What are a crime and the need for defining criminal conduct?

Act 29 provides that, a crime has the same meaning as an offence. What then is a crime?

The general notion of crime encapsulates any act which is expressly prohibited by a statute in force, or by the common law with penal consequences. This is however according to Mensa-Bonsu a good starting point. In (Amand v Home security and minister of defence of Royal Netherlands), the issue of what is a crime came up. A Netherlands subjects, who had resided in England for 14 years was arrested as an absentee without leave from the Netherlands army in England. He was taken detained with a view of extradition and was produced before a magistrate. The divisional court denied his application for a writ of habeas corpus. On appeal the court held it had no jurisdiction. The issue was whether the proceedings qualified to be considered as criminal proceedings which could result in his deportation? It was held that if the cause or matter is one which if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a “criminal cause or matter”. Also if the matter is one the direct outcome of which maybe trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal. In the case of (Clifford v O’Sullivan)the appellants were civilians who were arrested with some arms and ammunition. They were convicted by a military court and sentenced to death, which sentence was subject to affirmation. An application was made for a writ of prohibition to prohibit the military court from further proceeding with the matter. It was refused, on appeal to the HOL, the court denied jurisdiction, since the issues involved a criminal cause or matter. It was held that for a matter to constitute a criminal one it must satisfy 2 conditions. 1. It must involve the considerations of some charge of offence against public law 2. It must have been preferred or be about to be preferred before some court or judicial tribunal having or claiming jurisdiction to impose punishment for the offence or alleged offence.

This same attitude in the 2 cases above is discernable in the definition of ‘crime’ in Act 29 Section 1which provides that crime means any act punishable by death or imprisonment or fine. Mensa-Bonsu comments that it is not helpful as one has to be able to determine in advance the imposition of punishment to tell if act is criminal or not.

The test applied by the Canadian court in (Proprietary articles trade association v AG for Canada) was “is the act prohibited with penal consequences?...for the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the state to be crimes, and the only common nature they be found to possess is that they are prohibited by the state and that those who commit them are punished”

From the above definition there are 3 discernable elements

A prohibited act

Prohibition by a statute in force

The provision of penal consequences for breach

It should be noted that without that without the individual’s fear of criminal sanctions, criminal laws would only be a set or moral exhortations which would be obeyed at the will and determination of the individual. This is a position that would defeat the essence of the criminal law. It is thus clear that the imposition of penalties lie at the heart of the criminal law.

Kissi Agyabeng in his article “To disclose or not to disclose the offence-that is the question” stated that an act or omission to act is only a crime if it is defined in a written law with a corresponding penalty for infringement.

In conclusion therefore, a CRIME is an act (positive act or omission) prohibited by a written statute for which is attached a penalty to the doing of that act.

The principle of legality

The law must match up to a standard. This in criminal law is the principle of legality further captured in the Latin maxim “nullum crimen nulla poena sine lege praevia lege ponali” this translates that there can be no crime and no punishment thereof without a pre-existing penal law. This principle in detail is that

