Cje Class 5 & 6 Structure of a Criminal Offence I · Latin expression: Actus non facit reum nisi...

Cje

Karolina Kremens, LL.M., Ph.D.

Wojciech Jasiński, Ph.D. Department of Criminal Procedure

Faculty of Law, Administration and Economics

University of Wrocław

Class 5 & 6 Structure of a Criminal Offence I

Criminal Law I

Lecture STRUCTURE OF A CRIMINAL OFFENCE I

CRIMINAL OFFENCE

1) various definitions

2) legal provisions as a basis

3) theorethical approach

4) common elements in the structure


CRIMINAL OFFENCE

Common law countries The structure is twofold:

1) Actus reus

(external element, material element)

2) Mens rea

(internal element, fault element, mental

element)


CRIMINAL OFFENCE

Latin expression:

Actus non facit reum nisi mens sit rea

The act is not guilty unless the mind is guilty

- simplification (act is never guilty)

- not always an accurate way of describing

offences (case of omissions and strict

liability)


CRIMINAL OFFENCE

Actus reus (external element) conduct (act or omission) which causes

harm that the law is designed to prevent the term covers any circumstances

mentioned in the definition of the offence and any consequence (result)


CRIMINAL OFFENCE

Mens rea (fault element) state of mind in the definition of an offence

(expressly or impliedly) Role: to describe the blameworthiness of

an offence Evaluating mens rea – subjective and objective approach


CRIMINAL OFFENCE

Australia CRIMINAL CODE ACT 1995

3.1 Elements

(1) An offence consists of physical elements

and fault elements.

(2) However, the law that creates the

offence may provide that there is no fault element

for one or more physical elements.

(3) The law that creates the offence may

provide different fault elements for different physical

elements.


CRIMINAL OFFENCE

Poland CRIMINAL CODE 1997

Article 1

§ 1. Only a person who commits an act punishable

under the law in force at that time bears criminal

liability.

§ 2. If the effects of a prohibited act on society are

insignificant, it will not constitute an offence.

§ 3. The offender of a prohibited act does not

commit an offence if no guilt can be attributed to

him at that time.


CRIMINAL OFFENCE

Poland CRIMINAL CODE 1997

1) Act committed by natural person

2) An act described by the law in force at that time bears

criminal liability (so called ‘formal’ element)

3) An act causing social harm higher than minimal (so

called ‘material element’)

4)An act which is punishable according to the statute

5) An act which is culpable


CRIMINAL OFFENCE

The tripartite theory of the offence

1) Human conduct (act or omission) that

realises the prohibitory norm of the

offence

2) that is wrongful (unjustified)

3) and is blameworthy (unexcused)


CLASSIFICATIONS OF CRIMINAL OFFENCES

- Character/type of an offence

- Gravity of an offence

- Source of law

- Procedure


CLASSIFICATION OF CRIMINAL OFFENCES

Character of an offence

Mala in se (wrong in itself)

wrong by nature, independent of

regulations prohibiting the conduct

Mala prohibita (wrong because

prohibited by law)



Character of an offence

e.g.

- Offences against the person

- Offences against property

- Offences of dishonesty

- Public order offences

- Sexual offences

- Road traffic offences

- Corporate crime (offence)



Australian and New Zealand Standard Offence

Classification CLASSIFICATION CRITERIA

At the broadest level, the Classification makes distinctions

based on the most fundamental elements of legal and

behavioural criteria. These include:

- whether the offence involved the use of violence;

- whether the offence compromised the safety or well-being of

persons or was solely directed at the acquisition or damage of

property;

- whether the offence involved an intentional act or resulted

from recklessness or negligence; and

- whether the offence had a specific victim, or constituted a

breach of public order or other social codes.



GRAVITY:

USA 18 U.S. Code § 3559 - Sentencing classification of offenses

(a) Classification.— An offense that is not specifically classified

by a letter grade in the section defining it, is classified if the

maximum term of imprisonment authorized is—

(1) life imprisonment, or if the maximum penalty is death, as a

Class A felony;

(2) twenty-five years or more, as a Class B felony;

(3) less than twenty-five years but ten or more years, as a Class

C felony;

(4) less than ten years but five or more years, as a Class D felony;

(5) less than five years but more than one year, as a Class E

felony;



GRAVITY: USA

18 U.S. Code § 3559 - Sentencing classification of offenses

(6) one year or less but more than six months, as a Class A

misdemeanor; (7) six months or less but more than thirty days, as a Class B

misdemeanor; (8) thirty days or less but more than five days, as a Class C

misdemeanor; or

(9) five days or less, or if no imprisonment is authorized, as an infraction.



