Criminal Responsibility and the Defense in the Nigerian Legal System

The Concept of Criminal Responsibility and the Defense in the Nigerian Legal System

Criminal Responsibility  – The concepts “criminal responsibility” and the “Defense of Insanity” are very peculiar and important concepts in every legal system inclusive of the Nigerian legal system. Over the years, there has been much discussion on the meaning of these concepts.

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The precise definition of criminal responsibility varies from place to place but, in general, to be responsible for a criminal act implies the perpetrator must understand what they are doing and that it is wrong.

This concept like most concepts operational in the Nigerian legal system today was derived from the English legal system which was predicated on common law rules and the Rules of Equity. The idea that a perpetrator of an act must understand that what he is doing is wrong is embodied in the latin maxim “actus non facit reum nisi mens sit rea” which means that the intent and the act must concur to constitute a crime. This maxim it seems made its first appearance in the common law case “LEGES HENRICI PRIMI v. 28”2

The Nigerian concept of criminal responsibility today is predicated on tow distinct source – “The English common law and the criminal code” At common law, there is an irrebuttable presumption that practically every common law offence requires proof of quality mind but in the Nigerian legal system, the doctrine of mens rea is always a rebuttable presumption3. This signifies that despite the fact that some doctrine importation has been made from the English law into the Nigerian legal system, there are some significant discrepancies between the two legal systems.

On the other hand, the origin of the insanity defense comes from the 1843 case of Daniel M’ Naghten, who tried to assassinate the Prime Minister of Britain and was found not guilty because he was insane at the time4. But before the establishment of the rule in M’ Naghten’s case, other cases existed which bothered on the defense of insanity and these cases include “the trial of Edward Arnold (“Crazy Ned”), 1724”, where it was stated thus –

“wild beast test: totally deprived of his understanding and memory, and does not know what he is doing, no more than an infant, than a brute, or a wild beast, such a one is never the object of punishment.”

The trial of James of 1800 where Thomas Erskine argued that delusion is the true character of insanity. And the case of Edward Oxford attempts to assassinate Queen Victoria, 1840- where the defendant claimed that some controlling disease was the acting power within him which he couldn’t resist5. But it was in the later case of R v. Daniel M’ Nagh ten of 1843 that the standard rule of the defence of insanity was established and later cases were decided based on these rules. Much later, in 1953, the Royal Commission on capital punishment declared the M’ Naghten test of responsibility as defective and the recommendation was made to enlarge the rules by adding an exemption from responsibility in the case of one who was, by reason of his mental diseases incapable of preventing himself from committing an unlawful act6.

In recognizing the place of criminal responsibility and the defense of insanity under the Nigerian legal system, S.28 of the criminal code provides that. “A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in a state of mental disease or natural mental infirmity as to deprive him of capacity to know that he ought not to do the act or make the omission7.”

Statement of the Problem

Inspite of the notorious nature of these concepts (criminal responsibility and the defense of insanity) in our legal system, many lawyers still do not know the right steps to take in the institution of the insanity defense in a law suit. On the other hand, most judges do not know what to look out for when such defense is claimed.

It has been observed that most persons who commit crime do so in all mental knowledge of their actions and when they are apprehended, they hide behind the veil of mental disorder or the influence of alcohol in order to escape the Justice of the law. This leads to a difficulty in drawing the line between “the responsible” and “the not responsible” by Judges. Consequently, insanity defense fail to nail the culprits, thereby, letting them back into the society to cause great havoc.

Objectives of the Study

This long essay is a very elaborate and important one which seeks to achieve the following:

•             To critically analyze and appraise the concept of criminal responsibility and the defense of in the Nigerian legal system.

•             To show the fundamentality of the knowledge of the aforementioned concept in the Nigerian legal system.

•             To help in the understanding of the concepts and how they operate under the Nigerian legal system.

•             To highlight and discuss the various categories of insanity.

•             To highlight and discuss other related defenses similar to insanity.

•             To further show the standard of the proof of insanity under the Nigerian legal system.

•             To bring to the fore how those concept operate in other jurisdictions.

•             To show the similarities and difference of the operation of these concepts within the Nigerian legal system and other legal system.

•             These research works will also proffer possible recommendations that may help to reduce the problems related to the application of this concept.

Research Question

This long essay seeks to answer the following question:

•             What is criminal responsibility?

•             What is the defense of insanity?

•             How do these concepts operate under the Nigerian legal system?

•             What is the importance or their knowledge to the Nigerian legal system?

•             What are the different categories of insanity?

•             What is the relationship between the Nigerian concept of criminal responsibility and defense of insanity and that of other jurisdiction?

Scope of the Study

The geographical scope of this study will be mainly the country Nigeria. But the jurisdiction of some other countries such as Britain, America and Canada will be looked into to see the similarities and differences of the application of these concepts between their jurisdiction and that of Nigeria.

In terms of the subject matter of the long essay, the scope shall basically concern the concept of criminal responsibility and the defense of insanity in the Nigerian jurisdiction. However, the research on these concepts cannot be treated in isolation; therefore, references may be made of other aspects of law from time to time to drive home our point.

Significance of the Study

The analysis and critical of the concepts in this long essay will go a long way to bring to the fore the fundamentality of the knowledge of the concept in our legal system. Secondly, this study will give a great insight on what to look out for in suits bothering on criminal responsibility and the defense of insanity. Thirdly, this study will go a long way in helping in the detection of crime and good administration of justice under the Nigerian legal system.

Limitation of the Study

Though this work is essential for scholarly and degree awarding purpose, the success of this work will be greatly hampered by a number of factors.

Firstly, funding will be a problem due to the high cost of living experienced in the Nigerian economy today. This is because the cost of gathering the sources of this work from the library and other locations is high financially speaking. Not only that, much fund will be needed to access the internet for relevant materials and possibly download same, and these will definitely be a problem. Also, it will cost much money to type and print the work.

Secondly, there is not enough time for the writing of this long essay. The unavailability of time will pose a big problem in the proper analysis and completion of this long essay as everything will be done hurriedly to meet up with the deadline of submission.

Thirdly, the semester work currently going on along with the witting of this long essay is also another big problem. This is because the works (i.e lectures and the long essay) cannot be effectively combined. A greater concentration or attention on one will mean that the other will suffer. This, thus, will create a dilemma as to which to concentrate more on.

Research Methodology

This long essay will be based on doctrinal methodology. Reliance would be on primary and secondary sources of law. However, heavy reliance would be made on the primary sources such as text books and journal articles written by various legal writers and judges would also be relied upon for the long essay. Also, reference sources such as newspapers, magazines, periodicals and dictionaries will come in handy where necessary to ensure that this work is a success.

Of importance also is the internet source. This will be made use of due to the invaluable wealth of information available in the internet. Due to the fact that this is the age of information communication technology (I.C.T), many authors now upload their writing works on the internet, and this will be greatly exploited in the course of writing this work.

