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INTRODUCTION TO Criminal Law in Zambia: Learners ModuLe

2013 Adv. Justin Sipho Chitengi1


DAAD Scholar; PhD Candidate- Law & Policy(UNILUS); LLM(UWC/HU); LLB Merit (UNZA); BSc Forestry(CBU); PGC Public Policy(AU); CPD Conveyancing(LAZ); PGC LPQE(ZIALE); CETP Entrepreneurship(Northlink); AHCZ(High/Supreme Court)

Formerly the Founding Assistant Dean of the Law School- University of Lusaka, Adv. Chitengi is a seasoned teacher of law and renowned researcher as well as publisher. He has lectured both in public and private universities in Zambia and abroad including the University of Zambia and the Copperbelt University among others. He also served as Postgraduate Researcher on Financial/Economic Crimes Law at the German-South African Centre of Excellence, a collaboration between Humboldt Universitt zu Berlin & University of the Western Cape. Chitengi was appointed by the then Republican Vice President & Minister of Justice in 2011 to serve as a Council Member of the Zambia Institute for Advanced Legal Education (ZIALE) - the only Bar School in Zambia. He is currently in the employ of John Snow Inc. Ltd (SHAReII Project), a USAID-funded project where he practices law as Legal and Policy Manager. Adv. Chitengi is a recipient of many prestigious scholarships and fellowships both locally and internationally in recognition of his contribution to the legal fraternity.

1] Introduction to Criminal Law: Learners Module

Course Introduction
This course is the first in the series of two parts that deal with the branch of prosecuting alleged crimes committed and other issues incidental thereto in a particular given society.

Module Objectives
This module aims at laying a foundation for new learners who are being introduced to the study of key concepts in criminal law for better understanding of the future lectures in this course.

Expected Outcomes
On completion of studying this module you should be able to: i. Demonstrate clear understanding and definition of key concepts and principles governing criminal liability; ii. iii. iv. v. Explain the general elements of a crime and how to prove the elements; Distinguish between actual crimes and inchoate offences; Identify possible defences to various crimes; and Critically discuss the principles of sentencing.

Duration
You are expected to complete studying this module in one academic semester averaging 5 months.

2] Introduction to Criminal Law: Learners Module

Study Tips
i. As you go through this module you will come across margin icons (gavels and scales of justice) that serve as signposts. These icons are intended to assist you navigate through the module; ii. There are several activities interspaced in the learning activities that will allow you to reflect on the topics in each unit; iii. At the end of each unit you will find a number of revision questions to self-assess your level of understanding a particular unit before you proceed to the next unit; iv. Various case studies are given under each unit for you to familiarise yourself with how lawyers identify legal issues from a given set of facts and apply the law to the identified legal issues as they help the courts to pass judgements; v. Few past examination questions have been reproduced at the end of the module for you to assess your preparedness for examination in this course; and vi. A list of prescribed and recommended reading materials has been attached to supplement your reading. Make efforts to secure for yourself at least a copy of the prescribed texts

Study Skills
You are responsible for your study- time management as the institution will only manage your study programme during the residential school period according to the school calendar. Therefore, you should balance your use of time, learn to cope with academic pressure in

3] Introduction to Criminal Law: Learners Module

strictly meeting the deadlines for submission of assignments and familiarise yourself with rules of writing legal essays.

Do You Need Help?


If you need help, extra information or have any queries concerning this module, kindly get in touch with the author on +260 965 444 353 or email: cjnsipho@gmail.com

Assessment
Continuous Assessment o 1st Assignment: 25% o 2nd Assignment: 25% Final Examination: 50%

Prescribed Readings
Statutes i. Constitution Act, Cap 1 of the Laws of Zambia. ii. iii.

Criminal Procedure Code Act, Cap 88 of the Laws of Zambia. Penal Code Act, Cap 87 of the Laws of Zambia.

Text Books i. Hatchard, J. and Ndulo, M., A Case Book on Criminal Law (2008), Institute for Public Policy Research, Lusaka. ii. Hatchard, J. and Ndulo, M., Readings in Criminal Law and Criminology in

Zambia (1994) Multimedia Publications, Lusaka.

4] Introduction to Criminal Law: Learners Module

i.

Kulusika, S.E., Text, Cases and Materials on Criminal Law in Zambia (2006) UNZA Press.

Recommended Readings
i. Card, R., Cross & Jones: Criminal Law (2008)18th ed, Oxford University Press, London. ii. Williams, G., Textbook of Criminal Law (1983), Steven & Sons, London.

5] Introduction to Criminal Law: Learners Module

Unit 1: Principles of Criminal Liability


1.0 Unit Overview
This unit sets the introduction to the study of criminal law. It gives a legal definition of criminal law as well as discusses the sources of criminal law in Zambia. The unit also deals with the classification of offences into misdemeanours and felonies. It equally introduces the seven core principles of criminal liability which shall be dealt with in details in their respective units.

Topic 1.1: Principles of Criminal Liability


The seven principles of criminal liability are: i. Legality. This principle stipulates that there must be a law for there to be a crime. It is premised on the Latin maxim Nullum crimen sine lege which translates "no

crime without law." Legality is the moral principle in criminal law and
international criminal law that a person cannot or should not face criminal liability if there was no law criminalising their conduct/act at the time they committed the act. Simply put, offensive and harmful behaviour is not illegal unless it has been prohibited by law before it was committed.2 The principle also extends to the non-retroactivity stipulation of law (nullum crimen sine lege
2

M. B. Gibson, Seven Principles of Criminal Law, retrieved from http://quizlet.com/2828651/seven-principles-of-

criminal-law-flash-cards/ on 8 April 2013, 3: 51PM.

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praevia) which prohibits the law operating in retrospect. That is to say, if the act
was not criminalised at the time of commission, it cannot become a crime just because there is now a new law criminalising such acts. The importance of this principle is that it ensures certainty and predictability of what would be the consequences of ones conduct- if you do no wrong, no guilt will be imputed on you. ii.

Actus reus. This principle of criminal law deals with human conduct, and
stipulates that for a crime to occur there must be a blameworthy act of either commission or omission by the accused.

iii.

Causation. This principle of criminal law dictates that the blameworthy conduct of the defendant must cause harm. Therefore, for a crime to have been committed there should be a casual relation between the blameworthy conduct the harm suffered.

iv.

Harm. The principle stresses that for a crime to occur there should harm caused by an act to some other/thing. That is to say, for there to be a crime, an act must cause harm to some legally protected value.

Activity 1.1
Critically think about whether or not there would be a crime if one caused harm only to themselves.

7] Introduction to Criminal Law: Learners Module

v.

Mens rea. Mens rea simply means "guilty mind." This principle requires that for a
person to be criminally liable they should have a guilty or ill-intent to commit the blameworthy act.

vi.

Concurrence/Coincidence of Actus Reus and Mens Rea. This legal principle of criminal law requires that for there to be a crime there must be concurrence between the blameworthy conduct and the guilty state of mind. That is to say, both the intent and the act must be present at the same time. A crime is committed only when actus reus and mens rea concur in time. For instance, there is no burglary if a person breaks into shelter escaping from a storm and only then steals. Only theft, and not burglary is committed because at the time of entry the person had no intent to break in and steal.3

http://www.wcl.american.edu/sba/outline_databank/outlines/CriminalLaw_Robbins_Spring2008_2.pdf retrieved on 9

April 2013 at 2:44 PM

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Case Study 1.1: Concurrence/Coincidence- Actus Reus and Mens Rea Fagan v MPC (1969) 1 QBC 439
Brief Facts: Fagan accidentally drove his car onto a policemans foot who had ordered him to pull-over. When the officer screamed in pain, Fagan vindictively refused to remove it immediately because an altercation had ensued between the two. Legal Issues: The contentious legal issues arose from the question whether Fagan would be liable for assault considering that he had no ill-intent (mens rea) at the time he committed the actus reus of accidentally driving onto the officers foot. Holding: It was held that actus reus of assault was a continuing act which, initially started without mens rea, was still in progress when mens rea was subsequently formed and so there was coincidence of mens rea and actus reus at some point sufficient to constitute criminal liability. Consequently, Fagan was convicted.

vii.

Nulla poena sine lege. This maxim forms the legal principle discouraging arbitrary
punishment with the meaning being: no penalty without a law. Once criminal liability has been proved, it must be established that there is a provision in the law calling for punishment of those found guilty.

Topic 1.2: Definition of Criminal Law


Criminal law, also known as penal law, involves prosecution for an act that has been classified as a crime. As rightly defined by Farlex, it is [a] body of rules and statutes

that defines conduct prohibited by the government because it threatens and harms public safety and welfare and that establishes punishment to be imposed for the commission of such acts.4

Free Law Dictionary, retrieved 9 April 2013 at 1:58PM from http://legal-dictionary.thefreedictionary.com/Criminal+Law

9] Introduction to Criminal Law: Learners Module

Strictly speaking, the term criminal law refers to substantive criminal laws. Substantive criminal laws are those laws that define crimes, set principles of criminal liability, prescribe general and specific elements of respective crimes, stipulate possible defences and establish punishments. In contrast, criminal procedure describes the adjudicative process through which the criminal laws are enforced. For instance, the law prohibiting arson is substantive criminal law whereas the laws governing the process of enforcing this criminal investigations and evidence gathering up to prosecution form part of criminal procedure law.

1.2.1: Classification of Offences


Crimes are basically classified as either felonies or misdemeanors depending on their respective nature and the maximum punishment that can be imposed. Felonies are serious crimes in that they involve serious blameworthy conduct that is usually punishable by a long term imprisonment of more than one year with hard labour or death penalty. On the other hand, misdemeanors are minor offences by their nature thus carry a relatively lighter and short punishment- usually simple imprisonment of less than a year. Certain misconducts like traffic and parking infractions are considered to be lesser offences often referred to as contravening and/or violations of criminal law.5
5

Farlex, op cit

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Topic 1.3: Sources of Criminal Law in Zambia


Like most other branches of law in Zambia, the major source of criminal law is the

Zambian Constitution Act.6 The most substantive and basic source is the Penal Code7
operating mostly through the other source of criminal law namely the Criminal

Procedure Code.8 Other statutory sources include various Acts like the Anti-Gender Based Violence Act,9 the Public Health Act10 and the Road Traffic Act,11 inter alia.
Other sources are both binding and persuasive court decisions. Scholarly works by eminent authors also form part of the sources of criminal law in Zambia. In summary the sources of criminal law in Zambia may be classified into the following four broad categories: i. ii. iii. iv.
6

The Constitution; Statutory Law; Court Precedents; and Text Books.

Cap 1 of the Laws of Zambia Cap 87 of the Laws of Zambia Cap 88 of the Laws of Zambia No. 1 of 2011 Cap 295 of the Laws of Zambia No. 4 of 2008

10

11

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Activity 1.2
Collect the above mentioned statutes including the Constitution. Get your markers or highlighters ready. Peruse through the said statutes and highlight or mark at least 3 pertinent provisions in each one of them covering the topic of sources of law. Note that these provisions could be explicit or implied.

Well done, you have completed this unit but the scales of justice are yet to tilt in your favour. Attempt the Revision Questions below NOW!!!

1.3 Revision Questions


(1) (2) (3) (4) Briefly explain the seven core principles of criminal liability. List two essentials of a misdemeanour. List two essentials of a felony. Why is it necessary that there should be concurrence of mens rea and actus reus for criminal liability to be duly imputed? (5) Write a legal essay on the sources of criminal law.

The Gavel is down; you are now cleared to proceed to the next unit. Congratulations!!!

12] Introduction to Criminal Law: Learners Module

Unit 2: Elements of Crime


2.0 Unit Overview and Expected Outcomes
This unit attempts to familiarise you with the main elements of a crime. It is a settled principle of criminal that for an accused person to be criminally liable they should have committed a blameworthy act coupled with a corresponding guilty mind. The blameworthy act is at law referred to as the actus reus while the guilty mind is known as the mens rea.

The actus reus and the mens rea are the two general elements of a crime. If the prosecutor fails to prove these two elements beyond reasonable doubt, the defendant must be acquitted. On your successful completion of this unit, you should be able to explain in details the general elements of an offence. Equally, you should be able to deal with the legal issues governing the relationship/proximity between an alleged crime and the resulting harm (causation).

Activity 2.1
Think about what would happen to a defendant in a situation where the prosecutor proves actus reus beyond reasonable doubt but fails to prove mens rea beyond reasonable doubt.

Topic 2.1: Actus Reus


The element of actus reus may not be a single act alone but include circumstances and consequences which are legally recognised for liability of the offence in question.
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Therefore, on the basis of actus reus, offences may be divided into two categories namely, (i) Conduct crimes; and (ii) Result crimes.

Conduct crimes are those where the actus reus is the prohibited conduct itself. For instance, under the offence of dangerous driving the only actus reus that the prosecutor has to prove is simply that the defendant was driving a mechanically propelled vehicle on a road or any other public place.12 The prosecutor does not need to prove that the dangerous driving actually caused any harm or injury.13

On the other hand, result offences are those where the prosecutor must prove that the conduct of the defendant actually caused or resulted in a prohibited consequence or harm. For example, the actus reus for the crime of murder is that the conduct of the defendant actually have resulted in the death of a victim within one year and one day from the time the conduct was committed.14

12

See section 2 of the Road Traffic Act, Cap of the Laws of Zambia. See Asif Tufal, Principles of Criminal Liability, retrieved from www.lawteacher.co.uk on 4 April 2013, 7:30PM See section 200 of the Penal Code Act, Cap 87 of the Laws of Zambia.

13

14

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2.1.1 Qualification of Actus Reus


Firstly, actus reus must be voluntary. That is to say, if the conduct of the defendant is not voluntary or free-willed, the defendant will not be criminally liable. The following instances would render actus reus involuntary: i. Automatism. This occurs where a persons conduct is beyond his or her control due to some external factors. Equally, it may occur where a person engages in some conduct without being aware of what they are doing as a result of some external factor. Case Study 2.1: Automatism- Negation of Actus Reus R v. Quick [1973] 3 All ER 347
Brief Facts: Mr. Quick was a diabetic patient who was indicted and prosecuted for assault. It was not in contention that he had hit and injured his victim while he was in a state of hypoglycaemia. Hypoglycaemia is a medical condition of one being unconscious, yet awake, caused by low blood sugar due to excess insulin. Legal Issues: The prosecution team argued that the defendant was liable for his actions because his conducted constituted the actus reus of assault which is simply that the defendant caused injury to another person through their (defendants) conduct. The defence team rebutted the prosecution teams argument and submitted that although the conduct of the defendant caused injury to another person, it was not blameworthy conduct because it was performed unconsciously. Holding: The Court of Appeal held that the defendant should have been acquitted on the ground of automatism. His conduct was not blameworthy because he was in an unconscious state due to an external factor which was the taking of insulin.

ii.

Duress/Coercion and Force. Where a person is forced to commit an offence, they may not be criminally liable if they prove that their conduct was reasonably not voluntary. The nature and gravity of the force against the accused persons will is
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critical in determine whether or not the conduct was voluntary. Most courts that have decided on this issue have resolved that physical force and threats on ones life would suffice but not merely economic deprivation. Physical force may include situations such as that seen in the case of Leicester v. Pearson15 where the Court acquitted a motorist who knocked down a pedestrian on a zebra crossing after his car was forcibly pushed into the crossing by another car that hit it from behind.

Activity 2.2
Discuss at least two instances that would amount to threats on ones life whereby one may be deemed to have been reasonably forced to commit an offence. Also list at least five instances that would amount to mere economic deprivations and not force to commit a crime.

iii.

Reflex Action. This is the spontaneous reaction to a stimulus over which one has no control in the manner they should react. Once the defendant successfully proves that their conduct was a spontaneous and impulse reaction to a situation beyond their control, they will be acquitted.

15

[1952] 2 All ER 71

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Case Study 2.2: Reflex Action- Justification of Actus Reus Hill v. Baxter [1958] 1 All ER 193
Brief Facts: The defendant was stung by a swarm of bees while driving a car on a public road. As a result he instantaneously lost control of the car- resulting in his trial for a traffic offence. Legal Issues: The prosecutor submitted, inter alia, that the conduct of the defendant was sufficient to constitute the actus reus for a charge of a traffic offence to stand. The defendant countered the prosecutors arguments stating that the conduct was not blameworthy because the defendant had not control how he would react to a spontaneous stimulus of being stung by a swarm of bees. Holding: The Court decided in favour of the defendant because his conduct was not blameworthy as it was a reflex action over which he had no control.

Secondly, actus reus must ordinarily be an act and not necessarily an omission. The general rule is that a person cannot be criminally liable for failing to act unless at the time of failure to act the defendant was under a legal duty to take positive. This position was explained in the case of R v. Miller where the Court espoused thus: Unless a statute specifically so provide, orthe common law imposes a duty upon a person to act in a particular way towards another a mere omission to act [cannot lead to criminal liability]. 16 Below are a number of exceptional duties where the omission to act by a defendant would result in criminal liability: i. Common Law duty of reliance. Common law recognises a duty that members of a family owe to care for one anothers affairs. Though controversial in that it is

16

[1983] 1 All ER 978

17] Introduction to Criminal Law: Learners Module

problematic to ascertain at which point the duty arises, the courts have convicted defendants for omission to act premised on this common law duty. For instance, in the case of R v Stone and Dobinson17 a couple was convicted for manslaughter after they omitted to obtain medical attention for their niece who died of an infection while visiting them. The court explained that family members owe a common law duty to one another not to wilfully omit to care about each others basic necessities such as medical care and food provision for those who cannot reasonably fend for themselves (mostly dependant minors in the family). This common law duty is anchored on reliance of certain persons on others.18 ii. Duty arising from contractual obligations. Sometimes, ones omission to perform a positive act arising from a contractual obligation may result in criminal liability as per the holding in R v Pittwood.19

iii.

