GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY

Introduction

The Lecture intends to introduce the general principles of criminal law which are to be viewed within the purview of actus Reus and mens rea as the material elements of crime. Thus actus Reus and mens rea remain the basic form of criminal conduct determinant.¹

Actus reus and Mens rea

Actus Reus and Mens rea form the basic elements of crime. Actus Reus generally refers to an act or omission that is forbidden by criminal law. Actus Reus is therefore the physical element or outward conduct of a human being forbidden by criminal law.

Mens rea on the other hand connotes the state of mind, guilty mind, or blameworthy state of mind in relation to the conduct.

Actus Reus and mens rea are expressed in a Latin maxim “Actus non facit reum nis mens sit rea” meaning that;

An act does not make a person legally guilty unless the mind is legally blameworthy.

This maxim is based on proposition of what must be proved in order to secure a conviction although the accused person may avoid conviction by relying on a defense.

It must therefore be proved that;

• a certain event or a certain state of affairs which is forbidden by the criminal law, has been caused by the accused‟s conduct and
  • This conduct was accompanied by prescribed state of mind. Both these elements must be proved beyond reasonable doubt by the prosecution.

The significance of the maxim has been stressed in a number of judgments.

In Brend V. Wood.³ Lord Goddard CJ. said:

“it is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind”.

Omission

In Tanzania omissions may form an actus reus in a number of cases.

Section 5 of the Penal Code⁹ defines an “offence” as an act, attempt or omission punishable by law.

The following are examples:

• Driving a motor vehicle without a valid driving license

(S. 9 Road Traffic Act¹⁰)

• Omitting to perform a legal duty,
  • S.206 Penal Code –

“Every person having charge of another who is suffering from some incapacity which makes him unable to help himself has the duty of providing the other with the necessaries of life; the „charge‟ may rise from contract law or by reason of an act whether lawful or unlawful”

• S.207 Penal code –

“Every family head must provide members of his household under the age of fourteen years with necessaries of life”.

Other references in the Penal Code include; SS.121, 123,124, 167, 168, 208, 209, 210, 244,

284, and 383.

¹ Joel Samaha, Criminal Justice West Pub. Co.50 W.Kellogg Boulevard. P.35

³ Brend V. Wood(1946) 175 LT 306 DC

⁹ ibid

¹⁰ Act No.30 of 1973

Mens rea

Mens rea forms a necessary ingredient of an offence unless by express language or implication the element mens rea is excluded.

Mens rea means a blameworthy state of mind or guilty mind. But this translation may be means leading. A person may have mens rea as it is generally understood to day, without any feeling of guilty on his part. Therefore mens rea, in the context of criminal law, is more specifically a mental state.

As already stated mens rea is an essential element of an offence, for a person, except in certain cases to be considered later on, cannot be held criminally liable in respect of an act brought by him if at the time he had no the requisite mens rea.

The development of the general principles of criminal law such as the need for actus reus and mens rea were intended to underscore the point that criminals acted out of their free will and therefore deserved to be punished.

As a general rule a person may not be held criminally responsible unless.

• He was acting voluntarily
• He knew what he was doing, he was doing wrong
• In those offences where particular consequences form part of the actus reus he fore saw the likely hood of those consequences.

Mens rea

Knowledge of wrongfulness

voluntariness

Foreseeability of the consequences

• .Mens rea flow chart.

Voluntariness

Since it is said that mens rea includes those acts willed by the accused, an involuntary muscular movement will not constitute mens rea. Generally involuntary muscular acts are excusable under the defence of “automatism”

and these acts may be caused by persons, as those who suffer epileptic while driving causing death thereby or sleep walkers, and unconscious states.

In Tanzania the nature of „automatism‟ is covered under section 10 of the Penal Code¹¹ that provides:

“Subject to the express provisions of this code relating to negligent act and omissions a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or for an event which occurs by accident”.

For example, in the case of Anthony Mhikwa V.R.¹², the accused was convicted by a lower court of contempt of court c/s 114 (1)(a) of the Penal Code¹³, on the grounds that he had shown disrespect to the court by laughing and making peculiar noises in the course of a trial in which he was involved.

On appeal he explained that a fly had flown into his nose causing him to snort and sneeze, and the High court of Tanzania accepting the explanation, quashed the conviction. The reason given was lack of mens rea because the

accused‟s reaction was instinctive and not subject to conscious control; it was involuntary. In the case of Bratty V.A.G. For Northern Ireland.¹⁴ Lord Denning stated that:

¹¹ Cap.16 ibid

¹² Anthony Mhikwa V.R. (1968) HCD no. 460

¹³ Cap.16 ibid,

¹⁴ Bratty V.A.G.For Northen Ireland (1763) A.C.386 at p.409

“No act is punishable if it is done involuntarily and involuntary act in this context….means an act done by muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleep walking.”

This shows that voluntariness is a very important element in conduct classified as crime.

Mens rea can be analyzed in the following degrees required in any given offence:

• Intention
• Recklessness and
• Negligence.

Intention

This forms the highest state of mens rea in the hierarchal order of degrees of mens rea. Once this is established there is no way an accused person can escape justice.

It is said a person acts with intent when he foresees the likely hood of the consequences of his act and desires that it should do so. If the consequence is desired, then it is immaterial that the chance of its occurrence may be small.

For example if „X were to shoot „Y‟ intending to kill him, from a miles range, knowing the chances of killing him were a thousand to one, it would be an intentional killing if the one chance came up.

In statutory offences intention is expressed in terms such as “intentionally” or “with intent to” or

“willfully” etc.

