NATURE AND SCOPE OF CRIMINAL
LAW
The criminal law is instituted as a mechanism to protect society and the individual against injuries that
humans are capable of, and have shown themselves to be capable of, inflicting on other humans and
institutions.
The Wolfendon Report in 1957 gave the following as the functions of the criminal law, which seeks to:
preserve public order and decency
protect the citizen from what is offensive or injurious
provide sufficient safeguards against exploitation and corruption of others, particularly those who
are especially vulnerable because they are young, weak in body or mind, inexperienced, or in a state
of special physical, official or economic dependence.
Criminal law is deemed to be an instrument of safety. Criminal law is institutionalized because it is not
only about the infringements on private rights but also has an effect on the public as a whole. It is aimed
at forbidding conduct that threatens to do substantial harm to society, even if the victim is just an
individual.
Why Should Criminal Conduct be Defined?
The American Law Institute’s Model Penal outline provided that criminal conduct must be defined in
order:
• To safeguard conduct that is without fault from condemnation as criminal
• To give fair warning of the nature of the conduct declared to be an offence
• To differentiate on reasonable grounds between serious and minor offenses
In short, a person must know what conduct is prohibited as a crime. PARKER v GREEN
IS CRIMINAL LAW SEPARATE FROM MORALITY?
Criminal law is based upon moral principle – however one looks at it. However, the problem is that none
of the moral codes can claim any validity except by virtue of the religion or creed on which it is based. In
PROPRIETARY ARTICLES TRADE ASSOCIATION v AG FOR CANADA, Their Lordships opined that
“Morality and criminality are far from co-extensive; nor is the sphere of criminality
necessarily part of a more extensive field covered by morality – unless the moral
code necessarily disapproves all acts prohibited by the State, in which case the
argument moves in a circle”
In terms of private morality, there are two schools of thought as to whether it should be classified as
law. Lord Devlin, who belonged to one school posits that it is not possible to set theoretical limits to the
power of the State to legislate against immorality (private ones of course). He asserts that it is not
possible to determine in advance areas of immorality the law should not be made to enter. The other
1|Page
,school also posit that the immorality of an action is not itself sufficient reason to criminalize it –
therefore, as long as the act does not harm any other person, perhaps except the actor himself, there is
no justification in criminalizing the act. They further contend that whilst it may legitimate to criminalize
an act that causes harm to another person, but where there is no victim, it is pointless to criminalize the
act and such conduct they term as victimless acts. GLAH v THE REPUBLIC.BEATTY v GILLBANKS
COMMISSIONER OF POLICE v. BELLO
Facts: the appellant prepared some documents for the complainant who was illiterate and charged an
amount for the services. He however issued a receipt for a lesser sum and was subsequently convicted
of stealing. Held the act complained of did not constitute a crime within our statute books. For it to be
stealing the money must have been dishonestly appropriated and to be larceny by trickery the said
property must have passed into the possession of the appellant by trickery with the complainant not
willing to part with the property but only possession. From the facts the money was paid as a result of a
valid contract thus not a crime and the only remedy available is through a civil action
Comment; the fact that an act is wrong does not impute as a crime unless the said act is defined as such
within the statute books. Moreover, some immoral acts as in the present case cheating are not crime as
they do not affect the public as a whole. The mere fact that an act is morally wrong does not mean it is a
crime.
WHAT IS A CRIME
Crime does not lend itself to easy definition. As such, an effort is made only to describe it. In law, a crime
is defined by reference to the legal consequences of the act in question. Therefore, a crime is an act that
may be followed by criminal proceedings.
From this, a criminal proceeding is where the proceeding imposes a penalty for an offence against the
public, and the penalty is meted out by judges according to the magnitude of the offence. PARKER v
GREEN, AMAND v HOME SECRETARY, BROWN v ALLWEATHER GROUTING CO. LTD. In short, an act is a
crime only if it is prohibited by statute and there is a penalty attached to the doing of that act.
A crime is differentiated from a civil wrong. Both may be an act or omission. What distinguish between
the two is whether society has designated such an action or omission to be as such.
