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Defences 7 (Exemptions from criminal liabilty)
Constitutional law of Ghana and its history (FLAW306)
University of Ghana
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GENERAL DEFENCES I (Exemptions from Criminal Liability)
The law presumes that all are equal before the law. This generally means that the law, irrespective of one’s social status, age, wealth, influence, circumstance of birth has no regard to any of these considerations and apply the same kind of treatment to all persons. Nonetheless, that is the general principle of law and for every general rule there are exceptions.
Exemptions under Civil Law
When one comes to civil law, like tort, the right to sue and be sued is regulated such that it is not everyone that can sue and be sued in the law courts.
Infants under the age of twenty-one years cannot sue and be sued. If they intent to sue, they can only do that through next of kin or persons acting in loco parentis. They can likewise be sued through the same means.
A person suffering from mental disorder or person cannot also directly sue or be sued.
Under article 57(5) the President of the Republic enjoys civil immunities in the courts and cannot be sued while in office
Parliamentarians also enjoy some immunities in respect of civil claims in the performance of their work.
Doctrine of Sovereign Immunity exempt acts and infractions of sovereigns, their agents, diplomats from civil and criminal prosecutions.
Exemptions under Criminal Law
Ordinarily any person of full age and of sound mind should be held responsible for his actions. The law recognizes however that certain categories of persons are incapable of making moral choices. These persons can’t determine whether an action is right or wrong, either because of their immaturity or because of defects in their mental faculties as a result of an illness or a retardation. Sometimes, it is self-inflicted, like voluntary intoxication.
Certain categories of persons are exempted from criminal liability in respect of crimes committed which ordinarily should result in their prosecution and punishment if they are culpable.
A limited form of this exemption can be found in the 1992 Constitution in respect of the President. Section 57(5) of the 1992 Constitution exempts the president from criminal prosecution while he remains in office. It reads;
“The President shall not, while in office as President, be personally liable to any civil or criminal proceedings in court.”
The criminal law grants some exemptions from criminal prosecutions. These would be examined here. These are;
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Infancy
Insanity
Insane delusion
Intoxication
Automatism (refer to notes on “Elements of criminal liability-The Physical Element)
1. Infancy (section 26)
When an act has been done which ordinarily constitutes a crime, once it has been done by a child, such a child is exempt from criminal liability. In conforming to international standards, the age of criminal liability is 12 years. Therefore, nothing is a crime which has been performed by a child who is under 12 years old. This is captured in Section 26 of Act 29 as;
“ When a Child is Incapable of Committing Crime.
Nothing is a crime which is done by a person under twelve years of age.
Illustration
A., aged eleven years administers poison to B. A. is deemed not criminally responsible and considered incapable of understanding the consequences of his actions from a legal perspective.”
2. Insanity (section 27 (a)
Section 27 (a) of Act 29 reads;
“When a person is accused of crime, the special verdict provided by the Criminal Procedure Code in the case of insanity shall only be applicable—
(a) if he was prevented, by reason of idiocy, imbecility, or any mental derangement or disease affecting the mind, from knowing the nature or consequences of the act in respect of which he is accused.”
Insanity means ‘mental derangement or unsoundness.’ There is a presumption in all legal systems of the common law that every person is presumed to be sane until the contrary had been proved. This is because in the eyes of the law, every person is responsible for his criminal actions until it is shown that he was insane at the time of the commission of the act.
An insane person is regarded as one with no mind, and therefore to punish him for a criminal act is akin to punishing an animal. Every court is required to ensure that persons
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The accused is kept in detention at the pleasure of the President
What is a disease of the mind?
This refers to any disease which produces a malfunctioning of the mind. The definition is not restricted to the diseases of the brain. The law is not concerned with the brain but the mind. Although mental illness like schizophrenia is the most common basis, the definition is wide enough to include in law, all physical diseases which produce the relevant malfunction, that is they manifest themselves by affecting reasoning. Such diseases include epilepsy, diabetes, sleepwalking, premenstrual syndrome, tumor of the brain or arteriosclerosis.
Arteriosclerosis occurs when the blood vessels that carry oxygen and nutrients from your heart to the rest of your body (arteries) become thick and stiff — sometimes restricting blood flow to your organs and tissues. These plaques can burst, triggering a blood clot. Although atherosclerosis is often considered a heart problem, it can affect arteries anywhere in your body. It is the leading cause of heart attacks, stroke.
Imbecility is a medical condition resulting in moderate to severe intellectual disability arising out of biological, physical or mental factors.
Idiocy is also a form of mental retardation of which people are born with or they acquire in early childhood. They are regarded to have no mind and therefore incapable of understanding anything.
In the case of R v Burgess [1991] 2 WLR 1206 , the appellant attacked a friend with whom he was spending the evening, while the friend was asleep. He hit her on the head with a bottle, then with a video recorder and then attempted to strangle her. He claimed that he was sleepwalking at the time, and pleaded automatism. The court held that automatism came within the M’naghten rules on insanity as any mental disorder which manifested itself in violence and prone to recur, is a disease of the mind.
