LAW DEVELOPMENT CENTRE

CRIMINAL LAW AND PROCEDURE

NOTES
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Table of Contents
Section one: Preliminary Matters ................................ .........................................4
1.0 Crime Investigations ................................ ....................................................... 4
1.0.1 Methods of investigating certain crimes ..................................................4
(a) Interviewing Witnesses................................................................ .............5
(b) Management of a Scene of a Crime................................ .........................5
(c)Technical Evidence ................................................................ ...................7
(d) Search................................ ................................................................ .....8
(e) Handling Exhibits................................................................ ......................8
(f) Sketch Plan ................................ ............................................................... 9
(g) Case File ................................ ................................................................ 10
1.1 Arrests and Searches ................................ ................................................... 11
1.1.1Methodology of Arrest ................................ ............................................. 13
(a) Use of Force by Police Officers .............................................................. 13
(b) Arrests without a warrant................................................................ ........ 14
1.1.2 Powers to Arrest................................ ..................................................... 15
(a) Police officers ................................................................ ......................... 15
(b)Private Persons ................................................................ ....................... 16
(c) Chiefs ................................................................ ..................................... 17
(d) Magistrates................................ ............................................................. 17
1.1.3 Searches................................ ................................................................ 17
(a) Search by police officers ................................................................ ........ 18
(b) Search without a Warrant................................ ....................................... 19
1.2 Charge and Caution Statements................................................................ ...20
Section Two: Institution of Criminal Proceedings................................................ 23
2.1 The Magistrates Court ................................ .................................................. 23
2.1.1 Private Prosecutions ................................................................ .............. 23
2.2 High Court................................................................ ..................................... 23
2.2.1 Consent of the DPP................................ ................................................ 24
Section Three: Charges................................................................ ...................... 26
3.1 Form of Charge ................................................................ ......................... 26

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3.2 Joinder of Charges ................................................................ .................... 27

3.2.1 Joinder of Offences/Counts ................................................................ 27
3.2.2 Joinder of Persons................................................................ .............. 32
3.3 Misjoinder................................................................ .................................. 33
3.4 Alternative Charges................................ ................................................... 34
Section Four: Pleas................................ ............................................................. 35
4.1 Plea of Guilty................................ ............................................................. 35
4.2 Plea of not guilty................................ ........................................................ 36
4.2.1 Change of Plea................................ ................................................... 37
4.3 Autrefois Acquit ................................................................ ......................... 37
4.4 Plea of Pardon ................................................................ ....................... 38
Section Five: Bail ................................ ................................................................ 40
5.1 Who may grant Bail? ................................................................ ................. 40
5.2 When may Bail be granted? ................................................................ ......41
5.3 Bail pending revision by High Court ................................ .......................... 42
Section Six: Theoretical Points to Note................................ ............................... 43
6.1 Mens rea................................................................ ....................................... 43
6.1.1 Intention................................................................ .................................. 43
6.1.2 Recklessness ................................................................ ......................... 44
6.1.3 Negligence ................................ ............................................................. 44
6.1.4 Transferred Malice ................................................................ ................. 45
6.2 Coincidence of Actus Reus and Mens Rea................................................... 45
6.3 Strict Liability................................................................ ................................ .45
6.4 The Hearsay Rule ................................................................ ......................... 46
6.5 Privilege against self-incrimination................................................................ 47
6.6 Identification of witnesses................................ ............................................. 48

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Section one: Preliminary Matters

1.0 Crime Investigations

In an accusatorial system, the prosecution must prove the case against an

accused person beyond reasonable doubt. In order to prove its case, the
prosecution must adduce sufficient evidence in support of the charge against the
accused person. The evidence adduced by the prosecution is ordinarily gathered
by the police criminal investigation department. The accused person has no legal
duty of proving himself innocent, therefore, the police must investigate the cases
carefully and professionally.

Crime investigation is a process of gathering evidence in a professional manner

for the purpose of supporting or disproving a criminal charge or allegation. In
every criminal trial two important issues must always be resolved;
(a) that a crime punishable under the law was committed;
(b) that the person who committed the crime is the person.

Without the accused being placed at the scene of the crime, the prosecution will
fail. In order to place the accused person at the scene of the crime, investigations
must be carried out in order to collect evidence that supports the charge and
confirms the involvement of the accused person at the time and place alleged in
the charge.

1.0.1 Methods of investigating certain crimes

Different crimes call for different skills in their investigation. However, there are
general principles which are normally followed in the investigation of crimes of
the same genus. Generally, there are four main methods used by crime
investigators in the process of collecting evidence.

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(a) Interviewing Witnesses

An investigator will normally identify the witnesses who might have witnessed the
crime taking place and then request them to assist the state and make
statements to support what they witnessed. Every person living in Uganda has a
civic duty to ensure that when crimes are committed in their presence they assist
the police in investigations.

A police investigator will interview witnesses who may know something about the
case and record their statements on police forms (PF) 2(a) and 2(b). When a
suspect is interrogated his statement will be recorded under a charge and
caution by the investigating officer.

Victims of a crime and witnesses should be interviewed as quickly as possible to

avoid any adverse parties interfering with them and avoid undesirable twists in
the evidence. In recording the statements of the victims and witnesses, the
investigator should ensure the following;
(i) Name, occupation and address of the maker of the statement;
(ii) Date and place where the statement is made;
(iii) Statement should disclose time, place, date and when the crime was
committed;
(iv) The statement should as much as possible disclose the ingredients of
the crime charged;
(v) It should identify the offender, if known;
(vi) It should identify possible witnesses.

(b) Management of a Scene of a Crime

Whenever a serious crime is committed all police officers are trained to ensure
that the first police officer at the scene of crime will ensure that the scene is
cordoned off immediately pending the arrival of the most senior investigating
officer. A scene of crime is a place where a crime has been committed but

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ceases to be a scene once the investigating officer is satisfied that adequate

evidence at the scene has been collected and taken into safe custody. A scene
can extend to a wide area depending on the possibility of reasonable presence of
evidence. Whenever, a senior investigating officer arrives at the scene he or she
will automatically take over the management of the scene. He may inter alia do
the following;
 Determine whether the cordon is sufficient;
 Extend or narrow down the cordon after determining the direction of entry
or exit from the scene by the subject;
 Determine which witnesses to make statements;
 The scene will be carefully searched in order to establish any pieces of
evidence that may be used as clues such as weapons, personal property,
documents and any other material of evidential value;
 Then the investigating officer must draw a sketch plan of the scene
 The investigating officer may where necessary call for other
technical/support personnel, such as photographers, finger print experts
etc.
 Upon completion of the inspection and searching the scene of the crime,
the investigating officer must enter his findings in a crime record called the
Criminal Report Book (CRB) starting with the first information of the crime
report
 Information of a serious crime having been committed is communicated to
the CID and police headquarters respectively within 24 hours of the
incident;
 Within 7 days of the incident the investigating officer, through the district
CID officer submits to the CID headquarters the summary of the facts of
the case and the preliminary investigations carried out on Police Form 16;
 Within 30 days thereafter, the investigation officer (IO) will submit a
progress report to police on Police Form 16a;

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 If there are any finger print marks or any other exhibits lifted at the scene
of the crime then the IO must submit them for analysis by the relevant
experts and this is done on PF 17; and
 In the case of an injured victim of crime, the IO will issue PF3 so that the
police surgeon can give his opinion on the nature of injuries sustained.

