ELEMENTS OF AN OFFENCE

In considering criminal liability we are considered with the elements that must be proved in order to secure the conviction of a criminal offender. In the early days of criminal law, what entailed was a system of strict liability which is still applied in some jurisdictions. In those days, crimes were not only considered as an offence against the state but also as an offence against God.

Under this system, there were three features:

• Strict accountability for the active conduct of a man.
• Omission, not doing anything at all, could not constitute a crime.
• There was severity of punishment and the intention of the offender was not considered as material proof.

The rationale for this principle is that a man intends the result of his action and should therefore be held accountable for his actions. To intend in law means to have in mind a fixed purpose to reach a desired objective.

Till the 15th century, the provision of the law was that the intention of a man could not be probed. This was based on the dictum of Bryan CJ: “even the devil himself knows not the heart of man”.

Subsequently, some petitions were made for the courts to temper justice with mercy. This made the common law courts to come up with the common law maxim: “actus non facit reum nisi men sit rea” which means that “an act does not render a person legally guilty until his heart is also blameworthy”.

From the above maxim, two principles evolved: actus reus(outward conduct) and mens rea(state of mind of the accused). These principles are fundamental requirements that have to be proved before they can be applied.

It is however noteworthy that none of these two principles were mentioned in the Criminal Code or Penal Code. This has further supported the views of some scholars who are of the opinion that the maxims are inconsequential.

In the case of R vs Miller (1983) AC, the presiding Justice stated:

“…My Lords it would I think, be conducive to clarity of analysis of the ingredients of a crime that is created by statute, as are the greater majority of criminal offences today, if we are to avoid bad latin and instead to think and speak about the conduct of an accused and his state of mind at the time of the conduct, instead of speaking of actus reus and mens rea…”

Despite the above reservations, the terms are still widely in use in Nigeria. This view is supported by numerous scholars. Clarkson and Keating specifically submitted:

“… We shall judge crimes in terms of actus reus and mens rea, we do this for two major reasons; that as long as one appreciates that these terms are no more than tools. They are tools that can usefully aid the clear exposition of the rules of criminal law.

Further, they have been so much part of the vocabulary of criminal law for hundreds of years and are still are. Many of the cases will be highly confusing if not totally meaningless without some understanding of the meaning of these terms…”

Consequently, it is safer to say that the above view is more acceptable. The use of the terms do not pose any risk to our understanding of criminal law, rather they aid our understanding of criminal law.

Actus Reus ( The physical element of an offence)

Actus reus may consist of an act, omission, a passive state of affairs or an initial act and/or some other factor. The actus reus of an offence is the external manifestation of human conduct that results in a forbidden act. It is simply the whole definition of a crime excluding the mental element.

Categories Of Actus Reus

The following are various categories under which acts are done to constitute the actus reus of an offence:

1. Action: The intention of a man, no matter how wicked cannot make him blameworthy until it is put into action. This is due to the fact that it is only God that can ascertain the true intention of a man’s heart.

However, it becomes a crime when he puts it into action, no matter how minute the action is. For example, a small movement can constitute the actus reus of assault, a slight movement of property can constitute the actus reus of theft and if A hit B on the face, the actus reus is the act of hitting B. 

Furthermore, Actus Reus may be analysed through the below principles:

1. The Human Conduct:  As stated above ...a small movement can constitute the actus reus of assault, a slight movement of property can constitute the actus reus of theft and if A hit B on the face, the actus reus is the act of hitting B. Thus, the human conduct is the act which is exercised through the contraction of muscles in executing the unjustifiable.

2. The Result of the Human Conduct (Causation): It is not enough to have another person's dignity being violated without consent inclusive of the exceptions provided for by our laws in effect, there must be proof that the human conduct which is energised has caused an undesired effect. For example: A shoots B with an activated gun and B dies. Hence, death as used in the above example is the result of the initial conduct of A which is the act of shooting.

3. The Prohibited Act: The last thing to be analysed is whether the act of an accused is itself unlawful. Hence, an act may result to an undesired effect to a victim an yet not be a crime - a prohibited act. See for instance, section 53 of the Penal Code where it is clearly provided for that an act is not a offence, where a person being above the age of eighteen years old gives consent with knowledge to the act done or to be done expressly or impliedly, provided death is not the effect of such act.

2. Omission: An omission concerns itself with a failure to do a particular act when you are bound by law to do that act. The law does not enjoin you to be charitable and good but it prevents you from doing harm to others. An omission to do an act would not be a crime unless the doing of such act is a duty imposed by law.

Thus, if A refuses to give food to B and thus voluntarily causes B’s death, A would only be liable for murder if B is an infant dependent on him. If B is a beggar that has no claim on A except on the basis of humanity, A would escape liability.

In the case of Akanni & Ors vs State (1959) WRNLR the presiding justice stated:

“…the members of the crowd who stood by and watched the house in which they knew an old woman was locked in and being burnt and did nothing behaved disgracefully but that does not bring them within the provision of the law dealing with principal offenders as to be regarded as participants in the act of murder…”

There are four categories of omission under the law that would amount to a crime:

• Where there is a statutory duty to act: For example, s.136 of the Penal Code makes it a crime to refuse to appear to a summons or notice requiring a person to appear at a particular place during a particular time.

