The Law Relating To Bail In Uganda - Article 23(6) of the 1995 Constitution

The Law Relating To Bail In Uganda - Article 23(6) of the 1995 Constitution

Monday, January 27, 2020

The right to bail is a fundamental right guaranteed by Article 23(6) of the 1995 Constitution of the Republic of Uganda. Its basis can be traced in Article 28 of the same Constitution, states that an accused person is to be presumed innocent until he/she is proved or pleads guilty. It further provides that an accused is entitled to a fair and speedy trial before an independent and impartial court or tribunal that is established by law.

These two principles are part of the right to a fair hearing which is declared to be inviolable by Article 44 of the Constitution. The idea is that a person who is presumed to be innocent and who is entitled to a speedy trial should not be kept behind the bars unnecessarily long before trial. This is the rationale of Article 23 (6) of the Constitution.

What is bail?

Bail is the release from custody by a court of law of a person accused of a criminal offence after such person has entered a recognizance consisting of a bond with or without sureties, for a reasonable sum of money to the effect that he or she would appear before court for his or her trial. as seen in the case of Aliphusadi Matovu Vs Uganda Criminal Miscellaneous Application No 15 of 2005.

In simple terms, bail is the release of an accused person from detention pending trial or until Court takes a decision on his/her case.

When a person is arrested and detained or remanded, court is supposed to inform him or her of his/her right to apply to be released pending trial. In order for the accused person to be granted bail he/she must fulfill certain legal requirements and conditions which guarantee that he or she will appear in court for trial to answer charges against him or her.

The major laws relating to bail are:

The Constitution (The 1995 Constitution of Uganda (as amended))

The 1995 Constitution of the Republic of Uganda is the Supreme law In Uganda. All other laws must conform to the Constitution. In the event that any law is inconsistent with the Constitution, that law is void to the extent of its inconsistency with the Constitution. This means that where there is a conflict between the Constitution and any other law, the provisions of the Constitution must be followed. Refer to Law and Administration of Justice in Uganda, The Judicial Service Commission,2007,pg2.

The 1995 Constitution of Uganda provides on bail:‘ Article 23 (6)(a) provides for the right of an accused person to apply to court to be released on bail subject to the legal requirements and conditions which must be fulfilled before court grants bail.

Article 23(6)(b) gives the accused person the right to be released on bail, if the person has been on remand for sixty(60) days before trial, in respect of an offence that is triable by the High Court or subordinate court (Magistrate’s court).

Article 23(6) (c) gives the accused person the right to be released on bail if he or she has spent one hundred and eighty days (180) on remand in respect of an offence only triable by High Court. But the accused person must fulfil legal requirements and conditions set by court.

The Magistrates Court Act - M.C.A Cap 16

The Magistrates Court Act, Cap 16 (MCA) is the law governing the procedure applicable in Magistrate Courts. Magistrate courts are also referred to as lower courts or subordinate courts and they consist of The Chief Magistrates Court, Magistrate Grade I Court, and Magistrates Grade II Courts. These courts have authority to try criminal matters. The M.C.A gives powers to the Magistrate to grant bail to accused persons who have committed offences which are triable and bailable by them. However, there are offenses which can be tried by Magistrates for which they cannot grant bail and also cases which are neither triable nor bailable by them. In these cases, the Magistrate’s duty is to inform the accused person of his/her right to bail and also advise him or her to apply for bail in the High Court.

The MCA provides for situations and circumstances when a pre-trial detainee may be granted bail.( Section 75 (1) of the Magistrates Court Act) These are Where the accused is not being charged of any of the following offences: Acts of terrorism, Cattle rustling, Abuse of office, Rape, Embezzlement, Causing financial loss, Defilement, Offences under The Fire arm’s Act(The Fire arm’s Act, Cap.299 of 2000) punishable by at least ten years imprisonment or more, Offences triable by only the High Court, Corruption, Bribery and Any other offences for which the Magistrate Courts have no jurisdiction to grant bail. To note here is that the Magistrate has power to grant bail for any other offences triable by him/her that are not included in the above list.

The powers of a Chief Magistrate in relation to bail include:

Power to direct that an accused person be released on bail if bail was denied by a lower Court within his/her area of jurisdiction where the accused is charged with an offence triable by a Magistrate.

Reduction of bail bond where in the Chief Magistrate’s opinion, the amount set by the lower court is excessive or is intended to deny the accused bail if it was set by the lower courts.

The MCA provides for the following powers of the High Court in relation to bail

Where an accused person is charged with an offence triable by the Magistrates but is denied bail, the High Court can order that the person be released on bail.

The High Court can also order that the amount for bail bond be reduced.

If the accused person is charged with an offence triable by the Magistrates Court but not bailable by him/her, the High Court has power to direct that the accused person be granted bail.

If the High Court is not content with the bail bond (security) that the Magistrate set in order to release the accused person on bail, it can increase the bail bond and order for the arrest of the person who is released on bail until he/she pays the new increased amount of bail bond.

If the accused person fails to pay the new bail money the High Court may order for his/her imprisonment.

Mandatory bail.

Where an accused person is remanded in detention before his or her trial starts for a continuous period exceeding 180 days for major offences, and 60 days for minor offences,( Article 23 Constitutional Amendment Act No. 11 of 2005.) the Constitution and the MCA authorizes the Magistrate before whom that accused person first appears to release him or her on mandatory bail

However, the Magistrate may refuse to grant bail to an accused person even if he/she has completed the mandatory days on remand if;

The accused person is then committed or referred to High Court for trial.

If the Magistrate thinks that the release of the accused person is a threat to the public.

‘ Factors to consider before the Magistrate grants bail to an accused person.

The nature of the offense or accusation against the accused. If it is a minor offence, there are high chances of granting that person bail.

The severity of the punishment which conviction might entail. If the offence attracts a light punishment, then the court will be more likely to grant the application.

The antecedents (background and character) of the accused. Court will considers the general character and past conduct of the accused person. Where the accused person is a first offender, he/she stands higher chances of being granted bail.

Whether the accused has a fixed place of abode, which is a permanent residence or home within the jurisdiction of the court.

Whether the accused is likely to interfere with state witnesses when released.

The age and health status of the accused person.

Whether the accused person has sureties or not.In the event that bail is not granted to the accused, the Magistrate gives reasons for his/her decision and informs the accused person of his/her right to apply for bail in a higher Court.

Trial on Indictment Act (T.I.A)

The Trial on Indictment Act, Cap 23 (TIA) is the law governing the trial procedure of criminal cases in High Court. The High Court has unlimited power to hear criminal matters and appeals from the lower courts. The TIA gives High Court unlimited power to grant or deny accused persons bail and provides for the procedure adopted by Court in doing so. bail may be granted by the High Court at any stage of the proceedings. ‘Circumstances when a detainee may be released on bail by the High Court.( Section 15of the Trial Indictment Act.)

The High Court may grant bail to an accused upon the accused proving exceptional circumstances that entitle him/her to be granted bail and also showing that he or she will not abscond when released.

Exceptional circumstances include:

i.That the accused is suffering from a grave or serious illness which has been approved by a qualified medical officer of the prison or other institution where the accused is detained as being incapable of being adequately treated while in custody or detention.

ii.When the accused produces a Certificate of No objection signed by the Director of Public Prosecutions (DPP).The Director of Public Prosecutions is the head of the Directorate of Public Prosecution which institution is responsible for the prosecution of all criminal cases in the country. The DPP has offices in many districts of Uganda and these offices are referred to as offices of the Resident State Attorney.

iii.When the accused shows that he or she is either an infant, or of advanced age.

In determining whether the accused will not abscond when released court will consider the following factors;

i.Whether the accused has a place of abode within the court’s jurisdiction,

ii.Whether the accused has sound sureties within the court’s jurisdiction, to undertake that the accused shall comply with the conditions of his or her bail;

iii.Whether the accused has on previous occasions when released on bail failed to comply with the conditions of his or her bail; and

iv.Whether there are other charges pending against the accused.

When will an accused be entitled to Mandatory bail under the T.I .A?

If an accused person has been remanded in custody before the commencement of his or her trial;

In respect of any offence punishable by death and life imprisonment, for a continuous period exceeding 180days and, In respect of any other offence, for a continuous period exceeding 60 days, the judge before whom he or she first appears after the expiration of the relevant period shall release him or her on mandatory bail.

It is important to note that if court is of the opinion that the sureties are not substantial or reliable, the person released may be re-arrested and ordered to produce more sureties and if the accused fails totally he/she will be imprisoned.

The Police Act

The Police Act Cap. 303 is the law which governs the structure, organisation, discipline and functions of Police. This Act gives police officers the duty of keeping law and order by arresting offenders and bringing them to justice, preventing people from committing offences and making sure that people obey orders issued by the authorities.

The following provisions are very important:

A person arrested by the Police is supposed to be produced before the Magistrate’s court within forty eight (48) hours of his or her arrest.

The provisions of the Act26 which allowed for a seven day transfer period for someone arrested by police from a different area than where he committed the offence were held to be inconsistent with the constitution by the Constitutional Court.