Statutory Duty. Certain statutes create and impose obligations on some classes of persons. If such obligations are omitted, by any member of the obligated groups, then an offence is committed by omission. For example, according to the Zambian

17

[1977] 2 All ER 341 Asif Tufal, op cit. (1902) 19 TLR 37

18

19

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laws[A]ny person who being the (a) parent; (b) guardian: or (c) person in charge;

of a chid that is unable to provide for itself, refuses or wilfully neglects to provide, being able to do so, sufficient food, clothes, bedding or other necessities for such child, and thereby injures the health of such child, commits an offence and is liable, on conviction, to a fine not exceeding one hundred thousand penalty units or to imprisonment for a term not exceeding three years or to both.20 The same
is the position in the UK as held in the case of R v Gibbons and Proctor.21 iv. Duty due to prior conduct. Where a person accidentally acts in manner that creates harm to others and later realises the harm so created, he becomes dutybound to avert the further spread of that harm. If he omits to act positively, he shall be criminally liable.

20

Penal Code (Amendment) Act No. 15 of 2005, section 157


(1918) 13 Cr App Rep 134

21

19] Introduction to Criminal Law: Learners Module

Case Study 2.3: Omission- Duty act due to prior conduct R v. Miller (1983) 1 All ER 978
Brief Facts: The defendant had been squatting in a house and fell asleep on a mattress while smoking a cigarette. He was awoken by the smoke and flames from a burning mattress. Rather than putting the fire out, he ignored the fire and simply shifted into another room where he found another mattress and went back to sleep. Subsequently, the house was damaged by fire. Legal Issues: The contentious legal issue was whether the defendants omission to put the fire out amounted to actus reus. Holding: The House of Lords held that a person is not ordinarily liable for omission to act, but once the defendant awoke and realized what had happened, he under legal responsibility to limit the harmful effect of the fire. The defendants failure to discharge this responsibility provided the basis for imposition of liability for criminal damage. He was convicted for criminal damage.

Thirdly, the actus reus may be implied or imposed by operation of the state of affairs crime as a doctrine of law. State of affairs crimes are those crimes that are committed even without the defendant engaging in a positive act of wrong doing. The offence is simply consisted in the defendant being found, being in possession, or being in charge among others. Under these crimes, also known as circumstantial crimes, all that the prosecutor needs to prove is the existence of factual circumstances which constitute the crime in question.

For example, under the offence of being in possession of stolen property, the prosecutor does not need to prove blameworthy conduct on the part of the defendant. Instead, simply prove that the state of affairs indicates that the defendant was found with those

20] Introduction to Criminal Law: Learners Module

properties alleged to have been stolen. No need to prove who actually stole (actus reus) the properties. Case Study 2.4: Circumstantial Offences- Actus Reus R v. Larsonneur (1933) 24 Cr App R 74
Brief Facts: The defendant was a French national who was had entered the UK lawfully. On expiry of her lawfully period of stay in the UK, she left the UK but headed to the Irish Free State rather than France. The Irish authorities forcibly deported her back to the UK instead of France. Upon arrival in the UK, the British authorities arrested her and charged her with being found in the UK without valid permission to enter the country. Legal Issues: The defendant pleaded not guilty and raised the legal defence that she lacked the actus reus of the offence as she was forcibly placed on the soil of the UK without her free will. Holding: The Court convicted her after holding that the offence she was charged with was a circumstantial offence with the only necessary element to prove simply being found in the country without valid permission.

Topic 2.2: Mens Rea


Whereas actus reus refers to the blameworthy physical element of an offence, mens rea is the fault mental element of the offence that accompanies the actus reus for an offence to be complete. Mens rea is Latin for guilty mind. In criminal law, it is viewed as one of the necessary elements of some crimes. The general rule hereon is that criminal liability does not attach to a person who acted with the absence of mental fault.22 As it was held in the Zambian case of Monze Bazaar, the only exception to this rule is in strict liability offences.

22

Wikipedia

21] Introduction to Criminal Law: Learners Module

As a guilty/faulty state of mind of the accused, mens rea may manifest itself in three main categories and/or levels namely; intention, recklessness and negligence.23

2.2.1 Intention
Intention requires the highest degree of fault of all the levels of mens rea. A person, who intends to commit a crime, can generally be said to be more culpable than one who acts recklessly. Intention differs from motive or desire as explained by Lord Bridge in the

case of R v Moloney.24 As such, a person who kills a loved one dying from a terminal illness, in order to relieve pain and suffering may well act out of good motives. Nevertheless, this does not prevent them from having the necessary mens rea (intention) to kill.25

At law, intention is subdivided into two classes of direct intent and oblique intent as deliberated hereinafter:

2.2.1(A) Direct Intent


Direct intent occurs where the accused commits a series of acts that achieve and bring about their exact desired results. For instance, D intends to destroy the Bentley vehicle

23

http://www.e-lawresources.co.uk/Mens-rea-intention.php [1985] AC 905 See the case of R v Inglis [2011] 1 WLR 1110

24

25

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that his ex-girlfriend received from her new boyfriend. To achieve his desired goal, he buys a gallon of sulphuric acid which pours on the parked car. Its appearance and texture is permanent destroyed. Direct intent is hereby evidenced as the conduct achieves the desired result. Indeed. Direct intent is simple and straight forward in comparison with oblique intent which is more complex to establish.

2.2.1(B) Oblique Intent


Oblique intent can be said to exist where the defendant embarks on a course of conduct to bring about a desired result, knowing that the consequence of his actions will also bring about another result. For example, D intends to kill his wife. He knows she is going to be on a particular aeroplane and places a bomb on that aeroplane. He knows that his actions will result in the death of the other passengers and crew of the aeroplane even though that may not be part of his desire in carrying out the action. In this situation D is no less culpable in killing the passengers and crew than in killing his wife as he knows that the deaths will happen as a result of his actions.

In resolving the complexities of proving oblique intent, the case of R v Woolin26 has conclusively resolved that the courts should be directed that they are not entitled

26

[1999] AC 82

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to find the necessary intention, unless they feel sure that [the harm] was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case.27 Therefore, the prosecutor
does not need to prove that the defendant had the requisite mens rea to cause harm only to the specified target. Instead the prosecutor must prove that it was objectively clear to the defendant that harm would probably result from his/her action- whether on the specific target or any other victims not necessarily targeted by his intent.

2.2.1(C) Transferred Malice Though not part of the two categories of intent as above classified, the doctrine of transferred intent is another nuance of criminal intent. Transferred intent occurs where one intends the harm that is actually caused, but the injury occurs to a different victim or object. To illustrate, the law allows prosecution where the defendant intends to burn one house but actually burns another instead. The concept of transferred intent applies to homicide, battery, and Arson.28

27

Cf: http://www.e-lawresources.co.uk/Home.php Retrieved on 10 April 2013 at 3:12PM


http://legal-dictionary.thefreedictionary.com/Criminal+Law

28

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As firstly held in the case of R v Latmer,29 a defendant will still be liable if he/she has the necessary mens rea to commit a particular crime and he/she actually executes an

actus reus on a different victim, by mistake or otherwise, other than the one
intentionally targeted. However, if a defendant has a requisite mens rea for a particular offence but by mistake he executes a different actus reus, intent/malice cannot be transferred. This was rightly espoused in the case of R v Pembliton.30

2.2.2: Negligence
It is a general principle of criminal law that a person cannot be convicted of a crime unless he or she is aware of all the facts that make his or her conduct criminal. However, if a person fails to be aware of a substantial and unjustifiable risk, an act or omission involving that risk may constitute negligent conduct that leads to criminal charges. Negligence gives rise to criminal liability only if the defendant took a very unreasonable risk by acting or failing to act.31

2.2.3 Recklessness
Recklessness may also be deduced from the defendants omission to act. An omission, or failure to act, may constitute a criminal act if there is a duty to act. For example, a
29

(1886) 17 QBD 359 (1874) LR 2 CCR 119 http://legal-dictionary.thefreedictionary.com/Criminal+Law

30

31

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parent has a duty to protect his or her child from harm. A parents failure to take reasonable steps to protect a child could result in criminal charges if the omission were considered to be at least reckless.32

Topic 2.3: Strict Liability


As qualification of mens rea, there are exceptions in certain crimes, to the requirement of mens rea. That is to say, in certain offences it may be not necessary to prove the guilty mind of the defendant. These exceptions include strict liability offenses involving health and safety, in which it is not required to show ill-intent on the part of the accused. Legislatures have criminalized certain kinds of offenses in order to protect the public. Courts limit application of such laws to situations in which recklessness or indifference is present.33

Topic 2.4: Concurrence


It is trite that a criminal act or actus reus is required to exist in unison with a criminal intent or mens rea if a crime is to be established. That is to say the standard common law rule for establishing criminal liability is to prove an actus reus accompanied by a

mens rea at the material time of committing the offence.34 This is founded on the Latin
32

http://legal-dictionary.thefreedictionary.com/Criminal+Law Gibson, M. B., op cit. Wikipedia

33

34

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maxim: actus non facit reum nisi mens sit rea, which means the act is not culpable unless the mind is guilty [at the same time]. Therefore, an offence is only committed where there is an actus reus, accompanied by some level of mens rea to constitute the crime with which the accused is charged. This is what the technical requirement of concurrence entails; meaning that there must be a concurrence between a criminal intent and a criminal act that causes a prohibited harm or injury.

In simple terms, mens rea and actus reus must occur at the same time; meaning that the criminal intent must precede or coexist with the criminal act, or in some way activate the act.35 The necessary mens rea may not continually be present until the forbidden act is committed, as long as it activated the conduct that produced the criminal act. However, for criminal liability to occur, there must be either overt and voluntary action or a failure to act when physically able as required by statute or law.36

Topic 2.5: Causation


For an offence to be finalised, it must be proved that its actus reus was actually combined with the requisite mens to cause a prohibited injury or harm. Causation refers

35

Bonnie, R. J., et al, Criminal Law (1997), The Foundation Press, New York

36

Ibid

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to the enquiry as to whether the defendant's conduct (or omission) caused the harm or damage.

2.5.1: Elemental Meaning of Causation


Technically, causation means three things namely: (i) that a criminal act must be the cause in fact or but for cause of a harm or injury, as well as the legal or proximate cause; (ii) that a coincidental intervening act breaks the chain of causation caused by a defendants criminal act, unless the intervening act was foreseeable; and (iii) that a responsive intervening act does not break the chain of causation caused by a defendants criminal act, unless the intervening act was both abnormal and unforeseeable.

Causation must be established in all result crimes. Causation in criminal liability is divided into factual causation and legal causation. Factual causation is the starting point and consists of applying the 'but for' test. In most instances, where there exist no complicating factors, factual causation on its own will suffice to establish causation. However, in some circumstances it will also be necessary to consider legal causation.

2.5.2: Factual Causation


On the authority of R v White,37 factual causation is established by applying the but for test. This asks, but for the actions of the defendant, would the result have occurred? If
37

[1910] 2 KB 124

28] Introduction to Criminal Law: Learners Module

yes, the result would have occurred in any event, the defendant is not liable. If the answer is no, the defendant is liable as it can be said that their action was a factual cause of the result.

2.5.3: Legal Causation


Under legal causation the result must be caused by a culpable act. It is immaterial to prove that the act of the defendant was the only cause as long as there is no novus actus

interveniens. That is to say, according to the thin skull rule,38 the defendant must take
his victim as he finds him; and cannot claim that the victim was already injured.

Most crimes include an element that actual harm must occur; meaning that causation must be proved. For example, homicide requires a killing, aggravated battery requires serious bodily injury and without those respective outcomes, those respective crimes would not be committed. A causal relationship between conduct and result is demonstrated if the act would not have happened without direct participation of the offender.39

Activity 2.3
Conduct a desktop research on the Thin Skull Rule and list at least 3 salient aspects thereof.

38

http://www.e-lawresources.co.uk/Causation-in-criminal-liability.php Retrieved 25 April 2013 at 11:51AM Wikipedia

39

29] Introduction to Criminal Law: Learners Module

2.5.4: Effect of Causation


Causation is complex to prove. The act may be a "necessary but not sufficient" cause of the criminal harm. Intervening events may have occurred in between the act and the result. Therefore, the cause of the act and the forbidden result must be proximate or near in time. Ultimately, the operation of causation limits criminal liability only to injuries for which ones acts are responsible. Therefore, if causation is not sufficient to cause the injury or indeed if there is an intervening event which breaks the chain of causation, the defendant will not be liable.

Case Study 2.5: Causation- Intended Harm without Actus Reus


R v. White [1910] 2 KB 124
Brief Facts: The defendant was tried for murder of his mother. The facts were that he had put potassium cyanide into his mothers drink with the intent to murder her. She was found dead shortly afterwards with the glass of drink , threequarters full, besides her. The autopsy showed that she dead of natural heart failure before she could even consume sufficient poison to cause her any harm. Legal Issues: The legal issue to be resolved was whether or not the defendant could be convicted considering that the cause the death was not the actus reus of the defendant though the consequences were desired. Holding: The Court decided in favour of the defendant because his blameworthy conduct was not the cause of death even if he had desired the resultant harm. The court espoused that since there was breakdown in the chain of causation, the actus reus for murder was absent. He was subsequently convicted of attempted murder, which carries a lesser sentence than murder.

Topic 2.6: Burden and Standard of Proof


In order to establishing the criminal liability of an accused person, common law dictates that he who alleges must prove the allegation. As such the legal burden of proof
30] Introduction to Criminal Law: Learners Module

traditionally lies with the prosecutor with the exception of a few classical offences where the burden may shift to the accused person. Even in such exceptional cases, on the premises that the defedant has a constitutional right not to self-incriminate, the standard of proof is lowered from the traditional proof beyond raesonable doubt to proof on the preponderance of evidence (on the balance of probabilities). Otherwise, the only burden resting on the defendant is the evidential burden which entitles him/her to erect a defence and prove the requisites of that particular defence.

It is a settled principle of common law that all persons are presumed innnocent until proven guilty by a court of competent juridcition through the due process of law. 40 Therefore, if the prosecution fails to prove their allegation beyond reasonable doubt, the accused person must be acquitted. In the case of Woomington v DPP,41 Lord Sankey LC espoused this principle thus: Throughout the web of the English criminal law one golden thread is always to be seenthat it is the duty of the prosecution to the prisoners guilt If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether [elements of the offence have been made out] the prosecution has not made out the case and the prisoner is entitled to an acquital.
40

See the presumption of innocence clause under the Constitution of Zambia Act, Cap 1 of the Laws of Zambia. [1935] AC 462

41

31] Introduction to Criminal Law: Learners Module

Activity 2.4
Read the case of R v. Lambert [2001] 3 All ER 577 and critically discuss the concepts surrounding reversal of the legal burden of proof from the prosecution to the accused.

Well done, you have completed this unit but the scales of justice are yet to tilt in your favour. Attempt the Revision Questions below NOW!!!

2.5 Revision Questions


(1) Critically explain the major distinguishing factor(s) between oblique intent and transferred intent. (2) Is causation a third element of a crime or just an extensive elaboration of actus reus? Explain. (3) Why is proof of mens rea deemed to be largely a moral obligation and not a legal obligation on the part of the prosecutor? (4) What is the philosophy underlying strict liability offences (mens rea) and circumstantial offences (actus reus)? (5) Discuss the fundamental differences between negligence and recklessness.

The gavel is down; you are now cleared to proceed to the next unit. Congratulations!!!

32] Introduction to Criminal Law: Learners Module

Unit 3: Inchoate/Preliminary Offences


3.0 Unit Overview and Expected Outcome
The main objective of this unit is to introduce you to the study of inchoate offenceswhich are simply incomplete offences. There are instances where the defendant may begin commission of an offence and abandons it before completion. If the steps taken are more than mere preparation (substantively though not totally completed) then the defendant may be criminally liable. After successfully studying this unit, you should be able to able to identify the three main inchoate offences, explain the law governing them in terms of criminal liability and the possible defences associated therewith.

3.1 Introduction
Inchoate offences, otherwise known as preliminary offences, are committed by doing an act with the purpose of effecting some other offence(s)42 It is committed when the defendant takes certain steps towards the commission of a crime. Unlike liability for secondary participation in a crime, it is unnecessary that the main offence be committed.

