on crimes and punishments 2016

Criminal law ( General part ) DR. Ayman Ramadan Elzeiny

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Chapter Two

On Crimes and Punishments

1:What Constitutes a Crime? Corpus delicti is a Latin term meaning “body of the crime”

and refers to the elements of a given act that must be present

to legally define it as a crime.

All crimes have their own specific elements, which are the

essential constituent parts that define the act as criminal.

In addition to their specific elements, all crimes share a set of

general elements or principles underlying and supporting the

specific elements.

Five principles have to be satisfied before a person is

“officially” labeled a criminal, but in actuality, it is only

necessary for the prosecution to prove two to satisfy corpus

delicti: actus reus and mens rea.

The other principles, while just as important to the legal

definition of a criminal, are either abstract principles of no

concern to the particular case at hand or are proven in the

course of proving actus reus and mens rea.

Taken together, each of the five elements forms the basis of

the general principle of criminal liability.

Actus reus means guilty act and refers to the principle that

a person must commit some forbidden act or neglect some

mandatory act before he or she can be subjected to criminal

sanctions.

In effect, this principle of law means that people cannot be

criminally prosecuted for thinking something or being

something, only for doing something.

This prevents governments from passing laws criminalizing

statuses and systems of thought they don’t like.

For instance, although drunken behavior may be punishable

crime, being an alcoholic cannot be punished because “being”

something is a status, not an act.


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Attempted criminal acts, although not accomplished for one

reason or another, are crimes, as is conspiracy to commit

a crime the moment the conspirators take some action to put

their plan into motion.

Mens rea means guilty mind and refers to whether or not the

act was intentional , that is, whether the suspect had

a wrongful purpose in mind when carrying out the actus reus.

For instance, although receiving stolen property is a criminal

offense,

if you were to buy a stolen television set from an acquaintance

without knowing it had been stolen, you would have lacked

mens rea and would not be subject to prosecution.

If you were to be prosecuted, the state would have to prove

that you knew the television was stolen.

Negligence, recklessness, and carelessness that result in some

harmful consequences, even though not intended, do not

excuse such behavior from criminal prosecution under mens-

rea .

Conditions that may preclude prosecution under this principle

are self-defense, defense of others, youthfulness (a person

younger than age 7 years cannot be held responsible),

insanity (although being found insane does not preclude

long-term confinement), and extreme duress or coercion.

Concurrence means that the act (actus reus) and the mental

state (mens rea) concur in the sense that the criminal intention

actuates the criminal act.

For instance, if Samer sets out with his tools to burglarize

Sahar’s apartment and takes her VCR, he has fused the guilty

mind with the wrongful act and has therefore committed

burglary.

However, assume Samer and Sahar are friends who habitually

visit each other’s apartment unannounced.

One day, Samer decides to visit Sahar , finds her not at home,

but walks in and sits down as he has done with her blessing

many times before.


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While sitting there, Samer suddenly decides that he could sell

Sahar’s VCR for drug money and takes her VCR.

Has Samer committed burglary in this scenario?

Although the loss to Sahar is the same in both scenarios, in

the latter instance, Samer cannot be charged with burglary

because he did not enter her apartment “by force or fraud,”

the crucial element needed to satisfy such a charge.

In this case, the concurrence of guilty mind and wrongful act

occurred after lawful entry, so he is only charged with theft,

a less serious crime.

Causation refers to the necessity to establish a causal link

between the criminal act and the harm suffered. This causal

link must be proximate, not ultimate.

For instance, suppose Tamer wounds Fady in a knife fight.

Because Tamer has no medical insurance, rather than seeking

professional medical treatment, he pours alcohol on his wound

and bandages it himself. Three weeks later, fady’s self-treated

wound has become severely infected and results in his death .

What crime could the prosecutor charge Tamer with?

Certainly the wounding led to Fady’s death (the ultimate

cause), but Fady’s disregard for the seriousness of his injury,

not the fight, was the most proximate cause of his death.

The question the law asks in cases like this is, “What would

any reasonable person do? ” We think most people would

agree that the reasonable person would have sought medical

treatment.

This being the case, Tamer cannot be charged with any form

of homicide; the most he could be charged with is aggravated

assault. Harm refers to the negative impact a crime has , either

to the victim or to the general values of the community.

Although the harm caused by the criminal act is often

obvious, the harm caused by many so-called “victimless”

crimes is often less obvious.

Yet some victimless crimes can cause more social harm in the

long run than many crimes with obvious victims.


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2: Causation and Harm :- Causation and harm can also be elements of a criminal

offense if the offense requires a bad result.

In essence, if injury is required under the statute, or the case is

in a jurisdiction that allows for common-law crimes, the

defendant must cause the requisite harm.

Many incidents occur when the defendant technically initiates

circumstances that result in harm, but it would be unjust to

hold the defendant criminally responsible.

Thus causation should not be rigidly determined in every

instance, and the trier of fact must perform an analysis that

promotes fairness.

Causation in fact and legal causation are examined , as well as

situations where the defendant may be insulated from criminal

responsibility.

2-A :Causation in Fact :- Every causation analysis is twofold. First, the defendant must

be the factual or but for cause of the victim’s harm.

The but for term comes from this phrase: “but for the

defendant’s act, the harm would not have occurred.”

Basically, the defendant is the factual or but for cause of the

victim’s harm , if the defendant’s act starts the chain of events

that leads to the eventual result.

- Example of Factual Cause :-

Henry and Mary get into an argument over their child custody

agreement. Henry gives Mary a hard shove. Mary staggers

backward, is struck by lightning, and dies instantly. In this

example, Henry’s act forced Mary to move into the area

where the lighting happened to strike. However, it would be

unjust to punish Henry for Mary’s .

The defendant starts the chain death in this case because

Henry could not have imagined the eventual result.

Thus although Henry is the factual or but for cause of

Mary’s death, he is probably not the legal cause.


