1.0 INTRODUCTIONIt is a known phenomenon in criminal law that Offences are classified into different categories. The classifications are not contained in the sections creating the offence; they are contained in the punishments attached to the offences. A person should be punished for the offence which he or she committed which is the basis of criminal responsibility. Such a person cannot properly in law be punished for another person’s offence except where there is vicarious liability permitted by law.
- classification of offences
- element of an offence
- homicide (general aspect)
- parties of an offence
- general principles of sentencing
- the police and the administration of criminal justice
- obtaining by false pretence
- stealing/criminal law
- the offence of rape
- history and sources of nigerian criminal law
- the definition of crime
- theories and
At the end of this unit, you should be able to:
- show how offences are classified
- explain the basis of criminal liability
- define the concept of no liability without fault.
3.0 MAIN CONTENT
3.1 The Classification of OffencesIn English law, there is the classification of offences into common law offences and statutory offences. Common law offences are those offences which were developed from the customs and tradition of the English people. Statutory offences are offences which were put in place by the various enacting authorities in England.
In Nigeria, the classification of offences is contained in S. 3 of Criminal Code. That section provides for classification into felonies, misdemeanour and simple offences and it applies only in the southern part of Nigeria
A felony is any offence which is declared by law to be a felony, or is punishable without proof of previous conviction, with death or with imprisonment for three years or more. A misdemeanour is any offence which is declared by law to be a misdemeanour, or is punishable by imprisonment for not less than six months, but less than three years.
All offences other than felonies and misdemeanours, are simple offences. Section 3 CC.
This division of crimes into felony, misdemeanor and simple offence applies only in the Southern part of Nigeria.
In the northern part of Nigeria where the Penal Code applies, no such classifications have been made. But these classifications as above, covers all manner of offences in Southern part irrespective of whether such offences are contained in the Criminal Code or not.
It is suitable to note that no section creating an offence has clearly declared such offence to be a felony, misdemeanor or simple offence. The gravity of the offence and the punishment allayed to it informs the class into which a particular offence belongs.
We shall now approach section 3 of the criminal code in order to discover the three classifications. That section defines a felony, as any offence which is declared by law to be a felony or is punishable without proof of previous conviction, with death or with imprisonment for three years or more.
A misdemeanor is defined as any offence which is declared by law to be a misdemeanor or is punishable by imprisonment for not less than six months but less than three years. And finally that section concludes by providing that all offences, other than felonies and misdemeanor are simple offences.
There are certain consequences which result from the above classification. They are both procedural and substantive. In terms of procedure, the power of a private person to arrest a suspected misdemeanant is more limited than his power to arrest a suspected felon. Similarly, the granting of a bail is lot more limited than when the offence involved is a felony. The substantive consequence of classification into felonies, misdemeanors and simple offences are: first that it is only in respect of felonies that we have offences such as compounding felonies (see S. 127 of Criminal Code) and neglect to prevent the commission of an offence (i.e. neglect to prevent felony as contained section 515 of the Criminal Code). Again, the punishment for attempts or conspiracies to commit offences and for being an accessory after the fact will vary in accordance with whether the substantive offence, if committed, was a felony, misdemeanor or simple offence.
Furthermore, certain defences are available on charges of assault of more serious harm which result in death committed by public officers or private citizens in preventing the escape of a felon that are not available to other murder. See section 271 and 272 of the Criminal Code.
3.2 The Principle of no Liability without FaultThe learned authors, Okonkwo and Naish, submit that all legal systems have to some degree or other incorporated the simple moral idea that no one should be convicted of a crime unless he willed the fault and same attributed to him.
An illustration will explain the foregoing. If A kills B; A’s fault of killing B cannot be transferred to his father because there was no fault on his father’s part which will make the latter liable despite the fact that the father has a moral duty to bring up A well just as his child.
In order to prove that the accused is liable, it is left for the prosecution to prove the existence or otherwise of mens rea and it is analytical to state that the mens rea doctrine is used to describe the statutory principle under the common law situation, which runs through all offences. SELF
ASSESSMENT EXERCISE 1What do you understand by the principle of liability without fail? 3.3 Sources of the Principle
There are two sources to which the principle of no liability without fault could be traced. The first is predicated on English law as a source and the second is anchored on Nigerian law as a source.
a. English Law as a SourceOkonkwo and Naish have said that in English law, the scope of the doctrine of mens rea (guilty mind) depends on whether a particular crime is a common law offence or a statutory offence. It is worth recapitulating that common law offences derive from the customs and tradition of the English people while statutory offences are those contained in enacted statutes.
