Define: Criminal Law

Quick Summary of Criminal Law

Criminal law or penal law is the group of laws which outlines the processes and penalties for crimes committed against the public authority and run counter to the public interest.

They also establish the processes for the police, courts and other parts of the legal system to operate.

Common cases of criminal law including felonies and misdemeanours such as robbery, murder, kidnapping and rape, as opposed to civil crimes perpetrated against one party such as medical malpractice, personal injury or breach of contract.

Criminal laws are established by criminal codes. If a defendant is prosecuted for a crime under criminal laws they must be prosecuted and found guilty beyond a reasonable doubt. The penalties from crimes, as outlined by criminal laws and procedural laws, are used to deter additional crime as well as punish the criminal for their actions. Restitution may also be ordered in some cases to restore the victims of the crime.

The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different jurisdictions whose common characteristic is the potential for unique and often severe impositions as punishment for failure to comply. Criminal punishment, depending on the offence and jurisdiction, may include execution, loss of liberty, government supervision (parole or probation), or fines. There are some archetypal crimes, like murder, but the acts that are forbidden are not wholly consistent between different criminal codes, and even within a particular code, lines may be blurred as civil infractions may give rise also to criminal consequences. Criminal law is typically enforced by the government, unlike civil law, which may be enforced by private parties.

Criminal Law History

The first civilizations generally did not distinguish between civil and criminal law. The first written codes of law were produced by the Sumerians. Around 2100–2050 BC, Ur-Nammu, the Neo-Sumerian king of Ur, enacted the oldest written legal code whose text has been discovered: the Code of Ur-Nammu. Another important early code was the Code Hammurabi, which formed the core of Babylonian law. Neither set of laws separated penal codes from civil laws.

The similarly significant Commentaries of Gaius on the Twelve Tables also conflated the civil and criminal aspects, treating theft or furtum, as a tort. Assault and violent robbery were analogized to trespass as to property. Breach of such laws created an obligation of law or vinculum juris discharged by payment of monetary compensation or damages.

The first signs of the modern distinction between crimes and civil matters emerged during the Norman Invasion of England. The special notion of criminal penalty, at least concerning Europe, arose in Spanish Late Scholasticism (see Alfonso de Castro), when the theological notion of God’s penalty (poena aeterna), which was inflicted solely for a guilty mind, became transfused into canon law first and, finally, into secular criminal law. The development of the state dispensing justice in a court clearly emerged in the eighteenth century, when European countries began maintaining police services. From this point, criminal law had formalised the mechanisms for enforcement, which allowed for its development as a discernible entity.

Criminal Sanctions

Criminal law is distinctive for the uniquely serious potential consequences of failure to abide by its rules. Every crime is composed of criminal elements. Capital punishment may be imposed in some jurisdictions for the most serious crimes. Physical or corporal punishment may be imposed, such as whipping or caning, although these punishments are prohibited in much of the world. Individuals may be incarcerated in prison or jail under a variety of conditions, depending on the jurisdiction. Confinement may be solitary. The length of incarceration may vary from day to day. Government supervision may be imposed, including house arrest, and convicts may be required to conform to particular guidelines as part of a parole or probation regimen. Fines also may be imposed, seizing money or property from a person convicted of a crime.

Five objectives are widely accepted for enforcement of the criminal law by punishments: retribution, deterrence, incapacitation, rehabilitation and restitution. Jurisdictions differ on the value to be placed on each.

