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Mann, Scott; Al-Khadha, Mouaid --- "Freedom Of The Will And Criminal Culpability" [2004] UWSLawRw 5; (2004) 8(1) University of Western Sydney Law Review 98


FREEDOM OF THE WILL AND
CRIMINAL CULPABILITY

Scott Mann and Mouaid Al-Khadha[*]

Mens rea

In the common law, criminal culpability is understood primarily in terms of free individual decision and action. As Hart says, ‘the principle of punishment should be restricted to those who have voluntarily broken the law’.[1]

From this perspective, the essential role of the criminal law is to protect the socially permissible free action of good citizens, centred upon ‘enjoyment’ of their life and property, through punitive re-direction of the anti-social free choices of others. This emphasis upon free individual choice, as ground of culpability, finds expression in the requirement to establish that the accused’s guilty mind, or mens rea, has caused a particular criminal action, or actus reus. Did they really intend to perform the action in question, and did their intention really cause them to perform the action?

The ‘action’ here refers to voluntary or intentional bodily movement – a physical movement that results from the operation of the will. Or as Hart says, a bodily movement ‘subordinated to the agent’s conscious plan of action’.[2]

Mens rea has come to refer to a range of states of mind. But the underlying idea is that of a responsible agent who has chosen to break the rules. This includes a conscious – prior – decision to break the law, but can also include the intention to engage in action the subject knows involves a chance of causing a prohibited result, even though this is not the aim or purpose of the action.

Consciousness is therefore a necessary condition of criminal culpability. This is not merely consciousness in the broad sense in which animals, as well as humans, are ‘aware’ of their surroundings, and experience feelings of various kinds. Rather it is consciousness in the narrow – and possibly specifically human – sense of being able to stand back from our mental states and think about them, appraise and evaluate them. As Richard Norman says:

We need to do this in order to make rational decisions about our future states, by reviewing our various, perhaps conflicting desires, considering the reasons for and against acting on them and assessing the weight of these different reasons. [Because it allows us to plan and evaluate our actions, consciousness in this sense] is a precondition for our status as moral beings... Because we are conscious beings ... we are not just prisoners of our immediate environment, but can [freely] choose our actions and thereby make them our own.[3]

The rationale of punishment as retribution is crucially dependent upon these ideas. The argument is that because the individual offender has freely chosen to break the law, so have they therefore, in a sense, chosen to expose themselves to the possibility of state inflicted pain and suffering as the cost of the suffering they have inflicted upon others. This idea of free decision is central to the rationale of punishment as specific and general deterrence. The infliction of suffering upon those found guilty of criminal offences, aims to influence future free decisions by the individual concerned, and by others who might otherwise choose criminal, rather than legal means, to encourage them to refrain from any such illegal choices.

Here we focus upon some major problems of the application of the idea of free individual decision making within the criminal legal system, drawing particularly upon the work of the analytical philosopher, John Searle. Searle’s work is useful because of his clear picture of the nature of free will and free choice. But to understand this, it is necessary to first consider his analysis of certain aspects of the mind-body relation, centred upon the phenomenon of intentionality.

Intention

As Searle notes, intention in this sense refers to a mental state that is both a reason for action and a cause of action. Some intentions are formed prior to action, some are not. In the former case, we want to achieve X, we believe that we can achieve X by performing action Y.

This desire and belief together provide at least part of the cause of our deciding, and hence intending, to perform action Y. We have the intention to perform action Y prior to the performance of the action itself. But such a prior intention then becomes part of the cause of our performing action Y – along with access to relevant means and opportunity. The appearance of opportune circumstances – which trigger us into action – might be called the ‘proximate’ cause of the action.

When the action is performed, what makes it an action (rather than a mere movement) is the involvement of a mental component or intention-in-action, as well as a physical component of body movement. The prior intention causes the action, which itself involves the intention-in-action causing particular muscular contractions. Bill had a prior intention to kill his uncle by shooting him, he decided to do so, and this prior intention was part of the cause of the intention-inaction of his shooting his uncle, when the uncle stepped out of his house. His intention-in-action (to shoot the uncle) caused his finger to pull the trigger.

Often the prior intention will be of quite high order (getting to work) and require a complex sequence of specific subsidiary actions for its achievement (opening the car door). In fact, intentions come in nested hierarchies, with some higher order ‘plans’ possibly taking years to unfold, through innumerable more specific sub-plans and intentional actions.

At the other end of the scale, there may be no prior intention at all. ‘Many of the actions we perform, we perform quite spontaneously, in response to the circumstances in which we find ourselves, without forming any prior intention to do these things’.[4] But such spontaneous actions still involve the causation of bodily movement by intentionsin-action. They involve pre-existing beliefs which shape and direct our perception of the situations in question – and hence also our responses to such situations. And they still result in part from previous prior intentions and actions that have brought us into particular situations.[5]

Free will

In Searle’s model ‘free will’ enters the picture in the space between reason and decision. I want X and can see that doing Y will get it for me. But is Y really the right thing to do? Will it hurt others? Is it legal? This gap, as Searle calls it, between reason and decision allows me to consider other possibilities, obligations or commitments that might conflict with, or override, the performance of Y to get X. They might more urgently command the resources necessary for accomplishing X – resources of time, effort, money or whatever. Y or X, (means or end) might simply be morally or legally unacceptable.

This gap provides a space not just for adjudicating between conflicting reasons for action, but for re-thinking the nature of our options, obligations and commitments in the light of new information and experience. Such re-thinking need not just be a matter of internal thought processes. It can also involve discussion and debate with other people.

Just as the gap between desire and decision allows for the possibility of deliberation, including reference to moral and legal considerations, prior to decision, so do the gap between decision and action and possible gaps within ongoing sequences of actions allow for further reconsideration. We can sometimes still ‘change our mind’ even after we have embarked upon a particular ‘course of action’.

Such gaps do not always exist. We do not always form intentions to perform actions prior to the performance of the actions themselves.[6] Spontaneous responses are partly a result of external situations which might not allow for deliberation (for example, being attacked in the street or suddenly confronting a changed traffic light in the path of our car), and partly a result of internal situations – our tendency or propensity for – particular- spontaneous responses in situations of the type in question.

Our responses are determined by our perceptions of situations, as situations of a particular type; a situation of traffic-light change for example. And our perceptions are shaped by our established patterns of belief – including, in this case, our beliefs about the operation of traffic lights and the consequences of ignoring their changes of colour. Our perceptions and actions can be affected by preceding trauma, or consumption of psychoactive substances.

