Common Law Crimes Research Articles

CONSTRUCTIVE BREAKING − A CONSTRUCTIVE PART OF THE HOUSEBREAKING CRIME?

Section 9 of the Theft Act of 1968 heralded a new formulation of the crime of burglary in English law, in that the unlawful conduct associated with the crime was changed from the previous elements of breaking and entering, to the requirement of a trespassory entry. Thus the element of breaking was dispensed with. Prior to the passing of the Theft Act, the English crime of burglary, along with other offences involving breaking and entering, was governed by sections 25-27 of the Larceny Act of 1916, which in turn fell to be interpreted and applied in terms of the abundance of common-law precedent. The common-law conception of the term “breaking” included both actual breaking and constructive breaking. The former notion involved the displacement of some obstacle in order to facilitate the unlawful entry into the premises: drawing a bolt, turning a key, lifting a latch, raising a cellar flap or window sash (Turner Kenny’s Outlines of Criminal Law 18ed (1962) 246). Constructive breaking may be defined as “obtaining an entrance into the [premises] by any threat or artifice used for that purpose, or by collusion with any person in the [premises]” (Stephen and Stephen Stephen’s Digest of the Criminal Law 5ed (1894) 283; see also Turner Russell on Crime 11ed (1958) Vol 2 919ff; Palmer and Palmer Harris’s Criminal Law 20ed (1960) 332; and Cross and Jones An Introduction to Criminal Law 5ed (1964) 256).Whilst it is generally accepted that the crime of housebreaking with intent to commit a crime (hereinafter “the housebreaking crime”) in South African law has its roots in the English common law rather than the Roman-Dutch law (Snyman Criminal Law 4ed (2002) 540; and R v Fourie; R v Louw 1907 ORC 58 59), it has been doubted whether the common-law notion of constructive breaking has been received into South African law (Milton South African Criminal Law and Procedure Vol II: Common-law Crimes 3ed (1996) 800). Moreover, Gardiner and Lansdown have stated that the “doctrine of constructive breaking … would probably not be approved by South African courts if the matter came into question” (Lansdown, Hoal and Lansdown Gardiner and Lansdown’s South African Criminal Law and Procedure Vol II: Specific Offences 6ed (1957) 1720). It is proposed to examine whether constructive breaking has indeed been introduced into South African law, by examining the three aspects of constructive breaking set out in the above definition: entry by threat or duress, entry by artifice or fraud, and entry by collusion with another within the premises.

OF OBEDIENCE AND OFFENCE S v Mostert 2006 1 SACR 560 (N)

The judgment of Theron J in the recent case of S v Mostert has raised some interesting questions about the nature and content of the defence of obedience to orders (which will be referred to interchangeably with the alternative appellation “superior orders” in the discussion which follows), and the ambit of the common-law crime of crimen injuria.

CRIMINALISATION OF THE VIOLATION OF A GRAVE AND THE VIOLATION OF A DEAD BODY

The history and functioning of the common law crimes of violating a grave and violating a dead body are discussed in the context of their continued role in modern South African society. It is submitted that these crimes remain both useful and a significant indicator of the boni mores, and indeed that the rationale for their continued existence has been bolstered by the infusion of constitutional values intocriminal law jurisprudence.

WHEN IS INDECENCY “PUBLIC”? Rose v Director of Public Prosecutions [2006] 1 WLR 2626 (QBD)

The crime of public indecency is not without controversy in the context of the new constitutional dispensation in South Africa. The criminalisation of behaviour that is assessed as having offended the sensibilities of the public inevitably limits the right to freedom of expression, protected in section 16(1) of the Constitutional of the Republic of South Africa, 1996. Nevertheless, the operation of this right is qualified by the public’s interest in not being confronted with disgusting visual or auditory stimuli (see discussion in MiltonSouth African Criminal Law and Procedure Vol II: Common-law Crimes 3ed (1996) 272; and Snyman Criminal Law 4ed (2002) 359).A further difficulty with the crime is the breadth and vagueness of its definition (which is set out below). As Snyman points out, expressions such as “which tends to deprave the morals of others” and “which outrages the public’s sense of decency” are so vague as to possibly violate the principle of legality (Snyman 359). The notion of when the indecent act can be regarded as being of a public nature presents its own expository difficulties, particularly in the light of the adoption in the case law of an interpretation which goes beyond the commonplace meaning of the term “public”. This note sets out to outline the application of the requirement that the indecency must be “public” in order to found liability for the crime of public indecency, in the light of the recent English case of Rose, which dealt with a similar question.

