CRIME; When you can be charged, and possible defenses

                                          By Chidi  W.Nwachukwu Esq.

Criminality and wanton destruction of lives and property seem to define our country today  more than  any time  in  our history, even if our leaders may like to think differently. According to the Black Law Dictionary,8^th Edition, ‘’Crime is defined as an act the law makes punishable, the breach of a legal duty treated as a subject matter of criminal proceedings’’.  Many are of the opinion that criminality is on the increase  because those who committed crime in the past did not get punishment , thereby making it attractive  to do so subsequently with impunity. There are as many reasons as there are people why crimes are committed among which are quest for wealth, avarice, jealousy ,prestige, etc. however, the purpose of the  law is to find out whether a crime has been committed or otherwise and make appropriate pronouncements.

 Under the criminal law we have all kinds of crime such as kidnapping, murder, stealing etc. Basically criminal law seeks to protect people from harm by inflicting punishment on those who have already done harm and threatening with punishment those who are tempted to do harm. The harm criminal law  aims to prevent  varies, it may be physical harm, death or bodily injuries to human beings, the loss or damage to properties, sexual immorality, danger to the government, disturbance to public peace and order or injury to public health. Conduct that threatens to cause ,but has not yet caused a harm ,may be enough to constitute a crime .Thus criminal law often strive to avoid harm by forbidding conduct that may lead to harmful result.

To be guilty of a crime, a person  must either  have performed a voluntary physical act or failed to act when he or she has a legal duty to do so. In other words there is no criminal liability for bad thought alone .Thus a child may earnestly wish his father dead and may even think of killing the parent so that he can inherit their property, however  if the parents eventually die without any proof that the boy was responsible for their death, he will not be guilty of the crime.

Often times crimes are committed by a specific action- for example the pulling of a trigger or thrusting of a knife in  murder or the lighting of a fire in arson. Some crimes are however defined in terms of omission or commission, for instance watching someone drown in the river by a lifeguard could amount to an offence hence his duty is to ensure safety of swimmers, but a passerby who merely watch someone drown may have no case to answer. In the former scenario there is a duty but in the latter, no such duty exist.

A person must have had intent to act in a harmful way before he can be liable to a crime, lawyers describe this as mens rea, a Latin word meaning guilty mind. This is why most crimes are defined with terms such as knowingly, maliciously, intentionally, negligently, willfully or recklessly acting to bring about a particular situation .It is important to note that mens rea   distinguishes between inadvertent act or  accidental act  ,and acts for which someone is criminally liable. For instance, a man who desires to kill his friend and in the course of driving to work unknowingly run over that friend who was crossing the road, he has not committed murder. However if you  intended to shoot somebody and the bullet strayed and kills another, the intent will be transferred from the original target to the one harmed, in other word you are still guilty of murder whether the target was the one  hit by your bullet or not.

Crimes do not just attract punishment stricto sensu, there are defenses that the accused can put forward to defend himself, which will be weighed by the court to see its merit or otherwise. Under the criminal law the requirement is usually to prove beyond reasonable doubt. Largely speaking, defense is a broad term refers to numerous claims that serve to rebut or refute the claim, mitigate, moderate, justify or excuse conduct that the state labeled criminal. Some defenses are factual, for instance the defense of alibi  where the accused is saying that he was not at the scene of the crime when it was committed. Other defenses such as insanity, mistake, intoxication or self defense   acknowledges the fact that the accused indeed committed the crime but asserts that he should not be held responsible for reasons aforementioned . It should be borne in mind that the defense of alibi does not just end there. When an accused says that he was not at the scene of crime or within the vicinity when a crime was committed, he is mandated to tell the court where he was at that time, and it will be verified by the police. Some defenses serve to explain the circumstances of the action and defeat criminal liability, for instance if a person kills another in self defense the law provides that the prohibited act is justified and not appropriate for punishment.

The above position is supported by section 33(2) of the 1999 constitution which states that’’ a person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use to such extent and in such circumstances as are permitted by law ,of such force as necessary;(a) for the defense of any person from unlawful violence or for the defense of property ;and {b) in order to effect a lawful arrest or to prevent the escape of a person lawful detained’’.

    However, the court will look at the proportionality of such defense by the accused, if for instance the attacker had a bunch of broom in its hand threatening to hit the accused and in response the accused shot him with a gun, he may be guilty of a crime. The defense of insanity is based on the premise that those who are unable to control their minds or appreciates the criminality of their actions due to mental defects or illness should not be punished under the criminal law. The insanity defense in this case is a legal test of criminal responsibility that does not necessarily have to conform to the medical definition of mental illness, all that is required is that at the commission of the crime the accused was not mentally sound as to be criminally responsible. It must be noted however that even if one is insane for most of the time and at a particular moment he became sane and committed a crime, he will be liable, a situation  lawyers  call lucid interval ( that is a moment one is in control and conscious of himself)

 Intoxication is also a defense whether caused by alcohol or some substance that has soporific effect on the consumer. An intoxicated offender may not be able to differentiate right from wrong or may have irresistible impulse. For intoxication to be used as a defense against a crime it must be involuntary (for example if one is forced to consume an intoxicant or if one consumes an intoxicant without the knowledge of its mentally disabling nature.) Different types of crime exist under the criminal law which cannot be exhausted in this tiny piece of work, and  several other topics shall be treated in subsequent editions.  For questions and comments please contact the address below. or you consult a Lawyer

Nwachukwu holds an LLB Hons  from the University of Lagos, Principal Counsel  at  WILSON LEGAL and Lead Consultant, Divva Consulting, a ‘Think Tank’ Consulting Firm  based in Abuja. You can reach him at  ifdlagos@yahoo.ca 08064281323