• Where there is a contractual duty to act and you refuse to act leading to the death or injury of others. For example, s.305A(1) of the Criminal Code provides that if a person whose contractual duty involves supplying electricity or water to a particular community maliciously breaks such contact,  and thus deprives the community of water or electricity, he has committed an offence.
• Where there is a special relationship: According to s.300 Criminal Code if a person neglects to provide for another person who is dependent on him due to reason of age, sickness, unsoundness of mind, detention or any other reason, he would be responsible for any harm that results to the person’s life or health.
• A person who voluntarily undertakes to act and refuses to act leading to danger to the health or life of a person; 305 Criminal Code if a person undertakes to do an act, the omission of which could be harmful to the life or health of others, the omission to do that act would result into an offence.

3. Passive State of Affairs: Actus reus may in some situations result from a state of affairs. Thus, an offence can be so without one seeing the physical act. By the provisions of S.405 & 406 of the Penal Code, it is an offence punishable with 6 months imprisonment for a person to be idle.

In the case of R vs Parsonneur, a French woman who illegally entered the UK was ordered to leave. Instead of complying, she went to Ireland where she was arrested and subsequently brought to London to be convicted of vagrancy, the equivalent of being an idle person.

4. Initial Act and/or Other Factors: Sometimes, initial acts are not sufficient to prove actus reus of an offence, there have to be other acts to complement it. A good example is in the offence of receiving stolen property, for the prosecution to establish this it has to first prove that the goods were stolen in the first place.

Another example is in the case of rape where in addition to proving penetration, there should be proof of absence of consent; S.282 Penal Code.

Mens Rea (The mental element of an offence)

Mens rea refers to the mental element required to be proved by the definition of the crime. By the definition of the crime, I am referring to the statutory provision that describes what the offence is. If the prosecution cannot prove this element, then their case fails. Also, mens rea differs fromcrime to crime and is contained in the definition of the crime.

The words that are commonly used to represent mens rea in the statutory definition of a crime include:

1. Intention.
2. Recklessness
3. Knowledge
4. Negligence
5. Rashness
6. Voluntariness
7. Dishonesty
8. Fraudulent 

1. Intention: In order to determine intention, it is viewed from three perspectives:

• A consequence is intended if it is the aim and objective of the accused
• A consequence is intended if it is the aim of the accused and is foreseen as a virtual, practical or moral certainty.
• A consequence is intended when it is foreseen as as a probable result of the action of the accused.

In the case of Hyam vs DPP (1975) AC, the accused poured petrol into the letter box of her lover’s mistress’ house and then ignited it, knowing fully well that there were persons sleeping inside. This resulted in the death of the persons inside.

In court, she contended that she had no intention of causing death but had foreseen grievous bodily harm as a highly probable result of her action. The court rejected her argument for manslaughter and convicted her for murder.

Thus, in determining intent, there has to be proof that the consequence was a probable result of the act and was foreseen by the accused.

In the case of Ubani vs The State (2003) vol 18 NWLR pt 851, the accused and appellant, armed with machetes and guns, beat the  deceased till he fell and discharged excreta. As a consequence of this, he died.

On appeal the Supreme Court held that death or grievous bodily harm done to the deceased was, to the knowledge of the accused, a probable consequence of his action. Thus, the accused was held guilty.

See also: Idowu vs State (2000) vol 12 NWLR, Idiok vs The State (2006) vol 12 NWLR pt 913.

2. Recklessness: Recklessness occurs in a situation in which the accused knew that there was a likelihood of his action resulting into a crime but he still went ahead with the action. For example,by S. 59 of the Criminal Code if a statement, rumour, or report likely to cause public alarm is published, and there is a likelihood that such information is false, and it turns out to be false, the publisher would be penalised.

3. Knowledge: This is a state of mind in relation to the circumstances in which the act or omission occurred. In this kind of situation the words ‘knowingly’ or ‘consciously’ is used to prove a guilty mind. Knowledge can constructive, actual or willful blindness.

For example, S.319A of the Penal Code provides that whoever knowingly possesses stolen property or property reasonably suspected to be stolen and does not give a satisfactory account as to how it came into his possession shall be punished with six months imprisonment, fine or both.

4. Rashness: This is a type of mens rea that is related to gross negligence or recklessness and relates to acts done without premeditation.

5. Negligence: This is a situation in which the failure to perform a duty imposed on the accused results into a crime. For example, according to the provision of S. 138 of the Criminal Code,if a person who is in charge of confining a prisoner, negligently allows him to escape, he is guilty of a misdemeanor punishable with two years.

6. Voluntarily: According to the provision of S. 27 of the Penal Code, an effect is voluntarily caused if the perpetrator intended that his action would cause it, or if at the time of doing such act, there is a reasonable likelihood of such act being caused.

For example, if A sets fire to an inhabited house for robbery and causes the death of the occupants, he would be said to have voluntarily caused their deaths. This is regardless of the fact that he didn’t want to cause their death; if he knew it was likely to cause their deaths, it would be regarded as voluntary.

7. Dishonestly: This is used in a situation in which the an act is not done in good faith. Thus, S. 286(1) of the Penal Code provides that whoever dishonestly takes a movable property out of the owner’s possession without his consent, is liable for committing theft.

8. Fraudulently: This can be used interchangeable with dishonestly. For example in S.320 Penal Code, it is stated that anyone who fraudulently or dishonestly induces a person to part with his property is committing the offence of cheating.

Click to Save or and to Print this Article for free