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General Principles of Criminal Law
Abstract
PRIOR to examination of the specific procedures involved in criminal law, several basic philosophical principles that affect all the proceedings in a criminal case should be noted.Presumption of Innocence
One basic assumption that is made at all stages of a criminal case is that the accused is presumed innocent until a verdict is given by a jury (or a judge in the case of a nonjury trial). While most persons charged with a criminal offense eventually plead guilty either to the offense as charged or to a lesser one, until such time as the final disposition of the case is made, the "accused" is just that; he is not a "criminal." This assumption is responsible for most of the constitutional guarantees regarding the rights of an accused. The founding fathers who wrote the Bill of Rights wished to ensure that the rights of persons accused were protected, and that
... To imply anything beyond this is to create legal fallacy rather than legal reality; until someone can defeat Wittgenstein's narrative, he shall always remain glorified. 90 Ibid 91 (n22) 92 (n33) 21 93 (n33) 9 ...
... The good news is that public opinion towards prisoner enfranchisement does appear to be improving since the Hirst judgment when one poll found that 74% of the UK population were opposed to prisoners getting the vote. 92 Furthermore, public opinion still remains in favour of the death penalty as an appropriate response to some crimes but there does not appear to be any realistic political move to reinstate capital punishment. 93 ...
... accessed January 3 2014. 92 Easton (n 35) 227. 93 Rebecca Cafe, 'Does the public want the death penalty brought back?' BBC (4 August 2011) <http://www.bbc.co.uk/news/uk-14402195> accessed 6 January 2014. ...
... On this note, section 1 of the Iraqi E-signature and E-transactions Act 2012 defines 'electronic means' as "hardware or equipment or power tools or magnetic, optical, electromagnetic, or any other similar means used to create processing and information exchange and storage". 11 In addition, section 1 of the Oman E-transactions Act 2008 defines 'electronic' as "any kind of means of modern technology with electric or digital or magnetic or wireless or optical or electromagnetic or photic or any other means of equivalent nature. 12 It is obvious that the meaning of electronic means in Iraqi and Oman law refers to any devices or means that may connect to technology such as electrical, digital, magnetic, wireless, optical or electromagnetic or any other similar features. ...
... Criminal Behaviour in Cybercrime that Are Similar to Conventional Crimes Section 2 of the Penal Code states that criminal liability is personal, any crime and punishment must be defined 10 Ibid. 11 Regarding criminal threat, section 25 of the Penal Code stated the legislator has the power to criminalise any acts that are considered as a threat since it uses flexible terms which could be a subject to interpretation in several forms, even though the provision does not specify means or methods of committing the crime. The criminal threat might be oral or written, or using the modern technology like computer and Internet. ...
Criminal legality is a principle that promotes justice and stability. In Yemen, a judge cannot expand the interpretation of any existing laws to criminalise new actions that are not provided by the legislature as it is expressly prohibited by the Yemeni Constitution 1990 as well as the Yemeni Penal Code 1994. Unfortunately, cybercrime is one of the new offences that are not specifically regulated by Yemeni laws. Since cybercrime is one of the greatest threats facing international community, this paper attempts to examine the criminal legality affecting cybercrime in Yemen. This study is a purely doctrinal legal research and data are collected from both primary and secondary sources like statutes, books, scholarly articles, legal doctrines and many others. To sum up, though the existing laws generally cover traditional offences that are committed on the Internet such as online pornography and online defamation, serious issues arise with regard to new offences that can only be committed in the cyber world such as hacking and spamming as they are nowhere provided in the Yemeni legal framework.
... al., 2012). These are well-established concepts of necessity in continental criminal law doctrine (see Roxin, 2003;Jescheck & Weigend, 1996;Ashworth & Holder, 2013), where conduct that could have otherwise been classified as criminal, in certain circumstances is either justified or excusede.g., a non-licensed student of medicine performs an emergency abortion on a woman outside a hospital setting and not in accordance with medical standards. However, the procedure was absolutely necessary to save the lives of both the woman and the baby and there was no time to wait for medical assistance. ...
