Law OF CrimesCrime: Scope and DefinitionDifference Between Crime and CivilWrongHarikrishnan.P.Karuvelil6762 nd SemesterWhat is crime?It is very difficult to give a correct and precise definition of crime .scholars such asGlanville Williams, Russell and JW Cecil Turner has admitted the impossibility of havinga workable content based on the definition of a crime.They have pointed out that the definition of crime is one of the thorny intellectualproblems of law.As stated above it is very difficult to have a precise definition of crime. But nevertheless,a few scholars from time to time have defined the term ‘Crime’ focusing on one or theother dimension of the prohibited act. Austin defines crime as any act or omission whichthe law punishes. Sir William Blackstone has given 2 definitions of crime. He has definedthe first as an act committed or omitted in violation of public law forbidding orcommanding it. The second definition given by him perhaps visualizing the inadequacyof his first definition defined crime in terms of public rights and duties. According tohim crime is ‘a violation of the public rights and duties due to the whole communityconsidered as a community. Sergeant Stephen while editing Blackstone’s commentariesslightly modified the definition and reconstructed it as: ‘A crime is a violation of a right,considered in reference to the evil tendency of such violations as regards thecommunity at large’.But these definitions have emphasized on only one aspect of crime, namely, the harm orinjury to the community. This is true for many crimes but not for all crimes. We can saythat every illegal act, even a mere breach may usually injure the community. Hence itcannot be said with accuracy that, if a legal wrong is a crime it tends to cause harm tothe community.The other question that scholars faced was that, if crime can be defined in terms ofmorality? Can we limit the idea of crime to those legal actions which violently offend ourmoral feelings? Here again, although most of the crimes are moral wrongs as well, thereare many cases in which the test of morality will not stand scrutiny. For example a mereomission to keep a highway in repair shocks nobody, but it is a crime, whilst manygrossly cruel and fraudulent breaches of trust are just civil wrongs. These act which maybe grossly cruel but they do not breach the penal law at all. Similarly acts likeingratitude, hardheartness, and insensitivity to the suffering of others have never beencrimes.Further there have been man modern definitions of crime. John Austin defined crime asa wrong which is persuaded by the sovereign or his in subordinated in a crime. But it isobvious that this definition is not of substance but of procedure. Then Professor Kenny,with a view of overcoming the lacuna modified the Austinian definition as ‘Crimes arewrong whose sanction is punitive and is in no way remissible by any private person, butis remissible by the crown alone, if remissible at all’. But even this definition has beencriticized even though being considered a very good definition as it is highly technicaland being based on mere procedure. Some other noteworthy definitions of crimes havebeen given by Prof Paton: ‘In crime we find the normal marks are that the state haspower to control the procedure to remit the penalty or to inflict punishment’.Prof SW Keeton stated that: ‘A crime today would seem to be any undesirable act, whichthe state finds the most convenience to correct by the institution of proceeding for theinfliction of a penalty, instead of leaving the remedy to the discretion of some injuredperson’. Crime is any form of conduct which is forbidden by law under pain ofpunishment.Section 40 of the Indian Penal Code 1860 rightly states that ‘an offence denotes a thingmade punishable by the code’. An existing offence in the IPC will cease to exist, themoment the state repeals or invalidates it.Professor Goodhart has defined a crime as any act which is punished by the state. It isstill the protection of public welfare rather than the support of private interests, whichis the dominant purpose of this branch of law.In Halsbury’s laws of England, crime is defined as follows:’ a crime is an unlawful act ordefault which is an offence against the public and renders the person guilty of the act ordefault liable to the punishment’.Crime is a serious anti-social to which the state reacts consciously by inflicting pain(either punishment or correctional methods) 26. Michael and Adler state that: ‘the mostprecise and least ambiguous definition of crime is that which defines it as behaviorwhich is prohibited by the criminal code’.BA Wrotley combines moral and legal element in his definition of crime:’ a crime is anoffence against the law, and is usually an offense against morality, against a man’s socialduty 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 conductwhich the penal