Definition of the word Criminal Law

Criminal law is defined as the law body of law defining offenses against the
community at large, regulating how suspect are investigated, changed, and
tried and establishing punishments for convicted offenders.
 It can also be defined as a body of specific rules regarding human code which
have been promulgated by political authority which applies uniformly to all
members of the class to which the ruler refer and is enforced and punishment
administered by the state. The above definition brings out four major elements
of criminal law.
Elements of criminal law
• Politicality
This is regarded almost universally has an essential element in criminal
law. The rules of trade union, churches, mosques or family are not
regarded as criminal law nor are violation of these rules regarded as crime.
In Uganda the laws promulgating body is parliament. Article 79 (1) provides
that parliament has power to make laws on any matter for the peace, order,
development and good governance of Uganda.
• Specificity
It is included as an element in the definition because of the contrast in
respects between criminal law and civil law. The civil law may be general.
E.g. A Germany civil court provided that whoever intentionally injured
another in a manner contrary to the common standard of right conduct was
bound to indemnity. The criminal law on the other hand generally gives a
strict definition of specific act. Article 28 (7) provides that no person shall be
convicted or charged with a criminal offence which is founded on an act or
omission that did not at the time that it took place constitute a criminal
offence. In R V Robert and another, the accused were charged with and
convicted on their own pleas’, of been in possession of moshi without a
licence contrary to the Moshi Manufacture and distillation Act of 1966. 
However, at that time the Act had not yet been brought into force as
required by notice in the gazette.   Court held that the proceedings were a
nullity.
• Uniformity 
This is included in the definition of criminal law because law attempts to
provide even handed justice without respect to persons. This means that
there is no exception made to criminal liability because of person social
status. An act described as a crime is a crime no matter who perpetuates it.
It also means that the law enforcement shall be administered without
regard of the status of person who have committed crime or accused.
However this varies in practice. Rigid rules treat all people in the class to
which the law refer exactly are like. While judicial discretion takes
cognizance of varied element in the situation of the members of the class
and thus approaches closer to individualization. The court looks at
circumstance of each case. However article 98(4) provides that while in
office, the president shall not be liable to proceeding in any court. Further
article 98 (5) states that civil or criminal proceedings may be instituted
against a person after ceasing to be president, in respect of anything done
or omitted to be done in his or her personal capacity before or during the
term of office of that person and any period of limitation in respect of any
such proceeding shall not be taken to run during the period while that
person was president.
• Penal sanction
This refers to the notion that violators will be punished or threatened with
punishment by the state. Punishment under the law differs from that
enforced by mob because it is applied dispassionately by representative of
the state in such a manner that it may win the approval of the cool
judgment of the impartial observers. Punishment under the law may be
slightly, however I the court of law a verdict was reached a partly was
declared guilty and the disgrace of the only punishment.
Distinction between criminal law and Civil law
We have already seen what is meant by criminal law from the above
definition. However looking at civil law, according to Osborne’s Law
Dictionary the term civil law means Roman law, the corpus juris civilis;
while according to professor Williams, civil law is that phrase which is used
in several meanings. It may mean the law which is not criminal law. It may
also mean the law of the state as opposed to other laws like international
law, or it may mean Roman law. However in our context we are using it to
refer to laws such as family law, delict or even contract laws, etc.
The following are some of the distinction between criminal law and civil law
• Criminal law is categorized as public law. This is because it is intended
to serve societal or public interest .while civil law is invariable on the
private law side.
• Secondly in criminal law, criminal proceedings are brought in the name
of the crown or state e.g. Rex V Job. While on civil law, civil suit are
usually brought by the aggrieved party, e.g. Job V Joan
• In criminal law the wrong is usually referred to as a crime, while in civil
law it is considered to be civil wrong.
• In criminal law a person (state) who intends to sue usually states the
offence or crime in a document referred to as a charge sheet or
indictment. While in civil suit, the claim is usually contained in a
declaration. (In English law plaint.)
• In criminal law the prosecutor pursues the case on behalf of the crown
or state. On the other hand in civil law, civil action or suits are usually
brought by the plaintiff on his or her behalf.
• In criminal matters the standard of proof is beyond reasonable doubt.
While in civil law, the standard of proof is on the balance of probabilities.
• In criminal matters a person can either be referred to as accused. While
on civil matters the person is usually referred to as defendant.
• Finally, in criminal matter when a person is found to be guilty, he or she
can be sentenced, imprisoned or fined or both. While in civil matters a
person can only be found to be liable and court may usually order the
liable person to pay damages and costs.