If a person is detained in police custody beyond forty eight hours without being charged in court, then he or she can apply to a Magistrate within twenty four hours who will then order for his or her release.

If a person is tortured while in police custody, he or she can state his complaint to the Chief Magistrate who shall order for his or her examination and medical treatment at the expense of the State and the person responsible for the torture will be charged.

No money should be paid to police in order to be released on police bond.

Uganda People’s Defence Forces Act (UPDF ACT)

The Uganda People’s Defence Forces, Act No. 7 of 2005, is the main law governing the establishment and regulation of the army. The Act under Section 219 UPDF Act, it provides that a military court may grant bail to a person charged before it on the same considerations that govern bail in civil or ordinary courts.

Note: Courts have interpreted most of the above provisions and pronounced them null and void for being inconsistent with the Constitution and thereby ordered Parliament to amend the subordinate laws so as to bring them in conformity with the Constitution. This is the major focus of Chapter three of this Handbook(Foundation for Human Rights Initiative V Attorney General, Constitutional Petition No.20 of 2006.).

The Object of bail

The object or purpose of bail is to ensure that the accused person will attend his/her trial without being detained in prison on remand.

Effect of granting bail

The effect of granting bail is not to set the accused free but to release him/her from custody. This helps the accused person to prepare his/her defence, contact witnesses to testify in his/her favour and gives the Police ample time within which to effectively investigate and prosecute the case against the accused person. The sureties make an undertaking to court or enter recognisance that the accused person will appear in court on a date and time set by Court.

It should be noted that bail is not a punishment. It should therefore not be excessive and Magistrates or Judges should whenever possible grant bail to the accused person.

Likewise, the amount to be paid as security should not be excessive as to defeat the whole purpose of granting bail. In determining the amount to be paid, Court should put into consideration the nature and gravity of the charges brought against the accused person and the sentence to be given to the accused person in case of a conviction.

What is the effect of bail?

Upon the grant of bail, the accused is set free forthwith from prison, unless held on any other lawful charge. The accused is to enjoy all the benefits that accrue to a free person, subject to the bail terms set by court. This does not however mean that the accused is set free from the charges levelled against him or her. He/she continues to attend court and to answer to the charges until the Judge or Magistrate delivers his/her judgement.

Whether To grant or deny bail:

The law as explained above gives the accused person a right to apply for bail. However, it should be noted that the decision to grant or deny bail lies with the magistrate or Judge before whom the accused person is appearing. Once the accused person exercises his/her right by applying for bail, the presiding judge or Magistrate must weigh the arguments for and against the application and apply the law before he/she grants the accused person bail. This discretion has in the recent past been interpreted to be restricted to set conditions to ensure the accused person’s return to attend court when the trial commences. However, where the Magistrate or Judge is not convinced that the accused person will abide by the bail conditions, he/she has discretion not to grant bail.

The right to bail in Uganda has remained controversial since the year 2005. Well as the Constitution recognises the rights of an accused person to be released on bail, and the powers to release which is conferred on the Courts of Judicature, this power has been challenged many times or questioned by different stakeholders some times through Pre-trial detention. There is therefore a need to create awareness and to enhance a shared understanding of this right in order to ensure that the rights of pre-trial detainees are not compromised in any way.

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Criminal Proceedings Pretrial to post judgment

Criminal Proceedings Pretrial to post judgment

Thursday, September 27, 2018

Criminal Proceedings
Pretrial to post judgment

TERM 1
WEEK 1
• Pre trial rights and remedies (rights of suspect)
• Dpp; the mandate. Article 120
• Rules governing plea taking. Adnan v Republic get a copy
• Pleas; how to enter, how to record
• Bail before trial and rules governing, and reasons that should be advanced
• Review of bail when conditions are hard.
• Andrew Onyango Obbo
• Wadri v

WEEK 2
• Specialized proceedings in magistrates courts.
• Crimes outside the penal code. Crimes in Wildlife Utilities and Standards courts, Anti Terrorism,
Traffic and road safety act
• Demonstrating skills
At the end of second week in December Written practical examinations- Proceedings in Magistrates courts
• Supervisory powers of CM

TERM 2
(High Court )
ADNAN v Republic
Trial proceedings in High Court
• Committal proceedings
• Role of various stake holders, court, state attorney, defense counsel
• Role of state counsel in state brief
• Prima facie case
• No case to answer
• Role of assessors
• Writing of submissions by counsel, rulings by court and judgments
• Role of registrar and other stake holders (cause list, stake holders meeting, etc)
Examination in 2nd term is oral practical.
Shall be examined on both term 1 and term 2

TERM 4
Post judgment remedies
• REVISION purely done by High court
• APPEALS 1st and 2nd appeals
• Types of sentences imposed.
• Perusal of record of proceedings and judgment as a single document
• Formulating grounds of appeals and when it can be dismissed.
EXAMINATION
One from 4th term the other from 2nd term

REQUIREMENTS
• Attendance
• Participation
• Get relevant legislation. Most principles are settled in case law.(Mpeirwes case dog evidence, admissibility of voice evidence, factors favoring identification and rules governing a single identification witness etc, juvenile proceedings)
• Read all authorities/cases of the week
• Don't just give the holding of court in exams but also appreciate the facts
• Always consult.
• Have a firm grasp of the criminal law
• Make professional friends.
• Get a copy of "Common offences in Uganda by F.M. Ssekandi"
• Form discussion groups to discuss topics maximum of 10
• In class first impression is smartness.
• Organize your work
• Read and prepare for classs
• Study and answer the file as it is given to you. You must understand the file.
• Look through your law of evidence notes for guidance as well.
• Consultation with lectures is only on professional matters.
• The law is always developing. Be cautious when doing research.
• Take note of the learning outcomes.
• Learning outcomes Monday-Friday 5pm
• Appreciate and consider all outcomes of the week.

Extension/emerging trends in criminal
• Plea bargaining
• Pre-trial disclosure
• Mitigating of sentences
• Sentencing guidelines

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Faculty of Law Crimial Liability Reading List And Course Outline 2

Faculty of Law Crimial Liability Reading List And Course Outline 2

Thursday, June 29, 2017

By the end of this course you should Be familiar with the Penal Code Act, Cap. 120 Be aware of the crimes and offences presscribed in the Penal Code Act; Know the elements of the crimes and offences in the Penal Code Act; Be aware of other legislation creating other major crimes and offences; Know the general principles of criminal responsibility;

(ii) Homicide offences.

Essential areas in which a student is required to direct his mind when dealing with homicide offences includes definition of homicide, causation in homicide, murder, manslaughter, infanticide

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Faculty of Law Crimial Liability Reading List And Course Outline

Faculty of Law Crimial Liability Reading List And Course Outline

Thursday, June 29, 2017

The objective of this course is to introduce you to the Penal Code Act, Cap. 120 and the elements of particular crimes. Broadly these crimes can be categorised as offences against the person, offence against property, offences against public tranquility, offences against the administration of justice, offenses against domestic and marital obligations, forgery and similar offences, offences against liberty, corruption, abuse of office and similar offences. The course will also look at inchoate offences, incitement, conspiracy and attempts etc.

By the end of this course you should:

(a) Be familiar with the Penal Code Act, Cap. 120;
(b) Be aware of the crimes and offences presscribed in the Penal Code Act;
(c) Know the elements of the crimes and offences in the Penal Code Act;
(d) Be aware of other legislation creating other major crimes and offences;
(e) Know the general principles of criminal responsibility;

Principal legislation

1. The Constitution
2. The Penal Code of Uganda, Cap 120
Please remember that other offences are covered by specific legislation. For instance corruption is covered by the Anti Corruption Act, 2009, Act No. 6 of 2009

General Textbooks

1. Kenny’s Outlines of Criminal Law
2. Seidman R.B Sourcebook of Criminal Law of Africa, Lagos African University 1966
3. Smith and Hogan: Criminal Law: Cases and Materials
4. Criminal Law in Uganda, Sexual Assaults and offences against Morality, Lillian T. Ekirikubinza
5. Homicides and Non-fatal assaults. Lillian T. Ekirikubinza
6. Criminal Law of East and Central Africa, Collingwood
7. General Principles of Criminal Law, Hall
8. Introduction to Criminal Law, Cross and Jones
9. Leading East African Criminal Law Cases, A Kiap

TOPIC ONE: OFFENCES AGAINST PERSONS

The aim of the topic is to expose a student to the understanding of offences relating to person including assault and battery, homicide, and sexual offences. Student will be equipped with the knowledge on the elements of each offence.

In homicide a student will gain knowledge on the types and degree of homicide.

In sexual offences, a student will be equipped with the trend of sexual offences in Uganda, the elements of rape in contrast to other sexual offences.

(i) Non-fatal Assaults

1. Smith & Hogan – Criminal Law: Ch. 11.
2. Kenny: Outline 17th Ed. Chapter 8.
3. Penal Code Act, Cap. 120, Chapter XIV, XXIII & XXVII.

