BLAW 105: CRIMINAL

LAW
NATURE, SOURCES, AIMS & FUNCTIONS

By: Christine Opoku Onyinah

UPSA Law School
 CONTENT FOR TODAY’S LECTURE
a) Definition:
- What is Criminal Law?
- What is a Crime/Offence

b) The object of Criminal Law – Aims and Functions

c) Classification of Offences

d) The Interpretation of a Criminal/Penal Code

WHAT IS CRIMINAL LAW?
 WHAT IS CRIMINAL LAW?
• What is distinctive about criminal law?

• What marks it out from other kinds or aspects of law?

• What are its distinctive institutional structures, purposes, or content?

CRIMINAL LAW (IS) …
o The foundation of the criminal justice system

o ”If the matter is one the direct outcome of which may be the trial of the applicant and his possible punishment for an alleged offence by a
court claiming jurisdiction to do so, the matter is criminal… (Viscount Simon LC, Amand v Home Secretary and Minister of Defence of
the Royal Netherlands Government [1943] AC147, HL)

o “…a process, a way of doing something” (Professor Henry M Hart Jr)

o “..Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the
state.”

o “…for the domain of criminal jurisprudence can only be ascertained by examining which acts at any particular period are declared by the
State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State and that those who
commit them are punished.”
( Lord Atkin, Proprietary Articles Trade Association v. Attorney-General for Canada [1931] A.C. 310 at p.324)

o “…determines the extent of individual behaviour by defining conduct which is deemed unacceptable in the society. It prescribes sanctions
such as death, imprisonment, fine or corporal punishment to be imposed….on persons who engage in the proscribed conduct. ..( Prof.
Joseph Goldstein, 1971)

Summary: Criminal law is about crimes or offences

Characteristics of the Criminal Law Method

1. Operates by means of a series of directions or commands formulated in general terms, telling

people what they must or must not do

2. The commands are taken as valid and binding upon all those who fall within their terms when
the time comes for complying with them

3. The commands are subject to one or more sanctions for disobedience which the community is
prepared to enforce

4. What distinguishes a criminal from a civil sanction is the judgement of community

condemnation which accompanies and justifies its condemnation

5. Involves something more than the threat of community condemnation of anti-social conduct
 SHOULD WE ABOLISH CRIMINAL LAW?
1. Firstly, the criminal law purports to declare and enforce authoritative standards of value, in particular of moral value: it
claims the authority to tell us how we should live, and to enforce its demands on us if we disagree or disobey.

2. Second, the criminal law ‘steals conflicts’ from those to whom they properly belong.

3. Third, the criminal law deals in punishment—in ‘pain delivery’—when what is needed is instead a process that will repair
whatever harm was caused, reconcile the people involved in the conflict, and thus restore the relationships that the conflict
damaged.

• Why should we maintain an institution that speaks to its citizens in such terms of wrongs that should not be
committed?
WHAT IS A CRIME/OFFENCE?
Universal characteristics of a crime?

• The Problem with defining what a crime is Vs. Identifying the characteristics universal to every crime
even if not readily defined.

Problem Defining crime:

• Blackstone defined crime as an “act committed or omitted in violation of a public law forbidding
or commanding it”
• Critique: definition suffers from obscurity and equivocation- a violation of a constitutional law may not
necessarily be a crime

• Another tendency has been to regard crime as a wrong or injury against the wrongdoer’s
community considered as a whole
• Critique: How does one man killing another said to be an act against the community as a whole? Is it
rather an act against the community ethic?
• Again, there are many tortious acts or breaches of contract which have consequences that affect the
community as a whole.
• Others have defined a crime as conduct that attracts punishment

“…if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person
charged and in a sentence of some punishment, such as imprisonment or fine, it is a ‘criminal cause or matter.” [Lord
Wright in Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943]AC 147]

Is the matter one for which a person can be tried and punished? [ See Viscount Cave in Re Clifford and O’Suillivan
(1921) 2 AC 570]

• Critique: Punishment is not peculiar to criminal offences. An award of damages for breach of
contract is essentially a punishment.

