Very good Criminology notes PDF

Preview

Summary

Notes on criminology...

Description

CRIMINOLOGY DEFINITIONS Criminology is a combination of two Latin words: Crimen – crime Logus or logy – science It is the science or study of crime. It is concerned with the conduct of individuals which is prohibited by society and law. It is a socio-legal study which seeks to discover the causes of criminality and suggests appropriate remedies. DEFINITIONS BY VARIOUS SCHOLARS Edwin Sutherland Criminology is the body of knowledge regarding crime as a social phenomenon. It includes within its scope the processes of making laws, breaking laws and reacting towards the breaking of law. (From the above definition it is apparent that criminology is a combination of how the society defines and deals with crime within a social and legal context). Donald Taft Criminology may be divided into two branches: 1. general 2. specific Criminology in a general sense is the study of crime and criminals. In a specific sense it seeks to study criminal behavior its goal being to reform the criminal behavior or conduct of the individual which society condemns. Webster Criminology is the scientific study of crime as a social phenomenon or of criminals and their behaviors and family conditions. Criminology can thus be said to be and academic discipline that employs scientific methodology to study crime, its major forms, its reasons for existence or causation and how the criminal justice system can respond to crime. In its narrower sense, criminology looks at criminal behavior of

1

individuals in society and how they come to be perceived as such i.e. Their social, cultural and economic background. In a wider sense, it looks at how the criminal is dealt with e.g. how he is punished and therefore includes penology. Criminology as a subject therefore deals with:  criminal acts;  the criminal;  it indirectly deals with the victim of the crime;  crime causation and theory;  crime prevention and detection of potential offenders;  The efficacy of the criminal justice system. Criminology borrows heavily from other sciences including biology (genetical make up of a criminal) psychology) (thinking process of a criminal mind), psychiatry (mental stability and inclination of a criminal), philosophy, general medicine etc. IMPORTANCE OF CRIMINOLOGY I. The most significant purpose of criminology is its concern for crime and criminals. There is a basic assumption that no one is born a criminal. (Check out the Lombroso theory). Reformation is therefore treated as the ultimate object of punishment while “individualization” i.e. according individualized understanding and treatment is the preferred method for such reformation. II. It is important for lawyers(when dealing with criminal clients it helps to understand their mind set and particular circumstances for purposes of giving proper legal advise as well as for pursuing a logical line of defense), judicial officers(for purposes of awarding appropriate sentencing, it is important for a judicial officer to not only understand the offender, but the society/community’s perceptions and emotions on given offences), law enforcement officers(for purposes of investigations, prosecutions, surveillance and crime prevention, for those holding criminals such as prison officers), social workers, psychologists, etc to understand the criminal more. III. It enhances official understanding of criminals, offenders, the types and prevalence of offences committed, generally or specifically by a class of people or in certain localities. This kind of understanding supported by data is important for crime detection and control. The government is enabled to plan better in terms of allocation of resources towards fighting different types of crimes. 2

IV. The ultimate object of criminology is to render a crimeless society. (This is of course a very remote possibility especially considering how crimes are created and the fact that sometimes very legitimate behavior i.e. chang’aa drinking is criminalized). IS CRIMINOLOGY A SCIENCE Proponents of the view that criminology is not a science base their argument on the standards of quality and validity of what can be classified as science. To this end they argue that the validity of a science is based on two concepts: I. Stability i.e. it must be firmly established with unlikelihood of ad hoc and unpredictable changes II. Homogeneity, i.e. the quality of being alike all of the same type. Since crime is not stable, nor is it homogenous, i.e. not all actions amounting to a crime in one jurisdiction will amount to crime in all jurisdictions, it is therefore concluded by the said proponents that criminology cannot be a science. THOSE AGAINST George Wilber He argued that anti-social behavior in society cannot be scientifically interpreted. According to him, general propositions of universal validity are the essence of a science. Such propositions can only be made regarding stable and homogenous units. Crime is not a stable homogenous unit but varies from place to place and from time to time. What may be regarded as a crime in one jurisdiction may not be a crime in another e.g. abortion, euthanasia, etc. Max Weber A German criminologist. He argued that criminology as a branch of sociology merely researches into components of human behavior without providing for solutions unlike normal sciences. Thus by offering an analysis of criminal acts without puritive answers it merely exposes a situation without a solution and thus cannot be called a science. (What about penology which offers solutions, and arguments for rehabilitation and reintegration into society, decriminalization, which are advanced by criminologists, it is therefore not entirely true that criminology does not offer solutions in any case do all sciences offer puritive solutions).

