Criminalization

Course Instructor: Mr. Karan Singh Chouhan

 Legality principle
• The Oxford English Dictionary defines crime simply as: ‘An action or
omission which constitutes an offence and is punishable by law’.
• “Nullum Crimen Sine Lege, Nulla Poena Sine"
• (No punishment without crime, and no Crime without punishment)
Why to criminalize certain Acts and not others?

• Public Order
• Drinking Water is a crime…..
• Kissing someone is a crime….
• Flirting is a Crime…..
• Kidnapping is a crime
• Rape is a Crime
• Justification?
 Criminalization
• To criminalize a certain kind of conduct is to declare that it is a public wrong that
should not be done, to institute a threat of punishment in order to supply a
pragmatic reason for not doing it, and to censure those who nevertheless do it. This
use of State power calls for justification—
• Democratic Society
• Consequences of the Act
• Public Wrong
• Criminalization is a process of turning an activity into a criminal offense
 Principles of Criminalization
• Principle of individual autonomy,
• principles of welfare,
• harm principle and public wrong,
• principle of respect for human rights,
• Right not to be punished,
• Criminalization as a last resort,
• principle of not criminalizing where this would be counter productive
• Moral Wrong
 Principle of Individual Autonomy
• each individual should be treated as responsible for his or her own behaviour.
• Free will vs Determinism
• Balanced Approach: condition of capability of autonomy eg. Minor, mentally
unstable
• Respect for individual Autonomy: Protection against collective or state power
• Whose autonomy? = different assumption/gender bias or forms of biasness
• No importance to the social context
 Principle of Welfare
• Nicola Lacey describes the principle of welfare as including ‘the fulfilment of
certain basic interests such as maintaining one's personal safety, health and
capacity to pursue one's chosen life plan
• How to choose which interest to protect?
• Democratic Decision Making/Collective
 Harm Principle
• Feinberg definition: It is always a good reason in support of penal legislation that it would probably be
effective in preventing (eliminating, reducing) harm to persons other than the actor and there is
probably no other means that is equally effective at no greater cost to other values.
• Harm: ‘those states of set-back interest that are the consequence of wrongful acts or omissions of
others’
• Wrongfulness: ‘setbacks of interests that are wrongs, and wrongs that are setbacks to interest’/ Moral
Wrong
• Public Wrongs: general obligations of citizens that are so important that the criminal sanction may be
justified to reinforce them ( Security Laws)
• Protection from excess: Rights approach
The minimalist approach/De Minimus
• the principle of respect for human rights
• the right not to be subjected to State punishment
• the principle that the criminal law should not be invoked unless other
techniques are inappropriate,
• the principle that conduct should not be criminalized if the effects of doing
so would be as bad as, or worse than, not doing so
 Right not to be punished
• How is it a Right?
• Burden of proof
• What this means in practice is that the decision to criminalize, and therefore
to authorize punishment, should be recognized as being of a different order
from many other legislative decisions.
 Alternative or Last resort principle

• Social Avenues: Peer pressure, society

• Controlling activity
• Other Legal Avenues???
• Jeremy Bentham's
• injunction not to punish ‘where it must be inefficacious: where it cannot act so as to
prevent the mischief ’, and ‘where the mischief may be prevented … without it: that is,
at a cheaper rate’
 Counterproductive
• The principle of not criminalizing where this would be counter productive
• Limited Efficiency? Eg. Traffic Law
• Prohibition: Drugs or Alcohol
• A) Black Market
• B) Selective Imposition
• C) Corruption
• Imposition should be efficient; But Really?
• Questions of over-criminalization.
 Over-Criminalization
• Erik Luna specifically points out that the “overcriminalization phenomena”
consists of “untenable offences, superfluous statutes, doctrines that
overextend culpability crimes without jurisdictional authority, grossly
disproportionate punishments and excessive or pretextual enforcement of
violations.”

• Any Indian Example?