USA

18 U.S. Code § 19 - Petty offense defined

As used in this title, the term “petty offense” means a Class B

misdemeanor, a Class C misdemeanor, or an infraction, for

which the maximum fine is no greater than the amount set forth

for such an offense in section 3571 (b)(6) or (7) in the case of an

individual or section 3571 (c)(6) or (7) in the case of an

organization (not more than $5,000)



FRANCE

Les infractions pénales sont classées, suivant leur gravité, en: 1) crimes (crime, felony) 2) délits (misdemeanor) 3) contraventions (petty offence)

Article 111-1 Code Pénal



GERMANY

Section 12 CRIMINAL CODE (Strafgesetzbuch)

Felonies and misdemeanours

(1) Felonies are unlawful acts punishable by a

minimum sentence of one year’s imprisonment.

(2) Misdemeanours are unlawful acts punishable by a

lesser minimum term of imprisonment or by fine.

(3) Aggravations or mitigations provided for under

the provisions of the General Part, or under especially

serious or less serious cases in the Special Part, shall

be irrelevant to this classification.



POLAND

Article 7 Criminal Code (Kodeks karny)

§ 1. An offence is either a felony or a misdemeanour

§ 2. A felony is a prohibited act punished by

imprisonment for at least three years, or a more

severe penalty.

§ 3. A misdemeanour is a prohibited act punished by

a fine higher than 30 times the daily unit, the

restriction of liberty or imprisonment exceeding one

month.



SOURCE OF LAW

Common law offences

(murder, manslaughter, kidnapping,

acts outraging public decency)

Statutory offences

Critique of common law offences –

vagueness and lack of predictability


CLASSIFICATION OF CRIMINAL OFFENCES SOURCE OF LAW

Australia

Abolishment of common law offences

Criminal Code Act 1995

1.1 Codification

The only offences against laws of the Commonwealth

are those offences created by, or under the authority

of, this Code or any other Act.



PROCEDURE

England and Wales

indictable offences

(tried on indictment, Crown Court)

summary offences

(tried in a simplified procedure, Magistrate

Court)

either-way offences (defendant has choice

on how the case will be processed)


OFFENDER

1) Natural person

2) Legal person (corporate criminal

liability)

3) Animal (?)

4) Robot (?)


OFFENDER

Legal person (corporate criminal liability)

- Criminal? liability

- Culpability?

- Justification for corporate criminal

liability?

- Necessity of corporate criminal liability?


OFFENDER

Natural person

1) Capacity

- Age

- Mental capacity


AGE OF CRIMINAL LIABILITY

England and Wales Section 50 of the Children and Young

Persons Act 1933

It shall be conclusively presumed that

no child under the age of ten years can

be guilty of any offence. (until 1963 – 8 years old)



England and Wales

Until 1999, there was also a legal presumption (“doli incapax”) that children aged under 14

did not know the difference between right and wrong and were therefore incapable of committing an offence.

The doli incapax presumption was abolished by section 34 of the Crime and Disorder Act 1998 and so is no longer in operation



Australia CRIMINAL CODE ACT 1995

7.1 Children under 10

A child under 10 years old is not criminally responsible for an

offence.

7.2 Children over 10 but under 14

(1) A child aged 10 years or more but under 14 years old can

only be criminally responsible for an offence if the child knows

that his or her conduct is wrong.

(2) The question whether a child knows that his or her conduct

is wrong is one of fact. The burden of proving this is on the

prosecution.



France Code pénal – article 122-8 „Les mineurs capables de discernement”

13 years old and over - either educational sanctions or penalties

10-13 years old - only educational sanctions provided by

special statute concerning minors



Germany

Section 19 Criminal Code

Persons who have not attained the age of fourteen

at the time of the commission of the offence shall be

deemed to act without guilt.

Minors between 14-18 years old – liable on the basis

of Jugendgerichtsgesetz (JGG)



Poland

Art. 10 Criminal Code § 1. The provisions of this Code apply to anyone aged 17 or older who commits a prohibited act. § 2. The provisions of this Code may apply to minors aged 15 or older who commit a prohibited act set out in Article 134, Article 148 §§1, 2 or 3, Article 156 §§ 1 or 3, Article 163 §§ 1 or 3, Article 166, Article 173 §§ 1 or 3, Article 197 § 3 or 4, Article 223 § 2, Article 252 §§ 1 or 2 and in Article 280, if deemed appropriate given the circumstances of the case and the level of mental development of the offender, the characteristics and personal situation, and especially if previously attempts at educational or correctional measures have been ineffective.



