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69 Cards in this Set
- Front
- Back
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What is the problem that post-modernist/post-structuralist individuals argue about in Criminal Law? |
Crim law is neither objective/deterministic - legal decisions cannot be applied logically through rules/principles. |
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What is argued that Criminal Law reflects? |
1) it reflects views/interests of those with economic/political clout 2) Dependent upon immediate social/historical context. 3) Contradictory principles |
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What is an example of a Contradictory Principle in Criminal Law? |
Not principles, but extra-legal considerations eg. time-frame of crime interpreted by court -> Small time-frame -> blameworthy |
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Exculpatory |
Evidence favourable to acquitting the defendant |
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Inculpatory |
Evidence favourable to the prosecution |
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What is one example of a short time-frame rejected as interpretation? What conclusion has this led to? |
Eg. Theft. Feeding family? Intentionality vs Need Inconsistent and arbitrary. |
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Criminal law is fundamentally a ___________ institution? |
Normative - what is ought to be (public interest) |
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What does Criminal Law assume of individuals? |
Morally and legally responsible for conduct. Rational. |
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What is one problem with the arguments stated by critics of Criminal Law? |
Not determined by law, but by extra-legal considerations not to do with law/justice. |
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Extra-legal |
Beyond province of law |
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How do we justify Criminal Law? |
Interpretation of Penal Code consistent (non-arbitary) and grounded in coherent account of moral responsibility (normative) and human actions. |
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What can help Criminal Law against its' inconsistencies? |
Legal Theory - practical guidance to how legislative and normative can be reconciled. |
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In our changing global landscapes, what are countries doing? Give an example. |
International Criminal law - extending Penal Statues. Eg. War Crimes, domestic/international. Mutual legal assistance treaties |
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What has Singapore done to free its legal system? |
Abolition of appeals to Privy Council - removed |
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To truely have an international criminal court, what is needed? |
Removal of idiosyncrasies of domestic issues and transition from positive law to legal theory Prohibition interpreted diff in diff countries: US cruel and unusual punishment clause againstEU convention on human rights. Amputation considered punishment in Taliban. |
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Positive Law |
Statues that are laid down that can take any form |
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What is the importance of morality? |
Maintains what humans have built the house for -> Social rules Not all laws have moral content - Singapore has lesser "Moral" laws. |
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How does one live? |
Understand how to live 1) Push the boundaries - state must punish if not people. 2) Breach must pursue! Victim must pursue perpetrator. -> State do rather than acts of reprisal -> Public law |
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Procedural Court of Law |
Criminal Process by which accused person is tried in court of law, and if convicted, sentenced. (Criminal process) |
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Substantive Court of Law |
Written statutory rules passed by legislature that govern how people behave. |
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What is the traditional way to divide criminal law? |
General part and Special part |
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What is the General part of criminal law? |
1) Doctrines that apply to ALL crimes 2) Theory of responsibility |
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What is the Special part of criminal law |
1) Doctrines that define particular crimes 2) Theory of wrongful action |
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What is the theory that tells us what actions are wrong to do? |
Theory of substantive morality - Is abortion wrong etc. |
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What is the theory that defines responsibility of an actor? |
Morality of fair fault ascription. Theory of responsibility |
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What is the Theory of Responsibility? Does it judge character? |
No, it is mainly content-neutral. Lays down conditions under which oneis responsible, no matter character of wrongful action. |
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How has parliament created a framework for Prosecution? |
Criminal Procedure Code |
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What is the main idea of Criminal Law, according to V. K. Rajah? |
Criminal Law must be administered for greater good of society, not its' own sake. |
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What is the Attorney General of Singapore mostly responsible for? |
Constitutionally Responsible for how prosecutions are brought and carried on |
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How has the Govt respected the independence of prosecutors? |
Instruction Manuals, regulating conduct of civilservants, has contained stern injunction (warning) to the effect. |
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What sort of Crimes are punished severely? |
Criminal activity affecting law, order and life in Singapore Peace and order in Singapore non-negotiable |
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What is a broader view taken on less serious crimes? |
Prosecution leaves a black mark, not every offender is hardened - there's mitigation. Punishment is not always the main or only concern. |
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What are currently being considered by the AG? |
Suspended sentences - if an offender commits another crime, both sentences will run concurrently, else, the offender has no sentence. Utilizing the Community Sentences under CPC |
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How is Singapore as a society trying to improve its' effort against crime? |
Society tough on crime must be tough on causes. Improve moral climate and socio-econ climate so no inclination to crime. |
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How can mental illness be helped in criminal law? |
Treatment and recovery highly considered |
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If a breadwinner is facing long term jail, what can the Government do? |
Work with prison authorities, social services to access impact and MSF has financial support schemes to avoid vicious cycle of crime |
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What is a typical cycle of crime? |
Deprivation -> Desperation -> Crime |
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What kind of treatment can an offender expect from the new Criminal Law system? |