(c)Technical Evidence

Crimes today are being committed with increased sophistication requiring

scientific methods of crime investigation. Modern investigating officers do rely on
technical evidence to prove technical aspects of the crime. Experts will normally
be summoned to guide the court on such technical aspects of the crime. These
experts include; hand writing experts, bomb experts, photographers and DNA
experts.

Relevant police forms should be used for submission of relevant requests for
technical analysis and the IO should submit relevant police forms to the experts
on which to return technical opinions as follows;

Nature of Inquiry Request Expert’s

opinion
Personal injury P.F 3 P.F 3
Rape/Defilement P.F 3 Annex P.F 3 Annex
Finger prints (Previous Record) P.F 20 P.F 45 (N.R)
Finger prints (Women) (Previous Record) P.F 21 P.F 45(a) (R)
Finger prints (Elimination) P.F 20 Report
Post Mortem P.F 48 P.F 48(a)
Inquest (at the scene) P.F 48 P.F 48(a)
Post Mortem (at scene) P.F 48 P.F 48(c)
Examination of Inquiry P.F 24 P.F 24
Chemical/ Ballistic/QDA/MVS/Blood/DNA P.F 17 P.F 17(a) /Report

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etc

N.B
N.R—No Criminal Record
R—Criminal Record Confirmed
QDA—Questioned Documents Analyst

(d) Search

Search by an investigating officer is intended to discover and seize any material

which may be used in evidence. This involves searching a scene of crime or any
other place where any material or object of evidential value may be hidden. Such
searches are normally carried out in the course of investigations by the
investigation officer without a search warrant. A search may also be extended to
intimate and strip search where the body of the suspect may be searched.

Where a search is carried out by a police officer, the officer must be of the same
sex as the person searched. The officer must record any recovered items/objects
in the diary of investigations and this fact must be included in his police
statement as the investigating officer. The items/objects may be entered in the
police Exhibit book (PB) and an exhibit slip issued and kept in the case file.

(e) Handling Exhibits

Police exhibits must be handled in a systematic and orderly manner since the
exhibit forms part of the evidence. All the exhibits must be entered in the Police
Exhibit Book of the relevant police station and an exhibit slip issued and kept in
the case file. The exhibits must be kept under lock and key by the officer in
charge of the Police Exhibits store. This is the officer who will finally handover the
exhibits in court during trial. The chain of handling of police exhibits is so crucial
that if any doubt is created as to the source of the exhibit or that there was a
break in the chain of handling them, then the evidential value of such exhibits
may be challenged.

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 Exhibits must be properly marked and labelled in tandem with the exhibit
slips and later identified in court;
 Care must be observed in collecting specimen samples that will be
compared with exhibits e.g blood for comparison with stains on clothes or
other objects
 Depending on the nature of the crime under investigation other samples
such as vomit etc may be taken from a deceased person to be compared
with exhibits such as bottle contents etc
 Where there is need for forensic examination or analysis of both the
exhibits and specimen samples, the exhibits and samples must be sealed,
packed separately, labeled and submitted to the expert with the relevant
investigation request on P.F 17. The expert’s opinion will be returned in
form of expert’s report;
 The integrity and identity of exhibits and specimen samples is so vital that
any failure to ensure systematic continuity would render the report of the
examination suspect;
 It is very important that the officer who handled the exhibits right from the
scene of crime should be the one who identifies them in court during the
trial; and
 After the investigating officer has finished his inquiries at the scene of
crime, he should draw a sketch plan of the scene and affix it in the case
file.

(f) Sketch Plan

This is the visual representation of the scene of crime drawn by an investigating

officer. It helps the court and other law officers to visualize the nature and
appearance of the scene of crime at the time when the IO visited the scene.
Everything of importance including the positions and distances must be shown.
Distances between different objects must be measured. Symbols or alphabetical

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letters should be used on the plan to show places and key locations of
importance without explanations on the sketch plan.

Explanations may be added in a separate page but the letters should be used as
a key to the plan. The plan should be prepared in triplicate and will form part of
the evidence in the case file.

(g) Case File

After completion of the investigations the investigating officer should ensure that
he records his own statements and file in the case file. He should then make a
final report of the investigations on PF 16(a). The case file should therefore
contain all the relevant evidence collecting during the course of the investigation.
The order of compiling a case file normally follows sequentially of facts and
evidence as they will be produced in court during trial.

Part A
(i) First record in the Police File Cover which is designed to
accommodate all activities until the file is closed. It is on PF 2
(ii) Summary of the facts of the case
(iii) Index to the statements (marked).
(iv) Statements of witnesses in their order of importance
(v) Technical evidence; list of exhibits and report from experts
(vi) Defence evidence i.e statement of accused person(s);
(vii) Record of previous convictions presented on PF 45(a);

Part B
(i) Diary of investigations, including all police actions all numbered
chronologically and consecutively in what is called minutes in black or
blue;

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(ii) Correspondences which include investigating officer’s reports,

administrative letters to agencies, departments, lawyers etc all
numbered in red;
(iii) Police forms; i.e exhibit slips, prisoner’s property record.

 All police case files are serially numbered and entered in the
Criminal Report Book (CRB) which is opened on 1 st January each
year and is closed 31st December in each case at mid night
 Once a case file is complete the investigating officer may draft
appropriate charge sheets on PF 53 and the file is submitted to the
DPP for sanctioning the charge
 Case files which are originated at CID headquarters are numbered
and compiled slightly differently

1.1 Arrests and Searches

An arrest is a deprivation of personal liberty for purposes of compelling the
person arrested to appear before an authority either as a suspect or as a
witness. It usually involves the confinement of the arrested person in custody
pending his appearance in court. For an arrest to be lawful, it must be done in
accordance with a warrant issued by court or some other authority. Article 23 (1)
of the Constitution of Uganda, 1995 sets down the different circumstances and
conditions under which an individual can be lawfully deprived of his liberty.

In Raimond Ochieng Vs Uganda [1968] ULR 14, it was held that as entrenched
in the Constitution, no person shall be deprived of his right to personal liberty,
unless authorized by law and therefore there is no right to take a witness into
custody pending an investigation into a crime.

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In Njuguna s/o Kimani v R. (1954), 21 E.A.C.A. 316 Court held that it is highly
improper for the police to keep a suspect in unlawful custody and prolong the
questioning of him by refraining from formally charging him. ,

Article 23 (1) Circumstances in which a lawful arrest can

be made
 in execution of the sentence or order of a court, in
respect of a criminal offence
 in execution of the order of a court made to secure
the fulfilment of any obligation imposed on that
person by law;
 for the purpose of bringing that person before a court
in execution of the order of a court or upon
reasonable suspicion that that person has committed
or is about to commit a criminal offence under the
laws of Uganda;
 for the purpose of preventing the spread of an
infectious or contagious disease;
 in the case of children, for the purpose of the
education or welfare of that person;
 in the case of a person who is suspected to be, of
unsound mind or addicted to drugs or alcohol, for the
purpose of the care or treatment of that person or the
protection of the community;
 for the purpose of preventing the unlawful entry of
that person into Uganda, or for the purpose of
effecting the expulsion, extradition or other lawful
removal of that person from Uganda

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1.1.1Methodology of Arrest
The procedure for making arrests is set out in the Criminal Procedure Code Act,
Cap 116. Section 2 (1) provides that the police officer or other person making
arrest must actually touch or confine the body of the person to be arrested,
unless there be a submission to the custody by word or action. Section 2(2)
states that if a person to be arrested resists arrest or attempts to evade the
arrest, the police officer or other person making the arrest may use all means
necessary to effect the arrest. However, under section 2(3) no greater forcer than
is reasonable in the circumstances should be used in effecting an arrest.
Excessive or unwarranted force during an arrest of an individual is unlawful.

