When was criminal law created

If courts are to develop criminal defences so that their contours track culpability, they need to know why each defence makes it the case that those who plead it are not culpable. Is there a defence of necessity because we sometimes do the right thing by choosing the lesser of two evils? Or does the defence exist because actors sometimes make wrongful choices under enormous pressure, and because there is sometimes nothing culpable about giving into the pressure?

How courts should develop the defence depends on how they answer these questions. It depends on whether they conceive of the defence as a justification or an excuse. A second reason to make the familiar distinction invokes the idea that criminal trials call defendants to account.

On this view, trials are in one way continuous with life outside the law—they institutionalize our ordinary moral practice of making and replying to accusations Gardner , —; Duff, c; ; a. When accused of wrongdoing in our everyday lives, most of us do not only care about whether we end up being blamed. Where we did nothing wrong, we try to convince our accusers that this is the case: it matters to us that others not add wrongs to the story of our lives, even if we know that they will otherwise conclude that we acted blamelessly.

There is no reason to think that things are different in criminal courts: that those accused of crime should, or do, care only about getting off the hook. By retaining distinct justificatory and excusatory defences, the criminal law gives effect to our interests in presenting ourselves—to our accusers and to others—in the best available rational light Gardner , Let us turn, then, to the second of our questions.

Is it true that justifications deny wrongdoing? Is it true that excuses deny responsibility? Some think both questions should at least sometimes be answered in the negative. True, those who act in self-defence plausibly benefit from an exception to the duty not to harm others.

If this is right, those who plead a justification do not always deny, but sometimes concede, wrongdoing. It is the wrong that they then try to justify Gardner , 77— The familiar account might be thought to be on firmer ground when it comes to excuses.

Grant that to plead an excuse is indeed to deny culpability. The same is true of a justification. So there is nothing here to distinguish the two. Do excuses, then, deny responsibility? At least sometimes, they do not.

True, those who plead insanity deny that they were capable of responding to reasons when they acted. But this is not true of other excusatory pleas. This does not mean that duress is a justification. Two points emerge from these remarks. The second is that a bipartite classification of criminal defences obscures distinctions we have reason to make. Some respond by distinguishing denials of responsibility like insanity from excuses like duress , and distinguishing both from justifications like self-defence and necessity.

Excuses and justifications, so understood, are both assertions of responsibility and denials of culpability. Justified actors have undefeated reasons for their actions. Excused actors live up to reasonable expectations despite lacking such reasons Gardner , 91—; Simester , 99— Though this tripartite classification is an improvement, some maintain that further distinctions should be drawn Duff , —; Simester Just how numerous the categories of criminal defence are or ought to be is a topic for future work.

What may officials of the criminal justice system do in response to those reasons? What should they do, and refrain from doing?

As a matter of law, the answer depends on norms of criminal procedure and evidence. Think of stop and search, intrusive forms of surveillance, and pre-trial detention. Yet other norms govern the way in which one aspect of the criminal justice system should respond to the misconduct of others. If so, on what grounds should they do so? Ashworth ; Duff et al , — The norms I have mentioned are somewhat neglected by philosophers of criminal law.

Things are different when it comes to the so-called presumption of innocence PI. The most well-known judicial formulation of PI is found in Woolmington v. So understood, PI allocates the burden of proof in criminal trials to those on the accusing side. Though these points are widely accepted, they leave open a range of further questions about the scope and basis of PI.

The following remarks touch on just some for an overview, see Lippke One question is whether PI has implications for criminal procedure that extend beyond the criminal trial. On one view, PI just is a norm that governs the burden and standard of proof at trial. On another, PI is something more expansive: it is a norm that tells criminal justice officials—and, perhaps, the rest of us too—how to interact with others, including those suspected of crime Stewart , Duff b.

That norm of course has implications for the moment of trial. But its implications extend both backwards and forwards from that point in time. They extend backwards to decisions about whether to arrest, prosecute, or detain those suspected of criminality Ashworth , ; Duff b, —; Stewart , And they extend forwards to decisions both about how much to punish Tomlin a , and about the appropriate collateral consequences of conviction and punishment Duff b, — A second question is whether PI has implications for the substantive criminal law.

