Author Topic: What is a crime and who is a criminal  (Read 1690 times)

Offline Captain Walker

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What is a crime and who is a criminal
« on: July 27, 2017, 11:58:36 PM »
Not sure if it's right to ask this question in here - happy for topic to be moved.

A lot of people out there do not know or realise that a speeding offence is a crime. So - I'm wondering what others think? When one gets a speeding ticket - on strict liability - does that make one a criminal?

Why are speeding offences crimes and not civil offences in the UK?

What about driving without insurance? Is that criminal?

If not what exactly is a criminal?

Causing death by dangerous driving, certainly to most people, would be a crime and criminal? Right?

What do our past and present law students think (with references would be nice).
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Offline Ryan

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Re: What is a crime and who is a criminal
« Reply #1 on: July 28, 2017, 05:44:04 PM »
Why are speeding offences crimes and not civil offences in the UK?

Money.

It's more straight-forward for the state to enforce the money you owe it if it's through criminal law.

If your speeding fine was a civil matter, then there could be the following steps:
- pre-action protocols eg letter before action
- the County Court hearing and judgment
- then a separate County Court hearing if not paid in order to enforce the judgment
- then the possible need to hire bailiffs to pursue the debt (who may not be able to enforce it if they cannot gain entry to premises)
- the defendant then could wait the process out until limitations expires the debt (usually 6 years)

Whereas if the matter is criminal then the debt is easily enforced. For example the government need not have a separate hearing to enforce the debt. There are other means open to the state to get you to pay, such as imprisonment (eventually). Additionally if the government hires bailiffs for a debt arising from a criminal matter then these bailiffs will have the right to break your door down.
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Offline Captain Walker

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Re: What is a crime and who is a criminal
« Reply #2 on: July 28, 2017, 05:53:44 PM »
Whereas if the matter is criminal then the debt is easily enforced. For example the government need not have a separate hearing to enforce the debt. There are other means open to the state to get you to pay, such as imprisonment (eventually). Additionally if the government hires bailiffs for a debt arising from a criminal matter then these bailiffs will have the right to break your door down.

Sound reasoning on that Ryan.

In effect therefore it's about the need for efficiency in dealing with loads of people. Hence criminalisation of something could be on grounds of 'public policy'?
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Offline yes

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Re: What is a crime and who is a criminal
« Reply #3 on: July 29, 2017, 11:01:04 AM »
this was covered in very useful way a few weeks ago on board that inspired existence of this board ----our source board?

basically, a crime's what statute, common law says is a crime; a criminal (normative use of word = probably all of us, being realistic) is someone the state's made previous arrangements for ---thus punishment by the state, potential for that, is in place when it comes to discouragement of that sort of activity.

we'd been talking also about 'wrongs' more widely ---bringing tort and contractual wrongs and wrongs deriving from the old quasi-contractual ones involving unjust enrichment obvsly into the equation too ---and how that sort of wrong was essentially diff to a crim wrong ---cos the state reserved action to itself for addressing wrongs that were crimes. Whereas in sharp distinction, private law wrongs could only be addressed by the individual 'harmed'.

they're essence off the top of my head of the this essential dichotomy re my understanding of 'criminal' wrongs.

Of course, especially when it comes to what are 'crimes' then there is (or should be) very deliberate and serious ingress of what can be justified re stigmatising citizens with dread 'CRIMINAL' label ---the normative chats around e.g. social contract and fair-labelling in crim law.

On our inspiring board on this topic I noted in passing that I could only think of 2 crimes that didn't have some expression in tort ---blackmail and treason -----would still welcome (your) views on that point.     :P

Offline yes

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Re: What is a crime and who is a criminal
« Reply #4 on: July 29, 2017, 11:10:20 AM »
blackmail (theft Act 1968 s.21) in itself is a weirdly difficult-to-justify crime --threatening to do what is legal (but embarrassing to victim if done) ---paradoxical nature of this has fuelled many a learned article.