3

Herman Manheim He belongs to the school that argues that criminology is not a science as it has no techniques and methods of its own, and that it borrows heavily from others e.g. medicine, psychology etc. He argues that so far criminology has developed no scientific methodology of its own; its techniques of research are on the whole identical with those used in other social sciences. Ellenburger In response to Manheim’s arguments; His response is that: - Even amongst the natural sciences there are some like botany and zoology which deal with the study of facts which are not strictly unique and individual and which do not deal with general phenomena. Criminology is based on other social sciences just like medicine is based on anatomy, physiology, physics, chemistry etc. Neither medicine nor criminology is purely theoretical. They have a meaning which derives from their practical application. The justification for medicine lies in the therapeutics and public health and that of criminology in penal reform, penology and prevention of crime. THE CONCEPT OF CRIME The concept of crime is essentially concerned with social order. Generally, a crime can be defined as an act fit for serious condemnation or an act that is frowned upon by society it may start off as a moral wrong that is then elevated to a prohibited act for which the society ascribes specific sanctions. Kenny He defined a crime as a wrong whose sanction is punitive and which is in no way remissible by any private person but is remissible by the Crown. Keeton Defined a crime as an undesirable act which the state finds most convenient to correct by the institution of proceedings for the infliction of a penalty rather than leaving the remedy to the discretion of the injured person. Sutherland He defines criminal behavior as behavior which is in violation of criminal law. No matter what the degree of immorality, reprehensibility, or indecency of an act, it is not a crime unless it is prohibited by criminal law. Professor Sutherland further mentions seven attributes of a crime.

4

a. Before a behavior can be called a crime there must be certain external consequences or harm. A crime has a harmful impact on social interest. b. The external consequences or harm shall be strictly forbidden. Anti-social behavior is not a crime unless forbidden by law. c. There must be intention. d. Mens rea (a guilty mind) must be present e. There must be fusion or concurrence of mens rea and intention f. There must be a causal relationship between the legally forbidden harm and the misconduct g. There must a legally prescribed punishment. Difficulties exist in the legal definition of crime such as:  There is no universal concept of crime  From time immemorial certain conduct or norms were permissible but these vary with time and place From a legal point of view crime can be described as: 1. From the nature of the act itself. a. It is a wrong which causes harm b. It is a wrong against the whole community c. It is a wrong that directly threatens the well-being and security of society. 2. From the proceedings (i.e., the process) a. Crime is dealt with through criminal proceedings b. It is an illegal act whose proceedings are initiated, stopped or pardoned by the state. (role of AG, etc) 3. From the consequences a. It is a wrong whose sanction is punishment b. It is a wrong whose sanction is punitive and for which the state decides on the proceedings and the nature of that punishment. The Principle of Legality The principle is embodied in three maxims: a. Nullum Crimen Sine Lege There can be no crime without law. No one is held criminally liable unless he has done an act which is expressly forbidden under existing law. Thus, crimes must be very specific. They cannot be assumed by way of analogy.

5

The conduct that is sought to be prohibited must be clearly provided for and the punishment for it provided. (The only offence that is not clearly defined in the statutes is contempt of court (on the face of it), but nonetheless a remedy is provided). The principle specifically provides against retroactivity or retrospectively. Meaning that; conduct that has already occurred cannot be affected by the passing of a statute making the activity criminal. Therefore laws applying to crime cannot apply backwards. b. Nulla Poena Sine Lege There is no liability under criminal law for omissions. Thus moral wrongs are not legal wrongs and are therefore not punishable. c. Nullum Crimen Sine Poena There can be no crime without punishment For one to be guilty of a crime two elements must be proved, in satisfaction of the maxim actus non facit reum mens sit rea. 1. Mens Rea – A guilty mind 2. Actus Rea – Guilty Act The law however excludes certain persons from criminal liability or presumes them to be incapable of committing an offence. Under Section 14 (1) of the Kenyan Penal Code, a person below the age of eight years is not criminally responsible for any act or omission. This is an irrebuttlable presumption of law. Under Section 14 (2) of the Penal Code; a person between the ages of eight and twelve is not criminally responsible for an act or omission unless it is proved that at the time of doing the act or making the omission he had the capacity to know that he ought not to do the act or make the omission. This is a presumption in law that can be rebutted. Under Section 14(3) a male person under the age of twelve years is presumed to be incapable of having carnal knowledge. Mens rea may also be affected by other factors such as: 1. Insanity Every person is presumed to be of sound mind unless the contrary is proved. A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is by reason of disease affecting his mind incapable of understanding what he is doing or knowing that the ought not to do the act or make the omission. Where one is found guilty of an offence but proves that at the time of the commission or omission they were 6