• Retribution: Criminals ought to suffer in some way. This is the most widely seen goal. Criminals have taken improper advantage, or inflicted unfair detriment, upon others, and consequently, the criminal law will put criminals at some unpleasant disadvantage to “balance the scales.” This belief has some connection with utilitarianism. People submit to the law to receive the right not to be murdered, and if people contravene these laws, they surrender the rights granted to them by the law. Thus, one who murders may murder himself. A related theory includes the idea of “righting the balance.”
• Deterrence: Individual deterrence is aimed at the specific offender. The aim is to impose a sufficient penalty to discourage the offender from criminal behaviour. General deterrence aims at society at large. By imposing a penalty on those who commit offences, other individuals are discouraged from committing those offences.
• Incapacitation is designed simply to keep criminals away from society so that the public is protected from their misconduct. This is often achieved through prison sentences today. The death penalty or banishment have served the same purpose.
• Rehabilitation aims at transforming an offender into a valuable member of society. Its primary goal is to prevent further offences by convincing the offender that their conduct was wrong.
• Restitution: This is a victim-oriented theory of punishment. The goal is to repair, through state authority, any harm inflicted on the victim by the offender. For example, one who embezzles will be required to repay the amount improperly acquired. Restitution is commonly combined with other main goals of criminal justice and is closely related to concepts in civil law.

International Law

Public international law deals extensively and increasingly with criminal conduct that is heinous and ghastly enough to affect entire societies and regions. The formative source of modern international criminal law was the Nuremberg trials following the Second World War, in which the leaders of Nazism were prosecuted for their part in genocide and atrocities across Europe. In 1998, an international criminal court was established in the Hague under what is known as the Rome Statute. This is specifically to try heads and members of governments who have taken part in crimes against humanity. Not all countries have agreed to take part, including Yemen, Libya, Iraq, Israel and the United States.

United States

In the United States, criminal prosecutions typically are initiated by a complaint issued by a judge or by indictment issued by a grand jury. As to felonies in Federal court, the Fifth Amendment to the United States Constitution requires an indictment. The Federal requirement does not apply to the states, which have a diversity of practices. Three states (Connecticut, Pennsylvania, and Washington) and the District of Columbia do not use grand jury indictments at all. The Sixth Amendment guarantees a criminal defendant the right to a speedy and public trial, in both state and federal courts, by an impartial jury of the state and district wherein the crime was committed, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence. The interests of the state are represented by a prosecuting attorney. The defendant may defend himself pro se and may act as his own attorney if desired.

In most U.S. law schools, the basic course in criminal law is based upon the Model Penal Code and an examination of Anglo-American common law. Crimes in the U.S. that are outlawed nearly universally, such as murder and rape are occasionally referred to as malum in se, while other crimes reflecting society’s social attitudes and morality, such as drug prohibition and alcohol laws, are referred to as malum prohibitum.

England

Criminal law in England derives from a number of diverse sources. The definitions of the different acts that constitute criminal offences can be found in the common law (murder, manslaughter, conspiracy to defraud), as well as in thousands of independent and disparate statutes and, more recently, in supranational legal regimes such as the EU. As the law lacks the criminal codes that have been instituted in the United States and civil law jurisdictions, there is no unifying thread to how crimes are defined, although there have been calls from the Law Commission for the situation to be remedied. Criminal trials are administered hierarchically, from magistrates’ courts through the Crown Courts and up to the High Court. Appeals are then made to the Court of Appeal and finally to the House of Lords on matters of law.

Procedurally, offences are classified as indictable and summary offences; summary offences may be tried before a magistrate without a jury, while indictable offences are tried in a crown court before a jury. The distinction between the two is broadly between minor and serious offences. Under common law, crimes are classified as either treason, felony, or misdemeanour.

The way in which criminal law is defined and understood in England is less exact than in the United States, as there have been few official articulations on the subject. The body of criminal law is considerably more disorganised, so finding any common thread to the law is very difficult. A consolidated English Criminal Code was drafted by the Law Commission in 1989, but, though codification has been debated since 1818, as of 2007, it has not been implemented. Scotland has a completely separate legal system.

Selected Criminal Laws

Many, many laws are enforced by threat of criminal punishment, and their particulars may vary widely from place to place. The entire universe of criminal law is too vast to intelligently catalogue. Nevertheless, the following are some of the more well-known aspects of criminal law:.

Elements

The criminal law generally prohibits undesirable acts. Thus, proof of a crime requires proof of some act. Scholars label this the requirement of an actus reus or guilty act. Some crimes, particularly modern regulatory offences, require no more, and they are known as strict liability offences. Nevertheless, because of the potentially severe consequences of a criminal conviction, judges at common law also sought proof of an intent to do some bad thing, the mens rea or guilty mind. As to crimes of which both actus reus and mens rea are requirements, judges have concluded that the elements must be present at precisely the same moment and it is not enough that they occurred sequentially at different times.

