CRIMINAL LIABILITY

Lecture notes: General Defences to Criminal Liability

When a defence is raised by the accused or is apparent from the facts put forward by them or on their behalf,
a charge can only be found proved if it is shown to the required standard that the defence has not been
established. There are specific defences which are sometimes available to certain offences. Defences in
criminal law can be categorised in a number of ways. For example:
a) One category would be where the defendant lacked sufficient capacity to commit the crime, such as
because of age or other similar reasons such as insanity.
b) A second category of defences (which have sometimes been described as defences in the true sense)
arises where the defendant has engaged in the required physical element (actus reus) and fault
element (mens rea) of an offence but where some justifying or excusing circumstance arises, such
as legitimate defence or provocation.
c) A third categorisation is to distinguish between defences that can lead to an acquittal, such as
legitimate defence, and a defence leading to a reduction only in the nature of the crime involved, such
as provocation.
d) A fourth method differentiates between defences that apply to all crimes (such as legitimate defence),
and those which apply to particular crimes only (such as provocation and diminished responsibility,
which for example only apply to murder and which also involve, as already mentioned, a reduction
from murder to manslaughter only).
Thus, the defences can be categorised using a number of factors, some of which, as we have seen, involve
overlaps: whether they are complete or partial defences; and whether they are general or limited to specific
crimes. One further well-recognised matter is based on the underlying rationale for the defence: whether it is
justificatory or excusatory.
There is a distinction between what is a defence and what constitutes mitigation.
MITIGATION
Mitigation is not a defence. What amounts to a defence and what amounts to mitigation can sometimes be
confused; they are, however, quite distinct elements of the summary hearing process. A defence is relevant
to the issue as to whether the charge can be proved, whereas mitigation is relevant to the question of
punishment. For example, in a case of assault self-defence may be a defence but provocation may only be
mitigation. Where a charge is proved, mitigation is put forward by or on behalf of the accused to explain the
circumstances surrounding the offence for the purpose of either reducing the sentence which might otherwise
be awarded, or persuading the officer hearing the charge that they should sentence the offender in a
particular way. It is an attempt to put the offence into context by showing a number of factors or circumstances
that impacted on the accused at the time.
Mitigation may also seek to demonstrate that a particular sentence would have a disproportionately serious
effect on the offender or their family (a custodial sentence, for example). By contrast, a defence is an
explanation for the accused’s actions that legally excuse or justify their conduct. The accused often contests
the accuracy of the allegations against them; however, defences do not depend on refuting such allegations,
rather a defence raises an issue as to whether the accused has committed an offence at all. If the officer
hearing a charge is not satisfied so that they are sure that a defence does not apply they must find the charge
not proved.
Joint Enterprise and Secondary Participation
The issue of joint enterprise may arise where more than one individual is involved in the commission of an
offence, either as the principal offender or by encouraging or assisting the commission of the offence. For
example, if several people participate in an attack on a victim where one person holds the victim down, a
second person punches the victim, a third person acts as a lookout, and a fourth person shouts verbal
encouragement to the principal attacker, then all may be liable for the commission of the offence.
If more than one person participated in an offence, any accused (D) will be liable as joint principal offenders
if they carry out the actus reus (guilty act) and do so with the requisite mens rea (guilty mind, i.e. intent or, if

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applicable, recklessness). If someone did not commit the actus reus but did assist or encourage the principal
(P) to do so, they will be guilty as secondary participants if they intended to assist or encourage P to commit
the crime (i.e. to carry out the actus reus with the necessary mens rea). Merely associating with P or being
present at the scene of P’s crime will not be enough unless that presence had the effect of assisting or
encouraging P to commit the offence with the intent on D’s part that it do so. Nor is it enough, to be liable as
a secondary, to simply foresee that that P might commit the crime, D must have the intent that P will do so.
Examples of defences are: Intoxication/drunkenness due to drugs/alcohol, Self-defence, Mistake, Duress,
Necessity, Insanity, Alibi, Provocation, Diminished responsibility, Consent, Superior orders, etc.
Mistake of fact
Mistake of fact generally refers to a mistaken understanding by someone as to the facts of a situation—
the mistake results in the person committing a crime. A mistake of fact may mean that, while a person has
committed the physical element of an offence, because s/he was labouring under a mistake of fact, s/he
never formed the required mens rea, and so will escape liability for offences that require mens rea.
Section 9 of the PCA
Mistake of fact
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in
the
existence of any state of things is not criminally responsible for the act or omission to any greater
extent
than if the real state of things had been such as he or she believed to exist.
The operation of this section may be excluded by the express or implied provisions of the law
relating to
the subject.

Sultani Maginga vs R (1969) HCD Georges C. J.

The deceased and a woman were lying in a rice field at night after having sexual intercourse. The accused,
on his way to guard his shamba against the incursions of wild pigs, saw a movement in the grass and shone
his torch in that direction, but the batteries were weak, and he could see little. He called out, asking whether
it was an animal or people. There was no reply. The couple then ran off in different directions. The accused
threw his spear at one of the shadow, hitting and fatally wounding the deceased. The accused was charged
with murder.

Held: (1) The evidence supported the view that the accused did not know that he was throwing a spear at a
man, and the charge of murder could not be sustained.

Manslaughter could not be proved as the evidence did not show the requisite degree of recklessness.
Although it was common knowledge in Rufiji that many couples go off into the bush at night and in the day
for lovemaking, and the accused must have known this, he was absolved from recklessness because he
called out, asking whether the object was human or not. Since he got no reply, he may will have thought it
was a pig. Accused not guilty of any offence. The killing was an accident.

Provocation
Provocation as defined u/s.193 PCA is sudden loss of self-control.
In the English case R v Duffy [1949] 2 All ER 932, Devlin J summarised the defence in a sentence which is
now regarded as a classic direction in provocation cases:

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“Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any
reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control,
rendering the accused so subject to passion as to make him or her for the moment not master of his mind”.
The law on provocation as a defence to murder is found in Section 192 PCA. The Section states that
when a person who kills another in circumstances which but for the provision of the section, would
constitute murder, does an act which causes death in the heat of passion caused by sudden provocation
and before there is time for his passion to cool is guilty of manslaughter only.

The term “provocation” is defined in section 193 as meaning and including, for purposes of cases such
as the present, any wrongful act or insult of such a nature as to be likely when done or offered to an
ordinary person to deprive him of self-control and to induce him to commit an assault of the kind which
the person charged committed upon the person by whom the insult is done or offered. A lawful act is not
provocation for an assault. This Court has interpreted the two sections as meaning that before a charge
of murder can be reduced to manslaughter on the ground of provocation the following conditions must
be satisfied;
1. the death must have been caused in the heat of passion before there is time to cool;
2. the provocation must be sudden;
3. the provocation must have been caused by a wrongful act or insult.
4. The wrongful act or insult must be of such nature as would be likely to deprive an ordinary person
of the class to which the accused belongs of the power of self-control. It is obvious from this that
any individual idiosyncrasy, such as for instance that the accused is a person who is more readily
provoked to passion than an ordinary person, is of no avail; and
5. Finally, the provocation must be such as to induce the person (by whom) provoked to assault the
person by whom the act or insult was done or offered. This last provision in our opinion means
(provided, of course, that all the other conditions referred to are present) that if the provocation is
such as to be likely to induce an assault of any kind, the accused should be found guilty of
manslaughter and not murder irrespective of whether the assault was carried out with a deadly
weapon, such as was done in the present case, or by other means calculated to kill. (see Sowedi
Ndosire versus Uganda, Supreme Court Criminal Appeal No. 28 of 1989 ) (unreported)

Elements of Provocation
According to Sowed Ndosire vs Uganda S.C. Criminal Appeal No. 28 of 1989, the defence of provocation
requires the following elements:
1. A wrongful act or insult sufficient to enrage an ordinary person of the class to which the accused
belongs;
2. The accused, because of the wrongful act or insult, attained a mental state referred to as a sudden
heat of passion;
3. The killing of the victim was sudden with no cooling off; and
4. There was a causal connection between the provocation, the heat of passion, and the killing.
The wrongful act or insult by the victim should be one that is capable of depriving an ordinary person,
such as the accused, of the power of self-control and to induce him/her to commit an assault of the kind
which he/she is accused of committing upon the person by whom the act or insult is done or offered.
Not every provocation is a defence to have the effect of reducing murder to manslaughter. Under section
193 (1) PCA, the standard for judging the capability of an act or insult to cause sudden heat of p assion
is that of an ordinary person.
In Uganda vs Ssekandi Berito CRIMINAL CASE No. 95 of 2010, the accused told court that he did not
intend to kill the deceased and that the incidence happened immediately after he had caught the
deceased setting fire to his tobacco stores. He acted angrily in the spur of the moment. This, his lawyer
submitted, affords the accused the defence of provocation. He relied for this proposition on the authority

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of Uganda versus Kyomuhendo David & another, High Court Criminal Session Case No. 75 of 2001
where the test of provocation was laid down.