CONCEPT OF CRIMINAL RESPONSIBILITY

Meaning and Nature of Criminal Responsibility

The concept of criminal responsibility has been defined differently by different people. However, criminal responsibility generally can be said to mean “to be responsible for a criminal act whereby the perpetrator must understand what they are doing and that it is wrong.”

Over the years, many other definitions of this concept has been proffered. Under the Nigerian legal system for one to be criminally responsible for an act he must:-

a.            Have the capacity to understand what he is doing.

b.            Capacity to know that he ought not to do the act or make the omission; and

c.             Capacity to control his actions.

Moreso, the penal code provides in respect of criminal responsibility that a person is presumed, unless the contrary is proved, to have knowledge of any material fact if such fact is a matter of common knowledge.

Under the Nigerian jurisprudence, one cannot be punished for an act or omission of such an act is not imbedded in any written law operational in Nigeria. This principle is imbedded in the latin maxim-“Nulla poena sine lege” which means there can be no punishment without a written law. Also, one cannot be criminally responsible for an act or omission unless such a person has attained a certain age. Under the criminal code, a person under the age of seven is not criminally responsible for any act or omission3; Moreso, a person under the age of twelve Is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission; and a male person under the age of twelve is presumed to be incapable of having carnal knowledge of a person.

In the case of NKWUDA V. THE QUEEN5, Wali J.S.C., stated thus:-

“Be it noted that mere absence of motive for a crime however atrocious it may be, in the absence of proof of insanity, or evidence of drunkenness that produces such a degree of madness, even for a time, as to render the accused incapable of distinguishing right from wrong cannot avail the appellant of the defense provided in section 28 and 29 of the criminal code.”

For an adult to be criminally responsible for an act or omission, he must have a mental knowledge of his actions. That is to say the act the reus must correspond with the mens rea as they are necessary elements for the valid constitution of criminal responsibility.

Meaning of Crime

Crime is a peculiar concept which is known all over the world and notorious in every legal system. Due to the vast nature of this concept, its definition is relative depending on what is obtainable in a given legal system.

Eminent learned writers on the common law have sought with varying results to postulate such a definition. For example, Blackstone defined crime as “an act committed or omitted in violation of the public rights and duties to the whole community considered as a community.”

Professor Kenny, an English scholar also defined crime to mean “a wrong whose sanction is punitive and is in no way remissible by any private person but is remissible by the crown alone if remissible at all.”

This concept was also defined by another scholar as “an act or omission that constitutes an offence that may be prosecuted by the state and is punishable by law.8 It is also an act or omission that violates a law which results in a punishment.9 It can be said to be an illegal act, omission or event, whether or not it is also a tort, a breach of contract or a breach of trust, the principal consequence of which is that the offender, if he is detected and it is decided to prosecute, is prosecuted by or in the name of the state, and if he is found guilty.

According to the Blacks Law Dictionary, crime is defined as social harm that the law makes punishable; the breach of a legal duty treated as the subject matter of a criminal proceeding.10 By another author, it was defined as an act or omission prohibited by law that may be prosecuted by the state, if one is found guilty of violating the law, the individual may be formally punished.11 Crime can also be said to mean a wrong which affects the security or well being of the public generally so that the public has an interest in its suppression.12 Some other author has also proffered the psychological and sociological meaning of this concept. In my opinion, crime can be said to be an act or omission which a law operational in a given society has proclaimed to be a crime and in which the punishment has be provided there in.

Under the Nigerian jurisprudence, crime is defined in its criminal code as an act or omission which renders the person doing the act or making the omission liable to punishment under the code, or under any act, or law.

Who is a Criminal?

A criminal can be said to be a person charged with or convicted of a crime.14 According to the Longman dictionary, a criminal is someone who is involved in illegal activities or has been proved guilty of a crime.

In the commission of a crime, there are usually the principal offenders and the secondary offenders. The principal offenders are usually the ones whose act is the most immediate cause of the actus reus. It is the principal offender who makes the knife wound which causes the death of the victim in a crime of murder or who snatches the bag in a crime of theft.

Secondary parties are usually those who aid, abet, counsel or procure the commission of a crime. Every person who actually does the act or makes the omission which constitutes an offence, or any person who does or omit to do an act for the purpose of enabling or aiding another person to commit an offence, or any person who aids another person in committing the offence, or any person who counsels or procures any other person to commit the offence shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it.17 Moreso, where two or more persons have a common intention to prosecute an unlawful purpose and further carries it out, each of them is deemed to have committed the offence.18 Where a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone.19 In the case of AGWUNA V. A.G OF THE FEDERATION, lguh, J.S.C., in interpreting section 7 of the criminal code stated thus:

“It is certainly not the law that only persons who manually write or sign a forged document that may be convicted for the forgery of the document. The law is settled that all persons who are participis criminis whether as principals in the first degrees or accessories before or after the fact to a crime are guilty of the offence and may be charged and convicted with the actual commission of the crime.20

This does not mean that for the fact that one was at the scene of crime or exhibited some element of callousness at the scene of crime that such a person was a party to the crime. It was held in the case of MOHAMMED V. STATE21 that mere presence and callousness at the scene of a crime does not as a matter of law render the person so present or so callous guilty of a crime.

Offenders can also be classified based on their degree of participation in a crime and there are five degrees of this classification.

 Principal in the First-Degree

A principal in the first degree is the actual perpetrator of the offence whether he committed it with his own hands or with the hands of an innocent agent like an infant or a lunatic. Such offender need not be present when the offence was consummated.

 Principal in the Second-Degree

A principal in the second degree is a person who is near enough to aid and abet or give assistance to the person actually committing the crime. He need not be an eye-witness or ear-witness but he must be actually or constructively present as to be able to assist those committing the offense example, to help to carry away the stolen property or corpus delicit or to keep watch and alert the perpetrators of the approach of police. Mere presence of course will not make a principal in the second degree if he took no part in assisting the offenders in the commission of the offense.

Accessory Before the Fact

An accessory before the fact is the person who counsels or procures or instigates the commission of a crime. He need not be present at the time of the offence, it is enough if he was the instigator. An instigator will be liable if the execution of the offence he counseled or procured differed in respect of time, place or manner. But an accessory before the fact will not be liable if an entirely different offence is committed from that which he counseled or instigated.

 Countermanding

If an accessory before the fact repents and before the offense is committed countermands his orders in very clear terms but the principal nevertheless commits the offense then the instigator will not be liable.26

Supply of Tools or Material for the Commission of the Offence.

Where a person supply tools, material or ammunition used for the commission of crime, such is seen in law as aiding and abetting crime, such a supplier is liable to conviction. In the case of R.V. BAINBRIDGE 27, the appellant helped some thieves to purchase oxygen-cutting equipment when he knew that the equipment would be used by the thieves to break into a building and steal from there. The court held that he was an accessory before the fact of the offense of office breaking and was liable for conviction.

