CRIMINAL LAW

INTRODUCTION

At first glance, you may be wondering why there is a segment on criminal law in a course, which has as its primary focus the study of civil law, especially in a business context. The reasons for including criminal law are various but it was felt that some understanding of the criminal justice system is useful for citizens in general also, there is a clear relationship between business and crime. The increase of ‘white collar’ and computer crime is one fact of this.

Another reason for this study is the fact that there is considerable overlap between the criminal and civil law system. Two examples of this. If a person assaults another then they will be dealt with in the criminal courts and may be sued in a civil court for damage for the injuries suffered. In company law there are many examples where a director who contravenes a provision of company law may be liable for a fine or imprisonment and may also be liable to compensate a person who has suffered loss as a result of the actions of the director.
To gain an understanding of criminal law, it is useful to be aware of the essential differences between criminal law and civil law. Some of these differences will be well known to you but they bear repeating.

Criminal law involves an action between the State and the citizen usually called the accused or the defendant, whereas the civil action has one citizen suing another. The police usually prosecute criminal offences in the Magistrate Court whereas offences in the higher courts are usually prosecuted on behalf of the state by Attorney General of the Federation or Solicitor General at the state.

The title of civil cases are the names of one party against another whereas criminal cases in the higher courts are titled the State or R.v(/)…in the Magistrate, it is titled Police or Commissioner of Police v (?); Examples: The State v. Obi R. v. Adeleke; Police v. Haruna; Commissioner of Police v. Phillips etc.
The function of criminal law is to punish the wrongdoer while the civil case compensates the individual who has been wronged. There are substantial procedural differences between criminal law and civil law. One example of this is the way an action is commenced. In the criminal case the police proceed by way of charge, summons or by arrest while the civil action begins with a claim or writ.

Another important procedural difference centres on the standard of proof which for a criminal trial is proof beyond reasonable doubt while in the civil courts, it is the balance of probabilities. Given the different functions of criminal law and civil law, the outcomes are different. In the criminal sphere the defendant or accused, if found guilty, is fined or imprisoned (there are other forms of punishment) while in he civil case the successful plaintiff is usually awarded damages or granted an injunction to stop the conduct complained of. There is no attempt to punish the defendant. Quare: example damage.

Definition of Criminal Law

Criminal conduct is defined as the ‘acts and omissions as are prohibited under appropriate penal provisions by authority of the State’. (Lord Atkin in Proprietary Articles Trade Association v Attorney-General Canada [1931] AC 310, 324). Under this broad definition a vast range of offences are included which might run from murder to failure to wear a seat belt. One might ask whether the latter is a ‘crime’ in the accepted sense of that word but it is treated as such in this course because it is an omission which is prohibited by the law. Statutory crime or offence is an act or omission which renders the person doing the act or making the omission liable to punishment under a written law: Criminal Code.
Generally speaking, there is a correlation between crime and moral, but this is not necessarily so. We all recognize that murder breaches our moral code but what about the failure to wear a seat belt? Conversely, selfishness or adultery may be regarded as immoral but they do not breach the Criminal Code. The lack of absolute connection with our moral code means that it is difficult to predict in advance what is a crime or as Lord Atkin (in the Proprietary Articles case) said it cannot be ‘discerned by intuition’. This is why the simple question is whether the conduct in question is prohibited by the law with penal consequences.

Traits of Criminal Law

Gillies, Business Law 8th edition page 110, points to some traits of criminal law:

…its public implication (the public has an interest in State intervention; the matter is too important for the activation of the legal machinery to be left to the individual); it has a victim (there are exception for the generally regulatory offence); and that the extent of the injury inflicted by the wrong is such as to demand punishment….
Both the criminal code and the Companies and Allied Matters Act have created corporate crimes.

Aims of Criminal Law While still on the nature of criminal law, it is as well to bear in mind the four aims of the criminal law as they effect those convicted of a crime.