42

G. Williams, Textbook of Criminal Law.

33] Introduction to Criminal Law: Learners Module

There are three main inchoate offences namely: attempt; conspiracy; and incitement/solicitation. The nature, the elements and the requisite steps that need to be taken vary with each inchoate offence as demonstrated hereinafter. In this respect, the nature of offence is such that [W]ith attempt the defendant must have tried to commit

the offence and have got relatively close to achieving this objective. With conspiracy at least two defendants must have agreed to commit a crime. With incitement the defendant must have tried to persuade another to commit a crime.43

Topic 3.1: Attempt


Attempt was originally an offence under the common law of England. Attempt crimes are crimes where the defendant's actions have the form of the actual nature of the crime itself: the actions must go beyond mere preparation. The essence of the crime of attempt is that the defendant has failed to commit the actus reus of the full offence but has the direct and specific intent to commit that full offence.44 For an attempt to attract criminal liability, it must be more than just a preparatory act. Equally, the defendant must embark on the full crime but fail to reach the full circle of the actual crime.45

43

See the Law Teacher website, retrieved with slight modifications. Wikipedia See the Attorney General's Reference No 1 of 1992.

44

45

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According to the proximity test as per Lord Diplock in the case of DPP v Stonehouse,46 the defendant must have crossed the ordinary preparation and/or reached a proximate point of no return. That is to say, the defendant must have reached that part of the series of acts, which if not interrupted, frustrated, or abandoned, would inevitably result in the commission of the intended offence.47 Case Study 3.1: Attempt- More than Preparation and Embark on the Crime Attorney General's Reference No 1 of 1992
Brief Facts: The defendant attempted to have sexual intercourse with a girl without her consent, whilst in an intoxicated state. He pulled her behind a hedge and forced her to the ground. He lay on top of her, lowered his trousers and interfered with her private parts. He was unable to attempt penetration and have sexual intercourse with her. Legal Issues: The legal question to be decided was whether or not the defendant needed to attempt penetration of the woman's vagina with his penis in order to prove attempted rape. Holding: It was held that the defendants actions were more than merely preparatory. He did not have to attempt or achieve penetration for attempted rape. However, he was found not guilty because he had not embarked on the
crime itself.

That was the old position of common law which has since changed through statutory law in certain jurisdictions.

46

[1977] 2 All ER 909

47

Stephen's Digest of the Criminal Law

35] Introduction to Criminal Law: Learners Module

3.2.1 Abandonment as a Defence to Attempt


In certain jurisdictions, if the defendant walks away from the crime, a defence of abandonment may be erected to negate either the actus reus or mens rea of attempt. Note that most jurisdictions do not recognize abandonment as a valid defence, though. As submitted by J. Dressler, even in jurisdictions where they recognize this defence, its application is generally restricted only to situations where the defendant completely and voluntarily renounces the criminal purpose.48

In any case, abandonment is not complete and voluntary where the defendant desists from criminal efforts due to unexpected resistance such as from the victims. Equally, abandonment is invalid if the defendant abandons his/her criminal act after the discovery of the absence of an instrumentality needed for the completion of the offence. Similarly, abandonment is invalidated if it is established that the defendant abandoned their acts only after realizing the existence of circumstances that increased their chances of being arrest, or decrease the probability of successful completion of the crime such as proximate arrival of police.49 Abandonment is also invalid where the defendant simply postpones the criminal plan to another time.50
48

Joshua Dressler, Understanding Criminal Law (2001), 3rd ed, Lexis Nexus Publishers, London/New York, p 487. Wikipedia

49

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Other than abandonment, impossibility may also suffice as a defence as it was held in the case of Haughton v Smith.51 The case of R v Taaffe52 is also demonstrative hereon where the defendant believed that importing currency was illegal and sought to smuggle several packages. The Court found that there was no such offence, therefore, he could not be liable for attempting a crime that did not exist.

Activity 3.1
Conduct a desktop research to establish whether, in Zambia, abandonment is a valid defence to the offence of attempt.

Topic 3.2: Conspiracy


A conspiracy is an agreement between two or more people to commit a crime or unlawful act or a lawful act by unlawful means at some time in the future. Criminal law in some countries or for some conspiracies may require that at least one overt act must also have been undertaken in furtherance of that agreement, to constitute an offence. For the purposes of concurrence, the actus reus is a continuing one and parties may join the plot later and incur joint liability and conspiracy can be charged where the coconspirators have been acquitted or cannot be traced.53 Under the Pinkerton liability
50

Ibid
[1975] AC 476 (1984) Wikipedia

51

52

53

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rule, a conspirator is responsible for crimes within the scope of the conspiracy and reasonably foreseeable crimes committed by his/her co-conspirators in furtherance of the conspiracy.

Under the Pinkerton rule,54 a conspirator could be held liable for crimes that he did not participate in or agree to or aid or abet or even know about. The basis of liability is negligence on the footing that the conspirator has implicitly, with negligence, authorised his/her co-conspirators to further their criminal activities and he/she is vicariously liable for any crime that were a foreseeable consequence of the original conspiratorial agreement.

3.2.1 Elements of Conspiratorial Liability


There are four specific elements that the prosecutor must prove if a defendant is to be convicted for conspiracy numerated below: i. Two or more persons come to a mutual understanding to try to accomplish a common and unlawful plan; ii. The defendant willfully becomes a member of the conspiracy;

54

Pinkerton v. United States, 328 U.S. 640 (1946)

38] Introduction to Criminal Law: Learners Module

iii.

During the conspiracy at least one of the conspirators commit an overt act in furtherance of the conspiracy; and

iv.

The overt act is knowingly committed in an effort to further the purpose of the conspiracy.

3.2.2 Withdrawal as a Defence to Conspiracy


In tandem with the Pinkerton Rule, a conspirator who withdraws from an ongoing conspiratorial activity would still be liable for the resultant criminality. Unless he voluntarily withdraws therefrom way before the activity progresses, liability incurred by his/her co-conspirators will be imputed on him/her too.

3.2.3 Repentance as a Defence to Conspiracy


Under conspiracy, repentance by one or more parties does not affect liability but may reduce their sentence. As espoused by the House of Lords case of R v Hayter,55 where a conspirator so repents, his or her confession is admissible in court subject to exceptions as per the rules of evidence.

55

[2005] UKHL 6 (3 February 2005)

39] Introduction to Criminal Law: Learners Module

In the said Hatter case, Lord Steyn cited Keane56 and expounded that: In two exceptional situations, a confession may be admitted not only as evidence against its maker but also as evidence against a co-accused implicated thereby. The first is where the co-accused by his words or conduct accepts the truth of the statement so as to make all or part of it a confession statement of his own. The second exception, which is perhaps best understood in terms of implied agency, applies in the case of conspiracy: statements (or acts) of one conspirator which the [court] is satisfied were said (or done) in the execution or furtherance of the common design are admissible in evidence against another conspirator [after repentance], even though he was not present at the time, to prove the nature and scope of the conspiracy, provided that there is some independent evidence to show the existence of the conspiracy and that the other conspirator was a party to it.57 Emphasis is mine.

Topic 3.3 Incitement and/or Solicitation


Incitement and solicitation are basically one and the same inchoate offence. Lord Denning defined incitement as to urge or spur on by advice, encouragement or

persuasions, and not otherwise .... A person may "incite" another to do an act by threatening or by pressure, as well as by persuasion.58 Scarman LJ re-echoed this
definition in the 1977 case of R v Whitehouse thus: [A]t common law the crime of

56

The Modern Law of Evidence (2000) 5th ed., pp 385386


At paragraph 25

57

58

Race Relations Board v Applin [1973] 2 All ER 1190

40] Introduction to Criminal Law: Learners Module

incitement consists of inciting another person to commit a crime ... An inciter is one who reaches and seeks to influence the mind of another to the commission of a crime.59
Case Study 3.2: Conspiracy- Withdrawal vs. Vicarious Liability R v Becerra and Cooper (1975) 62 Cr App R 212
Brief Facts: The defendants agreed to burgle a house. Once inside the victim house, Becerra gave Cooper a knife to use in case there was any trouble. When they were disturbed by one of the tenants from upstairs, Becerra jumped out of the window and ran off, shouting There's a bloke coming. Let's go. Cooper remained behind and stabbed the tenant to death. Becerra was convicted as an accomplice to the murder. Legal Issues: On appeal, Becerra contended that the trial judge erred both in law and fact as he (appellant) had withdrawn from the enterprise of burglary before the murder was committed in the process and he, in fact, had no intent to murder anyone but simply to burgle the house. Holding: In dismissing the appeal against conviction, Roskill LJ stated the law as follows: After a crime has been committed and before an abandonment of the common enterprise can be established there must be something more than a mere mental change of intention and physical change of place by those associates who wish to dissociate themselves from the consequences. What must be done to break the chain of responsibility will depend upon the circumstances of each case. Where practicable and reasonable there must be timely communication of the intention to abandon the common purpose from those who wish to dissociate themselves from the contemplated crime to those who desire to continue in it. "Timely communication" ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw. In the present case, the knife having been contemplated for use when it was handed over by B to C, if B wanted to withdraw at that stage he would have to "repent" in some manner vastly different and vastly more effective than merely to say "Come on, let's go" and go out through the window.

Similarly, solicitation simply means "urgently asking." It is the action or instance of beseeching, petitioning or proposing. In criminal law, it most commonly refers to either
59

[1977] 3 All ER 737

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the act of offering goods or services, or the act of attempting to purchase such goods or services which are prohibited by law. It could also mean the addressing or accosting by

a potential prostitution customer of a supposed prostitute with the purpose to conclude to a prostitution agreement with her.60 This is especially so in situations where legal
status specifies the place and/or time where solicitation occurs.61 For instance, in Zambia just like in England and Wales, solicitation as an offence entails a person (whether

male or female) persistently to loiter or solicit in a street or public place [usually at night] for the purpose of prostitution.62
As an inchoate offence, solicitation also occurs where a person offers money or induces another to commit a crime with the specific intent that the person solicited commits the crime. If the substantive offence is not committed, the defendant may be convicted for incitement, conspiracy or attempt. If, on the other, the substantive offence is actually committed, the defendant may be convicted as for conspiracy, counselling or procuring an offence (as an accessory). He/she may equally be convicted for the substantive

60

See Kerb Crawler, cited with authority in Wikipedia Wikipedia See the Penal Code Act, Cap 87 of the Laws of Zambia

61

62

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offence as a joint principal together with other(s) under the doctrine of common purpose.

3.3.1 Elements of Incitement and/or Solicitation


Unlike conspiracy, there is no overt step necessary for incitement/solicitation, one person can be a defendant, and it merges with the substantive crime. That is to say, it is not necessary that the person actually commits the crime, nor is it necessary that the person solicited be willing or able to commit the crime. All that the prosecutor needs to prove are the following three unique elements: i. ii. iii. the encouraging, bribing, requesting, or commanding a person; to commit a substantive crime; with the intent that the person solicited actually commits the crime.

Activity 3.2
Using the Penal Code Cap 87 of the Laws of Zambia, critically evaluate the relationship between incitement and solicitation in Zambia.

3.3.2 Possible Defences in Incitement/Solicitation


There are a number of situations that may render the indictment of incitement fail. They include impossibility of performance; mere manufacture of instruments that may be used for commission; and lack of knowledge on the part of the solicitee or incitee.

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3.3.2 (A) Impossibility of Performance


Impossibility of performing an illegal act at the instigation of another person is a valid defence at law. For instance, if X incites Y to perform an act perceived by both parties to be illegal when in fact not, the defence of impossibility will arise. It is premised on the legal notion that it is impossible to commit a crime which is not a criminalised at law. This notion emanates from the controversial case of R v Whitehouse63 where it was held that it is formally impossible to incite another person to commit a lawful act. The defence of impossibility is in two categories; factual/physical impossibility and legal impossibility. Usually, it is only the legal impossibility that would succeed as a defencenot the factual/physical impossibility.64

Note that impossibility is a common law defence which, in Zambia, has been statutorily ruled out by sections 389(2) and 389 (3) of the Penal Code.65

63

Op cit R v. Fitzmaurice [1983] QB 1083


Cap 87 of the Laws of Zambia

64

65

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Case Study 3.3: Incitement- No Liability if Offence is de facto Impossible R v. Fitzmaurice [1983] QB 1083
Brief Facts: The defendant's father (X) had asked the defendant to recruit people to rob a woman on her way to the bank by snatching wages from her. The defendant, and others, did not know that X planned to obtain a reward for reporting the robbery of a security van, which would arrive at the same time as the fictional robbery. Legal Issues: The defendant averred that he should be acquitted because where an offence is de facto impossible, the defendant will not be liable for incitement to commit it. He further contended that the staged fictional robbery was just a comic act impossible to turn into a real crime- thus impossibility of commission. Holding: In dismissing the defendants arguments, the court convicted the defendant stating that inciting a robbery because its commission ('robbing a woman at Bow') was not impossible at the time of the incitement, notwithstanding that it ended up being a comic charade.

3.3.2 (B) Mere Manufacture/Display of Potentially Illegal Instruments


The manufacturing or displaying for sale of instrumentalities that that may create a thought in some persons to buy such instruments and use them for criminal purposes does not in itself amount to incitement. At law, incitement goes beyond the mere display of instrumentalities that could be used in the perpetration of a crime.

For example, in the case of R v James and Ashford,66 the defendant manufactured devices used to reverse electricity meters. He intended to sell them to a third party retailer, who in turn was to sell the boxes to customers who would employ the device unlawfully. The defendant was found not guilty with the court holding that the

66

(1985) 82 Cr App R 226

45] Introduction to Criminal Law: Learners Module

defendant did not incite the middleman to use the boxes, nor was there evidence that he incited the middleman to incite the ultimate users.

However, caution must be taken in seeing to it that all the circumstances surrounding such a scenario are taken into consideration. For instance, in the case of Invicta Plastics

Ltd v Clare67 the defendant company manufactured and advertised for sale a police
radar-alerting device that was unlawful to operate without a licence, although it was not unlawful to own one. The defendant was found guilty of inciting an unlawful act, by persuading and inciting the use of the device.

The court stated that the actus reus of incitement may be implied rather than express; which could be determined by looking at the acts taken as a whole. In this case the court enunciated that encouragement or persuasion of another person to commit an offence is tantamount to incitement. This explanation reaffirmed the ancient common law position that was taken in the Higgins case68 where the defendant was convicted for incitement/solicitation following his encouraging a servant to steal his masters goods.

67

[1976] RTR 251 R v Higgins (1801) 2 East 5

68

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3.3.3. (c) Lack of Intent/Knowledge on the part of the Incitee


It is a settled principle of law that for incitement to occur, both the inciter and the incitee must have prior knowledge and intention regarding the surrounding circumstances and the result of their actus reus. Otherwise, the accused person would be acquitted as in the case of R v Curr.69

In the said Curr case, the defendant was trafficking in family allowance books. He lent money in return for family allowance books containing signed vouchers. Agents under the defendants direction cashed the signed vouchers without prior knowledge that they were actually being used to commit an offence. The defendant knew that if he had let the agents know that they were being incited to commit a crime they absolutely should have declined the instructions. The court held that the indictment of incitement could not stand unless the agents knew their actions to be unlawful and therefore a summary offence. As such the defendant could not solicit them, he was found not guilty of incitement.

69

[1968] 2 QB 944

47] Introduction to Criminal Law: Learners Module

Well done, you have completed this unit but the scales of justice are yet to tilt in your favour. Attempt the Revision Questions below NOW!!!

3.5 Revision Questions


(1) Do you subscribe to the view that solicitation is different from incitement? Explain your answer. (2) Briefly discuss the pertinent differences among the following inchoate offence: (i) attempt; (ii) conspiracy; and (iii) incitement. (3) With hypothetical examples, analyse the relationship between inchoate offences and their respectively corresponding main/actual offences. (4) Is there any other charge that the defendant in the case of R v Curr could have been charged with and successfully convicted other than the failed charge of incitement? Explain. (5) Distinguish the case of Invicta Plastics Ltd v Clare from that of R v James and Ashford with specific reference to why cases with similar facts received different verdicts/holdings.

Gavel is down; you are now cleared to proceed to the next unit. Congratulations!!!

48] Introduction to Criminal Law: Learners Module

Unit 4: Participation/Scope of Criminal Liability


4.0 Unit Overview and Expected Outcomes
This unit deals with the various modes through which one may participate in the commission of an offence. At the end of the unit, you should be able to critically discuss the various ways in which a person may participate in the commission of an offence and discuss the legal implications in terms of distributing criminal liability to the multiple offenders or individual participants.

Topic 4.1: Modes of Participation


Participants in crime may be classified as either primary actors or secondary actors. Primary actors are also known as principals whereas secondary actors are popularly known as accessories. Principals are normally persons who are present at the scene of the crime and physically participate in the commission of the crime. Accessories on the other hand are persons who may not be present during the commission of the crime but who encourage, counsel, command, procure, or protect the principals before or after the crime is committed.

Principals do not only include actual perpetrators who with the requisite state of mind commit the criminal acts that constitute the criminal offence. They include also aiders

49] Introduction to Criminal Law: Learners Module

and abettors who are persons at the scene of the crime and actually provide aid or encouragement to the principal.

Accessories are divided into two categories namely: (i) accessories before the fact; and (ii) accessories after the fact. An accessory before the fact is a person who aids, encourages or assists the principals in the planning and preparation of the crime but is absent when the crime was committed. An accessory after the fact is a person who knowingly provides assistance to the principals in avoiding arrest and prosecution. It is arguably recognized that the accessory after the fact, by virtue of his involvement only after the felony was completed, ought not to be truly an accomplice in the felony.