In another case of Collins alias Derby v The Rep [1987-88] 2 GLR 521 , the appellant was convicted of murder although there was sufficient evidence available to the court that he had a history of insanity. He thought that he was Jesus Christ, being persecuted by the Jews. The mother of the accused as well as a psychiatrist testified on behalf of the accused as to his mental condition. The psychiatrist testified that the appellant was schizophrenic and entertained illusions of grandeur. In giving directions to the jury, the Judge told them that the accused was sound.
Upon appeal, the court held that a senseless killing lacking motive was not by itself an index of a deranged condition of the mind. Other ingredients must supply the doubt of mental instability. But where a history of schizophrenia obtained, it should point to a possible mental defect. Accordingly, since the very murder for which the appellant stood trial could have been predicated on a derangement of mind which the appellant’s history
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and the absence of treatment could provoke, it was the duty of the judge in directing the jury to assist them to come to a conclusion on the accused’s state of mind by carefully explaining the provisions of sections 27 (a) and (b) and 29 (2) of the Criminal Code, 1960 (Act 29) relating to insanity or insane delusions. Consequently, the trial judge’s direction that the appellant “was sound ... and is still sound” was most prejudicial for he thereby prejudged the issues and usurped the function of the jury whose duty was the factual one of assessing the state of mind of the appellant.
In Helegah v Republic [1973] 2 GLR 29 , the appellant, who was living in a cottage with his wife, objected to his wife leaving him and going away with her mother because he suspected that the intention of his mother-in-law was to get his wife married to another man. Angered by his wife’s persistence that she would leave him, the appellant suddenly struck his wife with a cutlass and beheaded her. Even though in his police statement, given within 24 hours of the killing, the appellant remembered every circumstance of the incident very accurately, at his subsequent trial for murdering his wife nearly two-and-a- half years later, he pleaded insanity by relying on amnesia, i. he could not remember whether or not he had killed her. The medical evidence did not establish mental disturbance and there was no evidence that any of the appellant’s ancestors or relatives had had mental illness nor was it established that the appellant himself had previous to or subsequent to the killing suffered any mental illness. He was convicted of murder.
Upon appealing, the court held that the appellant’s conviction was proper because (i) it was settled law that amnesia causing the disappearance of all memory of the events surrounding an alleged crime could not of itself constitute insanity. It was, however, perfectly legitimate to prove a plea of insanity by adducing evidence that an ancestor of an accused had been insane after proof by medical evidence that such a disease was often hereditary in the family. Since it was neither established that any of the appellant’s ancestors or relatives had had mental illness nor that the appellant himself had previous to or subsequent to the killing suffered any mental illness, there was no doubt as to his sanity when he killed his wife. In any case, the appellant’s statement made to the police within a day of the killing demonstrated clearly that the appellant could not have been insane.
3. Insane Delusion
Section 27(b) of Act 29 reads;
“When a person is accused of crime, the special verdict provided by the Criminal Procedure Code in the case of insanity shall only be applicable—
if that person did the act in respect of which that person is accused under the influence of an insane delusion of a nature that renders that person, in the opinion of the jury or of the Court, an unfit subject for punishment in respect of that act.”
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dragged him out of the room, and were forcing him into the vehicle to be taken to the Asantehene to be killed. Some of the men, including his landlord, had guns pointed at him, and were threatening to shoot him if he would not get on the vehicle. He concluded by saying that, in that grave moment, he snatched his cutlass and slashed his way through his assailants in order to save his life. He told the same story on oath at his trial in greater detail. Issaka Moshie was charged with the murder of the child. He appealed. His appeal was successful.
The court held that;
“In our view, the evidence given at the trial of the appellant raised the question whether or not, when he committed the act which he admits he committed, he was under an insane delusion as defined in section 52, sub-section 2 of the Criminal Code, so as, in the opinion of the Court, to render him an unfit subject for punishment. The story consistently told by the appellant does not fit into the known facts; for example, apart from his landlord, and some of the people who arrived on the scene in consequence of the alarm, the people whom the appellant attacked were only women and children, while according to the appellant the people were all men, grown-ups; he never saw a child anywhere near. The story is such that the only impression it gives is that at the moment when he did the act he was living in a world entirely his own and quite different from that in which all other people in the village, who witnessed the scene, were living.”
See: Abugri Frafraa alias Pini Frafra v The Republic [1974] 2 GLR 447
Akpawey v The State [1965] GLR 149
4. Intoxication –
Section 28 of Act 29 deals with the defence of ‘intoxication.’
Under our law, “intoxication’” is not restricted to the taking in of alcohol, but includes a state provided by narcotics or drugs.
Section 28 of Act 29 reads;
“28. Criminal liability of an intoxicated person
(1) Except as provided in this section, intoxication is not a defence to a criminal charge.
