Introduction Flashcards
Define criminal law
Criminal law is the branch of national law that defines certain forms of human conducts as crimes and provides for the punishment of those persons with criminal capacity who unlawfully and with a guilty mind commit a crime.
What does Section 35 of the Constitution deal with?
Constitutional rights for arrested, detained and accused persons.
What role does the victim play in criminal law?
Although the victim of the crime committed typically has little involvement in the actual criminal trial, the influence of victim impact statements when determining a sentence and passing judgment has increased internationally.
What are three ways in which lawyers may deal with the moral dimensions of representation?
1) moral dialogue
2) refusal to assist
3) qualified representation
Elaborate more on 1) moral dialogue
Just as one would discuss the financial aspects of representation, so too should lawyers engage with their clients concerning the moral implications of their representation. It is a lawyers duty to provide less harmful or immoral alternatives to their client, whilst still representing their best interests. However, such discussion costs money and power imbalances imply that the lawyers’ views will always take precedence. As such, one needs to find a balance when wishing to raise a conscientious objection.
Elaborate more on 2) refusal to assist
It is tough to do the right thing. Some would argue that defending a client who you think is guilty would be immoral. Others would argue that everyone is entitled to a free trial. Consequently, there is a strong movement in favour of allowing attorneys to refuse to represent clients for moral reasons. However, only on condition that they find a suitable alternative lawyer to represent their client’s needs. The right to refuse assistance does not entail the right to withdraw.
Elaborate more on 3) qualified representation
A lawyer is able to find alternative means to reach the desired ends of their clients. Lawyers are not required to do exactly what their client tells them and, in some instances, they may even withhold immoral information that may in fact benefit their client.
When may a lawyer turn a client away?
A client may be turned away due to lack of competence in a particular field of law, or for logistical reasons i.e. caseload too high.
What is the purpose of punishment in criminal law?
The criminal system in South Africa is penal. Thus, minimum sentences for specific crimes do exist. The main forms of punishment include imprisonment, monetary fines, correctional supervision and community service. These are emphatic infringements on ones ordinary rights to dignity and property. The reason that the state is tasked with this duty is so as to prevent vigilante justice and break the cycle of vengeance. Furthermore, it is designed to regulate society to prevent any deliberate detriment to the collective wellbeing of all citizens. The Courts are tasked with assigning punishment after conviction.
What are the three purposes of criminal law?
a) deterrance
b) retribution
c) rehabilitation
Elaborate more on a) deterrance
A sentence is supposed to deter both individuals and groups from committing crimes. It assumes that the offender/would-be-offender makes a rational calculation as to whether they will commit the crime, considering the possibility of a criminal sentence.
Elaborate more on b) retribution
Based on a ‘just desserts’ theory of punishment. It suggests that criminal punishment serves as vindication/revenge/an eye for an eye.
Elaborate more on c) rehabilitation
The punishment is designed to cure the offender of their criminal impulse.
How is sentencing determined under the common law?
For common law crimes, the courts use the Zinn triad when making a determination as to the severity of a criminal sentence. The factors that they ought to consider include:
- the crime
- the criminal
- the interests of society (not what society wants, rather what would best serve their collective interest)
How is sentencing determined under statute?
The Criminal Law Amendment Act 51 of 1997 introduced statutorily prescribed minimum sentences for certain offences. However, not every crime has its sentence determined by the Mandatory Minimums Act. The reason for legislating mandatory minimum sentences is that it sought to improve consistency in sentences for the same/similar crimes. Section 51 sets the different minimums for offences contained in Schedule 2, and s51(3) creates the discretion available to the court in imposing the sentence.