Nature of Crime

Crimes are actions governed by criminal law and criminal laws reflect the moral and ethical beliefs of the society. This is to say that criminal wrongs and moral wrongs are related yet distinct in their similarity.28 For example, murder is not only forbidden by the criminal law but also by the moral law. Therefore, the proposition that crime is a moral wrong may have this measure of truth. Despite these similarities, there are still elements of distinction between a criminal wrong and a moral wrong. For instance, a crime of strict liability can be committed without moral wrong.29 And a crime is being taken care of by a court with punishment attached to it while a moral wrong is only subject to public scrutiny without any specified punishment for such wrong. Another is, where there is a legal duty to do what is legal, there is no legal duty to do what is morally right.30 This was so held in the case of ALIMI AKANNI AND ORS V. R.31 where a group of young men watched an old lady die without volunteering to help rescue her from burning fire, the moral deviants were freed from legal sanction in spite of the moral depravity of their conduct.

There is also a relationship between a tortuous wrong and a criminal wrong in the sense that in every tort and in every crime, there is always a wrongdoing and one act can constitute both crime and tort, for instance, murder, false imprisonment and assault all carry both tortuous and criminal liability. There is further overlap between a crime and a tort under section 261 of the criminal procedure law of Lagos State, which provides that where in a charge of stealing or receiving stolen property, the court is of the opinion that the evidence is insufficient to support the charge but that it establishes wrongful conversion or detention of property, the court may order that such property be restored, and may also award damages.32 despite the above mentioned similarities, a tort is different from a crime in the following ways:

a)            Tort being a civil action is governed by civil procedure and is heard in the civil courts (county court or the High Court of Justice); while criminal prosecutions are governed by a different form of procedure and are tried in the criminal courts.

b)            The object of criminal prosecution is to punish a person who has been duly tried and convicted of a criminal offence. The purpose of an action in the civil courts is to obtain compensation for the loss sustained by the plaintiff.

c)            While the standard of proof in a criminal action is beyond reasonable doubt; the standard of proof in tort is on the balance of probabilities.

d)            A crime is an offense against the society; while a tort is a wrong against a particular individual.

Under the Nigeria Jurisprudence, an act cannot amount to a crime if it is unknown to any written law operational in Nigeria at the time the act was committed.This point of law was further buttressed by Aderemi J.C.A. in the case of IFEGWU V. F.R.N.where he stated that it is sacrosanct that no person shall be liable to be tried or punished in any court of the land except under the clear and unambiguous provisions of a written law. Hence, where a person commits an act detrimental to the state or an individual and such act is not recognized by any written law of the land, such an act, though wrong does not constitute a crime and such a person cannot be sued in any court of the land. In addition, the actus reus must correspond with the mens rea. This is embedded in the latin maxim- “actus non facit  reum, nisi mens sit rea” which means- an act does not make a person legally guilty unless the mind is legally blame worthy.35

For the prosecution to obtain a conviction, they must prove the existence of all elements of a crime which elements are that:

a)            He has caused a certain event or that responsibility is to be attributed to him for the existence of a certain state of affairs, which is forbidden by criminal law; and

b)            He has a defined state of mind in relation to the causing of the event or the existence of the state of affairs.For instance, if ‘P’ killed ‘D’, it is clear that he has caused an actus reus but he cannot be convicted if it is clear that he had knowledge of his actions.

Furthermore, in proving all material elements such proof must be beyond reasonable doubt.Motive on the other hand is not an element of any crime, however, it is always relevant evidence which can be used to prove intent or another degree of mens rea.This is in accordance with section 24 of the criminal code which provides that unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.

In a strict liability crime, the mental knowledge (mens rea) of the act is not required, actus reus only is enough for conviction. That is to say that the elements of mens rea and actus reus are only required in a crime of non-strict liability nature. These two elements of crime shall now be looked into one after the other.

Actus Reus:

Actus reus refers to the actions or the failure to act (omission) of the accused.The actus reus is not merely an act, it may consist in a state of affairs not including an act at all. For example, being in charge of a motor vehicle on a road while unfit to drive through drinks or drugs against the road traffic Act. For as long as the accused is in-charge of the vehicle while unfit, the actus reus is committed.An actus reus must produce a particular result. This leads to the classification of actus reus into ‘result crimes’ and ‘conduct crimes’.

In result crimes, the law is interested only in the result of the act committed while in conduct crimes the law is interested in the doing of the act which is prohibited by law.

If the actus reus of the crime is an act, it must then be proved that the accused actually did the act. It is not enough to prove that the accused did the act, the prosecution must also prove that the accused did the act voluntarily.Only a voluntary act or omission can qualify as an actus reus.For example, where ‘A’, a military soldier engages in the teaching or demonstrating the use, application, or making of firearm, explosive, or incendiary device or a technique capable of causing injury or death and which eventually leads to the death of a soldier, such an act is seen to be an involuntary act. In BRATTY V. A.G OF NORTHERN IRELAND45, Lord Denning stated that the requirement that it should be a voluntary act is essential, not only in a murder case, but in every criminal case.

Mens Rea

This means guilty mind. It also means criminal purpose and the knowledge of the wrongfulness of conduct. Mens rea was defined in DPP V. MAJEWSKI as the state of mind stigmatized as wrongful by the criminal. The actus reus of a crime may come in different ways. In murder, it might be the stabbing of the victim. In theft, it might be defendants taking of money from a wallet. Actus reus does not only constitute the doing of an act but also the omission to do an act. However, the general rule is that, a person is not guilty for omitting to do something. This rule was applied in the case of WYLCHAUON D.C. V. NATIONAL RIVERS AUTHORITY where WATKINS L.J. held that failing to prevent or take steps to clear a blockage in a system for which it was responsible did not constitute an offence. However, there exist exceptions to this rule which one of them is where one has failed to perform a duty one has voluntarily undertaken. In the case of INSTAN , where a niece had failed in her duty to look after an aunty. Lord Coleridge held that she was under a moral obligation to the deceased from which arose a legal duty towards her, that legal duty she has willfully and deliberately left unperformed with the consequence that there has been an acceleration of the death of the deceased owning to the non-performance of that legal duty. Another case in which the court held the omission to do an act to constitute an offence is the case of STONE V. DOBNSON where the court held a man and his mistress guilty of manslaughter when the victim died after they had failed to summon medical attention.  Also, liability can arise by failure to perform a duty imposed by law.  This can be seen in the case of GIBBONS and PROCTOR where the court held that a father was guilty of murder when he starved his child to death. Moreso, liability can be incurred by omission where one fails to perform a duty imposed by contract. In the case of R. V. PITTINOOD where WRIGHT L.J. held that the accused owed a duty to the victim and was liable for gross and criminal negligence for failure to open a level-crossing gate as an employee of a railway company. Liability can also arise where a person has a right of control over the action of another. He is liable for failure to exercise that control when the other commits an offense. In the case of Tuck V. ROBSON, a landlord did not require his customers to leave after closing time and so the customers were liable for consuming alcohol after hours but the court held that the landlord was also guilty of aiding and abetting the offense.