(2) Intoxication is a defence to a criminal charge if by reason of the intoxication the person charged, at the time of the act complained of, did not know that the act was wrong or did not know what that person was doing and
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(a) the state of intoxication was caused without the consent of that person by the malicious or negligent act of another person, or (b) the person charged was, by reason of intoxication, insane, temporarily or otherwise, at the time of the act.
(3) Where the defence under subsection (2) is established, then (a) in a case falling under paragraph (a), the accused person shall be discharged, and (b) in a case falling under paragraph (b), the special verdict provided for by the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) in the case of insanity shall apply. (4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed an intention, specific or otherwise, in the absence of which the person charged would not be guilty of the criminal offence.
(5) For the purposes of this section “intoxication” includes a state produced by narcotics or drugs.”
Section 28 of Act 29 looks at whether ‘intoxication’ can be a defence to a criminal charge from two main angles. These are;
a. Involuntary intoxication
b. Voluntary intoxication
Involuntary Intoxication
This arises when a person gets intoxicated without his consent either through the malice or negligence of another person. If either through the malice or negligence of another person an accused person gets intoxicated and engages in a prohibited act, such an accused person would have a complete defence if it is proved that:
a. At the time of the commission of the act he did not know that the act was wrong or
b. He did not know what he was doing.
An example of an involuntary intoxication which arises out of the malice of another person is where a soft drink is laced with a drug by another person without the knowledge or consent of the accused person. If the Accused person drinks the soft drink and gets intoxicated and engages in any prohibited act, he may have a complete defence provided that he did not know what he was doing or during the time that he engaged in the prohibited act, he did not appreciate that the act was wrong.
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intoxicating drink by itself need not result in the intoxication approximating to madness which the law requires to be established to sustain the defence. And those are the principles which must be applied in deciding this appeal.
There is evidence from the appellant that he took akpeteshie, but apart from his bare assertion that he became drunk, there is nothing to show that he became so drunk as not to know the nature of the act he was doing, or that what he was doing was wrong. In fact his own evidence proves that he knew exactly what he was doing; and that evidence of his is confirmed by the fact that after murdering the woman he cut a quantity of palm branches to cover her up completely to conceal the body, to prevent its early discovery.”
What about self –induced intoxication?
Where a person forms an intention to commit a crime and as result deliberately gets intoxicated to such a high degree and then commits the offence, can he plead intoxication as a defence? Such a state of intoxication, deliberately induced by the person who has first formed the intention to commit the offence would not be able to plead the defence of intoxication, no matter how intoxicated he is at the time of committing the offence.
See: Attorney-General for N. Ireland v Gallagher [1963] AC 349
In this case, the appellant was an aggressive psychopath, a disease of the mind which gave him moments of lucidity when he would be his normal self. The sickness would manifest itself from time to time in explosive outbursts, and the taking of alcohol was likely to bring on this outburst. He had a history of abusing the wife. After a discharge from the mental hospital one day, he bought a knife and a bottle of whisky with the intention of killing the wife. The wife had been able to obtain a maintenance order against him and her evidence had resulted in him being detained at the mental hospital. He killed the wife with the knife and a hammer He reported the incident to a neighbor, having drank a good quantity of the whisky. Per Lord Tucker;
“My lords, this case differ from all others in the books in that the accused man, whilst sane and sober, before he took to the drink, had already made up his mind to kill his wife. This seems to me to be far worse-and far more deserving of condemnation- than the case of a man who, before getting drunk, has no intention to kill but afterwards in his cups, whilst drunk, kills another by an act which he would not dream of doing when sober.... the man is a psychopath. That is he has a disease of the mind which is not produced by drink. But it is quiescent. And while it is quiescent he forms an intention to kill his wife. He knows it is wrong but still he means to kill her. Then he gets himself so drunk that he has an explosive outburst and kills his wife. At that moment, he knows what he is doing, but does not know that it is wrong.... he cannot say that he got himself into such a stupid state that he was incapable of an intent to kill.... the wickedness of his mind before he got drunk is enough to condemn him,
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coupled with the act which he intended to do and did do.. before the killing he had discarded his intention to kill or reversed it-and then got drunk-it would be a different matter.”
5. Automatism- Please refer to the lecture notes on the subject in “Elements of criminal liability-The physical element”
READING MATERIALS
HJAN MENSAH BONSU: The General Part of Criminal Law, A Ghanaian casebook, Part I, pages 373-384.
P. K TWUMASI: Criminal Law in Ghana, pages 152- 180.
DAVID ORMEROD & K. LAIRD; Smith and Hogan’s Criminal Law, pages 321-350.
TUTORIAL QUESTIONS
Explain the defence of ‘intoxication’ under the Criminal Offences Act, 1960.
Under what circumstances would insanity and insane delusion be a defence to a criminal charge in Ghana?
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Defences 7 (Exemptions from criminal liabilty)
Course: Constitutional law of Ghana and its history (FLAW306)
University: University of Ghana
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