Criminal Law W1 .pdf

WEEK 1: INTRODUCTION TO CRIMINAL LAW AND FUNDAMENTAL CONCEPTS LECTURE CONTENT 1. Definition of Crime & Criminal Law 2. Sources of Criminal Law 3. Criminal Law & Morality 4. Purposes of Criminal Law 5. Punishment & Sentencing 6. The Brunei Penal Code DEFINITION OF CRIME & CRIMINAL LAW - Osborn’...

WEEK 1: INTRODUCTION TO CRIMINAL LAW AND FUNDAMENTAL CONCEPTS LECTURE CONTENT 1. Definition of Crime & Criminal Law 2. Sources of Criminal Law 3. Criminal Law & Morality 4. Purposes of Criminal Law 5. Punishment & Sentencing 6. The Brunei Penal Code DEFINITION OF CRIME & CRIMINAL LAW - Osborn’s A Concise Law Dictionary (1964) (Lit Edition) Sweet & Maxwell, page 9, defines crime as “an act or any offence that endangers the society and all acts or actions that are unlawful and the person who does the act is responsible to receive the punishment of fine or imprisonment”. - In the book, Card, Cross and Jones: Criminal Law, a crime is a legal wrong for which the offender is liable to be prosecuted by or on the name of the state, if found guilty liable to be punished. - Sir William Blackstone defined crime to be an act which has been committed or an omission which threatens the general laws or encroachment on the general laws that must be fulfilled towards the society. - Generally, a “crime” is an unlawful act or the omission that becomes an offence against the public and it causes the persons who have committed such acts to be responsible and punished according to law. If it is an unlawful act, then the result is punishment and punishment is carried out by a nation. In other words, an act or an omission which is made compulsory by the law to perform is said to constitute an “offence”, if such act or omission infringed any provision of the law. - Criminal law is the body of law that relates to crime. It may be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of the people/society, and that sets out the punishment to be imposed on people who do not obey these laws. WEEK 1: INTRODUCTION TO CRIMINAL LAW AND FUNDAMENTAL CONCEPTS Criminal law differs from civil law, whose emphasis is more on dispute resolution than in punishment. Criminal law is that law which deals with crime. SOURCE OF CRIMINAL LAW The following are the sources of criminal law: 1. Common law o It is known as judge‐made law, which came into existence in England during the twelfth century. Judges created common law by ruling that certain actions were subject to punishment and defined offenses such as murder, rape, arson, and burglary as crimes against the state. Over time, British judges' law decisions produced a body of unwritten laws and customs. o One of the main parts of common law is the law of precedent/judicial precedent. Once a court makes a decision, it is binding on other courts in later cases presenting the same legal problem. The principle of stare decisis relates to the law of precedent. It literally means to “let the decision or precedent stand.” This principle guides courts in making decisions in similar cases and ensures fairness in the judicial process. 2. Constitution of Brunei Darussalam o The constitution of a country forms part and parcel of the source of criminal law. For example, in Brunei Darussalam there are relevant constitutional provisions touching on the area of criminal law. See Article 9, which deals with the prerogative of mercy; Article 81(3) which deals with the power of the Attorney General to institute, conduct and discontinue criminal proceedings, etc. 3. Legislation/Statutes o The vast majority of offences are defined and regulated by statutes. A statute may create an entirely new offence or make changes by way of repeal to an existing one. In Brunei Darussalam, a good example of a legislation relating to criminal law is the Penal Code. This Penal Code applies throughout Brunei and comes into force on 1st May, 1952. It contains substantive law relating to WEEK 1: INTRODUCTION TO CRIMINAL LAW AND FUNDAMENTAL CONCEPTS criminal offences. This Code is modeled on the Indian Penal Code (Act XLV of 1860) which was drafted by the first Indian Law Commission headed by Lord Macaulay as the President of the Commission. 4. Text materials (Textbooks, articles & commentaries) o The statements in textbooks, journal articles and commentaries have no binding force. It means that a judge is not bound to apply them in the same way as he must follow the directions contained in a statute or the principle to be inferred from case law. However, there are works of writers which are treated with great respect by judges. o For example, the works of Sir Edward Coke written in the seventeenth century in the sphere of crime are important source of criminal law. In modern times, Stephen’s Digest of the Criminal Law and other works are relied on by judges although they are not authoritative in strict sense. In other words, text materials such as textbooks written by renown authors are considered persuasive and not binding. CRIMINAL LAW & MORALITY - What is considered as moral or immoral vary from one society to another and from one generation to another. - Issue arises whether criminal law should have a role in protecting moral values. This issue arises because in every society there is a common core of morality which reflects standards of behaviour to which the majority of citizens in that society