General Introduction and Purpose of Criminal Law

1. Introduction
2. Objective
3. Main Content
   • Crime
   • Running offences
   • The Criminal Code
   • Purpose of Criminal Law
   • Dynamism of the Criminal Law
4. Conclusion

5       Summary

6. Tutor-Marked Assignment

7       References

Introduction

Law is the pillar of any society, an instrument of stability and above all, the machinery for regulating the conduct and activities of the individuals and institutions of the society. Every society therefore creates law in order to regulate the conduct of the citizenry. Hence, law is better understood in terms of its role in the society. The Criminal law is the principal law of crimes and the focus of this course, which you are about to study. It is also the substantive law which prescribes what crime is, the type of acts or omissions which the law prescribes or proscribes; as well as the sanctions for violation or non-compliance.

The Criminal law imposes restrictions on human activities or omissions. This is suggestive that law generally and criminal law in particular is antithesis of freedom.  In this context, freedom would mean, not liberty  to do whatever pleases you but liberty to do whatever you want within  the limits imposed by the criminal law. Viewed from the opposite perspective, criminal law expands rather than contracts your freedom. The reason is that man is not just an individual, living alone in an unrestrained state of nature. Rather, he is a human being living in a community with other humans and the criminal law merely exists, in the circumstance, to limit your freedom with the objective and reality of expanding your freedom as a whole.

As you proceed in the course, you will learn a number of these prescriptions and proscriptions.

 Objectives

When you have studied this unit, you should be able to:

• Enumerate the   purpose(s)  of   the   Criminal   law   from different perspectives
• Critique the constitutional and other provisions on crimes and fair hearing

Main Content

There is no single law on crimes. Criminal law is written, and forms part of our statute laws. In pre-independence times, criminal law was contained in various ordinances drawn up by the Governor in-Council on the advice of members of the House of Representatives and published from time to time in the Nigeria Gazette. Now they are laws  passed  by the State Assembly or Acts passed by the National Assembly. They are contained also in edicts passed by the Military Governor of a State or decrees passed by the Federal Military Government. Examples of such ordinances, edicts, decrees, laws or Acts are:

• The Criminal Code Law or Act
• The Penal Code
• The Sharia’h law
• The Road Traffic Ordinance or law or Act
• The Dogs Ordinance (or Act)
• The Liquor Ordinance (or Act)
• Corruption and Financial Crimes Act etc

There are other numerous Acts or laws and subsidiary legislations which have created crimes. However, the prescriptions of the crimes you will be learning are contained in the Penal Code applicable in the 19 Northern States and the Criminal Code which applies in the 17 Southern States.

Crime

The word “crime” is derived from the Latin word “Crimen” meaning an accusation.

Legislation on Crime

The Constitution and both the Penal and the Criminal Codes contain references or definitions of crime which you need to be familiar with.

The Constitution section 36: Right to fair hearing:

• Sub-section:

No person shall be held to be guilty of a criminal offence on  account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the  time the offence was committed.

• “……a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law and in this subsection, a written law refers to an Act of the national Assembly or a law of a State, any subsidiary legislation or instrument under the provision of a law”

Section 13

All authorities and persons exercising judicial powers shall conform to, observe an d apply the provisions of the provisions of the constitution

Section 17

The independence, impartiality and integrity of courts and easy accessibility thereto shall be secured and maintained

The Penal Code

• Section 3: Punishment of offences
  • Every person shall be liable to punishment under the Penal code for every act or omission contrary to the provisions thereof of which he shall be guilty within the Northern States.
  • After the commencement of this law, no person shall be liable to punishment under any native law or custom

• Section 4. Offences against laws of a state:
  • Whereby the provision of any law of state in the North, the doing of any act or the making of any omission is made a offence, those provisions shall apply to every person who is in Northern Nigeria at the time of his doing the act or making the omission

Running Offences

When the offence is a running offence and the elements making up the offence occur across a number of States, the offender is as guilty as if all the elements occur in one State under the following situations:

• Where the offender commits in the Northern states, the act which makes up the initial element of the offence
• where the act constituting the initial element of the offence has been committed outside the Northern States but the offender has subsequently entered the Northern States

A person cannot be convicted for an offence wholly committed outside  the Northern States whether or not he re-enters the Northern states thereafter. To gain a conviction, there must be some element of the offence occurring within the Northern States. It is not enough that all that occurs in the North is the death of the victim

Words referring to acts

• In every part of the Penal code, except where a contrary intentions appears from the context, words which refer to acts done extend also to illegal omissions: (section 24)

Act Omission

The word “act” denotes a series of acts as well as a single act: and the word “omission” denotes a series of omissions as ell as a single omission: (section 25)

 Offences

Except where otherwise appears from the context, the word “offence” includes an offence under any law for the time being in force: (section 28)

The Criminal Code

• Section 2: Definitionof Offence

An act or omission, which renders the person doing the act or making the omission liable to punishment under this Code, or under any order-in-council , Ordinance, or law or statute is called an offence.

