CRIMINAL LAW 1.4 PRINCIPLES OF CRIMINALIZATION
Professor Joel Feinberg provided guiding principles that should work against prohibited behavior (ab).
- The harm principle.
- Legal moralism.
- Principle of offences to others.
- Principle of legal paternalism.
- THE HARM PRINCIPLE.
The word harm is both vague and ambiguous.
Harm may ordinarily be defined as physical, mental or oral injury or damage.
Jerome hall sees it as loss of value.
Eser views it as a violation of a legally protected interest.
This principle can be traced to John Stuart Mill who posited that
The only purpose for which power can be exercised over a member of a civilized community against his will is to prevent harm to others.
Joel Feinberg in his criticism says that harm principle should not be the only principle applicable. He considers three senses of harm.
- The derivative or extended sense
- The transferred sense
- The normative sense.
The derivative sense: That anything can be harmed. For example, a vandalized chair.
This sense can however be criticized on the basis that certain things (like gravity) cannot be harmed. It is pertinent to note that only when the broken/vandalized object can affect a person can we say a harm has occurred. E.g. A smashes B’s phone.
The transferred sense: Seen as the “thwarting or the setting back or defeating of an interest”. “Interest” meaning where one has a stake in something and enjoys when it flourishes or languishes when it fails. Human invasion rather than natural consequences or bad-luck can lead to such harm in the legal sense. As such the invasion must be by a human for it to ground legal liability. The test; “but for the human’s invasion the situation would not be this bad”. The criminal law does not look at personal interest but at (welfare interests) the interest commonly shared by the public… for example, privacy, association, and so on as such interest is necessary for the achievement of the other higher goals. They are called welfare interests.
Normative sense: a norm is an ideal or standard. When a person’s unjustifiable conduct violates the legal right of another. For example, trespass to land. Mere violation without injury constitutes harm. Harm without violation of right is not protected for example, disappointment.
Joel Feinberg concludes that only harm in the transferred sense and the normative sense are those that should be seen as harm.
Consent is a defense.
The Harm principle has been criticized for failing to explain the concept of harm, what qualified as “others”, whether it include abstract entities such as state.
- PRINCIPLE OF LEGAL MORALISM
The gist of this principle can be summarized in the question: Should criminal law be used to punish immoral behavior?
The liberals posit that law and morality are not the same.
The Devlin/ Hart debate
Arose based on the Wolfenden report which suggested amongst others that;
- Homosexuality should be allowed between two consenting adults in private.
- The law should not extend to the behavior done in the private lives of the citizens. Except it is coupled with corruption and exploitation.
- If there can be freedom of religion why can’t there be freedom of private morality?
- A country that has declined to enforce any Christian belief has lost its right to enforce Christian morals.
Devlin disagreed with the report and argued that the legislature should determine morality by using the standard of a reasonable man. That immorality in the view of the law is what a reasonable man would consider immoral and have a real feeling of disgust towards the act.
Hart queried Devlin’s logic. Arguing that the legislature should ask whether the general morality is based on ignorance or superstition else our reply should be: “morality, what crimes may be committed in thy name”. He distinguished positive morality from critical morality. The latter used in criticizing. That we should not think that a conduct is wrong because the majority believe it to be without any basis or rationale. In summary he is of the view that the standard of a reasonable man (as Devlin submitted above) may be filled with bias, ignorance and superstition.
Dworkin argues that the thought of majority that homosexuality is abominable may be a compound of prejudice and biased thought.
In conclusion, scholars and stakeholders are still divided on this issue. Note however that law and morality are not the same.
- THE PRINCIPLE OF OFFENCE TO OTHERS.
The legislation should aim to prevent serious offences to others and the actor.
Offence is a less serious thing than harm and should attract a lighter punishment. Like fines and imprisonment in days.
Section 231 of the Criminal Code criminalizes the offence of indecent acts in public places.
