Complete Summary Criminal Law - Notes on all Readings + Tutorials + other Materials

Notes on Modules & Readings 1 – 10 – Criminal Law
Maud van Deijne – Semester 2 (2023)

Module 1
KC 1
Criminal law = the field of law that determines which acts are criminal à a collection
of norms à transgression of these norms can result in punishment.
 Substantive criminal law = the law that refers to the body of rules that
determine how to behave, including its ‘criminal liability’ (the law that governs
which behaviour is seen as criminal)
- Mala in se = inherent wrongs (crimes such as murder, rape, etc.)
- Mala prohibita = Minor wrongs (such as illegal parking) à not part of
criminal law in all countries
 Procedural criminal law = the law that describes how to enforce substantive
criminal law à rules regarding the process
- Rules that regulate e.g., investigation, trial, appeal

Distinction between common law and civil law is no longer as obvious as one might
think: mixed systems exist too.

Criminal law is created by
 The state/federal legislator à national level
 Lower legislators (municipalities) à local level
 Criminal courts (esp. in common law countries) à court level
 Supranational institutions (e.g., European Union) à inter/supranational level

Main sources of criminal law
 Criminal codes
 Case law
 Congress/Acts of Parliament and government
 Treaties and other international or supranational regulations à result of
globalisation, because criminal law must keep up with more ‘modern’ crimes
and these are codified in international regulations and treaties to which states
must abide

Why do we need criminal law?
 Retribution = punishment (intentional infliction of suffering) is a deserved
response to culpable wrongdoing à Kant, Hegel
 Deterrence/prevention = criminal laws backed by sanctions deters people from
committing crimes (sanctions as a disincentive) à Bentham
 Rehabilitation = measures to impact the offender’s life in a positive way (e.g.
education in prison)
 Restauration = compensation states that punishment allows an offender to
make a mence and partially return the victim to the status quo ante

When can we use criminal law? When, in general, can a country hold an individual
criminally liable for violating criminal provision in any of its courts?
 Conditions of criminal liability à there can be no criminal liability without
wrongdoing that can be attributed to a particular actor who can be blamed for

, such wrongdoing à no criminal liability without culpable wrongdoing (expect for
strict liability offences such as speeding)
5 conditions of criminal liability in various criminal systems (conditions that
need to be met before someone can be held criminally liable)
- Act, actus reus, = voluntary commission (positive actions) or voluntary
omission (failure to act in line with a specific duty). A human doing must
have done something. Must be voluntary, the result of determination.
- Causation = the perpetrator caused the consequence
- Fault, mens rea in descriptive sense, e.g., direct/indirect intent
Mens rea = person must have acted with a guilty mind
o Descriptive sense: someone saw the action and knew about the
intention of the act (this was e.g., verbally explained: I am going to
steal your phone)
- Wrongdoing = harm in broader sense: no justification or no ground for
excluding criminal liability, e.g., self-defence or mental illness
- Blameworthiness, mens rea in a normative sense, no excuses or no
ground for excluding criminal liability then a person can be blamed à they
did not know the intention behind it, maybe someone was threatened to
commit a crime
Scope can be limited by justifications, excuses, or ground for excluding criminal
liability. But it can also be broadened e.g., attempting to commit a crime or aiding a
crime

Bipartite systems distinguish between objective and subjective aspects of crime only.
Framework of criminal liability in a bipartite system
1. Material elements such à act, causation, wrongdoing
2. Mental elements à fault and blameworthiness
Tripartite systems have a three folded framework of criminal liability
1. Fulfilment of the offence definition à ac, fault, and causation
2. Wrongdoing
3. Blameworthiness

 Jurisdiction = the power to make rules, to take action and punish and to hear a
given case.
- Two main heads of jurisdiction = territorial jurisdiction and extraterritorial
jurisdiction
- Two principles of extraterritorial jurisdiction
o The universality principle
o The nationality principle
1. Active nationality principle (double criminality required) à focuses
on the alleged perpetrator
2. Passive nationality principle (double criminality required) à link to
victim of the crime
Double criminality = a country has extraterritorial jurisdiction over a certain act if the
conduct is also punishable under the legislation of the country on which territory it
was committed. à if you want to claim jurisdiction in a different country the act must
be a crime in both countries: the country on which territory the act happened and the
country claiming nationality jurisdiction (has to be foreseeable whether the act is a
crime or not)

,Introduction of the book
Criminal law has a dual function: it lays down the rules under which the state can
exercise it powers and thereby protects the citizen from arbitrary state measures: it
polices the police. But it is also a tool to control deviant social behaviour: it polices
society.

