A Synopsis for the Lawyer and Law Student on the Nature of Crime and the Criminal Law1

-- Abiola M. ISIKALU

1.

The idea of crime has been with several generations of human civilisation, in several

shapes and shades. Crime connotes the presence of some body of rules, values and morals that regulate human conduct; the violation of which attracts sanctions. The concept of crime changes from generation to generation just like other parts of the social system. The intertemporal and inter-spatial nature of crime lends itself to disputations of what can be said to be universally acceptable legal standards upon which crime may be assessed. What may be crime today may have been acceptable human conduct about 200 years ago. For instance, the English Emancipation Act (1833) brought to an end an acceptable business enterprise that most European and American nations depended on for labour in their plantations and factories; dealing in human beings as though they were mere chattels, not minding how many of them were killed in dehumanising conditions in the slave ships from Africa to the then enlightened world. The Act of 1833 and the subsequent one of 1835 suddenly criminalised such an act of immeasurable economic advantage to Europe and America. Were there no criminal laws in place in such countries that were the inhuman beneficiaries of such intellectual and callous depravity? Or was it simply that they ignored their municipal criminal codes as far as the victims of their crimes were not from England, France and the Americas? Or is it that what at all times are acceptable conducts is a question of who the aggressors or the victims are? Or has there always in reality been nothing like international criminality as far as such conduct meets the so-so thought patterns of the leaders of the international community? Or is it that the idea of the effectiveness of the United Nations as an organisation depends not on some agreed international rules as expressed by the Charter but on the policy directives and acceptable norms of some hyper super powers? Or is the concept of Article 2(4) a question of convenience of the actors? Or can such acceptable international laws be disregarded on the altar of the convenience of national interest?

See generally: Smith and Hogan (1999): Criminal Law; Cases and Materials (Seventh Edition): Butterworths: London; Molan, M. T, (2003): Criminal Law (Fourth Edition): Old Bailey Press: London; Ormerod, D., (2005): Smith & Hogan Criminal Law (Eleventh Edition): Oxford University Press; Dressler, J. (1999): Cases and Materials on Criminal Law (Second Edition): American Casebook Series: West Group; Dambazau A.B (1999): Criminology and Criminal Justice: NDA: Nigeria and Lippman, M. (2007): Contemporary Criminal Law: Concepts, Cases and Controversies: Sage Publications: London.
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Crime has been often used interchangeably with words like offences, violations, misdemeanours, felonies, infractions and other similar terminologies which portray the idea of violations of certain norms and standards of behaviour of the state. What may be criminal behaviour giving rise to personal criminal liability in one sovereign nation may be an acceptable conduct within the jurisdictional standards of another country. Are there any acceptable international standards or measures when it comes to crime? Are there some forms of uniform jurisprudential approaches to the idea of crime? Or will there ever be any form of unification of the disparate legal regimes of criminality in the world? It is often puzzling that an act by one State which meets with the approvals and legitimacy of that State, in the next, perhaps, neighbouring nation, that same act is regarded as a gross violation of, not only municipal laws, but sometimes, they are seen as violations of laws of humanity, calling for condemnation from the international community. A classical example is the idea of hijackings of aircrafts by groups in the Middle East backed by their nations; just like the Entebbe rescue saga in 1976. The world waited in a state of helplessness while about 258 passengers of a French Aircraft were held hostage in Uganda. The act of the hijacking met with the obvious approval of the Ugandan Government and several of the Arab nations. Not only did they back the act of the hijacking, but they actively supported what was a clear illegality or criminality in other legal climes. One thing was clear, the world knew that there was a need to rescue the hapless travellers/hostages, the world generally, depending on which side of the divide or interest they found themselves could not close their eyes to the obvious crime. But how was this conduct to be treated as a crime? Should the concept of criminality be left in the realms of relativism? Or should there be some acceptable standards of judgement as to what should be considered crime at the international level? These and much more, are the issues that this book contends with. It does not by any stretch of the imagination pretend to have all the answers, but hopes to excite the intellect and the curiosity of those seriously seeking to find solutions to the question of criminality at the international level, to pursue the advancement of the body of research into this profound area of law. The concept of the definition of crime itself is an unenviable task as what crime entails attracts as many definitions as there are schools of thought. This paper will attempt the avoidance of verbiage and rather choose to align its thoughts on this subject with some of the scholarly conceptual approaches by some 2