(a) Assault s. 235 (common assault s. 236, assault occasioning actual bodily harm)

Cases:

1. Abubakali & Another v. Uganda [1973] EA 230
2. R v Miller [1954] 2 QB 282
3. Uganda v Muhamad Tembo and 2 others [1992-1993] HCB 78
4. Musa v R [1967] EA 537
5. Gaturo Njau v. R. (1948) 23 KLR (1) 60.
6. R. v. Msungwe (1968) E.A. 203.
7. Nzige Juma v. R. (1964) E. A. 107.
8. Waera Madoya v. R. (1962) E.A. 783.
9. Gichunge v R [1972] EA 546
10. Rashid v Republic [1971] EA 112
See also Turner: Assault at Common Law (1939) I.C.L.J 56

(b) Unlawful wounding s. 222

Cases
1. Joseph Byarugaba v Uganda part1 [1973] U.L.R 4
2. Rajan v. R [1958] E.A 448
3. A.G Nyasaland v. Lejasi [1962] R & N 185

(c) Grievous bodily harm s. 219

1. Gitau v. R. (1967) E. A. 449.
2. R. v. Msungwe (1968) E.A. 203.
3. DPP v Smith 1961 AC 290
4. Uganda v Charles Akaku [1992 -93] HCB 49
5. Uganda v Monoko and 2 Others [1985] HCB 16
6. Uganda v Eragu [1976] HCB 187
7. Uganda v Pampara [1991] HCB 16
8. Uganda v Ogwanga Criminal Revision No.43 of 1978
9. Gitau v R [1961] EA 449
10. Martins case (1881) QBD 54
11. R v Fakili [1954] TLR 44
12. Chila and Another v Republic 1957 EA 722.
13. Kapwepwe v R [1954] 5 NRLR 384
14. Chinjamba v R [1954] 5 NRLR
15. Phiri v R [1945] NRLR 324
16. Barugahara v Uganda [1969] EA 72 (U)
17. Abasi Kibazo v Uganda [1969] EA 507
18. Rex v Ranazani Bin Mawjugu [1936] 3 EACA 39
19. Republic v Gaidi Ali [1965] EA 512 (T)
20. Hamisi v Republic [1972] EA 367
21. Uganda v Kayibanda [1976] HCB 15
22. Uganda v Ochilata [1977] HCB 253
23. Uganda v Venanoro Bamutala [1979] HCB
24. Charles Katende v Uganda [1971] EA 98

(d) Criminal recklessness and negligence s. 234-237

1. A.G v Hook 24 K.L.R 104
2. R v. Ross 6 U.L.R 37
3. R v. Debhelkar 11 EACA 102
4. Phillip v. R 19 E.A.C.A 231
5. R v. Machai & Chiembe 2 N.R.L.R 90
6. Melbui v. Dyer [1967] E.A 315

(e) Kidnapping and abduction

1. R v. Trolley 2 N.R.L.R 4
2. R v. Mshangama 7 Nya L.R 81
3. R v. Awame 2 Nya L.R 19
UCU Faculty of Law Criminal Liability Reading List And Course Outline Continued

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Criminal Defense Laws and Strategies

Criminal Defense Laws and Strategies

Monday, May 15, 2017

Criminal defense law is the basis for the defendant’s rights and protection afforded to him when he is accused of doing a crime. The fifth, sixth and the eighth Amendment of the Constitution are the basis for these rights. Criminal defense is strictly implemented to balance the playing field between the defendant and the prosecution since the prosecution’s resource is the government.

Based on the criminal defense laws, the defendant is afforded these rights:

1. Ability to be released from jail while trial is pending.

To be in jail is not a very pleasant experience and not something that a lot of people welcome. Apart from the discomfort of being in jail, the defendant, who is still not proven to be guilty, will not be able to work and earn. This inability will limit the defendant’s ability to pay for his/her financial obligations like paying for his/her legal criminal defense lawyer. For cases that involves the possibility of paying fines and settlement, this will especially make it more complicated. If the defendant is allowed to be out of jail, he/she will also be able more accessible to his/her lawyer allowing for more cooperation. In order for the defendant to be released from jail, a bail must be paid. A bail is a certain amount of money set by the court and paid to the court as collateral for temporary freedom and a guarantee that the accused will return to the court when trial starts.

2. Plea Bargaining.

An accused or the defendant has two options in dealing with the prosecutors - fight at every turn or get a deal. To get a deal, the defendant enters into a plea bargain with the prosecutors by agreeing to plead guilty the charges he is accused of to save court fees and time, and in return, the prosecutor will give the accused a lighter sentence. Plea bargaining is one of the reasons why a lot of criminal cases don’t need to be tried in court anymore.

3. Right to a fair trial.

When or if a criminal case proceeds to trial, the defendant and his/her chosen legal representation should be given a chance to prepare a strong legal defense to get a fair trial. The court has made this possible by giving the criminal defense attorney an access to the evidence gathered by the prosecution and the law enforcement. If some of the evidences are illegally gathered, then these evidences cannot be used in the court. Access to these evidences is very important so that the defense team can debunk them or present different evidence that proves the defendant’s innocence. More info and details can be found in this link: https://www.cmcdefense.com/domestic_violence.php

In criminal defense, strategies are important in order to prove a defendant’s innocence. Different strategies are used by criminal defense lawyers depending on the circumstances of the case as well as the available evidence. In a lot of criminal cases, these are the common strategies that criminal defense attorneys often use:

· Self- defense –

This strategy is a type of an affirmative criminal defense strategy commonly used in cases where the defendant is accused of killing or hurting someone. In this defense strategy, the defendant accepts the fact but denies responsibility by claiming that the crime was done in self-defense. In many jurisdictions, self defense is a valid defense whereby the defendant cannot be proven guilty if he/she did it for self-defense or defense of another person.

· Insanity plea –

This defense strategy is used by criminal defense lawyers when the defendant claims that he/she was temporarily or is permanently suffering a mental breakdown or mental disorder when the crime was committed therefore he/she lost the ability to understand that what he/she did was wrong. This defense is often not successful since the court sets a high standard for proving a mental breakdown or mental illness. On the other hand, if the court is convinced of the insanity plea, then you might not get a prison sentence but you will have to be taken to a mental institution to get treatment and can only be released once the doctor has establish that you are mental fit to return and interact with the general public.

· Coercion and duress –

This criminal defense says that a person doing the crime only did so because he/she or another person important to him/her was being threatened harm. However, if a previous illegal/unlawful act was the cause of the duress, then this defense strategy cannot be used in the court.

· Consent –

In some crimes, this defense strategy of providing proof that the alleged victim gave consent for an act that was deemed illegal can result to a dismissal or a lighter sentence.

· Intoxication –

This defense strategy does not necessarily clear you of responsibility for the illegal act you did, but it can mitigate the case and most likely lead to a lighter sentence. In this defense, intoxication must not be self inflicted. Instead, the defendant must be unknowingly drugged or given liquor to and was intoxicated when the crime was committed therefore unaware of the acts and the consequences of these acts. This defense strategy is often used to deflect any evidence that sets “intent” in doing the crime.

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Procedure for applying for bail In Uganda and the posed Challenges

Procedure for applying for bail In Uganda and the posed Challenges

Monday, September 26, 2016

In reference to the law relating to Bail, the general idea in regard to bail is that a person presumed to be innocent and who is entitled to a speedy trial should not be kept behind the bars unnecessarily long before their trial and this is the rationale of Article 23 (6) of the Constitution.’ as per Justice Twinomujuni: in 2004.

Bail in Magistrates Court.

How does one apply for bail in a Magistrate’s court

An application for bail can be made orally by an accused or his or her lawyer/advocate in court. Alternatively it can be made in writing and should be supported by an affidavit. An affidavit is a sworn statement made by someone, setting forth the reasons as to why court should consider granting their application and could be used against him/ her in the courts of law.

What does a Magistrate’s court consider in order to grant bail?

When an application for bail is made by the accused or his lawyer in a Magistrates’ court, certain factors shall be put into consideration by the court on whether or not to grant bail.

These include:

The nature of the offense the accused is charged of. 

The seriousness of the offense and how severe the likely punishment for the offence is. 

The character of the accused, in particular whether the accused is likely to report to Court whenever required. 

Whether the accused has a fixed place of abode (home) within the courts jurisdiction (area of operation or control). 

Whether the accused is likely to interfere with State witnesses. 

What does court require of an accused asking for bail?

Sureties and Security

Who is a surety?

A surety is a person who guarantees to court upon the grant of bail to an accused that the accused will return to court every time he is required.

What should a substantial surety possess?

For a person to be a surety in court, they should possess the following

An introduction letter from the Local Council 1 Chairman of the area where they reside.

A valid identity card indicating their place of work, business or residence, and in the alternative.

A passport or driving permit can also be used for identification.

What is the role and duty of a surety?

A surety has the principal duty of ensuring that the accused does not abscond from justice. The surety therefore has to ensure that the accused regularly appears in court till the conclusion of the case.

What happens if a surety wants to be discharged?

