S1 & 2: Overview & Source of Law

Question 1

Three fundamental public features of CL are:

Answer 1

1. Crime as a public wrong.
2. Proceedings are brought by a public authority (the State).
3. Public censure through State punishment: When someone is punished the State are sending a message to the society.

Question 2

Functions of CL:

Answer 2

• Guidance on prohibited conduct.
• Protection of individuals and society from harm.
• Condemnation (censure/stigma) of wrongful conduct.
• Punishment of crime perpetrators (key distinguishing aspect of CL).

Question 3

Five major principles of criminalisation:

Answer 3

1. Minimalist principle: CL should be used ultima ratio = Should be used as a last result as the consequence is intrusive.
2. Individual autonomy principle: No paternalistic CL = Exists to limit CL.
3. Welfare principle: CL to protect collective principles. Balancing individual autonomy and welfare.
4. Harm principle: “Do no harm”. Most accredited principle. We should only use CL to prevent harm.
5. Morality principle: Morality as a criterion for criminalisation (Mala in se vs. Mala prohibita).

Question 4

Inquisitorial v. Adversarial system:

Answer 4

Inquisitorial: CIVIL LAW: Whole procedural power it centralised in the Judge (evidence, examining witnesses, deciding the case = Protagonist of the case).

Adversarial: COMMON LAW: Competitive game between defendant and claimant/prosecutor. Judge has a passive role, kind of like a referee. Everything is in the hands of the two parties. Judge is a mere listener, doesn’t even ask questions, judge resolves questions of law.

Question 5

Elements of criminal liability (which are found in criminal norms):

Answer 5

1. Criminal Act/Actus reus.
2. Guilty Mind/Mens rea (Exception: Strict liability). Also called the intention.
3. Absence of defences (Justification and excuses).

Question 6

General aims/criteria of sentencing and punishment:

Answer 6

1. Retribution: To give back to perpetrators what they deserve. Looks at the past.

(2nd, 3rd and 4th look at future behaviour = Utilitarian measure).
2. Deterrence: General: Punishment is meant to give an example. Special: Punishment is a mean to prevent the same person from committing the same crime again or another crime in the future.
3. Incapacitation: Depriving an individual from their physical capacity of committing another crime. E.g., Removing an individual from society and putting them into prison.
4. Rehabilitation: Getting a felon ready to introduce themselves back into society.

Question 7

Two types of punishment: Quasi-punitive & strictly-punitive

Answer 7

• Quasi punitive: Probation; Monetary sanctions (fines); Community sentences (community service) and other non-custodial measures (e.g., restorative justice).
• Strictly punitive: Imprisonment and death penalty.

Question 8

Three types of trials in the US:

Answer 8

• Bench trial: The judge decides on guilt, questions of law and sentencing.
• Jury trial: The Jury decides on guilt and Judge decides questions of law and sentencing.
  o It’s divided into two trials: One stage is the guilty phase where the judge is only a referee.
  o If convicted, then a second trial will occur where the sentencing phase is chosen by the judge.
  o In death penalty cases, jury chooses both.
• Death penalty trial (Exception!!!): Jury involved in both guilty and sentencing.