At common law, there is a legal presumption that an accused person is innocent until he or she is proved guilty. An offence requires proof of a guilty mind but if the offence is constituted, there is a factual presumption or presumption of fact that proof of guilty mind depends on whether the statute requires such proof or not. In Nigeria, every offence by whatever mode it is constituted, is a statutory offence and must be written and therefore known to law.
The mens rea doctrine was decided upon in the case of Lim Chik Aik v. R (1963) AC 160. In that case, the Judicial Committee of the Privy Council accepted the immortal words of Wright J in the often cited case of Sherras v. de Rutzen (1895) 1QB 918 to the effect that “there is a presumption that mens rea or evil intention or knowledge of the wrongfulness of the act is an essential ingredient in every offence. “But that presumption is liable to be displaced either by the words of the statute creating the offence, or by the subject matter with which it deals, and both must be considered”.
But there are certain offences in which mens rea doctrine is displaced in which case it will be said that liability is strict. It is strict because in such offences, the law does not require the proof of mental element or the guilty mind. The proof of actus reus or the guilty act is enough for the conviction of the accused person.
Foster Sutton, P. in Amof a v. R (1952) 14 WACA 238 said that in order to determine whether mens rea (that is to say a guilty mind or intention is essential element of the offence charged), it is necessary to look at the object and terms of the law hat creates the offence.
b. Nigerian Law as a SourceThe principle that no person should be punished without being guilty is contained in section 24 of the Criminal Code and it states that “subject to the express provisions of this code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or for an event which occurs by accident.” Under this category, the accused would have acted or omitted to act under a condition which is involuntary…. – i.e. independently of his/her will. This defence is separate from the defence of accident and should be treated as such. The defence comes under the generic term ‘auto malison’ – an involuntary occurrence such as somnambulism, black out, convulsion, spasm etc.
There are two arms in the above section, these are:a. a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will.
b. a person is not criminally responsible for an event which occurs by accident.
This is a defence of accident. It is not a mater of absence of will or consciousness but an event which was unexpected. You should try to distinguish between the two defences of auto malison and accident. Suppose you are working with a matchet in a field in the company of other workers. You are suddenly stung by a bee in the back. In a quick reaction, you tried to use the flat side of the matchet to hit that part of the body to get rid of the bee. The matchet lands on the head of a co-worker either by slipping of your hand or because of the swift manner you swung around.
Although you had the will to swing around to make use of the matchet, the result of what you did was an event which occurred suddenly and unexpectedly. It is an accident.
Again suppose you suddenly have a spasm which swung you round unconsciously resulting in the matchet landing on the head of the co- worker. This is not an accident. It is auto malison. The act of swinging round occurred independently of the exercise of your will. It was an unwilled act negating any mental sate of voluntariness.
The case of Opara v. State (1998) 2 NWLR (pt 536) 108 reinforced the new position on the degree of Negligence required to support the case. The word “act” which is contained in section 24 of the criminal code is the physical element (guilty act) within the surrounding circumstances in which the act or omission occurs.
Also the word “event” as contained in section 24 of the criminal code means the result of human conduct. Thus, on the facts of Timbu Lohan v. R (1968) 42 A;JR 259 at 303, Waindeyer L. said that “an event in this context refers to the outcome of some action or conduct…”. In that case the striking of the baby on the head was an “act” and the death of the baby an “event”. An event which occurs by accident connotes an act totally unexpected, unwilled, unintentional and without any fault as against an act which is deliberative, willed or intentional (Thomas v. State (1994)).
Opera v. State (Supra) The utter recklessness in disregard for lives and safety of other road users was said to be negligent.
Again the word “accident” which is contained in section 24 of the Criminal Code deserves a discussion. “An effect is said to be accidental when the act by which it is caused is not done with the intention of causing it …” See Stephen’s Digest of Criminal Law, 9th Ed. p.260. Generally, accident (not traffic accident) means a fortuitous circumstance, event, or happening without any human agency, or if happening wholly or partly through human agency, an event which, under the circumstances, is unusual and unexpected by the person to whom it happens. The word may be employed as denoting a calamity, casualty, catastrophe, disaster, an undesirable or unfortunate happening, any unexpected personal injury resulting from any unlooked for mishap or occurrence, any unpleasant or unfortunate occurrence that causes injury, loss, suffering or death. An event that takes place without one’s foresight or expectation, an undersigned sudden and unexpected event. (Agwu v. State (1998)
Defence of accident under section 24 CC. applies even though the act done is unlawful: (R v. Martyr (1962), Festus Amayo v. The State (2001) 18 NWLR p. 745 251 and Agwu v. The State (1998) 4 NWLR (pt. 544) 90.
