Principles of criminal Responsibility Cont’d Contents

Introduction Objectives Main Content

• Defence of husband and wife
• Exemptions from criminal responsibility
• Compulsion
• Bona ide claim of right
• Intoxication
• Insanity Conclusion Summary

Tutor Marked Assignment References.

Introduction.

The defences of accident, events occurring independently of exercise of the will as well as mistake, which you learned in the lat unit,  are effective response to a criminal charge. There are more of defences (general or partial) as you may have observed in chapter 5 of the Criminal Code. In this Unit you shall learn some of these other defences and their application

Objectives

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

5 When you have studied the unit, you should be able to:

Apply the defence of husband and wife under the criminal law Apply the defence of insanity

Apply the defence of Necessity Apply the defence of Self defence

Critique the defence of husband and wife Critique the case of R v stephens & Dudley Critique the defence of insanity.

Main Content

Husband and Wife

Criminal law does not discriminate between couples and other adults. However there may be full or partial defences to criminal responsibility available to husband and wife in certain cases: Examples are:

• A married woman is not criminally responsible as an accessory after the fact where she shields her husband who commits a felony provided such husband is not a deserter from the Armed Forces of Nigeria.
• Neither the husband nor the wife can be criminally liable for a crime of conspiracy between both, to the exclusion of any other
• Husband and wife are not criminally responsible for stealing each other’s property while living together. Either of them bears responsibility if they are living apart or where the property is taken with the intention of leaving the other.

• Where a husband or wife publishes a libel concerning the other,  no criminal responsibility is attached
• Couples are competent witnesses even in cases concerning the other. but neither is compellable other than in certain exceptional cases, where the law so provides
• A wife is excused from criminal responsibilities if she commits the crime in the presence and under the compulsion of the husband. This does not apply to offences of grievous bodily harm to the person of another or
  • offences punishable with death
  • offences committed in the presence of but not under the compulsion of the husband

Exemption from Criminal Responsibility

The certain categories of persons are exempted from criminal responsibility by reason of the public office they held. See some  examples :- Sovereign, Heads of foreign states

The maxim is that the Sovereign can do no wrong and therefore beyond the reach of the law Diplomatic Representatives,

Judicial Officers

Judges and magistrates are not criminally responsible for anything done or omitted to be done by them in the exercise of their judicial functions, although the act done is in excess of their judicial authority or although they are bound to do the act omitted to be done.

• Justification

An act which is not forbidden by law is justified and no criminal liability may be attached if done in the following circumstances:

1. in execution of the law. authorized execution carrying out the sentence by court
2. in obedience of the order of a competent Authority bound by law to obey, unless the order is manifestly unlawful

If the Police breaks into a house, uses force to arrest a felon on a written authority of a magistrate, neither the police nor the magistrate incurs any criminal liability

3. in the prevention of a forceable and atrocious crime , e.g permissible murder person cannot kill a burglar who only tries to escape and plead justification. See section 32 Criminal Code.
4. if done in battle against a foreign enemy

Excuse

An act is excusable and no criminal responsibility is attached when it is under the following circumstances:

5. in order to resist unlawful violence e.g. when the act is reasonably necessary in order to resist actual and lawful violence threatened to him or to another person in his presence
6. in self defence or in defence of near relations so long as the force used is in proportion to that threatened.
7. Reasonable force may be used in defence of property.

Compulsion or Coercion

The compulsion must be such that the person was in fear of death or grievous bodily harm if he did not comply and believing himself to be unable or otherwise or to escape the carrying of threat to execution. If however the crime which he commits is one which is punishable by  death or one which causes bodily harm to another, the compulsion is no excuse neither will he be excused if by his own free will, he enters into lawful  association  and  thereby  makes  himself  liable          to such compulsion.

Actual Physical Compulsion

Compulsion is a defence if it renders the act in question, one which cannot be imputed to the accused e.g. if A seizes the hand of B, compels him to stab C. No crime is committed by B.

Bona Fide Claim of Right

A person is not criminally responsible as for offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an of right and without intention to defraud

Example: if a father takes away his illegitimate  child from its mother  who is reluctant to part with the child, he merely exercises his bona fide claim of right. He has a defence to child stealing. Cc. 23 & 371.

Intoxication

If KJ allows himself to be intoxicated of his own free will, he is responsible for his acts and its consequences.

Voluntary Intoxication is never an excuse in a crime. But if it is as to prevent a person from knowing what he was doing or that what he was doing was wrong; offender will be treated in the same way as a man, who is insane or under delusion as the case may be. Intoxication includes a state produced by drinking, drugs, narcotics etc. The cases where intoxication is raised as a defence are dealt with in the same way as insane. To avail a defence, therefore, the accused must show that he was so drunk at the time of the criminal act as to be incapable of forming the special intent in the crime.

Intoxication is a defence if:

1. intoxication is caused by the negligent act of another
2. the person   charged    was   by    reasons    if    intoxication    insane temporarily or otherwise at the time of such act or omission

In Ahmed v State 1999)

Ogundare, JSC said:

Intoxication per se is not a defence. To be a defence, it must be shown by the accused that the intoxication is not self induced or that the extent of it rendered him at the time of the act or omission insane temporarily or otherwise, that is that he did not know2 what he was doing.

