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Concept and Basis of Criminal Responsibility

Published online by Cambridge University Press:  07 May 2025

Akinola Aguda
Akinola Aguda*
Affiliation:
a Judge of the High Court of the Western State of Nigeria
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Extract

The upheaval to the political, economic and social setting of the people of this country which has occurred within the past decade or so—and more particularly within the past three years—has made many people call not only for the enlargement of the scope of the criminal law and criminal responsibility but also for harsher and what they regard as more deterrent punishment. Not only in private conversations but also in the local press have people made suggestions with all earnestness that capital punishment should be made available for many more offences, that executions of persons convicted of certain offences should be carried out in the public, and that the punishment for certain offences like “Indian Hemp” offences, motor traffic offences, highway robbery and burglary should be escalated. There is no doubt that the people who made these calls felt genuinely concerned with the public safety but it is clear that such calls have been based on sentiments rather than on established facts, as no one has shown that these harsher and more barbaric punishments would inevitably lead to a reduction in the rate of the particular crime. But our experience of recent points unmistakenly to the conclusion that has been repeated often and often by criminologists all over the world that harsh and barbaric punishments do not necessarily reduce the incidents of crime. I refer in particular to the Indian Hemp Decree, 1969 (1), which prescribes death penalty for cultivating Indian hemp and it is clear that it was after the promulgation of this Decree that there has been a sharp rise in cases of such cultivation at an alarming rates. Similarly, the Western State of Nigeria still born Homicide by Meckless or Dangerous Driving (Summary Trial and Punishment) Edict, 1968 (2), prescribing a minimum of ten years and a maximum of life imprisonment for causing death either by reckless or dangerous driving of a motor vehicle has not led to any decrease in the rate of incidents of that crime.

Information

Type
Premiere Partie: XXth International Course in Criminology
Information
International Annals of Criminology , Volume 10 , Issue 1: Non Institutional Treatment of Offenders , 1971 , pp. 196 - 227
Copyright
Copyright © 1971 International Society for Criminology

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References

(1) Decree No. 19 of 1966. It prescribes a minimum of 21 years imprisonment even though it has been said that on the available evidence, Indian hemp is much less dangerous than opiates, amphetamines, barbiturates and even alcohol : see 1969 Crim. L.R. 57.

(2) Edict No. 7 of 1968.

(3) Law in a Changing Society (1959), p. 165.

(4) See e.g. Chief A.M.F. Agbaje v. Commissioner of Police, Ibadan High Court Suit No. M/22/69 decided on provisions of the Armed Forces and Police (Special Powers) Decree, No. 24 of 1967; and Western State Court of Appeal Judgment in the case : CAW/81/69 dated 27-8-69.

(5) W.T.S. Stallybras, Modern Approach to Criminal Law, p. 406.

(6) Stephen, A. History of the Criminal Law of England, Vol. 2, p. 95.

(7) See for example R. v. Bishop (1880) 5 Q.B.D. 259; Cundy v. Le Cocq (1884) 13 Q.B.D. 207; Parker v. Alder, 1899, 1 Q.B. 20.

(8) (1551) 1 Plow. 1, at 19; 75 E.R. 1, at 31.

(9) (1798) 7 T.R. 509, at 514; 101 E.R. 1103.

(10) Modern Approach to Criminal Law, p. 406.

(11) (1859) 28 L.J.M.C. 216; 121 E.R. 26.

(12) (1861) 30 L.J.M.C. 170; 169 E.R. 1296.

(13) See also R. v. Hibbert (1869) 1 C.C.R. 84.

(14) Embezzlement of Public Stores Act, 1198, s. 2.

(15) See R. v. Prince (1875) 1 C.C.R. 154; R. v. Bishop (1880) 5 Q.B.D. 259; Parker v. Aider (1899) 1 Q.B.D. 20; R. v. Duke of Leinster, 1924, 1 K.B. 311.

(16) (1946) 175 L.T. at p. 307.

(17) See Jerome Hall, General Principles of Criminal Law (2nd ed.), p. 83.