Medicine is a risky profession where medical professionals have a duty to do anything in their power to help their patients. However, what if a doctor makes a grievous mistake that leads to the death but could have been avoided? Are moral responsibility and apology to patients’ family enough? Should we impose sanctions (civil or criminal) on the doctor who negligently caused the patients’ death? To answer this questions, we present arguments against criminalisation of medical error, where the strongest arguments are uncertainty of medical standards, counterproductive criminalisation seen in defensive medicine, using criminal law as the last resort, and the argument of doctor’s immunity. On the other hand, arguments for criminalisation are obvious negligent treatment with serious consequences, general prevention of future negligent conduct, sanitation of a medical system gone wrong, and the argument of privileged criminal offence. Our conclusion is that criminal law repression of medical malpractice or medical error is justified, however only in the most obvious cases of undisputed negligence or carelessness of a doctor, where his inappropriate conduct has led to a serious deterioration of health of a patient, which could have easily been avoided, if a doctor respected the practice and rules of medical science and profession.
... Body and physical integrity of a person is a typical disposable virtue, so there can be no doubt that anyone (except for children, mentally disabled persons or those with diminished mental capacity) can freely consent to cooperate in sport activity with full knowledge that sport activity could lead to potential injury. The consent of the injured party is a construct of modern criminal law which, when given appropriately (expressed voluntarily, unequivocally and in an appropriate formal form when needed), excludes the material unlawfulness of the criminal offence (Ashworth & Holder, 2013). Jescheck & Weigend (1996) define consent as a situation where the alleged victim or victim of a crime agrees with the disputed behaviour at the time of the execution. ...
The authors addressed the topic of the development of sports law in the Republic of Slovenia, both from historical and analytical perspectives. A new Sports Act (ZŠpo-1) was recently adopted in Slovenia in order to replace a previous – and somewhat outdated – Sports Act (ZSpo). This framework act regulates basic requirements for the organisation and implementation of sports activities. The article includes a presentation of the most important changes that affect the organisation of sports in Slovenia. Other issues related to the area of sports law can generally be solved by applying general provisions (e.g. from Code of Obligations, Criminal Code and other fundamental acts). In addition to the historical development of Sports Act, the article also includes the analysis of some of the most important general acts that can be applied to sports-related issues.
... There is also no criminal offence if one publishes recordings with sexual content of another person if that person agrees and gives his consent to publication. The consent of the injured party is a construct of modern criminal law which, when given appropriately (expressed voluntarily, unequivocally and in an appropriate formal form) excludes the material unlawfulness of the criminal offence (Ashworth & Holder, 2013). Bavcon (2009) defines the consent as a situation where the alleged victim or victim of a crime agrees with the disputed behaviour at the time of execution (see also Jescheck & Weigend, 1996). ...
... There is also no criminal offence if one publishes recordings with sexual content of another person if that person agrees and gives his consent to publication. The consent of the injured party is a construct of modern criminal law which, when given appropriately (expressed voluntarily, unequivocally and in an appropriate formal form) excludes the material unlawfulness of the criminal offence (Ashworth & Holder, 2013). Bavcon (2009) defines the consent as a situation where the alleged victim or victim of a crime agrees with the disputed behaviour at the time of execution (see also Jescheck & Weigend, 1996). ...
... A series of legal reforms were propounded by social reformers such as Beccaria and Rousseau that established the foundations of modern legal justice system. The reforms that led to the codification of the new laws, creation of the modern police forces and the prison systems were radical innovations that also changed fundamental assumptions about criminal behavior (Brantingham & Brantingham, 1991; Hall, 1960). The belief that criminals are different from 'normal' changed and criminal behavior came to be explained in terms of social, economic, political, demographic and psychological factors. ...