Actus Reus

Actus reus is Latin for “guilty act” and is the physical element of committing a crime. It may be accomplished by an action, by a threat of action, or, exceptionally, by an omission to act. For example, the act of A striking B might suffice, or a parent’s failure to give food to a young child also may provide the actus reus for a crime.

Where the actus reus is a failure to act, there must be a duty. A duty can arise through contract, a voluntary undertaking, a blood relation with whom one lives, and occasionally through one’s official position. Duty also can arise from one’s own creation of a dangerous situation. Occasional sources of duties for bystanders to accidents in Europe and North America are good Samaritan laws, which can criminalise failure to help someone in distress (e.g., a drowning child).

An actus reus may be nullified by an absence of causation. For example, if a crime involves harm to a person, the person’s action must be the but-for cause and proximate cause of the harm. If more than one cause exists (e.g., harm comes at the hands of more than one culprit), the act must have “more than a slight or trifling link” to the harm.

Causation is not broken simply because a victim is particularly vulnerable. This is known as the thin skull rule. However, it may be broken by an intervening act (novus actus interveniens) of a third party, the victim’s own conduct, or another unpredictable event. A mistake in medical treatment typically will not sever the chain unless the mistakes are “so potent in causing death.”

Mens Rea

The English fictional character Robin Hood had the mens rea for robbing the rich, despite his good intentions of giving to the poor.
Mens rea is another Latin phrase, meaning “guilty mind.” A guilty mind means an intention to commit some wrongful act. Intention under criminal law is separate from a person’s motive. If Mr. Hood robs from rich Mr Nottingham because his motive is to give the money to poor Mrs Marion, his “good intentions” do not change his criminal intention to commit robbery.

A lower threshold of mens rea is satisfied when a defendant recognises an act is dangerous but decides to commit it anyway. This is recklessness. For instance, if C tears a gas metre from a wall to get the money inside and knows this will let flammable gas escape into a neighbour’s house, he could be liable for poisoning. Courts often consider whether the actor did recognise the danger or, alternatively, ought to have recognised a risk. Of course, a requirement that only one ought to have recognised a danger (though he did not) is tantamount to erasing intent as a requirement. In this way, the importance of mens rea has been reduced in some areas of criminal law.

Wrongfulness of intent may also vary the seriousness of an offence. A killing committed with specific intent to kill or with conscious recognition that death or serious bodily harm will result would be murder, whereas a killing effected by reckless acts lacking such consciousness could be manslaughter. On the other hand, it does not matter who is actually harmed by a defendant’s actions. The doctrine of transferred malice means, for instance, that if a man intends to strike a person with his belt but the belt bounces off and hits another, mens rea is transferred from the intended target to the person who actually was struck.

Strict Liability

Strict liability can be described as a “but for” cause of harm on part of the defendant. “But for” the action or product that caused the harm, nothing bad would have happened. Not all crimes require bad intent, and alternatively, the threshold of culpability required may be reduced. For example, it might be sufficient to show that a defendant acted negligently rather than intentionally or recklessly. In offences of absolute liability other than the prohibited act, it may not be necessary to show anything at all, even if the defendant would not normally be perceived to be at fault. Most strict liability offences are created by statute, and often they are the result of ambiguous drafting unless legislation explicitly names an offence as one of strict liability.

Fatal Offences

A murder, defined broadly, is an unlawful killing. Unlawful killing is probably the act most frequently targeted by criminal law. In many jurisdictions, the crime of murder is divided into various gradations of severity, e.g., murder in the first degree, based on intent. Malice is a necessary element of murder. Manslaughter is a lesser variety of killing committed in the absence of malice, brought about by reasonable provocation, or diminished capacity. Involuntary manslaughter, where it is recognised, is a killing that lacks all but the most attenuated guilty intent: recklessness.

Settled insanity is a possible defence.

