Provocation as a Defense to Criminal Liability
CHAPTER ONE
Objective of the Study
The aim and objective of this work is to examine the meaning of the term provocation its plea as a defense to criminal charge in Nigeria and the conditions under which it can avail a person by reducing his capability from murder to manslaughter or culpable homicide punishable with death to that not punishable with death. In view of this, this work shall attempt to achieve the following goals:
- To examine the defense as well as its elements
- To examine the defense under the Nigeria Criminal justice System; what constitute the defense and its grounds for reducing murder to manslaughter.
- To examine the burden of proof, the effect, adequacy and limitation of the defense and to suggest or make recommendation on the defense if there is any.
CHAPTER TWO
DEFENCE TO CRIMINAL LIABILITY
INTRODUCTION
An offence is defined as an act or omission which is rendered punishable by some legislative enactments[1]. All legal systems around the world have incorporated crime, the moral ideal that no one should be convicted of a crime unless some measure of subjective fault can be attributed to him. Nigeria criminal law is no exception, thus defenses are however provided for those who cannot be said to be at fault, i.e. insane person, young people, or those who in a state of unconsciousness or under compulsion, and so on[2]. In this chapter focus is made on the element of criminal liability, things that are require before a person can be held to be criminally liable.
DEFINITION OF CRIME
Okonkwo and Naish, a leading author in criminal law define crime as the breaches of the law resulting in special accusation procedure controlled by the state, and liable to sanction over and above compensation and cost.
Glanville Williams, define crime to be a legal wrong that can be followed by criminal proceedings which may result in punishment, consider crime as a conduct which „will include a formal and solemn pronouncement of the moral condemnation of the community‟.
Professor Ashworth in his view said that the chief concern of criminal law is seriously anti-social behavior, and anti-social act which must not be abandoned as one consider the broader canvas of Criminal liability13.
In both the criminal and the Penal Code, use is made of the word „offence‟ rather than of the word „crime‟, but since the adjective „Criminal‟ is also used in both codes and in the constitution14, the words „crime‟ and offence would appear to be interchangeable[6].
Criminal procedure marks off a crime from a civil wrong, and we may note a few of the distinguishing characteristics of that procedure[7].
There is no special intrinsic characteristic of criminal conduct distinguishing act from non-Criminal conduct. Whatever views one holds about the Penal Law on crime, no one will question its importance to the society. This is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individual and institutions.
GENERAL PRINCIPLES OF CRIMINAL LIABILITY
Criminal liability is rarely used to describe the findings of fact. It is usually used at the second stage of the trial to describe the findings that not only did the accused do the act or make the omission with which he is changed but also that in law he is responsible for it.
The law may sometimes find a man guilty and therefore fully responsible for an act even though common sense might say that he is not responsible for such an act, the concept of responsibility rest on a reasonable amount of freedom of choice and capacity to regulate one’s conduct.
One may speak in the plural of the mental elements or physical element of an offence, because the actusreus or mensrea of any particular offence may consist of a complex physical or mental circumstance. Therefore it is all part of the actusreus of an offence as in Section 456 of the Criminal Code that the accused causes a disease; that the disease is infectious; that ii is caused to an animal; and that the animal is capable of being stolen. Most offences, on the mental side, require proof of at least some sort of knowledge and some sort of foresight against an accuse.
CHAPTER THREE
NATURE OF PROVOCATION
INTRODUCTION
Provocation is one of the numerous defenses to criminal liability in murder cases recognized under the Nigerian law. Jurisprudentially, the defense of provocation is based on the law’s compassion for human weakness. From earliest time, it has been recognized that human beings are prone to losing their control under extreme rage and should they react violently, justice demands that account be taken to their rage in inflating punishment. Provocation offered by the victim or deceased render’s the accused subject to temporary loss of self-control; this concept is recognized under the English Law of crime as a defense to homicide charge[1].
DEFINITION OF PROVOCATION
In Osbourne’s Concise Law Dictionary, provocation is define to mean words or conducts which are sufficient to prevent the exercise of reason and which temporarily deprived a reasonable person himself control. Literally, provocation means „an action or event that makes someone angry‟ that is, the intentional causing of annoyance or anger to another person that makes him to react violently. When provocation is used generally, the above is presumed, but when used technically then provocation is viewed form legal perspective[2].
Black’s law Dictionary defines provocation as „something (such as words or action) that arouses anger or animosity in another, causing that person to respond in the heat of passion‟. The latest and the most current edition of same dictionary define it thus:
The act of inciting another to do something, especially to commit a crime 2. Something (such as words or actions) that affects persons reason and self control, especially causing the person to commit a crime impulsively. The criminal and Penal Codes54 respectively define provocation in strikingly similar wordings. Section 318 of the criminal code:
When a person who unlawfully kills another circumstances which but for the provision of this section would constitute murder, does not act which causes the death in the heat of passion caused by grave and sudden provocation and before there is time for his passion to cool, he is guilty of manslaughter only.
