RDL 215/RCL 203 CRIMINAL LAW AND PROCEDURE PREPARED BY; MR. EGIBERT A. BONDO TOPIC ONE: CRIME AND CRIMINAL LAW What is Criminal Law? Criminal law is a part of public law, which aims at discouraging and preventing certain types of conduct or omission by assigning punishment to a person or individual who disobey the prevention or prohibition set by law. Public law regulates the relationship between individuals and state as opposed to private law, which regulates the relationship between individuals. What is a Crime? There is no agreed definition of the term crime. Different Authors have defined the term crime differently depending on their views and other factors in the society they come from. According to Michael, J. and Mortimer, J. in their book “Crime Law and Social Science” have defined crime to mean; “…A behavior which is prohibited by the criminal code…” Encyclopedia Britannica Vol. 6 at p. 701 defines crime as; an act or omission forbidden by the law under the pain of punishment. Other definitions Crime is a wrong affecting the public and which the state has annexed certain punishment or penalties and which the state prosecute in its own name in what is called criminal proceeding. In Kenny’s Outline of Criminal Law (17th Ed) at p. 5, three features/characteristics of a crime are outlined; (i) That is the harm brought about by a human conduct which the sovereign power in the state desires to prevent. (ii) That among the measures of prevention selected is the threat of punishment. (iii)That legal proceeding of a special kind is employed to determine the guilty of the accused before being punished. CRIME AND MORALITY Morality comes from the word moral. Morals are the positive values which the state or ruling class desires to protect. Morality is what is right and wrong according to a set of values or belief regulating a group’s behavior. Morality is not fixed and may vary from one group/society to another. Moral values may also value over time. Rules of Morality are not enforced by law. However law and morality usually overlap on major issues but may differ on other matters, for instance murder is a crime and also is an immoral act. The reason for this overlapping is the fact that the ruling class strives to impose its morals on the whole society by using ideological influence, political power and even legal institutions. However you have to take note that many of the rules enforced by criminal law have nothing to do with the morality. Moreover, many of the rules of morality are not enforceable in criminal law. Can criminal law be extended to morality? In the case of Shaw v. DPP [1962] A.C. 220, Shaw published a “Ladies Directory” designed to assist prostitutes to get customers and he was charged, inter alia with conspiracy to corrupt public morals. He was convicted with this offence, and his conviction was upheld by the Court of Criminal Appeal and the House of Lords. Lord Simonds, at p. 267 entertained no doubt that in the sphere of criminal law; “There remains in courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral warfare of the state, and that it is their duty to guard against attacks which may be more insidious because they are morals…” The position in the above case to extend criminal law to morals was unusual. The decision was reversed in the case of Knuller Ltd v. DPP [1973] A.C. 435. In this case the House of Lords emphasized that the courts did not have residual power to extend criminal law, by creating newer offences and widening existing ones, to enforce good morals. NOTE: You can note that it is the state which decides what should be a crime and not the court. The question whether or not any conduct constitutes a crime in law depends solely on whether or not such conduct has been declared as criminal by the state. Morals and law have also distinguishing features. Law consists of rules established in a specific way by the state organs and fixed in legal Acts, morals, however, do not include just norms. Legal Acts consist of the will of the class in power while morals include this will in the form of public opinion. Morals and law differ in the way they are enforced. In morals, coercion takes the form of public opinion. In violation of law, corresponding law enforcement agencies are obliged to take measures envisaged by the law. Difference between criminal wrongs and civil wrongs Criminal wrongs Civil wrongs It regulates the relationship between state and It regulates individuals individuals Conviction Compensation the relationship between No withdraw of case except by the DPP or The plaintiff can withdraw the case his agents(public prosecutors, state attorneys) Sources of Criminal Law 1. Constitution The Constitution is a special document in which the most important issues are put into the form of legislative enactment wherein the manner in which the state is organized, the government carried on and justice administered. The Constitution provides for the rights and duties of its citizens. For instances Article 13 (6) (b) and (c) respectively provides for presumption of innocence and that no person shall be punished for any act which at the time of its commission was not an offence under the law, and also no penalty shall be imposed which is heavier than the penalty in force at the time the offence was committed; The Constitution remains to be one of the basic sources of law. As such other legislation (civil/criminal) in Tanzania drives their legitimacy from the Constitution. 2. Statutes Statues as sources of criminal law are divided into two parts; there are principal legislations and subsidiary legislations. Principal legislations are those laws that have been passed by the legislative body or parliament. Subsidiary legislations consist mainly of legislation made by persons or bodies to whom the power has been delegated by the parliament. Examples of principal legislations are; Penal code [cap 16 RE 2002], Criminal Procedure Act, etc. 3. Common law, doctrine of equity and statutes of general application Most of laws currently in force in Tanzania are eithr those we inherited from the colonial masters or have been enacted after independence. The laws of Tanzania are based on English jurisprudence in which common law, doctrines of equity and statutes of general application form an important part. The legal basis of this is the Tanganyika Order in council of 1920 which under section 17 (commonly known as reception clause) provided inter alia that criminal jurisdiction in Tanganyika so far as circumstances admit, shall be exercised in conformity with the criminal procedure and penal code of India and where the same were not applicable the court were to apply common law, doctrine of equity and statutes of general application in force in England on or before 20th day of July 1920. This position was retained after independence by the reproduction of the section 2 (2) of the Judicature and Application of Laws Ordinances of 1961. In addition the Penal Code allows the application of common law and doctrines of equity in the circumstances specified in section 3 (1) of the code. 4. Precedent The inferior courts, in common law jurisdiction are bound by the decision of the higher courts in the same judicial hierarchy. Precedent becomes an important source of criminal law in relation to decided criminal cases. 5. International Law Although international criminal law is not very well developed yet it remains an important source of criminal law. Sources are treaties. However, treaties do not automatically become part of the law of Tanzania until are ratified or accessed to. In order for a treaty to bind Tanzania, there must be a local Act incorporating the particular treaty and this Act must be passed by the parliament. E.g. Four Geneva Conventions 1949, The Convention on the High seas of 1958 etc. NOTE: Read more books on criminal law and procedure don’t rely o these notes. “QUOD ISTE ET ISTE CUR NON EGO”
