Criminal Law- Pre Class Assignment 2: THE BASIC ELEMENTS OF AN OFFENCE

Name: Oyinkansola Dabiri

Class- Bar 1

1. What are the basic elements of an offence?

According to the Section 2 Criminal Code Act;
An act or omission which renders the person doing the act or making the omission liable to
punishment under this Code, or under any Act, or law, is called an offence.

However considering the actual definitions of most offences it is recognized that they are nearly
constituted by the physical and mental element. So an offence is the act or omission done or
omitted to be done (physical element) in a particular state of mind (mental element). For instance
Section 394 of the Criminal Code which states
Any person who kills any animal capable of being stolen with intent to steal the skin or carcass,
or any part of the skin or carcass, is guilty of an offence and is liable to the same punishment as if
he had stolen the animal.
So killing the animal is the physical whilst the intent to skin is the mental element.

So note that every offence has two elements which in English law have been termed the actus
reus (Latin for “guilty act) and mens rea (Latin for “guilty mind’). This is to the exception of
strict liability offences which are complete upon the manifestation of the physical element only.

Note; whilst the Nigerian courts have borrowed and used these terms neither of them are in the
Criminal Code or Penal Code; although it is used as a form of expression it does not justify the
introduction of irrelevant principles of English law into Nigerian law.
Now the criminal trial in systems derived from English law is accusatorial in nature; it partakes
in the battle of the prosecutor and the accused where the former brings a particular charge or
charges against the latter as perceived to be sustained by the facts of the case. Whilst the accused
tries to prove that the facts do not sustain such charge or charges. So the prosecution proves all
the elements of the offences charged as defined by the law. In addition only the elements
contained in the definition of the offence have to be proved is a fundamental in a system where
conduct is only criminal when so defined in a written law.

The Physical Element of an Offence

The physical element of the an offence, the actus reus of a crime may consist of an act or in rare
situations, an omission or more rarely may be described as a passive state of affairs. It may
include not only the conduct of the accused but also the events or consequences resulting from
that conduct. Certain other physical circumstances may be material to the proof of an offence e.g.
in the offence of fraud by a trustee in relation to trust property the accused must be a trustee
(C.C. s 434).
Any person who, being a trustee of any property, destroys the property with intent to defraud, or,
with intent to defraud, converts the property to any use unauthorised by the trust, is guilty of a
felony and is liable to imprisonment for seven years.

An act
- Intention in its own however wicked or dangerous it might be if put into execution is not
generally forbidden or punished by the law until the man with the intention begins to put
into execution.1 The reason for this is that to control peoples minds would be a nearly
impossible and excessively difficult effort and to do so is to hamper on individual
freedom.
- Regardless the law is ready to intervene at the slightest manifestation of intention. For
instance, the physical element or the actus reus of an offence can manifest in words in
respect of certain offences such as defamation, sedition, taking of unlawful oath and even
conspiracy. These offences are committed by words of mouth. The physical element is
constituted by words uttered by the accused person.
- A man can be guilty of an attempt to commit an offence if with intent to commit it, he
begins to put intention to action by means of execution to the fulfillment of that offence.
There are offences where it is enough that the accused is in possession of something
defiance of the law even though he has not begun to put that thing to any lawful use. For
instance mere possession of counterfeit coins or of the means of making them (C.C. s
148(3). For more on this, see sections 150, 154 (2), 155 (1), S. 209 and 213 etc of the
Criminal Code Act.
- Moreover, possession may not be physical only; it can also be through the agency of
another person in which case it will be constructive possession- possession by virtue of
the law even though another person has actual possession. See R v Uko (1939) 5
W.A.C.A 63 (possession through an accomplice)

An Omission
- This is failing or omitting to do what the law has commanded you to do, the failure of
which will infer criminal liability.
- It should be noted that there is no hard and fast rule as to what constitutes the actus reus,
rather one must look at the definition of the offence and deduce whether mere failure to
do something is criminal.
- Generally the law is reluctant to punish omission; the majority of crimes can be
committed only by the doing of something, but there are exception were people have to
be frced to act, and a duty to act is imposed, breach of which is an offence.

