01CR - Introduction

Introduction
PRINCIPLES AND VALUES UNDERPINNING OUR CRIMINAL JUSTICE SYSTEM
Identifying the Principles
There are at least 3 broad principles of criminal justice:

Principle of legality
Due process / criminal control
Criminalization v Decriminalization
Theories of Punishment
- Some or all of these principles are present in criminal law situations
PRINCIPLE OF LEGALITY
This consists of 5 further principles
a) ius acceptum (accepted)
 “The act must be accepted as a crime”
 A court cannot find X guilty of a crime that is not recognized by the law
 The conduct must have been prohibited by law
 There is a closed list of common law crimes, conduct can only be a crime if it comes into
being by way of statute.
b) Ius praevium (previously accepted)

 The court may only find a person guilty of a crime if the conduct is already prohibited by
law; hence at the time of committing the act, such act was already considered to be a
crime.
 The law does not apply retrospectively when a person is to be convicted (this is to the
benefit of the accused)
c) Ius certum (certain)

 Crimes must be certain; therefore citizens must know which conducts are prohibited by
law
 Crimes must be defined in an unambiguous and certain manner.
 According to the 1996 Constitution, if a person is charged with a vague/ambiguous
offense, he/she may bring a constitutional charge and then the court may declare the
conduct as not being a crime.
d) Ius strictum (strictly interpreted)

 If the court is confronted with a situation that can be interpreted in two ways, it must be
interpreted strictly so as not to extend the definition of a specific crime.
 Every matter must be decided in a just, equitable and fair manner
 No offense without punishment

 Every offense must be accompanied by a punishment; therefore for it to be an offense it
must be punishable.
 However, if the punishment is not stated (such as in legislation), the conduct may still be
considered an offense and the courts may use discretion to determine an appropriate
punishment.
The principle of legality is now a constitutionally accepted principle.

S35(3)(l) – “every person has the right to fair trial…”  ius praevium
S35(3)(n) – “every accused person…right to benefit of the least sever punishment of prescribed
punishment”  ius praevium
DUE PROCESS AND CRIME CONTROL

The rudimentary process of due process is that persons should not be convicted of a crime that
they have not committed.
If there is reasonable doubt, then a person cannot be convicted.
In conducting trials, the dignity and human rights of the accused must be respected, hence a
person is innocent until proven guilty
The onus of proving guilt rests on the prosecution and the standard of proof in any criminal
liability situation is that it must be proved beyond any reasonable doubt, that a person is guilty.
All elements of criminal liability must be proven.
NOTE: one criticism is insanity – one element is not available.
NOTE 2: s35(3)(a) the person must be informed of the charge (so can defend?)
All s35(3) stipulations are elements of due process
Three elements of the Crime Control model:

Police have extensive powers to arrest and these powers are unlimited
Example: with due process, there is the right to privacy and the right to property; and with crime
control there is search and seizure
CRIMINALIZATION AND DE-CRIMINALIZATION

Criminalization means there is prohibited conduct which are crimes, however many things are
regarded as crimes and so it lessens the authority of criminal law and people can be stigmatized
for relatively minor infringements of the law
One thought is that criminal law should not always rush to criminalize things
What should the criteria of decriminalizing an already criminalized act be? It requires the
legislature to exercise due care.
Criminal law is the branch of national law that defines certain forms of human conduct as crimes
and provides for the punishment of those persons with criminal capacity who unlawfully and with
a guilty mind commit a crime.
THEORIES OF PUNISHMENT
Punishment: interferes with life, liberty and property of the offender
RETRIBUTIVE THEORIES
People who caused ham should suffer harm, but this harm should be proportional to the harm
caused by the wrongdoer
(1) Revenge (appeasement of society)

Satisfy the wronged party and community in general; the community should received recognition
be sentences imposed by the courts (if the court order is too lenient then society could take the
law into its own hands)
Evidence does not show that corporal punishment is affective as a deterrent for committing crime
(2) Atonement / Expiation

