AN EXAMINATION OF THE THEORIES OF CRIME CAUSATION AND

THEIR IMPLICATIONS FOR CRIMINAL PUNISHMENT

BY

FADAYOMI OLUWAFEOLAMI TOMISIN

BEING A LONG ESSAY SUBMITTED TO THE FACULTY OF LAW IN PARTIAL

FULFILMENT OF THE REQUIREMENT FOR THE AWARD OF BACHELOR OF
LAWS (LL.B) DEGREE OF THE OBAFEMI AWOLOWO UNIVERSITY, ILE-IFE,
NIGERIA.
 TABLE OF CONTENT

Title page i

Certification ii

Dedication iii

Acknowledgments iv

Table of contents v

Table of Cases vi

Table of Statutes vii

List of Abbreviations viii

CHAPTER ONE: GENERAL INTRODUCTION TO CRIME AND CRIMINOLOGY

1.1 Definition of Crime

1.2 Definition of Criminal law

1.3 History and sources of the Nigerian criminal law

1.4 Purpose and Objectives of Criminal law

1.5 Elements of a Crime

1.5.1 The physical element

1.5.2 The mental element

1.6 Classification of Crime

1.6.1 Felonies
 1.6.2 Misdemeanors

1.6.3 Simple offences

1.6.4

1.7 General Defenses to criminal liability

1.8 Definition and Scope of Criminology

1.9 Historical Development of Criminology

1.10 Relevance of Criminology

CHAPTER TWO: CRIME TYPOLOGIES

2.1 Definition and General Introduction to Crime Typologies

2.2 Crimes against Persons

2.2.1 Homicide

2.2.2 Assault

2.2.3 Domestic Violence

2.2.4 Stalking

2.2.5 Kidnapping

2.2.6 Rape

2.3 Crimes against property

2.3.1 Burglary

2.3.2 Arson

2.3.3 Larceny-Theft

2.3.4

2.4 White-Collar and Organized Crime

2.5 Public Order Crimes

CHAPTER THREE: CRIMINAL BEHAVIOR

CHAPTER FOUR: THEORIES OF CRIME CAUSATION AND THEIR
IMPLICATIONS FOR CRIMINAL PUNISHMENT

4.1 Definition of Crime Causation

4.2 Overview of the Theories of Crime Causation

4.3 Classical Theory

4.3.1 Exploration of the Demonic and Enlightenment Era

4.3.2 Cesare Beccaria

4.3.3 Jeremy Bentham

4.3.4 The Neo Classical theory

4.3.5 Rational Choice Theory

4.3.6 Policy Implications of the Classical Theory

4.3.7 Critique of the Classical Theory

4.4 Biological Theory

4.4.1 The Positivist School’

4.4.2 Physique and Crime

4.4.3 Genetics and Crime

4.4.4 Neurological Factors

4.5 Psychological Theory

4.5.1 Early Psychological Theories

4.5.2 Criminal Behavior as Maladaptation

4.5.3 Crime as Adaptive Behavior

4.5.4 Modeling Theory

4.5.5 Behavior Theory

4.5.6 Attachment Theory

4.5.7 Self-Control Theory

 4.5.8 Intelligence and Crime

4.6 Sociological Theory

4.7 Effects of the explanations of criminal behavior on punishment

CHAPTER FIVE: SUMMARY, CONCLUSION AND RECOMMENDATIONS

5.1 Summary

5.2 Conclusion

5.3 Recommendations

Bibliography
 CHAPTER ONE

GENERAL INTRODUCTION TO CRIME AND CRIMINOLOGY

1.1 Definition of Crime

In ordinary language, a crime is an unlawful act punishable by a state or other authority. The
term “crime” however does not, in modern criminal law, have any simple and universally
accepted definition. There are different views as to its meaning and some of the definitions given
by various authors are considered below.