Other instances where one can incur liability by omission is where the language of a statute can be read as imposing liability for not doing something and where one unwittingly creates a dangerous situation which one is under a duty to put right and he does not

Mens Rea

This means guilty mind. It also means criminal purpose and the knowledge of the wrongfulness of conduct. Mens rea was defined in D.P.P V. MAJEWSKI as the state of mind stigmatized as wrongful by the criminal law which when compounded with the relevant prohibited conduct, constitutes a particular offence. The words ‘knowingly’ and ‘willfully’ are terms which give rise to mens rea in a legislature. Where an offence requires mens rea, the prosecution must prove that the accused had mens rea at the time he did the act which caused the actus reus.In order to determine whether mens rea, that is to say, guilty mind or intention, is an essential element of the offence charged, it is necessary to look at the object and terms of the law which creates the offense.

In many offenses where the accused’s conduct is required to produce a particular consequence, liability can be based either on his intention or his recklessness as to that consequence. Where the definition of the actus reus of the offense charged requires the accused‘s conduct to produce a particular consequence. He has a sufficient mental state as to that consequence if he intended it to occur. There are two types of intention with regard to prohibited consequences: ‘Direct’ and ‘Obilque’ intention.

 Direct Intention

Intention was defined by the court of Appeal in Mohan as a decision to bring about, insofar as it lies within the accused power (a particular consequence) no matter whether the accused desired that consequence of his act or not. Such an intention is described as a direct intention. For example, a person has direct intention to kill if he fixes at someone whom he believes to be outside the normal range of his gun in an endeavor to kill him provided that he has decided to bring about a particular consequence, insofar as it lies within his power, a person acts with a direct intention in relation to it even though he believes he is unlikely to succeed in bringing it about.

 Oblique Intention

A consequence of a person’s conduct is said to have been obliquely intended by him when, although he had not decided to bring it about, in-so-far-as it lay with his power, it was foreseen by him as a certain probable side effect of something which he did aim to achieve.

The essence of mens rea is that criminal liability should be imposed only on persons who are sufficiently aware of what they are doing, and of the consequences it might have, that they can fairly be said to have chosen the behavior and its consequences. Mens rea can be detected in the following: intention, negligence, recklessness. In the case of murder, its mens rea is the intention to kill or commit grievous bodily harm. In QUEEN V. ONORO, where the accused struck a blow with a matchet, which cut through the left shoulder down to the root of the neck and spilt the bone, round by the spinal cord, having cut through the muscles and nerves. BAIRAMAIN, F.J. held that the accused has the intention to kill.

In the case of theft and robbery the mens rea there is the intention to take another’s property.

The Actus Reus/Mens Rea Combination

In order to constitute a crime, the actus reus and the mens rea must coincide, in point of law and in point, of time.It is the coincidence of ‘actus reus and’ ‘mens rea’ which constitutes and justifies criminal liability; The temporal coexistence of ‘actus reus’ and ‘mens rea’. An “actus reus at one moment and ‘mens rea’ at another do not standardly combine to form criminal liability. For example, if, on Monday, I conceive an intention to kill someone but think better of it on Tuesday, and then accidentally run that person over, I am not guilty of murder. Even if I still have the intention. I will not be guilty if the killing is a genuine accident. Secondly, the idea of coincidence implies that there mental elements with respect to each aspect of the offence.

Where in a given situation, there were series of unlawful acts leading to the death of another, whereby the later or recent development was the actual act which caused the death of the deceased, what will be looked at before determining whether the accused is liable for murder is the intention or mens rea at the time of the first attack. For example, where a man struck his wife, knocking her clown unconscious. He then attempted to lift the body away from the scene but she slipped from his grasp, hit her head on the pavement and subsequently died from a fractured skull. In this situation the act and the mental state do not have to coincide in point of time. The accused is to be held liable.

Things would have been different if at the time the second occurred he was trying to place her in a comfortable position or take into the house and not dispose of her to evade liability.

Categories of Crime

At common law, crime is either classified as treason, felony or misdemeanor. Originally, the distinction between felony and misdemeanor was a distinction between serious and minor offenses. As time went on, all distinction between felony and misdemeanor were abolished and all offenses were conveniently called “offenses”. The criminal law Act 1967, made another distinction between serious and minor offenses which it called “arrest able” and “non-arrest able” offenses. Arrest able offense is any offense for which the sentence is fixed by law or for which a person not previously convicted may under or by virtue of any enactment be sentenced for a term of five years or might be so sentenced but for the restrictions imposed by S. 33 of the magistrates’ courts Act 1980 and to attempt to commit any such offense.

For procedural purposes crimes were classified as “indictable” and “summary” offenses. Summary offenses are offenses which may by tried by courts having summary jurisdiction and the trial is conducted by magistrates without a Jury. A summary offence on the other hand is an offence which if committed by an adult, is triable only summarily.64

This classification also reflects a distinction between minor and serious offences. A committee was later raised and it recommended a three fold classification of offences which are:

a)            Offences triable only on indictment

b)            Offences triable only summarily; and

c)            Offences triable either way.65

Under the Nigeria legal system criminal offences are classified under the criminal code operational in southern Nigeria in terms of their gravities. Their classification includes felony, misdemeanor and simple offences.

1. Felony:

According to section 3 of the criminal code of southern Nigeria, a felony is an offence which is declared by law to be a felony.66 It is a crime, which on conviction the person found guilty may be punished without prove of previous conviction with death or by imprisonment for three years or more. In the words of BRETT, F.J.

“Where one knows that another has a settled intention to commit felony and the former having it in his power to stop the commission of such felony and did not, shall be liable to conviction.”67

Sections 410-417 of the code also stipulates crimes which constitute felony.

2. Misdemeanor

A misdemeanor is an offence, which on conviction; a person may be punished by imprisonment for not less than six months but not more than three years.

3. Simple Offence:

A simple offence is an offence which is neither a felony nor a misdemeanor. It is just any category of offence which on conviction a person cannot be sent to terms of imprisonment up to six months.

For procedural purposes, offences are classified into indictable offences. In my opinion, this classification is derived from the word “indictment”. Indictment means a formal charge or accusation of a serious crime. In the case of ADAMU V. GWA DABAWA, it was held that a person who has not committed a crime is not indicted.

Under the penal code, which is operational in the Northern Nigeria, indictable offences are called compoundable offences. An indictable offences is an offence which on conviction may be punished with a term of imprisonment exceeding two years; or on conviction may be punished by imposition of a fine exceeding N400; and is not declared by the written law creating it to be punishable on summary conviction.

