There exist general rules as to criminal responsibility which can guide making an assumption as to whether a person is guilty or otherwise.
Defences / general rules are stipulated under the Penal Code Cap 120 laws of Uganda
DEFENCES IN CRIMINAL LAW
Defences can be classified into the following according to their nature and how they apply to negate one’s criminal liability
Ø Defenses that Negate Mens rea i.e. Mistake of Fact, Intoxication…..
Ø Defense that Justify or excuse one's acts i.e. Duress, Compulsion…..
Ø Defenses that Negate Actus Reus i.e. Self-defense, Automatism, Alibi…..
Ø Defenses that Negate Capacity to commit crime i.e. infancy, insanity….
La ck of
jurisdiction
In the context of criminal law, jurisdiction is the authority of a sovereign governing body to legislatively define the criminal activity and to prosecute individuals who violate those criminal laws within the sovereign's geographic bounds.
Generally, a sovereign nation may only prescribe rules that
apply within its geographic boundaries or to its citizens at large, meaning a
sovereign cannot create crimes in a foreign jurisdiction.
In the Ugandan context, the extent of the jurisdiction is
provided for under sections 4 and 5 of the Penal Code Act which provides that a
person can only be tried and convicted of an offense which he or she commits
within the boundaries of Uganda or partly within or beyond the boundaries of
Uganda.
However, there are exceptions to this rule as provided under
sections 23 to 27 of the PCA relating to treason and like offences.
Note:
·
The offender can be tried and convicted where the subject
matter of the crime is in Uganda e.g. financing rebel activities but when the offender is outside Uganda.
·
Where the offence is committed outside but completed in
Uganda. E.g. smuggling goods into Uganda.
Bonafide Claim
of Right Defence
Under section 7 of
the PCA, a person is not criminally
responsible in respect of an offence relating to property if the act done or
omitted to be done by the person with respect to the property was done in the
exercise of an honest claim of right and without intention to defraud.
The accused person must show that he was acting under an
honest claim of right for him or her to succeed.
If the accused obtained property under a claim of right, (he/ she) does not possess the intent required for the crime of (theft or robbery).
A claim of right for the accused is available if (he/ she) believed in good faith that (he/she) had a right to the specific property or a specific amount of money, and (he/she) openly took it.
In deciding whether the accused believed that (he/she) had a right to the property and whether (he/she) held that belief in good faith, the court should consider all the facts on how the property was obtained along with all the other evidence in the case.
Note that the accused may hold a belief in good faith even if the belief is mistaken or unreasonable.
But if the accused was aware of facts that made that belief completely unreasonable, it may be concluded that the belief was not held in good faith.
The claim-of-right defense does not apply if the accused attempted
to conceal the taking of the property at the time it occurred or after the
taking was discovered.
The defense of claim-of-right does not apply to offset or pay claims against the property owner of an undetermined or disputed amount.
The defence of claim-of-right does not apply if the claim arose from an activity commonly known to be illegal or known by the accused to be illegal.
Mapunda v Republic [1971] 1 EA 413 (CAD)
The Appellant was convicted for stealing elephants tusks the property of the Government of Tanzania. During the trial, the appellant claimed that he obtained a license to hunt and kill the elephant.
There was evidence to
show that the appellant used the license to claim the tusks from the villagers
who had discovered them from the decomposing elephant. He took possession of
the tusks and claimed them as his property.
His conviction was confirmed by the court of appeal on grounds
that he obtained the license after killing the animals and that the tusks were
then the property of the Government of Tanzania.
Also Read: Ignorance of the Law and Mistake of Facts.
Accident
Section 8 (1) of
the PCA provides that a person is
not criminally liable for an act that occurs by accident. An accident is an
event that a reasonable man would not have foreseen as likely or probable. An
act is said to be accidental if it is caused without intention.
The defence of
accident can only be relied upon where the following occurs;
·
The offender had no criminal intent to do harm,
·
The offender was not acting negligently, and
· The offender was engaged in lawful conduct at the time of the accident
In Interfreight Forwarders (U) Ltd v East African Development Bank [1990–1994] 1 EA 117 (SCU)
(though
civil case) the court emphasized
that for one to rely on the defence of accident, the following should be shown;
·
That something happened over which the person had no control
and the effect of which could not have been avoided by the exercise of care and
skill.
·
That the risk was not reasonably foreseeable.
Defence of Necessity
Glanville Williams defines necessity to mean that the conduct promotes some value higher than the value of literal compliance with the law.
Necessity was a defence at
common law but there are few cases dealing with necessity probably because they are often
not prosecuted.
The English courts stated the principle of necessity as early as 1551 in
Reninger v. Fagossa [1551] 1 Plowd 1, 75 Eng. Rep. 1
where;
· A man could break the law to avoid greater inconvenience, or through necessity, or by compulsion.
· To break the law to save a life or put out a fire. The Jurors could depart without the permission of the judge in case of emergency.
Modem English cases also recognize the defence.
In 1939 the King's Bench held that the necessity of saving a mother's life was a defence to abortion.
Rex v. Bourne [1939] 1 K.B. 686.
Mr Bourne was charged with unlawfully procuring the abortion of a girl less than 15 years.
He was a man of the highest skill and in a great hospital with a record of performing the operations. He performed the operation as an act of charity, without fee or reward, and unquestionably believed that he was doing the right thing and that he was required in the performance of his duty as a member of a profession to alleviation of human suffering.
The issue was whether the Crown had proved to the satisfaction of the court beyond reasonable doubt that the act which Mr Bourne admittedly did was not done in good faith for the purpose only of preserving the life of the girl.
On a charge of procuring abortion, the Crown had got to prove that the act was not done in good faith for the purpose of preserving the life of the mother.
The defence can only be available where;
· A person is confronted with making a choice.
· A person reasonably believes that some harm is inevitable.
· A person reasonably believes that his act or omission could avert greater harm.
R v Dudely & Stephens (1884) 14 QBD 273
The prisoners and the deceased were cast away in a storm on the high seas 1600 miles from the Cape of Good Hope. In this boat they had no supply of water and no supply of food and for three days they had nothing else to subsist upon.
The boat was drifting on the ocean and was probably more than 1000 miles away from land. They and the deceased discussed what should be done if no support came, and suggested that someone should be sacrificed to save the rest.
The prisoner proposed to cast lots regarding who should be put to death to save the rest.
The deceased was never and there was no drawing of lots. The prisoner killed the deceased and they fed on the body and blood of the boy for four days until rescued while still alive though weak.
Also Read:
Classifications and Elements of Crimes.
Circumstances when an accused will be deemed to have caused the death of another
They were tried for murder and argued that if they had not fed upon the body of the deceased they would probably not have survived the famine.
At the time of the act in question, there was no sail in sight, nor any reasonable prospect of relief. That under these circumstances there appeared to the prisoners every probability that unless they fed upon the boy, it was likely for them to die of starvation.
The jury sought the opinion of the court on whether the killing of the deceased by the prisoners a felony or murder.
The matter was considered to be heard by the Court consisting of five judges. The real question in the case was whether the killing under the circumstances set was murder.
It was held that the prisoners were guilty of murder in killing the deceased and this obvious necessity was not a defence.
It was further observed that the defence of necessity does not extend to an accused who killed another to save his life.