Overview of the Principles of Criminal Law
Criminal law, in its broadest sense, plays a fundamental role in our justice system. It serves as the foundation upon which our criminal justice system is built and executed. Criminal law or penal law is the body of law that relates to crime. This law proscribes conduct deemed harmful to society and establishes punishments for those found guilty of committing crimes. Each state has its own criminal code and penal code that defines crimes and determines punishments for violations. Included in the penal codes are the principles of criminal law. These principles form not only the backbone of criminal law, but also the fundamental rules of criminal law. They are the foundation for the legal process and serve as the primary theories that underlie the law. The following seven principles are used to explain the criminal law: The principle of legality , the principle of culpability, the principle of liability, the principle of punishment, the principle of the cape of the person; the principle of proportionality, and finally, the principle of regularity. The principle of legality states that no one can be convicted of a crime unless a law clearly defines the action as a crime and establishes a punishment for committing the crime. The principle of culpability states that no one can be held responsible for a crime unless they are found guilty beyond a reasonable doubt. The principle of liability states that the person committing the crime should be liable for all damages caused to the victim(s) of the crime. The principle of punishment states that the punishment should match the crime and must be fair. This principle also states that the punishment must be without excessive cruelty or discrimination.
Principle of Legality: No Crime or Punishment Without Law
The legality principle, or the principle of legality (Latin: nullum crimen, nulla poena sine lege), is perhaps one of the most vital principles of criminal law. It ensures that no one is punished without a law defining punishable conduct and establishing appropriate punishment beforehand (nullum crimen et nulla poena sine lege), and prevents arbitrary prosecution of individuals. Without it, considerable abuse of power would result from using vague or undefined laws to pursue criminal sanctions.
Crimes and punishments that are predetetermined for particular conduct create a bulwark against arbitrary and unjust prosecution. It follows that no one would be punished in a way not established in the criminal code for conduct that was not defined by the code as criminal. It is through this that the principle safeguards individuals from government abuse of power, and guarantees the right to fair treatment before the law.
In short, the principle of legality is one of the most important facets of criminal law, preventing both arbitrary prosecution and overly vague definitions of punishable conduct.
Actus Reus: Commission of the Criminal Act
A formal charge of guilt or innocence in a court jurisdiction requires that the prosecutor "prove" certain elements of the offense, generally in a beyond a reasonable doubt standard, to achieve a conviction. One of those elements is referred to as actus reus, which translates from the Latin phrase "guilty act" and typically addresses the physical act or a criminal omission, i.e., not doing something when the law requires an action, constituting an offense. It was a necessary prerequisite in the past to proving the mens rea or mental state required for criminal intent, but under modern criminal law, the concept of actus reus has expanded to include the mens rea elements. For example, statutory rape laws have traditionally required proof of the actus reus of sexual intercourse with the victim be accompanied by the mens rea of sexual intention. In some jurisdictions, in the absence of a statute, criminal liability for statutory rape can be avoided by the defendant proving he or she did not objectively know, or could not reasonably have been expected to know the victim was underage. Such a defense would arguably eliminate ultimate guilt of actus reus by virtue of establishing mens rea of intention.
Generally, actus reus is established through physical evidence, in the form of witnesses, photographs, or other applicable means of establishing that the defendant acted in a way that resulted in the perpetration of an unlawful act. Following its origin in England, which implemented the common law rule, for many years actus reus was part of criminal law in the United States. However, now the requirement under English law that an act must be a voluntary act, accompanied by the guilty intent, is applied under strict liability criminal statutes in the United States.
There are three commonly recognized categories of actus reus:
The first two categories of actus reus, voluntary and involuntary acts, generally require proof of intervening events to prove causation, in addition to the goal of determining the actions of the defendant. The third category of actus reus addresses situations where the defendant simply failed to act, requiring proof of the element of a particular duty, again considering intervening circumstances to establish causation.