A non-indictable offence is an offence, which on conviction may be punished with a term of imprisonment of up to two years, or could be punished by imposition of fine up to N400. Generally, all offences declared by written law to be punishable on summary conviction are regarded as non-indictable offences. For instance, the offence of contempt of court.

Under the penal code, offences can further be divided into offences relating to religion (chapter XVI), offences relating to ordeal, witchcraft and Juju (chapter XVII), offences affecting the human body (chapter XVII), offences against property (Chapter XIX) and offences relating to marriage and incest (Chapter XXII).

UNDERSTANDING THE DEFENCE OF INSANITY

 The Meaning and Nature of the Defence of Insanity

According to the Blacks Law Dictionary, insanity is any mental disorder severe enough that it can also be said to mean the state of being seriously mentally ill. The insanity defense comes in where an individual is unable to detect the wrongfulness or rightness of his action. This defense is an affirmative defense alleging that a mental disorder caused the accused to commit the crime unlike other defenses, a successful insanity defense results not in acquittal but instead in a special verdict (“not guilty by reason of insanity”)

The insanity defense basically reflects the society’s belief that the law should not punish defendants who are mentally incapable of controlling their conduct. it has for entries been recognized that if a person was, at the time of his unlawful act, mentally so disordered that it would be unreasonable to impute guilty on him, he ought not to be held liable for conviction and punishment.

The first famous test for insanity defense as earlier stated in the chapter one of this work was first initiated in the chapter one of this work was first initiated in the English case of Daniel M’ Naghten 18436 where the presiding judge, lord Tindal stated that the question to be asked is whether the prisoner had or has not the use of his understanding, so as to know that he was doing a wrong and wicked act. The accused was acquitted on the basis of not guilty by reason of insanity. This led to the issue of insanity being debated in the House of Lords. As a result, five questions were put to the judge the answers to questions two and three form the basis of the “M” Naghten rules” by which lack of criminal responsibility is tested. And these questions are as follows as delivered by Lord Tindal C.J.

“…What are the proper questions to be submitted to the jury, where a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of crime, and insanity is set up as a defense? And, thirdly in what terms ought the question to be left to the Jury as to the prisoner’s state of mind at the time when the act was committed?”7

In recognizing the place of the defense of insanity under the Nigeria legal system, section 28 of the criminal code or omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.8  A person whose mind, at the time of his doing or omitting to do an act is affected by delusions on some specific matter or matters but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to same extent as if the real state of things has been such as was induced by the delusions to believe to exist.

Morgan, J. while making reference to verity CJ’s judgment in the case of OMNI defined the words “Natural mental infirmity” as a defect in mental power neither produced by his own default nor the result of disease of the mind. However, mental infirmity which is self induced is not natural and is not a defense of insanity under the provision o f section 28 of the criminal code. More so, section 27 of the criminal code provides that every person is presumed to be of sound mind, and to have been a sound mind at any time which comes in question, until the contrary is proved. It was also held Per Onu, J.C.A. that the duty to decide whether the appellant is of unsound mind or not is that of the trial judge who by law is not bound by the certificate of the medical officer to the contrary although naturally, great weight ought to be attached to the medical opinion. Under the Nigerian legal system, certain rules have been laid to help ascertain the soundness or unsoundness of the mind of the accused. These rules were laid down by verity C.J in the case of Rex V. and they are as follows. First, it must be shown that the prisoner was, at the relevant time, suffering either from ‘mental disease’ or from ‘natural mental infirmity’ as we have interpreted its meaning. Then it must be established that the mental disease, or the natural mental infirmity, as the case may be, was such that, at the relevant time, the prisoner was, as a result deprived of capacity.

a)            To understand what he was doing; or

b)            To control his actions, or

c)            To know that he ought not to do the act or make the omission.

It must further be remembered that if the defense be one of partial delusion, the provisions of the second paragraph to section 28 of the criminal code are applicable and that they are similar to the rules in M’ Naghten’s case as to delusions.

The key element of the defense of insanity is the admission by the appellant that he committed the offence but that his liability ought to be mitigated by reason of insanity.

Categories of Insanity

There are five different ways in which a person mental condition may affect his responsibility for his conduct.

Firstly, he may perform a prohibited act in a state of impaired consciousness due to some mental condition or internal cause. In such a condition his act is involuntary and he is referred to as an automaton.

Secondly, he may be conscious and perform willed bodily movements which constitute the actus reus of an offence but due to his mental condition he may not know or understand what he is doing.

Thirdly, he may be conscious and able to comprehend what he is doing but due to his mental condition be unaware that it is wrong.

Fourthly, he may know what he is doing and that it is wrong but due to his mental condition he may not be able to control what he is doing.

Fifthly, he may know what he is doing and that it is wrong but due to his mental delusional state he may believe that his act is appropriate. The above conditions of insanity shall now be narrowed into 3 categories.

Disease of the Mind

Disease of the mind can be said to be any disease which produces malfunctioning of the mind.16 Arteriosclerosis, a tumor on the brain, epilepsy, diabetes, all physical produce the relevant malfunction. A malfunctioning of the mind is not a disease of the mind when it is caused by some external factor, for example, a blow on the head causing concussion, the consumption of alcohol or drugs or the administration of an anesthetic. In R.V. KEMP the defendant was charged with causing grievous bodily harm to his wife. He suffered from Arteriosclerosis which had not given rise to general mental trouble but caused temporary loss of consciousness during which state the attack was made. It was conceded that the accused did not know the nature and quality of his act and that he suffered from a defect of reason. It was argued that if a physical disease caused the brain cells to degenerate then it would be a disease of the mind but until it did so, it was said, this temporary interference with the working of the brain was like a concussion of something of that nature and not a disease of the mind. Delving, J. rejecting the argument held thus:-

“The law is not concerned with the brain but with the mind, in the sense that ‘and’ is ordinarily used, the mental faculties of reason, memory and, understanding. If one reads for ‘disease of the mind’ ‘disease of the brain’ it’ would follow that in many cases please of insanity would not be established because it could not be proved that the brain has been affected in any way, either by degeneration of the cells or in any other way. In my judgment, the condition of the brain is irrelevant and so is the question of whether the condition of the mind is curable or incurable, transitory or permanent.”

Lord Denning in BRATTY V.A.G FOR NORTHERN IRELAND put forward his own view of the disease of the mind. He opined that any mental disorder which has manifested itself in violence and is prone to reoccur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital, rather than be given an unqualified acquittal.

Where on a criminal charge, it appears that, at the time of the act or omission giving rise to offence alleged, the accused was laboring under a defect of reason owning to a disease of the mind so as not to know the nature a quality of his act, or if he knew this, so as not to know that what he was doing was wrong, he is not regarded in law as responsible for his act.

