Classifications of Offences
The offences can be classified in several ways;
some classification may be made merely for the sake of convenience and may not
have legal significance.
He meant that even when classifications have outlived their usefulness, they influence current practice.
Dividing crimes into Felonies and Misdemeanours is one example.
Historically, felonies were crimes punishable by death. Present law
divides felonies into capital offences punishable by death, life imprisonment,
and sentences for stated periods in prison.
On the other hand, a misdemeanour includes crimes punishable by fines of up to a stated time in prison.
The Penal Code Act defines a misdemeanour as any offence
which is not a felony.
- Another classification sorts crimes according to their perceived evil.
This arrangement overlaps the felony and misdemeanour categories
and defines crimes as inherently wrong, i.e. Mala in se. Crimes such as
murder and rape fall into this category.
- The other category refers to crimes only because the law says so, i.e. Mala prohibita. Examples involve offences like parking in a no-parking area, e.t.c.
In practice, there is no clear line separating mala in se and mala prohibita offences. Despite legal theories that cling to the distinction, empirical research has demonstrated that offenders consider many crimes formally classified as mala in see, i.e. they consider their criminal action as informal means to put right a deeply felt wrong.
They may concede that their conduct technically violates formal criminal law, but they believe that what they did was not evil. According to Sociologist Donald Black;
“There is a sense in which conduct regarded
as criminal is often quite the opposite. Far from being an intentional
violation of a prohibition, much crime is moralistic and involves pursuing justice. It is a model of conflict management, possibly a form of punishment,
even capital punishment. Viewed about the law, it is self-help. To the
degree that it defines or responds to the conduct of someone else, the victim
as deviant, crime is social control”.
Despite these empirical findings, legal theories maintain
that some crimes are inherently evil.
Also Read: Introduction to criminal law
ELEMENTS OF CRIME
To prove the existence of any crime, the following must be proved
with exceptions of Strict Liability
(Where no need for proof of mens rea is required);
Ø Actus
Reus (The wrongful act)
Ø Mens
Rea (The Guilty mind)
The above phrases derive their origins from the Latin Maxim ‘Actus non facit reum nisi mens sit rea’,
which means ‘the act itself is not sufficient to constitute guilt unless done
with a guilty mind.’
Types of Acts or Conduct Constituting a Crime
There are two essential characteristics of crime;
i) There must be an act or omission for crime to
exist.
ii) The act or omission must be contrary to the law.
Spoken or Written words
Section 40 (b) of the Penal Code Act specifies situations where words can constitute a crime, i.e. a person commits an offence when or she utters any words with a seditious intention.
However, the Law of Sedition in Uganda is unconstitutional.
See Consolidated Constitutional Petitions
Numbers 12 Of 2005 and N0. 3 Of 2006 Andrew Mujuni Mwenda & the Eastern
African Media Institute (U) Ltd versus Attorney General.
The constitution court found the offence of sedition as being unconstitutional.
See the case of Wallace
Johnson v Republic.
See also contempt of court or death threats.
Omission
Failure to do something a person is supposed to do can constitute a crime. Many sections in the Penal Code provides for situations of omission.Possession of Certain items
Some provisions of the Penal Code prohibit the possession of certain items, e.g. possession of firearms, harmful drugs.
In Warner V Metropolitan Police Commissioner [1969]2 Ac 256
the appellant was tried on a charge that he had in his possession a substance contrary to the Drugs (Prevention of Misuse) Act 1964.
When stopped by the police, he had in his car, inter alia, two packages.
His defence was that he believed both packages contained scent for selling as a part-time job.
When they were opened in his presence, one was found to contain scent and the other to contain prohibited drugs.
It was held
that ounce facts constituting the crime have been proved in statutory offences,
there is no need to prove mineral/ state of mind.
The State of Affairs
This can be defined as continuous series of behaviours, e.g. prostitution under the Penal Code
The mere occurrence under a certain condition without doing anything.
e.g. the offence of trespass
The law forbids certain things to be done.
E.g. theft e.t.c.
The Principle of Legality (Nullum crimen sine lege)
It is the moral principle in criminal law and international
criminal law that a person cannot or should not face criminal punishment except
for an act criminalised by law before they performed the action.
Note that if a person is charged and convicted of an offence, they are seen as wrongdoers in society. Such a person suffers embarrassment, and their integrity is generally affected. The community has to be ruled according to specific principles to avoid anarchy.
No person must be punished unless they have breached specific provisions of criminal law.
The above maxim of legality expresses the idea that a person should not suffer except for a distinctive breach of criminal law laid before him in precise and definite terms.
The maxim further signifies that no person is to be found guilty of an offence for an act that had been forbidden and should have been known to be forbidden.
Elements of the principle of legality
- Prohibition of retrospective imposition of criminality. This principle is enshrined in article 28 (7) of the Constitution, which provides that no person shall be charged with or convicted of a criminal offence, which is founded on an act or omission that did not at the time it took place constitute a criminal offence.
- Every law that aggravates a crime is not allowed. Article 28 (8) provides that no penalty shall be imposed for a criminal offence that is severer in degree or description than the maximum penalty that could have been imposed for that offence at the time when it was committed.
- Every law that alters the legal principle of evidence to convict the offender is prohibited. Being tried by illegal institutions. See military arrests.
