Criminal Law

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started earlier, crime has been defined as an anti-social, immoral or sinful
behavior which is contrary to the cherished norms, beliefs, customs and
traditions of a given society. According to another school of thought  , crime is an act which is particular social
group regards  as sufficiently menacing
to its fundamental interests to justify formal reaction to restrain the
violation .Stephen has  defined ‘crime’as
an act which is both forbidden by law 
and revolting to the normal sentiments of the society.

is any from of conduct which is declared to be socially harmful in a state and
as such forbidden by under pain of some punishment. Therefore, Tappan has
defined crime as, an or omission in violation of criminal law, committed
without any defense or justification and penalized by the law as felony or
misdemeanor.’’ Cross and Jones define crime as a legal wrong the remedy for
which is punishment of the offender at the instance of the state.

gillin defines crime as an act that has been shown to be actually harmful to
the society or that is beloved to be socially harmful by a group of people that
has power to enforce its beliefs and that places such act upon the ban of
positive penalties. Thus he considers crime as an offence against the law of
the land. In the words of Donald Taft, crime is asocial injury and an
expression of subjective opinion varying in time and place. Halsbury defines
crime as an unlawful act which is an offence against the public and the perpetrator
of that act is liable to legal punishment. So, it may be said that a crime is a
wrong to society involving the breach of a legal wrong which has criminal
consequences attached to it prosecution by the state in the criminal court and
the possibility of punishment being imposed on the wrongdoer. Crime and social
policy are inter-related and the concept of crime depends largely on the social
values, accepted norms and behavioral patterns of a particular society at a
given time.

An overview of criminal law:


term criminal law, sometimes called penal law, refers to any of various bodies
of rules in different jurisdictions whose common characteristic is the
potential for unique and often severe impositions as punishment for failure to
comply. Criminal punishment, depending on the offense
and jurisdiction,
may include execution,
loss of liberty,
government supervision (parole or probation), or fines. There are some archetypal crimes, like murder, but the
acts that are forbidden are not wholly consistent between different criminal
codes, and even within a particular code lines may be blurred as civil
infractions may give rise also to criminal consequences. Criminal law typically
is enforced by the government, unlike the civil law, which may be enforced by private

element of a crime (collectively called elements of crime) is a basic set of common law
principles regarding criminal liability that, with few exceptions,
constitute the essential elements to prove that the defendant committed a crime
under United States law. The jury must be
convinced beyond a reasonable doubt that the defendant
committed each element of the particular crime charged before deciding on a guilty verdict. The
component parts that make up any particular crime vary depending on the crime.

basic components are listed below. However, the two necessary elements that
must coexist for a crime to exist are that the defendant must have committed an
act and that act must have been committed intentionally.

Actus Reus:

actus reus — sometimes called the external element or the objective element of a
crime — is the Latin
term for the “guilty act” which, when proved beyond a reasonable doubt in combination
with the mens
, i.e., the “guilty mind”, produces criminal liability in common law-based
Canada, Australia, New Zealand,
England, Scotland and
the United
. In the United States, some crimes also require proof of an attendant circumstance.


terms actus reus and mens rea are derived from the principle stated by Edward Coke
(pronounced ‘Cook’), namely, actus non facit reum nisi mens sit rea, [1]

which means: “an act does not make a person guilty unless (their) mind is
also guilty”, i.e.,
the general test is one that requires proof of fault, culpability
or blameworthiness both in behavior and mind. In this respect, the role of automatism is highly relevant in providing a
positive explanation of the need to demonstrate the voluntaries of the behavior
for it to found liability. Once the actus reus has been established in a
conventional offence, there must be a concurrence
of both actus reus and mens rea (and in the United States, for some crimes, an
attendant circumstance) to justify a conviction.

are some exceptions to the general rule that a “guilty mind” must be proved.
Most legislatures create so-called strict
offences, which criminalise the behavior without the need to
prove a mens rea in relation to all the actus reus elements. The majority of these offences are
either quasi-criminal or relatively low fault instances of behavior. Even in
these cases, liability may sometimes still be negated if automatism is present.

discussing the nature of an actus reus or guilty act, legal scholars
distinguish between:

“conduct” or affirmative and positive “acts”; and momissions
or failures to act.

Commonwealth legal scholars add a third
class, namely a state of affairs.


both common law and statutory offences, establishing the detailed list of elements necessary to constitute the offence and
their scope is a matter of interpretation which may require the courts to
review and revise precedents to ensure that the current interpretations match
the current needs. For example, if an offence uses a verb such as
“inflict” or “enter”, it is for the courts to lay down the
factors by which to distinguish the forms of action that might satisfy the
requirement. Burglary
requires “entry as a trespasser” so if the accused cut a hole in a
window and introduced a fishing rod into the room to catch jewellery, would
this be an entry? Equally, if a surgeon performs a life-saving operation
knowing that the patient did not consent, did he or she inflict injury by
cutting open the patient as victim with a knife? At times, these decisions will
have profound moral and practical implications for a society, with the
rulings of judges
and the findings of juries
reflecting prevailing attitudes on issues as controversial as euthanasia
and assisted suicide, sexual relationships, and the
various forms of business activities that should or should not be crimes. By
altering the interpretation of the elements of a crime, courts may in effect criminalise
behaviour retrospectively



omission is failing to do something. Judge Stephen J held that an omission
cannot make a person guilty – he highlighted this statement with his scenario:
“A sees B drowning. A does nothing to help B. B drowns. A is in no way
responsible for failing to help or to summon help.” Having said this,
there are 5 exceptions to this rule – where the defendant owed the victim some
sort of duty.

Contractual Duty. In R v Pittwood, a railroad crossing guard failed to do his
duty and shut the gate onto the rail road. A person walked through the gate,
was hit by a train and killed; the gate keeper was guilty of manslaughter.

Duty because of a Relationship (usually parent and child). In R v Gibbons and
Proctor, the defendant and his wife failed to feed his young daughter; she died
through malnourishment. The defendants were guilty of an omission.

Duty taken on voluntarily. In R v Stone and Dobinson, the defendant’s
voluntarily took on the duty to look after Stone’s elderly sister, who was
unable to take proper care of herself. She died as a result of their lack of
proper care. The defendants were guilty.

one’s Official Duty. In R v Dytham, the defendant was a police officer who
witnessed an assault take place. He did not intervene and failed to summon
help. He was guilty of the victim’s injuries because of his failure to act as a
police officer.

duty which arises because the defendant has set in motion the chain of events.
In R v Miller, the defendant was a squatter staying in a house. He fell asleep
whilst holding a lit cigarette, and set fire to the room he was in. Instead of
putting the fire out, or calling for help, he moved to another room to sleep
there instead; the defendant was guilty of arson.

well as omissions in Criminal Law, there are also omissions in the Law of Tort
(Negligence), such as –

to act despite the duty of care owed to another person. For example, a mother
allows a 3 year old child to drown when they could have been easily saved
without any risk to the mother.

is important to understand that the law does not criminalise (in nearly all
instances) not doing something, although there is sometimes a moral issue which
clouds judgment. A person may be morally wrong, but that does not mean they are
criminally liable.

State of


are offences that occur even though the defendant didn’t act voluntarily. A
number of offences are defined as a situation or context, e.g., “being
found within enclosed premises” and “being drunk in charge of a motor
vehicle”. These are usually strict liability and a conviction can be
sustained even though an accused did not act in a wholly voluntary manner.
Hence, if a person falls asleep in a quiet corner of a library and is locked in
by inadvertent staff, the offence will be committed, but the relatively low
level of fault could be reflected in the sentence. In Martin v State (1944) 31
Ala App 334 17 so 2d 427. Martin was arrested at home and taken onto the
highway by police officers, where he showed signs of being drunk. His
conviction for being drunk on a public highway was quashed because his arrival
on the highway was not voluntary. Whereas in R v Larsonneur (1933) 24 Cr. App.
R. 74 Larsonneur, a French citizen, was served with an order requiring her to
leave the UK and not return. Instead of returning to France, she traveled to
Ireland, and was deported back to England where she was arrested for
“being found in the United Kingdom”.

Court of Criminal Appeal held that the involuntary circumstances under which
she was returned were “perfectly immaterial”. In Winzar v Chief
Constable of Kent (1983) the Times, 28 March 1983, where the charge was one of
being “found drunk on a highway” contrary to s12 Licensing Act 1872,
Winzar had originally been found drunk in a hospital and asked to leave. When
he failed to do so, police officers removed him to their patrol car, which was
parked on the highway outside, and then charged him with the offence in
question. Upholding the conviction, Goff LJ. Pointed out that a distinction
would otherwise have to be drawn between the drunk who leaves a restaurant when
asked to do so and the drunk who is forcibly ejected after refusing to leave.
If both are arrested in the street shortly afterwards, it would be wrong for
the courts to regard the former as guilty and the latter as not. But the U.S.
approach of abuse of process might prevail if the police were
to drag a person from his own bed and into the street before charging him with
being found drunk on a highway.

