Criminal law
Criminal law is the body of law that relates to crime. The purposes of criminal law are to protect individuals and property from harm, to preserve order and to punish those who breach these rules.[1] Crime is a social phenomenon and definitions are created and maintained by each society. Consequently, offences and processes for dealing with offenders vary according to jurisdiction.[2]
Elements of an offence
Generally in traditional legal systems, an offence (except for strict liability offences) requires at least two elements: an action and an intention. The Latin maxim actus non facit reum nisi mens sit rea[note 1] means that actions per se do not constitute guilt unless accompanied with a mens rea (that is, they are done with a guilty mind).[3] Therefore, some criminal offences require both an intention as well as a physical act (or omission) to be present to constitute the commission of an offence. However, even if both of these elements are present in an offence, a defense may mean that the action is not criminal. This requirement of an actus reus accompanied with a mens rea can be seen, for example, in the Mount Augustan offence of first degree intentional griefing, where the prosecution must prove: (1) the accused destroyed property; (2) this destruction was wilful; and (e) the accused had an intention to cause destruction.[note 2] Typically, the inclusion of a mens rea element allows more blame to be ascribed to the agent in contrast to actions that were reckless or accidental.[4]
However, most offences created by nations tend to be strict liability offences. That is, they do not have a mens rea element to be proven by the prosecution. For example, the Mount Augustan offence of murder does not require the agent to have any intention to kill or seriously injure the deceased.[note 3] Indeed, the Mount Augustan criminal code does not contain any distinction between intentional and unintentional killings such as murder or manslaughter.
Rights of accused
In most jurisdictions, the accused is afforded a number of rights. Most commonly, these rights include the right to innocence, the right to a speedy trial, the right to a fair trial and the right to not be punished unless the punishment is afforded by law.[5] In some jurisdictions, rights also extend to prevent discrimination against immutable characteristics, such as gender, ethnicity or sexuality.
Notes
- ↑ Literally "the act is not culpable unless the mind is guilty".
- ↑ The text of the offence, as at 24 February 2020, being "Except as provided in subsection 2, the willful destruction of property with the intent to cause destruction".
- ↑ The text of the offence, as at 24 February 2020, being "The willful killing of another individual without their consent and not in self-defense or in the effort to pearl or kill a griefer". Cf Penal Code 2018 (Gabon) s 67 (definition of murder) which requires (1) an unlawful killing and (2) an intention to kill or do grievous bodily harm.
References
- ↑ Martin, Jacqueline (2014). Criminal Law. Oxfordshire: Routledge. p. 1. ISBN 9781315871677.
- ↑ Anyangwe, Carlson (2015). Criminal Law: The General Part. Bamenda: Langaa. p. 3. ISBN 9789956762781.
- ↑ Martin, Jacqueline (2014). Criminal Law. Oxfordshire: Routledge. p. 5. ISBN 9781315871677.
- ↑ Malle, B. F. a& Nelson, S. E. (2003). Judging mens rea: The tension between folk concepts and legal concepts of intentionality. Behavioral Sciences and the Law, 21(5), 563–580. p. 570.
- ↑ Martin, Jacqueline (2014). Criminal Law. Oxfordshire: Routledge. p. 6. ISBN 9781315871677.
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