Activity 4.1
Discuss the major distinguishing feature of the following participants in a crime: (i) abettors; (ii) aiders; (iii) accessories; (iv) accomplices; and (v) joint principals.

Topic 4.2: Accomplices and Accessories


Generally, a person is complicit in a crime if he/she is aware of its occurrence and has the ability to report the crime, but fails to do so. As such, the individual effectively allows criminals to carry out a crime despite possibly being able to stop them, either directly or by contacting the authorities, thus making the individual a de facto accessory to the crime rather than an innocent bystander. Nevertheless, complicit varies

50] Introduction to Criminal Law: Learners Module

depending on a particular domestic jurisdiction; with the majority of jurisdictions treating it as not a crime contrary to popular perception.70

The doctrine of complicity operates to hold persons criminally responsible for the acts of others through either accessorial or conspiratorial liability. Accessorial liability is frequently referred to as accomplice liability; with an accomplice being a person who helps another person to commit a crime. Accomplice liability involves primary actors who actually participate in the commission of the crime and secondary actors who aid and encourage the primary actors. The aid can be either physical or psychological. In this case, the secondary actors are called accomplices.71

4.1.2 Elements of Accomplice/Accessorial Liability


The following are the four elements of accomplice liability: i. ii. A crime was committed by another person; The defendant aided, counseled, commanded or encouraged that other person in the commission of the crime; iii. The defendant acted for the purpose of helping or encouraging that other person to commit the crime; and
70

Wikipedia

71

Ibid

51] Introduction to Criminal Law: Learners Module

iv.

The defendant acted with at least the same mental state required for the commission of that crime.

The prosecution must show that the defendant provided assistance, and intended to assist the perpetrator. While substantial activity is not required, neither mere presence at the scene of the crime nor even knowledge that a crime is about to be committed count as sufficient for accessorial liability.72

In simple terms, ones mere presence at the crime scene does not render them criminally liable unless they intended to be thereat to assist the offender(s) with the commission of the offence; and actually did so assist by either encouragement or otherwise.

However, it is not a defence to prove the fact that the principal would have still committed the offence even if the accessory/accomplice had not assisted.

72

Ibid

52] Introduction to Criminal Law: Learners Module

Case Study 4.1: Modes of Participation- Mere Presence at the Crime Scene R v. Clarkson [1971] 1 WLR 1402
Brief Facts: Two soldiers (the defendants) had entered a room following the noise from a disturbance therein. They found some other soldiers raping a woman, and remained on the scene to watch what was happening. They were convicted of abetting the rapes. Legal Issues: On appeal, they argued that their mere presence alone at the crime scene could not have been sufficient for complicity liability as they neither in any way intend to assist nor actually did they assist the offenders whatsoever. Holding: The Court of Appeal allowed the appeal and held that the appellants could only be convicted if (a) the presence of the defendant at the scene of the crime actually encouraged its commission, and (b) the accused had intended their presence to offer such encouragement.

4.1.3 Types of Assistance


To be deemed an accomplice or accessory, a person must assist in the commission of the crime by aiding, counseling, commanding or encouraging the principal in the commission of the criminal offence. Assistance can be either physical or psychological. Physical assistance includes actual help in committing the crime as long as the acts of assistance do not constitute an element of the offence. It also includes such things as procuring weapons to be used to commit the crime, or serving as a lookout during the commission of the crime or providing protection from arrest or prosecution after the crimes commission.

Psychological assistance includes encouraging the principal to commit the offence through words or gestures or mere presence as long as the principal knows that the

53] Introduction to Criminal Law: Learners Module

accomplice is present to provide assistance. It is not necessary that the accomplice's acts actually cause or contribute to the principal's committing the crime. In other words the prosecution need not prove that the accomplice's acts were either a proximate cause or cause in fact of the crime.73 Case Study 4.2: Modes of Participation- Counselling by Instructions R v Calhaem [1985] QB 808
Brief Facts: Calhaem had hired a man named Zajac to kill a woman. Z testified that after being paid by the defendant he had decided not to carry out the killing, but instead to visit the victim's house, carrying an unloaded shotgun and a hammer, to act out a charade that would give the appearance that he had tried to kill her. He claimed that when he had stepped inside the front door of the victim's house, she had screamed and he panicked, hitting her several times with the hammer. The court convicted both Zajac and Calhaem [for counselling Zajac on how to commit the murder] but Calhaem appealed against the conviction. Legal Issues: On appeal, Calhaem submitted that, on Zajac's evidence there was no causal connection, or no substantial causal connection [as he did not necessarily counsel Zajac on how to commit the offence but simply instructed him.] Holding: The Court of Appeal affirmed the conviction. It was held that the offence of counselling a person to commit an offence is made out if it is proved that there was a counselling, that the principal offence was committed by the person counselled and that the person counselled was acting within the scope of his authority and not accidentally when his mind did not go with his actions. It is not necessary to show that the counselling was a substantial cause of the commission of the offence or another connected act other than the specifically devised/agreed method (during counselling) of committing the office was actually the specific one used to commit the offence.

4.1.4: Joint Principals and Common Purpose Enterprise


The doctrine of common purpose, common design, joint enterprise, or joint criminal enterprise is a legal doctrine in some common law jurisdictions which imputes criminal

73

Ibid

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liability on the participants to a criminal enterprise for all that results from that enterprise. A common incidence of the application of the rule is to impute criminal liability for assaulting a person with a knife, on all the participants to a riot who knew, or were reckless as to knowing, that one of their numbers had a knife and might use it, even when the imputed participants did not actually have knives themselves.

That is to say, as espoused in the Zambian case of Mwape v. The People,74 two or more persons may act as principals or as accessories if they have common [unlawful] purpose. For example, one person may hold a gun on the clerk of a convenience store while a second person takes the money from the cash register during a robbery. Both actors are principals in the crime because each one of them does an act that constitutes the crime under common purpose. Even though neither did all the acts that constitute the crime under the theory of joint participation or acting in concert the law treats them as partners in crime who have joined together for the common purpose of committing the crime of robbery and each is held responsible for the acts of the other in the commission of the object offence.75

74

(1976) ZR 160 Wikipedia

75

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4.1.5: Origin of the Doctrine


The doctrine of joint principals and common purpose enterprise originates the 1846 case of R v Swindall and Osborne.76 The synopsis of the case is that two cart drivers engaged in a race which resulted in one of them knocking down a pedestrian to death. It was not known which one had driven the fatal cart, but since both were equally encouraging each other in the race, it was immaterial which of them had actually killed the man. As such both were held liable as joint principals. From this case it has since been established over time that for this doctrine to operate, the parties must share a common purpose and make it clear to each other by their actions that they are acting on their common intention so that each member of the group assumes responsibility for the actions of other members in that group.

The same is the position in Zambia as seen in the case of Mutambo & Others v The

People.77 When such happens, all that flows from the execution of the plan will make
them all liable. This is a question of causation in that oblique intention will be imputed for intermediate consequences that are a necessary precondition to achieving the ultimate purpose, and liability will follow where there are accidental and unforeseen
76

(1846) 2 Car & K 230 (1963- 64) ZR 15

77

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departures from the plan so long as there is no novus actus interveniens to break the chain of causation.78 If there is doubt as to whether all the participants are contributing equally, those defendants whose contribution is less will still be liable for complicity as accessories rather than joint principals.

Activity 4.2
With specific reference to the Zambian case of Haonga & Others v The People (1976) ZR 200 discuss the application of the immediate foregoing principles to Zambia.

4.1.6: Requisite Mental States


Two mental states are required for accomplice liability. First, the accomplice must act with at least the same mental state required for the commission of the crime. For example, if the crime is common law murder the state must prove that the accomplice acted with malice.

Second, the accomplice must act for the purpose of helping or encouraging the principal to commit the crime. As espoused by Hatchard and Ndulo, the mental aspect of this offence entails that there must be a community of purpose with the party actually

committing the crime at the time the crime is committed.79

78

Wikipedia Hatchard, J. and Ndulo, M., Readings in Criminal Law and Criminology in Zambia (1994) Multimedia Publications,

79

Lusaka, at 48

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Note that instances may arise where the respective mental states of the individual actors may be factually same and yet legally different. In reciprocation, therefore, even their level of guilt will be different accordingly. In such cases, it is legally possible that an accomplice may be guilty of a greater offence than the principal. For example, A and B catch B's wife red-handed in an adulterous sexual act with C. A says kill C. B pulls his gun and shoots C killing him. B would have the benefit of provocation which would reduce his offence to manslaughter. A, however, would be guilty of murder.

Activity 4.2
Briefly discuss the connection between accomplices and joint principals.

4.1.7: Liability for Unintended Crimes


Questions arise as to the liability of accomplices for unintended crimes committed by a co-actor. Assume the clerk drew a weapon and the gun totting principal shot the clerk killing him, would a person waiting in the getaway car be responsible for the murder? Most jurisdictions hold that accomplice liability applies not only to the contemplated crime but also any other criminal conduct that was reasonably foreseeable.80 The case of

R v Becerra and Cooper81 is instructive hereon.

80

Wikipedia (1975) 62 Cr App R 212

81

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With the exception of an accessory after the fact, in most cases an accomplice is a coconspirator with the actual perpetrator. For example, the person who agrees to drive the getaway car while his confederates actually rob the bank is a principal for purposes of accessorial liability and a co-conspirator for purposes of conspiratorial liability. However, many situations could arise where no conspiracy exists but the secondary party is still an accomplice. For example, the person in the crowd who encourages the batterer to hit him again is an aider and abettor but not a co-conspirator. As Dressler notes, the difference between the two forms of complicity is that with a conspiracy an agreements is sufficient no assistance is necessary whereas with accessorial liability no agreement is required but some form of assistance is necessary for liability.82

4.1.8 Deliberate Departure as a Defence


Where one of the participants deliberately departs from the common purpose by doing something that was not authorised or agreed upon, that participant alone is liable for the consequences. The departure from the common purpose must be substantive enough break the enterprise as elucidated in Davies v DPP.83 Such departure could be evidenced

82

Ibid
(1954) AC 378

83

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in situations where other participants suffer utter shock or dismay at the extra acts by their co-actor(s).

In the aforementioned case of Davies v DPP,84 two gangs of boys had a fight, during which the principal offender (Davies) had killed an opponent with a knife. The defendant was convicted of murder. Lawson, an accomplice was acquitted of being an accomplice to either murder or manslaughter because there was no evidence that he knew or reasonably ought to have known that any of his companions had a knife. In fact, he was shocked at the turn of events as he did not know or never expect that anyone would carry a knife to such a feud.

Note that had the victim died from blows to the head from the principal's (David) fist or boot, then Lawson could have been guilty as an accomplice to manslaughter, because such a mode of attack was contemplated by him, and the death of the victim would have been an unforeseen consequence of its being carried out.

84

Ibid

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The determinant test to be applied in ascertaining the levels of departure is the objective reasonable test of foreseeability. If the other members had or ought to have reasonably foreseen the departure, then all participants will be liable for the departing acts too. If on the other hand they could not reasonably have foreseen such departure, they may successfully erect the defence of deliberate departure.

Activity 4.3
Give two hypothetical examples of what might amount to the defence of deliberate departure.

4.1.9 Repentance as a Defence


In tandem with departure, sincere repentance coupled with unequivocal

communication thereof before execution of the joint enterprise may amount to defence. In the case of R v Rook,85 this defence was erected although it was rebutted because evidence that the accused adduced did not amount to an unequivocal communication of his withdrawal from the scheme contemplated at the time he gave his assistance.

A good authoritative example hereon is the case of R v Whitefield

86

where two people

burgled a flat while the occupier was away. The defendant, who lived next door, admitted telling the principal offender that the flat would be empty. He also admitted
85

(1997) Cr. App. R. 327 (1984) 79 Cr App R 36

86

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that he had agreed to carry out the burglary with the principal, but that he had later changed his mind. Whitefield was present in his flat the night the burglary was committed. He heard the flat being broken into but did nothing to prevent the offence. At his trial for burglary, Whitefield unsuccessfully submitted that he had withdrawn from the common enterprise to burgle the adjoining flat (by informing the principal that he did not wish to take part in it, and by refusing to allow him access to his flat and balcony for the purpose of effecting entry to his neighbour's flat). The court convicted him as accomplice for failure to take preventive steps, such as informing the police.

The Court of Appeal quashed the conviction and held that all Whitefield needed to do was to communicate unequivocal notice to the others that he had withdrawn from the common purpose enterprise. The court then found that there was, no doubt, sufficient evidence that Whitefield had served unequivocal notice on the principal that, if he proceeded with the burglary they had planned together, he would do so without Whitefields aid or assistance. The court further confirmed repentance and withdrawal is a defence hereon.

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Case Study 4.2: Repentance as a Defence R v Rook (1997) Cr. App. R. 327
Brief Facts: Rook was convicted as one of a gang of three men who met and agreed the details of a contract killing to kill the wife of a fourth man on the next day. Rook did not turn up next day and the killing was done by his two fellows. Legal Issues: Rook raised the defence of repentance and submitted that he never intended the victim to be killed and believed that, if he failed to appear, the others would not go through with the plan. Holding: In finding him guilty, the court held that just like in the case of joint enterprise where both parties are present at the scene of the crime, it is not necessary for the prosecution to show that a secondary party who lends assistance or encouragement before the commission of the crime (but is absent from the crime scene on the material day) intended the victim to be killed, or to suffer serious injury, provided it was proved that he foresaw the event as a real or substantial risk and nonetheless lent his assistance. Lloyd LJ summarized and dismissed Rooks evidence in support of his defence thus: So the position, on his own evidence, was that he took a leading part in the planning of the murder. He foresaw that the murder would, or at least might, take place. For a time he stalled the others. But he did nothing to stop them, and apart from his absence on the Thursday, he did nothing to indicate to them that he had changed his mind.

4.1.10 Acquittal of the Principal Offender


As rightly enunciated by Lord Goddard CJ in R v Bourne,87an acquittal of the principal offender does not at all mean that the secondary offender should be acquitted too. For example, in the case of R v Cogan and Leak,88 Leak persuaded Cogan to have sexual intercourse with Mrs Leak, telling him that she liked being forced to have sex against her will, and that if she struggled it was merely evidence of her enjoyment. Cogan was convicted of rape but appealed successfully against his conviction on the basis that he
87

(1952) 36 Cr App R 1251 [1976] QB 217

88

63] Introduction to Criminal Law: Learners Module

had honestly thought she was consenting to sexual intercourse. Leak appealed against his conviction for aiding and abetting the rape, on the basis that if the principal had been acquitted, there was no offence to which he could have been an accomplice. In dismissing the appeal, the Court of Appeal held that the actus reus of rape had been committed by Cogan in that Mrs Leak had been forced to submit to sexual intercourse without her consent. Leak had known that she was not consenting, and thus had the necessary mens rea to be an accomplice. Alternatively, the court was willing to view Cogan as an innocent agent through whom Leak had committed the offence of rape.

Topic 4.2: Corporate Liability


There are instances when the accused may have participated in a crime and dealt with as a mere agent of a body corporate through corporate liability. In criminal law, corporate liability determines the extent to which a corporation as a legal person can be liable for the acts and omissions of the natural persons it employs. It is sometimes regarded as an aspect of criminal vicarious liability, as distinct from the situation in which the wording of a statutory offence specifically attaches liability to the corporation as the principal or joint principal with a human agent.89

89

Wikipedia

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The imposition of criminal liability is only one means of regulating corporations and since a body corporate is a factious legal person that cannot physically be imprisoned, penalty is by fine or dissolution. Indeed, persons who act for a body corporate, in committing a crime, generally ought not to suffer imprisonment for the crimes of the body corporate.90 This controversial position was postulated by Lord Reid in Tesco

Supermarkets Ltd v Nattrass91 where he stated that:


The person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company.

Exceptions do exist though where the human agents act with impunity or indifference using the body as a smokescreen to perpetrate crimes. In such cases, the doctrine of alter ego could be invoked to the extent of imprisonment of the human agents on behalf of the body corporate as seen in the Zambian case of The People v Shamabanse.

Activity 4.4
Find the said Shamabanse case, summarise the facts therein by way of synopsis and analyse its possible applicability to other jurisdictions outside Zambia.

90

Wells, C., Corporations and Criminal Responsibility (2001) 2nd ed, Oxford University Press, Oxford [1972] AC 153

91

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Well done, you have completed this unit but the scales of justice are yet to tilt in your favour. Attempt the Revision Questions below NOW!!!

4.5 Revision Questions


(1) Is there any difference between inchoate offences and preliminary offences? (2) Explain the two major modes of participation in a crime. (3) What elements should be satisfied for repentance and withdrawal to operate as a defence in inchoate offences? (4) Distinguish the following inchoate offence: (i) attempt; (ii) conspiracy; and (iii) incitement/solicitation. (5) Write a legal essay on the possibility of having a principal offender acquitted but the secondary offender convicted and/or vice versa.

Gavel is down; you are now cleared to proceed to the next unit. Congratulations!!!