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2-B : Legal Causation : It is the second part of the analysis that ensures fairness in the

application of the causation element.

The defendant must also be the legal or proximate cause of

the harm.

Proximate means “near” so the defendant’s conduct must be

closely related to the harm it engenders.

As most Penal Codes , the actual result cannot be “too remote

or accidental in its occurrence to have a [just] bearing on the

actor’s liability” .

When the defendant acted, a reasonable person could have

foreseen or predicted that the end result would occur.

-In the previous example given "Example of Factual Cause":-

Henry is not the legal cause of Mary’s death because

a reasonable person could have neither foreseen nor predicted

that a shove would push Mary into a spot where lightning was

about to strike.

Many Penal Codes adjusts the legal causation foreseeability

requirement depending on whether the defendant acted

purposely, knowingly, recklessly, or negligently.

If the defendant’s behavior is reckless or negligent, the legal

causation foreseeability requirement is analyzed based on the

risk of harm, rather than the purpose of the defendant.(1)

_____________ (1) Shawaribi, Abd al-Hamid , Al-Ta‘liq al-Maudu‘i ‘ala Qanun al-‘Uqubat

Substantive Commentary on the Penal Code]. 4 vols. Alexandria: Munsha’ah al-

Ma‘arif, 2003, p : 97.

- Sherif, Adel Omar, “The Rule of Law in Egypt from a Judicial Perspective.”

In The Rule of Law in the Middle East and the Islamic World: Human Rights

and the Judicial Process, edited by Eugene Cotran and Mai Yamani, 1–34.

London: I. B. Tauris, 2000, p: 65.

- El-Morr, Awad Mohammed , “Recent Landmark Decisions of the Supreme

Constitutional Court of Egypt.” In Democracy, the Rule of Law, and Islam,

edited by Eugene Cotran and Adel - Omar Sherif, 239–272. London: Kluwer

Law International, 1999, p : 37.

- Fahmy, Khalid, and Rudolph Peters, “Introduction: The Legal History of

Ottoman Egypt.” Islamic Law and Society 6 (1999): 129–135.


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- Example of Legal Causation :-

Imagine that Henry and Mary get into the same argument

over their child custody agreement, but this time they are in

their garage, which is crowded with furniture.

Henry gives Mary a hard shove, even though she is standing

directly in front of a large entertainment center filled with

books and a heavy thirty-two-inch television set.

Mary staggers backward into the entertainment center and it

crashes down on top of her, killing her.

In this situation, Henry is the factual cause of Mary’s death

because he started the chain of events that led to her death with

his push.

In addition, it is foreseeable that Mary might suffer a serious

injury or death when shoved directly into a large and heavy

piece of furniture.

Thus in this example, Henry could be the factual and legal

cause of Mary’s death.

It's up to the fact to make this determination, based on an

assessment of objective foreseeability and the attendant

circumstances.

2-C : Intervening Superseding Cause : Another situation where the defendant is the factual but not

the legal cause of the requisite harm is when something or

someone interrupts the chain of events started by the defendant.

This is called an intervening superseding cause.

Typically, an intervening superseding cause cuts the defendant

off from criminal liability , because it is much closer,

or proximate, to the resulting harm.

If an intervening superseding cause is a different individual

acting with criminal intent, the intervening individual is

criminally responsible for the harm caused.


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- Example of an Intervening Superseding Cause:-

Review the example with Henry and Mary "Example of

Legal Causation":

Change the example so that Henry pulls out a knife and

chases Mary out of the garage.

Mary escapes Henry and hides in an abandoned shed.

Half an hour later, Wes, a homeless man living in the shed,

returns from a day of panhandling.

When he discovers Mary in the shed, he kills her and steals

her money and jewelry.

In this case, Henry is still the factual cause of Mary’s death,

because he chased her into the shed where she was eventually

killed.

However, Wes is probably the intervening superseding cause

of Mary’s death because he interrupted the chain of events

started by Henry.

Thus Wes is subject to prosecution for Mary’s death, and

Henry may be prosecuted only for assault with a deadly

weapon.

The Egyptian Penal Code does not mention causation, but the

Court of Cassation has addressed the topic and has held that an

offender is liable for crimes that fit in either of the following

two categories:

(a)foreseeable consequences of an offender’s intentional

actions, which are also called consequences that are “morally

linked” to the offender’s actions; and

(b)foreseeable consequences of actions taken with disregard

for potential harm to others (i.e., recklessness).(1)

___________________ (1) Akida, M. ,“Criminal Law.” In Egypt and Its Laws, edited by Nathalie

Bernard-Maugiron and Baudouin Dupret, 37–48. London: Kluwer Law

International, 2002, p:19.

- Dupret, Baudouin , “Morality on Trial: Structure and Intelligibility System of

a Court Sentence Concerning Homosexuality.” Qualitative Sociology Review 2,

2006, pp:98–122.


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Diagram of the Elements of a Crime


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3 : Victim-full and Victimless Crimes:- Crimes can also be viewed as arrayed along a victimization

continuum and divided into three crime categories:

(A)Crimes for which there is an obvious intended victim

(e.g., murder and rape),

(B)Crimes in which victimization is the result of carelessness

(e.g., negligent manslaughter), and

(C)Crimes in which participation in the crime is voluntary

(e.g., prostitution, drug offenses).

The distinction between victimless and victim-full crimes has

to do with harm to an unwilling victim.

There is no standard antonym for victimless to succinctly

describe a crime having a victim.

The term victim-full has been coined to show that it has the

same relationship to victimless as the term harmful does to

harmless.

A victimless crime is consensual and non-predatory; a victim-

full crime is nonconsensual and predatory, and it is mala in

almost by definition.

4: The legal making of a criminal :- There is a simple legal answer to the question “What's

a criminal?”

A criminal is someone who has committed a crime and has

been judged guilty of having done so .