The purpose of criminal law

• To forbid and prevent conduct that unjustifiably inflicts or threatens
substantive harm to the individual or public interests.

• To subject to public control persons whose conduct indicates that they

are disposed to commit crimes.

• To safeguard conduct that is without fault from condemnation as

criminal.

• To give a fair warning of the nature of the conduct declared to an

offence.

• To differentiate on reasonable grounds between serious and minor

offences

Nature and the scope of criminal law

Criminal law deals with the punishment of people who commit offences or
crime. A crime is defined as an act default or conduct prejudicial to the
community the commission of which by law renders the person responsible
liable to punishment by fine or imprisonment in special proceedings,
normally instituted by officer in the service of the crown or state. 
Section 14 (1)  give the high court power to entertain all criminal matters it
provides that the high court shall, subject to the constitution, have unlimited
original jurisdiction in all matters and such appellate and jurisdiction as may
 be conferred on it by the constitution or this Act or any other law.
Furthermore, under section 4 and 5 provides for the jurisdiction of criminal
matters.
Parties to a crime
When an offence is committed each of the following person is deemed to
have participated in the committing the offence and to be guilty of the
offence and may be charged with actually committing it. These persons are
a) Every person who actually does the act or makes the omission which
constitutes the offence
b) Every person who does or omits any act for the purpose of enabling or
aiding another person to commit the offence.
c) Every person who aids or abets another person in committing the
offence.
d) Incorporated corporation are also considered to be legal person. In
Salomon V Salomon and company court held that once a corporation is
incorporated it becomes a person distinct from its members.
Criminal liability
The law on criminal law in mainly categorized in to two main
principles. Actus Reus and Mens Rea. The cardinal principle of criminal
law is embodied in Latin maxims actus non facit reum, nisi mens sit rea.
That means that, an act does not make a man guilty unless he has a guilty
mind. Thus two points are involved in this maxim.
•         The outward conduct which must be proved against the accused which
is known as actus reus
•         The state of mind which the accused must be proved to have had at the
time of the act (Mensrea)
There have been some ctritisms of the maxim Actus non facit reum, nisi
mens sit rea.
In the case of Tolson justice Stephen said that this phrase is in common
use I think it’s most unfortunate and not only likely to mislead but actually
misleading on the following grounds. It naturally suggest that apart from all
particular definition of crimes, such a thing exist as a mensrea or guilty
mind which is always expressly of the implication involved in every
definition. This is obviously not the case, the mental element of different
crimes differ widely.  This remains true today, mensrea means in murder an
intention unlawfully to kill or cause grievously bodily harm. In theft it means
that the accused acted dishonestly and had intention of permanently
depriving another property.
In the case of Republic V Ndesario where the issue was whether water is
capable of being stolen. Court held that so long as a fluid such as water
could be sufficiently misappropriated could be stolen. The accused was
therefore taking away a movable object which did not belong to him with
intent of depriving the owner permanently of it.
In Haslette V Republic, it was held that there was no evidence that the
spares were of any value and although the appellant knew that he was
disobeying instruction he was not intending to cause loss to the republic.
Stressing the importance of the maxim, Goddard CJ in   Brenda V Wood
(1946) 175 Ltd lord said that; “it is of utmost importance for the protection
of the liberty of the subject that a court should always bear in that unless a
statute either clearly or by necessary implication rules out mensrea as a
constituent part of a crime, the court should not find a man guilty of an
offence unless he has the guilty mind”

