My Criminal Law Notes j de Jov

8/13/2019 My Criminal Law Notes j de Jov

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General Principles of Criminal Law

Criminal Law

Criminal law should be founded upon principles that are permanent, uniform anduniversal, and always conformable to the dictates of truth and justice, the feeling of

humanity and the indelible rights of mankind Blackstone.

The most important function of the state is that which it discharges as the guardian of theorder, preenting and punishing all in!uries to itself and all diso"edience to the rules which ithas laid down for the common welfare. Those acts or omissions which the state considers asa threat to the common welfare are thereof punished in the Criminal Code and other laws the penal laws.

#er$ penal law consists of two elements, that is to sa$, the precept %preceptum legis&where"$ the state prohi"its or commands the doing of a certain act, and the sanction%sanctiolegis& where"$ the punishment is threatened against the transgressor.

'n simple and primitie communities it is no dou"t possi"le that rulers and magistratese(ecute !udgements in such a manner as "est commends itself to them. #arl$ law isconceied asJus%the principle of !ustice& rather than lex%the will of the state&. The functionof the state in its earlier conception is to enforce the law not to make it. The rules to "eenacted are those of right which are found realised in the immemorial customs of the peopleor which are sanctioned "$ religious faith and practice, or which hae "een diinel$ reealedto man.

But as the state grew up and the machiner$ of Goernment "ecame more comple(, things"ecome different) and in almost all modern countries, legislation "$ the state has asserted itse(clusie claim.

The state needs to enact positie laws where"$ it authoritatiel$ declares the rules which itintends to enforce and initiates the penalties which the "reech if those rules will entail. Theenactment of such laws is the guarantee of the rights of the indiidual. #er$ mem"er of thecommunit$ has complete freedom unless he hinders the freedom of others as it is laid down inthe law.

1 Relationship between Criminal Law and Morality

*ccording to +enning L at the time of -enr$ ' it was "elieed thatIn order that an act should be punishable it must be morally blameworthy. It mustbe a sin/

The fact whether Criminal Law should "e "ased on moralit$ so as to enforce it is a de"ate thatis still "eing discussed until toda$. *ccording to -.L.*. -art in his "ook Law, Li"ert$ and0oralit$, wrote that the main intent of Criminal Law was not to enforce moralit$. 1n theother hand, +a"let argues that the Criminal Law should do so.

'n the past, Criminal Law was "ased on the social alues thus on the morals. Thus for an actor an omission to "e punisha"le it had to "e either an immoral action or a sin. The traditionalattitude of the common law, has bee that crimes are essentially immoral acts deserving of

punishment. In the early days of law, when the number of crimes was relatively few and only

/20'T-, .C. 3 -1G*4, B, Criminal aw %London Buttersworths /567& p. 8

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the most outrageous acts were prohibited ! murder, robbery, rape etc. ! this was, no doubt,

true. "ut now many acts are prohibited on the grounds of social expediency and not because

of their immoral nature#. Toda$ the element of moralit$ is not the onl$ element thatdetermines whether an act is to "e as a Criminal offence or not. Toda$, the act must "edirectl$ harmful to indiiduals or to the collectie interests. 2till some immoral actions can

"e considered as Criminal acts "ut not all of them and not all criminal acts are immoral. 2o

one can notice that there is an oerlapping "etween these two spheres of life. But still thefact that an act is immoral does not entail that it is also a criminal act and the fact an act is acriminal act cannot o"iousl$ "e considered as immoral.

*s an e(ample, one can easil$ mention adulator$. *ccording to the Christian 0oralit$ this isan immoral act and until /56/ it was still considered to "e a Criminal offence "$ the 0alteseCriminal Code "ut toda$ it is not an$ more. 1n the other hand, in 'slamic law adulator$ is tillthis er$ da$ punisha"le.

There are also Criminal acts that are considered as morall$ praiseworth$ "ut are punishedseerall$. 9e"ellion against an$ form of T$rann$ is one. :hen a law punishes an immoral

act, it does this "ecause there are other factors that appl$. 0altese law punishes the 2olicitorof prostitution and not the prostitution of oneself. This does not mean that prostitution is notimmoral. The same happens with a"ortion and with pornograph$. Both are considered asoffences "ecause the$ are a threat to social order and not !ust "ecause the$ are immoral. Thishappens "ecause law can onl$ regulate that conduct which is e(ternalised. *n$thing thatremains in the human mind or hearth cannot "e punished. :anting without doing is notconsidered as a criminal offence "ut it is still considered to "e immoral. 0an can onl$ takeinto account what he sees and hears. Thus criminal offence must "e clearl$ defined and

possi"le to proof, therefore en$, greed and feelings in general cannot "e considered aspunisha"le een though the$ are considered to "e immoral.

#en if in most cases of criminal offences there is an element of immoralit$ is not the rule. 'flaw would "e done to enforce moralit$, this would mean that there is onl$ one moral s$stemin a countr$, "ut this is certainl$ not true. :ith the adent of ethnic amalgamation moralshae mi(ed up and changed and will continue to change. 1ne can sa$ that there is a pluralit$of morals "ut onl$ one Criminal Law alid to a particular countr$.

'f punishment is assessed accordance with the degree of moral "lameworthiness, it seems tofollow that it is imposed "ecause of the moral "lameworthiness ; and therefore no further

!ustification is needed.

*s regards the difference "etween moralit$ and law a further idea deeloped. The sameoffence might "e lia"le o the ma(imum or minimum of punishment. 0orall$ speaking anattempt to kill and the intent of killing are as "lameworth$ as actual killing. -oweer forreasons of polic$, since harm in the first is less than in the second, a lesser punishment isgien. This is also done to keep the persons from persisting in the same attempt.

1.1 Actus Reus and Mens Rea4

This close relationship "etween moralit$ and law deeloped two er$ important notions incriminal law which are still used toda$ as to determine whether a person is to "e heldcriminall$ responsi"le or not.

814#2, T. -. 3 C-9'2T'# 0. G. *. $reens Concise %cots aw C&I'I() )* +*. $reen %weet and 'axwellChapter ;


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2trict lia"ilit$ is what used to "e the rule "efore and what toda$ is considered to "e as ane(ception to the rule. This lia"ilit$ arises simpl$ from the commission of the material act

prohi"ited "$ the law. 4o particular state of mind was re?uired and thus een an inanimateo"!ect or an animal could "e held criminall$ responsi"le. The fact that the act is prohi"itedwas enough for the agent to "e punished. This concept of strict lia"ilit$ was also called

a"solute lia"ilit$ since the phrase a"solute used to impl$ that no possi"le defence could "eraised to ac?uit the agent. B$ the accomplishment of the material act the agent would "ee(posed to criminal lia"ilit$.

@nder the influence of Canon Law and 9oman Law, a change graduall$ took place and thecourts "egan to re?uire proof an element of "lameworthiness Aa guilt$ mind. Toda$ the actis not sufficient to render the agent punisha"le since it has to "e accompanied "$ a guilt$ stateof mind %"oth the *ctus rues and the 0ens rea are needed and one without the other is notuseful to condemn a person&. The following dictums e(plain this concept

ACTUS NON FACIT REUM NISI MENS SIT REA

That is The act alone is not sufficient to make a person responsi"le unless accompanied "$ aguilt$ state of mind. :here the *ctus 9eus is the conduct %action or omission& prohi"ited "$law and the mens rea is the particular state of mind, which must accompan$ the )ctus &eus.The *ctus 9eus is simpl$ the act for e(ample in the case of homicide there are threeclassifications. The *ctus 9eus is the same for all of them "ecause the final product is that a

person is killed. But the mens rea is considered to "e different for the three of them. %seeta"le /&.*s one can easil$ notice from the ta"le "elow, the *ctus 9eus is the same since in all thethree cases the person kills another person, "ut the 0ens rea is different. The mentalintention "ehind each t$pe of homicide is different. This means that the punishment will "edifferent and if one is missing the person accused will not "e considered to "e guilt$

Action Actus Reus Mens Rea

oluntar$ The same 1ne wilfull$ kills another

'noluntar$ The same4eglect andDor there was no

desire andDor was notforeseen

*s a result of agrieous harm The same

1ne does not intend to kill

or put his life in !eopard$"ut to harm

Ta"le / Classifications of homicide.

*ctus 9eus is a notion ?uite simpl$ to understand. 't is an action or an omission done in"reech of the law no matter whether it is oluntar$, inoluntar$ etc E 1n the other handmens rea %i.e. a guilt$ mind& must not "e understood under the common point of iew. 't doesnot necessaril$ impl$ malice on the part of the agent. Tied with this notion there is anothernotionF Ala capacita di intendere e di olere. 'n the case of #uthanasia the agent "ears nomalice. 1n the contrar$, most of the time this is an act of loe, to reliee the personconcerned from the suffering. 2till according to our Criminal code and other codes,#uthanasia is considered to "e a wilful homicide since there is still the element of awareness

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and thus of willingness. 1n the other hand, if a person had no choice, that action could not"e attri"uted to his person.

