Rationality and the Rule of Law in Offences Against the Person

1994 ◽  
Vol 53 (3) ◽  
pp. 502-523 ◽  
Author(s):  
John Gardner
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Rule Of Law ◽  
Justice System ◽  
The Rule Of Law ◽  
House Of Lords ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission

The Offences Against the Person Act 1861 is much disparaged by today's criminal lawyers. Its provisions have been described as “impenetrable” by the Court of Appeal. The House of Lords could not conceal its dissatisfaction with what is called “the irrational result of this piecemeal legislation”. Andrew Ashworth has written of the “antiquated and illogical structure” of an Act which the Law Commission regards as “unsatisfactory in very many respects”. Most recently Brooke J., launching the latest version of the Commission's reform package, lambasted the operation of the 1861 Act as “a disgrace”, and claimed that this hostile view is shared in every corner of the criminal justice system.

scholarly journals Culpability, Kingston and the Law Commission

2010 ◽  
Vol 74 (5) ◽  
pp. 434-471 ◽  
Author(s):  
Cath Crosby
Keyword(s):  
Justice System ◽  
Criminal Liability ◽  
Character Theory ◽  
Criminal Offence ◽  
Pragmatic Approach ◽  
House Of Lords ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Do So

This article considers the basis upon which a person should be held to be criminally liable, and to do so, it is necessary to examine the leading theories of character and choice that underpin the State holding a person to be culpable of a criminal offence, i.e. the link between culpability and fault. The case of R v Kingston1 is used to examine the application of these leading theories and it is observed that choice theorists would not excuse such a defendant from criminal liability even though his capacity to make a choice to refrain from law breaking was made extremely difficult by external factors beyond his control. Only character theory could possibly offer exculpation in such circumstances on the basis that the defendant acted ‘out of character’ and his deed did not deserve the full censure and punishment of the criminal law. The Court of Appeal in R v Kingston would have been prepared to excuse, but the House of Lords, and most recently the Law Commission have adopted a pragmatic approach to the involuntarily intoxicated offender. This case serves as a reminder that while justice is the aim of the criminal justice system, it is not an absolute standard.

scholarly journals Re-Appraising the Statutory and Ethical Roles of Lawyers Pursuant to Nigeria’s Administration of Criminal Justice Act, 2015

2019 ◽  
pp. 1184-1192
Author(s):  
Oyewunmi Olabode ◽  
Igbinoba Ebeguki ◽  
Olusola -Olujobi
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Rule Of Law ◽  
Justice System ◽  
Primary Sources ◽  
Legal Research ◽  
The Rule Of Law ◽  
Secondary Sources ◽  
The Many

Breach of fundamental human rights and rule of law are challenges that have tainted Nigeria’s image and impaired sustainable development of her justice system. These breaches are: torture, distorting bail procedures among others. These illegal practices if unchecked may culminate in the denial of justice. The lawyer’s role therefore, is vital in fostering a culture of enduring dispensation of justice, especially in the light of the many challenges bedeviling Nigeria’s criminal justice system. The paper re-appraises the statutory and ethical roles of lawyers pursuant to the Nigeria’s Administration of Criminal Justice Act, 2015 in facilitating stringent compliance with the Act to safeguard the rule of law. The study is a doctrinal legal research with a library based approach. It adopts primary sources such as statutes, judicial authorities and secondary sources such as textbooks, journals/articles and internet sources. The research recommends among others, reform and strengthening of the judiciary to promote its independence in the administration of criminal justice system. Lawyers must ensure that the Administration of Criminal Justice Act, 2015 fosters dexterous management of cases by all adjudicatory bodies for speedy dispensation of justice, promotion of rule of law, and to end abuse of court processes. The study finds that Nigerian criminal law appears flawed in this regards. This research revealed series of human rights violations in Nigeria and equally highlighted the roles of lawyers in combating these abuses and suggest the use of modern forensic technologies in all courts in Nigeria which is currently lacking and made some recommendations.

Crime and the Visual Media in Brazil

2017 ◽  
Author(s):  
Vicente Riccio
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Rule Of Law ◽  
Media Coverage ◽  
Justice System ◽  
Common Ground ◽  
Visual Media ◽  
Great Level ◽  
The Rule Of Law ◽  
Critical Issues

The presence of crime in the visual media is a phenomenon shared throughout the world. In Brazil there is also a great level of consumption of it. The Brazilian production of media about crimes is deeply rooted in the social context that has emerged from intense social, political, and economic transformations that have taken place in the country since the second half of the 20th century. The depiction of crime in Brazilian visual media is based on three different genres: (1) television series, (2) films, and (3) police journalism. They deal with critical issues about the rule of law in Brazilian society such as violence, inequality, police corruption, failures of the criminal justice system, and the demands for public policies to improve it. Despite this common ground, the genres reveal different political and ideological views about the rule of law in Brazil. Productions centered on the plane of fiction (television and film) are more critical about the criminal justice system in Brazil, especially in relation to the performance of its police forces. Brazilian police journalism is the opposite. The style reinforces a view of the problem of crime founded from the viewpoint of problematic people rather than problematic structures. Finally, the media coverage of crime is an important field to help understand the different views in the public agenda about the criminal justice system’s reform in Brazil.