Civil wrongs are actions or omissions that are unacceptable but are personal in their effect rather than
notionally affecting the whole society and for which society might not consider it necessary to punish
the offender, so to speak. A crime is that act or omission that the State would punish
Until the State legislates to CRIMINALIZE an act, it is not a CRIME. Therefore, an immoral act or omission
is not necessarily a crime, until a law is passed making it a crime. Glah v The Republic. For example, in
Ghana, it is not a crime to engage in an adulterous relationship, or to engage in fornication. From this, it
can be deduced that what amounts to a crime in one country may not be so in another country.
Crimes may be classified in reference to their conceptual immorality or inherent evil. In this respect, a
crime may either be
malum in se; or
2|Page
, malum prohubitum
A malum in se crime is one that is wrong or evil in itself. This refers to conduct that is thought to be
inherently wrong by nature – independent of laws governing that conduct. Eg. Murder.
A malum prohibitum crime is one that is wrong because it is prohibited – that is, conduct that is
considered criminal only because it is prohibited by law – without such prohibition it would not be
considered a crime. COLLMAN V. MILLS
Case:
Facts: is
Held: the byelaw was good and the defendant was guilty and liable for the act of His servant that act
having been performed in the general scope of his employment although contrary to the orders of the
master.
Crimes are also classified according to their gravity and the seriousness society attaches to them. This is
seen in Section 296 of Act 30. They are
i. Offences punishable by death.
ii. First degree felonies
iii. Second degree felonies
iv. Misdemeanours
v. Offences punishable by fine
Offences punishable by death – also known as capital offences – are considered the most serious
offences – e.g. murder, treason and high treason
The next in line in terms of gravity are first degree felonies – in Ghana, first degree felonies normally
attract a prison term of up to life sentence – examples are rape, and causing harm with the use of an
offensive weapon
Second degree felonies are considered less in gravity than first degree felonies – in Ghana, they attract a
term of imprisonment not exceeding 10 years – examples abortion, causing harm, and threat of death.
3|Page
, However, offences involving dishonesty, though second degree felonies, attract sentences of up to 25yrs
- these include stealing, robbery, defrauding by false pretences etc.
Misdemeanours are less in gravity than felonies – in Ghana, misdemeanours normally attract a term of
imprisonment not exceeding 3 years – examples are threat of harm, assault, and abduction. Then again,
a fine (sum of money) may be imposed in addition to a prison term
However, where the only penalty for an offence is a fine, then the offence is a very minor one –
examples are wilful neglect to fill up or transmit the certificate of a marriage to the Registrar of
marriages; indecent inscriptions like advertisements in relation to venereal diseases or an advertisement
claiming aphrodisiac properties for a preparation without the authorization of the Minister for Health
etc.
PRINCIPLE OF LEGALITY
This principle is captured in the Latin maxim nullum crimen, nulla poena sine lege praevia lege poenali –
shortened to nullum crimen, nulla poena sine lege - No crime is committed and no punishment can be
imposed without the act having been prohibited and the punishment having been prescribed by a law
enacted before the act was committed.
It is divided into two parts:
Nullum crimen sine praevia lege
Nulla poena sine praevia lege
Nullum crimen sune praevia lege
This is to the effect that, an act or omission to act is only a crime if before the act or omission was
committed, there was a law declaring the act or omission in question as a punishable offence. Article
19(5) of the 1992 Constitution TSATSU TSIKATA v THE REPUBLIC HASSAN v THE REPUBLIC
Nulla poena sine praevia lege
This is to the effect that, an act or omission to act is only a crime if a specific penalty has been previously
prescribed for that act or omission.
In Ghana, this principle is carried further on two legs:
• the offence must be written in a law and defined
• a penalty must be prescribed for the offence
ARTICLE 19(11) OF 1992 CONSTITUTION
DEBRAH v THE REPUBLIC
The appellant was charged under s 53(A) of Act 370 with a conduct with was disrespectful and insulting
to the chief of kajebi. The act which the prosecution alleged amount to disrespect of the chief was
collecting stone from the entrance of the palace. At trial the counsel for the defendant appellant made a
submission of no case which was declined by the trial judge. He appeals from the decision overruling the
4|Page
LAW
The criminal law is instituted as a mechanism to protect society and the individual against injuries that
humans are capable of, and have shown themselves to be capable of, inflicting on other humans and
institutions.
