Episode 19 – It’s A Crime! Criminal Law in Context

TRANSCRIPT

STEPHEN PARKER

Are you a crime junkie?  Well this episode on Criminal Law is for you.

STEPHEN BOTTOMLEY

Crime fascinates most of us in some way, through novels, film and the news. 

 True crime is a leading form of podcast.  If only people were interested in True Law, our podcast numbers would be soaring. 

STEPHEN PARKER 

And crime has fascinated people throughout the ages, from Greek Tragedy to Shakespeare to Agatha Christie. 

STEPHEN BOTTOMLEY

And don’t forget Dostoevsky, Steve. 

STEPHEN PARKER

You’re only saying that because you finished Crime and Punishment and I didn’t. 

STEPHEN BOTTOMLEY

Actually I gave up on it too.  Life is (increasingly) too short.

STEPHEN PARKER

Every social science discipline has a sub-specialty about crime.  We’ve touched on some in episode 9 on Why People Obey The Law. 

One of the fathers of sociology, Emile Durkheim, argued that a limited amount of crime was a good thing.  It reminds everyone of society’s norms and promotes social integration. 

And criminal law contributes to the collective conscience: so as societies become more pluralistic, and people have quite different outlooks on life, the criminal law is a kind of unifier – a moral compass. 

STEPHEN BOTTOMLEY

In contrast, Karl Marx in his later writings saw law as a form of social control in an unfair system.  And criminal law is at the sharp end of this repressive function of law, he argued, keeping the oppressed masses in their place and enabling those with capital to hold onto it.   

STEPHEN PARKER

Some philosophers see criminal law as a test case for whether there is a natural law sitting behind the law as enacted.   In the Nuremberg trials in 1945, Nazi leaders were convicted even though their acts were not crimes under German Law at the time, because international law would from now on recognise crimes against humanity.

STEPHEN BOTTOMLEY

We’ll take a positivist approach in this episode.  A crime is a crime if a legal system calls it a crime, because there is plenty to talk about anyway, without going into moral or cultural debates.   

STEPHEN PARKER

And there are plenty of them these days!  The Australian Bureau of Statistics has an index with 237 types of offences, for data-gathering purposes, and many have multiple offences within them.  No 1 stands on its own, however, which is Murder.  At the other end are pet registration and management offences (no 232).  If you get out and about on foot a lot, be careful not to commit no 225 (pedestrian offences).  The list changes with the times, as you can see with no 93 (identity theft) and 94 (online scams).  

 STEPHEN BOTTOMLEY

Criminal law has a special structure to it; procedures and rules which are not found in other branches of law. 

We’ve seen some in previous episodes, for example in episode 15 on the standard of proof.  The prosecution needs to prove guilt beyond a reasonable doubt whereas in other kinds of cases the party bringing it need only prove it on the balance of probabilities. 

But what exactly is so different about the criminal law? 

STEPHEN PARKER

The obvious first point is that the criminal law deals with crimes, not disputes or complaints.  The law itself defines what a crime is and what behaviour amounts to one.   

So, for example, the American Model Penal Code defines a crime as ‘conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests’. 

Civil code legal systems, such as in Europe, make it easy.  All crimes are set out comprehensively in a code and labelled as crimes.  And common law systems these days usually have something called a Crimes Act or Criminal Law Act, even though there remain some crimes “at common law”; in other words produced by the courts over the ages rather than legislated by a parliament. 

STEPHEN BOTTOMLEY

In addition to the Crimes Act, many other statutes specify their own criminal acts, relevant to their subject matter.  In Australia, the Corporations Act – for example – contains many criminal offences that are specific to companies and the people who run them.

STEPHEN PARKER

Another point of difference is that criminal law is part of a society’s public law.  Usually, the State, or the Crown, or the People, is named as the prosecutor; not the victim.  In other words, the parties to the case are usually the State (represented by a public prosecutor) and one or more defendants.  It’s true that there can sometimes still be private prosecutions, but these days there is usually some way for the State to intervene, to take it over or to stop it. 