THE SINGULAR STATUTORY HOUSEBREAKING CRIME S v Slabb 2007 1 SACR 77 (C)

If the common-law crime of housebreaking with intent to commit a crime has been criticized for its form and function, the statutory variation of the housebreaking crime, housebreaking with intent to commit a crime to the prosecutor unknown, has been even more controversial, and has been subject to widespread academic criticism. The validity of this offence arose for discussion in S v Slabb (2007 1 SACR 77 (C)) (also briefly discussed by Hoctor “Recent Cases: Specific Crimes” 2007 SACJ 78 87).

A TALE OF ATTEMPTED MURDER AND HIV … S v Nyalungu 2005 JOL 13254 (T) “

The South African Law Commission (as it was then – hereinafter “SALC”) was commissioned to investigate various aspects of the law as it related to HIV/AIDS. In its 5th and final report (Project 85, 5th Interim Report on Aspects of the Law Relating to AIDS – The Need For A Statutory Offence Aimed At Harmful HIV-Related Behaviour, April 2001 – hereinafter “SALC 5th report”), it dealt with “harmful (ie unacceptable) sexual behaviour by a person with HIV or AIDS that could transmit HIV or expose others to HIV, current measures available to address such behaviour and whether there is a need for statutory intervention” (viii of the executive summary of the report). This note considers the SALC’s recommendations in this regard and the reality that there have been no reported cases of successful prosecution under the common-law crimes for the wilful transmission of HIV, but that the case in point shows a willingness on the part of the courts to accept that such behaviour is dire and will be punished albeit under the guise of some “lesser” offence. Whether the decision is S v Nyalungu ([2005] JOL 13254 (T) (unreported)) has/will made/make it a less daunting task to prosecutecrimes involving allegations of the wilful transmission of HIV/AIDS is yet to be seen.

Dismantling South Africa’s scourge – the Constitutional Court rules rape an abuse of power: Tshabalala v S; Ntuli v S

In December 2019, the Constitutional Court handed down a significant judgment in the matter of Tshabalala v S, Ntuli v S 2020 (5) SA 1 (CC), holding that the doctrine of common purpose applies to the common-law crime of rape. The judgment has been hailed as an important contribution to South Africa’s jurisprudence and, particularly, to the judiciary’s promise to address gender-based violence in South Africa at a time when numerous cases of gender-based violence and femicide are facing the courts. This case note argues that the judgment is noteworthy for three main reasons. First, the judgment settles the uncertainty in South African law regarding the concept of instrumentality and the applicability of the doctrine of common purpose to the crime of rape. Secondly, it emphasises that rape is more than a sexual act; it is also an unconscionable abuse of power over the most vulnerable members of society. Thirdly, the concurring judgments centre the lived experiences of black women and acknowledge intersecting power inequalities in our society, thereby advancing the project of substantive and meaningful adjudication in South African jurisprudence.

Human rights violations and sodomy laws in Africa: A study of the discriminatory laws and inhumane legislation and its impact on the health and safety of the LGBTI community within the criminal justice cluster

From sodomy laws in the apartheid era, to the institutionalisation of section 9 (3); (which is a protection order in the South African Constitution), which prevents total discrimination of persons based on race, gender, and sexual orientation; the rights of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and their health and safety are not guaranteed when imprisoned for any crime that they may have committed. Sodomy was a common law crime in South Africa and despite the protection order South Africa still suffers from the disparaging homophobic tendencies from communities who are unsympathetic to the plight of the LGBTI. Through politics, religion and social aspects in South Africa and the African continent, there are great exclusionary measures. Human rights violations against the LGBTI in Africa has an ominous history including discrimination, persecution and prosecution of the LGBTI community. In most African countries, where being gay or being part of the LGBTI community is regarded as a crime, there is no guarantee that the LGBTI’s physical health and safety will be protected by the penal system when imprisoned. This article aims to look at the anti-gay laws that are still existing in most of the African countries; their discriminatory and inhumane stance and how that stance has an impact on the health and safety of the LGBTI community within the criminal justice cluster and specifically, within the penal system. The article will unpack the homophobic and exclusionary measures created by African countries towards the LGBTI community. The colonial era anti-gay laws are still applied in some African countries wherein these countries claim that homosexuality is un-African and ungodly. It seems to be a confusing stance as Christianity and the Bible were introduced by the colonisers. The article will in addition discuss the policies on the treatment, categorisation and health of prisoners and whether these policies cater for the LGBTI community within the criminal justice cluster. Contribution: Recommendations that will come out of this article will explore possibilities of transformation of legislation, policies and rules such as the United Nations Standard Minimum Rules for the treatment of prisoners that should cater to the needs and the protection of the LGBTI community when incarcerated.

