Criminal Law Summary PDF

INTRODUCTION- Lecture 2 1. Defining a crime  Crimen – Latin word meaning accusation  A crime can be defined as an act or an omission prohibited and punished by law 1.1 Nature and characteristics of a crime 1.1.1 Public vs a private wrong  A crime must have a harmful...

INTRODUCTION- Lecture 2 1. Defining a crime  Crimen – Latin word meaning accusation  A crime can be defined as an act or an omission prohibited and punished by law 1.1 Nature and characteristics of a crime 1.1.1 Public vs a private wrong  A crime must have a harmful effect on the public  It is not safe to leave crimes repressible only by compensation of the person injured  A crime may remain a crime long after it has ceased to be a threat to the security of the public  The state is the custodian of public security and order  The public nature of a wrong lies in distinguishing civil and criminal procedures 1.1.2 Distinguishing criminal law from civil law1 Civil law - Primarily concerned with providing redress for legal wrongs on an interpersonal level - A civil action is brought by a the party who sustains the loss (the “claimant”) - The remedy is usually damages for any loss suffered. Criminal law - Concerned with duties owed by individuals to society as a whole - Prosecuted by, or in the name of the State - If found guilty, a defendant will receive a criminal sanction (penalty). Summary: 1. Complainant: In criminal law, any member of the public can be a complainant; in civil law only the victim of the civil wrong can complain 2. Control of proceedings: in criminal law, the state – through the Director of Public Prosecutions undertakes a public control of criminal proceedings; in civil law, this is done personally by the plaintiff 3. Nature of remedy: in criminal law – punitive; in civil law – compensatory 4. The standard and burden of proof Why is this distinction relevant? 1 NB the same action might attract both civil and criminal liability e.g. assault and trespass to the person. 1 22 0  2. The purpose(s) and conditions of criminal liability What concepts help us to define what should be criminalized? A: Jeremy Bentham and Utilitarian thought “Nature has placed man under the governance of two sovereign masters, pain and pleasure. It is for them alone to point to what we ought to do…the principle of utility…approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish happiness”. Bentham, (1789) Principles of Morals and Legislation, 11  Laws should seek to maximise pleasure and minimise pain; the only basis for criminalising conduct is to “achieve the greatest good for the greatest number”. Criminalisation does this by deterring the dangerous, preventing harm to victims, and cutting costs of offending.  Linked to objective model of liability, which imposes fault on D if he inflicts harm when a reasonable person would not have acted that way. It is outcomes and the standards of society which matter.  Justifies mala prohibita offences – regulatory offences for the benefit of all. B: Immanuel Kant and the pursuit of Dignity "Always act according to that maxim whose universality as a law you can at the same time will" / “Act with reference to every rational being (whether yourself or another) so that it is an end in itself”. Kant (1785), Foundations of the Metaphysics of Morals, 437  Laws should respect the inherent dignity of rational beings and treat them as ends not means to an end. Criminalisation does this by protecting fundamental rights.  Linked to subjective model of liability, which imposes fault on D if he D chooses to fundamentally infringe the autonomy or rights of another. It is choices and the values of the offender which matter.  Only justifies mala in se offences – those involving fundamental wrongdoing. What do they say about each of these ideas? A: Morality  Could an individual/society be seriously wronged by immoral conduct?  What about public condemnation of an act that is not a crime under the law? For example, prostitution, homosexuality should these acts be punishable under the law because of their immoral nature? 2 22 0   Question: whose morals apply? “The chief concern of the criminal law is to prohibit behaviour that represents a serious wrong against an individual or against some fundamental social value or institution” (Ashworth (2013) p1). Wolfenden Report on Homosexual Offences and Prostitution (1957) Cmnd 247: "The function of the law is to preserve public order and decency, to protect the citizen from that which is offensive or injurious and to provide sufficient safeguards against exploitation and the corruption of others, particularly those who are especially vulnerable" (para. 13). It is not …the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than it is necessary to carryout the purpose we have outlined  Lord Devlin in his book, The enforcement of morals (1965) 1 argues that there is a public morality which is an essential part of the bond whi ch keeps society together. The public can use criminal law to preserve public morality Lord Devlin The Enforcement of Morals 1965: "There are acts so gross and outrageous that they must be prevented at any cost...the suppression of vice is as much the law's business as the suppression of subversive activities."  