Purging the offender’s guilt, the offender must suffer harm proportionate to what he has inflicted
then the debt to society will be paid
Although the view is that past criminal behaviour warrants a more severe punishment. This is
true but only if the past activities had not been dealt with, hence the accused had not been
convicted before but he/she had committed several crimes
(3) Denunciation
Punishment must be inflicted to serve as proof of society’s standards and morals. If there is no
punishment it implies society approves of such behavious.
S v Makwanyane – A life sentence can show society’s anti-crime attitude as much as a detah
sentence could.
This theory presents difficulty because the view is if A murders, A must be murdered, however
what if a person rapes or commits arson, then should he/she be raped or have his/her household
belongings burned in return?
(4) Just deserts

The offender must get what he/she deserves, in order to restore order and balance in society
UTILITARIAN THEORIES
Punishment has a social benefit for society and brings social order
(1) Prevention / Incapacitation

It should be made impossible for the offender to commit crimes again.
Examples of this are cutting off hands for theft or confiscating a driver’s license for driving
infractions
Temporary incapacitation is not effective because even if someone is released from jail he/she
may still be involved in crimes
Personal view: If someone is given a life sentence it is a permanent measure and they should not
be let out on parole because he/she may revert to crime, but if he/she is kept in prison cannot
hurt innocent people again
(2) Deterrence
(a) Individual deterrence – this is to teach the offender a lesion, however the theory fails when
the offender commits another crime (so surely offenders should not get diluted sentences, yet
should not be given death penalty either)
Research shows that with ach conviction there is a greater likelihood of the offender to commit
more crime, however one cannot give a lenient punishment to an offender
(b) General deterrence – making an example of people. This theory could be used to an extent,
hence only if punishment is followed-through with and proportional.
(3) Reinforcement
Consistent punishment reinforces respect for the law and creates certainty
(4) Rehabilitation
An offender becomes rehabilitated into a law-abiding citizen (this could be done in prison, make
offenders useful members of society)
Let punishment fit the personality and not the crime (but there is a danger; the people may use
lots of excuses to escape harsher punishment)
These principles can be departed from in strict liability cases
Criminal Liability
There are three main things to be proved beyond reasonable doubt, in order for a person to be
criminally liable:
1) Mens Rea (Capacity)
2) Actus Reus (Wrongfulness)
3) Fault (negligence/intention) or the no fault circumstances ( stricti iuris)
This must all occur contemporaneously, therefore all the elements must exist at the same point
in time (simultaneously). The accused must be placed at the commission of the crime (actus
reus), having the necessary mens rea
Capacity
This is the cognitive ability of the accused
Two questions must be asked:
Does the accused have the capacity to appreciate the wrongfulness of the act?
Does the accused have the capacity to act in accordance with that appreciation?
Both of these questions must be satisfied to prove capacity
There are many factors which mitigate capacity, such as mental illness and age
Wrongfulness
If an act is committed involuntarily then it is not wrongful, although it may still be unlawful
Factors affecting voluntariness: epilepsy, hypoglycaemia, intoxication…
Fault
There are two types of fault: Intention and negligence
(1) Intention
This can take 3 main forms:
dolus directus (direct intention)
dolus indirectus (indirect intention) and
dolus eventualis (legal intention)
Intention is tested subjectively, so it is tested according to the individual and not to one
standard. This is because intention varies in different situations
Example: A intends to kill his grandmother B because he knows he will inherit her fortune. He
takes a pillow to smother her while she is asleep however he notices she is already dead as he is
smothering her. Although technically he did not kill her, he would have if she was not dead
already. This is not murder as he did not complete the commission of the crime.

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Introduction

PRINCIPLES AND VALUES UNDERPINNING OUR CRIMINAL JUSTICE SYSTEM

Identifying the Principles

There are at least 3 broad principles of criminal justice:

b) Ius praevium (previously accepted)

c) Ius certum (certain)

d) Ius strictum (strictly interpreted)

 No offense without punishment

The principle of legality is now a constitutionally accepted principle.

DUE PROCESS AND CRIME CONTROL

All s35(3) stipulations are elements of due process

Three elements of the Crime Control model:

CRIMINALIZATION AND DE-CRIMINALIZATION

(1) Revenge (appeasement of society)

(2) Atonement / Expiation

(4) Just deserts

(1) Prevention / Incapacitation

These principles can be departed from in strict liability cases

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