International Bachelor of LAW Program 2018-2019
Criminal Law Course Notes by 18024580 Page 1 of 23
Course Notes
Lecture 1: Introduction to Comparative Criminal Law and Justice
▪ Definition of Crime
An action or omission that constitutes an offence that may be prosecuted by the State and is punishable by
law.
- Illegal activity or serious wrongdoing;
- An action or an instance of negligence that is deemed injurious to the public welfare or morals, or
to the interests of the state and that is legally prohibited.
Criminal law: a body of rules involving the prosecution of a person for an act that has been classified as a crime
or offence.
Criminal Law (Criminal Justice): the body of law (statutes/ regulations/rules) that relates to crime. It includes
the punishment regime for people who violate criminal laws
i.e. criminal justice reflects on the nature and culture of politics in their societies [Per Dammer].
▪ Fundamental Principles of Criminal Law
Rule of Law
"No individual is above the law and everyone must answer to it.”
- Cornerstones of a democratic society;
i.e. everyone is subject to the law.
- Intended to be a safeguard against arbitrary governance
i.e. governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws that are
adopted and enforced in accordance with established procedure.
Essential Characteristics of Modern Constitutionalism
1. Limiting the powers of government;
2. Adherence to the rule of law; and
3. Protection of fundamental rights.
*The Rule of Law and the Legitimacy of Constitutional Democracy; Southern California Law Review [Vol. 74: 1307]
Role of lawyers
Lawyers act as the “gatekeepers”; they have the potential to become the great levellers between the powerful
and the less e.g. where law discriminate or is oppressive.
Principle of Legality
All law should be clear, ascertainable and non-retrospective.
- Decision makers resolve disputes by applying legal rules that have been declared beforehand.
- Criminal law: seen in the general prohibition on the imposition of criminal sanctions for acts or omissions
that were not criminal at the time of their commission or omission.
Article 11 of the Universal Declaration of Human Rights (UDHR): Right to the presumption of innocence
(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty
according to law in a public trial at which he has had all the guarantees necessary for his defence.
(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute
a penal offence, under national or international law, at the time when it was committed. Nor shall a
heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
, International Bachelor of LAW Program 2018-2019
Criminal Law Course Notes by 18024580 Page 2 of 23
Latin phrases
1. Nullum crimen sine lege “no crime without law” [Article 22 Rome Statute of the ICC]:
(1) A person shall not be criminally responsible under this Statute unless the conduct in question
constitutes, at the time it takes place, a crime within the jurisdiction of the Court.
(2) The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of
ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or
convicted.
2. Nulla poena sine lege “no penalty without law” [Article 23 Rome Statute of the ICC]:
A person convicted by the Court may be punished only in accordance with this Statute.
▪ Theories Justifying Punishment
Prosecuting crimes
- The constitution of a crime;
- The person deciding on criminal prosecutions; and
- The punishment regimes or approaches to sentencing varies from State to State.
Principles of Sentencing – Role of Punishment
Purposes of criminal sanctions [more @ Lecture 6]
- Retribution: The offender should “payback” society for the harm caused.
- Incapacitation: The person should be denied the opportunity to commit further crimes.
- Rehabilitation: The offender should be transformed into a law-abiding person through programs of medical,
psychological, economic, or educational improvement.
- Deterrence: The offender should conclude that the crime is not worth the risk of the resulting punishment.
i) Much debate about the effectiveness of punishment in deterring criminal acts.
ii) Highly democratic countries have eliminated the death penalty or resort to it infrequently.
Many states in the United States of America still execute people using a variety of methods.
- Restoration: The community, victim, and offender are involved in the sentencing process with the aim to
restore the victim and the community back to its previous state.
▪ Substantive Criminal Law vs. Procedural Criminal Law
Substantive Criminal Law
Defining crimes and may establish punishment dictates. e.g. the law prohibiting theft is a substantive criminal law.
- Crimes are often defined within the governing legislation
e.g. Theft: UK Section 1 Theft Act 1968 “[1] A person is guilty of theft if he dishonestly appropriates property belonging
to another with the intention of permanently depriving the other of it […].
Procedural Criminal Law
Providing the process whether a case will go to trial or not. And determining how a proceeding concerning the
enforcement of substantive law will occur.
Every state has its own set of procedures which are usually written out in a set of rules.