- The other aspect is that a crime must be written so that each person understands it. See article 23 (3) of the Constitution, which states that a person arrested, restricted, or detained shall be informed immediately, in a language that the person understands, of the reasons for the arrest, restriction, or detention and their right to a lawyer of their choice.
- The criminal law must be strictly construed so that in case of any doubt at the meaning of words or phrases, the accused will have the benefit of the doubt.
- No one should create an offence. In other words, it is only the Parliament that creates the laws. Article 79 of the Constitution.
GENERAL PRINCIPLES OF CRIMINAL LIABILITY
Burden of Proof
The burden of proof is an expression used to indicate which party to the legal proceedings must lose at any particular moment. See Evidence Act Part IV
Presumption of
Innocence.
An accused person is presumed innocent until proven guilty.
Article 28(3) (a) of the Constitution, every person charged with a criminal offence is presumed innocent until proven guilty or until that person has pleaded guilty. The provision lays down the duty to the prosecution to do the following;
· To adduce evidence against the accused in proof of the
commission of the offence. Section 101
and 102 of the Evidence Act, the burden of proof in criminal proceedings lies on
the state to prove the facts against the accused person. The
accused has no duty to prove his innocence.
In Woolmington
v DPP [1935] AC 462
Woolmington’s wife left him and went to live with her mother. Woolmington went to his mother in law where he shot and killed his wife.
He was arrested and charged with murder.
In his defence, he claimed that he did not intend to kill her, and in the process of trying to win her back, he planned to scare her by threatening to kill himself if she did not come back.
When he tried to show her the gun he intended to use on himself, the gun went off, shooting her in the heart by accident.
The trial judge concluded that Woolmington was responsible for the death
of his wife. He noted that the onus was on him to prove that the shooting was
accidental. He was convicted and sentenced to death.
He appealed to
the House of Lords, which held as follows;
The prosecution must prove the prisoner’s guilt. If there is a reasonable doubt
created, the prisoner is entitled to an acquittal.
A similar principle was laid down in
Charles. Kayemba v Uganda [1985] HCB 9
where the court held that if an accused puts
up the defence of intoxication, the onus is on the prosecution to prove that
the accused was not so drunk to be capable of forming the intent to kill.
Standard of Proof
This principle
refers to the level of proof that a party in criminal matters ought to be discharged to secure a conviction. In criminal proceedings, the standard of
proof is beyond a reasonable doubt.
In Kalimba v Uganda [1967] 1 EA 363 (HCU),
The appellant was charged with two counts of Burglary and theft and an alternative charge of receiving and retaining stolen property. The trial Magistrate found that the prosecution had failed to prove beyond reasonable doubt the charges.
Instead, the magistrate convicted the appellant of indecent assault since the victim, while testifying, told the court that
she had been sexually assaulted by the appellant.
Sir Udo Udoma noted that after the trial Magistrate found
that the prosecution had failed to prove the charges beyond a reasonable doubt on
the count of Burglary and theft as well as receiving and retaining stolen
property, it was wrongful for him to find the appellant guilty of indecent
assault in the absence of corroboration.
In Kamau s/o Muga v R [1963] 1 E.A 172,
the appellant was convicted on the counts of causing death by driving under the influence of alcohol and driving an unlicensed public service vehicle.
At the trial, the appellant raised a defence that the accident resulting in the death
was due to a defect in the steering mechanism of his vehicle. Evidence was led
to show that indeed there was a defect.
Court held that
the prosecution did not discharge the burden of proving beyond reasonable doubt
that the accident was due to factors of dangerous driving and to no other
factor.
Presumption of the Law and Facts
The presumption is a rule of law that permits a court to assume a fact is valid until there is a greater weight of evidence which disproves or outweighs or rebuts the presumption. Each presumption is based upon a particular set of apparent facts paired with established laws, logic, reasoning, or individual rights.
A presumption is rebuttable in that it can be refuted by factual evidence.
One
can present facts to persuade the judge that the presumption is not valid.
The presumption in
the law of evidence is presented in certain assumptions either of fact, the judicial decision, or statute that must be rebutted, that is, controverted by
evidence or the assumptions will stand as compelling proof. Presumptions in law
include:
· The presumption in favour of life.
·
Presumption of ordinary physical condition.
·
The husband of the woman who has a child is presumed to be
the father.
·
Presumption of innocence in criminal cases.
·
Presumption from business, such as a donation.
Presumptions of fact are no more than cases where it is reasonable and likely that a court will infer a state of affairs from other realities.
Thus, a person in
possession of the recently stolen property may be presumed to be the thief, but
this can be rebutted by showing that he had found them and was taking them to
the nearest police station when apprehended.
Section 113 of
the Evidence Act states that the court may presume the existence of any fact
which it thinks likely to have happened, regard being had to the ordinary course
of natural events, human conduct, and public and private business, in their
relation to the facts of the particular case.
In Ali Hassan Mohamed v R [1959] 1 E.A 606,
The appellant was convicted on the count of being unlawfully present within the Colony. At the trial, the Magistrate called upon the accused to prove that his presence was lawful.
Rudd Ag. CJ found
that although the Immigration Ordinance placed the burden upon the accused to
prove his innocence, the appeal succeeded because the prosecution
adduced its evidence long after the accused had given his defence.
Section 385 of the Penal Code Act creates an offence of Issuing false cheques and places the onus of proving certain facts on him.