Criminal Law and Criminal Procedure: Elements, Fault and Fair Trial
Criminal law defines conduct that triggers punishment and the conditions of liability; criminal procedure governs how the state proves it. The exam tests element-by-element analysis, the legality principle, and the safeguards that make a conviction lawful.
Legality and elements
- No crime and no punishment without a prior, clear written law. Extensive analogy is barred and ambiguity is construed in favour of the accused.
- Analyse each charge element: act or omission, causation, unlawfulness, mens rea, and any attendant circumstance.
Forms of fault
- Intent covers direct intent and dolus eventualis - foresight that the result is a serious possibility, plus acceptance of that risk. Negligence is a breach of the required standard of care; conscious negligence is foresight without acceptance.
Participation and defences
- Distinguish perpetrators, co-perpetrators (joint execution) and accessories (aiding, abetting), who attract differentiated liability. Attempt requires a beginning of execution, not mere preparation.
- Defences: self-defence (unlawful attack, necessity, proportionality), necessity, insanity, mistake of fact (negates intent), and rarely mistake of law.
Procedure
- Presumption of innocence; arrest on statutory grounds with judicial authorisation; right to counsel and to silence; exclusion of illegally obtained evidence; proof beyond reasonable doubt; ne bis in idem; reasoned judgments and appeal or cassation.
Worked example
D stabs V in the thigh to frighten him; V dies from blood loss. Reasoning: a wound in the femoral region makes death a serious, foreseeable possibility. Accepting that risk supports dolus eventualis for homicide; if the court finds the risk was foreseen but not accepted, conscious negligence on the lesser charge follows.
Traps
- Treating motive as an element of the offence.
- Confusing preparation with attempt.
- Confusing mistake of fact (exculpates) with mistake of law (generally does not).