Actus reus
Nature of actus reus
It is necessary to refer to the definition of the offence charged in order to
ascertain the precise nature of the prohibited conduct. Actus reas includes
all elements in the definition of crime except the accused mental element. It
follows that actus reus is not merely an act.  It may indeed constitute in the
state  of affairs not including an act at all much more often the actus
reus requires proof of an act or omission (conduct). The definition of
offences often specifies surrounding circumstances such as time of place
which are essential to render the act criminal. Sometimes the definition
requires a consequent result from the act such as the consequence
in white The accused put potassium cyanide in his mothers drink intending
to kill her shortly after wards the mother was found dead with the glass
partly full besides her, the medical evidence was that she died of heart
attack and not from poisoning and that the quality of potassium cyanide
administered was insufficient to cause her death the accused was acquitted
of murder but accused of attempted murder.
This was because although the intended consequence had occurred, it had
not been caused by his conduct and thus an element of actus reus of
murder was missing.
Acts and omissions
An act that is doing of something is the most common basis of actus reus.
However, the nature of the requisite act varies from offence to offence. The
definition of some offence indicate the requisite act preciously so that in
rape an act of sexual intercourse is required and in causing death by
dangerous driving an act of driving is required.
Omissions
An omission i.e. failure to act is a less common basis of criminal liability
than a positive act. Historically the criminal law has been concerned with
prohibiting and punishing positive actions rather than with imposing duties
to act and punishing failure to do so. Recent time however, it has
increasingly concerned its self with failure to act.
An omission to act can give rise to liability if the definition of an offence
actually specifies an omission to act so statutes have made omissions
criminal in many cases  for example section 157 of the penal code  and
156 (cap 120) laws of Uganda. Desertion of children
‘Any person who being the parent, guardian or other person having the
lawful care or charge of child under the age of fourteen years and being
able to maintain such child willfully and without lawful or reasonable cause
deserts the child and leaves it without means of support commits a
misdemeanor’.
Neglecting to provide food, etc for children ‘Any person who being the
parent of guardian or other person having the lawful care or charge of any
child of tender years and unable to provide for itself, refuses or neglects
being able to do so to provide sufficient food, clothes, bedding and other
necessaries for such child, so as thereby to injure the health of the child
commits a misdemeanor’.
In Gibbins and proctor a man and a woman in whom they were living
together were held guilty of murder of the man’s child. The woman withheld
food from the child intending it to die or suffer grievous bodily harm. They
were convicted of murder.
In Pittwwod  a railway crossing gate keeper opened the gate to a cart to
pass and went off to his lunch forgetting to shut the gate. Ten minutes later
a hay cart was struck by the rail while crossing on the railway line and a
person killed. The accused was convicted of manslaughter, since he owed
a duty of care to his employer with whom he was contracted. 

