Criminal Law I
Cje
Class 5 & 6
Structure of a Criminal Offence I
Karolina Kremens, LL.M., Ph.D.
Wojciech Jasiński, Ph.D.
Department of Criminal Procedure
Faculty of Law, Administration and Economics
University of Wrocław
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
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
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)
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
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)
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
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)
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
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
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
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
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
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)
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
CLASSIFICATIONS OF CRIMINAL OFFENCES
- Character/type of an offence
- Gravity of an offence
- Source of law
- Procedure
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
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
prohibited by law)
because
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
CLASSIFICATION OF CRIMINAL OFFENCES
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)
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
CLASSIFICATION OF CRIMINAL OFFENCES
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
CLASSIFICATION OF CRIMINAL OFFENCES
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;
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
CLASSIFICATION OF CRIMINAL OFFENCES
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
CLASSIFICATION OF CRIMINAL OFFENCES
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)
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
CLASSIFICATION OF CRIMINAL OFFENCES
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
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
CLASSIFICATION OF CRIMINAL OFFENCES
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
CLASSIFICATION OF CRIMINAL OFFENCES
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
CLASSIFICATION OF CRIMINAL OFFENCES
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
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
CLASSIFICATION OF CRIMINAL OFFENCES
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)
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
OFFENDER
1) Natural person
2) Legal
person
liability)
3) Animal (?)
4) Robot (?)
(corporate
criminal
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
OFFENDER
Legal person (corporate criminal liability)
-
Criminal? liability
-
Culpability?
-
Justification
for
corporate
criminal
liability?
-
Necessity of corporate criminal liability?
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
OFFENDER
Natural person
1) Capacity
-
Age
-
Mental capacity
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
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)
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
AGE OF CRIMINAL LIABILITY
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
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
AGE OF CRIMINAL LIABILITY
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
AGE OF CRIMINAL LIABILITY
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
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
AGE OF CRIMINAL LIABILITY
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)
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
AGE OF CRIMINAL LIABILITY
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
AGE OF CRIMINAL LIABILITY
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
AGE OF CRIMINAL LIABILITY
European Court of Human Rights
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
AGE OF CRIMINAL LIABILITY
European Court of Human Rights
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
AGE OF CRIMINAL LIABILITY
European Court of Human Rights
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
AGE OF CRIMINAL LIABILITY
European Court of Human Rights
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
AGE OF CRIMINAL LIABILITY
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
AGE OF CRIMINAL LIABILITY
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 agelimit 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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
AGE OF CRIMINAL LIABILITY
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
AGE OF CRIMINAL LIABILITY
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
AGE OF CRIMINAL LIABILITY
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).
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
AGE OF CRIMINAL LIABILITY
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
AGE OF CRIMINAL LIABILITY
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
AGE OF CRIMINAL LIABILITY
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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
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
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
SPECIAL FEATURES OF THE OFFENDER
- Not all offences can be committed by
everyone
-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
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
SPECIAL FEATURES OF THE OFFENDER
- Not all offences can be committed by
everyone
-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
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
SPECIAL FEATURES OF THE OFFENDER
- Not all offences can be committed by
everyone
- activity undertaken
A person who drives a mechanically propelled
vehicle dangerously on a road or other public
place is guilty of an offence
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
SPECIAL FEATURES OF THE OFFENDER
- Not all offences can be committed by
everyone
- profession/position held
Common law offence of misconduct in
public office
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
SPECIAL FEATURES OF THE OFFENDER
- Not all offences can be committed by
everyone
- 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.
Lecture
STRUCTURE OF A CRIMINAL OFFENCE I
SPECIAL FEATURES OF THE OFFENDER
IMMUNITIES
1) Absolute immunity from prosecution
2) Criminal liability depending on the
removal of the immunity