Causation (law):

is the bringing about of a result, and in law it is an element in various tests for legal liability.
Most tests for legal liability in criminal
and civil law require the defendant to
have ‘caused’ the result of which the plaintiff
complains. For example:

(criminal law): requires that the accused have caused the victim’s death

(civil law): requires that the defendant have caused the harm that befell the

Breach of contract (civil
law): requires that the defendant’s breach have caused the plaintiff’s loss.

If the
plaintiff/prosecution cannot establish the causal link between the defendant’s
act and the plaintiff’s/victim’s harm, then liability will not be established.

Mens rea:

, mens rea — the Latin term for “guilty mind” [2]
— is usually one of the necessary elements of a crime. The standard common law
test of criminal liability is usually expressed in the Latin phrase, actus
non facit reum nisi mens sit rea, which means that “an act does not make
a  guilty unless there is guilty mind is
“.The two conditions must be satisfied before a criminal liability can be
imposed. The first condition is physical condition which means the existence of
an unlawful act. The second condition is the means rea or the guilty mind.
Unless and until both conditions are present at the time same time no criminal
liability arises. A guilty mind must consist of either intention or negligence.
The guilty mind does not depend generally on the nature or motive behind the
act. Guilty has to be in the immediate intent or negligence. Mens rea must
extend to the three parts of an act viz., the physical doing or not doing, the
circumstances and the consequences if mens rea does not entend to any part of
the act, there should be no guilty mind behind the act.

from which mens rea assume will depend on provisions of the particular legal
system. Thus, in jurisdictions with due process,
there must be an actus reus accompanied by some level of mens rea to
constitute the crime with which the defendant is charged .The exception is strict liability crimes (in the civil
law, it is not usually necessary to prove a subjective
mental element to establish liability, say for breach of contract or a tort, although if
intentionally committed, this may increase the measure of damages payable
to compensate the plaintiff).

simply, therefore, mens rea refers to the mental element of the offence that
accompanies the actus reus. In some jurisdictions, the terms mens rea and actus
reus have been superseded by alternative terminology. In Australia,
for example, the elements of all Federal offences are now designated as
“Fault Elements” (mens rea) and “Physical Elements” (actus
reus). This terminology was adopted in order to replace the obscurity of the
Latin terms with simple and accurate phrasing.[3]

are four general classes of mens rea (the words used may vary from one state
to another and from one definition to another) but the substance is:

Recklessness sometimes termed willful
which may have a different interpretation in the United
; or Negligence.

Intention (criminal):

the criminal
, intention is one of the three general classes of mens rea
necessary to constitute a conventional as opposed to strict
An intention is the purpose or design with which an act is done. This may
consist of an intention to perform some further act, an intention to bring
about certain consequences or perhaps merely an intention to do the act itself.
Intention is defined in R. v Mohan as “the decision to bring about a
prohibited consequence”. A range of words is used to represent shades of
intention in the various criminal laws around the world. The most serious crime
of murder, for
example, traditionally expressed the mens rea element as malice aforethought, and the interpretations of
malice, “maliciously” and
“willfully” vary between pure intention and recklessness depending on the state
and the seriousness of the offence.


The test of intention:


policy issue for those who administer the criminal justice system is that, when
planning their actions, people may be aware of many probable and possible
consequences. Obviously, all of these consequences could be prevented through
the simple expedient either of ceasing the given activity or of taking action
rather than refraining from action. So the decision to continue with the
current plan means that all the foreseen consequences are to some extent
intentional, i.e. within and not against the scope of each person’s intention.
But, is the test of culpability based on purely a subjective measure of what is
in a person’s mind, or does a court measure the degree of fault by using
objective tools?

example, suppose that A, a jealous wife, discovers that her husband is having a
sexual affair with B. Wishing only to drive B away from the neighborhood, she
goes to B’s house one night, pours petrol on and sets fire to the front door. B
dies in the resulting fire. A is shocked and horrified. It did not occur to her
that B might be physically in danger and there was no conscious plan in her
mind to injure B when the fire began. But when A’s behavior is analyzed, B’s
death must be intentional. If A had genuinely wished to avoid any possibility
of injury to B, she would not have started the fire. Or, if verbally warning B
to leave was not an option, she should have waited until B was seen to leave
the house before starting the fire. As it was, she waited until night when it
was more likely that B would be at home and there would be fewer people around
to raise the alarm.

a purely subjective basis, an intended to render B’s house uninhabitable, so a
reasonably substantial fire was required. The reasonable
would have foreseen a probability that people would be exposed to
the risk of injury. Anyone in the house, neighbors, people passing by, and
members of the fire service would all be in danger. The court
therefore assesses the degree of probability that B or any other person might
be in the house at that time of the night. The more certain the reasonable
person would have been, the more justifiable it is to impute sufficient desire to convert what would
otherwise only have been recklessness into intention to constitute the offence
of murder. But if the degree of probability is lower, the court will find only
recklessness proved. Some states used to have a rule that if a death occurred
during the commission of a felony, sufficient mens rea for murder would automatically be
imputed. For the most part, this rule has been abolished and direct evidence of
the required mental components is required. Thus, the courts of most states use
a hybrid test of intention, combining both subjective and objective elements,
for each offence changed.

, section-8 Criminal Justice Act 1967 provides a statutory framework
within which Mens rea is assessed. It states:

court or jury, in determining whether a person has committed an offence,

shall not be bound in law to infer that he intended or foresaw a result of his
actions by reasons only of its being a natural and probable consequence of
those actions; but

Shall decide whether he did intend or foresee that result by reference to all
the evidence, drawing such inferences from the evidence as appear proper in the

section 8(b) therefore, the jury is allowed wide latitude in applying a hybrid
test to impute intention or foresight (for the purposes of recklessness) on the
basis of all the evidence.

Offenses of basic and of specific intent

some states, a distinction is made between an offence of basic (sometimes
termed “general”) intent and an offence of specific intent.

Offenses requiring basic intent specify a mens rea element that is no more than
the negligent or reckless commission of the actus reus. The actor either knew
(recklessness) or should have known (negligence) that his action (actus reus)
would result in the harm suffered by the victim. The crime of battery, for
example, only requires the basic intent that the actor knew or should have
known that his action would lead to harmful contact with the victim.

A limited numbers of offences are defined to require a further element in
addition to basic intent, and this additional element is termed specific
intent. There are two classes of such offences:

Some legislatures
decide that particular criminal offences are sufficiently serious that the mens
rea requirement must be drafted to demonstrate more precisely where the fault
lies. Thus, in addition to the conventional mens rea of intention or
recklessness, a further or additional element is required. For example, in English law,
s18 Offences against the Person Act
defines the actus reus as causing grievous bodily harm but requires that this be

unlawfully and
maliciously — the modern interpretation of “malice” for these
purposes is the modern “recklessly” and the sui generis
rule of statutory interpretation gives “unlawfully” the same meaning;
and with the intent either to cause grievous bodily harm or to resist lawful arrest.
The rule in cases involving such offences is that the basic element can be
proved in the usual way, but the element of specific intent must be shown using
a more subjective than objective test so that the legislature’s express
requirement can be seen to be satisfied.

The inchoate
such as attempt and conspiracy require specific intent in a
slightly different sense. The rationale for the existence of criminal laws is
as a deterrent to those who represent a danger to society. If an accused has
actually committed the full offence, the reality of the danger has been
demonstrated. But, where the commission of the actus reus is in the future and
the accused is merely acting in anticipation of committing the full offence at
some time in the future, a clear subjective intention to cause the actus reus
of the full offence must be demonstrated. Without this specific intent, there
is insufficient evidence that the accused is the clear danger as feared
because, at any time before the commission of the full offence, the accused may
change his or her mind and not continue. Hence, this specific intent must also
be demonstrated on a subjective basis.