OF HOUSEBREAKING AND COMMON PURPOSE: S v Leshilo 2017 JDR 1788 (GP)

Some aspects of substantive criminal law generate more controversy than others. One of the features of the common-law crime of “housebreaking with the intent to commit a crime” is the possible difficulty of proving what “further intent” the accused harboured upon breaking into premises: what crime did the accused intend to commit within? To assist the prosecutor in this regard, the legislature intervened by extending the ambit of the common-law crime to include not just housebreaking where the “further intent” of the accused could be properly identified, but also housebreaking where the “further intent” of the accused could not be identified. Thus, in terms of the Criminal Procedure Act (51 of 1977), a charge of housebreaking with intent to commit a crime “to the prosecutor unknown” (s 95(12)), and a conviction in these terms (s 262) was established. These provisions have proved very controversial, with De Wet commenting that in providing this statutory extension to the common-law crime, the legislature miraculously created a representation of something that is conceptually impossible.The common purpose doctrine also provides invaluable assistance to the State in situations where more than one actor has been involved in the commission of a crime, and where it is extremely difficult to ascertain which actor was responsible for which act. Typically, such crimes arise out of mob violence. A strict application of the rules of causation in such circumstances often makes proof of individual perpetrator liability extremely hard to establish. The consequence of the difficulty in establishing a causal link between the actor’s conduct and the harmful result may be lesser liability or even no liability for the harm. The common purpose doctrine (defined below) however provides that where the actors share a common purpose to commit a crime, and act to that end, the conduct of each actor is imputed to each of the other actors. Thus the difficulty with proof of causation is entirely circumvented.
 But at what cost? Despite a Constitutional Court judgment to the contrary, Burchell has consistently argued that the common purpose doctrine “is a contradiction of the fundamental rule that the prosecution must prove the elements of liability beyond reasonable doubt and, therefore, an infringement of the presumption of innocence”.In the case of S v Leshilo (2017 JDR 1788 (GP)), both these controversial aspects – the statutory extension to the housebreaking crime, and the common purpose doctrine – are drawn together, making a consideration of the judgment in this case both instructive and worthy of closer analysis.

The Model Penal Code & Sex Work Criminalization

There is no early colonial common law crime of prostitution, yet societal attitudes today would suggest the criminal suppression of sex work is as old as the United States. Contrary to these assumptions, modern state laws criminalizing prostitution are relatively new and little research has been devoted to understanding these laws’ development despite a century-old debate on whether and how to criminalize sex work.The most influential legal authority, Section 251.2 of the Model Penal Code, is one such example. At least twenty jurisdictions have adopted some portion of Section 251.2 in their prostitution-related criminal statutes, but no scholarship has examined its creation. This Article addresses this dearth of knowledge by conducting archival analysis of the drafting process behind Section 251.2 and reviews the four stated rationalizations for criminalizing prostitution: suppressing venereal disease and organized crime, preventing the corruption of government and law enforcement, and maintaining stability of the home and family. After evaluating available social science research, this Article concludes decriminalizing all aspects of sex work— including sex workers, their clients, and non-exploitative third parties—overwhelmingly better address the stated rationalizations than criminalizing prostitution.

