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Sunday, May 30, 2021

Crime || Definitions of Crime by Various Scholars

 


It is difficult to have a precise definition of 'crime'. Nevertheless, a few scholars, from time to time, focusing on one or the other dimension of a prohibited act, defined the term 'crime'. With a view to acquainting ourselves with nature and different facets of 'crime', it will be worthwhile to have an overview of some of the hitherto offered prominent definitions of 'crime'.


First of all, let us examine the two definitions given by Sir William Blackstone in his classical textbook of English law, Commentaries on the Laws of England. He has defined it first 'as an act committed or omitted in violation of public law forbidding or commanding it'. However, the term 'public law' has different accepted connotations. Austin, for example, perceived 'public law' as identical with constitutional law. If this meaning is accepted, crimes would cover only political offences. This view not only narrows scope of the definition of crime but will also make the definition of no practical use. While some jurists equate 'public law' with 'positive law' or 'municipal law'- law made by the state. With this interpretation of 'public law', the definition given by Blackstone becomes too wide as it will take in its ambit every legal wrong or violation of (positive) law.


Perhaps Blackstone visualised the inadequacy of his first definition of crime, and he then defined crime in terms of public rights and duties. According to him, crime is 'a violation of the public rights and duties due to the whole community considered as a community'. Sergeant Stephen, while editing Blackstone's Commentaries, slightly modified the definition and reconstructed it to read as: 'A crime is a violation of a right, considered in reference to the evil tendency of such violation as regards the community at large'. This definition is also inaccurate for the reason that the essential characteristic of crime is not the infringement of rights as in civil cases but, the doing of prohibited acts. Enforcement of rights belongs to the administration of civil justice. Instances of crimes which do not violate anyone's right may be found in offences, such as, being found in possession of housebreaking tools by night or possession of counterfeit coins.


Both Blackstone and Stephen have emphasised one aspect of crime in the above definitions, namely, harm or injury to the community. This aspect is true of many crimes, but not all. Even transactions of civil nature will injure the community. In a way, we can say that every illegal act, even a mere breach would usually injure the community. Again, there may be certain actions of individuals, which harm a particular segment of the society, but would nevertheless not be criminal. For example, in today's world, a man may without committing any crime at all, bring about greater calamity to the society by breach of trust or by negligent management of a company's affairs, than by committing an act of theft, such as stealing a pocket handkerchief, though the former is a serious crime. Hence, it cannot be said with accuracy, that a legal wrong is a crime, if it tends to cause evil to the community.


John Gillin, a sociologist, also defined crime in terms of 'harm' to society. He said:


...[A]n act that has been shown to be actually harmful to society, or that is believed to be socially harmful by a group of people that has the power to enforce its beliefs, and that places such act under the ban of positive penalties.


The next question is, can we define a crime in terms of morality? Can we limit the idea of crime to those legal wrongs which violently offend our moral feelings? Here again, although most of the crimes are moral wrongs as well, there are many cases in which the test of morality will not stand scrutiny. For example, although treason is legally the gravest of all crimes, it has very often been applied in the past against great patriots and national leaders like George Washington and Mahatma Gandhi. A mere omission to keep a highway in repair shocks nobody, but it is a crime, whilst many grossly cruel and fraudulent breaches of trust are mere civil wrongs. Directors of a company may ruin the company by gross negligence, bringing many shareholders to poverty and yet incur no criminal liability. A conduct may, indeed be grossly cruel and yet be no breach of penal law at all. A man, for example, who is a good swimmer callously stands by and watches a child drowning in a pond, would be guilty of committing a grossly wicked immoral act which may arouse universal indignation but by no standards would he be criminally liable. Similarly, immoral acts like ingratitude, hard-heartedness, insensitivity to the sufferings of others have never been crimes. Drafters of the Indian Penal Code rightly observed:


...[W]e cannot admit that a Penal Code is by any means to be considered as a body of ethics; that the legislature ought to punish acts merely because those act s are immoral.... Many things, which are not punishable, are morally worse than many things, which are punishable. The man who treats a generous benefactor with gross ingratitude and inso- lence deserves more severe reprehension than the man who aims a blow in passion, or breaks a window in a frolic, yet we have punishments for assault and mischief, and none for ingratitude. The rich man who refuses a mouthful of rice to save a fellow-creature from death may be a far worse than the starving wretch who snatches and devours the rice; yet we punish the latter for theft, and we do not punish the former for hard-heartedness.