Personal Offences

Many criminal codes protect the physical integrity of the body. The crime of battery is traditionally understood as unlawful touching, although this does not include everyday knocks and jolts to which people silently consent as the result of their presence in a crowd. Creating a fear of imminent battery is an assault and may also give rise to criminal liability. Non-consensual intercourse, or rape, is a particularly egregious form of battery.

Property Offences

Property often is protected by criminal law. Trespassing is unlawful entry onto the real property of another. Many criminal codes provide penalties for conversion, embezzlement, and theft, all of which involve deprivations of the value of the property. Robbery is theft by force.

Participatory Offences

Some criminal codes criminalise association with a criminal venture or involvement in criminality that does not actually come to fruition. Some examples are aiding, abetting, conspiracy, and attempt.

Defences

There are a variety of conditions that will tend to negate elements of a crime (particularly the intent element) that are known as defences. The label may be appropriate in jurisdictions where the accused may be assigned some burden before a tribunal. However, in many jurisdictions, the entire burden to prove a crime is on the government, which also must prove the absence of these defences where implicated. In other words, in many jurisdictions, the absence of these so-called defences is treated as an element of the crime. So-called defences may provide partial or total refuge from punishment.

Insanity

Insanity or mental disorders (in Australia and Canada) may negate the intent of any crime, although it pertains only to those crimes having an intent element. A variety of rules have been advanced to define what, precisely, constitutes criminal insanity. The most common definitions involve either an actor’s lack of understanding of the wrongfulness of the offending conduct or the actor’s inability to conform the conduct to the law. If one succeeds in being declared “not guilty by reason of insanity,” then the result frequently is treatment in a mental hospital, although some jurisdictions provide the sentencing authority with flexibility. As further described in criminal defence articles available online,.

Automatism

Automatism is a state where the muscles act without any control from the mind or with a lack of consciousness. One may suddenly fall ill, go into a dream-like state as a result of post-traumatic stress, or even be “attacked by a swarm of bees” and go into an automatic spell. However, to be classified as an “automaton,”  there must have been a total destruction of voluntary control, which does not include a partial loss of consciousness as the result of driving for too long. Where the onset of loss of bodily control was blameworthy, e.g., the result of voluntary drug use, it may be a defence only to specific intent crimes.

Intoxication

In some jurisdictions, intoxication may negate specific intent, a particular kind of mens rea applicable only to some crimes. For example, a lack of specific intent might reduce murder to manslaughter. Voluntary intoxication nevertheless often provides basic intent, e.g., the intent required for manslaughter. On the other hand, involuntary intoxication, for example, by punch spiked unforeseeably with alcohol, may give rise to no inference of basic intent.

Mistake

I made a mistake” is a defence in some jurisdictions if the mistake is about a fact and is genuine. For example, a charge of battery on a police officer may be negated by the genuine (and perhaps reasonable) mistake of the fact that the person battered was a criminal and not an officer.

Self-Defence

Self-defence is, in general, some reasonable action taken for the protection of oneself. An act taken in self-defence is often not a crime at all; no punishment will be imposed. To qualify, any defensive force must be proportionate to the threat. The use of a firearm in response to a non-lethal threat is a typical example of disproportionate force.

Duress

One who is “under duress” is forced into an unlawful act. Duress can be a defence in many jurisdictions, although not for the most serious crimes of murder, attempted murder, being an accessory to murder, or, in many countries, treason. The duress must involve the threat of imminent peril of death or serious injury, operating on the defendant’s mind and overbearing his will. Threats to third parties may qualify. The defendant must reasonably believe the threat, and there is no defence if “a sober person of reasonable firmness, sharing the characteristics of the accused” would have responded differently. Age, pregnancy, physical disability, mental illness, and sexuality have been considered, although basic intelligence has been rejected as a criterion.

The accused must not have foregone some safe avenue of escape. The duress must have been an order to do something specific so that one cannot be threatened with harm to repay money and then choose to rob a bank to repay it. If one puts himself in a position where he could be threatened, duress may not be a viable defence.

Disclaimer

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 11th April, 2024.