Blackstone in his classical work Commentaries on the Laws of England defined crime in two
ways. First, he defined it as an act committed or omitted in violation of a public law forbidding
or commanding it. He also defined it as a violation of the public rights and duties due to the
whole community. Cross and Jones expressed the views that crime is a legal wrong for which the
offender is punished at the instance of the state. It is the view of Russell that crime is an act or
omission involving the breach of a duty punishable by indictment, in the public interest.
According to William, crime is a legal wrong that can be followed by criminal proceeding which
may result in punishment. Gledhill referred to a crime as a human conduct which the state
decides to prevent by threat of punishment and through legal proceeding of a special kind.
According to Halsbury, a crime is an unlawful act or default which is an offence against the
public and renders the person guilty of the act liable to legal punishment. Okonkwo and Naish in
their books “Criminal Law in Nigeria” define crime as those breaches of the law resulting in
special accusatorial procedure controlled by the state and liable to sanction over and above
compensation and costs.

The meaning of crime in Nigerian criminal law appears to be in conformity with the pattern of
the various definitions highlighted above. In the criminal and penal code, the word “offence” is
used instead of the traditional word “crime”. But since the adjective “criminal” is also used in
both codes and in the constitution, the words “crime” and “offence” would appear to be
interchangeable and the courts use both terms indiscriminately. Section 2 of the Criminal Code
defines offence 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. Section 4(2) Penal Code
and the Sharia Penal Code provide that whereby any provision of any law of the state the doing
of an act, or the making of any omission made an offence, then such acts or omission becomes
crime. Furthermore, section 36(12) of the Constitution of Nigeria 1999 states that an act or
omission is not a crime unless its definition and punishment for it are contained in a written law.

1.2 Definition of criminal law

Criminal law is the branch or division of law that defines crimes and provides for their
punishment.

Criminal law is a fundamental branch of legal jurisprudence that governs the behavior of
individuals within a society. It is a system of laws and regulations established by governing
authorities to address conduct that is deemed detrimental to the well-being and stability of the
community as a whole. Unlike civil law which deals with disputes between individuals or
organizations, criminal law focuses on offences against the state or society. At its core, criminal
law defines what constitutes a crime and outlines the consequences for engaging in prohibited
conduct.

1.3 History and Sources of the Nigerian Criminal Law

Prior to the arrival of the British, a large number of systems of criminal law existed in the area of
country now known as Nigeria wherever there was a political entity requiring the enforcement of
certain standards of behavior and imposing punishments for their breach. In the South were
numerous relatively simple systems of social norms based on the unit of the family, village or
group of villages. In much of the North there was the highly systematized and sophisticated
Moslem law of crime. The outstanding feature of all customary criminal law apart from the
Moslem was that it was unwritten.

The advent of the British did not at first alter this situation much. In the colony of Lagos, the
English common law, which included the common law of crime, was introduced in 1863. But
outside Lagos it was customary criminal law which still obtained. However, with the
development of centralized government, the British administration felt the need for a clearly
worded, concise and unified set of criminal principles to be applied in British courts. In 1904, the
Lugard administration in Northern Nigeria introduced a criminal code which in 1916 was
extended to the whole country after the unification of Nigeria in 1914. This code was modeled
closely on the code introduced into the state of Queensland, Australia, in 1899.
The application of the Northern Criminal Code was at first strictly limited. Section 4 of the
proclamation expressly exempted ‘native tribunals’ from its operation. The exemption was
preserved when the code was extended in 1916. Thus after 1916 most criminal cases in Nigeria
were still governed not by the code but by native law and custom- Islamic law.

This situation, in which there were two or more systems of criminal law existing side by side in
the same geographical area was an unhappy one. The British administration were in a dilemma,
especially with regard to Northern Nigeria where Moslem law, as interpreted by the Maliki
school was firmly entrenched. On the one hand, the Maliki law contained many rules which were
not acceptable to those trained in English law. The offence of homicide punishable with death,
for instance, included any hostile, unjustified assault ending in death, even though this might be
unintended or extremely unlikely. The most frequent cause of friction was the concept of
provocation which is recognized by the Criminal Code as capable of reducing murder to
manslaughter but which was not admitted in Maliki law.

In 1933, when the legal system was overhauled, some were of the view that customary criminal
law be abolished. This view was not accepted, but a small step in that direction was taken by the
amendment of section 4 of the Criminal Code Ordinance by deleting the phrase ‘other than a
native tribunal’.

