Criminal Law and Law of Evidence

UNIT 1 INTRODUCTION TO CRIMINAL LAW AND

LAW OF EVIDENCE

Unit Structure

1.0 Overview
1.1 Learning Outcomes
1.2 Definition of Criminal Law
1.3 Role and Functions of Criminal Law
1.3.1 Theories
1.4 Offences
1.4.1 Recidivism
1.5 Definition of the Law of Evidence
1.6 Role and functions of the Law of Evidence
1.7 Admissibility, Relevance and Weight
1.8 Summary

1.0 OVERVIEW

This unit introduces the study of basic criminal law and rules of evidence which should
be relevant in a criminal trial.

1.1 LEARNING OUTCOMES

By the end of this Unit, you should be able to do the following:

1. Define Criminal Law.
2. Explain the role and functions of Criminal Law.
3. Evaluate the importance of Criminal Law.
4. Define Law of Evidence.

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5. Explain the rules of evidence.

6. Evaluate the rules and principles involved in a criminal trial.

Warm Up Activity

(i) Provide some of the elements of the definition of law.

1.
2.
3.
4.
5.
6.
7.

(ii) Evaluate the extent to which some of these elements are related to your work as a
police officer.

1.2 DEFINITION OF CRIMINAL LAW

Criminal Law regulates the relationships between an individual and the State. Indeed, if
an individual commits a criminal offence, it can be argued that it should be the role of the
State to prosecute the person and punish him if he/she is found guilty by a Court of law.
Criminal liability is the strongest formal condemnation that society can inflict. Yet there
are many offences for which criminal liability is merely imposed by parliament as a
practical means for controlling an activity, without implying the element of social
condemnation which is characteristic of the major or traditional crimes.

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1.3 ROLE AND FUNCTIONS OF CRIMINAL LAW

As highlighted by the previous definitions, Criminal Law has an important role to play
because it primarily offers a form of protection to individuals against criminal offences.
The following can be considered to be the main functions of Criminal Law:
 To define and identify the forms of conduct which should be considered to be
criminally wrong.
 To seek to reduce crimes through punishment.
 To identify the sentence which may be imposed in case of the commission of an
offence.

1.3.1 Theories

Based on the above, different theories related to crimes have been developed over the
years and some of them are:
 Retribution - A traditional aim of the application of criminal law has been to
satisfy the desire for vengeance.
 Victimology - This refers to the need to offer psychological help to the victim. For
example, in cases of sexual offences, it is desirable for the victim to be offered
help.
 Deterrence – It refers to a law that imposes severe sanctions that may help to deter
the commission of future offences.
 Incapacitation - This is related to custodial sentences whereby the accused will be
imprisoned for a period of time which will stop him from committing offences.
 Rehabilitation - This is related to helping the person who has committed an
offence and enable him to reintegrate society as a responsible person.

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Activity 1

Analyse the extent to which the Mauritius Police Force helps to fulfill the role and functions
of criminal law.

Evaluate the application of the theories related to criminal law by the Mauritius Police Force.

1.4 OFFENCES

The Criminal Code of Mauritius has made a distinction between three different categories
of offences namely crimes, misdemeanors and contraventions.

Before explaining those three categories of offences, it would be relevant to mention that
the Criminal Code of Mauritius is mainly based on the French Code Penal. Indeed,
different types of offences (example: offences against a person, offences against property
etc.) have been provided in the Criminal Code.

Section 2 of the Criminal Code of Mauritius provides that offences “which the law
punishes are crimes, misdemeanors or contraventions”.

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1. Crimes
Crimes can be considered to be the most serious type of criminal offence which is
punishable by severe sanctions. Section 4 of the Criminal Code of Mauritius
provides that “crimes are offences punishable by
(a) penal servitude;
(b) a fine exceeding 5000 rupees.”
In relation to penal servitude, Section 11 provides the following:
(i) “The punishment of penal servitude is imposed for life or for a minimum
term of 3 years.
(ii) Where in any enactment the punishment of penal servitude is imposed
without a term being specified, the maximum term for which the
punishment may be imposed is 40 years.”

2. Misdemeanors
Section 5 of the Criminal Code of Mauritius provides for misdemeanors as being
“offences punishable by
(a) imprisonment for a term exceeding 10 days;
(b) a fine exceeding 5000 rupees.”

3. Contraventions
Section 6 of the Criminal Code of Mauritius provides that contraventions are
“offences punishable by
(a) imprisonment for a term not exceeding 10 days;
(b) a fine not exceeding 5000 rupees.”