Developing the common law crime murder in relation to physician-assisted suicide and physician-assisted euthanasia: Revisiting the missteps of Stransham-Ford v Minister of Justice and Correctional Development 2015 (4) SA 50 (G)

SUMMARY Digitisation of information compels a revision of the Fourth Industrial Revolution (4IR) and its associated technologies. This arises because 4IR technologies, for example, the Internet of Things (IoT), Big or Massive Data, Artificial intelligence (AI), augmented or virtual reality and machine learning, drastically adjust the manner in which an information society operates. Specifically, they present unprecedented opportunities for business, economy and online user or consumers. Furthermore, they profoundly model and re-model productions. As a result, the conventional lines between the physical, digital and biological spheres become imprecise. Given the extent of the transformation that 4IR technologies bring to society, it has become necessary to refer to them as the disruptive technologies. However, the inquiry is to what extent is the information society ready to take advantage of disruptive technologies and control some of the setbacks that emanate from therefrom? For regulatory purposes, how electronic or e-ready regulators are to control the adverse consequences that are associated with disruptive technologies? To address these questions, this paper discusses some of the selected theories for technology regulations (artificial immune system (AIS) theory and theory for Lex Informatica). The theories are not technology regulations, as such. Simply, they concede that technology regulations should encourage a proper scrutiny of the position of the technologies in the information society.

Constitutional Liquidation, Surety Laws, and the Right to Bear Arms

In recent years, some scholars have claimed that early American law did not recognize a general right to bear arms in public. Although most early state court decisions recognized such a right, these scholars contend that these decisions were peculiar to the antebellum South, which had a uniquely permissive weapon carrying culture. Outside the South, they argue, many states heavily restricted the public carry of weapons through surety laws. These surety laws required that, on complaint of a plaintiff who had “reasonable cause to fear an injury, or breach of the peace,” a person would have to post a bond to keep the peace if he went armed “without reasonable cause to fear an assault or other injury.” These scholars argue that the surety laws (which they call the “Massachusetts Model”) were descendants of the common law crime of going armed to the terror of the people, which, they claim, also generally prohibited private citizens from going armed. Based on this historical practice, they argue that the Second Amendment was not understood to encompass a general right to publicly carry weapons. This book chapter challenges that historical narrative, and more importantly, disputes the relevance of the Massachusetts Model for constitutional interpretation. First, this book chapter argues that the relevance of nineteenth-century laws and judicial decisions does not primarily come from their ability to elucidate the original public meaning of the right to bear arms in 1791. Instead, their relevance lies in the idea of “constitutional liquidation,” that postenactment practice can settle the meaning of legal text. Next, this chapter argues that the right to bear arms did not liquidate in favor of the constitutionality of the Massachusetts Model. No evidence has emerged that the passage of the surety laws was the product of thoughtful constitutional interpretation. And no course of practice emerged. As applied to the carriage of weapons for lawful purposes, the surety laws went largely unenforced. Likewise, there is almost no known record of American courts enforcing the common law crime of going armed to the terror of the people against individuals carrying weapons for lawful purposes. Finally, the lack of enforcement meant that the surety laws failed to settle the meaning of the right to bear arms. Quite the contrary, all Massachusetts Model jurisdictions (including Massachusetts) adopted statutory criminal law governing the carriage of weapons in public. None of these states adopted a general ban on public carry. Instead, most states restricted only the carrying of concealed weapons, while a few others (including Massachusetts) had more lenient laws. Ultimately, the “Massachusetts Model” did not serve as a model for restricting public carry anywhere, even in Massachusetts.

Considering the constitutionality of South Africa’s anti-gang legislation in light of the principle of legality

The essence of the principle of legality is to constrain governmental, legislative and judicial power, and protect citizens from the arbitrary exercise of these powers. This is especially true in the context of the drafting and interpretation of criminal law. Criminal laws in particular must be drafted in a reasonably clear fashion to provide citizens with fair warning of criminal sanction. The courts must also interpret these laws strictly, so that citizens are not punished for conduct that did not fall within the scope of either a common law or statutory crime. This article examines whether certain definitions employed in the Prevention of Organised Crime Act 121 of 1998 do not offend the principle of legality as it employs dubiously wide definitions. Although widening the criminal net for, in particular, criminal gang activities, these definitions arguably do not provide fair warning to citizens to avoid criminal sanction and may also be at risk of overbroad judicial interpretation. The analysis will further take place in light of comparable foreign legislation and decisions.

