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A Synopsis for the Lawyer and Law Student on the Nature of Crime and the Criminal Law1

-- Abiola M. ISIKALU

1. The idea of crime has been with several generations of human civilisation, in several

shapes and shades. Crime connotes the presence of some body of rules, values and morals that

regulate human conduct; the violation of which attracts sanctions. The concept of crime

changes from generation to generation just like other parts of the social system. The inter-

temporal and inter-spatial nature of crime lends itself to disputations of what can be said to be

universally acceptable legal standards upon which crime may be assessed. What may be crime

today may have been acceptable human conduct about 200 years ago. For instance, the English

Emancipation Act (1833) brought to an end an acceptable business enterprise that most

European and American nations depended on for labour in their plantations and factories;

dealing in human beings as though they were mere chattels, not minding how many of them

were killed in dehumanising conditions in the slave ships from Africa to the then “enlightened

world”. The Act of 1833 and the subsequent one of 1835 suddenly criminalised such an act of

immeasurable economic advantage to Europe and America.

Were there no criminal laws in place in such countries that were the inhuman

beneficiaries of such intellectual and callous depravity? Or was it simply that they ignored their

municipal criminal codes as far as the victims of their crimes were not from England, France

and the Americas? Or is it that what at all times are acceptable conducts is a question of who

the aggressors or the victims are? Or has there always in reality been nothing like international

criminality as far as such conduct meets the so-so thought patterns of the “leaders of the

international community”? Or is it that the idea of the effectiveness of the United Nations as an

organisation depends not on some agreed international rules as expressed by the Charter but

on the policy directives and acceptable norms of some “hyper super powers”? Or is the concept of

Article 2(4) a question of convenience of the actors? Or can such acceptable international laws

be disregarded on the altar of the convenience of national interest?

1 See generally: Smith and Hogan (1999): Criminal Law; Cases and Materials (Seventh Edition): Butterworths: London; Molan, M. T, (2003): Criminal Law (Fourth Edition): Old Bailey Press: London; Ormerod, D., (2005): Smith & Hogan Criminal Law (Eleventh Edition): Oxford University Press; Dressler, J. (1999): Cases and Materials on Criminal Law (Second Edition): American Casebook Series: West Group; Dambazau A.B (1999): Criminology and Criminal Justice: NDA: Nigeria and Lippman, M. (2007): Contemporary Criminal Law: Concepts, Cases and Controversies: Sage Publications: London.

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Crime has been often used interchangeably with words like offences, violations,

misdemeanours, felonies, infractions and other similar terminologies which portray the idea of

violations of certain norms and standards of behaviour of the state. What may be criminal

behaviour giving rise to personal criminal liability in one sovereign nation may be an

acceptable conduct within the jurisdictional standards of another country. Are there any

acceptable international standards or measures when it comes to crime? Are there some forms

of uniform jurisprudential approaches to the idea of crime? Or will there ever be any form of

unification of the disparate legal regimes of criminality in the world? It is often puzzling that

an act by one State which meets with the approvals and legitimacy of that State, in the next,

perhaps, neighbouring nation, that same act is regarded as a gross violation of, not only

municipal laws, but sometimes, they are seen as violations of laws of humanity, calling for

condemnation from the international community. A classical example is the idea of hijackings

of aircrafts by groups in the Middle East backed by their nations; just like the Entebbe rescue

saga in 1976. The world waited in a state of helplessness while about 258 passengers of a

French Aircraft were held hostage in Uganda. The act of the hijacking met with the obvious

approval of the Ugandan Government and several of the Arab nations. Not only did they back

the act of the hijacking, but they actively supported what was a clear illegality or criminality in

other legal climes. One thing was clear, the world knew that there was a need to rescue the

hapless travellers/hostages, the world generally, depending on which side of the divide or

interest they found themselves could not close their eyes to the obvious crime. But how was

this conduct to be treated as a crime? Should the concept of criminality be left in the realms of

relativism? Or should there be some acceptable standards of judgement as to what should be

considered crime at the international level? These and much more, are the issues that this book

contends with. It does not by any stretch of the imagination pretend to have all the answers,

but hopes to excite the intellect and the curiosity of those seriously seeking to find solutions to

the question of criminality at the international level, to

pursue the advancement of the body of research into this

profound area of law.