Earlier ‘free choices’ might be relevant in causing such spontaneous responses. If we know that we are likely to respond in particular ways in particular situations, we might choose either to retain such propensities or to try to change them. We might pursue anger management strategies to change undesirable responses of spontaneous violence or aim to improve our driving skills. We might choose to avoid the sorts of situations likely to trigger undesirable responses. We might choose to avoid consumption of alcohol or other drugs because of the likely or possible consequences for our perceptions and spontaneous responses.

Action and omission

Criminal lawmakers in the common law system have been anxious to distinguish ‘action’ – as a source of moral and legal responsibility, from ‘inaction’ – which incurs no such responsibility. From this perspective, everyone is responsible for looking after themselves alone. No one should be bound to be ‘their brother’s keeper’. Thus, unlike continental civil law, the common law recognises no general duty to rescue others in distress, even where this can be accomplished with ease and little threat to the rescuer.

Traditionally, this distinction has been defended by the assertion that it is the law’s business to ‘arrest acts of positive harm’ but not to ‘encourage – or require – acts of positive good’. It is supported by the right-liberal idea of society as no more than an aggregate of competing human individuals, any one of whom is responsible to any other only to the extent that they have voluntarily entered into legally recognised contractual relations with the individual in question.

A closely related issue is that of medical personnel causing death by ‘failing to administer’ necessary medication or nutrition, at the request of the patient or their representative, to terminally ill adults or seriously handicapped new born babies, distinguished, as lawful, from ‘active’ administration of a lethal injection at the patients or their representatives request, for example -as unlawful. Here again, the causal efficacy of ‘inaction’ is denied, with death attributed rather to the ‘natural course of the illness’.

But it is far from clear that such ideas make sense in practice. It has frequently been pointed out that failure to take action is a form of action since the individual actively restrains themselves from taking the apparently ‘correct’ action, or actively withdraws treatment, in the latter sort of case. As Norrie says:

an omission can be described as a negative act, a description which indicates that omissions are in their essence similar to rather than different from acts. Omissions can be conscious decisions either not to do something or to do something other than the thing that is not done... Either way, to describe a failure to act is as much to describe a practical orientation to the world as is the description of an act.[7]

If the real moral and legal issue is ‘free decision’ to do ‘the right thing’ there is no moral distinction between the two sorts of cases. Definite causal consequences – including ‘positive harms’ and ‘goods’ - flow from the decision not to take action, as much as from the decision to act. In Norrie’s words: ‘omissions can be as much the cause of an event as acts. An omission can serve just as well as an act as a necessary and sufficient condition for any particular outcome’.[8]

This is particularly clear in the sort of medical case considered earlier. Here, abstaining from treatment has the same consequence as actively assisting suicide or engaging in voluntary euthanasia, in the form of the death of the patient. Furthermore, as acknowledged by the House of Lords in Airdale NHS Trust v Bland [9], such legal abstention could also produce weeks of pain prior to death that could have been avoided by an illegal lethal injection.

In terms of Searle’s analysis, ‘inaction’ in specific situations could be a result of a particular prior decision, producing a prior intention. We decide to refrain from action in some particular future situation – with a view to producing particular causal consequences of such inaction. Perhaps this involves ‘actively restraining ourselves’ from performing some action we might, otherwise, feel constrained to undertake.

Similarly, past decisions could contribute to ‘spontaneous inaction’ – without any ‘direct’ prior intention. Failure to take steps to prepare ourselves to help others in need – as such occasions might arise – could contribute to our ‘freezing up’ when encountering situations in which we might otherwise have averted substantial harm to others, with minimum harm to ourselves, for example.

Reasons

As well as casting light upon the nature of ‘freedom of the will’, this analysis can illuminate the concept of ‘reasons for actions’. The concept of a ‘reason’ implies some basis in rational deliberation. Prior intentions are products of deliberation concerning beliefs and desires. Such deliberation centres upon reasons why particular desires specify appropriate goals for action, why the individual concerned wants to do this, rather than something else; why this is seen as a priority, and/or a just and right thing to do on this occasion. It involves reasons why particular actions are seen as appropriate means for achieving the goals in question, why they are the best or only way to achieve such goals at the time in question.

Some goals will be ends in themselves; some will be means to other ends. When we ask for the ‘reason’ or ‘motive’ behind a particular action we are really asking what ultimate goal the individual was attempting to achieve; why they were seeking to achieve such a goal, and why they believed the chosen means to be appropriate to achieving this goal.

This is the subjective side of the reason for the action in question. But we cannot properly understand any such subjective considerations without reference to their objective circumstances and determinants; the particular objective social facts or conditions that have caused the relevant perceptions and beliefs and desires and facilitated or triggered the relevant reasoning processes. And this applies whether or not such perceptions and beliefs are based in fact, or such reasoning is sound or cogent.

With spontaneous actions, the nature of the subjective response will depend upon the way in which the external situation is perceived. An individual’s belief system will classify situations in particular ways, and this will determine that individual’s likely responses in the situations in question.

Here again, we must consider also the objective circumstances of formation of such beliefs. Are such beliefs factually based? And if not, why not? Did the individual have access to reliable information – or have they been mis-led? So must we consider the extent to which the individual concerned has been able to make rational judgements about the appropriate behaviour in the situations in question, or to act – effectively - upon such judgements. Did they have access to appropriate counselling or training for example? Or did they lack the resources to access such assistance?

Autonomy and the limits of free will

In the literature of ethics and philosophy of mind practical preconditions for, and restrictions upon, free will and free action are traditionally discussed in terms of ‘autonomy’ or self governance. Moral philosophers typically distinguish three different ideas or dimensions of autonomy which go along with different sorts (and degrees) of possible obstacles and restrictions to free conscious action.

1. Liberty of action

An individual is autonomous in this sense if their action results from their own conscious intention and is not the result of external coercion or duress.[10]

When autonomy is identified with liberty of action, the primary contrast drawn is between autonomy and coercion. Coercion involves the deliberate use of force or the threat of harm. The coercer’s purpose is to get the person being coerced to do something he or she would not otherwise be willing to do.[11]

2. Freedom of choice

This refers to the range of real choices available to an individual – in terms of access to material means for the realisation of particular goals or desires. Thus, we noted earlier that intention was only ever a part of the causation of action. Such intentions only become ‘operative’ in effective causation of action if the individual concerned also has effective control of the necessary resources – of strength, skill, knowledge, tools, machines, assistance and opportunity.[12]

3. Effective deliberation

This refers to internal, rather than external, resources available for, or restrictions upon, the exercise of individual autonomy; specifically to the individual’s capacity for making rational and informed decisions.

