The basis of criminal law is the common law – the intentional torts of assault and battery, conversion, (theft) and fraud. These remain torts but have been embodied in statute and are publicly enforced by the state – the police, public prosecutors and the courts. Here the nature of crime and criminal penalties are explored.

FEATURES OF CRIMINAL LAW

The basic features of the criminal law can be set down rather crudely as acts which are:

1. intentional

2. prosecuted by the state

3. based on a higher standard of proof than civil law – beyond reasonable doubt rather than the lower civil standard of ‘on the balance of probabilities’

4. attract sanctions designed to punish offenders and which are not paid to their victims – i.e. criminal sanctions are ‘decoupled’ from victim compensation

5. attract both monetary, and non-monetary sanctions such as imprisonment.

These basic features of the criminal law suggest that there is something different about a crime which makes victim enforcement and compensatory damages inadequate. In law sanctions imposed under criminal law expressly seek to punish offenders rather than compensate victims. This is clearly not the focus of tort law. Indeed, in Anglo-American legal systems the victim of a crime also has an action in tort for damages. This suggests that the law recognises that compensation of victims is an inadequate sanction where there is an intention to inflict harm.