Further, defining crime on the basis of purported immorality encounters with a problem having no convincing answer, i.e. whose morality should form the benchmark for criminalization? The issue of (de)criminalisation of consensual homosexuality, for example, has evoked different responses and answers by the liberal, the paternalist, and by the legal moralist. Criminalisation of an act simply on the ground of its immoral nature has been the subject of vigorous debate.


Another important distinction between crimes and civil wrongs is said to lie in the different types of proceedings followed separately for each. The object of criminal procedure is always punishment, i.e. the convicted offender is made to suffer the punishment, which is inflicted on him not for the sake of redressal, but for the sake of example. The inevitability of punishment is its indelible imprint. The object of civil proceedings, on the other hand, is compensation or reparation. Restitution in integrum(restoration to the original position) is one of the basic principles of compensation in civil suits for damages. But it should be remembered that there are certain types of civil actions in which exemplary damages are awarded against wrongdoers by courts by way of punishment.


A peculiar type of proceeding known as penal action, which formerly prevailed in England, belonged to the civil procedure, although its avowed object was punishment of the wrongdoer. Under this early system, pecuniary penalties can be recovered in some cases by any person who sues the doers of various prohibited acts. Although this practice was called penal action, for it was against persons who had committed certain specified criminal acts, it was essentially of a civil nature, for the action was for the recovery of money from the wrongdoer by way of penalty.


The attempted distinction drawn between civil and criminal proceedings on the ground that the former enriches the individual, is also not true in all cases. In certain exclusively coercive civil actions for the recovery of debts, debtors are imprisoned, although, it will not enrich the plaintiffs.


However, the difference between civil and criminal proceedings lie in the respective degrees of control exercised over them by the sovereign authority in the state, not so much in respect of their commencement as at their termination. In criminal prosecutions, the state is the controlling authority. The sovereign authority in the state alone exercises the high prerogative of giving pardon to the criminal. The sanctions of criminal law, such as punishments, are remissible by the Crown in England and by the President of India in the Republic of India. Punishments are not remissible by private persons. Compromise is possible in civil suits, whereas in a criminal procedure, the wrongdoer can escape his liability only by suffering. Probably influenced by the degree of interference by the state in civil and criminal proceedings, some jurists defined crimes in terms of nature of the proceedings involved therein. John Austin, for example, said:


A wrong which is pursued by the sovereign or his subordinates is a crime. A wrong which is pursued at the discretion of the injured party and his representatives is a civil injury.


It is obvious that this definition is not of substance but of procedure. Further, it does not explain a number of crimes known to criminal law that allow the prosecution to initiate cases only at the instance of the injured party as in torts. No court, for example, will take cognisance of the offence of adultery and of criminal elope- ment, contrary to ss 497 and 498 of the Indian Penal Code (IPC), except upon a complaint made by the husband of the woman.


Professor Kenny, plausibly with a view to overcoming the lacuna, modified the Austinian perception of crime and stated: 'Crimes are wrongs whose sanction is punitive and is in no way remissible by any private person, but is remissible by the Crown alone, if remissible at all'. But even this definition of Kenny, which was till recently considered as a very good definition, has been criticised as highly technical, being based on mere procedure. Winfield thought it led to a vicious circle: 'What is a crime? Something that the Crown alone can pardon. What is that the Crown alone can pardon? A crime.' It has been pointed out that if in a democratic state, like England or India, the Parliament takes away the powers of the Crown or of the Head of the State to give pardons, the definition loses its ground. It also fails when it is applied to the IPC which has incorporated a number of offences that are remissible by individuals without even the intervention of the court. Obviously, in such offences, private individuals, and not the state, are allowed to remit the punishment. However, the controlling power of the state with regard to criminal prosecutions is an undeniable fact.