European Court of Human Rights

Cases of V. and T. v. United Kingdom (16 Dec 1999) FACTS:

On 12 February 1993, when the applicant was ten

years old, he and another ten-year-old boy, “T.” (the

applicant in case no. 24724/94), had played truant

from school and abducted a two-year-old boy from

a shopping precinct, taken him on a journey of over

two miles and then battered him to death and left

him on a railway line to be run over.




Cases of V. and T. v. United Kingdom (16 Dec 1999) FACTS: The trial was preceded and accompanied by massive national and international publicity. Throughout the criminal proceedings, the arrival of the defendants was greeted by a hostile crowd. On occasion, attempts were made to attack the vehicles bringing them to court. In the courtroom, the press benches and public gallery were full. The trial was conducted with the formality of an adult criminal trial. The judge and counsel wore wigs and gowns.




Cases of V. and T. v. United Kingdom (16 Dec 1999) FACTS: The procedure was, however, modified to a certain extent in view of the defendants' age. They were seated next to social workers in a specially raised dock. Their parents and lawyers were seated nearby. The hearing times were shortened to reflect the school day (10.30 a.m. to 3.30 p.m., with an hour's lunch break), and a ten-minute interval was taken every hour. During adjournments the defendants were allowed to spend time with their parents and social workers in a play area.




Cases of V. and T. v. United Kingdom (16 Dec 1999) FACTS:

Their trial took place over three weeks in November

1993, in public, at Preston Crown Court before a

judge and twelve jurors. In the two months preceding

the trial, each applicant was taken by social workers

to visit the courtroom and was introduced to trial

procedures and personnel by way of a “child witness

pack” containing books and games.




Cases of V. and T. v. United Kingdom (16 Dec 1999) APPLICATION:

The applicant claimed that in view of young age, trial

in public in an adult Crown Court and the punitive

nature of his sentence constituted violations of right

not to be subjected to inhuman or degrading

treatment or punishment as guaranteed under

Article 3 of the ECHR. He further complained that he

had been denied a fair trial in breach of Article 6 of

the Convention.



JUDGMENT: 73. (…) the Court observes that, at the present time, there is not yet a

commonly accepted minimum age for the attribution of criminal

responsibility in Europe. While most of the Contracting States have

adopted an age-limit which is higher than that in force in England and

Wales, other States, such as Cyprus, Ireland, Liechtenstein and

Switzerland, attribute criminal responsibility from a younger age.

Moreover, no clear tendency can be ascertained from examination of

the relevant international texts and instrument (…). Rule 4 of the Beijing

Rules which, although not legally binding, might provide some

indication of the existence of an international consensus, does not

specify the age at which criminal responsibility should be fixed but

merely invites States not to fix it too low, and Article 40 § 3 (a) of the UN

Convention requires States Parties to establish a minimum age below

which children shall be presumed not to have the capacity to infringe

the criminal law, but contains no provision as to what that age should

be.



JUDGMENT:

74. The Court does not consider that there is at this

stage any clear common standard amongst the

member States of the Council of Europe as to the

minimum age of criminal responsibility. Even if

England and Wales is among the few European

jurisdictions to retain a low age of criminal

responsibility, the age of ten cannot be said to be so

young as to differ disproportionately from the age-

limit followed by other European States. The Court

concludes that the attribution of criminal

responsibility to the applicant does not in itself give

rise to a breach of Article 3 of the Convention.



JUDGMENT: 86. The Court recalls its above findings that there is not at this

stage any clear common standard amongst the member States

of the Council of Europe as to the minimum age of criminal

responsibility and that the attribution of criminal responsibility to

the applicant does not in itself give rise to a breach of Article 3

of the Convention (see paragraph 74 above). Likewise, it

cannot be said that the trial on criminal charges of a child,

even one as young as eleven, as such violates the fair trial

guarantee under Article 6 § 1. The Court does, however, agree

with the Commission that it is essential that a child charged with

an offence is dealt with in a manner which takes full account of

his age, level of maturity and intellectual and emotional

capacities, and that steps are taken to promote his ability to

understand and participate in the proceedings.



JUDGMENT: 87. It follows that, in respect of a young child charged with a

grave offence attracting high levels of media and public

interest, it would be necessary to conduct the hearing in such a

way as to reduce as far as possible his or her feelings of

intimidation and inhibition.



JUDGMENT: Special measures were taken in view of the applicant's young age and

to promote his understanding of the proceedings: for example, he had

the trial procedure explained to him and was taken to see the

courtroom in advance, and the hearing times were shortened so as not

to tire the defendants excessively. Nonetheless, the formality and ritual

of the Crown Court must at times have seemed incomprehensible and

intimidating for a child of eleven, and there is evidence that certain of

the modifications to the courtroom, in particular the raised dock which

was designed to enable the defendants to see what was going on,

had the effect of increasing the applicant's sense of discomfort during

the trial, since he felt exposed to the scrutiny of the press and public.

