Principles of criminal responsibility Cont’d Contents

Objectives

Main Contents

• Immature Age
• Provocation
• Self defence
• Defence of another
• Defence of property Conclusion

Summary References.

Introduction

Certain fundamental principles of law cannot be sufficiently stressed. One of such is that the whole account which an accused person gives of the transaction must be taken and considered as a whole. After you have sifted out the mens rea, and the actus reus and have established the causal link between both of them, you still have to test the statement of the      defence.     This        means      that  you    should        consider  not     only       the unfavourable part of the defence but also the favourable part. Very importantly, you should consider all the defences open to him in the same statement, For this reason any amount of time you devote to understanding the principles of criminal responsibility is worth a while. In this unit you will still learn more defences open to persons charged with committing a crime.

Objectives

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

1. Recognise in any transaction the possible defence or defences open to the suspect
2. Explain the elements of the defence or each of the defences
3. Demonstrate an understanding of defences of:
   1. Immature age
   2. Provocation
   3. Necessity
   4. Self-defence
4. Evaluate the principles of liability to punishment as to an offence
5. Main Content

Defence of Immaturity,( non-age or , infancy)

it is an irrebuttable presumption of law that a child under seven years in age has no mens rea. He/she is exempted from criminal responsibility.

A child of 7 years and under 12 years of age is presumed to be incapable of crime unless a mischievous discretion is clearly proved.

A male child under 12 years is presumed to be incapable of any offence involving sexual intercourse by him.

Provocation

The term “provocation” used with reference to an offence of which an assault is an element, includes, except as hereinafter stated, any wrongful act, or insult of such a nature as to be likely when done to an ordinary person or in the presence of an ordinary person to another person who is under the immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal, relation, or in the relation  of master or servant, to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered, (section 283 CC

Defence of provocation

A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault if he is in fact deprived by the provocation of the power of self control, and acts upon it on the sudden and before there is time for the passion to cool; provided that the force used is not disproportionate to the provocation and is not intended and is not such as is likely to cause death or grievous harm, (section  284, CC)

Killing on provocation

When a person who unlawfully kills another in circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death is the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only, (section 318,CC).

The provisions of the criminal code as stated above did not define the term “provocation” They merely attempted to explain it.

Fakayode (1977) stated that the defence of provocation consists of such matters of fact as to tend to show that:

• the victim did a wrongful or insult
• (i)to the accused, or

(ii)to somebody related to or under the care of the accused and in the presence of the accused

© capable of depriving the ordinary man of his power of self control (d)Accused was actually deprived of his power of self control

• accused acted on the sudden and in the heat of passion without cooling time
• (i) no unreasonable or excessive force was used, or

(ii) the means of retaliation was appropriate.

Examples of words or acts to which the defence of provocation has succeeded are as follows:

Wife telling her illiterate and primitive husband that hwe was impotent and for that reason, he has been committing acts of adultery with other men, R v Adekanmi (1944).

Wife, taunting her husband with his impotence and spitting on his face, R v Igiri (1948).

Deceased stabbing the appellant, Mensah v King (1945).

Wife saying her illiterate husband and a dog were the same, Ruma  v Daura N A (1960)

Wife calling her husband a slave, Edache v The Queen, (1962)

Deceased suddenly gripping the throat of th3e appellantduring a dispute, R v Josiah Onyeamaizu,(1959)(1959)(1959).

Examples of cases where courts have rejected the defence of provocation: Confession of adultery, Queen v Udo Akpakpan (1956)

Refusal by wife to prepare food for her husband, Queen v Eseno (1960)

Deceased brother taunting the Appellant, and saying he provided money tom enable appellant to marry, Nungu v Queen (1953)

The defence of provocation can succeed only if the effect of abuse or insult would cause a reasonable man to lose his self-control and also that the accused did actually lose his self-control consequent upon the provocation

In criminal law, words alone may not amount to constitute provocation. But the court has held that that in some particular cases they can. Much would depend on the words used and what they mean, having regard to the custom or background of the person son whom the words are used

Defence of Provocation in Murder Cases

In relation to murder, Devlin, J described provocation as some act of series of acts, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for  the moment not master of his mind. See R v Duffy (1949)

The important element of what constitutes provocation is that the act leading to death must be shown to have been done “in the heat of passion caused by sudden provocation and before there is time for his passion to cool.”