STEPHEN BOTTOMLEY

This contrasts with many other kinds of cases.  Tort actions, such as negligence, defamation or trespass only happen if the aggrieved person makes a claim; and the Plaintiff is free to drop it or settle it when they want.  Contract cases only happen when a party to a contract claims that a breach has caused them loss.  They don’t have to sue, and no one else is going to do it for them.   

This is why TV crime shows get it wrong when they talk about a victim ‘pressing charges’.  It is the police and the prosecutors who decide whether to lay a charge, and what the charge will be, although if the victim refuses to give evidence there may be no point in proceeding with it.

STEPHEN PARKER

So criminal law is public law, and all the thinking about it is imbued with considerations of the public interest.  The persistence of the jury in common law systems, which we discussed in Episode 6, is another example of the public’s interest in being involved in at least serious criminal matters. 

Even sentencing, which we discuss in a future episode, has an element of public interest.  It isn’t just about what the judge thinks of the behaviour or the victim.  There is also the public’s sense of outrage to be considered. 

STEPHEN BOTTOMLEY

Criminal cases contain an element of public condemnation of behaviour which is absent from other kinds of legal cases.  And this has led to the curious introduction of civil penalties and administrative offences, where the State exacts a penalty but doesn’t criminalise the offender, because the public condemnation of the behaviour is low or non-existent. 

We’ve all been late with a tax payment, (PARKER: “GUILTY”] overstayed a parking space [PARKER: “GUILTY”] or crept above the speeding limit. [PARKER: “GUILTY”] 

If every adult in society had a criminal record, the special condemnation element in criminal law would be diluted, possibly even ridiculed.  So, as society has become more complex and regulated, these middle categories of behaviour have been introduced, neither wholly civil nor criminal, allowing the criminal law to keep its special character. 

STEPHEN PARKER

Because criminal offences involve public condemnation it follows that there should also be punishment; another distinguishing feature of criminal law.   

In civil cases the usual remedy is damages, but only related to the plaintiff’s actual loss.  It’s true that in extreme examples, usually where the behaviour was deliberate or extreme, punitive damages might be awarded, over and above the loss suffered, but this still fits the general idea.  In criminal law, the strength of the condemnation is correlated with the level of punishment. 

STEPHEN BOTTOMLEY

Once a criminal case comes to court, the procedure is different, compared to civil cases.  Whereas in a private law action, the presumption is that it’s a battle of equals, criminal cases are asymmetrical. The prosecution has a duty of full disclosure.  It can’t keep some cards close to its chest, to play at a later moment, and it can’t keep hidden some inconvenient evidence. 

The State has the power and resources, so if someone is to be punished, especially with the possibility of losing their liberty, the playing field needs to be levelled. 

STEPHEN PARKER

OK.  So we know criminal law is separated out from other kinds of law.  It is public.  There are special procedures and special requirements, compared with most other kinds of cases.  Let’s delve into the components of the thing itself: the crime.  What are its elements? 

In most crimes there is a physical element and a fault element.  Traditionally, these have been called by the Latin labels of the actus reus (the guilty act) and the mens rea (the guilty mind).  These are defined for each crime by the legislation that governs that crime.

STEPHEN BOTTOMLEY

All aspects of these two elements need to be proved beyond a reasonable doubt by the prosecution before there can be a conviction. 

 
The physical element is usually an action, although it can be an omission; a failure to act where there was a duty to do so. 

The fault element is typically intention or recklessness, but with some crimes it can be negligence if it is extreme or gross.   

STEPHEN PARKER

A controversial area is where someone who has an innocent state of mind –  being neither intentional, reckless nor negligent – can still be convicted of a crime.  There are certainly examples of what are called strict or absolute liability offences, where the prosecution does not need to prove a particular mental state.

