2. The nature and purpose of criminal law

Historical roots

English orientation: English criminal law came with the Freetown settlement. Courts and a Chief Justice were in place by 1788, and jury trial was used from the earliest years of the colony.

Customary element: Customary law also creates offences, such as seducing another man's wife, which are dealt with in local courts.

The principle of legality

Nullum crimen, nulla poena sine lege: There is no crime and no punishment without a pre-existing law. A person cannot be punished for conduct that was not an offence when done. Section 23(7) of the 1991 Constitution protects this.

Theories of criminal law

Consensus and conflict: Consensus theory sees criminal law as reflecting shared values. Conflict theory sees it as protecting the interests of those with power.

The ethical core: Some crimes (murder, theft, rape) are wrong in themselves (mala in se). Others are crimes only because a statute says so (mala prohibita).

Purposes of punishment

Retribution: Punishment as deserved condemnation. Lord Denning told the Royal Commission on Capital Punishment that punishment is the emphatic denunciation of a crime by the community.

Deterrence: General deterrence warns everyone; specific deterrence warns the offender (Bentham).

Rehabilitation and incapacitation: Reforming the offender and protecting the public.

Crime and civil wrong

The distinction: A crime is a public wrong prosecuted by the State and leads to punishment. A civil wrong is a private wrong, sued on by the victim, and leads to compensation.

Standard of proof: Crime must be proved beyond reasonable doubt (Woolmington v DPP); a civil claim on the balance of probabilities.

The test: In Proprietary Articles Trade Association v Attorney-General for Canada, Lord Atkin said the criminal quality of an act is discerned by one test: is it prohibited with penal consequences?

Current law note

Death penalty abolished: The Abolition of the Death Penalty Act 2021 (Act No. 6 of 2022, in force 21 April 2022) abolished the death penalty for all offences. Murder, treason and robbery with aggravation now carry life imprisonment, meaning at least 30 years.