2 The Distinction between Criminal Oences and Ci!il"ron#s

+iagram / +iision of :rongs

:hile moral wrongs are wrongs contrar$ to morals, criminal wrongs "elong to a much widerclass of legal wrongs i.e. wrongs contrar$ and in iolation of the law. But apart from criminalwrongs there are also, ciil wrongs and constitutional wrongs. 'n this section we will onl$ seethrough the differences "etween criminal wrongs and ciil wrongs. The thin line that there is

"etween what is considered to "e a pu"lic offence or a priate offence makes our !o" somewhat difficult, een though man$ attempts hae "een made. * pro"lem that used to arise in

primitie law was wh$ criminal wrongs are punisha"le, and ciil wrongs are onl$ offeringpa$ment or remed$ for an$ damages.

2.1 Ci!il "ron#s

Ciil law is what ' call the law of the priate, since it regulates the priate relations"etween su"!ects without the direct inolement if the police and are prosecuted onl$ "$the complaints of the in!ured parties.

This is usuall$ of a priate concern where one part accuses the other in front of a !udgewanting remed$, pa$ment of damages or enforcements of rights %e.g. ohn *?uilina s.Paul Camilleri&. 'f one does not pa$ the fine for ciil offence this will result in theconfiscation of propert$ of the accused. These will "e sold "$ means of an auctionordered "$ the courts and the mone$ earned will "e used for the pa$ment.

't is made up of legal rules that define and enforce right %*rticle ;;6 %;& Criminal CodeChapter />& and duties of the person in relation to other persons.

't also proides for a s$stem of remedies and pa$ment of damages when these rules are"reeched "$ one su"!ect at the e(penses of the other. Hor e(ample person * has "ounditself into a contract where he sells a car to B. * fails to delier the car to B and therefore

"ecause of the written contract B can o"lige * to delier the car "$ ciil law.

These wrongs are su"!ect to the ciil procedure and are dealt with in Ciil Courts.

2till there are some Ciil :rongs that are lia"le to punishment %ciic penalties&. Thesepenalties were considered to "e as a remed$ if it persuaded the de"tors to pa$ as in thecase of the nonFperformance of a contract.

8

1ffences or wrongs

Criminal wrongs Ciil wrongs0oral wrongs


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2.2 Criminal Oences $"ron#s%

Criminal law is the law of pu"lic relations since it is concerned with the relations "etweenthe su"!ect and societ$ at large.

* criminal wrong is prosecuted "$ the authorit$, which represents the common good andsociet$ as a whole i.e. the state that represents the pu"lic.

Criminal wrongs are prosecuted e( ufficio "$ police and do no need an$ complaints.

Criminal law is made up of legal rules concerned with acts andDor omissions which arecontrar$ to pu"lic order and societ$, and that at the same time distur" the entirecommunit$.

Criminal law is concerned with punishing the offender and not with remedies andpa$ment of damages to an$ part$ %something that happens in Ciil law&. 'n these cases it

is not a su"!ect that accuses another su"!ect "ut the police on "ehalf of the 9epu"lic thattr$ him in front of the courts, accused of committing a criminal offence %#.g. Police s.*?uilina Longino&.

'n these cases the competent court is a Criminal Court and "efore and during the trialCriminal procedure is used.

'n the area of criminal law, we also hae an enforcement of rights where the court ma$o"lige the offender, "esides punishing him, to remoe an$ nuisance "eing caused In thecase of any contravention, the court, besides awarding punishment, shall order the

offender, where the occasion so re-uires, to abate the nuisance arising from the

contravention... %*rticle ;


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HraudF 'f a person defrauded another person of his propert$ it is "oth a criminal and a ciilaction since Hraud is "oth a criminal and a ciil wrong.

*ctuall$ there is no real distinction "etween criminal and ciil wrong, onl$ the state gies adifferent and particular treatment to that particular wrong.

9eference The Criminal Law 9eiew Criminal Code *rticle


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&.1.&*or the protection o the saety o the sub+ects by an act omen whether o commission or omission

The act is er$ important to proof. This "ecause it is impossi"le to perceie a law made "$human "eings that can !udge inside feelings or thoughts. Hirst of all these are not seen "$the human e$e or heard "$ the human ear, unless these materialie into acts, secondl$ if the$

remain in the human mind the$ are of no harm to the communit$. Therefore for an act to "epunisha"le, it must "e also an act of men.

&.1.4*or which the a#ent is morally responsible:hat makes the guilt$ mind %mens rea&, is the knowledge of iolation. The agent musthae a choice.

The criteria which are essential for Criminal offence The grait$ of a conduct) The particular conduct must "e capa"le of definition)

The conduct must "e capa"le of proof) Conduct must "e capa"le of punishment without undue interference) Pu"lic opinion @seful to set whether an offence is criminal or not, since crimes

distur" the pu"lic opinion) The conduct must "e as such as not to "e repressed without the use of

punishment.

&.2 Criminal Char#es as understood by the ,uropean Con!entionon -uman Ri#hts

2ee chapter ;/5 of the laws of 0alta

4 Classiication o Criminal Oences

The classification of offences can onl$ fall under one or the other of each of the followingcategories

/. 1mission and Commission


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4.1 Omission and Commission

1ffence of Omissionis when someone does not do what he was o"liged to do "$ law, whilean offence of Commissionis when the wrongFdoes does something which is prohi"ited "$law.

4.2 *ormal and Material $Reati *ormali u Reati Mater+ali%

Formal offences %conduct crimes& cannot "e an attempt and it is an offence, which iscompleted "$ the mere act or omission constituting the iolation of the law, independentl$ offact whether the result sought "$ the offender is achieed or not. 2uch act or omission issufficient in itself to complete the offence %0anini, ATrattato p.I>;&. Thus, for e(amplecalumnious accusation %*rticle /=/& is a formal offence "ecause the crime is complete as soonas the offender maliciousl$ la$s infamation against another person whom he knows to "einnocent, per!ur$ %*rticle /=8& and defamation %*rticle


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4.4 nstantaneous and Continuin# oences $nstantan+i u)ermanenti%

These two t$pes of offences hae a considera"le practical importance "oth in relation tosu"stantie law as well as in relation to ad!ectie law %Law of procedure&, and especiall$ inconnection with the application of transitor$ proisions, with the age of the offender and with

prescriptionI.

To start with one must make a slight distinction "etween the continuance of the effect and thecontinuance of the offence. *lthough there ma$ "e the former like in the cases of homicide,

"odil$ harm, theft, rape, defamation wilful damage etc. one still considers the offences as aninstantaneousone, een though the effects produced are permanent. 'nstantaneous offence isan offence that is completed as soon as the act or omission in iolation of the law is

perpetrated. The effects ma$ or ma$ not continue after the perpetration of the act or omissionconstituting the offence "ut if the$ continue, it is not "ecause of an$ further act or omission,

"ut merel$ as a result of such original act or omission in other words, the continuance of the

effect is not occasioned "$ the repetition or the continuance of the wrongful act or omission"$ the iolation of the right or interest protected "$ law.

:e must also sort out the confusion that there ma$ arise "etween Continuous andContinuing offences. The distinction "etween the two is er$ important when it comes totime prescription as it is laid down in *rticle >5/ %/& of the Criminal Code that states

/*ith regard to a completed offence, the period of prescription shall run from the

day on which the offence was completed0 with regard to an attempted offence, from

the day on which the last act of execution was committed0 with regard to a continuous

offence, from the day on which the last violation took place0 and with regard to a

continuing offence from the day on which the continuance ceased.

0oreoer in *rticle /7 of the Criminal Code we hae a definition of what is Continuous thatstates

*here the several acts committed by the offender, even if at different times,constitute violations of the same provision of the law, and are committed in pursuance

of the same design, such acts shall be deemed to be a single offence, called a

continuous offence, but the punishment may be increased by one or two degrees.

1n the other hand continuing offence is one which consists in a state of things su"!ectiel$and o"!ectiel$ and uniforml$ contrar$ to law in eer$ moment of its duration. -ere the

in!ur$ or the iolation continues and is repeated uninterruptedl$ een after the completion ofthe act or omission giing rise to the offence so long as the said state of things continues.Thus the continuing offences are constituted of these two er$ important elements

/& a wrongful conduct protracted uninterruptedl$ and without an$ change in itsconstituent elements for a length of time)


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continued for < months. Thus it is a continuing offence. The infringement is continuing, "utit is still the same offence. This act must "e uninterrupted. *n act which is in iolation of thelaw, which is protracted uninterruptedl$ and without change %uniforml$&. * state of affairs orthings in iolation of the right or dut$ which is also protracted oer a period of timeuninterruptedl$ and uniforml$ conFcomitantl$ %parallel& with the continuance of the wrongfulconduct e.g. possessing an illegal thing together with time $ou possess the thing.

'n a few words Continuous offence is the repetition of the same offence e.g. stealing a largesum of mone$ "ut taking few at a time, while continuing offence is one which is completedwhen the act of omission ceases e.g. illegal detention. 1n the other hand 'nstantaneousoffences are those that are completed as soon as the act or omission is perpetuated e.g.homicide, theft, rape, "odil$ harm etc.