Direct and oblique intent

This has two applications:

When a person is
planning to achieve a given consequence, there may be several intermediate
steps that have to be taken before the full result as desired is achieved. It
is not open to the accused to pick and choose which of these steps are or are
not intended. The accused will be taken to intend the accomplishment of all
outcomes necessary to the fulfillment of the overall plan. For example, if a
wishes to claim on B’s life insurance policy so shoots at B who is sitting
in a bus, the bullet may have to pass through a window. Thus, even though A may
not have desired B’s death, it was an inevitable precondition to a claim.
Similarly, he may never consciously have considered the damage to the window,
but both the murder
and the damage under the Criminal Damage Act 1971 will be intended.
This is distinguishing between the direct intention which is the main aim of
the plan, and the oblique intention which covers all the intermediate steps.
More generally, a person directly intends a consequence when his purpose or aim
is to cause it even though he believes that the likelihood of it succeeding is
remote. In R v Dadson, for example, the defendant shot at a man whom he wrongly
believed to be out of range. In R v Mohan (1975) 2 All ER 193 it was held that
direct intention means, “aim or purpose” – “a decision to bring
about, insofar as it lies within the accuser’s power, the commission of the
offence. No matter whether the accused desired that consequence of his act or

.Sometimes, by
accident, a plan miscarries and the accused achieves one or more unintended consequence. In this situation,
the accused is taken to have intended all of the additional consequences that
flow naturally from the original plan. This is tested as matters of causation
and concurrence,
i.e. whether the given consequences were reasonably foreseeable, there is no
novus actus interveniens and the relevant mens rea elements were formed before
all of the actus reus components were completed.

Knowingly (knowledge):

law knowledge is one
of the degrees of mens rea that constitute part of a crime. For example,
in English
, the offence of knowingly being a passenger in a vehicle taken without
consent (TWOC)
requires that the prosecution prove,
not only that the defendant was a passenger in a vehicle and that it was taken
by the driver without consent, the prosecution must also prove that the
defendant knew that it was taken without consent.

the principle of ignorantia juris non excusat,
ignorance of or mistake about the law is no defence. The mens rea of knowledge
refers to knowledge about certain facts. It is “a positive belief that a
state of affairs exists.”

can be:


Actual knowledge:


defendant does not have actual knowledge if he believes something to the
contrary. The standard is subjective and the belief of the defendant need not
be reasonable, only honest. For
example, in R v. Williams [4]
the defendant intervened in what he thought was a mugging but was
in fact a citizen’s arrest. His mistake was upheld as a
defence against a charge of assault. In Beckford v. R [5]
the defendant was a police officer who shot and killed V. Beckford
claimed that he believed that V was shooting at him. It was found that the
correct test was whether D “honestly believed” facts which, if true,
would establish a defence. The reasonableness of the belief would be evidential
in finding whether it was truly believed.



is also found where a defendant suspects that circumstances exist and
“deliberately decides not to make any further enquiries” in case his
suspicions prove well founded.  A common example is a person who purchases
signally inexpensive and unprofaned, but desirable items from a stranger. Such
a person is likely to be fixed with constructive knowledge that the items were stolen.

Imputed knowledge:


is relevant in strict liability offences and in corporate
. For example, if a bar manager delegates his duties to others and
those others know of unlawful activities on the premises, the manager can be
fixed with imputed knowledge of the unlawful activities.


the criminal
, recklessness (sometimes also termed willful
which may have a different meaning in the United
) is one of the four possible classes of mental state constituting mens rea (the
Latin for
“guilty mind”). To commit an offence of ordinary as opposed to strict
, the prosecution must be able to prove both a mens rea and an actus reus,
i.e., a person cannot be guilty for thoughts alone. There must also be an
appropriate intention, knowledge, recklessness, or criminal negligence at the relevant time.
Recklessness may constitute an offense against property or
involve significant
danger to
another person.

law recognizes recklessness as one of the mens rea
elements to establish liability. It shows less culpability
than intention, but more culpability than criminal negligence. The test of any mens rea
element is always based on an assessment of whether the accused had foresight
of the prohibited consequences and desired to cause those consequences to
occur. The three types of test are:

subjective where
the court attempts
to establish what the accused was actually thinking at the time the actus reus
was caused;

objective where
the court imputes mens rea elements on the basis that a reasonable
with the same general knowledge and abilities as the accused would
have had those elements, although R v Gemmell and Richards deprecated this in
the UK; or

Hybrid, i.e. the test is both
subjective and objective.

most culpable mens rea elements will have both foresight and desire on a
subjective basis. Recklessness usually arises when an accused is actually aware
of the potentially adverse consequences to the planned actions, but has gone
ahead anyway, exposing a particular individual or unknown victim to the risk of
suffering the foreseen harm but not actually desiring that the victim be hurt.
The accused is a social danger because he or she is gambling with the safety of
others and the fact that the accused might have taken some steps to try to
avoid the injury from occurring is relevant only to mitigate the sentence.
Note that gross criminal negligence represents such a serious failure to foresee
that in any other person, it would have been recklessness. Hence, the
alternative phrase “willful blindness” acknowledges the link
representing either that the accused deliberately engineered a situation in
which he or she was ignorant of material facts, or that the failure to foresee
represented such a danger to others that it must be treated as though it was

English law:

modern definition of recklessness has developed from R v. Cunningham (1957) 2
AER 412 in which the definition of ‘maliciously’ for the purposes of the Offences Against The Person Act
was held to require a subjective rather than objective test when a man
released gas from the mains while attempting to steal money from the pay-meter.
As a result the gas leaked into the house next door, and partially asphyxiated
the man’s mother-in-law:

any statutory definition of a crime, malice must be taken … as requiring

An actual intention to do the particular kind of harm that in fact was done; or

Recklessness as to whether such harm should occur or not (i.e. the accused has
foreseen that the particular kind of harm might be done and yet has gone on to
take the risk of it).

then, the pendulum has swung between subjective and objective, and currently
rests nearer to the subjective end of the scale.

American Law:

Law Dictionary defines recklessness in American law as “Conduct whereby
the actor does not desire harmful consequence but…foresees the possibility
and consciously takes the risk,” or alternatively as “a state of mind
in which a person does not care about the consequences of his or her
actions.” Black’s Law dictionary 1053 (Bryan A. Garner ed., 8th ed. abr.
2005). In American courts, a wrongdoer who recklessly causes harm can be held
to the same liability as a person who intentionally does so. R v
Caldwell (1982) 1 AER 961

a disgruntled former hotel employee who had recently been fired by his boss,
got very drunk one night in late 1979 and decided to set fire to his former
employer’s hotel, intending to damage the property. At the time he set the
blaze, however, there were ten guests asleep inside the hotel, and though the
fire was extinguished quickly, Caldwell was charged not only with arson (to
which he pleaded guilty), but with the more serious charge of arson with intent
to endanger human life.

English law, the offence of “arson” was abolished in the Criminal Damage Act 1971, although the use
of the word was retained to express the particular “horror” with
which the public views offences involving the deliberate use of fire. Caldwell
was convicted under s1(2) Act 1971, which requires that the defendant shall:

Intend to destroy or damage any property or be reckless as to [the same] and

Intend by the destruction or damage to endanger the life of another or be
reckless as to whether the life of another would be thereby endangered.

of Lords
was mainly concerned with the extent to which self-induced drunkenness could be a defence to offences of
specific intent and basic intent (see intention), the latter would encompass
recklessness. The Lords ultimately ruled that self-induced intoxication could
be a defence to specific intent, but not to basic intent, i.e. recklessness.
Although the discussion of recklessness tends to be largely obiter
, Lord Dip lock’s discussion contains what was intended as a model
direction, namely that a defendant is reckless when:

he does an act
which in fact creates an obvious risk that property will be destroyed or
damaged; and

when he does the
act he either has not given any thought to the possibility of there being any
such risk or has recognized that there was some risk involved and has
nonetheless gone on to do it

that extent, the test is one of obviousness, i.e. if it would have been obvious
to the reasonable person, the defendant will be taken to have foreseen it. But
the focus of this test is the nature of the defendant’s conduct rather than his
mental state and it became the subject of major criticism. For example, how was
the direction to apply to the defendant who had considered the risk and only
continued to act after deciding (wrongly as it would later appear) that no risk
existed? In Elliot v C (a minor) (1983) 2 AER 1005, a 14-year-old schoolgirl of
low intelligence, who was tired and hungry, inadvertently burned down a garden
shed. It was accepted that she did not foresee the risk of fire, and that she
had not considered the possible consequences of her action but the court
reluctantly followed Caldwell.

death by dangerous driving for the
statutory version of a test of obviousness). In the continuing judicial debate,
Lord Keith observed in R v Reid (1992) 3 AER 673 (a reckless driving case, that
an absence of something from a person’s state of mind is as much part of his or
her state of mind as is its presence. Inadvertence to risk is no less a
subjective state of mind than is disregard of a recognized risk. Lord Keith
stressed that Lord Diplock qualified the model direction as “an
appropriate instruction” only, seeking to introduce different standards
for different offences. It was further argued that the model direction breached
Article 6 of the European Convention on Human Rights
in cases involving a minor or other person’s of reduced capacity.

requirement is that “everyone is entitled to a fair and public
hearing”. But, to judge the moral and legal culpability
of a child by reference to the understanding and life experience of an adult is
irrational and, therefore, unfair. In effect, it imposes strict
. However, Z and others v United Kingdom (2002) 34 EHRR
characterizes Article 6 as procedural rather than substantive. It is also to be
noted that after much criticism, the decision in R v Caldwell (1981) was
overruled by the House of Lords in the case of R v G (2003).Caldwell-style
reckless (an objective test) was phased out after the case of R v G (see
below), which introduced a form of subjective recklessness to cases involving
criminal damage. The majority of mens rea of recklessness is now ‘tested’ using
the Cunningham test.