The exact purpose of the 1933 amendment has been the subject of conflicting opinion. In the
leading case of Gubba v. Gwandu N.A in 1947, it was the view that the 1933 amendment
intended virtually to sweep away criminal native law and custom except with respect to the few
offences not covered by the code. But the various reports of the 1949-1952 Native Courts
Commission of Inquiry show that this view is wrong. The amendment arose out of an incident at
Bukuru in which a defendant was whipped for an offence under an Ordinance by order of a
native court which had been given power to try cases under the Ordinance but which had no
power to order whipping. The amendment was with intention that only punishments be affected.
Thus the instruction was that while a native court may charge a person for offences under native
law and custom, the punishment which may be inflicted where the offence is also one under the
criminal code must be in accordance with the punishments laid down in the criminal code. The
dual nature of criminal law was thus intended to continue. However, from 1933-1947, when
cases from the Northern courts applying Islamic law came on appeal to British courts, the latter
seem to have been content to concern themselves “exclusively with determining whether the case
had been properly and correctly decided under that law…”

By 1957, after the leading case of Maizabo v Sokoto N.A, the position was settled that the correct
law was that native or customary courts were empowered to apply customary criminal law, even
if there was a provision in the criminal code on the subject but they must not pass a sentence in
excess of the maximum that could have been imposed if the case had been tried under the
criminal code.
The relationship between the systems of criminal law was in need of re-examination.

The code which eventually emerged in the 1959 Penal Code Law, to displace the Criminal Code
was based on a Code which had been working successfully in a Moslem community, namely the
Code of the Sudan. It has a strong link with English law

Check academia

1.4 Purpose and Objectives of Criminal law

Criminal law serves several important purposes and objectives within society and they are as
follows:

1. Maintaining Social order: Criminal laws establish boundaries of acceptable behavior within society.
By defining certain actions as criminal offenses, the law helps to maintain order and stability by
discouraging individuals from engaging in harmful or disruptive behavior.

2. Deterring Criminal Behavior: One of the primary objectives of criminal law is deterrence. By imposing
penalties such as fines, imprisonment or community service, the law seeks to discourage individuals
from committing crimes. This serves both as a specific deterrent to the offender and as a general
deterrent to others who may be considering similar actions.

3. Punishing Offenders: Criminal law provides a framework for holding individuals accountable for their
actions. Through the criminal justice system, offenders are brought to trial, judged by their peers, and if
found guilty, punished according to the severity of their offense. Punishment serves not only to sanction
the offender but also to satisfy the societal need for justice and retribution.

4. Protecting Individual Right and Freedom: Criminal law includes provisions that safeguard the rights
and freedom of individuals accused of crimes. These rights include the presumption of innocence, the
right to legal representation, the right to a fair trial and protection against unlawful searches and
seizures. Upholding these rights is essential to ensure that the justice system operates fairly and
impartially.

5. Promoting Justice: Criminal law seeks to achieve justice by holding individuals accountable for their
actions and providing recourse for victims of crime. This includes not only punishing offenders but also
providing avenue for rehabilitation and restitution.

Additionally, criminal law aims to address underlying societal issues that contribute to criminal behavior,
such as poverty, inequality, and lack of access to education and resources.
Overall, criminal law plays a crucial role in shaping the behavior of individuals within society, promoting
public safety and upholding fundamental principles of justice and fairness.

1.5 Elements of a Crime

In the commission of an offence, two elements are always required to be present before a
conviction can be granted. They are, the physical element otherwise known as the Actus Reus
and the mental element otherwise known as Mens rea. Both these terms actually refer to more
than just moral guilt, and each has a very specific meaning which varies according to the crime,
but the important thing to remember is that to be guilty of an offence, an accused must not only
have behaved in a particular way, but must also usually have had a particular mental attitude to
that behavior. The thrust of this is depicted in the latin maxim “actus non facit reum nisi men sit
rea” which means a guilty act alone does not make a person liable for an offence unless it is
accompanied by a guilty mind.

