Above all, do not lose your desire to walk: every day I walk myself into a state of well-being and walk away from every illness; I have walked myself into my best thoughts, and I know of no thought so burdensome that one cannot walk away from it …but by sitting still, and the more one sits still, the closer one comes to feeling ill …Thus, if one just keeps on walking, everything will be all right.

— Søren Kierkegaard (1847, in a letter to his ailing sister-in-law)

Criminal lawyers of a certain vintage had a knack for coming up with catchy truisms that distilled hard truths from years of experience. Some are raunchier than others, and best not shared in polite company. But when they apply, suddenly the nuances of the criminal law are universally understood. You know, not guilty is not the same as innocent. The court might have doubts, but I don’t. Actual innocence seldom makes the cut. He must’ve had a really good lawyer.

The Best Defence Is Not to Get Charged

Another truism, the subject of today’s article, goes like this: The best defence is not to get charged.

That might not be as easy as it sounds. Harvey Silverglate’s Three Felonies a Day (2009) argued that it is hard not to be a criminal anymore, even unavoidable; that the American legal system had grown so vast that ordinary people unknowingly violate the laws that govern them every day. That may be truer today (the expansion continues) and not just in the U.S.

Yet, there are ways to reduce the risk of arrest. Here is a non-exhaustive list:

1. Cultivate a relationship with right and wrong. The guiding principle is reciprocity: if you wouldn’t like it done to you, few will, so it might well be illegal.
2. Avoid using the Nixon standard (plausible deniability) as your daily operating system. That someone cannot prove you’re lying doesn’t mean they believe you. Plausible deniability might squeak out an acquittal, but it won’t prevent a charge being laid. That requires only a police officer’s reasonable belief that a crime has been committed, with reasonableness up for debate only at trial. Worse, practising plausible deniability invites prosecution. People do not like being gaslit, especially when it causes them harm. They tend to call the police.
3. Convenience is not your friend. Nor are unusually good deals that involve a third party who is not present. Each induces high-cost, low-payout decisions. Having access to the car for tomorrow’s meeting is useless if you’re in jail. And wilful blindness is not a defence; it’s a basis for conviction.
4. Do not commit a crime to avoid prosecution for another offence. Often this involves perjury or obstruction, which usually carries a stiffer penalty than the original offence.

But for modern purposes, in the Era of Instantaneous Telecommunication, the winning entry has to be:

5. When Upset, Put Down Your Phone and Go Outside

An advantage of living in “meatspace” (cyberpunk slang) was its ability to apply the brakes to our worst impulses. Receiving a “Dear John” or dismissal letter by horse-and-buggy generated the same emotional response as being text-dumped today. The five stages of grief followed, then as now. But it was much harder to lash out immediately. Writing a furious, even threatening, letter still required the postman, whose delayed arrival might allow the therapeutic effects of venting to take hold. The letter might spend the rest of its life in a drawer.

Mounting a horse (or bicycle) to deliver the message (or worse) in person offered similar benefits. Halfway through the valley, the sun glistening off the rocks and river ahead, rage might give way to sorrow and, eventually, acceptance. The advent of the telephone changed this, but only slightly. Before voicemail and call display, angry calls went nowhere if the recipient did not answer. They disappeared without a trace, leaving nothing to regret.

Today, there are no brakes, only accelerants. People who are hurting often compound their problems, sometimes exponentially, due to ready access to instantaneous communication. The criminal law recognizes that human beings are flawed, but its function is to denounce and discourage harmful actions arising from that imperfection. It seldom, if ever, excuses conduct committed under understandable distress. That is a matter for sentencing, where the particular circumstances of the offence and offender will be considered.

The Bottom Line

Any threat, harassment, malicious falsehood, or revenge porn shared electronically can attract criminal or civil liability, whatever the emotional state at the time of delivery or publication. The same applies to hacking or intercepting communications electronically. No deleted message, spoofing, or Terms of Service agreement is beyond the reach of a search warrant, subpoena, or a skilled technologist. Modern technology not only enables crimes of passion but also preserves the evidence perfectly.

So, in trying times, it is best to keep your devices at bay. Follow Kierkegaard’s advice. Go for a walk (without them). A long one. Or an even longer ride. You will feel much better, guaranteed. You may even wake up in your own bed.

But if you are compelled, irresistibly, to type or record something when upset, do not send it immediately, please. Wait at least 24 hours. Review it when you are fully cooled off and entirely sober, preferably with the assistance of a lawyer.

Then send it to yourself.

If you are facing criminal charges or are concerned about the legal consequences of your communications, Hummingbird Lawyers LLP’s criminal defence team can help. Please contact us to book a consultation.

This article is meant to provide a general overview and does not constitute legal advice. If you require legal advice, please contact us.