Criminalization

Seminar 1

Learning points

Why should something be made a crime?

Moral reasons Instrumental reasons change social norms

How should it be criminalized?

Legality Culpability Proportionality

Bear these points in mind throughout course

Singapores criminal legal system

Part of larger State regulatory framework Constitutional law

governs r/s between State and citizen

Criminal law
Penal Code and other criminal laws (e.g. Misuse of Drugs Act)

Supporting systems
Executive action (e.g. Criminal Law (Temporary Provisions) Act public safety, peace and good order Administrative action (e.g. rehabilitation centers)

The criminal law

The Singapore legal system

Constitutional law Contract law Tort law Criminal law

What distinguishes the criminal law from other areas of law?

The criminal law

Consequences of making something a crime

State-imposed punishment Serious consequences Labeling of individual as a criminal Expression of moral disapproval

Aims of punishment

What does State-imposed punishment aim to achieve? Why punish? Retribution purposes Utilitarian purposes
Deterrence (specific, general) Communication social/cultural/moral values Paternalism educative function Rehabilitation

Alternative ways of approaching crime

Restorative justice movement

Crime seen harming the relationship between victim and perpetrator E.g. juvenile justice

Victims rights Transitional societies/mass atrocities

Truth and reconciliation

Making something a crime

Criminalization on what basis? Harm to others

Definition of harm

Violation of interests
E.g. offensive behavior

Community values
E.g. family values (who decides? conflicting values?)

Public order

History: Singapores Penal Code

Originally written for India

1833: Indian Law Commission 1837: Draft Code under Macaulay 1860: became law in India

Singapore
1826: Straits Settlement (Singapore, Melaka, Penang) indirectly administered 1826: Second Charter of Justice English criminal law 1860s: attempt to introduce into Singapore faced resistance 1. local conditions 2. English judges more familiar with common law 1872: Straits Settlements Penal Code came into force

History: Singapores Penal Code

Colonial legacy Aims of code

Comprehensive Accessible Modern Democratically made

Comprehensive

Limits of codification
Need for judicial interpretation Principles of judicial interpretation?

Plain reading Purposive reading Pro-individual approach - strict construction

Role of the courts (v.s. executive, legislature) Pro-defendant or pro-State?

Strict judicial interpretation: MDA

Possession - not defined in MDA Does this include knowledge of nature of what you are having
To what extent must you know the nature of what you have

judicial decision only if wholly different nature

some academics argue that you wont get off if you believed what you are carrying is aspirin vs heroin- still drug

Accessibility

Original intention
Explanations, illustrations

Private defense
Need for particular clarity 11 provisions 97 (b) PD of property arises against offence falling within the definition of theft, robbery, mischief or criminal trespass, or which is an attempt 102. the right of PD of body commences as soon as a reasonable apprehension of danger to the body arises

Modern

Changing moral values

Amendment of s. 377 S. 377A Any male person who, in public or private, commits any act of gross indecency with another male person 2 years

How should such changes be made?

Judiciary Public discussion

Modernization

Ad hoc approach taken Social problems

Increase in punishment for killing of domestic helpers

International developments
Criminalization of genocide

Democratically made?

Colonial origins Time for change?