distinguished authors. Crime, like many other concepts, lacks a universally accepted definition. One reason for this is that we all perceive things differently. Each man has his conceptualisation, and is governed by his own delineation, of meaning, as such there is no universal truth; no unified theory. Providing a universally acceptable definition of a crime as law would, therefore, prove to be a herculean endeavour2 as the nature of crime is inherently subjective. Subjective in that, it would, no doubt, take into account the place and the time of the one defining it. Hence any attempt at definition of a crime will thus either include the act at a time when it is not a crime, or exclude it when it is. Not only does the definition of crime vary from culture to culture, but with any one people, legal prohibitions and their enforcement may be relative to particular social needs and circumstances.3 For instance, in the United Kingdom, suicide was a crime until 3rd August, 1961 when, by the Suicide Act of 1961, it became perfectly lawful to kill oneself. Emile Durkheim, viewed crime within a sociological standpoint, postulating that crime is normal in all societies. He went further to posit that: a society exempt from crime would necessitate a standardisation of moral concepts of all individuals which is neither possible nor desirable.4 Following this sociological outlook, the Encyclopedia Americana could state simply that crimes are acts that are legally forbidden by a society. The positivists, on the other hand view crime more as an interplay of psychological factors, discarding any legal meaning of crime due to the fact that they were contingent (in that they depended on the unknown outcome). According to them, a criminal is a criminal simply because he is born as such. They view the element of criminality as being inherent in the genetic make-up of the individual and that criminal behaviour is inevitable in such an individual. On the elusive nature of crime, a United Nations Research Institute observed that:

To ask what is a crime? is certainly not a novel endeavour. For decades academics from numer ous disciplines (such as law, sociology, and criminology) have struggled to understand various aspects of this question. From studies that examine the factors contributing to the enactment of certain prohibitions or the impact of law and its enforcement, to studies that focus on the events that precede the decriminalization of certain behaviour, there are countless examples of scholarly work dedicated to exploring the nature of crime and its control. In the last half of the twentieth century, various scholars noted that crime is not an objective phenomenon and that the way in which certain behaviour is understood and responded to is more a reflection of how society is structured than an indication of any inherent problems with those individuals regarded as criminals. In the 1940s, for example, Edward Sutherland introduced the concept of white -collar crime to draw attention to crimes committed by the upper class and corporate elite, thereby challenging the common perception that crime was committed primarily by those in the lower class. See Law Commission of Canada (2004): What is a Crime: Defining Criminal Conduct in Contemporary Society: UBC Press, Vancouver, Toronto, p. vii viii. 3 Encyclopedia Americana, Vol. 4, p. 193.
2 4

Durkheim, E., The Division of Labour in Society, G. Simpson (trans), New York: McMillan, 1993.

Crime in the sense of a breach of a legal prohibition is a universal concept, but what actually constitutes a crime and how seriously it should be regarded, varies enormously from one society to another. Perceptions of crime are not determined by any objective indicator of the degree of injury or damage but by cultural values and power relations.5 However, the exposition of any construct would be unbalanced without adopting some form of definition. A simple matter it would be to state that a crime is an act which is offensive and subject to the meting out of a penalty by a duly constituted authority; this would, no doubt, be adequate to the layman. However, the lawyer and the law student would not be satisfied by such a definition sensu lato. This paper will thus, be concerned with the legal implication of crime. Crime, for the purposes of definition, may thus be construed as any act or omission, carried out with the intent of causing injury to another (individual or group), and which is prohibited by the criminal law of the place where it is committed (or, as evinced in modern times, the place where the result of the act is manifest), as at the time it is committed; subject to determination of a proportionate penalty by a duly constituted authority. An analysis of the law as it is laid down would serve to give us an insight as to how a particular society sees crime. However, if we take a step back from this literal interpretation to consider the broader social processes that help give meaning to crime and its control, it quickly becomes apparent that there is much more to the question than simply referring to what is written in the law. 6 As Comack and Brickey (1991, 15) remind us, law can be said to have a distinctly social basis; it both shapes and is shaped by the society in which it operates. The Encarta Encyclopaedia (2009 Edition) defines a crime as: commission of an act or act of omission that violates the law and is punishable by the state. Crimes are considered injurious to society or the community, as distinguished from torts and breach of contract. Tappan (1960, 10) provides this definition: Crime is an intentional act or omission in violation of criminal law (statutory or case law), committed without defence or justification, and sanctioned by the state as a felony or misdemeanour. The Nigerian Criminal Code Act takes a different approach in its conceptualisation of the word crime. Rather than look at the elements of crime, it seeks to classify crime under three sub-headings of felonies, misdemeanours, and simple offences, all depending on the gravity of the punishment attached to each conduct. A crime is thus defined as:

States in Disarray: The Social Effects of Globalisation , United Nations Research Institute for Social Development, 1995. 6 Law Commission of Canada (2004): What is a Crime: Defining Criminal Conduct in Contemporary Society : UBC Press, Vancouver, Toronto, p. vii.
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Offences are of three kinds, namely, felonies, misdemeanours, and simple offence. A felony is any offence which is 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. A misdemeanour is any offence which is declared by law to be a misdemeanour, or is punishable by imprisonment for not less than six months, but less than three years. All offences, other than felonies and misdemeanours, are simple offences. 7 The law governing the regulation of crime is commonly referred to as criminal law; that is, that body of governing rules and binding principles passed by the duly constituted lawmaking power of a State, which seeks to prohibit criminal behaviour and punish recalcitrance. The basic fundamentality of the criminal law is simply that there can be neither crime committed nor punishment meted out except in accordance with the law. This principle is expressed by the Latin maxim nullum crimen nulla poena sine lege; in other words, nothing is a crime unless forbidden by the law. This principle is necessitated by Article 11(2) of the United Nations Universal Declaration of Human Rights (1948) which states as follows: No one shall be guilty of any penal offence on account of any act or omission which did not constitute a penal offence at the time it was committed; nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. The criminal laws assertion to jurisdiction over conduct in breach of its rules encompasses two claims: the first is that it (expressly or impliedly) defines such a conduct as criminal, and the second is that there must be in existence a duly constituted authority (such as a court) having jurisdiction to try such an alleged perpetrator for such conduct. In summary, crime in whatever form it takes, or by whatever approach it is conceptualised, whether by the sociologist, the psychologist, the criminologist, the moralist or the legal jurisprudential, is basically of the following qualities: i. It is a conduct which may be a commission or omission; ii. It runs contrary to the acceptable legal standards whether real or perceived of a given sovereign entity; iii. There are prescribed penalties, punishments or sanctions attached to such conduct; iv. There is a constituted legal institution whether general or specialised that is, like a court or tribunal or panel, saddled with the interpretation and administration of such a law;
7

Section 3, Laws of the Federation of Nigeria, 1990, CAP 77.

v. Through such court or tribunal or panel, personal or corporate criminal responsibility is established with respect to such conduct; vi. The offender is made to feel the full weight of the sanctions through the processes prescribed by the law, that is, statutory and judicial or customary (as in the case of international law). In other words, a crime is a crime when the above elements are in place. Several conducts appear to be so close and yet do not attract criminal liability. For instance, the distinction between morality, ethical standards, traditions, customs and crime. In some legal regimes, conducts which give rise to criminal liability may at best be left in the realms of moral suasion. For instance, under the Nigerian Criminal Code Act8(applicable to the Southern States), adultery is not a crime, despite its being highly condemned by religious institutions, it is at best a ground for divorce under the Nigerian Matrimonial Causes Act9. What must be seen as a crime may also be condemned by these other close social concepts like morality. For instance, murder, stealing, deceit, corrupt enrichment, all amount to highly condemnable conduct by Christians, Muslims and most other religious institutions.

2.
Like most socio-legal concepts, the evolution of the regime of criminal law has its roots in several ancient sources. Popular among such historical sources include: i. The early codified law, traced to the cradle of civilisation, the present Middle East. This is historically traced as far back as 2000 BC, with the Babylonian Code of Hammurabi10. The ancient Mesopotamians put more emphasis on legalism than doing what seemed right and good in a given circumstance. Many of the codes were very specific and levied extreme, heavy penalties on any one who broke them. They strove for precise obedience to the stated requirements. The Code of Hammurabi left no room for excuses or accidents.11 ii. The Mosaic Code of the Israelites. This dates back to as early as 1200 BC; and

Ibid. Laws of the Federation of Nigeria, 1990, CAP 220. 10 The Code of Hammurabi has been recognised as one of the most ancient written laws known to man. See Dambazau, A. B (1999): Criminology and Criminal Justice; Kaduna: Nigerian Defence Academy Press.
8 9 11

Ibid, p. 198.

iii.