The criminal law must be written

There must be notice of the law

The law must have been passed prior to the commission of the crime

Prescription of the consequences of that conduct

The principle as stated is firmly rooted in Article 19 of the 1992 constitution. Article 19(5) states that a person shall not be charged with or held to be guilty of a criminal offence which is founded on an act or omission that did not at the time it took place constitute an offence. This provision is squarely captured in the case of (Hassan v the state); the appellant was found in possession of Indian hemp in October. He was convicted on a charge of possessing Indian hemp, contrary to the pharmacy and drugs Act. His particulars said he was found with the Indian hemp in January. The Act however came into force in June. It was conceded by the state that the wrong date was included in the particulars and that in October mere possession ofIndian hemp was not an offence. It was held that where the charge discloses no offence and the evidence does not show that the appellant has committed any offence, the conviction must be quashed. Article 19(11) states that No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law. This is to the effect that a person must know what conduct is prohibited as a crime so as to order his steps thereby. In (Glah v the republic) though the act of the appellant was against public morality, it wasn’t captured in any law and there was no punishment thereof, he was therefore acquitted for having committed no offence. In (British Airways v AG)Acquah JSC, stated that now, the provisions of this article 19(11) of the Constitution, 1992 (hereinafter referred to as the “article 19 (11) formulation”) is one of the various formulations of the principle of legality underlying the administration of justice in democratic countries. There is another formulation of the principle in article 19 (5) of the Constitution, 1992 (hereinafter referred to as the “article 19 (5) formulation”). Indeed, before the promulgation of the Constitution, 1992 our Criminal offences Act, 1960 (Act 29) provided in section 8 thereof, that no person shall be liable to punishment by the common law for any act.” The only exception, as provided in section 10 of Act 29 is the power of a court to punish for contempt of court. The principle involves rejecting “criminal equity” as a mode of extending the law. The court finally held that under both section 8 of the Criminal Code, 1960 (Act 29) and article 19(11) of the Constitution, 1992, criminal offences had to be so designated in a written law. Accordingly in the instant case, with the repeal of PNDCL 150 and in the absence of any written law defining an offence or providing a punishment, it would be futile for the plaintiffs to go through their trial because they could neither beconvicted nor punished. Furthermore it would be a negation of the court’s duty and a condonation of illegality, which if not stopped, would result in interference with and breach of the plaintiffs’ rights to liberty. In (Tsatsu Tsikata v the rep) the appellant was charged on the crime of causing willful financial loses to the state. Counsel for the appellant contended that the CA erred in using a repealed law i.e. Public Tribunals Law as the basis for failing to enforce Article 19(5) of the 1992 constitution when the charges against the appellant had not been brought under that law. He further contended that the law on which the 3 counts against the appellant were based violates Article 19(11) of the constitution because in no written law could anyone find the definition of the offence in the section and that the words in the section had been left undefined. It was held (Atuguba JSC, dissenting) that Article 19(5) especially prohibited the creation of and punishment for retroactive crimes. Nothing showed that the decision of the CA was based on a repealed law. It was further held that the provision in Article 19(11) was meant to outlaw so-called common law and customary law crimes that had not been preserved in statutory law. The framers did not intend, by Article 19(11) to order legislators to supply a lexicon of words within the 4 corners of each and every piece of legislation that sought to create a crime.

The provision was not unconstitutional merely because it did not contain intrinsic definitions of all terms used; a resort to both specialized and general dictionaries would constitute a time-honored and acceptable form of extrinsic aids to interpretation.

According to Kissi Agyabeng in his article “To disclose or not to disclose the offence-that is the question”a charge to pass of as valid must satisfy the principle of legality otherwise it cannot be applied. He set out a yardstick, for which a charge must disclose

An indication of the offence the accused allegedly committed (Article 19(11))

A description of the alleged conduct of the accused amounting to the indicated offence steeped in the legal context of the essential elements of the offence.

The period in time in which the offence was allegedly committed by the accused. (Article 19(5))

The place where the offence was allegedly committed by the accused.

There has been a problem as the legality of customary offences? Acquah in his Article “Customary offences and the courts” states that in the light of ones increasing awareness of his fundamental human rights, any attempt to clothe any individual with inherent authority to punish a citizen for what that individual considers to be a breach of some customary practice will certainly be punctuated by the universally respected principle of legality. It follows therefore that for courts to have jurisdiction to deal with and punish breaches of customary practices, such punishable customary practices should be defined and the punishment thereof prescribed in a written law. Glanville Williams thus stated that “the citizen must be able to ascertain beforehand how he stands with regard to the criminal law; otherwise to punish him for breach of that law is purposeless cruelty” in (Debrah v the rep)it was held that It was a fundamental right of every citizen that he could not be punished for any offence which had not been directly set out and the punishment thereon equally laid down in the relevant statutory instrument. That was implied by the provisions of section 8 of Act 29 to the effect that no person

Should be made liable to punishment by the common law for any act. Hence, for any customary offence to be punishable steps had to be taken to have such offences and their punishment clearly spelt out in the relevant statutory instrument. This was to ensure that individuals were not subjected to capricious and sometimes outmoded, unintelligible and undefined offences alleged to be against custom. The individual was entitled to know beforehand what the offence was and the punishment for it.