Mens Rea: Criminal Intent
A person does not necessarily commit a crime even when he or she did the act which is a crime unless he or she had the requisite state of mind or intent to commit the crime. The basic criminal act which, for example, we refer to libelous publication, is not in itself a crime. It becomes a crime only because the act was done knowingly and maliciously. A salutary purpose of the law of crimes is that men shall not be punished for doing innocently what they believe to be lawful. They shall not be punished for lapses of judgment. The law condemns crime, not mental aberration and moral feelings. The law does not concern itself with errors of judgment. It does not punish a man for making mistakes of law or facts which not only influence his conduct but which also enter the definition of the crime.
The defendant’s intent or state of mind is an essential element of his guilt. It is the general rule in American criminal jurisprudence that a crime includes a mental element. The most familiar expressions of this rule are "a guilty mind," "a guilty intent," "criminal intent," "willfulness," "malice," "general intent," "specific intent," "scienter," and "mens rea." This does not mean that a person cannot be punished criminally unless he intended to violate the law. Because the law is concerned with the moral aspect of human conduct, the law permits convictions without ‘mens rea’ only in exceptional cases. Generally speaking, the offense must be a social danger, the offense is evil, the actor is at fault. But if the evil may be prevented only by punishment, the intent element in this case is punishment is a moral intention, although not alleged in the indictment.
Concurrence of Actus Reus and Mens Rea
Concurrence refers to the necessity that there must be a concurrence between the actus reus (criminal, wrong or tortious act) and culture mens rea (criminal intent or state of mind). In other words, this principle as a legal requirement that the criminal act elements and the criminal state of mind must both exist for a crime to be proven . For example, if neither are present, then a crime cannot be established. At the same time, this means that the actus reus (criminal act) could exist without the mens rea (criminal state of mind), when either the criminal act was performed but there was no intent to do so, or if the criminal intent was there but the criminal act did not actually occur.
Causation: Connecting the Crime to the Result
A principle of criminal law that was recently reviewed by the Supreme Court of Canada in the case of R v Majewski, 2019 SCC 55, is causation. Causation generally establishes the connection between the act of the accused and the result or crime that occurred. The principle of causation states that a person who sets in motion a chain of events is liable for all that he sets in motion. It can be summarized as "but-for" causation. It is inextricably linked to the principle of criminal causation. For example, in the case of murder, a person will not be found guilty of murder unless it can be shown that his act caused the death of the victim.
In addition to establishing that the accused committed the act, the prosecution must prove other elements of the specific offence. The prosecution must prove causation (the connection between the act of the accused and the result of the act) unless an offence specifically identifies the act that is sufficient to establish liability. Thus, where statute or common law establishes a penalty for a result of an act, or for the result specifically of a criminal negligence act, or of doing something specific, the principle of criminal causation does not apply (e.g., causing death or injury, failure to provide necessaries, creating a danger) because the act itself creates liability and does not require the establishment of any link between the act and a result.
The defence may argue that the accused’s actions were solely responsible for the act or that the act was done by someone else. There are two essential elements of a crime: the prohibited act and the required mental state (ontario.ca). Criminal conduct requires a wrongful act, including an omission to act when there is a duty to do so, plus some mental element such as intent, knowledge, recklessness, or criminal negligence (Criminal Code s. 21). The required mental element includes the concepts of mens rea (guilty mind) and the mental element of criminal negligence. Mens rea is intent and knowledge. For example, the element of mens rea is a necessary element of the offence of first-degree murder – the causing of the death of a human being, which was planned and deliberate on the part of the accused. First degree murder must be carefully planned. The accused is precluded from relying on a defence of duress to escape criminal liability in relation to murder.
Direct consequences are the "results directly attributable to the actions of the actor" or the product of the policy itself (menandwomenofcanada). For example a person is harmed by cancer despite having taken reasonable care that cancer does not develop. The general guideline to evaluate direct consequences is that "if an event is not reasonably foreseeable, it cannot be regarded as a consequence." Indirect establishment of intention and knowledge, in combination with negligence, was considered in R v Hinchey, [1996] 2 S.C.R. 312, at 343, and McDonald Estate v Normal (Executive Director of the Public Guardian and Trustee), [2013] O.J. No. 1864, at 44-46, as follows: "when the victim of the offence is not the one who is intended to suffer the consequences of the act, the mens rea requirement may be satisfied by proof that the foreseen risk nevertheless satisfies the mens rea of negligence." For example, the creator of an abnormally dangerous nuisance who trespasses on the property of another makes himself liable for the consequences, whether direct or indirect, of the danger (menandwomenofcanada).