Two boys, aged 11 and 12 years, were camping without their parents’
permission when they entered the back yard of a shop in the early hours of the
morning, lighting some newspapers which they had found in the yard, they left,
with the papers still burning. The newspapers set fire to nearby rubbish bins
standing against the shop wall, where it spread up the wall and on to the roof
of the shop. Approximately £1m damage was caused. The children argued they
expected the fire to burn it out and said they gave no thought to the risk of
it spreading. When their appeal reached the House of Lords, Lord Bingham saw
the need to modify Lord Diplock’s definition to take account of the defence of infancy which contains the concept of
“mischievous discretion”. This rule requires the court to consider
the extent to which children of eight or more years are able to understand the
difference between “right” and “wrong”. The Diplock test of
obviousness might operate unfairly for 11- and 12-year-old boys if they were
held to the same standard as reasonable adults. Bingham stated that a person
acts ‘recklessly’ with respect to:

a circumstance
when he is aware of a risk that it exists or will exist;

a result when he
is aware of a risk that it will occur; and it is, in the circumstances known to
him, unreasonable to take the risk.”

brings the test back to a subjective standard so that defendants can be judged
on the basis of their age, experience and understanding rather than on the
standard of a hypothetical reasonable person who might have better knowledge
and understanding. Nevertheless,

R v G and another [2003] 1 Cr App R 21

test remains hybrid because the credibility of the accused’s denial of
knowledge and understanding will always be judged against an objective standard
of what you would expect a person of the same general age and abilities as the
accused to have known.

Booth v Crown Prosecution Service (2006) All ER (D) 225 (Jan), the Divisional
Court upheld the defendant pedestrian’s conviction on a charge under the Criminal Damage Act 1971 that, by rashly
dashing into the road, he recklessly damaged the vehicle that hit him. This
result must be correct if a pedestrian does actually consider the possibility
of damage any vehicle that might become involved in an accident, but it seems
more likely that, if the defendant stopped to consider any risks at all, it
would surely have been confined to the risk of his own injury.

Criminal negligence:

the criminal
, criminal negligence is one of the three general classes of mens rea (Latin for
“guilty mind”) element required to constitute a conventional as
opposed to strict liability offence. It is defined as:

inattentive, neglectful, willfully blind, or in the case of gross
what would have been reckless in any other defendant.



constitute a crime,
there must be an actus reus (Latin for “guilty act”)
accompanied by the mens rea (see concurrence).
Negligence shows the least level of culpability,
intention being the most serious and
recklessness of intermediate seriousness, overlapping with gross negligence.
The distinction between recklessness and criminal negligence lies in the
presence or absence of foresight as to the prohibited consequences.
Recklessness is usually described as a ‘malfeasance’ where the defendant
knowingly exposes another to the risk of injury. The fault lies in being
willing to run the risk.

criminal negligence is a ‘misfeasance or ‘nonfeasance’ (see omission), where the fault lies in the failure
to foresee and so allow otherwise avoidable dangers to manifest. In some cases
this failure can rise to the level of willful blindness where the individual
intentionally avoids adverting to the reality of a situation (note that in the United
, there may sometimes be a slightly different interpretation for willful
). The degree of culpability is determined by applying a reasonable
standard. Criminal negligence becomes “gross” when the
failure to foresee involves a “wanton disregard for human life” (see
the discussion in corporate manslaughter).

test of any mens rea element is always based on an assessment of whether the
accused had foresight of the prohibited consequences and desired to cause those
consequences to occur. The three types of test are:

where the court
attempts to establish what the accused was actually thinking at the time the
actus reus was caused;

where the court imputes mens rea elements on the basis that a reasonable
with the same general knowledge and abilities as the accused would
have had those elements; or hybrid, i.e. the test is both subjective and

most culpable mens rea elements will have both foresight and desire on a
subjective basis. Negligence arises when, on a subjective test, an accused has
not actually foreseen the potentially adverse consequences to the planned
actions, and has gone ahead, exposing a particular individual or unknown victim
to the risk of suffering injury or loss. The accused is a social danger because
he or she has endangered the safety of others in circumstances where the
reasonable person would have foreseen the injury and taken preventive measures.
Hence, the test is hybrid.

Examples of criminally negligent crimes are criminally
negligent homicide
and negligent endangerment of a child. Usually the punishment
for criminal negligence, criminal recklessness, criminal endangerment, willful
blindness and other related crimes is imprisonment,
unless the criminal is insane (and then in some cases the sentence
is indeterminate).

Ignorantia juris non excusat:

juris non excusat or Ignorantia legis neminem excusat (Latin for “ignorance of
the law does not
excuse” or “ignorance of the law excuses no one”) is a public policy holding that a person who is
unaware of a law may not escape liability for violating that law merely because he or she
was unaware of its content; that is, persons have presumed knowledge of the



rationale behind the doctrine is that if ignorance were an excuse, persons
charged with criminal offenses or the subject of civil lawsuits would
merely claim they were unaware of the law in question to avoid liability,
whether criminal or civil. Thus, the law imputes knowledge of all laws to all persons within
the jurisdiction
no matter how transiently. Even though it would be impossible, even for someone
with substantial legal training, to be aware of every law in operation in every
aspect of a state’s activities, this is the price paid to ensure
that willful blindness cannot become the basis of exculpation.
Thus, it is well settled that persons engaged in any undertakings outside what
is common for a normal person, such as running a nuclear power plant, will make themselves aware
of the laws necessary to engage in that undertaking. If they do not, they
cannot complain if they incur liability.

doctrine assumes that the law in question has been properly published and
distributed, for example, by being printed in a government gazette, made
available over the internet, or printed in volumes available for sale to the
public at affordable prices.

the Criminal
, although ignorance may not clear a defendant of guilt, it can be a
consideration in sentence, particularly where the law is unclear or
the defendant sought advice from law enforcement or regulatory officials. For
example, in one Canadian
case, a person was charged with being in possession of gambling
devices after they had been advised by customs officials
that it was legal to import such devices into Canada. Although the defendant
was convicted, the sentence was an absolute discharge.

addition, there were, particularly in the days before satellite
communication and cellular phones, persons who could genuinely be
ignorant of the law due to distance or isolation. For example, in a case in British
, pair of hunters was acquitted of
game offenses where the law was changed during the period of time they were in
the wilderness hunting. In reaching this decision, the court refused to follow
an early English
case in which a seaman on a clipper before
the invention of radio was convicted even though the
law had been changed while he was at sea (Bailey (1800) Russ & Ry 1).

Multiple Approaches to Criminal

theories of criminal behavior try to address the question of why people commit
crime on the assumption that such a course of action is inexplicable therefore
criminals are somehow different from the rest of us, and that there might be a
single cause of criminal behavior. Most psychological researches tell us that
our behavior is a complex interaction between genetic, environmental, social
and cultural factors.

Different Theories of Criminal

The Theory of Cesaro Lomborso:


first attempt to understand the personality of offenders in physical terms was
made by Lomborso of the Italian school of criminological thought who is
regarded as the originator of modern criminology. He was the first employ
scientific methods in explaining criminal behavior and shifted the emphasis
from crime to criminal. The classified criminals into three main categories:-

Atavists or hereditary criminals.—He also termed them as born-criminals. In his
opinion born-criminals were of a distinct type who could not refrain from
indulging in criminality and environment had no relevance whatsoever to the
crimes committed by the Atavist.

criminals.—the second category of criminals according to him congested of
insane criminals who resorted to criminality on account certain mental
depravity or disorder.

Third category of criminals according to him was those of criminoids who were
physical criminal type and had a tendency to commit crime to overcome their
inferiority in order to meet the needs of survival.

was the first criminologist who made an attempt to understand the personality
of offenders in physical terms. He employed scientific methods in explaining
criminal behavior and shifted the emphasis from crime to criminality. His
theory was that criminals were different physically from normal persons and
possessed few physical characteristics of inferior animal world.