Retribution; Deterrent effect; Restraint or incapacitation of the offender; and Rehabilitation Reformation

Source of Criminal Law

In Nigeria, the source of the criminal law are Statutes. Common law crimes have been enacted into statutory from and Nigeria criminal and Penal Codes have displaced the common law.
Criminal Liability
Elements of a Crime

A crime is established if: the accused has carried out certain conduct (known as the actus reus); which has an effect which the criminal law prohibits; and where the act in question is done with a guilty mind (known as the mens rea).

A murder case illustrates the three requirements. The accused must have done certain acts such as shooting the victim (the actus reus) which leads to his death (the prohibited effect) and this must be done with intention to kill, the guilty mind (mens rea).

Each of these elements must be present before the crime is committed. It would not be a crime, for example, if the death in question was caused by a soldier in battle during a declared war or if the accused shot the victim by mistake. Nor is it a crime if all the accused person does is admit that they would like to murder another but they take no steps to carry out that wish. In this case you may have the guilty mind buy no actus reus.

The terms ‘mens rea’ and ‘actus reus’ are derived from the common law and are not strictly appropriate to Nigeria which has a Criminal Code and a Penal Code. Nevertheless the terms are retained here because of their widespread use in texts on criminal law and because the elements they represent are found in Code provisions. We shall now look at the terms in some more detail.

(a) Actus Reus

The actus reus is often referred to as the collective external ingredients of the crime or the physical conduct that is prohibited. Typically, the actus reus involves positive acts such as stealing another’s property. However, it can involve an omission, where there is a duty to act. An example of this type of crime is the failure of parents to adequately feed a young child.
There are two main elements of the actus reus: the conduct must be voluntary and the prohibited conduct must cause the result in question.

(b)Conduct Must Be Voluntary

The conduct of the defendant must be voluntary in the sense that it is controlled by the mind or will. A pure reflex action, something done while sleep walking, concussed, or in some cases of extreme intoxication, the defendant’s will may not be voluntary. Suppose, a person was charged with dangerous driving causing death arising from a car accident which killed a passenger. The circumstances were that the driver fell asleep at the wheel and the car left the road and hit a tree. Since the defendant was asleep his actions were not conscious or voluntary and he would not criminally be responsible. You should not assume from this case that a defendant in such a situation will always escape criminal liability as there could be other circumstances where the offence of culpable driving may be committed or where other offences could apply.

(c) Causation

Some crimes are what are known as ‘result crimes’ which means that the prohibited conduct brings about a certain result, such as the death of another person. In this case the conduct of the accused must bring about or cause the result in question. The conduct need not be the direct or sole cause of the result but it must be ‘an operating and substantial cause’. This is known as the concept of causation and it arises also in the law of negligence where substantially the same law applies.
In a simple case where a person shoots another then the case of death is directly attributable to the actions of the accused. However, if it could be established that the victim was already dead before the bullet left the gun, the crime of murder is not committed. Similarly, if the victim was wounded and taken to hospital but died of an illness that resulted from his poor treatment in hospital then the crime of murder may not be made out. In this case there is an intervening act, namely, the negligence of the hospital, which causes the death. The presence of an intervening act is the most common reason the prosecution in these types of cases fails to show the required level of causation.

Issues of causation do not arise in the other broad type of crime known as ‘conduct’ crimes where the conduct itself constitutes the crime. An example is the possession of an unlicensed firearm. No ‘result’ is required here, simply the possession of the firearm which is not licensed to the defendant is all the prosecution has to prove.

In some of the examples given above, the state may fail to prove an element of the offence and the defendant is acquitted. You should not take it from these examples that the defendant escapes punishment entirely. In the instance of the person dying in hospital as a result of an illness contracted there, murder may not be made out but a lesser charge of an assault occasioning grievous bodily harm could, or perhaps attempted murder.

(d)Mens Rea

To complete a crime the actus reus must be accompanied by a guilty mind. It is known as the mental element of the crime. To have the guilty mind generally, two matters usually arise for consideration: that the defendant had the requisite knowledge of the circumstances (eg that the goods in question did not belong to him) and secondly that she or he intended the result of his/her conduct (ie to steal the good or to kill the victim). It should be said, however, that intention need not always be present, it will vary with the criminal offence. This is why it is safer and more accurate to say that the mens rea is the guilty mind however defined in the offence rather than that the accused has the requisite intention or some other state of mind. This is especially so under the Criminal Code and the Penal Code.

