You may download the primer here. We reproduce the text below.
The term “continuing crime” recently surfaced on social media, and found its way into discussions involving cyber-libel and inciting to sedition. Law enforcement officials used this concept as basis to conduct warrantless arrests against persons perceived to have posted libelous or seditious remarks online. Through this primer, we inform the reader about the nature of continuing crimes, and their relevance to warrantless arrests, and expiration of crimes.
1. Continuing Crimes v. Non-continuing Crimes
A crime may be continuing or non-continuing, depending on its duration and location.
Non-continuing crimes are crimes committed in a single instance, at a definite time and place. Examples include murder and discharge of a firearm because they can be pinned to a specific time and place, i.e., when and where the accused killed the victim or fired the gun.
Continuing crimes take place over a substantial length of time. Common examples include:
[a] kidnapping, which occurs throughout the period of illegal detention;
[b] evasion of service of sentence, which occurs while a prisoner continues to elude authorities; and
[c] violation of Batas Pambansa Blg. 22, or the Bouncing Checks Law, which occurs at the place where the check was (i) made, (ii) drawn, (iii) issued, and (iv) deposited.
Some crimes may be continuing or non-continuing, depending on the circumstances, and the manner of commission. For example, theft is non-continuing if it occurs at a definite point in time, e.g., a pickpocket steals a person’s wallet, or continuing if it occurs over a period, e.g., a warehouseman takes all items from a warehouse within an entire afternoon.
2. Nature of Online Posts
There are two points of view on the nature of crimes committed through online posts.
|Continuing Crime||Non-continuing Crime|
|Some theorize that posting is a continuous act. It continues for as long as the post remains visible. The author’s failure to remove the post, when it can be deleted at any time, indicates a continuous intent to perpetrate the act.||Others theorize that posting is a non-continuing act because it is completed at a definite point in time, i.e., at the moment the actor publishes the post. Under this theory, the timestamp of the post is the time of commission.|
The distinction is relevant for purposes of warrantless arrests, and expiration of crimes.
3. Warrantless Arrests
A person can only be arrested if there is a warrant. This is the general rule. The exceptions are as follows:
[b] when an offense has just been committed, and the police officer has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and
[c] when the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
The most common basis of warrantless arrests is item [a], or the “red-handed” exception. This usually transpires in buy-bust operations where police officers arrest drug pushers immediately after a transaction. Police officers arrest the accused even without a warrant because they witness the accused committing the crime red-handed.
It is important to determine the nature of online posts, for the following reasons.
Continuing Crime Theory: Under this theory, the author of an online post may be arrested without a warrant, at any time, because a crime committed through an online post is a continuing crime. For as long as the post is visible, the author is committing the crime red-handed, justifying a warrantless arrest under item [a] above.
Non-continuing Crime Theory: Under this theory, the author of an online post cannot be arrested without a warrant, in general, because the author is not committing a crime red-handed. The crime ended upon posting, hence it is a non-continuing crime. As such, law enforcement officers and private offended individuals must first secure a warrant by officially filing a complaint, and successfully hurdling the preliminary investigation process, before conducting an arrest.
4. Expiration of Crimes
Crimes also expire. This is legally called “prescription.” For example, basic libel prescribes within one (1) year from discovery. If the victim fails to file a case within this period, he or she loses the right to prosecute the case. There is an on-going debate on the prescriptive period of cyber-libel (simply put, basic libel committed online), i.e., whether it is one (1) year or twelve (12) years. This has yet to be settled by the Supreme Court.
Regardless what the prescriptive period is, the nature of an online post is important in determining when prescription commences.
Continuing Crime Theory: Under this theory, a crime committed through an online post is a continuing crime. As such, “[t]he prescriptive period of (sic) continuing crime, cannot begin to run because there could be no termination of continuity and the crime does not end.”
Non-continuing Crime Theory: Under this theory, a crime committed through an online post is a non-continuing crime. As such, prescription can begin to run from a definite point in time.
 Parulan v. Director of Prisons, G.R. No. L-28519, February 17, 1968.
 Brodeth, et al. v. People of the Philippines, et al., G.R. No. 197849, November 29, 2017.
 If there is more than one criminal intent, the crime is not a continuing crime. In that case, the perpetrator may be charged with multiple counts of the crime. For example, if the warhouseman steals one item from a warehouse every week, for ten weeks, he may be charged with ten counts of qualified theft.
 Rule 113, Sec. 5, Rules of Court
 It bears checking whether the exceptions under items [b] and [c] apply.
 Luis B. Reyes, The Revised Penal Code Book One 17th ed, p. 853 (2008); interpreting the Spanish text of Arches v. Bellasillo, G.R. No. L-1779, June 29, 1948.
Garcia Habacon and Han is a law firm in Quezon City, Metro Manila, Philippines.