Why They Should Not Be Arrested - Pt.5

In this post, I will discuss the meaning of criminal guilt, why it is often difficult to find, and why it is not the same as responsibility/ culpability/ fault/blame.

The context, in case you've forgotten, is my current view that crimes did not cause the collapse of the Irish banks, notwithstanding the fact that Seán FitzPatrick and a number of others have - at least - a case to answer in respect of criminal charges. (The crimes in question were not a factor in the bank's collapse). However, it is beyond argument that Mr FitzPatrick is to blame, even if not solely, for the collapse of his bank. There is a handful of others, in that bank and in others, of whom exactly the same can be said.

On the other hand, a much larger number - dozens, perhaps even hundreds, of individuals can be said to have performed their duties with such incompetence that they also share the blame, and have to take responsibility. The nature of that responsibility is almost certainly not criminal in nature, and in some cases may not even have any legal significance at all.

What is a crime ?

In a democracy, "crime" (often, the expression "criminal offence" is used) describes conduct which the population, through its elected legislature, has decided shall merit punishment by the State, such punishment often including deprivation of liberty i.e. imprisonment. (There is no longer a significant number of "common-law crimes", but I will deal with that topic, which Fintan O'Toole raised in this article, in a later post.)

In general, legislators have criminalised actions which are agreed to be "morally wrong", which have serious adverse consequences on a society-wide basis, which were intentional and for which there was no reasonable excuse.

Not all behaviour which we regard as "morally wrong" has been deemed criminal. For example, simple failure to pay a debt is not a crime. Nor is greed or adultery.

Conversely, some crimes are not "morally wrong" in an immediately obvious way e.g. marginally exceeding the speed limit. In the case of yet others, a lot of people will deny that the conduct is wrong at all e.g. smoking cannabis.

Usually, to be a crime, there must be both an instance of prohibited conduct - an actus reus (guilty act) - and a guilty mind (mens rea). In other words, an unintended act will not count as a crime. As is well-known, ignorance of the law does not mean that the perpetrator has no mens rea.If you buy something from a thief, it is only a crime if you know that the thing purchased was stolen. You have still committed a crime even if you incorrectly think that, because you did not steal it yourself,it having been stolen does not matter.

Guilt Can be Complicated

Take the case of a fatal road traffic accident. Two vehicles collide, and one driver is pronounced dead at the scene, while the other is uninjured. Is it always the case that the survivor is guilty of the crime of dangerous driving causing death (maximum sentence 10 years) ? No. Is it always the case that the survivor is guilty of criminally careless driving (maximum sentence 2 years) ? No. Is it always the case that the survivor is guilty of any crime at all ? No.

For readers having difficulty in accepting these negative answers: please consider these possibilities:

• the dead driver was drunk
• the dead driver had a heart attack
• the dead man's vehicle was defective
• the surviving driver's vehicle had been sabotaged

And what if the surviving driver lets slip that he did notice something not quite right about his vehicle ? Does that mean he had mens rea?

For completeness, I should add that some crimes are crimes of strict liability. In such cases, a crime is committed even though the criminal was unaware of doing anything wrong at all. An example is possession of an unlicensed firearm: it does not matter that you did not know it was under your bed, or thought that it was a harmless replica.

I am aware of no "strict liability" crimes which could be said to have been committed in the genesis of the Irish banking collapse. It might be useful for the legislature to create some, though.

In Part 6, I will briefly look at the other forms of legal "blame".