- LEGAL PATERNALISM:
Paternalism simply means telling people to do what is best for them. In the lay man’s sense, it is like taking care of a baby. Under this principle, the law sees the citizen as imprudent and puts in place certain criminal prohibitions to prevent the citizen (actor) from acting to his detriment or harming himself due to his folly and irrationality. Paternalism can either be passive or active. Paternalism is active when it requires an act or conduct while it is passive when it forbids a conduct or act. For example, the law requiring citizens to use seat belts, the law prohibiting driving under the influence of alcohol, the law prohibiting the use of narcotics and hard drugs, etc.
One point that hart made is that the law is concerned with welfare interests rather than individual interests. Meaning that the law does not look at personal interest but at the interest commonly shared by the public… for example, privacy, association, and so on as such interest is necessary for the achievement of the other higher goals. Interests that when promoted would foster the development and advancement of the society.
The classical and positivist schools of thought are the major proponents of divergent views on the basis of Criminal Liability.
THE CLASSICAL SCHOOL
The late 18th century. Ceseare Beccaria and Jeremy Bentham. Deriving its core ideas from thinkers like John Locke, Jean-Jacques Rousseau, Thomas Hobbes and others.
This school posits that humans formerly lived in the state of nature and grace where life was brutish and short (power and might was the order of the day). As such an unwritten social contract emerged whereby the people gave up part of their freedom to the strong central state in order to prevent the war of all against all.
Humans have freewill and are naturally hedonistic (desire pleasure over pain). The major control of human behaviour is punishment which best produces pain.
Cesare Beccaria in his book “On Crimes and Punishment 1764”, posited that the major principle to govern legislation was “the greatest happiness for the greatest numbers” (utilitarianism). He posited that “punishment should not be excessive, it should fit the crime”. Thus he is in support of duration rather than intensity of the punishment.
The classical school posits that the criminal justice should aim to prevent crime through deterrence.
Jeremy Bentham posits that criminal act is based on freewill and calculation of results the law of felicity calculus. Thus the punishment (pain) should be greater than the crime (pleasure) thus preventing crime through deterrence which is the objective of the criminal justice. Deterrence should be achieved by the certainty of the punishment and swiftness of justice.
This school has been criticised that it failed to address the causes of crime.
That there can be no equal justice for all in an unequal society as not all offenders have equal freewill.
THE NEOCLASSICAL SCHOOL.
The neo-classical school evolved as a revision of the classical school around the 1980’s.
Writers like Romily, Jeremy Bentham, John Stuart Mill, etc. their improvements over the classical school include that;
- Infants, insane people and women should be excluded from punishment
- Self-defence is also a plea.
THE POSITIVIST SCHOOL
With scientific revolution in the 19th century. Man and the world around him began to be explained from the scientific point of view. In his book, On Origins of Species Darwin presented evidence that humans were animals of a higher class.
August Comte is often being credited as the founder of positivism. Comte posits that scientific or positivist knowledge is the highest stage of knowledge.
The positivists argue that human behaviour is determined by various factors. As such punishment must fit the offender rather than fit the crime.
The ground-breaking work of Cesare Lombroso in his book Criminal Man which earned him the dubious title of the “father of criminology.” In his book, he argued that a criminal is born that way and can be distinguished by physical characteristics. “Criminals are more biologically inferior and somewhat primitive”. His view was based on genetics. He postulates that there are certain physiological features that are present in such born criminals, some of which include; large jaws, blood shot eyes, large ears, thick lips, etc.
His work has been criticised for not having rigorous research methodology. Because his samples consisted of soldiers, convicts and some mentally insane. That correlation does not mean causality. It has also been criticised on the basis that the ugly samples might have been made such by the society’s rejection. E.g an ugly and unattractive man might be moved to commit rape because his various advances in the past has been rejected.
Quetelet found that, literates committed lesser crimes than illiterates in the ratio 1:25 as such the more educated committed lesser serious crimes than their uneducated counterparts. He thus posited that; education, age, sex, season of the year and wealth affected the commission of crimes whether serious or petty. As such, certain kinds of people were more prone to crimes.