Tests applicable to Provocation per Kyomuhendo’s Case

The test to be applied is the effect of provocation on the reasonable man. Two tests:
1. The death must be caused in the heat of passion before there is time for the passion to cool down.
2. The provocation must be sudden.
The standard for judging of the act or insult on which the plea is advanced is capable of causing
provocation in the legal sense is that of an ordinary person. Was there sufficient time to allow a
reasonable man to cool down? What was the instrument used?
Applying the test of Kyomuhendo’s case and the evidence on record, Ralph Ochan J found there was
sufficient time to allow the cool of the accused. Secondly, the weapon used was a sharp weapon that
pierced the upper limb and thigh of the victim. There was also evidence of strangulation established in
the postmortem report. In the circumstances the defence of provocation fails.

The concept of the reasonable man was introduced in R v Welsh (1869) 11 Cox CC 674 in which it was
accepted that a killing should not be reduced from murder to manslaughter unless the provocation from
the deceased was sufficient to deprive a reasonable man of self-control, thereby laying the foundation
for the basis of the defence today.
In Welsh Keating J stated:
“[T]here must exist such an amount of provocation as would be excited by the circumstances in the mind
of a reasonable man, and so as to lead the jury to ascribe the act to the influence of that
passion”.
Criticism of the law on provocation as a defence Gender Bias
The nature of the historic origins of the provocation plea has contributed to the argument of gender bias. It
has been suggested that the foundations of the defence “reveal it to be a reaction to the prevalence of certain
forms of male aggression such as drunken brawls and duels”. Thus, it has been said that provocation has
served men well but not women, bearing in mind that it was never designed for them. The partial defence of
provocation is seen to be discriminatory against women as it fails to provide for the natural pattern of female
aggression. The defence is gendered and heterosexist and thus cultural, in so far as it privileges
paradigmatically heterosexual, male violence. It is an acrimonious divorce from reality. Sudden and
temporary loss of control requirement favours the kind of explosive rage more typical of men and leaves the
– usually – female victims of domestic violence unprotected as defendants to murder charges when their
rage is internalised and thus not manifested in angry outbursts, yet excuses defendants‟ lethal expression of
outraged manhood against their gay male victims”. A female defendant suffering from battered woman’s
syndrome often kills her partner after years of abuse in a method which is premeditated in the true sense of
the word (a battered woman frequently waits until her abuser is drunk or asleep before striking) and thus has
no hope of securing the benefit of the plea of provocation.

In its simplest form cumulative provocation consists of a series of acts directed towards the accused over a
period of time, that may be brought to boiling point by a seemingly trivial incident; in this instance the woman
(or person being battered) may wait until her tormentor is asleep or drunk before striking the fatal blow.
Viewed in isolation, this kind of response is not easily accommodated within the traditional provocation
doctrine. The essence of provocation is that it is carried out in hot blood or in the heat of the moment. It is not
surprising then that arguments are put forward to suggest that the immediacy requirement is based on a male
view of violence.

Ignorance of the law

Section 6 of the Penal Code Act provides that “ignorance of the law does not afford any excuse for an
act or omission which would otherwise constitute an offence unless knowledge of the law by the offender
is expressly declared to be an element of the offence.” This means that ignorance is no defence.

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Diminished responsibility
See s. 194 PCA
“188A (1) where a person is found guilty of the murder or of being a party to the murder of another and the
court is satisfied that he was suffering from such abnormality of mind (Whether arising from a condition of
arrested or retarded development of mind, or any inherent causes or induced by disease or injury) as
substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the
murder, the court shall make a special finding to the effect that the accused was guilty of murder but with
diminished responsibility.

(1).

(3) Where a special finding is made under the provisions of subsection (1) the court shall not sentence the
person convicted to death but shall order him to be detained in safe custody and the provisions of section
104 of the Trial on Indictments Decree, 1971, shall apply as if such order has been made under that section.

(4) The fact that one party to a murder is by virtue of this section not liable to be sentenced to death shall not
affect the question whether any other party to it shall be sentenced to death.”

Where it is proved it leads to legal consequences. It leads to a special finding, namely “guilty of murder with
diminished responsibility”. This is different from the ordinary verdict of “guilty of murder.” Despite the phrasing
of section 188A of the Penal Code, the law does not envisage that the court would pronounce two verdicts
separately, in the same case i.e., first that the accused is “guilty of murder” and later that he/she is “guilty of
murder with diminished responsibility”. Nor in our view does it envisage a “trial” of the issue of diminished
responsibility to be held after the trial and conviction on the charge of murder. Diminished responsibility is an
issue of fact. It must be tried along with all other issues of fact arising out of the charge. It has to be proved
on evidence and the assessors have to be invited and allowed to give their opinion on it. The court’s finding
on it has then to be embodied in its judgment from which the ultimate verdict is deduced and pronounced.

Rukarekoha Felex vs Uganda, S.C. CRIMINAL APPEAL No. 12 of 1998

Facts Decision Orders

1). On 24th November 1995, the
appellant's wife who had been sick,
died at around 9:00 p.m. 2). The
appellant went to his mother's
house and attacked her with a
panga at around 10:00 p.m.
accusing her of causing the wife's
death. 3). The mother died as a
result of the wounds on the 6th
December 1995. The appellant
disappeared from the village from
24th November 1995 until 3rd
January 1996. 4). He was arrested
and indicted for murder. 5). He
unsuccessfully raised a defence of
diminished responsibility both at
the trial and appeal. 6). Dissatisfied
with the verdict, he lodged this
appeal.
1). Diminished responsibility is said 1). Appeal dismissed. 2).
to be a state on mind bordering on Conviction of murder and sentence
but failing short of the state of of death confirmed.
insanity. Belief in power spirits, as
in anything else, is a natural
process or condition of the mind. It
may not be common, but it is not
abnormal in the instant case, it was
not established by the defence or
otherwise that the applicant was
suffering from diminished
responsibility. When he murdered
his mother, court held further, that
the issue of diminished
responsibility is an issue of fact. It
must be tried along with all other
issues of fact arising out of the
charge.

Self-defence
In Uganda, this covers the following:
a) Self-defense
b) defense of others
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 c) defense of property.
The PCA adopts the principles of English Law relating to the protection of the person and property.
Secion17 of the PCA provides that the use of force in self-defence is determined in accordance with
the principle of English Law. The onus is on the prosecution to establish that the crime was not done in
self-defence.
Self-defense or defense of others applies where the person acts reasonably to defend him or herself or
another person from an imminent use of force, in so far as the force employed in defense is reasonable
to avoid the harm feared and is proportional to it. A person should not be criminally responsible when he
or she acts in self-defence or to defend others from an imminent attack, and in doing so uses only
reasonable force to meet that objective. Generally, self -defence is understood to cover the situation in
which a person uses force against the person responsible for posing the imminent threat. It would not
therefore cover the situation where force is used by A against B in response to an imminent attack from
C. The imminence requirement is an essential element in this defense, which distinguishes it from a
premeditated reprisal.

Where violence is threatened or used against a person

It is lawful for the person threatened or attacked, to use such force as is necessary in order to resist or defend
themselves and/or another against the attack, but only if the force used by them is reasonable. In such
circumstances the law recognises that the person acts in self-defence. In assessing whether the accused’s
actions in defending himself were reasonable, the officer hearing the charge should consider what the
accused himself thought at the time.

A person does not have to wait until they are struck before striking in self-defence
In each case everything will depend upon the particular facts and circumstances. It may be, in some cases,
only sensible and clearly possible for the person attacked to take some simple avoiding action. If there is
some relatively minor attack, it is not permissible for the person attacked to respond with an act of retaliation
which is out of proportion to the force or threat of force levelled against them. For example, a person who is
punched in the face by another person cannot legally draw a gun and shoot that person dead. Lethal force
can only be used by an individual when they reasonably believe they or another is about to be killed or
seriously injured and the use of lethal force is the only means available with which to defend himself or
another.

There is no legal requirement that a person must retreat as far as they can when threatened, but their
ability to do so will be relevant to the reasonableness of the force used in their defence. If an attack is
sufficiently serious so that it puts someone in immediate peril, then immediate defensive action may be
necessary. If the attack is over and no sort of peril remains, then the use of force may be by way of revenge,
punishment, or pure aggression, and there would no longer be grounds to claim self-defence. In all cases it
should be remembered that the person defending himself cannot precisely assess the exact measure of their
defensive action.

Historically, the use of force to protect another person was restricted to the protection of those “in a special
relationship to the defender such as a wife, child or master.” However, such historical limitations are now
regarded in some jurisdictions such as Ireland as “obsolete” and “irrelevant”. In Ireland where sexual offences
have gained social protection, the language of the Non-Fatal Offences Against the Person Act 1997 in section
18 permits the use of force by a person for the protection of “himself or herself or a member of the family of
that person or another from injury”.

Imminence as a requirement
The law on self-defence required that before force is used, an attack is taking place or is imminent. The
imminence requirement is identified as a substantive requirement for the defence of legitimate defence. It
refers to the time period between the harm the accused was faced with and the defensive action taken by
the accused to prevent harm materialising. In some jurisdictions, a strict approach is adopted to imminence;
the defence will only apply where the harm prevented was imminent. From the outset, it should be noted that

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the term “imminent” is often used interchangeably with the term “immediate” though their meanings are not
necessarily congruent.

