Criminal Law
Criminal Jurisprudence - Underlying Concepts
Procedural Principles
Prosecuting a criminal trial is very different to running a civil law case as plaintiff. The prosecutor does not act as an adversary of the defendant in the same sense as a plaintiff’s barrister, but is required to present all the evidence available to him/her and to ensure that the prosecution is fair. The prosecutor is to be frank with the court about flaws in their case. Typically this is done by a person employed by a government body such as the Police or the Director of Public Prosecutions. Private prosecutions are also possible, circumventing all involvement of government bodies, although because of the standard of proof required, it would be extremely difficult to run a prosecution except with the investigative powers of the police available.
In dealing with crimes the police only lay charges if they believe that there is a reasonable chance of success at trial. In reaching that point they have to ensure not only that they can prove a crime has been committed and is causally linked to the defendant, but they must overcome a number of evidentiary hurdles.
Evidentiary Principles
Criminal Intent
You may have heard the Latin phrase Mens Rea, which means “guilty mind.” This refers to an intention to do something wrong on the part of the alleged offender in question. The guilty mindset must apply to some part of the series of actions leading to the crime, but not necessarily all of them.
The level of intentionality in a wrongful act or omission is paramount to a successful prosecution. If a person acts in negligence, then they cannot be said to have committed a crime as they did not form the necessary purposeful mindset as to the commission of a crime. It does not matter how many people suffer or what the loss is to the victim, or what the gain is to the perpetrator, if the specific intention to commit the crime is not evident, then there has been no crime. A wrong without a direct and specific intent to commit the wrong is merely a tort. A tort can still be a tort if there is complete criminal intent, but a crime is not a crime without it. This aspect of the law is vital to maintaining the moral underpinnings of the criminal law, as without it a person could be convicted of crimes they had not the slightest intention to cause or be involved in, and which a mere slip-up or lack of care led to.
This point leads into a question of whether the defendant was in sufficient control of their actions and thoughts at the time. There is no automatic exoneration for anyone who is affected by drugs or alcohol or mental illness. However, there is allowance that a person may be so heavily affected that they can no longer understand the nature or effect of their actions such that there is no longer a capacity to form a criminal level of intention. The same is to be said of actions which are entirely an involuntary response, such as a sudden reflexive recoil from a source of pain occasioning accidental assault to another person.
There are, nevertheless, a few possible charges in many jurisdictions which do not carry this requirement. There is manslaughter, industrial manslaughter, culpable driving and then there is criminal negligence. Each of these are homicide charges which do not require the level of intentionality that a murder charge does. These are dealt with in the Homicide section later, but briefly, both Common Law and Parliament have considered the taking of a life to be such a serious matter that a criminal conviction and a prison sentence is a necessary response to any act or omission, be it reckless or even negligent, that has such a consequence.
Reckless Crimes
An accused can be found guilty of a crime if they act with disregard to likely consequences. Take, for example, a situation in which a person places a container filled with a liquid fuel near an open flame, such that the explosive is eventually detonated through ignition of increasing levels of vapour around the flame. The likelihood of this outcome is well known and should have been on the mind of a reasonable person in the accused’s position. The accused therefore is deemed to have sufficient intentionality to be convicted of a crime. The accused must be shown to have known of the risk, in the sense that a reasonable person in his/her situation would have, in order for them to be shown to have disregarded it.
The risk must be substantial, however. A mere risk or outside chance is not a basis for a conviction; rather actual probability is needed, meaning that at least an equal chance of the damage alleged must be evident. The risk must also be one that is not justified by circumstances. For example consider a weapon sought to be used in defence of another person in mortal danger, but the one who has possession it seeks someone else thought more able to use it. A delay is introduced allowing an innocent victim to be killed or injured. It might be considered whether the person first in possession of the weapon has acted recklessly by not using it immediately. Yet, if that person was well aged or suffering illness or disability, then the circumstances justify the risk that was taken with the victim’s wellbeing.
Negligent Crimes
There are a few crimes, such as manslaughter, which require only that the accused by negligent in their conduct. Think of the above example of passing a weapon from one to another and creating a delay which allows a victim to be harmed. If the person first in possession of the weapon was to insist on using it, in spite of incapacity, and they themselves killed the victim whom they were meaning to defend, then there would be an arguable case of a negligent crime having been committed and a conviction of manslaughter would be reached.
Transferred Malice
If a crime is committed in such a manner that the actual victim was not the person who was targeted in the first place, the law deems that the mens rea aimed at the intended victim is “transferred” so that it might as well have been a crime aimed at the actual person suffering damage. An example is where someone intends to shoot a particular person, but instead ends up shooting a bystander.