Mens rea
Before the 12th century a person could be held liable for many hams, simply
because his or her conduct caused them, without proof of any blame
worthy state of mind. Under the influence of canon law church, a change
took place and courts began to require proof of an element worthy blame
wise a guild mind. In criminal law such is known has mens rea.
Mens rea is a technical element and it is translated as guilty mind. However
this is misleading. A person may have mens rea without feeling of guilty on
his or her part.
He may act with perfect clear conscience believing his act to be morally
and legally right and yet be held to have mens rea. The expression mens
rea refers to a state of mind expressly or impliedly required by the definition
of the offence charged. This varies from offence to offence but typical
elements are intention, recklessness and knowledge. Mens rea required for
an offence normally relates to consequence or circumstance or both
required for Actus reus for the offence charged.
Intention 
Where the definition of actus reus of the offence charged requires the
accuses conduct to produce a particular consequence he has a sufficient
mental state as to that consequence if he intended it to occur. In many
offences where the accused conduct is required to produce a particular
consequence liability can be either on his intention or recklessness as to
that consequence. However in defining of some offences liability can be
based on intention and it is in this that the question of what is meant by law
by intention is of crucial. There is no definition of intention in the statutes
and the penal code does not define the word intention.
Nevertheless, intention was defined in Mohans case, as a decision to bring
about in as far as it lies within the accusses power a particular
consequence no matter whether the accused desired that consequence of
his act or not. Alternatively intention can be described as the accused
purpose or aim.
In Muhammed V R the appellant a driver was convicted of stealing a load
of maize. He said in evidence that he had taken the maize to his own
house and there off loaded it. Because it was raining, he further said that
he had kept it for some days because he was expecting it to dry. He kept it
for 9 days without telling the owner or his employer. He was convicted of
theft by the magistrate court. On appeal to the high court it was held that
there was no sufficient evidence for which could show that he had
necessary fraudulent intention. The appeal was allowed.
In Hyams V DPP a woman set fire on a house for the purpose of
threatening another woman in a house into leaving the neighborhood. O’s
children were killed by the fire. Justice Ancker directed a jury that in the law
of murder the accused intended death or bodily harm. The conviction of
murder consequently upon this direction was upheld by court of appeal and
house of Lord. Furthermore court clearly stated that there are however two
possible interpretation of the decision that is;
The mens rea of murder is an intention to kill or cause serious bodily harm
and person who fore see’s the death or serious bodily harm is highly
probable consequence of this act (harm) and intends consequence.
Negligence
A person acts negligently when he brings about a consequence which a
reasonable and prudent man would have foreseen and avoided e.g. if x a
notorious  car thief offers to sell to D at an absolutely low price a car which
is hidden in the forest, the possibility that it is a stolen car does not occur to
him. If a reasonable man would have avoided that risk, D is negligent with
respect to the circumstance if the car had been stolen.
Recklessness 
This is the deliberately taking of unjustified risk. A man is reckless in
respect of the consequence of his act, when he foresees that it may occur
but does not desire it nor foresee it as virtually certain.

Coincidence of actus reus and mens rea

The mens rea must coincide in point with the act which causes the actus
reus. Mens rea implies an intention to do a present act not a future act.

The principle of legality

This is provided under Article 28 (12) which provides that “Except for
contempt of court, no person shall be convicted of a criminal offence unless
the offence is defined and the penalty for it prescribed by law”.
The burden of proof in criminal cases 
The general rule is that the prosecution has the burden of proving beyond
reasonable doubt that the accused has committed actus reus of an offence
with mens rea required for it. Prove of the commission of actus reas require
prove of this entire element. The burden of proof is also described as
persuasive burden while the burden of adducing evidence is described as
evidential evidence. In Woolmington V DDP, the court initiated change
regarding the burden of proof, which hitherto was accused. The court
observed that the burden of proof should shift from the accused to the
prosecution to prove (a) the act, (b) unlawfulness and (c) the state of mind.
The importance of this rule cannot be overemphasized because:
• Conviction results in the right of the accused being affected.
• Conviction gives rise to a record, which stigmatizes the life of the
individual.
• Crime is an offence against society and before society can show that
accused has injured it, the crown, representing society; should prove it,
hence the adage that “ it is better for guilty persons to be freed than
innocent person to be convicted.

Strict liability
Crimes which do not require intention, reckless or negligence has to one or
more in actus reus are known as offences of strict liability. An offence is
regarded as that of strict liability if no mensrea need to be proved as to the
single element. Crimes of strict liability are almost a creation of the statutes.
In Woodrow where the accused was found guilty of having in his house
adulterated tobacco although he did not know. The prosecution
emphasized the purpose of statute. Court held that the crime was still
committed even if there was no fraud or intention.
Vicarious liability
This means that the employers are responsible for the action of the
employees as long as they are within the cause of employment. Therefore,
in order for the employer to be responsible, the must be master and servant
relationship. In addition to the above, the various liability usually apply to
the law of tort. However, vicarious does not apply in criminal law.
The leading case in civil law is Lloyd V Grace, Smith and
company, where a solicitors’ managing clerk, without the knowledge of his
employer, induced a widow to give him instruction to sell certain property
and  to hand over the title deed. Court held that since the clerk was acting
within the scope of his authority his employer was liable.
Exception to the general rule 
The employer is not liable in cases of public nuisance and criminal matters.
General defences
Ignorance of the law
The principle of ignorance of the law is not a defence is provided for by the
penal code.  Thus It section 6 provides that ignorance of the law does not
afford by excuse for any act or omission of which would otherwise
constitute an offence unless knowledge of the law by the offender is
expressly declared to be element of the offence. One of the presumptions
that the law puts forward is that, everybody is presumed to be aware of the
law hence ignorantia juris non excusat. However in general ignorance of
the law doesn’t afford a defence because
a) There is difficulty in proving the accused did not know
b) The risk would make it advantageous for people refrain from
acquiring knowledge of their legal duties.

