26 Classifying Crimes

R A A McCALL SMITH (EDINBURGH)

INTRODUCTION

No civilian lawyer would dispute the importance of classification. Classification provides us with a mental map of the law and imposes system on what might otherwise be a morass of rules.

This chapter is concerned with another issue involving classification—that of the way in which the modern criminal law classifies certain forms of criminal behaviour. The approach taken here is comparative, but non-historical, not because the rules of modern criminal law are uninfluenced by their historical con­text, but because criminal law debate is concerned far more with determining what is morally appropriate than with the issues of legal and structural consis­tency which play so significant a part in private law theory. The question which is addressed here may be very simply stated. It is: why is the criminal law so con­cerned about the labelling of offences? This may seem a simple question, but the enquiry which it provokes leads to issues at the very heart of the criminal law.

calling offences by a name

It would be possible, one imagines, to design a system of criminal law in which the issue of the nomen iuris simply does not arise.

1 See, for example, A Watson, Roman Law and Comparative Law (Athens, Ga, 1991) ch. 17.

2 A Watson, Legal Transplants (Edinburgh, 1974); idem, Society and Legal Change (Edinburgh, 1977). of a stark series of prohibitions followed by a list of sanctions (even the latter would be optional: a code does not require any mention of penalty). Under this system, there would be a list of innominate offences, defined according to the conduct which the legislator seeks to prevent. These definitions could be gen­eral—as many code offences currently are—describing the act or omission which the perpetrator must commit and remaining silent as to how such con­duct will be labelled. In such a system, there need be no mention of nominate crimes such as murder, assault or theft: there is merely a reference to an offence contrary to a numbered section or article of the penal code.

That is not the ways things generally work. Although there are many offences to which a common or popular name cannot be given, their appearance in a statute may provide a means of identifying the general nature of the offence which is committed. Thus an offence under the Companies Act may become known as a company offence or a motoring offence may be described as a Road Traffic Act offence. This does not tell us a great deal about the offence in ques­tion, and the description is unlikely, therefore, to carry with it a great deal of moral baggage. Thus, it is possible for an accused person to be convicted of a bland-sounding offence under the Telecommunications Act for electronically transmitting child pornography. A conviction for distributing child porno­graphy entails a great deal of moral and social opprobrium, but only once the statutory conviction is explained.

Statutes may create new offences that never acquire popular names and which may continue to be described in technical terms opaque to the layman. On the other hand, new offences are capable of acquiring an ordinary language descrip­tion that conveys the moral essence of the offence in question.

Why do we name crimes in this way? The sociologist would explain the phe­nomenon in terms of name-calling. We are inveterate labellers, of places, people, and things. We do this not for idle reasons, but out of our need to order our sur­roundings and, importantly, to create and perpetuate social and moral structure. By describing others, we indicate our relationship with them and assign them a social role, placing them in a group, tribe, caste or whatever, which we expect to behave in a particular way. By labelling another as a deviant, we indicate disap­proval and bring legitimacy to the infliction of punishment. The process of labelling a person as criminal entails a justification of the exclusion brought by the status of criminality. This may be done for motives of self-protection—we need to know whom we can trust socially—or, more commonly, the process ful­fils a complex mixture of social functions, ranging from moral affirmation at one end of the spectrum to irrational demonisation at the other.

Whatever the psychological reasons which lie behind the labelling process, the fact that moral opprobrium accompanies the identification of a person as an offender—and as a particular type of offender—means that the identification process bears with it a range of moral implications.

It is not surprising that the criminal law should mirror everyday moral atti­tudes and reflect these in the offences that it punishes. At an early stage of devel­opment, the moral categories of the criminal code will demonstrate a close co-incidence with the moral categories of the layman. This fact was eloquently commented upon by the nineteenth-century Scottish judge and scholar, Lord Cockburn, in his powerful dissenting opinion in the case of Bernard Greenhuff.3 This case involved the exercise by the High Court of its power to declare acts to be criminal. Such a power, he pointed out, might have been acceptable when the criminal law embodied the provisions of the Decalogue, but, in its more com­plex form, was simply not acceptable.