The power of the Ghanaian courts to impose punishment for an offence is derived from the enactment which creates and defines that offence and which further prescribes the punishment for it. Thus unless a particular customary offence has been codified, like that of disrespect of a chief, no court can recognize and punish or endorse the punishment imposed by any other person for such an offence. There is difficulty in presenting legislation on various customary offences and their punishment. For customary offences in various communities differ and is not universally applicable.

What are punishment and its nature?

According to Acquah JSC, in (British Airways v AG) Punishment in whatever form it takes is a loss of rights or advantages consequent on a breach of law. When it loses this quality, it degenerates into an arbitrary act of violence that can produce nothing but bad social effects.

According to Mensa-Bonsu, punishment is the phenomenon that entails the infliction of suffering or some other unpleasant consequence by an agency in a position of authority on an offender for an offence (Doing of a prohibited act). 6 major elements are discerned from this definition.

Infliction of suffering; any consequence of an act that is not unpleasant is called anything other than “punishment”

By a deliberate act; the deliberate nature of the act that causes the pain or suffering is what gives the act its penal character.

We should have a person or an authority imposing punishment on another person; a person who imposes suffering or other unpleasant consequence on him or herself cannot be said to have suffered punishment.

The person imposing the punishment must be in authority to do so; it encompasses the notion that the one who inflicts the suffering is in a superior position to the one who suffers the punishment.

There must be an offence

There must be a prohibited act and the person must be punished for doing a prohibited act.

Ross maintains that the disapproval of society is an aspect of the definition of punishment. Therefore, in addition to all the above aspects of the definition of punishment, it must also be an expression of the disapproval of society. This is the denunciatory element.

Hart defined punishment in the legal sense to involve 5 elements;

Punishment should involve pain or other unpleasant consequence.

It should be for an offence against legal rule.

It should for an actual or supposed offender for his crime.

It should be intentionally admitted or administered by human beings other than the offender.

It should be imposed by an oath constituted by the legal system. Ross deems this unsatisfactory as it omits the denunciatory element and the issue of vicarious liability. He then says punishment is a social response which occurs when there is a violation of a legal rule, imposed or carried out by authorized persons on behalf of the legal order to which the violated rule belongs, involves suffering or at least or other consequences normally considered unpleasant and finally expresses disapproval of the violator.

Feinbergtried to make a distinction between penalty and punishment. He suggests that punishment should be used for more serious offences and reserve for non-serious offences, penalty. Such distinction is however not made in Ghana. He however agrees with Ross that punishment must have the denunciatory effect.

Aims and purposes of punishment

The main aims for the imposition of punishment are generally acknowledged to be

Retribution; this is the position that the punishment must fit the crime; therefore a penalty should not exceed a limit related to the offence, i.e. neither to its seriousness or the offenders culpability. This is also seen as desert, which is an integral part of everyday judgment.

Deterrence; there are two main types which is individual and general. With the individual it is hoped that the experience of punishment will be so unpleasant a memory that it will discourage the person on whom it is imposed from risking another term. As a general, it discourages others who might break the law in similar ways.

Prevention/incapacitation; this is to protect the members of the public from offenders by taking them out of circulation. The aim is to deal with them in such a way as to render them incapable of ever offending again for a substantial period of time

Rehabilitation/reformation; it is to achieve the reformation or re-socialization of the offender. The emphasis is on the needs of the offender than the gravity of his offence.

Justice/reparation; this recognizes the rights and needs of the victims of crime. The idea is that justice to victims should be the first goal of the criminal justice system and of sentencing. Thus the primary aim should be to ensure that the offender compensates the victim and society for the results and effects of his crime.

Denunciation; it symbolizes society’s disapproval of crime. It is a dramatic condemnation or denunciation of an offence which may have an educative function, which is the possibility that the sentence can affect people’s tolerance or moral evaluation of the offence for which the offender is sentenced.