It should be noted that sureties have a right to apply to court to discharge their bond. If this is done, court will order for the arrest of the accused so that he/ she can find other sureties.

What happens if a surety dies?

If a surety dies, their estate is no longer liable and the accused is required to find another surety.

What is Security?

Security is the amount of money paid or property pledged to court by the accused or his/ her surety as a guarantee that person will appear for trial.

What happens if the accused deposits the security required?

Security maybe in form of cash or some other property and court will require this when it is satisfied with the accused’s sureties. 

A receipt called a “General receipt” should always be issued on payment and the accused will use this when claiming a refund of his/ her bail money. This money can only be refunded when the case is completed and if the accused has fully complied with the bail terms. 

The accused may also be required to deposit his/ her passport in court as part of the bail terms.

What happens when the accused fulfills the bail terms?

After complying with the terms of bail, the accused and his sureties will fill and sign the bail form which the Magistrate will sign and seal. 

These forms are then presented to the Prison warders for release of the accused from the court cells immediately, unless held on some other lawful charge.

What happens when the accused fails to fulfill the bail terms?

If bail is granted but the accused fails to comply with the terms, he/ she is remanded till a specified date or until he/ she complies with the terms.

The accused can however be produced in court, before a specified date for purposes of being released on bail if they, their relatives or their lawyer apply for a production warrant.

What happens when a Magistrate’s court refuses to grant bail?

If a lower court denies an accused bail because of the fact that it has no powers to grant bail to such a person, then it shall record its reasons and inform the accused of his right to apply for bail to the High Court. On application by the accused to the High Court, it can order grant of bail for those offences that a Magistrate court is excluded from. 

The High Court can also order the reduction or increase of bail granted under a Magistrate court. Failure of an accused to comply with an order for increased bail can lead to his or her arrest and subsequent committal to prison.

Bail in the High Court

Under what circumstances will High Court grant bail?

The High Court has the power to grant bail to a person accused of the offenses mentioned earlier above that a Magistrate court is excluded from granting bail, or if the accused is tried before it, if he/ she does not prove to court that;

a) Exceptional circumstances justify his or her release on bail.

b) That the accused will not abscond when released on bail.

What amounts to exceptional circumstances?

• Grave illness of the accused certified by a medical officer of the prison or other institution or place where accused is detained, as being incapable of adequate medical treatment while in custody.

• A certificate of No Objection to the grant bail, signed by the Director of Public Prosecutions.

• The infancy or advanced age of the accused.

• What is considered in determining whether the accused will not abscond?

• Whether the accused has a fixed abode (home) within the jurisdiction (area of control) of court or is ordinarily resident outside Uganda?

• Whether the accused has sound securities within the jurisdiction to undertake that he/ she shall comply with conditions of their bail?

• Whether the accused has on previous occasions when released on bail failed to comply with the conditions of his/ her bail?

• Whether there are other charges pending against the accused?

How does one apply for bail in the High Court?

The procedure for applying for bail in the High Court is not very different from that mentioned in the Magistrate courts. Applications to the High Court should strictly be in writing, by Notice of Motion and should be supported by an affidavit. 

The High Court will require substantial sureties, sometimes deposit of a specified sum of money or deposit of important documents like land titles etc. If these conditions are not met then court will refuse to grant bail. It is however advisable for an accused to reapply for bail before the same court he/ she applied the first time, after lapse of some time or if the conditions under which bail was refused have changed.

What is the procedure if an accused has been remanded for a longer period than is required by law?

If an accused person has been remanded in custody before commencement of his/ her trial for 180 days or more in respect of any offence punishable by death or 60 days or more in respect of any other offence, a judge or Magistrate before whom an accused is brought shall release him/ her on bail on their recognizance. At the lapse of this statutory period, the accused or his advocate is supposed to inform the court to which he first appears about his status, and thereafter, the court has no discretion on whether or not to grant the bail, but to just set the terms for the bail.

What happens where the accused has been committed to the High Court?

Committal takes place when an accused who is going to be tried in the High Court is sent for trial by a Magistrate’s court. Where an accused that is on bail is committed for trial to the High Court, the bail automatically lapses and he or she is supposed to make a fresh application to the High Court.

Can an accused apply for bail when appealing his case?

Bail can be granted to a convicted person at any time pending the determination of his/ her appeal. The High Court, Court of Appeal and Supreme Court have powers to grant bail to an appellant except where he/she is sentenced to death. It is however a necessary requirement that the accused should file an appeal in a competent court before he/ she can apply for bail pending appeal.

When will bail pending appeal be considered?

Bail pending appeal will be granted after court has taken into regard exceptional circumstances. These include;

• The likelihood of success of the appeal.

• The likelihood of a delay in hearing the appeal.

• The length of the sentence imposed.

• The complexity of the case.

What are the responsibilities of sureties upon the grant of bail?

• To sign the bail papers.

• To ensure that the accused honours the bail terms.

• To ensure that the accused returns to court whenever called upon to do so.

• To inform court whenever there is a variance or unreasonable conduct on the part of the accused so as to request for a discharge.

What happens upon breach of the bail terms by the accused?

Upon breach of the bail terms, the accused is liable to be arrested and sent toprison, unless he or she shows reasonable cause as to why he or she should not be.

Bail in the Court of Appeal

The Court of appeal is an appellate Court (not court of original jurisdiction) and it hears appeals from the decisions of High Court. When a person is convicted and sentenced by the High Court that person is free to appeal against the decision of High Court in the Court of appeal. The procedure for application for bail is the same as in High Court.

Bail in the Supreme Court

The Supreme Court is the highest and final court of appeal. When a convicted person fails to secure bail in the Court of appeal he can lodge an appeal in the Supreme Court.

The procedure for application is the same as in High Court.

Challenges posed by the law on bail

Public opinion

The general public has a mentality that when a person is arrested for commission of an offence, he/she should be locked away indefinitely or at least until his case is tried and concluded. Anything short of this amounts to bribery or corruption on the Police or judicial officers’ part to ensure the accused person’s release. This has led to loss of confidence in the judicial system and accounts for most of the mob justice cases. Thus there is a dire need for sensitisation of the public on the law of bail, its application and implications.

Political pressure

The law on bail has equally been misunderstood by politicians who use it as a tool for oppressing their opponents. Often times when a suspect is arrested on charges which have political connotations, his/her right to bail is clouded with political tension and threats to judicial officers.

A case in point is when the black mamba usurped the powers of court, re-arrested and detained a presidential aspirant upon release on bail by the High Court. The public however needs to understand that rights are inherent and not granted by the state, they cannot just be wished away by the government of the day. That is why the Magistrates and Judges before whom the accused persons appear must always exercise their discretion judiciously and grant these people bail on conditions that ensure their return to court contrary to any executive guidelines that they may receive.

Jumping bail

In some cases accused persons released on bail fail to meet the conditions set by court to ensure their return to attend trial. This derails the efforts of the prosecutors and judicial officers and casts doubt on the character of the accused person. That is why the law requires that as soon as the accused person jumps bail or fails to turn up for trial as required by Court, a warrant for his or her arrest is issued and once arrested he/she is detained never to be released on bail again. It is thus important for accused persons to understand that release on bail is not an acquittal and that they must turn up for trial, lead evidence in defense of their cases, receive the judgement and serve the sentence given.

Bail Conditions

The law on bail requires an accused person to fulfill several conditions before being granted bail, including, among others, taking a personal cognizance from him or her, admitting at least two substantial sureties who must know or have a close relationship with the accused person and are duly recommended by the local authorities where they live and are bonded in a sum of money determined by Court. This is to ensure that the accused person shall return to court whenever he or she is called upon to do so. On many occasions the cash bond cannot be raised by the accused especially when they are indigent. Therefore, whereas there is a need by courts to balance the interest of justice, many times these monetary conditions are restrictive on the right to bail for the poor persons.

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Crimial Liability Reading List And Course Outline 3

Crimial Liability Reading List And Course Outline 3

Thursday, June 30, 2016

The aim of the topic is to expose a student to offences relating to property such as theft, false pretences, receiving stolen properties, money laundering, forgery, uttering, robbery, extortion, burglary, arson, corruption. The student will be equipped with the elements of each offence to enable a student to tell the differences as well as similarities between these offences.

TOPIC TWO: OFFENCES AGAINST PROPERTY

Cases:
(i) Theft
1. R. V. Naesario [1960] EA 267
2. Kyewawula V. Uganda [1974] EA 293

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Whether the law should enforce moral values?

Whether the law should enforce moral values?

Sunday, November 29, 2015

This is more controversial, and there has been considerable debate about whether the  law should be used to enforce moral values. It can be argued that it is not the function of criminal law to interfere in the private lives of citizens unless it is necessary to  try to impose certain standards of behavior. The Wolfenden Committee reporting on homose.xual offences and pro.stitution (1957) felt that intervention in private lives should only occur in order to:

• preserve public order and decency
• protect the citizen from what is offensive or injurious
• provide sufficient safeguards against exploitation and corruption of others,  particularly those who are especially vulnerable Lord Devlin disagreed. He felt that ‘there are acts so gross and outrageous that they must be prevented at any cost’. He set out how he thought it should be decided  what type of behaviour be viewed as criminal by saying:

How are the moral judgments of society ascertained?