Criticism
The imminence requirement fails to deal with cases of domestic homicide where women have killed their
abusive partners in non-confrontational situations. Again, it is important to point out that such situations of
domestic violence are not confined to women and may include men, parents, grandparents or children.

In Defence of Property (and the Duty to Retreat – the Castle Doctrine)

The necessity and the duty to retreat may be central to a discussion on defence of property, known generally
as the Castle Doctrine. The Castle Doctrine asserts that defenders are entitled to “stand their ground” when
attacked in their home, and as such represents a significant exception to the normal obligation to retreat.
The castle doctrine was originally formulated in the 17th Century Semayne’s case (1604) 77 Eng. Rep 194
at 195 to the effect that “the house of everyone is to him as his castle and fortress, as well for his defence
against injury and violence as for his repose…” In essence, the effect of the castle doctrine is that while there
may be an obligation on a person who is attacked in the street to retreat before they use lethal force, this
obligation to retreat does not exist where the person is in their own home; defenders are entitled to stand
their ground when attacked in their own home. The special status granted to the protection of the home is
related to “[mankind’s] fundamental physical and psychological need for some sort of shelter and sanctuary.

Use of force in prevention of crime (e.g. terrorism)

A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting
or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. This will
apply to the great majority of cases of self-defence and defence of others and many cases of defence of
property because in these cases the person who uses lawful force will be doing so for the purpose of
preventing crime.

The threat of death or imminent bodily harm in common law approach and under the Rome Statute
Article 31(1)(d)
For this defence to succeed, there must be the existence of a real and imminent threat of death or serious
bodily harm, where the response to that threat did not cause greater harm than the one sought to be
avoided. This should only apply where the person did not knowingly expose him or herself to the threat.
Protection of property should not be among the defences.

In this connection we should set out a short quotation from the judgment of the Privy Council in PALMER
V. REGINAM (1971) All ER 1087 at 108.
For this defence to succeed the accused must show that he was under imminent attack. He must establish
that the action he took to defend himself was reasonable.
“If there has been no attack then clearly there would have been no need for defence. If there has
been attack so that defence is reasonably necessary it will be recognised that a person defending
himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury
thought that in a moment of unexpected anguish a person attacked had only done what he
honestly and instinctively thought was necessary that would be most potent evidence that only
reasonable defensive action had been taken. A jury will be told that the defence of self -defence,
where the evidence makes its raising possible, will only fail if the prosecution shows beyond
doubt that what the accused did was not by way of self-defence. But their Lordships consider in
agreement with the approach in De Freitas v. R. That if the prosecution has shown that what was
done was not done in self-defence then that issue is eliminated from the case.”
Okello Lawrence and 2 others vs Uganda Court of Appeal Criminal Appeal No. 187 of 2003 - 3/21/2007
Facts
This is an appeal against the conviction on grounds inter alia that their act of shooting was in pursuit of self -
defence. The appellants were at the material time police officers based at Jinja Police Station. They were

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jointly indicted with three counts of murder contrary to Sections 188 and 189 of the Penal Code Act. They
were tried and convicted, and each was sentenced to death.
Decision
- For one to plead self-defence there must be an attack, the accused must believe on reasonable grounds
that he or she is in imminent danger of death or serious harm. The accused must have believed it necessary
to use force to repel the attack levelled against him.
- The force used by the accused must be such force as the accused believed on reasonable grounds to have
been necessary to prevent or resist the attack.
- The vehicle of the victims had only one bullet fired at the bumper. The one bullet could not have killed three
people inside the vehicle. Thus, the shooting was not done in self-defence.
Order
- Appeal fails. - Sentence upheld

Accident
The defence of accident arises from section 8 of The Penal Code Act which provides that a person is not
criminally responsible for an act or omission which occurs independently of the exercise of his or her will or
for an event which occurs by accident. An event occurs by accident if it is an outcome which was not intended
or foreseen by the accused and would not reasonably have been foreseen by an ordinary person. In other
words, death may result from a deliberate act, such as a punch, but could be such an unlikely consequence
of that act, that an ordinary person could not reasonably have foreseen that death would result. An accused
that relies on this defence only has to raise a reasonable probability of its existence. Then the prosecution
must prove, beyond reasonable doubt that the death was not accidental.
In Regina v Palmer (1990) 12 Cr App R(S) 585, in the course of an argument with his wife the appellant
fetched a knife from the kitchen to frighten her; the argument turned into a fight in the course of which his
wife received a fatal stab wound. The appellant claimed that the wound was inflicted accidentally, without
any intent to kill or cause grievous bodily harm. The jury rejected the defence of accident but found that the
appellant was guilty of manslaughter rather than murder because his intention did not extend to an intent to
cause death or really serious bodily harm.
In The Queen v Kuzmack, [1955] S.C.R. 292, the respondent was convicted of the murder of a woman. He
and the deceased were alone in a house when the occurrence took place. His defence was accident or self-
defence in a struggle over a knife said by the respondent to have been in the hand of the victim. Apart from
his evidence, there was nothing to show the particulars of what took place. There was evidence that the
respondent and the deceased had agreed upon marriage and that there had been prior dissension between
them over the mode of life led by the deceased. Shortly before the fatal act, they were heard quarrelling. The
Supreme Court of Canada held that the circumstances were sufficient to call for the trial judge to charge the
jury with respect to manslaughter. If the jury concluded upon the evidence that the homicide was culpable, it
was necessary for them to decide as a fact, with what intent the respondent had inflicted the fatal wound. If
they had a reasonable doubt that he possessed the intent required, the prisoner must be given the benefit of
that doubt, and the jury should then consider the offence of manslaughter.
It emerges from those decisions that the threshold for considering the defence of accident must be evidence
sufficient to permit a reasonable inference that the accused did not in fact foresee the consequences of his
or her act. The ultimate issue is whether the court is satisfied beyond a reasonable doubt that the accused
actually intended the consequence of his or her act, whether the accused, at the time of the offence, actually
foresaw the natural consequences of his or her act, i.e., the death of the victim. The essence of his defence
of accident is that, notwithstanding that the act of hitting the deceased was willed and deliberate, the fatal
consequences of the act were by reason of the fight unforeseen by the accused, and hence he lacked the
subjective foresight of death required for the offence of murder. The question in this case then is whether
there is sufficient evidence to permit a reasonable inference that the accused might not have known that
hitting the deceased with such force as he did on the neck was likely to result in her death. If there is, then if
the court entertains a reasonable doubt about this element of the offence and it must acquit the accused of
murder and find him guilty of the minor and cognate offence of manslaughter instead.

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Age of Criminal Responsibility
S. 88 of the Children Act, 1997 provides that the minimum age of criminal responsibility shall be twelve years.
This means, acts committed by a person under the age of 12 years do not qualify for criminal prosecution.

Alibi
An alibi is a factual defence which the accused puts forward to explain that he or she was in some other
place at the time the alleged offence was committed. Rather than a defence put forward to justify or provide
an excuse for why a person committed a certain act, alibi is a common defence which is relied upon to assert
that a person did not in fact commit the offence at all, because they were not present when the offence was
committed. However, an alibi is more than an assertion that they were not in a particular place at a particular
time. Not being at the scene of crime at the time it was committed does not necessarily mean you are not
party to a crime.

Uganda v Kasya
Held: An accused who puts up the defence of alibi does not assume the burden of proving the
defence. The burden rests on the prosecution to disprove or destroy the alibi. Court also tackled the
question of circumstantial evidence and said that where that evidence does not point to the guilt of
the accused and where there is other evidence which may rebut the inferences drawn from
circumstantial evidence, then that circumstantial evidence cannot be relied on to convict the accused.
Court looked at the inconsistencies in the prosecution case and held that where such inconsistencies
are so grave i.e. if they go to the root of the offence, then that evidence will not be adduced.

Uganda vs MacDusman Sabuni

Facts: The accused was indicted for robbery. He claimed that at the relevant time he was out of the
country thereby putting up the defence of alibi. He was convicted on the grounds inter alia that he had
failed to prove his alibi and on appeal.
Held: It is established law in Uganda that when an accused person sets up the defence of alibi, the
accused does not assume the responsibility of proving the alibi. The prosecution must instead
negative the alibi by evidence adduced before the defence is put forward or by calling witnesses to
give evidence in rebuttal. Court went on to say that all evidence must be considered as a whole and
if some doubt is thrown upon the prosecution case or if they fail to negative the alibi, then they will not
have proved their case beyond reasonable doubt and the accused will be entitled to an acquittal.

Uganda vs Serapio Tinkamalire

Facts: The accused was indicted with kidnapping with intent to murder. He put up the defence of alibi.
Held: The accused has no burden to establish his alibi. The duty is on the prosecution to disprove it
and the duty of the court is to direct its mind to the alibi set up by the accused and it is only when the
court concludes that the alibi is unsound that the court will be entitled to reject it.