Whatever factors criminologists might decide lead to

criminal behavior, a person is not “officially” a criminal until

he or she has been defined as such by the law.

Before the law can properly call a person a criminal, it must

go through a series of actions governed at all junctures by well-

defined legal rules collectively called criminal procedure.

These procedural rules vary greatly from culture to culture,

but almost all modern cultures have a set of rational (i.e.,

logical and predictable) rules guiding the serious business of

officially labeling a person a criminal.


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5: Understanding crime :- 5-1:Definition of a Crime:-

Let’s begin with defining a crime. The most basic definition

of a crime is :

“An act committed in violation of a law prohibiting it, or

committed in violation of a law ordering it.”

Generally, the government must enact a criminal law

specifying a crime and its elements before it can punish an

individual for criminal behavior.

Laws in a democratic society, unlike laws of nature, are

created by people and are founded in religious, cultural, and

historical value systems.

People from varying backgrounds live in different regions of

this country.

Thus you will see that different people enact distinct laws that

best suit their needs.

However, the bulk of any criminal law overview , is an

examination of different crimes and their elements.

Crime is a sociopolitical event rather than a clinical condition.

Crime is defined in the law as behavior sufficiently deviant to

damage society and to merit, therefore, legal action and the

intervention of society into the lives of citizens who so deviate.

It is not a clinical or medical condition that can be diagnosed

and specifically treated.

Consequently, there have been many approaches to the

problem of crime from many different viewpoints with varying

degrees of compatibility and agreement.

Certainly, criminal behavior cannot be understood by simply

viewing the easily observable variables.

Deviant behavior may or may not be pathological from the

clinical viewpoint. It may or may not be ethically wrong.

The understanding of criminal behavior has been attempted

by conjecture and use of trial and error methods, much of it

emotionally involved.


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Hypothetical constructs in the form of various theories have

been offered and challenged;their use to understand phenomena

difficult to understand is usual procedure.

Some have proved to be helpful with the progress of research

and have been refined, while others have not and have been

discarded.

The constitution also contains provisions that govern criminal

law, particularly in guarantees that include the legality

principle and the presumption of innocence.

6: Classification of the crimes:- Crimes can be classified in many ways. Crimes also can be

grouped by subject matter.

For example, a crime like assault, battery, or rape tends to

injure another person’s body, so it can be classified as a “crime

against the person.”

If a crime tends to injure a person by depriving him or her of

property or by damaging property, it can be classified as

a “crime against property.”

These classifications are basically for convenience and are not

imperative to the study of criminal law.

More important and substantive is the classification of

crimes according to the severity of punishment , this is called

grading .(1)

Crimes are generally graded into three categories:

A- Felonies (jinayat) ,

B- Misdemeanors (junah) ,

C- Violations ( Infractions ) (mukhalafat) .

And Felony-misdemeanors .

Often the criminal intent element affects a crime’s grading. ______________

(1) Cotran, Eugene, and Adel Omar Sherif, eds. The Role of the Judiciary in

the Protection of Human Rights. London: Kluwer Law International, 1997.

- Hill, Enid, Mahkama Studies in the Egyptian Legal System. London: Ithaca

Press, 1979.


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6-A:Felonies (jinayat):- Felonies are the most serious crimes ,They are either

supported by a heinous intent, like the intent to kill, or

accompanied by an extremely serious result, such as loss of

life, grievous injury, or destruction of property.

Felonies are serious, so they are graded the highest, and all

sentencing options are available.

Depending on the jurisdiction and the crime, the sentence

could be execution, prison time, a fine,or alternative sentencing

such as probation, rehabilitation, and home confinement.

Potential consequences of a felony conviction also include the

inability to own a weapon, or even participate in certain

careers.

Felonies carry punishments that range from three years’

imprisonment to death (as well as possible ancillary

punishments).

Felonies include Intentional homicide, rape, mayhem,

kidnapping, robbery, burglary, arson, and terrorism offenses.

Every felony conviction carries one of the following

primary punishments: - Imprisonment (sijn), which means a term of three to fifteen

years in a “general jail” (sijn ‘umumi);

- Aggravated imprisonment (sijn mushaddad), which means

a term of three to fifteen years in a “specialized jail” (sijn

mutakhassis);

-life imprisonment (sijn mu’abbad), also served in

a specialized jail; or

-The death penalty (i‘dam).

Men over the age of sixty who are sentenced to aggravated or

life imprisonment, and all women who receive one of these

sentences, serve their terms in a general jail rather than

a specialized one.


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Felony sentences may be reduced if, in the discretion of the

sentencing judge, conditions warrant leniency (ra’fah):

-A death sentence can be reduced to life imprisonment or

aggravated imprisonment;

-Life imprisonment can be reduced to aggravated

imprisonment or (simple) imprisonment;

-Aggravated imprisonment can be reduced to (simple)

imprisonment or to the misdemeanor punishment of detention

for at least six months; and (simple) imprisonment can be

reduced to detention for at least three months.

Every felony conviction also carries two mandatory ancillary

punishments and two discretionary ones, as following :

First, every convicted felon is deprived of :

- Certain rights or privileges:

- Government service; decoration with a rank or medal;

- Testifying in court (for the period of the sentence);

- Managing his or her own funds or property (for the period

of the sentence),

- Responsibility for which is instead turned over to a court-

appointed trustee; and

-Remaining a member of certain local councils or committees

and, if sentenced to life or aggravated imprisonment, ever

again serving in one of those groups or serving as an expert

or a witness to contracts.

Second, any felon who is employed by the government loses

that employment and remains ineligible for reappointment to

government service for a period of at least one year and not

more than six years after completion of the sentence.

Any government employee who is convicted of a felony in

one of several specified categories - bribery, embezzlement,

forgery, torturing a suspect, or otherwise harming civilians by

abusing his or her position - but is given a sentence of

detention due to judicial leniency , must be ordered ineligible

for government employment for a period of at least twice the

length of the detention.


