Prevention of Harm—Legislative Strategies for Law Reform

2008 ◽  
Vol 72 (3) ◽  
pp. 236-250 ◽  
Author(s):  
Clare Wade
Keyword(s):  
Crime Prevention ◽  
Criminal Law ◽  
Due Process ◽  
Law Reform ◽  
Criminal Sanctions ◽  
Serious Crime ◽  
Future Harm ◽  
The Law ◽  
Law Commission

This article looks at the development of preventative civil measures with criminal sanctions and the ways in which they are influencing criminal law. It argues that serious crime prevention orders in Part 1 of the Serious Crime Act 2007 are a part of this trend and further, that they undermine traditional notions of due process. The provisions of Part 1 of the Serious Crime Act 2007 are contrasted with Part 2 of the Act. The article also argues that the new inchoate offence of encouraging and assisting crime and the Law Commission proposals for conspiracy will provide sufficient measures against future harm therefore obviating the need for civil preventative orders.

scholarly journals ANALISIS KOMPARATIF SANKSI TINDAK PIDANA PADA HUKUM PIDANA ISLAM DENGAN HUKUM POSITIF

2018 ◽  
Vol 3 (2) ◽  
pp. 23-46
Author(s):  
Reski Anwar
Keyword(s):  
Focus Group ◽  
Focus Group Discussion ◽  
Criminal Law ◽  
Subject Matter ◽  
Group Discussion ◽  
Law Reform ◽  
Criminal Sanctions ◽  
The Law ◽  
The Moment ◽  
Islamic Values

Types of punishment provided for in the book the law of criminal law, namely criminal subject matter which consists of a criminal to death, imprisonment. As for the types of sanction or punishment in Islamic criminal law includes the law of jarimah adultery, penalty jarimah qadzaf, jarimah punishment of theft, jarimah punishment. Indonesia at the moment very much in need of a great variety of study on the concept of criminal sanctions in order to reduce islamic values through this Focus Group Discussion or conference, etc. Of a will can contribute to the renewal of a criminal law reform And there should have been a kind of work for punishment of the formulations in the form of social as well as the completion of matter outside the court (restorasi justice).

KEBIJAKAN KRIMINALISASI DALAM UNDANG-UNDANG DI BIDANG POLITIK

Jurnal Hukum ◽  
2016 ◽  
Vol 31 (1) ◽  
pp. 1592
Author(s):  
Hanafi Amrani
Keyword(s):  
Criminal Law ◽  
Administrative Law ◽  
Moral Values ◽  
Criminal Sanction ◽  
Criminal Sanctions ◽  
The Law

AbstrakArtikel ini membahas dua permasalahan pokok: pertama, kriteria yang digunakan oleh pembentuk undang-undang di bidang politik dalam menetapkan suatu perbuatan sebagai perbuatan pidana (kriminalisasi); dan kedua, fungsi sanksi pidana dalam undang-undang di bidang politik. Terkait dengan kriminalisasi, undang-undang di bidang politik yang termasuk ke dalam hukum administrasi, maka pertimbangan dari pembuat undang-undang tentu saja tidak sekedar kriminalisasi sebagaimana diatur dalam ketentuan hukum pidana dalam arti sebenarnya. Hal tersebut disebabkan adanya pertimbangan-pertimbangan tertentu. Pertama, perbuatan yang dilarang dalam hukum pidana administrasi lebih berorientasi pada perbuatan yang bersifat mala prohibita, sedangkan dalam ketentuan hukum pidana yang sesungguhnya berorientasi pada perbuatan yang bersifat mala in se. Kedua, sebagai konsekuensi dari adanya penggolongan dua kategori kejahatan tersebut, maka pertimbangan yang dijadikan acuan juga akan berbeda. Untuk yang pertama (mala prohibita), sanksi pidana itu dibutuhkan untuk menjamin ditegakkannya hukum administrasi tersebut. Dalam hal ini sanksi pidana berfungsi sebagai pengendali dan pengontrol tingkah laku individu untuk mencapai suatu keadaan yang diinginkan. Sedangkan untuk yang kedua (mala in se), fungsi hukum pidana dan sanksi pidana lebih berorientasi pada melindungi dan mempertahankan nilai-nilai moral yang tertanam di masyarakat tempat di mana hukum itu diberlakukan atau ditegakkan. Kata Kunci: Kebijakan, Kriminalisasi, Undang-Undang PolitikThis article discusses two main problems: firstly, the criteria used by the legislators in the field of politics in determining an act as a criminal act (criminalization); secondly, the function of criminal sanctions in legislation in the field of politics. Associated with criminalization, legislation in the field of politics that is included in administrative law, the consideration of the legislators of course not just criminalization as stipulated in the provisions of criminal law in the true sense. This is due to certain considerations. Firstly, the act which is forbidden in the administration of criminal law is more oriented to act is malum prohibitum offences, whereas in actual criminal law provisions in the act are mala in se offences. Secondly, as a consequence of the existence of two categories of classification of the crime, then consideration will also vary as a reference. For the first (mala prohibita), criminal sanctions are needed to ensure the enforcement of the administrative law. In this case the criminal sanction serves as controller and controlling the behavior of individuals to achieve a desired state. As for the second (mala in se), the function of criminal law and criminal sanctions is more oriented to protect and maintain the moral values that are embedded in a society where the law was enacted or enforced.