suffering from insanity; the accused will then be found to be guilty but insane and detained at the pleasure of the President, (see section 166 of the Criminal Procedure Code, CAP 75, Laws of Kenya, which makes elaborate provisions for the defense of insanity). 2. Mistake or ignorance of the law Ignorance of the law is no defense to a criminal charge. It is presumed that all citizens know the law. 3. Intoxication Intoxication does not constitute a defense to any criminal charge unless the intoxication was such that the person did not know that such act or omission was wrong or did not know what he was doing. (Note that intoxication itself can constitute a crime, e.g. drunken driving). 4. Compulsion A person is not criminally responsible for an act or omission if it was done or omitted due to threats on the part of the offender to kill him or do him grievous bodily harm if he refuses to do the act or make the omission. Threats of future injury do not excuse offense. Section 16 of the Kenyan Penal Code states as follows: “A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or to him grievous bodily harm if he refuses; but threats of future injury do not excuse any offence, nor do any threats excuse the causing of or the attempt to cause death.” Section 19 states as follows: “A married woman is not free from criminal responsibility for doing or omitting to do an act merely because the act or omission takes place in the presence of her husband; but, on a charge against a wife for any offence other than treason or murder, it shall be good defense to prove that the offense was committed in the presence of, and under the coercion of, the husband.” 5. Necessity This defense is applicable is from an objective standpoint the accused can be said to have acted reasonably and proportionately in order to avoid a threat of death or serious injury. (R v Dudley and Stephens QBD (1881 -5) All ER 61. The two accused with a third man and the deceased, a 17 year old boy, were cast away in an open boat, 1,600

7

miles from land. When they had been eight days without food and six days without water, the accused killed the boy, who was weak and unable to resist but did not assent to being killed. The men fed upon his body and blood for four days when they were picked up by a passing vessel. At the trial for murder, the jury found by a special verdict that if the men had not fed upon they boy they would probably not have survived the four days; that the boy was likely to have died first; that at the time of the act there was no reasonable prospect of relief; that it appeared to the accused that there was every probability that they would die of starvation unless one of the castaways was killed; that there was no appreciable chance of saving life except by killing; but there was no greater necessity for killing the boy than any of the three men. On reference of this decision to the QBD, the accused was found guilty of murder. Various arguments were made which in effect seems to be that necessity should not involve the taking of an innocent life, which does not threaten one in order to save one’s own life. “To preserve one’s life is generally speaking, a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man’s duty not live, but to die…..It is not correct, therefore, to say that there is any absolute and unqualified necessity to preserve one’s life. It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. In this case the weakest, the youngest, the most unresisting was chosen. Was it more necessary to kill him than one of the grown men? The answer be, No. ‘So spake the Fiend; and with necessity, The tyrant’s plea, excused his devilish deeds.’ It is not suggested that in this particular case the ‘deeds’ were ‘devilish’; but it is quite plain that such a principle, once admitted, might be made the legal cloke for unbridled passion and atrocious crime. There is no path safe for judges to tread but to ascertain the law to the best of their ability, and to declare it according to their judgment, and if in any case the law appears to be too severe on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has entrusted to the hands 8

fittest to dispense it. It must not be supposed that, in refusing to admit temptation to be an excuse for a crime, it is forgotten how terrible the temptation was, how awful the suffering, how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore, our duty to declare that the prisoners’ act in this case was willful murder; that the facts as stated in the verdict are no legal justification of the homicide; and to say that, in our unanimous opinion, they are, upon this special verdict guilty of murder. (They were then sentenced to death. However, the sentence was subsequently commuted to one of 6 months imprisonment without hard labour). 6. Self Defense A person in defending himself can use such force as is necessary but the means of defense must be comparable with the means or degree of force being used against him. Excessive force is not justifiable. The Kenyan Criminal Procedure Code deals with use of force under Section 23 (which deals with arrest); this issue is also dealt with under Section 18 of the Penal Code. Section 21 (2) of the CPC “If a person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, the police officer or other person may use all means necessary to effect the arrest”. Subsection (3) Nothing in this section shall justify the use of greater force that was reasonable in the particular circumstances in which it was employed or was necessary for the apprehension of the offender.”

9

VARIOUS SCHOOLS OF CRIMINOLOGY/THEORIES OF CRIME AND CAUSATION Various scholars have attempted to explain the causation of crime and criminal behavior. Each school of criminology explains crime in its own manner and suggests punishment and measures to suit its ideology. Each school represents the social attitude of people towards crime in a given time. Pre-Classical School of Criminology During the period of the seventeenth century Europe was characterized by a dominance of religion in state activities. At this stage, scientific knowledge was yet unknown. The concept of crime was vague and obscure. Society was at the time largely unable to explain criminal behavior. An explanation of criminal conduct was therefore sought through spirits, demons, and other unknown powers. The principle behind this concept was that a man commits a crime due to the influence of some external power and is not subject to the control or understanding of man. Since the spirit world is not one that is easily understood or discernable, it formed a perfect explanation for crime. No further attempts were made to probe the real cause of crime. Worship, sacrifices, ordeals by fire and water were usually prescribed to pacify the spirit and relieve the victims of its evil influence. Trial by battle was also used as a method of deciding the fate of the criminal. The criminal was therefore treated as a person who could only be cured through torture and pain. The pre-classical thinking has however withered away with the lapse of time and advancement of knowledge.

Naturalistic School The proponents of this school argued that crime must be explained through the use of ideas and interpretations of ob...