Rwamaro vs Uganda
Facts: The appellant was charged with robbery. He denied the charge and raised the defence of alibi.
In its ruling, the trial court directed that the accused prove his alibi. On appeal,
Held: An accused who sets up a defence of alibi does not assume any burden to prove it. It is the
duty of the prosecution to disprove it. It was a clear misdirection in this case as the appellant had no
duty to prove his alibi, let alone his innocence. The conviction of the accused must be based on the
strength of the prosecution case and not on the weakness of the defence.

The position of the law regarding the defence of alibi “It is not the duty of accused person to prove
his alibi. It is up to the prosecution to destroy it by putting the accused person squarely at the
scene of crime and thereby proving that he is the one who committed the crime” – Sekitoleko v
Uganda [1968] EA 531.

Asega & 4 others vs Uganda Criminal Appeal No. 48 of 2011

9
 Considering the law on alibi, it is trite law that the accused does not have to prove his alibi. Rather
it is the prosecution that must produce evidence to disprove the alibi and this duty/burden does
not shift. Ref: Uganda vs MacDusman Sabuni (1981) HCB 1.
A perusal of the Judgment however indicates that the Magistrate went to great lengths to find fault
with the alibi rather than looking at the strength of the prosecution evidence discrediting the said
alibi. Criminal guilt is established on the strength of the prosecution’s evidence and not on the
weaknesses in the accused’s defence.

Impossibility
An impossibility defence is a criminal defence occasionally used when a defendant is accused of a criminal
attempt that failed only because the crime was factually or legally impossible to commit

Lawful Capacity of Office/Judicial immunity

This defence is generally available to public servants and first responders, such as police officers,
firefighters, etc. It usually protects the first responder from responsibility for otherwise criminal
actions that the first responder must perform as an appointed agent of the jurisdiction in the course
and scope of their duties. For example, a paramedic who forcibly enters a house or building in
answer to an emergency call cannot be charged with breaking and entering. A judge who
sentences a man to die for a crime cannot be charged with attempted murder if the convicted man
is later exonerated. Such protection is generally limited to acts required in the course and scope
of employment and it does not preclude gross negligence or malicious intent.

Complete/Total denial
Section 101 of the Evidence Act which provides that “He who alleges must prove”. A criminal
defendant will be acquitted if the prosecution cannot prove every element of the offense beyond
a reasonable doubt. In certain cases, the defendant can either deny that a criminal element(s)
exists or simply sit back and wait for the prosecution to fail in meeting its burden of proof. This
legal strategy is sometimes referred to as either a denial or failure of proof defence.

Example:
A fight breaks out at a party, and Juan is severely injured. Jasmine and Jerome are arrested and
charged for battering Juan. Jerome claims that he did not touch Juan; someone else battered
him. Jasmine claims that she did not batter Juan because she was legally defending herself
against Juan’s attack. Jerome’s claim focuses on the elements of battery and asserts that these
elements cannot be proven beyond a reasonable doubt. Technically, Jerome can do nothing and
be acquitted if the prosecution fails to prove that he was the criminal actor. Jasmine’s self-defence
claim is an affirmative defence. Jasmine must do something to be acquitted: she must prove that
Juan attacked her to a certain evidentiary standard.

Non-jurisdiction/lack of jurisdiction
Jurisdiction is the power or authority vested in the court to "decide matters that are before it" or "to take
cognisance of matters in a formal way for its decision." Lack of jurisdiction is therefore a limitation that relates
to trial by the court whose power or authority is in question.
Jurisdiction is a term of comprehensive import embracing every kind of judicial action and that the term may
have different meanings in different contexts. It has been defined as the limits imposed on the power of a
validly constituted court to hear and determine issues between persons seeking to avail themselves of its
process by reference to the subject matter of the issues or to the persons between whom the issues are
joined or to the kind of relief sought (See: AG of Lagos State v Dosunmu (1989) 3 NWLR pt.111, pg. 552
S C). It therefore means and includes any authority conferred by the law upon the court to decide or adjudicate
any dispute between the parties or pass judgment or order. A court cannot entertain a cause which it has no
jurisdiction to adjudicate upon. A court must have both jurisdiction and competence in order to be properly
seized of a cause or matter.

10
Under section 37 (b) and (d) of the Magistrates Courts Act, when an offence is committed partly in one local
area and partly in another and where it consists of several acts done in different local areas, the offence may
be inquired into or tried by a court having jurisdiction over any of those areas.
Double Jeopardy
Double jeopardy is a technical defence usually raised at the stage of plea-taking. If this issue is raised,
evidence will be placed before the court, which will normally rule as a preliminary matter whether the plea is
substantiated; if it is, the projected trial will be prevented from proceeding. The 1995 Constitution guarantees
against being "twice put in jeopardy".
Article 29 (9)
A person who shows that he or she has been tried by a competent court for a criminal offence and convicted
or acquitted of that offence, shall not again be tried for the offence or for any other criminal offence of which
he or she could have been convicted at the trial for that offence, except upon the order of a superior court in
the course of appeal or review proceedings relating to the conviction or acquittal
Article 29 (10)
No person shall be tried for a criminal offence if the person shows that he or she has been pardoned in
respect of that offence.
S. 18 PCA Person not to be punished twice for same offence
A person shall not be punished twice either under this Code or under any other law for the same offence.
Double jeopardy defence operates as a bar to a second prosecution for the same offense after acquittal or
conviction or multiple punishments for same offence. It is a procedural defence that prevents an accused
person from being tried again on the same (or similar) charges and on the same facts, following a valid
acquittal or conviction.
Some jurisdictions use the following expressions (peremptory pleas):
a) Plea of Autrefois convict (French for "previously convicted") which is a plea made by a defendant in
a case when s/he is charged with a crime. By this plea, a defendant can claim that s/he was charged
of the same crime under substantially same facts. The defendant should also prove that s/he was
convicted for the offense.

b) Plea of Autrefois acquit (French for “previously acquitted”) a plea made by a defendant who is
charged with a crime before the commencement of a trial. A defendant can plead that s/he was tried
earlier for the same crime under same facts of the case.

Article 14 (7) of the ICCPR provides that ―No one shall be liable to be tried or punished again for an offence
for which he has already been finally convicted or acquitted in accordance with the law and penal procedure
of each country.
The rule against double jeopardy stipulates that no-one may be put in peril twice for the same offence. If a
person has been previously acquitted or convicted (or could, by an alternative verdict, have been convicted)
of an offence and is later charged with the same offence, the rule against double jeopardy will apply to bar
the prosecution. The rule is grounded on the notion that a person who has undergone the ordeal of a criminal
trial should be left undisturbed following the final verdict, either to go on to lead a normal life if acquitted or to
face the appropriate punishment if convicted.

While the rule against double jeopardy provides certainty and a conclusion for the individual who has been
tried, from the community’s point of view the question arises as to whether a person should be allowed to
escape justice when new and compelling evidence has emerged subsequent to his acquittal which points
to his guilt. Rapid developments in recent years in forensic science and DNA testing have highlighted these
concerns. Anomalies arising from strict adherence to the rule has sparked public outcry in some jurisdictions.
Changes to the law have therefore been proposed or adopted in a number of jurisdictions.

In common law countries, a defendant may enter a peremptory plea of autrefois acquit (formerly acquitted)
or autrefois convict (formerly convicted), with the same effect. The doctrine appears to have originated in
Roman law, in the principle non bis in idem ("an issue once decided must not be raised again").
11
“A person who shows that he or she has been tried by a competent court for a criminal offence and convict
or acquitted of that offence, shall not again be tried for the offence in for any other criminal offence of which
he or she could have been convicted at the trial for that offence, except upon the order of a superior court in
the course of appeal or review proceedings relating to the conviction or acquittal”.
An analysis of Uganda’s military justice system however reveals that notwithstanding Article 28 (9) of the
Constitution and Section 216 of the UPDF Act which protect the right against double jeopardy, the law allows
for situations where accused persons can suffer double jeopardy. Under the UPDF Act, the General Court
Martial and the High Court have concurrent jurisdiction to try persons subject to military law for commission
of certain service offences. There is no prohibition against the General Court Martial to try persons subject
to military law for service offences where such persons are undergoing trial in the High Court for similar
offences arising from the same facts. The reverse is also true. In fact, the UPDF Act provides that nothing
therein stated ―affects the jurisdiction of any civil court to try a 320 Section 216 (1) of the UPDF Act provides
that ―A person, in respect of whom a charge of having committed a service offence has been dismissed, or
who has been found guilty or not guilty either by a military court or civil court on a charge of having committed
any such offence, shall not be tried again by any court in respect of that offence or any other offence of which
he or she might have been found guilty on that charge. 205 person for an offence triable by that court. The
issue of the UPDF Act allowing for situations where accused persons can suffer double jeopardy arose in
Attorney General v. Uganda Law Society SC Constitutional Appeal No 1 of 2006. In this case, Dr Kizza
Besigye and 22 others were indicted in the High Court for the offence of treason and concealment of treason.
While waiting for the commencement of their trial in High Court, they were also charged in the General Court
Martial with the offences of terrorism and unlawful possession of firearms. Both the charges in the High Court
and the General Court Martial were based on the same facts. In addressing the issue whether these
concurrent proceedings were inconsistent with the right against double jeopardy protected by Article 28 (9)
of the Constitution, the Supreme Court of Uganda upheld the decision of the Constitutional Court to the effect
that the trials were in violation of the right against double jeopardy. The Court upheld the reasoning of Justice
Okello Geraldino who argued that the right not to be tried for an offence of which one was previously convicted
or acquitted includes the right not to be charged in two different courts for offences arising from the same
facts. By allowing for situations where accused persons can suffer double jeopardy, Uganda’s military justice
system is therefore non-compliant with the right against double jeopardy.