The Wolfendon Report in 1957 gave the following as the functions of the criminal law, which seeks to:
preserve public order and decency
protect the citizen from what is offensive or injurious
provide sufficient safeguards against exploitation and corruption of others, particularly those who
are especially vulnerable because they are young, weak in body or mind, inexperienced, or in a state
of special physical, official or economic dependence.
Criminal law is deemed to be an instrument of safety. Criminal law is institutionalized because it is not
only about the infringements on private rights but also has an effect on the public as a whole. It is aimed
at forbidding conduct that threatens to do substantial harm to society, even if the victim is just an
individual.
Why Should Criminal Conduct be Defined?
The American Law Institute’s Model Penal outline provided that criminal conduct must be defined in
order:
• To safeguard conduct that is without fault from condemnation as criminal
• To give fair warning of the nature of the conduct declared to be an offence
• To differentiate on reasonable grounds between serious and minor offenses
In short, a person must know what conduct is prohibited as a crime. PARKER v GREEN
IS CRIMINAL LAW SEPARATE FROM MORALITY?
Criminal law is based upon moral principle – however one looks at it. However, the problem is that none
of the moral codes can claim any validity except by virtue of the religion or creed on which it is based. In
PROPRIETARY ARTICLES TRADE ASSOCIATION v AG FOR CANADA, Their Lordships opined that
“Morality and criminality are far from co-extensive; nor is the sphere of criminality
necessarily part of a more extensive field covered by morality – unless the moral
code necessarily disapproves all acts prohibited by the State, in which case the
argument moves in a circle”
In terms of private morality, there are two schools of thought as to whether it should be classified as
law. Lord Devlin, who belonged to one school posits that it is not possible to set theoretical limits to the
power of the State to legislate against immorality (private ones of course). He asserts that it is not
possible to determine in advance areas of immorality the law should not be made to enter. The other
1|Page
,school also posit that the immorality of an action is not itself sufficient reason to criminalize it –
therefore, as long as the act does not harm any other person, perhaps except the actor himself, there is
no justification in criminalizing the act. They further contend that whilst it may legitimate to criminalize
an act that causes harm to another person, but where there is no victim, it is pointless to criminalize the
act and such conduct they term as victimless acts. GLAH v THE REPUBLIC.BEATTY v GILLBANKS
COMMISSIONER OF POLICE v. BELLO
Facts: the appellant prepared some documents for the complainant who was illiterate and charged an
amount for the services. He however issued a receipt for a lesser sum and was subsequently convicted
of stealing. Held the act complained of did not constitute a crime within our statute books. For it to be
stealing the money must have been dishonestly appropriated and to be larceny by trickery the said
property must have passed into the possession of the appellant by trickery with the complainant not
willing to part with the property but only possession. From the facts the money was paid as a result of a
valid contract thus not a crime and the only remedy available is through a civil action
Comment; the fact that an act is wrong does not impute as a crime unless the said act is defined as such
within the statute books. Moreover, some immoral acts as in the present case cheating are not crime as
they do not affect the public as a whole. The mere fact that an act is morally wrong does not mean it is a
crime.
WHAT IS A CRIME
Crime does not lend itself to easy definition. As such, an effort is made only to describe it. In law, a crime
is defined by reference to the legal consequences of the act in question. Therefore, a crime is an act that
may be followed by criminal proceedings.
From this, a criminal proceeding is where the proceeding imposes a penalty for an offence against the
public, and the penalty is meted out by judges according to the magnitude of the offence. PARKER v
GREEN, AMAND v HOME SECRETARY, BROWN v ALLWEATHER GROUTING CO. LTD. In short, an act is a
crime only if it is prohibited by statute and there is a penalty attached to the doing of that act.
A crime is differentiated from a civil wrong. Both may be an act or omission. What distinguish between
the two is whether society has designated such an action or omission to be as such.