In Shaw v DPP (1962) AC 220, (1961) 2 All ER 446 according to Lord Simonds ‘there remains in the court of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state.’ B: Harm Feinberg (1984) Harm to Others (Oxford UP) identifies harm as ‘set-back interests that are the consequence of wrongful acts of others’. Law can only be justified if it prevents harm to others. Furthermore, we should operate a ‘minimal harm’ principle – don’t criminalise anything unless it causes more than minimal harm and the law will be effective and useful in tackling the harm. C: Autonomy/Fault Criminal liability entails responsibility for one’s actions or conduct. “individuals should be respected and treated as agents capable of choosing their acts and omissions, and that without recognizing individuals as capable of independent agency they could hardly be regarded as moral persons” (Ashworth p26). Which categories of person should not be held responsible for their actions? What is the meaning of the term ‘autonomy’ and how important is it to criminal law? 3 22 0  D: the Correspondence principle This term applies to the idea that the different elements of a crime must correspond with one another. This is the idea that you should be responsible for what you do and what you choose/aim to do; should not be held liable for a more serious criminal outcome than the one envisaged. Moral luck – random circumstances shouldn’t make you more or less liable than you would have been. E: The principle of legality Christian and others v. The Queen UKPC 47; All ER (D) 358 (Oct).  Privy Council judgment: http://www.bailii.org/uk/cases/UKPC/2006/47.rtf The principle of legality states that officials should act in accordance with law, and that no one should be punished for an act that does not have a clear legal basis.  Article 50 (2) n ii, Constitution of Kenya: Rights of an accused person ‘not to be convicted for an act or omission that at the time it was committed or omitted was not— (i) an offence in Kenya; or (ii) a crime under international law’ F: Fair Labelling A key principle – that the label applied to an offender (what he is charged with) should relate directly to what he has done. Why? Because the symbolic power of the criminal law requires that it speak clearly about what D has done and why it is wrong. Chalmers and Leverick (2008): it describes wrongdoing as well as differentiating it. 3. Rationale for studying criminal law  Preventing crime  Representatives of accused persons  Judges /magistrates  ODPP  Making the criminal justice system better. 4 22 0  LECTURE 3 2. SOURCES OF CRIMINAL LAW IN KENYA The judicature Act section 8. The constitution article 2(6)  The constitution of Kenya.  Statutes and subsidiary legislation  Substance of the common law.  International law 2.1 The Constitution The Constitution as the supreme law of the land governs all law generally. It makes provision for the prosecution system, the court system and the appeal system for criminal cases, the rights and duties of both accused persons and victims. Among the provisions that inform criminal law are;  Chapter IV the Bill of Rights (see the Bill of Rights generally with particular attention to Articles 25 26, 29, 33(2), and with more keen attention to Articles 49, 50, and 51)  Article 156(6-11) the powers of the Director of Public Prosecution 2.2 Statutes and subsidiary legislation  The Penal Code, the Sexual offences Act and the Criminal Procedure code are the main statutes that regulate criminal law. Other statutes include the Traffic Act, Income tax, Banking Act whose major purpose is to regulate an aspect of governance but which impose criminal sanctions on those who breach the Act.  Subsidiary legislations; A statute may give power to a minister or local authority to make regulations and prescribe for their breach. Such laws are known as subsidiary legislation and some create criminal offences. 2.3 Common law  Continuous use of common law in the United Kingdom. In the United Kingdom, serious offences like murder, manslaughter and conspiracy to defraud are still derived from judicial pronouncements. General agreement among the court not to create new offences or abolish those in existence. The House of Lords in Knuller Ltd v Director of Pubic Prosecutions AC 435 unanimously rejected the existence of a residual power vested in the courts to create new offences or so widen existing offences as to make punishable conduct of a type not hitherto subject to punishment. Jones (2006) UKHL 16; Goldstein and Rimmington (2005) UKHL 63.  Distinguish the situation in the United States: 5 22 0  In the US case Locke v State, Locke presented himself to a lady late at night in the pretext of wanting to use her phone. Once in the house, he pulled out a butcher's knife and subjected her to 2 episodes of cunnilingus (oral sex). He was charged with an offence against the order of nature. In the state of Tennessee where the defendant was being charged, the offence against nature was sodomy. This offence was not the same. The lower courts ruled that it was an offence, although the Penal code of Tennessee did not have cunnilingus as a crime against nature, it was extended by analogy. On appeal, by Locke-against the ruling, the federal court of appeal observed that cunnilingus could not be deemed as an offence under the act of sodomy because the laws had not defined it so. They therefore allowed the appeal. Rose (victim) further appealed to the Supreme Court and by a majority decision it was held that the state appeal be allowed and cunnilingus declared an offence against nature. The courts extended offences against nature to include fellatio.  