In Bedder v DPP (1954), The accused was sexually impotent. He tried unsuccessfully to have intercourse with a prostitute. She thereafter jeered at him, and also kicked him causing him to lose self-control, whereupon, he stabbed her twice and killed her.

On a charge of murder, the accused pleaded provocation and the House of Lords upheld the direction that the proper test was the effect which  the conduct of the prostitute would have on an ordinary person, not on a sexually impotent person.

The mode of resentment must bear a reasonable proportion to the provocation offered –a fist blow for a fist blow, not a savage attack with a lethal weapon in return for a mere vituperative abuse

Where the defence of provocation is successfully established, the offence of murder is reduced to manslaughter.

Necessity

Necessity entails a choice of evil or duress of circumstances. A defence of necessity avails a person who is faced with an emergency for which he is not responsible and commits harm that is less severe than the harm that would have occurred but for his action. It enables the accused person to escape liability for intentional interference with th security of another’s person or property on the ground that the wrong complained of waS necessary to prevent greater injury to the public or to another or the accused himself or their property. It6 has a strong affinity with self defence

In R v Dudley & Stephen (1884), two seamen were shipwrecked and wer3e without food for 20 days. Faced with imminent death and out of the instinct to survive, the seamen killed and ate up the cabin boy who was with them in the boat, They were rescued four days later and brought to England where they were charged with the murder of the cabin boy. Both of them raised the defence of necessity

Lord Coleridge’s observation is instructive:

Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. In the present case, the weakest, the younges5t, the most unresisting life was chosen. Was it more necessary to kill him than one of the grown men? The answer be No

Both were convicted for murder but the death penalty imposed on them was commuted to six months imprisonment.

The decision in Dudley and Stephens is important for several reasons

It preserved the dichotomy between law and morality and between intention and motive.

It shows that criminal law is no respecter of one family or social connection more than another

It confirms that no life is more worthy of protection than others.

Dudley and Stephens gave inadequate consideration, if at all, to the “Lesser of two evils” principle. It ‘set up standards we cannot reach ourselves and laid down rules which we could not ourselves satisfy’

Self defence against unprovoked assault

When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault: provided that the force used is not intended and is not such as is likely to cause death or grievous harm.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm and the person using force by way of defence believes on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as  is necessary for defence, even though such force may cause death or grievous harm. (section 286, CC)

The victim of an unlawful and unprovoked attack is entitled to use such force as is reasonably necessary to make effectual defence against such attack. However, he is not entitled to use such force as is intended or likely to cause death or grievous harm unless the original attack was such as to cause reasonable apprehension of such harm, and the prisoner believed on reasonable grounds that he could not, otherwise preserve himself from death or grievous harm.

The test of reasonableness is objective and actof self defence is to be distinguished from revenge. As Lord Morris has observed:

It may in some cases be only sensible an d clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of situation………………

…. If there has been attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If the jury thought that in a moment of of unexpected anguish, a person attacked had only what is honestly and instinctively thought was necessary, that would be most potent evidence that only reaso0nabne defensive action had been taken. A jury will be told that the defence of self defence, where the evidence makes its raising possible, will fail only if the prosecution show beyond doubt what the accused did was not by way of self defence

Self defence against a provoked assault.

When a person has unlawfully assaults another or has provoked an assault from another and that other assaults him with such violence as to cause reasonable apprehension of death or grievous harm ans to induce him to believe, on reasonable grounds that it is necessary for hiss preservation from death or grievous harm or use of force in self defence,  it is not criminally responsible for using any such force as is r3easonably for such preservation, although such force may cause death or grievous harm.