Offline yes

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Re: What is a crime and who is a criminal
« Reply #5 on: July 29, 2017, 11:41:18 AM »
I tend to think best justified by losing the label, and calling it 'extortion'.

that would work to my way of thinking

Offline Ryan

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Re: What is a crime and who is a criminal
« Reply #6 on: July 30, 2017, 01:43:48 PM »
basically, a crime's what statute, common law says is a crime

I think this is the best approach to answering the question: 'what is a crime?'

Attempting to boil down and weigh up the various policy considerations, or taking a philosophical or essentialist approach to answering this question will lead to inevitable contradictions and exceptions.

So basically I agree, a crime is what the law says it is.
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Offline Captain Walker

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Re: What is a crime and who is a criminal
« Reply #7 on: July 30, 2017, 05:23:19 PM »
basically, a crime's what statute, common law says is a crime
So basically I agree, a crime is what the law says it is.

It's neat and simple. But there are problems with that methinks. I accept that Parliament being supreme - even above God some say - can make and unmake any law. However, where Parliament creates law that makes a crime out of some act that breaches fundamental principles of a written or unwritten Constitution or International Law then something has to be said about that.

Looking deeper, Parliaments or the US equivalents, may create secret laws to make what is 'criminal' totally legally correct. There were talks sometime ago in the US if memory serves, to legalise torture. Well that's not just a Human Rights issue, it could be an International Crime issue. But the US is not accountable to any International Criminal Court.

As exposed by the scorned (not by me) Edward Snowden, the US government wrote secret laws and held secret courts to do some very dirty things (to put that in a nutshell). I shan't go into issues surrounding Guantanamo Bay at this stage.

What's not criminal in certain kinds of law arising from some Middle Eastern countries, would be criminal in this country. [I'll avoid a list]. But then a few years ago there was a bandwagon of people proposing that Sharia Law be made the law in certain parts of the UK. References long forgotten. That's a whole big and sensitive debate. So potentially polygamy would be lawfully initiated in one neck of the woods in England but not in another neck of the woods in England. [I'm not even considering cross border differences in the law e.g. Scotland] And I'm aware of current exceptions. The easy answer for those who are not in the echelons of power, is to say "Buzz off - no Sharia law here". It's not so easy for the politicians and those who might be tasked with drafting legislation to allow any of that.

Some of above snippets could be of interest to those who wish to become legal draftsmen - another specialist avenue in law.
« Last Edit: July 30, 2017, 05:28:06 PM by Captain Walker »
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Offline Ryan

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Re: What is a crime and who is a criminal
« Reply #8 on: July 30, 2017, 07:07:53 PM »

It's neat and simple. But there are problems with that methinks. I accept that Parliament being supreme - even above God some say - can make and unmake any law. However, where Parliament creates law that makes a crime out of some act that breaches fundamental principles of a written or unwritten Constitution or International Law then something has to be said about that.

Parliament in theory could make such a radical change to render rights inoperable and breach international law.

If say a Conservative government with a massive majority presented a Bill that prevented the vast majority of the population from having access to justice. As long as it passed the Commons and Lords, it could in theory achieve what it sets out to do. For example if it explicitly did the following:
- repeal the HRA 1998
- repeal ECA 1972 to disapply the EU’s CFR
- repeal any relevant provisions in other constitutional statutes
- made explicit repeal of certain rights at common law (eg access to justice etc)
- repealed the relevant provisions of Acts which relate to civil liberties
- repealed any other international law provisions domesticated in statute
- made any explicit repeal of customary international law received in the common law

Not that this is likely to happen of course. Just a thought experiment.
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Offline Superfly

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Re: What is a crime and who is a criminal
« Reply #9 on: July 30, 2017, 08:01:42 PM »
Good grief Ryan, I appreciate you say it's thought experiment, but what do you take the government for..... I know you are trade unionist but sometimes walking in other peoples shoes to see what is required for the whole and not the few helps (and yes it was the Labour mantra). If you start with a narrow perspective/view, then how can ever expect to improve and learn?