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Third, any person sentenced to any term of imprisonment

for a felony conviction of any of another list of specified

crimes is, after serving the sentence, to be placed under police

surveillance for a period of time equal to his or her sentence or

for five years, whichever is less; but the sentencing judge can

reduce or eliminate this penalty.(1)

Convicts under police surveillance must abide by provisions

set forth in separate laws that govern such surveillance, and

violating those laws brings a penalty of one year’s detention.

Fourth, the sentencing judge may order the confiscation of

fruits or instrumentalities of the crime and must order the

seizure of any such objects the use or possession of which is

itself a crime , that is, items that are contraband. (2)

6-B: Misdemeanors (junah) :- Misdemeanors are less serious than felonies, either because

the intent requirement is of a lower level or because the result

is less extreme.

Misdemeanors include a wide range of crimes, from simple

theft and impersonating a public official to perjury, false

imprisonment, aggravated assault, and negligent homicide.

Convictions bring detention for one year to three years per

misdemeanor, and fines that can exceed £E 100(approximately

twelve U.S. dollars as of this writing) a fine, or alternative

sentencing like probation, rehabilitation, or community service.

Note that incarceration for a misdemeanor is in jail rather

than prison.

Misdemeanors are usually punishable by jail time ,

the difference between jail and prison is that jail locate in

central police stations cities and counties operate jails,

depending on the crime. ___________

(1) Art. 28. The felonies that carry this penalty include crimes against national

security, counterfeiting, theft, homicide, the nighttime harming of beasts of

burden or fish, and the nighttime destruction of agricultural lands or other flora.

(2) Art. 29.


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The restrictive nature of the confinement also differs between

jail and prison. Jails are for defendants who have committed

less serious offenses, so they are generally less restrictive than

prisons.

Detention is served in a general jail or central jail (sijn

markazi).

Sentences of one year or more include mandatory penal

servitude, while sentences of less than one year can include

penal servitude or not; in the latter case they are called “simple

confinement” (habs basit). (2)

Misdemeanor sentences may also include any of the ancillary

punishments except one - the deprivation of rights and

privileges - but, unlike the case of felony sentences, none of

them are mandatory.(3)

A misdemeanor sentence of a fine or detention for one year

or less may be “stayed” (iqaf) upon issuance if the sentencing

judge finds that, given the defendant’s character, background,

or age or the circumstances of the crime itself, the defendant

is unlikely to commit crime again.(4)

The court must state the reasons for the stay in its ruling,

and the stay can reach all ancillary penalties and other

consequences of the conviction. (5)

A stay becomes final after three years - that is, the criminal

conviction is then vacated - but it may be canceled before then

if :

(a) The defendant is sentenced to detention for more than one

month for an act committed before or after the stay, or

(b)The defendant had received such a sentence before the

stay, but the judge who issued the stay had not known about it. ___________________

(1) Arts. 11, 18.

(2) Arts. 19, 20.

(3) Arts. 30, 31. (4) Art. 55.

(5) Arts. 56, 59.


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In the first scenarios the staying court may act sua-sponte to

cancel the stay, but in the second scenario it may cancel the

stay only upon motion of the prosecution and service to the

defendant.(1)

The original sentence is imposed upon cancellation of the

stay, along with any ancillary punishments and collateral

consequences of the conviction. (2)

6- C: Violations ( Infractions ) (mukhalafat) :- Violations , which can also be called violations, are the least

serious crimes and include minor offenses such as jaywalking

and motor vehicle offenses that result in a simple traffic ticket.

Infractions are generally punishable by a fine or alternative

sentencing such as traffic school. Violations carry fines of not

more than £E 100.(3)

Violations carry fines of not more than £E 100. Examples of

violations are disturbing the peace, unlawful discharge of

a firearm, defacing property, and littering public waterways.

Generally , Under the Penal Code, time spent in custody

before conviction is counted as part of any sentence of

imprisonment or jailing.(4)

If a defendant is detained before trial but, upon conviction,

sentenced only to a fine , £E 5 is subtracted from the fine for

each day the defendant was in custody.

If a defendant who was detained before trial receives both

a fine and a custodial sentence that is shorter than the period of

pretrial detention, the same amount is deducted for each day

in excess of the sentence the defendant was detained. ___________________

(1) Art. 57.

(2) Art. 58.

(3) Art. 12.

(4) Art. 57.


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The constitution gives the president the authority to grant

amnesties and to commute offenders’ sentences (Const. Art.

149); the Code also discusses commutations and pardons.

Full pardons, partial commutations, and lighter substitute

sentences are set out as the three possibilities; ancillary

penalties and collateral consequences remain in place unless

included in a pardon or commutation order; and five years of

police surveillance still follow the pardon or commutation of

a life sentence. (1)

-Felony-Misdemeanors :- Felony-misdemeanors are crimes that the government can

prosecute and punish as either a felony or a misdemeanor,

depending on the particular circumstances accompanying the

offense.

The discretion whether to prosecute the crime as a felony or

misdemeanor usually belongs to the judge, but in some

instances the prosecutor can make the decision.

7: Classification of Punishments :-

The Penal Code lists “primary” punishments (‘uqubat

asliyyah) and “ancillary” punishments (‘uqubat tab‘iyyah).

Primary punishments are fines, imprisonment (sijn), detention

(habs), and death penalty .

Imprisonment or detention for a year or more also brings

mandatory penal servitude (habs ma‘a al-shugl).(2)

Ancillary punishments are of four kinds: (1) Deprivation of certain rights and privileges;

(2) Removal from government employment;

(3) Probationary supervision by the police; and

(4)Seizure and confiscation of contraband and fruits or

instrumentalities of the crime.(3) ________________________

(1) Art. 58.

(2) Art. 20.

(3) Art. 24.