In Imo v State (1991), per Nnaemeka, JSC observed:

For the defence of intoxication to be available to the accused person, as a defence, he must prove on a preponderance of evidence, that at the time of the act or omission, that is called in question, he was in such a state that he did not know that such an act or omission was wrong or did not know what he was doing. Furthermore, he has to prove either that the state of intoxication was not self induced or was caused without his consent by the malicious or neglected act of another person (s. 29 (2) (a) or that  the extent of intoxication was so high that he was insane, temporarily or otherwise at the time of the act or omission (S, 29(2) (b)).

Also remember two principles of law relating to this defence:

4. The presumption of law that a person intends the natural consequences of his act
5. The presumption of law that every person is sane. Both presumption are rebuttable

Evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion does not rebut the presumption that a man intends the natural consequence of his act: See R v Owarey and Egbe Nkanu v Stae (1980)

The burden of proving intoxication is on the accused person. The standard of proof is preponderance of evidence

Insanity

You have learned that sections 24 and 25 of the Criminal Code provide general defences to criminal responsibility. Thus no person can be held liable for acts or omissions which occur independently of the exercise of his will or by accident. Insanity prevents the exercise of ones will and therefore a general defence in criminal law.

Every person is presumed to be sane, until the contrary is proved. A person is exempted from criminal responsibility if it is proved that his insanity is such that:

1. he did not understand what he was doing 
2. he did not know that he ought not to do the act or make the omission
3. he was incapable of controlling his action

In this context insanity means either

a state of mental disease

or

a state of natural mental infirmity

 Mental disease

Means mental abnormalities; defect of reasoning from disease of the  mind

Natural mental infirmity

Means a defect in mental power neither produced by his own default nor the result of disease of the mind.

 Mental defectiveness

Means a condition of arrested or incomplete development existing before the age of 18 years, whether arising from inherent causes or induced by disease or injury.

 M’Naghten Rules (1843)

The House of Lords (UK) formulated the M’Naghten rules to guide the Judges in determining the degree of mental defect which amounts to insanity. These rules are:

3. That every one is presumed sane until the contrary is proved
4. That it is a defence for the accused to show that he was laboring under a defect of reason, due to disease of the mind as either
   • Not to know the nature and quality of his act, or
   • If he did know this, not to know that he was doing wrong.
5. That if a man commits a criminal act under an insane delusion, he is under the same degree of responsibility as he would have been on the facts as he imagined them to be.

Proof

The burden of proof of insanity is on the accused. The requisite standard of proof has been expressed as: “ most probable” or ‘not higher than that which rests on the plaintiff or defendant in a civil proceeding’

Insanity as a defence is to be distinguished from insanity as a ground of unfitness to stand trial. A person committed for trial, who is either certified insane or is found an arraignment to be under a disability and unfit to plead, is ordered to be detained in an hospital

Insane delusion

Where a person commits a crime under insane delusion, he is under the same degree of responsibility as he would have been on the facts as he imagined them to be. If a person under insane delusion thinks that a child is a dog and hits him with a stick, the court treats it as if the child was a dog ( akin to a defence of mistake of fact).

To succeed, the defence must prove insanity at the time of the crime. That is to say he has to prove as follows:

That at the time he did the criminal act, he was labouring under such an insane delusion on some specific matter or matters

That if the matter or matters of his false belief were true, his act or omission would have been justified.

Irresistible impulse

This refers to insane automatism or incapacity to one’s action due to;

• Natural mental infirmity, or
• Mental disease

Read the important case of R v Omoni (1949) 12 WACA 511

Conclusion

Every person is presumed to be sane until the contrary is proved. Insanity is a general defence but it is hardly pleaded in any other  criminal charge than that of murder. The reason is obvious. On a successful plea of insanity, the accused person could be detained for more than the maximum sentence for other offences. Intoxication is a partial defence under the criminal code. It is not a valid defence at all under the sharia’h. Rather it is as crime per se.

Summary

You have learned a number of defences in this unit. Nothing could be inculpatory that is justifiable or excusable. Acts of Judicial Officers qua Judicial Office constitute a partial defence only. So also is the defence of husband and wife. Intoxication may be through drinks or drugs. Intoxication is involuntary if it administer by the malicious or negligent act of another without consent. If the accused person had a preconceived intention to commit a crime and voluntarily got himself drunk, Lord Denning opined that “the wickedness of his mind before he got drunk is enough to condemn him´ See the case of Attorney General for N. Ireland v Gallagher. If intoxication led to a ‘state of mental disease or natural mental infirmity’ the defence may graduate to insanity. See DPP v Beard and R v Owarey. You also learned about the complex defence of insanity. The ingredients in the Mc Naghten are not in all fours with Section 28 of the Criminal code, whch introduced technical terms such as ‘Irresistible impulse,’ ‘Insane delusion’, ‘Mental defective’ ‘Mental disease’ and ‘Natural mental infirmity’ These terms have been explained in the discourse.

Tutor Marked Assignment.

1. In relation to the defence of intoxication, critique the following cases:

Attorney General for N. Ireland v Gallagher DPP v Beard and

R v Owarey.

2. Explain the following terms Irresistible impulse,’ ‘Insane delusion’,

‘Mental defective’ ‘Mental disease’ and

‘Natural mental infirmity’

References

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

FGN:   - The Criminal Code

-           The Penal Code

The Constitution of the Federal Republic of Nigeria.