Often these are of a  less serious kind, such as speeding when you didn’t intend to go over the speed limit, and some are administrative, such as filling in a declaration incorrectly.  But others are more serious, such as sexual intercourse with a minor, so-called statutory rape. 

It might help to look at two specific crimes to illustrate all this.  First is the current definition of murder in English law.   This is the oldest definition of murder in common law systems, and is the model for many legal systems around the world.

STEPHEN BOTTOMLEY

The crime of murder is committed, where a person: 

• of sound mind and discretion (PARKER: so they must be sane) 
• unlawfully kills (PARKER: so it isn’t self-defence or other justified killing) 
• any reasonable creature (PARKER: a human being – although a weird way of putting it) 
• in being (PARKER: so born alive and breathing through their own lungs) 
• under the King’s Peace (PARKER: so obviously this is an English context, but all legal systems exempt the killing of an alien in the heat of battle as they aren’t under the nation’s jurisdiction, although a soldier still commits murder if the fighting has finished or the enemy is captured) 
• with intent to kill or cause grievous bodily harm (PARKER: in contrast to the offence of attempted murder, where only intent to kill will suffice) 

We can see here that the fault element is picked up in the fact that the person must be sane, not justified by law to kill the deceased, and intends to kill or cause grievous bodily harm. 

The physical element requires there to have been a death caused by the defendant and the victim must have been alive and breathing naturally at the time.   

Obviously there are other offences that cover homicides falling short of murder, such as manslaughter or attempted murder.  These might apply when not all the elements of murder itself are satisfied, but this gives you the idea that each crime has its own checklist, and there must be ticks in every box before a conviction. 

STEPHEN PARKER 

Let’s take another example: theft. 

In the State of Victoria, for example, under s72 of Tte Crimes Act 1958, a person steals if that person “dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. “

So going through the checklist:  

• Was the defendant dishonest?  (BOTTOMLEY: Perhaps they genuinely believed that they were the owner.)
• Did they “appropriate” it?  (BOTTOMLEY: Did they assume the rights of the owner, for example by taking it away or selling it?)  
• Was it “property” in the law’s eyes?  (BOTTOMLEY: We looked at this in episode 16 and there are numerous borderline cases; (PARKER INTERRUPTS: for example, one of Stephen Bottomley’s jokes can be property, in the unlikely event that he made it up himself. (BOTTOMLEY:  There is now a separate category of ‘intellectual property thefts’, because the normal definition of theft struggles with intangible property.  The item might be worthless in economic terms, (PARKER INTERRUPTS: again like one of your jokes) (BOTTOMLEY:  but that is taken into account in sentencing.  It is still theft, although an insanity defence might be raised.)
• Did it belong to another?  (BOTTOMLEY: Usually this is straightforward.  The victim was the property owner in law.  But as we saw in episode 16, in the common law property rights and interests are relative to each other.  So if Stephen Parker is looking after my bird-watching binoculars, and someone takes them from him, it could be theft from Stephen Parker, as he has possession and control.  It was belonging to him.)   
• Did the Defendant intend to permanently deprive the other of it?  (BOTTOMLEY: Perhaps they intended only to borrow it for a specific period.  In that case the person to whom it belonged might have a civil remedy in damages, related to the actual loss they suffered, perhaps the tort of trespass to property or the tort of conversion, but it isn’t a crime.) 

STEPHEN PARKER

We are only scratching the surface here of these two crimes, but the central point is that a detailed examination of the exact definition of each crime is required, and there are many possible ways for a prosecution to fail. 

STEPHEN BOTTOMLEY

Which leads us to Defences.   

In one sense if the Defendant is able to cast sufficient doubt on just one element of the offence, you could say that they successfully defend themselves, but really it is the prosecution that has failed to make out every element to the required standard.  Remember, there is a presumption of innocence in criminal cases, so the prosecution has to do all the work.