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Asides for the cases of Preventive Detention
 - The Criminal Code has criminalized such omissions to include duties imposed on peace
officers (police officers) to suppress riot see S.199 of the Criminal Code, duties imposed
on members of the ship’s crew to obey order (C.C. chap. 52); on those on charge of
railway trains or of ships and on ships engineers to ensure the safety of passengers (C.C.
ss 346-348); on any person who being required by law to keep any record concerning a
person in confinement, refuses or neglects to keep such record (C.C. s 368). So a brach
of any of these duties is an offence.
- Section 343 of the Criminal Code specified a number of duties were negligent omission
will be criminal- for instance omitting to take precautions against any probable danger
from any animal in his possession. Whilst Section 344 makes it a general offence for
anyone to cause harm by negligent omission in breach of a duty.
- Chapter 26 of the code imposes a number of duties in respect of the perseveration of life-
on those in charge of helpless, and on masters and heads of families in respect of their
apprentices or children, a duty to provide the necessaries of life. In this case criminal
liability follows from omitting to perform such action like failing to supply necessaries of
life if danger to health is likely, and where the end result is death, then the offence may
either be manslaughter or murder.
The Mental Element of an Offence
The mens rea can be described into two ways
i. Mens rea refers to the mental elements which is required to be rived in respect of a
particular offence. Thus the mens rea of stealing.
ii. Also mens rea is used to refer to a general principle of statutory interpretation and of
criminal responsibility as adopted in English criminal law. This states that whenever a
court is considering the definition of an offence it must presume until the contrary is
proved that the definition requires proof of a guilty mind against the accused. This is
known as the doctrine of mens rea.
Most offences require proof that the accused committed the actus reus in a particular state of
mind. The exceptions to these are strict liability offences2 ;
It is suitable to state that five basic concepts which may underline the particular conduct are
worthy of mention.
1) Intention: this revolves around the issues of foreseeability and desirability. If the
intention to cause a particular result is not expressly declared to be an element of an
offence then the result intended to be caused by the caused is immaterial.
Section 24; Unless the intention to cause a particular result is expressly declared to be an
element of the offence constituted, in whole or part, by an act or omission, the result
intended to be caused by an act or omission is immaterial.

It simply stated that a man intends a consequence of his action when he foresees that it
may result in harm and desires that he should do so. Therefore, desire of consequence is

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See STRICT LIABILITY AND THE NIGERIAN CRIMINAL CODES: A REVIEW by Vincent Akpotaire
 the hallmark of intention no matter how vague or unconscious that desire may be. For
instance under S 411, the specific intent of housebreaking burglary, is the intent of
committing a felon. See for example the case of R. v. Steane (1974) KB 997.
Proof of intention
- The devil himself knoweth not the intention of a man. The state of a man’s mind is a as
much a fact as the state if his digestion 3. The first is correct in that no one is capable of
seeing into another’s mind and of being able to state with absolute certainty what is his
intention.
Transferred Malice vs Intent
- Causation: this is the nexus between an act and the result of an act.
- At common law however, there exists a doctrine of transferred malice or intent. So where
A intending to strike B, strikes and wounds C accidentally, it is said that A is guilty of
maliciously wounding C because even though he did not intent to strike C, his intent
against B must be transferred to the case involving C. This is illustrated in the case R. v.
Latimer (1886)17 QB 359: The court held that it is possible to use the doctrine of
transferred malice outside of the bounds of murder cases. R v Pembliton ((1874) LR 2
CCR 119 was distinguished on the grounds that it applied only to a particular kind of
malice – malicious injury to property (there transferring malice was not allowed, but this
was because there was an attempt to transfer malice from an offence against property to
an offence against the person, which are completely different offences). Therefore, the
Defendant was held to be liable for the injuries of his actual victim despite having no
intention to injure her.

- This doctrine however does not exist under the Criminal Code, as section 24 provides;
Subject to the express provisions of this Code relating to negligent acts and omissions, 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

- It should be noted that the operation of section 24 may excluded by the definition of a
offence, and one exception to the doctrine of transferred intent exists in the Code- in the
case of murder. In section 316 9(1) and (2) of the Criminal Code, it is clear that a man is
guilty of murder if he causes death, whether he intended to kill or cause some grievous
harm to that particular person or some other persons.

1) Recklessness: Recklessness represents a situation where the accused person foresees

the consequences of his conduct but decides nevertheless to risk it. In that premise, if
the accused foresees a consequence which will arise from his conduct as a remote
possibility, then he is not criminally liable but if he foresees it as certain to happen,
the finding is that he desired the consequence and therefore intended and by extension

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Per Bowen, C. J. in
 will be criminally liable. For a clearer understanding, read the case of R. v. Okoni
(1938) 4 WACA 1 9 and R. v. Idiong (1950) 13 WACA 30.
2) Negligence: A man may not himself forsee what is going to happen. Nevertheless, the
law sometimes holds that he ought to have foresee it and would therefore be held
negligent for failing to do so. There must be a duty of care.

Strictly Liability Offences

It is not in all offences that the prosecution is required to prove both the physical and the mental
elements. There are some offences in which the law requires the prosecution prove the physical
element only. Where this happens it is said that those offences are strict liability offences. These
therefore, are offences in which the enacting authority dispenses with the proof of the mental
element. In strict liability offences a successful proof of the physical element is enough to secure
a conviction against the accused person.
See the case of R. v. Efana (1972) 8 NLR 81 and search the Criminal Code of bring out strict
liability offences.