The reasons why people commit crime willfully has been a matter of great concern. However, most theories of criminal behavior are grounded in western society and culture. Attempts to explore the causes of crime in the Indian context and situation have been sporadic and generally non-empirical in nature. This research explores the causes for criminal motivations in India. The paper describes and analyzes the major reasons of criminality amongst convicted offenders. Results suggest that growing urbanization, breakdown of extended family system and lure of consumerism and influence of criminal associates are some of the main reasons for these people to fall into a life of criminality.
المستخلص ان القانون الجنائي هو من القوانين الفلسفية التي تضم كماً هائلاً من المصطلحات والنظريات القانونية والتي مرت بمراحل مختلفة، فكرة الاحتمال في القانون الجنائي التي هي من المواضيع الصعبة والمثيرة للجدل، الاحتمال هو فكرة فلسفية يستمد أساسها المنطقي من النظريات الفلسفية وايجاد العلاقة بينها وبين طبيعة السلوك الانساني والمنطق القانوني، ان نظرية الاحتمال في الفلسفة والمنطق، هي الاتجاه الذي أخذ به فقهاء القانون في الفلسفة الجنائية، نظرية القصد الجنائي إحدى صور القصد الجرمي والمبني على دمج نظرية القصد مع نظرية الاحتمال ومن النظريات المهمة في القانون الجنائي وخاصة للتفرقة بين الجرائم العمدية وغير العمدية وأساس تحمل الجاني المسؤولية الجزائية، وباعتبار ان هناك صلة نفسية بين الجاني وماديات الجريمة، وان أساس تجريم القصد الاحتمالي بناءً على الاحتمال، من المواضيع المهمة والمبهمة حيث هناك الكثير من النظريات التي طرحت في هذا المجال لتحديد العلاقة بينها وبين الاحتمال، وكذلك موقف الفقه الغربي والدول العربية ولكل منهم وجهة نظر مختلفة وبالرغم من ان لكل طائفة من الفقهاء له مبرراته ولكن تبقى الغاية الرئيسة وهو حماية الحقوق والمصالح المحمية في القانون وعدم افلات الجاني من المسؤولية الجنائية. كلمات مفتاحية: القانون الجنائي، الاحتمال، القصد الجنائي، الفلسفة الجنائية، الجرائم العمدية، الجرائم غير العمدية، المسؤولية الجزائية.
The author studies the problems of enforcing legislation on penalizing extortion connected with the modus operandi of the crime. The legislation does not fully cover new methods of committing crimes through the use of software, and also some old, not very common ones. Court practice materials and theoretical publications studied by the author allowed him to state that the current edition of Art. 163 of the Criminal Code of the Russian Federation does not encompass all types of threats that could accompany the demands for other peoples property (for example, a threat to block the access to computer information or commit other publicly dangerous acts provided for in the criminal legislation). The use of ransomware is becoming more common practically all over the world. The article enumerates all ways of committing a crime that could constitute corpus delicti of extortion, but in practice they are often classified under other Articles of the CC of the RF, and a unified approach to law enforcement is lacking. Such ways of committing a crime include threats of unlawful criminal prosecution or staging a crime scene. The presented research is based on the analysis of foreign legislation for counteracting extortion. Besides, the author identified various approaches to compiling the list of extortion threats: in some countries the laws include general assessment features, while in others they include detailed casuistic features. The legislations of Russia and the CIS countries contain a closed list of threats most typical for extortion, which is a combined approach. However, new and non-typical threats are not included in the list, which could be seen as a drawback of the law. The author comes to the conclusion that Russian legislation could include the feature of a threat to commit another crime (if blackmail demands are made), which will provide an opportunity to widen the sphere of application for the criminal law norms. If the proposed amendments are adopted, they will bridge the gap in law that allows the extortionists to avoid criminal liability.
