WHAT IS CRIME?

WHAT IS CRIME?

By Titus Ik. Nnabugwu, LLB, BL, JCD

Introduction

Every politically organized society or what we may call a State is said to possess two prominent attributes namely, a definite population and a legal system. The interaction between these two attributes is aimed at securing social order. The establishment of order in a society is a foundational requirement before the institution of any system of control to regulate the conduct of various people in a society[1]. Each society thus in a bid to guarantee their further existence considers it indispensable to institute a system of common social principles, aimed at presenting a common resistance from what are considered to be fundamental values that bind the society together and giving expression to the means by which deviants who are responsible for cases of more or less serious deviations are brought back to line or put in check. This is usually through the common act of reprobation and condemnation and punishment of deviations from the norms of social behavior articulated by the society.

In this paper, we shall look at the concept and different definitions of crime offered by jurists and Statutes, assess them and make a conclusion.

Definition of Crime

It has been observed and rightly too that the transient nature of crime makes it very difficult to derive any precise definition of the term, such that in spite of the attempts made by various jurists, a satisfactory definition of crime has not been achieved[2]. This lack of uniformity in the definition of crime is evident from the following remarks by Nathalie Des Rosiers and Steven Bittle that crime is not an objective phenomenon but subject to the way in which certain behavior is understood and responded to by a society:

To ask “what is a crime?” is certainly not a novel endeavour. For decades academics from numerous disciplines (such as law, sociology, and criminology) have struggled to understand various aspects of this question. From studies that examine the factors contributing to the enactment of certain prohibitions or the impact of law and its enforcement, to studies that focus on the events that precede the decriminalization of certain behaviour, there are countless examples of scholarly work dedicated to exploring the nature of crime and its control. In the last half of the twentieth century, various scholars noted that crime is not an objective phenomenon and that the way in which certain behaviour is understood and responded to is more a reflection of how society is structured than an indication of any inherent problems with those individuals regarded as criminals[3].

Hence, referring to the subjective nature of crime and its control, Henry and Lanier said that “what counts as crime at one place and time, culture, or location may not be considered criminal at another time, in another culture, or even across the street!”[4] Expressing the same view, R. White and F. Haines said: “There are many diverse conceptions of crime, each of which reflects a different scientific and ideological viewpoint”[5]

Can we from this say that the efforts made to define what a crime is, is an exercise in futility?, or to use the words of Fitzgerald[6], a “sterile and useless” venture? It is submitted that the diversity of views expressed by different authors in different disciplines allows one to think about, and indeed to rethink, what it means to say that something is a crime, that someone is a criminal, and what is expected when employing criminal law to respond to unwanted behaviour.

Etymology of the word Crime

The word “Crime” derives originally from the Latin word crimen –inis and has two categories of meanings: 1) an accusation or charge 2) the fault, guilt, crime with which a person is charged[7]. The Greek expression of the word “crime” is krimos and it is synonymous to the Sanskrit word krama which means “social order”. We can thus say that with regard to the literal meaning of crime, “in common parlance, the word crime is applied to those acts that go against social order and are worthy of serious condemnation”[8].

The General Meaning of Crime

The Oxford English Dictionary defines Crime as “an act punishable by law as forbidden by statute or injurious to public welfare”, while Oxford Advanced Learners Dictionary of Current English defines it as “an offence for which one may be punished by law”[9]. There is no doubt that to define a crime as an act injurious to public welfare is very wide, for in the present day complex society, it would include many things like misleading adverts and selling adulterated food or unclean sachet water.

Black’s Law Dictionary defines crime as “an act that the law makes punishable, the breach of a legal duty treated as the subject matter of a criminal proceeding”[10]; and an offence as “a violation of the law; a crime often a minor one”. It clarified the relationship between the two terms “crime” and “offence” thus:

The terms ‘crime’, ‘offense’, and ‘criminal offense’ are all synonymous, and ordinarily used interchangeably. Offense may comprehend every crime and misdemeanor, or may be used in a specific sense as synonymous with ‘felony’ or with misdemeanor’, as the case may be, or signifying a crime of lesser grade, or an act not indictable, but punishable summarily or by forfeiture of a penalty (22 C.J.S Criminal Law §3, at 4 (1989)[11]  

We have noted already that there is no precise definition of crime, and so we can still have an understanding of the word by examining different definitions put forward by different jurists.