See also, the work of Sheldon, where he postulated that after his correlational study, he found that most of the convicts were mesomorphic and they were least likely to be ectomorphic.
Freud argued that traumatic experiences of childhood usually unconsciously make some people develop violent behaviour. The Ego, ID and super Ego was used in his analysis.
See also the work of Erinco Ferri. Erinco ferri posited that psychological, sociological and economic factors dertermine rather than physiological factors. He was a student of cesare Lombroso. Sentimets such as hate, vanity and the like greatly influenced ones criminal behaviour.
The positivist school has been criticised for failing to discover the cause of crime or develop effective strategies for controlling crime.
I also find it as being merely descriptive without providing remedies. Of recent, a study is being conducted on criminals, where the ugly ones undergo plastic surgery to improve their physiognomy. The study is revealing that the tendency in them to commit crime after surgery reduced.
That is; elements of crime. Criminal responsibility means culpability. Why should someone be culpable? The principle is: No liability without fault.
The maxim of lord Kenyo C.J in (confirm the case and maxim pls) Fowler V Paget; “actus non facitrium nisi men sit rea” meaning a guilty act alone cannot amount to liability unless it is accompanied by a guilty mind. In English common-law, the two terms which stand for the physical and mental elements include;
- Actus reus. (Guilty act).
- Mens rea. (Guilty mind).
Hence the actus reus and mens rea of an offence must be proved to ground liability.
Except in a strict liability offence.
Woolmington V DPP. Ignorance of the law is not a defense once the two elements have been proved.
- ACTUS REUS
It comprises of an;
- Act, omission, or passive state of affairs.
- Unlawful result/consequence.
- Surrounding circumstances.
AN ACT: Generally, a person is presumed to intend the natural consequence of his act. For example, an axe cut resulting in death- R V Nungu. Hyam V DPP
Glanville Williams sees it as the whole definition of a crime with the exception of the mental element. See also Kaza V The State
The law does not punish criminal intention alone until it is manifested by overt acts.
AN OMISSION: Generally, the law is reluctant to punish omissions except there is a duty to act imposed by law and omission to act exposes others to serious harm.
Section 343 and 344 of the Criminal Code penalizes omission to act in certain circumstances.
Chapter 26 of the Criminal Code imposes duties on heads of families to take care of the needs of those under them else, criminal sanction.
Section 515 of the Criminal Code punishes neglect to prevent the commission of a felony.
Hence, an omission to act in respect of these duties would constitute an offence even if it is not expressed through positive acts.
Section 7a and b of the Criminal Code also punishes acts or omissions as regards parties to an offence.
Where there is no duty, one can refuse to act. For example, if a man stands by callously while a cigarette’s end sets fire to another’s house, even though he could just stamp it out. Except in the prevention of public decay.
The Belgian Penal code was amended in 1961 to include a duty to rescue persons that are exposed to serious danger. This is recommended in Nigeria.
Actus reus can be negated by presence of a defense. For example, a public executioner has justification to intend to and shoot a condemned felon, day to day issues, and consent as in cases like sports, and so on. Liability for omissions under civil law is much wider.
UNLAWFUL RESULT OR CONSEQUENCES; the harm must result from the accused’s conduct. In murder, the conduct of the accused must result in the death of the deceased. Actus reus may not exist in some instances for example, if someone believes he is stealing another’s property when it is in fact his. When someone believes he is committing bigamy, not knowing that his wife has died.
Causation generally, a person is presumed to intend the natural consequence of his actions. However, there can be an intervening act novus actus intervenens sometimes. In such a situation, the consequence must be linkable to the person. Section 24 of the Criminal Code provides that a person is not guilty for an act which occurs independently of his will or by accident nor is he liable for an unwilled consequence.
- V Dallson. The owner of a filing station had a heart attack after a boy fled due to a failed attempt to rob the filling station. The court held that the heart attack can be linked to the boy.
- R V Jordan. A man while being treated (for injury caused by the accused) took water which gave him pneumonia and led to his death. The court held that the injury was not the cause of his death as there was a break in causation.