In murder cases the term “malice aforethought” defined in section 200 of the Penal Code, is used to show intention. Section 258 (1) of the Penal Code uses the term “fraudulently”

indicating intention on the part of an accused person of permanently depriving the other of his property.

Sometimes, in certain statutory provisions these terms are not provided, and what is important to understand in such situations is where an accused person is charged with an offence requiring specific intention then such intention must be construed and proved in terms of the actus reus.

In the case of Brazila V.R.¹⁵ the accused, a messenger employed by Bukoba District Council was in charge of prisoners held at a primary court. He let two prisoners out of their cells and ordered them to wash their clothes while he went for a walk.

The prisoners escaped. The accused was charged under section 117(1) of the Penal Code which applies to “any person who aids a prisoner in escaping or attempting to escape from lawful custody.”

Mustafa J., held that the word “aid” imports an element of positive assistance and, or an intention of helping the prisoner to escape. The evidence showed that the accused was extremely negligent and careless.

Recklessness

A man is reckless with respect to a consequence of his act, when he foresees that it may occur, but does not desire it nor foresee it as virtually certain.

Recklessness with respect to circumstances means realization that the circumstances may occur, without either knowing or hoping that they do.

For example „X‟ points a gun at „Z‟ and pulls the trigger. If he does not know that it is loaded, but realizes that it may be, he is reckless with respect to that circumstances, whether, he hopes it is unloaded or just does not care whether it is loaded or not.

If he is reckless with respect to this circumstance, it follows that he is also at least reckless with respect to the consequence of the death of „y‟, that is he foresees that it may occur, but neither desires it, nor foresees it as certain.

In the same vein, if X buys goods from a notorious fence, realizing that they may have been stolen, he is reckless as to that circumstance.

A person who acts recklessly is then taking a deliberate risk; and the word connotes that the person has some actual awareness of the risk he is taking although he does not desire the consequences. It is an attitude of mental indifference to an obvious risk.

Recklessness is less blameworthy than intention. Although reckless people purposely or consciously create high risks of harm, they may not intend to hurt anyone in fact, for they may very much hope their recklessness hurts no one – but they risk causing harm anyway.

For example cases of people knowingly leaving their loaded gun lying within the reach of their Children. If a child picks it up, pulls the trigger and kills him self, in the absence of the occupier, the occupier in this respect is reckless.

He did not actually intend to kill the child, perhaps the only thing he would have contemplated is to cause injury to the child; but his recklessness

led to the death of the child.

There are a number of offences in this instance, the bulk of them are covered under chapter XXIII of the Penal Code – on criminal recklessness and negligence, in which the degree of mens rea required, is that of recklessness.

Like wise section 42(1) of the Road Traffic Act ¹⁸reads:

“any person who on any road recklessly drives a motor vehicle or trailer shall be guilty of an offence”

¹⁵ Brazil V.R.(1968) HCD no.304

¹⁸ Act No.30 of 1973

We can distinguish intention from recklessness from the fact that intention can not exist without foresight but foresight can exist without intention.

Negligence

Negligence or carelessness entails unconscious risk creation. Negligent people are not aware they have created risks. Criminal law however imposes liability on such people on the application of the “reasonableness standard.”

This standard is based on what reasonable people under similar circumstances would know, and avoided the risk. A man is therefore negligent with respect to a consequence of his act when he does not foresee

The possibility of the occurrence of that consequence at all when he ought as a reasonable man to foresee it avid avoids the possible consequence of its occurrence.

Cases for example of parking car in residential areas are likely to attract “negligence‟s” because these areas are prone to kids playing. If in that case a driver starts a car without first securing the area, and in consequence he runs over the child who dies on the spot, this will be a case of involuntary manslaughter due to negligence.

In manslaughter cases it is sufficient to prove that the accused was negligent or reckless in the circumstance. In R.V. Chepe Kalangali.¹⁹ The accused failed to take care of the deceased child who was in his custody, and known to him to be suffering from cold. The resultant exposure to cold hastened the death of the deceased.

Mnzava’s J. found the accused guilty of manslaughter in the meaning of section 203 of Penal Code²⁰. He observed that, for a person to be guilty of manslaughter by negligence, it

¹⁹ R.V.Chepe Kalangali (1973) LRT no.77

²⁰ ibid

must be proved that he had a duty to take care that he failed to discharge that duty thereby causing the death of the deceased.

A clear demarcation line between negligence and recklessness does not exist in a number of cases, particularly under the Road Traffic Act one may find both words used in the alternative.

For example, s.50 of the Road Traffic Act ²¹provides:

“Any person who uses, parks of stands a motor vehicle or trailer on any road carelessly or without reasonable consideration for the other persons using the road shall be guilty of an offence”.

The whole of chapter XXIII of the Penal Code²² is devoted to offences of criminal recklessness and negligence.

The only difference however between recklessness and negligence lies on the fact that in recklessness there is foresight but no intention exists, where as in negligence there is no both foresight and intention.

Mens rea

Negligence                  Intention                     Recklessness

No                               Intention                     Foresight

Foresight         Intention         Foresight                               No Intention

²¹ ibid

²² ibid

• Degree of mens rea flow chart.

Presumption of Mens rea

There is a presumption of mens rea. The presumption of mens rea as an element of criminal liability was expressed in the famous case of Sherra V. De Rutazen.²³ where it was stated:

“ There is a presumption there “mens rea” or evil intention or knowledge of wrongfulness of act, is an essential in gradient in every offence; but that presumption is liable to be displaced either by words of the statute creating the offence or by the subject matter with which it deals, and both must be considered.”

But mens rea is not always required for criminal liability. In some offences a person can be convicted despite the fact of his blameless inattention. These are the exception to the general principles to be discussed later.