The Theory of Enrico Ferri:

Ferri was a chief exponent of the positive school of criminology. He challenged
Lombrosian view of criminality. Through his scholarly researches he proved that
may are biological reasons were not enough to account for criminality. He
believed that emotional reaction, social infirmity or geographical conditions
also play a vital role in determining criminal tendencies in man. He emphasized
that criminal behavior is an out come of a variety of factors having their
combined effect on the individual. According to him social change, which is
inevitable in a dynamic society, result in disharmony, conflict and cultural
variation. As a result of this, social disorganization takes place and
traditional patterns of social control mechanism totally break down. In the
weak of such rapid social changes, the incident of crime is bound to increase
tremendously. The heterogeneity of social conditions destroys the congenial
relationship, creating a social vacuum which proves to be a fertile ground for


The Theory of Gabriel Tarde:


de Tarde, the eminent French criminologist and social psychologist, he was a
critic of positive school of criminology. He asserted that influence of social
environment was most emphatic on the criminal behavior and the biological and
physical factors one had a casual effect on it. He pointed out that law of
insertion and imitation was responsible for the incidence of crime the members
of society are prone to imitate the behavior of their associates. Likewise, the
subordinate or inferior members have a tendency to imitate the ways of their
superiors. Consequently, as regards crimes, the beginners have a tendency to
imitate the acts of habitual criminals and thus they lend into criminality. The
effect of imitation is still worse on youngersters who are prone to fall on
easy prey to criminality. Particularly, the impact of move and cinema and
television is so great on teenagers that it perverts their thoughts and actions
which eventually make them delinquents. Thus there is considerable truth in
Trade’s assertion that, “crime like other social phenomenon starts as a fashion
and becomes a custom.” He critised Lombroso’s
anthrometric measurements on which he formulated his theory of criminal
behavior, and offered a social explanation of crime. He asserted that criminal
behavior is the result of a learning process, therefore, any speculation
regarding direct relationship between physical appearance and criminal
propensities of criminals would mean overlooking the real causes of
criminality. He also denounced the proposition of phrenologists who tried to
establish a correlation between the skull, the brain and the social behavior of
a person.

Biological and Psychological Perspectives

Biological Factors and criminality:

differences in human personality also account for criminality in human beings.
The logic behind biological explanation of crime is that structure determines
function and persons behave differently owing to the fact that they are somehow
structurally different. The physical and biological abnormalities are generally
responsible for criminal behavior. Boi-criminalogy investigates the physical
aspects of psychological disorders. It has been known for some time that adults
who suffer from depression show abnormalities in brain waves during sleep,
experience disturbed nervous system functioning and display biochemical
abnormalities. Research on depress children revels the same physical problems
and furthermore, their adult relatives show high rates of depression as well.
In fact, children whose parents suffer from depression are more then four times
more likely then the average child to experience a similar illness. It thus
appears that depression in an inherited condition that manifests itself in
psychological and physical disturbances. They investigate the biological
correlates of criminality, including a genetic predisposition to commit crime.
The XYY symptom through now generally discounted as of criminality suggest that
aggressive and violent behavior may be at least partly determined by genetic


Genetic and Environmental Influences
on Criminal Behavior

behavior has always been a focus for psychologists due to the age old debate
between nature and nurture. Is it the responsibility of an individual’s genetic
makeup that makes them a criminal or is it the environment in which they are
raised that determines their outcome? Research has been conducted regarding
this debate which has resulted in a conclusion that both genes and environment
do play a role in the criminality of an individual. This evidence has been
generated from a number of twin, family, and adoption studies as well as
laboratory experiments. Furthermore, the research has stated that it is more
often an interaction between genes and the environment that predicts criminal
behavior. Having a genetic predisposition for criminal behavior does not
determine the actions of an individual, but if they are exposed to the right
environment, then their chances are greater for engaging in criminal or
anti-social behavior.

is a vast amount of evidence that shows our criminal justice system is the new
home for individuals with psychological problems. Although this may seem like a
solution to some, it is creating a dilemma for our society. Once we label these
individuals as criminals it creates a stigma for those who may suffer from
psychological problems. Certain psychological problems have been shown to be
heritable and if given the right circumstances, individuals with those genes
could find themselves engaging in criminal activity. Therefore, should society
look towards limiting the reproductive capabilities of individuals who suffer
from certain psychological problems to better society?

same question was asked back in the late nineteenth and early twentieth
centuries when the role of genetics in crime was widely accepted (Joseph,
2001). Prominent researchers believed that genes were fully responsible for
criminal activity and that criminals could be identified by their physiological
features. Along with this information and the idea of a eugenics movement
during the same time period, it was not surprising to learn that acts of
sterilization took place to rid society of “criminals, idiots, imbeciles, and
rapists” (Joseph, 2001, p. 182). This period was therefore marked with
inhumane treatment and the belief that genes were the sole reason behind criminal

long after the practices of controlled breeding, there was evidence to support
the idea that the environment also played an important role in crime. Early
family studies were conducted that showed a predisposition for criminal
behavior as a result of inherited characteristics, but that an individual’s
characteristics and personality could still be modified by the environment
(Joseph, 2001). Although these studies were void of high validity and
reliability, it still raised the question of whether the environment can also
influence individuals to act in a criminal manner. The debate between genetics
and environment continues today with much more reliable research and data.

Adoption, and Family Studies:

has been great debate between researchers regarding the outcomes of twin,
adoption, and family studies. Some claim that these studies support the notion
of a genetic basis to criminal behavior (Tehrani & Mednick, 2000). On the
other hand, some have concluded that there is not enough evidence from these
twin, family, and adoption studies to profess that genetics do play a role in
antisocial or criminal behavior (Lowenstein, 2003).

studies are conducted on the basis of comparing monozygotic (MZ) or identical
twins and their rates of criminal behavior with the rates of criminal behavior
of dizygotic (DZ) or fraternal twins. Ordinarily these studies are used to
assess the roles of genetic and environmental influences. If the outcomes of
these twin studies show that there is a higher concordance rate for MZ twins
than for DZ twins in criminal behavior, then it can be assumed that there is a
genetic influence (Tehrani & Mednick, 2000). A study conducted looked at
thirty two MZ twins reared apart, who had been adopted by a non-relative a short
time after birth. The results showed that for both childhood and adult
antisocial behavior, there was a high degree of heritability involved (Joseph,
2001). This study was of particular importance because it examined the factor
of separate environments. Another researcher studied eighty-five MZ and one
hundred and forty-seven DZ pairs and found that there was a higher concordance
rate for the MZ pairs. Ten years later after checking police records of these
same twins, two other researchers concluded that there was a fifty-four percent
heritability of liability to crime (Joseph, 2001). Around the same time of the
study just mentioned, two researchers studied forty-nine MZ and eighty-nine DZ
pairs, but found no difference in the concordance rates. They concluded
therefore that in respect to common crime, hereditary factors are of little
significance (Joseph, 2001). Many other twin studies have been conducted, but
there is concern over the validity of those studies and their ability to
separate out the nature and nurture aspects; therefore other sources of
information should be examined.

studies are critical in examining the relationship that exists between adopted
children and both their biological and adoptive parents because they assume to
separate nature and nurture. Studies have been conducted that test for the
criminal behavior of the adopted-away children, if their biological parents had
also been involved with criminal activity. In Iowa, the first adoption study
was conducted that looked at the genetics of criminal behavior. The researchers
found that as compared to the control group, the adopted individuals, which
were born to incarcerated female offenders, had a higher rate of criminal
convictions as adults. Therefore this evidence supports the existence of a
heritable component to antisocial or criminal behavior (Tehrani & Mednick,
2000). Another study in Sweden also showed that if a biological background
existed for criminality, then there was an increased risk of criminal behavior in
the adopted children. In Denmark, one of the largest studies of adopted
children was conducted and found similar results to the previous studies. The
defining feature of the Denmark study was that the researchers found a
biological component for criminal acts against property, but not for violent
crimes (Joseph, 2001). Children whose biological fathers had been convicted of
property crimes were more likely to engage in similar behavior, when compared
to those biological fathers who had been convicted of violent crimes. According
to an article by Jay Joseph (2001), who studied all of the minor and major
adoption studies, the majority of researchers have found and agreed upon the
non-significance of genes in violent crime. This reestablishes the findings
from the studies mentioned already in that there may be a genetic component to
antisocial behavior or that genes influence criminal behavior, but specifically
for property offenses.

studies are the third type of instrument used to assess the relationship between
genetics and environmental influences on criminal or antisocial behavior.
Research in this field has probably been the least accepted by psychologists
and other scholars because of the degree of difficulty in separating out nature
and nurture in the family environment. Children experience both the influence
of their parents’ genes and also the environment in which they are raised, so
it is difficult to assign which behaviors were influenced by the two factors.
Twin studies have this flaw, as stated earlier, but it is more prevalent in
family studies. An additional concern with family studies is the inability to
replicate the results, therefore leading to a small number of studies.
Regardless of these drawbacks, one family study in particular should be
acknowledged for its findings.