- The courts have also held that accident is an unforeseeable consequence. In R V Harris a thief that intended to burn down a picture frame accidentally burnt down the house.
- MENS REA:
The mental guilt of an act. May not apply in strict liability offences.
The culpable mind upon which the act is predicated to constitute an offence.
Section 24 of the Criminal Code exempts a man from responsibility for acts done by accident.
Intention: Desire is the hallmark of intention. That the accused foresaw and desired the consequences. This definition was extended by the House of Lords in Hyam V DPP to knowing the probable consequence of one’s act. Even though one did not desire that result.
In the Hyam V DPP case; a jealous lover set fire to her husband’s mistress’s house and two children that were in the house were burnt to death. She alleged that she did not intend to burn anyone that she only intended to scare the woman away from the neighborhood. The court held that one is presumed to intend the natural consequences of one’s act.
Intention must be distinguished from motive, negligence, and carelessness.
Motive: the reason for the accused’s unlawful conduct/act. Motive is generally irrelevant except to establish intention and in issues of compulsion, defamation and emergency situations- Section 26 of the Criminal Code. In my opinion, the courts should take into account the motive of the accused in passing the sentence. For example, where a person steals a tin of rice out of starvation.
Recklessness is the conscious taking of an unjustified risk. Subjective foresight.
Negligence: the consequence of a person’s act which ought to have been reasonably foreseen. Objective foresight. The reason for punishing negligence is that a man ought to take care.
Accident: not even a reasonable man could have foreseen what was going to happen.
See Section 24, 25 and 26 of the Criminal Code.
In burglary and housebreaking, the specific intent must be an intention to commit a felony.
At common-law, there existed the doctrine of transferred malice.
See also Section 316. R V Latimer (confirm) Transferred malice or transferred intent occurs where “A,” intending to harm “B” mistakenly harms “C” thus “A” maliciously wounds/harms “C”. The rule would not apply where the kind of harm intended is different from the kind of harm done.
Proving intention is a herculean task as noted.
Bryan CJ: the devil himself knoweth not the intention of man. Also,
Williams Shakespeare noted that there is no act to find the mind’s construction from the face.
Bowen LJ in Edginton V Fitzmaurice: However noted that; “The state of a man’s mind is like the state of his digestion”.
Since intentional acts originate from the realm of thought, it can be construed from the facts and circumstances of a case. For example, in the case of murder intention can be construed from the manner and intensity of blows.
In Nungu V R: A man initially intended to hack his brother down with the sharp end of an axe he later used the wooden haft to hit his brother. The brother nevertheless died. The court held that he intended to cause grievous bodily harm and as such, he was liable for murder. This case buttresses the egg shell principle “take your victim as you find him”.
Other epitaphs of intention includes, knowingly, wilfully, maliciously, and so on.
Intention can also be construed from recklessness by the application of either the subjective (mind of the accused) or objective (reasonable man) test. The subjective test was applied in R V collingham 1957 2qb. In Caldwell V NPC 1982, ac 341 the court applied the objective test.
Negligence is generally not part of mens rea. It can however be punished where the offence created extends to it. The justification for punishing negligence is that a man ought to take reasonable care. Ibikunle V the state 2007 3 MJSC p 184 … Jimoh Michael V the state 2008 13 nwlr pt 1104 p 361.
In strict liability offences may not require intention. this was noted in Dosumu V comptroller of customs and excise. R V Efana.
CONCURRENCE OF MENS REA AND ACTUS REUS.
Actus reus and mens rea must concur. If a change of mind still leads to the actus reus accidentally, there is no concurrence.
In Thabo-Meli V R 1954 1 wlr 228.
The appellant struck a man with intent to kill him. Believing him dead though only unconscious, rolled him over a cliff, in order to make his death appear accidental. He in fact died as a result of subsequent exposure. It was argued that the intent to kill did not concur with the act of killing. However, the Privy Council rejected the argument and held that the transaction could not be divided.
However, in R V Chiswibo (confirm the spelling) 1961 (2) SA 714.