Article 50 (2) n ii, Constitution of Kenya: Rights of an accused person ‘not to be convicted for an act or omission that at the time it was committed or omitted was not— (i) an offence in Kenya; or (ii) a crime under international law’  Refer to the Contempt of Court Act (No. 46 of 2016):  Kenya Human Rights Commission v. the AG, Constitutional Petition No. 87 of 2017. The High Court, on 9 Nov. 2018, declared the Contempt of court Act unconstitutional for lack of public participation.  Refer to the previous section 5 of the Judicature Act (Cap 8 Laws of Kenya): Offence of disobedience of unlawful orders (now repealed by section 38 of the Contempt of Court Act)  Interpretational tool 2.4 International law  Presidential immunity in criminal law:  Traditional position vs. current constitutional position Article 143 (1) ‘Criminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office.’ Article 143 (4) ‘The immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity.’ See Kenya Section of the International Commission of Jurists v Attorney General & Another, e KLR 2011  Article 50 (2) n ii, Constitution of Kenya 6 22 0  Rights of an accused person ‘not to be convicted for an act or omission that at the time it was committed or omitted was not— (i) an offence in Kenya; or (ii) a crime under international law’ 7 22 0  Lecture 4 3. CRIMINAL RESPONSIBILITY 3.1 Classification of crimes  Common law practice of distinguishing crimes i. Felonies – serious crimes ii. Misdemeanours – less serious crimes  The practice abolished by statute in England but still in use in Kenya  See section 4 of the Penal Code for the definition of felony  In England, crimes are classified differently: i. Statutory or common law offences ii. Arrestable and non arrestable offences iii. Indictable or non indictable – forum of trial (whether the crown courts by jury after an indictment by an examining magistrate or before the magistrate without a jury) 3.2 Elements of a crime For an accused person to be held criminally liable in criminal law, the prosecution must proof: a) The responsibility is attributed to the accused for a certain act or omission forbidden by criminal law (actus reus) b) The accused had a defined state of mind in relation to the forbidden act or ommission (mens rea)  actus non facit reum nisi mens cit rea – a person is not criminally liable for his conduct unless the prescribed state of mind coincides with the prohibited act  Ordinarily, when proving a crime, the prosecution need not break down the crime into constituent parts to proof each element in turn, sensible the task is of proving the crime as a whole.  Sometimes, not easy to separate the two. An actus reus may implicate mens rea. For example, possession of drugs, permits, making false staments etc  The prosecutor must establish that the two elements occurred at the same time a) Actus Reus  These are all the elements in the definition of a crime except the mental element. While actus reus in some is equivalent to acts or omission, in others e.g perjury it comprises the conduct and the circumstances  No thought crimes e.g imagine battery vs. actual commission of battery  Section 40 of the PC for the definition of treason i) Commission  The physical act or human conduct of the offence  Often created by statute or common law (the class to give examples) 8 22 0   It would also take the nature of permitting the commission of a prohibited act Ali s/o Mzee vs. R (1960) EA 404 (Murphy J) a driver and conductor convicted for permitting persons to ride on the roof of a bus. ii) Omission  Statutes often make it an offence to omit to do something. For example, tax, licences etc. Failure to remit these amounts to an offence.  Can murder be committed by omission? Relate this to the ongoing case in Penina Karibe case. When will omission lead to a crime? 1. There can be no such a crime by omission even when done intentionally. (the swimming pool example) unless one is under a legal duty to act  These offences occurs when the legislature places a specific duty upon a person to act in a particular fashion and penalizes those who do not  See the Traffic Act, Income Tax Act, etc 2. By virtue of a public office which imposes a duty  Discuss ongoing abuse of office cases (KPA,… 3. Where the defendant has taken upon him/herself a duty to act a) Under a contract b) By virtue of special relationship between D and V whereby D has care of V by reason of his status  Gibbons v Proctor (1918) 13 Cr App R 134, CCA: man and woman convicted of murder of the man’s child by withholding food: intent – to cause the child grievous harm as a result of which she died c) Where D has voluntary undertaken the care of a helpless person d) Where the defendant has created a dangerous situation-supervening fault  (Class discussion) What about where D digs a pit for A to fall in? What if D had no such intention but leaves the pit uncovered then A falls in resulting to grievous bodily harm?  (Another illustration) There is a small fire started by Ron burning in a brazier. The fire is quite safe and contained. Dick deliberately places a half- full bucket of petrol beside the fire. The petrol catches fire and a large conflagration occurs that damages Bill’s garden fence. Ron sees the fire but does not attempt to put it out. Discuss whether Ron and/or Dick performed the actus reus of criminal damage. N/B: Sometimes in some circumstances the distinction between commission and omission may be very difficult. i.e illegal possession of weapon, drugs iii) Conduct 9 22 0   True conduct crimes like perjury are rare  Expanded definition to include rape and abduction  According to Glanville Williams in these crimes ‘you do not have to wait to see if anything happens as a result of what the defendant does.’ Causation  The factor connecting actus reus elements of conduct and consequence – did action X cause result Y? In law the D's conduct must be both a factual and a legal cause of the consequence e.g. death or criminal damage:  An important element in result crimes. Often it is not disputed but when it is, the prosecution must prove that D, by his own act or unlawful omission, caused the relevant result  Theoretical disputes as to whether causation is an element of actus reus. Courts keen to avoid the issue  Two approaches in determining causation: i. causation in fact ii. causation in law a) Causation in fact or “but for”  An issue of common sense. What D did and what happened are certainly questions of fact  As to whether D’s acts caused what happened is a bit more complicated – needs the application of legal principles (causation in law) The ‘but for’ test  But for D’s act or omission, the event would not have occurred: D cannot be regarded as the cause of an event if the event would have occurred in precisely the same way had D’s acts never been done (D poisons V’s drink but V dies of some natural causes before it has had any effects on V. D’s conduct is not a ‘but for’ cause of V’s death  A simple approach to this is to eliminate D’s behaviors from the narrative then ask whether the result would have occurred anyway. If the answer is yes, the D is not liable. D’s acts must be sine qua non of the prohibited consequence  Caution required: If D invites V for dinner and V is run over and killed on the way. V would not have died ‘but for’ invitation of D. Does this make D responsible for the death of V? b) Causation in law  A defendant's act need not be the sole or main cause of the prohibited result in order to be found criminally liable for it. He or she must however, have performed a culpable act which makes a more than minimal contribution to the result.  Applicable principles 10 22 0 i. Connection between fault and result ii. Negligible causes iii. Contributory causes iv. Intervening acts (novus actus interveniens) i. Connection between fault and result  D cannot be said to be liable if the culpable element in his conduct in no way made a relevant contribution to the result  R. v Dolloway (1847)2 Cox CC 273, cf Marsh (1997) Crim: D was driving a cart on a high way with reins not in his hands but loose on the horse’s back. A three year old child ran into the road a few yards in front of the horse and was killed. Erle J. directed the jury that, if D had reins and by using the reins could have saved the child, he was guilty of manslaughter; but that, if they thought D could not have saved the child by the use of the reins, then they should acquit him. If D had not been driving the cart at all, the incident could not have occurred; and in that sense, he ‘caused’ it but it is necessary to go further and show that the death was due to the culpable element in his conduct – his negligence in not using the reins.  Causation analysis must focus on the relevant act – which act is it that caused the death? ii. Negligible causes  D’s acts must be a ‘substantial cause’ – more than negligible (de minimis principle)  D and V are roped mountaineers. V has fallen a 1,000 –foot precipice and is dragging D slowly after him. D cuts the rope and V falls to his death 5 seconds before both V and D would have fallen. Any acceleration to death is killing but factors that produce a very trivial acceleration may be ignored. D’s act is not a sufficiently substantial cause of V’s death.  Substantial factors test: different people inflicting wounds on a person, one wound leading to death while the other is a mere injury; a person talking to a dying man increasing his exhaustion and therefore accelerating his death; iii. Contributory causes  The acts of D may not always be the sole or the main cause of the result.  