Criminal Law Course Notes by 18024580 Page 1 of 23
Course Notes
Lecture 1: Introduction to Comparative Criminal Law and Justice
▪ Definition of Crime
An action or omission that constitutes an offence that may be prosecuted by the State and is punishable by
law.
- Illegal activity or serious wrongdoing;
- An action or an instance of negligence that is deemed injurious to the public welfare or morals, or
to the interests of the state and that is legally prohibited.
Criminal law: a body of rules involving the prosecution of a person for an act that has been classified as a crime
or offence.
Criminal Law (Criminal Justice): the body of law (statutes/ regulations/rules) that relates to crime. It includes
the punishment regime for people who violate criminal laws
i.e. criminal justice reflects on the nature and culture of politics in their societies [Per Dammer].
▪ Fundamental Principles of Criminal Law
Rule of Law
"No individual is above the law and everyone must answer to it.”
- Cornerstones of a democratic society;
i.e. everyone is subject to the law.
- Intended to be a safeguard against arbitrary governance
i.e. governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws that are
adopted and enforced in accordance with established procedure.
Essential Characteristics of Modern Constitutionalism
1. Limiting the powers of government;
2. Adherence to the rule of law; and
3. Protection of fundamental rights.
*The Rule of Law and the Legitimacy of Constitutional Democracy; Southern California Law Review [Vol. 74: 1307]
Role of lawyers
Lawyers act as the “gatekeepers”; they have the potential to become the great levellers between the powerful
and the less e.g. where law discriminate or is oppressive.
Principle of Legality
All law should be clear, ascertainable and non-retrospective.
- Decision makers resolve disputes by applying legal rules that have been declared beforehand.
- Criminal law: seen in the general prohibition on the imposition of criminal sanctions for acts or omissions
that were not criminal at the time of their commission or omission.
Article 11 of the Universal Declaration of Human Rights (UDHR): Right to the presumption of innocence
(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty
according to law in a public trial at which he has had all the guarantees necessary for his defence.
(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute
a penal offence, under national or international law, at the time when it was committed. Nor shall a
heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
, International Bachelor of LAW Program 2018-2019
Criminal Law Course Notes by 18024580 Page 2 of 23
Latin phrases
1. Nullum crimen sine lege “no crime without law” [Article 22 Rome Statute of the ICC]:
(1) A person shall not be criminally responsible under this Statute unless the conduct in question
constitutes, at the time it takes place, a crime within the jurisdiction of the Court.
(2) The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of
ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or
convicted.
2. Nulla poena sine lege “no penalty without law” [Article 23 Rome Statute of the ICC]:
A person convicted by the Court may be punished only in accordance with this Statute.
▪ Theories Justifying Punishment
Prosecuting crimes
- The constitution of a crime;
- The person deciding on criminal prosecutions; and
- The punishment regimes or approaches to sentencing varies from State to State.
Principles of Sentencing – Role of Punishment
Purposes of criminal sanctions [more @ Lecture 6]
- Retribution: The offender should “payback” society for the harm caused.
- Incapacitation: The person should be denied the opportunity to commit further crimes.
- Rehabilitation: The offender should be transformed into a law-abiding person through programs of medical,
psychological, economic, or educational improvement.
- Deterrence: The offender should conclude that the crime is not worth the risk of the resulting punishment.
i) Much debate about the effectiveness of punishment in deterring criminal acts.
ii) Highly democratic countries have eliminated the death penalty or resort to it infrequently.
Many states in the United States of America still execute people using a variety of methods.
- Restoration: The community, victim, and offender are involved in the sentencing process with the aim to
restore the victim and the community back to its previous state.
▪ Substantive Criminal Law vs. Procedural Criminal Law
Substantive Criminal Law
Defining crimes and may establish punishment dictates. e.g. the law prohibiting theft is a substantive criminal law.
- Crimes are often defined within the governing legislation
e.g. Theft: UK Section 1 Theft Act 1968 “[1] A person is guilty of theft if he dishonestly appropriates property belonging
to another with the intention of permanently depriving the other of it […].
Procedural Criminal Law
Providing the process whether a case will go to trial or not. And determining how a proceeding concerning the
enforcement of substantive law will occur.
Every state has its own set of procedures which are usually written out in a set of rules.
