CRIMINAL LAW NOTES

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 or defendant before court.
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

• • Every person who actually does the act or makes the omission which constitutes the offence

• • Every person who does or omits any act for the purpose of enabling or aiding another person to
commit the offence.

• • Every person who aids or abets another person in committing the offence.

• • 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 it
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 actu sreus 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 defenses

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. (a) There is difficulty in proving the accused did not know

b. (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

• • 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.

Offences

Offences against property

Theft

• • Section .259 PCA Taking anything with intention of depriving the owner

• • Mens rea in theft; Consider

Haslett V Republic (1967) EA 796 (the said thing must have value)

• • Actus reus; proof that accused acted dishonestly and with intention of permanently
depriving the owner of his property.

Robbery
It is provided under Section.285 Penal Code Act & Section 286 for punishment

• • It’s the use of force or threat of use of force.

Ingredients

• • There was theft

• • The theft was accompanied with force or threats of violence

• • The accused caused grievous harm in the robbery

• • The accused committed the robbery

• • Consider Opoya V Uganda [1967] EA 752

Aggravated Robbery

It’s a capital offence tried by the High court

• • Section.286 (2) PCA provides for the circumstance under which an offence amount to
aggravated robbery. Which include use of deadly weapon before the robbery or after the robbery.

• • Section.286 (3) PCA defines deadly weapon Includes anything adopted for shooting,
stabbing, cutting or anything when offensively used can cause death.

• • Consider Uganda V Ntambazi

Aggravated robbery

• • Identification parade

Consider;

• • R V Mwango s/o manaa

• • Abdalla Bin Wendo V R

Consider the principle in these cases on how to conduct a valid identification parade.

Burglary and house breaking

• • It is provided under Section294 PCA defines breaking & entering

• • Note the catch word ‘it has to be a dwelling abode’

• • S.295 (1) PCA punishment 7 years

• • Note the difference between both offences

• • Burglary(S. 295(2)) PCA committed in the night

Compare with S.302 PCA (criminal trespass)

Embezzlement
• • The fraudulent conversion of one’s property by another who has its lawful possession.

• • It occurs after taking possession, not before, not during.

• • Consider S.268 PCA

Ingredients;

• • The accused was the employee of the victim

• • The accused received & took the property on behalf of employer

• • The accused had intentions of permanently depriving his employer of the property.

Causing financial loss

• • Consider Section 269 of penal code

• • An act or omission to act that causes financial loss is an offence

• • The offence covers; Government, Bank, Credit institutions, insurance company or a public
body.

Ingredients;

• • There must be an act or omission

• • It was done in the course of employment

• • The accused is responsible

• • The person must have been employed by the above organizations

• • The accused knew that the act/omission would cause financial loss

OFFENCES RELATING TO ADMINISTRATION OF JUSTICE

Perjury

This is the swearing will fully, absolutely and falsely in a judicial matter material to the issue or cause in
question. Section 94 of PCA states that any person who in any judicial proceeding knowingly gives false
testimony touching any matter which is material to any question pending in that proceeding committees
a misdemeanor termed perjury

• • It’s immaterial whether the testimony is given on false or any other assumption given by law

• • The false testimony is given orally or in writing

• • The court or tribunal is properly constituted or is held in a proper place

• • The person who gives a testimony is a competent witness or not or whether the testimony is
admissible in the proceeding or not
Section 94 (3) provides that any person who aids and abates procures or suborns another person to
committee perjury commits a misdemeanor termed as subornation. Section 97 provides for a
punishment to be 7years

Contempt of court

Criminal contempt consisting of words or acts obstructs or tending to obstruct the administration of
justice contempt in procedure consisting of disobedience to judge’s orders or other process of the court.
Contempt in the case of the court Its contempt of any court of justice to disturb and abstract the court
by insulting it in its presence and at a time when it’s actually setting an arrest made in court may count
to contempt. Instances of contempt in case of court area) Insulting and blasphemous remarks during a
Trail Paraschurum Betaram Shandasani V King Emperor It was stated that if a Tigard were to suggest in
court that its officers were corrupt or habitually fail to carry out their duties the court may consider it
contempt(b)Open interactions of proceedings for example telephones seizing documents and taking it
away in defense of the court(c)A prisoner threatening his fellow prisoner in the dock(d)Flinging an egg or
at object at a magistrate or judge.(e)Insults to counsel or opposing enticements and offer advocacy do
not amount to contempt unless calculated to lead to a obstruction of justice in court. It’s not every act
of this curtacy to the court by counsel that amounts to contempt for an advocate to be contempt from
court against the judges wish when judgment is delivered is not contempt.

Contempt by witness A witness who refuses to be sworn or being sworn refuses to answer or who
remains in court after the witnesses have been ordered to go out.

Contempt at chambers Misconduct of the judge or the presence of the court is contempt, it’s not
necessary that the contempt should be in court or that it should be in contempt of judge sitting in court.
It must be a contemptuous interference in which the judge is acting as the judicial officer. See Lockhart-
smith v united Rep (1965) EA Work from Christine on Inchoate Defenses from LDC Workshop Team

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

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.

OFFENCES AGAINST THE PERSON

These offences are categorized into two fatal and non fatal offences.

Non fatal include, assault.