It is surely not enough that they should be reached by the opinion of the majority; it would be too much to require the individual assent of every citizen. English law has evolved and regularly uses a standard  which does not depend on the counting of heads. It is that of the reasonable man. He is  not to be confused with the rational man. He is not to be expected to reason about anything and his judgment may be largely a matter of feeling ... for my purpose I should like to call him the man in the jury box It is not nearly enough that to say that a majority dislike a practice: there must be a real feeling of reprobation ... I do not think one can ignore disgust if it is deeply felt and not manufactured. Its presence is a good indication that the bounds of toleration are being reached.’

There are two major problems with this approach. First, the decision of what moral behaviour is criminally wrong is left to each jury to determine. This may lead to inconsistent results, as there is a different jury for each case. Second, Lord Devlin is content to rely on what may be termed ‘gut reaction’ to decide if the ‘bounds of toleration are being reached’. This is certainly not a legal method nor a reliable method of deciding what behaviour should be termed criminal. Another problem with Lord Devlin’s approach is that society’s view of certain behaviour changes over a period of time. Perhaps because of the lack of agreement on what should be termed ‘criminal’ and the diffi culty of fi nding a satisfactory way of legally defining such behaviour, there is another problem in that the courts do not approach certain moral problems in a consistent way.  This can be illustrated by confl icting cases on when the consent of the injured party can be a defence to a charge of assault. 

The first is the case of Brown (1993) 2 All ER 75.

In  Brown (1993) 2 AII ER 75 Several men in a group of consenting adult sado-masochists were convicted of assault causing actual bodily harm (s 47 Offences Against the Person Act 1861) and malicious wounding (s 20 Offences Against the Person Act 1861). They had carried out in private such acts as whipping and caning, branding, applying stinging nettles to the genital area and inserting map pins or fish hooks into the penises of each other. All of the men who took part consented to the acts against them. There was no permanent injury to any  of the men involved and no evidence that any of them had needed any medical treatment. The House of Lords considered whether consent should be available as a  defence in these circumstances. It took the view that it could not be a defence and upheld the convictions.

Lord Templeman said: The question whether the defence of consent should be extended to the consequences of sado-masochistic encounters can only be decided by consideration of policy and public interest ... Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infl iction of pain is an evil thing. Cruelty is uncivilised.’

Two of the judges dissented and would have allowed the appeals. One of these judges, Lord Slynn, expressed his view by saying:

‘Adults can consent to acts done in private which do not result in serious bodily harm, so that such acts do not constitute criminal assaults for the purposes of the 1861 [Offences Against the Person]Act. In the end it is a matter of policy in an area where social and moral factors are extremely important and where attitudes could change. It is a matter of policy for the legislature to decide. It is not for the courts in the interests of paternalism or in order to protect people from themselves to introduce into existing statutory crimes relating to offences against the person, concepts which do not properly fit there.’

The second case is that of Wilson (1996) Crim LR 573,

Where a husband had used a heated  butter knife to brand his initials on his wife’s buttocks, at her request. The wife’s  burns had become infected and she needed medical treatment. He was convicted of assault causing actual bodily harm (s 47 Offences Against the Person Act 1861) but on appeal the Court of Appeal quashed the conviction.

Russell LJ said: We are firmly of the opinion that it is not in the public interest that activities such as
the appellant’s in this appeal should amount to a criminal behaviour. Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judg-ment, a proper matter for criminal investigation, let alone criminal prosecution ... In this field, in our judgment, the law should develop upon a case by case basis rather than upon general propositions to which, in the changing times we live, exceptions may arise from time to time not expressly covered by authority.’

The similarities in the two cases are that both activities were in private and the participants were adults. In Brown there were no lasting injuries and no evidence of the need for medical treatment, whereas in Wilson the injuries were severe enough for Mrs Wilson to seek medical attention (and for the doctor to report the matter to the police). The main distinction which the courts relied on was that in Brown the acts were for sexual gratifi cation, whereas the motive in Wilson was of ‘personal adornment’. Is this enough to label the behaviour in Brown as criminal? (See sections 8.9.3 and 8.9.4 for further discussion of the decision in Brown and also the decision of the European Court of Human Rights in the case.).

The reference in Russell LJ’s judgment to changing times acknowledges that soci-ety’s view of some behaviour can change. There can also be disagreement about what morals should been forced. Abortion was legalised in 1967, yet some people still believe it is morally wrong. A limited form of euthanasia has been accepted as legal with the ruling in Airedale NHS Trust v Bland (1993) 1 All ER 821, where it was ruled that medical staff could withdraw life support systems from a patient, who could breathe unaided but was in a persistent vegetative state. This ruling meant that they could withdraw the feeding tubes of the patient, despite the fact that this would inevitably cause him to die. Many people believe that this is immoral, as it denies the sanctity of human life.

All these matters show the difficulty of agreeing that one of the purposes of criminal law should be to enforce moral standards.  As moral values will have an effect on the law, what conduct is criminal may, there-fore, vary over time and from one country to another. The law is likely to change when there is a change in the values of government and society.

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Introduction to criminal law - aims and objectives

Introduction to criminal law - aims and objectives

Sunday, November 29, 2015

After reading this post you should be able to Understand the basic origins and purposes of criminal law, Understand the definitions and classifications of criminal law, Understand the basic workings of the criminal justice system ,Understand the basic concept of the elements of  actus reus and mens rea in criminal law, Understand the burden and standard of proof in criminal cases, Understand how human rights law may have an effect on criminal law.

This post deals with substantive criminal law. Substantive criminal law refers to the physical and mental element (if any) that has to be proved for each criminal offence. It also includes the general principles of intention and causation, the defences avail-able and other general rules such as those on when participation in a crime makes the person criminally liable. Substantive criminal law does not include rules of procedure or evidence or sentencing theory and practice. However, these are equally important parts of the criminal justice system. This post , therefore, gives some background information on criminal law.

The purpose of the criminal law is considered, as well as how we know what is recognized as a crime, and the sources of criminal law. There are also brief sections explaining the courts in which criminal offenses are tried, and the purposes of sentencing. The penultimate section of this post explains the burden and standard of proof in criminal cases. The final section looks at the effect of human rights law on criminal law.

Introduction to criminal law
‘How are the moral judgments of society to be ascertained? It is surely not enough that they should be reached by the opinion of the majority; it would be too much to require the individual assent of every citizen. English law has evolved and regularly uses a standard which does not depend on the counting of heads. It is that of the reasonable man. He is not to be confused with the rational man. He is not to be expected to reason about any- thing and his judgment may be largely a matter of feeling for my purpose I should like to call him the man in the jury box.

Purpose of criminal law
The purpose of criminal law has never been written down by Parliament and, as the criminal law has developed over hundreds of years, it is difficult to state the aims in  any precise way. However, there is general agreement that the main purposes are to:

• protect individuals and their property from harm
• preserve order in society
• punish those who deserve punishment

However, on this last point, it should be noted that there are also other aims when a sentence is passed on an offender. These include incapacitation, deterrence, reformation and reparation.  In addition to the three main aims of the criminal law listed above, there are other points which have been put forward as purposes. These include:

• Educating people about appropriate conduct and behavior.
• Enforcing moral values

The use of the law in educating people about appropriate conduct can be seen in the drink-driving laws. The conduct of those whose level of alcohol in their blood or urine was above specified limits has only been criminalised since 1967. Prior to that, it had to be shown that a driver was unfit to drive as a result of drinking. Since 1967, there has been a change in the way that the public regard drink-driving. It is now much more unacceptable, and the main reason for this change is the increased awareness, through the use of television adverts, of people about the risks to inno-cent victims when a vehicle is driven by someone over the legal limit.
This takes us to the next question of Whether the law should enforce moral values? 

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Faculty of Law Crimial Liability Reading List And Course Outline 4

Faculty of Law Crimial Liability Reading List And Course Outline 4

Tuesday, June 30, 2015

Under this heading, student is equipped with different types of sexual offences and their distinguishing features. The offence includes Rape, Defilement, Indecent Assaults, Incest, Abduction, Prostitution, Abortion, Bigamy, Elopement, Adultery, Unnatural offences and Indecent Practices).

TOPIC THREE: OFFENCES AGAINST MORALITY

Readings:
1. Sections. 123 – 139, 154, 145, Penal Code Act.
2. Smith & Hogan: Criminal Law Cases and Material (1986 Ed.) pp. 392 – 394 (and other relevant texts).

Cases
1. Ngobi v. R. 20 EACA 154.
2. Njuguna Wangurimu v. R. 20 EACA 196.
3. R. v. Williams (1923) 1 KB 340
4. R. v. Steel (1976) 65 Cr. App. Rep. 22.
5. R. v. Bourne (1938) ALL ER 615.