This position is predicated on the principle of criminal law that there shall be no liability without fault as
was established in Woolminigtion V. DPP.

1.5.1 The physical element

The actus reus of a crime may consist of an act, or more rarely of an omission or more rarely what might
be described as a passive state of affairs. It may include not only the conduct of the accused but also the
events or consequences of that conduct.

An act

Intention on 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 it into
execution. The rationale behind this is that to control a person’s state of mind is exceedingly
difficult and to try to do so is to set too narrow a limit on individual freedom. However, although
intention alone is not sufficient, the law is often ready to intervene at the slightest manifestation
of that intention. A small gesture could be the actus of an assault. A slight movement of property
can constitute the actus reus of stealing. Words alone are sufficient in sedition, defamation,
conspiracy or the taking of an unlawful oath and one can be guilty of an offence merely by
counseling it. A man is guilty of an attempt to commit an offence if, with intent to commit it, he
begins to put his intention into execution by means adapted to its fulfillment and manifests the
intention by some overt act.

An omission

There is no hard and fast rule as to when an omission may constitute the actus reus of a crime,
one must therefore look at the definition of each particular crime to see whether mere failure to
do something is criminal. However, generally, the law is reluctant to punish omission. There are
cases where the need is felt to force people to act and a duty to act is imposed, breach of which is
an offence. The criminal code alone provides quite a long list of these criminal omissions
Causation of events or consequences

In some offences, it is the consequences of a man’s conduct which constitute the actus reus of the
offence rather than the conduct per se. For instance, in murder or manslaughter, death must result
from the accused’s conduct.

1.5.2 The mental element

The mental element of a crime, known as mens rea in legal terminology, is a crucial aspect of
criminal law that pertains to the mental state or intent of the individual committing the crime.
Mens rea is latin for “guilty mind” and it signifies the awareness or intention of the perpetrator at
the time the crime was committed. The mental state is often categorized into different levels of
culpability, ranging from intentional acts where the perpetrator consciously and purposely
engages in unlawful conduct, to acts committed recklessly or negligently where the individual
disregards the forseeable consequences of their actions. The mens rea requirement varies
depending on the specific crime and jurisdiction and it is essential for establishing criminal
liability and determining the severity of punishment in a court of law.

However in some cases, the absence of mens rea, such as in strict liability offences, may still
result in criminal liability based solely on the act itself, without requiring proof of intent or
mental state.

1.6 Classification of Crime

Offences can be classified in a number of ways. Some classifications may be made merely for
the sake of convenience and may have no legal significance. For instance, the division of
offences into those against the person, property and state is merely a rough division for academic
purposes. In English law, there is also the classification into common law and statutory offences.
Other classifications are significant in that different legal consequences can attend different types
of offence. Thus, the procedure of trial can differ –according to whether an offence is triable
summarily or on information.

In Nigeria, the only classification that is of utmost importance is provided for in section 3 of the
criminal code. Section 3 classifies offences into felony, misdemeanor and simple offenses.

1.6.1 Felony

In Nigeria, offences which are termed “felony” are deemed to be more serious offences. The
term felony is derived from English law. They are those offences which are punishable with
three years’ imprisonment or more.

One of the predominant rules associated with felonies is the rule in smith v Selwyn. The rule
states that if a plaintiff brings a civil action which is founded on a felony, the court will stay the
proceeding until the felony has been prosecuted. The rationale is that, where an offence is
serious, an offender should first be brought to justice by public law before an individual can
proceed with a civil claim.

1.6.2 Misdemeanor

According to the criminal code, misdemeanors are those offences punishable with six months’
imprisonment up to three years. In other words, any offence punishable with at least six months
but not more than three years is a misdemeanor.