Where there is a close co-incidence between the system of criminal law and the ordinary morality of the day, the terms used will be the same in both con­texts: murder is an everyday term in the English language and the common law has long recognized an offence of murder, which embodies the ordinary lan­guage features of the crime. The layman thinks of murder as wrongful killing without any excuse, and this is effectively how the criminal law has always defined it, using the term malice aforethought to do this moral work. The same co-incidence of terminology is found in theft, assault and rape, all of which are ordinary terms which have clear moral boundaries. Theft is particularly inter­esting in this regard: in the common law, the crime required that there should be a stealing. This is a very simple concept, a non-technical term that conveys a somewhat complex mental requirement in a very simple and direct way.

Therefore, there are very good reasons why the criminal law chooses to name offences in this specific way rather than to employ broad terms—for example, describing murder as an offence against the person, or calling fraud a property offence (both of which terms are, of course, technical categories used by

3 (1838) 2 Swin 236. lawyers). The morally expressive function which the law performs shores up the community’s sense of justice. The criminal gets his desert in being convicted of the named offence; he is publicly declared to be a murderer, fraudster, or what­ever. Any moral doubts as to his act are assuaged.

Yet why should this be important? It could be argued that what matters in a system of criminal justice is that courts should deal with offences in such a way as to fulfil as efficiently as possible the deterrent and regulatory purposes of the criminal justice system. In this view, the labelling of offences has very little prac­tical importance.

In fact, the criminal law has an important declaratory role, particularly in morally pluralistic societies in which there may be few, if any, other institutions with the standing to make moral pronouncements or provide guidance as to acceptable conduct. Moreover, at an individual level, the courts act as the vin­dicators of those who feel they have been the victims of wrong. Such persons often want their wrong spelled out, and attach vital importance to the identifi­cation and punishment of a wrong. This is the justification of the victim impact statement, in which the court acknowledges the suffering of the wronged per­son. In this context, the description of an offence is not a matter of mere acade­mic interest; rather, it is an affirmation of the fact of the wrong.

It is interesting to note that the issue of correctly naming crimes was recog­nized in the debate surrounding the reform of sex offences. The last three decades have seen considerable dissatisfaction in many jurisdictions over the criminal law’s treatment of this category of offences.

In one view, one of the main objections to the crime of rape is that it involves stigmatization. This is not the sort of stigmatization alluded to above. Instead, it is stigmatization of the victim. The woman who has been raped feels shame at what has happened to her, and this shame is produced to some extent by the very term used to describe her experience. Indeed, in the past the allegation that a woman has been raped has been judged sufficient to ground an action of defamation.^[653] The emotive connotations of the term rape are beyond dispute; indeed, the word is used in an extended way to refer to any act of profound destruction and wasting, as in phrases such as the rape of the countryside. This debasement could be avoided, it has been argued, by simply changing the description of the crime and, effectively, by abolishing the concept of rape. This would have the effect not only of removing the stigma from the victim, but also of allowing for higher conviction rates on the grounds that juries are reluctant to convict of extremely serious-sounding offences but are not so hesitant when the implications of the crime sound less serious. Linguistic legerdemain appeared elsewhere in the debate. The term victim has been removed from the vocabulary of some, who refer now to the survivor of sexual abuse.

The arguments in favour of removing stigma have led some jurisdictions to abolish the specific offence of rape and replace it with a general crime of sexual assault. In Australia, New South Wales abolished rape in the course of a broad­based reform of sexual offences, and now no distinction is made between the various forms of penetrative sexual assault, heterosexual or homosexual, all of which are now treated as a single offence.^[654] Canada has similarly changed the law.^[655] In these jurisdictions the specific category of rape disappeared from the legal canon.

What is most interesting from the point of view of our current theme are the arguments which have been produced against such changes. The case against abolishing rape as a separate offence is made fairly and squarely within the framework of an expressive argument. Rape is particularly abhorrent: it is qual­itatively different from many other sexual assaults and it is widely recognized as such by the public. To abolish the legal distinction between rape and other offences is to blur a moral intuition that enjoys wide public currency, and thereby potentially diminish the seriousness with which the crime is viewed. The same danger which attends upon linguistic euphemism in other fields of life attends changes in nomenclature in this field. By re-describing the act, the moral baggage which that act carries potentially compromises the expressive function of the criminal law in this area.