Identifying the characteristics universal to every crime

• It usually involves a public wrong or moral wrong

‘Public’ Wrong
• Crimes generally involve behaviour which has a particularly harmful effect on the public which
goes beyond interfering with merely private rights.
• This public nature of crimes is evidenced by the contrast between criminal law
and civil law

• Some forms of conduct are so obviously public wrongs that anyone would say
they should be criminal –murder or rape for example.

A ‘moral’ wrong?
• As with public wrong, this characteristic has been said to be hopelessly vague
A. Morality
• There is a relationship of morality and criminality but experience suggests that criminal
law is not co-extensive with morality.
• In recent times, many acts are prohibited on the grounds of social expediency and not
because of their immoral nature.
• Whose morality should be the benchmark for criminalisation?
B. Harm or wrong to others
• Conduct can be treated as a wrong if it violates some moral duty or rule, and harmful if it
infringes the autonomy or causes serious offence to another.
• Conduct can be wrongful without being harmful; and harmful without being wrong
• Again, the problem of whether there is an agreement as to the moral basis for
criminalising ; what will be wrong or harmful for the paternalist will not necessarily be
wrong for the liberal.

Agreed basis of criminalisation?

• Factors advanced by Husak in his work “Overcriminalisation’ to consider for
criminalisation include:
1. Criminal law ought to prohibit ‘non-trivial harm or evil’
2. Should target some wrongful conduct by the defendant
3. Punishment for an offence is justified only when and to the extent it is deserved
4. The burden on justifying the creation of criminal offence is on those who seek to introduce it
5. The crime created must identify a substantial and legitimate State interest to be protected
6. That criminalisation will ensure that criminal law ought not to be more extensive in scope than is necessary
to achieve its purpose.
Definition of crime by a process?
• Most writers because of the difficulty in defining crime, have been driven to define
whether conduct is criminal by turning to the nature of legal proceedings that may follow
from its commission
• The criminal quality of a conduct cannot be discerned by intuition ; nor can it be discovered by
reference to any standard but one: is the conduct prohibited with penal consequences Proprietary
Articles Trade Association v A-G for Canada [1931] AC 310 at 324 per Lord Atkin
• Professor Kenny defines a crime as “wrongs whose sanction is punitive and is no way remissible by
any private person, but is remissible by the Crown alone, if remissible at all.

The practical test: is it a crime?

• Refer to the Statutes on Crime

CONCLUSION
• Is there a universal definition of a crime?
• How do we know something is a crime?
 CRIME/OFFENCE
o A criminal offence has the meaning assigned to it by Article 19 of the Constitution
(Section 1, Criminal Offences Act (1960), Act 29)

o “No person shall be convicted of a criminal offence unless the offence is defined and
the penalty for it is prescribed in a written law” (Article 19, clause 11, Constitution of
Ghana)

o A criminal offence means a criminal offence under the laws of Ghana (Article 19(21),
Constitution of Ghana)

o “conduct which, if duly shown to have taken place, will incur a formal and solemn
pronouncement of the moral condemnation of the community” (Prof. Henry M. Hart, Jr)
 CRIME/OFFENCE
3 discernable elements of a crime:

1. A prohibited act

2. Prohibition by a statute in force

3. The provision of penal consequences for breach

Summary: An Act is a crime only if it is prohibited by statute and there is a

penalty attached to the doing of the Act
Distinction between Criminal Law and Civil Law
o A crime is a public wrong and a civil action relates to a private wrong. The difference is manifested in the
processes that are available to the individual in either cause or matter

o A civil/private wrong injures the rights of an individual or a group of individuals whilst a public wrong
such as a crime injures the whole society

o Criminal Law: The ‘State’ /’Republic’ v Defendant; The ‘King’ or ‘Queen’(Regina) v Defendant

o Civil Action: Plaintiff v Defendant OR Applicant v Respondent

o Criminal penalties: Fines, Imprisonment, Death sentence, Caution and Discharge, compensation, Detention
and Police Supervision

o Civil Remedies: Declarations, Equitable reliefs (Specific performance and Injunctions); compensation;
damages and orders in judicial review (certioriari, prohibition, quo warranto, mandamus and habeas
corpus)
 THE OBJECT OF CRIMINAL LAW:
AIMS & FUNCTIONS