66] Introduction to Criminal Law: Learners Module

Unit 5: General Defences


5.0 Unit Overview and Expected Outcomes
This unit aims at helping you to understand the legal issues surrounding possible defences that are generally available in a criminal trial. After you have studied this unit, you should be able to demonstrate the two major types of defences and the legal implications of each one of them.

5.1 Introduction
In all criminal proceedings, the defendant has a legal right to raise a defence in responding to the allegation(s) levelled against him/her. The simple legal definition of a defence is that it is [a variety of conditions that will tend to negate elements of a crime

(particularly the intent element).92

Topic 5.1: Types and Classification of Defences


At law, defences to a criminal charge are of two basic types namely: absolute and partial defences. An absolute defence is in a total acquittal. That is to say, where an absolute defence has been successfully erected the accused must be acquitted. In contrast, an impartial defence does not entitle a defendant to acquittal but simply reduced the charge, conviction or sentencing to a lower or lighter one as the case may be.

92

www.en.wikipedia.org/wiki/Criminal_defenses Retrieved on 10 April 2013 at 2:25PM

67] Introduction to Criminal Law: Learners Module

In terms of classification, a critical analysis of the various general defences indicates that there are six broad categories in which the two basic types of defences may defences may be categorised namely: i. ii. iii. iv. v. vi. Mental/Physical Incapacity; Mistake and Intoxication; Justification and Excuse; Special Defence; Permissible Conduct; and Circumstantial Defence.

Topic 5.2: Mental/Physical Incapacity


This class of defences includes four defences namely (i) Infancy; (ii) Insanity; (iii) Diminished Responsibility; and (iv) Automatism.

5.2.1: Infancy
Infancy is an affirmative defence to a criminal charge in that, by reason of age, an individual under a certain age does not have sufficient mental capacity to be held legally responsible for his or her actions. This is in line with the Latin maxim: doli incapaxmeaning that infants have no legal capacity.

68] Introduction to Criminal Law: Learners Module

At common law, children were generally regarded as incapable of committing crimes. However, different presumptions have generally been applied, depending upon the age of the child. Conclusively, it is presumed that a child under the age of seven is unable to form a criminal mens rea and, therefore, a child that young cannot be convicted of a crime. Children between the ages of seven and fourteen are also presumed incapable of forming criminal mens rea. However, this presumption is rebuttable. Therefore, even though the law leans away from convicting children between the ages of seven and fourteen, the prosecution can still obtain a conviction by proving that the child knew what he was doing and knew that what he was doing was wrong.93

In the event that the child knew what he/she was doing, then the concept of child imprisonment is invoked. This is a concept in criminal law where people are considered not old enough to be held responsible for their criminal acts. Therefore, under this concept, the court should establish whether children should be punished as an adult for crimes committed as a juvenile; or, if special treatment is a better solution for the offender.

93

http://nationalparalegal.edu/public_documents/courseware_asp_files/criminalLaw/defenses/Infancy.asp Retrieved on 29

April 2013 at 11:40 AM

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In doing so, the court should sit as a juvenile court and take proceedings in camera. A juvenile court is a court of special jurisdiction charged with adjudicating cases involving crimes committed by those who have not yet reached a specific age. If convicted in a juvenile court, the offender is found responsible for their actions as opposed to guilty for a criminal offence because they are a minor (yet to reach the major age with criminal culpability).94 For the case of Zambia, section 14 of the Penal Code95 categorically stipulates thus: i. A person under the age of eight (8) years is not criminally responsible for any act or omission; ii. A person under twelve (12) years is not criminally responsible for any act or omission, unless the prosecutors prove that the child had capacity to know, at the time of commission or omission, that they ought not to do the act or make the omission; and iii. A male child under the age of 12 years is presumed to be incapable of having carnal knowledge.

94

http://en.wikipedia.org/wiki/Defense_of_infancy Retrieved on 29 April 2013 at 11:55 AM. Cap 87 of the Laws of Zambia

95

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5.2.2: Insanity
A defendant may plead insanity or mental disorder as a defence to negate the mens rea of any crime. In most jurisdictions a defendant would be acquitted on the grounds of insanity if he/she adduced sufficient evidence to prove that he/she suffered from such a mental disease or defect that he/she was unable to appreciate the consequences of their actions or did not know that what they were doing was wrong.96 This is particularly relevant to those crimes that require the element of ill-intent. Therefore, it cannot be succeed in cases of strict liability.

Appreciating the bio-medical fact that all human beings have a level of insanity within their mental faculties, the law envisages the type of insanity, for purposes of criminal defence, to be criminal insanity. Criminal insanity entails either an actor's lack of

understanding of the wrongfulness of the offending conduct, or the actor's inability to conform conduct to the law. 97

Activity 5.1
Read the case of Woolmington v Director of Public Prosecutions, op cit, and write an elaborate essay on who bears the responsibility of proving the insanity of an accused person where there has been plea of insanity as a defence.

96

See the case of State v. Silvers, 323 N.C. 646, 655, 374 S.E.2d 858, 864 (1989) See the M'Naghten's case (1843) 10 C & F 200

97

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5.2.2 [A]: Defect of Reason


Defect of reason may also amount to criminal insanity as it legally means much more than absent mindedness if it is caused by other related ailments such as diabetes and depression. For example, in the case of R v Clarke98 a lady walked from a supermarket without paying for a jar of mincemeat as a result of defect of reason caused by diabetes and depression. She pleaded guilty because she did not want to defend herself as insane. Her conviction was later quashed when a higher court emphasized that disease of the

mind includes not just brain diseases, but any impairment permanent or transient and intermittent so long as it is not externally caused (e.g. by drugs) and it has some effect on one's mind.

5.2.2 [B]: Disease of the Mind


Disease of the mind does not only mean the sickness of the brain. It includes other bodily ailments that may affect the mental state of a person. For example, epilepsy can count towards the defence of criminal insanity where, as an artery problem, it causes temporary loss of consciousness (whereby a man consequently attacks his wife with a hammer) as seen in the case of R v Kemp.99 Even sleep-walking has been deemed to be

98

[1972] 1 All ER 219 [1957] 1 QB 399

99

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insanity as per the case of R v Burgess100 where the Court stated that [N]ot knowing

the nature or wrongness of an act is the final threshold which confirms insanity as related to the act in question.

Lastly, it must be noted that if at the time of commission of a crime the person was actually not insane, the defence of criminal insanity will not succeed. In R v Windle101 a man helped his wife commit suicide by giving her a hundred aspirin. He was in fact mentally ill, but as he recognized what he did and that it was wrong by saying to the police I suppose they will hang me for this, he was found not insane but guilty of murder although he was not hanged.

Note that a successful invocation of the M'Naghten defence results in commitment to a mental institution for treatment, rather than imprisonment. That is to say, where the accused succeeds in pleading insanity and the courts find him/her not guilty by reason of insanity, then the defendant will be held in a mental hospital at the Presidents pleasure. This is done through a court order for the patient to be receiving treatment and not necessary at the instance of the President.
100

[1991] 2 All ER 769 [1952] 2 QB 826

101

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Case Study 5.1: Insanity- The MNaghten Rules M'Naghten's case (1843) 10 C & F 200
Brief Facts: Mr. MNaghten who was suffering extreme paranoia believed the United Kingdom Tory party was persecuting him. He wanted to shoot and kill Prime Minister Sir Robert Peel, but shot Peel's secretary in the back instead. He was consequently tried for murder. Legal Issues: The prosecution team argued that the defendant was liable for his actions notwithstanding the purported insanity. In response, the defence team raised the defence of insanity and argued that the accused could not be criminally liable as he suffered a disease of the mind resulting in criminal insanity. Holding: The Court found that the defendant was insane, and instead of prison, put in a mental hospital. The court held that a person is presumed to be sane and responsible, unless it is shown that (1) he was labouring under such a defect of reason (2) from disease of the mind (3) as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. The hold se elements must be proven present on the balance of probabilities. This forms what is popularly known today as the MNaghten Rules.

5.2.3: Diminished Responsibility


The defence of diminished responsibility, also known as diminished capacity, entails a potent excuse from criminal liability premised on the defendants mental faculties being impaired (diminished). The simple working definition of diminished responsibility is that it is an abnormality of mind caused by arrested, retarded or diseased mental faculties resulting in substantial impairment of responsibility. In R v Egan102 it was held that substantial impairment was the kind of word that could be interpreted in a broad common sense way. Hence, it meant that there was ...more than some trivial degree of

102

(1992) 4 All ER 470

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impairment which does not make any appreciable difference to a person's ability to control oneself, but it means less than total impairment.

The abnormality of the mind was defined in R v. Byrne103 thus: a state of mind so

different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise willpower to control physical acts in accordance with that rational judgment. Per:
Lord Parker

The abnormality of the mind could be natural from birth or acquired later in ones life. In the case of R v Gomez104 the Court stated that it is not necessary to show that the accuseds abnormality existed from birth.The said abnormality of the mind could result from various stimuli such as post-natal depression and premenstrual tension105 as per the

103

(1960) 3 All ER 1 [1964] 48 Cr App R 310

104

105

Cf: R v Sandie Smith [1982] Crim LR 531

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case of R v Reynolds.106 It may also result from depression caused by post-traumatic effects of rape as in R v. Seers107 or from the after-effects of assault (battered woman syndrome) as in the case of R v. Ahluwalia.108

5.2.3 [A]: Rationale of Diminished Responsibility


The rationale of this defence is that, as a precondition to punishment, the criminal law requires conduct to be voluntary. If something interferes with the capacity of the individual to choose to break the law, this should be reflected by an excuse or exculpation. The law should balance the need to be fair to the individual wrongdoer, but equally offer some protection to society from a person who may not have complete control over their behaviour.109

5.2.3 [B]: Instances of Diminished Responsibility


There are indeed no specifically defined instances of diminished responsibility, as postulated by Kulusika.110As such the plea of defence has largely been that of engaging the sympathy of the court as averred by Heaton.111 As such, the courts have held the
106

(1988) Crim LR 679 (CA) (1984) 76 Cr App. R 261 (CCA) (1992) 4 All ER 889 (CA) Wikipedia, retrieved 29 April 2013 at 09:12 PM

107

108

109

110

Op cit, p 205
Heaton, R., Criminal Law (1996) 2nd ed, Blackstone Press, London, at 117

111

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following instances, at their discretion, as being sufficient to found the defence of diminished responsibility in addition to the above: i. Perverted sexual desires that create irresistible impulses as per R v Byrne.112 Byrne was a sexual psychopath who found it difficult, if not impossible; to control his perverted sexual desires he strangled a young woman and horrifyingly mutilated the body. The court held that irresistible impulses are capable of amounting to diminished responsibility. ii. Paranoid psychosis, arising from ones upbringing as seen in the case of R v

Sanderson.113
iii. Extreme jealousy (so called Othello syndrome - a state of morbid jealousy for which there is no cause) as seen in the case of R v Vinagre.114 iv. Mercy killing where the dilemma which has caused the accused to kill can be said to have given rise to depression or some other medically recognised disorder

112

Op cit
(1994) 98 Cr App R 325 (1979) 69 Cr App R 104

113

114

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which can be said to be the cause of an abnormality of mind in tandem with R v

Price.115
v. Paranoid Personality Disorder- one thinking that they are in greater danger than they actually are. This was espoused in the case of R v Martin.116 vi. Alcoholism or drug addiction as demonstrated in R v Tandy.117 In this case, the Court of Appeals held that if drinking alcohol has reached the stage that the accuseds brain has been [medically] damaged so that there is gross impairment of judgment, or the accused drinks alcohol because he can no longer resist the impulse to drink, the defence of diminished responsibility is available. There is a clear legal distinction between this case and those of R v Gittens118 and R v

Fenton119 where the Courts took a different approach to the connection of drunkenness
to diminished responsibility. Equally, where a defendant was intoxicated during a killing and also had an abnormality of the mind, the intoxication has been held to

115

[1971] RTR 124, CA [2003] All ER (D) 145 (1988) 87 Cr App. R 45 (1984) QB 698 (1975) 61 Cr App R 261

116

117

118

119

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contribute to his diminished responsibility as seen in the case of R v Dietschmann.120 In such a situation, there is no legal obligation whatsoever to prove that the defendant would still have killed if he/she were not drunk.

That is to say, self-induced drunkenness or drugging which is not yet a medically certified a chronic addiction (disease of alcoholism as expounded in R v Tandy, op cit) will not suffice. In the same vein, as held in R v OConnell,121mere intoxication on a particular occasion or desire for alcohol or drugs that falls short of irresistible impulse cannot be regarded as a disease or an injury for purposes of establishing diminished responsibility.

5.2.3 [C]: Scope/Operation of Diminished Responsibility


There is seldom a universally accepted scope and ambit concerning the operation of the defence of diminished responsibility.

Activity 5.2
Write an essay on whether doli incapax may be deemed to be an aspect of diminished responsibility.

120

[2003] UKHL 10 Crim LR 683

121

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Case Study 5.2: Diminished Responsibility- Extreme Low Intelligence R v Raven (1982) Crim. LR 51
Brief Facts: A man who had a physical age of 22 years but a mental age of only 9 years felt provoked by homosexual advances and killed his perceived attacker. His mental deficiency was not in dispute thus erected the defence of diminished responsibility. Legal Issues: The major issue for legal consideration was whether extremely low intelligence would suffice as a condition to plead diminished responsibility. Holding: Agreeing that extremely low intelligence is an instance of diminished responsibility, the Court held that the defendants mental deficiency was not in dispute and, since a child of 9 years would not have been criminally responsible (according to section 50 of the Children and Young Persons Act 1933), and his mental responsibility for his acts was substantially impaired, manslaughter was the only realistic verdict.

Some jurisdictions including certain American States,122 just like is the case in Zambia, restrict this defence to the charge of murder only where a successful plea will result in a manslaughter conviction instead of murder. Section 12 of the Zambian Penal Code123 provides for diminished responsibility as a defence only in murder cases; reducing the same to manslaughter if well pleaded. In fact some jurisdictions such as the Republic of Ireland did not accept this defence until recently as seen in the case of The People

(DPP) v Joseph O' Mahony.124

122

http://en.wikipedia.org/wiki/Diminished_responsibility Retrieved 29 April 2013 at 02:20PM

123

Op cit
[1984] ILRM 244

124

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5.2.3 [D]: Effect of Diminished Responsibility


The effect of this defence varies from jurisdiction to another. In certain jurisdictions a successful plea of this defence would entail acquittal of the defendant as the defence is an absolute excuse. In other jurisdictions, however, this defence is not an absolute excuse but a mere exculpation to some extent whereby the defendant will never be acquitted but would have their indictment substituted with a lesser one. Note that in some jurisdictions, diminished responsibility is considered to be a mitigation factor and not a defence thus can only be raised in mitigation of sentencing so as to lighten the sentence after conviction.

Lastly, the majority of jurisdictions treat diminished responsibility as a partial defence to charges that require the defendant to have acted with a very specific mens rea. In such cases, a successful plea of diminished responsibility will reduce either the charge to a lesser one; or substitute a sentence with a lighter one; or both.

5.2.3 [E]: Difference between Diminished Responsibility and Insanity


Although both insanity and diminished responsibility are defences emanating from the impaired mind of the defendant, the two are fundamentally different from a legal point of view.

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The defence of diminished responsibility is different from that of insanity. Insanity is a complete but affirmative defence. That is to say, the defendant bears the burden of proving that he/she was legally insane. By contrast, diminished responsibility is a partial, negating defence. That is to say, it negates the prosecutors case whereby the prosecutor, and not the defendant, bears the burden to prove that the defendant actually acted with the requisite state of mind.125

Activity 5.3
What is the difference between a holding of Guilty but Insane and Guilty under Diminished Responsibility?

5.2.4: Automatism
Automatism takes place where a person reasonably demonstrates that their mind lost control of their muscles. The loss of muscles control may also result from unconsciousness. The qualifying aspect is that for automatism to succeed as defence there must have been total/absolute negation or destruction of ones voluntary bodily control. As held in the case of R v T,126 by way of reaffirming the case of R v Quick,127

125

Cf: Dunbar [1958] where it was stated that Diminished Responsibility is raised by the defence, who have to prove it on

the preponderance of probabilities. It was further stated therein that Diminished Responsibility is only argued in court when the prosecution rejects the plea or has counter evidence, for example that the defendant is in fact insane not just diminished.
126

[1990] Crim LR 256

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the destruction of bodily control must ordinarily be evidenced to have been caused by an external factor. For example, real amnesia resulting in automatism should be supported by some external factor such as rape.

This was held in the case of R v Antoniuk128 where the defendant was drowsy with drink and her lover found her unconscious on her living-room floor. The victim then hauled her to bed, her head banging on the stairs, and raped her. The defendant went to the kitchen and returned with a knife and stabbed her lover causing him grievous bodily harm. The defendant argued that she was not responsible for her actions as she had been suffering from automatism as a result of shock caused by her head repeatedly banging on the stairs coupled with being raped. The Court found her not guilty and enunciated that since her amnesia is real, because of automatism; she is not to be

convicted.