policy of the state seeks to prevent28.It is evident from those definitions of crime that’s it is difficult to have a precisedefinition of crime that embraces the many acts and omissions which are criminal innature and which at the same time excludes all those acts and omissions that are not. Anact or omission, no matter what the degree of immorality, reprehensibility, orindecency, does not amount to a crime unless it is prohibited by penal law. Ordinarily, acrime is a wrong which affects the security and well-being of the public generally so thatthe public has an interest in its suppression. Nevertheless, these definitions enable us todescribe it and to identify its a few characteristics, and thereby to understand thenature of crime. JW Cecil Turner has given the following description of a crime:… It is a broadly accurate description to say that nearly every instance of crimepresents all of the following characteristics:(1) That it is harm, brought about by human conduct, which the sovereign power inthe state desires to prevent.(2) That among the measures of prevention selected is the threat of punishment.(3) That legal proceeding of a special kind are employed to decide whether theperson accused did in fact cause the harm, and is, according to law, to be heldlegally punishable for doing so.29An extensive and through analysis of crimes, according to Jerome Hall, leads to adescription of the following seven interrelated and overlapping differentiae ofcrime. 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’, ie, intentional or reckless action or inaction thatbrings 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 ‘casual’ relation between the legally prohibited harm andvoluntary misconduct.(7) There must be legally prescribed ‘punishment’ or threat of punishment.30These definitions, nevertheless, afford us an adequate basis for a proper study ofthe subject.The Scope of Criminal LawThe main goal of this section is to comment on when the use of criminal law, asopposed to other commonly used branches of law, is desirable to regulatespecific behaviour. To achieve this purpose it will be useful to identify specificcategories of acts which are best regulated through criminal law and categoriesof acts where criminal law is likely to perform poorly. Furthermore, it will behelpful to focus on traditional or common fields of regulation and/orpunishment, because we have more knowledge about these fields. These includecommon law crimes, ordinary accidents, and civil infractions and conduct crimes.Categorizing and studying the regulation/punishment of acts which belong tothese fields will allow the determination of factors which cause criminal law toachieve desirable outcomes.Acts can be categorized in infinitely many ways. The main objective is to choosedimensions of characterization, which will allow the construction of meaningfulcategories that enable the identification of trends in specifying the scope ofcriminal law. In particular, to categorize acts, initially focus on three maindimensions: (i) intent, (ii) harm, and (iii) whether the act generates actual harmor only an expectation of harm.Using this terminology we can partition acts into the following five generalcategories:(1.) Intentional Acts Resulting in High Harm,(2.) Intentional Acts Resulting in Low Harm,(3.) Acts Resulting in Unintended Harms,(4.) Acts presumably intended to cause harm but fail, and(5.) Dangerous acts presumably committed with intention to achieve harmlessresults.COMPARING CIVIL LAW AND CRIMINAL LAWCriminal law exists in a larger legal framework than civil law. Understanding thecontext of any legal subject and its relationship to other legal subjects isimportant. It is common to distinguish between criminal law and civil law. Whileimportant differences exist between the two, there are also many similarities.The source of most of the dissimilarities between criminal law and civil law isThe differing objectives of the two. There are many purposes of criminal law.First, it is intended to deter behaviour that society has determined to beundesirable. A second purpose of criminal law is to punish those who take theacts deemed undesirable by society, specifically, to give victims and thecommunity at large a sense of retribution. A third purpose is to incapacitate,through imprisonment, electronic monitoring, death, and other methods,offenders. Fourth, the rehabilitation of offenders is also an objective in manycases. Arguably, there is only one purpose, to prevent antisocial behaviour.Under this theory, punishment is used as a tool to achieve the primary goal ofpreventing antisocial behaviour. The purposes of punishing individuals whoviolate criminal laws are discussed in greater detail in the next chapter.In contrast, civil law has as its primary purpose the compensation of thoseinjured by someone else’s behaviour. It is argued that the real