How we label an offence is, then, an important matter. It could be that a dis­passionate, mechanistic system of criminal justice could be indifferent to the ordinary language descriptions of offences, but such a system would be detached from the community and would give little moral guidance. If criminal law is to engage with the ordinary lives of the community and to be seen as socially responsive—and it must surely do these things—then how offences are described is of more than mere nosological interest. If this is accepted, then the next question is: how do we go about the task of describing offences and how do our descriptions allow for moral nuances?

ISOLATING THE ACT

Criminal offences are based on human acts and, in the case of the so-called result crimes, on an act and a result. Except in those cases where the basis of lia­bility is an omission, the fundamental requirement is that there should have been a voluntary act on the part of the accused, and that this act should corre­spond to the description of an offence (an actus reus). This seems simple enough at first blush, but it nevertheless conceals a difficult issue—that of determining the boundaries of the act. Human action has to be viewed contextually. We understand what people do by considering their acts in the context of what pre­ceded the act in question and what follows upon it. The criminal law, however, tends to see acts as discrete events, frequently treated in isolation from other actions performed by the same actor. The reasons for this are self-evident. Our system of criminal law addresses outcome, which gives it the locus to intervene: what the accused has done before and after the crime is not, strictly speaking, relevant to the issue of criminal guilt. This works both in favour of the accused and against him. A defendant may have a substantial criminal record, but he can keep this from the court until such time as he is convicted, and, even then, on a strict desert or tariff-based theory, his record may even be irrelevant to punish­ment. All that matters, in this view, is whether he committed the specific act with which he is charged, and this approach is clearly to his advantage. By con­trast, a defendant may have led a blameless life and may, as sometimes happens, commit a single offence—an offence which is strikingly out of character. Once again, what he has done, or not done, in the past is irrelevant. The only question which has any bearing on criminal liability is whether he has done what he is accused of having done. This is to his disadvantage, especially in systems where the court is given little discretion in determining the level of punishment. The tariff for the occasional offender may be no different from the tariff for the recidivist.

In the overwhelming majority of cases, the identification and description of the actus reus will pose no problems. If the accused is charged with assault, the issue is straightforward: did he apply unlawful force—or the threat of such force—to another? Similarly, in the case of murder, the question will be whether the accused performed an act which resulted in the death of the victim. There are some circumstances, though, in which it becomes crucially important to determine how an act is to be described and whether doing x is the same thing as doing y. In philosophy this is the familiar territory of event description. This raises issues of how we are describe events and whether, in the case of complex events, we are to individuate those events that taken together, make up an over­all, “larger” event. This is a question that is sometimes overtly normative. A per­son may perform an act designed to achieve objective x, but which inevitably involves the achievement of objective y. Is this act to be described (and evalu­ated) as doing x or as doing y? Which description of the act is eventually chosen may depend on one’s view of the relative moral merits of x and y. It is an act of homicide to give a really substantial dose of pain-killer to a terminally ill person if the predominant intention behind the act is that of bringing life to a swift end. The same act, however, may be described as an act of legitimate pain-relief, even if the effect of the relief of pain will be to shorten the life of the patient. How one chooses to describe the act will depend on the context and on the subtle inter­play of the various factors involved.

The legal philosopher Joel Feinberg has described the process of determining the boundaries of an act as the accordion effect, a metaphor which draws our attention to the extent to which acts can be squeezed or contracted as desired.^[656] One situation where this is likely to occur is when the definition of the crime requires that certain factors to be present, as in those cases where a crime becomes more serious if committed in the presence of an exacerbating factor. A homicide which takes place in the course of a robbery or a sexual attack may be treated as a particularly heinous crime and attract a more severe penalty. Canadian criminal law provides an example. Under the terms of the Criminal Code, where a killing occurs during a sexual assault, the homicide is aggravated. But what happens if the accused has committed a sexual assault and then, a short time after the assault, kills the victim? This was exactly the issue raised in the case of R. v. Pare, where the accused killed his victim at the scene of a sex­ual assault, but after the assault had been committed.^[657] Whether this was killing in the course of a sexual assault depended on how broadly the event (in the shape of the assault) was interpreted. Temporal proximity was to prove the determining factor. The fact that the killing followed so shortly after the assault made it part of the original event. This is an instance of the philosophy of action coming to the same conclusion as common moral sense.