Uncontrollable Impulse

One of the major criticisms of the M’Naghten rule is that there is no provision in them recognizing the uncontrollable impulse. In practice, it is always difficult to distinguish between uncontrollable impulse resulting from a disease of the mind and one which is as a result of ordinary passion, which the law should not countenance. Insanity affects not only the intellectual faculties but also the whole personality of the insane person including the will and the emotions. The criminal code recognizes the defense of uncontrollable impulse in appropriate cases as provided in section 28 of the code which states that a person is not criminally responsible for an act or omission he is in such a state of mental disease or natural mental infirmity as to deprive him… of capacity to control his action.

In the case of ECHEM V. THE STATE, the accused who was charged with murder put up a defense of insanity resulting from an injury which he had earlier sustained. The doctor who gave evidence certified that the injury sustained by the accused was likely to have affected his brain in a way that whenever the accused had attacks of mental disorder, he was unable to control his acts to such a degree as to amount to uncontrollable impulse. The doctor added that the accused might have known what he was doing was wrong but that he was not able to control his actions when he had an attack. The accused was found legally insane. However, the defense of uncontrollable impulse is not provided for under the penal code, therefore, uncontrollable impulse will not be a defense under the penal code.

Insane Delusions

A delusion is a falsely held belief inaccessible to reason and which represents a departure from previously held patterns of belief and which exist out of context with those of the culture from which the subject derives.

Under the M’Naghten rules, if a person commits an offence under an insane delusion and he is not in other respects insane, he is to be considered in the situation as  responsibile as if the facts with respect to which the delusion exist were real. The second part of section 28 provides that “A person whose mind at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the provision of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was included by the delusion to believe to exist. The frame of mind which gave rise to such belief may be regarded as an unsound state of mind but does not necessarily arise from mental illness or natural mental infirmity. In the case of NWABO”. STATE, Iguh, J.S.C. Opined

“It therefore seems to me plain that a delusion which has no causation in mental disease or natural infirmity does not afford any defense to an accused person under the provisions of section 28 of the criminal code under consideration. Accordingly, the defense of delusional responsibility cannot in law be available to an accused person. So, too, a defense founded on witchcraft or superstitions belief cannot afford a legal defense under the criminal code”.

According to Karibi Whyte, if a person commits an offence under an insane delusion, which is not applicable to this case, and is not in other respects insane, he must be considered in the same situation as to responsibility as if the facts with respects to which the delusion exists were real. Tolling the same line, Obaseki, J.S.C stated “that there is no doubt that the pain from the leg may have temporarily caused the delusion which afflicted him. Be that as it may, he is liable to the same extent as if what he believed in his state of mind unaffected by delusion.

In order, therefore, to properly appreciate the delusion part of S.28, and to determine their legal consequence, it is necessary to imagine what legal consequences those facts would, as real, come to. If they, as real, would not avail him, then he takes the legal responsibility for his actions. Where, the defense is that of partial delusion, the provisions of second, part of section 28 which are similar to the rules in M’Naghtens case are applicable.

In order to succeed in the defense of insane delusions, the accused must produce evidence that at the time of his acting or omitting to act that he was suffering from delusions on some specific matter or matters, if the matter or matters of his false belief are true, they would have justified his act or omission. In the case of UDOFIA V. STATE, Obaseki J.S.C stated that an accused person affected by delusions can only be relieved of criminal responsibility:

1.            If at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, of capacity to control his actions or of capacity to know that he ought to do the act or make the omission; or

2.            Where he has a valid absolute defense at law, i.e., under the constitution. This is illustrated by the classic example given by Fatayi Williams, C.J.N. in NGENE ARUM V. STATE where he said that if an accused person under the influence of his delusion supposes that another man was going to kill him and he then kills the man believing that he did so in self-defense, he would be exempted from punishment for the killing. This exemption from criminal liability is given by section 30(2) (a) of the 1999 constitution and section 286 of the criminal code cap 30 laws of Eastern Nigeria.

There is a similarity between the defense of insane delusions and the defense of mistake of facts in that in both cases, if the state of things is erroneously believed is true that would have justified the accused’s alleged act or omission. But the two defenses are different in that insane delusion deals with the question of partials insanity due to some abnormality or defect in the brain whereas a perfectly normal person may suffer from a mistake of fact.

The Proof of Insanity under the Nigerian Law

Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question until the contrary is proved. Accordingly, there is no duty on the prosecution in criminal cases to establish what the law presumes in its favor, that is to say that, the sanity of an accused persons. On the contrary, where an accused person pleads insanity or insane delusion as a defense to a criminal prosecution, three is a duty and the onus is on him to rebut this primary presumption of law as to his sanity and to establish his insanity or insane delusion as the case may be within the context of section 28 of the criminal code. To establish a defense of insanity, it must be clearly proved that at the time of committing the act, the accused was laboring under a defect of reason from a diseased mind as not to know the nature and quality of the act he was doing. In proving the insane delusion, the accused need not produce evidence that will convince the judge or jury beyond reasonable doubt, it is sufficient for the accused to discharge this burden on the balance of probability. For defense to discharge the burden of proof of insanity, evidence must suggest that it was most probable that he suffered from mental disease which deprived him of capacity to understand what he was doing or to control his action. Having regard to the above provision of our law, the prosecution has no duty to proof that the appellant was sane or insane. The onus is on the defense to establish the defense or plea. similarly, it was stated Per Akpata J.S.C. in the case of EJIZIMA V. STATE that the onus to overcome the presumption that everyman is sane and accountable for his action, rests on the accused. To sustain the defense, the Defense counsel must proof which could include among others, positive acts of the accused, before and after the dead complained of, evidence of a doctor who examined and watched the accused over a period of time as to his mental state; evidence of relations who knew the accused person intimately relating to her behavior and the change which has come upon her, the medical history of the family which could indicate hereditary mental application or abnormality, and such other facts and circumstances which will help the trial judge come to the conclusion that the burden of proof of insanity, placed by the criminal code on the defense has been amply discharged.

Similarly, in Onyekwe V. the state, Oputa J.S.C gave the ingredient of the defense of insanity:

•             Evidence as to the past history of the accused

•             Evidence as to his conduct immediately preceding the killing of the deceased.

•             Evidence from prison warders who had custody of the accused and looked after him during his trial.

•             Evidence of medical officers and/or psychiatrist who examined the accused.

•             Evidence of relations about the general behavior of the accused and the reputation he enjoyed for sanity or insanity in the neighborhood.

•             Evidence showing that insanity appears in the family history of the accused.

•             Evidence of the insanity of his ancestors or blood relations is admissible but medical evidences though probative, is not essential. The problem however in relying on the evidence of relations only without medical report or evidence is that there are certain traits in human beings, to varying degree, which sometimes  mistaken for insanity. Some of them are irascibility, irritability, eccentricity and quarrelsomeness. Persons affected with any of these traits to a high degree, are easily spurred to violence and wrongly regarded as being insane by the uninformed. The duty to decide whether the appellant is of unsound mind or not is that of the trial judge who by law is not bound by the certificate of the medical officer to the contrary although, naturally great weight ought to be attached to the medical opinion.