V suffers from meningitis but D struck him and he dies  It is true that the death would not have been caused by meningitis at the time when it occurred ‘but for’ the blows:  What about, the blows would not have caused the death ‘but for’ meningitis? Irrelevant question  Of concern is the extent to which meningitis may have contributed to the death  Contributory causes are acts or omission of others including the conduct of the deceased 11 22 0  Warburton v Hubbersty (2006) EWCACrim 627, CA. The Court of Appeal rejected a submission that ‘where a person has died from a number of injuries caused by different people and the defendant has caused (or been a party to causing) injuries ‘A’, then the defendant would not have caused the death unless the jury were sure that the deceased would have died from injuries ‘A’ on their own. iv. Intervening acts (novus actus interveniens)  Intervening acts/omission that server the chain of causation  They include i. The accused subsequent act ii. Acts of nature iii. Acts by third party iv. Medical interventions v. Victims own conduct vi. Intended consequences i. The accused subsequent act  An intervention by the original actor does not break the chain of causation if the intervening act is part of the same transaction: D stabs V and then shots him to death  This is different if the act which causes the actus reus is part of a completely different transaction: D having wounded V visits him in hospital and accidentally infects him with small pox of which he dies. ii. Acts of nature  Acts beyond human control  D assaults V leaving him unconscious in a building. All over sudden, an earthquake occurs that brings down the building killing V. Is D liable for murder or manslaughter?  Student A and B are fighting at the poolside. Student A pushes student B in the pull. Unable to swim, student B drowns to death. iii. Acts by third party  Innocent agent: D engages a minor/ an insane-or someone without mens rea to commit an offence – D is liable for the crime committed in law  Involuntariness: D startles E and E involuntary drops weight causing damage to V’s property. No true intervening act, D caused the damage  Justified and excused responses to an accused acts: In the case of Pagett (1983) 76 Cr App R 279; in resistance to lawful arrest, D held a girl in front of him as a shield and shot at armed policemen. The police instinctively iv. Medical interventions  Strict approach by the courts where chain of causation is broken by the conduct of medical profession 12 22 0   Intervention by third parties intervening in a fully informed manner (although not fully voluntary since they are under a duty of care)  Generally, their conduct is sufficient to break the chain of causation  Initially, bonafide treatment by competent medical officers was absolutely protected from criminal responsibility such evidence was inadmissible.  The real cause of the injury that necessitated medical intervention was held to be responsible. Regardless of whether or not the treatment was proper or improper.  Later this was extended to less serious injuries  case of Jordan (1956) 40 Cr App R 152, Jordan stabbed D who was admitted to hospital and died 8 days later. Jordan was convicted of murder. On appeal, it was established that death had not been caused by the stab wound, which was mainly healed at the time of thedeath but by the introduction of large quantities of some medication – to prevent infection – even after the deceased had shown intolerance to it. The conviction was quashed.  In Williams v R (1957) Crim LR at 430, termed the medical acts in Jordan as grossly negligent but one that would be sufficiently dealt with in civil courts. The court observed thus: “The court was ‘disposed to accept it as law that death resulting from any normal treatment employed to deal with a felonious injury maybe regarded as caused by the felonious injury. But it was sufficient to point out here that this was not normal treatment’. Surely treatment that is not normal is not necessarily negligent, even in civil law.”  This implied that doctors would be held responsible if the death arose from ‘normal treatment’  In the case of Smith v R (1959) 2 QB 35, D stabbed V with a bayonet. One of V’s comrades trying to carry V to the medical reception station, tripped twice dropping him. At the reception station the medical officer, who was trying to cope with a number of other cases, did not realize that one of the wounds had pierced a lung leading to haemorrhage. He gave D treatment which, in the light of the information regarding V’s condition available at the time of the trail, was ‘thoroughly bad and might well have affected his chances of recovery’. D’s conviction of murder was upheld and counsel’s argument, that the court must be satisfied that the treatment was normal and that this was abnormal was rejected.  In Cheshire (1991) 3 All ER 670, the bullet wounds, which D inflicted upon V had ceased to be a threat to life and there was evidence that V’s death was caused by the tracheotomy performed and negligently treated by the doctors so that it narrowed his windpipe and caused asphyxiation. The Court Appeal upheld the conviction asserting that ‘the rare complication …was a direct consequence of the appellant’s acts, which remained a significant cause of his death.’  There seems to be a lot of reluctance on courts holding medical doctors criminally liable for their conduct during treatment in cases related to homicidal assaults. 