The concept of the definition of crime itself is an

unenviable task as what crime entails attracts as many

definitions as there are schools of thought. This paper will

attempt the avoidance of verbiage and rather choose to

align its thoughts on this subject with some of the scholarly conceptual approaches by some

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distinguished authors. Crime, like many other concepts, lacks a universally accepted definition.

One reason for this is that we all perceive things differently. Each man has his

conceptualisation, and is governed by his own delineation, of meaning, as such there is no

universal truth; no unified theory. Providing a universally acceptable definition of a crime – as

law – would, therefore, prove to be a herculean endeavour2 as the nature of crime is inherently

subjective. Subjective in that, it would, no doubt, take into account the place and the time of the

one defining it. Hence any attempt at definition of a crime will thus either include the act at a

time when it is not a crime, or exclude it when it is. Not only does the definition of crime vary

from culture to culture, but with any one people, legal prohibitions and their enforcement may

be relative to particular social needs and circumstances.3 For instance, in the United Kingdom,

suicide was a crime until 3rd August, 1961 when, by the Suicide Act of 1961, it became perfectly

lawful to kill oneself.

Emile Durkheim, viewed crime within a sociological standpoint, postulating that crime

is normal in all societies. He went further to posit that: “a society exempt from crime would

necessitate a standardisation of moral concepts of all individuals which is neither possible nor desirable”.4

Following this sociological outlook, the Encyclopedia Americana could state simply that “crimes

are acts that are legally forbidden by a society.” The positivists, on the other hand view crime more

as an interplay of psychological factors, discarding any legal meaning of crime due to the fact

that they were contingent (in that they depended on the unknown outcome). According to

them, a criminal is a criminal simply because he is born as such. They view the element of

criminality as being inherent in the genetic make-up of the individual and that criminal

behaviour is inevitable in such an individual. On the elusive nature of crime, a United Nations

Research Institute observed that:

2 To ask “what is a crime?” is certainly not a novel endeavour. For decades academics from numerous disciplines (such as law, sociology, and criminology) have struggled to understand various aspects of this question. From studies that examine the factors contributing to the enactment of certain prohibitions or the impact of law and its enforcement, to studies that focus on the events that precede the decriminalization of certain behaviour, there are countless examples of scholarly work dedicated to exploring the nature of crime and its control. In the last half of the twentieth century, various scholars noted that crime is not an objective phenomenon and that the way in which certain behaviour is understood and responded to is more a reflection of how society is structured than an indication of any inherent problems with those individuals regarded as criminals. In the 1940s, for example, Edward Sutherland introduced the concept of “white-collar crime” to draw attention to crimes committed by the upper class and corporate elite, thereby challenging the common perception that crime was committed primarily by those in the lower class. See Law Commission of Canada (2004): What is a Crime: Defining Criminal Conduct in Contemporary Society: UBC Press, Vancouver, Toronto, p. vii – viii. 3 Encyclopedia Americana, Vol. 4, p. 193. 4 Durkheim, E., The Division of Labour in Society, G. Simpson (trans), New York: McMillan, 1993.

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“Crime in the sense of a breach of a legal prohibition is a universal concept, but what actually constitutes a crime and how seriously it should be regarded, varies enormously from one society to another. Perceptions of crime are not determined by any objective indicator of the degree of injury or damage but by cultural values and power relations.”5

However, the exposition of any construct would be unbalanced without adopting some

form of definition. A simple matter it would be to state that a crime is an act which is offensive

and subject to the meting out of a penalty by a duly constituted authority; this would, no doubt,

be adequate to the layman. However, the lawyer and the law student would not be satisfied by

such a definition sensu lato. This paper will thus, be concerned with the legal implication of

crime. Crime, for the purposes of definition, may thus be construed as any act or omission,

carried out with the intent of causing injury to another (individual or group), and which is

prohibited by the criminal law of the place where it is committed (or, as evinced in modern

times, the place where the result of the act is manifest), as at the time it is committed; subject to

determination of a proportionate penalty by a duly constituted authority.