1.4.1 Recidivism

It is interesting to note that the Criminal Code of Mauritius also provides for more severe
penalties in cases where a person has committed an offence again after having been
previously convicted.
Section 13 provides that “where a person

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(a) commits a crime within the 10 years following his conviction for a crime;

(b) commits a misdemeanour within the 5 years following his conviction for a crime; or

(c) commits a misdemeanor within the 5 years following his condemnation to

imprisonment for one year or more for a misdemeanor, the Court in passing
sentence shall taken into consideration the previous conviction or condemnation,
and may inflict a penalty exceeding by one third the maximum penalty fixed for
such crime or misdemeanor.”

Activity 2

(i) Identify specific offences which would fall under the categories of crimes,
misdemeanors and contraventions.

(ii) According to you, is it the role of the legislature or the role of the courts to impose
sanctions in case of a criminal offence. Explain your answer.

(iii) Analyse whether the commission of a criminal offence would necessarily result into
a conviction.

(iv) State which of the following courts have jurisdiction to hear a decide on a criminal
case: (a) District Courts, (b) Intermediate Court, (c) Supreme Court. Justify your
answer.

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1.5 DEFINITION OF THE LAW OF EVIDENCE

The law of evidence is mainly related to principles, rules and discretions, and it analyses
the extent to which the principles, rules and discretions are used during criminal trials.

The focus of the law of evidence is mainly on the following:

 Admissibility – the issue is whether facts or materials are admissible as proof.
 Discretion – the extent to which the Court may exercise a discretion in relation to
the admissibility of a piece of evidence
 Directions – the basis on which the judge may give directions to the jury in
relation to the weight to be attached to different items of evidence.

Activity 3

(i) Identify types of evidence which may be presented in Court.

(ii) Analyse the extent to which the above mentioned types of evidence may be
admissible in Court.

(iii) Assess the role of the police in relation to gathering evidence.

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1.6 ROLE AND FUNCTIONS OF THE LAW OF EVIDENCE

The Law of Evidence provides for the legal framework in which evidence is submitted in
a criminal case. This legal framework is based on the following role and functions of the
law of evidence:

1 Consistency
As the principles and rules of evidence are clearly defined, this offers the foundation on
which different Courts will decide on the admissibility of items of evidence.

2 Fairness
The principles and rules of evidence ensure that an accused will be treated fairly during a
criminal case. This is in line with the principle of presumption of innocence whereby a
person is innocent until proved guilty.

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Activity 4
(i) Explain the principle of presumption of innocence.

(ii) Explain why all items of evidence produced in Court should not be necessarily
considered.

(iii) Identify items of evidence which should not be considered by the Court.

(iv) Write brief explanatory notes on the following:

a. Circumstantial evidence
b. Collateral facts
c. Documentary evidence
d. Medical evidence
e. Facts in issue
f. Original evidence
g. Real evidence
h. Hearsay rule
i. ‘Voir dire’

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1.7 ADMISSIBILITY, RELEVANCE AND WEIGHT

The main principles related to the application of the Law of Evidence by the Court are
admissibility, relevance and weight.

1. Admissibility
Items of evidence produced in Court need to pass the test of admissibility. This is mainly
related to a question of law which helps the Court to determine what can be received as
evidence. For example, when evidence is given by a witness in Court, the Court needs to
decide on whether such evidence is admissible or not.

2. Relevance
Unlike admissibility which, as mentioned above, is primarily a question of law, relevance
would be assessed by the Court on the basis of logic and common sense. A relevant
definition of relevance was given by Lord Simon in DPP v Kilbourne [1973] AC 729,
756: ‘Evidence is relevant if it is logically probative or disprobative of some matter
which requires proof.’

3. Weight
If the Court finds that an item of evidence is both admissible and relevant, it still needs to
determine the weight that it would attach to it. The weight is usually determined on the
basis of the probative value or probative weight of an item of evidence. For example, if
the Court considers that the evidence given by a witness is admissible and relevant, it
will also need to determine the value or weight to be given to such evidence.

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Activity 5

Let us assume that an accused is prosecuted on a charge of having sexual intercourse with a
minor under 16 years. Would evidence that the accused has downloaded sexually explicit
images and video clips of minors be admissible and relevant?

Write arguments:
(i) In favor of admissibility of evidence.
(ii) Against admissibility of evidence.

1.8 SUMMARY

Criminal Law and the Law of Evidence are important branches of Mauritian law as they
have the ultimate aim to protect the society.

Criminal Law provides for offences and sanctions. As it is the role of the legislature to
make laws, the law provides for elements of the offences which have to be proved by
prosecution against the accused.

When the case is heard in Court, the rules of evidence will become important as the Court
will then need to consider the items of evidence on the basis of admissibility, relevance
and weight before giving a judgment.

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