The Elements of Criminal Responsibility
The thrust of this topic is depicted in the latin maxim “actus non facit reum nisi men sit rea” which means that a guilty act alone does not make a person liable for an offence unless it is accompanied by a guilty mind. A person cannot usually be found guilty of a criminal offence unless two elements are present: an actus reus, latin for guilty act; and mens rea, latin for guilty mind. Both these terms actually refer to more than just moral guilt, and each has a very specific meaning which varies according to the crime, but the important thing to remember is that to be guilty of an offence, an accused must not only have behaved in a particular way, but must also usually have had a particular mental attitude to that behavior.
N.B The exception to this rule is a small group of offenses known as crimes of strict liability.
Hence, as established earlier, in the commission of an offence, two elements are always required to be present before a conviction can be granted. They are:
- The physical element (actus reus)
- The mental element (mens rea)
This position is predicated on the principle of criminal law that there shall be no liability without fault – Woolminigtion V. DPP.
The physical element
The physical element may consist of an act or more rarely an omission and sometimes a passive state of affairs. It may not only be limited to the conduct of the accused but it may also include the consequences of the conduct. For example, in the case of Assault, the actus reus is not only limited to the fact that the accused hit the victim with his fist but also the injury inflicted on the person. In the case of murder, the actus reus is not united to the gunshot or machete hit but also in the fact that it results to death.
N.B An actus reus can consist of more than just an act; it comprises all the elements of the offence other than the state of mind of the defendant. Depending on the offence, this may include the circumstances in which it was committed, and/or the consequences of what was done. For example, the crime of rape requires unlawful sexual intercourse by a man with a person without their consent. The lack of consent is a surrounding circumstance which exists independently of the accused is act.
According to Glanville Williams,
actus reus means the whole definition of the crime with an exception of the mental element.
Generally speaking, omissions can hardly constitute the actus reus of an offence but in the few instances where it does, the statute has been specific about it. Omissions are therefore criminalized where it is essential that the people ought to be compelled so that anarchy and cruelty do not reign supreme. These instances may be where the law places a duty on a person to act and he fails, omits, and or refuses to act, resultant of which someone is exposed to harm, injury or even death.
Under Section 199 of the criminal code, duties are imposed on police officers to suppress riot. Also in section 346 – 348, those in charge of railways, trains or ships are under a duty to ensure the safety of passengers. Under Section 243, the law criminalises negligent omission in respect of these who handle fire or explosives or who are in charge of machinery that requires them to exercise caution against danger. Section 344 makes it a general offence for anyone to cause harm by negligent omission in breach of a duty. Most important of all, Chapter 26 of the criminal code contains matters on life preservation as it affects the vulnerable and helpless and duties are imposed on heads of families to take care of the needs of those under then failure of which would attract criminal sanction.
Section 368 punishers failure to repair highways and bridges while Section 515 punishes neglect to prevent the commission of a felony. Section 202 of the criminal code also provides that it is an offence generally for anyone to omit, without lawful excuse, to perform any duty which he is bound to perform by the provisions of any legislative enactment. Hence, the breach of any of these acts or duties would constitute an offence even though it is not expressed through a positive act. However, where no duties are imposed, there is no crime if the person fails to act even though he has the ability to prevent an injurious act.
N.B The Belgian Penal Code was amended in 1951, to incorporate a duty to rescue persons who are exposed to serious danger. This is recommended for Nigeria.
The mental element
Mens rea is the latin for “guilty mind” are traditionally refers to the state of mind of the person committing the crime. It has been expressed in various epitets – intention, recklessness, negligence, accident, unconsciousness. It is also called culpable mind. The justification for punishing an offensive act is that it must be predicted on a culpable mind.
N.B When discussing mens rea, we often refer to the difference between subjective and objective test. But simply, a subjective test involves looking at what the actual defendant was thinking lor in practice, what the magistrates or jury believe the defendant was thinking; whereas an objective test considers what a reasonable person would have thought in the defendant’s position.
Intention
In common criminal law parlance, a man is said to intend the happening of an event if he foresaw or desired it. Desire for the consequences is often said to be the hallmark of intention, however vague and subconscious the desire may be. In Nyann v. DPP dealing with intention in cases of murder, one House of Lords held that there is an intention to cause death or grievous bodily harm if the accused deliberately the intentionally did an act knowing that death of grievous bodily harm was a probable consequence of it, even though he did not desire that result. Most crimes require proof of some kind of intention.