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- Death Penalty :- The Penal Code specifies hanging as the method of capital

punishment. (1)

A death sentence requires the unanimous decision of the three

judges who hear the case, and before the sentence is issued,

the court must send the case file to the country’s highest

religious official, the chief mufti (qadi al-jumhuriyyah),

to seek his opinion. (2)

But the court is not bound by the chief mufti’s opinion, and it

need not await that opinion longer than ten days before issuing

the sentence. (3)

If the chief mufti is unavailable or unable to review the case,

the minister of justice is to review it instead. (4)

When appeals are exhausted and a death sentence is final,

it is submitted to Egypt’s president, who has fourteen days to

pardon the defendant or commute the sentence. (5)

A commuted death sentence becomes a sentence of life

imprisonment. (6)

8: Specific and General Intent Crimes: Under the common law there is a distinction between

specific and general intent crimes.

The basic difference between the two is that specific intent

crimes require the individual who commits the crime to have a

certain intent or purpose when the crime was committed,

where as general intent crimes don't . Some jurisdictions have

done away with this distinction.

________________________

(1) Art. 13.

(2) CCP Art. 381/2.

(3) Id.

(4) CCP Art. 381/3.

(5) CCP Art. 370.

(6) Art. 75.


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8-A :What's a Specific Intent Crime? If you are accused of a specific intent crime, the prosecution

must prove that when you committed the crime you had the

requisite intent or purpose. This intent will be listed in the

statute that defines the crime. If you didn't act with this intent

or purpose, then you cannot be convicted of the crime.

The best example of a specific intent crime is theft, most

every theft statute requires that when you take something that

you take it with the intent to deprive the owner permanently.

For example, auto theft requires that you intent to deprive the

owner of the car permanently.

If you don't have this intent, then you cannot be convicted of

theft. Specific intent crimes typically require that the

defendant intentionally commit an act and intend to cause

a particular result when committing that act.

In that regard, merely knowing that a result is likely isn’t the

same as specifically intending to bring it about.

8-B:Then What's a General Intent Crime? A general intent crime only requires that you intend to

perform the act. That is don't need any additional intention or

purpose.

For example, assault is usually a general intent crime.

You only need to intend your actions, not any particular result.

General intent crimes are easier to prove because it is not

necessary to show that you had some particular purpose.

Most crimes require general intent, meaning that the

prosecution must prove only that the accused meant to do an

act prohibited by law.

Whether the defendant intended the act’s result is irrelevant.

This terminology makes battery a general intent crime.

The intent element is satisfied if the defendant intends to

cause harmful physical contact and actually causes it,

it doesn’t matter whether the defendant actually intended to

hurt or seriously injure the victim.

http://www.legalmatch.com/law-library/article/specific-intent-crime-lawyers.html

http://www.legalmatch.com/law-library/article/theft-lawyers.html

http://www.legalmatch.com/law-library/article/serious-auto-crimes.html

http://www.legalmatch.com/law-library/article/general-intent-lawyers.html


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So, if Ahmed punches Omar in the eye after Omar calls her

an “idiot,” he has probably committed a battery.

The prosecutor has to show is that Ahmed intentionally

punched Omar.

The prosecutor doesn’t need to show that Ahmed intended to

hurt Omar , the law assumes as much.(1)

8-C:How Does Any of this Make a Difference?

The distinction between specific and general intent crimes can

make a huge difference as a defense.

If you are charged with a specific intent crime, the

prosecution will have to prove that you had the purpose that is

included in the definition of the crime.

In other words, the prosecution will have to prove another

element in order to convict you.

If you didn't have the specific intent required, then you have

a defense and cannot be convicted.


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9:The principle of legality:- Intervention by the criminal law may be traumatic to

a person accused of a crime.

It can easily happen that criminal law is turned into a tool of

suppression of oppression, as occurred during the Middle

Ages. It is therefore important that mechanisms exist to

protect the rights of the individual against abuse by organs of

the state.

The principle of legality plays an important role in this

regard, as the principle is based on principles of constitutional

democracy and fairness.

9-1:The concept of legality :- In determining whether a person is criminally liable, the first

question to be asked is whether the type of conduct allegedly

committed by such person is recognized by the law as a crime.

Certain conduct may be wrong from a moral or religious

point of view, yet may not be prohibited by law.

Again, even if it is prohibited by law, it does not necessarily

follow that it is a crime: it may perhaps only lead to a civil

action (ie an action or court case in which one private party

claims damages from another party) or it may result only in

certain administrative measures being taken by some authority

(where, for example, a local authority orders me to break down

a wall which I have constructed upon my property in such

a way that it contravenes the local building regulations) .

Not every contravention of a legal rule constitutes a crime.

The mere breach of a contract, for example, does not

necessarily constitute a crime.

It is only if a certain kind of conduct is defined by the law as

a crime that there can be any question of criminal liability for

that type of conduct.

It is this very obvious consideration which lies at the root of

the principle of legality.


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The principle of legality is also known as the nullum crimen

sine lege principle.

The Latin expression means "no crime without a legal

provision''.

The principle of legality is contained Article (96) of new

Egyptian constitution 2014 :

" The accused person is presumed innocent until proven

guilty in a fair legal trial in which the right to defend himself is

guaranteed ."

9-2 : Definition and contents of legality principle :- A definition of the principle of legality embodying its most

important facets can be formulated as follows: An accused

may:-

(1) not be convicted of a crime ,

(a) unless the type of conduct with which he/she is charged

has been recognized by the law as a crime

(b) in clear terms ,

(c) before the conduct took place ,

(d) without it being necessary to interpret the words in the

definition of the crime broadly in order to cover the accused's

conduct; and ,

(2) if convicted, not be sentenced unless the sentence also

complies with the four requirements set out above under 1(a)

to (d) Rules embodied in the principle , If one analyses the

principle of legality, one finds that it in fact embodies five

rules.