See Attorney General vs Uganda Law Society, SC Constitutional Appeal No. 1 of 2006 - 1/20/2009
Subject Matter Facts Decision Order
1). Effect of 1). In 2005, Col (Rtd) Dr 1). For an offence under an Act other 1). Appeal
concurrent Kizza Besigye and 22 than the UPDF Act to be within the dismissed. 2).
proceedings in two Others ("the accused jurisdiction of the General Court Cross-appeal
courts. 2). persons") were on Martial, it must have been committed allowed with costs
Misjoinder remand in custody at by a person subject to military law. In to respondent in
Luzira Prison pending the instant case it was not alleged, let this court and in the
trial by the High Court alone shown, that the accused Constitutional
on an indictment for persons committed either of the two Court.
treason and offences while they were subject to
concealment of treason. military law, thus without that link
2). On the 16th neither of the two offences can be
November 2005, allowed a service offence within the
twenty-two of the meaning of the said definition. 2). The
accused persons statute that created the main offence
appeared before the with which the accused persons were
High Court at Kampala, charged before the General Court
on a bail application. Martial expressly conferred jurisdiction
The learned Judge over it in the High Court alone to the
granted them exclusion of any other court. See
conditional bail. 3). Section 6 of Anti-Terrorism Act. It
Before the accused follows that the proceedings before the
persons could be General Court Martial were inherently
released from custody unconstitutional irrespective of
however, a group of proceedings in the High Court. 3). The
12
 heavily armed security
agents invaded the High
Court premises,
interrupted the
processing of release
papers and as a result
the accused persons
were returned to Luzira
instead of being
released. 4). On the
17th day of November
2005, they were taken
to General Court Martial
where they were jointly
charged with the
offences of terrorism
and unlawful
possession of firearms.
5). It is not in dispute
that the charges in both
the High Court and the
General Court Martial
are based on the same
or inter related facts. 6).
At the pre hearing
scheduling conference,
the following six issues
were framed for
determination by the
Constitutional Court
which answered issues
Nos 1, 2, 5 and 6 in the
affirmative namely that
the concurrent criminal
proceedings in the High
Court and the General
Court Martial against
the accused persons
contravened Articles
28(1) and 44(c) and the
effect was inconsistent
with Article 28(9) thus
the appeal in this court.
See the Full judgment of 7 Judges
New evidence can be brought to bear during a retrial. Thus, one can be tried twice for the same alleged
crime. If one is convicted at the first instance, the defence can make an appeal on procedural grounds.
India
A partial protection against double jeopardy is a Fundamental Right guaranteed under Article 20 (2) of
the Constitution of India, which states "No person shall be prosecuted and punished for the same offence
more than once".[20] This provision enshrines the concept of autrefois convict, that no one convicted of
concurrent proceedings in the two
courts were inconsistent with the
principle underlying the provision in
Article 28(9) of the Constitution,
which prohibits the trial of a person
for an offence of which he or she
has been convicted or acquitted. In
effect the provision is an aspect of
the protection of the right to fair
hearing namely the right not to be
tried more than once on the same
facts or the same actus reus. 4). On
the rule against misjoinder, the
prosecution has the liberty to join in
the same charge sheet or indictment
against an accused person all possible
offences arising from the same facts in
order that the offences are tried
together as the law empowers the
court in appropriate circumstances to
convict an accused person of any
offence established by the adduced
evidence instead of the offence stated
in the charge sheet or indictment. 5).
On the cross-appeal, the argument
relied on in support of the decision in
the instant case were also considered
in Joseph Tumushabe vs. Attorney
General as no conclusion was given
by the panel that heard the petition.
The only apparent hint is that the
decision in the precedent was "per
incuriam as it was not decided on a
framed issue. 6). There was no valid
basis for departing from the previous
decision as the status of the General
Court Martial was not directly "framed"
as such in either case nor does it
make good sense in case of a
controversial issue. 7). The best
practice observed in other jurisdictions
where a court is empowered to depart
from its previous decision, is to
empanel the full court in case of a
controversial issue as to give more
clout to the decision in the event of
departure from precedent.
13
an offence can be tried or punished a second time. However, it does not extend to autrefois acquit, and
so if a person is acquitted of a crime he can be retried. In India, protection against autrefois acquit is a
statutory right, not a fundamental one. Such protection is provided by provisions of the Code of Criminal
Procedure rather than by the Constitution.

Example of Factual and Legal Defences

Armando is charged with the burglary of Roman’s residence. Armando decides to pursue two defences.
First, Armando claims that he was with Phil on the date and time of the burglary. This is called an alibi
defence. Second, Armando claims that it is too late to prosecute him for burglary because of the
expiration of the statute of limitations. Armando’s alibi defence is a factual defence; it is based on the
fact that Armando could not have committed the burglary because he was somewhere else at the time it
occurred. Armando’s statute of limitations defence is a legal defence because it is based on a statute
that limits the amount of time the government has to prosecute Armando for burglary.

Consent
Consent is a defence to a charge of assault or battery; however, it is not a defence to a more serious assault,
e.g. where actual or grievous bodily harm is caused. This defence commonly arises where an accused claims
the injured party was hurt during ‘horseplay’ to which that person consented. Consent can provide a defence
if there was no intention on the part of the accused to injure the person concerned.

Superior orders
A person who is bound to obey a superior is under a legal duty to refuse to carry out an order received from
that superior, to do some act or make some omission, if the order is manifestly illegal. If the illegal order is
carried out, an offence may be committed. Where the order is not manifestly illegal, an accused will not be
excused if they carried out the order and in doing so commits an offence.
Section 19(1)(c) provides that ‘a person charged with the offence may rely on any justification, excuse, or
defence available under the laws of Uganda or under international law’. The reference to international law is
wider than the Rome Statute. Under the Rome Statute, superior orders must not constitute a defense to the
crimes within the jurisdiction of the Court (ICC). Article 8 of the London Charter establishing the Nuremberg
International Military Tribunal explicitly prohibited the application of superior orders as a defense, and this
principle is by now well established in international law. The judgments of the Nuremberg Tribunal considered
the defense of superior orders where circumstances were such that the subordinate was deemed to have
had no moral choice or alternative to carrying out the order. The specific exclusion of superior orders as a
defense is also expressed in international instruments such as the Convention against Torture and Other
Inhuman or Degrading Treatment or Punishment. The principle is reflected in Security Council Resolution
955 (1994) establishing the International Criminal Tribunal for Rwanda. Consistent with the approach
developed since the Nuremberg Tribunal, such orders may be considered as a mitigating factor in
determining punishment, but do not exonerate criminal responsibility.

Superior orders under national common law

Only lawful orders of superior officers can constitute part of a defence. A servant would not be liable if he
committed a crime in obedience of a lawful order of his master. In Uganda vs. Kadiri Matovu [1983] HCB
27, a person has a duty to disobey an unlawful order.
The principles on this defence have not been more widely elaborated, in part because the defence has
seldom been raised in criminal proceedings in Uganda. In this respect, the Rome Statute sets out more
detailed principles.
In the trial of Adolf Eichmann, the Israeli district court observed that the rejection of the superior orders
defense in the prosecution of war criminals had been acknowledged by the United Nations in 1946 and had
"now become general in all civilised nations." A.G. of the Government of Israel v. Adolf Eichmann, (Dec.
12, 1961) 36 International Review 18, 20 (1968), at p. 257, affirmed Text of Judgment of the Supreme Court
(May 29, 1962), p. 317-18. See also U.N.G.A. Res. 95(1).

14
Insubordination
Disobeying lawful orders

S. 133 of the UPDF Act 2005, (Act No. 7 of 2005) Cap 307 provides that:
1) A person subject to military law who either wilfully or through neglect disobeys a lawful order commits
an offence and is, an on conviction, where it results in failure of operation or loss of life, liable to suffer
death or, in any other case, liable to life imprisonment.

2) For purposes of this section, disobeying lawful orders means─

a. Failing to carry out lawful orders;

b. Failing to communicate lawful orders;
c. Breaking lines of formation;
d. Taking unauthorised route while in operation;
e. Breaking off from the main operational group; or
f. Talking to unauthorised persons outside terms of reference while on operation.

Uganda is a ‘dualist’ state for the purposes of the domestic effect of international legal obligations. Although
one of the Foreign Policy Objectives of the Constitution is: ‘respect for international law and treaty
obligations’1, international treaties are not directly applicable in Uganda unless they have been specifically
incorporated by legislation. Neither can Ugandan courts use customary international law as a direct source
of law. The principle of legality as enshrined in the Constitution Article 28 requires that a criminal offence
must be defined by law which must also provide for a penalty. Customary international law is not automatically
part of the law of Uganda.