Social Control and Social Morality: The function of the criminal law is:
1. to preserve public order and decency,

2. to protect the citizen from what is ' offensive or injurious’ and

3. to provide sufficient safeguards against exploitation or corruption of others…

4. to seek to enforce any particular pattern of behaviour

The Wolfenden Committee, Report of the Committee on Homosexual Offences and
Prostitution (1957), stated (at paras. 13 and 14)
 'MALA IN SE’ & ‘MALA PROHIBITA
ACTS
- MALA IN SE: Acts that constitute breaches of moral rules and are also
criminal; guilt proven by a blameworthy state of mind
• Mala in se are crimes consisting in conduct that is wrong independently of the criminal law—that would
have been wrong even had there been no criminal law.

- MALA PROHIBITA: Acts that are criminal but not moral wrongs; strict
liability
• Mala prohibita, on the other hand, consist in conduct that is not wrongful independently of the law that
prohibits it: if they are wrong, their wrongfulness depends essentially on their illegality
 CLASSIFICATION OF OFFENCES
Crimes in Ghana are classified as follows:

a) Offences punishable by death (Capital Offences) i.e. Murder, treason and piracy
NB: Act 29 has been amended to replace the penalty of death of offences like murder with life
imprisonment

b) Other Felonies (Section 296, Act 30):

• First-degree Felonies: punishable by life imprisonment or any lesser term i.e.. manslaughter, rape, mutiny
• Second-degree Felonies: punishable by a term of imprisonment not exceeding 10 years i.e.. perjury, robbery, intentional
and unlawful harm to persons

c) Misdemeanours: punishable by a term of imprisonment not exceeding three years i.e. assault, theft,
public nuisance

d) Offences punishable by fines: For very minor offences e.g.: Road Traffic violations; or may be
imposed in addition to any term of imprisonment (Section 297, Act 30)
o Mode of Trial is determined by crime classification: First degree felonies
require jury trials, whilst Misdemeanours are tried summarily

o Section 1, Act 29 also talks about:

- Summary Offence: criminal or any other offense punishable on summary
conviction under an enactment
- Indictable Offence: offence punishable on indictment
 THE INTERPRETATION OF A CRIMINAL/PENAL ACT
“Crime” and “offence” are used interchangeably (Criminal Offences Act, 1960(Act 29))

Section 4(1) & (2) of the Criminal Offences Act,1960 (Act 29) states that:
1. This Act shall not be construed strictly, either as against the Republic or as against a
person accused of a criminal offence, but shall be construed amply and beneficially
for giving effect to the purposes of this Act.
 Awedam v The Republic [1982-83] GLR 902, CA
Penal enactments must be construed beneficially, equally for the citizen as for the
Republic.

 State v Obeng & Ors [1967] GLR 91

By section 4(a), the courts are enjoined not to construe the Code strictly either as against the
state or as against the accused: but the Code should be construed amply and beneficially for
giving effect to its purposes
2. The court when interpreting any provision of Act 29 shall not bind itself to a
judicial decision or opinion on the definition of an offence or an element or
ingredient of an offence in any other enactment or under the common law.
 Republic v Tommy Thompson Books & Ors (No1) [1996-1997] SCGLR 312
Held: inter alia, that the Court is not bound to consider the historical evolution of any
offence whose origins are rooted in English law even though the Ghana Legal System is derived from
the English system.

3. The illustrations set out in this Act form part of this Act and may be used as
aids of construction, but they do not limit the generality of a provision of this Act.