:hen the fact in iolation is continuing fact, the iolation is "eing continuousl$ renewed untilthe iolation is remoed. The period of prescription starts to run when the iolation isremoed and not when the conduct has taken place. 'n the case of 'nstantaneous offencewhen for e(ample there is the taking off of life, the period of prescription starts when the life

is e(tinguished. The ceasing of life is the continuing effect of this offence.

Police vs. George Zammit (2!"!#$%

Jammit was accused of "uilding without a permit. The fact constituted in constructing a roofoer a $ard which had to hae access to air. 2ince this was the right the law wanted to

protect, the roofing oer was a iolation of the law. The iolation could onl$ "e remoedwhen the roof was remoed and then prescription runs after the remoal of the iolation, thecriminal act as not time "arred and the court could decide on the merits of guilt or otherwise.

Police vs. Al&ert 'artoli (ol. ))) part * page. "2 + Court of Criminal appeal%

Bartoli was accused of haing commenced the construction of a "uilding a"utting on a street,"efore such street was leelled to the satisfaction of the +irector of works. The fact asdescri"ed in the summons was not a continuing one and the criminal action had "een time

"arred. 2ince he committed something at a particular moment in time, the fact was not of apermanent nature and thus it was an instantaneous offence and the criminal charge was time"arred. %This occurred since the law prohi"its the starting of the "uilding "efore the street isleelled and therefore since Bartoli started "uilding the offence was completed.

Police vs. ,mmanuel -piteri (2t/ Marc/ 0$1 Mr 3ustice 3. Flores + Court of Criminal

Appeal%

The Court made an important annunciation of principle where the offence is one of omission.:here the iolation of law consists of an omission, a time limit is laid down within which toconform with the law in order to determine whether the offence is instantaneous orcontinuing. 1ne must first e(amine whether the time limit is an essential one. 1ne will haeto determine whether the lapse of the time limit would result in the definitie pre!udice of theright protected "$ law or whether the lapse of time would simpl$ "e the commencement of theomission. The offence is instantaneous in the first case and a continuing offence in thesecond.

*nother important criteria to determine whether the offence is continuing of not could "echecked "$ seeing whether there it is within the power of the offender to oluntaril$ "ring atan end the state of affairs contrar$ to the law. 'n the case of wilful homicide, the agent can do

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nothing to "ring the iolation of law to an end. 'n a case of a continuing offence, it must "epossi"le that this occurs.

'n the case of an offence of omission, as an e(ample, the law gies $ou a period of ;= da$swithin which to file the income ta( return and $ou fail %omit& to do so. +oes prescriptioncommence at the end of the period of timeO 't can "e argued that law wants to make sure that

$ou file it. The lapse of time limit would "e indicatie of the commencement of thecommencement of the omission and thus this is a continuing offence. :hen $ou do file theincome ta( return, $ou remoe the omission.

Police vs. 3osep/ Mugliette sive Mugliett (0#t/ 3anuar45 0$ + Court of Criminal

Appeal%

The offence consisted in erecting a "uilding a"utting on a goernment street "efore pa$ing tothe director of works the share due "$ wa$ of road contri"ution. 'n this case we would stillhae to e(amine the right protected "$ law. That is if all construction are coered "$ "uilding

permit then this would "e a continuing offence. -oweer if the court decides that the law

wanted to prohi"it the commencement of the "uilding, this would "e an instantaneous offence%an offence of omission the law re?uires $ou to pa$ "efore starting something&. 'n the case

"efore it, the o"ligation consisted in making pa$ment "efore erecting the "uilding. 1nce theoffender failed to pa$, the right protected "$ law was definitel$ pre!udiced. There wasnothing the offender could after haing commenced the "uilding, thus it was an instantaneousoffence.

Police vs. Francis Mallia (06t/ Marc/ 0$$0 Mr 3ustice God7in Muscat A88opardi%

'n order to assess whether the offence is of a continuing nature the court, looked at the natureof the anti !uridical fact %the right which the la waned to protect& and the ph$sical conduct. 'nthe case of a permanent disfigurement, there would "e an instantaneous offence with

permanent effect.

Thus in a case of a "uilding without permit, it would "e a continuing offence "ecause the t ofthe agent had produced an anti !uridical state of affairs contrar$ to the law which continues tosu"sist until such time as the anti !uridical effect has "een remoed %"$ demolition D alid

"uilding permit&. The criteria "$ which to esta"lish whether an offence is instantaneous orcontinuing

F The elements of the offenceF The purpose of the legislation

F The !uridical effect caused to "e achieed "$ parliament %to seek that all"uildings are in conformit$ with the legal re?uirement&.

4. Crimes and Contra!entions $Delitt u 0ontra!en3+oni%

1ther Codes for e(ample the Hrench and the #nglish diide offences into three %;&classifications. 1n the other hand our Criminal Code diides offences into crimes andcontraention the more heinous offences are crimes and the less heinous are contraentions.This diision is stated in *rticle < of the same code that sa$s

1ffences are divided into crimes and contraventions.

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4..1-ow to distin#uish between the two

The code does not gie us a definition of crimes and contraention and nether does itdistinguish "etween them.

6.".0.0 9/e :ltimate test;


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.

-oweer this would still not answer certain ?uestions as for e(ample that there are certaincrimes which do not cause actual harm e.g. conspirac$. 't was argued that in the case of anattempted crime when a harm is not caused, societ$ is still e(posed o certain dangers andharm and since crimes and contraentions are punished so to preent a potential threat to

pu"lic order, een attempts ma$ "e considered as crimes.

>0ala prohi"ita when an offence is so, simpl$ "ecause it is laid down "$ law, most of the times these are contraentions.

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0oreoer some contraentions are still considered to "e intrinsicall$ wrong F mala in se.*rticle ;;7 %$&, %aa&, %""&, *rticle ;;5 %d&, %g&, %!& and %l& are all contraentions6"ut are still anintrinsicall$ wrong act.

4..2ut why is it important to distin#uish between the two5

Mnowing to which categor$ the offence "elongs is er$ important for seeral reasons ofwhich the most important are the listed "elow.

6.".2.0 9/e Corpus =elicti

The Corpus 9elictiis the o"!ect or o"!ects which help in the commission or the omission ofthe offence e.g. a knife to kill, a car to escape etc. 'n case of an$ crime there is the automaticforfeiture of the Corpus 9elicti while for contraentions it has to "e e(pressl$ stated in thelaw. This is the case in the #(plosies 1rdinance %Chapter ;;& *rticle 8=, which specifiesthat although some of the offences are to "e considered as contraentions the Corpus 9elictiis forfeited as well. The conse?uences are laid down in *rticle


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was bound to enforce, and if the contravention could have been prevented by the

exercise of diligence on the part of such other person ./=This section of the law applies onl$ to contraentions e.g. where owners lease out cars

6.".2.6 Recidivism

* person is not a recidiist if a crime is followed a contraention and ice ersa. :hen an

other offence is committed within the /= $ear period after coniction the person will "epunished for a punishment one degree higher than the punishment prescri"ed "$ law for thatoffence. :hen he relapses %within ; months& after he is conicted for a contraention he maybe sentenced to detention for a term not exceeding two months, or to a fine +multa3, or to

imprisonment for a term not exceeding one month.22

6.".2." Prescription

The ma(imum prescription for a contraention is three %;& months "ut for a crime it can go upto twent$ %77&. 't is alsoimportant to consider the rule laid down in *rticle >5< this rule applies onl$ to crimeswhere the criminal action is not time "arred.

'nfringement F the commissioner can onl$ penalise the offender in financial wa$s notimprisonment and such. These ere introduced so as to reliee the courts of pett$ offenceswhich are penalised "u$ commissioners of !ustice instead of magistrates %/577 chapter


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The law is now pu"lished on the GG for it to "ecome effectie since unpu"lished lawdont hae an$ force as a law. 'n some cases law will not come into operation untilspecial reserations are made for the law to come into force on a particular date.There could "e also proisions for the law to hae a retrospectie effect. The date onwhich the new law comes into effect is not on pu"lication, not in the future "ut in the

past %4ot in the case of Criminal Law&. 4ote see *rticle 6< su"section 8.

.2 Dele#ated le#islation or subsidiary or secondary legislation

The +eolution of powers "$ goernments is eermore increasing in time) it is a process thatleads to a decentralisation of power. But for this s$stem to work properl$ one must proidethese "odies with certain powers gien to them "$ parliament so to decide and work almosttotall$ on their own delegated legislation. This has force of law under authorit$ of a parentlegislation %*n act of parliament& that created the same "od$. Hor these to take decisionsthere isnt the need of parliamentar$ de"ates. These su"sidiar$ organs dont hae fulllegislatie powers and therefore acts within the parameters specified "$ parliament. The

delegated legislations are made up of orders, regulations, "$elaws made "$ the ministerresponsi"le and een the corporation. Criminal offences are also su"!ect to this kind oflegislation. #(amples of these "odies are @niersit$, 0alta Tourism *uthorit$, 0#P* etc.

.& The tructure o a ill $Abbo33 ta' li7i% or as he said it an act o or inparliament.