The issue might also arise where there is a series of events which form part of an overall course of conduct, but where a crucial event in the sequence is devoid of a feature which would render it culpable. Here the boundaries of the act may be drawn out in order to draw the critical event or act within the penumbra of the overall venture. A classic illustration of this is the Australian case of Ryan v. The Queen.^[658] In this case a young man carried out a robbery, during which he fatally shot his victim. Although the robbery was carefully planned, the actual shooting was involuntary: he had been pointing the firearm at the victim when a sudden move on the part of the victim made Ryan’s finger involuntarily fire the weapon. He argued that the act of shooting was involuntary and could not therefore amount to the actus reus of homicide. The court took a different view and described the pulling of the trigger as only one event within a larger series of events, the larger series being overwhelmingly voluntary in nature. The criminal act was therefore redescribed in such a way as to embrace a series of subsidiary acts. Ryan therefore committed a criminal homicide in the course of robbery. He did not merely kill by accident in the course of a robbery.

Cases such as these demonstrate, then, that how one describes an act may be crucial in terms of the outcome. An act may be described in more than one way; how the court chooses to describe it depends, as often as not, on the court’s moral reaction to what the accused did. And it is to this process of moral evalu­ation that we now turn, to see, first, how we police the way in which the crime is described or defined can capture the moral essence of a prohibition, and, sec­ondly, to see how the identification of sub-categories of crimes may enable us to make important moral distinctions between offenders.

DESCRIBING OFFENCES

If it is important, as has been argued above, to embody in the criminal canon popularly recognizable names for the major offences, this raises the problem of how to identify those acts which properly fall within the category of an individ­ual actus reus. The boundaries of the offence—rather than the boundaries of the act—become the issue at stake here.

Theft provides us with an example. The lay definition of theft is clear: theft involves a wrongful taking of the property of another. The essence of the wrong is deprivation. The owner is wrongfully deprived of that which is his; he loses something. This is translated into legal terms in the requirement that there be amotio of the property. Theft cannot be said to have been committed if the owner still has the property in his possession and is capable of enjoying it. Most cases of theft are, of course, unambiguous. Yet, there will be cases where there has been an unwarranted interference in the property of another but where there is some doubt as to whether what has been done is criminal, or even sufficiently criminal, to warrant being labelled as theft. These are cases where there has been an unauthorised borrowing, or where the owner has been deprived of his property, but where there is no intention to deprive him of it permanently. Is the wrong which has been perpetrated here theft, or is it something different?

Scots criminal law has confronted this issue in a line of recent cases which has seen a significant extension of the concept of theft. In Scotland, theft has tradi­tionally been defined as a taking with the intention of permanently depriving the owner of his property. This is very clear, and would exclude, for example, an unauthorized borrowing, if the court is satisfied that the taker really did intend to return the property.^[659] The law, however, changed quite significantly and the courts began to accept that deprivations not intended to be permanent could be treated as theft. In these cases the courts have said that a temporary deprivation was acceptable, provided that the taking was clandestine and “for a nefarious purpose”. Thus, workmen who, in order to bring pressure to bear on a customer who owed them money, removed kitchen fittings that they had installed were convicted of theft, even if they did not intend to hold on to them indefinitely.¹¹ Similarly, the repairer of a television set who refused to return the set to the cus­tomer until a dispute had been settled, was held to be a thief.¹² Even more con­troversially, wheel-clampers who installed a disabling device to the wheel of an illegally parked vehicle were convicted of theft on the grounds that their action amounted to a deprivation of property of sufficient seriousness to warrant con­viction for the crime.¹³

The difficulty addressed in these cases is that of dealing with acts that have an air of wrongdoing about them, but which do not necessarily fit the precise descriptions of existing crimes. The strict adherent to the principle nullum crimen sine lege would argue that, if an act cannot readily be fitted into the cat­egory of an existing crime, then it is not covered by the criminal law and should be treated as lawful. Inclusion by analogy with an existing offence is unaccept­able, as is an interpretation of the definition of an offence which is so artificially broad as to strain the ordinary meaning of words. One way round this objec­tion, of course, is to define the offence in such a way as to allow for the legiti­mate exercise of discretion in interpretation. Thus the English Theft Acts stipulate “dishonesty” as an element of the offence of theft, and the question of whether a defendant has acted dishonestly is left to the jury. It would therefore be open for a jury to make its own distinction between unauthorized, but morally acceptable borrowing, and the dishonest form of borrowing. How this distinction is to be made may be difficult to articulate, and it could be argued that such a matter—the essence of the wrongdoing—should not be left to a judge or jury to determine on the basis of their moral intuition. Yet a concomi­tant of too tightly expressed a rule may have the effect of criminalizing conduct which does not deserve such a formal legal response. There must be some room for excluding from the purview of the criminal law those acts which, although technically criminal offences, do not require a response from the law.