An analysis of the law as it is laid down would serve to give us an insight as to how a

particular society sees crime. However, if we take a step back from this literal interpretation to

consider the broader social processes that help give meaning to crime and its control, it quickly becomes

apparent that there is much more to the question than simply referring to what is written in the law.6 As

Comack and Brickey (1991, 15) remind us, “law can be said to have a distinctly social basis; it both

shapes – and is shaped by – the society in which it operates”.

The Encarta Encyclopaedia (2009 Edition) defines a crime as: “commission of an act or act of

omission that violates the law and is punishable by the state. Crimes are considered injurious to society or

the community, as distinguished from torts and breach of contract”. Tappan (1960, 10) provides this

definition: “Crime is an intentional act or omission in violation of criminal law (statutory or case law),

committed without defence or justification, and sanctioned by the state as a felony or misdemeanour.”

The Nigerian Criminal Code Act takes a different approach in its conceptualisation of the

word crime. Rather than look at the elements of crime, it seeks to classify crime under three

sub-headings of felonies, misdemeanours, and simple offences, all depending on the gravity of the

punishment attached to each conduct. A crime is thus defined as:

5 States in Disarray: The Social Effects of Globalisation, United Nations Research Institute for Social Development, 1995. 6 Law Commission of Canada (2004): What is a Crime: Defining Criminal Conduct in Contemporary Society: UBC Press, Vancouver, Toronto, p. vii.

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“Offences are of three kinds, namely, felonies, misdemeanours, and simple offence. A felony is any offence which is declared by law to be a felony, or is punishable, without

proof of previous conviction, with death or with imprisonment for three years or more. A misdemeanour is any offence which is declared by law to be a misdemeanour, or is

punishable by imprisonment for not less than six months, but less than three years. All offences, other than felonies and misdemeanours, are simple offences.” 7

The law governing the regulation of crime is commonly referred to as criminal law; that

is, that body of governing rules and binding principles passed by the duly constituted law-

making power of a State, which seeks to prohibit criminal behaviour and punish recalcitrance.

The basic fundamentality of the criminal law is simply that there can be neither crime

committed nor punishment meted out except in accordance with the law. This principle is

expressed by the Latin maxim nullum crimen nulla poena sine lege; in other words, nothing is a

crime unless forbidden by the law. This principle is necessitated by Article 11(2) of the United

Nations Universal Declaration of Human Rights (1948) which states as follows:

“No one shall be guilty of any penal offence on account of any act or omission which did not constitute a penal offence at the time it was committed; nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.”

The criminal law’s assertion to jurisdiction over conduct in breach of its rules

encompasses two claims: the first is that it (expressly or impliedly) defines such a conduct as

criminal, and the second is that there must be in existence a duly constituted authority (such as

a court) having jurisdiction to try such an alleged perpetrator for such conduct.

In summary, crime in whatever form it takes, or by whatever approach it is

conceptualised, whether by the sociologist, the psychologist, the criminologist, the moralist or

the legal jurisprudential, is basically of the following qualities:

i. It is a conduct which may be a commission or omission;

ii. It runs contrary to the acceptable legal standards – whether real or perceived – of a

given sovereign entity;

iii. There are prescribed penalties, punishments or sanctions attached to such conduct;

iv. There is a constituted legal institution – whether general or specialised – that is, like a

court or tribunal or panel, saddled with the interpretation and administration of such a

law;

7 Section 3, Laws of the Federation of Nigeria, 1990, CAP 77.

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v. Through such court or tribunal or panel, personal or corporate criminal responsibility is

established with respect to such conduct;

vi. The offender is made to feel the full weight of the sanctions through the processes

prescribed by the law, that is, statutory and judicial or customary (as in the case of

international law).

