The Application of Warning and Caution in Criminal Procedure: A Comparative Study of Iranian and English Law

Document Type : Academicm and Research

Authors

1 PhD in Criminal Law and Criminology, University of Tehran.

2 Associate Professor of Department of Criminal Law and Criminology Law, Faculty of Law and Political Science, Shiraz University.

3 MA Graduate of Criminal Law and Criminology, University of Shiraz.

10.22091/csiw.2023.9070.2387

Abstract

The concepts of ta'zir preaching in Islamic criminal procedure and caution in the English law share fundamental similarities. These similarities include diverting cases from the formal process of criminal justice, reducing the economic costs of the criminal justice system, preventing stigmatization of offenders, warning the perpetrator about past behavior, cautioning against future conduct, shaming the rehabilitator, etc. Despite the positive effects of preaching in Islamic judicial proceedings, which are based on judicial expediency in the field of penalties and the principle of ta'zir as guided by the Imam, and despite the abundant advantages of caution in English judicial proceedings, the Iranian legislature has neglected these two approaches. Although the notion of preaching as one of the degrees of ta'zir punishment has been mentioned in scattered laws enacted before the Islamic Penal Code and subsequent Criminal Procedure Code of 2013, this institution has been neglected in the aforementioned two laws and has never had a place in Iranian judicial practice. The utilization of this institution in the Iranian judicial system, which is faced with an inflation of criminal cases, especially in less significant offenses, can bring about the realization of the aforementioned effects and enable the judicial system to focus on more important cases. In this article, through a descriptive and analytical method of collecting library data, we first describe the status of admonition and caution and then provide the necessary conclusions.

Keywords

Main Subjects

References

Ashworth, A. (2020). The criminal process. New York: Oxford University Press.
Bloom, R., & Brodin, M. (2021). Criminal procedure: The constitution and the police (5th ed.). Aspen Publishers.
Duff, A. (2001). Punishment, communication, and community. New York: Oxford University Press.
Hess, K., & Orthmann, C. (2009). Criminal investigation. Delmar Cengage Learning (9th ed.).
Hungerford, P. (2015). Criminal procedure and sentencing. New York: Routledge Press.
Packer, H. (1968). The limits of the criminal sanction. Stanford University Press.
Sprack, J. (2018). A practical approach to criminal procedure. New York: Oxford University Press.
Wade, M., & Jehle, J. (2016). Coping with overloaded criminal justice systems: The rise of prosecutors' power across Europe. New York: Springer Publishing.
 
Persian Sources
Dashti, M. (2019). Translation of Nahj al-Balagheh book (3rd ed.). Tehran: Payam Edalat Publication.
Emami, M. (1998). Expediency in criminal proceedings. The Judiciary’s Law Journal, 62(23).
Ghorban Nia, N. (2002). The philosophy of punishments in Islamic criminal jurisprudence. Ravagh Andisheh Publication.
Hosseini, S. (2016). Criminal policy (in Islam and in the Islamic Republic of Iran) (4th ed.). Tehran: SAMT Publication.
Jafar Javan, A., Farhadi Alashti, F., & Sadati, S. M. J. (2017). Deterrence and its Assessment in the Philosophy of Punishment. Journal of Criminal Law Research, 7(2).
Mir Khalili, S. M. (2014). Tazir gradation. Journal of Religious Research, 10(4).
Shekarchi Zadeh, M. (2016). English criminal procedure (rule of necessity for prosecution). Tehran: Majd Publication.
Talebi Ashtiani, M. A., & Bagheri, A. (2019). Comprehensive review of two opposite jurisprudential approaches in determining the amount of ta'zir. Journal of Criminal Law Research, 8(28).
Tavassoli Naini, M., & Shirani, F. (2016). The Right to Self-Determination in Islam and Current International law. Comparative Studies on Islamic and Western Law, 3(1).
Yousefi, I. (2013). Preliminary research in criminal procedure. Tehran: Jangal Publication.
Yousefi, I. (2016). Criminal Procedure. Tehran: Mizan Publishing.
Send comment about this article
CAPTCHA Image
Comparative Studies on Islamic and Western Law
Volume 10, Issue 4 - Serial Number 38
December 2023
Pages 155-169

Files

Share

How to cite

Statistics