In order to facilitate reference to the different rules, we shall

give each of these rules a brief Latin label.

These five rules are the following:

(1) A court may find an accused guilty of a crime , only if the

kind of act performed is recognized by the law as a crime , in

other words, a court itself may not create a crime. This is the

ius acceptum rule.


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(2) A court may find an accused guilty of a crime , only if the

kind of act performed was recognized as a crime at the time of

its commission. This is the ius praevium rule.

(3) Crimes ought not to be formulated vaguely. This is the

ius certum rule.

(4) A court must interpret the definition of a crime narrowly

rather than broadly. This is the ius strictum rule.

(5) After an accused has been found guilty, the above-

mentioned four rules must also be applied when it comes to

imposing a sentence; this means that the applicable sentence

(regarding both form and extent) must already have been

determined in reasonably clear terms by the law at the time of

the commission of the crime, that a court must interpret the

words defining the punishment narrowly rather than broadly,

and that a court is not free to impose any sentence other than

the one legally authorized.

This is the nulla poena sine lege rule, which can be further

abbreviated to the nulla poena rule.

Actually all the different aspects of the principle of legality

can be traced back to one fundamental consideration, namely

that the individual ought to know beforehand precisely what

kind of conduct is criminal, so that he/she may conduct herself

in such a way that he/she will not contravene the provisions of

the criminal law.

There is a connection between the principle of legality and

a democratic form of government: one of the reasons why

a judge should not be empowered to create crimes him/herself

or to extend the field of application of existing crimes,

is because Parliament, as the gathering of the community's

elected representatives, is best fitted to decide (after

examination and discussion) what acts ought to be punishable

according to the general will of the people.

In contrast, the judge's function is not to create law but to

interpret it.


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Naturally, this relationship between legality and

a democratic form of government implies that there must be

a parliament representing the entire population as well as

regular (not merely once only ), free (free from intimidation)

and fair elections to ensure that the representatives in

Parliament genuinely reflect the (sometimes changing) will of

the people.

In the discussion which follows each of the five rules

embodied in the principle will be analyzed. For the sake of

convenience , we shall often refer to them by their brief Latin

labels given above.

The following diagram sets out the classification of the rules

and sub-rules:

9-2-A:Conduct must be recognized by the law as

a crime (ius acceptum ) rule :- In a country in which the criminal law is codified, the effect

of the principle of legality , is that only conduct which falls

within the definition of one of the crimes expressly mentioned

in the criminal code is punishable.

In Egyptian criminal law the role of the principle of legality

is the following: before a court can convict somebody of

a crime, it must be clear that the kind of conduct with which

the accused is charged , is recognized as a crime in law.

If this is not the case, a court cannot convict the person,

even though the judge or magistrate is of the opinion that

from a moral or religious point of view the conduct , ought to

be punishable , A court can not create a crime.

Only the legislature may do this, and every accused has

a right to a fair trial, which includes the right not to be

convicted of an offence in respect of an act that was not an

offence at the time it was committed.

The rule described above may be described as the "ius

acceptum rule''. The Latin word ius means "law'' and

"acceptum'' means "which has been received''.


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A free translation of ius acceptum would read: "the law as it

has been received up to date''.

However, this formulation of the ius praevium rule implies

that the (ius acceptum) rule should also be respected:

If a court may not find a person guilty of an act or omission

that was not an offence at the time it was committed

(ius praevium), it follows by necessary implication that a court

does not have the power to create a crime (ius acceptum).

In other words, if a court has the power to create crimes,

it will mean that a court also has the power to convict a person

of a crime , even though the accused's act did not constitute

a crime at the time it was performed.

If the legislator wishes to create a crime, an Act purporting

to create such a crime will best comply with the principle of

legality if it expressly declares:

(1) that that particular type of conduct is a crime, and

(2) what punishment a court must impose upon a person

convicted of such a crime.

Sometimes, however, it is not very clear from the wording of

an Act whether a section or provision of the Act has indeed

created a crime, or not. In such a case the function of the

principle of legality is the following:

a court called upon to interpret such a section or provision

should only assume that a new crime has been created if it

appears unambiguously from the wording of the Act that a new

crime has in fact been created.

If the Act does not expressly declare that the conduct is

a crime, a court should be slow to hold that a crime has been

created.

This consideration or rule corresponds to the presumption in

the interpretation of statutes that a provision in an Act which is

ambiguous must be interpreted in favour of the accused .

In this regard it is feasible to distinguish between a legal

norm, a criminal norm and a criminal sanction in an Act.


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A legal norm in an Act is a provision creating a legal rule

which does not simultaneously create a crime.

A criminal norm in an Act is a provision which makes it clear

that certain conduct constitutes a crime.

A criminal sanction is a provision in an Act stipulating what

punishment a court must impose after it has convicted

a person of that crime.

The difference may be illustrated by the following example.

A statutory prohibition may be stated in the following three

ways:

(1) No person may travel on a train without a ticket.

(2) No person may travel on a train without a ticket and any

person who contravenes this provision commits a crime.

(3) No person may travel on a train without a ticket and any

person who contravenes this provision commits a crime and is

punishable with imprisonment for a maximum period of three

months or a maximum fine of 100 Eg.p or both such

imprisonment and fine .

Example (1) contains a mere prohibition; although it creates

a legal norm, it is not a legal norm creating a crime.

Non-compliance with this provision may perhaps lead to

certain administrative measures (eg that the passenger may be

turned out of the train at the next stop) but it does not contain

a criminal norm.A court will not, without strong and

convincing indications to the contrary, hold that such

a provision has created a criminal norm .

Example (2) does contain a criminal norm, because of the

words "commits a crime''. It does not, however, contain

a criminal sanction as nothing is mentioned about the

punishment which a court must impose after conviction.