(a) Use of Force by Police Officers

Police officers are authorized to use reasonable force under section 2(2) of the
CPC. Police officers are authorized to use firearms during arrests in the following
circumstances;
(a) when a person in lawful custody charged with a serious offence is
escaping or trying to escape from custody; and
(b) Any person who by force prevents or attempts to prevent the lawful arrest
of himself or of any other person.

A police officer ought not to resort to the use of firearms unless he reasonably
believes he cannot prevent the escape or effect the arrest as the case might be
without resort to use of a firearm or unless he has warned such a person that he
is about to use such arms against him which warning goes unheeded.

Where a police officer has apprehension of immediate danger to himself or any

other person, and that he cannot do otherwise to effect such arrest or prevent
such rescue or escape. Joseph Byarugaba Vs Uganda (1973) ULR 4,
discussed the use of firearms in effecting arrest. It was held that at common law,
reasonable force can be used in affecting an arrest, or preventing an escape

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from lawful custody. Court further held that where a person in lawful custody
escapes or is rescued, the person from whose custody he escapes or is rescued
may immediately pursue and arrest him in any place in Uganda. Since in this
case the complainants were unarmed and handcuffed, and their homes were
known to the police, the use of a firearm by the appellant constituted an
unreasonable use of force in the performance of his duty as a police officer to
prevent the escape of the two suspects from lawful custody.

(b) Arrests without a warrant

Every arrest by a police officer should be done with a warrant of arrest issued by
court or any other competent authority. A warrant is a written authorisation or
order authorising someone named therein to do an act. The warrant of arrest
must specify the person to be arrested. Thus a warrant of arrest may be issued
by court directing the law enforcement officer to arrest and bring the person to
court.

Section 10 of the CPC sets out the circumstances under which a police officer
may arrest without an arrest warrant. These are;
 any person whom he or she suspects upon reasonable grounds of having
committed a cognisable offence, an offence under any of the provisions of
Chapter XVI of the Penal Code Act or any offence for which under any
law provision is made for arrest without warrant. Section 1 (b) defines a
cognizable offence as any offence—
o which on conviction may be punished by a term of imprisonment
for one year or more; or
o which on conviction may be punished by a fine exceeding four
thousand shillings;
 any person who commits a breach of the peace in his or her presence;
 any person who obstructs a police officer while in the execution of his or
her duty, or who has escaped or attempts to escape from lawful custody;

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 any person whom he or she suspects upon reasonable grounds of being

a deserter from the Uganda Peoples’ Defence Forces;
 any person whom he or she finds in any highway, yard or other place
during the night and whom he or she suspects upon reasonable grounds
of having committed or being about to commit a felony;
 any person whom he or she suspects upon reasonable grounds of having
been concerned in any act committed at any place out of Uganda which, if
committed in Uganda, would have been punishable as an offence,
 any person having in his or her possession without lawful excuse, any
implement of housebreaking;
 any person for whom he or she has reasonable cause to believe a
warrant of arrest has been issued;
 any person in whose possession anything is found which may reasonably
be suspected to be stolen property or who may reasonably be suspected
of having committed an offence with reference to that thing.

1.1.2 Powers to Arrest

In effecting arrests, police officers are authorized to use reasonable force to enter
any premises or place where a person suspected of having committed an offence
may be hiding. In the same way, under section 4 of the CPC, a police officer is
empowered to break out of such place using reasonable force to liberate himself.
Such powers are only extended to police officers and other authorized persons
who may effect arrests. The following categories of persons, have a right to effect
an arrest.

(a) Police officers

These are authorized by law to carry out arrests. A police officer must always
give reasons for reasonable suspicion which prompted the arrest if he or she did

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not have an arrest warrant. If the reasons are valid, then the accused can be
called upon to account. Nkozebwa Vs R Criminal Appeal No. 125 of 1954

(b)Private Persons

Under section 15 (1) of the CPC, a private person may arrest any person who
in his or her view commits a cognisable offence, or whom he or she reasonably
suspects of having committed a felony. In addition, under section 15 (2), it is
provided that persons found committing any offence involving injury to property
may be arrested without a warrant by the owner of the property or his or her
servants or persons authorised by him or her. In Stephen Oporocha Vs Uganda
[1991] HCB 9, it was held that soldiers, prison officers, LDUs and private security
guards may arrest just as any other private persons except where such powers
are contained in statutes that establish the respective organizations.

In West Nile District Administration V Arasto Dritoo [1969] ULR 69, it was
held that a constable who exercises his power of arrest without warrant does so
on his own responsibility.

Fisher v Oldham Corporation, [1930] 2 K.B. 364, discusses this point further
thus:

“Now, the powers of a constable, quasi peace officer, whether conferred by

common or statute law, are exercised by him by virtue of his office, and cannot
be exercised on the responsibility of any person but himself. A constable,
therefore, when acting as a peace officer, is not exercising a delegated authority,
but an original authority, and the general law of agency has no application.”

Intelligence officers generally should not effect arrests except where the law
establishing their organizations provide for such arrests. When arrests are made

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by law enforcement officers other than police officers, they must surrender the
suspects to police within 48 hours for formal investigations to be carried out.
Private security guards should not arrest without a warrant. See
Remmy Kasule Vs Makerere University [1975] HCB 376
Uganda Vs Zakaria Koma [1975] HCB 117

(c) Chiefs
They are empowered to detect, apprehend and bring offenders to justice in the
areas of their jurisdiction under section 69 of the Local Government Act, Cap
243. The offenders arrested should be those who have committed cognizable
offences. Byansi & Another Vs Busoga District Administration [1975] HCB
286

(d) Magistrates

Magistrates have powers to arrest any person for contempt of court. A magistrate
may also order for the arrest of any person who breaches a bond for appearance
in court. The magistrates powers of arrest are statutory. Under section 20 of the
CPC, a magistrate may arrest any person who commits an offence in his
presence or within the local limits of his jurisdiction.

1.1.3 Searches

All searches should be generally conducted on the basis of a search warrant.

However, there are exceptions to the general rule. Police officers are empowered
to search every person who is arrested with or without a warrant and taken to
custody under section 6 of the CPC. The gist of such searches is the prevention
of possible commission of other crimes by persons who are in police custody.
Search warrants issued by court should specify the person, or place where the

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search is to be conducted. The purpose of the search is to seize anything named

in the warrant and treat it as evidence.

The Police Act, Cap 303 also provides for searches. Section 26 provides that a
police officer may search or detain a person in whose possession; or a vessel, a
boat, an aircraft or a vehicle in which, he or she has reasonable grounds to
suspect that property stolen or unlawfully obtained may be found and may seize
that property.

(a) Search by police officers

Section 27 of the Police Act provides for searches by police officers in detail.
Section 27(1) states that whenever a police officer, not being lower in rank than a
sergeant, has reasonable grounds for believing that anything necessary for the
purposes of an investigation into any offence which he or she is authorized to
investigate may be found in any place and that that thing cannot in his or her
opinion be obtained without undue delay, the officer may, after recording in
writing the grounds of his or her belief and specifying in the writing, so far as
possible, the thing for which search is to be made, search, or cause search to be
made, for that thing.

Under section 27(2) such a police officer should if practicable, conduct the
search in person. If he or she is unable to conduct the search in person, and
there is no other person competent to make the search present at the time, he or
she may, after recording in writing his or her reasons for so doing, require any
officer subordinate to him or her not below the rank of corporal to make the
search; and he or she shall deliver to that officer an order in writing specifying the
place to be searched and, so far as possible, the thing for which search is to be
made, and that officer may thereupon search for that thing in that place.

Other key points to note include:

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 Every search must be conducted with utmost decency having due regard
to human rights and avoiding unnecessary damage or destruction to
property. See section 27(9)
 All searches on women must be conducted by other authorized women,
section 23(2) of the Police Act
 No person shall be subjected to unlawful search of the person, home or
other property of that person (Article 27(1) (a) of the Constitution)
 The occupant of the place searched or some other adult person on his
behalf should be permitted to attend the search and where possible a local
leader should be present during the search
 An officer who has carried out a search must make a written certificate
which should be countersigned/thumb marked by the person who is the
subject of the search
 The names of the officers conducting the search must be recorded
 A list of items or property seized must be compiled at the scene of the
search
 Although force may be used only as the last resort, reasonable force may
be used if necessary to conduct a search or to detain a person or vehicle
for the purpose of the search.

(b) Search without a Warrant

Searches are generally a consequence of arrests. Therefore, the conditions

under which arrests are made without a warrant do generally apply to the
consequent searches arising from such arrests. Whenever someone is already
under arrest normally such a person will consent to a search otherwise
reasonable force may be used.

The same procedure of recording items or property which is seized by the

searching officer must be followed but in this case the officer, may instead of a

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proper form, use a police notebook. Reasonable suspicion does not require
certainty that an unlawful article is being carried, nor does the officer concerned
have to be satisfied of this beyond reasonable doubt. Reasonable suspicion in
contrast to mere suspicion must be founded on fact. There must be some
concrete basis for the officer’s suspicion related to the individual person
concerned, which can be considered and evaluated by an objective third person.

1.2 Charge and Caution Statements

A person whom there are grounds to suspect has committed an offence must be
cautioned before any questions about it are put to him or her for the purpose of
obtaining evidence which may be given to court in prosecution. He, therefore
need not be cautioned if questions are put to him for other purposes, for example
to establish his identity, his ownership of a car etc.

A person should be caution upon arrest for any offence unless it is impracticable
to do so or by reason of his condition or conduct at the time, or unless he has
been cautioned before. Statements should be taken in line with the Evidence
(Statements to Police Officers) Rules SI 6—1. Rule 3 provides that a police
officer in the course of investigations may question any person, whether
suspected or not, from whom he or she thinks he or she may obtain useful
information

Rule 4 provides for the caution before questioning. Where a police officer has
decided to charge a person with an offence, he or she shall administer a caution
before questioning or, as the case may be, continuing to question that person.

Under rule 5, no prisoner can be questioned and no statement can be taken from
a prisoner unless a caution has first been administered to him or her, but if a
statement is made by a prisoner before there is time to caution him or her a
caution shall be administered as soon as reasonably possible.

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Rule 7 provides the procedure for recording of statements. If a police officer

decides that the statement of any person should be taken down in writing and is
likely to be tendered in evidence in any proceedings, then—

 If there is present any police officer literate in the language being used by
that person, the police officer literate in that language should write down
the statement as nearly as possible in the actual words used by the
person making the statement; or
 if there is not present any police officer literate in the language being used
by that person, the statement should be translated by some person with a
knowledge of the language being used and should be written down by the
police officer—

(i) in the language into which it is translated; and

(ii) as nearly as possible, and insofar as translation admits, in
the words used by the person making the statement.

Rule 8, provides that any statement taken down in writing by a police officer
shall, if it is desired to use the statement in any proceedings, be read back to the
person making it, and he or she shall be invited to sign or thumb-mark the
statement after making any corrections he or she may wish to make.

Rule 9 states that before administering a caution to a prisoner a police office

shall—
 charge him or her with an offence; or
 inform him or her of the nature of—
(i) the charge which is likely to be preferred against him or her;
(ii) the act or acts in respect of which it is contemplated taking
proceedings against him or her; or
(iii) the matter which the police officer is investigating; and

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 ask him or her if he or she wishes to say anything about the matter.

Rule 10 provides for the form of caution. The caution to be administered should
be in the following words—

“You need not say anything unless you wish, but whatever you do say will
be taken down in writing and may be given in evidence”.

Under rule 11, where two or more prisoners are charged with the same offence
and statements are taken separately from those prisoners, a police officer may
read the statement of one prisoner to the other prisoner or prisoners but nothing
should be said or done to invite a reply.

If a prisoner desires to make a reply, a caution should be administered.

The statement should be read back to the prisoner who should be advised to
make corrections before signing or the thumb marking the statement.

In Alex Twinomugisha & Others Vs Uganda, Supreme Court Criminal

Appeal No. 35 of 2002 it was held that it is irregular for a police officer to record
a charge and caution statement without countersigning after the signature of the
suspect. It is also irregular for a second officer to take over from where the first
officer stopped without countersigning after he had read over the charge and
caution to the suspect. It is also irregular for two officers to record one statement
without satisfactory explanation. However, failure by the recording officer to
countersign after the charge and caution statement was read over to the suspect
was cured by the recording officer’s signature at the end of the suspect’s
statement.

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Section Two: Institution of Criminal Proceedings

2.1 The Magistrates Court

Section 42 of the MCA lays down the various modes and provides that the
proceedings may be instituted in one of the following ways;
(i) By a police officer bringing a person arrested with or without a warrant
before a magistrate upon a charge; or
(ii) By a public prosecutor or a police officer laying a charge against a
person before a magistrate and requesting the issue of a warrant or
summons compelling the person therein to come and answer the
charge;
(iii) By any person other than a public prosecutor or police officer who has
reasonable cause to believe that an offence has been committed.

2.1.1 Private Prosecutions

This is done by lodging a complaint with the Magistrate under section 42(3) MCA.
A complaint may be oral or in writing and signed by the complainant. Oral
complaints must be reduced into writing and thereon signed by the complainant.
If the magistrate is satisfied that prima facie the commission of an offence has
been disclosed and that such complaint is not frivolous or vexatious, the
Magistrate is required to draw up and sign a formal charge containing a
statement of the offences alleged to have been committed by the accused,
Uganda Vs Keizironi [1973] ULR 40

2.2 High Court

Section 1 of the TIA provides that no criminal proceedings shall be brought under
the cognizance of the High Court for trial unless the accused has been

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committed for trial to the High Court in accordance with the provisions of the
MCA.