Crime as a “Public Wrong”

It was Blackstone who defined Crime as “an act committed or omitted in violation of a public law either forbidding or commanding it”[12]. In other words, for him, crime is an act in violation of public law. This definition has its own problems and has been criticized, for it immediately gives rise to the question, what is public law? Again public law has no one definition and so has several accepted meanings. According to J. Austin, public law is identical with “Constitutional Law”. This being so, crime would mean an act done in violation of constitutional law. From this perspective, the definition would thus cover only political crimes, namely crimes against the state and crimes like arbitrary deprivation of life, personal liberty and property leaving aside a vast area of other criminal behavior. On the other hand, since some jurisdictions interpret public law to include both constitutional law and Criminal law, it would still be meaningless to define crime using the expression “criminal law” as that would amount to arguing in a circle: What is crime? – A violation of criminal law. What is criminal law? - The law that deals with crimes. In this sense, the definition of crime offered by Blackstone is considered to be unsatisfactory. Moreover, even if we take another accepted meaning of public law to mean “all positive law” or “municipal law” made by the State, crime would then mean an act done in violation of all positive laws, which would not be true in all cases, for there are many acts though done in breach of the law that are not crimes, such as packing your car in a wrong place.

Blackstone, perhaps visualizing the inadequacy of his first definition of crime tried to give a modified one by delineating crime as a public wrong, “a violation of the public rights and duties due to the whole community considered as a community in its social aggregate capacity”[13]. In spite of this modification, Farmer holds that the definitions of Blackstone are adequate only as general descriptions, but insufficient to constitute a formal precise definition holding true for all crimes[14].

Crime as a “Moral Wrong”

Crime has also been defined as “an act forbidden by law and which is at the same time revolting to the moral sentiment of the society”[15]. This definition is equally considered unacceptable because there are acts which though not immoral, are classified as highly criminal, such as treason. Treason is anything done to replace the governing body of a State and in all Penal Codes, it is considered as heinous crime in the highest degree. This is so not because the moral sentiments of the society are being affected but because of the security and stability of the government. In the same way, there are acts which are highly immoral but not criminal. For instance, an expert swimmer who stands by the side of a river and sees a child drowning but makes no effort to save the child, and the child dies by drowning, can be said to have committed a highly immoral act but definitely not a criminal wrong. In other words, it cannot be said that every crime is morally wrong or that every conduct which is morally wrong is a crime.

Crime as a “Legal and Procedural Wrong”

Crime has also been defined in terms of the proceedings adopted in vindicating the wrong in question. As a legal wrong, crime is an act which is prohibited and made punishable by law. Hence G. Williams defines a crime as “an act capable of being followed by criminal proceedings having a criminal outcome, and a proceeding or its outcome is criminal if it has certain characteristics that mark it as criminal”[16]. In other words, for him, crime is a legal wrong that can be followed by criminal proceedings which may result in punishment. He also pointed out that the distinction between a crime and civil wrong cannot be stated as depending upon what is done, because what is done (or not done) may be the same in each case. As a result, the true distinction resides not in the nature of the wrongful act but in the legal consequences that may follow it[17]. The dictum of Lord Atkin is also in line with this view when he said: “The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: is the act prohibited by penal consequences?”[18]

Elizabeth A. Martin also defined crime in connection with a procedural wrong in addition to being a public wrong. According to her, a crime is “An act (or sometimes a failure to act) that is deemed by statute or by the common law to be a public wrong and is therefore punishable by the state in criminal proceedings”[19].

Crime as a Creation of Government Policy

It was Russell who observed that to define crime is a task which has so far not been satisfactorily accomplished by any writer. In his view, criminal offences are basically the creation of a criminal policy adopted from time to time by those sections of the community who are powerful or astute enough to safeguard their own security and comfort causing sovereign power in the State to repress conduct which they feel may endanger their position[20]. From this perspective, a crime is anything that the State has determined as being criminal and punishable[21].   It is submitted that once crimes continue to be created by the government, it would be difficult to give a true definition of the nature of crime, as each country and each government will have to determine what constitutes crime based on their peculiar situations. A typical example is what Nigeria is currently doing with kidnapping.