The trial generated extremely high levels of press and public interest,

both inside and outside the courtroom, to the extent that the judge in

his summing-up referred to the problems caused to witnesses by the

blaze of publicity and asked the jury to take this into account when

assessing their evidence (see paragraph 14 above).



JUDGMENT: 90. In such circumstances the Court does not consider that it was

sufficient for the purposes of Article 6 § 1 that the applicant was

represented by skilled and experienced lawyers. Here, although the

applicant's legal representatives were seated, as the Government

put it, “within whispering distance”, it is highly unlikely that the

applicant would have felt sufficiently uninhibited, in the tense

courtroom and under public scrutiny, to have consulted with them

during the trial or, indeed, that, given his immaturity and his

disturbed emotional state, he would have been capable outside

the courtroom of cooperating with his lawyers and giving them

information for the purposes of his defence.

91. In conclusion, the Court considers that the applicant was

unable to participate effectively in the criminal proceedings

against him and was, in consequence, denied a fair hearing in

breach of Article 6 § 1.



JOINT PARTLY DISSENTING OPINION OF JUDGES PASTOR RIDRUEJO,

RESS, MAKARCZYK, TULKENS AND BUTKEVYCH

As far as the age of criminal responsibility is concerned, we do not

accept the conclusion of the Court that no clear tendency can be

ascertained from developments amongst European States and

from international instruments. Only four Contracting States out of

forty-one are prepared to find criminal responsibility at an age as

low as, or lower than, that applicable in England and Wales. We

have no doubt that there is a general standard amongst the

member States of the Council of Europe under which there is a

system of relative criminal responsibility beginning at the age of

thirteen or fourteen – with special court proceedings for juveniles –

and providing for full criminal responsibility at the age of eighteen

or above. Where children aged from ten to about thirteen or

fourteen have committed crimes, educational measures are

imposed to try to integrate the young offender into society.



JOINT PARTLY DISSENTING OPINION OF JUDGES PASTOR RIDRUEJO,

RESS, MAKARCZYK, TULKENS AND BUTKEVYCH

Even if Rule 4 of the Beijing Rules does not specify a minimum age of criminal responsibility, the very warning that the age should not be fixed too low indicates that criminal responsibility and maturity are related concepts. It is clearly the view of the vast majority of the Contracting States that this kind of maturity is not present in children below the age of thirteen or fourteen. In the present case, we are struck by the paradox that, whereas the applicants were deemed to have sufficient discrimination to engage their criminal responsibility, a play area was made available for them to use during adjournments.


SPECIAL FEATURES OF THE OFFENDER - Not all offences can be committed by everyone

- age requirement (e.g. sexual offences)

Causing a child to watch a sexual act

(1)A person aged 18 or over (A) commits an offence if—

(a)for the purpose of obtaining sexual gratification, he intentionally

causes another person (B) to watch a third person engaging in an

activity, or to look at an image of any person engaging in an

activity,

(b)the activity is sexual, and

(c)either—

(i)B is under 16 and A does not reasonably believe that B is 16 or

over, or

(ii)B is under 13.



-marital status

Whosoever, being married, shall marry any other

person during the life of the former husband or

wife, whether the second marriage shall have

taken place in England or Ireland or elsewhere,

shall be guilty of felony, and being convicted

thereof shall be liable to be kept in penal

servitude for any term not exceeding seven years



-marital status

Whosoever, being married, shall marry any other

person during the life of the former husband or

wife, whether the second marriage shall have

taken place in England or Ireland or elsewhere,

shall be guilty of felony, and being convicted

thereof shall be liable to be kept in penal

servitude for any term not exceeding seven years



- activity undertaken

A person who drives a mechanically propelled

vehicle dangerously on a road or other public

place is guilty of an offence



- profession/position held

Common law offence of misconduct in public office



- profession/position held

18 U.S. Code § 2234 - Authority exceeded in

executing warrant

Whoever, in executing a search warrant, willfully

exceeds his authority or exercises it with

unnecessary severity, shall be fined under this title

or imprisoned not more than one year, or both.


SPECIAL FEATURES OF THE OFFENDER IMMUNITIES

1) Absolute immunity from prosecution

2) Criminal liability depending on the

removal of the immunity

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Cje Class 5 & 6 Structure of a Criminal Offence I · Latin expression: Actus non facit reum nisi...

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