scholarly journals Law and Order, the Rule of Law, and the Legitimation of the Colonial Presence in Late British Burma

2021 ◽  
pp. 1-21
Author(s):  
Ian Brown
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Rule Of Law ◽  
Justice System ◽  
Colonial Rule ◽  
Law And Order ◽  
The Rule Of Law ◽  
Legal Principles ◽  
Colonial Modernity ◽  
Colonial Government

Abstract In Britain's empire across Asia and Africa from the mid-nineteenth century, two political-legal principles were central to colonial modernity, law and order, and the rule of law. These two principles secured the legitimation of colonial rule, in the eyes of those who ruled. It is striking then to see that in late colonial Burma, in the 1920s and 1930s, the colonial government struggled to maintain law and order and to embed the rule of law. Violent crime soared while the criminal justice system failed hopelessly for serious offences. This article seeks to explore the ways in which senior British officials in Burma navigated the disjuncture between the imperial principles that were central to colonial justification and Burma's reality. Perhaps most notably, they did so by putting blame for the soaring crime rates and the failures of the criminal justice system firmly on the Burmese. In the early 1940s, however, with the end of colonial rule clearly imminent, the legitimation of the colonial presence became of less pressing importance, and the failure of colonial practice to live up to its ideological rhetoric could now be more openly faced.

Reaktualisasi Proses Penyidikan oleh Kepolisian Berbasis Nilai-Nilai Pancasila dan Optimalisasi Pemanfaatan Teknologi

Jurnal Hukum ◽  
2016 ◽  
Vol 31 (2) ◽  
pp. 1737
Author(s):  
Ira Alia Maerani
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Justice System ◽  
Public Prosecutor ◽  
Public Confidence ◽  
The Rule Of Law ◽  
Positive Law ◽  
Use Of Technology ◽  
The Times

Abstract                Indonesian Criminal Justice System consists of the police, public prosecutor and the courts. The role of the police investigators is certainly vital as the frontline in building public confidence in the rule of law in Indonesia. The role of the investigator is quite important in realizing society’s  justice. The era of globalization requires a pattern fast-paced, instant, measurable, and transparent of life and it requires investigators to follow the times by optimizing the use of technology. The aim of this study is to give effect to the rule of law in Indonesia that provides fairness, expediency and certainty. However, it considers to have priority of Pancasila values in the process of inquiry and investigation. The values of supreme divinity, God (religious), humanity, unity, democracy and justice are values that establish a balance (harmony) in enforcing the law. Law and its implementation can create product which meets the demands for social justice. This paper will examine the role of the investigator according to positive law currently in force as well as the role of investigator in implementing the values of Pancasila, accompanied by optimizing the use of technology. Keywords: Re-actualizing, Investigation, Police, values of Pancasila, Technology   AbstrakSistem Peradilan Pidana Indonesia meliputi institusi kepolisian, kejaksaan, dan pengadilan. Peran penyidik dalam institusi kepolisian tentunya amat vital sebagai garda terdepan dalam membangun kepercayaan masyarakat terhadap penegakan hukum di Indonesia. Peran penyidik amat besar dalam terwujudnya keadilan di masyarakat. Era globalisasi yang menuntut pola kehidupan yang serba cepat, instan, terukur, dan transparan menuntut penyidik untuk mengikuti perkembangan zaman dengan mengoptimalkan pemanfaatan teknologi. Tujuannya adalah untuk memberikan arti bagi penegakan hukum di Indonesia yakni memberikan keadilan, kemanfaatan, dan kepastian. Namun yang harus diperhatikan adalah mengutamakan nilai-nilai Pancasila dalam melakukan proses penyelidikan dan penyidikan. Nilai-nilai ketuhanan yang maha esa (religius), kemanusiaan, persatuan, kerakyatan dan keadilan merupakan nilai-nilai yang membangun keseimbangan (harmoni) dalam menegakkan hukum. Sehingga produk hukum dan pelaksanaannya memenuhi rasa keadilan masyarakat. Tulisan ini akan mengkaji tentang peran penyidik menurut hukum positif yang saat ini berlaku serta peran penyidik dalam mengimplementasikan  nilai-nilai Pancasila dengan diiringi optimalisasi pemanfaatan teknologi.Kata Kunci: Reaktualisasi,Penyidikan,Kepolisian,Nilai-nilai Pancasila,Teknologi

scholarly journals Penegakan Hukum Pidana Terhadap Anak Yang Terjerat Perkara Pidana Melalui Diversi (Studi Di Polrestabes Medan)

2020 ◽  
Vol 3 (1) ◽  
pp. 78-84
Author(s):  
Akalafikta Jaya ◽  
Triono Eddy ◽  
Alpi Sahari
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Juvenile Justice System ◽  
Criminal Liability ◽  
Criminal Case ◽  
Criminal Cases ◽  
Criminal Convictions ◽  
Criminal Offenses ◽  
The Law