Is Gun Possession or Carrying a Crime?
 Remote Harm
• Possession of guns without violence?
• the conduct may not be wrongful or harmful in itself, but it is criminalized
because of the consequences that may flow from it
• Two Objections:
• A) the person who does that voluntary act who should be penalized
• B) No punishment without malicious intent
 CRIMINAL LIABILITY
• What is a liability?
• Types of liability
• For a crime
 Historical Context
• Common Law; Strict Liability
• Bull-Killers: deodand and forfeiture
• 'for it is common knowledge that the intention of a man will not be probed, for the Devil does not know man's
intention‘
• Three Rules:
• 1) The paramount importance of the 'deed'; a man was held strictly accountable for any harmful result traceable to
his active conduct.
• (2) The consequential principle, that a man was not liable when he had done nothing active, even though his
omission to act may have been clearly the cause of the harm.
• (3) The great severity of the penal system when the sanction of compensatory payment was replaced by afflictive
punishment, generally that of death.
 Role of Church
• in their view that which called for penance and atonement was the evil
intention or motive which had prompted the harmful deed.
• Roman Civil Law: Dolus Malus (Evil deceit.”(1) Evil intent; bad faith and casus
• Religious Doctrine: Atonement
• Punishment: Based on the degree of moral turpitude
 Emergence of Mental Element
St Augustine had said: Ream linguam nonfacit nisi mens rea (the tongue is not guilty
unless the mind is guilty)
• The Leges Henrici Primi or Laws of Henry I is a legal treatise, written in
about 1115
• ‘Et actus non facit reum nisi mens sit rea’
• an act is not necessarily a guilty act unless the accused has the
necessary state of mind required for that offence
 Criminal Liability
• The fundamental principle of criminal liability is that there must be a
wrongful act --actus reus, combined with a wrongful intention—mens rea.

• This principle is embodied in the maxim, actus non facit reum nisi mens
sit rea, meaning 'an act does not make one guilty unless the mind is also
legally blameworthy'.
 Elements of Crime under IPC
Human Beings