Crime from a Normative Perspective

A normative definition views crime as deviant behavior that violates prevailing norms, i.e. cultural standards specifying how humans ought to behave. This approach considers the complex realities surrounding the concept of crime and seeks to understand how changing social, political, psychological, and economic conditions may affect the current definitions of crime and the forms of legal, law enforcement, and penal responses made by the state[22].

Crime as a violation of Individual Rights

In modern conceptions of natural law, crime is characterized as the violation of individual rights. Since rights are considered as natural, rather than man-made, what constitutes a crime is also natural, in contrast to laws, which are man-made. This view is illustrated by the saying that a smuggler would be an excellent citizen, "had not the laws of his country made that a crime which nature never meant to be so."

Natural law theory therefore distinguishes between "criminality" which is derived from human nature, and "illegality" which is derived from the interests of those in power. The two concepts are sometimes expressed with the phrases malum in se and malum prohibitum. A crime malum in se is argued to be inherently criminal, and is characterized by universality and timelessness e.g., murder; whereas a crime malum prohibitum is argued to be criminal only because the law has decreed it so, e.g. gambling. This view leads to a seeming paradox, that an act can be illegal but not a crime, while a criminal act could be perfectly legal[23].

Definition of Crime by Nigerian Jurists

C.O. Okonkwo makes it clear that it is not easy to define a crime so as to indicate from the nature of the act precisely what is crime and what is not a crime. Hence, he states categorically that any definition of a crime based on the intrinsic quality of an act is bound to fail[24]. He equally maintains that in both criminal and Penal Code, the word “offence” rather than “crime” is used, and would appear to be used interchangeably, and that even the courts use both terms indiscriminately[25]. Hence, instead of asking the question, what is a crime?, he asks, “What, then, is an offence?” In answer to this question, he identified with the school of thought that defined crime in terms of procedure. According to him, “The legal definition of an offence is essentially a definition in terms of procedure. As far as the courts are concerned, it is criminal procedure which marks off crime from a civil wrong…[26]”.

 O. Doherty agreed wholly with Okonkwo that for the Nigerian courts, the word crime is synonymous with the word offence and are used interchangeably[27]. In offering his own definition of crime he said:

A crime is an act or omission which under any written law is deemed to be a crime, thus attracting punishment. The hallmark of a crime, thereof is the singular criterion of the act or omission complained of or alleged, being designated in a statute, be it an act of the Federation, a Law of a State, an Edict of a State or a by-law of a local government[28].

 For Doherty then, one common feature of a crime is that it must be so regarded or so called by a written law. In other words, Crime or an offence is what a statute says it is[29].

The Definition of Crime by Nigerian Statutes

The Nigerian statutes defined what should be regarded as a crime and what should not be considered to be a crime, and so whatever in not expressly stated by the statutes as crime or offence can never be an offence or a crime. This is well established by the Constitution itself when it provides as follows:

Subject as otherwise provided by this Constitution a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, and subsidiary legislation or instrument under the provisions of a law[30].

By this constitutional provision, a written law will not only define the offence but must equally prescribe the penalty for it. In other words, as a general rule, an act or omission is not a criminal offence unless its definition and the punishment for it are contained in a written law, the only exception to this being contempt of court[31]. It is noteworthy that the constitution did not use the word crime but “offence”.

Section 2 of the Criminal Code defines an offence as follows: “An Act or omission which renders the person doing the act or making the omission liable to punishment under this code, or under any Act or law, is called an offence[32]”.

Equally the Penal Code provides as follows: “Except where otherwise appears from the context, the word “offence” includes an offence under any law for the time being in force[33]”

From the two definitions of offence shown above, it becomes evident that the criminal quality of an act is that the act in question is prohibited with penal consequences, and that the only way to discover whether a conduct constitutes a crime or offence is to find out whether it is punishable as a crime.

Crime and the Principle of Legality

The principle of legality is defined by Ola Babalola as the legal ideal that requires the clarity, ambiguity and understandability of all laws, and also requires decision makers to resolve disputes by applying legal rules that have been declared beforehand and not to alter the legal situation retrospectively by discretionary, arbitrary, illegal or extra-legal departures from the written or established laws[34].  Hence, in relation to crime and criminal law, it is a general prohibition on the imposition of criminal sanctions for acts or omissions that were not criminal at the time of their omission or commission.  This principle is clearly embedded in section 36 (12) of the Constitution of the Federal Republic of Nigeria, 1999, (As Amended) to the effect that “a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law”.