In the past, the punishment of children was the same as the punishment of adults. This causes the psychological condition of children ranging from investigation, investigation and trial to be disturbed because it is often intimidated by law enforcement agencies. Under these conditions, Law No. 11 of 2012 concerning the Juvenile Justice System was born. One of the reforms in the Child Criminal Justice System Law requires the settlement of a child criminal case by diversion. Based on the results of research that the conception of criminal offenses against children in conflict with the law in Indonesia is different from criminal convictions to adults. Children are given the lightest possible punishment and half of the criminal convictions of adult criminal offenses. That criminal liability for children who are ensnared in a criminal case according to the Law on the Criminal Justice System for Children is still carried out but with different legal sanctions from adults. Criminal imprisonment against children is an ultimumremedium effort, meaning that criminal imprisonment against children is the last legal remedy after there are no other legal remedies that benefit the child. That the concept of enforcement of criminal law against children caught in criminal cases through diversion is in fact not all have applied it. Some criminal cases involving children as the culprit, in court proceedings there are still judges who impose prison sentences on children who are dealing with the law.

scholarly journals Legality Letter of Statement of Khilaf in Indonesia Criminal Justice System

FIAT JUSTISIA ◽  
2018 ◽  
Vol 12 (2) ◽  
pp. 128
Author(s):  
Rugun Romaida Hutabarat
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Primary Source ◽  
Secondary Data ◽  
Criminal Offense ◽  
Criminal Procedure Law ◽  
The Law ◽  
Criminal Matters

In criminal law, a person charged with a criminal offense may be punished if it meets two matters, namely his act is unlawful, and the perpetrator of a crime may be liable for the indicated action (the offender's error) or the act may be dismissed to the perpetrator, and there is no excuse. The reasons may result in the death or the removal of the implied penalty. But it becomes a matter of how if the Letter of Statement Khilaf is the answer to solve the legal problems. The person who refuses or does not do what has been stated in the letters is often called "wanprestasi" because the statement is categorized as an agreement. The statement includes an agreement which is the domain of civil law or criminal law, so its application in the judicial system can be determined. This should be reviewed in the application of the law, are there any rules governing wrong statements in the criminal justice system. By using a declaration of khilaf as a way out of criminal matters, then the statement should be known in juridical rules. This study uses normative juridical methods, by conceptualizing the law as a norm rule which is a benchmark of human behavior, with emphasis on secondary data sources collected from the primary source of the legislation. The result of this research is that the statement of khilaf has legality, it is based on Jurisprudence No. 3901 K / Pdt / 1985 jo Article 189 Paragraph (1) of Indonesian criminal procedure law. However, this oversight letter needs to be verified in front of the court to be valid evidence, but this letter of error is not a deletion of a criminal offense, because the culpability of the defendant has justified the crime he committed. Such recognition, cannot make it free from the crime that has been committed.Keywords: Legality, Letter of Statement, Criminal Justice System

Enforcing the Shari`ah in Nigeria

2009 ◽  
Vol 26 (3) ◽  
pp. 24-40
Author(s):  
Ogechi Anyanwu
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Muslim Women ◽  
Social Solidarity ◽  
Northern Nigeria ◽  
Natural Justice ◽  
The Law ◽  
Uncertain Future

The reemergence of the Shari`ah in northern Nigeria in 2000 is reshaping the Muslims’ criminal justice system in unintended ways. This article accounts for and provides fresh insights on how the fate of Muslim women under the Shari`ah intertwines with the uncertain future of the law in Nigeria. Using Emile Durkheim’s theory of conscience collective as an explanatory framework of analysis, I argue that the well-placed objective of using the Shari` ah to reaffirm or create social solidarity among Muslim Nigerians has been undermined by the unequal, harsher punishments and suppression of human rights perpetrated against Muslim women since 2000. A I show, not only does such discrimination violate the principle of natural justice upheld by Islam, but it also threatens to shrink, if not wipe out, the collective conscience of Nigerian Muslims that the law originally sought to advance.

The Legal Enforcement of Integrity

2020 ◽  
pp. 35-62
Author(s):  
Stuart P. Green
Keyword(s):  
Criminal Justice ◽  
Sexual Assault ◽  
Criminal Justice System ◽  
Justice System ◽  
Political System ◽  
Legal Discourse ◽  
Bodily Integrity ◽  
Moral Concepts ◽  
Legal Enforcement ◽  
The Law

Talk of “integrity” is ubiquitous in law and legal discourse: Protecting the integrity of our political system has been cited as a basis for anti-corruption laws; preserving the integrity of the legal profession as a principle underlying the rules of lawyer ethics; ensuring integrity in policing and in the wider criminal justice system as a justification for excluding evidence obtained in violation of the Constitution; and protecting bodily integrity as a potential goal for the law of rape and sexual assault. This chapter examines what integrity means in each of these contexts, what these uses have in common, and whether thinking about these various rules and doctrines in terms of integrity rather than other moral concepts leads to any practical difference in outcome. It also asks what the examination of integrity in the law can tell us about the concept of integrity in other contexts.

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