In other words, a crime is a crime when the above elements are in place. Several conducts

appear to be so close and yet do not attract criminal liability. For instance, the distinction

between morality, ethical standards, traditions, customs and crime. In some legal regimes,

conducts which give rise to criminal liability may at best be left in the realms of moral suasion.

For instance, under the Nigerian Criminal Code Act8(applicable to the Southern States), adultery

is not a crime, despite its being highly condemned by religious institutions, it is at best a

ground for divorce under the Nigerian Matrimonial Causes Act9. What must be seen as a crime

may also be condemned by these other close social concepts like morality. For instance, murder,

stealing, deceit, corrupt enrichment, all amount to highly condemnable conduct by Christians,

Muslims and most other religious institutions.

2.

Like most socio-legal concepts, the evolution of the regime of criminal law has its roots

in several ancient sources. Popular among such historical sources include:

i. The early codified law, traced to the cradle of civilisation, the present Middle East. This

is historically traced as far back as 2000 BC, with the Babylonian Code of Hammurabi10.

The ancient Mesopotamians put more emphasis on legalism than doing what seemed

right and good in a given circumstance. Many of the codes were very specific and levied

extreme, heavy penalties on any one who broke them. They strove for precise obedience

to the stated requirements. The Code of Hammurabi left no room for excuses or

accidents.11

ii. The Mosaic Code of the Israelites. This dates back to as early as 1200 BC; and

8 Ibid. 9 Laws of the Federation of Nigeria, 1990, CAP 220. 10 The Code of Hammurabi has been recognised as one of the most ancient written laws known to man. See Dambazau, A. B (1999): Criminology and Criminal Justice; Kaduna: Nigerian Defence Academy Press. 11 Ibid, p. 198.

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iii. The Roman Twelve Tables of 400 BC.

In the earlier times, there was the Justinian Corpus Juris Civilis. This represented the body of

civil laws as far back as about 600 AD. This appears to have been the earliest effort at

codification of law and clearly summarised the entire system of roman laws that had developed

since the Twelve Tables. It is strongly believed that this early codified law provided the

necessary background for the Napoleonic I French Civil Code in the 17th century.

Another important source of criminal law and perhaps the most important of

contemporary usages is the English Common Law. It should first be noted that unlike most

other jurisdictions, England and Wales do not have a criminal code. From very early times

Parliament has created criminal offences. These have always taken effect in the context of the

common law of crime, that is, the law made by the judges in the decided cases. Whereas civil-

law judges resolve disputes by referring to statutory principles arrived at in advance, common-

law judges focus more intently on the facts of the particular case to arrive at a fair and equitable

result for the litigants. As the number of judicial decisions accumulate on a particular kind of

dispute, general rules or precedents emerge and become guidelines for judges deciding similar

cases in the future. Subsequent cases, however, may reveal new and different facts and

considerations, such as changing social or technological conditions. A common-law judge is

then free to depart from precedent and establish a new rule of decision, which sets a new

precedent as it is accepted and used by different judges in other cases. In this manner, common

law retains a dynamic for change; as the U.S. Supreme Court Justice Oliver Wendell Holmes,

Jr. wrote in his book, The Common Law (1881): “The life of the law has not been logic; it has been

experience.”