conform, deviations from which will provoke censure. - Many of these rules of morality are enforced via criminal law, such as prohibitions of murder, violence to person, sexual assaults and theft. - All rules of morality are not subject to enforcement via criminal law. For example, adultery is regarded as immoral in many countries but it is not a crime. Likewise, lying is immoral but it is not a crime. - Some crimes are also morally neutral. No rule of morality is violated when a person exceeds the speed limit or does not wear seatbelt. WEEK 1: INTRODUCTION TO CRIMINAL LAW AND FUNDAMENTAL CONCEPTS - In the 19th century, J.S. Mills in his essay On Liberty expressed the view that only legitimate purpose for which legal coercion could be exercised over any member of a civilised community is to prevent harm to others. In other words, so long as harm does not result to others, criminal law has no role to play. This viewpoint was endorsed in the Report of Wolfenden Committee on Homosexual Offences & Prostitution. The Committee had recommended that homosexual behaviour between consenting adults in private should no longer be a criminal offence. The Committee was of the view that it was not the function of law to intervene in private lives of citizens or to enforce any particular morality except where it is necessary to protect citizens from what is offensive or injurious and to provide protection against exploitation and corruption - Lord Devlin in his lecture The Enforcement of Morals did not accept J.S. Mills’s viewpoint. He contended that the primary function of criminal law was to maintain public morality. In his opinion, ‘intolerance, indignation and disgust’ were vital to a society and conduct which aroused such feelings amongst right-thinking members of the society deserved suppression by mean of criminal law. He further said that tolerance of immorality threatens the social fabric and therefore the legislature should criminalize behaviour where it is clear that there is a ‘seamless web’. By this metaphor, he intended to convey the notion that ‘society’s morals’ form a fragile structure and if morality is not generally reinforced by legal means, then damage to the entire structure will follow. - The views of Lord Devlin seemed to have received approval subsequently in the House of Lords in the case of Shaw v DPP AC 220. - In Shaw v DPP, the accused was convicted of conspiracy to corrupt public morals arising from his publication of the ‘Ladies Directory’ advertising the names and addresses of prostitutes, together with photographs and details of the services they were prepared to offer. The House of Lords upheld the conviction. Viscount Simonds observed: “In the sphere of criminal law I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state, and that it is their duty to guard against such attacks which may be more insidious because they are novel and unprepared for” WEEK 1: INTRODUCTION TO CRIMINAL LAW AND FUNDAMENTAL CONCEPTS - Lord Devlin believed that there is always something as public morality. Morals are not a matter to be judged by private opinion and the society has a right to judge matters of morals. - According to Hart, in his The Concept of Law argued that there is no such thing as broad and wide “shared morality” of Devlin. There is morality no doubt but amounts only to ‘minimum content of natural law’. Hart agreed with the proposition that “some shared morality is essential to existence of any society”, but it cannot be established by evidence. Therefore, the proposition is a self-evident statement. For example, nowadays, since the society is pluralistic, there is an amalgamation of tolerated moralities and not one shared morality. Diverse views exist not only on matters of sex-morality, but also on issues of ‘capital punishment, abortion, surrogate motherhood, euthanasia and the like. Thus, to Hart, legislators should pay attention to the ideas of morality held by the majority. But Hart concedes that the majority itself may be wrong. For instance, Saudi government imprisoned Europeans for consuming alcohol. PURPOSE OF CRIMINAL LAW The main accepted objectives/aims for enforcement of criminal law by way of punishing the offenders are: 1. Retribution o The retributive aim seeks to retaliate against the wrongdoer for what he has committed. o An offence committed is viewed as an offence against society and the community and in return society and the community through its agency, the courts, impose punishments or sentences. o In modern times, and particularly with reference to Brunei Darussalam, this aim is entrenched in legislation in the form of the death penalty for the offence of murder under section 302 of the Penal Code. Death is the only punishment provided thereunder and courts have no alternative but to impose the death sentence when the accused is found guilty of the offence. Hence, people submit to the law to receive the right not to be murdered and if people contravene this WEEK 1: INTRODUCTION TO CRIMINAL LAW AND FUNDAMENTAL CONCEPTS law, they surrender the rights granted to them by the law. Thus, one who murders will be murdered himself. o It is commonly associated with revenge. However, there is a shift away from the concept of revenge towards the notion that a sentence must reflect community’s abhorrence of particular types of crimes. o In the case of R v