1.6.3 Simple offences

Offences can be classified

for descriptive purposes,
procedural purposes, or
substantive
purposes. Descriptive offences
are offences classified for
academic or convenience
purposes
and may not have legal
consequences. Offences
classified for procedural
functions aid and
guide the relevant criminal
justice institutions in the
execution of criminal justice.
The
criminal and penal code are
substantive laws, while the
Administration of Criminal
Justice
Act/Laws of different states
are procedural laws. These
Classified offences can be
interwoven, and at times,
in implementing a classified
procedural offence, it may
be
necessary to understand and
define the substantive offence.
However, the most important
classification to be identified in
this lesson are offences
classified for substantive
purposes.
Substantive offences have legal
effects and are provided for in
the Criminal Code as felony,
misdemeanour and simple
offences.
In determining the classification
of offences under substantive
law in Nigeria, Section 3 of
the Criminal Code provides for
the classes of offences, namely:
felony, misdemeanour and
simple offences.
1. Felony Offence: This is any
offence declared by law to be a
felony or is punishable
without proof of previous
conviction, with death or with
imprisonment for three years or
more. Felony offences incur the
toughest penalties such as life
imprisonment or death. As
stated below, capital
offences fall under felonies.
Exam
Offences can be classified
for descriptive purposes,
procedural purposes, or
substantive
purposes. Descriptive offences
are offences classified for
academic or convenience
purposes
and may not have legal
consequences. Offences
classified for procedural
functions aid and
guide the relevant criminal
justice institutions in the
execution of criminal justice.
The
criminal and penal code are
substantive laws, while the
Administration of Criminal
Justice
Act/Laws of different states
are procedural laws. These
Classified offences can be
interwoven, and at times,
in implementing a classified
procedural offence, it may
be
necessary to understand and
define the substantive offence.
However, the most important
classification to be identified in
this lesson are offences
classified for substantive
purposes.
Substantive offences have legal
effects and are provided for in
the Criminal Code as felony,
misdemeanour and simple
offences.
In determining the classification
of offences under substantive
law in Nigeria, Section 3 of
the Criminal Code provides for
the classes of offences, namely:
felony, misdemeanour and
simple offences.
1. Felony Offence: This is any
offence declared by law to be a
felony or is punishable
without proof of previous
conviction, with death or with
imprisonment for three years or
more. Felony offences incur the
toughest penalties such as life
imprisonment or death. As
stated below, capital
offences fall under felonies.
Exam
Offences can be classified
for descriptive purposes,
procedural purposes, or
substantive
purposes. Descriptive offences
are offences classified for
academic or convenience
purposes
and may not have legal
consequences. Offences
classified for procedural
functions aid and
guide the relevant criminal
justice institutions in the
execution of criminal justice.
The
criminal and penal code are
substantive laws, while the
Administration of Criminal
Justice
Act/Laws of different states
are procedural laws. These
Classified offences can be
interwoven, and at times,
in implementing a classified
procedural offence, it may
be
necessary to understand and
define the substantive offence.
However, the most important
classification to be identified in
this lesson are offences
classified for substantive
purposes.
Substantive offences have legal
effects and are provided for in
the Criminal Code as felony,
misdemeanour and simple
offences.
In determining the classification
of offences under substantive
law in Nigeria, Section 3 of
the Criminal Code provides for
the classes of offences, namely:
felony, misdemeanour and
simple offences.
1. Felony Offence: This is any
offence declared by law to be a
felony or is punishable
without proof of previous
conviction, with death or with
imprisonment for three years or
more. Felony offences incur the
toughest penalties such as life
imprisonment or death. As
stated below, capital
offences fall under felonies.
Exam
use studuco in your note for the rest

1.7 General Defenses to Criminal Liability

General defenses are those which arise from specific characteristics of the defendant or the
circumstances of the offence which makes it impossible for the plaintiff to prove all the elements
of the crime. They may result in an acquittal or they may reduce the defendant’s culpability to
render them guilty of a lesser offence.

Any defense mentioned in chapter 5 of the criminal code can be raised in any criminal trial
because chapter 5 applies to any offence contained in any written enactment. The defenses are
discussed below in no particular order.

1.7.1 Accident

According to section 24 of the criminal code, 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.

