Find out detailed information about what constitutes criminal law, including the general principles, classification of offences, specific aspects of the law and objectives to help enforce them. The criminal law system plays an essential role in today’s society, as it aims to deter and prevent crime and reform and rehabilitate the perpetrator. Let’s take a closer look.
What is Criminal Law?Criminal law is complex. The laws and rules help to maintain social order and the safety of the community. It dictates the fundamental requirements of how people should treat each other. The criminal justice system has laws that define an illegal act, standard punishments and a specific process regarding investigation, arrest, sentencing and parole, with the ultimate intention to protect people in the community and reduce crime. When an individual breaks one of these laws and fails to adhere to a particular criminal law statute, their actions are punishable by the state. The area of criminal law is vast, and it deals with public offences, which can result in criminal charges and imprisonment. Unlike private disputes between individuals in family or civil law, lawsuits can be resolved with a fine/damages. An essential component of criminal proceedings is punishment for past criminal behaviour, with the theory that punishment is justified to reduce crime.
Parts Of Criminal LawCriminal law statutes contain two main elements: Mens rea (guilty mind) and Actus reus (guilty act). These Latin terms state that a crime requires proof and intention of a criminal act, essentially due to the severe consequences for criminal convictions, instead of a liable offence like a road traffic violation.
Mens ReaMens rea is the mental state/element that one possesses when committing a crime. The term guilty mind refers to the intention to commit a wrongful act. For example, if someone committed a robbery or theft by force, the person intended to engage in the act of stealing. The intention is the mens rea of the crime of robbery.
Actus ReusActus reus is the physical action taken by the offender. It could also be the threat to act or omission to act. For example, to charge an individual with murder, the person must have physically killed the victim.
General Principles In Criminal LawCriminal law has four essential principles.
- Innocent until proven guilty
- Burden of proof
- Right to remain silent
- Double jeopardy
Innocent Until Proven GuiltyWhen an individual gets charged with an offence, they are considered innocent until proven guilty. The judge or jury must be satisfied beyond doubt that the person is guilty. If there is any doubt, the individual must be acquitted.
Burden of ProofWhen an individual is charged with an offence, the prosecution must prove their guilt beyond a reasonable doubt. They must gather evidence to support their case, and the perpetrator can only be found guilty if the prosecution can prove guilt. The accused does not prove their innocence.
Right to Remain SilentOther than their name and address, an individual is not required to answer any questions asked by a police officer. They are allowed to refuse to answer any questions or participate in interviews. Anything that they say to a police officer can be used as evidence in their trial.
Double JeopardyThere is a rule in criminal law called double jeopardy, which means that no one can be punished more than once for the same crime. For example, if a defendant was charged, tried in court and acquitted, they can not be arrested again for the same offence. If new compelling evidence that was not already produced at the original trial is produced, or if acquittal was tainted by someone committing perjury (lying under oath in court), bribery or fabrication of evidence, it is an exception to the rule. Another exception to the double jeopardy rule is if the charge is a serious charge like murder.
What Is A Crime?A crime is an offence or wrongful conduct against the state’s laws. It is also called “breaking the law”. A crime or criminal offence can be an act that is harmful to an individual, community, society or the state. It is forbidden to commit a crime, and it is punishable by law. The punishment for criminal behavior can vary depending on your location. In the US, for example, each state decides what conduct will designate a crime and accordingly, they each have their own individual criminal codes.
Mala In Se Vs Mala ProhibitaTo determine what punishment is suitable for a crime, they are broken down into degrees or classes. Every offence will fall under “mala in se” or “mala prohibita” law. These words are Latin legal terms. Mala in se refers to crimes that are inherently evil, immoral or corrupt acts. Conversely, mala prohibita are prohibited but are not considered wrong, like fishing in a restricted area or jaywalking.
The Classification Of Criminal OffencesCriminal law is unique because there are severe penalties for the failure to abide by its rules. The severity of the offence will affect the punishment. Each crime is classified within the following guidelines.
Summary/Simple OffenceA summary offence is less serious than other offences, and subsequently, the penalties are less severe. An example of a summary offence is disorderly behaviour, driving under the influence of drugs or alcohol and minor property damage. Simple offences are the most common. In certain circumstances, suspended sentences may be granted by a judge due to ill health, age, or to undertake a treatment.