Actus Reus

Mens Rea

Injury
 Actus Reus
• Actus reus (guilty act) refers to the act or omission that comprise the physical
elements of a crime as required by statute.
• Eg. Causing death of a person, Stealing moveable property,
• The requirements of actus reus varies depending on the definition of the crime.
Actus reus may be with reference to place, fact, time, person, consent, the state
of mind of the victim, possession or even mere preparation.
• Thus actus reus may be defined as 'such result of human conduct as the law seeks to
prevent'
• It should be voluntary (Sec. 39 IPC), i.e. if he intended to do it.
 Omission
• R v Pittwood (1902) 19 TLR 37
• ‘The defendant was employed by a railway company to operate the gate at a level
crossing across the track. He lifted the gate to allow a cart to pass across, but then failed
to put it back down before going for his lunch break’
• State v. Davis 388 S.E.2d 508 (1989)
• ‘The principal issue in this appeal is whether there was sufficient evidence to sustain the
conviction of the defendant, Dewey Davis, for the offense of second-degree sexual
assault. The defendant was also convicted of abduction and first-degree sexual abuse’
 Facts of the case
• The salient facts are that on February 18, 1986, the victim, who was a close friend of the
Davis family, went to the defendant's mobile home to pick up her laundry. While she
was in the defendant's home, the defendant's son, Gerald Davis, followed her to the
laundry room and asked her to go with him to his bedroom. She refused and Gerald
tried to force her to come with him to the bedroom. In an attempt to get away from
Gerald, she ran to the living room and pleaded with the defendant to help her. The
defendant, who had been drinking, told her he could not help her. She tried to keep the
defendant between Gerald and herself, but the defendant moved out of the way. Gerald
then dragged her down the hall and into the bedroom. The defendant followed his son
and the victim into the bedroom and lay next to them on the bed while Gerald raped
her. Although she pleaded with the defendant to help her, the defendant merely patted
her hand and told her not to worry.
 Om Parkash vs The State Of Punjab on 24
April, 1961
• Victim was married to the appellant in October, 1951, but their
• relations got strained by 1953. She was ill-treated and her
• Health deteriorated due to maltreatment and under-nourish-
• ment. In 1956 she was deliberately starved and not allowed
• to leave the house in which they were living and only
• sometimes a morsel or so used to be thrown to her as alms
• are given to beggars. On June 5,1956, she managed to escape
• from the house
 Voluntary
• A. X is holding a tennis racket in a game of doubles. As he runs to hit the ball he slips causing his racket to slam into the back of his partner’s
legs.
• b. X is holding an air- rifl e. D grips X’s hand, points the gun and squeezes X’s finger around
• the trigger. The gun goes off and Z is shot.
• d. D falls off his bicycle and receives a knock on the head which causes concussion. He
• assaults the fi rst person he sees but has no recollection of it later.
• e. In a game, X hits D’s knee with a small hammer. By a reflex action, D kicks X in the face
• and breaks his nose.
• f. D consumes 12 pints of beer. His friends dare him to set fire to the curtains of the pub in
• which they are drinking. He does so but later remembers nothing about it.
• g. W, an abused woman living with H, a violent man, commits theft because H threatened
• to break her arm if she did not do so.
• h. W steals a loaf of bread from a shop because her child is starving and she has no money.
 Voluntary Act
• Certain movements of our bodies follow invariably and immediately our wishes
and desires for those same movements. Provided, that is, that the bodily organ
be sane, and the desired movement be not prevented by any outward obstacle . .
. These antecedent wishes and these consequent movements, are human
volitions and acts (strictly and properly so called). . . . It will be admitted on the
mere statement, that the only objects which can be called acts are consequences
of volitions. A voluntary movement of my body, or a movement which
follows a volition, is an act. The involuntary movements which (for example)
are the consequences of certain diseases, are not acts.’ John Austin, Lectures
on Jurisprudence
 Section 39
• Section 39. "Voluntarily".--A person is said to cause an effect "voluntarily" when he
causes it by means whereby he intended to cause it, or by means which, at the time
of employing those means, he knew or had reason to believe to be likely to cause it.
• Illustration
• A sets fire, by night, to an inhabited house in a large town, for the purpose of
facilitating a robbery and thus causes the death of a person. Here, A may not have
intended to cause death; and may even be sorry that death has been caused by his
act; yet, if he knew that he was likely to cause death, he has caused death voluntarily.
 Actus Reus: Causation
• causa causans, i.e., the immediate cause of the effect
• A, intending to kill B, shoots at B but only wounds him very slightly. A clearly has the
requisite mens rea for murder, that is, he foresees and desires B's death. Now let us assume
that on his being taken to the hospital in an ambulance, a piece of masonry from a building
falls on the ambulance and kills B; or, alternatively, that B has a rare blood disease which
prevents his blood from coagulation so that the slight wound leads to his death, which it
would not have done if he had not been suffering from this disease; or, alternatively, that B
refuses to have the wound treated and dies of blood poisoning, which would not have
occurred if B had the wound treated. In all these cases, a problem of causation arises, i.e. did
A cause B's death for the purposes of the criminal law so that he can be convicted of
murder?
• Causation includes; negligence
 Causation
• Where there is no physical participation
• Where the participation is indirect
• Where another person has intervened:
R vs Hilton 1838 (the prisoner, who was in charge of a steam-engine, had
stopped the engine and gone away. During his absence some unauthorized
person had set the engine in motion and it had killed the deceased)
• R vs Jordan 1956 (stabbed the deceased who subsequently died in hospital from
broncho-pneumonia following a penetrating abdominal wound.)
 Cont.
• Causation and Negligence:
• Suleman Rahiman Mulani v State of Maharashtra (accident case)
• Minimal Causation:
• Moti Singh v State of Uttar Pradesh (gunshot wound)
• Rewaram v State of Madhya Pradesh (stab wound)
 Cont.
• PRINCIPLE OF ORDINARY HAZARD
• D attacks V intending to stab him to death; V runs away, but is struck by lightning and dies. Is he
guilty of murder?
• PRINCIPLE OF REASONABLE FORESIGHT
• A man is said to intend the natural consequences of his act.
• INTERVENTION OF AN INNOCENT PERSON
• A person will be held fully responsible if he had made use of an innocent agent to
commit a crime
• Contributory Negligence
 Case Laws
• Emperor vs Suryanarayana Murthy
• Re Thevamani 1943
• Palani Goundan v. Emperor, 1919
• Om Prakash v. State of Punjab AIR 1961 Sc 1782 Causation –Actus Reus
Ommission
 Contributory Act
• R vs Holland 1841 (wound cut)
• R vs Martin 1827 (playhouse)