Such decision making involves both rational choice of ends – in keeping with real need for example; and rational choice of appropriate means for achieving independently chosen ends - in tune with what is logically, physically, and socially possible, and what is morally just and responsible.

these abilities can be limited in many ways ... some individuals may not have developed the necessary abilities or may even be incapable of sufficiently developing them... even individuals who have the requisite abilities may be unable to exercise them on a particular occasion due to various internal factors... emotions such as fear may make the impartial weighing of information impossible ... the presence of pain or the use of drugs may also effect the exercise of reasoning abilities... Lies, deception, and a lack of appropriate information can all limit the effective exercise of the abilities required for rational deliberation.[13]

Defences

At first sight, this moral philosophical analysis of ‘free-will’ seems quite compatible with the basic categories and procedures of contemporary criminal law.

First of all, the actus reus generally has to be an intentional action; a bodily movement which is the product of an intention-in-action.[14] . The law does not generally hold individuals responsible for bodily movements which are seen as caused by anything other than such an intention-in-action on the part of the individual concerned.

The legal category of ‘automatism’ refers to non-intentional bodily movements that occur when an individual’s conscious awareness is seriously impaired in some way, ‘when the ordinary link between mind and body is absent’. Where the automatism is caused by something other than an ‘unsound mind’ or serious mental illness– such as sleep-walking, diabetes, major stress, or a blow to the head – it can be seen to render action involuntary and hence not criminally culpable.[15]

However, as with the preceding analysis of spontaneous actions and unintended movements (as consequences of prior choices), those who freely choose to put themselves in situations where it is possible or likely they will be drawn into involuntary movements with criminal consequences – (unintentionally discharging firearms during armed robberies for example) can be held liable for such consequences (see Ryan v R [1967] HCA 2; (1967) 121 CLR 205 (HC)).

Secondly, the criminal law does not hold individuals responsible for criminal acts which are seen as products of duress, where an individual commits an offence under threat of physical harm to themselves or another person. Here, the prior intention is, indeed, to perform the forbidden act – of theft or whatever. And this ‘criminal’ prior intention is the cause of a ‘criminal’ intention-in-action. But the goal or purpose of the action is to avoid serious (and unjustified) harm to the individual concerned or to another, rather than eg gain unjustified personal enrichment.[16]

Duress involves a severe restriction of the options available to the individual concerned. They are forced to make a ‘coerced choice from morally unacceptable options’.[17] Where circumstances other than the threat of serious violence or harm by another person similarly restrict the options available to a person, such that they can only avoid ‘irreparable evil’ through the commission of some criminal act (involving a lesser evil), they can apply the defence of ‘necessity’ (or duress of circumstances).

Self-defence is understood in a similar way. The decision and prior intention to use force is justified if the individual believes, on reasonable grounds, that such force is necessary to defend themselves against an unwelcome attack.

Where the individual’s internal decision making capacities have been radically compromised by a mental illness or by some ‘abnormality of mind’ the law allows defences of insanity and diminished responsibility or substantial impairment The former allows for excusing the individual of criminal liability in any offence. One or the other of latter is available in some jurisdictions in relation to murder.[18]

The defence of provocation relates to spontaneous action, triggered by acts or words of the victim which produced ‘a sudden and temporary loss of self control’. Here the law excuses spontaneous responses which it is unreasonable to expect the individual to take prior action to avoid.

The criminal law’s treatment of intoxication also appears to be in tune with the preceding analysis of individual responsibility in relation to spontaneous actions. Individuals are not criminally liable for actions committed in extreme states of intoxication – where their action ceases to be voluntary – if such intoxication does not result from their own free choice. If they have ‘freely chosen’ to become intoxicated, then they have chosen what they know to be possible criminal consequences.[19]

A black and white picture

But while the law is in line with the broad categories of the moral philosophical analysis, it departs from such analysis in its crudely black and white approach. Actions are regarded either as completely free – and hence culpable – or completely (or largely) determined by internal and/or external circumstances, and hence not culpable.

This is particularly evident in relation to insanity. Ideas of legally relevant insanity have been restricted to extreme states of mental illness where the defendant was, at the time of the crime, ‘labouring under such defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, then he did not know that what he was doing was wrong’. [20] [21]. In effect, this test only covers those defendants who, in extreme cases of mental illness, are unaware of what they are doing or of the significance of their actions.’

We might think that diminished responsibility – or substantial impairment - would cover lesser mental problems. But this defence is available only in relation to murder charges. It is not available at all in some jurisdictions. It merely reduces murder to manslaughter. And juries can return a verdict of murder even if there is medical evidence of the appropriate sort of mental abnormality or impairment.

In effect, the only sort of duress by the action of another, recognised by law, is ‘the threat of immediate death or serious personal violence’ where such immediate threat either ‘overbears the ordinary power of human resistance’ or provokes legitimate resistance in self-defence. The only sort of duress of circumstances – or of ‘necessity’ recognised in law is a threat of immediate death or very serious injury by such natural disasters as fire or earthquake.

Provocation is a defence only in relation to murder, and only applies to actions of the deceased, immediately prior to the killing, ‘of such a character as to cause an ordinary person to lose his self-control to such extent as to act as the killer has acted’. And though the NSW Crimes Act has recently been updated (at s23) to include provocative actions of the deceased ‘at any time before’ the homicide, this is intended only to accommodate histories of ongoing domestic violence in relation to battered woman syndrome.

Beyond this point, the only idea of action by others ‘pushing’ individuals into criminal behaviour is that of unintentional and extreme intoxication by another’s action.

But it is clear that, in reality, there are many different forms and degrees of freedom and determinism, autonomy and restriction, many sorts of ways in which the actions of some effect and constrain the decisions and spontaneous actions of others, increasing the likelihood of criminal behaviour. Not only does the black and white legal picture provide a false dichotomy, but it presents extremes that actually make little sense. There is no absolute and unconditional freedom, nor any pure determinism where human actions are concerned. [22]

Motives

Most important, we cannot make sense of specific cases of choice as free choice without reference to the detailed processes of decision-making involved. This is, after all, the essence of ‘free-will’, on the analysis developed so far. Free will exists where an individual is in a position to make a real choice between genuine alternatives on the basis of rational – and informed - deliberation. Such deliberation generates the reasons for their action. And only by examining the details and context of specific decision making can we rationally access the extent and nature of restriction of the processes in question. Yet the criminal law steadfastly refuses to properly consider any such decision procedures. As Alan Norrie says:

It is as firmly established in legal doctrine as any rule can be that motive is irrelevant to responsibility; ‘a crime may be committed from the best of motives and yet remain a crime.[23]

‘Motives’ typically enter the discussion only at the level of prior intention; where such intention is part of the definition of the offence; did the defendant really intend to permanently deprive the victim of their property? Was this their motive or reason for taking it? In other words, there is no consideration of the ultimate goal of the action, of the reasons why this goal was chosen or why these means were employed.

Sometimes, what Norrie has called a ‘utilitarian psychology’ of motive is seen as useful in establishing the relevant facts of the case. But this sort of analysis is very different from the earlier consideration of motive and reason, with its emphasis upon rational deliberation, belief and context. In this system of thought:

each individual is seen as a separate monad operating according to discrete personal motivating characteristics or emotions...Individual psychic forces like ‘jealousy’ or ‘greed’
or ‘anger’ or ‘love’ are seen as the ‘springs of action’. No thought is given to the social context within which ‘jealousy’ or ‘greed’ are stimulated or to the particular content they embody.[24]

As Norrie concludes, legal doctrine has become so structured that:

intention becomes crucial to liability and motive becomes irrelevant. Then, at the end of the trial, when justice has been done, and a criminal has been properly convicted, the doctrine can be put to one side and motive allowed back into the courtroom, in the non-threatening guise of a factor in mitigation of sentence.[25]

The historical basis for this development is clear:

Desperate social need and indignant claim to right were the motives of the poor in the seventeenth, eighteenth and early nineteenth centuries. These were hardly motives calculated to win favour or compassion from a social class determined to impose a property order on all regardless of the consequences.[26]

The only situations where the defendant’s reasoning process and resulting goal or purpose (in performing the criminal action) is considered relevant to the issue of culpability are those involving duress and self-defence. As Mousourakis says, such cases involve ‘a morally worthy motive; that is, self preservation’.[27] But these ideas are applied in such a narrow and restricted fashion as to be irrelevant in the great majority of criminal prosecutions.

In reality, reference to jealousy and greed, anger and love, ‘desire for money and perverted lust’ alone, contributes little in the way of real explanation of criminal activity. Everyone experiences such thoughts and feelings more or less frequently. The real issue, as Norrie points out, is how and why such feelings come to take the particular forms they do and contribute to particular consequences, criminal or otherwise. And to understand this, we must consider the social context and psychological makeup of the individuals and the actions concerned.

Sociological issues

On the sociological side, we need focus only upon the broad reality of contemporary economic life. In a capitalist firm, the capitalist-owners have ultimate authority. They are interested in profits and in maintaining the conditions that keep the profits rolling in. They cannot oversee every aspect of workplace activity to ensure that these conditions prevail so they hire special employees who are empowered to act on their behalf in the day-to-day organisation of such profit maximisation. Such co-ordinators oversee the day-to-day actions of the workers – the actual producers and wealth generators – whose jobs are, in consequence, hugely restricted, controlled and lacking in creative possibilities. They obey the co-ordinators out of fear of being punished or fired.

A hierarchical division of labour within larger and more complex corporate structures apportions tasks, empowerment, status, remuneration and quality of life in hierarchical order. A few at the top have excellent working conditions and substantial empowerment. They are autonomous in that they are largely free of day to day external duress, they have freedom of choice – in terms of real options in the organisation of their work and leisure time, and they have access to a wholly different quality and quantity of information for rational decision making within the organisation – including access to substantial human and mechanical information processing resources.

The economic power of owners and higher co-ordinators gives them power to directly influence the political process – participating in the formulation of legislation and directing the day to day decision-making of the political leadership. So can they exert huge social and political power via the control of mass communications.

Those who have acquired sufficient assets through inheritance or other means can live very comfortably with no need to work at all. They can leave the management of such assets to others. They can choose to do whatever work might appeal to them, or simply enjoy the benefits of consumption. They can study what they want, possess what they want, travel when and where they want.

Those in the middle ranks fall well below these levels of autonomy – in relation to both effective power and decision-making within the organisation and the power of money outside it. And the great majority, in the lower ranks, have effectively no power at all, within the structure or outside it. In the first world they probably do have access to basic necessities of food, clothing, accommodation and transport – though the increasing numbers employed on a casual or part time basis find it more and more difficult to make ends meet.[28] .

Many of those at the bottom do not enjoy their jobs, or do not enjoy much of what they do at work. They work in order to get money to live. While they work they follow orders from others, with which they do not necessarily agree. Often they have no knowledge of the decisions underlying such orders, who has made them, how or why. And today, with high levels of chronic unemployment and underemployment, they must struggle all the harder – through appropriate deference and ever more unpaid overtime in order to hold onto any kind of employment. In other words, the greater part of their working lives consists of coerced, rather than free action. They operate under continuous duress. And their limited incomes similarly reduce the options available to them outside the working environment.

Beyond the corporate sector is the small business sector where owner managers exercise some power over their day-to-day lives but struggle to keep their heads above water in an intensely competitive environment. They have to pay the monopoly prices of big corporate suppliers, and struggle to compete both with other small businesses and with the cartels, economies of scale and long range planning of big corporate operators. And conditions for workers within such smaller enterprises are typically even worse than those in bigger operations because of much tighter profit margins, higher costs, negligible unionisation and weaker legal protections.

Beyond the small business sector is the world of the long term unemployed and radically underemployed. Government social security payments fail to accommodate rents, food, clothes etc – to allow for even minimally decent living standards. Some don’t even receive these payments and some are unable to make best use of them. In other words, their life options are severely restricted – so long as they stay within the legal economy. And powerful social forces of denigration and victimisation, by the police and social welfare authorities amongst others, work to undermine the self-esteem and psychological well-being of those in this group.

Advertisers and marketers make massive efforts to stimulate ever more wants for ever more consumer goods. New products can be presented as compensations for the general powerlessness, frustration, insecurity, domination and struggle of the majority of the population. But such potential consumers feel all the more inadequate and frustrated when they cannot – legally – access such proliferating ‘compensations’. Here is another major source of duress for many people – the duress of thwarted desires, along with envy and resentment of those who apparently have everything while doing nothing to deserve it.

Supposedly, the advanced industrial democracies allow and encourage ‘mobility’, whereby, through appropriate effort, those born into the lower echelons of the social class structure can drag themselves up to higher levels. Anti-discrimination laws are supposed to safeguard and facilitate such mobility.

In reality, available positions rapidly decline up the hierarchy. No matter how much effort is expended by the lower orders, only a tiny percentage will be able to ascend and only at the expense of others moving in the opposite direction. Anti-discrimination legislation cannot compensate for the advantages of established wealth, influence and connections enjoyed by those born into the upper echelons.[29] Some individuals, through luck, as much as effort, through appeasing and pleasing those above them, are able to ascend a step up from the lower levels. Some choose not to try to do so, given the behaviour required of those in higher levels. Most remain in the social stratum into which they are born.

Class and crime

The hierarchy of the social class structure therefore corresponds to a hierarchy of degrees of liberty of action, freedom of choice and effective deliberation, with reduced free will and increased duress further down the system. And such a structure goes a long way towards explaining patterns of crime in contemporary society.

At the top, those who operate and benefit from such a fundamentally unequal and immoral system have the capacity to commit crime on a grand scale with effective impunity. The very scope of the freedom enjoyed by members of the ruling elite goes a long way toward explaining their proclivities for price fixing, collusive tendering, bribery, patent violation, false advertising, insider trading, trading while insolvent, paying below award ages, tax and other fraud, manufacture and sale of dangerous products, environmental damage and provision of unsafe working conditions leading to industrial death, injury and disease. In their role as agents of the duress experienced by those below, they should also be held responsible as inciters of, and accessories to, the crimes of those below them.

In the lower ranks, it is restriction of the scope of free choice and action that explains predominant patterns of crime. The intense competitive pressures upon smaller businesses contribute to crimes in the interests of cutting costs – including employment offences, consumer offences, food offences, and environmental crime. ‘Poor economic performance [can] make offending seem a rational choice to maximise profits or to ensure the survival of the business.’[30]

Within the working class a proportion of those who are continually reminded that they are without value in the legal economy may turn instead to the criminal economy. A proportion of those who are continuously victimised by the forces of law and order eventually lose respect for such a system, and become involved in street crime.

Some of the most frustrated, exploited and downtrodden members of society may turn to illegal drugs for solace, as well as to alcohol, cigarettes and legal anti-depressants and stimulants. Those who become addicted to such illegal drugs but cannot afford to pay for them through legal employment, turn to crime to support their habits. Addiction is a potent form of duress, analogous to immediate threats of violence.

For some of those faced with the poverty and ignominy of long term unemployment, or a life of powerless drudgery with minimum respect and remuneration, a life of property crime or drug dealing can appear to offer a viable alternative, with mental challenge, excitement, financial reward, independence, empowerment and self respect.

The two most common types of interaction identified as crimes of violence by the Australian criminal justice system are ‘confrontational violence between males, typically young and of marginal socio-economic status’, and ‘violent interaction between family members and other intimates’, both often involving alcohol.[31]

In the first case, we can trace a path of causal determination from income inequality and discrimination, through disrespect and powerlessness, to street violence associated with the defence of honour. The greater the scale of income and social power inequality, the more those at the bottom of the scale, experiencing comparatively greater poverty and powerlessness, and corresponding social disrespect, may feel that they have to defend the vestiges of self respect they have left. Physical violence is sometimes seen as the only means at their disposal to do so.

In the second case, as Hogg and Brown observe:

it would be surprising if the material stresses generated by poverty, unemployment and social isolation did not seriously exacerbate the ordinary, day-to-day tensions that arise within family relationships and produce higher levels of conflict and
violence.[32] [33]

At the same time, it needs to be borne in mind that, as Wilkinson says, violence will always appear to be:

concentrated in poor areas and occur primarily amongst the poor themselves...because what counts as violence are those forms of coercion not sanctioned by social institutions; making people homeless by ending a tenancy is not an act of violence, whereas hitting the landlord...is.[34]

The empirical evidence supports the idea that it duress of social deprivation motivates a significant proportion of street crime. A prison survey in 1973 found that:

only 4 percent of prisoners had completed the HSC, compared to over 20 percent of the general male population aged 15 years or more. More than two thirds belonged to the lowest occupational strata [unskilled], compared to just over two fifths of the general adult population; a further 30 percent belonged to the second lowest stratum [clerical, trades skilled] and under 2 percent were from professional or middle management backgrounds compared to almost one quarter of the general population.[35]

And a survey in 1996 found that:

50 percent of male prisoners and more than 75 percent of females had not been employed in the six months prior to their imprisonment. More than 50 percent of males and almost 50 percent of females had not completed secondary schooling to school certificate level and fewer than 10 percent had experienced any post secondary education.[36]

Indigenous people are heavily over-represented in the social underclass, with unemployment levels as much as 80-90 percent in some communities. As Hogg and Brown note:

When at work, Aboriginal people earn on average about half of the income of non-Aboriginal Australians...government payments [are] the main source of income for [over 50 percent] of Aboriginal people... They are massively disproportionately over-represented amongst the homeless population and the educationally disadvantaged. Aboriginal communities continue to experience high levels of [substance abuse,] infant mortality and health problems.[37]

And, ‘Indigenous people in Australia are incarcerated at massively disproportionate rates compared to the general population.’[38] As at the 2000 prison census, there were 4095 Indigenous prisoners in Australian prisons, constituting 19 percent of the prison population. The national rate of indigenous imprisonment was ... almost 15 times the non-Indigenous imprisonment rate.[39]

Psychological issues

On the psychological side, individual life paths, including free decision making, are profoundly shaped by personality structures established in early childhood. And different sorts of personalities impose different sorts of restrictions upon individual autonomy and free will.

Particularly significant are issues of self-esteem. Those who do not achieve a ‘built in sense of self esteem’ in childhood tend to develop depressive personality structures, leaving them vulnerable to self blame and feelings of hopelessness and worthlessness in face of reverses and difficulties. Such individuals need repeated assurance of others good opinion in order to maintain their own psychic health.[40]

Given the potentially disastrous personal consequences of the negative judgements of peers and others for those prone to depression, such a need for recognition and reassurance can over-ride both principled objections to criminal activity and fear of criminal penalty in motivating such individuals to participate in joint criminal operations, doing their part to retain the love or respect of other members of the gang or criminal ‘community’.

Because depressive personalities tend to suppress their own opinions and defer to others in their attempts to win love and approval, they tend to accumulate an increasing amount of [repressed] resentment, anger and aggression. There is always the danger that such aggression will be turned away from themselves and onto others, particularly those they feel have let them down, or those who they feel they can safely abuse.

Hysterical personalities are similarly ‘dominated by the urgent need to please others in order to master the fear of being unable to do so.’ As a result of being disregarded in childhood, their needs not appreciated, they become demanding and attention-seeking as adults. ‘This results in restless activity, dramatisation and exaggeration....And unrealistic dependence upon others.’[41] ‘People with hysterical personalities have high anxiety, high intensity and high reactivity’[42] . Their prone-ness to drama and risk, and to trying to master frightening possibilities by initiating them, can get them into criminal legal difficulties.

At the other end of the scale are those obsessional personalities driven to pursue their own priorities – of order, organisation and control – irrespective of what others might think, and sometimes at others expense. Driven by their own conscience, rather than by the opinions of other people, it is quite possible for such individuals to fall foul of the criminal justice system, where its values do not happen to correspond with their own.

For some, the voice of conscience is the voice of God, commanding absolute obedience, even if this is at the expense of being seen – by some – as a criminal and a law-breaker. Direct sanction by divine authority can sometimes be seen to justify or demand horrific acts of violence.

A powerful, rigid and punitive conscience can be firmly established in early childhood on the model of parental authority, rewarding the individual concerned with feelings of pride for conforming to its dictates and punishing failure to do so with pangs of guilt. Its value system can be out of kilter with the more developed ideas and values of the adult. In such a situation the conscience itself is experienced as exerting powerful internal duress upon the individual concerned – forcing them to engage in – or avoid – particular actions ‘against their better judgement’.

Schizoid personalities are still further removed from influence by group norms and values. By virtue of having lost a care-giver in early life, or having been treated as an appendage to the parents, or as someone whose needs are destructive of the person to whom they turn to fulfil them, they have withdrawn from intimate relations with other people (as too painful, dangerous or overwhelming). They have developed a complex fantasy world to compensate for their lack of fulfilment in the real world.[43] And to the extent that fantasies of power and domination, including paranoid feelings and delusions, spill over into their actual relations with other people, such individuals can come into conflict with the criminal law.

Particularly serious problems of early childhood development and/or later social experiences lead to more extreme forms of such behavioural tendencies and greater likelihood of more serious psychopathology. And such psychopathology runs along a continuum from mild and temporary neurosis to serious long term psychosis.[44]

Tangential to, but interacting with, such issues of personality are issues of intellectual development and disability. Here again, some individuals will be significantly disadvantaged by their heredity, or by developmental damage, and will not necessarily receive the special assistance they might need to realise their full potential.

Again, the empirical evidence confirms the significant involvement of psychopathology and intellectual disability in the causation of crime. The 1973 prison survey, referred to earlier, found that one third of prisoners had received professional help or treatment for a nervous, emotional or mental problem. Nor does this mean that other prisoners were necessarily free of such problems. And studies by Hayes and McIlwain in 1988 and 1997 found 12.9 percent of the NSW prison population as having an intellectual disability’.[45] Michael Levy observes that:

the prevalence of mental illness among prisoners is higher than in the general community. In a submission to a recent NSW Parliamentary Select Committee Inquiry on the Increase in Prisoner Population, the Department of Corrective Services stated that 13 percent of female inmates in NSW have an intellectual disability, 21 percent had attempted suicide and 40 percent had a diagnosis of personality disorder’.[46]

Interactions

Such psychological and sociological processes of disadvantage are intimately interconnected. Even relatively mild dispositions towards depression or compulsion or schizoid withdrawal or paranoia can lead to serious pathology under the pressure of social circumstances of discrimination, deprivation and powerlessness. And those suffering such deprivation are least likely to get effective assistance in coping with such pathology, or with intellectual disability.

The stresses of social powerlessness and anxiety in the parental generation can create major psychological problems for new generations, insofar as the latter become victims of parental mortality and morbidity, psychopathology, drug abuse, violence, disintegrating family structures, poor housing and nutrition.

Teenagers of all classes are driven by hormones and social dislocation into risk and challenge to established authority. But social and psychological disadvantage brings working class youth into contact with the criminal justice system at an early age, where middle and upper class youth are protected. Significant numbers of such disadvantaged young people move from juvenile detention centres on to adult prisons.[47] The appalling conditions of the latter, with inmates stripped of all human rights and human dignity, subjected to regular threats and assaults by staff and other inmates, exposed to dirty air, poor quality food, and rampant hepatitis C infection, with huge pressures towards hard drug use in dangerous insanitary conditions, exacerbate social and psychological disadvantage.

Inmates often emerge psychologically and physically damaged, with criminal reputations, that make them the objects of intensified police surveillance, harassment and victimisation, and make rewarding employment – or any legal employment – all the more difficult to obtain. Hence the high recidivism rates, as victims become trapped in a cycle of ever-diminishing real options and further reduced ‘free will’ and autonomy, with 56 percent of prisoners known to have served a prison sentence on a previous occasion on prison census night 2000.[48]

At the other end of the social scale, the wealthy and the powerful have access to the best resources for coping with both mental illness and intellectual disability, including long term humanistic and insight-based therapies, rather than debilitating and toxic drug treatments. At the same time, they are free to indulge the more anti-social tendencies of their psychopathologies without fear of criminal legal intervention.

Wealthy narcissists can command the uncritical approval and respect – indeed love and worship – of others which they need to maintain self-esteem – or, at least, they can command the appearance of such love and respect, through appropriate positive and negative reinforcement procedures applied to those within their power.

Wealthy obsessives and compulsives can indulge their will to power, domination, control, discipline, order, and cleanliness through rigidly disciplining and controlling the lives of those subject to their authority, including workers driven to ever greater productive efforts, of harder work and longer hours.

Wealthy paranoids can indulge their need to oppose the forces of evil through seeking, and achieving political office, or power within law-enforcement agencies. And serious psychopathology and intellectual disability seem to pose few problems for successful careers at this level of the social hierarchy.

‘Over a dozen research projects on corporate career mobility’ demonstrate that psychopathic or antisocial personality is an advantage when it comes to promotion to the ‘top positions’ of the corporate hierarchy. As Box points out, such research shows that those who attain such positions are:

not so much intelligent as shrewd- their organisational sense enabled them to sniff out the golden chance and grasp it firmly....they had the moral flexibility to meet shifting organisational demands and still enjoy the sleep of the just – their ability to relativise other moral imperatives while constantly prioritising the pursuit of organisational goals ... [facilitated] a moral flexibility others denied themselves.[49]

Croall notes that ‘personality types...associated with business success – including a propensity to take risks, recklessness, ambitiousness, drive, egocentricity and a hunger for power....are [also] linked with white collar crime’. Such crime can be justified as ‘being in the interests of the company’.[50]

Criminal minds vs class structures

In this context, we can see how generally meaningless and misleading is any idea of the ‘criminal mind’ as ‘cause’ of crime. Were those at the top to be exposed to the circumstances of those at the bottom, no doubt they would respond in similar fashion. Their minds are no different, it is their social circumstances that are different – leading to different behaviour or different treatment for the same behaviour.

Supposedly everyone is equally subject to the same laws in all common law jurisdictions. Judges and magistrates swear oaths to ‘do right by all manner of people...without fear or favour, affection or illwill.’[51] And legal authorities have typically seen equal access to justice – including access to appropriate professional assistance, as an integral part of the ‘rule of law’.

One might think that such equality implied treating those in similar situations in similar fashion. And, on the face of it, this is what the criminal law does. Supposedly, individuals are punished in proportion to the seriousness of their crime.

But ‘seriousness’ is ambiguous. It can mean the extent of actual harmful consequences. It can refer to something like the objective extent of risk of harm to which others are exposed by the action – how likely it is that such harm will eventuate and how great the possible harm is. Or it can refer to the extent of free will and autonomy – including the extent of restriction of such free-will, on the part of individual perpetrators – along the lines considered so far. Extent of actual harmful consequences creates major problems in a class divided society. Stealing from the rich can cause far less suffering than stealing similar amounts or much lesser amounts from the poor.

At the moment, for the crimes of the working class, ideas of objective harmfulness are built into the definitions of the offences – as murder or manslaughter or theft or burglary or robbery – without any reference to such social contextual considerations. So those found guilty are supposedly punished for the extent of real harm caused – without any analysis of real harm – at least until sentencing.

Their employers, on the other hand, in the crucial areas of health and safety at work and pollution, are held responsible for the supposed extent of risk to which they have exposed others, through contravention of relevant regulations, without reference to actual harmful consequences up until the sentencing stage. With risk treated as inherently less ‘serious’ than actual harm, this de-emphasises the criminality of employers as against workers. Together, these operations effectively preclude any real utilitarian assessment of the extent of harm caused by either the rulers or the ruled – within the criminal legal process.

Such comparatively ‘lenient’ treatment of the crimes of the powerful can be seen as offset by strict and absolute liability, with no requirement to establish a subjective fault element, while such a subjective element does have to be proved in working class property crimes and crimes of violence.[52] This only serves to mask the extent of culpability of the employers – in terms of their generally greater scope of free action, compared to that of the workers. At the same time, the limited application of available defences, with no real consideration of the duress of social deprivation, radically restricts what actually has to be proved in this area of culpability for working class crime.

If we really believe in punishment in proportion to culpability, where the latter is a function, not only of the seriousness of the crime, but also of the degree of real freedom of choice able to be exercised by the perpetrator, then we must take account of the disparities of autonomy and freedom of choice across the social class structure.

Action motivated by need or desperation, by enforced ignorance or lack of available alternatives is different from action motivated by pursuit of wealth and power by the already wealthy and powerful, and chosen despite awareness of both its harmful consequences and of real non-criminal alternatives for achieving similar ends. Action which is not only criminal but also betrays the special trust associated with social positions of power and privilege would seem to carry greater moral culpability.

Beyond this point, it is unequal to impose punishments determined either by the seriousness of the crime or the extent of fault of the perpetrator, without reference to the circumstances of the individual punished. A fine can have quite different practical significance when imposed upon a rich person as against a poor person. A prison can have quite different consequences when imposed upon a vulnerable and attractive young man, likely to suffer rape in prison, or a hardened criminal psychopath likely to be the agent of such a prison rape.

Mandatory sentencing policies highlight, concretise and exacerbate the irrationality and immorality of the system. But past practices of judicial discretion in sentencing show little evidence of seriously addressing the issues raised here. Nor should the issues be left to the whims of such discretion.

As is suggested by the foregoing analysis, effective reduction of street crime (and, for that matter, corporate crime also) depends upon major social structural change, addressing the inequalities of wealth and power that are the primary causes of such crime.


[*] Scott Mann is Senior Lecturer in Law, University of Western Sydney. Mouaid Al-Khadha, LLB, LLM, has practised law in Jordan and is a PhD candidate at UWS.

[1] Hart, Punishment and Responsibility, OUP, 1968, p 181.

[2] Op cit.

[3] R. Norman, Humanism, Routledge, 2004, pp. 59-60.

[4] Op cit.

[5] Elements of prior intention can be preconscious, in the sense of beliefs or other ideas that shape thought and perception, and could be brought to conscious awareness, but are not actually brought to such awareness. A complex constellation of beliefs is brought to bear in the construction and interpretation of all of our experience.

So can prior intentions be unconscious, in the form of repressed beliefs and desires of the kind investigated by psychoanalysis. We might, eg, form a desire to hurt our boss. But this desire might then be subject to repression or intentional forgetting, and might later ‘emerge’, through ‘displacement’, in the intention-in-action of hitting our child. In this case we might well ‘rationalise’ such an action by reference to a – supposed – prior intention – of eg recognising the need to ‘discipline’ the child for their own good. This would not be the ‘real’ prior intention. But such a real intention does exist or did do so, and can be discovered through appropriate investigations.

[6] Often we merely respond to external – or internal – stimuli of some kind, without deciding before hand that we would respond in this way or knowing that we were going to do so. An external threat to our pride produces an internal surge of anger leading to our lashing out at the source of the threat. Or a traffic light changing to red produces a response of our pushing down on the brake.

[7] A. Norrie, Crime, Reason and History, Butterworths, London, 2001, p 121.

[8] Op cit.

[9] Airedale National Health Services Trust v Bland [1992] UKHL 5; [1993] AC 789.

[10] Ethicists Mappes and DeGrazia provide the example of an individual sitting under a tree. No-one is forcing them to sit under the tree. They are free to leave anytime they choose. Their action results from their conscious intention to sit under the tree. T.A. Mappes and D. DeGrazia, Biomedical Ethics, 4th edition, McGraw-Hill, New York, p 25

[11] Op cit.

[12] Here, Mappes and DeGrazia consider the example of an individual seeking a vasectomy. Local doctors refuse to perform the operation and he cannot afford to travel further afield. ‘He is therefore not free to act upon his decision. ...his lack of freedom is not due to coercion. Nevertheless his autonomy is limited in the sense that his range of choice is narrowed’. Op cit.

[13] Ibid, p 27.

[14] Or a failure to perform a particular intentional action where there is a recognised duty to act.

[15] Courts in England and Canada have associated ‘sane’ automatism’ with ‘external causes’ and ‘insane’ with ‘internal causes’. But this distinction was rejected in the Australian case of R v Falconer. (1990) Insane automatism can form the basis for a defence of insanity.

[16] This is providing courts do not see the ‘physically threatening situation’ as a result of the action of the individual concerned. Thus, while threat of imprisonment may, in some jurisdictions, be a sufficient threat to sustain the defence, this will not be the case where the threat is made possible by illegal acts of the person concerned (where an individual commits a crime to pay off a blackmailer who threatens to make public some past crime of the individual concerned eg). And duress is not available as a defence for the crime of murder.

[17] C.M.V. Clarkson, Understanding Criminal Law, 2nd edition, Fontana Press, London, 1995, p 86.

[18] In NSW, the defence of diminished responsibility was reformulated as ‘substantial impairment’ in 1997, with the latter understood as ‘an abnormality of mind arising from an underlying condition’ which was such as to ‘substantially impair a person’s ‘capacity to understand events, or to judge whether their actions were right or wrong or to control himself or herself’ at the times of acts or omissions causing death. This is supposed to exclude ‘transitory disturbances of mind brought about by heightened emotions’ and ‘remove the requirement for a particular diagnosis of the accused’s condition’. See D. Brown, D. Farrier, S. Egger, L. McNamara, Criminal Laws, Federation Press, Sydney, 2001, p 660.

[19] In the new Part 11A of the NSW Crimes Act, intoxication cannot be taken into account where crimes are not of specific intent.

[20] C.M.V. Clarkson, Ibid, p 88-89.

[21] As Clarkson says, this test is so narrow as to be virtually useless.

[22] Even the most florid psychotic delusions, and actions motivated by such delusions, have meaning for the individual concerned, and for others who bother to try to understand them.

[23] A. Norrie, `Crime, Reason and History, Butterworths, London, 2001, p 36.

[24] Ibid, p 37.

[25] I. Grigg-Spall and P. Ireland, The Critical Lawyers Handbook, Pluto Press, 1992, p 79.

[26] A. Norrie, Crime, Reason and History, p 38-39.

[27] George Mousourakis, Criminal Responsibility and Partial Excuses, Ashgate, Dartmouth, 1998, p 183.

[28] In the third world, those on the shop floor typically toil in slave-like conditions for what is often significantly less than a living wage.

[29] Entry into the upper levels depends upon the sponsorship of those already there. And they are generally unwilling to sponsor anyone further than one level below them.

[30] H. Croall, Understanding White Collar Crime, Open University Press, Buckingham, 2001, p 85.

[31] R. Hogg and D. Brown, Rethinking Law and Order, Pluto Press, Sydney, 1998, p 53-58.

[32] Ibid, p 54.

[33] In psychoanalytic terms, the poor and the powerless employ the defence of displacement of their anger, away from those who really oppress them, who remain outside the scope of their effective action, and onto the closer targets offered by hostile peers and family members. Otherwise, the anger is turned against themselves.

[34] What we actually see here are the ‘effects of institutional violence’ – the violence of enforced inequality and poverty, joblessness, discrimination and police victimisation, ‘concentrated at the bottom of society’. R. Wilkinson, Mind the Gap, Wiedenfeld and Nicholson, London, 2000, p 24.

[35] R. Hogg, ‘Prisoners and the Penal Estate in Australia’ in D. Brown and M. Wilkie (eds), Prisoners As Citizens, Federation Press, Sydney, 2002, p 14.

[36] Suggesting a serious deterioration in the educational levels of prisoners since 1973. Ibid, p 15.

[37] R. Hogg and D. Brown, p 69.

[38] R. Hogg in D. Brown and M. Wilkie, pp 15-16.

[39] Ibid p 16.

[40] A. Storr, The Art of Psychotherapy, Butterworth Heinemann, Oxford, 1990, p 100.

[41] Ibid, p 85.

[42] N. Mc Williams, Psychoanalytic Diagnosis, Guilford, New York, 1994, p 302.

[43] Both obsessional and schizoid people tend to relate to others in terms of domination and submission, substituting power for love. But this is particularly so in the case of the latter.

[44] Ibid p 151-152.

[45] ‘In 1992 and 1995, Hayes carried out research at six local courts and.... concluded that 23.6 percent before the courts in NSW had an IQ of less than 70, which placed them in at least the mildly intellectually disabled category In addition there were 14.1 percent who functioned within the borderline range’. J. Green, ‘Experiences of Inmates with an Intellectual Disability’ D. Brown and M. Wilkie (eds), Prisoners As Citizens, Federation Press, Sydney, 2002 p 51.

[46] Ibid, p 247.

[47] The 1996 Inmate Health Survey by the NSW Corrections Health Service found one third of male prisoners and two thirds of females tested positive for Hepatitis C. One third of males and one quarter of females had been confined in a juvenile institution at some time. One fifth of men and a quarter of the women had used heroin in gaol. see R. Hogg, ‘Prisoners and the Penal Estate in Australia’ in D. Brown and M. Wilkie (eds) Prisoners As Citizens, Federation Press, Sydney, 2002, pp 14-15.

[48] Ibid, p 11.

[49] S. Box, Crime, Power and Mystification, Tavistock, London, 1983, p 39.

The ruling class smoke their heroin, snort their cocaine, plunder the resources of the world, rape the environment, bully and terrorise their slaves, kill their workers and customers with impunity.

[50] H. Croall, ibid, p 89.

[51] Richard Chisholm and Garth Nettheim, Understanding Law, 6th edition, Butterworths, Sydney, 2002, p 126.

[52] Supposedly making convictions easier to obtain in the former sort of case.


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