A good example is causation.  If I hit you and you are taken to hospital, where you are negligently given the wrong treatment and die, was it me who killed you or the doctor?  Probably the doctor.  However, if I train my pet monkey to go through a window and take your laptop, am I the cause of its “appropriation”?  The answer is yes.  With the arrival of robots, this could become a fertile area; theft by remote control. 

STEPHEN PARKER

There are however some known defences in criminal law, either general to many crimes or specific to some.  These can be as controversial as the definition of the crime itself.   

We’ve already mentioned self-defence, the scope of which seems to be increasing.  Can, for example, a person who has been subjected to prolonged serious violence by their partner, use this defence when at the moment they kill the perpetrator they were not in danger, by saying that they would be in danger in the future?  Increasingly the answer is yes. 

STEPHEN BOTTOMLEY

The defence of duress is available where you were forced to commit a crime to prevent something worse happening, but this is not usually available for murder and treason. 

STEPHEN PARKER

The defence of necessity may be available where there is a sudden and extraordinary emergency, but usually this is limited to lesser offences such as going over the speed limit to rush someone to hospital. 

STEPHEN BOTTOMLEY

Insanity is a longstanding and controversial defence.  From one perspective, the Defendant may be unable to form the required mental element if they are insane, but for a host of reasons the law has wanted to pick out insanity as a defence so as to regulate what needs to be proved. 

The classic test looked for whether the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know that what he was doing was wrong. 

All legal systems have their own version of a mental impairment defence, and most do not allow it where the impairment was due to the use of alcohol or drugs. 

STEPHEN PARKER

Law students for some reason like to study automatism as a defence.  If I am being stung by a swarm of bees and thrash out wildly, do I commit an assault if I bash you in the process?  The answer is no if my actions are involuntary. 

Recently, there have been examples of parasomnia or sleep-walking, where defendants were acquitted, or prosecutions abandoned, when it became clear they were asleep at the time.  Of course, a defendant can’t simply claim this: they have to be believed, and this may well require evidence of prior regular sleep-walking.

STEPHEN BOTTOMLEY

The burden of proof with defences can be complicated in practice.  Basically, if the defendant does enough to raise a reasonable possibility of a defence then it is for the prosecution to disprove it beyond a reasonable doubt.   The defendant has an evidential onus, but the prosecution then has the legal onus. 

If the defendant refuses to say anything at all, but the prosecution case includes information that could amount to a defence, it will still be up to the prosecution to disprove it. 

STEPHEN PARKER

So Steve, this is enough to introduce our listeners to the special place and requirements of criminal law in a legal system, but there are so many fascinating questions left to be considered in the future.   

Should the criminal law be used to enforce public morality if there is no identifiable victim?  In the past at least, pornography and homosexuality have been two hugely controversial issues.  Euthanasia is a current one. 

STEPHEN BOTTOMLEY

And what if there is no identifiable human perpetrator? How should the criminal law deal with harms caused by AI-driven machines, such as self-driving motor vehicles? 

STEPHEN PARKER

What should be the minimum age for a person to be convicted of a crime?  The age of criminal responsibility now varies around the world and this is a live debate in some countries.  Should it be 12, 14, 15, 16?  Should it be lower, but with the onus on the prosecution to show that the child knew what they were doing and that it was wrong? 

STEPHEN BOTTOMLEY

Are crime rates going up or down?  There are some interesting ways one can weight crimes according to their severity and come up with a cumulative points total, to assess changes over time. 

STEPHEN PARKER

Does the criminal law actually achieve its purpose?  Historically there has been a firm belief it is better that 10 guilty people go free than one innocent person be convicted.  But do we still believe this in practice, and what actually is the error rate in the criminal justice system 

STEPHEN BOTTOMLEY

And then we get to punishment.  Does it deter people?  Does it rehabilitate them?  Does it satisfy the victims?  Does it cost society more than it benefits it?  Is it all just a politicised mess? 

STEPHEN PARKER

One way or another in future episodes we’ll pick up these fascinating questions about … law in context.