The conduct of the people in any organized society must be regulated in order to ensure stability and social harmony. This is done through the mechanism of the law which has criminalized certain acts and omission as crimes. Crimes are those breaches of the law which the law forbids and also failing by way of missions to do, what the law has commanded. It follows that since different sets of people have defined crime according to their perceptions, we shall predicate our definition of crime on those perceptions in order to give a clearer understanding and right focus.
The focus of this unit is to define crime. At the end of this unit, you should be able to: define crime generally explain how learned writers have defined crime Mexplain know how the courts, through cases, define crime state know how various statutes or enacted laws define crime distinguish crime from acts or omissions which are not crime but immoral.
3.0 MAIN CONTENT
3.1 Understanding Definitions of Crime
There have been problems in the definition of crime and the definition of crime and the consistent application of the components of such definition in tailoring the specific offences or crime i.e. the application of the definitions in the formulation of criminalization policy.
Though Criminal Law has been in operation in human communities for several centuries, yet lawyers have so far never agreed on any satisfactory definition of the word Crime. But lawyers cannot afford not to conform to the demands made upon sociologists by Emile Durkheim, namely that the first step of the sociologist … ought to be to define the things he treat, in order that his subject matter may be known. This is the first and most indispensable condition of all proofs and verification. The lawyers despite their quibblings in definition, however, seem to have accepted by conduct an operational definition, but expressed and explained in the words of Terrence Morris, that “crime is what society says is crime” by establishing that an act is a violation of the Criminal Law.
The Nigeria Criminal Code appears in effect to have adopted this approach when it defines an offence (or a crime) 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 order in council, ordinance, or law or statute.
The definition, according to Professor A.A. Adeyemi, is an approach which is a shining example of mental inertia, wrapped up in the cloak of an “a posteriori” rationalization, just like any of the other individual definition.
Another definition that is being suggested is a definition based on an “a priori” approach. This approach can be usefully employed in streamlining the criminal saw in a way that will better adapt it to the fulfillment of its role at the commencement of the Criminal process as a selection instrument. The a priori approach is suggesting a definition of crime based on morality. It is opined that criminal law must reflect the values and aspirations of the Community in which it operates in reflecting the Morality of that Community; it is thereby reflecting its culture. However, the argument must not be understood to mean that courts should be enforcing Morality per se. Rather, it means morality must be the basis of criminal law i.e. the criminality or otherwise of an act should depend upon the degree of its anti-sociality or otherwise of an act must be viewed with reference to the accepted rules of Morality of the community in question. It is on this basis that crime is defined as “an act or omission which amounts on the parts of the doer or omitter, to a disregard of the fundamental values of a society thereby threatening and/or affecting life, limb, reputation and property of another or the citizens, or the safety, security, cohesion and order (be this political, economic or social) of the community at any given time to the extent that it justifies society’s effective interference through and by means of it appropriate legal machinery”. This is an “a priori” definition
However, the failure of lawyers to agree on a particular satisfactory definition of crime has led to other multiplicity of definitions which are institution-based, they are within the acceptable limit and all have the colouration of the “a posteriori and “a priori” approach to the definition of crime.
3.2 Juristic Approach to the Definition of Crime
For the purpose of this lecture, the words “crime” and “offence” have the same meaning assigned to them because they mean one and the same thing.
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 above definition leads us to a distinction between the accusatorial procedure in which the accused is deemed not guilty until he is found guilty and inquisitorial procedure wherein the person is neither charged nor accused but an inquiry is made before commission for trial.
Richard Quinney, in his book “The Social Reality of Crime” (1970), defined crime as a human conduct that is created by authorized agents in a politically organized society.
The sociologists and Criminologists define crime to mean nothing other than a labeling process or that a crime is nothing other than a label attached to a behaviour by those in power. In addition, they hold the opinion that crime is the consequence of social interaction. From the totality of the above definitions advanced by learned writers, it is suitable to say that crime is that act or omission which the state has prohibited or commande.]