The exact meaning of an event occurring by accident may give rise to difficulty. In the
Queensland case, R v Martyr, M struck a blow at S who subsequently died from a hemorrhage.
The medical evidence was that it would not be usual for such a blow to cause death, and that S
had a peculiar weakness. Nevertheless, the Court of Criminal Appeal upheld the conviction for
unlawful killing. They thought that the above section would apply where the final result was
caused by a subsequent unforeseeable happening, e.g M would not have been liable if he gave S
a slight blow and S tripped over a floor-mat and fell, struck his head on a hard object, and died.
But they did not think that accident could include an event resulting from an existing physical
condition, such as an inherent weakness, or an eggshell skull; death in such a case would be a
direct and immediate consequence of the accused’s blow. In his judgment, Mansfield, C.J.
quoted the following passage from Stephen’s Digest of the criminal law: An effect is said to be
accidental when the act by which it is caused is not done with the intention of causing it, and
when its occurrence as a consequence of such act is not so probable that a person of ordinary
prudence, ought, under the circumstances in which it is done, to take reasonable precautions
against it. This is surely a better interpretation of section 24 and it covers the cases where the
event is due to the inherent and not reasonably foreseeable weaknesses of the victim, as well as
those where it is due to supervening unforeseeable occurrence.

Tinubu kolian v R. is quite an illustrative case on the working of section 24. During, a domestic
quarrel with his wife, the accused, tired of the verbal exchanges, went outside the house and sat
down. His wife followed him outside and continued to “berate” him. He picked up a light stick
and as it was very dark, he aimed a moderate blow in the direction of the voice. Unknown to the
accused, his wife was then carrying their baby in her arms, the blow struck the baby on the head
and killed it. It was unlawful for a native husband to physically chastise his wife in Papua and
New Guinea where the facts arose. The trial judge felt bound by the decision of the high court of
Australia in Mamote-Kulang of Tamagot v R. that death cannot be an event for the purpose of 23
of the Queensland Code. He therefore convicted the accused of manslaughter. On appeal, it was
held that the accused was exonerated by section 23(our section 24). Barwick CJ. And McTiernan
J. held that exculpated by the first limb of the section(“act…which occurs independently of the
exercise of his will”). The relevant act, they held, was not merely the wielding of the stick but
“the bodily movement involved in striking with the stick and the impact of the blow on the child,
the cause of death”. Kitto, Menzies and Owen JJ. held that the accused was exculpated by the
second limb(“event which occurs by accident”). Windeyer J. held that he was exculpated by
either limb.

Nigerian courts have merely applied section 24 in a few cases without proper discussion. In
Iromantu v State the deceased gripped the appellant’s gun. In an attempt to recover it from him,
“the appellant accidentally touched the trigger and the gun went off” and killed the deceased. It
was held that section 24 applied. The prosecution had failed to prove that the firing was
voluntary or that the circumstances disclosed recklessness. The appellant was therefore not guilty
of manslaughter.

1.7.2 Mistake

Section 25 provides that a person who does or omits to do an honest and reasonable, but
mistaken, belief in the existence of any state of things, is not criminally responsible for the act or
omission to any greater extent if the real state of things had been such as he believed to exist.

Mistake of fact but not of law

The mistake must be a mistaken belief in the existence of any state of things. Mistakes of law are
irrelevant because “ignorance of the law does not afford any excuse for any act or omission
which would otherwise constitute an offence, unless knowledge of the law by the offender is
expressly declared to be an element of the offence”. In Ogbu v R, one of the accused said at his
trial that he did not know that it was contrary to law to pay a bribe in order to induce the other
accused to appoint him as village headman(the mental element of the offence charged being that
he should have paid the bribe ‘corruptly’). The trial judge accepted this story and acquitted him.
On appeal by the other accused, although the federal supreme court had no power to convict the
first accused, they remarked that: “…we are not at present satisfied that the learned judge was
right in law in acquitting…if the matter ever fell to be decided by this court we should require
cogent arguments to convince us that a charge involving doing some act ‘corruptly’, ignorance of
the law is a defense to a person who had an intent of a kind which the law regards as corrupt”

The rule that ignorance of the law is not an excuse is justified on the ground that it is everyone’s
business to find out what the law is and if there was no such rule, every accused could claim that
he did not know what the law was, and the prosecution would have to bear the impossible task of
having to prove that he did know it.