Section 168 MCA provides that if a person is charged in a Magistrates Court with
an offence triable by the High Court the DPP should file in the Magistrates Court
a signed copy of the indictment and a summary of the case containing the
particulars as are necessary to give the accused reasonable information as to the
nature of the offence charged.

Where the DPP has complied with the above procedure, the magistrate should:

 Give the accused a copy of the indictment together with the summary of
the case;
 Read out the indictment and the summary and explain the nature of the
accusation in a language the accused understands;
 Inform him or her that he or she is not required to plead to the indictment
and the commit him to the High Court for trial.

2.2.1 Consent of the DPP

The Penal Code lays down several offences that require the written consent of
the DPP before the accused can be prosecuted in a court of law. See sections
51, 52, 85, 86 and 87. Criminal proceedings are therefore a nullity where the
required consent is not obtained before the institution thereof. Any resulting
conviction cannot therefore, be sustained against the accused.

However, if the prosecution is conducted by the IGG in exercise of his or her

powers under Article 230 (1) of the Constitution he or she does not require
consent from the DPP to prosecute.

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Section Three: Charges

A charge in criminal law is an accusation. A charge sheet on the other hand is a
document completed by a police officer listing the particular charges brought
against the accused. A charge is necessary in every proceeding and a trial
without it is bad in law.

Section 85 of the Magistrates’ Court Act, Cap 16 details the contents of a charge
sheet. It is sufficient if it contains a statement of the offence or offences with
which the accused is charged together with the particulars giving the accused
person reliable information as to the nature of the offence he is charged with. In
Amisi Magala And Anor V Uganda [1971] ULR 41, it was held that the true test
of whether a charge is frivolous or vexations under section 173 of the Criminal
Procedure Code would appear to be whether the charge was brought bona fide
or mala fide, or whether it was abusive of the process of the court.

The accused should be able to tell from the charge the precise nature of the
charges against him or her so as to be in position to put forward his defence and
to direct his evidence to meet them.

3.1 Form of Charge

The rules governing the framing of a charge are set out in section 88 of the MCA.
The main rules are precisely as follows;
(a) A count or charge must commence with the statement of the
offence charged technically termed as the statement of the
offence. Although it need not set out all the essential elements of
the offence, the statement of the offence must make reference to
the section creating the offence charged for example, Assault
occasioning actual bodily harm contrary to section 236 of the

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Penal Code Act. It is therefore, important to state the law

contravened and to ensure that the statement of the offence
describes the offence briefly in ordinary language, avoiding as far
as possible the use of technical terms and it not necessary to state
all the essential elements of the offence;
(b) Particulars of the offence should be set out clearly. The use of
technical terms should be avoided. Yozefu Ndawula And Anor V
Uganda, Court Of Appeal Criminal Appeal No. 135 OF 1968 it
was held that the charge was defective in that it did not allege an
essential ingredient of the offence.

(c) Where a charge contains more than one count, the counts should
be numbered consecutively.

The officer preferring the charge should sign it. Generally all charges drawn by
the police are sanctioned by the State attorney before they are filed with the
courts as a means of authenticating them. After they have been presented to
court, the magistrate should sign them before calling upon the accused to plead.

3.2 Joinder of Charges

Joinder has two aspects. The first is charging more than one offence in one
charge and the other is joining more than one accused in one or the same
charge.

3.2.1 Joinder of Offences/Counts

Section 86(1) of the MCA provides that any offences whether felonies or
misdemeanors may be charged together in the same charge, if the offences
charged are founded on the same facts, or form or are part of a series of
offences of the same or similar character.

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Therefore in order to join counts in one charge, the offences must either be
founded on the same facts or must have been part of a series of offences of the
same or similar character. In Yolamu Okecho & Anor v Uganda High Court
Criminal Appeal No. 119 OF 1976, any offences, whether felonies or
misdemeanours, may be charged together in the same charge if the offences
charged are founded on same facts.

Giraido M Kasujja V Uganda [1971] ULR 34 it was held that where two counts
are founded on the same facts and involve the same property such charges are
bad in law. The accused should not have been charged with receiving or
retaining stolen property yet it is alleged that he broke into a house and stole that
property. The second count of receiving or retaining stolen property ought to
have been in the alternative;

The question whether the charges are "founded on the same facts", such as to
justify joinder, should be tested by asking whether the charges have a common
factual origin; if the "subsidiary" charge could not be alleged but for the facts
which give rise to the "primary" charge, the charges are founded on the same
facts for the purpose of the rule and may legitimately be joined in the same
indictment. Other examples of the application of the principles relating to joinder
of offences founded on the same facts are:

(1) R. v. Conti, 58 Cr.App.R. 387, CA, charges of assault occasioning actual

bodily harm, possessing offensive weapon and possessing a prohibited drug
properly joined where allegation was that C had taken the drug for the purpose of
getting himself into suitable frame of mind to commit the assault;
(2) R. v. Williams[1993] Crim. L.R. 533, CA (charge of indecent assault on a
girl improperly joined with charge of false imprisonment of same girl on a later
date; although indecent assault committed on same occasion as false
imprisonment might be said to be founded on the same facts, different where the

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charges arise out of separate incidents and are not of similar character, despite
an evidential nexus); and
(3) R. v. Lockley and Sainsbury [1997] Crim.L.R. 455, CA (charge of
dangerous driving not properly joined with charge of conspiracy to commit
burglary, where driving charge arose out of the dangerous condition of the car
allegedly used in the course of the burglary; the defective nature of the vehicle
could have been alleged without any reference to the facts giving rise to the
charge of conspiracy to burgle and the charge of dangerous driving did not arise
out of the facts which established the conspiracy to burgle).

"series of offences of the same or a similar character"

The question whether particular charges "form or are part of a series of offences
of the same or a similar character", such as to justify joinder, has also been
considered in a number of authorities.

The fact that evidence in relation to one count is not admissible in relation to
another count under the "similar fact" principle does not necessarily mean that
those counts cannot properly be joined. see R. v. Kray, 53 Cr. App. R. 569, CA,
and Ludlow v. Metropolitan Police Commr [1971] A.C. 29, HL.

In Kray it was held: (a) that two offences may constitute a "series" within the
meaning of the rule, and (b) that although the relevant part of the rule does not
require the offences to arise out of the same facts or be part of a system of
conduct before joinder can be sanctioned, a sufficient nexus must nevertheless
exist between the relevant offences; such a nexus is clearly established if
evidence of one offence would be admissible on the trial of the other, but the rule
is not confined to such cases; all that is necessary to satisfy the rule is that the
offences should exhibit such similar features as to establish a prima facie case
that they can properly and conveniently be tried together in the interests of
justice, which include, in addition to the interests of the defendants, those of the

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Crown, witnesses and the public; a further relevant factor is the prejudice likely to
arise in the second trial from extensive press reports of the first trial if the
offences are tried separately. It was further held that it is not desirable that the
rule should be given an unduly restricted meaning, since any risk of injustice can
be avoided by the exercise of the judge's discretion to sever the charges.

In Ludlow v. Metropolitan Police Commr, the House of Lords, held that in

respect of the limb of the rule then under consideration, there must be a series of
offences of a similar character; for this purpose there must be some nexus
between the offences; nexus is a feature of similarity which in all the
circumstances of the case enables the offences to be described as a series.
Applying these principles to the facts of the case before them (charge of
attempted larceny from a public house and a charge of robbery at a different
public house 16 days later), it was held that the joinder had been proper; the
offences charged were similar in both law and fact; they had the same essential
ingredient of actual or attempted theft; they involved neighbouring public houses,
and the time interval was only 16 days.

