CSS 152 MAIN.pdf - National Open University of Nigeria

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CSS 152 INTRODUCTION TO NIGERIA CRIMINAL LAW an association. But where you continue membership after the ban now becomes the physical element of that offence. Also, the physical element of an offence can manifest by way of an omission. Omission is failing or omitting to do what that law has commanded you to do, the failure of which will ground criminal liability. The Criminal Code has criminalized such omissions to include duties imposed on peace officers (police officers) to suppress riot see S. 199 of the Criminal Code, duties imposed on members of the ship’s crew to obey order and duty placed on a family head to supply necessaries for a child under fourteen years of age. One underlying condition which must be present for omission to constitute the actus reus in criminal law is that such duties criminalized as omissions must be geared towards avoiding risk of serious harm to the person where a special relationship exists between the parties. The mental element or the guilty act can also manifest by way of consequence. In some offences such as murder and manslaughter, it is the consequence (e.g. death) which results from the conduct of the accused person that constitutes the actus reus of such offences. SELF ASSESSMENT EXERCISE 1 What are the various manifestations of the physical element? 3.2 The Mental Element The introduction of mental element in crime may be attributable to ecclesiastics who regarded the conscience of men as prime importance. In their view, that which called for atonement was the evil intention or motive which prompted the harmful deed. The mental element or the mens rea is a reference to the mental element which the prosecution must provide in any particular offence in order to secure a conviction. It is not in every offence that a particular mental element must be proved. There are different species of variety of mental elements depending on how a particular offence is worded. That is to say, the mental element of an offence is derived not from elsewhere but from the way the offence is worded. It is suitable to state that five basic concepts which may underline the particular conduct are worthy of mention. 16
CSS 152 INTRODUCTION TO NIGERIA CRIMINAL LAW These are i. Intention ii. Recklessness iii. Negligence iv. Accident and v. Unconsciousness i. Intention This can only be derived from the circumstance of a particular offence. Intention here revolves around the issues of forseeability and desirability. It simply stated that a man intends a consequence of his action when he foresees that it may result in harm and desires that he should do so. Therefore, desire of consequence is the hallmark of intention no matter how vague or unconscious that desire may be. Thus if for example in the offence of burglary as contained in S. 411 of the Criminal Code, specific intents is to be proved by the prosecution, it must be strictly proved in accordance with the law. See for example the case of R. v. Steane (1974) KB 997. There is however a distinction between the common law rules and intention can be seen in S. 24 of the Criminal Code. At common law, there is the doctrine of transferred malice as is illustrated in the case of R. v. Latimer (1886)17 QB 359. In Nigeria and particularly under S. 24 of the Criminal Code, a person must act dependently on the exercise of his will (i.e. with intention) before he can be guilty of the offence charged. Compare the above case of Latimer with another case to wit; R. v. Pemblition (1874) LR 2 in which the court said that the intent to harm a group of people cannot be transferred to the breaking of a window. a. Intention and Motive Distinguished Having seen what intention is all about, it is sound to state that motive is reason for the accused person’s conduct which has induced him to act unlawfully but which does not form part of the metal element of an offence. Intention therefore must be distinguished from motive, for, according to the third limb of S.24 of the Criminal Code, unless otherwise expressly 17
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