Criminal Law is the most focal branch of law in the community. Even if you have never studied, you have possibly watched enough episodes on television to give you a general idea on how the process works. Everyone has an opinion, and the media feeds the interest shown by the public.
Today, I discuss the purpose and some principles of criminal law, and in the following weeks I will cover some of the questions regarding criminal process and some interesting issues that arise.
The idea of the system is to provide “justice”, but each different party has their own opinion on what constitutes a “just” result. The State (Police), the accused, the victim, and the community all have differing hopes and expectations in each matter before court.
At any one time, the gallery of the Court can be occupied by the family of the accused, the family of the victim or the victim, the arresting police, co-accused, and close friends of all parties and witnesses. To say that things can get a little awkward is an understatement.
Each party has their own opinion on what should happen, and essentially, the Magistrate performs a balancing act.
Discretion plays a huge role in criminal law. From the moment a police officer decides to investigate, to the Parole Board’s decision to release a prisoner, and many times in between, discretion is available and is used by a variety of people in a variety of ways.
Generally, the main concern of criminal law is serious anti-social behaviour. However when comparing something as trivial as littering to serious issues such as unlawful death, it makes the purpose of criminal law harder to define.
The argument that criminal law prevents socially immoral acts by punishment stumbles when you consider the immoral acts that are not criminal. When two 19 year olds are sent to prison for riding mini-bikes on the side of a road, as has happened in our Local Court recently, and extra-marital affairs (which destroy families) go unpunished (by the criminal justice system), the moral argument is substantially weakened. To further muddy the waters, consider topics such as prostitution, abortion and euthanasia.
Enough philosophy, next week we will look at arrest issues, and then we will work through the entire process.
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This is intended for general information and does not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought.