Lying is not a crime

The innocent are now the guilty – thanks to broad general statements. After 20 years the chickens are coming home to roost…

Shortly before Christmas I read an inspector’s report on a mine accident, at the end of which he recommended criminal proceedings be instituted. In the report he identified a large number of reasons for the accident that built up to his final recommendation to prosecute. Those included: failure to recognise hazards, failure to stop work, inadequate risk assessment, inadequate training, inadequate supervision, inadequate planning. In the end the inspector recommended charges be brought against the mine in terms of s86 (1) of the Mine Health and Safety Act 1986, because by negligent act or omission, persons had caused serious injury to persons at the mine, and in terms of s5 (1) for the failure, as far as practicable, to provide and maintain a safe working environment without risk to the health and safety of employees. 

I noted as I read the report that not a single positive act – something the accused persons had actually done that was supposed to have caused the injury – could be identified. That same report could be re-typed and used for any accident where a person is injured or killed. For example, there’s clearly no doubt whatsoever that if the injured persons had not been allowed to work the day they were injured they could never have been injured.

Not stopping work is the cause of every accident. If employees stayed home they wouldn’t have been injured. If nobody goes to work then nobody would be injured.  Therefore, logically, anyone who allows anyone to work – or doesn’t stop work when an accident occurs – automatically becomes guilty of injuring the people who were injured simply by not stopping work. One can thus take each omission listed and argue each omission caused the same injury. Automatically, when a person is injured it can be said beyond any shadow of a doubt an unsafe environment existed. The mere accident itself demonstrates that an unsafe environment existed. Therefore the mere accident itself means an offence has occurred. It’s for that reason that our centuries-old common law has always limited criminal liability for positive conduct that causes the injury and, further, that the accused person must have the intention to kill or injure the person.

Twenty years ago I predicted prosecutions would be instituted for occupational accidents for reasons that are of such a general nature they could be applied to any accident. When the then new Occupational Safety and Health Bill was published for comment in 1992 I was the convener of the sub-committee of the Society of Risk Managers that examined the then Bill, and noted the proposals to create crimes for those broad general reasons involving omissions. We submitted our reservations to the Bill in October 1992.

In May 1993 I presented a paper at Noschon 93, entitled The Draft Occupational Safety and Health Bill and the warning from history. Requirements – such as criminal liability for the omission to take reasonable practical steps – have no place in criminal law and the entire tenor of the Bill violated the fundamental principle of criminality. The Bill was nevertheless passed into law and the same broad general statements appeared as crimes in the Mine Safety Act

But now the chickens are coming home to roost as actual prosecutions are being conducted for those vague reasons.

It seems it’s now become so commonplace to prosecute persons for vague statements that are passed off as laws that my objections probably cannot even be understood (except by those being prosecuted!).

That brings us back to the Christmas story. The life of Jesus is usually seen purely within a religious context. What’s forgotten is that it’s also a secular story about a miscarriage of the criminal justice system. A couple of years ago I delivered a series of lectures entitled the “Trials of Jesus” – looking at the death of Jesus as a secular criminal justice event. In preparing those lectures I discovered a number of books had been written in that vein, including one by a senior Israeli judge. I discovered there wasn’t only one trial but at least five different trials. In the end, and seen as a secular event, an innocent man was executed and it’s the only miscarriage of justice that was able to split history into BC and AD. The study answered the question: What is it that makes one man a criminal but not another? The answer was given by one of the criminals executed with Jesus. He pointed out to the other criminal: “We are punished justly, for we are getting what our deeds deserve. But this man Jesus has done nothing wrong.”

And that – being punished for something we have done – is, and has been through all the centuries, until now – the only basis of criminality. A criminal is one who by his positive acts commits a crime. An innocent person is one who didn’t commit any positive act that constitutes a crime. A thief is one who actually steals. A murderer is one who actually murders, and so on. Doing or not doing reasonable things is interesting, but is not a crime – or, if it is a crime, then everything is or is not a crime. Who goes to jail then becomes an arbitrary decision dressed up as a crime. So what I warned would happen 20 years ago is happening.

There are new developments taking place I didn’t anticipate 20 years ago. They have become obvious because they’re happening. The first is that the existing common law crimes are becoming increasingly meaningless. I suppose it’s obvious that would happen if one thinks about it. If crimes can be anything then they can’t be limited by the words describing existing crimes. In other words, if courts become used to convicting innocent people then innocent people cannot be protected simply because they didn’t commit crimes. Existing crimes then become meaningless.

Let me illustrate that with a number of examples. A few years ago a man was prosecuted for perjury: that is, because he had lied under oath. However, the prosecutor felt the penalty for perjury was insufficient, so he asked the court to find the man guilty of fraud – which allowed the court to impose a heavier six-year sentence. The court was happy to oblige. So a man went to jail for six years for a crime he didn’t commit.

Or, putting it another way, he went to jail for fraud that was expanded to mean something other than fraud. It became meaningless. Fraud could after that case be anything that sounded like a lie. Originally, fraud was theft through deceit. The crime was theft: “Thou shalt not steal.”

Since that case I’ve looked out for fraud cases to try and understand what fraud is. It’s nothing – and thereby becomes everything.

In the United States a woman was accused of a crime. The FBI went to interview her and decided she never committed the crime; but she went to jail anyhow. The FBI argued that when investigators questioned her she lied to them. She didn’t sign an affidavit and thus didn’t commit perjury. But lying about what was not a crime, it was argued, she then committed a crime. Lying by itself has never been a crime.

Crimes that involve lying were very specific. Perjury – lying under oath – is a crime.  Lying to steal or commit fraud is a crime; however, the crime is not the lying but the stealing.

That’s all disappeared. Lying doesn’t mean the person lied; it could mean they didn’t lie.  Omission has become a crime. Therefore not lying – when it’s thought you should speak – can be a crime. Little wonder recently The Economist has argued that jails in the United States are full because of the vast number of “crimes” that should never exist.

Returning to South Africa, for many years prosecutors have been arguing in vain that when a person causes a motor accident that person is a murderer. Murder requires the murderer to kill the victim with malice of forethought. To negligently kill someone is culpable homicide; an accountable death. Well, since crimes no longer have any meaning the courts have now finally found someone guilty of murder for causing a motor accident.

Even young lawyers can’t tell the difference between a murder and non-murder any more. When I pointed out to some of my young lawyer friends that a person who negligently causes an accident can’t be guilty of murder but can be guilty of culpable homicide I got stern looks of disapproval, which I noted, then asked: “Do you think ‘dolus eventualis’ arises from the accident? I could see that was what they had in mind. So I pointed out that saying things in Latin didn’t change the facts in the real world. They had to be young lawyers: old lawyers wouldn’t have been convinced as easily as they’d been convinced. If we carry on this way we can do away with specific crimes and have only one crime called “Crime”.

Now if a person can be guilty of a crime even if what they did (or did not do) doesn’t fall within the description of the crime, can a guilty person also become innocent? Recently the High Court and the Supreme Court of Appeal (SCA) thought so, but fortunately the Constitutional Court wasn’t misled. That was disturbing, for I didn’t think the SCA could that easily be misled. In a highly publicised case Robert McBride sued The Citizen newspaper for defamation because it called him a murderer. He is, of course, in fact a murderer simply because in fact he murdered people. His argument was that because he’d been granted amnesty he ceased being a murderer and should not be called a murderer. The problem with that argument is that a large number of other persons had been granted amnesty and, if McBride was correct, none of those could be called criminals anymore. It would be very difficult to write or discuss history if that were true.

Well, by the time the case got to the Constitutional Court it seems the impracticality of treating a person who commits a crime as a person who didn’t commit a crime was realised and McBride’s argument wasn’t carried. A strange thing about this case is that most of the attention was paid to the question of whether or not McBride could be called a murderer but the case was one of defamation. I find it hard to understand how a person can be defamed when what is already well known about the person is repeated. To my mind, that issue didn’t get sufficient attention in the case.  The Citizen wasn’t telling the public anything that wasn’t already in the public domain.

There’s a further development that’s taken place over the past 20 years, and that’s the vast increase in quasi-courts and their relationship with the law; but that can be left for the future.

It should be clear that the simple practical position that existed in criminal law for millennia as stated by the criminal on the Cross has now disappeared. No longer is a criminal one who by their positive deeds commits a crime. The innocent is now the guilty – thanks to those broad general statements now called crimes. The chickens are indeed coming home to roost.

Legally Speaking is a regular column by Professor Robert W Vivian and Albert Mushai, both in the school of Economics and Business Sciences, University of the Witwatersrand. Robert W Vivian is a leading authority on insurance and risk management. He has written a number of books on South Africa’s business history. Albert Mushai holds a master’s degree from the City University, London, and was the head of the insurance department at the National University of Science and Technology in Zimbabwe before joining Wits University as a lecturer in insurance.