There are lots of people who, when faced with something they really don’t like, declare that it must be a crime – or at least that it should be a crime. I’ve met a few people who are adamant that a perfectly normal and legal action is criminal. So, what makes your actions criminal?
I once confidently explained to a French television audience that in France you can do what the law allows. But in Britain you can do anything the law doesn’t forbid. I’ve no idea if the part about French law is true, althought the French interviewer seemed to think it was correct. I am sure that in the UK you can do as you like unless there is a law forbidding it.
Take assault as an example. We know that if you hit somebody you will commit a crime because the Offence Against the Person Act 1861 tells us so. With theft, we know that if you take somebody elses's things you will commit a crime because the Theft Act 1968 outlaws theft. Homicide is not a crime because there is no law against it! Homicide encompasses both lawful and unlawful killings. Murder is a crime, although Parliament has never specifically said so, but judges have over the course of the centuries created the crime of murder.
Crime usually have two elements: an act and a mental element. The act is what you did. The mental element is what you intended at the time.
When you take property that belongs to somebody else you commit the act required for theft. If, at the same time, you indend to deprive the owner of his property then you have the mental element. This means that if you took somebody else’s watch planning to return it later then you have not committed a theft. Murder requires that somebody is killed unlawfully and that the perpetrator intended to kill or cause really serious injury. Thus if you kill somebody accidentally then you lack the mental element and you are not guilty of murder.
There are some offences that have no mental element, such as drink driving. If you get behind the wheel of a car while above the drink driving limit you are guilty. It doesn’t matter if your drink was spiked without your knowledge or if you were being chased by a pack of axe murderers. Although both would be strong mitigation.
On the flip side, some things are crimes because the law mandates that something must happen and a crime is committed if it does not happen. The most common example that you may already be familiar with is section 172 of the Road Traffic Act 1988. You must reply to the notice by identifying the driver of you vehicle at the time when the police believe a crime was committed. Here, section 172 demands you provide information to the police. Failing to do so constitutes a crime.
So, we know then that something is a crime when a law forbids it. Or when you don’t do something you are required to do. But, not everything the law bans is a crime. For example, an employer must comply with employment law but failing to do so is not a crime, it is a civil wrong. Civil wrongs can be remedied by the civil courts ordering the employer to do correct the error and awarding compensation. Thus we know there must be some extra element to a law to turn it into a criminal matter. That additional element is punishment. For something to be a crime rather than merely a civil wrong, the law must specify a punishment for those who commit the crime.
Thus, we can say that you commit a crime when you do something the law does not allow Or when you fai to do something that the law requires of you, and a punishment is specified for the breach of law