcoholic beverages and the importing of them into the country. From 1920 until the amendment was repealed in 1933, something that had been legal in most parts of the United States had become a crime.

There are some acts, which are crimes in one country but not in another. For example, it is a crime to drink alcohol in Saudi Arabia, but not in Egypt. It is a crime to smoke marijuana in England, but not (in prescribed places) in the Netherlands. It is a crime to have more than one wife at the same time in France, but not in Indonesia. In general, however, there are quite a lot of agreements among states as to which acts are criminal. A visitor to a foreign country can be sure that stealing, physically attacking someone or damaging their property will be unlawful. But the way of dealing with people suspected of crime may be different from his own country.

It is societies acting through their governments that make the rules declaring what acts are illegal. Hence, war is not a crime. Although it is the most violent of human activities, it has not been declared illegal by governments or their agencies. But petty theft the stealing of a loaf of bread is a crime because the laws of most states and nations have said so.

A crime is defined as such by law. The principle of legality is the keystone of criminal law. The principle directs that laws defining offenses be clear and strictly interpreted. And it forbids the application of the law retroactively, meaning a law must have been in effect at the time the act was committed.

Legal systems traditionally do not allow double jeopardy, meaning prosecuting someone more than once for the same offense. Under the International Covenant on Civil and Political Rights, adopted by the UN General Assembly in 1966, no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. Member states may, however, implement legislation, which allows reopening of a case in the event that new evidence is found or if there was a fundamental defect in the previous proceedings.

All systems of law have statutes of limitation, or laws that restrict the length of time within which legal proceedings may be brought against a person. Such statutes are enacted to protect against stale claims after evidence has been lost, memories have faded, or witnesses have died or disappeared. The periods vary depending on the seriousness of the offense, in German law, for instance the periods range from three months for petty misdemeanors to 30 years for crimes involving a life sentence. In many countries, including the United Stales, there is no statute of limitations for certain serious crimes such as murder.

Most governments claim jurisdiction over the acts of their own citizens even when these acts have occurred abroad. Therefore, most countries decline any obligation to surrender their citizens to the jurisdiction of other countries. This is called a refusal to extradite. Extradition comes into play when a person charged with a crime under state statutes flees the state. Extradition from one state to another takes place on the order of the governor of the asylum state (the state where the accused is located). International extradition is more difficult and is governed in many cases by treaty. While most countries will extradite persons charged with serious crimes, some will not, others refuse to extradite for certain crimes.

1)What acts are universally regarded as crimes?

2)Express your attitude to the fact that war is not deemed a crime.

3)What is the essence of the principle of legality?

4)What is double jeopardy? Is its implementation acceptable?

5)Why do all systems of law have statutes of limitation?

6)Why do countries use refusal to extradite?

Task 1. Give examples other than those described in the text on the following issues:

1)an unlawful act which may be a criminal offence in one country and not in another;

2)an unlawful act which can be both a criminal offence and a civil wrong;

3)an act which is a crime in one country but not in another;

4)a state’s existing laws may make activities criminal that were once legal or, on the other hand, they may legalize acts that were once criminal.

TEXT 2. Read the text and get ready to discuss its main issues.

Ingredients of a Crime

In many legal systems it is an important principle that a person cannot be considered guilty of a crime until the state proves he committed it. The suspect himself need not prove anything, although he will of course help himself if he can show evidence of his innocence. The state must prove his guilt according to high standards, and for each crime there are precise elements which must be proven. In codified systems, these elements are usually recorded in statutes. In common law systems, the elements of some crimesare detailed in statutes; others, known as "common law crimes," are still described mostly in case law.

It is generally agreed that the essential elements of a crime are voluntary action or failure to act and a certain state of mind. These two fundamental elements to a crime are:

1) the criminal act itself (a physical element known as actus reus);

2) the criminal state of mind of the person when he committed the act (a mental element known asmens rea).

The actus reus of an offence means “the unlawful act”, but also incorporates other factors.

Itimplies conduct, circumstance and consequence(positive or negative). Failure to act includes not doing something an individual is required to do by law.

The basic maxim applicable to criminal law is: Actus non facitreum nisi mens sit rea, which means: an act does not make a man guilty of a crime unless his mind is also guilty.

Mens reaimplies mental elements like negligence, intention/knowledge, recklessness, special mental states. The mental element in a crime is that the person committing it usually acts purposely, knowingly, recklessly, or negligently. There are, however, exceptions. Bigamy, for instance, may be committed unintentionally when both people believe that they are free to marry but one party has not yet actually received a divorce.

Before a person can be convicted of a crime it is necessary for the prosecution to prove both elements, e.g.:

a)that a certain event or state of affairs which is forbidden by the criminal law has been caused by the person’s conduct;

b)that his conduct was accompanied by the necessary mens rea to establish the offence.

It is quite clear that the burden of proving these essential elements of any offence rests upon the prosecution who must prove the existence of both elements beyond reasonable doubt.

An unlawful intention may exist by itself; however, this is not punishable: the criminal law does not punish for guilty mind alone. An actus reus must be established in each case, if there is no actus reus there can be no crime.

In general, if the prosecution fails to prove either actus or mens, the court must decide there was no crime and the case is over. However, there are a small number of crimes for which no mens reaneed be proved.