Some writers—and most courts—think not. They give PI a purely procedural interpretation Roberts ; Lippke It has been argued, however, that all such interpretations are implausibly narrow Tadros ; ; Tomlin Imagine it is an offence to possess information of a kind that might be useful to terrorists, with the intention of committing acts of terror. Intentions like this are often difficult to prove. The Woolmington formulation suggests that this move violates PI. Assuming that the prosecution must prove every element of the revised offence, this move brings the law into conformity with a purely procedural PI.

Now most writers—and most human rights treaties—consider PI to be an important right that protects criminal suspects against the state. Examples like the above show that the purely procedural interpretation has the following implication: legislators who offer suspects less protection somehow better conform to the right. Not only is this counterintuitive, it renders the right toothless in the face of legislative creativity Tadros This is, some conclude, sufficient reason to reject the purely procedural PI.

What those elements are is a separate question. Some endorse a revised view that makes PI more demanding.

These writers distinguish between elements of offences, and the wrongs taken by offence-creators to justify convicting and punishing offenders. To see the difference this revision makes, imagine legislators make it an offence to possess information that might be useful to terrorists.

An intention to commit acts of terror is no element of the offence as legislated. Our legislators do not, however, think that all those who possess such information should be convicted and punished. This, they know, would be ridiculous overkill. They think that possessors who intend to commit acts of terror should be convicted and punished.

This element of intention is omitted from the offence, because omitting it makes securing convictions easier for prosecutors, thereby reducing the risk that those planning acts of terror will get off the hook. PI , on the revised view, nonetheless requires proof of the intent: ex hypothesi , it is possession with an intention to commit acts of terror that is taken by law-makers to justify convicting and punishing offenders. So understood, PI is anything but toothless. It is often claimed, nowadays, that too few suspected wrongdoers are convicted of crimes, and that new criminal laws are needed to help secure more convictions.

On the revised view, legislators can create as many criminal laws as they want in pursuit of this objective. But no-one who pleads not guilty may be convicted under them without proof that they are the wrongdoers they are suspected of being. That it provides anyone who faces criminal charges with this kind of protection against the law, is what makes the case for the revised PI. Features of Criminal Law 2. Functions of Criminal Law 3.

Justifications of Criminal Law 4. The Limits of Criminal Law 5. Criminal Responsibility 6. Features of Criminal Law The life of the criminal law begins with criminalization. Functions of Criminal Law Few deny that one function of criminal law is to deliver justified punishment. The Limits of Criminal Law No-one denies that some things should not be criminalized. A second defence of MR appeals to the rule of law RL : RL the law should be such that those to whom it applies can use its norms to guide their conduct.

The connection between RL and MR is clearly stated by Gardner: According to the ideal known as the rule of law, those of us about to commit a criminal wrong should be put on stark notice that that is what we are about to do. The criminal law should not ambush us unexpectedly. Of course, to avoid unexpected ambushes we all need to know what the law requires of us.

For that reason, criminal laws should be clear, open, consistent, stable, and prospective. For we may know the law and yet have no grasp that what we are about to do might constitute a violation of it. That is because often we have no idea which actions we are about to perform. I make a light-hearted remark and surprise! I offend one of my guests. I turn on my oven and surprise! I blow all the fuses. The mens rea principle is the principle according to which such actions — the self-surprising ones — should not be criminal wrongs Gardner , 69— DPP [] UKHL 1: Throughout the web of the English Criminal Law one golden thread is always to be seen … No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

Bibliography Alexander, L. Shute and A. Simester eds. Alexander, L. Ashworth, A. Shute, J. Gardner, and J. Horder eds. Duff, et al. Austin, J. Baron, M. Boonin, D. Brink, D. Campbell, K. Dennis ed. Chalmers, J. Chiao, V. Christie, N. Coons, C. Weber eds. Dan-Cohen, M. Dempsey, M. Cruft, M. Kramer, and M. Reiff eds. Devlin, P. Dorfman, A. Duff, R. Simester ed. Duff and S. Green eds. Green and B. Leiter eds. Dyson ed. Ferzan and S. Morse eds. Moore , Oxford: Oxford University Press. Chalmers, F.