The Roman Twelve Tables of 400 BC.

In the earlier times, there was the Justinian Corpus Juris Civilis. This represented the body of civil laws as far back as about 600 AD. This appears to have been the earliest effort at codification of law and clearly summarised the entire system of roman laws that had developed since the Twelve Tables. It is strongly believed that this early codified law provided the necessary background for the Napoleonic I French Civil Code in the 17th century. Another important source of criminal law and perhaps the most important of contemporary usages is the English Common Law. It should first be noted that unlike most other jurisdictions, England and Wales do not have a criminal code. From very early times Parliament has created criminal offences. These have always taken effect in the context of the common law of crime, that is, the law made by the judges in the decided cases. Whereas civillaw judges resolve disputes by referring to statutory principles arrived at in advance, commonlaw judges focus more intently on the facts of the particular case to arrive at a fair and equitable result for the litigants. As the number of judicial decisions accumulate on a particular kind of dispute, general rules or precedents emerge and become guidelines for judges deciding similar cases in the future. Subsequent cases, however, may reveal new and different facts and considerations, such as changing social or technological conditions. A common-law judge is then free to depart from precedent and establish a new rule of decision, which sets a new precedent as it is accepted and used by different judges in other cases. In this manner, common law retains a dynamic for change; as the U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. wrote in his book, The Common Law (1881): The life of the law has not been logic; it has been experience. Criminal law strives to guard the community from injury by perpetrating chastisement upon those who have already completed harm and by threatening with chastisement those who are drawn to do harm. The harm that criminal law objects to prevent differs. It may be corporeal harm, demise, or physical injury to human beings; the forfeiture of or damage to chattels; sexual decadence; peril to the regime; disturbance of the public peace and order; or injury to the public wellbeing. Demeanour that threatens to cause, but is yet to cause, a harmful result may suffice to constitute a crime. Thus, criminal law often struggles to avoid harm by forbidding conduct that may lead to harmful consequences. On the purpose of the law, research has noted that: 7

One purpose of both civil law and criminal law in the common law system is to respond to harmful acts committed by individuals. However, each type of law provides different responses. A person who is injured by the action of another may bring a civil lawsuit against the person who caused the harm. If the victim prevails, the civil law generally provides that the person who caused the injury must pay money damages to compensate for the harm suffered. A person who acts in a way that is considered harmful to society in general may be prosecuted by the government in a criminal case. If the individual is convicted (found guilty) of the crime, he or she will be punished under criminal law by either a fine, imprisonment, or death. In some cases, a persons wrongful and harmful act can invoke both criminal and civil law responses.12 The Texas criminal code in the United States of America, as cited in Matthew Lippman (2007: 5) proclaims that the purpose of the criminal law is to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which state protection is appropriate.13 The New York criminal code sets out the basic purposes of criminal law.14 To summarise the above, the criminal law has various purposes which include: Harm: to preclude conduct which causes direct or indirect harm to individuals or society, unjustifiably or inexcusably. Warning: to warn the public of conduct that is subject to such criminal punishment and the penalty thereof Definition: to define the nature and scope of each crime, comprising the requisite act and intent for each offence Categorisation: to clearly distinguish between serious and minor offences, apportioning proportionate punishments Punishment: to impose penalties satisfying the demands for revenge, rehabilitation, and deterrence of future crimes15

See the Microsoft Encarta Encyclopedia, 2009 Edition. See Texas Criminal Code, Section 1, sub-section 02. 14 New York Cons. Laws. Section 1, sub-section 05. 15 See Lippman, M, (2007) op. cit.
12 13