Intention has always been expressed in other terms e.g foresight, purposed intention, basic intention e.t.c for example; in burglary and housebreaking, the specific intent must be the intention to commit a felony. At common law, there are cases of transferred intent imalice. As it was held in R.V. Latiner that if A intends to strike B, aims a blow at him and strokes and wounds C accidentally, then it is said that A is guilty of maliciously wounding C.
However, Section 24 of the criminal code exempts a man from responsibility for acts done by accident.
N.B The proof of intention has been difficult even from the onset Brown C.J in an English medieval case once said that;
the devil himself knowest not the intention ofman.
Also, Bowen L.J in Edgington V. Fitzmaurice said;
the state of a man’s mind is as much a fact as the state of his digestion.
William Shakespeare also said in Macbeth that;
There is no act to find the mind’s construction on the face.
Hence, it is only when one confesses that he foresaw or intended that one can be sure of what it was, although it can also deceive us. It must also be noted that acts originate from the realm of thoughts. Intention can be construed or inferred, and the test is subjective, hence intention can be inferred in the case of murder from the severity of the blow. In the case of Nungu V. R, a man who intended to hack his brother down with the sharp end of an axe later turned the wooden axe to hit him but he still died. It was held that he intended to cause grievous bodily harm and as such liable for murder.
N.B Motive must be distinguished from intention. Motive is the reason for the accused’s conduct and which induces him to do an unlawful act while intention is the mental element of the offence defined by law.
Recklessness
Recklessness is a condition of mind where a man may foresee what is likely or probably going to happen out does not actually desire it, and may indeed desire it not to happen. Two different types of recklessness exist which are named after the cases in which they were defined: R. V Cunningham where the subjective test was upheld and MPC V. Coldwell where the objective test was upheld.
Negligence
A man may not himself foresee what is going to happen. Nevertheless the law sometimes holds that he ought to have foreseen it and was guilty of negligence.
Accident
Not even a reasonable man in his position would have foreseen what was going to happen, which was therefore occurred by accident. Normally an accused in this portion will escape liability except where liability is strict – Sect 24 of the Criminal Code
Unconscious
Although, for a psychologist, the line between conscious and unconscious action is exceedingly rough, the criminal law will not attach responsibility to a man who is considered to have acted unconsciously and in a state of what is often called “automatism”.
Concurrence of the physical and mental elements
Actus reus and mens rea must concur and it must be simultaneous to a point of time. Thus, if a man forms an intention to kill his wife and later changes his mind and eventually accidentally kills her, there is the actus reus of murder but no simultaneous mens rea. Conversely no subsequent amount of malice can turn and originally justified assault into an offence. However the notion of simultaneousness of actus neus and mens rea is not to be taken too literally.
In Thabo Meli V. R, the appellants struck a man with intent to kill him. Believing him dead, though in fact the war only unconscious, they rolled him over a cliff in order to make his death appear accidental. He died from subsequent exposure. The defence argued that the intent to kill did not concur with an act causing death, and that the subsequent act which caused the death was not accompanied by an intent to kill, and that therefore in respect of the latter act they should be guilty not of murder but of the lesser offence of culpable homicide. The priory council rejected the argument on the ground that the transaction could not be divided up in this way.
N.B The principle laid down in this case must be treated with some caution.
It was explained by the Rhodesian Federal Supreme Court in R. V Criswibo as applying only to situations where the disposal of the body formal one part of the single transaction to kill the victim and had been planned beforehand. But in the instant case the burying of the body was not part of the same preconceived transaction.
N.B It is submitted that the Thabo Meli principle should not be applied unless it can be fairly be said that the intention continues notionally up to the moment that the intention is actually effected.
The test should be – if the accused (mistakenly believing that his original intention has already been effected) were apprised of the true facts at the moment at which his original intention were about to become effective, would he still say, “yes, I desire that to happen”? if not, then it is submitted that it cannot be said that the physical and mental elements concur (though the might be liable for a different offence e.g for manslaughter by negligence).