In many cases, the crime will be committed even if the defendant does not intend the consequences of his actions but is reckless in that regard or in some cases if they are negligent. While the term ‘reckless’ is not used directly in the Criminal or Penal Code, the notion can be found in some provisions such as those that utilize the term ‘wilful’. Negligence finds its way into the Code by the imposition of a duty, such as the duty of a parent to provide the necessities of life to a child. Failure to do so can lead to the conviction of an offence of murder or manslaughter. In other words the parent may not have intended to kill the child but they are nevertheless guilty because of their negligent failure to sustain it.

Strict Liability

In some cases, a statutory offence may be introduced where there is no need for the state to prove mens rea at all. In this type of case, they only need to establish the actus reus. Whether this is the case is a matter of statutory interpretation in each instance. Since the state need only prove the physical element, there is no need to establish that the defendant acted intentionally, recklessly or negligently.

The presumption at law is that all offences have a mens rea component. Why has this changed? Four reasons might be advanced:

1.  Generally, strict liability offences are not serious and so lack of mens rea is not seen as a major reduction of civil right. Invariably strict liability offences are tried summarily. 
2.  Commonly strict liability applies to statutes dealing with the ‘regulation of a particular activity involving potential danger to public health, safety or morals, in which citizens have a choice whether they participate or not’. Sweet v Parsley [1960] 2 W L R 470 at 487. Strict liability offences are usually found in statutes dealing with traffic matter, selling contaminated foods, pollution, selling liquor to a person under 18 years and so on. Here the public interest is placed above the rights of the individual.
3.  Given that the offences are relatively minor, it is argued that to require the prosecution to prove mens rea would render the legislation unworkable. Imagine the difficulties faced by the prosecution in showing that a speeding motorist had the necessary intention to speed especially if they were only just over the limit. As Gillies, Criminal Law, 2nd edn, page 83 notes, a defence that the driver was simply not concentrating would most likely succeed if mens rea was an element to a speeding offence. 
4. Related to the difficulty of proof as mentioned above, it is recognized that given the number of these relatively minor offences, especially traffic, the courts would rapidly clog up if defendants were able to require the State to prove mens rea. In summary then, the public good which presumably comes from requiring motorists to strictly obey the traffic laws, for retailers to sell pure foods etc., and the need to keep the court system functioning smoothly, outweighs the loss of the right to have the state prove mens rea.

Defences to Strictly Liability

A defendant who is charged with a strict liability offence ordinarily has a number of defences open to him: He can rely on the normal criminal defences of intoxication, automatism and the like. Honest and reasonable mistake: An example may be taken from a decided case which shows the operation of this defence. It involved the placement of an advertisement, which contained an untrue statement. The defendant advertised and sold a used car, misstating the size of the motor. Having taken reasonable steps to establish the size he may be able to rely on the honest and reasonable mistake defence. Note that the mistake must not only be honest but also reasonable.

The latter element probably would not have been made out if no steps were taken to establish the size of the motor in the example above. Act of stranger or non-human intervening act over which the defendant has no control. This defence could apply to an offence where an owner of cattle is strictly liable for cattle straying onto a public road. If the cattle get out onto the road due to the wrongful act of a stranger in circumstances where the defendant had no knowledge or control over the stranger, then the defence may be made out.

Absolute Liability It is also necessary to mention that there is other type of offence which imposes absolute liability. Here, mens rea is absent but in addition, the defence of honest and reasonable mistake which applies to strict liability offence does not apply. Courts are quite reluctant to interpret a statute as one that imposes absolute liability but will do so if the legislative intention is clear. Courts ensure that by imposing absolute liability the objects of the legislation are being met and not merely that ‘luckless victims’ are being caught. In the example given above concerning the advertisement of the car, the court would reject the argument that it was an absolute liability offence.