There is more to be learned about this from the law of theft. Not only may there be doubt about the nature of the deprivation, and doubt whether it sits properly in the category of theft, there may also be doubt as to whether the property interest involved is one which should be protected by the law of theft. One area where this arises is in respect of the wrongful taking of information. Courts have frequently wrestled with the proposition that it should be theft to take an idea which belongs to another and to use it for one’s own purposes. They have given varying answers. Such conduct is morally reprehensible in the sense that it involves taking advantage of another’s effort for one’s own pur­poses. But should this be theft, or should the wronged party’s remedy be left to the civil law? English law falls short of treating the taking of an idea as theft, as

¹¹Milne v. Tudhope, 1981 JC 53.

¹² Kidston v. Annan, 1984 SCCR 20.

¹³ Carmichael v. Black, 1992 SCCR 709. does Scots law. The grounds of this reluctance are not so much principled as technical. The uneasiness that courts have felt about expanding the law of theft to include such cases possibly lies in the fact that existing notions of theft, which reflect popular notions of what constitutes theft, are so fixed that to embrace other forms of reprehensible conduct seems frankly counter-intuitive. We see, then, how popular morality is embedded in the criminal law and how, for this reason, it might be difficult to expand the categories of offence which this pop­ular morality dictates. It would certainly be possible for the criminal law to label the taker of an idea as a thief. The fact of the matter, however, is that such a per­son, although not highly-regarded, is not seen as a thief, perhaps on the grounds that what he takes is something that is legitimately there for the taking. The courts understand this moral sense and this understanding is reflected, even if not explicitly articulated, in their decisions.

Public conceptions of what is and what is not theft have caused considerable difficulty for the owners of rights in computer software and recorded music. The copying of software outside the terms of the original licence agreement is wide­spread, and costs software producers considerable sums in lost sales. Those who do this on a personal, rather than an organized commercial basis, may have an idea that they are not meant to do it, but would not consider themselves thieves. In order to change this perception of the practice, software producers have attempted to stress in their publicity that illegal copying amounts to theft. Here we see a concerted effort to use the undoubted moral force of the category of theft in order to prevent wrongful deprivation of potential earnings. The success of this tactic is proving limited, perhaps for the same reason identified in rela­tion to the theft of ideas. Public notions of theft are so deeply-rooted, and so fixed, that new forms of dishonest conduct will only be very reluctantly assimi­lated (under this label at least) within the general conscience.

MORAL DISTINCTIONS IN HOMICIDE

Nowhere is the problem of moral distinctions more evident than in homicide, where the criminal law must seek to embody the gulf of culpability that exists between the various forms of taking of human life. Again, nomenclature is impor­tant if the law is to succeed in embodying the moral intuitions of the community.

With the exception of a very small group of justified homicides (those, for example, committed in self-defence or circumstances of necessity), the act of killing another infringes a primary moral value and will attract the highest degree of opprobrium. But even if all such homicides are intrinsically wrong, there are various degrees of wrongfulness in killing.^[660] In moral terms we grade homicides according to a variety of factors, including the nature of the victim (frail or young victims attract particular sympathy) and the motives of the actor. One who kills in a calculated way is considered morally worse than one who kills on impulse; one who kills for gain is worse than one who kills for passion­ate reasons.

In common law systems the essential moral divide in terms of moral oppro­brium has depended upon the distinction between murder and manslaughter.^[661] Murder attracts the full rigour of the criminal law (including, in some systems, a mandatory penalty). Manslaughter, by contrast, may attract a minor penalty at one end of the scale to a considerable one at the other end. The distinction between these two crimes is made in terms of the mental state of the perpetra­tor. Murder typically requires an intent to kill or an intent to commit serious injury. A conviction for manslaughter may be obtained where the accused did not entertain any thought of his victim’s death, but nonetheless has brought it about by assaulting him, or possibly by acting towards him with gross negli­gence.