Compulsion/Duress/Coercion/Necessity
Duress
Duress may form a defence to all offences which may be heard summarily. However, the exact scope of this
defence is not clearly defined in law. This defence covers the situation where a person is threatened by
another with death or grievous bodily harm if they do not undertake a criminal act. For example, where an
accused claims that another person threatened to seriously harm them unless they stole a digital camera for
them. The fact that the accused believes that a threat of death or grievous bodily harm will be carried out if
they do not commit the offence is not of itself sufficient if a person ‘of reasonable firmness’ sharing the
characteristics of the accused would not have given way to the threats. Whether this defence is available will
depend entirely upon the individual circumstances of the case including, in particular, whether the person
belongs to a group of persons less able to resist pressure (e.g. youth, physical disability, mental impairment,
including post-traumatic stress).
Necessity
Closely related to the defence of duress and sometimes legally called duress of circumstances, is the defence
of necessity. This defence may arise in a situation where the accused justifiably chose to commit the offence
only because of the consequences had they not committed the offence. For example, a rock climber falls and
is dangling at the end of the rope held by a person who has the choice of dying with their companion (as they
are unable to pull the accused to safety) or cutting the rope and saving himself but accelerating the death of
their companion.
An accused may have a defence of necessity to an act which would otherwise be criminal if they can show
that: a. Committing the crime was necessary, or the accused reasonably believed it to be necessary, in order
to avoid or prevent serious injury or death to himself or another; b. They did no more than was necessary for

1
The ‘National Objectives and Directive Principles of State Policy,’ XXVII(i)(b), now to be read with article 8A of the Constitution
which requires Parliament to make laws for giving full effect to the Objectives and Principles.
15
that purpose; or c. The commission of the crime, viewed objectively, was reasonable and proportionate
having regard to the injury they were seeking to avoid or prevent.

S. 14 PCA Compulsion in general

A person is not criminally responsible for an offence if it is committed by two or more offenders and if the act
is done or omitted only because during the whole of the time in which it is being done or omitted the person
is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to
kill him or her or do him or her grievous bodily harm if he or she refuses; but threats of future injury do not
excuse any offence.

S. 17 PCA Compulsion by husband

A married woman is not free from criminal responsibility for doing or omitting to do an act merely because
the act or omission takes place in the presence of her husband; but on a charge against a wife for any offence
other than treason or murder, it shall be a good defence to prove that the offence was committed in the
presence of, and under the coercion of, the husband.

Intoxication
S. 12(1) of PCA provides that except as provided in this section, intoxication shall not constitute a defence
to criminal charge.
S. 12(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.
Society is entitled to punish those who of their own free will render themselves so intoxicated as to pose a
threat to other members of the community. The fact that an accused has voluntarily consumed intoxicating
amounts of alcohol (or taken other intoxicants) cannot excuse the commission of a criminal offence unless it
gives rise to a mental incapacity within the terms of section 12 of the PCA. Therefore, mere drinking alcohol
does not count in law otherwise many killers would get off by arming themselves with alcohol before they go
on their murderous missions (see Feni Yasin v. Uganda, C. A Criminal Appeal No 51/2006).

Intoxication/drunkenness due to drugs/alcohol

a) Voluntary
The principle is that it is not a defence to say that the accused would not have acted in the way they
did but for the fact that their inhibitions were reduced due to the effect of alcohol/drugs which they had
voluntarily consumed. In other words, if the accused chose to consume the alcohol/take the drugs in
the first place, it is no excuse to be intoxicated and cannot be relied on as a defence. Self -induced
intoxication from alcohol or drugs or both, may however, be a defence to an offence requiring a
‘specific intent’. The most likely offence where this issue may arise at a summary hearing is theft. In
such a case, intoxication may amount to a defence if the mind of the accused was so affected by
alcohol/drugs that they were (or may have been) incapable of forming the necessary intent. Evidence
of intoxication falling short of this and merely establishing that the mind of the accused was affected
by drink/drugs, does not provide a defence. It might reasonably be inferred from evidence raised by
the accused that they were incapable of forming the necessary intent through intoxication. In such a
case, the onus is on the officer hearing the charge to satisfy himself beyond reasonable doubt that
the accused was capable of forming the necessary intent at the time of the offence before they can
find the charge proved.

For other offences which may be committed intentionally, recklessly or negligently, self-
induced intoxication is not a defence. Such offences include:
- Assault occasioning actual bodily harm
16
 - Common assault/battery
- Criminal damage

b) Involuntary
If, however, the primary cause of the intoxication is involuntary, e.g. where a person has their drink
laced unbeknown to them, they will not necessarily, whilst under the influence of such drink, be
accountable for all their actions. In these circumstances the advice of the staff legal adviser should
be sought.

UK Position
In the English case DPP v Beard [1920] AC 479 it was held that intoxication may negate intention in an
offence involving specific intent, thus laying the foundations for the modern position of classifying offences
for the purposes of the plea. This approach was confirmed and became settled in the landmark UK decision
DPP v Majewski [1977] AC 443. There, the UK House of Lords unanimously decided that the plea of
intoxication is available in all crimes of specific intent but, reaffirming the traditional rule on self-induced
intoxication, held that it is generally no answer to crimes of basic or general intent, for example assaulting a
police officer, as was the case here. It must be noted that in one vital respect Majewski went further than
earlier decisions. Until then the plea operated as a rule of evidence, where evidence of intoxication could
negate specific intent. In contrast, the House of Lords in Majewski made a significant shift to the basis of the
rule, when it held that the rule was one of substantive law not of evidence. Although this is an important
aspect in the Majewski decision, much of the debate surrounding the case focuses on the so-called
“mysterious distinction”, the differentiation between crimes of specific and basic intent.
According to one commentator, “the specific/basic intent distinction has no logical underpinning that explains
why one crime is afforded the benefit of the intoxication defence and why another will not.” The distinction
has become the basis used to convict persons of a lesser or fallback offence. Since it was decided,
commentators have criticised the “inherent illogicality” of the decision. Despite significant criticisms, Majewski
has proved to be hugely influential, and was applied by the Court of Criminal Appeal in The People (DPP) v
Reilly [2005] 3 IR 111. In Reilly, the Court held that voluntary consumption of alcohol could not afford a
defence in a homicide prosecution. The Court considered that if a person, by consuming alcohol, induces in
himself a situation in which the likelihood that he will commit acts of violence is increased, particularly to the
stage where he commits an act which he would not have committed had he not consumed the alcohol, the
courts would be failing in their obligations to the public if they allowed the cause of his violence, namely the
alcohol, to excuse his actions. The Court stated that it must have regard to the rights of an accused person,
but that it must also have regard to the interest of the public at large who are entitled to be protected from
acts of violence. The reasoning of the Court in Reilly has been criticised on the basis that, while public
protection is a laudable goal, empirical evidence does not support the conclusion that intoxicated violence
increases where a Majewski-like rule is not followed.

Insanity
Presumption of sanity, S. 10 PCA
Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in
question, until the contrary is proved.

S. 11 PCA
Insanity
A person is not criminally responsible for an act or omission if at the time of doing the act or making the
omission he or she is through any disease affecting his or her mind incapable of understanding what he or
she is doing or of knowing that he or she ought not to do the act or make the omission; but a person may be
criminally responsible for an act or omission, although his or her mind is affected by disease, if that disease
does not in fact produce upon his or her mind one or other of the effects mentioned in this section in reference
to that act or omission.

17
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
Insanity.

Insanity was set out definitively in the English case R v Daniel McNaghten [1843] All ER Rep 229. The
accused was labouring under the belief that he was being persecuted by the Tory (UK’s Conservative) party
and hence had to kill the British Prime Minister. At his trial, the judges set down what became known as the
McNaghten Rules.
- Firstly, it must be clearly shown that, at the time of committing the act, the defendant was labouring
under a defect of reason caused by a disease of the mind; and,
- Secondly, that the defect of reason must mean that either the defendant was not aware of what he
was doing, or he was not aware that what he was doing was wrong.

To be a criminal defense, the defendant pleading insanity must satisfy these conditions, otherwise it
is not a defence in Uganda. One must show that they have a mental disease or defect which, at the
time of the commission of the crime, destroyed the person's capacity either to appreciate the
criminality of his or her conduct or conform that conduct to the requirements of the law.

McNaghten Case [1843] All ER Rep 229

The McNaghten (pronounced, and sometimes spelt, McNaghten/McNaughton) rule is any variant of the
1840s jury instruction in a criminal case when there is a defense of insanity:
"that every man is to be presumed to be sane, and... that to establish a defense on the ground of
insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was
laboring under such a defect of reason, from disease of the mind, as not to know the nature and
quality of the act he was doing; or if he did know it, that he did not know he was doing what was
wrong."

