Report No. 47
Chapter 3
Our Approach
31. Introductory.-
We would, at this stage, like to indicate broadly the approach which we have adopted in dealing with the subject of the inquiry.
3.2. A few general aspects of criminal law need to be adverted to at the outset.
Criminal law, though it is only a part of the system of social control, is yet an important part. Two of its aspects assume importance
(i) it carries a special kind of stigma,
(ii) it carries a distinct range of sanctions. It is these two aspects which underlie almost all the important safeguards that are traditionally associated with criminal Law.
First, as regards stigma, the word 'crime' has a symbolic meaning for the public. The criminal law is deeply imbued with the idea of stigma; labelling an act as criminal goes beyond merely ensuring effectiveness of the law.
3.3. The meaning and shades of "stigma" have varied in history. It has been state1 that the Greeks originated the term "stigma" to refer to bodily signs designed to expose something unusual and bad about the moral status of the signifier. "The signs were cut or burnt into the body and advertised that the bearer was a slave, a criminal, or a traitor-a blemished person, ritually polluted, to be avoided, especially in public places". (Later, in Christian times, two layers of metaphor were added to the term: the first referred to the bodily sign of holy grace that took the form of eruptive blossoms on the skin; the second, a medical allusion to this religious allusion, referred to bodily signs of physical disorder). Today, however, the term is widely used in something like the original literal sense, but is applied more to the disgrace itself than to the bodily evidence of it.
1. Erving and Goffman, Stigma: Notes on the Management of Spoiled Identity, (1963) (Prentice Hall, New Jersey), pp. 32-39, cited in Radzinowicz and Wolfqang Crime and Justice, (1971), Vol. 1, pp. 25.26.
3.4. Next, as regards the sanctions, the coercive part of the law-which is reflected in the laws, 'sanctions'-finds its strongest fulfilment in the criminal law, because of the direct use of force in respect of the liberty or property of the convicted offender.
3.5. The sanctions of all laws of every kind will be found to fall under two great heads: those who disobey them may be forced to indemnify a third person either by damages or by specific performance, or they may themselves be subjected to some suffering1.
1. Hall and Mueller Criminal Law and Procedure, (1965), p. 1.
3.6. It is the stigma and the sanctions-the likelihood of loss of reputation and suffering to the persons against whom they are put into use-which are at the basis of the safeguards1 which we have referred to above.
1. Para. 3.2, supra.
3.7. In a modem industrialized society the regulation of human conduct by means of the criminal law extends to every phase of life1. But the ordinary principles apply whether the crime is traditional or new.
1. Hall and Mueller Criminal Law and Procedure, (1965), p. 175.
3.8. One of the illustrations of this approach of the law is the principle of mens rea. "The intent and the act must both concur to constitute the crime1."
1. Hall and Mueller Criminal Law and Procedure, (1955), p. 143.
For example, a civil action for assault would rest upon the invasion of a person's "right to live in society without being put in fear of personal harm;" and can often be sustained by proof of a negligent act resulting in unintentional injury. But an indictment for the same act could be sustained only upon satisfactory proof of criminal intention to do personal harm to another by violence1.
1. Hall and Mueller Criminal Law and Procedure, (1965), p. 181.
3.9. Again, since the outcome of a criminal trial may result in the defendant's loss of liberty or even life, the courts evolved a rule which casts upon the prosecution a heavy. burden of proof. As has been observed1-"No rule of criminal law is of more importance "than that which requires the prosecution to prove the accused's guilt beyond reasonable doubt. In the first place this means that it is for the prosecution to prove the defendant's guilt and not for the latter to establish his innocence; he is presumed innocent until the contrary is proved. Secondly, they must satisfy the jury of his guilt beyond reasonable doubt.
In civil cases where a plaintiff sues a defendant, he who shows that on a balance of probabilities the evidence is in his favours wins the day. In criminal cases, however, the Crown cannot succeed on a mere balance of probabilities. If there is any reasonable doubt whether the accused is guilty, he must be acquitted. An acquittal therefore either means that the jury believe the accused and are satisfied of his innocence, or that, while not satisfied that he is innocent, they do not feel sure of his guilt. In England, there is no middle verdict such as the Scottish verdict of 'not proven' to cover this sort of situation; 'not guilty' is the only alternative to a conviction."
1. Fitzgerald Criminal Law and Punishment, (1962), p. 192.
3.10. The principle of legality (nullum crimen sine lege), the rule for construing criminal statutes in favour of the citizen, and several other rules peculiar to criminal law furnish illustrations of this approach which, as we have said, could be, primarily, attributed to two aspects of the criminal law-the stigma attaching to a conviction and the suffering resulting from punishment.
3.11. Notwithstanding our awareness of the aspects of criminal law discussed above, we have thought it necessary to consider whether, in the case of social and economic offences under the major Acts, a different approach is not called for, particularly when the country is in the grip of an economic crisis, and the fruits of a hard won freedom may be lost if the foundation is not laid for economic stability.
3.12. Two very important aspects of social and economic offences have to be emphasised in this context-the gravity of the harm caused to society and the nature of the offences themselves. The gravity of the harm is not easily apparent; but is, nevertheless undeniable. The nature of the offences is peculiar, in the sense that they are planned and executed in secrecy by shrewd and dexterous persons with sophisticated means. The public welfare is gravely affected; but detection is unusually difficult.
Back