CHAPTER FOUR
THE BURDEN OF PROOF IN CRIMINAL LIABILITY
INTRODUCTION
At the outset of any Criminal Proceedings the accused is presumed innocent[1] and the burden of proof is on the prosecution to prove its case i.e. to prove all the elements of the offence, it must be prove beyond reasonable doubt that he committed it[2]. This Common law rule was confirmed for Nigeria by the Privy Council in R vs. Lawrence[3] and was put on a statutory basis in the 1945 Evidence Act[4].
It is trite law that the burden of proof lies on the person who assets the truth of an issue in dispute[5]. Thus the burden is never on the accused to establish a plea of provocation. If the evidence discloses a possible plea of provocation, the burden of proof remains throughout on the prosecution to negate it and prove beyond reasonable doubt that the accused did not kill the deceased in the heat of passion caused by sudden provocation[6].
BURDEN OF PROOF IN CRIMINAL LIABILITY
In Nigeria Criminal Justice system, a person is presumed to intend the natural and probably consequences of his deliberate action „a man is a free agent and must be held responsible for his action[7]. Thus a man who shoot his neighbor, cannot be heard to say that he had no intention to kill or at least to cause grievous body harm, nor can the knowledge that death will result when a man decapitated another person be describe as improbable[8]. The essential element in any criminal offence is the mens rea and evil intention or knowledge of the wrongful act.
CHAPTER FIVE
GENERAL CONCLUSION
CONCLUSION
This essay attempts to examine the definition and meaning of criminal responsibility which gave birth to the defense or plea of provocation.
The first chapter deals with the introduction to the study, hypothesis, the literature review and the methodology. The second chapter examines the general principles of criminal liability, the actusreus and he mens rea. Its definition and meaning under different laws, codes jurisdiction etc. The third chapter evaluated the defense under the Nigeria Criminal System. This includes examination of the provisions of the two codes; the Criminal and Penal Code applicable to the Southern and Northern part of the country respectively. It is crystal clear from the combined effect of the two provisions of the criminal code dealing with provocation and the penal code, that provocation if upheld by the court, does not operate to justify a killing as to totally exculpate an accused person. Chapter four, deals with the burden of proof to provocation, which constitutes burden of proof, the exemption to the burden of proof, the effect of a successful plea of provocation, while the last chapter comprises of the summary, conclusion and the recommendation on the defense.
Having examined the defense critically based on the above, it is discovered that even if the defense is successfully pleaded, it does not exculpate the accused of criminal responsibility, it only mitigates his punishment. Although the Nigerian law of provocation was originally based on the English law, it is now clear that the Nigerian courts have succeeded in evolving a slightly different approach. In determining whether or not a person has been provoked, the law applied by the English courts is the Purdy objective one. In Nigeria, on the other hand, the test is now applicable is the partially objective test.
RECOMMENDATION
As said above, the essence of the defense of provocation is for the purpose of mitigation of punishment both in murder and assault cases. However, the requirements placed on the defense are so tasky that one wonders if an accused person can actually have the defense avail him. These tasky areas include the reasonable man‟s test and the requirement that the mode of resentment must bear a reasonable proportion to the provocation offered which is contradictory to the defense of provocation. It is recommended that the law should be reformed on this aspect.
It is recommended that the reasonable man should not be judged with the standard of an ordinary man. The entire factual situation which includes the characteristics of the accused must be considered. This is because the issue of provocation is a psychological one and must be so considered. Dr. Brett developed physiological evidence, with relation to provocation he claims that the flight-or-flight reaction induced by anger (causing an increased flow of oxygen into the bloodstream to prepare the body for fighting or fleeing) does not dissipate as quickly as the law suggests it does, unless there is a physical outlet for the reaction, neither does the reaction vary in direct proportion to the provocation.
REFERENCES
- Aguda T.A. „The law of Evidence‟, (4th, ed., Spectrum Book Limited, Ibadan, 1999) P.222
- Bryan A.G, „Black‟s Law Dictionary‟, (6th edition Thomson West, 1990)
- Curzon L.B, „Criminal Law‟, (8th, ed, Pitman Publishing, London , 1997) P. 23
- Duncan B., ‟Criminal Law‟, (2nd, ed., canvandish Publishing Limited, Great Britain, 1996) P.18
- Glanville W, „Criminal Law‟ (2nd, ed., Stevens and Sons Limited, London, 1961) P.11 Ibrahim I, „ Criminal Law Lecture Note‟, (300 Level Student 2009/2010 Session)
- Okonkwo &Naish, „Criminal Law in Nigeria‟, (2nd, ed., Spectrum Books Limited, Ibadan, 1992)
- Richard C, „Criminal Law‟, (3rd, Sweet & Maxwell, London, 1995)P.52