purpose of civillaw is the same as that of criminal law. By allowing lawsuits against individualswho have behaved in a manner inconsistent with society’s rules, civil lawactually acts to prevent undesirable behaviour. However, prevention of badbehaviour may be more the consequence of civil law than the purpose. Tounderstand this you must know something about civil law.Criminal Law Civil LawPurposesRemediesPartiesStandard of ProofBurdensRetribution,deterrence,incapacitation, rehabilitationRemedies Fines, restitution,imprisonment,counselling, rehabilitation,injunctions, capital punishmentParties Government and individualDefendantBeyond a reasonable doubtGovernment bears burden ofproof and process designed toprotect rights of defendant(due process)Compensation and deterrenceDamages and equitable reliefIndividual plaintiff and defendant(or government as individual)Preponderance of evidencePlaintiff bears burden of proof andparties treated equally in processMany definitions of civil law exist. The American Heritage Dictionary of the EnglishLanguage (1980) defines it as “The body of law dealing with the rights of privatecitizens.”Black’s Law Dictionary, Fifth Edition (1979) defines civil law as “Lawsconcerned with civil or private rights and remedies, as contrasted with criminal laws.”This author prefers a negative definition similar to the latter—such as, civil law is alllaw except that which is criminal law. Whatever definition you accept, many areas oflaw fall under the umbrella of civil law.Two of the largest categories of civil law are contract law and tort law.Contract law is a branch of civil law that deals with agreements between two orMore parties. You probably have already entered into a contract. Apartment leases,Credit card agreements and book-of- the-month club agreements are all contracts. ToHave a contract; two or more people must agree to behave in a specific manner. If youViolate your obligation under a contract, you have committed a civil wrong called aBreach of contract. The landlord may sue you for your breach and receive damages.Damages are monetary compensation for loss. Tort law is a branch of civil law that isconcerned with civil wrongs but not contract actions. You have likely seen television adsfor personal injury attorneys. These attorneys are practicing in the tort law area. A civilwrong, other than a breach of contract, is known as a tort. Torts are different fromcontracts in that the duty owed another party in contract law is created by the partiesthrough their agreement. In tort law, the duty is imposed by the law. For example, at aparty you are struck and injured by a beer bottle heaved by an intoxicated partier: Atort has been committed. The partier is known as a tortfeasor, which is the term used todescribe one who commits a tort. Yet, why does that partier owe you a duty not to strikeyou with a flying beer bottle? You have not entered into a contract with the partierwhereby he has promised not to harm you in this manner. The answer is that the lawimposes the duty to act with caution when it is possible to injure another or cause injuryto another’s property. This duty is imposed upon all people at all times. The lawrequires that we all act reasonably when conducting our lives. When a person fails to actreasonably and unintentionally injures another, that person is responsible for anegligent tort. Automobile accidents and medical malpractice are examples of negligenttorts. When a person injures another intentionally, an intentional tort has occurred.Many intentional torts are also crimes, and this is one zone where criminal and commonlaw coexist. If at that fraternity party you make a partier angry, and as a result heintentionally strikes you with the bottle, then he has committed both a crime and anintentional tort. Although criminal law may impose a jail sentence (or other punitivemeasures), tort law normally seeks only to compensate you for your injury. So, if yousuffered $1,000 in medical bills to repair your broken nose, you would be entitled tothat amount; but the partier cannot be sentenced to jail or otherwise be punishedwithin the civil tort action. A separate criminal charge may be filed by the government.Although less common, tort negligence and criminal law also intersect. Extremenegligence, such as driving when drunk, that results in death or injuries can lead to bothcivil and criminal liabilities. The final type of tort is the strict liability tort. In thesesituations liability exists even though the tortfeasor acted with extreme caution and didnot intend to cause harm. An example of a strict liability tort is blasting. Whenever amining or demolition company uses blasting, it is liable for any injuries or damages itcauses to property, even if the company exercises extreme caution. Damages that areawarded (won) in a lawsuit to compensate a party for actual loss are