Legal Notice No 47 of 1955

This Legal Notice provides that the provisions of the Criminal Code shall, except otherwise specified, be the law of the Federal Capital Territory and of the Southern States.

Purpose of the Criminal Law

Neither the constitution, the Penal Code, the Criminal Code nor  any other law expressly declares what the purpose of the Criminal law is.

Different theories of crime may arrive at different functions or purposes  of the Criminal law. Thus the purposes of law as may be formulated by the sociological theory may differ significantly from the purposes acceptable to biological, psychological, social-psychological or economic deterministic theories of crime.

 You may find relief in the American Law Institute’s Model Penal Code which informs us that the objectives of the Criminal Law includes the following:-

1. To forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests.
2. To subject to public control persons whose conduct indicates that they are disposed to commit crimes
3. To safeguard conduct that is without fault from condemnation as criminal.
4. To give fair warning of the nature of the conduct declared to be an offence.
5. To differentiate on reasonable grounds between serious and minor offences.

The Wolfenden Committee on Homosexual off3ences and Prostitution, 1957 (UK) expressed the view that the objective of the criminal law includes

Preservation of public order and decency

Protection of the citizen from what is offensive and injurious and

Provision of sufficient safeguards against the exploitation and corruption of special groups – the vulnerable groups

These stated objectives are by no means exhaustive, neither are they adequate. For instance, criminal law punishes strict liability crimes and these offences are without fault to enhance public safety and welfare.  The Federal Military government made retroactive and draconian decrees prescribing offences some of which are punishable with death for the purpose of inculcating discipline, transparency and  accountability among public officials.

Writers have said that there are four aims of the criminal law. These are:

Retribution

Deterrence (particular or general) Incapacitation

Rehabilitation and reformation

But punishment is a method by which criminal law seeks to achieve its larger objectives. The objectives of criminal should therefore be confused with objectives of a dispositional method, which may differ from one convict to anther or from one occasion to another.

Activity

Let us discuss certain issues relating to the purpose of the criminal law.

1. Can you really say that Criminal law prevents unjustified and inexcusable conduct that inflicts or threatens harm?
2. Is mere proscription of an act under pain of sanction or even a sentence sufficiently deterrent?

Self Assessment Exercise

What criteria, if any, has the Criminal law laid down to enable you, as a reasonable man, to identify which conduct is serious or which is minor?

Dynamism of the Criminal Law

The American legal philosopher and law teacher, Roscoe Pound informs us that

“Law is a species of social engineering whose function it is to maximize the fulfillment of the interests of the community and its members and to promote the smooth running of the machinery of society.

For example, the National Assembly reported the following decrees:

• Decree No 2 which had permitted the State to detain any person without Warrant
• Decree No.4 which sought to gag the press
• The Miscellaneous Decree which had capitalized new offences and decapitalised others. The offences involving hard drugs ceased to be capital crimes

Karibi Whyte, JSC (as he then was) said that the function of law is to harmonise the diverse social interests in a manner that will ensure greater social well-being with minimum friction. The learned justice  of the Supreme Court invited us to consider the interplay between the following:

1. Criminal Law in action, and
2. Criminal Law and law texts

In relation to this interplay, Karibi Whyte invited us to consider three additional issues.

1. Criminal law in the hand of the law-giver or as a means of shaping the society
2. Criminal law as a framework of development administration
3. Criminal law as a way of anticipating the failure of the society or defence of humans against intending technology

He concluded that the criminal law in actual operation is law behind law and offers an understanding of the law and its role than conceptual analysis.

Sociologists have warned against certain false assumptions e.g

• Consensus on interests
• That interests are known and that what is required is to tailor the criminal law to it.
• That law is natural , and operates outside the control of sectional interests.

Conclusion

Criminal law is an aspect of public law. It relates to conduct which the State considers with disapproval and which it seeks to control and /or eradicate. Criminal law involves the enforcement of particular forms of behaviour.

Summary

This is a general introduction to the Criminal law and its purpose. The purpose of the criminal law is one thing; whether it serves that purpose  is another. This challenges us to investigate the interplay between conceptual analysis and the reality of the criminal law in action. You  also have noted certain false assumptions associated with the criminal law as well as its neglected side – Futurology of the Criminal Law

Tutor-Marked Assignment

“The Criminal or Penal code is a perfect piece of legislation”

• Is your assessment, is this true or false
• If true, enumerate at least 5 areas when the criminal can be said to have served its purpose

(c )     If false, enumerate at least five areas of default and propose measures you consider as panacea.

References

Slapper; G : The English Legal System, 7^th Ed, Cavendish Publishing Ltd

FGN:   - The Criminal Code

-           The Penal Code

The Constitution of the Federal Republic of Nigeria