Nelen, Breakefield, Ropers, and van Oost (1993) conducted a study utilizing a
large Dutch family. In their study they found a point mutation in the
structural gene for monoamine oxidase A (MAOA), a neurochemical in the brain,
which they associated with aggressive criminal behavior among a number of males
in that family (Alper, 1995). These males were reported to have selective MAOA
deficiency, which can lead to decreased concentrations of
5-hydroxyindole-3-acetic acid (5-HIAA) in cerebrospinal fluid. Evidence
suggests that low concentrations of 5-HIAA can be associated with impulsive
aggression. These results have not been confirmed in any additional family
studies, which lead to a need for more studies to determine if other families
share similar results (Brunner et al., 1993). However, this one family study
does seem to suggest that genetics play an important role in antisocial or
criminal behavior.

most recent and perhaps most impotent discover in the relation of criminal
behavior to biochemical factors (food allergies, hormonal imbalances) and
neurophysiologic factor.

Food allergies:

have identified the following food components that may result in severe
allergies reactions:

in aged cheese and wine)

glutamate(used as a flavor enhancer in many foods)

in artificial sweeteners)

in caffeine)

of these food components has been associated with behavioral disorders,
including criminality.

Hormonal Imbalances:


researches have tried to show that hormonal imbalances have an adverse effect
on criminality. In other words, hormonal imbalances affect the thinking power
of the brain and control over nervous system and this may lead to criminality.
But the general consensus does not except this findings. The more accepted view
is that hormonal imbalance may that as catalyst for criminal behavior and
provide favorable biological environment for crime causation but criminality
can not be attribute to this imbalances alone.

Neurophysiological factors:


EEG abnormalities:

electroencephalogram (EEG) is a tracing made by an instrument that measures
cerebral functioning by recording by rerecording brain wave activity with
electrodes that are placed on the scalp. Numerous studies that have examined
the brain activity of violent prisoners reveal significant difference between
the EEGs of criminals and those of noncriminal.

Minimal brain dysfunction:

brain dysfunction (MBD) is classifies as “attention deficit hyperactivity
disorder” MBD produces such asocial behavioral patterns as impulsivity,
hyperactivity, aggressiveness. Low self-esteem, and temper outbursts. The
syndrome is noteworthy for at least two reasons. First, MBD makes explain
criminality when social theories fail to do so, that is, when neighborhood,
peer and familiar associations do not suggest a high risk of delinquency.
Second MBD is a easily overlooked diagnosis. Parents, teachers and clinicians
tend to focus more on the symptoms of a Childs psychopathology then on the
possibility of brain dysfunction.

Psychology and Criminality:


Psychoanalytic theory of criminality attributes delinquent and criminal
behavior to conscience that is either so overbearing that it arouses feelings
of guilty or so weak that it can not control the individuals impulses and to a
need for immediate gratification. Sigmund Freud, the founder of psychoanalysis,
suggested that criminality may result from an overactive conscience that
results in excessive guilty feelings. In treating patients he noticed that
those who were suffering from unbearable guilty committed crimes in order to be
apprehended and punished. The psychoanalytic approach is still one of the most
prominent explanations for both normal and a social functioning. Three basic
principles still appeal to psychologists who study criminality:

actions and behavior of an adult are understood in terms of childhood

and unconscious motives are intertwined, and their action must be unraveled if
we are to understand criminality.

is essential a representation of psychological conflict


psychologist Lawerance Kohlbrrg, who pioneered this theory, has found that moral
reasoning develops in three stages. In the first preconventional stage,
children moral rules and moral values consist of the do’s and don’t that avoid punishment.
A desire to avoid punishment and a belief in the superior power of authorities
are thee two central reasons for doing what is right. According to this theory,
children under the age of 9 to 11 usually reason at this preconventional level.
They think, in effect, “if I steal, what are my chances of getting caught and

typically reason at the conventional level. At this level, individuals believe
in and have adopted the values and rules of society. Finally, at the post
conventional level, individuals critically examine customs and socials rules
according to their own sense of universal human rights, moral principles, and
duties. According to Kohlberg and his colleagues, most delinquents and
criminals reason at the preconventional level. Low moral development or
preconventional reasoning alone however does not result in criminality. Other
factors such as the significant social bonds may play a part.


Learning aggressive and violence:


learning theory maintains that delinquent behavior is learned through the same
psychological process as all nondelinquent behavior is learned when it is
reinforced and not learned when it is not reinforced. Albert Bandura, a leading
proponent of social learning theory, argues that individuals learn violence and
aggression though behavioral modeling. Children learn how to behave by
fashioning their behavior after that of others. Thus behavior is socially
transmitted though examples, when come primarily from the family, the
subculture, and the mass media. To understand the influence of the social
environment outside home, social learning theorists have outside gangs, which
often provide excellent modles of observational learning of violence and
aggression. They have found in fact, that violence is very much a norm shared
by some people in some community or gang. The highest incidence of aggressive
behavior occurs where aggressiveness is a desired characteristic, as it is in
some subcultures. Children learn violence in front of the television set and at
the movies, as well children who have seen others being rewarded for violent
acts often believe that violence and aggression are acceptable behavior.

factors such as age, sex and certain endocrinal imbalance also seen to have a
correlation with the criminality of offenders. Adolescents and juveniles are
more prone to offences like stealing, vandalism and sexual assaults as they
readily fall a pray to the urges of sex and other lustful activities because of
their tender age. The offences of theft, gambling, drunkenness, breach of
traffic rules etc., are more common with young persons who are normally between
the age group of 18-30 years. This is probably because of the fact that these
offences involve considerable display of courage, boldness and adventure which
these young persons normally possess. Persons advanced in age and experience are
more prone to offences like white collar crime, fraud, cheating embezzlement
etc., because the nature of these crimes require maturity of mine and tact of
handle intricate situations in case of detection.

biological and psychological theories of criminal behavior share the assumption
that such behavior is caused by some underlying physical or mental condition
that separates the criminals from the noncriminal. They seek to identify the
“kind of person “who becomes a criminal and to find the factors that caused the
person to engage in criminal behavior.

strain and culture deviance perspective and formulated between 1925 and 1940
and still popular today, lake the foundation subculture theories. It focuses on
the social process that cause people to engage in criminal activity. Strain and
cultural deviance theories both assume that social class and criminal behavior
are related, but they differ as to the nature of the relationship. Both
theories locate the causes of crime in the disadvantageous position of persons
at lowest stratum in a class based society.

Strain theory:

Strain Theory is associated mainly with
the work of Robert Merton. He felt that there are institutionalized paths to success in society. Strain
theory holds that crime is caused by the difficulty those in poverty have in
achieving socially valued goals by legitimate
means. As those with, for instance, poor educational attainment have difficulty
achieving wealth and status by securing well paid employment, they are more
likely to use criminal means to obtain these goals. Merton’s suggests five
adaptations to this dilemma:

individuals who accept socially approved goals, but not necessarily the socially
approved means.

those who reject socially approved goals and the means for acquiring them.

those who buy into a system of socially approved means, but lose sight of the
goals. Merton believed that drug users are in this category.

those who conform to the system’s means and goals.

people who negate socially approved goals and means by creating a new system of
acceptable goals and means.

difficulty with strain theory is that it does not explore why children of
low-income families would have poor educational attainment in the first place.
More importantly is the fact that much youth crime does not have an economic
motivation. Strain theory fails to explain violent crime, the type of youth
crime which causes most anxiety to the public.


Cultural deviance theorists:

deviance theorists by contrast claim that lower class people have a different
set of values, which tends to conflict with the values of the middle class.
Consequently, when lower class persons conform to there own value system they
may be violating conventional norms.

attributes crime to a set of values peculiar to the lower class. The three
major cultural deviance theories are social disorganization, differential
association and culture conflict.

disorganization theory:

focuses on the development of high crime areas associated with the
disintegration of conventional values caused by rapid industrialization,
increased immigration and urbanization.