This defence is not open to the accused person in the following circumstance:

1. Where the accused first assaulted the victim with intent to cause death or grievous harm, or
2. Where the accused endeavoured to cause death or grievous harm to the victim before the necessity of preserving himself arose, and
3. Where, in either case, the accused has not first declined from further conflict or retreated as far as was practicable

Defence of another person

In any case in which it is lawful foe any person to use force in any degree for the purpose of defending himself against an assault, it is lawful for any other person acting on good faith on his aid to use a like degree of force for the purpose of defending such first-mentioned person

In Ahmed v State (1999), the case for the appellant was that three people waylaid and robbed him in the process of N3000.00 and a wrist watch and he stabbed one of them. There was no evidence that the deceased was armed when he struggled with the appellant.

The case of the prosecution was that the appellant came to the deceased house late in the night, knocked at a woman’s door and when the deceased came out of his room, the appellant stabbed him with a dagger. In his statement to the Police, the appellant said ‘the deceased abused  me and i stabbed him’

The question for determination on appeal was whether the defences of self defence or defence of property, provocation and intoxication do avail the appellant

The opinion of the Supreme Court was as follows:

Where an accused, armed with a lethal weapon is attacked by another, who is equally armed with a lethal weapon and during the encounter, one kills the other, the survivor has a right to put up a defence of self defence

However, if the person attacked exceeds that right and kills the offender when in fact it was unnecessary to cause grievous harm to the attacker, the offence committed is manslaughter if the intention of the accused was to do no more harm than he believed necessary in the exercise of his right. Even though there was a reckless criminality in the act of the accused, he can still succeed in pleading the right to self self defence so long as he did not kill with a vengeful motive in the purported exercise of his right.

Defence of self defence is not at large.m It is mandatory that who pleads self defence must establish that the nature of attack by the deceased was such as to cause a reasonable apprehension of death or grievous bodily harm

The test of reasonableness of defendant’s apprehension of death or grievous harm is objective. Defence is not open to an abnormally nervous or excitable person. It is predicated on the reasonableness of the apprehension of death or grievous harm

Defendant must further show that he could not otherwise have preserved himself from death or grievous harm that loomed from the deceased’s attack.

The Supreme Court was unable to visualize by what stretch of imagination a defence of self defence can avail the appellant in the circumstance of this case. Satanic abuse (e.g. that the defendant is a wizard) will not avail.

Defence of property.

A person who is in peaceable possession of any property to use such force as is reasonably necessary in order to defend the property, provided that he does not do harm to such other person.

In Ahmed v State (1999) Achike, JSC said:

Where a person puts up a defence of his property, the law allows him the use of reasonable force in the defence of the said property, provided o harm is inflicted in the person against whom the property is being defended.

The force employed as well as the a nature of the object (e.g. weapon) used must not be out of proportion with the one the appellant employed in defence of the property

Conclusion

Under our law, it is an irrebuttable presumption of law that a child under the age of seven is incapable of committing a crime. The presumption that one who is seven but less than twelve years of  age cannot commit crimes is rebuttable by evidence of mischievous discretion. Britain has increased the ages of responsibility to ten and fourteen years respectively. It is trite that an accused person can properly plead self defence where he admits that he did the act which, for instance, caused the death of the deceased but was justified in doing so in order to protect his own life and would have been killed or was in such fear when he committed the act.

Summary

You have learned more defences to criminal liability. Particularly in this unit you learned about the defences of immature age, provocation, necessity and self defence. The decisions in R v Dudley & Stephen (1884) and Re A (Children) Conjoined Twins; surgical Separation (2000) are not to be seen as conflicting. The latter is not a case of evaluating the relative worth of two human lives but of undertaking surgery without which neither of the twins’ lives will have the bodily integrity or wholeness which is its due. The case of conjoined twins is to be regarded as an exceptional case with its own unique problems. We shall anchor the discourse of defences to criminal liability at this point and turn to other aspects of criminal responsibility, to wit: parties to an offence, but before doing so. Let talk briefly of Classification of crime.

Tutor marked Assignment.

1. How true is it that Re A (children) Conjoined Twins has over ruled R v Dudley and Stephen
2. The defence of Insanity is a replication of the common law as expressed in Mc Naghten’s case. Discuss
3. What do you understand by the defence of Provocation

Referencs

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.