Principle of Criminal Law

 Principle Of Criminal Law 

1. Ignorance of law is no excuse

2. No Crime without law 

3. Principle of Double Jeopardy 

4. Crimes die with criminal 

5. Principle of Ex Post Facto law 

6. Actus non facit reum nisi mens sit rea 

7. No Punishment without law

8. Principle of Strict Construction 

9. Presumption of innocence

10. Offence must be Proved by the Prosecutor.

 Major Principles of Criminal Law 

Principle means the established norms and values which is considered as guidelines of any subject . According to that principle related subject do function or applied.So, Principle of criminal law means norms, values or guidelines of criminal law .

1. Ignorance of Criminal Law 

- Ignorance of law means claiming didn't know the law.

-It is major principle of criminal law that law  assume that everyone have knowledge about law. No person can defense on the ground of ignorance of law.

 Ground of this principle

Law made on the basis of natural justice. social norms, values , practice and custom of society as law.it is not only hard but impossible to prove that accused didn't know the law.

Law is in clear, certain and understandable form and it is also the duty of citizen and people to know about the law of their nation and society.

2. No Crime Without Law

Generally, Criminal law define any act or human conduct as crime and describe about punishment.If criminal law hasn't determine action as crime then it can't be considered as crime.

If there is any work that promote and protect society but unfortunately that actions are criminalize then also that work declared as crime.

Society is dynamic and changeable. Today crime may be not crime tomorrow or yesterday . So, what is written in today's law that is only credible and acceptable.

3.Principle of double jeopardy

Principle of double jeopardy is the major principle of criminal law that stop to suit twice for the same offence or stop to make liable any person twice in a same offence.If any person violate law at a time then law can only allow to prosecute or do trial and imposes liability only one time in that offence.

Condition for effect of Principle of Double Jeopardy 

1. A person must be prosecuted in the first trial.

2. Accused must be punished or released through decision.

3. Case and Subject matter should be same.

4.Decision must be done from a competent court or judicial bodies.

# When Person can again Suit(appeal) ?

Person can only appeal in appeal court after the decision of trial court.

Legal Provision 

Article - 20 (6) of constitution of nepal

Section -9 of National Criminal code,2074

Article - 14(7) of International covenant on civil and political Rights,1966( ICCPR) 

4. Crime dies with criminal ( Actus personalis moritur cum persona )

- It means crimes and criminal liability dies with criminal.

- Criminal liability can't transfer to sucessor because it is the matter of punishment but money related liability transfer to their sucessor of property. i.e. confiscation,tax,money laundering e.t.c.

But Civil Liability transfer to the inheritance of Defendant because Civil liability doesn't end after the death of Defendant due to its relation with property, identity,compensation or transaction. 

5. Principle of Ex Post Facto Law

- "ex post facto law" is latin term means ' from after the action' or ' after the facts'.

It is also called retrospective law which have retrospective effect.

- Retrospective law means the law that have effect in the action of past which was already done or comitted before the enactment of law.

According to craise ; 

" if a law takes away or impairs the right acquired under an earlier law or creates a new obligations or imposes a new burden or creates new disqualifications on the conduct or benefits already done , then such law is called retrospective law".

Law with retrospective effect are as follows :-

1. The law that effect any incident that have been occured in the past.

2.if prevailing law is changed,removed that affect previous actions.

3. if law creates new liability, altered the burden of proof, effect to evidence of any before the enactment.

 Legal provision 

Article - 20(4) of Constitution of Nepal

Article - 15(1) of ICCPR,1966

Article - 11(2) of UDHR,1948

Thus, Universal principle of Criminal Law is Criminal Law should not be Retrospective.It means work done in past can't be proceed with new law after the work happening.

6. Act alone does not amount to guilt ,it must be accompanied by mens rea( Actus non facit reum nisi mens sit rea )

- Mens rea or gulit intent is major element of crime that difference between intention or unintentional crime.For imposing criminal liability in response of criminal action or violation of criminal law there must be guilty mind.

one phrase related to this in latin is "Actus me invito factus non est mens actus " (act done by me against my will is not my act).

Like, Action done by insane, minor,executioner falls under it, there is absent of mens rea. Due to that they get relief from criminal liability(Punishment). 

But in matter of strict liability this principle does not apply because it assume that mens rea already exist there. In case like theft , murder. fraud ,rape, white collar crime e.t.c.

7. Nulla poena sine lege

- It means No Punishment without Law

- Any convicted person shall not be punished without law and punished only according to law.

- No mention no punishment or how much mentioned that much punishment only can be imposed.

Constitution of Nepal

- Article- 20(4):No person shall be liable for punishment for an act which was not punishable by the law in force when the act was committed nor shall any person be subjected to a punishment greater than that prescribed by the law in force at the time of the commission of the offence.

मुलुकी अपराध संहिता,२०७४

दफा- ७: कानून बमोजिम बाहेक सजाय नहुने:

कानूनले सजाय नहुने कुनै काम गरे बापत कुनै व्यक्ति सजायको भागी हुने छैन र कुनै पनि व्यक्तिलाई कसूर गर्दाको अवस्थामा कानूनमा तोकिएभन्दा बढी सजाय हुने छैन ।

8. Principle of Strict Construction

It is principle of criminal law that says law should apply as it is written apply after reasonably and fairly evaluated that follow rule of lenity .

Rule of Lenity states that when law is unclear or ambigous, the court should apply in the benefit of accused or defedant.

It is the principlke that limits or restricts judicial interpretation in order to criminalize or extend the liability other than as prescribed by law .

9. Presumption of innocence 

a) Benefits of doubt goes to accused .

b) The accused should presume innocent until proven guilty.

c) Offence must be proved beyond reasonable doubt, otherwise benefit of doubt goes to accused.

d)Suspect person even criminal must be treated as humanly through the criminal proceeding prescribed by law, in modern society rule of law and protection of human rights have been prime concern.

Legal Provision

Constitution of Nepal

Article - 20(5):Every person charged with an offence shall be presumed innocent until proved guilty of the offence.

  Article - 20(10):Any indigent party shall have the right to free legal aid in accordance with law.

International Covenant on Civil and Political Rights,1966(ICCPR)

Article-14(2): Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

10. Offence must be proved by the prosecutor 

- It is different in different legal system .

In civil legal system accused need to proved that he /she is innocent.In Common Legal system prosecutor need to proved that he/she is guilty and act as offence.

In Nepal, Offence must be proved by prosectuor and accused as guilty by corpus deleti beyond reasonable doubt. Burden of proof goes on prosecutor.

Corpus delecti means Offence must be occured before claim and Body of the Crime must be clear.

Others Principles of criminal law

1. Punishment must not be given to innocent.

2. 100 Criminal may escape but 1 innocent should not suffer.

3. Right to fair trial and natural justice.

4.confession also shouldn't taken as evidence until prove by external evidence.

5. No one can be guilty only for intention.

6. According to law of related crime guilty should be punished.

Thank You !!!

About Writer 

Pritam Shah 

Undergraduate Student,B.A.LL.B.

Prithvi Narayan Campus, Tribhuvan University