(a) Rape and defilement

1. Kayondo Robert v. Uganda CA 18/96
2. Kibale v. Uganda [1999] 1 EA 220
3. Nfitumukiza v. Uganda [1999] 1 EA 220
4. Katumba v Uganda SCCA 19/95
5. Chapman (1959) QB 100.
6. Obvien (1974) All ER 663.
7. Wellard (1978) 3 All ER 161.
8. Fletcher (1859).
9. Dee (1884) 15 Cox CC 579.
10. R. v. Williams (1923) 1KB 340.
11. Flattery (1977) 2 QB 410.

(b) Prostitution and other related offences s. 136 - 139
 1. Katuria v Republic [1969] EA 16

(c) Elopement s 127
1. Uganda v Suleman [1971] EA 46
2. Uganda v Wadada [1972 ULR 25
3. Uganda v Olungu [1972] EA 136
4. Uganda v Ojok [1973] 489
5. Uganda v Akua [1973] EA 246
6. Uganda v Damulira [1976] HCB 11
7. Uganda v Odo [1977] HCB 15

(d) Adultery
1. Uganda v Nikolla [1966] EA 345
2. Alai v Uganda [1967] EA 596
3. Ayor [1968] EA 303

(e) Bigamy, Incest, Unnnatural offences s. 145

(f) The Pants Down Rule
1. Adam Mulira v. R. (1953) 20 EACA

TOPIC FOUR: OFFENCES AGAINST STATE

(i) Treason ss 25, 26
1. Mattaka v Republic [1971] EA 497
2. R. v Ndamungu [1940] 8 EACA 64
3. Uganda v Mayanja & Six Others, High Court of Uganda
4. Patel & Anor v R 23 EACA 536

(ii) Terrorism
1. Anti Terrorism Act, 2002
2. ULS v AG Constititional Petition No. 18/2005

(iii) Sedition
1. Wallace Johnson v R (1940) AC 231
2. Masembe v R (1948) 6 ULR 195
3. Haruna Kanabi v Uganda HCCS Application No. 72 of 1995
4. R v Luima 16 EACA 128

TOPIC FIVE: OFFENCES AGAINST THE ADMINSTRATION OF JUSTICE

Perjury s 94, 97, 98
1. Esau v Uganda SCCA 32/91
2. Singh v R 24 KLR 81
3. R v Elok [1935] 5 ULR 64
4. R v Rawebhi 13 KLR 74

Contempt of court
1. Mullery v R [1957] EA 138
2. Uganda v Oketcho [1977] HCB 293
3. Uganda v Bagheni [1978] HCB 222
4. Uganda v Balaba [1977] HCB 293

Conspiracy to defeat the course of justice

Patel v R 23 EACA 536

TOPIC SIX: OFFENCES AGAINST PUBLIC TRANQUILITY

Defamation ss 179-186
1. Pfeiffer v Stevens [1930] ITLR (R) 178
2. R. V Motoki 23 K.L.R. 99
3. Ismail Mohamed v R. 24 K.L.R.98

Obsene publications ss 166

1. St John Steves, “Oscently and the Law”.
2. Bhatt v R [1960] EA 654
3. R. v Seeker & Marburg [1954] 2 A II ER 683

Common nuisance ss 160

1. R.v Chinyana & Anor 5 N.R.L. R. 375
2. R. v Kantinah & Other
3. R.v. M athewo 6 Ny L.R 128
4. R.v Quinn (1961) 3 All EE 88
6. R. v Madden [1975] I.W.L.R. 1379 (CA)

Insulting Language
1. R. v chata 5 N.R.L.R. 53

Unlawful society, assembly, Riot, etc ss 56-84

2. R.v Sarpong & Frimpong 2 W.A.L.R 342
3. Majawa v R [1957] 1, R & n 62
4. Hernes v R [1961] r & 34
5. Chande Bin Khamis Mtumbatu v. R [1961] EA 587
6. Wise v Dunning [1902 1 K. B. 267
7. Beatty v Gillbanks [1882 9 QB.D 308

Affray ss 79

1. R v. Ismall (1968) 609
2. R.v Herezi & Others

Witch Craft

1. The Witchcraft Act
2. Uganda v Fenekasi Oyuko Part 1 [1973] U.L.R. 35
3. Salvatori Abuki v Ag Constitutional Case No. 2 of 1997.

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Criminal Law Cases on Mens Rea

Criminal Law Cases on Mens Rea

Thursday, September 18, 2014

After unveiling the principles of criminal liability,  It is therefor an important duty of the prosecution to prove all the elements of the offense to the satisfaction of the judge or jury beyond reasonable doubt and in the absence of such proof, the defendant will be acquitted.

Cases Regarding Intention

Hyam v DPP [1975] AC 55 -

In This Case The defendant, in order to frighten Mrs Booth, her rival for the affections of Mr X, put buming newspaper through the letterbox of Booth's house and caused the death of two of her children. She claimed that she had not meant to kill but had foreseen death or grievous bodily harm as a highly probable result of her actions. Ackner J directed the jury that the defendant was guilty if she knew that it was highly probable that her act would cause at leas serious bodily harm.

Although Lord Hailsham LC stated that he did not think that foresight of a high degree of probability is at all the same thing as intention, and it is not foresight but intention which constitutes the mental element in murder, the House of Lords (by a 3-2 majority), held that foresight on the part of the defendant that his actions were likely, or highly likely, to cause death or grievous bodily harm was sufficient mens rea for murder.

R v Moloney [1985]1 All ER 1025:
In This Case The defendant and his stepfather drank a large quantity of alcohol at a dinner party. A few hours later they had a discussion about firearms, and had a shooting contest to see who could load and fire a shotgun faster. The defendant won but his stepfather challenged him to fire a live bullet. The defendant, who was unaware the gun was pointing at the victim, did this and killed his stepfather. The defendant was charged with murder. The trial judge directed the jury that the defendant had the necessary mens rea for murder if he foresaw death or real serious injury as a probable consequence of his actions, even if he did not desire it and he was convicted.

On appeal the House of Lords quashed the murder conviction and substituted a verdict of manslaughter, on the glOund that only intent to kill or cause really serious injury would be sufficient mens rea for murder. Lord Bridge said that the jury should be directed to ask themselves whether death or grievous bodily harm was the natural consequence of the defendant's act, and further whether the defendant foresaw death or grievous bodily harm as the natural consequence of his act. If the jury answered both questions in the affirmative they were entitled to infer that the defendant had intended the consequences of his acts.

R v Hancock and Shankland [1986] 2WLR 257.  
In This Case The defendants were striking miners who threw a concrete block from a bridge onto the motorway below. It struck a taxi that was carrying a working miner and kill ed the driver. The defendants argued that they only intended to block the road but not to kill or cause grievous bodily harm. The trial judge directed the jury on the basis of Lord B ridge's statements in Moloney (ie, was death or grievous bodily harm a natural consequence of what was done, and did the defendants foresee that consequence as a natural consequence?) and the defendants were convicted of murder.

On appeal a verdict of manslaughter was substituted by the House of Lords who reaffirmed that the prosecution has to establish an intentionto kill or do grievous bodily harm on the part of the defendant. Lord Scarman felt that the Moloney guidelines on the relationship between foresight and intention were unsatisfactory as they were likely to mislead a jury. Lord Scarman expressed the view that intention was not to be equated with foresight of consequences, but that intention could be established if there was evidence of foresight. The jury should therefore consider whether the defendant foresaw a consequence. it should be explained to tt-e jury that the greater the probability of a consequence occurring, the more Likely that it was foreseen, and the more likely that it was foreseen, the more likely it is that it was intended. In short, foresight was to be regarded as evidence of intention not as an alternative form of it.

R v Nedrick (1986) 83 Cr App 267.
In This Case A child had bumed to death in a house where the defendant had, without warning, put a petrol bomb through the letter box. He admitted to starting the fire but stated that he only wanted to frighten the owner of the house. The Court of Appeal overturned the murder conviction and substituted a verdict of mansl aughter as the judge had misdirected the jury.
Lord Lane CJ provided a model direction for a jury about intent in a murder case where the defendant did a manifestly dangerous act and someone died as a result. Lord Lane CJ suggested that when determining whether the defendant had the necessary intent, it might be helpful for a jury to ask themselves two questions: (1) How probatte was the consequence which resulted from the defendant's voluntary act? (2) Did he foresee that consequence?

• If he did not appreciate that death or serious bodily harm was likely to result from his act, he cannot have intended to bring it about.
• If he did, but thought that the risk to which he was exposing the person killed was only slight, then it might be easy for the jury to conclude that he did not intend to bring about the result.
• On the other hand, if the jury were satisfied that at the rnateial time the defendant recognised that death or serious bodily harm would be virtually certain (barring some unforeseen intervention) to result from his voluntary act, then that is a fact from which they may find it easy to infer that he intended to kill or do serious bodily harm, even though he may not have had any desire to achieve that result.