As a technical consideration, for this to work the mens rea of the crime – the guilty intention – has to match the actus reus – the guilty act. That is to say, an attempt to pick someone’s pocket resulting in events leading somehow to assault occasioning grievous bodily harm to a third person does not give rise to transferred malice. That is not to say the assault is not to be considered as a crime on its own. It is a separate issue to be charged separately.
Plausible Motive
The prosecution must identify a plausible motive for the defendant to have committed the crime. This sometimes is very easy – a large sum of money accruing to the defendant from the commission of the offence may be enough. The plausible motive in a theft is to gain possession over the thing that was stolen. The plausible motive in an assault is to satisfy a grudge or express anger towards a provocateur. This is often a very simple matter and requires little in the way of argument.
Sometimes it may not be so straightforward, such as if the defendant has lost a family member and there is no evidence of disharmony in the family. But a person who is psychologically unwell, is troubled by long past issues, or who is thoroughly deceived, may act on a delusion and do something seemingly implausible. Some motives that may be imputed to a person of a certain kind may not be applicable to an average member of the public. Sexual fetishes are such an example. In such cases the prosecution may need to establish proof with the help of expert witnesses such as a psychologist.
Standard of Proof
The evidence overall must create a case where there is no reasonable doubt as to the guilt of the defendant. This principle does not relate to the reliability, meaning or weight of each individual item of evidence, but rather the certainty of guilt created by the whole case, both sides taken together. Where there is a realistic alternative explanation for the alleged crime, then this constitutes reasonable doubt. The police must investigate deeply enough to eliminate any question pertinent enough to cast doubt on the case as a whole. The prosecution also must be careful to apply as realistic an interpretation to the facts as possible and to maintain complete circumspection, to avoid presenting a fatally flawed case. Where facts arise which, given the other facts in the case, point to non-guilt, then this may amount to a reason not to proceed with a trial. A classic authority on this is found in Woolmington where Lord Sankey stated:
If, at the end of, and on the whole of the case, there is reasonable doubt, created by the evidence given by either the prosecution or the prisoner as to whether the prisoner killed the deceased with malicious intention, the prosecution has not made out the case and the prisoner is entitled to acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.
In saying “…the prosecution must prove the guilt of the prisoner…” his Lordship’s intent can be distinguished from the questionable nature of a civil law outcome in which in spite of a remedy being given, a question remains based on the fact that a party to a civil matter will succeed over the other if their case is only slightly stronger, as long as it holds together on its own.
Furthermore, it is the position in Australia, that no direction is to be given to the jury as to the meaning of reasonable doubt. What constitutes a reasonable doubt is the normal, everyday meaning as understood by any normal person.
Onus of Proof
The onus of proof is on the prosecution to establish the defendant’s guilt, and there is no onus on the defendant to establish their innocence. The work of the defence is to undermine the prosecution – whether by establishing in evidence a likely alternate account of events, or by exposing flaws in the prosecution’s case. It is important to note that even if the defence fails to achieve at a high level, merely showing the prosecution to be flawed, then that the prosecution fails to fulfil its onus of proof, and the defendant must be acquitted of the charge. It is therefore possible for a defendant to give no evidence whatsoever, neither to the police nor at trial, and yet to be acquitted. This literally could happen as long as the prosecution’s case is weak without the defendant’s evidence. In reality, however, a weak brief of evidence would not be committed for trial.
This gives rise to two points of note. The first is that the job of the defence, if armed with good evidence on all pertinent issues, is quite easy compared with the prosecution. Therefore the prosecution has an uphill battle even in the simplest of cases and the police must always investigate thoroughly. By implication, any civilian agent or enforcer is wise to keep detailed and contemporaneous notes and to cooperate with any investigating authority as fully as possible, and to be pro-active in gathering evidence on the spot, at the time of any incident.
The other point is the acquittal of a defendant has little meaning compared with a finding of guilt. A person may boast that they were acquitted of a charge, but the grounds on which this can occur may be very tenuous and if sued in a civil trial where the standard of proof is simply the balance of probabilities, then they may well have lost. There is a logical basis – though in no way legally recognised – to say that unless the defence was very robust, the mere fact that a charge was laid may mean more from a purely moral perspective. This is especially so when the jury takes a long time to reach an acquittal. (Making this statement public, however, in relation to any individual matter is unwise and defamatory). Another thing to be aware of is that a civil suit in negligence or trespass could follow an acquittal and result even in exemplary damages being awarded – a potentially costly outcome in spite of there being inadequate proof for a criminal conviction.
Woolmington v Director of Public Prosecutions [1935] AC 426, 481-2.