Long title %not commonl$ used in 0alta& #nacting Hormula 2hort title

#nactment date %when not present there is an automatic enactment with pu"lication& +efinitions %'mportant for interpretation of law& Principle proision *dministratie proision Transitor$ proision %situations which had arisen under the old law and which

continue to persist in the new one& er$ important look them up if the$ e(ist 9epealing proision %proision repealing old legislation& 2chedules %anne( to main legislation&

.4 The need or interpretation

The application of law is not automatic) it is first interpreted. The scope "ehind interpretationis to determine the e(act meaning of the legal rule and to ascertain the real intention and willof the law in relation to a determinate case. This takes place "$ an anal$sis of wordsemplo$ed "$ the legislator. The need for interpretation ma$ arise when there is lack ofclarit$ and uncertaint$ in laws. This could "e aoided if laws %i& were written in generalterms to include all foreseea"le instances, "ut %ii& with the necessar$ detail to maintain clarit$and aoid agueness. 0ost of the time one would find that countries either adopt the formeror else the latter. Hor instance in ciil law countries like 'tal$, 2pain and Hrance muchdiscretion is gien to courts in interpreting laws which are concise and contain general terms.1n the other hand in Common law s$stems acts of parliament are er$ detailed and also er$

precise. #en though it is the dut$ of the indiidual to know the law, it is also a dut$ of thelegislator to make law as clear as possi"le "ut although there are man$ efforts to achieeclarit$ there are certain limitations. @ncertaint$ could arise from an$ unforeseen social

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conditions which might hae arisen, e.g. Acar was included under definition of Aehicleswhen the onl$ drien carts e(isted.

.4.1(arious types o uncertainty

".6.0.0 >exical

:hen the words emplo$ed hae more than one meaning. The true meaning is to "e found "$associating the word to the relatie conte(t within which it is to "e found. #.g. does the wordehicle include also aeroplane

".6.0.2 -4ntactic

:hen am"iguit$ arises from the structure of the sentence construction and punctuation mark.

".6.0.# Contextual

The relationship "etween words phrases and sentences using the same words for differentmeanings. This is resoled "$ looking at the purpose of the law.

".6.0.6 >inguistic uncertaint4

This ma$ arise as a result of agueness.

.4.2(arious types o nterpretation

".6.2.0 =octrinal *nterpretation

+octrinal interpretation is "ased on the opinions of writers and !urist and has nowada$s anindirect influence on the application of the law. 'n 9oman da$s, on the contrar$, thetheoretical opinions of !urists were a direct and o"!ectie source of law.

1ne must not confuse those writings and opinions of writers and !urists with legal normwhich are still found in te(t "ooks "ut were and still are recognised and applied "$ the courtsand now constitute ajus acceptum F legal norms of "inding effect.

".6.2.2 Aut/entic *nterpretation 0#

*uthentic interpretation is that, which is proided "$ the legislature itself in "$ means ofAinterpretation clauses of an$ law, or "$ a comprehensie interpretation law as for e(amplethe 'nterpretation act of /56I Chap.


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".6.2.# 3uridical *nterpretation (*nterpretatio 3udicalis%

This is the interpretation of the law "$ the Courts in their !udgements. The words %litera legis&are interpreted so as to ac?uire the meaning of the laws and understand their releance for the

particular cases that come "efore them. *lthough some times laws are ?uite eas$ tounderstand an interpretation is also re?uired since the will of the legislature is most of the

time a"stract and the law must "e adapted to concrete cases, thus it is in the first place,necessar$ to determine its precise meaning and import.

".6.2.6 =eclarator4 *nterpretation

*lthough some of the words used "$ the legislator mean two of more things at the same time,the cannons of interpretation ma$ esta"lish that one of such meanings, answers the intentionof the legislator. 2uch interpretation ma$ "e narrow %stretta& or wide %lata&. 1n must "e makeattention not to mi( these with restrictie or e(tensie. *lthough these seem to "e the sameand one thing% in the e(tensie and restrictie there is onl$ one legitimate meaning "ut thenthis meaning can "e wide or narrow&, the$ are er$ different and for this reason man$ tend to

mi( them up. :hile the latter couple is changed either one wa$ or the other so as to meet theintentions of the legislator, declarator$ interpretation is a wa$ of choosing "etween two%narrow and wide&. 'n fact 0anini sa$s The proposition that penal laws must be construednarrowly is wholly mistaken, because it confuses the declaratory interpretation with the

-uestion of the extensive and restrictive interpretation.

Choosing "etween the wide and the narrow meaning is not simpl$ a ?uestion of tastes orliking. Certain factors hae to weighed and anal$sed "efore choosing which of the two fit theintention of the legislator.. 1f course the choice as "etween the wide and narrow meaning is

possi"le onl$ were "oth fairl$ fit the e(pression. 0oreoer the e(pressions of a gienproision are to "e interpreted in either wa$ according as to whether the law intended to usethe in the one or the other, independentl$ of the nature of the proision. :hen there is anuncertaint$ whether to use one or the other the 'n du"io pro reo rule is adopted. 't ise(plained further down in the notes.

".6.2." ,xtensive and Restrictive *nterpretation (estensiva a restrittiva%

*n extensive interpretation is one which is widened to make it meet the intentions ofparliament, while a restrictiveinterpretation is one which is narrowed to make it correspondwith the intentions of parliament.

:hen it comes to penal law, e(tensie interpretation is not allowed as it is descri"ed a"oe.'n other words, if the legislature, though intending to coer the case in ?uestion, useslanguage which, in fact leaes the case uncoered, the Courts should refuse to correct thelanguage or suppl$ the defect (ullum crimen sine lege and nulla oena sine lege. *

proision of law which imposes an$ such restrictions must not "e e(tended "e$ond the casewhich it contemplates.

4one what so eer penal laws should not "e interpreted e(clusiel$ in a restrictie manner,since as 0anini declares >allace e= la regola, tanto diffusa nella prattica, per cui le leggi

penali 7 dovrebbero sempre essere interpretate restrittivamente. The court must interpretthe wording of the law "$ using the criteria of ordinar$ use of language, keeping in mind the

intention of the legislature. 'f then there are sufficient indications that words in their naturalmeaning are wider than the legislator intended then these should "e restricted.

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1n the other hand an act which the legislator did not want to punish musnt "e punished eenif it falls under the parameter of law, "ecause the will of the legislator to punish is lacking.This does not mean that one cannot e(tend the law in cases where the result is almost ' wouldsa$ a"surd. Hor e.g. in the case of Bigam$ the law sa$s

/) husband or wife who, during the subsistence of a lawful marriage, contracts a

second marriage, shall, on conviction, be liable to imprisonment for a term from

thirteen months to four years.82?

This howeer does not mean that during the first wedding one cannot "e found guilt$ if he Dshe contracts a third and a fourth marriage in the same circumstances. :e know that this isnot the case since parliament wanted to emend this Amistake.

".6.2.1 >iteral and >ogical *nterpretation

>iteral interpretation, also know as grammatical interpretation, regards e(clusiel$ theer"al e(pression of the law and it does not go "e$ond the litera legis. 2ince it is presumedthat the legislature meant what it said and said what it meant, nam -uorum nomina, nisi utdemonstrarent voluntatem decentis, ita scriptum est, this interpretation must precede others.

'n the process of grammatical interpretation words are primaril$ to "e understood in theirordinar$ and popular sense unless there should "e strong indication that some other meaningwas intended "$ the legislature. Thus nec aliter a propia verborum significationerecedendum, -uam cum manifestum est id senisse legislatorem meaning that if there isnothing to modif$, nothing to alter, nothing to ?ualif$ the language which the law contains,the words and sentences must "e construed in he ordinar$ and natural meaning, gien to them

"$ usage, regard "eing had to the time of the enactment of the law. *s was said "$ an #nglishudge In dealing with matters relating to the general public, laws are presumed to usewords in their popular sense0 Auti lo-uitur vulgus. 4one what so eer when a law dealswith a particular trade, haing particular meanings of certain words, then the law must "construed as haing that same particular meaning, though it ma$ differ from the ordinar$meaning of the words.

'n general it is assumed that no word is meaningless or superfluous unless there should appeara"solutel$ eident. *lso

+b3 words importing the masculine gender shall include females0

+c3 words in the singular shall include the plural, and words in the plural shall

include the singular024

:hen construing words one cannot do so "$ anal$sing single words on their own. 1ne mustanal$se the whole conte(t in which these are used, and also the scope and the ideal which

that particular law or section is striing for. *ccording to +u Pare? L.. in Bucher s. PooleCorporation %/58


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>ogical or purposive interpretationis that which almost tends to disregard the meanings ofthe single words, to seek the true intention of the legislature. 'n other words it seeks todetermine the actual intention enshrined in the law in relation to the apparent intentionresulting from the words.

* principal idea of logical interpretation is that language is rarel$ perfect as to "e a"solutel$

plain and unam"iguous. Thus it is difficult for the legislature to sa$ what the$ mean anddont mean what the$ sa$. *ccording to 0a(well If a literal meaning has been given to thelaws which forbade a layman to @lay handsA on a pries, and punished all who drew blood in

the street, the layman who wounded a priest with a weapon would not have fallen within the

prohibition, and the surgeon who bled a person in the street to save his life would have been

liable to punishment.