For my sins, I will always try to view others perspectives before my own, just to try and get a feel for what they are feeling/thinking, though that has come through experience when I have been rash in the past with my viewpoint.
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Offline Captain Walker

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Re: What is a crime and who is a criminal
« Reply #10 on: July 30, 2017, 08:42:35 PM »
Parliament in theory could make such a radical change to render rights inoperable and breach international law.

If say a Conservative government with a massive majority presented a Bill that prevented the vast majority of the population from having access to justice. As long as it passed the Commons and Lords, it could in theory achieve what it sets out to do. For example if it explicitly did the following:
- repeal the HRA 1998
- repeal ECA 1972 to disapply the EU’s CFR
- repeal any relevant provisions in other constitutional statutes
- made explicit repeal of certain rights at common law (eg access to justice etc)
- repealed the relevant provisions of Acts which relate to civil liberties
- repealed any other international law provisions domesticated in statute
- made any explicit repeal of customary international law received in the common law

Not that this is likely to happen of course. Just a thought experiment.

None of the references above are International Law. And yes - and I have no dispute with Parliament's sovereignty to make and unmake law as it pleases (which I declared).

I'm not sure I see where you're going with your trend of thought, if its in relation to my post (which focused on Constitutions and International Law).

Where I was heading, was to give an idea that it's not just about what Parliament says 'is a crime' (or not) - which I think is simply to 'submit'.
« Last Edit: July 30, 2017, 08:48:45 PM by Captain Walker »
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Offline Ryan

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Re: What is a crime and who is a criminal
« Reply #11 on: July 30, 2017, 09:07:48 PM »
Where I was heading, was to give an idea that it's not just about what Parliament says 'is a crime' (or not) - which I think is simply to 'submit'.


I'd be interested in your view. What sort of approach do you take to answering the question 'what is a crime' and 'what is a criminal'?
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Offline Captain Walker

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Re: What is a crime and who is a criminal
« Reply #12 on: July 30, 2017, 09:12:48 PM »
Where I was heading, was to give an idea that it's not just about what Parliament says 'is a crime' (or not) - which I think is simply to 'submit'.


I'd be interested in your view. What sort of approach do you take to answering the question 'what is a crime' and 'what is a criminal'?

I think you misunderstand the point of the post. It was about how Parliamentary Sovereignty in theory could be used to destroy civil rights if it dotted every 'i' and crossed every 't'.
This informs me where your trend of thought is heading. So-called Civil Rights and Civil Liberties, are nothing to do with criminal law. I think we all know that Parliament can infringe those backwards and forwards.

The issue was about simply accepting a crime to be what Parliament says it is - and by extension what is not. I made reference to events in America, which appeared to be at risk of being 'unhinged'. What's that saying about power corrupts?

My issue is not just about defining crime or saying what is criminal. I go well beyond that. I go to the source of power.
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Offline Ryan

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Re: What is a crime and who is a criminal
« Reply #13 on: July 30, 2017, 09:19:29 PM »
This informs me where your trend of thought is heading. So-called Civil Rights and Civil Liberties, are nothing to do with criminal law. I think we all know that Parliament can infringe those backwards and forwards.

At present in the UK they are not, I agree. Although some states historically (and some presently) do blur the lines between civil rights and criminal law. Franco's Spain didn't allow freedom of assembly, while present-day Saudi Arabia do not allow women to do all sorts of things. Both states used criminal law to enforce these.

The issue was about simply accepting a crime to be what Parliament says it is - and by extension what is not. I made reference to events in America, which appeared to be at risk of being 'unhinged'. What's that saying about power corrupts?

My issue is not just about defining crime or saying what is criminal. I go well beyond that. I go to the source of power.

I agree with the point about the corruption in the US system.
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Offline Ryan

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Re: What is a crime and who is a criminal
« Reply #14 on: July 30, 2017, 09:26:50 PM »
Good grief Ryan, I appreciate you say it's thought experiment, but what do you take the government for..... I know you are trade unionist but sometimes walking in other peoples shoes to see what is required for the whole and not the few helps (and yes it was the Labour mantra). If you start with a narrow perspective/view, then how can ever expect to improve and learn?

I am unsure what point you're making here or where you're going with this.
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