The issue was whether the burial of the living body believing it to be lifeless constituted a continuing process in the act of killing. The court held that the burial and the act of killing was divisible. Unlike Thabo meli case.
See also R V khandu 1890 ilr 15. It was held that the two acts were divisible.
In conclusion, Okonkwo and Naish posit that the question of actus reus or mens rea should be construed from the wordings of the statute and that The courts should adopt the ordinary rules of interpretation and should lean readily in favour of mens rea requirement. They also advocate that Chapter 5 should be read into the definition of every offence… because if the legislature wishes to impose a strict liability, it should do so in plain language.
Criminal responsibility simply means blameworthiness. Criminal liability is personal (i.e it is the blameworthiness of the perpetrator that we look at).
Exceptions to blame worthiness may include;
- Vicarious liability (individual).
- Strict liability (statute made offences that disregard mens rea)
- Corporate criminal responsibility.
- Vicarious Liability (corporate)
- Doctrine of identification.
- VICARIOUS LIABILITY (INDIVIDUAL).
Unlike civil liabilities where a master can be vicariously liable for acts of his servants… generally, criminal liability is personal (attached to the perpetrator).
Huggins V R 1730 2 STRANGE 833.
It was held that the head of a prison cannot be vicariously liable for the negligent criminal act of the warder which resulted in death of an inmate.
However, for some reasons, the mental element of the real perpetrator is imputed into the master to make him vicariously liable. This increases the chances of getting paid damages. Vicarious liability thus ensures public policy and keeps the employer on his toes.
Thus, as lord Coleridge CJ affirmed in Somerset V Hart 1884 12 qbd 316 at 362. “It is permissible that a man may put another in his position so as to represent him for the purpose of knowledge”.
The courts may ask whether the servant was acting within the authority granted by the principal- Ogbuagu V Police.
Section 44 of the Liquor Licensing Act provides that a liquor license holder is vicariously liable for any offence committed with the license. For example, the servant of a licensed liquor depot serves a 14 year old boy a beer. Allemn V Whitehead. 1930 1 kb 211.
In Ogbuagu V Police: the court noted that an employer can be exempted from liability where he had expressly warned the servant.
- STRICT LIABILITY OFFENCES.
Such offences are purely created by statutes. Usually to entrench public interest, order and welfare. The actus reus alone can impose liability for example, D.U.I, public nuisance, outraging public decency, criminal libel, and so on.
There should be no capital strict liability offence.
The intention of the legislature should be construed from the wordings of the statute.
S5 of the road traffic act of England is an example. It made it a crime to drive or attempt to drive under the influence of alcohol. The Breathalyzer legislation has created a strict liability offence for DUI, the intoximeter would be used to test.
In Nigeria, under the customs act, there are offences of strict liability. In Dosumu V Comptroller of Customs and Excise, Hubbard J pointed out that the customs ordinance (now Act) contained three classes of offences ie
- Offences of absolute prohibition to which guilty knowledge is irrelevant
- Offences in which prosecution must prove mens rea
- An intermediate class of offences involving mens rea but where the onus of proof is shifted to the defendant to disprove guilty knowledge.
In R V Efana it was held that: Irrespective of the accused innocent belief and ignorance, they were guilty of offences in respect of taking the cases away because the relevant sections of the customs ordinance were absolutely prohibitive.
Words like cause, “allow”, “permit”, “be in possession” “cause” and also where no qualifications such as willfully, knowingly, “intentionally” and so on are used. It may show the intention of the legislature that it be a strict liability offence.
Chk Wrothwell ltd V Yorkshire authority 1984 clr at 43 where it was held that the defendant caused a poisonous matter to enter a stream as such he was liable even if he did not intend such.
Harrison V R that strict liability applied to offence under Section 19 of the firearms act and that is the offence of having a loaded shot gun in a public place.
A strict liability does not extend to when someone has been framed. For example, slipping a prohibited substance into someone’s property.
Warner V Metropolitan Police Commissioner
Knowledge of possession rather than appreciation of the quality or illegality of substance being possessed shall suffice.
