Generally speaking, there are two elements that ought to be proven for the establishment of criminal liability (that is, the extent, if any, of responsibility, that someone should bear for committing a criminal act).
These elements were developed in response to the clamour for mitigation of the strict standard of liability that hitherto existed under common law, under which criminal acts were punished as they appeared without an inquiry into the intentions of the offender.
The elements are derived from a Latin maxim, “actus non facit reum nisi men sit rea” which translates to, “an act does not render a person legally guilty until his heart is also blameworthy”.
They are:
- Actus reus (offence committed)
- Mens rea (the intention behind the commission)
- As stated above, the actus reus is the action or failure to act that results in the violation of a law. For example, if a law says not to kill anyone and Party A, while fighting with Party B, bludgeons him to death, he has violated said law by his action.
There are four circumstances that can form the actus reus of a crime and they are:
a. Action – the doing of an act forbidden by law
b. Omission – the failure to do an act made obligatory by law
c. Initial act and other factors – where a complimentary act is required to make another an offence (e.g, rape requires not just proof of penetration, but of lack of consent to penetrate further at any point)
d. Passive state of affairs – where a state of affairs without a direct physical act or omission is enough to constitute an offence like in the case of vagrancy or idleness.
NB – The African Human Rights Court, in its Advisory Opinion of December 4, 2020, has ruled that anti-vagrancy laws are inhumane and flow against the provisions of articles 2,3,5,6,7,12 & 18 of the African Charter on Human and People’s Rights, amongst other African Human Rights Instruments.
This opinion has been upheld by the ECOWAS Court of Justice in the case of Dorothy Njemanze and Others v. Federal Republic of Nigeria.
On the other hand, the mens rea of a crime is simply put, the mental element or dimension to the commission of an offence. It is important to interrogate this element because it is crucial to determining the weight of punishment to be imposed for committing an offence.
It is the state of mind statutorily required in order to convict a particular defendant of a particular crime
It helps ascertain the degree of blameworthiness & consequently, the severity of liability of one who has been accused of an act, omission or otherwise.
There are four broad steps of severity that can be applied to grading the degree of mens rea, and they are:
- Acting purposely: This is where the defendant had a clear, underlying and conscious motive/objective in acting the way they did.
- Acting knowingly: This is where the defendant was certain that the outcome that resulted would be what they’d get from acting in that way and manner.
- Acting recklessly: Here, the defendant consciously disregards a substantial and unjustified risk.
- Acting negligently: The defendant in this instance fails to perform a duty which they were bound or obligated to perform and this results in a crime. Most times, this is the result of sheer recklessness and a laissez-faire attitude to detail.
- Acting fraudulently: This happens when parties deal in bad faith or dishonestly with others, especially in business.
A good example of this is found in Section 419 of the Criminal Code which deals with Advance Fee Fraud.