• R vs Swindall (contributory negligence)

 Causation Test
1. ‘But-For’ Test
2. an operating and substantial cause; A novus actus interveniens: a free voluntary
act of a third party which renders the original act no longer a substantial
and operating cause of the result.
3. the ‘thin skull’ rule: defendants must take their victims as they find them
Vosburg v. Putney (1890)

4. ‘Natural consequences’
 Mens Rea: Common Law
• Mental element
• The objective standard of morality
• The Subjective Standard of morality
• MALA IN SE AND MALA PROHIBITA
 Mens Rea
• Voluntary conduct
• FORESIGHT OF THE CONSEQUENCES
• Intention
• Knowledge
• Motive
• Recklessness
• Negligence
 Intention
• Direct Intention
• Oblique Intention:
• Intention confined to motive: R v Steane (war broadcasting)
• Intention corresponding to purpose: Yip Chiu- Cheung v R [1994]
(undercovercop)
 Indirect Intention
• I wish to shoot V. I see V standing in a house behind a window and I shoot
him. I have a direct intent to kill V. According to the law, I also have an
indirect or oblique intention to break the pane of glass behind which he is
standing and thus commit criminal damage. Criminal damage is a pre-
requisite and necessary means to achieving my desired purpose of killing V. I
know this to be so and foresee that it must first occur
 Oblique Intention
• Foresight of an undesired consequence which is either: Oblique Intent A
necessary pre-requisite to a desired purpose/result OR A virtually certain
consequence of a desired result/ purpose
• Hyam v DPP [1975] AC 55 HOUSE OF LORDS
• R v Nedrick [1986] 3 ALL ER 1 COURT OF APPEAL
• R v Woollin [1998] 4 ALL ER 103 HOUSE OF LORDS
 R v Nedrick [1986]
• Virtual Certainty Test;
• the jury should be directed that they are not entitled to infer the necessary
intention unless they feel sure that death or serious bodily harm was a virtual
certainty (barring some unforeseen intervention) as a result of D’s actions
and that D appreciated that such was the case
 R v Woollin [1998]