(18) J.W.C. Turner in Modern Approach to Criminal Law, p. 206.

(19) Ratanlal and Thakore, Law of Crimes (21st ed).

(20) Hudson v. Viney, 1921, Ch. 98. at p. 104.

(21) Jerome Hall, General Principles of Criminal Law (2nd ed.), p. 114.

(22) Glanville Williams, Criminal Law (2nd ed.), p. 123.

(23) S. 22 (10) of the Constitution of the Federation of Nigeria, 1963.

(24) Which I shall hereinafter refer to as the Northern States Penal Code.

(25) For convenience my reference in this Paper will be to the Criminal Code, Cap. 42 of the Laws of the Federation of Nigeria, 1958.

(26) R. v. Akerele (1941) 7 W.A.C.A. 56, at p. 59; R. v. Balogun (1942) 16 N.L.R. 75; R. v. Olise, 1961, W.N.L.R. I.

(27) R. v. Adedoyin 1956/56 W.R.N.L.R. 69, at p. 72.

(28) R. v. Ozegbe, 1957, W.R.N.L.R. 152, at p. 154.

(29) (1959) 12 W.A.C.A. 453.

(30) 1961, W.N.L.R. 1, at p. 5. See also R. v. Gordon Kojo and anor. 1958 L.L.R. 69, at p. 71.

(31) General Principles of Criminal Law (2nd ed.), p. 116.

(32) (1875) 1 C.C.R. 154.

(33) 24 and 25 Vic, c. 100.

(34) (1844) 1 Car. and Kir. 399; 174 E.R. 864.

(35) (1859) 1 F. and F. 513; 175 E.R. 832.

(36) See The Sexual Offences Act, 1956, 4 and 5 Eliz. 2, c. 11, 69, sec. 20.

(37) See ss. 271 to 181 which deal with Kidnapping, Abduction and Forced Labour.

(38) Cap. 48 of the Law of Nigeria, 1948.

(39) (1956) L.L.R. 41.

(40) (1942) 16 N.L.R. 99.

(41) I shall discuss the problem of intoxication and criminal responsibility later.

(42) See Elias, The Nature of African Customary Law (1956), p. 141.

(43) (London, 1924), p. 28.

(44) See A.K. Ajisafe, Laws and Customs of the Yoruba People, p. 32.

(45) Stephen, A History of the Criminal Law of England, Vol. 2, p. 95.

(46) Mannhein, The Dilemma of Penal Reform (1939), p. 21.

(47) The Constitution of Nigeria, 1963, sec. 24.

(48) Patrick Devlin, The Enforcement of Morals, 1968, p. 7.

(49) See Blackstone's Commentaries on the Laws of England, Vol. 4, p. 218.

(50) Patrick Devlin, The Enforcement of Morals (1968), p. 23.

(51) See A.W.G. Kean (1937) 53 L.Q.R. 364.

(52) Children and Young Persons Act, 1933, 23 Geo. 5, C. 12, s. 50.

(53) Marsh v. Leader (1863) 14 C.B. (N.S.) 535.

(54) 1951, 2 all E.R. 645.

(55) See X v. X, 1958, Crim. L.R. 805.

(56) 1958, Crim. L.R. 805.

(57) 1959, Crim. L.R. 439.

(58) Kate Friedlander, The Psycho-analytical Approach to Juvenile Delinquency (1949), p. 47-48.

(59) Hermann Mannheim, Dilemma oi Penal Reform (439), p. 194.

(60) Report of the Committee on Children and Young Persons, 1960 Cmd. 1191.

(61) Report of the Royal Commission on Capital Punishment, 1949-53, Cmd 8932.

(62) See J.N.D. Anderson, Islamic Law in Africa (H.M.S.O. 1954), p. 203.

(63) See R. v. Arnold (1724), 16 St. Tr. 695, at p. 765.

(64) (1843) 10 Cl. and F. 200; 8 E.R. 719.

(65) See Waring v. Waring (1848) 6 Moo, P.C. 341, and also Stephen, History of Criminal Law, Vol. 2, p. 157.

