Criminalizing Conduct

The main essence behind Criminal Law is to protect the public from harm, an objective that is achieved through the imposition of punishment to those who attempts or harms another person. The harms that the criminal law aims to prevent vary – they may be physical harm, death, or even bodily injury to human beings; injury to public health; loss or damage to property; danger to government; sexual immorality; or even disturbance to public peace.

Further, any conduct that threatens to cause, even if it is yet to cause a harmful act, is considered as a crime. In this light it is clear that criminal law’s core objective is to avoid harm by forbidding/ preventing any conduct that may lead to harmful results. [Gross, Hyman (2005, reissue)]

The goals of criminal law are better explained in the following five theories; (1) the theory of retribution which provides that criminals ought to suffer in a way since they themselves inflict suffering to other people e. g. one who murders may as well be murdered; (2) theory of deterrence which gives credibility to the imposition of a sufficient penalty in order to discourage the offender from committing the crime again or even other people; (3) incapacitation theory, that aims at putting offenders away from the society so that the general public is protected from their misconduct, this can be achieved through prison sentence or sometimes death penalty; (4) the rehabilitation theory that aims at transforming offenders into good people by convincing them that their misconduct was wrong, and; (5) restitution theory that targets the compensation of the victim e. g. a person who steals another person property will be required to pay an amount that is inclusive of the property worth plus fines.

 It should be noted that some of these theories may sometimes be mutually applied alongside one another, for instance, a punishment given may seek to incapacitate the offender, deter others from indulging in similar misconduct, and, the same time, act as a rehabilitative measure to the offender.

On the same note these theories may at times conflict one another, for instance, retributive and deterrence theories are inclined to inflicting harsh treatments on offenders while in prison but the prison facilities may not be conducive to such intentions. [Fletcher, G. P. (1998)] It should be noted that all the above five theories are all inclined to making perpetuators of misconducts to pay or suffer from the wrongful acts they committed against other people or even the general public, in other words to discourage them or others from repeating the same misconducts again.

Nevertheless, the application of either or a number of these theories is subject to the proofing beyond reasonable doubts the existence of a “guilty act” taking place which can either take the format of an action or threat of action. [R v. Dytham (1979)] In some cases a case of guilty act may be registered if one fails to act provided s/he was under some obligation to act or had a duty e. g. the case of a railway worker who failed to close crossing gates and as a result someone was run over by a train, the railway worker was convicted of manslaughter. [R v. Pittwood (1902)]

Further, for a misconduct to be proofed beyond reasonable doubts a state of “guilty mind” (intention) when committing misconduct must exist. The intention under criminal law is always very different from ones motives e. g. if a man decides to rob from a rich person with a motive to give the proceedings of the robbery to the poor, his good intentions does not change his criminal intention to commit a misconduct. [R v. Mohan (1975)] Due to complexity of some misconduct, at times both “guilt act” and “guilty mind” philosophies may be applied, however on such occurrences judges may require that the elements be availed at precisely the same instant and it is not adequate that they took place in succession at dissimilar times.

[Fagan v. Metropolitan Police Commissioner (1968)] Therefore this leads to the assertion that criminal law is inclined to preventing any form of misconduct, however, the “prevention” element in it may not be the main point as the conclusion of criminal cases are subject to rigorous criminal investigation procedure to ascertain whether there was “guilty mind” [Metropolitan Police Commissioner v. Caldwell (1981)] or even “guilty act” [R v. Roberts (1971)] in the claimed misconduct.

According to criminal law misconduct is an act that interferes with the peace of an individual or the general public, or any act that contravenes the criminal law, this may take the form of; physical harm, death, or even bodily injury to human beings; injury to public health; loss or damage to property; danger to government; sexual immorality; or even disturbance to public peace. For instance under the criminal law every individual is provided for with rights to freely express him/ herself and coexist, but a contravention of these laws may lead to forfeiting of these privileges.

[Fletcher, G. P. (1998)] Misconduct will not be considered as a crime if it was committed involuntarily or accidentally. Further, a misconduct will not be considered a crime if it does not amount to a physical act or failure to act when under a legal duty to do so.