Example (3) contains both a criminal norm and a criminal

sanction; the criminal sanction is contained in the words

"is punishable with imprisonment for a maximum period of

three months or a maximum fine of 100 Eg.p or both such

imprisonment and fine''.


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Before one can accept that a provision in an Act has created

a crime, it must be clear that the provision contains a criminal

norm. If a statutory provision creates only a criminal norm

but stipulates nothing about a criminal sanction, as in example

(2) above, it is presumed that the punishment is in the

discretion of the court , a court may then decide for itself

what punishment to impose. A statutory provision will,

however, best comply with the principle of legality if, apart

from a criminal norm, it also contains a criminal sanction.

The ideal is that the legislature should stipulate the maximum

punishment for the crime. (In the unlikely event of an Act

creating a criminal sanction but not a criminal norm, a court

will accept that the legislature intended to create a crime, and

that a crime was indeed created.)

9-2-B: Crimes should be created with retrospective effect

(ius praevium)rule :-

The principle of legality next implies that nobody ought to be convicted of a crime , unless at the moment it took place

the type of conduct committed was recognized by the law

as a crime.

It follows that the creation of a crime with retrospective

effect (ie the ex post facto creation of crimes) is at variance

with the principle of legality.

This application of the principle of legality is known as the

ius praevium rule.

("Praevium'' means "previous''. Freely translated, ius praevium

means "the law which already exists''.)

Suppose somebody had committed a certain act in 1990 ,

which at that time was completely innocent in the sense ,

that it did not amount to a crime.

Let us suppose that this innocent act consisted in his/her

catching a certain type of wild bird belonging to nobody, and

putting it in a cage.


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Let us suppose, further, that five years afterwards, in 1995,

the legislature passed an Act dealing with the protection of

wildlife in which it prohibited the catching of that type of bird

and expressly declared that anyone who caught such a bird

had committed a crime.

Suppose, further, that this Act of 1995 contained a section

which read: "This Act is deemed to have come into operation

on the first day of 1990.''

This would be an example of a law which has retrospective

effect.

Such legislation is usually referred to as ex post facto

legislation. (Ex post facto means that the law was enacted after

(post) the commission of the act.)

You will immediately appreciate that an Act of this nature,

that is one creating a crime with retrospective effect, is most

unfair, since the person who caught the bird in 1990, that is at

a time when such an act was not a crime, can now, after 1995,

be convicted of the crime created by the Act, and be

punished for it, despite the fact that at the time of the

commission of the act in 1990 , he/she neither knew nor

could have known that such conduct is or would be punishable.

In 1990 he/she could not have been deterred from

committing the act, since at that time it was not yet punishable.

9-2-C:Crimes ought to be formulated clearly(Ius

Certum ):- Even if the ius acceptum and the ius praevium rules

(discussed above) are complied with, the principle of legality

can still be undermined by the creation of criminal norms

which are formulated vaguely or unclearly. If the formulation

of a crime is unclear or vague, it is difficult for the subject to

understand exactly what is expected of him/her. At issue here

is the ius certum rule. (Certum means "clear'' the opposite of

"vague''.)


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An example of a criminal prohibition couched in

unacceptably vague language and hailing from Nazi

Germany in 1935, is the following:

"Any person who commits an act which, according to the

fundamental idea behind the penal law, and according to the

good sense of the nation, deserves to be punished, shall be

punishable.''

9-2-D: Provisions creating crimes must be interpreted

strictly( Ius strictum ):-

The fourth application of the principle of legality is to be

found in the ius strictum rule. Even if the above-mentioned

three aspects of the requirement of legality, that is ius

acceptum, ius praevium and ius certum, are complied with,

the general principle can nevertheless be undermined ,

if a court is free to interpret widely the words or concepts

contained in the definition of the crime or to extend their

application by analogous interpretation. "Ius strictum''

literally means "strict law''.

Freely translated, it means "a legal provision which is

interpreted strictly (ie the opposite of `widely')''.

There is a well-known rule in the interpretation of statutes

that crime-creating provisions in statutes should be

interpreted strictly. The underlying idea here is not that the

Act should be interpreted against the state and in favour of the

accused, but only that where doubt exists concerning the

interpretation of a criminal provision, the accused should be

given the benefit of the doubt.

The ius strictum rule implies further that a court is not

authorized to extend a crime's field of application by means of

analogy to the detriment of the accused. (1)

________________

(1)Cotran, Eugene, and Adel Omar Sherif, Op. cit . , pp:311-317 .

- G.Sudarshan , op. cit. , pp: 164-166.

- Hill, Enid, op. cit., pp: 13 -34 .

- Jyoti Dogra Sood, op. cit.,p :3.


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9-3: The principle of legality in punishment :- In the discussion so far, attention has been paid to the

application of the principle of legality to the creation, validity,

formulation and interpretation of crimes or definitions of

crimes.

When dealing with the imposition of punishment, the ius

acceptum, ius praevium, ius certum and ius strictum rules are

of equal application.

The application of the principle of legality to punishment (as

opposed to the existence of the crime itself) is often expressed

by the maxim nulla poena sine lege , no penalty without

a statutory provision or legal rules.

-The application of the ius acceptum rule to punishment is as

follows:

In the same way as a court cannot find anyone guilty of

a crime ,unless the conduct is recognized by law as

a crime, it cannot impose a punishment unless the

punishment, in respect of both its nature and extent, is

recognized or prescribed by law.

- The application of the ius praevium rule to punishment is as

follows: If the punishment to be imposed for a certain crime is

increased, it must not be applied to the detriment of an

accused who committed the crime before the punishment was

increased.

-The application of the ius certum rule to punishment is that

the legislature should not express itself vaguely or unclearly

when creating and describing punishment.

-The application of the ius strictum rule to punishment is that

where a provision in an Act, which creates and prescribes

a punishment is ambiguous, the court must interpret the

provision strictly.