Leverick, and L. Farmer eds. Dworkin, G. Edwards, J. Simester, A. Neumann eds. Feinberg, J. Fletcher, G. Gardner, J. Part 1. Christopher eds. Horder ed. Green, L. Keown and R. George eds. Greenawalt, K. Harcourt, B. Harel, A. Hart, H. Ho, H. Holtug, N. Hoskins, Z. Flanders and Z. Hoskins eds. Husak, D. Lamond, G. Lee, A. Lippke, R. Marshall, S. McMahan, J. Mill, J. Moore, M. Nagel, T. Raz, J. Redmayne, M. Roberts, P. Ripstein, A. Schauer, F. Zedner and J. Roberts eds. Baker and J. Stewart, H.

Tadros, V. Thorburn, M. Tomlin, P. Wellman, C. Wellman and A. Criminal Code Act On 28 April a lone gunman killed 35 people at Port Arthur, Tasmania. This led to the Commonwealth passing legislation to implement a gun buyback scheme to assist the States recall certain firearms and to restrict importation of various firearms.

National Firearms Program Implementation Act Customs Prohibited Imports Regulations Commonwealth legislates to repeal decriminalisation of euthanasia in the Northern Territory. First use of Commonwealth territories power to override a territory law. Euthanasia Laws Act CrimTrac Agency established to provide national databases of criminal information eg DNA, fingerprints, child sex offenders. CrimTrac Agreement.

Corporations power referred from the States. This was the most significant transfer of constitutional power from the States to the Commonwealth. Legislation provides for offences committed by corporations and their directors and boards. Corporations Act and related State and Territory legislation. First Commonwealth anti-terrorism legislation. The Northern Territory in its Criminal Code was the first jurisdiction to make terrorist actions an offence in Commonwealth, State and Territories Agreement on Terrorism and Transnational Crime leads to referral of anti-terrorism powers to the Commonwealth.

Australia implements the Rome Statute of the International Criminal Court and accepts the jurisdiction of the Court to investigate and prosecute genocide, war crimes and crimes against humanity. Security Legislation Amendment Terrorism Act Text of Agreement see p. International Criminal Court Act Law Enforcement Integrity Commission established to investigate misconduct by law enforcement officials. First conviction under sex slavery and sexual servitude provisions in the Criminal Code.

Law Enforcement Integrity Commissioner Act Australian Parliament House is currently closed to the public. Milestones Details Source Documents Queensland passes first Criminal Code, developed by Sir Samuel Griffith, which incorporates common law and statutory offences into one piece of legislation. Criminal law matters were generally left to the States except for matters coming under Commonwealth jurisdiction Commonwealth of Australia Constitution Act First Commonwealth criminal offences created in the Audit Act, dealing with public service fraud, forgery and perjury.

Comes into force on 1 January Audit Act First treason trial after involving an Australian. Australian Dictionary of Biography As a result of a scandal in the dairy industry the first corruption offences were introduced Secret Commissions Act January 1.

First prohibition of a recreational drug made, by proclamation under the Customs Act , when importing opium was prohibited except for medicinal purposes Commonwealth of Australia Gazette, no. Customs Proclamation dated 7 September prohibiting the importation of non-medicinal opium Crimes Act Commonwealth of Australia Gazette, no. It was abolished in and its functions taken over by the Investigation Branch of the Attorney-General s Dept War Precautions Regulations , Reg 64D, inserted by Statutory Rule no , , made 27 November Sedition made a Commonwealth offence, by inserting s.

It was repealed in National Security Act Australian Security Service, the forerunner of the Australian Security Intelligence Organisation, established Offences re broadcasting blasphemous, indecent or obscene material made. Offences dealing with victims of war and genocide created.

Prime Minister s Directive Geneva Conventions Act ; Genocide Convention Act The last sedition trial in mainland Australia was an unsuccessful prosecution by the Menzies Government of another member of the Communist Party in Sweeny v Chandler, an action prosected in the Sydney Court of Petty Sessions, which resulted in dismissal of the charges on the 18th September Before this the Commonwealth used United Kingdom legislation and treaties Extradition Commonwealth Countries Act ; Extradition Foreign Countries Act Although the Commonwealth does not operate any prisons, it passed legislation providing for minimum terms of imprisonment for Commonwealth offenders Single Convention on Narcotic Drugs implemented in order to regulate the manufacture of certain drugs for medicinal purposes Commonwealth Prisoners Act Narcotic Drugs Act Violent demonstrations in Territories or on Commonwealth premises attract a penalty of 3 months imprisonment.