The importance of this distinction in the common law systems lies in the fact that murder is a term which has very clear moral connotations. To be labelled a murderer is to be unambiguously invested with a particular cast of mind. A mur­derer is one who is prepared, in cold blood, to take the life of another. The emo­tive term in cold blood is deliberately chosen, because it gives expression to the legal term “with malice aforethought”, the phrase traditionally used to describe the mens rea of murder. One is not a murderer if one kills without intending to do so, even if one intentionally assaulted the victim; nor, and this is crucial, is one a murderer if one kills under provocation or (possibly) to relieve the victim of intolerable pain (mercy killing). The term murderer then is reserved for those who embody an essential wickedness in their act; if the wickedness is not there, then the person is not, morally speaking, a murderer.

The moral baggage carried by the terms murder and murderer justifies the continued use of the term in the law and provides a strong argument against opt­ing, as has happened in some jurisdictions, for a single offence of homicide which may be committed in various degrees. Under such a system, the grades of seriousness can be reflected in the degree of homicide, first degree homicide being the most serious forms of killing (killing in the course of sexual assault, killing a child, killing a police officer in the execution of his duty and so on). Such a system allows for numerous distinctions to be made, but obscures the close moral fit between the criminal law and ordinary morality. People rely on their day-to-day words to do their moral work—and rightly so. It is significant that on coming across a scene of carnage nobody (at least nobody other than a pedantic professor of criminal law) would be expected to cry out: Homicide! It is far more likely that the cry would be: Murder!

Just as one would wish to preserve the moral effect of the crime of murder, so too would one wish to exclude from homicide altogether those acts which cause a loss of life but which are not appropriately embraced by the category of homi­cide. The most controversial category of such acts are those caused by gross neg­ligence. In English criminal law it is manslaughter to cause death through gross negligence, in that of Scotland it is culpable homicide. The objection which may be made to this is that the question of what is gross negligence is determined objectively rather than subjectively, and it is therefore possible that a person who acts to the best of his ability may be convicted of manslaughter if his con­duct falls sufficiently far below the standard expected of the reasonable person in those circumstances. Manslaughter may be a less opprobrious term than mur­der, but it bears moral significance nonetheless and should be limited to those acts which are indicative of actual moral wrongdoing. It offends the moral sense to convict of manslaughter a doctor or engineer, say, who has been extremely negligent and caused death, if he was not consciously taking a risk at the time. There may be no objection to convicting him of a general offence of negli­gence—a case can at least be made out for the imposition of liability in such cir­cumstances—but it is inappropriate to convict of manslaughter, which is redolent of serious moral fault.

The violence done to moral terminology is all the greater in those systems where there may be a conviction of manslaughter on the basis not of gross neg­ligence but ordinary, civil level negligence. This is the case in a small handful of common law jurisdictions, most notably New Zealand, where the Crimes Act 1961 provides for a manslaughter conviction in respect of a failure to take rea­sonable care in certain circumstances. Reasonable care in this context has been defined by the criminal courts as being the same as reasonable care in the civil context, namely, negligence of a much lighter level than the gross negligence required for conviction of manslaughter in comparable systems.^[662] Italian crim­inal law is the same, making no distinction between civil and criminal levels of negligence, thereby allowing for homicide convictions in cases where the level of negligence does no more than meet the level which would trigger civil liabil­ity. In the Italian case it is interesting to note that this conclusion has been reached because of the insistence of doctrinal writers that colpa in one context should mean the same thing as colpa in another, an argument based on the notion of the unity of norms.^[663] Such an argument has everything to do with the theoretical preoccupations of civilian jurisprudence and nothing to do with the ordinary morality of the day-to-day world. It demonstrates how the law can take a questionable turning if it loses touch with the moral instinct that one finds either in language or in quotidian moral codes.

CONCLUSION

The argument made by this brief enquiry into labelling in the criminal law is that there exists a close and significant coincidence between the categories of the criminal law and the moral convictions of the community. A system of criminal law which does not embody these conviction risks being misunderstood or even, in extreme cases, rejected at a popular level. This conclusion seems at odds with the viewpoint espoused in Legal Transplants which plays down a necessary, close connection between the nature of rules and the society they serve. Or does it?