Minor Indictable OffenceThe two types of indictable offences are minor and major. The magistrates’ court generally handles minor cases, and major offences must be dealt with in the Supreme court. An example of a minor indictable offence includes; theft and aggravated or indecent assault.
Major Indictable OffenceA major indictable offence is the most serious, and a trial by jury will occur in the Supreme or District court if the defendant is convicted. The crimes in this category include; Murder, robbery and rape.
Legislative ActsIn Australia, each state’s government is responsible for providing sanctions and legislative acts to protect the community, and subsequently, the legal process will vary from state to state. Every state has its legislation and laws relating to crime. In Victoria, for example, the Criminal Procedure Act consolidates the state’s primary criminal procedure laws. It provides a guide to legislation and details on commencing a criminal proceeding, reference material and information on appeals. The act and laws relating to criminal behaviour are regularly updated, abolished and amended. Replacement of obsolete and redundant laws are modernised, so they are more relevant to the present day. Most offences are found in legislation under various acts, such as the Criminal Law Consolidation Act 1935. Some crimes only exist under common law, which is the law that a judge passes in court.
Sentencing ReformIn 2017 the Australian government introduced a sentencing reform that increased sentences for the 12 most severe crimes in Victoria, including; murder, rape and sexual offences involving children. A standard sentence of 40% of the maximum sentence penalty for these criminal laws has been created. When deciding on appropriate sentences, the supreme court will need to supply reasons if standard imprisonment sentence lengths are altered.
Typical Aspects Of Criminal LawCriminal laws cover a broad spectrum of crimes classified into several different offence categories, including fatal, personal, property, and participatory.
Fatal OffencesMurder is an act that frequently occurs in criminal law. The crime of murder or unlawful killing can vary in its severity. For example, if the murder is intentional, it is murder in the first degree. A required element of murder is malice, which means a deliberate intention to take a life. Manslaughter is also an unlawful killing of an individual, but it is less culpable than murder as it is unintentional and not deliberate. Murder committed with the absence of malice can occur with reasonable provocation or diminished capacity. The criminal justice process makes them less morally culpable. Provocation means a person was provoked to display criminal behaviour due to a series of events and subsequently lost self-control. Diminished capacity refers to a person with impaired mental functions and will therefore not be held fully liable.
Personal OffencesSome examples of personal offences include; assault, family violence, rape and sexual abuse. The fear of a potential battery is assault as well as inflicting physical harm. Rape can be a sexual assault or other forms of non-consensual penetration. Sexual abuse is also known as molestation, when one person takes advantage of another and commits sexual offences.
Property OffencesThere are several types of criminal conduct that fall under this category. The most common being trespassing, theft, burglary, extortion and fraud. Theft is when someone takes another person’s property, sometimes using force and creating a fearful environment, it can also be referred to as robbery. Burglary or breaking and entering can often occur in conjunction with theft, but the individual will also illegally enter a building or premises to commit the crime. Trespassing on a property is when someone enters the land owned by another without their permission. Extortion is when someone threatens another, usually with violence, to coerce them to conduct unfair business or to pay money. Fraud is intentionally misrepresenting or deceiving for personal and unlawful gain. Fraud can be committed for financial gain or to commit a civil or criminal wrong. It essentially gives someone an unfair and unjust advantage by making a false statement or doctoring documents.
Participatory OffenceAny involvement or association with criminal acts, even ones that do not eventuate, can be convicted under specific criminal laws. Being an accomplice involves actively participating as crimes are committed, such as a lookout or driver in a robbery. There is much discussion about whether the accomplice should receive a similar criminal penalty as the principal offender. Aiding and abetting is different to accomplice as it refers to the individual who encourages another to commit a crime.
Aggravated OffenceA crime can be elevated to an aggravated offence because of circumstances that surround the event where aggravation is a factor. It will result in a harsher and more severe penalty. There are numerous circumstances when this can occur:
- Vulnerability of the victim – i.e. mental impairment
- Offences against police, prison officer, law enforcement or an individual on official duty
- Crimes against emergency, medical, correctional services workers or public transportation worker whilst performing their duties
- To benefit a criminal organisation
- Victims over 60 years of age or under the age of 14
- Abuse of a position of trust
- Use of an offensive weapon
- Excessive use of violence and inflicting severe pain