• Trial Court: ‘must have realised and appreciated that when he threw that
child that there was a substantial risk that he would cause serious injury to it,
then it would be open to you to find that he intended to cause injury to the
child and you should convict him of murder.’
• The model direction is by now a tried- and- tested formula. Trial judges
ought to continue to use it. . . . But it would always be right for the judge to
say, as Lord Lane put it, that the decision is for the jury upon a consideration
of all the evidence in the case.’
 Transferred Malice
• Malice can only be transferred within the same offence. Suppose that in
attacking C, A had thrown a brick at him which missed C and went straight
through a nearby window. The intention to kill or cause GBH to C could not
be transferred to criminal damage. There is no equivalence between the MR
for murder (intention to kill or cause GBH) and criminal damage (intention
or recklessness to damage/destroy property) and thus no transference is
possible.
• Case: Emperor vs Suryanarayan Murthy
 Attorney- General’s Reference (No 3 of 1994)
[1997] 3 ALL ER 936 HOUSE OF LORDS
• D, the boyfriend of a young woman who was 22–24 weeks’ pregnant,
quarrelled with her and stabbed her in the face, back and abdomen with a
long- bladed kitchen knife.
• The mother survived but gave birth 17 days later. The baby (S) was born
alive but grossly premature. The chance of survival was 50 per cent. The
baby lived for 121 days but then died from bronchial infection as a result of
prematurity.
 R v Latimer (1886) 17 QBD 359
• The defendant was in an argument with another in a pub. The argument
escalated and the defendant attempted to hit the other man with his belt, but
missed and hit another woman behind, injuring her.
• Issue: can the defendant be held liable for injury which requires mens rea?
• R v Pembliton (1874) LR 2CCR 119
 Principle of Concurrence
• Meli vs R 1954 (Cliff case)
• Le Brun 1991 (Wife Case)
• Re Thevamani 1943
• Palani Goundan v. Emperor, 1919
 Knowledge
• Knowledge is awareness on the part of the person concerned, indicating his
mind. A person can be supposed to know when there is a direct appeal to his
senses.
• Knowledge, as contrast to intention, signifies a state of mental realisation in
which the mind is a passive recipient of certain ideas or impressions arising
in it, while intention connotes a conscious state of mind in which mental
faculties are summoned into action for the deliberate, prior conceived and
perceived consequences
 Case Laws
• Emperor v. Mt. Dhirajia, AIR 1940 (baby drowning case)
• In order to possess and to form an intention there must be a capacity for
reason. And when by some extraneous force the capacity for reason has been
ousted, it seems to us that the capacity to form an intention must have been
unseated too.
• knowledge of the likely consequence of so imminently dangerous an act
 Gyarsibai v. The State, AIR 1953 M.B. 61
• A Lady jumped into a well with three children
• Every sane person - and in this case we are bound to take it that the appellant
was sane - is presumed to have some knowledge of the nature of his act.
This knowledge is not negatived by any mental condition short of insanity.
 Recklessness and Negligence
• R vs Cunningham
• Cherubin Gregory v. State of Bihar, AIR 1964 SC 205 (electric wire case)
• S.N. Hussain vs The State Of Andhra Pradesh on 5 January, 1972 (bus
collision case)
 Cunningham
• There are two elements that need to be shown for Cunningham recklessness:
• (1) The defendant was aware that there was a risk that his or her conduct
would cause a particular result.
• (2) The risk was an unreasonable one for the defendant to take.
• The criminality lies in such a case in running the risk of doing such an act with
recklessness or indifference as to the consequences. Criminal negligence on the other
hand, is the gross and culpable neglect or failure to exercise that reasonable and proper
care and precaution to guard against injury either to the public generally or to an
individual in particular, which, having regard to all the circumstances out of which the
charge has arisen, it was the imperative duty of the accused person to have adopted.
• Culpable negligence lies in the failure to exercise reasonable and proper care and the
extent of its reasonableness will always depend upon the circumstances of each case.
 Application of Mens Rea
• .. there is a presumption that in any statutory crime the common law mental
element, mens rea, is an essential ingredient.
• Doubtless a statute can exclude that element, but it is a sound rule of
construction adopted in England and also accepted in India to construe a
statutory provision creating an offence in conformity with the common law
rather than against unless the statute expressly or by necessary
implication excluded mens rea.
 Strict Liability
• Strict Liability vs Absolute Liability
• Presumption of Mens Rea
• R v. Prince 1875 (kidnapping case)
• B (A minor) v DPP [2000] 1 ALL ER 833 (minor sexual assault case)
• Sweet v Parsley [1970] AC 132 HOUSE OF LORD (Cannabis Case)
• Section 5(b) of the Dangerous Drugs Act 1965 (1965 Act) “being concerned in
the management of premises used for the purpose of smoking cannabis resin.”
 Section 1
• Any person who commits an act of gross indecency with or towards
a child under the age of fourteen, or who incites a child under that
age to such an act with him or another, shall be liable on conviction
on indictment to imprisonment for a term not exceeding two years,
or on summary conviction to imprisonment for a term not exceeding
six months, to a fine not exceeding one hundred pounds, or to both.
• State of Maharashtra v. Mayer Hans George
• State of M.P. v. Narayan Singh, (1989) 3 SCC 596
In determining whether a statutory provision does or
does not create an offence of strict liability

• (1) phraseology of the statutory provision creating an offence of strict liability,

particularly expressions indicating or excluding the mental element required,
• (2) object of the statute,
• (3) the nature of public purpose purportedly preserved by the statute, and
• (4) the nature of the mischief at which the provision or statute is aimed and
whether the imposition of strict liability will tend to suppress the mischief,
although the strict liability should not be inferred simply because the offence is
described as a grave social evil