Criminal law strives to guard the community from injury by perpetrating chastisement

upon those who have already completed harm and by threatening with chastisement those who

are drawn to do harm. The harm that criminal law objects to prevent differs. It may be

corporeal harm, demise, or physical injury to human beings; the forfeiture of or damage to

chattels; sexual decadence; peril to the regime; disturbance of the public peace and order; or

injury to the public wellbeing. Demeanour that threatens to cause, but is yet to cause, a harmful

result may suffice to constitute a crime. Thus, criminal law often struggles to avoid harm by

forbidding conduct that may lead to harmful consequences. On the purpose of the law, research

has noted that:

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“One purpose of both civil law and criminal law in the common law system is to respond to harmful acts committed by individuals. However, each type of law provides different responses. A person who is injured by the action of another may bring a civil lawsuit against the person who caused the harm. If the victim prevails, the civil law generally provides that the person who caused the injury must pay money damages to compensate for the harm suffered. A person who acts in a way that is considered harmful to society in general may be prosecuted by the government in a criminal case. If the individual is convicted (found guilty) of the crime, he or she will be punished under criminal law by either a fine, imprisonment, or death. In some cases, a person‟s wrongful and harmful act can invoke both criminal and civil law responses.”12

The Texas criminal code in the United States of America, as cited in Matthew Lippman (2007:

5) proclaims that the purpose of the criminal law is to “establish a system of prohibitions, penalties,

and correctional measures to deal with conduct that unjustifiably and inexcusably causes or threatens

harm to those individual or public interests for which state protection is appropriate.”13 The New York

criminal code sets out the basic purposes of criminal law.14 To summarise the above, the

criminal law has various purposes which include:

Harm: to preclude conduct which causes – direct or indirect – harm to individuals or

society, unjustifiably or inexcusably.

Warning: to warn the public of conduct that is subject to such criminal punishment and

the penalty thereof

Definition: to define the nature and scope of each crime, comprising the requisite act

and intent for each offence

Categorisation: to clearly distinguish between serious and minor offences,

apportioning proportionate punishments

Punishment: to impose penalties satisfying the demands for revenge, rehabilitation, and

deterrence of future crimes15

12 See the Microsoft Encarta Encyclopedia, 2009 Edition. 13 See Texas Criminal Code, Section 1, sub-section 02. 14 New York Cons. Laws. Section 1, sub-section 05. 15 See Lippman, M, (2007) op. cit.

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Further on the function of the criminal

law, two views conflict: the Libertarian

view is of the opinion that the only

justification for interfering with the

liberty of others is self-protection or the

prevention of individual harm.16 Lord

Woolfenden’s Report of the Committee on

Homosexual Offences and Prostitution

(1957, Cmnd 247) consented to the fact

that homosexual acts between consenting

adults should be removed as a criminal

offence. Paragraph 13 of the Report was to

the effect that the occupation of the law was

to “preserve public order and decency, to

protect the citizen from that which is offensive

or injurious and to provide sufficient

safeguards against exploitation and the

corruption of others, particularly those who are

especially vulnerable”. In the words of

Duncan Bloy and Philip Parry: “The Committee‟s view was that there remains a realm of private

morality and immorality with which the criminal law ought not to concern itself”.17

In opposition to this view is the Authoritarian view which is represented by Lord

Devlin. Lord Devlin criticised Woolfenden’s approach to private morality or immorality,

postulating that: “there are acts so gross and outrageous that they must be prevented at any cost”, he

went further to state that “the suppression of vice is as much the law‟s business as the suppression of

subversive activities”.

Actus Reus

Criminal lawyers commonly speak of offences having

elements, this is usually used to refer to the actus reus and the

16 See JS Mills’ essay „On Liberty‟, (1859), 1974, Harmondsworth: Penguin. 17 (1997): Principles of Criminal Law (Third Edition): Cavendish Publishing Limited: London

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mens rea. This section will focus on the former, that is, the actus reus.