Examples of the application of the principles expounded in Kray and Ludlow

are:

(1) R. v. Clayton-Wright, 33 Cr. App.R. 22, CCA (counts charging arson of a

vessel, arson of the vessel with intent to prejudice its insurers, attempting to
obtain money from the insurers by false pretences in respect of the insurance on
the vessel, and obtaining money by false pretences from other insurers by
pretending that a mink coat had been stolen from appellant's car, had been
properly joined; the nexus of fraudulent acts to the prejudice of insurers was
sufficient);

(2) R. v. Harward 73 Cr.App.R. 168, CA (count charging conspiracy to defraud

banks by unlawful use of cheque cards improperly joined with count of dishonest

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handling relating to recording equipment; the common element of "dishonesty"

was not a sufficient nexus); and

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(3) R. v. Marsh, 83 Cr.App.R. 165, CA (not necessary to establish both

legal and factual similarity in order to justify joinder, but in respect of, on the
one hand, charges of reckless driving and causing criminal damage thereby,
and, on the other, a charge of assault arising out of a separate incident,
common element of violence not a legal similarity and of insufficient factual
similarity to establish appropriate nexus; violence to property distinguished
from violence to the person in this regard).

The question whether two sets of alleged offences can be described as a

"series", , should not be approached by reference to the dictionary definition
of that word; if an appropriate nexus exists to bring the charges within the
rules even offences separated by a period of nine years could be said to
form a series; a coincidence in point of time, like a coincidence in point of
location, may be an important factor in determining whether or not particular
offences can be regarded as being or forming part of a series, but every
case must depend on its own facts; where the evidence on one such group
of charges is properly admissible on the trial of others, a sufficient nexus
exists despite any lapse of time between the relevant incidents: R. v.
Baird,97 Cr.App.R. 308, CA.

3.2.2 Joinder of Persons

Under section 87 of the MCA, persons accused of the same offence

committed in the course of the same transaction may be joined in one
charge and tried together. An example is where two or more persons jointly
rob a bank. In such a case, they can be tried together in one charge.

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Uganda Vs Akai s/o Eloloyi & Ors High Court Criminal Revision No. 67 of
1978
It was held that criminal liability is basically, individual and not collective or joint
and several, except in certain cases where common intention is proved against
the accused. A joinder of offenders is a practice of convenience for the trial of
accused persons who participated in the commission of one legislation offence. It
is not intended that all the jointly accused must be convicted or acquitted; It is still
the duty of the prosecution to prove their case against each of the accused to the
required standard;

3.3 Misjoinder

In R. v. Newland [1988] Q.B. 402, it was held that misjoinder of offences cannot
be cured by a direction for separate trials of the misjoined counts; the power to
give such a direction applies only to a valid indictment and an indictment
containing misjoined charges is not a valid indictment.

However, a misjoined indictment, although invalid, is not a nullity because it can

be cured by amendment, so as to remove one or more of the counts. In order to
proceed on the counts so removed it would be necessary for the prosecution
either to commence fresh proceedings in respect of the offences charged in any
such count. It was, accordingly, further held in Newland that if a court proceeds
to try a misjoined indictment, or purports to cure the misjoinder by directing
separate trials, the proceedings will be a nullity and any resulting convictions,
including those resulting from guilty pleas will be quashed.

In R. v. O'Reilly, 90 Cr .App.R. 40, CA, where the defect in the indictment was
cured after guilty pleas had been entered, but the defendant had not been

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rearraigned; his pleas had been entered to an invalid indictment and the
convictions were all quashed.

3.4 Alternative Charges

It is trite law that where a charge contains more than one count, they must be
numbered consecutively. But in certain cases, it is proper to lay alternative
charges where prosecution is not sure which offences in law the evidence will
prove. This means that if prosecution is not sure whether the conduct of the
accused amounts to theft of property or obtaining property by false pretences,
since these two offences are cognate ie of the same species, once can be
charged as an alternative to the other. It must noted however, when charging in
the alternative, the more serious offences should be the main charge and the
less serious offence be in the alternative.

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Section Four: Pleas

A plea is an answer to a charge. It may be an admission or a denial of the
charge. There are different types of pleas which include; plea of guilty, plea of not
guilty, plea of autrefois acquit or convict and plea of pardon.

4.1 Plea of Guilty

A person charged with an offence is presumed innocent until proven guilty or he

has pleaded guilty. An accused person therefore, has a right to voluntarily admit
the charge and he should not be forced or induced to do so. The procedure for
recording a plea of guilty is set out in Section 124 (1) and (2) of the MCA.

It was also discussed in the case of Adan Vs R (1973) EA 455

 The Court must have jurisdiction to entertain the plea;
 The accused is asked which language he or she understands and where
necessary the interpreter is secured;
 The charge is read and explained to the accused in the language he or
she understands;
 The accused is required to answer to the charge and answers in the
affirmative;
 The court records the answer of the accused in as much as possible in the
words which the accused has used because a plea of guilty must be
unequivocal;
 Magistrate then calls on the prosecution to read out the facts constituting
the commission of the offence which should bring out the ingredients of
the offence;
 The court puts those facts to the accused;
 Court convicts the accused on his own plea of guilt;
 The prosecution then gives the antecedents or past criminal record of the
accused if it is known and request for an appropriate sentence; and

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 Allocutus follows where the accused says something in mitigation of the

sentence.

In Charles Ungao Vs Uganda [1970] ULR 17, it was held that where an
accused admits the truth of a charge, his admission should be recorded as nearly
as possible in the words used by him, according to section 207 (2) of the Criminal
Procedure Code.

Uganda V Amisi Kisakye, High Court Criminal Revision No. 103 of 1977 that
failure by a trial court to follow the correct procedure for taking a plea of guilty
before reaching a conviction does not render a trial a nullity. A conviction can be
allowed to stand where no miscarriage of justice is occasioned, particularly
where the accused must have been very well aware of the facts and showed this
knowledge by the nature of his plea.

In R v McNally, [1954] 2 All E.R. 372 where a plea is so explicit and there can
be no question of mistake or misunderstanding, the accused should not be
permitted to withdraw his or her plea, and sentence should be passed.

4.2 Plea of not guilty

The accused is entitled to deny the truth of the charge and allow the prosecution
to prove their case against him.

The procedure for taking a plea of not guilty is set out in section 126 of the MCA.
 When a charge is read to the accused and he refuses to admit, a plea of
not guilty is entered under section 124(3)
 If the accused does not admit the charge then court proceeds to hear the
evidence for the prosecution, if it is ready to proceed.

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4.2.1 Change of Plea

An accused person is free to change his plea at any time during the proceedings
provided that he does so before the sentence is passed upon him. Therefore, a
person convicted on his own plea of guilty may change his plea to not guilty
provided he has not been sentenced. When the accused indicates that he or she
wants to change a plea, to a plea of guilty the charge must be read to him again
and the procedure of recording a plea of guilty should be followed.