This is to say that bad thoughts alone can not amount to criminal liability and there may be considered not the criminal law business, e. g. a child who wishes that his father die and even think of killing him will not have committed a misconduct if his father coincidentally died provided that he (child) did not take part in the killing of his father. [Harwood, sterling (2000, formerly 1996)] Most of the times misconducts are committed by specific actions e. g. the pulling of a trigger or the thrusting of a knife in murder or the lighting of fire in arson or still as explained above the omission or failure to act or even the voluntary possession of materials that are harmful to the public or an individual.

[Regina v. Dugdale, 1853] It is wise to make a conclusion that a conduct may be considered a crime in one jurisdiction only to be considered otherwise in another jurisdiction, or a conduct that was considered a crime in yester decade may not be considered as such today and vice versa. [Gross, Hyman (2005, reissue)] Misconduct or crimes can be classified in many different ways depending on the magnitude of their severity, for instance, some crimes are considered as “evil in themselves” while others may be taken as “criminal only because the law says so.

” However, the commonest classification consists of two categories whereby those misconducts/ crimes that are more severe and thus punishable by death or imprisonment in a state prison or penitentiary are considered as felonies while those misconducts/ crimes whose punishment includes fines or imprisonment in a local jail are considered as misdemeanors, however, this may not be the case in all jurisdictions, as a felony in one jurisdiction may be a misdemeanor in another, with some jurisdictions having an additional category for minor offences, mostly known as infraction which are punishable by small fines.

[Gross, Hyman (2005, reissue)] In light of this method of classification it is evident that criminal law is purely a punishment-oriented law that operates under the rule that, “the severe the misconduct/ crime the heavier the punishment and vice versa.

” The five theories which may be used independently or alongside one another serves to underscore this argument; that as a retributive measure, those people who are proven beyond reasonable doubts to have committed misconducts should be subjected to suffering that is equal or more than the one they inflicted on their victims; that as a deterrence measure offenders should be subjected to a punishment relative to or more than the misconduct they did in order to deter them or others alike from committing the same misconduct; that as an incapacitation measure offenders should be punished by being kept in jails away from the general public to protect the public from their misconduct; that as a rehabilitative measure doers of misconducts should be subjected to transformation processes in view of convincing them that their conduct was wrong, and ; that as a restitution measure a doer of a misconduct should be made to pay the victim the damages incurred (body injury or loss of property). Going by the provisions of the five theories it may be hard to find room for application of mercy on a proven misconduct, as an extension of such mercy to an offender will be a great violation to principles of criminal law and the five theories. [Harwood, sterling (2000, formerly 1996)] References: Fagan v. Metropolitan Police Commissioner (1968) 3 All ER 442, where angry Mr. Fagan would not take his car off a policeman’s foot, accessed on February 25, 2009 Fletcher, G. P. (1998).

Basic Concepts of Criminal Law, Oxford University Press, accessed on February 25, 2009 Gross, Hyman (2005, reissue). A theory of Criminal justice, Oxford University Press, accessed on February 25, 2009 Harwood, sterling (2000, formerly 1996). “Is Mercy Unjust? ” Crime and Punishment: Philosophic Explorations. Wadsworth Publishing Co. , formerly Jones & Bartlett Publishers, accessed on February 25, 2009 Metropolitan Police Commissioner v. Caldwell (1981) 1 All ER 961; in UK, accessed on February 25, 2009 R v. Mohan (1975) 2 All ER 193, intention defined as “a decision to bring about… [the actus reus) no matter whether the accused desired that consequence of his act or not”, accessed on February 25, 2009 R v.

Dytham (1979) QB 722, where a policeman on duty stood and watched three men kick another to death, accessed on February 25, 2009 R v. Roberts (1971) Criminal Case, LR 27, where a girl jumped from a speeding car to avoid sexual advances and was injured, accessed on February 25, 2009 Regina v. Dugdale, 1 El. & Bl. 435, 439 (1853) where a mere possession of indecent images with intent to publish them was not a crime as possession did not constitute an act, accessed on February 25, 2009 R v. Pittwood (1902) 19 TLR 37 – the case of a railway worker who failed to close crossing gates and as a result someone was run over by a train, accessed on February 25, 2009