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KembaraXtra- Criminal Law-Introduction-Importance of Criminal Law
1. Importance of Criminal Law

  • It is the duty of the State to provide security by maintaining law and order.
  • Criminal law is a branch of law of paramount importance.
  • For laypersons, the term “law” often refers to criminal law.
  • Some commentators argue:
    • a society may survive without advanced constitutional or property law,
    • but no society can exist even one day without penal law.
  • Penal law is essential for the existence of organised society.

2. Central Role of Criminal Law (Wechsler’s View)
  • Criminal law provides ultimate protection against:
    • the gravest harms inflicted by human conduct.
  • It authorises the strongest coercive powers of the State.
  • Dual nature:
    • protective instrument, and
    • potentially destructive if misused.
  • Risks:
    • weak criminal law → basic human interests endangered;
    • harsh or arbitrary law → grave injustice.
  • Criminal law must therefore be:
    • rational,
    • just, and
    • carefully designed.

3. Criminal Law as an Instrument of Social Control

  • The State uses criminal law as a means to an end in fulfilling its duty.
  • Criminal law operates by:
    1. identifying harmful or undesired conduct;
    2. declaring such conduct as crimes;
    3. prescribing punishments for violations.

  • Criminal law defines and punishes acts or omissions involving:
    1. attacks on public order (internal or external);
    2. abuse or obstruction of public authority;
    3. acts injurious to the public at large;
    4. attacks on persons or personal rights;
    5. attacks on property or property-related rights.


4. Punishment and Deterrence

  • Kenny’s view:
    • conduct threatening safety, stability, or comfort of society is regarded as heinous.
    • society seeks to repress such conduct through State power.
  • Punishment serves:
    • retribution against offenders, and
    • deterrence to potential offenders.
  • Without punishment:
    • criminal law would be ineffective and meaningless.


5. Criminalisation of Conduct

  • Identifying undesired or harmful conduct is complex.
  • Kenny:
    • offences become crimes due to the combined effect of multiple social forces.
  • Criminalisation is influenced by:
    • political,
    • social,
    • cultural,
    • religious, and
    • economic factors.

6. Dynamic Nature of Criminal Law

  • Criminal law is not static but dynamic.
  • Lord Atkin:
    • the scope of criminal law depends on what the State declares as crimes at a particular time.
  • Common characteristic of crimes:
    • they are prohibited by the State, and
    • offenders are punished.
  • Crimes originate from:
    • prevailing government policy.
  • Criminal law may not always be consistent or logical.
  • Political power at a given time determines what is criminalised.

7. Principles Guiding Criminalisation (Ashworth)
  • Legislators should criminalise conduct based on seriousness, not symbolism.
  • Punishment must be proportionate.
  • Four key principles:
    1. Criminal law should censure substantial wrongdoing only.
    2. Enforcement must respect equality and proportionality.
    3. Accused persons must receive proper criminal procedural protection.
    4. Maximum and effective sentences must match the seriousness of wrongdoing.

8. Additional Legislative Considerations (Lord Williams)

Before criminalising conduct, legislators should consider:

  1. Whether creating an offence is necessary;
  2. Whether the conduct is sufficiently serious;
  3. Whether existing laws or remedies are adequate;
  4. Whether the offence is practically enforceable;
  5. Whether the offence is clearly and legally drafted;
  6. Whether the penalty is proportionate to the offence.

9. Functions of Criminal Law

  • Criminal law:
    • maintains peace, stability, and security;
    • protects life, body, mind, property, and reputation;
    • prescribes punishments for harmful conduct.

  • Right to life is protected under Article 5(1) of the Federal Constitution:
    • no person shall be deprived of life or personal liberty except according to law.



10. Categories of Criminal Conduct

  • Crimes against persons:
    • homicide, kidnapping, sexual offences, assault.

  • Crimes against property:
    • theft, robbery, burglary, trespass.

  • Crimes against public health:
    • drug offences, abortion.

  • Crimes against the government:
    • bribery, treason, sedition, public disorder, official misconduct.

  • Crimes against the family:
    • bigamy, adultery, neglect of children, desertion.

  • Crimes against morals:
    • incest, sodomy, homosexual activities.

  • Crimes against religion:
    • blasphemy, gambling, prostitution.

  • A sound criminal justice system should avoid:
    • over-criminalisation,
    • double criminalisation,
    • repeated criminalisation of the same conduct.



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