An honest and reasonable mistake

The mistake must be both honest and reasonable. A mistake may be honest and yet not
reasonable and a mistake may appear to be reasonable and not be a genuine mistake. In both
cases, there would be no defense.

The test of honesty is subjective, but what is the standard for measuring reasonableness.

Liability to no greater extent than if the mistaken fact were true

1.7.3 Insanity

A test for determining the degree of mental disorder requisite for relieving of criminal
responsibility was first seriously propounded in England in 1843 by the judges as advice given to
the House of Lords after M’cNaghten’s case. These rules are:

i That everyone is presumed sane until the contrary is proved.

ii That it is a defense for the accused to show that he was laboring under such a defect of reason,
due to disease of the mind as either
(a) not to know the nature and quality of his act, or
(b) if he did know this, not to know that he was doing wrong

Over the years, with the growth of medical knowledge, the rules became the object of increasing
criticism, especially from psychiatrists who pointed out there were many mentally ill people who
though were able to appreciate intellectually that an action is wrong, nevertheless were under
intolerable emotional pressure to commit it (e.g. paranoia). In England, by 1953, the Royal
Commission on Capital Punishment was able to declare the M’cNagnten test as “so defective
that the law on the subject ought to be changed”, 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 disease or deficiency, incapable of preventing himself from committing an unlawful
act. In the event, the British Parliament did not alter the rules but provided, though only in
respect to murder cases, that if a person were to kill another while suffering from such
abnormality of mind as substantially impaired his mental responsibility for his act, he should be
guilty only of manslaughter. From the 1870s, rules of a kind more favorable to the psychiatric
view were gradually evolved, culminating in 1954 in the leading case of Durham v. U.S, in
which the test was stated to be: simply that an accused is not criminally responsible if his
unlawful act was the product of mental disease or mental defect. But the Durham rule itself gave
rise to objections. The difficulty centered round the use of the term “mental disease or defect”
without further explanation, which was said to surrender too much of the decision in insanity
cases to the psychiatric experts, who were by no means agreed among themselves. The Durham
Rules gave no help to the layman, whether judge or jury, who had to determine the responsibility
in the case.

Insanity in Nigerian law

According to section 28 of the criminal code, a person is not criminally responsible for an act or
omission if at the time of doing the act 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 of
capacity to control his actions, or of capacity to know that he ought not to do or make the
omission.

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 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 induced by the delusion to believe to
exist.

The issue of insanity may arise at two different stages. Before the trial commences, or even
during the trial, there is the problem that an accused may be so insane as to be incapable of
making his defense and even if he is so capable, he may claim that at the time he committed the
act alleged he was so insane as not to be criminally responsible. These shall be discussed in
turns:

(a) Incapacity to make a defense: If the judge has reason to suspect, either before the
commencement or during the course of the trial, that an accused is of unsound mind, and
consequently incapable of making his defense, then before proceeding any further, the court
must investigate the question, taking such medical evidence as required. If the court is not
satisfied that the accused is capable of making his defense, then the trial shall be postponed and
the accused remanded for a limited period of observation by a medical officer. If the medical
officer certifies soundness of mind and capacity to make a defense, the trial proceeds, unless the
court is satisfied to the contrary. If he certifies incapacity, the court may still proceed with the
trial if not satisfied with his certificate. If satisfied, it may release the accused on bail or (more
usually) report the case to the Governor or President, who may order the accused into custody.
When anyone confined in this way is subsequently certified capable of making a defense, then
the trial may proceed.

(b) The legal meaning of insanity and responsibility for it: The defence must establish:

(1) that at the time of committing the crime, the accused was in a state either of mental disease
or of natural mental infirmity.
(2) it must also be shown that the disease or infirmity was such to have deprived him, either
(i) of his capacity to understand what he is doing or
(ii) of his capacity to know that he ought not to do the act or make the omission or
(iii) of his capacity to control his action.

These elements will be discussed in turn.

1.7.4 Automatism: Section 24 of the Criminal Code provides a defense where an act or
omission is independent of the exercise of will.