(66) The Homicide Act, 1957, 5 and 6 Eliz. 2 C. 11.

(67) Through the combined effect of sections 137 (1) and 140 (3) (c) of the Evidence Act.

(68) Zilboorg, Mind, Medicine and Man (1943) 279.

(69) Overholser, The Place of Psychiatry in the Criminal Law, 16 B.U.L. Rev (1936), p. 329.

(70) White, The need for co-operation between the Legal Profession and the Psychiatrist in Dealing with the Crime Problem. 7 Am. J. of Psychiatry (1927), p. 493.

(71) Zilboorg, op. cit., p. 274.

(72) See R. v. Rivett (1950) 34 Cr. App. R. 87; R. v. Edem Udo Inyang. (1948) 12 W.A.C.A. 5. R. v. Matheson (1958) 42 Cr. App. R. 145, at p. 151.

(73) R. v. Echem (1952) 14 W.A.C.A. 158.

(74) See The Report of the Royal Commission on Capital Punishment (1949-1953) Cmd. 8932, p. 396; and also Neustatter, Psychological Disorder and Crime (London, 1953), p. 18.

(75) See Glanville Williams, Criminal Law (2nd ed.), p. 447.

(76) See Taylor's Medical Jurisprudence (11th ed.), Vol. 1, p. 548.

(77) 1952, 2 Q.B. 626.

(78) See Stapleon v. R., 1952, C.L.R. 358; Jerome Hall, Principles of Criminal Law (2nd ed.), p. 480. See also Norval Morris, “Wrong in the McNaughton's Rules in (1953) 16 Mod. L.R. 435”.

(79) In the case The State v. Kosenatu Atole, unreported, N. I/14C/68, I took the view I have herein expressed. I said “I would find the defence of insanity established if the accused although she knew that according to the law she ought not have killed the deceased, if she nevertheless, by reason of her mental condition, did not know that it was morally wrong of her to do so, or that indeed as in some cases of insanity, that she was under a moral duty to kill the deceased. In such a case I would find that defence established as I would if I find that she did not know that according to the law of the land she ought not to have killed the deceased” : (Judgment dated 8/1/69). The Western State Court of Appeal did not hold this direction to be incorrect : (Judgment in Appeal No. CAW/5/69, dated 26/6/69).

(80) White, The need for co-operation between the Legal Profession and the Psychiatrist in Dealing with the Crime Problem, (1927) 7 A m. J. of Ps. 493.

(81). (1933) 35 C.L.R. 182, at p. 189.

(82) (1915) 24 Cr. App. R. 403.

(83) See R. v. Nasamu (1940) 6 W.A.C.A. 74 where the similarities are pointed out

(84) (1925) 19 Cr. App. R. 50.

(85) (1953) 14 W.A.C.A. 158.

(86) …

(87) For a history of the defence of intoxication, see Singh (1933) 49 L.Q.R. 528.

(88) (1551) 1 Plow. 1, at p. 19; 75 E.R. 1, at p. 31.

(89) 25 Fed. Cas. No. 14, 993 (1828).

(90) Intoxication is not an offence under the Criminal Code but it is an offence under the Penal Code, section 402, under which Code being drunk will therefore be legally wrong.

(91) General Principles of Criminal Law (2nd ed.), p. 531.

(92) (1887) 16 Cox C.C. 306, at p. 308.

(93) 1920, A.C. 479.

(94) A.I.R. 1937 Calcutta 432.

(95) Section 86.

(96) See also Nga Hpeik v. R. A.I.R. 1938 Rangoon 219, to the like effect.

(97) See R. v. Hansen Owarey (1939) 5 W.A.C.A. 66, where the case of D.P.P. v. Beard, 1920, A.C, 479, was followed.

(98) 1961, 3 all E.R. 299.

(99) 1961, 3 all E.R., p. 314.

(100) Darling, Inebriety : A classification (1942) 2 Q.J. Stu. Ale. 678.

(101) Aguda, Principles of Criminal Liability in Nigerian Law (1966), p. 293.