There are times when the litera legis is not conclusie. This occurs when the letter of law islogicall$ defectie on account. This results when the law 's am"iguous F words meaning more than one thing) 0a$ "e inconsistent F when the law has no meaning and certain parts contradict others) 1r een more it ma$ "e incomplete it ma$ "e neither of the two mentioned a"oe "ut

has lacunae which preent it from e(pressing an$ logical idea. 0a$ lead to a result so unreasona"le that it is selfFeident that the legislature could not

hae meant what it has said.

'n all such cases it is o"iousl$ necessar$ to determine the true intention of the legislature.B$ using certain e(ternal and internal aids as discussed later on in 2ection >.8.; one can solethese defects.

:hen the true intention of the law has "een dul$ ascertained, such intentions ought to preail

oer an$ inade?uate or imperfection of the letter of the law scire leges non est verba earumtenere, sed vin ac potestatem.

'n ciil law, the courts will re!ect a strict literal ad grammatical construction which leads tomanifest contradiction of the purpose of the enactment, or to some inconeniences ora"surdit$, hardship or in!ustice. But in Criminal law the position is somewhat different incertain important respects.

* principle which ma$ "e applied in "oth interpretations is #usdem Generis. Hind e(planationof the term.

.4.&,/ternal and nternal Aids to interpretation

:hen the law is not conclusie for the reasons mentioned in section >.8.


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*ccording to the #nglish Law, parliamentar$ de"ates are not accepted in making outinterpretation of the law so as to aoid e(am of unnecessar$ material. 'n actual effect !udgesrefer to the de"ates without stating so, in order to "ack !udgements and determine the mischief

parliament wanted to punish.

Contrar$ to this in the 0altese s$stem, there are no restrictions. udges refer to the "ill and to

the enacted law to find the e(act will of the legislature. 1ne must also note that there is no%tare 9ecisis2Din 0alta.

*nternal Aidsare those that ma$ "e found in the act itself. The following are all internal aidsthat ma$ help in the interpretation

a. The statue itself one must read the statue as a whole %more than an$thing thisis a principle&

"& Long title the principle "ehind the lawc& 2hort titled& 0arginal notes these do not form part of the law itself. Great care must "e taken

when referring to them as parliament might hae made some releant changes to the

law without altering these marginal notes.e& -eadings neither part of the law not an internal aid. The$ assign titles to arious

sections of the law which "ecome easier to interpret when keeping in mind theseheadings. Hor eg in the criminal code there is a heading that sa$s Crimes against

pu"lic trust &.f& Punctuation #en though this is important, one must not make the mistake of not

giing the necessar$ weight to su"stantie law and gie it instead to the punctuation.g& 'nterpretation Clauses These are important in *uthentic interpretation and almost

decisie to the issue. These often start with unless the conte(t otherwise re?uires.h& 2chedules anne(ed to the act These do not alter or enlarge the ordinar$ meaning of

the words "ut are used when logical interpretation is approached

.4.4n dubio pro reo $nterpretation in case o doubt%

In dubio pro reoand(ullum crimen sine legeare er$ much related. This means that whenthe court a hae a dou"t regarding whether the accused is guilt$ or not, the$ decide in faourof the tried person. This arises since one cannot "e found guilt$ of a crime that is not clearl$specified in the law, and therefore when the court fails to point out clearl$ a mischief that thelegislature wanted to prohi"it, it decides in faour of the accused. +eclarator$ interpretation.

.4.Analo#y

*nalog$ is not strictl$ a form of interpretation) in fact it presumes that the case in ?uestion isnot een coer "$ a legal proision. Law is the regulation of human relationship and

"ehaiour. 2ince the "eginning of last centur$ these aspects are continuousl$ changing andthus law has to "e updated proided for eer$ change so that it coers all human "ehaiour.#en though law tends to completeness pro"lems ma$ arise eer since human relationshipschange, laws dont.

The scope of *nalog$ is to suppl$ these omissions /6that there ma$ arise from Athe lack ofswiftness so to sa$ of the legislature. 't a dispute cannot "e decided with reference to a

precise proision of law goerning the case, regard is had to proisions which regulate

/>%tare 9ecisisis when a udge is "ound "$ decisions taken in superior Courts or in Courts of the same leel/6*lso known as lacunae or casus amissi


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analogous/7cases. 'f there isnt an$ proision which ma$ regulate this then regard is gien tothe general principles of law. The !udge in the ciil court is o"liged to decide either wa$ andtherefore he cannot a"stain simpl$ "ecause the law is silent. 'n these cases one can alsodecide on other countries decisions and laws


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repealed5 so t/at t/e act is no longer criminal. The principle accepted in continentaldoctrine and practice, which we follow in this matter, is that, if the law on which the charge isframed is repealed without an$ ?ualifications while the proceeding are still pending, such

proceedings fall through and no sentence against the accused can "e pronounced. 'f "eforethe man is tried, the legislature cancels the criminal character of the act with which he standscharged, there is no longer an$ !ustification for inflicting punishment upon him. The action of

the state, in repealing the former law which prohi"ited the act, clearl$ shows that the pu"licpeace and order together with the pu"lic welfare are no longer endangered or harmed "$ sucht$pe of act and that, therefore, the state has no longer an$ interest in repressing it, andconse?uentl$, no right to punish it.

There are contrasting iew as regards cases of&es Judicata. There are those that sa$ that ifthe law is repealed after the offender has alread$ "een sentenced, there would "e theautomatic remitting of an$ outstanding portion of the sentence or penalt$. 'f a new lawcancels from the class of criminal offences an act which was considered as an offence "$ the

preious law, all the effect of the trial and of the sentence should cease ipso jure. This iew isapplied in 'tal$.

The opposite iew is hat the repeal should hae no effect on the result of a final and a"solute!udgement. This solution appears to "e more accepta"le and is more commonl$ adopted inmodern s$stems of law. 'n 0alta the repeal of a law does not in an$ wa$ affect, as a right,an$ !udgement which has "ecome a res Judicata. The onl$ remed$ the prisoner can hae insuch a circumstance is the e(ercise in his faour of the Prerogatie of 0erc$. This isconferred on the President of the 9epu"lic of 0alta.

1ld writers thought that the repealing law is gien retrospectie application "$ wa$ of anindulgence to the accused. But, modern writers do not accept this e(planation, and contendthat the principle in ?uestion has a true !uridical foundation. Their argument is that, ratherthan an e(ception to the rule of nonFretrospectiel$ with regard to the new law, the said

principle is an affirmation with regard to the former law, of the other rule that a law cannotoperate after its repeal.

%"& *s regards punishment *rticle


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which is applied. #.g. Bill of indictment The accused preiousl$ had to present a not orplease "$ one month "ut now this has gone down to /I da$s.

:hen the form change, it resoles to "e no pro"lem. #.g. * please not should "e presented "$not and not "$ recourse. :here the form changes, it is the law in application at the time ofthe filling that is applied. Therefore, the law at the time of the su"mission is applied "ecause

procedural aspects do not impinge upon the position of the accused. 'n the case Police s.oseph #llul 2ullian %


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the other hand on the date of the amendment the action according to the old prescriptieperiod is not time "arred then it can take effect and increase the prescription period. 'n thiscase it was not time "arred "ut in the 2piteri case it was . the third case is police s osephGrima on


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land "ut, sea, air, ships and aeroplanes. urisdiction was also e(tended to ships propert$ ofthe countr$, or which where registered in the countr$, when these were out of the territorialwaters of the same countr$. Ket still there were man$ restrictions which needed to "eeliminated. *n e(ample is the following * man shot and kills another person across a

"oundar$. This would hae meant that the "oth states could e(ercise !urisdiction oer him.This happened in the Locker"$ Case where the conduct was caused in 0alta "ut the

conse?uences were felt in 2cotland. Thus two further principles deeloped

1.2.0.0 -u&ective 9erritorial Principle

The state assumed !urisdiction oer crimes which commenced in its territor$ een thoughcompleted within the territor$ of an other countr$.

1.2.0.2 O&ective 9erritorial Principle

This means that !urisdiction is e(ercised "$ the state where the conse?uence of the offencewas felt. This ma$ also lead to Concurrent urisdiction, where "oth states could e(ercise

!urisdiction.

8.2.2Cosmopolitan ? @ni!ersal =ustice

There are certain acts which are considered to "e crimes eer$where and, the offender oughtto "e punished whereer he might himself as it is dut$ of all states to aid each other in themaintenance of uniersal order. There are in fact certain criminal offences in internationallaw that hae assumed uniersalit$ e.g. pirac$% !ura gentium&, war crimes and crimes againsthumanit$. @ntil recentl$ these were the onl$ crimes which were considered as such, stillthere are others that although haent $et "een included with these three hae ac?uired a@niersal Character e.g. drug trafficking, white slae trafficking and acts of terrorism.

*s regards these crimes man$ countries rather than appl$ing the @niersalit$ principleapplied the outdedere out !udicare principle especiall$ if the state receies a re?uest fore(tradition. This is for those countries which for some reason do not want to e(tradite a

particular offender it will "e o"liged "$ this law to surrender the offender to the legalauthorities. 2ome e(ponents such as attel wishes to e(tend it to all crimes while those likeCarrara wish to see it applied to those serious crimes.