‘Shoot the Boer’ – Hate Speech, Law and the Expediency of Sound

In recent years, “Shoot the Boer” (“Dubul’ ibhunu”), a well-known protest song from the apartheid era, experienced an unexpected revival in the streets of South Africa—and the courts. The article traces the history of the intersection of the song and the law as it meandered through an intricate topography of cases, rules and regulations ranging from the common-law crime of high treason, apartheid “anti-terrorism” and “anti-communism” law, post-apartheid constitutional law and the Broadcasting Code of Conduct. In contrast to established judicial practice where hate speech is reduced to its verbal dimension and sound serves as an expedient and abject to be invoked and discarded at will, the article focuses on sound as an equally pertinent criterion for regulating expressions such as “Shoot the Boer.”

Piracy, a Crime of Universal Jurisdiction: A Perspective into the History of United States Piracy Jurisprudence, its English Common Law Roots, and Relationship with the Law of Nations

The crime of piracy has plagued local and international maritime trade for thousands of years. Throughout history, pirate predation on trade ships was so infamous and prevalent that it was — and still is — considered an international issue. And because of its international reach and effect on commerce, piracy is defined and discussed under the United Nation’s Convention on the Law of the Sea (“UNCLOS”). In the United States, the statutory definition of piracy under the federal criminal code differs from the UNCLOS definition. However — even though the United States is not a member of UNCLOS — federal court jurisprudence incorporates the UNCLOS definition into the federal statutes acknowledging international definitions. Because of the universal and longstanding notoriety of piracy, punishment has historically been, and continues to be harsh today even when compared to other international crimes. In larger nations, piracy is typically governed by admiralty courts. Over time, the demarcation line for admiralty and international jurisdiction has ebbed and flowed due to the global expansion of trade. Today, prosecution of piracy falls under a universal jurisdiction among all nations which means that, generally, any nation can prosecute pirates. Piracy as a criminal act often employs the use of other common law crimes such as larceny, robbery, and murder. And although these crimes usually fall under the purview of U.S. State law, Congress is explicitly granted power over piracy through the U.S. Constitution. After the Golden Age of Piracy during European colonization, piracy entered a denouement. However, there had been a resurgence in global concern and prosecution of piracy with the prolific attacks by pirates along the coast of Somalia over the past two decades.

Reynolds v. United States, Rewritten

In Reynolds v. United States, 98 U.S. 145 (1878), Chief Justice Morrison Waite, writing for a unanimous Supreme Court, upheld the federal Morrill Anti-Bigamy Act outlawing polygamy in the federal territories and providing criminal penalties for it. This is a re-writing of that opinion, presented in the form of a dissent, available in Feminist Judgments: Family Law Opinions Rewritten (Cambridge University Press, forthcoming 2020). Unlike the Court’s opinion, this dissent concludes that religious practice, as well as belief, is protected by the First Amendment. It therefore holds that a religious duty to engage in an unlawful practice may be a defense to a criminal charge absent evidence of harm to others or disruption of the public order. It further demonstrates that the common law crime of polygamy was intended to penalize fraud and deception rather than consensual conduct. Finally, the opinion addresses head-on the implicit religious freedom claims of the wives of the defendant. It finds that polygamy is no better and no worse for women than monogamous marriage under coverture and that overturning the defendant’s conviction would further the religious freedom and equality of the defendant’s wives and the female citizens in the Territory of Utah. The aims of the dissent are to make visible the women erased by the Court's opinion and to create a more free and egalitarian law of marriage for all women in the United States in the late 19th century.

Criminalisation of damage to property by South African common-law crimes

Criminalisation of damage to property by South African common-law crimes

Res Religiosae and the Roman Roots of the Crime of Violation of Sepulchres

Violation of sepulchres is a common law crime in Scotland. This crime ensures that interred human corpses are not subject to the ordinary laws of property, but are instead protected under this distinct heading of law. While it now appears settled that a corpse can be stolen prior to interment, it remains unclear if a corpse which was once buried, but has since been lawfully removed from its grave, remains incapable of being stolen, or if it becomes susceptible to theft again when exhumed. This article suggests that the latter occurs in Scots law since a res religiosa – an object not subject to the ordinary rules of property – is created when the body is placed in its grave. This suggestion draws on the connection between the contemporary crime of violation of sepulchres and its Roman ancestor, the crimen violati sepulcri. The article suggests that though the overtly religious overtones of the term ‘res religiosa’ appears to be at odds with an increasingly secularised society, the law surrounding res religiosae functionally explains the absence of ‘property’ in buried bodies, thus providing a logical basis for the proposition that an unburied body may be stolen, but a buried body may not be.