Further on the function of the criminal law, two views conflict: the Libertarian view is of the opinion that the only justification for interfering with the liberty of others is self-protection or the prevention of individual harm.16 Lord Woolfendens Report of the Committee on Homosexual Offences and Prostitution (1957, Cmnd 247) consented to the fact that homosexual acts between consenting adults should be removed as a criminal offence. Paragraph 13 of the Report was to the effect that the occupation of the law was to preserve public order and decency, to protect the citizen from that which is offensive or injurious and to provide sufficient safeguards against exploitation and the corruption of others, particularly those who are especially vulnerable. In the words of Duncan Bloy and Philip Parry: The Committees view was that there remains a realm of private morality and immorality with which the criminal law ought not to concern itself.17 In opposition to this view is the Authoritarian view which is represented by Lord Devlin. Lord Devlin criticised Woolfendens approach to private morality or immorality, postulating that: there are acts so gross and outrageous that they must be prevented at any cost , he went further to state that the suppression of vice is as much the laws business as the suppression of subversive activities.

Actus Reus
Criminal lawyers commonly speak of offences having elements, this is usually used to refer to the actus reus and the

16 17

See JS Mills essay On Liberty, (1859), 1974, Harmondsworth: Penguin. (1997): Principles of Criminal Law (Third Edition): Cavendish Publishing Limited: London

mens rea. This section will focus on the former, that is, the actus reus. In literal terms, actus reus connotes a guilty act; hence, one general basis for imposing criminal liability is that the alleged offender committed the guilty act. According to Blacks Law Dictionary, 8th Edition actus reus is a Latin phrase meaning guilty act. It portrays it as: The wrongful deed that comprises the physical component of a crime and that generally must be coupled with mens rea to establish criminal liability. It also portrays the phrase as: A forbidden act, for example, the actus reus for theft is the taking of or unlawful control over property without the owners consent. It is also termed as deed of crime or overt act. J.W. Cecil Turner, (1952): Kennys Outlines of Criminal Law 13 (16th Edition) provides as follows: The word actus connotes a deed, a physical result of human conduct. When criminal policy regards such a deed as sufficiently harmful, it prohibits it and seeks to prevent its occurrence by imposing a penalty for its commission. It has long been the custom of lawyers to describe a deed so prohibited by law in the words actus reus. Thus, actus reus may be defined as such result of human conduct as the law seeks to prevent. It is important to note that the actus reus, which is the result of conduct, and therefore an event, must be distinguished from the conduct which produced the result. For example, in a simple case of murder, it is the victims death, brought about by the conduct of the murderer which is the actus reus: the mens rea is the murderers intention to cause that death. In other words, the crime is constituted by the events and not by the activity (or in certain cases, as we shall see by the omission to act) which caused the events. To drive home this point, a consideration of the duties of a fire service officer to act to stop a fire starting in a building to which he is posted on duty; a person is eventually killed by the fire which burns down the entire building. His inactivity or failure to act amounts to an activity which leads to the occurrence of the death of the occupant of the premises. For a case of murder or manslaughter (depending on the degree of the firemans complicity) his failure to act or inactivity constitutes the necessary activity or ingredient that leads to the actus reus; the death of the victim. Rollin M. Perkins & Ronald N. Boyce, (1982): Criminal Law (Third Edition) 831 provides as follows: The phrase deed of crime (that is actus reus) as so used does not indicate the crime itself but merely one of the ingredients of crime: and this ingredient may be present without any crime at all, just as hydrogen is one of the ingredients of water but may be present without water. The words deed of crime are so suggesting of the crime itself, however, that perhaps the Latin phrase actus reus is less likely to cause confusion. The actus reus is essential to crime but is not sufficient for this purpose without the necessary mens rea, just as mens rea is essential to crime but is insufficient without the necessary actus reus. 10

In other words, the ingredient of actus reus is the act of the crime itself. The process of placement of where the crime actually occurs is highly relative to the crime in issue. For the crime of an assessory before the act, it is just enough that the accused stumbled on some information that a crime was about to be committed and fails to give notice of such relevant information to the law enforcement agencies. The actus reus in such a case is actually the failure to disclose the information perhaps necessary to prevent the crime, to persons in authority. The actus reus for an attempted murder may be more fluid and difficult to pinpoint depending on the exact details of the case itself. However difficult it may be, once the assailant has taken some step in the hope of eliminating or fatally injuring his victim, and is prevented from succeeding in killing the victim, that act of the first blow that was not hard enough to decapitate the head of his victim from the body, leading to the apprehension of the attacker evinces of the actus reus of the crime of attempted murder. The fact of the occurrence of an act no matter how close or grievous or condemnable it may appear will not suffice to invoke criminal liability. For instance, if one parks his bicycle at the shopping mall and a man happens to pull it out of the rack, rides it home and parks it in his garage; does that suffice to constitute theft? This question proves difficult because he could have simply mistaken the bicycle for his, due to the fact that they are exactly the same colour and model. The moment the accused successfully establishes the fact of his action being actuated by an innocent mistake, it has successfully destroyed any hope of establishing the necessary mens rea to ground a conviction for theft of the said bicycle.