In Uganda V Yonasani Kirya, High Court Criminal Revision No. 317 of 1968,
it was held that where an accused has plead guilty, the question of whether the
accused should be allowed to withdraw such a plea before he or she is
sentenced, is entirely a matter of discretion for the trial judge, however, once
judgment has been pronounced, a plea cannot be withdrawn.

David Kamundi Gathi Vs Republic (1973) EA 540, there are no provisions

providing for a plea to be changed, but there are equally no provisions to prevent
a plea being changed before the court becomes functus officio.

4.3 Autrefois Acquit

An accused person may plead that he should not be tried again because he has
already been convicted or acquitted of the same charge. This plea is provided for
under section 89 of the MCA and section 28 of the TIA. The basic principle is that
a person once tried by a court of court of competent jurisdiction for an offence
and convicted or acquitted of such offence should not, while such conviction or
acquittal has not been reversed or set aside, be liable to be tried again on the
same facts for the same offence.

Tororo Town Council V P M Luande[1971] ULR 31, the doctrine of autrefois

acquit will apply where the defendant has been put in peril for the same offence
both in fact and law as that with which he has previously been charged. In the

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case before the court, the offences which the respondent was alleged to have
committed in 1970, were not the same offences as those committed in 1969 even
though both sets of offences were in respect of the same premises. A continuous
or continuing offence creates a new offence daily. The learned magistrate was
wrong in applying the previous acquittal in respect of the offences committed in
1969 to those committed in 1970.

The exception to this rule is set out in section 90 of the MCA and section 29 of
the TIA which provides that a person convicted or acquitted of any offence may
afterwards be tried be tried for any other offence with which he or she might have
been charged on the former trial.

Section 91 of the MCA and 32 TIA lay down two ways by which autrefois acquit
or convict may be proved;

(i) By an extract, certified under the hand of the officer having the custody
of the records of the court in which the conviction or acquittal was had,
to be a copy of the sentence or order; or

(ii) in case of a conviction, either by a certificate signed by the officer in

charge of the prison in which the punishment or any part of it was
inflicted, or by production of the warrant of commitment under which
the punishment was suffered.

4.4 Plea of Pardon

A person cannot be tried for an offence if he shows that he has been pardoned
for that offence. This is provided for under section 124 (5) (a) of the MCA. Once
the plea is raised, it is for the court to try the issue in order to ascertain the truth.
If the court is satisfied that the plea is true in fact, the accused will not be
requested to plead o the charge and the charge will be dismissed.

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Section Five: Bail

Bail is an agreement or recognizance between the accused and his sureties if
any on one hand and the court on the other that the accused will pay a certain
sum of money fixed by the court should he fail to appear to attend his trial on a
certain date. It is a constitutional right under
Under Article 23 (6) (a) and (b) of the Constitution, a person is entitled to apply
for bail. However the court retains the discretion to grant it.

5.1 Who may grant Bail?

Bail is normally granted by the court. The High Court has powers to grant bail in
any case and normally deals with applications where the Magistrates courts have
no jurisdiction.

Under section 75 (2) of the MCA, a magistrates court has power to release an
accused on bail in any case except where the accused is charged with the
following offences;
(i) An offence triable only by the High Court
(ii) An offence under the Penal Code relating to acts of terrorism or cattle
rustling; and
(iii) An offence under the Firearms Act punishable by a sentence of
imprisonment of not less than ten years;
(iv) abuse of office contrary to section 87 of the Penal Code Act;
(v) rape, contrary to section 123 of the Penal Code Act and defilement
contrary to sections 129 and 130 of the Penal Code Act;
(vi) Embezzlement, contrary to section 268 of the Penal Code Act;
(vii) Causing financial loss, contrary to section 269 of the Penal Code Act;
(viii) corruption, contrary to section 2 of the Prevention of Corruption Act;
(ix) Bribery of a member of a public body, contrary to section 5 of the
Prevention of Corruption Act; and

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(x) any other offence in respect of which a court has no jurisdiction to

grant bail.

5.2 When may Bail be granted?

Bail may be granted by the court at any stage of proceedings by the court having
jurisdiction. Under section 75(1) of the MCA, a magistrates court may grant bail
to an accused.

Section 77 of the MCA provides for the considerations courts should take into
account when granting bail. Under section 77 (1), where any person appears
before a magistrate’s court charged with an offence for which bail may be
granted, the court should inform the person of his or her right to apply for bail.
When an application for bail is made, the court should consider the following
matters;
(a) the nature of the accusation;
(b) the gravity of the offence charged and the severity of the punishment
which conviction might entail;
(c) the antecedents of the applicant so far as they are known;
(d) whether the applicant has a fixed abode within the area of the court’s
jurisdiction; and
(e) whether the applicant is likely to interfere with any of the witnesses for the
prosecution or any of the evidence to be tendered in support of the
charge.

Under section 77(3) if bail is not granted, the court should record the reasons
why bail was not granted and inform the applicant of his or her right to apply for
bail to the High Court or to a chief magistrate, as the circumstances may require.

Uganda (DPP) Vs Kiiza Besigye, Constitutional Reference No. 20 of 2005

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The case also went ahead to discuss instances when a person may be granted
bail. The Constitutional Court held that; the court must weigh the gravity of the
offence and all the other factors of the case against the likelihood of the applicant
absconding. Where facts come to light and it appears that there is substantial
likelihood of the applicant offending while on bail, it would be inadvisable to grant
bail to such a person.

These were also discussed in Ruparelia Vs Uganda [1992-93] HCB 52 where it

was held that before court can grant bail, it has to consider whether it is probable
that if the accused is released on bail he will appear to stand trial and in
considering this matter, the court may have regard to the nature of the offence
charged, the nature of the evidence and the possible punishment, whether the
applicant has a fixed place of abode, the antecedents of the applicant and
whether he is likely to interfere with witnesses.

5.3 Bail pending revision by High Court

A chief magistrate may release a person on bail under the following

circumstances;

(a) Where the offender has been committed for sentence by a Magistrate
Grade 1 o r II, to his court, and he considers that the conviction is
improper or illegal and forwards the record for revision;
(b) Where he forwards the record to the High Court in the exercise of his
supervisory powers, and if he is of the opinion that it is in the interests of
justice to do so;

Bail in Capital and other Serious Offences

The High court has powers under section 14 of the TIA to grant bail to the
accused person charged with any offences including capital offences. However,

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Section Six: Theoretical Issues to Note

6.1 Mens rea

The prosecution must prove that the defendant committed the actus reus while in
a certain state of mind. The mens rea (guilty state of mind) required before a
person can be convicted of a crime is specified in the definition of every crime.
There are three states of mind which separately or together can constitute the
necessary mens rea for a criminal offence. These are intention, recklessness and
negligence.

6.1.1 Intention

In law there are two types of intention. Direct intent (also known as purpose
intent) is the typical situation where the consequences of a person's actions are
desired. Oblique intent (also known as foresight intent) covers the situation
where the consequence is foreseen by the defendant as virtually certain,
although it is not desired for its own sake, and the defendant goes ahead with his
actions anyway. See R v Moloney [1985] 1 All ER 1025.