8.2.&)ersonal theory o =urisdiction

This has alwa$s "een more common the uniersal !urisdiction "ut not as common as territorial!urisdiction.

The theor$ is not "ased upon the place of commission, preparation or e(ecution of offence,"ut it is "ased on the ?ualit$ meaning the nationalit$ of the person %offender or ictim&.-oweer, there still remains a remnant of Territorial urisdiction since the offender must "e

"ack in countr$ which is accusing him. This theor$ is su"Fdiided into two parts/& *ctie 4ationalit$ principle)


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nationals. *n$ wrong to them is considered to "e a wrong against the state. *s a conse?uenceof this a national carries the laws of his natie state with him and thus he must also o"e$ themwhereer he ma$ "e. 't is not the le( locus delicti that is important "ut the actie su"!ect ofthe crime the offender.

1.2.#.2 Passive or the purposes of this paragraph the expression 6air space6 means the air

space above the land areas and territorial waters of 'alta0

+d3 without prejudice to the preceding paragraphs of this subarticle, against any

citiBen of 'alta or permanent resident in 'alta who in any place or on board

any ship or vessel or on board any aircraft wherever it may be shall have

become guilty of an offence against the safety of the $overnment or of the

offences mentioned in articles 255, 25


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purposes of this paragraph; 6permanent resident6 means a person in favour

of whom a permit of residence has been issued in accordance with the

provisions contained in article F of the Immigration )ct0 6offence against the

person6 includes the offences mentioned in articles :D to


31/91


+i3 against any person who commits an offence which, by express provision of

law, constitutes an offence even when committed outside 'alta;

rovided that no criminal action shall be prosecuted against the resident of

'alta in respect of acts done in the exercise of the functions of his office.

+#3 >or the purposes of subarticle +23 +b3 and %c3, a ship or vessel or an aircraft shallbe deemed to belong to 'alta if it is registered in 'alta or, if it is not registered

anywhere, is owned wholly by persons habitually resident in 'alta or by bodies

corporate established under and subject to the laws of 'alta and having their

principal place of business in 'alta.

+53 >or the purposes of subarticle +23 +e3;

6) protected person6 means, in relation to an alleged offence, any of the following;

%a3 a person who at the time of the alleged offence is a Gead of %tate, a member ofa body which performs the functions of Gead of %tate under the constitution of the

%tate, a Gead of $overnment or a 'inister for >oreign )ffairs and is outside the

territory of the %tate in which he holds office0

+b3 a person who at the time of the alleged offence is a representative or an official

of a %tate or an official or agent of an international organiBation of an inter

governmental character, is entitled under international law to special protection

from attack on his person, freedom or dignity and does not fall within the preceding

paragraph0

%c3 ) person who at the time of the alleged offence is a member of the family ofanother person mentioned in either of the preceding paragraphs and !

+i3 If the other person is mentioned in paragraph %a3 above, is accompanying him,+ii3 If the other person is mentioned in paragraph +b3 above, is a member of his

household0

6relevant premises6 means premises at which a protected person resides or is

staying or which a protected person uses for the purpose of carrying out his

functions as such a person0 and

6vehicle6 includes any means of conveyance0 and if in any proceedings a -uestion

arises as to whether a person is or was a protected person, a certificate issued by

or under the authority of the 'inister responsible for foreign affairs and statingany fact relating to the -uestion shall be conclusive evidence of that fact.

Application of Article "

*rticle I la$s down grounds upon which !urisdiction can "e e(ercised under our law.-oweer this is not the onl$ reference that we hae in our law as regards this su"!ect. Thereare other statutes that offer grounds for !urisdiction like for e.g. +angerous +rug 1rdinanceand the Ciil *iation 2ecurit$ *cts. 1ne must also refer to the 'nternational Criminal Court*ct %Chapter 8I; of the Laws of 0alta& for further help.

*rticle I %/& %a& the principle referred to in this paragraph is the Territorial urisdictionPrinciple together with its e(tensions i.e. Territorial :aters, *ir space and land. There were

;/


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certain places that were considered as a 2anctuar$ and so the police could not enter to re?uestfor someone, "ut this was a"olished "$ Proclamation 4o. ' of /7


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The su"Fparagraph %ii& refers to acts which are offences in 0alta "ut which are committedoutside 0alta, "$ a person "eing in 0alta.

*rticle I %/& %d& The 0altese Courts hae urisdiction oer %/& an$ person who commitsoffence in an$ #m"ass$ or "uilding connected with diplomatic serice of 0alta en!o$ing

iniola"ilit$ diplomatic immunit$) %


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F 9e( s. #duardo Hrendo =I /= 8>9eferred to preious case and agreed with it, since illegalit$ of arrest does not preent courtfrom tr$ing accused "efore it.

< Criminal Liability

-e who commits a wrong is said to "e lia"le or responsi"le for it. Lia"ilit$ or responsi"ilit$is the "ond of necessit$ that e(ists "etween the wrongFdoer and the remed$ of the wrong.This Avinculum juris has its source in the supreme will of the state, indicating its supremac$

"$ will of ph$sical force in the last resort against the unFconforming will of the offender.

:e hae not to inestigate the leading principles which determine the conditions, theincidence and the measure of responsi"ilit$ for criminal wrongFdoing. Criminal lia"ilit$ isgenerall$ e(plained with ?uite accurac$ in the old legal ma(im Aactus non facit reum nisimens sit rea U the act alone does not amount to guilt) it must "e accompanied "$ a guilt$mind. That is to sa$ that there are two conditions two are fulfilled "efore criminalresponsi"ilit$ can rightl$ "e imposed the material and formal conditions. Before imposing

punishment the law must "e satisfied of two things that an act has "een done which, "$reason of its harmful tendencies or result, is fit to "e repressed "$ wa$ of penal discipline) andsecondl$, that the mental attitude of the doer towards his deed was such to render punishmenteffectie for the future and therefore !ust.


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Let us suppose that in practicing with a rifle, ' shoot some person. The material elements ofm$ act are the following its origin or primar$ stage, namel$ a serious of muscularcontractions, "$ which the rifle is raised and the trigger pulled) secondl$, the circumstances,the chief of which are the facts that the rifle is loaded and in working order and that the

person killed is in the line of fire) thirdl$, the conse?uences, chief of which are the fall of thetrigger, the e(plosion of the powder, the discharge of the "ullet, the passage through the "od$

the man killed and the death. :hateer acts the law prohi"its as "eing wrongful and forwhich a man is deemed to "e lia"le, is so responsi"le in respect of its origin, its circumstancesand its conse?uence. Hor unless it has its origin in some mental or ph$sical actiit$ of thedefendant, it is not his act at all and apart from its circumstances and results it cannot "ewrongful.

The harmful conse?uence of an act prohi"ited "$ law need not alwa$s, howeer, "e actual)the$ ma$ "e merel$ anticipated. 'n other words, an act ma$ "e mischieous in the e$es of thelaw in two wa$s either in its actual results or in its tendencies. Criminal wrongs normall$

"elong to the latter class, for the law punishes een the attempt. Criminal lia"ilit$ is usuall$sufficientl$ esta"lished "$ the proof of some act which the law deems dangerous in its

tendencies, een thought the issue is in fact harmless or een unsuccessful attempts. Thematerial "adness of an act depends on the actual nature, circumstances and conse?uences of it.


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a& The power of olition i.e. the offender must "e a"le to Ahelp doing what he does)"& Mnowledge that what the offender is doing is wrong) wrong either intrinsicall$ or, at

an$ rate, in prospect of such circumstances s he has ground for foreseeing)c& Horesight of such circumstances.

This rule seems to create a er$ comple( perspectie of criminal intent, and also cause the

prosecution more difficult$ in o"taining eidence of it. Hor to "orrow the sa$ing of amedieal !udge, which 2ir Hrederick Pollock has made, the thought of man is not tria"le, forthe +eil himself knoweth not the thought of man U one cannot tr$ mans thought since noteen the deil know it. But this seldom arises in practice for in most cases the law regardsthe criminal act itself as sufficientprima facieproof of the e(istence of criminal intent.

'n #ngland, eer$ sane adult is presumed to intend the natural or necessar$ conse?uences ofhis willful conduct. The law treats as intentional all conse?uences which the actor foresees asthe pro"a"le results of his wrongful act, the known conse?uences of an illegal act are imputed

"$ law as intentional. 4o man who knows that certain results will flow from his illegal actwill "e suffered to sa$ that he did not intend them. Menn$ said that Purpose alwa$s inoles

the idea of a desire E Hor a man is not ordinaril$ said to intend an$ conse?uences of his actwhich he does not desire...

But the presumption that eer$ man knows and intends the natural and pro"a"l$conse?uences of his act is, no dou"t re"utta"le. 'ndeed, man$ writers now regard the rule as

"eing merel$ an eidential presumption, a commonFsense inference that ma$ "e drawn fromcircumstances and not a principle or proposition of law. Thus if the accused can show that theconse?uence which has in fact resulted, though ph$sicall$ ineita"le, was not, in the

particular case, an o"ious result of his act, or if he can show that the result which hashappened was pro"a"le onl$ when certain circumstances coFe(isted and that he was not awareof the e(istence of such circumstances, then in "oth these cases the presumption is re"uttedand he cannot "e held to hae intended the result. *gain if he can proe that the possi"ilit$ ofsuch a result neer occurred to his mind, then although such heedlessness will pro"a"l$render him lia"le to a charge of criminal negligence, he cannot "e held to hae intended theresult. But if he was aware that certain conse?uences might follow the act which hecontemplated doing, and $et deli"eratel$ proceeded to do the act, he must "e taken to haeintended those conse?uences to follow, een though he ma$ hae hoped that the$ ma$ not.

