What does criminal law entail?
To determine the scope of Criminal Law and the limits within which crime and law interact, it’s pertinent to appreciate the definition of crime;
- Glanville William defines crime; as an act capable of being followed by criminal proceedings having a criminal outcome.
- Blackstone’s 18th On the other hand, century definition looks at a crime being public harm suffered as a result of criminal conduct.
- According to Smith and Hodgan, crime is defined as a public wrong. Therefore, every public member can bring a criminal wrong for prosecution whether or not they have suffered any damage. Smith and Hodgan argue that other members of society has an interest in any criminal wrong committed.
- Cut cross and John also defines crime as an illegal act, omission, event whether or not it is a tort for breach of trust, of which, if detected, a person can be prosecuted.
As already noted, Criminal Law is, therefore, an institution that is designed to protect society from substantive harm by imposing sanctions upon some individuals known as offenders.
Criminal law should be backed by sanctions where if any person breaks any rule of criminal law, they are arrested, tried and punished if found guilty.
Note: One of the common elements is that ALL criminal proceedings are conducted by the state.
no crime without law and No punishment without Law.
Article 28(7), No person shall be charged with or convicted
of a criminal offense which is founded on an act or omission that did not at
the time it took place constitutes a criminal offence. Read Article 28 (12)
These two ancient principles of criminal law are the basis for Crime control in a Constitutional democracy that depends on principles.
Why Criminal Law developed
· It exists as an instrument of social control in society. Human beings are weak. They have a bad disposition and therefore have to do wrong.
· It also developed because of conflicts among members of society. Note that everyone in society would want something another may not have.
· It was developed to preserve society against unsocial tendencies. I.e. it was important to set down the dos and don’ts in society.
Purpose of Criminal Law
· Forbid and prevent conducts that are unjustifiably and inexcusably threatens or inflicts substantial harm to an individual. It calls for respect for property and life.
· It also subjects public control of persons whose conduct indicates that they are disposed to commit a crime.
· Gives a fair assessment of the nature of the conduct to be declared as an offence.
· To differentiate on reasonable grounds between serious and minor offences.
General functions of criminal law
·
preserve public order and decency.
· Protect people and their property
· Protects citizens from what is offensive and injures.
· Provides sufficient safeguards against
exploitation and corruption of the more vulnerable members of society e.g.
children, old persons. Etc.
· Punishes those who deserve punishment
Methods/Punishments of Criminal Law
A person who commits an offence is arrested, tried, and punished if found guilty. For that matter, courts can impose the following punishment;
Caution
A Judge or Magistrate can caution the accused. The reason for the punishment is intended to change their conduct for the better. If the person commits the offence again, more punishments are inflicted.
Fine
An accused person can be fined or asked to repay the money because of his committed offence.
Imprisonment
An accused can be confined in a certain place and excluded from his normal life, and such a place is a prison.
Corporal Punishment
This is administered by hitting the convict on the buttocks.
However, it cannot be administered to people below 18 years and above 45 years.
In Uganda, corporal punishment is unconstitutional. See the
case of Salvatory Abuki V A.G.
Death
The law in Uganda states that for capital offences, the maximum punishment is death.
See (Attorney General V Susan Kigula & 417 ors)
Remanding for children in conflict with the Law
For young people, once they are in conflict with the law, they are remanded in a remand home.
Reconciliation
This is not a punishment as such, although; courts under the Magistrate Courts Act are empowered to promote reconciliation.
However, this can only be promoted where the offence is not serious.
Community
service
It’s where the offender is placed at a placement institution for purposes of doing some community work as a punishment for his wrongdoing.
Why Criminal Law Applies Punishment
Several theories explain the rationale of punishment in criminal law;
Deterrent theory
This theory aims to make the offender an example and a warning to all other would-be offenders. It is believed that once a convict has been given a punishment, other potential criminals might fear committing the same offence.
However, the effectiveness of this theory is debatable since similar crimes are being committed all the time.
Preventive theory
Punishment seeks to prevent the repetition of the criminal act by disabling the criminal. e.g. If a convict for theft has been sentenced to 9 years, it is likely to prevent the same convict from committing the same offence once they are kept away from society for that period of time.
Reformative or rehabilitation
A criminal is punished so that they can be reformed. There are two ways in which the person can reform. In prisons, people are trained to do some skills which can make the reform. It can also be done through probation, i.e. being monitored.
Retribution
This theory serves to satisfy the emotions of victims of the criminal wrong and the public at large.
Educative theory
It is allied to both deterrent and rehabilitation. The purpose might be to educate the masses on certain behaviour.
Read Next: Introduction to Criminal Law Notes- Part 2
SAMPLE QUESTIONS
1. Discuss the functions of criminal law in
society?
2. Discuss the justifications for
the application of punishments in criminal law
3. Elaborate on the different punishments
that can be imposed on a criminal
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