Sargent, Lawton LJ said: The old Testament concept of an eye for an eye and a tooth for a tooth no longer plays any part in our criminal law. There is, however, another aspect of retribution which is frequently overlooked: it is that society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass. The courts do not have to reflect public opinion. On the other hand, courts must not disregard it. Perhaps the main duty of the court is to lead public opinion. o In the case of Hari Ram Seghal v PP 1 MLJ 165 at 168 where Wan Yahya J in his eloquent judgment expressed the same sentiments in the following words: Our courts have a long time since progressed from the “eye for an eye” and “tooth for a tooth” type of justice. The avowed aims of punishments are retribution, justice, deterrence, reformation and protection, but it is never intended to act as a vehicle of vengeance. This court does not sit here to hand out to victims of aggression their “pound of flesh” but generally to protect society by enforcing justice… The court must resist the temptation and decline any invitation into playing the romantic role of the avenger and must concentrate itself instead on procuring justice and upholding the rule of law through our recognized machinery of justice. 2. Deterrence o A deterrent sentence is one which is more severe than that which would normally be proper for the offence concerned, imposed on the offender, not necessarily because of the facts of his case but in order that others should be dissuaded in the future from committing offences of a similar kind. However, what is deterrent to one offender may not be so to another. WEEK 1: INTRODUCTION TO CRIMINAL LAW AND FUNDAMENTAL CONCEPTS o The aim of deterrence is to punish the wrongdoer so that he repents and will not commit an offence again. It hopes that future offenders will be deterred by seeing the punishment meted out on a particular offender. This aim is twofold: to deter the offender himself from committing offences in the future, and to deter other offenders from committing the same offence. o Generally, deterrence is of little value in respect of unpremeditated offences, but are useful for offences like burglary, robbery and using firearms and weapon. o The main aim of deterrent punishment is to protect the public interest. The courts are the guardians of the public interest, and it is the first and foremost consideration in sentencing. o In the case of PP v Teh Ah Cheng 2 MLJ 186 at 187 where Abdoolcader J emphasised that public interest should never be relegated to the background and must of necessity assume the foremost importance. The fact that the accused is a youth, a first offender and has pleaded guilty, while relevant in assessing the appropriate sentence, must yield to the public interest in ensuring deterrence and prevention. 3. Incapacitation o It is designed simply to keep criminals away from society so that the public is protected from their misconduct. o Incapacitation was what Sharma J had in mind in Abdul Wahab v PP 2 MLJ 203 at 204-205 when enhancing the sentence of the accused to ten years’ imprisonment, six strokes of whipping followed by 12 months’ police supervision, on his own plea of guilty on a charge of housebreaking. In the circumstances, the learned judge thought ‘it may perhaps do the society some good if he is kept away from the public’. o In the case of Shafruddin bin Selengka v PP and other appeals 3 MLJ 750 at 756 where one of the appellants had been convicted of offences under section 377B (carnal intercourse against the order of nature) and section 354 (outraging modesty) of the Penal Code. He had five previous convictions, one of which was of buggery with an animal under section 377 of the Penal Code. The appellant WEEK 1: INTRODUCTION TO CRIMINAL LAW AND FUNDAMENTAL CONCEPTS was aged 31 years, and after remission of the sentences imposed on him, he could be released at the age of 49. On appeal, the High Court refused to disturb the sentences imposed by the sessions court, obviously with the motive of incapacitating him. The court taking note of the nature of crimes committed by him, also expressed the hope that he would be given medical treatment during his imprisonment that will help him curb his lust and help him reform. 4. Rehabilitation o It seeks to encourage an offender to be a law abiding and responsible citizen. It is hoped that offenders will change their attitudes and respect laws and regulations existing in society. In other words, invoking the principle of reformation/rehabilitation necessarily means imposing a sentence that is thought likely to induce the offender to turn from criminal ways to honest living. o In a case where the offence is not so serious and public interest does not demand that the other principles of sentencing be given priority, the court may consider the interests of the accused. However, inducement to turn from criminal ways to honest living can take several forms and will have to depend to a greater extent on the attitude of the offender and his suitability for any particular type of reformation. A particular criminal may be so induced only by a deterrent sentence of a long term of imprisonment, while another may well profit by being given a second chance. o In the Malaysian case of PP v Gopalan 2 MLJ 230 at 235 where Wan Yahya J took into consideration the facts