Theory of
differential association:

theory was propounded by Edwin H. Sutherland in1939. it asserts that crime is
learnt by association with others. According to him behavioral learning takes
place through personal contacts with other people. This learning in the context
of crime, involves both the techniques for committing the crimes and the
attitudes and rationality or justification for their committal. Briefly stated
the theory of differential association centers round the theme that a person
becomes criminal if there is an excess of influence on him favorable to the
violation of the law as compared with the influences which are unfavorable to
violation of law.

conflict :

a dynamic society social change is an inevitable phenomenon the impact of modernization,
urbanization and industrialization in modern dynamic society may sometimes
result in social disorganization and this may lead to culture conflict between
different sections of society. It may be between old and new values, local and
imported values and traditional and the government imposed values.

shift of population due to migration or immigration quite often affects the
crime-rate of a given place. The culture conflict between inhabitants and
immigrants results in deviant behavior.

Sub culture Theory and The Formation
of Sub cultures



to strain theory is subculture theory. The inability of youths to
achieve socially valued status and goals results in groups of young people forming deviant or
delinquent subcultures,
which have their own values and norms. Within these groups criminal behavior
may actually be valued, and increase a youth’s status the notion of delinquent
subcultures is relevant for crimes that are not economically motivated. Male gang members could be
argued to have their own values, such as respect for fighting
ability and daring. However it is not clear how different this makes them from
‘ordinary’ non-lawbreaking young men. Furthermore there is no explanation of
why people unable to achieve socially valued goals should necessarily choose
criminal substitutes. Subcultural theories have been criticized for making too
sharp a distinction between what is deviant and what is ‘normal’. There are
also doubts about whether young people consciously reject mainstream

The formation of subcultures:


theories explain criminal behavior as a result frustration suffered by lower
class people deprived of legitimate means to reach their goals and that culture
deviance theories assume that people become criminal by learning criminal
values of the groups to which they belong. In conforming to their own group
standards these people break the laws of the dominant culture. A subculture is
a subdivision within the dominant culture that has its own norms, belief and values.
Subcultures typically emerge when people in similar circumstances find
themselves isolated from the mainstream and band together for mutual support.
Subcultures may from among members of racial and ethnic minorities among
prisoners among occupational groups among ghetto dwellers. Subcultures exist
within a large society not a part from it. They therefore share some of its
values. Nevertheless, the life styles of their members are significantly
different from those of the dominant culture. 
Subcultural theories in criminology were developed to account for
delinquency among lower class males, especially for on of its most important
expiration the teenage gang.


practices (hitting), gang activities (street wars) domestic quarrels
(battering), and social events (drunken brawls) are all permeated by violence.
Violence is not considered antisocial. Thus members of this subculture feel no
guilty about their aggression.

Mass-media influence:

important of mass media influencing the human mind has been repeatedly
emphasized by some experts. Experience has shown that television and films have
the maximum impact on the viewers due to combined audio-visual impact. Most of
serials or films shown on television or cinema halls depict scenes of violence
which adversely affect the viewers, particularly the young boys and girls who
often tend to imitate the same in their real life situations. Most
criminologists believe that films and television are major contributors to
violent behavior. A survey conducted by the broadcasting group of the House of
Lords indicated that exposure to media violence was closely linked with
aggressive behavior.


Middle-class Delinquency:

explanations of middle class delinquency are extensions of subculture
explanation of lower class delinquency. Albert Chosen, for example, suggest
that change in the social structure have weakened the value traditionally
associated with the delay of gratification. some criminologists say that
growing number of youngsters no longer believe the way of reach there goals in
through hard for and delay pleasure. Rather behavior has become more hedonistic
and more peer oriented. While most youth subculture exhibits none delinquent
behavior, sometime the pleasure-seeking activities have led to delinquent acts.[4]

Board and rest these youngsters seek to break the monotony with artificial
excitement and conspicuous consumption of cars clothes, alcohol, drugs and
sexual activity. 

Social control theory:


term “social control” has taken on a wide variety of meanings in general it
encompasses any mechanism that leads to conformity to social norms mainstream
studies of social control take on of to approaches. Macro sociological studies
focus on formal system of social control. Most contemporary criminological
research takes the micro sociological approach focusing on informal control
system. Travis Hirschi’s social control theory has had a long lasting impact on
the scholarly community. He pointed four social bonds that promote adherence to
society’s values: attachment, commitment, involvement, and belief. 



first bond, attachment, takes three forms: attachment to parents, to school
(teachers), and to peers. According to Hirschi, youths who have formed a
significant attachment to a parent refrain from delinquency because the
consequences of such an act would be likely to place that relationship in
jeopardy. The bond of affection between a parent and child thus becomes a
primary deterrent to criminal activities. The strengths of this deterrent
depend on the depth and quality of parent- child interaction.

Hirschi considered the importance of the school. He linked inability to
function well in school to delinquency throw the following chain of events:
academic incompetence leads to poor school performance, poor school performance
results in a dislike of school, which lead to rejection of the teachers and
administrators as authorities. The result is delinquent acts. Thus attachment to
school depends on ones appreciations for the institution, ones perception for
the institutions, ones perception of how he or she is received by teachers and
peers, and how well one does in class.



second group of bonds consists of commitment to or investment in conventional
lines of action, that is, support of conventional lines of action that tie the
individual to the society’s moral or ethical code. He provided empirical
support for the notion that the greater the aspiration and expectation, the
more unlikely delinquency becomes. Also “students who smoke, those who drink,
and those who date are more likely to commit delinquent acts,…the more the boy
is involved in adult activities, the greater his involvement is delinquency.”




third bond is involvement or preoccupation with activities that promote the
interests of society. This bond is derived from involvement in school-related
activities rather than in working-class adult activities (such as smoking and
drinking).a person who is busy doing conventional things has little time for
involvement in deviant activities.



investigators today believe personal controls are as important as social
control in keeping people from committing crimes. Albert Reiss a sociologist
was one of the first researchers to isolate a group of personal and social
control factors. According to Reiss, delinquency is the result of: 

a failure to
internalize socially accepted and prescribed norms of behavior,

a breakdown of
internal controls, and

A lack of social
rules that prescribed behavior in the family, the school, and other important
social groups.

direct control, a purely external control, depends on rules, restrictions and
punishments. The containment theory of Walter Reckless assume that every person
has a containing external structure (a role in a social group with reasonable
limits and responsibilities and alternative means of attaining satisfaction)
and a proactive internal structure that depends on a good self-concept,
self-control a well-developed conscience a tolerance for frustration and a
strong sense of responsibility. In effort to reduce delinquency a variety of
programs have been instituted to help parents Schools, and neighborhood groups
develop social controls.


Alternative Explanations of Crime:
Labeling, Conflict, and Radical Theories


Labeling theory:

theory viewed criminals not as inherently evil person’s engager in inherently wrong
acts but rather as individuals who had criminal status conferred upon them by
both the criminal justice system and the community at large. From this
perspective the criminal act themselves are not particularly significant, the
social reaction them, however, is. Thus deviance and its control involve a
process of social definition in which response of others to an individual’s
behavior is the key influence on subsequent behavior and on individual view of
themselves. In focusing on the way in which the social interaction creates
deviance, this theory declares that the reaction of other people and the
subsequent effects of those reactions
create deviance. Once it became know that a person has engaged in deviant acts,
he or she is segregated from conventional society and a label such as “thief,”
“whore,”or “junki”is an attached to the transgressor. This process of
segregation creates outsider or outcast from society, who begin to associate
with others who also have been cast out. As more people begin to think of these
peoples deviants and to respond to them accordingly, the deviants react to the
response by continuing to engage in the behavior society now expect of them.
Through this process their self images gradually change as well. In sum the act
factor is the label that is attached to an individual: if men define situation
as real, they are real in their consequences.

Basic assumptions of labeling theory:

the 1940s the sociologist Edwin Lemert elaborated on tanneubaums discussion by
formulating the basic assumption of labeling theory. He remained us that people
are constantly involved in behavior that runs the risk of being labeled
delinquent or criminal. Although many run that risk only a few are labled.The
reason for this disparity, he contended that is that there are two kinds of
deviant acts: primarily and secondary. Primarily deviations are those initial
deviant acts that bring on the first social response. These acts do not affect
the individual’s self-concept. It is the secondary deviations the acts that
follow the societal response to the primarily deviation that are of major
concern. These are the acts that result from the change in self concept brought
about by the labeling process.

scenario goes something like this:

An individual commits a simple deviant act (primary deviation), such as
throwing a stone at a neighbor’s car.

There is an informal social reaction, the neighbor gets angry

The individual continues to break rules (primary deviations)-lets the
neighbor’s dog out of the yard.

There is increased but still primary social reaction, the neighbor tells the
youth’s parents

The individual commits more serious deviant act, he is caught shoplifting
(still primary deviation).