From this constitutional provision, it becomes evident that whatever act that will be delineated as a crime and punishable in Nigeria must be defined as such by a written law and the punishment for it clearly stated. This is in line with the principle enunciated in Article 11 (2) of the Universal Declaration on Human Rights, 1948 which states:

No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed[35].

This principle that whatever will amount to a crime must be rooted in the Nigerian law came out very eloquently in the case of F.R.N v. Ifegwu[36].  In this case the Respondent was one of the accused persons arraigned and tried before the Failed Banks Tribunal, Lagos. He as a director of Alpha Merchant Bank Plc. from 2 June, 1988 till sometime in 1993 was alleged to have "over-utilized foreign exchange, for which he did not provide equivalent naira cover for the amount." The court of Appeal to which the case was referred as case stated held that “(1) There is no crime known to Nigerian Law as 'fraudulently granting credit facilities'.(2) Conviction on a crime which is unknown to law is unconstitutional and must not be allowed to stand.”. The Supreme court latter affirmed this decision when it held that neither the Constitution nor the Failed Bank Decree No. 25 of 1994 was meant to be retroactive:

Section 33(8) of the 1979 Constitution which was unsuspended and was then applicable also forbade retroactivity of criminality as follows: “No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence; and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed." It follows that Decree No. 25 of 1994 and section 33(8) of the 1979 Constitution were in harmony. There, was no conflict. That circumstance clearly upheld a fundamental principle of constitutional liberty based on the notion that a person is not to be punished for an act which was not a crime at the time it was done: see Aoko v. Fagbemi (1961) 1 All NLR 400. See also Ogbomor v. The State (1985) 1 NWLR (Pt.2) 223 at 233 where this court said that as a result of the immunity from trial and conviction of a person with respect to an act or omission which at the time of its commission or omission did not constitute any offence under the law, no person can be so tried and convicted on it[37].

Hence, from the intendment of the Nigerian Constitution and the judicial decisions of the Courts, there is no criminal retroactivity, that is, there is no retroactive crime and no retroactive law. In other words, for an act to constitute a crime in Nigeria, it must be a crime at the time it was committed and clearly defined as a crime in a written law with a punishment for it equally prescribed.

Conclusion

We have tried to examine the meaning and definition of crime. We have equally tried to establish the fact that there is no one definition of crime that is satisfactory to all. This is because crime is considered to be a subjective phenomenon varying from State to State and from one country to another. The nature of crime is such that it is dynamic and this accounts for the difficulty in defining it accurately. However, in Nigeria because of the constitutional provision, whatever will amount to a crime or an offence must be contained in a written law and a punishment for it prescribed. From this background, we humbly offer a modest definition of crime as an act or an omission which is prohibited by the written law or enactment of a State and the punishment of which is prescribed in the written law in force at the time of the commission or omission.

---

[1] J.O. Akintayo & A. Sanni, “Methods of Social Control through Law“ in A. Sanni (ed.), Introduction to Nigerian Legal Method, Obafemi Awolowo University Press Ltd, Ile-ife, 2006, p. 78.

[2] K. Glory Nirmala & I. Serkaddis Zegeye, “The Concept of Crime” in www.abyssinialaw.com/index.php/study-online; Accessed on 9/7/12.

[3] Law Commission of Canada (ed.), What is Crime? Defining Criminal Conduct in Contemporary Society,  UBS Press, Vancouver-Toronto, 2004,  p. viii, in www.rdo-olr.uottawa.ca/index2.php?option=com_sobi2...; Accessed on 9/7/12

[4] S. Henry,  and M. Lanier,  What Is Crime? Controversies over the Nature of Crime and What to Do about It,  Rowman and Littlefield Publishers, New York:2001, p. 7

[5] R. White and F. Haines, Crime and Criminology, 2nd ed., Oxford University Press, Oxford: 2000, p. 4–5

[6] J.P. Fitzgerald, “A Concept of Crime” in Criminal Law Review, (1960)257-262.

[7] D.P. Simpson, Cassell’s Latin Dictionary, Cassell Publisher’s Ltd, London: 1959, p. 158.

[8] K. Glory Nirmala & I. Serkaddis Zegeye, “The Concept of Crime” in www.abyssinialaw.com/index.php/study-online; Accessed on 9/7/12.