SELF ASSESSMENT EXERCISE 1
3.3 Judicial Approach to the Definition of Crime
In the all important case of R. V Tyler 2 QB 594, crime was defined as an act committed or omitted in violation of public law either forbidding or commanding it. This is a definition, which has taken root from the definition advanced by Blackstone in the book “Commentaries on the laws of England” Another case which has defined crime is Conybeare v. London School Board (1961)1 QB 118 where Day, J. stated that a crime is an offence against the crown ofor which an indictment will lie. It appears that this definition is narrow because it seems to have ignored minor offences that can be tried summarily and not by indictment.
SELF ASSESSMENT EXERCISE 2
3.4 Statutory Approach to the Definition of Crime
The Criminal Code Act, cap. 77 Laws of the Federation of Nigeria 1990 particularly in section 2 thereof has defined crime thus: “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 and offence”. From the above definition, it can be seen that if a particular act or omission has not been criminalized as a crime by the Code or any other criminal statutes, such act or omission cannot be regarded as an offence in the eye of the law. Furthermore, section 11 of the Criminal Code which deals with the effect of changes in law provides that a person shall not be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred. The Penal Code Law of Northern Region has also legislated elaborately on this; See S. 3(1) of the Penal Code Law.
The Constitution of the Federal Republic of Nigeria 1999 has provided for the definition of crime in its section 36 (12) when it says that subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and penalty therefore is prescribed in a written law which refers to an Act of the National Assembly or a law of State, any subsidiary legislation or instrument.
By the above provisions of the Constitution for any act or omission to constitute an offence, it must have been provided for a written law and punishment for such offence prescribed accordingly in a written law.
Section 36 (8) of the 1999 constitution states that no person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitutes such as offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.
The above section speaks against retro-active application for an offence or omission. It emphasizes the fact that a person can only be punished based on an existing law and on the punishment which that law has expressly provided for.
For more in this area of the law, see the cases of Aoko v. Fagbemi (1961) 1 All NLR 400 and Udokwu v. Onugha (1963) 7 ENLR P. 1
SELF ASSESSMENT EXERCISE 3
- Can an act or omission not contained in any law and be regarded as a crime?
- Can an accused person who has been convicted of an existing offence be sentenced to punishment which is not contained in the law creating that offence?
3.5 Crime Distinguished from Sin
We have seen crime to be an act of omission which the law has labelled as such. But immorality or sin is a different thing. It is an act which society or community abhors. It is an act of moral depravity. Thus it can be said that an act may be immoral but not a crime. Though many illegal or criminal acts are immoral, not all immoral acts are criminal. For instance, in the Criminal Code which applies in the Southern States of Nigeria, adultery is not a crime though it is an act of immorality.
But conduct such as stealing may constitute both a crime and an immorality and that is not to say that crime and immorality are the same thing. They are not so and therefore cannot be.
The dictum of Lord Atkin in Proprietary Articles Trade Association v. A.G. for Canada (1931) AC. 310 at 324 said “Morality and Criminality are far from co-extensive, nor is the sphere of criminality necessarily part of amore extensive field covered by morality – “unless the moral code necessarily disapproves of all act prohibited by the State in which case, the argument moves in a circle.” Strictly speaking what the immortal words of Lord Atkin means is that crime and sin or immorality do not have the same scope and extent.
This means that as they are co-extensive, they are far from having the same scope extent and direction.
It is however, important to note that when the criminal law reflects the society’s sense of morality, the task of law enforcement is likely to be easier. This is because members of that society would feel a sense of obligation to obey the law.
SELF ASSESSMENT EXERCISE 4
- Is it proper for someone to be prosecuted in court for committing an immoral act?
- Why do we say that crime and immorality are far from co-extensive?
This unit is very important in that attempts were made at defining crime. The different schools of thought tried to define crime from their own institutional and perspective view points. Having read through this unit you should be able to define crime and should be, able to discuss the relationship between your definition and what operates in Nigeria. As you go further in your studies these concept shall become clearer to you.
The study of this unit highlights the following facts: The word crime is not different from the word offence. That is if a particular law does not make a particular act or omission an offence, such act or omission cannot be regarded as an offence. While the juristic approach defines crime as an offence against the State, the judicial approach defines crime as an act in which an indictment or an information will lie. The Statutory approach emphasizes the criminalization of an act or omission for such to be regarded as an offence. Crime and immorality belongs not to the same but to different regimes of behaviour.
6.0 TUTOR-MARKED ASSIGNMENT
1. Using known approached, critically examine the definition of crime