Who the Law Treats as a Criminal
Chapter Nineteen
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
Pages 64 to 66 of 528
In one line
In law a criminal is simply a person convicted of an offence, and every wider meaning the word carries is a criminological classification rather than a legal one.
In the wording a student can write in an exam: who is a criminal has a narrow legal answer, a person found guilty of an offence by a competent court, and a wider sociological answer, a person whose conduct violates the criminal law whether or not it has been detected, and much of criminology's difficulty comes from the gap between the two.
The legal answer, and its consequences
A person is a criminal when convicted. Not when suspected, not when charged, not when arrested. The presumption of innocence is not a courtesy but a rule about how the State must proceed.
Three consequences follow and each matters later in this book.
The convicted population is not the offending population. It is what remains after detection, reporting, recording, arrest, charge, bail, trial and appeal have each removed a share, and each of those removes unevenly. A study of prisoners is a study of the filter.
Whole categories are excluded by rule. The Sanhita's general exceptions remove a child under seven absolutely, a child of seven to twelve who lacks sufficient maturity of understanding on that occasion, and a person who by reason of unsoundness of mind is incapable of knowing the nature of the act or that it is wrong or contrary to law. These people may have done the act; the law says no offence was committed.
And a corporation can be an offender. A company has no mind and cannot be imprisoned, and the law has had to build doctrines to reach it. The consequences are dealt with in the chapters on corporate fraud.
The criminological classifications
Criminology has produced a great many typologies of the offender. Four are worth knowing because they recur in this paper.
By persistence. The casual or occasional offender, who offends once under pressure or opportunity; the habitual offender, who offends repeatedly; and the professional offender, for whom crime is an occupation with skills, contacts and a career. The distinction drives sentencing, and the special provision for a habitual offender in the anti-corruption statute is one example of it.
By organisation. The lone offender; the group; and organised crime proper, which has structure, continuity and a division of labour, and which is now an offence in its own right in the general penal law.
By social position. The conventional offender, and the white collar offender, a person of respectability and high social status committing an offence in the course of his occupation. This is Sutherland's category and it is the foundation of Module III.
Who the Law Treats as a Criminal
By the offender's relation to the act. The situational offender, whose offending is a response to a particular set of circumstances; and the compulsive or pathological offender, whose offending expresses a disorder. The second is a small category and it is much overused in popular writing.
The trouble with the word
"Criminal" describes an act, not a person, and the language pretends otherwise. Calling someone a criminal implies a stable disposition, and the evidence does not support it for most offenders. Offending is concentrated in adolescence and early adulthood and most of those who offend stop, without treatment, as they acquire employment and family.
The label itself has effects. Labelling theory, dealt with in its own chapter, holds that being publicly identified as a criminal alters how a person is treated and how he sees himself, and can make further offending more likely rather than less.
And the category is unstable. A person convicted of an offence that is later abolished remains, on the register, a criminal. Thousands of people in India carry convictions for conduct that Parliament and the Supreme Court have since decided is not criminal at all.
A worked example
Four people are before four different courts on the same morning in Mumbai.
Amol, aged six, has taken a mobile phone from a shop counter. Section 20 of the Sanhita applies absolutely: nothing is an offence which is done by a child under seven years of age. There is no offence, no accused and no case.
Bhavesh, aged ten, has done the same thing. Section 21 applies: nothing is an offence which is done by a child above seven and under twelve who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion. The prosecution must prove that maturity, and the juvenile justice legislation governs how he is dealt with even if it does.
Chhaya, aged thirty-four, has done the same thing during an acute psychotic episode. Section 22 asks whether, by reason of unsoundness of mind, she was incapable of knowing the nature of the act or that she was doing what was either wrong or contrary to law. Notice that the test is knowledge, not control: if she knew what she was doing and knew it was wrong, the section does not help her however ill she was.
Dhananjay, aged forty, is the finance director of a company that has issued a false certificate to obtain a loan of eleven crore rupees. He is on bail, represented by senior counsel, and his case is listed for the fourteenth time.
Now ask which of the four the word "criminal" naturally brings to mind. It is not Dhananjay, and the harm he has caused exceeds the other three put together by several orders of magnitude. That mismatch between the image and the harm is the observation the whole of Module III is built on, and it is why the definition of the offender is worth a chapter.
Who the Law Treats as a Criminal
What beginners get wrong
Arrest is not conviction. In India the distinction is blurred in public discussion and it is legally fundamental.
"Habitual offender" is a legal category as well as a description. Several statutes define it and attach consequences, and an answer should say which statute it is using.
A person acquitted is not "let off". He has not been proved guilty, which is the only question the trial asked.
Quick revision
- Legally, a criminal is a person convicted by a competent court. Every wider use is criminological.
- The convicted population is the output of a filter, not a sample of offenders.
- Excluded by the Sanhita: a child under seven absolutely; a child of seven to twelve without sufficient maturity on that occasion; a person incapable by unsoundness of mind of knowing the nature of the act or that it is wrong or contrary to law.
- Typologies: casual, habitual and professional; lone, group and organised; conventional and white collar; situational and compulsive.
- Offending is concentrated in adolescence and most offenders desist; the label has its own effects; and the category changes when the law changes.
Test yourself
1. Why is a study of prisoners not a study of criminals? Because imprisonment is the end of a long selection process. Detection, reporting, recording, arrest, the grant or refusal of bail, the quality of defence, conviction and sentence each remove a share of offenders, and each removes unevenly by social position. The prison population therefore describes the operation of the system rather than the distribution of offending.
2. State the three general exceptions that exclude a person from criminal responsibility by status, in the Sanhita's own terms. Section 20: nothing is an offence which is done by a child under seven years of age. Section 21: nothing is an offence which is done by a child above seven and under twelve who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion. Section 22: nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
3. Give the four typologies of offender used in this paper. By persistence: casual, habitual, professional. By organisation: lone, group, organised. By social position: conventional and white collar. By relation to the act: situational and compulsive or pathological.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.