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Principles - what is crime?

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Introduction a definition?

A crime is conduct defined as such by statute or by common law.
 

Every textbook writer tries to define 'crime'.  It is difficult to attach an exact definition to something which is so diverse.
 

There are motoring offences ranging from simple parking errors, to death by dangerous driving.  Offences against the person range from a slap to murder.

 

Criminal law is usually found under the heading of public law, because it is against the State and is punished by the State.

 

First, it is an offence against the public, although it might affect only one person.

 

Secondly, that the person who committed an offence will be punished in some manner prescribed by the State.

 

Board of Trade v Owen (1957)

In Owen the court considered that the correct definition of a crime in the criminal law was the following passage from Halsbury's Laws of England.

"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."

We have some reservations about Lord Tucker's definition.

 

Whilst this is the standard definition, we feel it does not encompass modern attitudes to crime, for example, what about compensation?  What about methods of diversion of young persons from punishment?  What about restorative justice?

 

The Model Penal Code of the American Law Institute

 

We prefer the following definition to the one in Board of Trade v Owen, perhaps you can see why.

 states as its "general purposes" (inter alia):

"(a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests;

 (b) to subject to public control persons whose conduct indicates that they are disposed to commit crimes;"

 

Why do we need a definition?

 

First, it is necessary for a broad definition to establish mode of trial.

 

Secondly, it is administratively important.  For example, the enforcement of Magistrates' fines is the recovery of a civil debt, and the police cannot arrest a fine defaulter unless the officer is in possession of a warrant.

 

Classification of Offences

Crimes may be classified either by their mode of trial or by the arrest procedure.

 

1. Method of trial

 

(a) Indictable offences

 

These are the serious offences, triable by judge and jury, for which an Indictment sets out the charges against the person(s) sent to the Crown Court for the trial.

 

(b) Summary offences

These are offences only triable in the magistrates' courts.

 

(c) "Hybrid" offences

 

These are offences created by statute and may be tried either summarily or on indictment.  Sometimes called 'either-way offences'.

 

2. Power to arrest

Previous classifications (e.g. arrestable offences) under the Criminal Law Act 1967 no longer have any relevance.

 

Police can arrest for all offences if it is necessary

 

Formerly more serious offences were specified by PACE as arrestable offences but the classification has no significance since the Serious Organised Crime Act 2005

 

Citizens' arrest

Any person can arrest in many circumstances if the offence is indictable

Elements of a crime

Actus reus and mens rea

In most crimes there must be the proscribed physical element; a wrongful act (the actus reus) and the mental element; a guilty mind (mens rea), and if both elements are not present there is no crime.

 

Strict liability

This does not embrace offences of strict liability and absolute liability where the above rule does not apply.

 

1. Mens Rea

 

Mens Rea means the guilty mind or wrongful intention and, is discovered in the definition of the offence; it is words like 'intention', 'recklessly', 'with malice aforethought' and so forth.

 

When interpreting statutes, it is a Common Law presumption that mens rea is necessary in all crimes. This rule can only be replaced if an Act of Parliament expressly or impliedly excludes the necessity of mens rea Sweet v Parsley (1970).

 

2. Actus Reus

 

By removing the mens rea words from an offence (and any defence) leaves the actus reus of a crime.

 

This will include all circumstances, the conduct of the offender, and the consequences.

 

Always consequences?

Consequences do not always flow from a crime, with conspiracy there is simply an agreement and no steps necessarily taken towards the commission of a full offence.

 

Some crimes are described as 'result' crimes and the conduct of the accused is linked to the result by the legal and factual causation.  Without a result the concept of causation withers.

 

So a state of affairs crime, for example, being found drunk in a public place, requires no causation, in fact it requires no actus reus at all, let alone mens rea.  The crime is simply "being found".

 

The actus reus of burglary is the entering (conduct) a building as a trespasser (circumstances) theft, rape, unlawful damage or assault (the consequences). The mens rea is the intention of committing theft, rape, unlawful damage or assault when in the building.   To enter a building without this intention is only a tort of trespass.

 

Crime =

Actus reus + Mens rea + Absence of a defence.

 

Woolmington v DPP (1935)

The prosecution must prove the existence of the actus reus and mens rea beyond reasonable doubt.

 

Strict Liability

 

In offences of strict or absolute liability mens rea is not essential.

 

For example, the Health and Safety at Work Act says that machines must have safety covers, the employers are strictly liable.  Even if the employer asks an outside contractor to supervise the safety regulations the employers are still liable if the contractors do not comply with the statutory requirements.

 

Strict liability arises when the crime consists of performing a forbidden act or not performing a statutory duty.

 

Meah v Roberts (1977)

D sold two children glasses of caustic soda instead of lemonade. D, Meah, was found guilty of selling food unfit for human consumption, contrary to the Food and Drug Act 1955, despite another person being responsible for the cleaning fluid being in the lemonade bottle.

 

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