scholarly journals Diminished responsibility and alcohol

2010 ◽  
Vol 16 (3) ◽  
pp. 193-198 ◽  
Author(s):  
Nuwan Galappathie ◽  
Krishma Jethwa
Keyword(s):  
Criminal Law ◽  
Case Law ◽  
Law Reform ◽  
England And Wales ◽  
Life Sentence ◽  
The Law ◽  
Diminished Responsibility

SummaryIn England and Wales diminished responsibility is a partial defence to the charge of murder. If successfully argued by the defence, it reduces the charge from murder to manslaughter and thus avoids the mandatory life sentence. Alcohol has been reported to be a feature in up to 80% of all homicides but for many years the judiciary have set an almost unattainable threshold for the disease of alcoholism to amount to a finding of diminished responsibility, in accordance with other aspects of criminal law. Reform of the law on murder is likely to take many years but it is timely to recap the current law on diminished responsibility and review advances in case law in England and Wales on alcohol.

Personalized Legal Areas

2021 ◽  
pp. 61-84
Author(s):  
Omri Ben-Shahar ◽  
Ariel Porat
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Tort Law ◽  
Contract Law ◽  
Standards Of Care ◽  
Criminal Sanctions ◽  
The Common ◽  
The Law

This chapter illustrates personalized law “in action” by examining it in three areas of the law: standards of care under the common law tort doctrine of negligence, mandated consumer protections in contract law, and criminal sanctions. In each area, the chapter examines personalization of commands along several dimensions. In tort law, standards of care could vary according to each injurer’s riskiness and skill, to reduce the costs of accidents. In contract law, mandatory protections could vary according to the value they provide each consumer and differential cost they impose on firms, to allocate protections where, and only where, they are justified. And in criminal law, sanctions would be set based on what it takes to deter criminals, accounting for how perpetrators differ in their motives and likelihood of being apprehended, with the potential to reduce unnecessary harsh penalties.

A Research Evaluation of the Israeli New Pretrial Detention Act

2001 ◽  
Vol 35 (2-3) ◽  
pp. 266-284 ◽  
Author(s):  
Hagit Lernau
Keyword(s):  
Criminal Justice ◽  
Law Enforcement ◽  
Criminal Law ◽  
Process Model ◽  
Due Process ◽  
Crime Control ◽  
Research Evaluation ◽  
Law System ◽  
Justice Process ◽  
The Law

One of the most influential attempts to describe and comprehend the criminal law system is Packer's celebrated notion regarding the “Two Models of the Criminal Justice System.” Packer regards the criminal justice process as an image constantly shifting between two conflicting models — the “Crime Control Model” and the “Due Process Model” of criminal law. The first model strives to create an effective criminal system that will protect society's right to peace and safety. This aim may be achieved by emphasizing the earlier, informal stages in the law enforcement procedure, namely, police investigation and the decision to prosecute. The second model aims to ensure that the law enforcement process, which is one of the most coercive powers of the state, will be conducted in a lawful manner that will protect suspects and defendants from both intentional wrongdoing and from unintentional mistakes.

The Defective Premises Act 1972—Defective Law and Defective Law Reform

1974 ◽  
Vol 33 (2) ◽  
pp. 307-323 ◽  
Author(s):  
J. R. Spencer
Keyword(s):  
Civil Liability ◽  
Law Reform ◽  
The Law ◽  
Draft Bill ◽  
Civil Remedy ◽  
Law Commission ◽  
Poor Show

The Defective Premises Act 1972—which did not come into force until 1 January 1974—was intended to do three things: first, it was intended to create a new civil remedy against incompetent architects and jerry builders who design or build bad dwelling-houses; secondly, it was intended to abolish the anomalous immunity of vendors and lessors from negligence actions; and thirdly, it was intended to widen the liability of landlords for defects in the premises which they let. The Act is based on the draft Bill annexed to the Law Commission's fortieth report, “Civil Liability of Vendors and Lessors of Defective Premises”—although in the Act the Law Commission's proposals have been considerably watered down. During the passage of the Act through Parliament the Law Commission was congratulated on its “remarkable piece of work,” and comentators have since welcomed it, either without criticism or else with fulsome praise. So excited was everyone by the label “law reform” that no one seems to have pointed out a number of obvious defects in the Law Commission's original proposals, defects which were multiplied when those proposals were heavily watered down. The final measure is open to a number of criticisms. It is, with all due respect to the Law Commission and to the sponsors of the Bill, a measure which adopts excessively cumbrous means to achieve relatively modest ends; which is drafted in terms which are longwinded, ugly and obscure; and which ultimately changes little—a poor show in view of the complications it creates in the process.

