The criminal law is instituted as a mechanism to protect society and the individual against injuries that humans are capable of, and have shown themselves to be capable of, inflicting on other humans and institutions.
The Wolfendon Report in 1957 gave the following as the functions of the criminal law, which seeks to:
⦁ preserve public order and decency
⦁ protect the citizen from what is offensive or injurious
⦁ provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence.
Criminal law is deemed to be an instrument of safety. Criinal law is institutionalized because it is not only about the infringements on private rights but also has an effect on the public as a whole. It is aimed at forbidding conduct that threatens to do substantial harm to society, even if the victim is just an individual.
Why Should Criminal Conduct be Defined?
The American Law Institute’s Model Penal outline provided that criminal conduct must be defined in order:
• To safeguard conduct that is without fault from condemnation as criminal
• To give fair warning of the nature of the conduct declared to be an offence
• To differentiate on reasonable grounds between serious and minor offenses
In short, a person must know what conduct is prohibited as a crime. PARKER v GREEN
IS CRIMINAL LAW SEPARATE FROM MORALITY?
Criminal law is based upon moral principle – however one looks at it. However, the problem is that none of the moral codes can claim any validity except by virtue of the religion or creed on which it is based.
In PROPRIETARY ARTICLES TRADE ASSOCIATION v AG FOR CANADA, Their Lordships opined that
“Morality and criminality are far from co-extensive; nor is the sphere of criminality necessarily part of a more extensive field covered by morality – unless the moral code necessarily disapproves all acts prohibited by the State, in which case the argument moves in a circle”
In terms of private morality, there are two schools of thought as to whether it should be classified as law. Lord Devlin, who belonged to one school posits that it is not possible to set theoretical limits to the power of the State to legislate against immorality (private ones of course). He asserts that it is not possible to determine in advance areas of immorality the law should not be made to enter. The other school also posit that the immorality of an action is not itself sufficient reason to criminalize it – therefore, as long as the act does not harm any other person, perhaps except the actor himself, there is no justification in criminalizing the act. They further contend that whilst it may legitimate to criminalize an act that causes harm to another person, but where there is no victim, it is pointless to criminalize the act and such conduct they term as victimless acts. GLAH v THE REPUBLIC.BEATTY v GILLBANKS
COMMISSIONER OF POLICE v. BELLO
Facts: the appellant prepared some documents for the complainant who was illiterate and charged an amount for the services. He however issued a receipt for a lesser sum and was subsequently convicted of stealing. Held the act complained of did not constitute a crime within our statute books. For it to be stealing the money must have been dishonestly appropriated and to be larceny by trickery the said property must have passed into the possession of the appellant by trickery with the complainant not willing to part with the property but only possession. From the facts the money was paid as a result of a valid contract thus not a crime and the only remedy available is through a civil action
Comment; the fact that an act is wrong does not impute as a crime unless the said act is define as such within the statute books. Moreover, some immoral acts as in the present case cheating are not crime as they do not affect the public as a whole. The mere fact that an act is morally wrong does not mean it is a crime.
WHAT IS A CRIME?
Crime does not lend itself to easy definition. As such, an effort is made only to describe it. In law, a crime is defined by reference to the legal consequences of the act in question. Therefore, a crime is an act that may be followed by criminal proceedings.
From this, a criminal proceeding is where the proceeding imposes a penalty for an offence against the public, and the penalty is meted out by judges according to the magnitude of the offence. PARKER v GREEN, AMAND v HOME SECRETARY, BROWN v ALLWEATHER GROUTING CO. LTD. In short an act is a crime only if it is prohibited by statute and there is a penalty attached to the doing of that act.
A crime is differentiated from a civil wrong. Both may be an act or omission. What distinguish between the two is whether society has designated such an action or omission to be as such.
Civil wrongs are actions or omissions that are unacceptable but are personal in their effect rather than notionally affecting the whole society and for which society might not consider it necessary to punish the offender, so to speak. A crime is that act or omission that the State would punish
Until the State legislates to CRIMINALIZE an act, it is not a CRIME. Therefore, an immoral act or omission is not necessarily a crime, until a law is passed making it a crime. Glah v The Republic. For example, in Ghana, it is not a crime to engage in an adulterous relationship, or to engage in fornication. From this, it can be deduced that what amounts to a crime in one country may not be so in another country.
Crimes may be classified in reference to their conceptual immorality or inherent evil. In this respect, a crime may either be
⦁ malum in se; or
⦁ malum prohubitum
A malum in se crime is one that is wrong or evil in itself. This refers to conduct that is thought to be inherently wrong by nature – independent of laws governing that conduct. Eg. Murder.
A malum prohibitum crime is one that is wrong because it is prohibited – that is, conduct that is considered criminal only because it is prohibited by law – without such prohibition it would not be considered a crime.