[9] A.P. Cowie, Oxford Advaced Learner’s Dictionary of Current English, 4^th ed., Oxford University Press, Oxford, 1990, p.282.

[10] B.A. Garner (ed.), Black’s Law Dictionary, 8^th ed., West Publishing Company, U.S.A, 2004, p. 399.

[11] Ibid., p. 1110.

[12] W. Blackstone, Commentaries on the Laws of England, 4 vols, (1765), iv, 5, Oxford: Clarendon, Reprinted by University of Chicago Press in 1979,  cited in L. Farmer, “The Obsession with definition: the Nature of Crime and Critical Legal Theory”, Social Legal Studies, (1996),5,57, in http://sls.sagepub.com/cgi/content/refs/5/1/57; Accessed on 9/7/12.

[13] Ibid.,

[14] L. Farmer, “The Obsession with definition: the Nature of Crime and Critical Legal Theory”, Social Legal Studies, vol. 5(1996) 63, in http://sls.sagepub.com/cgi/content/refs/5/1/57; Accessed on 9/7/12.

[15] K. Glory Nirmala & I. Serkaddis Zegeye, “The Concept of Crime“, Op.cit.,

[16] G. Williams, “The Definition of Crime“, in Current Legal Problems, vol. 8, (1955), p.130

[17] G. Williams, Learning the Law, 11^th Ed., Stephens and Sons, London: 1982, p.3. See also Per Lord Esher M.R in Seaman v Burley (1896) 2 Q.B. at 346.

[18] Proprietary Articles Trade Association v A.G. for Canada (1931) A.C. 310 at 234

[19] E.A. Martin (ed.), Oxford Dictionary of Law, Oxford University Press, Oxford, 1996, p.106.

[20] C.S. Kenny, Outline of Criminal Law, 19^th Ed., Cambridge University Press, United Kingdom: 1966.

[21] “What is considered a crime?” in http://criminallaw.hubpages.com/hub/An-Introduction-to-UK-Criminal-Law; Accessed on 10/7/12.

[22] “Definition of Crime” in New World Encyclopedia, http://www.newworldencyclopedia.org/entry/Crime#Definition_of_Crime; Accessed on 10/7/12

[23] Ibid.,

[24] C.O. Okonkwo , “Criminal Law” in C.O. Okonkwo (ed.), Introduction to Nigerian Law, Sweet & Maxwell, London: 1980, p.212.

[25] C.O. Okonkwo, Okonkwo and Naish on Criminal Law in Nigeria, 2^nd ed., Spectrum Books Ltd, Ibadan: 2005, pp. 18-19.

[26] Ibid., 19.

[27] O. Doherty, Criminal Procedure in Nigeria: Law and Practice, Blackstone Press Ltd, London: 1990, p.1.

[28] Ibid.,

[29] J.A. Agaba, Practical Approach to Criminal Litigation in Nigeria (Pre-Trial & Trial Proceedings), 1^st ed., Law Lord Publications, Abuja: 2011, p. 1.

[30] Section 36 (12) Constitution of the Federal Republic of Nigeria 1999 (As Amended)

[31] A.O. Obilade, The Nigerian Legal System, Spectrum Books Ltd, Ibadan: 2005, pp. 5-6.

[32] Section 2 of Criminal Code, Cap C.28, Laws of the Federation, 2004

[33] Section 28 of Penal Code.

[34] O. Babalola, “The Principles of Legality in Nigeria’s Contemporary Criminal System: Myth or Reality”, p.2  in http://www.scribd.com/doc/3099693/The-Principles-of-Legality-in-Nigeria; Accessed on 26/7/12

[35] I. Brownlie (ed.), Basic Documents on Human Rights, 3^rd Ed., Clarendon Press, Oxford: 1992, p. 22.  See also Article 49 of Charter of Fundamental Rights of the European Union; Article 8 of The French Declaration of the Rights of Man 1789; Bavarian Code of 1813.

[36] F.R.N v. Ifegwu (2003) 15 NWLR (Pt.842)113; See also Udokwu v Onugha (1963) 7 EN. L.R.1.; Aoko v Fagbemi (1961) 1 All N.LR. 400.

[37] F.R.N v. Ifegwu (2003) 15 NWLR (Pt.842)113