of the case and expressly stated that imprisonment of 14 years would be expedient with a view to reformation of the accused, who had pleaded guilty to an offence of culpable homicide under section 304 of the Penal Code, but as he was charged and convicted under the second limb of the section, the court was compelled to impose a sentence of only seven years’ imprisonment. o Rehabilitation aims at transforming an offender into a valuable member of society. Its primary goal is to prevent further offence by convincing the offenders that their conduct was wrong WEEK 1: INTRODUCTION TO CRIMINAL LAW AND FUNDAMENTAL CONCEPTS 5. Restitution o This is a victim-oriented theory of punishment. o The goal is to repair, through state authority, any hurt that has been inflicted on the victim by the offender. o Example: one who embezzles money will be required to repay the amount improperly acquired. o Restitution is commonly combined with other main goals of criminal justice and is closely related to concepts in the civil law, that is to say returning the victim to his original position. PUNISHMENT & SENTENCING - Punishment in relation to criminal law is the authoritative imposition of something negative or unpleasant on a person, organization or entity in response to a behaviour deemed unacceptable by an individual, group or other entity. - Punishments differ in the degree of severity of their unpleasantness, and may include sanctions such as reprimands, deprivations of privileges or liberty, fines, incarcerations, ostracism, the infliction of pain, and the death penalty. - Corporal punishment refers to punishments in which pain is intended to be inflicted upon the transgressor. Judges seek to accomplish the purposes of punishment through penalties ranging from imprisonment, fines, and to capital punishment. - Theories of punishment can be divided into two general philosophies: utilitarian and retributive. - The utilitarian theory of punishment seeks to punish offenders to discourage, or “deter,” future wrongdoing. - The retributive theory seeks to punish offenders because they deserve to be punished. - The utilitarian theory is "consequentialist" in nature. It recognizes that punishment has consequences for both the offender and society and holds that the total good produced by the punishment should exceed the total evil. In other words, punishment should not be unlimited. One illustration of consequentialism in punishment is the release of a prison inmate suffering from a debilitating illness. If WEEK 1: INTRODUCTION TO CRIMINAL LAW AND FUNDAMENTAL CONCEPTS the prisoner's death is imminent, society is not served by his continued confinement because he is no longer capable of committing crimes. - A sentence is a final order disposing of a case in court. A person may be found guilty by the court but his case will not be completed unless and until the court imposes a sentence. - In the case of Jamalul Khair 1 MLJ 316 where the High Court held that a magistrate is not functus officio until he imposes a sentence. - Sentencing refers to the process by which sentences are determined, and matters related thereto. It is a punishment given to a person convicted of a crime. - A sentence is ordered by the judge, based on the judge’s decision within the possible punishments set by law after hearing the case based on the evidence presented before him. In other words, sentencing is a decree of punishment. - Sentencing involves inflicting a punishment on an offender for his offence. It is undeniably one of the most important and difficult functions undertaken by a judge in a criminal court. - A sentence may run consecutively or concurrently. (1) In a consecutive sentence, the defendant serves them back to back, (2) whereas in a concurrent sentence, the defendant serves them at the same time. For example, a court convicts a defendant for two charges. The judge sentences the defendant to three years in prison for the first charge and two years in prison for the second charge 2, with the sentences to run consecutively. The total prison sentence will be five years. On the other hand, if the sentences are to run concurrently, the total prison sentence will be three years. THE BRUNEI PENAL CODE - The main legislation/statute in Brunei Darussalam in relation to criminal law is the Penal Code. This Penal Code applies throughout Brunei and came into force on 1st May, 1952. It contains substantive law relating to criminal offences. This Code is modeled on the Indian Penal Code (Act XLV of 1860) which was drafted by the first Indian Law Commission headed by Lord Macaulay as the President of the Commission. WEEK 1: INTRODUCTION TO CRIMINAL LAW AND FUNDAMENTAL CONCEPTS - Section 2 of the Code provides that every person shall be liable to punishment under this Code, and not otherwise, for every act or omission contrary to the provisions thereof of which he shall be guilty within Brunei Darussalam. The word “person” includes any company or association, or body of persons, whether incorporated or not. [Section 11]. - Section 3 of the Code provides that any person liable to be tried for an offence committed beyond the limits of Brunei Darussalam shall be dealt with according to the provisions of this Code for any act committed beyond Brunei Darussalam in the same manner as if such act had been committed within Brunei Darussalam