After briefly sketching an historical account of criminal law that emphasizes its longstanding reach into social, commercial and personal life outside the core areas of criminal offenses, this paper explores why criminal law theory has never succeeded in limiting the content of criminal codes to offenses that fit the criteria of dominant theories, particularly versions of the harm principle. Early American writers on criminal law endorsed no such limiting principles to criminal law, and early American criminal law consequently was substantively broad. But even with the rise of theories in the mid-nineteenth century that sought to limit criminal law's reach, codified offenses continued to widely and deeply regulate social life and exceed the limits of those normative arguments. This essay suggests that this practical failure of criminal law theory occurred because it was never adopted by an institutional actor that could limit offense definitions in accord with normative commitments. Legislatures are institutionally unsuited to having their policy actions limited by principled arguments, and courts passed on the opportunity to incorporate a limiting principle for criminal law once they began, in the Lochner era, actively regulating legislative decisions through Constitutional law. The one avenue through which criminal law theory has had some success in affecting criminal codes is through the influence of specialized bodies that influence legislation, especially the American Law Institute advocacy of the Model Penal Code. But the institutional structure of American criminal law policymaking permits an unusually small role for such specialized bodies, and without such an institutional mechanism, criminal law theory is likely to continue to have little effect on actual criminal codes.
There is now a broad literature on how states have attempted to implement the Rome Statute of the International Criminal Court into their domestic legal orders, and the problems that they face translating international criminal law principles into domestic criminal regimes. However, this body of work tends to suffer from two limits. First, much of the academic focus on domestic implementation has been restricted to the special part of the criminal law, downplaying the importance of international criminal law's general part. Second, scholarly analysis tends to examine the issue of implementation from the perspective of states, loosing site of the impact of (non)implementation on the international system.This working paper seeks to remedy both of these shortfalls by examining the theoretical problems raised when the general principles of criminal law contained in the Rome Statute are "misaligned" with the general principles of individual states. These difficulties are examined both from the perspective of states - where misalignment raises questions about complementarity and the duty to prosecute - and the international system as a whole. In the latter case, misaligned general parts raise serious questions about both the distribution of responsibility for prosecuting core crimes, and the ability for international criminal tribunals to fulfill many of their purported goals.As compared to misalignment in the special part of international criminal law, general part differences present particularly intractable problems for both states and international institutions. Absent any easy solution to problems of misalignment, actors in the field of international criminal law ought to recognize the limits to the project of international criminal justice that general part misalignment represents.
According to a famous maxim, ignorance or mistake of law is no excuse. This maxim is supposed to represent both the standard and the proper rule of law. In fact, this maxim should be qualified in both respects: ignorance and mistake of law sometimes are, and (perhaps even more often) should be, excused. But this dual qualification only reinforces the fundamental and ubiquitous assumption which underlies the discussions of the subject, namely, that the only ground of exculpation relevant to ignorance or mistake of law is excuse due to lack of (sufficient) culpability. The article challenges this consensus. I argue that, according to the best conception of justification, ignorance and mistake, including ignorance and mistake of law, could be justified. Generally, ignorance and mistake are justified when based on a rational analysis of the information the agent has and should have. The conceptual possibility of justified ignorance or mistake is demonstrated mainly with respect to ignorance or mistake of law due to reliance on the guidance of public officials or private lawyers.
Philosophy is rife with intractable moral dilemmas. We propose that these debates often exist because competing psychological systems yield different answers to the same problem. Consequently, philosophical debate points to the natural fault lines between dissociable psychological mechanisms, and as such provides a useful guide for cognitive neuroscience. We present two case studies from recent research into moral judgment: dilemmas concerning whether to harm a person in order to save several others, and whether to punish individuals for harms caused accidentally. Finally, we analyze two features of mental conflict that apparently contribute to philosophical discord: the insistence that one answer to a problem must be correct ("non-negotiability") and the absence of an independent means of determining the correct answer ("non-adjudicability").
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