The historical roots and future directions for military law and policies on rape and sexual assault

ABSTRACTThe time in which rape has been a crime tried in the military criminal justice system is remarkably short. For much of the nation’s history, military members accused of common law crimes were tried in civilian courts established under Article III of the Constitution. The exception was during periods when the nation was at war. A continuous jurisprudence of military rape law did not begin until the late 1980s. Since that time, an avalanche of sexual assault scandals, legislation, task forces, and commissions have driven the issue to the forefront of public interest. While change was glacially slow for decades, the last 10 years have brought about some of the most dramatic changes in military justice since the Uniform Code of Military Justice (UCMJ) was established in 1950—changes driven almost entirely by the sexual assault debate. Congressionally chartered advisory committees like the Defense Task Force on Sexual Assault in the Armed Forces, the Response Systems to Adult Sexual Assault Crimes Panel, and the Judicial Proceedings Since Fiscal Year 2012 Amendments Panel have recommended many of the reforms to law and policy now in place regarding the military’s response to sexual assault allegations. Nonetheless, several key reforms are still waiting, including improved collection of sexual assault data and program performance metrics and a more precise definition in Department of Defense policy of what conduct constitutes sexual assault.

THE IMPACT OF APPLYING ANTTERRORISM LAW ON THE INVESTMENT AT NORTHEM SINAI REGION

The importance of the matter is that the spread of the phenomenon of terrorism was confronted with an increase in fighting terrorism at the international laws level. These laws, which embarked on an anti-terrorism resulted in - for the most part of the cases - diminution of human rights guarantee, so that terrorist crimes are of a private nature and seriousness of the international community in general and the countries in particular require special treatment for this type of crime. So it became permissible for states to enter amendments to the various laws either objective or procedural ones to combat the criminal phenomenon. Not only was tougher punishment for this type of crime, but new crimes extend the umbrella of criminality emerged and identifies the inalienable rights the defendants in this type of crime. The aim of the present study was to investigate the role of terrorism laws governing judicial and criminal matters in the face of terrorism, the study of basic human rights and freedoms that are at risk under the Anti-Terrorism Act and violent extremism (such as freedom of expression - freedom of the media, etc. ..), the study of the mechanism of integration of human rights and anti-terrorism laws, the study of the impact of the mechanism of integration between human rights and anti-terrorism laws on investment and environment of North Sinai area. The study concluded a set of findings and recommendations, the most important, That the legislation differs in punitive treatment of terrorists, some of them applied the emergency law on terrorists, while other legislation laws supplied solid Penal Code applies (French law) or allocate a special law (English law and American law: the national anti-terrorism law). It expanded a lot of legislation from the scope of terrorist crimes so that is not limited to acts of violence, and has become the umbrella of terrorist crimes extends to some of the common law crimes such as theft, armed robbery, destruction of funds for the purpose of committing terrorist crimes. It has become a lot of legislation punishing stiff penalties and disproportionate what some of the expressing on an opinion in favor of certain trends or certain organizations considered to be of a terrorist idea, as well as distributing leaflets or written articles or interviews deemed a kind of propaganda in favor of those parties which are prohibited by the authorities’ state. Penalize some legislation on the membership of certain organizations, where it regards as terrorist crimes. Some legislation allows the freezing of some public and private entities that are state sponsors of terrorism funds. The United States has frozen the Iranian government funds under anti-terrorism laws, as well as some of the funds of individuals and organizations. The private counter-terrorism English law allows in Article seizure and confiscation of funds suspected of involvement in the owners terrorist financing or money laundering proceeds of their crimes. The law allows judicial officers the warrant of arrest without permission and without the availability of cases of flagrante delicto, and that if he has reasonable grounds to suspect a person of committing terrorist crimes or to participate in the preparatory work. Some of the legislation gives the executive branch the power to extend pre-charge detention for foreigners suspected of terrorism. The USA PATRIOT Act allowed the Attorney General to lock up the foreigner suspect before indictment for seven days.