compensatorydamages. Compensatory damages do just what the name states— compensate theinjured party. However, another type of damages exists— punitive damages. Contraryto what you have learned so far, punitive damages are awarded in civil suits and areintended to prevent undesirable behaviour by punishing those who commit outrageousacts. Punitive damages are often requested by plaintiffs in lawsuits but are rarelyawarded. Do not worry if the idea of punitive damages confuses you because it appearsto be a criminal law concept. Such damages are penal in nature, and many lawyers arguethat they should not be allowed because a person can end up punished twice—oncewhen convicted and sentenced by a criminal court and again by a civil court if punitiveare awarded. Yet punitive damages have been upheld in most instances by the SupremeCourt. A note of caution: Do not get the concept of punitive damages mixed up withrestitution or fines, which are discussed in the chapter on punishment. Finally, a fewother differences between criminal law and civil law should be mentioned. First, in civillaw the person who brings the lawsuit (the plaintiff) is the person who was injured. Forexample, suppose you are at the grocery store doing you’re shopping and request theassistance of a checkout person who has recently divorced a spouse who looks verymuch like you. The checker immediately becomes enraged and vents all of his anger forhis ex-wife on you by striking you with a box of cereal, which he was checking. He hascommitted a possible assault and battery in both tort law (these are intentional torts)and criminal law. However, in tort law you must sue the checker yourself to recover anylosses you suffer.In criminal law, on the other hand, the government—whether national, state, orlocal—is always the party that files criminal charges. Often you will hear people say thatthey have filed criminal charges against someone. This statement is not accurate. Whatthey have usually done is file a complaint; the government determines whether criminalcharges are to be filed. This is because a violation of criminal law is characterized as anattack on the citizens of a state (or the federal government) and, as such, is a violation ofpublic, not private, law. Because it is public, the decision to file—or not file—is made bya public official, the prosecutor. So, in our example, you have to contact either the policeor your local prosecutor to have a criminal action brought against the checker. Civilcases are entitled citizen v. citizen; in criminal law, it is government (i.e., State of UP) v.citizen. In some jurisdictions criminal actions are brought under the name of the people.The two fields also differ in what is required to have a successful case. In civil law onemust show actual injury to win. If, in our grocery store example, the box of cerealmissed your head and you suffered no injury (damages), you would not have a civil suit.However, a criminal action for assault or battery may still be brought, as no injury isrequired in criminal law. This is because the purpose of criminal law is to prevent thistype of conduct, not to compensate for actual injuries. To turn this idea around, thereare many instances in which a person’s negligence could be subject to a civil cause ofaction, but not to a criminal action. If a person accidentally strikes another during agame of golf with a golf ball, causing injury, the injured party may sue for the concussionreceived; but no purpose would be served by prosecuting the individual who hit theball. No deterrent effect is achieved, as there was no intent to cause the injury. In mostcases, society has made the determination (through its criminal laws) that a greateramount of culpability should be required for criminal liability than for civil. Criminallaw is usually more concerned with the immorality of an act than is tort law. This isconsistent with the goals of the two disciplines, as it is easier to prevent intentional actsthan accidental ones. However, the difference between civil and criminal proceeding liein the respective degree of control exercised over them by the sovereign authority in thestate, not so much in respect of their commencement as at their termination. In criminalprosecutions, the state is the controlling authority. The sovereign authority in the statealone exercises the high prerogative of giving pardon to the criminal. The sanctions ofcriminal law, such as punishments, are remissible by the crown in England and by thepresident of the Indian union in the republic of India. Punishments are not remissible bprivate persons.ConclusionThe definition of crime is very hard to define due to the various natures of cases. Crimesare of a different order from other wrongs and social controls. Civil disputes often areformally resolved in litigation between the disputants; crimes can result in punishmentby the state.