Save for exceptionally deserving cases, a mere partial loss of consciousness will not suffice just as is the case with self-induced automatism through a blameworthy act like voluntary injection of illegal drugs.
127

Op cit
(1995) The Times, 28 March

128

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5.2.4 [A]: Waiver of Automatism as a Defence


In instance where the court is of a considered view, following expert evidence, that a defendant is likely to continue posing a threat to society as a result of perpetual automatism, the defence of automatism may be waived. For example, in the case of R v

Sandie Smith129 the defendant, who had been charged with making threats to kill,
sought to raise the defence of automatism based on the effects of her pre-menstrual tension. The Court of Appeal refused to recognise this as the basis for automatism because, if successful, it would result in the defendant being released into society without the courts being able to exercise any effective control over her. The evidence indicated that the defendant needed to have some medical supervision, and the court would only have the power to ensure this if she was convicted.

129

[1982] Crim LR 531

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Topic 5.3: Mistake and Intoxication


This group of defences is composed of the following two defences: (i) Mistake; and (ii) Intoxication.

5.3.1: Mistake
Mistakes of facts or law or legal status may be raised as defences at law variously according to different jurisdictions. In most jurisdictions, mistake or ignorance of facts and legal status are excusable at law but not that law. Case Study 5.2: Automatism- Total destruction of voluntary Bodily Control Attorney-General's Reference (No 2 of 1992) [1993] 3 WLR 982
Brief Facts: The defendant had driven his heavy goods vehicle into cars parked on the hard shoulder of a motorway, killing two people. He contended that he had not noticed the flashing lights of the parked vehicles because he had been in a state of automatism, referred to as driving without awareness, induced by repetitive visual stimulus experienced on long journeys on straight flat roads. The trial court accepted this defence of automatism and acquitted the defendant. Legal Issues:
On appeal, the prosecution argued that the trial court misdirected itself both in law and fact because the defence of automatism requires that there must have been a total destruction of voluntary muscle control and not a mere and partial loss of muscle control. Holding: The Court of Appeals allowed the appeal and stated that merely driving without awareness was not capable of founding a defence of automatism. Lord Taylor CJ summarized the legal position thus: As the authorities... show, the defence of automatism requires that there was a total destruction of voluntary control on the defendant's part. Impaired, reduced or partial control is not enough. [s]omeone driving without awareness within his description, retains some control. He would be able to steer the vehicle and usually to react and return to full awareness when confronted by significant stimuli.

85] Introduction to Criminal Law: Learners Module

For the defence of mistake/ignorance of facts to succeed it must be capable of negating the requisite mens rea for the offence in question.130 That is to say, the defendant must be mistaken about a material element of the offence by believing the fact to be what they actually are not. For example, X carries a cjnsipho designer leather bag from the train as he alights therefrom; and it is later discovered that the bag belong to Y. If X can demonstrate that he had a similar bag aboard the train for which mistook Ys bag, a charge of theft will fail because the mistake of fact has negated the requisite mens rea for theft. As expatiated in DPP v. Morgan and Others,131 the mistake must be about a fact and genuine.

5.3.1 [A]: Mistake of Legal Status


In terms of mistaken legal status, the defence is most often used in conjunction with another defence, where the mistake led the defendant to believe that their actions were justifiable under the second defence (usually the legal status). For example, a charge of assault on a police officer may be negated by genuine (and perhaps reasonable) mistake of fact that the person the defendant assaulted was a criminal and not an officer, thus

130

http://www.wcl.american.edu/sba/outline_databank/outlines/CriminalLaw_Robbins_Spring2008_2.pdf [1976] AC 182

131

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allowing a defence of use of force to prevent a violent crime (generally part of selfdefence or prevention of a crime).132

5.3.2: Intoxication
In some jurisdictions, intoxication may negate specific intent, a particular kind of mens

rea applicable only to certain crimes. For example, lack of specific intent might reduce
murder to manslaughter. Voluntary intoxication nevertheless often will provide basic intent, for example, the intent required for manslaughter.133 On the other hand, involuntarily intoxication, for example by punch spiked unforeseeably with alcohol, may give rise to no inference of basic intent.

5.3.2 [A]: Defence vs. Denial of Mens Rea


Stricto sensu, intoxication is not a defence but a denial of mens rea; the main difference
being that a defence accepts the mens rea and actus reus of an offence are present. With intoxication, there is no acceptance of the mens rea of the offence. For offences of basic intent, the act itself is criminalised. All that is needed is the intent to do the act. It can therefore be inferred that there is such intent relatively easily; when intoxicated one is not under automatism; there is still control of one's actions.

132

R v. Williams [1987] 3 All ER 411


Wikipedia

133

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Therefore, intoxication will rarely deny the mens rea of crimes of basic intent. With specific intent, the character of the act is criminalised, for the act itself is often objectively innocent. Appropriation of an item is perfectly innocent, yet when one appropriates with the intent to permanently deprive the owner of it, there is a theft. This is much more difficult to prove beyond reasonable doubt, for an intoxicated person may exercise control over his actions but will often lack an understanding of what is being done.

In the absence of this understanding the necessary mens rea cannot be proven. Therefore, whilst it is tempting to think of intoxication as a defence, it is more accurate to see it as a denial of the mens rea of an offence; where the mens rea or actus reus is not proven, there is no need for defences. In the case of R v McCarthy134 just like in

Kalaluka Musole v The People135 the courts have said, albeit orbita dicta, that the
defence of intoxication is primarily supposed to be pleaded in addition to another defence such as provocation in a drunken state.

Activity 5.4
Read section 14 of the Penal Code Act, Cap 87 of the Laws of Zambia and list down the major elements of intoxication as a defence.
134

[1954] 2 All ER 262 (1964) ZR 173

135

88] Introduction to Criminal Law: Learners Module

Topic 5.4: Justification and Excuse


This general defence deals with acts that are exonerated at law as they are either justifiable or not condemned in a particular society such as where society is neutral on the wrongfulness of the act.136 Equally, this defence arises where the wrong deeds of the defendant are not attributable to him/her. According to Robinson, these defences

excuse the actor because conditions suggest that the actor is not responsible for his deed.137

Topic 5.5: Special Defence- Provocation


Provocation is, at law, classified in this class alone and deals with provocative conduct, actual loss of self-control measured employing the objective reasonableness test. Provocation has been broadly defined as [C]onduct by which one induces another to

do a particular deed; the act of inducing rage, anger, or resentment in another person that may cause that person to engage in an illegal act. 138

136

See Williams, G., The Theory of Excuses Crim LR (1982) 732, p 735 Robinson, P., Criminal Law of Defences: A Systematic Analysis 82 Col. LR (1982) 199 at 213 http://legal-dictionary.thefreedictionary.com/provocation Retrieved 2 May 2013, 03:11PM

137

138

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5.5.1: Elements of Provocation


On the authority of Zitandala Nyendwa & Salimani Norma v The People139the Supreme Court of Zambia has established that provocation consists of three elements: (i) presence of the provocative act; (ii) loss of self-control (both actual and reasonable); and (iii) retaliation proportionate to the provocation. This is in line with the couching of section 183 of the Zambian Penal Code Act.140

Subsequently, for a defence of provocation to succeed, the defendant must first prove that as a reasonable person he/she was caused to act in a heat of passion. That is to say, they were so provoked that they instantaneously lost self-restraint and fell in a state of mind where they acted without reflection in committing the offence. Secondly, they should demonstrate that they reasonably acted without calculation and premeditation of the requisite mens rea for that particular offence.

Third, the response to the act of provocation should be instantaneous with proportionately reason retaliation. In R v McInnes141 it was held that there was not provocation because the prior assault on the defendant by the deceased victim was in
139

(1978) ZR 399

140

Op cit
[1971] 3 All ER 295

141

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the past thus too remote and had ceased. The sufficient time to cool down vitiated the provocation and evidenced calculation of plan to injure outside the heat of passion. This case involved the draw of a gun by a wife shooting the husband to death under what she claimed was provocation by the assault she had suffered in the past at the hands of the husband.

Nevertheless, past acts of provocation may build up in a person who might then explode with anger and retaliate excessively at some point. As long as there is proof of such build-up events coupled with a simple triggering event at the time of retaliation, provocation will suffice; in the form known as cumulative provocation. This was demonstrated in the Zambian case of Esther Mwiimbe v The People.142

The mode of retaliation and degree thereof will depend on the nature of the provocation. If there is continuous provocation, for instance, the severity of the retaliation is likely to be higher than that in the case of a single simple provocation as held in the case of Makomela v The People.143In the case of Philips v R, Lord Diplock espoused thus: the average man reacts to provocation according to its degree with
142

(1986) ZR 15 (1974) ZR 254

143

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angry words, with a blow of the hand, possibly if the provocation is gross and there is a dangerous weapon at hand, with that weapon.144 Simply put, there must be a
reasonable relationship between the act of provocation and the mode of retaliation as held in the case of John Milambo v The People.145

Activity 5.5
Read the case of Kalinda v The People (1966) ZR 29 and write down a legal opinion of 2 pages on whether the confession of adultery coupled with antecedent history would support a defence of provocation to murder.

5.5.2: Effect of Provocation


As a defence, provocation may be erected against certain offences so as to lighten the prescribed penalty for that particular offence. An example would be the reduction of a charge of murder to a charge of manslaughter for want of the relevant mens rea of murder as a result of killing under the heat of passion at the moment (provocation).146

Topic 5.6: Permissible Conduct


There are typically two defences that arise where the accused persons conduct is deemed permissible at law namely; (i) Consent and (ii) Self-Defence (prevention of crime).

144

(1969) Cr App R, at 135 (1977) ZR 103 See section 182 of the Penal Code, op cit

145

146

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5.6.1: Consent
Consent is a defence in criminal law if the victim indeed gave informed consent to be subjected to certain treatment that eventually results in their injury. As a defence, consent operates to defeat the actus reus of a particular offence; rendering the action lawful as oppose to unlawful. For example the offence of battery is committed where a defendant applies unlawful physical force on the complainant even as simple as a mere touch on their body. It is unlawful force because the victim has not consented to be touched. If the victim, however, consents to being touched, the application of force becomes lawful.147

5.6.1 [A]: Scope of Consent


The scope of this defence is in two folds namely that first, it does not apply to all crimes. Principally, the defence of consent applies only to non-fatal offences and sexual offences such as rape. It can never be pleaded in heinous felonies like murder. In Attorney

Generals Reference No 6 of 1980 148 the Court of Appeals espoused that it is generally in
the public interest that consent is dismissed as a defence is grievous crimes like murder.

147

http://www.e-lawresources.co.uk/Defence-of-Consent.php Retrieved 2 May 2013, 03:28 PM [1981] QB 715

148

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Secondly, by operation, this defence concerns itself with negating the actus reus of the alleged offence and not ordinarily the mens rea thereof. However, the defence may also be invoked from the point of mens rea in exceptional cases where the defendant's belief in consent is apparent. In such cases, the mens rea element is not concerned with whether or not the victim in fact consented, but whether the defendant honestly believed the victim consented. Here the requirement is honest belief and not necessarily reasonable belief as held in DPP v Morgan.149 Lastly, by scope of evidence, consent may be express as per Collins v Wilcock150 or implied as per Donnelly v Jackman.151

5.6.1 [B]: Elements of Consent


There are three major elements requisite to the defence of consent namely that consent must be: (i) genuine; (ii) positive; and (iii) accompanied/given with full mental capacity. Genuine in the sense that it is not fraudulently or maliciously obtained while positive in the sense that it is not a matter of the victim not objecting or saying no. Lastly, it must be given with full mental capacity in the sense that it is not given by a minor (doli

149

[1976] AC 182 [1984] 3 All ER 374 [1970] 1 All ER 987

150

151

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incapax)152 or a person of unsound mind (non- compos mentis) at the material time of
consenting.

Activity 5.6
Read the case of Gillick v West Norfolk and Wisbeck AHA [1986] AC 112; and thereafter write a short essay on the following legal proposition: Where there is no statutory prohibition from children giving consent, they may nevertheless lack capacity to give consent if they are not capable of comprehending the nature of the act.

5.6.1 [C]: Instances of Consent (What Can A Victim Consent To?)


There are various instances or happenings in which the defence of consent may be successfully erected. The following are some of such situations as held by the courts: First, consent to take part in properly conducted games and sports as per the case of R v

Coney.153 In this case the court propounded that a person who voluntarily subscribes to
playing a particular game or sport has impliedly consented to the injuries that are potential to that game or sport. However, if the defendant (aggressor) acts outside the rules of the game or sport, consent cannot stand as a defence. This was held in the case of R v Billinghurst.154

152

See the case of Burrell v Harmer [1967] Crim LR 169 where it was held that consent must be given with full

comprehension and mental capacity if it is to be held real and genuine; in this case the two boys (aged 12 and 13) would not have given consent had they been told the full effects (pain) of being tattooed.
153

(1882) 8 QBD 534 [1978] Crim LR 553

154

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Second is reasonable surgical interference. A medical professional that treats a patient without consent may incur criminal liability unless prior consent is legally dispensed with. An example of legal dispensation of consent would include matters like In Re S

(1992)155 where the court exercised its inherent jurisdiction to authorise a caesarean
operation, on a pregnant woman that had refused on religious grounds, to save the life of unborn child. Another example is Re W (1993),156 where a 16 year old girl suffering from anorexia nervosa refused medical treatment which was life-saving treatment. The Court accepted parental consent and extinguished any criminal claims against the medical practitioners that treated her.

It must be noted, however, that the reasonable surgical interference also ought to be lawful. Otherwise, the given consent may be vitiated. For example, in R v Tabassum157 a doctor who examined womens breasts after claiming he was medically qualified, was convicted of indecent assault. The women only gave consent for medical purposes; he was not a doctor, hence the medical intervention was unlawful though reasonable.

155

Re S. (Adult: Refusal of Treatment) [1992] 3 W.L.R. 806 Re W (A Minor) (Wardship: Medical Treatment) [1993] Fam 64
[2000] 2 Cr App R 328

156

157

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Third instance is horseplay. Where persons engage into horseplay, even as adults, there is implied consent that from their joking and horseplay they may be injured. This was held in the case of R v Jones158 and reaffirmed in R v Aitken.159

Fourth instance in which this defence may succeed is vigorous sexual activities. For example, in R v Slingsby,160 the defendant used his hand to penetrate a girls vagina, with her consent. She later died of septicaemia and the court acquitted the defendant on the defence of consent. Note, however, that vigorous sex is distinguishable from sexual abuse. As such consent to be sexually abused is invalid at law as seen in case of R

v Brown161 where the Court held that consent to be harmed for sexual pleasure or
gratification is not valid.

Lastly, the following two instances have also been held as qualifying for implied consent: (i) Dangerous exhibitions such as bungee jumping; and (ii) lawful chastisement

158

[1987] Crim. LR 123 [1992] 1 WLR 1006 [1995] Crim LR 570 [1993] 2 All ER 75

159

160

161

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by a parent provided it is both reasonable and proportional. In the case of A. v UK162 the ECHR espoused that there is implied consent on the part of a child and permission on the part of a parent to chastise the child; but using a stick to beat a child was held to be excessive force thus vitiating that implied consent.163 Case Study 5.3: Consent- Invalid if contrary to Public Policy R v Brown [1993] 2 All ER 75
Brief Facts: Anthony Brown and others were homosexuals who willingly engaged in sado-masochistic violence against one another, in rooms laid out as torture chambers. Activities included genital torture such as nailing scrotum to a board, use of a blow lamp and bloody shaving of pubic hair among others. The acts conducted in private were discovered accidentally by the police. Legal Issues:
On prosecution, all the participant raised the defence of consent, resulting in the legal issues to be resolved being whether or not such consent was legally valid. Holding: The Court found that the defendants committed sado-masochistic acts, which are sexual acts, or acts designed to produce sexual gratification, leading to some injury or harm. Their convictions were upheld by the House of Lords, with Lord Templeman stating that such activities glorify cruelty and were unpredictably dangerous. His Lordship said Society is entitled and bound to protect itself against a cult of violence. Lord Jauncey said it was not in the public interest to hold that the deliberate infliction of Assault occasioning Grievous Bodily Harm during sado-masochistic activities was, even with consent, lawful. Thus there could be no valid consent.

5.6.1 [D]: Invalid Consent (What A Victim Cannot Consent To)


First instance is consent to be grievously injured or killed. As a matter of public policy, generally a person cannot consent to being harmed. Thus if two people willingly engage in a fist fight, their consent to being harmed, other than simple assault and battery, by

162

[1998] 2 F.L.R. 959 (ECHR) See also R v H (2001)

163

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their opponent will not be recognised in law. For example, in R v Leach164 the defence of consent was dismissed by the court even with proof that the victim was crucified at his own request. The court held that the defence of consent is hinged on public policy; hence, the courts must strike a balance between the social utility (usefulness to society) of the activity and the possible social harm arising therefrom.

Ultimately, it is not just about the defendant and the victim. On this basis, the court held in the case of Pretty v DPP165 that consenting to ones own death (euthanasia) is unlawful just as it is criminal (murder or aiding) for one to deliberately help another person commit suicide.

