KembaraXtra-Malaysian Criminal Law - Introduction -Subjective Nature of Crime

KembaraXtra-Malaysian Criminal Law - Introduction -Subjective Nature of Crime

1. Subjective Nature of Crime

Even within the same country, states or regions may differ.
What is criminal today may not have been criminal in the past or future.
Russell:
- criminal offences are creations of criminal policy adopted from time to time.

2. Difficulty in Defining Crime

Due to these variables, it is difficult to formulate a single, universal definition of crime.
JW Cecil Turner:
- defining crime is extremely difficult;
- no satisfactory legal definition exists.
Russell:
- no writer has successfully defined crime satisfactorily.
Glanville Williams:
- a workable content-based definition of crime is almost impossible;
- defining crime is a “thorny intellectual problem of law”.

3. Absence of a Universal Definition

Many jurists have proposed definitions of crime.
However:
- no universally accepted definition exists.
These definitions reflect different perspectives:
- legal
- moral
- social
- political

4. Classical Definitions of Crime

Sir William Blackstone (first definition):
- crime = act or omission violating public law.
- criticised for being too wide (includes constitutional and administrative law).
Blackstone (second definition):
- violation of public rights and duties owed to the community.
Sergeant Stephen:
- crime = violation of a right with evil tendency towards society.
Criticism:
- crime is not primarily about infringement of rights (civil law concept),
- but about commission of prohibited acts.

5. Sociological and Moral Approaches

John Gillin:
- crime = act actually or believed to be socially harmful;
- defined by groups with power to enforce penalties.
- focuses on harm to society rather than individuals.

BA Wrotley:
- crime = offence against law and morality;
- equates crime with immorality.

6. State-Centred Definitions

Keeton:
- crime = undesirable act which the State finds convenient to punish;
- punishment imposed by State, not private remedy by victim.
Goodhart:
- crime = any act punished by the State.
- highlights State’s role in criminalisation.

7. Penal Policy and Social Control

WA Bonger:
- crime = serious anti-social act;
- State responds by punishment or correction.
Russell:
- crime = result of conduct the penal policy of the State seeks to prevent.
Jerome Michael & Mortimer J. Adler:
- crime = behaviour prohibited by the criminal code.
Halsbury’s Laws of England:
- crime = unlawful act or omission against the public,
- punishable by law.

8. Evaluation of Definitions

Numerous definitions exist, but:
- none are precise or absolute.
Crime remains:
- relative,
- subjective, and
- policy-driven.
Nonetheless, these definitions:
- help identify general characteristics of crime, and
- aid academic study of criminal law

9. Elements-Based Approach to Crime

Some commentators prefer describing crime through its essential elements.
Lord Coke’s maxim:
- actus non facit reum nisi mens sit rea
- an act does not make a person guilty unless the mind is also guilty.
Meaning:
- both actus reus (guilty act/omission), and
- mens rea (guilty mind)
  are generally required for criminal liability.

10. Importance of Actus Reus and Mens Rea

Crime usually requires:
- a voluntary human act or omission, and
- a blameworthy state of mind.

LAW