States and Territories had already abolished capital punishment from The Committee on Computerisation of Criminal Data recommends an Australian Crime Information Centre ACIC be established to store, retrieve and analyse criminal justice information October Assets of convicted criminals now subject to confiscation.

It was abolished in [1 st] interim report: computer crime Between and it issues 12 discussion papers, 11 reports and 5 model provisions July 1 st.

Government Model Criminal Code A. The first time the federal government uses its external affairs power under s 51 of the constitution to override a state criminal law Crimes Child Sex Tourism Amendment Act Human Rights Sexual Conduct Act Criminal Code Act implements provisions of the first report of MCCOC issued in on criminal responsibility.

This led to the Commonwealth passing legislation to implement a gun buyback scheme to assist the States recall certain firearms and to restrict importation of various firearms National Firearms Program Implementation Act Customs Prohibited Imports Regulations Commonwealth legislates to repeal decriminalisation of euthanasia in the Northern Territory. Legislation provides for offences committed by corporations and their directors and boards Corporations Act and related State and Territory legislation First Commonwealth anti-terrorism legislation.

The Northern Territory in its Criminal Code was the first jurisdiction to make terrorist actions an offence in Commonwealth, State and Territories Agreement on Terrorism and Transnational Crime leads to referral of anti-terrorism powers to the Commonwealth Australia implements the Rome Statute of the International Criminal Court and accepts the jurisdiction of the Court to investigate and prosecute genocide, war crimes and crimes against humanity Security Legislation Amendment Terrorism Act Text of Agreement see p.

Further reading S. Call number R Includes Chapter 2: History of Northern Territory criminal law. Call number Committees Committees. Source Documents. Liability for Accomplices When multiple parties are involved, the traditional first step is to classify the participants according to the following categories: Principal in the first degree — those who actually commit a crime i. Perpetrators are not accomplices and this section does not pertain to them. Principal in the second degree — those who aided, counseled, commanded, or encouraged the perpetrator in the actual commission of a crime.

An abettor is considered an accomplice. Accessory before the fact — those who aided, counseled, commanded, or encouraged the perpetrator to commit the crime, without actually being present at the moment of perpetration. An accessory before the fact is considered an accomplice.

Accessories after the fact are guilty of a separate crime, so this section does not pertain to them. Ex Post Facto An ex post facto law retroactively punishes actions. Punishing For Status A law cannot punish a person simply for their status. Defenses There are a number of defenses available to a defendant in a criminal prosecution.

Mistake of Law — a mistake regarding the legal status or effect of some situation. Mistake of Fact — a mistake regarding the facts of some situation. Justifications — these are complete defenses Self-Defense : the use of force to protect oneself from an attempted injury by another. Defense of property : a person may use force to protect his property from a felony occurring within.

Defense of Others : the right of a person to protect a third party with reasonable force against an assailant who seeks to inflict force upon the third party. Excuses — these are partial defenses Duress : an individual may plead duress if another individual forced him or her to engage in the illegal conduct by force or threat of force.

They were tough on criminals, by modern standards. The penalty for murder and robbery was death. Those accused of sorcery underwent ordeals by water. Much of modern American law comes from ancient Roman law, which in turn—it is believed—developed out of Etruscan religious principles and borrowed principles from other early civilizations. The Roman criminal code equaled the Sumerian code in its brutality; it may have exceeded it.

Judges of various counties shared their opinions with each other, and they attempted to harmonize their decisions with those made in similar cases in other counties. This law—reliant on doctrines developed in legal cases over time—was called the Common Law.

When European peoples emigrated to settle in what is now the United States some five-hundred years ago, they brought with them the laws and customs of their homelands. The complicated history of the various colonial empires that wrestled over centuries for what is now within the borders of these United States is too lengthy and complicated to summarize here, but it would suffice to say that the victors of those battles—who wrested control, by force, of the land from all other claimants—established the Common Law first in the colonies of Great Britain and afterwards in the independent states of the union of the United States.

The Common Law has never been adopted under federal law. Most modern state criminal prosecutions are brought pursuant to state statutes. All federal criminal actions are brought pursuant to federal statute.