The second instance is submission. For example, in the rape case of R v Olugboja the court stressed that submission is not consent; giving the difference thus: Every consent

involves submission, but not every submission involves consent. 166

164

(1969) (2002) 1 AC 800 [1982] QB 320

165

166

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Third instance is uninformed consent. For consent be valid, the victim must be availed with all pertinent facts prior to consent. That is to say a person giving consent must comprehend the nature of the act to which they are consenting. An example is the Canadian case of R v Cuerrier167 where the defendant was convicted of assault when he failed to tell two women with whom he had unprotected sex that he was HIV positive. The court rightly held that their consent to sex was not enough: informed consent to have intercourse with a man who was HIV positive was required.

The fourth instance is fraud. Where consent is obtained fraudulently, the defence will be vitiated by the same fraud. Note though, that fraud can only vitiate consent in two ways namely, (i) fraud as to the identity of the person; and (ii) fraud as to the nature and quality of an act. With respect to the first way, law stipulates that consent is invalid if it is given or secured under the fraudulent identity of a person as held in the case of R v

Elbekkay.168 This point of law was later clarified in the case R v Richardson169 where the
court held that for fraud to vitiate consent, it must be fraud as to the identity of the person, not their personal attributes.
167

[1998] 2 S.C.R. 371 [1995] Crim. LR 163 [1998] 2 Cr App 200

168

169

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Concerning fraud as to the nature and quality of the act, the law is such that each case must be considered on its own merit. For example, in R v Clarence170the court emphasized that a restrictive approach must be taken in vitiating consent by fraud as to the nature and quality of the act. By contrast, the case of R v Dica171 took a more relaxed approach just like the Tabassum case.172 At the same time, the cases of R v Flattery173 and R v Williams174 demonstrate a legal position that the courts would only recognise that fraud vitiated consent in extreme cases.

Activity 5.7
List 5 distinguishing features between consent vitiated by fraud as to the identity of a person; and consent vitiated by fraud as to the identity of the attributes of a person.

5.6.1 [D]: Effect of Consent


Once the accused has raised this defence, the burden of proof shifts to the prosecution who must prove otherwise; with the ultimate effect being that a successful plea results in an acquittal. Nevertheless, with respect to certain offences courts have taken a

170

(1889) 22 QB 23
[2004] 3 ALL ER 593

171

172

Op cit
(1877) 2 QBD 410 [1923] 1 KB 340

173

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restrictive approach as to what effect the defence of consent brings. In such situations, it has been arguably enunciated that the defence of consent cannot absolve the defendant of absolute criminal liability. For example, in the case of Lawrence v MPC,175 it was held that in relation to theft, an appropriation may take place notwithstanding the consent of the owner of the property.

5.6.2: Self Defence


Self-defence is, in general, some reasonable action taken in protection of self. An act taken in self-defence often is not a crime at all; no punishment will be imposed. To qualify, any defensive force must be proportionate to the threat. Use of a firearm in response to a non-lethal threat is a typical example of disproportionate force. However, such decisions are dependent on the situation and the applicable law, and thus the example situation can in some circumstances be defensible, generally because of a codified presumption intended to prevent the unjust negation of this defence by the trier of fact.

175

[1972] AC 626

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5.6.2: Nature and Effect of Self Defence


The defence of self or of others is an affirmative defence to criminal charges for an act of violence. As per section 17 of the Zambian Penal Code,176 acts in self defence provide complete justification resulting in an acquittal. In concurrence, Dennis J. Baker similarly submits that justification [through self defence] does not make a criminal use of force

lawful; if the use of force is justified, it cannot be criminal at all.177

Therefore, this defence affirmatively permits the use of force under certain circumstances. The defense does not operate to excuse a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful.178In this manner, the defence affirms the common-law right of an individual to repeal a threat to their life or limb. Under common law, the defence of oneself or ones relations or property, is deemed a natural and inalienable right; warranting the employing of reasonable force to enjoy it.179

176

Cap 87 of the Laws of Zambia

177

Glanville Williams Textbook of Criminal Law (2012) London, at Chapter 21


Wikipedia People v. McManus, 67 N.Y.2d 541, 496 N.E.2d 202, 505 N.Y.S.2d 43 (1986)

178

179

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5.6.2: Elements of Self Defence


First, the threat must be imminent and immediate; without doubt that the aggressor is about to strike or is actually in the process of striking. In Attorney Generals Reference

No. 2 of 1983180 the court averred that self defence is footed on the idea of immanency
or immediacy of unlawful attack from the aggressor. By fact, this means that the defendant should have been faced with a situation of pressing for time to the extent that he/she did not have opportunity at all to call for assistance or protection from the police or any source, just like they had no time to escape the unlawful attack or lock out the aggressor. Consequently, they had no option save for exertion of reasonable force to save the situation.

Secondly, the defendant should demonstrate that they had retreated from the injury; and had their back against the wall thus had no other option than retaliate. As criticized by many, the duty to retreat usually makes this defence academic if not rhetoric when applied to certain situations as abusive relationships resulting in battered woman syndrome and in burglary; given the so-called castle exception. The castle exception avers that one cannot be expected to retreat from ones own home because a

180

(1984) QB 456

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mans house is his castle, et domus sua cuique est tutissimum refugium.181 In any case, the position of the law as expounded in R v. Bird182 is that the duty to retreat is figurative of ones unwillingness to fight which is sufficient by adducing evidence of ones desire and attempt to temporise and disengage; not necessarily physical withdrawal though preferably so.

However, there are exceptional instances when the situation is so clear-cut as to feel certain violence is unavoidable, the defender has a much better chance of surviving by landing the first blow (sucker punch) and gaining the immediate upper hand to quickly stop the risk to their person. This notion is, at law, referred to as lawful pre-emptive self-defence. It is simply the act of landing the first-blow in a situation that has reached a point of no hope for de-escalation or escape. In fact, most jurisdictions waive the duty to retreat under extreme circumstances like kidnapping, forcible rape, forcible sodomy, robbery and burglary; inter alia.

Third, the defence should demonstrate that it was necessary to use force as a means to prevent infliction of unlawful attack or to arrest/stop an already launched but not yet
181

Latin for and ones home is the safest refuge. (1985) 1 WLR 816

182

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completed attack. That is to say, use of reasonable force becomes necessary to ameliorate the situation where there is irrevocable possibility of unlawful attack immediately before or during the execution of such attack; but not afterwards. Indeed, self-defense usually cannot be applied to actions committed after a criminal act has taken place. A rape victim, who after the rape is committed and the rapist leaves, subsequently finds and shoots the rapist, is not entitled to claim self-defense. Most other victims of assaultive offences are similarly not entitled to this defense if they act in revenge.183 In the case of Frank v Maryland,184 the US Federal Supreme Court recited the Rights of Englishmen, including the Right to Resist Unauthorized Deprivations (through use of reasonable force without vengeance) as incorporated in the Constitution.

Nevertheless, certain jurisdictions legalise the use of force, sometimes even deadly force, to effect the citizen-arrest of a fleeing offender after he/she has already committed the crime. The qualifier herein is that the motive should still not be vengeful but one of serving society.

183

Wikipedia 359 U.S. 360 (1959)

184

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Fourth and last, the force employed should be reasonable and proportional to the threat as held in the Zambian case of The People v. Mudewa.185 Therefore, the defence would fail, for example, if a defendant deliberately killed a petty thief who did not commit robbery and who did not appear to be a physical threat. However, the owner or lawful possessor of property has a privilege to use any degree of non-deadly force necessary to protect his possession or recover his property, regardless of no physical threat to his person.186

Topic 5.7: Circumstantial Defence


This class of defences has four defences namely, (i) Duress; (ii) Marital Coercion; (iii) Necessity; (iv) Alibi; and (v) Fair Warning.

Activity 5.8
Should superior orders form part and parcel of circumstantial defences? Explain.

5.7.1: Duress
Duress is a defence at law if the accused person was inevitably forced into committing an offence. That is to say, duress can be a defence in many jurisdictions, although not for the most serious crimes such as murder; with id definition being: any unlawful

threat or coercion used... to induce another to act [or not act] in a manner [they]

185

(1973) ZR 147 Wikipedia

186

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otherwise would not [or would].

187

It is indeed pressure exerted upon a person to

coerce that person to perform an act that he or she ordinarily would not perform, going beyond ordinary undue influence.

5.7.1 [A]: Elements of Duress


First and foremost, duress must involve the threat of imminent peril of death or serious injury, operating on the defendant's mind and overbearing his will. The act must be precipitated by a threat which may manifest in desperation more than ordinary necessity. For example, in R v. Abdul-Hussein188 two Shiites escaped from persecution in Iraq by hijacking a plane going to Sudan. In acquitting them, the court held that although the threat was not imminent it was hanging over them as manifested in the levels of desperation going beyond ordinary necessity.

Threats to or by third persons may equally suffice such as imminent threat to ones: (i) Family as was the case in R v. Martin189 where the appellant had driven whilst disqualified from driving. He claimed he did so because his wife threatened to commit

187

Ibid
[1999] Crim LR 570 [1989] 88 Cr App R 343

188

189

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suicide. (ii) Close friends, or under certain circumstances, car passengers as in the case of

R v. Conway.190

Second, the defendant must reasonably and objectively believe the threat as there is no defence if a sober person of reasonable firmness, sharing the characteristics of the accused would have responded differently. This was held in the case of R v. Graham191 where duress was rejected. However, human aspects like ones physical disability, mental illness, pregnancy and sexuality have been considered as criteria for determining the level of ones objectivity in believing threats; but not basic or low intelligence.192 Equally, ones age is also relevant to considered as per the case of R v. Hudson and

Taylor193 where two teenage girls were scared into perjuring, and not convicted because
their age was relevant and police protection was not always seen to be safe.

190

[1988] 3 All ER 1025 [1982] 1 All ER 801 See R v. Bowen [1996] 2 Cr App Rep 157 [1971] 2 WLR 1047

191

192

193

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Third, the defendant must not have foregone or neglected to take advantage of available safe avenue of escape such as was the case in R v. Gill194 where someone told to steal a lorry could have raised the alarm but neglected to do so hence liable. In the same way, the defendant should have not placed themselves in harms way. That is to say, the duress must have been an order to do something specific, so that one cannot be threatened with harm to repay money and then choose to rob a bank to repay it as seen in R v. Cole.195 In R v. Sharp,196 as contrasted from R v. Shepherd,197 it was held that if one puts himself in a position where he could be threatened, duress may not be a viable defence.

Fourth, the threatened harm must be greater than the harm caused by the crime one is being forced into. Therefore, if the threatened harm is less severe compared to the harm resulting from the crime, the defendant is at law expected to withstand the threatened harm and not commit the crime. Otherwise, the defence of duress will fail.198

194

[1963] 1 WLR 841 [1994] Crim LR 582 [1987] 1 QB 353 [1987] 86 Cr App R 47 Wikipedia

195

196

197

198

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In summary, for a defendant to rely on duress as a defence, they must satisfy the following the four key requirements: i. ii. iii. The threat must be of serious bodily harm or death; The threat must be immediate and inescapable; The defendant must have become involved in the situation through no fault of his or her own; and iv. The threatened harm must be greater than the harm caused by the crime.

In exceptional situations, the threat could be not to the physical body of the person but threat to ones property or indeed severe economic/pecuniary threat.199

5.7.1 [B]: Operation and Effect of Duress


By operation, the defence of duress places the burden on the prosecution to disprove duress beyond reasonable doubt once alleged.200 In this way, duress has two general aspects. One is that it negates the person's consent to an act, such as sexual activity or the entering into a contract. Secondly, it operates as a possible legal defence or justification to an otherwise unlawful act.201 A defendant utilizing the duress defence

199

See Gaines, L., and Miller, L., Criminal Justice in Action: The Core (2006), Thomson/Wadsworth, London. http://en.wikipedia.org/wiki/Marital_coercion Retrieved 2 May 2013,03:58PM http://www.pi1stclass.com/glossary.htm Retrieved 5 May 2013, 04:10 PM

200

201

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admits to breaking the law, but claims that he/she is not liable because, even though the act broke the law, it was only performed because of extreme unlawful pressure.202 In criminal law, a duress defense is similar to a plea of guilty, admitting partial culpability, so that if the defense is not accepted then the criminal act is admitted. Duress can also be raised in an allegation of rape or sexual assault to negate a defence of consent on the part of the person making the allegation.

5.7.2: Marital Coercion


Marital coercion is a defence in most crimes under English common law. It is similar to duress but operates as a presumption of law that an offence committed by a wife in the presence of her husband is committed under the coercion of the husband on a charge other than treason or murder. One other major difference between duress and coercion is that whereas duress requires a threat to kill or cause serious harm to a person, marital coercion need not involve physical force or the threat of force.

In R v Shortland,203 the Court of Appeal held that mere loyalty of a wife to her husband is sufficient to sustain marital coercion. That is to say, once the defendant alleges this defence all she needs to prove is that the offence was committed in the presence of the
202

Ibid
[1996] 1 Cr. App. R. 116

203

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husband, then the burden is on the prosecution to rebut the presumption that she acted under marital coercion.

Indeed, until 2013 it was thought that the burden of proof lay on the defence to prove marital coercion on the balance of probabilities. However in the trial of Vicky Pryce the trial judge, Mr. Justice Sweeney, ruled that the defence had only to show some evidence that the defence applied in order to require the prosecution to disprove the defence beyond reasonable doubt, as in duress cases.204

5.7.3: Necessity/Lesser Harm


An overarching theory of criminal defences is the doctrine of necessity. Generally, a criminal act can be justifiable if it is necessary to prevent a foreseeable and greater harm than the harm created by the act. For instance, trespassing is generally justified if the defendant only trespassed in order to, for instance, instantaneously attempt to put out a fire on the property, or to rescue someone drowning in a pool on the property.

The destruction or death caused by following the law and not trespassing would have been far greater than the harm caused by trespassing. Similarly, most laws forbidding the discharge of firearms in public contain an exception for emergency or defensive use.
204

Wikipedia

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Necessity generally forms the basis for many other defences and their favour, such as capacity of office, legal duty and self-defence. Case Study 5.4: Necessity- Killing and Eating a Human R v Dudley &Stephens (1984) 14 QBD 273
Brief Facts: The defendants were shipwrecked and cast away therefrom on the high seas and drifted for 20 days in an open boat. They had hardly any food or water during that time, and fearing they would all die soon unless they obtained some sustenance the defendant killed the boy, who was likely to die first anyway, and ate the flesh. Four days later, they were rescued and subsequently indicted for murder. Legal Issues:
The major legal issue was whether or not necessity could be admitted as a well-founded justification to excuse the deliberate killing and eating of an unoffending and unresisting boy. Holding: The Court found the defendants guilty, holding that the facts therein established willful homicide as the criteria could equally have been cast a die to choose who should be killed and eaten rather than just identify the weak and kill him.

5.7.4: Alibi
As a Latin word, Alibi simply means "somewhere else." It is a form of defence used in criminal procedure wherein the accused attempts to prove that he or she was in some other place at the time the alleged offence was committed thus could not be them that committed that particular offence. It indeed [i]s different from all of the other defences; it is based upon the premise that the defendant is truly innocent.205

5.7.5 Fair Warning


It must be noted that ignorance of the law is not a defence. However, it has been held in the US that there must be fair warning of law before the public is imposed with implied
205

Criminal Law Deskbook of Criminal Procedure (1988)

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knowledge of the law. Otherwise, a defendant may raise Fair Warning Defence. This defence requires that before a defendant may be prosecuted for criminal conduct, the law must make clear which conduct is criminal.

Justice Oliver Wendell Holmes articulated the standard when he wrote that a criminal statute must give fair warning in language that the common world will understand,

of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.206 The ordinary vague language that may reasonably
be found in the wording of the law is, however, not sufficient to constitute the lack of fair warning defence as per the case of United States v Lanier.207

Simply put, for this defence to stand, it must be substantively unclear what the statute prohibits. That is to say, the elements of a criminal law must be stated explicitly, and the statute must embody some reasonably discoverable standards of guilt. If the language of a statute does not plainly show what the legislature intended to prohibit and punish, the statute may be declared void for vagueness.

206

See the case of McBoyle v United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L. Ed. 816 (1931) 520 U.S. 259, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997)

207

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In deciding whether a statute is sufficiently certain and plain, the court must evaluate it from the standpoint of a person of ordinary intelligence who might be subject to its terms. A statute that fails to give such a person fair notice that the particular conduct is forbidden is indefinite and therefore void. Courts will not hold a person criminally responsible for conduct that could not reasonably be understood to be illegal. However, mere difficulty in understanding the meaning of the words used, or the Ambiguity of certain language, will not nullify a statute for vagueness.208

208

http://legal-dictionary.thefreedictionary.com/Criminal+Law

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Case Study 5.4.1: Fair Warning Defence- Vagueness must be substantive United States v Lanier, 520 U.S. 259, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997)
Brief Facts: This case arose from allegations of sexual misconduct against the sole state Chancery Court judge for two rural counties in western Tennessee, David Lanier. The trial record shows that from 1989 to 1991, while Lanier was in office, he sexually assaulted several women in his judicial chambers. Lanier's most serious assault involved a woman whose Divorce proceedings had come before his chancery court and whose daughter's custody remained subject to his jurisdiction. When the woman applied for a secretarial job at Lanier's courthouse, Lanier interviewed her. As the woman got up to leave, Lanier grabbed her, sexually assaulted her, and finally committed oral rape. On five other occasions Lanier sexually assaulted four other women: two of his secretaries, a Youth Services officer, and a local coordinator for a federal program who had been in Lanier's chambers to discuss a matter affecting the same court. Lanier was later charged with 11 counts of sexual assault of which each of the indictment alleged that Lanier, acting wilfully and under colour of Tennessee law, had deprived the victims of the right to be free from wilful sexual assault according Section 242 of the 18 U.S.C.A (a Reconstruction-era Civil Rights law.) Legal Issue(s): Before trial, Lanier moved the Court to dismiss the indictment on the ground that Section 242 was void for vagueness thus lacking fair warning. Holding: The Court dismissed the motion and ruled that for the defence of fair warning to succeed, the vagueness should be so substantive that it takes away even clarity of apparent wrongdoing. Lanier was convicted and sentenced to 25 years imprisonment with hard labour after unsuccessfully exhausting all available avenues of appeal including the highest US court of appeals.