The reasons as I stated are the explanation of D K Afreh in his Article, “The Prisons and Sentencing”

Act 29 contains provisions that can be used to achieve any of the aims of punishment. It is for the judges to select which of the aims they want to achieve by the punishment. The codes themselves do not establish a primary rationale for sentencing. Deterrence and prevention have the most important aim of punishment in this country. the justification for the deterrence offence is found in (Kwashie v the rep) that since the offence was of a grave nature , the sentence must not only be punitive but it must also have been deterrent or exemplary in order to mark the disapproval of society of such a conduct by police officers. In (Adu Boahene v the rep) it was held that when a court decides to impose a deterrent sentence the value of subject matter of the charge and the good record of the accused becomes irrelevant. It has also been held that the fact that prevalence of a certain type of offence causes concern to a society may also require a deterrent sentence. In (Apaloo v the rep) however it was held that a sentence even though intended specifically for general deterrence should not be excessive in relation to the facts of the offence.

Theories of punishment

Retributivist theory

There are two main theories of retribution. The first is the classic theory which is found on revenge; which is paying the offender back in his own coin, lex talionis(an eye for an eye). Here it is believed that the offender must be made to suffer the same extent that the victim suffered. The second and more respectable view which is the proportionality theory which is that punishment must fit the crime i.e. you cannot kill an ant with a sledge hammer. Here the view is that an individual offender must get his just deserts. The fact that different degrees of punishment are prescribed for various degrees of gravity itself is an indication of a built-in system of retribution. This makes the punishment reflect the values of society. All punishment is retributive since it is imposed in response to the commission of a crime and not merely because its imposition could prevent crime. There might even be a third theory, which is the moral culpability theory. In (Melfa v the rep) the appellant was provoked in his attempt to stop a fight between the deceased and his friend. In summary they are that punishment should be equal or equivalent to the crime, culpability principle; that punishment should be in proportion to the harmfulness and blameworthiness of an offender’s actions, grievance principle; that punishment should give satisfaction equal to the grievances caused.Michael Moore states that a retributivist punishes because and only because, the offender deserves it. He cautions that it shouldn’t be confused with the denunciatory of punishment which justified because punishment is the vehicle through which society can express its condemnation of the criminal’s behavior and which is more of utilitarian. The determination of proportionality however looks to the past. In effect there the principle of retaliation and equality.

Utilitarian theory

This theory as espoused by Jeremy Bentham is essentially to the effect that laws must ensure the greatest good for the greatest number of people. Punishment is not considered as an end in itself, but as a means to an end. It serves a purpose. It is therefore consequentialist.When punishment succeeds in reducing crime because people realize that offenders would be punished and that It a useful end. Therefore the concept of deterrence is very prominent in the scope of utilitarians. Deterrence operates on a specific and a general level. General deterrence means that the punishment should prevent other people from committing criminal acts. The punishment serves as an example to the rest of society, and it puts others on notice that criminal behavior will be punished (Kwashie v the rep). Specific deterrence means that the punishment should prevent the same person from committing crimes. Specific deterrence works in two ways. First, an offender may be put in jail or prison to physically prevent her from committing another crime for a specified period. Second, this incapacitation is designed to be so unpleasant that it will discourage the offender from repeating her criminal behavior. Rehabilitation is another utilitarian rationale for punishment. The goal of rehabilitation is to prevent future crime by giving offenders the ability to succeed within the confines of the law. Rehabilitative measures for criminal offenders usually include treatment for afflictions such as mental illness, chemical dependency, and chronic violent behavior. Rehabilitation also includes the use of educational programs that give offenders the knowledge and skills needed to compete in the job market. These are the 3 ways that utilitarians have focused that punishment can reduce crime. Adherents to this theory believe that punishment should serve a deterrent purpose so as to indicate to society- denunciation. They also look at proportionality. In order to serve the purpose of discouraging that kind of conduct within the society, for instance, one would need to consider how much punishment would send the requisite warning to the community at large. Therefore it is the magnitude of the impact of the punishment on society at large which will underline proportionality.

Similarities

Both theories discuss punishment in general and they both aim to give appropriate punishment

Significance of the theories and associated problems

Retributivist takes into account the unique characteristics of the individual however punishment must be too insufficiently strong to prevent the crime from happening in the future. Utilitarianism ignores the individual and doesn’t take any individual variables into consideration.

Differences

Utilitarianism aims to deter future crimes

Retributivist aims for justice by considering all people involved

It is the goal of Utilitarianism to create the ultimate happiness and pleasure

Retributivist act to balance the justice of today