Mens Rea
The second and equally essential ingredient for the establishment of criminal liability is the mens rea. Etymologically, mens rea in Latin means guilty mind and this requirement is most commonly expressed in the Latin maxim: Actus non facit reum nisi mens sit rea, to the effect that an act shall not make a person guilty unless the mind is guilty. The Blacks Law Dictionary, 8th Edition sees mens rea as: The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime: criminal intent or recklessness for instance, the 11

mens rea for theft is the intent to deprive the rightful owner of the property. Mens rea is the second of the two essential elements of every crime at common law, the other being the actus reus. Mens rea is otherwise described as the mental element. Without the necessary mental element, most crimes, except of strict liability, will not receive a conviction. It is also otherwise described as the criminal intention that is to say, that the criminal foresaw and desired the consequence of his actions. No matter how grievous an act whether it be as serious as murder or treason there must be the necessary criminal intention before criminal liability can be grounded. If a man accidentally bumps into another man, that unknown to him has an eggshell skull, the eggshell head is blown to pieces, and of course, the man dies. The mere death of the man without the necessary guilty intent or mens rea is not sufficient to ground a conviction for murder. There must be the presence of the mental element, that is, the criminal intention to commit the crime, otherwise, there can be no conviction. In the case of Allard v. Selfridge (1925) 1 K.B at 137 Shearman, J. stated: Most English lawyers would however now agree with Sir James Fitzjames Stephen that the expression mens rea is unfortunate, though too firmly established to be expelled, just because it misleadingly suggests that, in general, moral culpability is essential to a crime, and they would assent to the criticism expressed by a later judge that the true translation of mens rea is an intention to do the act which is made penal by statute or by the common law.18 It is simply by virtue of this fact that the mens rea is incapable of any precise definition. There is simply no method to determine a criminals exact state of mind while committing an act. If, for instance, a man runs down a woman with his car, and it is clear from the circumstances that he intended to kill her, or through a declared statement of his motives, then there is no doubt as to his guilt. However, this will be quashed if the accused argues the contrary.
See Hart H.L.A., (1968): Legal Responsibility and Excuses, in Punishment and Responsibility 28, 36.
18

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This is also the case of an act comparatively innocent, but from which a guilty state of mind can be inferred if such an act is clearly calculated to lead to harmful consequences, as arose in The Harlots Case (1576). Furthermore, it has been noted that where the essence of a statutory offence is the existence of a specific intent the burden of proving it rests on the Crown, and in any case it will not necessarily be sufficient to rely on the presumption that a man intends the natural consequences of his acts, while in particular such a presumption cannot be relied upon when the accused is subject to the power of an enemy.19 This was the case in R v. Steane (1947) K.B. 997, where the facts are as follows. Steane was charged under Regulation 2 (a)20 of the Defence (General) Regulations, 1939, with doing acts likely to assist the enemy, with intent to assist the enemy. He had been employed as a film actor in Germany for some time before the outbreak of the war of 1939 45, and he was then residing in Germany with his wife and children. Shortly after the outbreak of the war, he had an interview with representatives of the German Government at which he was knocked down and told to say Heil Hitler! In consequence of threats subsequently made against himself, his wife and children, he broadcast news for the Germans between January and April 1940. Subsequently, and after further threats were made against himself and his family, he returned to work for his former employer, and assisted in the preparation of films until 1945. He swore that, throughout, he had no intention or idea of assisting the enemy, and that his sole object had been to save his wife and children from trouble. HENN-COLLINS, J., in effect directed the jury that, if they were satisfied that the accused had done acts which were likely to assist the enemy, the intent to do so might be presumed, and Steane was convicted and sentenced to three years penal servitude. He appealed to the Court of Criminal Appeal against his conviction, which was quashed on the ground of misdirection of the jury. Extracts from the Judgment of the Court of Criminal Appeal. LORD GODDARD, C.J. ... While no doubt the motive of a mans act and his intention in doing the act are, in law, different things, it is, none the less, true that in many offences a specific intention is a necessary ingredient and the jury have to be satisfied that a particular act was done with that specific intent, although the natural consequences of the act might, if nothing else were proved, be said to show the intent for which it is done. To take a simple illustration, a man is charged with wounding with intent to do grievous bodily harm. It is proved that he did severely wound the prosecutor.
19 20