Adjei V R: A newspaper editor was found guilty of publishing a seditious article. The chairman was also convicted even though he was ignorant that the paper had a seditious content.
It is important to note that: Unlike Ogbuagu V Police (which was vicarious liability), Strict liability offences are not interested in whether the employer had previously warned or discouraged the act. Although in certain circumstances, a quantum of guilt may be required.
Some other examples of strict liability offences can be found in (amongst others):
Section 243 (1) of the Criminal Code provides 1 year imprisonment for one who has unfit and noxious materials in his possession and intends to sell them as food or drink.
Section 244 of the Criminal Code penalizes any person who “knowingly” sells deceased meat. Dosumu V Comptroller of Customs and Excise.
- CORPORATE CRIMINAL RESPONSIBILITY
Generally speaking, a company is a body corporate and as such, can sue and be sued.
Initially, at common-law, the corporation was deemed to be devoid of a mind and as such, incapable of committing mens rea required offences. Anglo Nigeria Tin Mines V R-“It cannot stand in the dock nor can it be imprisoned”.
The common-law scope was expanded in R V ICR College.
In Nigeria, express wordings of statutes make corporations liable. For example;
Section 74 (5) of Factories Act used “companies and other persons”.
The Criminal Code uses “any person” in most of it offences.
Section 3 of the Old Interpretation Act includes a company in its definition of a “person”.
Part 51 of the CPA provides that a corporation can be charged with an offence.
The justification for corporate liability may include;
- It makes corporations take care in their activities and improve safety procedures and regulations.
- It promotes greater control by shareholders who ultimately bear the financial penalties imposed.
- Deterrence of future harmful activities
There are two ways in which a company can be held liable for a criminal act. Viz;
- Vicarious liability
- Doctrine of identification
- VICARIOUS (company)-
Companies are held vicariously liable for crimes committed by its employees in the course of carrying out directives. Especially in strict liability offences. Except the employee acts outside the scope of his authority.
In Ogbuagu V police; The employer instructed his employee not to publish the papers while he was away. The employee disobeyed and published a seditious article this was held to be outside the scope of his authority.
Tesco Stores ltd V Brent London Bureau Council: The defendant company was charged with “supplying” a “video” with an 18 restricted certificate to a youth of 14 in violation of the video recordings act 1984. Tesco argued that none of the directors were aware of the fact. This contention was rejected. The court held that the knowledge of the employee could be attributed to the company to establish vicarious liability.
R V British Steel Plc 1995 1 CR 586.
This doctrine has been criticized as being too wide as to attributing the acts of all employees to the company.
- THE DOCTRINE OF IDENTIFICATION.
Also called the alter ego principle.
DPP V Kent And Sussex Contractors Limited.
R V ICR Limited.
In HL Bolton Engineering Co. Ltd V T.J Graham and Sons ltd: Lord Denning personified a company to the human body having brains and hands. The hands being the ones that take direction from the brains. The brains of the company being the managers and the hands being the servants. The ones that control are the brains of the company and their state of mind can be attributed to the state of the company’s mind.
Following this doctrine, the courts would separate the brain from the hands depending on the circumstances.
In Tesco Supermarket Ltd V Nattrass. 1972 ac 153. The branch manager of the company was held not to be a brain of the company. this was most likely because he was not in control and took directions from the central/head office.
In Meridian Global Funds Management Asia Limited V Securities Commission 1995 2 ac 500. Lord Hoffman adopted the attribution test when he held that two senior management managers were brains of the company.
Corporate Homicide Act 2007 England extends corporate liability to manslaughter cases.
Corporations have been convicted in Nigeria. For example:
In R V Zik’s Press Ltd 1947, 12 waca 202: and the case of R V African press ltd, the corporations were convicted for sedition. In Mandilas and Karaberis Limited V IGP 1958 3 fsc at 20 the court noted that a company can be convicted for stealing.
In conclusion, criminal blameworthiness is personal except in some the instances for the sake of public policy.