The word “will” which is also contained in section 24 of the Criminal Code should similarly be examined. An intended act in the sense that the actor intended by his action to achieve the full operation of that action as it proved to be and in fact, must necessarily be regarded as a willed act. See Barwick C. J in Timbu Kilian v. R (supra).
It seems plain that the Common Law principle of mens rea (i.e. no liability without fault) is the same with section 24 of the Criminal Code. Okonkwo and Naish have argued and rightly too that the words “mens rea” should not be used in our Criminal law because the criminal code which we use, has already provided in S. 24 what the mens rea doctrine does in common law in relation to the principle of no liability without fault. They argue that the need to import it into our criminal law therefore has been defeated by S. 24 of the Criminal Code and that section 24 of the criminal code is eider in scope and applicability. Where the court held that the situation reflected in S. 24 of the Criminal Code is that no criminal responsibility is due to a person for an event which occurs by accident. This involves a voluntary act, but where the voluntary act results in an event which was neither intended nor
foreseen, the consequences is an accident. The court defined accident as contained within section 24 of the Criminal Code as an act totally unexpected, unwilled, unintentional and without any fault as against an act which is deliberative, willed or intentional (Thomas v. State  4 NWLR (pt 337) 129.
See the case of Agwu v. State (1998). Here, the appellant and his deceased brother had a melee, struggled over a rod, resulting in some vandalism and the deceased sustained some injuries, bled from upper shoulder and subsequently died. Neither party showed satisfactorily how the deceased got the fatal injury. The trial court convicted the appellant but the Court of Appeal in a unanimous judgement allowed the appeal.
You should remember that the onus is on the prosecution to disprove the defence of accident. If the prosecution therefore failed as in the instant case, to show satisfactorily how the deceased got the fatal injury in the scuffle and the true cause of the injury or hurt was unknown, then the hurt or injury would qualify as and be called an accident. The Court of Appeal held as the defence of accident, like all other defences, presupposes that the accused physically committed the offence but should be acquitted because it was an accidental act.
This principle is further illustrated in the case of Amayo v. The State (2001). In that case, a policeman at a road block ordered a pick-up van to stop. The driver tried to move on. Another policeman (accused) emerged, just then, there was a gunshot. A bullet from the gun fired fatally hit the conductor. The policeman was charged with murder. His defence was that his rifle fell from him, hit the ground and exploded just on the pick-up van which was passing by. He said he had no intention to fire, let alone kill. Hid defence was one of accident. But the High Court and the Court of Appeal rejected this defence, convicted him of murder and sentenced him to death. The accused further appealed to the Supreme Court.
The issue canvassed before the Supreme Court was whether the appellant was exculpated from criminal responsibility for the death of the deceased by virtue of the provisions of section 24 cc.
The Supreme Court held that no act is punishable if it is done involuntarily. And an involuntary act in this context (otherwise known as ‘auto malison’) means an act which is done by the muscles without any control by the mind. Or done by a person who is not conscious of what he is doing. The Supreme Court unanimously allowed the appeal and substituted a conviction of manslaughter for murder.
We shall discuss this further when we come to study defences to criminal responsibility.
SELF ASSESSMENT EXERCISE 2What is the relevance of the case of Timbu Kian v. R (1982) to our Criminal Law?
4.0 CONCLUSIONEssentially, the purpose of offences being defined with commensurate punishment attached if for certainty in the society. In this unit, you were exposed to the fact that offences are classified based on the weight of their criminal responsibility. This unit is very important in that we discussed law, offences and punishment. It helps you to know the consequences of certain acts and that a person can only be punished for the alleged offence committed not on another one.
SUMMARYOffences are classified into felonies, misdemeanor and simple offences. The classification is determined by the nature of punishment attached to a particular offence. That a person can only be punished for his fault and not the fault of others. That the English law and Nigerian law provide sources for the principle of no liability without fault. That except, there is negligence, section 24 of the criminal code provides a defence to an accused person who successfully pleads it.
6.0 TUTOR-MARKED ASSIGNMENT
- If I strike my brother with a sharp knife in a manner not justified by law, it is an act, and if death results from my act, it an event. Discuss the above statement.
- What are the consequences of classification of offences in our law?
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