Necessity 
This can be defined as threats of death or even serious physical injury that
makes a person do a given act in order to live.
It is said that necessity knows no law. Necessity does not afford a defence
in murder. In Dudley and Stephens court found the two guilty of murder
because of eating a young boy and their defence of necessity could not
hold.
Furthermore courts have also made it clear that necessity is not a defence
in theft of clothing and food. In Southwark London Borough V
William, lord denning justified the rule on the ground that “if hunger were
once allowed to be an excuse for stealing, it would open a door through
which all kind of lawlessness and disorder would pass.

Claim of right
Section 7 of the penal code provides that ‘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.

Mistake of facts
This is provided under section 9 (1) of the penal code which stipulates that,
“a people who does or do an act under an honest and reasonable, but
mistaken, belief in existence of any state of thing is not criminally
responsible for the act or omission to any greater extent than if the real
state of thing had been such as he or she believed to exist”.
Section 9(2) of the penal code provides that, the operation of this section
may be excluded by the express or implied provision of the law relating to
the subject.
The land mark decision was made in DDP v Morgan where court held that
mistake is a defence if it prevents the defendant from having the Mensrea
which the law requires for the crime with which he is charged.
Where the law requires intention, reckless with respect to elements to
some elements in actus reus, a mistake where reasonable or not precludes
both state of mind will be excused.
Where the law requires only negligence, then only a reasonable mistake
can afford a defence, for an unreasonable mistake. By definition, one which
a reasonable man would not make and it is negligent.
In Tolson, the defendant on reasonable grounds that her husband had
been drowned at sea and after more than 5 years later married again
reasonably believing herself to be a widow. She was not guilty of bigamy
because her belief was reasonable.
Insanity
It is provided under section 11 of the penal code which provides that a
person is not criminally liable if at the time of act or omission he or she
suffers from a disease that affects his or her mind. However if the disease
does not affect the mind the person will be liable.  In Mcnaghten case,
Mcnaghten was acquitted on the ground that at the time he committed the
offence he was insane.

Intoxication
This is provided by section 12(1) of penal code provides that except as
provided in this section, intoxication shall not constitute a defence to
criminal charge.
(2)Intoxication shall be a defence to any criminal charge if by reason of the
intoxication the person charged at the time of the act or omission
complained of did not know that the act or omission was wrong or did not
know what he or she was doing and (a) the state of intoxication was
caused without his or her consent 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 such act or omission.
Compulsion/Coercion
Section 14 of the penal code where a person is compelled to commit an act
by use of threat or grievous bodily harm his or her acts are not considered
to be criminal. However threats of future injury are not excused.

Use of force to protect property and person

This is provided under section 15 of the penal code, which provides that,
subject to any express provision in this code or any other law in Uganda,
criminal responsibility-
(a) for the use of force in the defence of person and property; and
(b) in respect of rash, reckless or negligent acts,
Shall be determined according to the principle of English law
Section 16 of the penal code further provides that a person can use
reasonable force in effecting arrest.
Achodo V Uganda, court stated that reasonable force ought to be used in
effecting arrests and protecting property. Thus the defendant cutting the
theft his legs did not amount to reasonable force.
Force causing personal injury, damage to property, or even death may be
justified or excused because the force was reasonably used in the defence
of certain public or private interest. The general principle is that law allows
such force to be used as reasonable in the circumstances as accused
believed them to be, whether reasonable or not.
Therefore the test for reasonable force is objective
What is reasonable force depends on:
• Nature or degree of force used,
• Seriousness of the evil to be prevented
• The possibility of preventing it by use of other means
In Duffy case, court held that a woman would be justified in using
reasonable force when it was necessary to do so in defence of her sister,
not because they were sisters but because there is a general liberty as
between strangers to prevent a felony.
Automatism
Generally it is a defence that act or omission or event with which the
accused is changed was involuntarily. In Hill v Baxton, court held that a
man could not be said to be driving if he had be attacked by a swarm of
bees.