Example

An aeroplane owner decides to make a fraudulent insurance claim on one of his

planes. (a) He plants a bomb on it knowing that when it explodes, some
passengers will certainly die but he does not mind and wants this to happen as it
will make his claim more realistic. This is direct intention - the consequences of
his actions (the deaths of the passengers) are desired. (b) Alternatively, he
knows that some passengers will certainly die, although he can honestly say that
he does not want them to die, and would be delighted if they all survived! This is
oblique intention - the consequences (the deaths of the passengers) were not
what he planned, but he nevertheless knew that they would inevitably follow from
his actions in blowing up the plane.

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The courts have stated that foresight of consequences can only be evidence of
intention if the accused knew that those consequences would definitely happen.
Thus it is not sufficient that the defendant merely foresaw a possibility of a
particular occurrence. Hyam v DPP [1975] AC 55

It is important to note that foresight of consequences is not the same as intention

but only evidence of intention: R v Scalley [1995] Crim LR 504.

6.1.2 Recklessness

Recklessness is the taking of an unjustified risk. However, two different tests

have been developed by the courts, the result of which is that recklessness now
has two different legal meanings which apply to different offences.

The first is subjective recklessness ie the defendant knows the risk, is willing to
take it and takes it deliberately. The question that must be asked is "was the risk
in the defendant's mind at the time the crime was committed?" This test was
established in: R v Cunningham [1957] 2 QB 396.

The second is objective recklessness. The risk must be obvious to the

reasonable man, in that any reasonable man would have realised it if he had
thought about it. A person is reckless in the new wider sense when he performs
an act which creates an obvious risk, and, when performing the act, he has either
given no thought to the possibility of such a risk arising or he recognised that
some risk existed, but went on to take it. This test was established in: MPC v
Caldwell [1982] AC 341.

6.1.3 Negligence

Negligence consists of falling below the standard of the ordinary reasonable

person. The test is objective, based on the hypothetical person, and involves the
defendant either doing something the reasonable person would not do, or not
doing something which the reasonable person would do. It does not matter that

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the defendant was unaware that something dangerous might happen, if the
"reasonable person" would have realised the risk, and taken steps to avoid it. For
an example see: McCrone v Riding [1938] 1 All ER 157.

6.1.4 Transferred Malice

Under the doctrine of transferred malice a defendant will be liable for an offence
if he has the necessary mens rea and commits the actus reus even if the victim
differs from the one intended. The basis for this principle is the decision of the
court in: R v Latimer (1886) 17 QBD 359.

6.2 Coincidence of Actus Reus and Mens Rea

It is a general principle in criminal law that for a person's liability to be established

it must be shown that the defendant possessed the necessary mens rea at the
time the actus reus was committed - in other words the two must coincide. This
is also known as the contemporaneity rule.

Where the actus reus involves a continuing act a later mens rea during its
continuance can coincide. See: Kaitamaki v R [1985] AC 147.

The second way the courts have dealt with the problem is to consider a chain of
events (ie, a continuing series of acts) to be a continuing actus reus for the
purposes of the criminal law. If the actus reus and the mens rea are both present
at some time during this chain of events, then there is liability. See:Thabo Meli v
R [1954] 1 WLR 228

6.3 Strict Liability

Offences of strict liability are those crimes which do not require mens rea with
regard to at least one or more elements of the actus reus. The defendant need

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not have intended or known about that circumstance or consequence. Liability is

said to be strict with regard to that element. R v Prince [1874-80] All ER Rep 881

The vast majority of strict liability crimes are statutory offences. However,
statutes do not state explicitly that a particular offence is one of strict liability.
Where a statute uses terms such as "knowingly" or "recklessly" then the offence
being created is one that requires mens rea. Alternatively, it may make it clear
that an offence of strict liability is being created. In many cases it will be a matter
for the courts to interpret the statute and decide whether mens rea is required or
not.

In Gammon (Hong Kong) Ltd v Attorney-General for Hong Kong [1984] 2 All ER
503, the Privy Council considered the scope and role of strict liability offences
and held that:

(i) there is a presumption of law that mens rea is required before a person
can be held guilty of a criminal offence;
(ii) the presumption is particularly strong where the offence is "truly
criminal" in character;
(iii) the presumption applies to statutory offences, and can be displaced
only if this is clearly or by necessary implication the effect of the
statute;
(iv) the only situation in which the presumption can be displaced is where
the statute is concerned with an issue of social concern, and public
safety is such an issue;

6.4 The Hearsay Rule

Hearsay evidence (whether oral or written), is inadmissible in criminal

proceedings. The mere fact that the statement was made on oath does not
render the statement admissible as evidence of the truth of its contents: Haines

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v. Guthrie(1884) 13 Q.B.D. 818. it has been applied in the following English

cases;

In R. v. McLean,52 Cr.App.R. 80, CA, G, some three minutes after making a

mental note of a car registration number, dictated it to C, who wrote it down. G
did not check the accuracy of C's note, and could not remember the number
when giving evidence at M's trial. Held, C could not give evidence of what G told
him in relation to the number of the car.

Jones v. Metcalfe[1967] 1 W.L.R. 1286, Where the witness to an incident of

dangerous driving described the car (common make and colour) and the driver
(Asian male) and said that he had given the registration number of the vehicle to
a police officer, but that he was unable to remember it at the time of giving
evidence, had made no note of it and had not checked the officer's note, the rule
against hearsay could not be circumvented by the officer giving evidence to the
effect that he had made inquiries in relation to a certain registration number, that
the defendant) was the owner of the vehicle with that number and it was a
vehicle of the make and colour described by the witness

6.5 Privilege against self-incrimination

Under Article 28(3) every person who is charged with a criminal offence shall be
presumed innocent until proven guilty or until that person has pleaded guilty. A
witness is entitled to claim the privilege against self-incrimination in respect of
any piece of information or evidence on the basis of which the prosecution might
wish to establish guilt or decide to prosecute. See Jim Muhwezi Vs AG & IGG,
Constitutional Court Miscellaneous Application No. 18 of 2007 it was held
that a person cannot be forced to incriminate himself as it would be
unconstitutional. The right to a fair hearing is sacrosanct.

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6.6 Identification of witnesses

Most of the key principles which are followed in Uganda are in line with the
principles laid down in the English case of Turnbull. These principles are laid
down below;

R v. Turnbull [1977] Q.B. 224

 "First, whenever the case against an accused depends wholly or

substantially on the correctness of one or more identifications of the
accused which the defence alleges to be mistaken, the judge should warn
himself of the special need for caution before convicting the accused in
reliance on the correctness of the identification or identifications. In
addition there is need for such a warning and should make some
reference to the possibility that a mistaken witness can be a convincing
one and that a number of such witnesses can all be mistaken.
 Secondly, the judge should direct the jury to examine closely the
circumstances in which the identification by each witness came to be
made.
o How long did the witness have the accused under observation?
o At what distance?
o In what light?
o Was the observation impeded in any way, as for example, by
passing traffic or a press of people?
o Had the witness ever seen the accused before?
o How often?
o If only occasionally, had he any special reason for remembering the
accused?
o How long elapsed between the original observation and the
subsequent identification to the police?

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o Was there any material discrepancy between the description of the

accused given to the police by the witness when first seen by them
and his actual appearance?

 Recognition may be more reliable than identification of a stranger; but

even when the witness is purporting to recognise someone whom he
knows, the jury should be reminded that mistakes in recognition of close
relatives and friends are sometimes made.

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