Cross, R & Jones, A.P. (1968): Cases on Criminal Law (Fourth Edition): Butterworths: London Since revoked.

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Nevertheless, unless the Crown can prove that the intent was to do the prosecutor grievous bodily harm, he cannot be convicted of that felony. It is always open to the jury to negative by their verdict the intent and to convict only of the misdemeanour of unlawful wounding. ... No doubt, if the prosecution proves an act the natural consequence of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged, but if on the totality of the evidence there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jurys satisfaction, and if, on a review of the whole evidence they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted. ... In this case the court cannot but feel that some confusion arose with regard to the question of intent by so much being said in the case with regard to the subject of duress. Duress is a matter of defence where a prisoner is forced by fear of violence or imprisonment to do an act which in itself is criminal. ... There is very little learning to be found in any of the books or cases on the subject of duress and it is by no means certain how far the doctrine extends, though we have the authority both of Hale and of Fitzjames Stephen, that while it does not apply to treason, murder and some other felonies, it does apply to misdemeanours; and offences against these regulations are misdemeanours. But here again, before any question of duress arises, a jury must be satisfied that the prisoner had the intention which is laid in the indictment. Duress is a matter of defence and the onus of proving it is on the accused. As we have already said, where an intent is charged on the indictment, it is for the prosecution to prove it, so the onus is the other way. Now, another matter which is of considerable importance in this case, but does not seem to have been brought directly to the attention of the jury, is that very different considerations may apply where the accused at the time he did the acts is in subjection to an enemy power and where he is not ... if invasion had unhappily taken place, British subjects who might have been set to work by the enemy digging trenches would undoubtedly be doing acts likely to assist the enemy. It would be unnecessary surely in their cases to consider any of the niceties of the law relating to duress, because no jury would find that merely by doing this work they were intending to assist the enemy. Sources of Criminal Law A source is that from which a thing derives its form or substance, and without which that thing cannot possibly exist. A source of law is, therefore, those elements that conspire to give a rule of law its validity and force. I.A. Shearer notes in his Starkes International Law that due to the diverse nature of law and the lack of a universal definition thereof, the term sources of law has engendered substantial debate among writers and is capable of taking on more than one connotation. Writers often speak of formal sources, material sources, evidentiary sources, and so on. The distinction between formal and material sources has been explained by Salmond21 in the following terms:

21

Jurisprudence (7th Edition, 1924), paragraph 44.

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A formal source is that from which a rule of law derives its force and validity.... The material sources, on the other hand, are those from which is derived the matter, not the validity of the law. The material source supplies the substance to the rule to which the formal source gives the force and nature of law. In spite of all the distinction of sources, writers are agreed that the sources of the criminal law comprise of the following: English and American Common Law Federal and State criminal codes Municipal ordinances Federal and State constitutions International treaties

English and American Common Law: The English common law evolved based on a system of judge-made law. Under this system, decisions taken by judges in prior cases served as a guide point for subsequent cases. This system formed the foundations for the American common law system as well as the systems in those countries colonised by England. The doctrines that encompassed this common law began to be written down in the 1300s in an effort to record the judge-made rules that should be used to decide future cases.22 Federal and State Criminal Codes: The criminal codes of States, federal and state constitutions, and municipal ordinances, also form part of the sources of the criminal law as they are the municipal laws enacted by such States to govern relations within that State. International Treaties: Treaties also form a succinct part of the criminal laws of States as States have jurisdiction to try such acts that are condemned as grave breaches of the laws of armed conflict or crimes against humanity.

22

Lippman, M. (2007: 5).

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