INCHOATE OFFENCES
Completing a crime is usually needed before you're charged and possibly
convicted. Back out before finishing, and you can't be found guilty.
However, certain acts done in preparation for a crime can be crimes
themselves. These are called inchoate crimes. Inchoate crimes, also called
incomplete crimes, make certain acts illegal even though no actual harm's
done. Inchoate crimes serve to punish and deter people from crime. There
are three main inchoate crime types;  
• Attempt           
• Conspiracy     
• Solicitation
Criminal attempt is trying to commit a crime and failing. This is often seen
as the most serious inchoate crime because the person may have come
close to completing the crime. For example, a person that shoots to kill
another but misses may be charged with attempted murder. If his aim was
better and he succeeded, the charge would be murder. Criminal attempt
has three main elements:          
• Specific intent           
• Actions to commit the crime
• Failure to commit the crime
A criminal attempt charge requires a person to have had specific intent to
commit the actual crime. If the crime almost happened by accident, it’s
not attempt; for example a hunter who almost shoots another person must
have intended to kill for it to be attempted murder.Actions close and
connected to the crime are also required. It can't be just acts that prepare
for the crime. For example, if you buy a gun, thinking about a bank robbery
in a few months, your acts are probably too far removed from the actual
crime to amount to attempted robbery. However, if you drove to a bank to
rob it and you're arrested before leaving the car, you've gone far enough to
commit attempted robbery.
Failing to commit the crime is the last element. Once the crime is done,
you're charged with the actual crime, and not attempt.
Criminal conspiracy is when two or more people agree to commit a crime.
This crime is used to charge multiple people planning or doing illegal
activities. Conspiracy is different because you can be charged with the
actual crime and the conspiracy to commit it. For example, if you plan with
others to kill someone, you can be charged with murder and conspiracy to
commit murder.
Criminal conspiracy main elements are:         
• Involvement of two or more people
• Agreement to commit a crime         
• An overt or open act to carry out the plan
One can't be charged with conspiracy unless someone else agrees to
commit the crime. In many states, proof of the agreement is enough to
charge everyone involved. Some states require an overt act towards
carrying out the plan, such as buying needed materials.
Criminal solicitation is when one person commands, encourages or asks
another to commit a crime. A common example is prostitution. The crime is
complete when one person asks another to commit an illegal act.
Solicitation main elements are:      
• Intent to have someone else commits a crime         
• An act to induce the other person
In order to charge someone with solicitation, the person must have the
specific intent to try to induce another person to commit a crime. He must
also commit some act to induce the other person, such as using certain key
words or phrases specific to the crime. A person can't be charged with the
actual crime solicited and criminal solicitation.
The Defenses to inchoate crimes or offences vary by state laws and crime
type. Common defenses include:        
• Abandonment           
• Legal impossibility    
• Factual impossibility
Abandonment means one completely and voluntarily stopping all actions
towards completing the actual crime. For conspiracy, one also has to try
preventing the crime from happening. This can be done by informing the
police in time or doing something to stop the crime.Legal impossibility
means that what the person intended to do isn't actually a crime. For
example, if a person intends to shoot a target on a tree but misses and
almost hits someone, it's not attempted murder since his intention isn't
illegal. Factual impossibility means that circumstances made it impossible
to commit the intended crime. These are usually circumstances the person
attempting the crime isn't even aware of. For example, if a person tries to
shoot someone with a broken gun. Most states don't allow this defense
since the person still has the specific intent to commit an illegal act