COLLMAN V. MILLS
Case:
Facts: is
Held: the byelaw was good and the defendant was guilty and liable for the act of His servant that act having been performed in the general scope of his employment although contrary to the orders of the master.
Crimes are also classified according to their gravity and the seriousness society attaches to them. This is seen in Section 296 of Act 30. They are
⦁ Offences punishable by death.
⦁ First degree felonies
⦁ Second degree felonies
⦁ Misdemeanours
⦁ Offences punishable by fine
Offences punishable by death – also known as capital offences – are considered the most serious offences – e.g. murder, treason and high treason
The next in line in terms of gravity are first degree felonies – in Ghana, first degree felonies normally attract a prison term of up to life sentence – examples are rape, and causing harm with the use of an offensive weapon
Second degree felonies are considered less in gravity than first degree felonies – in Ghana, they attract a term of imprisonment not exceeding 10 years – examples abortion, causing harm, and threat of death. However, offences involving dishonesty, though second degree felonies, attract sentences of up to 25yrs – these include stealing, robbery, defrauding by false pretences etc.
Misdemeanours are less in gravity than felonies – in Ghana, misdemeanours normally attract a term of imprisonment not exceeding 3 years – examples are threat of harm, assault, and abduction. Then again, a fine (sum of money) may be imposed in addition to a prison term
However, where the only penalty for an offence is a fine, then the offence is a very minor one – examples are wilful neglect to fill up or transmit the certificate of a marriage to the Registrar of marriages; indecent inscriptions like advertisements in relation to venereal diseases or an advertisement claiming aphrodisiac properties for a preparation without the authorization of the Minister for Health etc.
PRINCIPLE OF LEGALITY
This principle is captured in the Latin maxim nullum crimen, nulla poena sine lege praevia lege poenali – shortened to nullum crimen, nulla poena sine lege – No crime is committed and no punishment can be imposed without the act having been prohibited and the punishment having been prescribed by a law enacted before the act was committed.
It is divided into two parts:
⦁ Nullum crimen sine praevia lege
⦁ Nulla poena sine praevia lege
Nullum crimen sune praevia lege
This is to the effect that, an act or omission to act is only a crime if before the act or omission was committed, there was a law declaring the act or omission in question as a punishable offence. Article 19(5) of the 1992 Constitution TSATSU TSIKATA v THE REPUBLIC; HASSAN v THE REPUBLIC
Nulla poena sine praevia lege
This is to the effect that, an act or omission to act is only a crime if a specific penalty has been previously prescribed for that act or omission.
In Ghana, this principle is carried further on two legs:
• the offence must be written in a law and defined
• a penalty must be prescribed for the offence – ARTICLE 19(11) OF 1992 CONSTITUTION
DEBRAH v THE REPUBLIC
The appellant was charged under s 53(A) of Act 370 with a conduct with was disrespectful and insulting to the chief of kajebi. The act which the prosecution alleged amount to disrespect of the chief was collecting stone from the entrance of the palace. At trial the counsel for the defendant appellant made a submission of no case which was declined by the trial judge. He appeals from the decision overruling the submission of no case. Holding and comment: for an act to be an offence the said act must be defined by the section creating the offence and a punishment proscribed or by the parent ACT. The act 370 provides for offences against a chief and not against custom. As such the prosecution must fail as the basis of their prosecution is for an act committed by the appellant contrary to custom. Moreover since the offence complained of is against custom and by virtue of section 8 of act 29 a person cannot be punished for an offence against customary law the appellant is not liable in the criminal. This is In accordance with the principle that the criminal offence must be written, defined and the offender must have prior notice of it as enshrined in article 19(11) of the constitution 1992.
The rationale is that it is unfair to punish someone unless he has a chance to know the law and to conform to it
THE RULE AGAINST DOUBLE JEOPARDY
This principle is to the effect that no man should be punished twice for the same offence. Once a person has been tried for an offence, he cannot be tried again for the same offence, whether his trial ended in an acquittal (autre fois acquit) or a conviction (autre fois convict).
The rationale is that the criminal law seeks to prosecute offenders not to persecute them – so once a person has been tried and sentenced, he cannot be punished again for the same offence since to do so would amount to undue oppression or persecution. SECTION 19(7)
The rule applies where, in his trial, the accused was in peril in respect of the same set of facts – for instance, under a charge of murder, the accused would be in peril of being convicted for manslaughter – so if he is acquitted, a fresh charge cannot be brought for manslaughter against him. The accused must show that the first trial ended in a final verdict of GUILTY or NOT GUILTY. A discontinuance, hang jury, or the entry of a nolle prosequi is not a final verdict
On the other hand, where a person causes harm to another, and the victim is still alive, the accused is not in jeopardy of being charged for murder at his trial for causing harm – if the victim eventually dies, the accused may then be charged for murder. Section 115 of Act 30.