There is formal reaction; the youth is adjudicated a “juvenile delinquent” in
juvenile court.

The youth is now labeled “delinquent” by the court and bad by the neighborhood,
by his conventional peers and by others.

The youth begins to think of him as “delinquent” he joins other conventional youths.

The individual commits another, yet more serious deviant act (secondary
deviation)- robs a local grocery store with members of a gang.

The individual is returned to juvenile court, has more offences added to his
record, is cast further from conventional society, and takes on a completely
deviant lifestyle.

to Lambert’s theory, secondary deviance sets in after the community has become
aware of an individual’s primary deviance.

key concept in conflict theory is power. Power is derived from the Latin potis,
“able”. The powers who have political control in any given society are the ones
who are able to make things happen .they have power. The theory holds that the
people who possess the power work to keep the powerless at a disadvantage. The
law thus have the origin in the interest of the few these few shape the values
and the values in tern shape the law. It follows that the person who is defined
as criminal and the behavior that is defined as crime at any given time and
place mirror the society power relationship and the definitions are subject to
change as other interests gain power. The changing of definition s can be seen
in those acts w wee now designated as “victimlrss” crimes. The legal status of
victimless crimes is subject to change. But what about murder, a crime that is
considered evil in all contemporary socities?Many conflict theorists would
respond that the definition of murder as a criminal offence  is like wise rooted in the effort of some
groups to guard its power. A political terrorist may very well become a
national hero .these theory further emphasized the relativity of norms to time
and place. Capital punishment is legal in some states, outlawed in others,
alcohol consumption is illegal in Saudi Arabia but not in the United States. In
sum powerful groups maintain their interest by making illegal any behavior that
might be a threat to them. Laws thus become a mechanism of control or “a weapon
in social conflict.”

Radical theory:

theory demands revolutionary change. It singes out the relationship between the
owners of the means of production and the workers under capitalism as the toot
cause of crime and of all social iniquities. This theory demands the overthrow
of the existing order, which is said to perpetuate criminality by keeping the
oppressed classes under the domination of the capitalist oppressor. Only true
socialism can reduce the crime rate.

Sociological Theory of Criminal Behavior

Prof. Sutherland Theory of Criminal


Sutherland made an intensive study of criminals & offered to major
explanation for criminal behavior namely:-

The process
operating at the type of occurrence of which he called dynamic explanation of

The process
operating in the earlier life history of the criminal which he termed as the
historical or generic explanation of crime.

dynamic explanation of crime causation was subsequently favored by the
psychologists, biologists & physiatrists & infect formed the basic for
subjective approach to crime. It suggests that the cause of criminal behavior
in immediate favorable situation which the criminal finds conducive for the
criminal act.

to the generic expiation of criminal behavior Sutherland drew the following

Criminal behavior
is learnt and not inherited.

The process of
learning criminal behavior operates through the inter-action of the criminal
with other person and his association with them.

The greatest
influence on the individual is that of his intimate personal group which moulds
his conduct in many ways.

The association
with regard to criminal behavior and anti criminal behavior may very in respect
of its duration, priority or intensity.



Freud’s theory of criminal behavior:


contend that offenders lend into criminality on account of functional
deviations and mental conflicts .Sigmund Freud explained mental conflicts in
the personality of criminals in terms of ‘id’, ego and super ego. He asserted
that ‘id’generets basic biological and physiological urges and impulses in a
person such as sexual desire, hunger, affection for kith and kins, lust for
power etc.

to him, the ego does not exist at birth, but it something the individual learns
that it is fed only after crying and child learns. The superego is largely part
of the unconscious which exists in the unconscious areas of mind. It thus
characterizes the fully socialized and conforming member of society. It is the
impact of moral and ethical attitudes of parents with whom the child has his or
her earliest contracts and relationships which helps in formation of the super
ego. Thus it would be seen that id demands pleasure, while the super ego
demands control and repression and both push ego towards its own. As a result
of this there is conflict which is difficult to resolve. Where the super ego in
a child is not well developed, he is likely to be drawn towards delinquency. He
posted that the failure to develop super ego was generally the result of
parents being unloving, harsh or absent during the child’s upbringing. It is
for this reason that socializing processes had failed to work on those children
whose latent delinquency had become dominant; the children were, therefore,
dis-social, if not anti-social.[5]

also recognize that other factors such as relationships with persons outside
the family and general social environment can also affect the formation of
super-ego. If super-ego is over-developed, it my lead to guilty feelings or

attributes criminal behavior to inferiority complex and observes that crime is
an overt compassion for a deep feeling of inferiority, which is often the
result of distrust or neglect of child by the parents.

Criminal behavior: Bangladesh


society creates large disparities between rich and poor, or high or low social
classes. The very fabric of the present day Bangladeshi society is underpinned
by the imbalance in distribution of wealth in our society. The disparity of
wealth between the ‘high’ and the ‘low’ classes in our society is becoming more
prominent in the course of the time due to multiple factors, including lack of
political direction, aggressiveness of the unbridled global market economy and
our incompetence in implementing relevant national policies. As a result, in
our country a large part of our population are living under extreme poverty.
Inevitably, the underprivileged sometimes are constrained to resort to
criminality either to escape miseries and disgrace or to satisfy their basic

such conduct on the part of political leaders has an adverse effect on the
youth who tend to follow the same course of conduct to achieve success in their
pursuits. This trend is well illustrated by the tension that prevails among the
rival groups of students who contest elections for any office of the college or
university unions. All sorts of unworthy means and foul tactics are adopted in
fighting these elections. After the results are announced, there is face to
face fight and the winning candidate is subjected to threats and assault by the
defeated group. It needs no mention that these tactics are followed by the
student because they observe the political leaders also resorting to similar
tactics at the time of general elections.

Concluding Remarks:


has a baffling problem ever since the draws of human civilization and main
effort to grapple with the problem have only partially succeeded. There is
hardly any society which is not beset with the problem of crime and
criminality. It must be stated that today crime is one of the significant
problems all over the world.

rapid change of social, economic and politics has created multiplicity of
crimes. So the problem of crime and criminal behavior as challenge to “new era
of penology”. Now new crime has posted positive danger to human life, liberty
and property. For eradication of crimes from society and rehabilitation of
offenders as law abiding members of the community the following steps should be

offender is essentially a human being. Therefore greater stress should be
industrialization of the offender for his reformation. Reformation of criminals
through clinical approach should be accepted which is the cardinal principle of
modern penology.

object of imprisonment ought to be to bring as to prisoners re-socialization
through the process of rehabilitation.

is greater need for legislative participation in the shaping of correctional
policy and subjection of correctional theory and practice to rule of law in the
administration of criminal justice.

of delinquency implies ecological interpretation of sociological problems. So
in order to hold in check the incidence of crime, the conditions inductive to
criminality must also be kept under control.

criminal law procedure should be amended so as to eliminate needless arrest and
detention of suspected offenders. Persons should be detained in custody only
when absolutely necessary.

criminal law should not allow any disparity in trial or sentencing on the basis
of social status of the offenders.

institution should be adopted crime prevention program in their curriculum; as
a result students are aware as to delinquency.

planning out strategy for crime prevention, it must be borne in mind that human
nature is complex and no one can possibly comprehend it fully. It has how ever
been realize that all human being do not respond to a given situation in the
similar manner because of there varying socio-economic, psychological and
environmental ratification. It, therefore follows that all the offenders can
not be treated alike.

the preventive measures the criminal justice system should be provide given
respect to the plight of victims of crime and at the same time society should
be provide social support which is very necessary.

control of crime to be successfully tackled the incidence of criminality need
to be addressed from all sides. Mere policing would not yield the desired
results unless followed by community involvement, support from victim and changing
deep rooted attitudes, like relative deprivation by providing jobs, housing and
other community facilities to the deprived sections of the society.


Paranjape N.V prof.  “Criminology and Penology” (central law
publications, 2005)

Siddique Ahmed, “Criminology” (Eastern
Book Company), fifth edition 2005

AdlerFreda, Luther Williams & Mueller Gerhrd O.W.”Criminology”(MC Graw-hill Inc) 1991  


A. Martin, ed. (2003), Oxford Dictionary of Law, Oxford: Oxford University
PressISBN 0198607563

[3]  Brent Fisse,
“Howard’s Criminal Law” (1990) 12-13.

Albert K. Cohen, “Middle- Class Delinquency and the Social Structure,” in
Middle class Delinquency,ed.E. W. Vaz, pp.207-221(New York: Harper & Row,

Freud sigmond: ageneral introductions psycho-analysis (1935) translated by john
riviere (New York) p.232.