R v Walker and Hayles (1990) 90 Cr App R 226. 
The defendants threw their victim from a third floor balcony. At their trial for attempted murder the trial judga directed the jury that they could infer intention if there was a high degree of probability that the victim would be kill ed and if the defendants knew "quite well that in doing that there was a high degree of probability" that the victim would be killed. The defendants appealed on the ground that the trial judge was confusing foresight of death with an intention to kill and should have directed the jury in the Nedrick terms of "virtual certainty".
The Court of Appeal did not accept that the reference to "very high degree of probability" was a misdirection. However, Lloyd LJ stated that in the rare cases where an expanded direction is required in terms of foresight, courts should continue to use virtual certainty as the test, rather than high probability

R v Scalley [1995] Crim LR 504.
In this Case The defendant was alleged to have murdered a 5 year old boy by setting fire to a house in which the defendant had once lived. The defendant was convicted of murder following the trial judge's direction to the jury to he effect thy could convict W they were sure that the defendant intended death or grievous bodily harm in the sense that he foresaw either consequence as virtually certain to result from his actions.
The Court of Appeal quashed the conviction and substituted a conviction for manslaughter. The direction did not make it clear that foresight of the virtual certainty of death or serious injury is not intention but merely evidence from which the jury are entitled to infer intention. The jury should have been told that if they were satisfied that the defendant did see either death or serious injury as virtually certain, then they could go on to infer intention but were not obliged to do so.

In R v Wool/in [1998]4 All ER 103.
The defendant lost his temper and threw his three-month-old-son on to a hard surface. His son sustained a fractured skull and died. Wool lin was charged with murder. He denied that he had an intention to cause serious harm. The trial judge summed up using the phrases, virtual certainty and substantial risk. The defendant was convicted of murder and appealed against the use of the term of substantial risk.

The House of Lords held that, having regard to the mental element in murder, a jury were rsqured to determine whether the defendant lad intended to kill or do serious bodily harm. Where that simple direction was not enough, the jury should be further directed that they were not entitled to infer the necessary intention unless they felt sure that death or serious bodily harm was a vi rtually certain result of the defendant's action (barring some unforeseen intervention) and that the defendant had appreciated that fact.
The judge had misdirected the jury: by using the phrase 'substantial risk' the judge had blurred the line between intemon and recklessness, and hence between murder and manslaughter, and had in effect enlarged the scope of the mental element required for murder. The conviction for murder was quashed and a conviction for manslaughter substituted.
See further, the comments on Nedrick at pp113-114 of the All ER.

In R v Cunningham [1957] 2 QB 396.
The defendant had broken a gas meter to steal the money in it with the result that gas escaped into the next-door house. The victim became ill and her life was endangered. The defendant was charged under s23 of the Offences Against the Person Act 1861 with "maliciously administering a noxious thing so as to endanger life".
The Court of Appeal, allowing the defendant's appeal held that for a defendant to have acted "maliciously" there had to be proof that he intended to cause the harm in question, or had been reckless as to whether such harm would be caused. In this context recklessness involved the defendant in being aware of the risk that his actions might cause he prohibited consequence.

In MPC v Caldwell [1982] AC 341. 
The defendant, who had been sacked from his employment at an hotel, became drunk and retumed at night to the hotel, setting it on fire. There were ten people resident in the hotel at the time, rut the fire was discovered and extinguished before any serious harm could be caused. The defendant pleaded guilty to criminal damage but pleaded not guilty to the more serious charge of criminal damage with intent to endanger life or recklessness as to whether life would be endangered. he argued that due to his drunken state it had never crossed his mind that lives might be endangered by his actions, he had simply set f re to the hotel because of his grudge against his former employer.

The House of Lords re-affirrned Cunningham as a form of recklessness in criminal law, but introduced an alternative form of recklessness based upon the defendant's fail ure to advert to a risk which would have been obvious to the reasonable person. Lord Diplock held that a dafendant was reckless as to whether he damaged property if he created a risk of damage which would have been obvious to the reasonable man and either-
• had not given any thought to the possibility of such a risk when he carried out the act in question, or had recognised that there was some risk involved and nonetheless went on to carry it out.

In Elliot v C [1983]1 WLR 939. 
The defendant, an educationally subnormal 14-year-old schoolgirl, had entered a neiqhbour's garden shed, poured white spirit on he floor and ignited it. The defendant then fled as the shed burst into flames. The magistrates dismissed the charge of criminal damage on the basis that she gave no thought to the risk of damage, and that even if she had, she would not have been capable of appreciati ng it. The prosecution appealed and the Divisional Court, allowing the appeal, held that this was irrelevant to the issue of recklessness. When the court in Caldwell had talked about an "obvious" risk, they had meant obvious to the reasonatte man if he had thought about it, and not obvious to the defendant if he had thought about it.

R v Coles [1994] Crim LR 820. 
In this Case The defendant, aged 15 at the time of the offence and of lower than average mental capacity, had been playing in a hay barn wih other children. The evidence was that he had tried to set fire to the hay whilst other children were in the barn. The children escaped unhurt. The defendant was charged with arson, being reckless as to whether the lives of others would be endangered. During the trial it was submitted that the Caldwell drection should be amended so that the assessment of whether or not the appellant had, by his actions, created an obvious risk of harm, should be made more subjective.

The trial judge rej ected this submission stating that the test was whether or not the risk would have been obvious to the reasonable prudent adult person.
The Court of Appeal dismissed the defendant's appeal. It was held that the first limb of the Caldwell direction was objective and the state of mind of the accused was irrelevant to the question of whether or not he had, by his act or omission, created an obvious risk of harm to persons or property.

On appeal, the argument put forward on behalf of the appellant had been broadened to encompass the proposition that the second limb of the Caldwell test should have some regard to the defendant's capacity to foresee risk.The appeal court took the view that such an argument had failed in Elliot v C [1983] 1 WLR 939 and that that decision had been confirmed by the Court of Appeal in R v R (Stephen Malcolm) (1984) 79 Cr App R 334. It was not predisposed to depart from its own previous decision.

Chief Constable of Avon and Somerset v Shimmen (1987) 84 Cr App R 7.
In this Case The defendant was a martial arts expert who was demonstrating his skill to friends by performing a move which he anticipated would bring his foot within inches of a shop window. He had miscalculated the risk, and he broke the window. The argument that he was not reckless because he had given thought to the risk but mistakenly believed that he had minimised it, was rejected by the Divisional Court because he knew there was some risk. The defendant was found guilty of causing criminal damage.

R v Reid [1992] 3 All ER 673. The defendant was driving a car with a passenger in the front seat. He at1empted to overtake another car whilst still in the nearside lane. A taxi drivers' rest hut protruded some six feet into the nearside lane. The defendant's car struck this hut whilst oxertakinq, the collision resulting in the death of his passenger. The defendant was convicted of causing death by reckless driving, contrary to s1 of the Road Traffic Act 1972 (now replaced with causing death by dangerous driving).

The House of Lords recognised that there were three situations where the exact form of words used by Lord Diplock may require some alteration to take account of the unusual facts of a particular case. First, where the driver acted under some understandable or excusable mistake of fact (eg, where the driver of a powerful car attempts an apparently safe manoeuvre that becomes dangerous because of a wholly unexpected fuel line blockage). Secondly,where the driver's capacity to appreciate risk had been adversely affected by some condition (eg, illness or shock) arising otherwise than through the fault of the driver. Thirdly, where the driver takes evasive action in an emergency situation.

Lord Browne-Wilkinson stated: "As to the so called "loophole" or "lacuna" in Lord Diplock's direction, I specifically agree with what my noble and learned friends, Lord Goff and Lord Ackner, say. There may be cases where, despite the defendant being aware of the risk and ded ding to take it, he does so because of a reasonable misunderstanding, sudden disability or emergency which render it inappropriate to characterise his conduct as being reckless. Lord Diplock in Lawrence was not seeking to I ay down a test applicable to all cases and the facts in the present case do not fall within this specal category."

R v Merrick [1996]1 Cr App R 130.
The defendant visited householders and offered to remove certain old cable 1V cabling if they were not being paid wayleave payments by the owner of the cables with whom he had fallen out. When the defendlnt removed the cable he inevitably damaged it. He also inevitably left a live cable exposed for a short time until he could make it safe (about six minutes). He was charged with intentionally damaging property being reckless as to whether life was endangered thereby. At hi s trial, he argued that he knew that it would have been dangerous to leave the cable exposed, that he had come with materials to make it safe and that he did not believe that there was any risk of endangering life whilst he was doing !D. The judge ruled that precautions to el iminate the risk of endangering life must be taken before the damage was caused.

On appeal the defendant argued that he was not reckless since he fell within the lacuna as havi ng thought about it and decided thatthere was no risk. The Court of Appeal dismissed the appeal and held that there is a difference between (a) avoiding a risk and (b) taking steps to remedy one which has al ready been created. The defendant could only have succeeded if he had done or believed he had done the former rather than the latter.

R v Lawrence [1981] AC 510. 
The defendant motor cyclist, who had collided with and kill ed a pedestrian, was charged with causing death by reckless driving. The House of Lords held that the test of recl<lessness was the same for reckless driving as for criminal damage, but used the words, based on an "obvious and serious risk" (as opposed to an "obvious risk" in Caldwell).