The rules were formulated as a reaction to the acquittal in 1843 of Daniel McNaghten, a paranoid, on the
charge of murdering Edward Drummond, whom had mistaken for British Prime Minister Robert Peel.
McNaghten fired a pistol at the back of Peel's secretary, Edward Drummond, who died five days later. The
House of Lords asked a panel of judges, presided over by Sir Nicolas Conyngham Tindal, Chief Justice of
the Common Pleas, and a series of hypothetical questions about the defence of insanity. The principles
expounded by this panel have come to be known as the McNaghten Rules, though they have gained any
status only by usage in the common law and he would have been found guilty if they had been applied at his
trial.

The rules have been a standard test for criminal liability in relation to mentally disordered defendants in
common law jurisdictions ever since, with some minor adjustments. When the tests set out by the Rules are
satisfied, the accused may be adjudged "not guilty by reason of insanity" or "guilty but insane" and the
sentence may be a mandatory or discretionary (but usually indeterminate) period of treatment in a secure
hospital facility, or otherwise at the discretion of the court (depending on the country and the offence charged)
instead of a punitive disposal.

The concept of “disease of the mind” has been considered in a number of cases. In R v Kemp [1957] 1 QB
399, the defendant argued that he suffered from arteriosclerosis which had, on the occasion in question,
caused a lack of blood to the brain, in turn causing a lack of consciousness so that he had no control over
his actions. The prosecution argued that this was not a disease of the mind as there was no evidence of brain
damage and in fact it was a physical condition. This was rejected by the court, however, which held that the
mental faculties of reason, memory and understanding are engaged by the term “disease of the mind” and
hence this physical condition which affected these faculties was in fact a disease of the mind. Therefore, any
physical or mental condition that impacted on the working of the defendant’s mind at the time the act was
committed could be classified as a disease of the mind. In Bratty v Attorney General for Northern Ireland
[1963] AC 386 epilepsy was held to be a disease of the mind, the accused claiming that he had no knowledge
of events due to experiencing a blackout. Similarly, in R v Sullivan [1983] 2 All ER 673, a case also
concerning a person having an epileptic fit, it was held that the effect on the relevant faculties can be of a
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temporary nature. In R v Burgess [1991] 2 QB 92, sleepwalking was held to be a disease of the mind. This
wide definition of insanity means that epilepsy and conditions caused by diabetes can be classified as forms
of insanity. Diabetics however can also make a person an automaton. The crucial distinction depends on
whether the impairment of mental facilities was caused by an “external factor” or an “internal factor”. In R v
Quick [1973] QB 910, the accused suffered from hypoglycaemia, which is a deficiency in blood sugar levels.
In order to maintain the appropriate level of blood sugar he should have taken a certain amount of insulin. In
the event he took too much, which meant the blood level was too low. As a result, the assault with which he
was charged occurred while he was suffering from an external factor (the injection of insulin) and so the
appropriate defence was automatism. By contrast, in R v Hennessy [1989] 1 WLR 287, a case that also
involved diabetes, the defendant suffered from hyperglycaemia (when the blood sugar level is too high).
Here, it was held that the offence occurred while the accused suffered from a purely internal factor, and hence
the appropriate defence was insanity.
According to Ashworth, this distinction between external and internal factors, determining whether someone
can plead insanity or automatism, shows that the policy of social protection has gained the upper hand and
that the judiciary is prepared to overlook the gross unfairness of labelling these people as insane in order to
ensure that the court has the power to take measures of social defence against them.

The insanity defence is recognized in Australia, Canada, England and Wales, Hong Kong, India, the Republic
of Ireland, New Zealand, Norway and most U.S. states with the exception of Idaho, Kansas, Montana, Utah,
and Vermont[6] but not all of these jurisdictions still use the Rules.

There are various justifications for the exemption of the insane from criminal responsibility. When mental
incapacity is successfully raised as a defence in a criminal trial it absolves a defendant from liability. It applies
public policies in relation to criminal responsibility by applying a rationale of compassion, accepting that it is
morally wrong to punish a person if that person is deprived permanently or temporarily of the capacity to form
a necessary mental intent that the definition of a crime requires. Punishment of the obviously mentally ill by
the state may undermine public confidence in the penal system. A utilitarian and humanitarian approach
suggests that the interests of society are better served by treatment of the illness rather than punishment of
the individual. Historically, insanity was seen as grounds for leniency.

The House of Lords delivered the following exposition of the Rules:

the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess
a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their
satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that,
at the time of the committing of the act, the party accused was labouring under such a defect of
reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or,
if he did know it, that he did not know he was doing what was wrong.

The central issue of this definition may be stated as "did the defendant know what they were doing, and, if
so, that it was wrong?", and the issues raised have been analysed in subsequent appellate decisions:

Presumption of sanity and burden of proof

Sanity is a rebuttable presumption and the burden of proof is on the party denying it; the standard of proof is
on a balance of probabilities, that is to say that mental incapacity is more likely than not. If this burden is
successfully discharged, the party relying upon it is entitled to succeed. In Lord Denning's judgement in Bratty
v Attorney-General for Northern Ireland, whenever the defendant makes an issue of his state of mind, the
prosecution can adduce evidence of insanity. However, this will normally only arise to negate the defence
case when automatism or diminished responsibility is in issue. In practical terms, the defence will be more
likely to raise the issue of mental incapacity to negate or minimise criminal liability. In R v Clarke [1972] 1
All E R 219 a defendant charged with a shoplifting claimed she had no mens rea because she had absent-
mindedly walked out of the shop without paying because she suffered from depression. When the prosecution
attempted to adduce evidence that this constituted insanity within the Rules, she changed her plea to guilty,
but on appeal the Court ruled that she had been merely denying mens rea rather than raising a defence
under the Rules and her conviction was quashed. The general rule was stated that the Rules apply only to
cases in which the defect of reason is substantial.

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Disease of the mind
Whether a particular condition amounts to a disease of the mind within the Rules is not a medical but a legal
question to be decided in accordance with the ordinary rules of interpretation. It seems that any disease
which produces a malfunctioning of the mind is a disease of the mind and need not be a disease of the brain
itself. The term has been held to cover numerous conditions:

In R v Kemp [1957] 1 QB 399 a hardening of the arteries caused loss of control during which the defendant
attacked his wife with a hammer. This was an internal condition and a disease of the mind.

In R v Sullivan during an epileptic episode, the defendant caused grievous bodily harm: epilepsy was an
internal condition and a disease of the mind, and the fact that the state was transitory was irrelevant.

In R v Quick [1973] QB 910 the accused committed an assault while in a state of hypoglycemia caused by
the insulin he had taken, the alcohol he had consumed and not eating properly. It was ruled that the judge
should have left the defence of automatism open to him, so his conviction was quashed (he had pleaded
guilty rather than not guilty by reason of insanity). This was where the internal/external divide doctrine was
first expressed, probably due to judicial reluctance to hospitalise someone for a condition that could be cured
by a sugar lump. It is doubtful that a jury would have accepted a defence of automatism, but nonetheless the
issue should have been left to them.

In R v Hennessy [1989] 1 WLR 287 a diabetic stole a car and drove it while suffering from a mild attack of
hyperglycemia caused by stress and a failure to take his insulin. Lane LCJ said at 294

In our judgment, stress, anxiety and depression can no doubt be the result of the operation of external factors,
but they are not, it seems to us, in themselves separately or together external factors of the kind capable in
law of causing or contributing to a state of automatism. They constitute a state of mind which is prone to
recur. They lack the feature of novelty or accident, which is the basis of the distinction drawn by Lord Diplock
in R v Sullivan 1984 AC 156, 172. It is contrary to the observations of Devlin J., to which we have just
referred in Hill v Baxter (1958) 1 QB 277, 285. It does not, in our judgment, come within the scope of the
exception of some external physical factor such as a blow on the head or the administration of an anaesthetic.

In Bratty v Attorney-General for Northern Ireland Lord Denning observed obiter that a crime committed
while sleepwalking would appear to him to be one committed as an automaton. However, the ruling in R v
Sullivan that diseases of the mind need have no permanence led many academics to suggest that
sleepwalkers might well be found to be suffering from a disease of the mind with internal causes unless there
was clear evidence of an external causal factor.

In R v Burgess the Court of Appeal ruled that the defendant, who wounded a woman by hitting her with a
video recorder while sleepwalking, was insane under the McNaghten rules. Lord Lane said, "We accept that
sleep is a normal condition, but the evidence in the instant case indicates that sleepwalking, and particularly
violence in sleep, is not normal."

The courts have clearly drawn a distinction between internal and external factors affecting a defendant's
mental condition. This is partly based on risk of recurrence, whereby the High Court of Australia has
expressed that the defence of automatism is unable considered when the mental disorder has been proved
transient and as such not likely to recur. However, the distinction between insanity and automatism is difficult
because the distinction between internal and external divide is difficult. Many diseases consist of a
predisposition, considered an internal cause, combined with a precipitant, which would be considered an
external cause. Actions committed while sleepwalking would normally be considered as "non-insane
automatism", but often alcohol and stress trigger bouts of sleepwalking and make them more likely to be
violent. The diabetic who takes insulin but does not eat properly – is that an internal or external cause?