Offender has prospect for rehab and general deterrence not main sentencing concern, prosecution will ask for rehab element |
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Punitive |
Inflicting or intending as punishment |
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What is the advised approach for Youth offenders? |
Youth are the future, and indiscretion might stain future. Early intervention and rehab should be meted Youth is not a license to offend, however. |
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Who is looking into youth justice issues now? |
Second Solicitor-General Kwek Mean Luck is participating in an inter-ministry study on this. |
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What are some improvements on the part of prosecutors? |
1) Advocacy. 2) Uphold integrity of CJS 3) Wait for justice 4) Criminal Case disclosure system 5) Principled developed of Criminal Law |
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There is no point securing convictions unless...? |
Public must be confident that: 1) Process is fair 2) Convictions are safe |
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How is the AG trying to prevent false confessions? |
Video statements by accused: Improve accuracy,reliability and prevents false testimonies |
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What is the criminal case disclosure system? |
Prosecutors getting familiar with disclosing all evidence to defense for fair trial, and defense likewise early in trial. 1) Fairness and openness is important 2) Irrelevant material becoming relevant will bedisclosed |
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Advocacy |
Big part of AGC's Academy work. Public support or recommend certain policy. |
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How is there the upholding of CJS? |
Legal advice to enforcement agencies |
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Why shouldn't there be a wait for justice? Who is targeted? |
Not a punishment Foreigners, Foreign Witness, Remand |
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What is important for principled development of Criminal Law? |
That the solution is a fair outcome even if not in favour. Prosecution will take issue with excessive or inadequate punishment. |
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What is Criminal Law, fundamentally? |
1) Tells you what you will be punished for if you do a certain act 2) Lays down parameters of pain and punishment (What you CANNOT do) 3) Promote closure for crime/victim 4) Educate people not to commit wrongfulacts/conduct/prohibited wrongdoing |
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How does Criminal Law ensure that you don't do wrongdoing? |
4 punishment theories 1) (Deterring) you from doing it again 2) Explain to you (Rehab/Reform) 3) Deserve it (Retribution) 4) Incapacitation |
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What is the philosophy of Criminal Law? |
Learning process through incentivizing and De-incentivizing (Pain and pleasure) |
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What is the reason for establishing theories of Criminal Law? |
Legislature concerning criminal law and byjudges are not ad hoc or arbitrary – guided by coherent theory and not criticizedas political |
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What are the objectives that Criminal Law should seek to enforce? |
Proportionality and Consistency - A scientific method |
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What does proportionality mean in Criminal Law? |
Weighing the crime against other established crimes - and doling out the equivalent punishment. |
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Where does the word "Draconian" derive from? |
“Draconian” originated from 7th C BCAthenian, Draco – harsh criminal code. Most minor crimes with capital. Heconsidered lesser crimes to deserve death, and greater had no greaterpunishment. |
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What was discussed in the House of Commons on 1810? |
Sir Samuel Romilly told House of Commons in 1810on Capital Punishment – no country on earth where so manydifferent offences to be punished by death as in England. 220 crimes punishableby death, and juries had to bring in logically-impermissible verdicts to avoiddefendant execution. |
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What might be a controversial consideration to ideal sentencing? |
USsentences reduced due to reduce public expenditure Incarceration (space) and costs taken into account |
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Common Law - an Art or Science? |
Art - Thomas Aquinas, 13th Century,classified sentencing as art – like an architect deciding hisstyle. If not right, appeal. 1995, Lord Justice Rose (England/Wales), saidsentencing is not science. – No rigid, mechanistic or scientificprocess. |
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What is the perceived idea for judges who love harsh sentences? |
Harsher sentences – greater confidence in thevalue of punishment and deterrence? Greater belief in “free will”? No rehabilitationmindset? Pleasing the public – Press will come and intrude into lenient judges’lives? Lenient judges have empathy for victim and defendant? |
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Which classical theory is stated in the bible? |
Marcel Berlins – 19th C judge:Capital Punishment – Eye for an Eye (Bible), Retribution? Sadistic pleasure? |
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Cop a Plea |
Engage in plea bargaining if faced with prospectof inevitable verdict of guilty/higher sentences even if NOT guilty. |
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Why can a victim enjoy or not enjoy retribution? |
Not enjoy: Punishment weighted against other punishments and seen as lesser. Take into judgement victim's plea for lesser charge? Take into account views of ex-prisoners? |
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Is it good to give a free hand to judges, away from the legislative? |
Absurd consequences, esp constitution - cannot remove judges Egyptianjudge sentenced to death >1200 supporters of ousted president over 2 shorttrials (Art 186, 2014 Constitution of Egypt). Appellate court quashed 1000 ofthe death sentences and judge transferred to civil courts. |
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Does Singapore seem to approve law with a scientific approach? |
If science, judges draw principles from study ofbehavior of humans? Refer to PP v Mohamad Noor bin Aris [2009] SGDC 1 – 51% probabilityof not reoffending, given last chance |
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When did the English abolish capital and corporal punishments? |
English judicial corporal punishment (physical)abolished in 1948, capital in 1965 |
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What are usually taken into account when determining the judgement of a crime? |
Nature of crime Circumstances of offender Effect of crime on victim and victim family Deterrence to Offender Deterrence to other Protect public |
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Who wrote in to request abolition of law in England, said guilty should be sentenced as crime merits? |
1990s,4 Lord Chief Justices called for abolition of mandatory life sentences. LordBingham 1998 wrote that. |
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What can be done to enact a Science in Criminal Law? |
Govt cannot have “placebos”. Experience fromother countries – similar crime, similar circumstances, half the sentence, sameresults? Greatest obstacle is pillar of retribution/punishment |