Civil wrongs are actions or omissions that are unacceptable but are personal in their effect rather than
notionally affecting the whole society and for which society might not consider it necessary to punish
the offender, so to speak. A crime is that act or omission that the State would punish
Until the State legislates to CRIMINALIZE an act, it is not a CRIME. Therefore, an immoral act or omission
is not necessarily a crime, until a law is passed making it a crime. Glah v The Republic. For example, in
Ghana, it is not a crime to engage in an adulterous relationship, or to engage in fornication. From this, it
can be deduced that what amounts to a crime in one country may not be so in another country.
Crimes may be classified in reference to their conceptual immorality or inherent evil. In this respect, a
crime may either be
malum in se; or
2|Page
, malum prohubitum
A malum in se crime is one that is wrong or evil in itself. This refers to conduct that is thought to be
inherently wrong by nature – independent of laws governing that conduct. Eg. Murder.
A malum prohibitum crime is one that is wrong because it is prohibited – that is, conduct that is
considered criminal only because it is prohibited by law – without such prohibition it would not be
considered a crime. COLLMAN V. MILLS
Case:
Facts: is
Held: the byelaw was good and the defendant was guilty and liable for the act of His servant that act
having been performed in the general scope of his employment although contrary to the orders of the
master.
Crimes are also classified according to their gravity and the seriousness society attaches to them. This is
seen in Section 296 of Act 30. They are
i. Offences punishable by death.
ii. First degree felonies
iii. Second degree felonies
iv. Misdemeanours
v. Offences punishable by fine
Offences punishable by death – also known as capital offences – are considered the most serious
offences – e.g. murder, treason and high treason
The next in line in terms of gravity are first degree felonies – in Ghana, first degree felonies normally
attract a prison term of up to life sentence – examples are rape, and causing harm with the use of an
offensive weapon
Second degree felonies are considered less in gravity than first degree felonies – in Ghana, they attract a
term of imprisonment not exceeding 10 years – examples abortion, causing harm, and threat of death.
3|Page
, However, offences involving dishonesty, though second degree felonies, attract sentences of up to 25yrs
- these include stealing, robbery, defrauding by false pretences etc.
Misdemeanours are less in gravity than felonies – in Ghana, misdemeanours normally attract a term of
imprisonment not exceeding 3 years – examples are threat of harm, assault, and abduction. Then again,
a fine (sum of money) may be imposed in addition to a prison term
However, where the only penalty for an offence is a fine, then the offence is a very minor one –
examples are wilful neglect to fill up or transmit the certificate of a marriage to the Registrar of
marriages; indecent inscriptions like advertisements in relation to venereal diseases or an advertisement
claiming aphrodisiac properties for a preparation without the authorization of the Minister for Health
etc.
PRINCIPLE OF LEGALITY
This principle is captured in the Latin maxim nullum crimen, nulla poena sine lege praevia lege poenali –
shortened to nullum crimen, nulla poena sine lege - No crime is committed and no punishment can be
imposed without the act having been prohibited and the punishment having been prescribed by a law
enacted before the act was committed.
It is divided into two parts:
Nullum crimen sine praevia lege
Nulla poena sine praevia lege
Nullum crimen sune praevia lege
This is to the effect that, an act or omission to act is only a crime if before the act or omission was
committed, there was a law declaring the act or omission in question as a punishable offence. Article
19(5) of the 1992 Constitution TSATSU TSIKATA v THE REPUBLIC HASSAN v THE REPUBLIC
Nulla poena sine praevia lege
This is to the effect that, an act or omission to act is only a crime if a specific penalty has been previously
prescribed for that act or omission.
In Ghana, this principle is carried further on two legs:
• the offence must be written in a law and defined
• a penalty must be prescribed for the offence
ARTICLE 19(11) OF 1992 CONSTITUTION
DEBRAH v THE REPUBLIC
The appellant was charged under s 53(A) of Act 370 with a conduct with was disrespectful and insulting
to the chief of kajebi. The act which the prosecution alleged amount to disrespect of the chief was
collecting stone from the entrance of the palace. At trial the counsel for the defendant appellant made a
submission of no case which was declined by the trial judge. He appeals from the decision overruling the
4|Page