There is a different definition of mens rea for each crime. In some cases doing nothing at all may be considered an actus reus, such as in the case, in which a child starved to death because his father did not feed him.

Task 2. Refer the following elements either to actus reus or mens rea:

conduct, intention, consequence, omission to act, passion, unfit to drive through drink of drugs, negligence, malice aforethought, knowledge, circumstance, recklessness, mental illness

actus reus / mens rea

Task 3. Describe a common situation where someone commits an illegal act but does not intend to:

1) where someone accidentally or unintentionally harms another person.

2) where a person possesses something illegal but does not know the nature of thesubstance.

3) where someone is acting on a mistaken set of facts.

Task 4.In each of these scenarios, mark in the chart if you think that the person had the actus reus (guilty act) and the mens rea (guilty mind) necessary to be found guilty of the crime. Remember that someone may still have the mens rea if they are wilfully blind (ignore the obvious).

Act / Mens Rea / Actus Reus
a) While browsing in a CD store, Rasheed ran into a friend from his old school. They decided to get a coffee. As they left the store, Rasheed forgot that he had a CD he was considering buying under his arm.
b) In line for a concert, a friend asked Chanice to hold her bag while she went to the bathroom. A drug dog stopped in front of Chanice. The police searched the friend’s bag and found a marijuana joint. Chanicewas charged with possession of a narcotic.
c) Sophie baby-sits the neighbour’s kids everyday after school, sometimes driving them to soccer in the family car. After dropping them off one day, she decides to watch their practice. Sophie leaves the dog in the car for a few hours even though it’s 35 degrees outside. Before the end of the game, someone walks by, notices the distressed dog, and calls the police.
d) Mao was charged with assault after he lost his temper in a restaurant. He felt the bill was unfair. He slammed his fist down on the table and a glass flew off, hitting a customer at the next table and cutting his cheek just below the eye.
e) Brandon was on his way into the beer store when a woman asked him if he would mind buying her a six-pack of beer while she stayed outside with her dog. He said sure and accepted her money. Once in line he thought that she looked a little young, but bought her the beer anyway.
f) It’s Hockey Night in Canada and the Leafs are playing the Senators. Darcy Tucker of the Leafs is looking to get back at Chris Neil of the Senators for a dirty body check in their last game. After a brief verbal exchange, the two players drop their gloves and start punching each other. When the referee notices Neil’s nose bleeding, he stops the fight. Neil is not seriously hurt but he sits out the rest of the period.
g) Carmen comes to work one Tuesday feeling really sick. She’s recovering from a particularly bad flu and, after a few hours at work, she decides she needs to go home because she’s really tired. Carmen gets into her car and starts driving but she’s having a hard time focussing on the road because she’s so tired. A police officer driving behind her notices she is weaving across driving lanes. Just before he stops her Carmen falls asleep at the wheel and drives into a ditch. Luckily, no one is seriously hurt.

TEXT 3. Read the text and answer the questions after it.

Defenses

If actus and menshave been proved, a defendant may still avoid guilt if he can show he has a defense — a reason the court should excuse his act. Different systems of law recognize different and usually limited sets of defenses. For example, English law sometimes allows the defense of duress — being forced to commit a crime because of threats that you or someone else will be harmed if you don't. Duress may be used as a defense against the charge of murder as a secondary party (helping the murderer), but is not available if the defendant is charged as the principal murderer.

Another defense is that of insanity. Insanity plea claim by a defendant implies non-responsibility for a crime due to mental problems (temporary or permanent). It is generally recognized that persons suffering from mental defects are not responsible for their actions. In most countries a person cannot be found guilty of a crime if in a doctor's opinion he cannot have been responsible for his actions because of mental illness. But this defense requires careful proof. If it is proven the defendant will not be sent to a prison, but instead to a mental hospital.

In most countries, being drunk is not treated as a mental incapacity. Russian law is especially hard on those who have committed offences while under the influence of alcohol or drugs. In other nations, by contrast, such offenses have been dealt with relatively lightly. In fact, an intoxicated person may not even know what he is doing and thus lacks mens rea. However, in many countries, there is a general principle that people who knowingly get themselves intoxicated must be held responsible for their acts. Consequently, intoxication is not a defense.

Nearly every system of law recognizes the defense of self-defense. The law recognizes that the use of even deadly force may be justified under some circumstances. Such special circumstances include cases of self-defense, including the use of force in defense of others, by law-enforcement agents, or in defense of property. In English law, a defendant can avoid guilt for injuring someone if he can convince the court that the force he used was reasonable to protect himself in the circumstances. In some countries, shooting an unarmed burglar would be recognized as self-defense, but in other, it might be considered unreasonable force.

The defense of “crime of passion, or killing in the heat of passion” is used in criminal law to describe an intensely emotional state of mind induced by a type of provocation that would cause a reasonable person to act on impulse or without reflection. A finding that a person who killed another acted in the heat of passion will mitigate murder to manslaughter under certain circumstances and may be a means of avoiding the severity of the death penalty. The type of provocation considered serious enough to bring a heat of passion offense varies slightly from one jurisdiction to another, although the usual test is reasonableness.