Well done, you have completed this unit but the scales of justice are yet to tilt in your favour. Attempt the Revision Questions below NOW!!!

5.5 Revision Questions


(1) (2) (3) (4) (5) Distinguish abnormality of mind from defect of reason. Explain whether legal duty and office immunity should be considered as defences. How do partial defences differ from absolute defences? Distinguish the defence of coercion from that of duress. What is the legal position of fair warning as a defence in Zambia?

Gavel is down; you are now cleared to proceed to the next unit. Congratulations!!!

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Unit 6: Theories of Punishment and Principles of Sentencing


6.0 Unit Overview and Expected Outcomes
This unit deals with the theories of punishment and principles of sentencing that are justifiable at law. It discusses both the legal extra-judicial policy considerations why convicted persons are punished. That is to say, the unit discusses the main theories of punishment namely, deterrence; rehabilitation; incapacitation; and retribution. It then examines the principles of sentencing used in legislation and by the courts and considers how these principles accord with the various theories of punishment. Among the areas of emphasis are the development and use of community-service alternatives to imprisonment; the role of imprisonment; the sentencing of petty and dangerous offenders; the proper roles of the courts and Parliament; problems of sentencing disparity; and the sentencing of minor in conflict with the law. On completion of this unit you should be able to identify the said five general principles, critically assess their respective aims and evaluate their effectiveness in the criminal justice system.

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6.1 Purpose and Aim of Sentencing


The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. The concept of Legal Punishment demands that a convicted person must be punished in line with the justifiable philosophies of sanctions and the punishment should not be arbitrary or disproportionate to the gravity of the offence.

Topic 6.1: Seven Modes and Seven Principles of Sentencing


In line with Section 24 of the Penal Code Act,209 it is trite that there are basically seven modes of sentencing namely: (i) Imprisonment/death; (ii) Fine; (iii) Probation; (iv) Community Service; (v) Pardon; (vi) Forfeiture; and (vii) Deportation.

When imposing any of these modes after conviction, the courts must be informed the following seven principles: first, consider the nature and intrinsic value of the matter involved in the offence in determining the appropriate sentence and maximum penalty commensurate to the offence as held in the Kaambo case.210

209

Op cit
(1976) ZR 178

210

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Second, carefully examine the history, character and previous criminal records of the accused. In the case of The People v Phiri,211 it was held that the court must exercise leniency for first offenders; and in The People v Mwenya212 the court held that stern punishment must be meted against perpetual offenders.

Third, the age of the offender must be taken in to consideration. For example, in The

People v Mvula,213 the court insisted that sending a young person to prison for a long
time might result in that young person becoming a hardened criminal.

Fourth, the court should take into account the conduct of the accused person during trial. If the accused easily admitted their wrongdoing and entered a plea of guilt, the court should be lenient to them as they saved the court and the prosecutors on time and energy that are expended in a full trial. This was espoused in the Nsokolo case.214

Fifth, whether or not the commission of that particular offence is becoming increasingly rampant in that particular community. If so, the court must slap heavy penalty so as to
211

(1970) SJZ 178 (1973) ZR 6 (1976) ZR 80 (1940) 2 NRLR 85

212

213

214

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deter would-be offenders and safeguard public interest in line with section 294 of the

Penal Code Act.215

Sixth, where pertinently relevant, the personal factors of the accused may be taken into account such as the critical demand for their professional qualifications in the country.216 A good example would be the special and unique health status of the person if imprisonment might threaten their life.217

Seven and last, where sentences are relatively long, the court should consider granting the right of appeal against sentence even if the parties do not apply for leave to appeal.

Topic 6.2: Theories of Punishment


As noted by Kulusika,218 the major theories of punishment in common law jurisdictions include: (i) Deterrence/Preventive Theory; (ii) Retributive Theory; and (iii)

215

Op cit Cf: the Zulu case, cited with permission in Kulusika, op cit, at 814 where the court held that treating a professional

216

better than other offenders is discriminatory and defeats the need to hold those entrusted with positions of leadership highly accountable.
217

Kulusika, op cit, p 815

218

op cit, p 795

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Reformative/Rehabilitative Theory. These theories aim at justifying the functionality and purpose of criminal punishment after a conviction.

Activity 6.1
Rearrange the above given theories of punishment in the order of ranking starting with the one you think is the most effective in curbing crimes down to the least effective.

6.2.1: Deterrence/Preventive Theory


This theory espouses the belief that punishment for crime can deter people from offending thus preventive in nature. It operates in two forms namely; specific deterrence and general deterrence. Specific deterrence is concerned with punishing an individual offender in the expectation that he will not offend again. By contrast, general deterrence promotes the possibility that people in general will be deterred from committing crime by the threat of punishment if they are caught.

6.2.1 [A]: Modus Operandi


The aim and effect of this theory is practically achieved through the following two modes of operation: (i) long prison sentences with hard labour; and (ii) very heavy fines. In some jurisdictions like Zambia, death penalty is the third and most devastating modality of deterrence.

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6.2.1 [B]: Effectiveness


Posterity indicates that imprisonment does not always deter further offending. For example, according to a Home Office study in the UK, 58% of all sentenced prisoners discharged in 1995 were reconvicted of a serious offence within two years of being released. Among young offenders, 76% were reconvicted.219 However, research in the US indicates that every execution deters seven or eight would-be offenders.

Clearly, the effectiveness of this theory is debated in practical terms suffice to mention that proponents of this theory believe that: first, punishment must be sufficiently severe for it to have a deterrent effect. Secondly, they believe that potential offenders weigh up the rewards and risks associated with crime. However, the extent to which people believe they might be caught is probably more important than the actual risk of detection, or the level of punishment.220

6.2.2: Retributive Theory


This theory is founded on the notion that if a person has knowingly done wrong, he or she deserves to be punished for the sake of people taking full responsibility for their actions. It aims at ensuring that convicted criminals receive their just deserts. It also
219

Reconviction of Offenders Sentenced or Released from Prison in 1995 (April 1999)


Law Teacher

220

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brings about the sense of expiation in that the offender is deemed to be a sinner who should be purified through punishment before he/she is accepted back into the society of the innocent. It is equally deemed to be a consoling aspect to the victims of crime in that the punishment satisfies the victims desire for vengeance.

6.2.2 [A]: Modus Operandi


This theory is operationalized through the notion of tariff sentencing. This simply means that the State will never grow weary of repeatedly punishing the offender as long as he/she keeps on offending.

6.2.2 [B]: Effectiveness


This theory has proved effective in that punishing offenders satisfies the requirement that where a rule imposes a penalty for its own breach, that penalty must be imposed when the rule is broken. As such, its effectiveness is measured by the number of convicted criminal against the number of incidents of offence commission. Whether or not offenders are repenting or not matter less provided convictions are actually being secured for each and every offence committed.

6.2.3: Rehabilitative/Reformatory Theory


This theory is footed on the need to offer an offender help to overcome problems which he faces, thereby attempting to make it easier for him or her to avoid future offending.

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It is about reformation and rehabilitation of the offender so that they develop a sense of belonging together with society with the hope of subsequent reintegration back into society as a useful member contributing to the wellbeing of that particular society.

This can include various types of assistance provided in prison or in the course of a probation order which are intended to help the offender to improve his social skills, his employment prospects, or his capacity to obtain welfare benefits.

In the UK, like most other jurisdictions, rehabilitative ideals have been incorporated in the official terms of reference of some of those dealing with offenders after conviction. For example, it has been emphasised that the duty of the Prison Service is to treat inmates with humanity and to help them lead law abiding lives in custody and after release. As such Probation Officers should advise, assist and befriend clients.221

6.2.3 [A] Modus Operandi


This theory is usually actuated through individualised sentences; Community Service Orders, Probation Order; Suspended sentences or a combination of various orders.

221

Statement of Purpose, 1988

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6.2.3 [B]: Effectiveness


The viability and effectiveness of this theory has been highly questionable because it is deemed to be treating criminals with baby gloves. In a handful of situations it has worked, but in most cases it has been abused with great propensity and impunity.

Activity 6.2
Read the case of The People v Zulu (1965) ZR 75 and write a legal brief of not less than 2 pages on when the accused may withdraw or retrieve their prior plea of guilt.

6.3: Conclusion
In a quest to meaningfully curb crime in society, a few other schools of thought have emerged with additional theories of punishment such as: (i) protection of the public through modalities like curfews and execution; and (ii) symbolic denunciation where justification for imposing penalties is that they denounce particular types of behaviour, and reaffirm the validity of moral attitudes to that behaviour. The effectiveness of these theories, just like those hereinbefore examined, varies from one society to another because their effectiveness is dependant of other aspects of individual societies such as moral convictions, socio-economic factors and policy issues among others.

6.4 Law Reforms for Zambia


Section 135 B (1) Prisons Act No.14 of 2000 is key to the on-going law reforms
spearheaded by the Zambia Law Development Commission and the Prisons Service,

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with support of other stakeholders like the USAID through SHARe II. The said provision gives the right to serving prisoner to apply for commutation from custodial sentence to community service sentence.

Well done, you have completed this unit but the scales of justice are yet to tilt in your favour. Attempt the Revision Questions below NOW!!!

6.5 Revision Questions


(1) (2) (3) (4) (5) Distinguish theories of sentencing from principles of sentencing. Of all the principles of sentencing, which one serves society most effectively? In your considered opinion, is death sentencing justifiable? Briefly explain. Discuss reformatory schooling as a considered best option of sentence for children in conflict with the law. Critique the concepts of pardon and parole of prisoners in the administration of criminal justice.

Gavel is down; you are now cleared to proceed to the next unit. Congratulations!!!

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Unit 7: Examination Question Samples


7.0 Unit Overview and Expected Outcomes
This unit provides you with an opportunity to evaluate yourself in terms of your preparedness to seat for an examination in this semester course. At the end of unit you should be able to assess your levels of understanding criminal law I.

7.1 Compulsory Questions


7.1.1: Defence- Mistake of Facts In the case of PPD v Ganmor and Others, the hypothetical synopsis was that an RAF man told three officers to have sex with his wife, and she would pretend to refuse just to be stimulating. They had sex without her consent as she kept refusing and protesting throughout the act. They pleaded mistake of facts. You have been hired as Assistant Legal Researcher to the Judge seized with conduct of the matter who now seeks your opinion on the legal issue of criminal liability in the face of the defence erected. Would they be liable? Briefly explain your answer with reference to a decided case on all fours. [30 marks] 7.1.2 Inchoate Offences- Objective Impossibility Your client bought a video recorder believing it to be stolen. He convinced himself that he will still keep this property that he perceived to have been stolen property since he liked it so much. It was later discovered that the item was in fact not a stolen property.

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He was charged with an inchoate offence and tried for attempting to participate in a crime of theft. Kindly advise your client on the legal issues surrounding his case with specific reference to chances of conviction. [30 marks] 7.1.3: Mens Rea- Intention different from motive or desire

Isling, your neighbour, just dashed into your apartment with excitement telling you that
he has just successfully killed his loved wife who had been dying from a terminal illness, in order to relieve pain and suffering. He informs you that he plans on pleading not guilty should he be indicted as he acted out of good motives. Proceed to advise him on the presence of or lack of mens rea on his part. [30 marks] 7.1.4: Accomplice- Mere Knowledge without Reporting In R v Bland [1988] Crim LR 41, the defendant lived with her co-accused, R, in one room of a shared house. R was guilty of possession of drugs. The defendant was also charged with possession of a controlled drug because she was living with R. The Court of Appeal quashed her conviction and held that there was no evidence of assistance, active or passive. The fact that she and R lived together in the same room was not sufficient evidence from which the jury could draw such an inference. Assistance, though passive, required more than mere knowledge. For example, it required evidence of encouragement or of some element of control, which was entirely lacking in the case.

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Give a detailed critique of the veracity and soundness of the holding herein. [30 marks] 7.1.5: Diminished Responsibility- Underlying Proposition Critically summarise the legal proposition thus: Where a person kills or is a party to the

killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. [30 marks]
7.1.5: Defence of Consent- Public Policy In the case of R v Emmett (1999) D was convicted of ABH after he poured lighter fluid over his girlfriends breast and set fire to it, and after placing a plastic bag over his girlfriends head during sex causing ruptured blood vessels in her eyes. Both D and V voluntarily took part in the activities. The UK Court of Appeals ruled there could be no defence of consent. Write a legal brief distinguishing this case from that of Laskey,

Brown and Jaggard v UK (1997) where the European Court of Human Rights argued
that Article 8 of the European Convention on Human Rights guarantees the right for respect of a persons private life in a democratic society. [30 marks] 7.2 Optional Questions

7.2.1: Elements of Crime- Recklessness


Generally, two elements are required in order to find a person guilty of a c rime: an overt criminal act and criminal intent. The requirement of an Overt Act is fulfilled
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when the defendant purposely, knowingly, or recklessly does something prohibited by law. An act is purposeful when a person holds a conscious objective to engage in certain conduct or to cause a particular result. To act knowingly means to do so voluntarily or deliberately, not owing to mistake or some other innocent reason. An act is reckless when a person knows of an unjustifiable risk and consciously disregards it. With
specific reference to the above statement, differentiate recklessness from negligence. [20 marks] 7.2.2: Solicitation- Doctrine of Merger An interesting twist on solicitation occurs when a third party that the solicitor did not intend to receive the incitement overhears the request to the original solicitee and unbeknownst to the solicitor, the third party commits the target offence for and on behalf of the solicitor. In a minority of jurisdictions, this situation would still be considered solicitation even though the defendant never intended the person that committed the crime to have done so. Discuss the veracity of the hereinbefore written to the Zambian jurisdiction. [20 marks]

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7.2.3: Mens Rea- Thabo Meli Doctrine Write a detailed legal essay on the celebrated South African case of Meli v R [1954] PC starting with the brief facts therein; pertinent legal issues identified and lastly the holding of the case. [20 marks] 7.2.4: Complicity Liability- Mere Presence at a Crime Scene In R v Coney (1882) 8 QBD 534, two defendants were present at an illegal bare fists prize fight. It did not appear that the defendants took any active part in the management of the fight or that they said nor did anything. It was held to be a misdirection to tell a jury that mere presence at an illegal prize fight was sufficient for there to be a conviction of the defendant for abetting the illegal fight. It is simply one factor for a jury to take into account. By citing at least two decided cases, write a concise legal essay on whether you concur with or dissent against the holding hereinbefore. [20 marks]

7.2.5: Complicity Liability- Victim Participation

There is no general rule that a victim cannot be a party to an offence. Per: Kulusika
S.E., Text, Cases and Materials on Criminal Law in Zambia (2006) UNZA Press, Lusaka, at 194. With practical examples, critically discuss the above statement. [20 marks]

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7.2.6: Intent- Knowledge

By June 6, 1999, the tigers were two years old. Lauren, his daughter was ten. She stood fifty-seven inches tall and weighed eighty pounds. At dusk that evening, Lauren joined Hranicky in the tiger cage. Suddenly, the male tiger attacked her. It mauled the childs throat, breaking her neck and severing her spinal cord. She died instantly . . . Hranicky testified . . . [that] he did not view the risk to be substantial because he thought the tigers were domesticated and had bonded with the family. . . . Thus, he argued, he had no knowledge of any risk. Per: The Pet Tigers Case. Discuss the criminal liability of
Hranicky, if any. [20 Marks]

7.2.7: Diminished Capacity- Substantial Impairment of the Mind It is trite that for diminished capacity to succeed as defence, the mental aspect of the defendant must be substantially impaired. In R v Lloyd [1967] the court defined the word substantially as to mean more than some trivial degree of impairment but less than total impairment. In your considered view, what would be the best method to determine the degree of impairment in proving diminished capacity? [20 Marks]

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7.2.8: Defence of Consent- Gillick Competence Test and Fraser Guidelines The Gillick Competence Test and Fraser Guidelines are used to establish whether a particular child is capable of giving consent for a particular action. Outline and discuss three instances where such may occur. [20 Marks]

Both gavels are down, the Mother of Justice has ADJUDJED YOUR CASE. THE Verdict IS reserved till after the exams- All the best!!! Disclaimer
This Module is a compilation and adaptation of the authors works of law lecturing in various Universities. The contents are the responsibility of the author [Adv. Justin Sipho Chitengi] and do not necessarily reflect the views of any other organizations the author may be associated with.

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