Introduction to Criminal Law

Introduction & Nature of Criminal Law

• Criminal law is a public law area addressing conduct prohibited due to its conflict with societal interests.
• It is a body of state-made rules that harmonize relations between people and establishes criminal liability and responsibility.
• Criminal law pinpoints specific crimes and their elements and possible defenses for the accused

What is a Crime?

• Crime or offense is an illegal act, omission, or event that may also be a tort, breach of contract, or trust.
• The offender is prosecuted by the state if detected and the police decide to prosecute, and if found guilty, is punished and may be ordered to compensate the victim.
• Crime definition differs among people, lawyers, and administrators of justice consider crime an illegal act, social scientists equate crime with behaviors injurious to society, religious people link crime to sin, while others connect falsehood with crime.
• The prevalent approach defines crime as acts deviating from rules valued by the dominant segment of society.
• Identifying a crime involves checking if an act contains all definitional ingredients.

A crime is a Public Wrong

• Criminal actions involve conduct against the entire community, not just the individual.
• Enforcement is a state responsibility, with the DPP conducting criminal prosecutions in the public interest.
• Crimes are wrongs that judges or parliament deem injurious enough to warrant criminal procedure.
• Public condemnation alone does not make an act criminal without statutory enactment.

A Crime as a Moral Wrong

• Common law saw crimes as immoral acts deserving punishment.
• Early offenses were limited to outrageous and immoral acts like murder, robbery, or rape.
• The Report of the Departmental Committee on Homosexual Offences and Prostitution (Wolfenden Report- 1957) raised the issue of immorality and criminality.
• Homosexual activity between males was illegal, under the Criminal Law Amendment Act 1885
• The committee recommended that ‘homosexual behavior between consenting adults in private should no longer be a criminal offence'.
• Lord Devlin (1965) argues that public morality keeps society together and must be protected.
• Shaw vs. DPP [1962] AC 220: The House of Lords effectively created a new crime related to corrupting public morals, which Lord Reid dissented from, arguing Parliament should be the one to make the decision.
• Knuller (Publishing, Printing and Promotions) Ltd vs. DPP [1973] AC 435: The House of Lords affirmed that only Parliament can create new offenses.

Criminal Acts

• Criminal acts must be prohibited and carry a penalty.
• Lord Atkin stated that criminal law involves acts or omissions prohibited under penal provisions by state authority, discernible not by intuition but by whether the act is prohibited with penal consequences.

Classification of Crimes

• Crimes are classified in different ways.

Felonies vs. Misdemeanors

• Under section 4 of the Penal Code, a felony is an offense declared by law to be a felony or punishable without proof of previous conviction, with death, or with imprisonment for three years or more.
• A misdemeanor is an offense not classified as a felony, punishable by imprisonment of less than three years.

Cognizable vs. Non-Cognizable Offenses

• A cognizable offense, as per section 2 of the Penal Code, allows a police officer to arrest without a warrant (e.g., serious offenses like felonies).
• A non-cognizable offense requires a warrant for arrest.

Capital vs. Ordinary Offenses

• Capital offenses lack a statutory definition but involve a death sentence (e.g., treason, robbery with violence, murder), while ordinary/non-capital offenses do not involve the death penalty.

Mala in se vs. Mala Prohibita

• Mala in se crimes are inherently wrong or evil, while mala prohibita crimes are wrong because statutes prohibit them. Crimes endangering lives are generally mala in se

Common Law Crimes vs. Statutory Crimes

• Common law crimes are created by courts via judicial precedents, while statutory crimes are created by statutes through legislative enactments.
• Most crimes today are statutory, with the legislature defining and prescribing punishment; common law crimes in Kenya are incorporated into statutes via the Penal Code.

Purposes of Criminal Law

• Criminal law should not enforce morals.
• The American Law Institute's Model Penal Code's purposes of criminal law consists of preventing unjustifiable harm to individuals or public interests, controlling those disposed to commit crimes, safeguarding conduct without fault, providing fair warning of offense nature and differentiating between serious and minor offenses.

The Origin of Criminal Law in Kenya

• Kenya's criminal law originates from colonialism, with Britain introducing British law after taking over Kenya, Uganda, and parts of Zanzibar.
• Unlike Britain and Wales, Kenya adopted the Indian Penal Code.
• The general principles of criminal liability in Kenya are mainly founded on common law.
• The East African Order in Council of 1897 gave Her Majesty jurisdiction and power to make laws, establishing the Chief Native Court.
• Native tribunals were originally to be guided by African Customary Law, but later statutory law.