Ket this could "e re"utted "$ the proof that at the time he committed the act, he had not amind capa"le of forming an intention. *ccording to Carrara for a man to "e held criminall$lia"le for an offence, it is not necessar$ that his wrongful intent "e contemporaneous or coF

incident with the last act of completion of such a crime. 2ome times the act from whichcriminal responsi"ilit$ arises is separated from the act that competes the crime "$ an interal.This could "e seconds or een da$s. Hor e(ample, no kills or ro"s someone or something thesame instance the criminal intention is formed in his mind. 0oreoer when * sends a "o( of

poisoned chocolates to B with the intention to kill him the completion of his act could occurda$s later when B eats the chocolates. #en in this case if * could "e held criminall$ lia"lefor the wrongful intent and for Bs death. 'f in the mean time * falls ictim of a deliriumtremenswhich makes him utterl$ irresponsi"le and is still in the same state when his act iscompleted su"se?uentl$ * recoers. 2till he cannot escape responsi"ilit$ "ecause at the timethe crime was completed he was dolo incapax. -is responsi"ilit$ proceeds from the actwhich caused the eent and to hold him responsi"le it is sufficient that he was of a murderous

intent at the time he committed the act which was later the cause of Bs death.

;6


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The same rule applies in all cases in which the last act of consummation is not performed "$the defendant "ut "$ the ictim himself, or "$ a third part$ not concerned in the crime or "$ acoFoffender %e.g. a hired assassin&. 'n all such cases it ma$ happen that at the time in whichthe intended crime is completed the person who designed or planned or ordered or, in an$other manner was the efficient cause of the crime is dolo incapaxor has repented his originalintent. *ll this will not e(onerate him from his responsi"ilit$ which arises out of the

wrongful intent which accompanied the causatie act, although it no longer su"sists when theeent ensues.

1f course, in all cases the "asic condition of criminal lia"ilit$, such as competent age, sanit$,freedom from certain kinds of coercion and mistake, must e(ist "efore there can "e an$ guilt$mind


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Carrara gies the following e(ample * fired his gun at a wild "east in the thick of the forestin the "ackground there was a man whom he killed. * had not foreseen at all that the manwas there, "ut if he could hae foreseen it, then he is guilt$ of negligence %-$pothesis /&. *fire at a "east and at a great distance from it there was a man and he saw him. -e made anestimate of chances and he foresaw that, in iew of the distance "etween the man and histarget, the shot would not hit him, $et it happened. * is to "lame "ut merel$ for negligence

%-$pothesis


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negligence "ut it is not the onl$ form. 'f ' cause harm, not "ecause ' intended it, "ut "ecause 'was thoughtless and did not adert to the dangerous nature of m$ act, or foolishl$ "elieedthat there was no danger, ' am certainl$ guilt$ of negligence. But there is another form ofnegligence in which there is no thoughtlessness or inadertence, "ut ' ma$ e(pose other torisk. :hen ' consciousl$ e(pose another to the risk of wrongful harm, "ut without an$ wishto harm him, and harm actuall$ ensues, it is inflicted the said writers sa$, not willfull$, since

it was not desired, nor inadertentl$, since it was foreseen as possi"le or een pro"a"le, "utneertheless negligent. 4othing that is not desired, howeer foreseen, can "e said to "e trul$intended.


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The law does not demand the highest degree of care of which human nature is capa"le. 1urCode, as 'mpallomeni remarks, makes negligence consist in imprudence, carelessness, unFskillfulness in an act of profession etc. The law demands not that which conceia"l$ possi"le

"ut that which is reasona"le.

The amount of prudence or care which the law actuall$ demands is that which is reasona"le in

the circumstances of the particular case. This o"ligation to use reasona"le care is er$commonl$ e(pressed "$ reference to the conduct of a Areasona"le man or an Aordinar$prudent man, meaning that negligence is the omitting to do something that a reasona"le manwould do, or doing something a reasona"le man would not do.


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,/emption orm Criminal Liability

/)ll the several pleas and excuses, which protect the committer of a forbidden act

from the punishment which is otherwise annexed thereto, may be reduced to the

single consideration of the want or defect of will8#5

! "lackstone

The first notion that one must learn when he D she are learning Criminal law is the "asicnotion of Criminal responsi"ilit$)ctus non facit reum nisi mens sit rea. This simpl$ meansthat for a person to "e criminall$ responsi"le for an$ criminal act or omission done "$ oneself%the ph$sical factor&, one must hae a mind capa"le of forming an intention %will& and capa"leof understanding the nature of the action "eing done "$ him i.e. he possesses "oth will and

!udgment and is free to e(ercise "oth %the mental factor&. Thus it follows that an$ elementpresent that ma$ interfere with the e(ercise of these two must "e taken into considerationsince it can affect the e(istence or degree of criminal responsi"ilit$.

The defences as accepted "$ our law can either e(empt wholl$ or in part from criminalresponsi"ilit$ and are grouped as follows/. :hen the agent has not the use or full use of his intellectual faculties)


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are incapa"le of haing an$ criminal responsi"ilit$. Thus the$ are not lia"le to an$punishment what so eer een if an element of mischieous discretion %HaBen& isfound to "epresent, for under the age of nine $ears, a child is deemed to "e incapa"le of haing an$capacit$ of owing an$ discretion. The child is considered to "e doli incapax %not knowingthat his action was seriousl$ wrong&.

This howeer does not mean that nothing will "e done. 't still has the interest in the generalpu"lic interest and in the interest of the child itself and so it makes sure the child shall "echecked and corrected in case he shows or repeats an$ eil tendencies. *lthough the law doesnot inflict an$ punishment to the child if the alleged fact to have been committed by theminor is proved and is contemplated by the law as an offence the court may bind over the

parent or other person to watch over the conduct of the minor under penalty for non

compliance of a sum of not less than five and not exceeding one hundred liri78 +%ec 54+53.

'n sec ;I %I& parents are not held responsi"le for the act committed "$ he child "ut for nothaing looked after the child. 2till this proes that the child is not lia"le to an$ criminaloffence) he is in no wa$ criminall$ responsi"le.

.0.0.2 'et7een nine and fourteen 4ears of age

The position of the law regarding this age gap is er$ similar to the preious. *lthough theseare presumed to "e incapa"le of distinguishing "etween good and "ad, right or wrong and thusuna"le to formulate a criminal intent and so are e(empt from criminal lia"ilit$, this

presumption is not conclusie F it ma$ "e re"utted "$ eidence to the contrar$. *s it is statedin 2ec. ;I %or the purpose of the application of the provisions of the preceding subarticles

of this article, the parent or other person charged with the upbringing of the minor

as aforesaid, shall be re-uired to appear, by summons, in accordance with the

provisions contained in "ook %econd of this Code.#D

*rticle ;I %;&, %I& of the Criminal Code

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This has noting to do with icarious lia"ilit$) the parents do not take the responsi"ilit$ on"ehalf of the minor "ut are responsi"le for haing failed to look after him or her. The childthat has "een found guilt$ receies a mitigated punishment of a fine %ammenda& of not morethan Lm


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guilt$ "ecause his good character re"utted the presumption that he did not know that he wasacting in a seriousl$ wrongful wa$.

'n m$ opinion one must er$ cautious when making use of these t$pes of arguments, since itis er$ argua"le where and how is one to decide which is the good and "ad famil$.

.1.2Old A#e

Hor the purpose of Criminal lia"ilit$ old age, has not "$ itself an$ releance. 'n modernprogressie s$stems account ma$ "e taken as regards the punishment, so as to "e chosen anappropriate one for him. 1n the other hand Carrara o"seres one must e(pect that "$ reasonof his e(perience and of cooling down of passion, old man should show greater respect for thelaw his wrongdoing is more harmful to the communit$ from the point of iew of "ade(ample that the wrongdoing of a $outhful offender.

Ket old age is more likel$ to "ring a"out deterioration of the mental faculties %seniledementia&. 'n an$ such case it must "e taken account as such and used as a defence as a

reason of mental infirmit$ and not "$ reason of age.

.1.&Dea mutes

39. +23 9eafmutes, who at the time of the offence have not attained the age of

fourteen years, shall be exempted from any punishment established by law;

rovided that the provisions contained in article 54+53, +?3 and +43 may be applied

to such persons.

+#3 9eafmutes, who at the time of the offence have attained the age of fourteen

years and who have acted without a mischievous discretion, shall likewise be

exempted from punishment;

rovided that the provisions contained in article 54+53, +?3 and +43 may be applied

to such persons.