Three penal systems used in the book:
1. England and Wales: the paradigm of the common law tradition
- Case-law based, foundation can often not be found in a criminal code
- Law is developed organically from jurisprudence
- Inductive reasoning
2. Germany: representative of the civil law tradition
- Strict code-based system + concept-driven
- Law is developed systematically
- Deductive reasoning
3. The Netherlands: variation of civil law traditions
- Code-based system
- Judicial pragmatism + focus on effectiveness
- Medium position between the highly systematic and complex German and
the casuistic and result-orientated English

Ch. 1 – Theories of Punishment
Two primary goals for punishing offenders
 Retribution
 Prevention
à these goals can both be questioned as to how effective/necessary they are

Punishment = the intentional infliction of suffering à many definitions exist, nowadays
definitions are much broader. HLA Hart defines the following cumulative elements of
punishment
1. Must involve pain or other consequences normally considered unpleasant (the
intentional addition of suffering)
2. Must be for an offence against legal rules
3. Must be of an actual or supposed offender for his offence
4. Must be intentionally administered by human beings other than the offender
5. Must be imposed and administered by an authority constituted by a legal
system against which the offence is committed.
Classic definition = reaction by the state to a breach of criminal law containing the
intentional infliction of suffering

Criminal law is a form of public law à vertical legal relationship between government
and citizen. Crime = a public wrong thus it affects (concerns) the public at large, tort
= a private wrong thus it only affects the victim.

Because of its violent character and difficulty in moral perspective, punishment
requires legitimisation. The period of enlightenment had two distinct views on
mankind and the world (body and spirit), which led to theories of legitimisation of
punishment (theories on why we may punish people)
 Retributive theory

, - Man has free will and is responsible for his conduct à coherence between
punishment and guilt (culpability or blameworthiness): only when a crime
has been committed in free will can it be repaid with punishment à
therefore people deserve to be punished (they also had the option not to
commit the crime)
- Someone should be punished because a crime has been committed: focus
on the past à punishment to ‘settle the score’
- Punishment always has to take place, even if it may have negative effects
on retribution
- Punishment should be proportional to the seriousness of the offence and
the culpability of the offender (relating punishment to the magnitude of the
injustice and the culpability)
o Positive retribution: a crime should be repaid in full
o Negative retribution: a crime can be repaid fully but that is not
necessary
- Possible criticism:
o Why should punishment be inflicted in the first place
o The original situation cannot be restored à one wrong cannot be
erased by another wrong (an eye for an eye makes the whole world
blind)
o By punishment the balance between gains and burdens in society is
restored by committing a crime an offender enjoys an unjustified
advantage?
o Just because people want revenge because of crimes committed by
offenders, does not mean that these feelings should be satisfied
through punishment
o Does not always satisfy the feeling of revenge
o By punishment, the crime is denounced as morally reprehensible
behaviour
 Utilitarian/consequentialist theory
- Man can be influenced by biological, phycological and social factors, and
by revealing those causes of a crime, it can be controlled will the offender
act differently in the future if he is punished (man is a machine: every crime
is ‘determined’ by other factors people do not have an influence on
beforehand and a person is not able to do anything about it) à no free will:
a person was not able to choose, so people cannot be held responsible for
a crime and retribution is not possible
- Punishment is required so that future crimes may be prevented: goal and
justification of punishment (and threat of punishment) is prevention of
future crimes
- Crime is viewed as a social risk that should be controlled by means of
punishment
o Risk the offender poses to society is the determinant factor for
establishing the severity of the punishment in combination with the
seriousness of the crime
o Punishment is only justified when it actually prevents future crimes,
it is subsidiary (last resort), and it is proportional
- Possible criticism
o Discussion whether punishment actually prevents crimes