Time for an English Commercial Code?

1997 ◽  
Vol 56 (3) ◽  
pp. 516-536
Author(s):  
Dame Mary Arden
Keyword(s):  
Common Law ◽  
Law Reform ◽  
England And Wales ◽  
Commercial Code ◽  
Unique Experience ◽  
The Common ◽  
Systematic Development ◽  
The Law ◽  
Lord Chancellor ◽  
Law Commission

Parliament has imposed on the Law Commission the duty to review the law of England and Wales “with a view to its systematic development and reform, including in particular the codification of [the] law … and generally the simplification and modernisation of the law”. There are a number of points which flow from this. First, as a body which reviews great swathes of the common law to see if they require to be modernised or simplified, the Law Commission has a unique standpoint from which to view the strengths and weaknesses of the common law method. Second, it has unique experience of law reform and the Parliamentary process. Third, in discharge of its functions, it has an interest in seeing that, if codification is appropriate, a recommendation to that effect is made to the Lord Chancellor. It need not be the Law Commission which carries out the recommendation, and indeed the Law Commission could not carry out a project purely of its own initiative.

Religionsfreiheit und Rechtsgüterschutz. Strafrechtliche Aspekte von Sekten

1998 ◽  
Vol 42 (1) ◽  
pp. 95-109
Author(s):  
Wilfried Bottke
Keyword(s):  
Civil Society ◽  
Criminal Law ◽  
Constitutional Law ◽  
Recent Past ◽  
Present Discussion ◽  
Criminal Sanctions ◽  
The Law ◽  
Religious Sects ◽  
The Individual

AbstractReligious sects and their practices have become highly topical in the recent past in Germany. The call for criminal sanctions in order to tackle actual or presumed misconduct is becoming louder and louder. The author, a criminal law professor, analyses the present discussion and puts it into a constitutional law perspective. Any civil society that aims to optimise the scope of the personal freedoms of its members must withstand the temptation of creating a special regime of criminal law rules just to combat religious sects and their practices. Criminal law has tobe applied uniformly in the whole society. Therfore, criminal sanctions can only be handed out, when practices infringe intolerably with the individual' s rights protected by the law.

scholarly journals Islamic criminal procedure law: human rights issues

2020 ◽  
Vol 23 (10) ◽  
pp. 47-57
Author(s):  
Yusif Mamedov
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Due Process ◽  
Economic Status ◽  
Burden Of Proof ◽  
The Law ◽  
The Right

It has been established that harsh Islamic punishments are practically not applied due to the high burden of proof and the need to involve an exhaustive number of witnesses. It has been proven that the Islamic criminal justice system provides the accused with basic guarantees. It is noted that according to Sharia, Islamic crimes are divided into three categories: Hadd, Qisas and Tazir. It is noted that Islamic criminal law provides that the accused is not guilty if his guilt is not proven. It is noted that equality before the law is one of the main legal principles of the Islamic criminal model, as all persons are equal before the law and are condemned equally regardless of religious or economic status (lack of immunity). There are four main principles aimed at protecting human rights in Islamic criminal law: the principle of legality (irreversible action), the principle of presumption of innocence, the principle of equality and the principle of ultimate proof. In addition, the Islamic criminal justice system provides defendants with many safeguards, which are always followed during detention, investigation, trial and after trial. It is established that such rights are: 1) the right of every person to the protection of life, honor, freedom and property; 2) the right to due process of law; 3) the right to a fair and open trial before an impartial judge; 4) freedom from coercion to self-disclosure; 5) protection against arbitrary arrest and detention; 6) immediate court proceedings; 7) the right to appeal. It is noted that if a person is charged, he/she has many remedies It is noted that the trial must be fair, in which the qadi (judge) plays an important role. It has been established that, in addition to the procedural guarantees, the qualifications and character of the qadi, as well as the strict requirements of Islamic rules of proof, are intended to ensure a fair trial in the case of the accused. Adherence to these principles has been shown to indicate that the rights of the accused are fully guaranteed under Islamic criminal law.

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