Insanity and Other related Defenses

Automatism

A defendant is regarded as being in a state of automatism when his actions are automatic. Automatism is generally associated with the operation of external factors upon the working of the brain, rather than inherent mental defects.

In Brathy V. Attorney General for Northern Ireland Lord Denning viewed automatism to occur where something was done by the defendant’s muscles without the control of his mind. He considered this definition to include spasms, reflex actions, sleep walking, nightmares, fits etc.

There are various situations in which the accused can be said to be acting in a state of automatism. Actions performed while sleep-walking are generally accepted as automatism.

The term automatism is not used in the criminal code but can be implied from the first paragraph of section 24 of the criminal code which provided that “subject to the express provisions of this code relating the negligent acts or omission, a person  is not criminally responsible for an act or omission, which occurs independently of the exercise of his will, or for an event which occurs by accident”. I think these definitions fits into the first arm of the defense under s.24 of the criminal code and it is right to say that there is provisions in our criminal code under this section for the defense of automatism, the second arm being that of accident.

This defense is not a regularly defense in the Nigerian court. The only known case in Nigeria in which the defense of automatism was successfully raised is the case of public V. Iyarmet and the other is state v. OJeka where the defense was rejected.

For the defense of automatism to be successful there is need for medical evidence. In the words of Uwaefo, J.C.A-“I do not doubt there are genuine cases of automatism, however, a layman cannot safely attempt without the help of some medical or scientific evidence to distinguish the genuine from the fraudulent.”

The distinction between this defense and the insanity defense is that the defense of insanity requires that the involuntariness of the accused action should be traceable to a disease of the mind’ while that of automatism recognizes the possibility of such behavioral phenomena occurring in the absence of such disease. The importance of the distinction lies in the fact that a verdict of “not guilty by result of insanity”, results in mandatory commitment while a finding of automatism results in complete acquittal.Another difference is, although the defendant bears the evidential burden in respect of automatism, the burden of proof remains on the prosecution to show that the defendant acted voluntarily unlike in the defense of insanity where the burden is on the accused to proof that he was insane at the time of the action.

Intoxication

The wording of the defense of intoxication is found in section 29 of the criminal code and sections 44 of the penal code. Under section 29(2)(b) of the code, intoxication is a defense if by reason of such intoxication “the person charged at the time of the act or omission complained of, did not know that such act or omission was wrong or did not know what he was doing and the person charged was by reason of intoxication insane. Temporarily or otherwise at the time of such an act or omission”. Where a person voluntarily intoxicates himself to commit an act, such intoxication can not succeed as a defense.

Though he does not realize that he is doing wrong nevertheless, he is not allowed by section 29 (2)(a) of the criminal code to set up his self induced want of moral sense as a defence. Unless an accused state of intoxication was induced by the malicious or negligent act of another provided by sub-section 2(a) of the section, the defense is not available and unless there is intoxication given rise to temporary insanity the defense under section 29(2)(a) of the criminal code is not available. The sort of situation contemplated is where, for instance a person is drinking beer and unknown to him another person parts some highly intoxicating spirit into the beer so making him intoxicated when he would not have been if he had drunk the beer alone.

The doctrine of criminal responsibility in case of drunkenness due to alcohol is equally applicable to mental or bodily conditions caused by the drinking of narcotics or non-alcoholic stimulants or exciting drugs or their hypodermic injection.

Under the penal code, drunkenness is not a defence. this is provided for under section 44 of the penal code which states that “a person who does an act in a state of intoxication is presumed to have the same knowledge as he would have had if he had not been intoxicated.

Intoxication is a question of fact to be established by evidence. It is not proved by the mere mention of the word. Similarly insanity is not proved also by mere mention of the word. These defenses are also not proved by mere denial of knowledge when or that the act was committed. The burden of proof of intoxication as a defense rests on the person charged. The court must be satisfied on evidence as to the nature, quantity and quality of the drink or other causes of drunkenness resulting to intoxication. The period of none of the drinking and the lapse of time between the drinking and the commission of the offence is a material factor. Surrounding circumstances must also be taken into consideration.

Diminished Responsibility/Capacity

Lord Parker, C.J in trying to define diminished responsibility/capacity stated:

“abnormality of the mind which has to be contrasted with the time honored expression in the maghten rules defect of reason; means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts is right or wrong but also the ability to exercise will power to control physical acts in accordance with that rational judgement”

Diminished responsibility capacity under the criminal code is restricted to cases of homicide, whereas the defense of uncontrollable impulse is a general defense to all offences. From one point of view the provision relating to uncontrollable impulse under the criminal code is wider than the defense of diminished responsibility or capacity. Under the 1957 Act, an accused person, who succeeds in establishing diminished responsibility will be convicted of the offence of man-slaughter even if the offence he committed would have been murder but for the defense, where as a person who succeeds in raising the defense of uncontrollable impulse under the code will be found to be legally insane and cannot be convicted of any offence. The penal code neither recognizes the defense of uncontrollable impulse nor diminished responsibility. The defense is recognized under the M’Naghten rule.

 CONCEPTS OF CRIMINAL RESPONSIBILITY AND THE DEFENCE OF INSANITY UNDER OTHER JURISDICTIONS

Under the English Jurisdiction

In pre-Norman times in England there was no distinct criminal code. A murderer could pay compensation to the victim under the principle of “buy off the spear or bear it”. The insane person families were expected to pay compensation and look after. In Norman times insanity was not seen as a defense in itself but a special circumstance in which the jury would deliver a guilty verdict and refer the defendant to the king for pardon.

In R.V Arnold, the test for insanity was expressed in the following terms- Whether the accused is totally deprived of his understanding of memory and knew what he was doing “no more than a wild beast or a brute or an infant”. The next major advance occurred in Had field’s Trau in which the court decided that a crime committed under some delusion would only be excused if it would have been excusable had the delusion been true. Then next came the M’Naghten case of 1843 where some questions were thrown to the presiding judge and in answering those questions found some rules which is now known as the M’Naghten rules.

Under the English Jurisdiction, sanity is a rebuttable presumption and the burden of proof is on a balance of probabilities, insanity here covers a situation where the defendant does not know what he is physically doing. When on a criminal charge it appears that at the time of the act or omission giving rise to the offence alleged, the accused was laboring under a defect of reason owing to a disease of the mind so as not to know the nature and quality of his act or if he knew this so as not to know that what he was doing was wrong, he is not regarded in law as responsible for his act. The question whether, owning to a defect of reason due to disease of the mind. The accused was not responsible for his act is a question of fact to be determined by the Jury. Where the Jury finds insanity is made out, the verdict takes the special form of not guilty by reason, of insanity.