Nature and quality of the act

This phrase refers to the physical nature and quality of the act, rather than the moral quality. It covers the
situation where the defendant does not know what he is physically doing. Two common examples used are:
1. The defendant cuts a woman's throat under the delusion that he is cutting a loaf of bread;

20
 2. The defendant chops off a sleeping man's head because he has the deluded idea that it would be
great fun to see the man looking for it when he wakes up.
The judges were specifically asked if a person could be excused if he committed an offence in consequence
of an insane delusion. They replied that if he labours under such partial delusion only, and is not in other
respects insane, "he must be considered in the same situation as to responsibility as if the facts with respect
to which the delusion exists were real". This rule requires the court to take the facts as the accused believed
them to be and follows Hadfield's Trial. If the delusions do not prevent the defendant from having mens rea
there will be no defence. In R v Bell 1984 Crim. LR 685 the defendant smashed a van through the entrance
gates of a holiday camp because "It was like a secret society in there, I wanted to do my bit against it" as
instructed by God. It was held that, as the defendant had been aware of his actions, he could neither have
been in a state of automatism nor insane, and the fact that he believed that God had told him to do this merely
provided an explanation of his motive and did not prevent him from knowing that what he was doing was
wrong in the legal sense.

Knowledge that the act was wrong

The interpretation of this clause is a subject of controversy among legal authorities, and different standards
may apply in different jurisdictions.
"Wrong" was interpreted to mean legally wrong, rather than morally wrong, in the case of Windle [1952]
2QB 826; 1952 2 All ER 1 246, where the defendant killed his wife with an overdose of aspirin. He telephoned
the police and said, "I suppose they will hang me for this." It was held that this was sufficient to show that
although the defendant was suffering from a mental illness, he was aware that his act was wrong, and the
defense was not allowed.

Under this interpretation, there may be cases where the mentally ill know that their conduct is legally
prohibited, but it is arguable that their mental condition prevents them making the connection between an act
being legally prohibited and the societal requirement to conform their conduct to the requirements of the
criminal law.
As an example of a contrasting interpretation in which defendant lacking knowledge that the act was morally
wrong meets the McNaghten standards, these are the instructions the judge was required to provide to the
jury in cases in New York State when the defendant has raised an insanity plea as a defense:
... with respect to the term "wrong", a person lacks substantial capacity to know or appreciate
that conduct is wrong if that person, as a result of mental disease or defect, lacked substantial
capacity to know or appreciate either that the conduct was against the law or that it was
against commonly held moral principles, or both.
There is other support in the authorities for this interpretation of the standards enunciated in the findings
presented to the House of Lords regarding McNaghten's case:
If it be accepted, as can hardly be denied, that the answers of the judges to the questions asked by the House
of Lords in 1843 are to be read in the light of the then existing case-law and not as novel pronouncements of
a legislative character, then the [Australian] High Court's analysis in Stapleton's Case is compelling. Their
exhaustive examination of the extensive case law concerning the defense of insanity prior to and at the time
of the trial of McNaghten establishes convincingly that it was morality and not legality which lay as a concept
behind the judges' use of "wrong" in the McNaghten rules.

Absolute privilege of defamatory matter

s. 183 PCA extends to MPs when they make defamatory statements in parliament
183 (1)
The publication of defamatory matter is absolutely privileged, and no person shall in any circumstances be
liable to punishment under this Code in respect of such publication, in any of the following cases—
 if the matter is published by the President, the Government or Parliament;
 if the matter is published in Parliament by the Government or by any member of that Parliament or by
the Speaker;
 if the matter is published by order of the President or the Government;
 if the matter is published concerning a person subject to military, naval or air force discipline for the
time being, and relates to his or her conduct as a person subject to such discipline, and is published
21
 by some person having authority over him or her in respect of such conduct, and to some person
having authority over him or her in respect of such conduct;
 if the matter is published in the course of any judicial proceedings by a person taking part in them as
a judge, magistrate, commissioner, advocate, assessor, juror, witness or party to the proceedings;
 if the matter published is in fact a fair report of anything said, done or published in Parliament; or
 if person publishing the matter is legally bound to publish it.

183 (2)
Where a publication is absolutely privileged, it is immaterial for the purposes of this Chapter
 whether the matter is true or false, and whether it is or is not known or believed to be false and
 whether it is or is not published in good faith; but nothing in this section shall exempt a person
 from any liability to punishment under any other Chapter of this Code or under any other written
 law in force in Uganda.

Immunity (Official capacity)

 Presidential immunity: The 1995 Constitution of Uganda states in Article 98(4) that while in office
the President shall not be liable to any proceedings in any court. This means that one cannot sue a
sitting President whether nationally

 Judicial immunity: This is enshrined in Article 128(4) of the Constitution. However, disciplining of
judicial officers is covered under Articles 147 and 148 which deal with the mandate of the Judicial
Service Commission.
See Attorney General v Nakibuule Gladys Kisekka Constitutional Appeal No. 2/2016

 Diplomatic immunity: This is a doctrine of international law, under which states relinquish the
jurisdiction of their courts to entertain suits against diplomatic representatives of foreign states.
Diplomatic privileges and immunities under the Diplomatic Privileges Act, Cap 201 are extended to
the diplomatic agents, representatives, officials and employees of those organisations. The
Diplomatic Privileges Act domesticated certain provisions of the Vienna Convention on Diplomatic
Relations to confer immunity on diplomatic agents from criminal, civil and administrative jurisdiction
of the receiving state. Article 31 (1) of the Diplomatic Privileges Act provides that a diplomatic agent
shall enjoy immunity from criminal, civil and administrative jurisdiction of the receiving state.

The immunity is conferred on the diplomatic agents, staff, etc for all official functions. This applies to the
officials, spouses and children of the officials among others, against criminal and civil process in their official
capacities. Under the Diplomatic Immunity under the Diplomatic Privileges Act and the Diplomatic Privileges
(Extension to Prescribed Organisation) (Amendment) Regulations, 2014 prescribe officers enjoy functional
immunity. Immunity is not accorded to employees of those diplomatic missions or organisations who are
citizens of Uganda or persons permanently or ordinarily resident in Uganda.
Articles 31 and 32 of the Vienna Convention which are domesticated by the Diplomatic Privileges Act are
reproduced herein below for ease of reference:

“Article 31.
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.
He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case
of:
a) a real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes
of the mission;

b) an action relating to succession in which the diplomatic agent is involved as

executor, administrator, heir or legatee as a private person and not on behalf of the
sending State;

c) an action relating to any professional or commercial activity exercised by the

diplomatic agent in the receiving State outside his official functions.

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 2. A diplomatic agent is not obliged to give evidence as a witness.

3. No measures of execution may be taken in respect of a diplomatic agent except in the cases
coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that
the measures concerned can be taken without infringing the inviolability of his person or of his
residence.

4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt
him from the jurisdiction of the sending State.

Article 32.
1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under
Article 37 may be waived by the sending State.

2. Waiver must always be express.

3. The initiation of proceedings by a diplomatic agent or by a person enjoying the immunity from
jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in
respect of any counter-claim directly connected with the principal claim.

4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not
be held to imply waiver of immunity in respect of the execution of the judgment, for which a
separate waiver shall be necessary.”

In some cases, the Government of Uganda has covenanted to grant specified international organisations
immunity from all legal processes. International bodies are creatures of sovereign states which determine
their legal status, capacities, privileges and immunities. As a general rule, international organisations are
exempted from the jurisdictions of domestic and contracting authorities and are therefore not subject to any
suits, claims or enforcement proceedings in such domestic forum.

The immunity conferred on international organisations by virtue of extension of immunity under the above
article from civil and administrative process is not absolute. There are several exceptions which include an
action relating to private immovable property situated in the territory of the receiving State. Secondly an action
relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee is
excepted. Most importantly an action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions is also excepted.

See Clet Wandui Masiga v Association for Strengthening Agriculture in Eastern and Central Africa,
Civil Suit Nos 266, 267 & 268 of 2016

Conclusion
The entire burden to prove a crime is on the state, which also must prove the absence of these defences,
where implicated. In other words, in many jurisdictions the absence of these so -called defences is treated
as an element of the crime. So-called defences may provide partial or total refuge from punishment.

Revisit the PCA

CHAPTER III—GENERAL RULES AS TO CRIMINAL RESPONSIBILITY
1. Ignorance of law s.6
2. Claim of right s.7
3. Intention and motive s.8
4. Mistake of fact s.9.
5. Presumption of sanity s.10.
6. Insanity s.11.
7. Intoxication s.12

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 8. Judicial officers s.13.
9. Compulsion s.14.
10. Defence of person or property and rash, reckless and negligent acts s.15
11. Use of force in effecting arrest s.16.
12. Compulsion by husband s.17.
13. Person not to be punished twice for same offence s. Art. 28(9) Constitution 1995; 18 PCA.
In addition:
14. Age of criminal responsibility s.88 Children Act (c.w.f the International Crimes Act)
15. Provocation ss. 192 and 193
16. Alibi
17. Diplomatic immunity (See the Deportation Act and the Geneva Convention on Diplomatic
immunity)
18. Presidential immunity Act. c.w.f. the Rome Statute.
19. Absolute privilege of defamatory matter s.183
20. Conditional privilege of defamatory matter s.184
21. Diminished responsibility s.194

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