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9-4:The legality principle according to Egyptian

legislation :- Egypt’s constitution affirms the principle of legality (la

jarimah wa la ‘uqubah illa bina’an ‘ala qanun), forbids ex

post facto punishment, and forbids punishment without

a judicial sentence.The Supreme Constitutional Court (SCC)

has addressed these principles on a number of occasions.

In a 1992 case the SCC considered a military order that

sanctioned an army officer who had refused to obey

a command during a military campaign.

The law pursuant to which the sanction was ordered, which

enumerated the sanctions for acts of military insubordination,

had not issued until after the officer’s misconduct.

The SCC found that the sanction constituted a criminal

punishment and, therefore, violated the constitution’s ex post

facto clause. (1)

In a 1993 case the SCC considered a 1945 law that

criminalized and punished persons who were “vagabonds or

suspects”; included within this group were persons “notorious

for” committing any of a number of listed offenses.

The legality principle requires criminal offenses to be

clearly defined, the SCC said, and it found that the law at issue

violated that requirement, as well as the prohibition of ex post

facto punishment. (2)

The following year the SCC reached the opposite result when

considering a customs law that forbade smuggling and listed

several specific acts that constituted it.

The defendant had challenged on vagueness grounds catchall

language that appeared at the end of the provision, which

said that smuggling included “any other act designed to evade

payment of customs taxes or in contravention of the applicable

regulations on prohibited merchandise.”

_____________ (1)SCC Case No. 22, Judicial Year 8 (4 Jan. 1992).

(2) SCC Case No. 3, Judicial Year 10 (2 Jan. 1993).


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The SCC found the language sufficiently clear to satisfy the

legality principle , since it stated precisely what the legislature

aimed to prevent: the avoidance of customs tax.

Article 5 of the Penal Code restates the legality principle and

adds two defendant-friendly corollaries on ex post facto

legislation.

First, after an offense is committed but before final

judgment in a case, if a new law reduces the sentence for the

offense, the defendant faces only the lesser sentence.

Second, after final judgment in a case, if a new law

decriminalizes the conduct for which the defendant was

convicted, the judgment and sentence are vacated.

_______________ (1) SCC Case No. 105, Judicial Year 12 (12 Feb. 1994).


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Chapter Summary

*Crimes are made up of parts, referred to as elements.

The criminal elements are criminal act or actus-reus,

criminal intent or mens-rea, concurrence, causation, harm, and

attendant circumstances.

*Only crimes that specify a bad result require the causation

and harm elements.

* Criminal acts must be voluntary or controllable and cannot

consist solely of the defendant’s status or thoughts.

*Just one voluntary act is needed for a crime, so if

a voluntary act is followed by an involuntary act, the

defendant can still be criminally responsible.

*Omission or failure to act can also be criminal if there is

a duty to act based on a statute, contract, or special

relationship.

* Possession is passive, but it can still be a criminal act.

*The most common items that are criminal to possess are

illegal contraband, drugs, and weapons.

*Possession can be actual if the item is on or very near the

defendant’s person, or constructive if within an area of the

defendant’s control, like inside the defendant’s house or

vehicle.

* More than one defendant can be in possession of one item.

* Criminal possession should be supported by the intent of

awareness because it is passive.

* Criminal intent is an important element because it is often

one factor considered in the grading of criminal offenses.

* Criminal intents are malice aforethought, which is intent to

kill, specific intent, and general intent.

* Specific intent is the intent to bring about a particular result,

a higher level of awareness than is required to perform the

criminal act,which is knowledge that a criminal act is unlawful.

* General intent is the intent to do the act and can often give

rise to an inference of criminal intent from proof of the

criminal act.


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*Motive should not be confused with or replace intent.

*Motive is the reason the defendant develops criminal intent.

*Purposely is similar to specific intent to cause a particular

result.

*Knowingly is awareness that results are practically certain to

occur.

*Recklessly is a subjective awareness of a risk of harm and an

objective and unjustified disregard of that risk.

*Negligently is not being aware of a substantial risk of harm

when a reasonable person would be.

*Offense elements, including specified attendant

circumstances, may require different mental states ,If so, the

prosecution must prove each mental state for every element

beyond a reasonable doubt.

*Concurrence is also a criminal element , that requires the

criminal act and criminal intent exist at the same moment .

*When the crime requires a bad result, the defendant must

cause the harm.

*The defendant must be the factual and legal cause.

*Factual cause means that the defendant starts the chain of

events that leads to the bad result.

*Legal or proximate cause means that it is objectively

foreseeable that the end result will occur when the defendant

commits the criminal act.

*An intervening superseding cause breaks the chain of events

started by the defendant’s criminal act and insulates the

defendant from criminal liability.

*When the intervening superseding cause is an individual,

the intervening individual is criminally responsible for the

crime

*The legality principle requires criminal offenses to be

clearly defined, as well as the prohibition of ex post facto

punishment.


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ACTIVITY:- Assume that the Egyptian parliament passes a statute in 2016

which contains the following provision:

Any person who commits an act which could possibly be

prejudicial to sound relations between people, is guilty of

a crime. This provision is deemed to have come into operation

on 1 January 1995."No punishment is specified for the crime.

Do you think that this provision complies with the principle of

legality?

Answer the following questions :-

(1) Define the principle of legality.

(2) Name the five rules embodied in the principle of legality

(refer to the Latin terms).

(3) Discuss the role of the ius acceptum rule in determining

whether:-

(a) conduct constitutes a crime in terms of the common law

(b) a statutory provision has created a crime

(4) Distinguish between a legal norm, a criminal norm and

a criminal sanction.

(5) When will a provision in an Act of Parliament creating

a crime best comply with the principle of legality?

(6) Define the ius praevium rule.

(7) Define the ius certum rule.

(8) What does the ius strictum rule mean?

(9) Discuss the principle of legality in punishment.

on crimes and punishments 2016

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