Under the American Jurisdiction

In the Unite States, use of the insanity defense is rare. The insanity defense is based on evaluations by forensic mental health professionals with the appropriate test according to the jurisdiction. Their testimony guides the Jury but they are not allowed to testify to the accused’s criminal responsibility as this is a matter for the Jury to decide. Similarly, mental health practioners are restrained from making a judgment on the issue of whether the defendant is or is not insane or what is known as the ultimate issue.

In the United States, the defense of diminished responsibility/capacity is applicable to more circumstances than the insanity defense.

Several cases have ruled that persons found not guilty by reason of insanity may not withdraw the defense in habeas petition to pursue an alternative. However, other rulings have allowed it. In state V. Conelly. for example, the petitioner who had originally been found not guilty by reason of insanity and committed for ten years to the jurisdiction of psychiatric security Review Board filed a prose writ of habeas corpus and the court vacated his insanity acquittal. He was granted a new trial and found guilty of the original charges, receiving a prison sentence of 40 years.

Where the defendant voluntarily wishes to for go the defense, he should be allowed to. In the landmark case of Frendak V. United states, the court rules that the insanity defense cannot be imposed upon on unwilling defendant if an intelligent defendant voluntarily wishes to for go the defence.

Those found to have been not guilty by reason of insanity are generally then required to undergo psychiatric treatment except in the case of temporary insanity. Defendants found not guilty by reason of insanity are generally placed in a mental institution until they are determined not to be a threat.

Under the American Jurisdiction, a person may be found not guilty by reason of insanity if at the time of committing the act he was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing or if he did know it that he did not know that what he was doing was wrong. This test is also referred to as the right/wrong test.

The insanity test is recognized in most U.S states with the exception of mortana, Kansas, Idaho and utah.

Canadian Jurisdiction

In the criminal law of Canada, the defense of mental disorder is a legal defense by excuse which a defendant may argue they should not be held criminally liable for breaking the law because they were mentally ill at the time of the alleged criminal actions. The defense of mental disorder is in section 16 of the criminal code of Canada which states in its part: “No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

To establish a claim of mental disorder the party raising the issue must show on a balance of probabilities. First that the person who committed the act was suffering from a “disease of the mind” and second that at the time of the offence they were either

i)             Unable to appreciate the nature quality of the act or

ii)            did not know it was wrong.

Once a person is found not criminally responsible, he or she will have a hearing by a review board within 45days (90 days if the court extends the delay). A review board to established under part xx.1 of the criminal code of Canada and is composed of at least three members; a person who is a judge or eligible to be a judge, a psychiatrist and another medical expert. Parties at a review board hearing are usually the accursed, the crown and the hospital responsible for the supervision or assessment of both accursed. A review board is responsible for both accursed persons found not criminally responsible or accursed persons found unfit to stand trial on account of mental disorder. A review board must consider two questions:

1)            whether the accursed is a significant threat to the safety of the public “and

2)            if so what is the “least onerous and least restrictive”.

Restrictions on the liberty   of the accused should be an order to mitigate such a threat. Where the review board is unable to conclude that the accused is a significant threat to the safety of the public, the review board must grant the accused an absolute discharge, an order essentially terminating the jurisdiction of the criminal law over the accused. Otherwise the review board must order that the accused be either discharged subject to conditions or detained in a hospital, both subject to conditions. The conditions imposed must be the least onerous and least restrictive necessary to mitigate any danger the accursed may pose to others.

CONCLUSION

Observations

The strict adherence to the rules in the M’Naghten’s case has worked great hardship in Nigerian in the sense that most judges have relied strictly and blinding on these rules in most cases bothering on insanity without really taking cognizance of the peculiarity of each case, thereby leading to the victimization of most accused persons who did not have the true knowledge of their act or omission at the time it was committed.

Furthermore, there is non-uniformity in our laws in relation to provisions concerning criminal responsibility and the defense of insanity. While the criminal code provides that for one to be held criminally responsible for any act or omission, he or she must be above the age of seven, the penal code states that the age for criminal responsibility is twelve. In the case of the defense of intoxication, section 29(2)(b) of the criminal code provides that intoxication is a defense if by reason of such intoxication the person charged at the time of the act or omission was wrong or did not know what he was doing and the person charged was by reason of intoxication an act or omission; while under section 44 of the penal code, it is provided that intoxication cannot serve as a defense for an act or omission. In the same vein, section 28 of the criminal code recognizes the defense of uncontrollable impulse in appropriate cases, while it is not recognized or provided for under the penal code.

Another serious problem in our legal system is that our laws do not recognize the defense of diminished responsibility and the defense of Automatism is not really appreciated in the Nigerian jurisprudence. The only know case in Nigeria in which the defense of automatism was successfully raised is the case of REPUBLIC V. HARMER and the other is STATE V. OJEKA where the defense was rejected.

The above provisions show obvious lacunas in our legal system which needs to be filled and until these lacunas are filled, Justice cannot be said to be done.

Recommendations

It is advised that Nigeria should take an apposite approach in handing cases bothering on the insanity. The M’ Naghten rule should only serve as a guide but should not be seen as a hard and fast rule for arriving at a decision. Cases should be determined based on the circumstance and facts of each case. It is also important that our laws (criminal code and penal code) be reformed and made uniform in terms of provisions bothering on criminal responsibility and the insanity defense as this will bring about oneness and harmony between these laws, thereby avoiding the conflict of laws and also to help step up the standard of justice in our legal system.

As the Royal commission on capital punishment pointed out, “there is no dividing line between sanity and insanity.” The defense of diminished responsibility therefore serves as a useful half way house for those who do not fall within the provisions of the insanity defense but whom nevertheless are not fully responsible for their actions. The necessity for such a defense is even greater in a country such as Nigeria where the offence of murder still carries the mandatory death penalty.

Conclusion

There are many situations in which someone may not be responsible for their actions. Psychosis may mean they were out of touch with reality at the time of crime, criminals suffering from schizophrenia may cite “inner voices” driving them to murder someone. Disorders of impulse may mean someone is unable to stop him or herself from attacking someone. People whose actions and judgment are affected by prescription drugs may also not be fully responsible. Crime with no apparent or rational motive may also be committed by those are not fully responsible for their actions. As long as they exist, lawyers should get themselves attuned with the inherent technicalities in them. This is because a proper understanding of them will be very useful for practicing lawyers during litigation.

2013 copyright www.articlesng.com Criminal Responsibility and the Defense in the Nigerian Legal System

 

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Comments

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  12. kehinde N. Adewoye says:

    compliment of the reason

  13. obafemi blessing says:

    Pls can i get similar material on this with the topic ” the criminal liability of an infant under the Nigerian legal system”

  14. Ibrahim Bobi says:

    Please can i get relevant materials on this topic, the right of an accused person under the Nigerian legal system

  15. Ibrahim Bobi says:

    please i need your assistant with materials on this topic, i.e the rights of an accused person under the Nigerian legal system.

  16. Pere Mercurial says:

    please what are the general defence to criminal responsibility

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