In literal terms, actus reus connotes a guilty act; hence, one general basis for imposing

criminal liability is that the alleged offender committed the guilty act. According to Blacks Law

Dictionary, 8th Edition actus reus is a Latin phrase meaning “guilty act”. It portrays it as: “The

wrongful deed that comprises the physical component of a crime and that generally must be coupled with

mens rea to establish criminal liability.” It also portrays the phrase as: “A forbidden act, for example,

the actus reus for theft is the taking of or unlawful control over property without the owner‟s consent.” It

is also termed as “deed of crime or overt act”. J.W. Cecil Turner, (1952): Kenny‟s Outlines of

Criminal Law 13 (16th Edition) provides as follows:

“The word „actus‟ connotes a „deed‟, a physical result of human conduct. When criminal policy regards such a deed as sufficiently harmful, it prohibits it and seeks to prevent its occurrence by imposing a penalty for its commission. It has long been the custom of lawyers to describe a deed so prohibited by law in the words „actus reus‟. Thus, actus reus may be defined as „such result of human conduct as the law seeks to prevent‟. It is important to note that the actus reus, which is the result of conduct, and therefore an event, must be distinguished from the conduct which produced the result. For example, in a simple case of murder, it is the victim‟s death, brought about by the conduct of the murderer which is the actus reus: the „mens rea‟ is the murderer‟s intention to cause that death. In other words, the crime is constituted by the events and not by the activity (or in certain cases, as we shall see by the omission to act) which caused the events.”

To drive home this point, a consideration of the duties of a fire service officer to act to stop a

fire starting in a building to which he is posted on duty; a person is eventually killed by the fire

which burns down the entire building. His inactivity or failure to act amounts to an activity

which leads to the occurrence of the death of the occupant of the premises. For a case of murder

or manslaughter (depending on the degree of the fireman’s complicity) his failure to act or

inactivity constitutes the necessary activity or ingredient that leads to the actus reus; the death

of the victim. Rollin M. Perkins & Ronald N. Boyce, (1982): Criminal Law (Third Edition) 831

provides as follows:

“The phrase „deed of crime‟ (that is actus reus) as so used does not indicate the crime itself but merely one of the ingredients of crime: and this ingredient may be present without any crime at all, just as hydrogen is one of the ingredients of water but may be present without water. The words „deed of crime‟ are so suggesting of the crime itself, however, that perhaps the Latin phrase „actus reus‟ is less likely to cause confusion. The actus reus is essential to crime but is not sufficient for this purpose without the necessary „mens rea‟, just as mens rea is essential to crime but is insufficient without the necessary actus reus.”

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In other words, the ingredient of actus reus is the act of the crime itself. The process of

placement of where the crime actually occurs is highly relative to the crime in issue. For the

crime of an assessory before the act, it is just enough that the accused stumbled on some

information that a crime was about to be committed and fails to give notice of such relevant

information to the law enforcement agencies. The actus reus in such a case is actually the failure

to disclose the information perhaps necessary to prevent the crime, to persons in authority. The

actus reus for an attempted murder may be more fluid and difficult to pinpoint depending on the

exact details of the case itself. However difficult it may be, once the assailant has taken some

step in the hope of eliminating or fatally injuring his victim, and is prevented from succeeding

in killing the victim, that act of the first blow that was not hard enough to decapitate the head of

his victim from the body, leading to the apprehension of the attacker evinces of the actus reus of

the crime of attempted murder.

The fact of the occurrence of an act no matter how close or grievous or condemnable it

may appear will not suffice to invoke criminal liability. For instance, if one parks his bicycle at

the shopping mall and a man happens to pull it out of the rack, rides it home and parks it in his

garage; does that suffice to constitute theft? This question proves difficult because he could

have simply mistaken the bicycle for his, due to the fact that they are exactly the same colour

and model. The moment the accused successfully establishes the fact of his action being

actuated by an innocent mistake, it has successfully destroyed any hope of establishing the

necessary mens rea to ground a conviction for theft of the said bicycle.

Mens Rea

The second and equally essential ingredient for

the establishment of criminal liability is the „mens rea‟.

Etymologically, mens rea in Latin means „guilty mind‟

and this requirement is most commonly expressed in the

Latin maxim: Actus non facit reum nisi mens sit rea, to the

effect that “an act shall not make a person guilty unless the

mind is guilty”. The Blacks Law Dictionary, 8th Edition

sees mens rea as:

“The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime: criminal intent or recklessness for instance, the

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mens rea for theft is the intent to deprive the rightful owner of the property. Mens rea is the second of the two essential elements of every crime at common law, the other being the „actus reus‟.”