Assaults

• • Meaning of Assault; apprehending force to be applied immediately on the body

• • Proof of Assault; causing another to apprehend force

• • Actus reus of Assault; causing necessary apprehension

• • Mens rea for Assault; intention to cause necessary apprehension

• • Apprehension of force; cause of fear of immediate and unlawful force

Common Assault

• • This is provided for by section 235 of the penal code, which provides that “any person
who unlawfully assaults another commits a misdemeanour, and if the assault is not committed in
circumstances for which a greater punishment is provided in this code, is liable to imprisonment for one
year”

Key points to note

• • Not committed in circumstances for which a greater punishment is provided in this code

• • Misdemeanour

• • Punishment; one year

Aggravated assault or assaults causing actual bodily harm

• • Injury to interfere with the health or body of the victim

• • Body includes mental and other faculties

• • S. 236 PCA

• • Actual bodily harm

• • Misdemeanour
• • Medical evidence; determines whether its common assault or actual bodily harm

• • Punishment; 5yrs imprisonment

Assaults punishable with two years imprisonment

• • This is provided for by section.238 PCA

• • Assaults any person with intent to commit a felony or resist/prevent lawful apprehension

• • Assaults/resist, obstructs police officer

• • In pursuance of any unlawful combination

• • Assaults person executing a process

• • Assaults person executing a legal duty

Important cases to shade more light on assault

• • Constanza’s case (1997) Crm law R 576; proof of what is in the victim’s mind

• • Kwaku Mensah v R[1946] AC 83; pointing unloaded gun

• • Fairclough v. Whip [1941] AELLR 1 734; shaking a fist at another

• • Tuberville v. Savage; need for immediate apprehension of force

• • Kabali Anthony v. Uganda HCCA 32/04; on actual bodily harm

Fatal offences include

Murder

• • Unlawfully killing a reasonable creature under Queen’s peace

• • Capital offence; sentence of death

• • Section188 of the penal code; unlawful causing of death of another person with malice
aforethought

• • Ingredients; deceased is dead, accused caused death, death caused with malice
aforethought, took place between 1yr and a day

• • Burden of proof; lies on prosecution

• • Punishment; death sentence

• • Defences; insanity, self defence etc

Manslaughter

• • Definition; unlawful homicide but not murder

• • Section. 187(1) and (2) Penal Code Act

• • Types of manslaughter; voluntary and involuntary

• • Voluntary manslaughter; under mitigating circumstances

• • Involuntary manslaughter; mental state less than intention unlawfully to kill

• • Killing on provocation (Section.192 PCA); manslaughter

• • Provocation as defined(section.193 PCA) sudden loss of self control

• • Diminished responsibility (Section.194 PCA); abnormality of the mind, mitigating defence,

• • A child capable of being killed (Section.197 PCA); proceeded in a living state from the body

Important cases on murder and manslaughter for further reading

• • Woolmington v. Dpp [1935] UKHL (1); clearly depicts the offence of murder and its main
element which is malice afore thought.

• • Uganda v Musana and 2 others[1985] H.C.B 20; malice aforethought and deadly part of the
body

• • Sentongo and anther v. Uganda[1975] H.C.B 239; malice aforethought and failure to prove
intention

• • Uganda v. Muherwa [1972] EA 466; exceeding the long limits of arrest and killing someone

• • Uganda v. Wabwire Bulowozo [1976] H.C.B 45;self defence and reasonable necessity

• • Duffy’s case[1949]1 ALLER 392; Definition of self control

Offences against morality

These offences include

• • Rape

• • Abduction

• • Elopement

• • Indecent assault

• • Defilement
• • Aggravated defilement

• • Adultery

Rape

• • Rape defined under section123 PCA Cap 120 to include “unlawful carnal knowledge, of
woman or girl, without her consent or obtained by false means”

Ingredients of rape

• Victim of rape must be a woman or a girl

• Unlawful Carnal knowledge

• There was no actual and real consent

• Mens rea; intend to have sex with a woman

• Actus reus; sexual intercourse, no consent

• Punishment for rape; death

• • Section125penal code Attempted rape; felony

• • Punishment for attempted rape; life imprisonment

Abduction

• • Section 126 of the penal code, provides that any person; whether male or female who-

a. (a) Intent to marry or be married to or to have sex with another takes away or detains him or
her against his or her will

(b)Unlawfully taking another person under 18yrs out of the custody of persons having lawful
care over that person, commits an offence punishment for abduction; imprisonment for seven years

Elopement

• • Elopement defined; running away with a married person

• • It is provided under Section127 (1)-(3) PCA

• • Ingredients of elopement; knowledge and run away

• • Knowledge of marital status; ignorance of which may be a defence

• • Compensation; accorded to aggrieved spouse

• • Elopement and adultery; running away and sexual intercourse

Indecent assault

• • Definition; assault accompanied by circumstances of indecency

• • It is provided under Section 128 PCA; felony

• • Victim; woman, girl and boy under 18yrs

• • Ingredients; indecent act, assault

• • Punishment (Section.128(1); 14yrs in prison

• • Assault and indecent assault

• • Consent to the act of indecency by a girl under 18

• • Indecent assaults on boys under eighteen(Section.147) PCA

• • Punishment; 14 yrs in prison

Defilement

Section 129 (1); any person who unlawfully has sexual intercourse with a girl under the age of 18
commits an offence and is liable to suffer death.

Aggravated defilement

• • Define; (S. 129(2)) PCA as amended performance of sexual act with another person below
18yrs under circumstances in S. 129(4)PCA as amended

• • Ingredients; below 14,HIV, parent or guardian, disability, serial offender

• • Punishment; death

• • Attempted aggravated defilement;

• • Punishment; life imprisonment

• • Standard of proof in aggravated defilement

Adultery

• • Defined; any man having sexual intercourse with a married woman not being his wife and
married woman having sexual intercourse with any man not being her husband

• • It is provided under Section154 of the PCA

• • Who can commit? a man with knowledge of a woman married, a woman with knowledge
of being married
• • Ingredients; knowledge, unlawful sexual intercourse

• • Accomplices; different mens rea in each case, separate counts were both are charged

Corroboration; matter of law