Other noteworthy modern definitions of a crime are discussed below.

According to Prof Paton: 'In crime we find that the normal marks are that the State has power to control the procedure to remit the penalty or to inflict punishment'. Similarly, Prof SW Keeton has stated that: 'A crime today would seem to be any undesirable act, which the state finds most convenient to correct by the institu- tion of proceedings for the infliction of a penalty, instead of leaving the remedy to the discretion of some in- jured person'. Crime is any form of conduct which is forbidden by law under pain of punishment.


Section 40 of the rightly states that 'an offence denotes a thing made punishable by the Code'. An existing offence in the IPC will cease to exist, the moment the state repeals or invalidates it.


Professor Goodhart has defined crime as any act which is punished by the state. It is still the protection of the public welfare rather than the support of private interests, which is the dominant purpose of this branch of the law.


In Halsbury's Laws of England, crime is defined as follows: 'A crime is an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment'.


Crime is a serious anti-social action to which the state reacts consciously by inflicting pain (either punishment or correctional measures). Michael and Adler state that: 'the most precise and least ambiguous definition of crime is that which defines it as behaviour which is prohibited by the criminal code'.


BA Wrotley combines moral and legal element in his definition of crime: 'A crime is an offence against the law, and is usually an offence against morality, against a man's social duty to his fellow members of society; it renders the offender liable to punishment'.


Russell in his classic work On Crimes, has said that crime is the result of human conduct which the penal policy of the state seeks to prevent.


It is evident from these definitions of crime that it is difficult to have a precise definition of 'crime' that em- braces the many act s and omissions which are criminal in nature and which at the same time excludes all those acts and omissions that are not. An act or omission, no matter what the degree of immorality, repre- hensibility, or indecency, does not amount to a crime unless it is prohibited by penal law. Ordinarily, a crime is a wrong which affects the security and well-being of the public generally so that the public has an interest in its suppression. It, however, needs to stress that there cannot be a straightforward or determinate checklist of criteria for either identifying or defining the concept of 'crime' in universal terms. 'We', a scholar of re- pute advises, 'should resist the desire to find some single concept or value that will capture the essence of crime or the essential characteristic in virtue of which crimes are properly punished in favour of a pluralism that recognises a diversity of reasons for criminalisation, matching the diversity of kinds of wrong which can legitimately be the criminal law's business'.


Nevertheless, these definitions enable us to describe 'crime' and to identify its prominent characteristics, and thereby to understand nature of crime. JW Cecil Turner has given the following description of a crime:


...[I]t is a broadly accurate description to say that nearly every instance of crime presents all of the three following characteristics: (1) that it is a harm, brought about by human conduct, which the sovereign power in the State desires to prevent; (2) that among the measures of prevention selected is the threat of punishment; (3) that legal proceedings of a special kind are employed to decide whether the person accused did in fact cause the harm, and is, according to law, to be held legally punishable for doing so.


An extensive and thorough analysis of crimes, according to Jerome Hall, leads to a description of the following seven interrelated and overlapping differentiae of crime. These are:


  1. There must be some external consequences or 'harm' to 'social interests'.

  2. The harm must be 'prohibited' by penal law.

  3. There must be 'conduct', i.e. intentional or reckless action or inaction that brings the prohibited 'harm'.

  4. There must be 'mens rea' or 'criminal intent'.

  5. There must be 'concurrence' of mens rea and conduct.

  6. There must be a 'causal' relation between the legally prohibited harm and the voluntary mis- conduct.

  7. There must be legally prescribed 'punishment' or threat of punishment.33


These definitions, nevertheless, afford us an adequate basis for a proper study of the subject.


(The content of this post is taken from PSA Pillai’s Criminal Law. The reading of this post is just for research and educational purposes and it is not being used for any commercial purpose)


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