Mens rea is otherwise described as the mental element. Without the necessary mental

element, most crimes, except of strict liability, will not receive a conviction. It is also otherwise

described as the criminal intention that is to say, that the criminal foresaw and desired the

consequence of his actions. No matter how grievous an act – whether it be as serious as murder

or treason – there must be the necessary criminal intention before criminal liability can be

grounded. If a man accidentally bumps into another man, that unknown to him has an eggshell

skull, the eggshell head is blown to pieces, and of course, the man dies. The mere death of the

man without the necessary guilty intent or mens rea is not sufficient to ground a conviction for

murder. There must be the presence of the mental element, that is, the criminal intention to

commit the crime, otherwise, there can be no conviction. In the case of Allard v. Selfridge (1925)

1 K.B at 137 Shearman, J. stated:

“Most English lawyers would however now agree with Sir James Fitzjames Stephen that the expression mens rea is unfortunate, though too firmly established to be expelled, just because it misleadingly suggests that, in general, moral culpability is essential to a crime, and they would assent to the criticism expressed by a later judge that the true translation of mens rea is „an intention to do the act which is made penal by statute or by the common law‟”.18

It is simply by virtue of this

fact that the mens rea is incapable of

any precise definition. There is

simply no method to determine a

criminal’s exact state of mind while

committing an act. If, for instance, a

man runs down a woman with his

car, and it is clear from the

circumstances that he intended to

kill her, or through a declared

statement of his motives, then there

is no doubt as to his guilt. However, this will be quashed if the accused argues the contrary.

18 See Hart H.L.A., (1968): “Legal Responsibility and Excuses,” in Punishment and Responsibility 28, 36.

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This is also the case of an act comparatively innocent, but from which a guilty state of mind can

be inferred if such an act is clearly calculated to lead to harmful consequences, as arose in The

Harlot‟s Case (1576). Furthermore, it has been noted that where the essence of a statutory

offence is the existence of a specific intent the burden of proving it rests on the Crown, and in

any case it will not necessarily be sufficient to rely on the presumption that a man intends the

natural consequences of his acts, while in particular such a presumption cannot be relied upon

when the accused is subject to the power of an enemy.19 This was the case in R v. Steane (1947)

K.B. 997, where the facts are as follows.

Steane was charged under Regulation 2 (a)20 of the Defence (General) Regulations,

1939, with “doing acts likely to assist the enemy, with intent to assist the enemy.” He had been

employed as a film actor in Germany for some time before the outbreak of the war of 1939 – 45,

and he was then residing in Germany with his wife and children. Shortly after the outbreak of

the war, he had an interview with representatives of the German Government at which he was

knocked down and told to say “Heil Hitler!” In consequence of threats subsequently made

against himself, his wife and children, he broadcast news for the Germans between January and

April 1940. Subsequently, and after further threats were made against himself and his family,

he returned to work for his former employer, and assisted in the preparation of films until 1945.

He swore that, throughout, he had no intention or idea of assisting the enemy, and that his sole

object had been to save his wife and children from trouble. HENN-COLLINS, J., in effect

directed the jury that, if they were satisfied that the accused had done acts which were likely to

assist the enemy, the intent to do so might be presumed, and Steane was convicted and

sentenced to three years penal servitude. He appealed to the Court of Criminal Appeal against

his conviction, which was quashed on the ground of misdirection of the jury.

Extracts from the Judgment of the Court of Criminal Appeal.

LORD GODDARD, C.J. – “... While no doubt the motive of a man‟s act and his intention in doing the act are, in law, different things, it is, none the less, true that in many offences a specific intention is

a necessary ingredient and the jury have to be satisfied that a particular act was done with that specific intent, although the natural consequences of the act might, if nothing else were proved, be said to show the intent for which it is done. To take a simple illustration, a man is charged with wounding with intent to do grievous bodily harm. It is proved that he did severely wound the prosecutor.