R v Seymour [1983] 2 AC 493.
The defendant had an argument with his common law Wfe. In an effort to move her car out of his way by pushing it with his truck, he had jammed her body between his truck and her car, as a result of which she sustained severe injuries from which she later died. The prosecution brought a charge of common law manslaughter and the defendant was convicted. The trial judge had directed the jury that they should convict if they were satisfied that the defendant had caused the death, and had been reckless in so doing, recklessness here having the meaning attribJted to it by the House of Lords in Lawrence.
The House of Lords held that the conviction should stand. Thus Caldwell recklessness applied to manslaughter.

McCrone v Riding [1938]1 All ER 157.
A learner-driver was convicted of driving without due care and attention, despite the fact that it was accepted by the court that he was "exercising all the skill and attention to be expected from a person with his short experience" because he had failed to attain the required standard.

Mens Rea II Transferred Malice

R v Latimer (1886) 17 QBD 359. 
The defendant struck a blow with his belt at Horace Chapple which recoiled off him, severely injuring an innocent bystander. The defendant was convicted of maliciously wounding the victim, and appealed on the ground that it had never been his intention to hurt her. The court held that the conviction 'M:luld be affirmed. The defendant had committed the actus reus of the offence with the necessary mens rea, ie he had acted maliciously. There was no requirement in the relevant act that his mens rea should relate to a named victim. Thus, Latimer's malice was transferred from his intended to his unintended victim.

R v Pembliton (1874) LR 2 CCR 119.  
The defendant threw a stone at another person during an argument The stone missed the intended victim, but instead broke a nearby wi ndow. He was charged with malicious damage to property and was convicted. The court, in quashi ng the conviction held, that the doctrine of transferred malice was inapplicable where the defendant's intention had not been to cause the type of harm that actually occurred. His intention to assault another person could not be used as the mens rea for the damage that he had caused to the window.

Coincidence Of Actus Reus And Mens Rea

Fagan v MPC [1969]1 OS 439. The defendant accidentally drove his car on to a policeman's foot and when he realised, he refused to remove it immediately. It was held that theactus reus of the assault was a continuing act which, while started wihout mens rea, was still in progress at the time the mens rea was formed and so there was a coincidence of actus reus and mens rea sufficient to found criminal liability.

Kaitamaki v R [1985] AC 147.  
The defendant was charged with rape. His defence was that when he penetrated the woman he thought she was consenting. When he realised that she objected he did not withdraw. The Privy Council held that theactus reus of rape was a continuing act, and when he realised that she did not consent (and he therefore formed the mens rea) the actus reus was still in progress and there could therefore be coincidence.

Thabo Meli v R [1954]1 WLR 228. 
The defendants had taken thei r intended victim to a hut and plied him with drink so that he became intoxicated. They then hit the victim around the head, intending to kill him. In fact the defendants only succeeded in knocking hi m unconscious, but believi ng the victim to be dead, they threw hi s body over a cliff. The victim survived but died of exposure some time later. The defendants were convicted of murder, and appealed to the Privy Council on the ground that there had been no coincidence of the mens rea and actus reus of murder.

The Privy Council held that the correct view of what the defendants had done was to treat the chain of events as a continuing actus reus. The actus reus of causing death started with the victim being struck on the head and continued until he died of exposure. It was sufficient for the prosecution to establish that at some time during that chain of events the defendants had acted with the requisite mens rea.

R v Church [1966]1 OS 59. 
The same reasoning was applied in this case even though there was no pre conceived plan. The defendant had gone to hi s van with a woman for sexual purposes. She had mocked his impotence and he had attacked her, knocking her out. The defendant panicked, and wrongly thinking he had killed her, threw her unconscious body into a river, where she drowned. The defendants appeal against his conviction for manslaughter was dismissed by the Court of Appeal.

R v Le Brun [1991] 3 WLR 653. The defendant punched his wife on the chin knocking her unconscious. He did not intend to cause her serious harm. The defendant attempted to move her body, and in the course of so doing dropped her, causing her head to strike the pavement. His wife sustained fractures to the skull that proved fatal. The defendant's appeal against his conviction for manslaughter was dismissed by the Court of Appeal. Lord Lane CJ said:"It seems to us that where the unlawful application of force and the eventual act causing death are parts of the same sequence of events, the same transaction, the fact that there is an appreciable interval of time between the two does not serve to exonerate the defendant from liability. That is certainly so where the appellant's subsequent actions which caused death, after the initial unlawful blow, are designed to conceal his commission of the original unlawful assault."

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Criminal Law Cases On Acus Reus

Criminal Law Cases On Acus Reus

Tuesday, September 16, 2014

After unveiling the principles of criminal liability, It is therefor a fundamental duty of the prosecution to prove all the elements of the offence to the satisfaction of the judge or jury beyond reasonable doubt and in the absence of such proof, the defendant will be acquitted.

Actus Reus Must Be Voluntary

In R v Quick [1973) The defendant, a diabetic was charged with assaulting his victim. The assault occurred whilst the defendant was in a state of hypoglycaemia I (low blood sugar level due to an excess of insulin). The court held that the defendant should have been acquitted on the ground of automatism. His unconscious state had been the result of extemal factors, ie the taking of insulin.

In Leicester v Pearson (1952) A car driver was prosecuted for failing to give precedence to a pedestrian on a zebra crossing, but was acquitted when it was established that his car had been pushed onto the crossing by another car hitting it from behind.

"State Of Affairs" Cases

In R v Larsonneur (1933) The defendant was a French national who had entered the UK lawfully, but was given only limited permission to remain in the country. At the end of that period the defendant left England, not to return to France, but to travel to the Irish Free State.
The Irish authorities made a deportation order against her, and she was forcibly removed from Ireland and returned to the UK. On arrival in England the defendant was charged under the Aliens Order 1920, with "being found" in the UK whilst not having permission to enter the country.
The defendant was convicted, and appealed on the basis that her return to the UK had not been of her own free will, in that she had return to the UK had not been of her own free will, in that she had been forcibly taken to England by the immigration authorities.
The Court of Appeal dismissed her appeal on the simple basis that the prosecution had proved the facts necessary for a conviction.

In Winzar (1983) The defendant had been admitted to hospital on a stretcher. Upon examination he was found to be drunk and was told to leave. Later he was found in a corridor of the hospital and the police were called to remove him. The police officers took the defendant outside onto the roadway, then placed him in a police car and drove him to the police station where he was charged with "being found drunk in a public highway".

The defendant was convicted, and appealed on the ground that he had not been on the public road of his own volition. The Divisional Court upheld the conviction holding that all that was required for liability was that the defendant should be perceived to be drunk whilst on a public highway. There was no need for the court to have any regard as to how he came to be there.

Omissions

In Greener v DPP (1996) The defendant was the owner of a young, powerful Staffordshire Bull Terrier. He had left the dog chained in an enclosure in his back garden. The dog had strained and bent the clip releasing its chain. It had escaped from the enclosure and entered a nearby garden where it bit the face of a young child. Section 3(3) of the Dangerous Dogs Act 1991 provides that if the owner of a dog allows it to enter a place which is not a public place but where it is not permitted to be and while it is there it injures any person, he is guilty of an offence.
It was held by the Divisional Court that an offence under s3(3) could be committed by omission. The word "allows" included taking and omitting to take a positive step. In the present case the defendant had failed to take adequate precautions. Similar precautions had been taken in the past but they were obviously inadequate as the fastening was not good enough and the enclosure not secure.

In R v Pittwood (1902) The defendant was employed as a gatekeeper at a railway crossing. One day he went for lunch leaving the gate open so that road traffic could cross the railway line. A hay cart crossing the line was hit by a train. One man was killed, another was seriously injured. Pittwood was convicted of manslaughter based on his failure to carry out his contractual duty to close the gate when a train approached.

In R v Gibbins and Proctor (1918) Gibbins and Proctor were living together with Gibbins's daughter, Nelly and other children. Nelly was kept upstairs apart from the others and was starved to death. There was evidence that Proctor hated Nelly and cursed her and hit her. Gibbins gave all his wages to Proctor and it was her duty to provide the food. Both defendants were convicted of murder.

The Court of Appeal held that Gibbins lived in the house, the child was his own (a little girl of seven) and he grossly neglected the child. He must have known what her condition was. Proctor had charge of the child. Proctor chose to live with Gibbins and as she received money for the purpose of supplying food, her duty was to see that the child was properly fed and looked after, and to see that she had medical attention if necessary. Therefore, the convictions were upheld.

In R v Stone and Dobinson (1977) The defendants (common law husband and wife) were of low intelligence. One day they were visited by S's sister Fanny and took her in providing her with a bed but over the following weeks she became ill. She did not eat properly, developed bed sores, and eventually died of blood poisoning as a result of infection. The defendants had not obtained any medical assistance for Fanny although they had known that she was unwell. The defendants were convicted of manslaughter. 

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