Harm: Crime Must Result in Harmful Act
The prohibition against harm is predicated on the necessity of a harmful result from the criminal act. In the criminal law, a successful conviction requires the defendant to have caused a harmful result. But what exactly qualifies as harm?
Harm is the condition or injury that inflicts on the victim some form of suffering. Harm can take the form of physical injury, mental injury, emotional injury—or a combination of the three. That physical harm must occur isn’t in question. But if a defendant has caused a victim significant physical damage to their body, it doesn’t mean that someone else can’t also charge that defendant with emotional or mental harm as well.
Note that harm is not defined as mere hardship. The seminal case, Actus Reus: The Act Requirement in Criminal Law, explains that while the harm need not be physical, or at least physical in some way — as is the case in video voyeurism — it must be a "harmful and deleterious result."
Some might argue that this definition is subjective when it is often the case that the prosecution has much broader discretion on the definition of harm, thereby allowing for a greater burden of proof on the defendant. However, this interpretation ignores the necessity of the actual "result" providing sufficient notice for the defendant, who is not required to predict further, more potential consequences of his proscribed action.
Punishment: Severe but Fair Consequences
Criminal law operates on the premise that for every action there is a reaction that society believes is applicable. Also commonly known as the doctrine of just deserts, this principle states that for every crime there is a punishment that fits the crime, neither more nor less. This principle goes so far as to say that any punishment that is not proportionate to the offense is unjust. Application of this principle appears in American law as the Eighth Amendment to the Constitution which states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
To further clarify the criteria for "just punishment," several theories have emerged, each carrying their own philosophy of how criminals should be treated by society and the criminal justice system at large. These theories include punishment as deterrence, punishment as rehabilitation, punishment as incapacitation, punishment as retribution and punishment as restitution.
The theory of punishment as deterrence suggests that the imposition of a penalty is meant to dissuade the offender from committing the same crime again, as well as discourage others from committing that particular crime. Deterrence does not require that the person punished actually be deterred in order for a peaceable public to consider order restored. Rather, deterrence theory can be simply the ability of the criminal justice system to punish an offender in a way that is appropriately painful and sufficiently public that citizens will not want to risk becoming future offenders.
The theory of punishment as rehabilitation takes the stance that the goal of punishment should be to re-educate the offender in order to prevent future criminal actions. Rehabilitation might apply only to those individuals who are deemed redeemable through counseling, medical intervention and education , and prevention plans such as parole and probation. For the majority of offenders, however, the law has been observed over time to be a deterrent factor that prevents repeat crimes.
The incapacitation theory says that the purpose of punishment should be to prevent future crimes, not punish the past. Under this theory, prison or other such invalidation of the offender is believed to keep that particular individual from being able to commit future crimes while still offering prisoners the chance of rehabilitation through education and vocational training. While incapacitation has its critics, it has perhaps created the most recent evolution in criminal law in the form of the three-strikes laws that have come about in the last thirty years or so, also known as mandatory minimum sentencing laws.
The theory of punishment as retribution is based on the idea that the offender deserves to be punished but not the idea that the offender should be punished because the community needs to be protected from him/her. On its face, retribution seems contradictory to deterrence theory, since in order to be precise and proportionate to the crime, punishment therefore must fit the person being punished. The punishment is not seen in this case as the affecting of the greatest amount of people with the least amount of effort, as is the case with deterrence theory, but instead is viewed as a sort of equalizer social contract that serves to mete out appropriate action to any given crime. Finally, the theory of punishment as restitution argues that a criminal act performed in private is a kind of civil matter. Who is to say that if two neighbors, for instance, have a dispute that results in one neighbor damaging the other’s fence, the answer is not a court judgment wherein damages are paid by the offending neighbor but, instead, a state-facilitated charge of breaking the law that brings societal domain over the acts of one neighbor against the other.