19 Cross, R & Jones, A.P. (1968): Cases on Criminal Law (Fourth Edition): Butterworths: London 20 Since revoked.

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Nevertheless, unless the Crown can prove that the intent was to do the prosecutor grievous bodily harm, he cannot be convicted of that felony. It is always open to the jury to negative by their verdict the intent and to convict only of the misdemeanour of unlawful wounding. ... No doubt, if the prosecution proves an act the natural consequence of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged, but if on the totality of the evidence there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury‟s satisfaction, and if, on a review of the whole evidence they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted. ... In this case the court cannot but feel that some confusion arose with regard to the question of intent by so much being said in the case with regard to the subject of duress. Duress is a matter of defence where a prisoner is forced by fear of violence or imprisonment to do an act which in itself is criminal. ... There is very little learning to be found in any of the books or cases on the subject of duress and it is by no means certain how far the doctrine extends, though we have the authority both of Hale and of Fitzjames Stephen, that while it does not apply to treason, murder and some other felonies, it does apply to misdemeanours; and offences against these regulations are misdemeanours. But here again, before any question of duress arises, a jury must be satisfied that the prisoner had the intention which is laid in the indictment. Duress is a matter of defence and the onus of proving it is on the accused. As we have already said, where an intent is charged on the indictment, it is for the prosecution to prove it, so the onus is the other way. Now, another matter which is of considerable importance in this case, but does not seem to have been brought directly to the attention of the jury, is that very different considerations may apply where the accused at the time he did the acts is in subjection to an enemy power and where he is not ... if invasion had unhappily taken place, British subjects who might have been set to work by the enemy digging trenches would undoubtedly be doing acts likely to assist the enemy. It would be unnecessary surely in their cases to consider any of the niceties of the law relating to duress, because no jury would find that merely by doing this work they were intending to assist the enemy.”

Sources of Criminal Law A source is that from which a ‘thing’ derives its form or substance, and without which

that ‘thing’ cannot possibly exist. A source of law is, therefore, those elements that conspire to

give a rule of law its validity and force. I.A. Shearer notes in his Starkes International Law that

“due to the diverse nature of law and the lack of a universal definition thereof, the term “sources of law”

has engendered substantial debate among writers and is capable of taking on more than one connotation.

Writers often speak of formal sources, material sources, evidentiary sources, and so on.” The distinction

between „formal‟ and „material‟ sources has been explained by Salmond21 in the following terms:

21 Jurisprudence (7th Edition, 1924), paragraph 44.

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“A formal source is that from which a rule of law derives its force and validity.... The material sources, on the other hand, are those from which is derived the matter, not the validity of the law. The material source supplies the substance to the rule to which the formal source gives the force and nature of law.”

In spite of all the distinction of sources, writers are agreed that the sources of the

criminal law comprise of the following:

English and American Common Law

Federal and State criminal codes

Municipal ordinances

Federal and State constitutions

International treaties

English and American Common Law: The English common law evolved based on a system of

judge-made law. Under this system, decisions taken by judges in prior cases served as a guide

point for subsequent cases. This system formed the foundations for the American common law

system as well as the systems in those countries colonised by England. The doctrines that

encompassed this common law began to be written down in the 1300s in an effort to record the

judge-made rules that should be used to decide future cases.22

Federal and State Criminal Codes: The criminal codes of States, federal and state

constitutions, and municipal ordinances, also form part of the sources of the criminal law as

they are the municipal laws enacted by such States to govern relations within that State.

International Treaties: Treaties also form a succinct part of the criminal laws of States as

States have jurisdiction to try such acts that are condemned as grave breaches of the laws of

armed conflict or crimes against humanity.

22 Lippman, M. (2007: 5).