‘White-Collar’ Crime ‘White collar’ crime is a very broad area of criminal law and little more can be done in this course than to give a brief overview and raise some issues, in particular, the difficulty that the law has in controlling this form of activity. The theme here is that the law is almost always behind the criminal.
Definition of ‘White-Collar’ Crime There is no part of criminal law that is recognised separately as ‘white-collar’. Rather, it is a collection of a broad range of offences, which are more likely to be committed by a person in business than the ordinary criminal.

Controlling White-Collar Crime

Four problems may be identified in this area:having the right law; catching the criminal’ keeping up with technology; and securing convictions.

1. Having the Right Law A student of the branch of criminal law dealing with offences against property will notice how long it has taken for the law to develop a range of offences that might be effective in this area. Part of the problem stems from a rather narrow common law offence of stealing which is the usual starting point in a discussion of crimes of dishonesty or ‘white-collar’ crime. (The term ‘larceny’ has the same meaning as stealing or theft.) At common law as well under the Criminal Code. A person steals if:Without the consent of the owner, that person; Fraudulently and without a claim of right made in good faith; Takes and carries away; Anything capable of being stolen belonging to another ,With intent at the time of taking to permanently deprive the owner of it. For the purposes of the present discussion note the three anomalies arising from the definition of stealing: Need for the removal of the property to amount to trespass to goods (asportation). This will not be the case where the defendant had possession of the property by consent. An example would be where an employee is allowed to keep in their possession tools belonging to the employer to be used at work. In this case should the employee keep the tools for their own use there is no removal amounting to a trespass to goods; The removal of the property and the mens rea must occur simultaneously. In order to steal, the defendant must possess the mens rea at the time of the taking. As with the example given above of the employee, it frequently happens that a person takes the property with the consent of the owner (such as when they borrow it) and only later they form the intention to steal it. In this case, there is no offence of stealing. 

Difficulties with the words ‘capable of being stolen’. Here consider the case of Oxford v Moss. There are just three examples of the problems with stealing. You may be wondering why the law has been constructed so narrowly. The reason was that in the 18th century the penalty for stealing was death and the courts were reluctant to see a defendant convicted unless the offence was clearly established.
You should not be left with the impression that the anomalies in the common law definition of stealing remain as they were. In Nigeria, the offence of stealing has been incorporated into s 390 of the Criminal Code in substantially similar terms to the common law definition. However, additional sections have been added over the years, which cover some of the more obvious shortcomings of the common law, e.g stealing by employees, agents and directors of companies.

Having said that, many commentators still regard the law as unsatisfactory. As one author put it:

The distinctions between offences are often fine spun and technical – but potentially fatal to a prosecution which chooses the wrong classification of wrong.

Moreover, there is practice of some white collar criminals transferring large sums of money to large countries to which they might later escape to prevent prosecution or plough into legitimate trade.

Keeping up with Technology

Catching the Criminal and Technology has enlarged the province of stealing and criminal law is yet to catch up. Examples are computer crimes e.g Deception of ATMs; Falsifying of digital records; and Prevention of computer hacking.

CONCLUSION

In this unit, we looked at the Criminal Law. This is the body of laws that defines offences and regulates her persons suspected of such offences are investigated, wronged and tried. It also sets punishment for those conucked of times. Some understanding of the criminal justice system is important because business has close links with crime and criminally

SUMMARY

We have seen why you need to know something about the substantive criminal law. It is different form unit law. Elements of crime are also different and include mens rea, actions rens, causation and element of unenntariness except in few cases of strict or absolute liability, whether white collar crimes are mere deviance or crimes properly so caked is arguable and the argument rages in the face of the problems of having the right law, catching the criminal and securing conviction. Those problems are compounded by new technologies.

TUTOR-MARKED ASSIGNMENT

1. Identify three differences between criminal and civil Law. 
2. Give examples, not taken from the Study Guide, of where Criminal Law and Moral Law, differ. 
3. What role does the victim play in the criminal trial? 
4.  “Some indictable offences can be tried summarily and some summary offences can be tried indictment at the option of the defendant/offender Comment

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