40. The following rules shall be observed in the case of deafmutes who have acted

with a mischievous discretion;

%a3 if at the time of the offence they have attained the age of fourteen but not the ageof eighteen years, the provisions contained in articles 5D and 5F shall apply0

%b3 If at the time of the offence they have attained the age of eighteen years +i3 In the case of a crime liable to the punishment of imprisonment for life, they

shall be liable to imprisonment for a term not exceeding twenty years0

+ii3 In the case of any other crime, they shall be liable to the punishmentestablished by law diminished by onethird0

+iii3 In the case of contraventions, they shall be liable to the punishments

established for contraventions.

.1.4nsanity

/aw is not concerned with the brain but with the mind, in the sense that the @mindA

is ordinarily used, the mental functions of reason, memory and understanding.#:8


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'nsanit$ is a disease of the mind, nothing more nothing less. * person is considered to "einsane if he does not hae la facolta di conoscere e di volere#


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.0.6.2 9/e *rresisti&le *mpulse test

'n addition to the 9ight -on 2ir - de elliers, C. . stated in a !udgment that)

/. where defence of insanit$ is interposed in a criminal trial, the capacit$ to distinguish"etween right and wrong is not the sole of responsi"ilit$ in all cases)


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act and to help doing it so our law considers two elements of legal responsi"ilit$ in thecommission of eer$ crime

/& capacit$ of intellectual discrimination) and


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D##. The court may refer the determination of any such allegation to the jury

already impanelled for the trial of the offence.

D#4. *here the )ttorney $eneral does not contest any allegation under this Title,

the court shall proceed as if the truth of the allegation had been proved.

D#D. In all cases where, upon any allegation under this Title being proved, the trialcannot take place or is interrupted or the execution of the sentence is stayed, the

trial shall be resumed or the sentence carried into effect, as soon as the impediment

shall cease.

D#F. In all cases where it shall be necessary to impanel a new jury for the

determination of any allegation referred to in the preceding articles of this Title,

such jury shall be impanelled and shall proceed according to the rules established

in this Code relating to juries.

D#:. In all cases referred to in the preceding articles of this Title, any allegation

shall be determined by the jury by a majority.

.1.emiEResponsibility

'n our law there is no such thing as semi responsi"ilit$ still the idea is taken care of in other *rticles such as deafmutes and proocation. *ccording to our law howeer $ou are either responsi"le or $ou are not. 4onetheless anoffence could "e #(cusa"le or ustifia"le.

#(cusa"le is when a person is deemed to "e e(cused "ecause of a Acertain circumstance and the punishment ismitigated although the person is still found guilt$ or that offence. :e also hae e(cusa"le homicide where lawhold out of mitigation of punishment as well. 1n the other hand, ustifia"le offence as in the case of selfFdefence and lawful homicide, the person is not held to "e criminall$ responsi"le and thus not e(posed to an$

punishment. 2ometimes what could "e a !ustifia"le offence "ecomes an e(cusa"le offence "ecause someingredients contemplated "$ law regarding selfFdefence are missing. 2till, there is not such thing as semiFresponsi"ilit$ or diminished responsi"ilit$. The onl$ thing is that there is a mitigation of power in the first withfull responsi"ilit$ while no punishment since there is no guilt in the second.;;

.1.8nto/ication

34 +23 %ave as provided in this article, intoxication shall not constitute a defence

to any criminal charge.

+#3 Intoxication shall be a defence to any criminal charge if !

+a3 by reason thereof the person charged at the time of the act or omissioncomplained of was incapable of understanding or volition and the state of

intoxication was caused without his consent by the malicious or negligent

act of another person0 or

%b3 the person charged was by reason of the intoxication insane,temporarily or otherwise, at the time of such act or omission.

+53 *here the defence under subarticle +#3 is established, then, in a case

falling under paragraph %a3 thereof, the person charged shall be discharged,and, in a case falling under paragraph %b3, the provisions of articles D#E toD#5 and D#4 to D#: shall apply.

;;9efer to 2u"Ftitle ''' of Title ''' 1f Crimes against the person

I=


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+?3 Intoxication shall be taken into account for the purpose of determining

whether the person charged had formed any intention specific or otherwise, in

the absence of which he would not be guilty of the offence.

+43 >or the purposes of this article 6intoxication6 shall be deemed to include a

state produced by narcotics or drugs.5?

't is clear that getting drunk or into(icate one self with narcotics to ac?uire courage) the soFcalled %+utch Courage& in order to commit an offence is a"solutel$ not permissi"le "$ law.The onl$ instances where 'nto(ication ma$ "e used as a defence is 2u"Farticles %


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-$pnotism is difficult to define. 't ma$ "e said to "e a sleepFlike condition, the condition"eing "ased upon ph$siological states of the "rain and the nerous s$stem. +uring thesestates the su"!ect is under the influence of the suggestions of the operator. 'n the present stateof knowledge, howeer, it is still an open ?uestion whether criminal suggestions ma$ "econe$ed to h$pnotised persons. 'n fact it is held "$ some, that the e(ecution of improperdeeds or crimes cannot "e suggested to persons of rectitude or lawFa"iding persons in the

h$pnotic state, who are protected from so acting "$ their moral consciousness. 'n this state aperson would "e a mere instrument in the hand of the operator, who would "e the real andsole offender.

.2 "here the will o the understandin# are not directed to the deed

'n this section we will speak a"out *ccident and also a"out two t$pes of mistake of law andof fact.

.2.1Mista6e

0istake has "een er$ well descri"ed "$ a !urist as the ignorance of that which is and theknowledge of what is not. 'n criminal law there is no difference "etween ignorance of lawand mistake of law, the difference is "etween mistake of law and mistake of fact.

.2.0.0 MistaDe of >a7

0istake of law is like is the same as ignorance of law. Blackstone puts forward wh$Ignorantia juris neminem excusat.

/& -e sa$s that eer$"od$ should know that part of the law which concerns him)


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This rule does not onl$ appl$ to knowledge of the penal law "ut also as regards theinterpretation of it. 1therwise it would "e er$ eas$ to eade the o"serance of law on the

prete(t of misinterpretation. 0anini states that although a mistake of law leaes the offenderlia"le it ma$ neertheless afford a good ground for mitigation of punishment.

.2.0.2 MistaDe of fact

Contrar$ to mistake of law, mistake of fact ma$ result to "e a good defence if the following


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for the commission of the offence. Continental penal codes similarl$ set out criteria ofar$ing precision as to when an attempt occurs. Ket the most difficult thing still remains, todistinguish "etween acts of preparation and acts of commencement of e(ecution. 'n the'talian Code the line of demarcation has "een pushed "ackwards "ecause it simpl$ speaks ofthe following Aatti diretti in modo non e-uivoco a commettere un delitto.

The difficulties inherent in deciding when an attempt occurs are illustrated in the followingh$pothetical se?uence

/. Adecides to ro" a "ank). -e sets out from his house, armed with the gun, a face mask and a "ag for the

mone$)6. -e enters the "ank wearing the mask "ut not $et pointing the gun or making an$

demand)7. -e points the gun at the cashier and asks for the mone$)5. The cashier presses an alarm "utton. A, losing his nere, runs out and returns

home.

There is little dou"t that at some point in the series of eents, A ma$ "e said to hae attemptedto ro" the "ank. Ket the point at which the attempt actuall$ occurs is not clear. 'f A were to

"e interrupted and arrested at point %/&, there would "e no attempt since he was not a"le toproceed further. Criminal law does not recognise Athought crimes. * person ma$ formcriminal thoughts in his mind "ut since he does not proceed he wont hae committed acriminal offence. 't is e?uall$ clear that "$ point %7& an attempted crime has "een committed)$et, "etween these e(tremes, the position ma$ "e less certain. 2ome ma$ regard %>& asmarking the watershed "etween preparator$ action and attempt) others ma$ feel that it would

"e premature to infer an attempt een at this point

't is useful to distinguish, een if er$ difficult an attempt from what is not. *n attempt is nota completed act) e?uall$ it is not mere preparation. * prospectie purchaser of an item doesnot attempt to purchase an item when he consults an auction catalogue or inspects the item ata iewing. 't can "e said howeer, that an attempt is made to purchase an item once a "iddinginstruction is gien. The acts which recede that are preparations for the actual making of theattempt) the$ are preparations for the actual making of the attempt) the$ are not sufficientl$

close to the completed action to "e categorised as attempts. Preparator$ acts ma$ "efundamentall$ different in nature from attempts, in that the$ are not une?uiocall$ refera"leto the actus reus of a crime. 0oreoer, the idea that preparation does not amount to anattempt allows the law to recognise the alua"le possi"ilit$ of withdrawal from a criminal

plan at an earl$ stage. 't seems rights and sensi"le that the law should, so far as is consistentwith pu"lic safet$, encourage repentance "efore matters proceed too far.

* potentiall$ useful wa$ of distinguishing "etween preparator$ acts and attempts is to askwhether the accused was, at the point in ?uestion, Atr$ing to do the criminal offence. 'f theanswer is $es, ten he has gone "e$ond the point of preparation) if the answer is no, then he ismerel$ preparing.

@nder our Law up to the acts of Preparation, no offence is committed, unless what has "eendone up to that points, amounts in itself to some other specific offence. The most difficult

>;

My Criminal Law Notes j de Jov

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