Definition of a Crime

Definition of a Crime

A crime is one type of wrong doing, tortuous, immoral and anti-social behaviour also constitutes wrong doing. But what distinguishes a crime from all other types of wrong doing?

The seminal case in this area is Melling v O’Mathghamhna, Kingsmill Moore J asked what is a crime? He stated that the anomalies which still exist in the criminal law and the diversity of expression in statutes makes a comprehensive definition all but impossible to frame. The Supreme Court, using a number of headings, upheld the High Court judgement and answered the question posed by Kingsmill Moore J.

Punishment:

Generally if the law prescribes punishment for those who engage in certain wrong doing, then such wrong doing is a crime. Kingsmill Moore J referred to Atkin J in Proprietary Articles Trade Association v Attorney General for Canada who said that the question in determining if something is a crime is: “Is the act prohibited with penal consequences?” Kingsmill Moore J also referred to Professor Kenny’s definition of a crime: “crimes are wrongs whose sanction is punitive and is remissible by the state if remissible at all.”

However punishment is not exclusive to crime. In McLoughlin v Tuite the Supreme Court upheld the High Court decision of Carrol J that Section 500 of the Income Tax Act 1967, which imposes a fixed monetary penalty on any person who fails to comply with a notice served upon him which requires him to deliver or to furnish any particulars, falls into the category of a deterrent/incentive and is not a criminal sanction. Generally the law of tort provides remedies for victims whereas criminal law provides punishments for the perpetrators of crimes. Although there are certain circumstances where criminal law does permit the compensation of the victim of a crime; Section 9 Criminal Damages Act, 1991.

In contrast to this in a recent case, The Registrar of Companies v District Judge David Anderson and System Partners Limited, System Partners Limited was late filing its tax returns for the years 2000 and 2001. As a result it had to pay a late filing fee of €1,200 for the year 2000 and €379 for the year 2001. Ordinarily the fee payable if filed on time was €30. Subsequent to the late filing and the payment of the associated late filing fees, two prosecutions pursuant to Section 125 of the Companies Act 1963, as amended by Section 59 of the Company Law Enforcement Act, 2001, were initiated in the District Court against System Partners Limited. This Act states that any company who fails to file its tax returns on time “the company and every officer of the company who is in default…shall be guilty of an offence.” The company had actually filed their returns, albeit late, and paid a fee far in excess of the fee required if they had been on time. Applying the principle of double jeopardy, Judge David Anderson struck out the summonses. The Registrar then went to the High Court who refused them on the basis that the offence gave rise to a criminal sanction when there was already a civil sanction in place, the applicant then appealed to the Supreme Court. It was held that ‘the obligation to pay extra fees for a late return of a company’s annual report is in form an administrative sanction…that is to say a sanction that does not have as its purpose the punishment of an offence but the achievement of a legitimate administrative objective’. They also pointed out that ‘Since there was no other criminal process, no charge, no trial of guilt or innocence the question of double jeopardy in relation to the District Court prosecution could not arise’. In this case the late filing fee cannot be considered a punishment relieving a company of the criminal charge but rather a deterrent against late filing.

Public Wrong:

Prosecution of a crime involves a public prosecution. The Director of Public Prosecutions (DPP) conducts criminal prosecutions on behalf of the state, in the public interest. This is because a crime is regarded not only as a wrong doing but also, as Kingsmill Moore J stated “a crime against the community at large.” The role of the victim in the prosecution is therefore limited. The prosecution of a tort is undertaken by the victim, thus torts are the concern of private individuals only. A victim of a tort may decide not to prosecute; a victim of a crime has no choice.

Moral Culpability:

Most crimes are regarded as immoral, although that which is regarded as immoral doesn’t necessarily constitute a crime. Morality plays a greater role in criminal law than it does in tort. to be convicted in criminal law Kingsmill Moore J  said that it will nearly always be proved that the accused acted intentionally or recklessly. Tort generally only requires proof of negligence. In terms of moral culpability negligence ranks lower than both intention and recklessness. Generally many fundamentals of criminal law are based on prevailing perceptions of morality.

Procedure:

Laverty J in the same case assigned a procedural definition of a criminal charge:

(i) Proceedings that permit the detention of the person concerned, the bringing of him into custody to a Garda station,

(ii) entry of a charge in all respects appropriate to the charge of the criminal offence,

(iii) the searching of the person detained and the examination of papers and other things found upon him,

(iv) bringing him before a District Justice in custody, the admission to bail to stand his trial and the detention in custody if bail is not granted or is not forthcoming and

(v) Imposition of a pecuniary penalty with the liability to imprisonment if the penalty is not paid.

Words used to identify Wrong Doing

O’Deilrigh J said that if wrongdoing is described as an ‘offence’ and the wrongdoer as an ‘offender’ then such wrong doing is probably a crime. A number of guidelines as to what a crime is may be distilled from the Melling judgement:

-         Crime is a wrong that attracts punishment

-         Crime is a wrong against the public at large

-         Crime is a wrong that is immoral

-         Crime is a wrong, the prosecution of which follows criminal procedure

-         Crime is a wrong described by law in the vocabulary of the criminal law

These factors have been applied in subsequent cases.

As already stated in Tuite although the penalty is punitive it was recoverable by way of civil proceedings, absence of criminal vocabulary. In Goodman v Hamilton, which arose out of the beef tribunal, the applicant alleged that in essence he was undergoing a criminal trial and therefore he was entitled to all the constitutional safeguards that go hand in hand with such a trial. Finlay CJ in the Supreme Court concentrating on the procedural aspects of the tribunal rejected this argument. He stated that the enquiry has no jurisdiction or authority to impose a penalty or punishment on any person. Its findings can form no basis for either the conviction or the acquittal of the party concerned if one were subsequently brought, nor can it form any basis for the punishment by any other authority of that person.

DPP v Boyle concerned Section 24 of the Finance Act, 1926 where the failure of a bookmaker to pay duty on bets was described as an ‘offence’ and which prescribed a penalty on a ‘summary conviction’ of £500. The High Court, noting the language of the provision, held that the wrong is a crime.

The Proceeds of Crime Act, 1996 came under scrutiny in Gilligan v CAB. The Act permitted the forfeiture of property in excess of £10,000 if the High Court was satisfied that on the balance of probabilities such property directly/indirectly represents the proceeds of crime. Most significantly such forfeiture does not depend on the owner of such property having being convicted of any criminal offence. Gilligan argued that the proceedings under the Act are criminal in nature as a successful prosecution necessarily entails a finding, on the balance of probability, of criminal activity having taken place. McGuiness J rejected this argument in the High Court and the Supreme Court unanimously agreed. McGuiness J said that the provisions were ‘in rem’ (against property) as against ‘in personam’ (against the person). Forfeiture of property amounts to refraction not punishment, the court was merely taking what was not his in the first place. Procedure is not criminal it does not permit the arrest of a person.

It is important to be aware of the distinction between a crime and a civil wrong (tort). A person being prosecuted for a crime enjoys certain constitutional safeguards:

-         Criminal matters must be dealt with by a judge or a court appointed or established as such under the constitution.

-         Trial of a criminal offence must take place before a jury with three exceptions: minor offences, special courts and military tribunals.

-         No person shall be tried on any criminal charge save in due course of law.