13 22 0 v. Victims own conduct  Slapping the head of someone with an egg shell skull or pricking a haemophiliac does the victims condition break the chain of causation?  Like in the law of torts, an accused in criminal law ought to take their victims as they find them.  Holland (1841) 2 Mood & R 351, D waylaid and assaulted V, cutting him severally across one of his fingers with an iron instrument. V refused to follow the surgeon’s advice to have the finger amputated, alt hough he was told that if he did not his life would be in great danger. The wound caused lockjaw, the finger was then amputated, but it was too late and V died of lockjaw. The surgeon’s evidence was that if the finger had been amputated first, V’s life would probably have been saved. Maule J told the jury that it made no difference whether the wound was in its own nature instantly mortal, or whether it became the cause of death by reason of the deaceased not having adopted the best mode of treatement. The question was whether, in the end wound, inflicted by the prisoner was the real cause of death.  In Blaue (1975) 3 All ER 446, D stabbed V, a young girl, and pierced her lungs. She was told that she would die if she did not have a blood transfusion. Being Jehova’s witness, she refused on religious grounds. She died from the bleeding of the wound. D was convicted of manslaughter and argued that V’s refusal to have a blood transfusion, being unreasonable, had broken the chain of causation. The wound was held to have been the cause of the death  Note circumstances under which contributory causes can be said to exist. Foe example, People v Lewis (1899) 124 Cal, D received a gunshot from A from which he would have died within an hour. He cut his throat and died within 5 minutes. A was convicted of manslaughter because the original wound was a continuing and operating cause. vi. Intended consequences  This is where the intended unlawful consequences occur as a result of the intervention of a new cause and not as a result of the acts of an accused person, even though the accused intended similar consequences  D administers poison to his mother with the intention of killing her, the mother dies of a fatal heart attack. Even though D intended similar consequences, the death is as a result of a new intervening cause ‘heart attack’  D will be held responsible for attempted murder even though in some extreme cases, the courts have insisted that such an accused person should be held responsible for the murder. See for example, Michael v R (1840) 9 C & p 356 14 22 0  Lecture 5 b) Men’s Rea  This is the bad intention, a guilty mind  Mens rea is manifest in different forms: i) Intention ii) Recklessness iii) Negligence iv) Blameless inadvertence  These forms imply different degrees of fault in criminal law  All crimes require proof that an accused person had the relevant blameworthy state of mind that is, fault element. Exceptions: offences of strict liability Mens rea concerns legal not moral guilt  Mens rea concerns legal as opposed to moral guilt  This is the mental element required by the definition of the particular crime – the intention to fulfill the actus reus of that crime, or recklessness whether it be fulfilled.  ‘Rea’ – criminality of an act and not its moral quality  Kingstone v R (1994) 3 WLR 519. D, paedophile, was charged with indecent assault of a 15 year old boy, V. D and V had both been drugged surreptitiously by P. P knew of D’s tendencies, and he drugged D and V in the hope that D would indecently assault V and that he, P, would be able to video record the events so as to blackmail D. the House of Lords reinstated D’s conviction; simply because blame or moral fault was absent did not mean that the necessary mens rea was also absent. Lord Mustill stated that: Each offence consists of a prohibited act or omission coupled with whatever state of mind is called for by the statute or rule of the common law, which creates the offence. In those offences which are not absolute, the state of mind which the prosecution must prove to have underlain the act or omission – the ‘mental element’ – will in the majority of cases be such as to attract disapproval. The mental element will then be the mark of what may properly be called a ‘guilty mind’. The professional burglar is guilty in a moral as well as a legal sense; he intends to break into the house to steal, and most would confidently assert that this is wrong. But this will not always be so. In respect of some offences the mind of the defendant, and still less his moral judgment, may not be engaged at all. In others, although a mental activity must be the motive power for the prohibited act or omission the activity may be of such a kind or degree that society at large would not criticize the defendant’s conduct severely or even criticize it at all. Such cases are not uncommon. Yet to assume that contemporary moral judgments affect the criminality of the act, as distinct from the punishment appropriate to the crime once proved, is to be misled by the expression ‘mens rea’, the ambiguity of which has been the subject of complaint for more that a century. Forms of mens rea Intention  Shrouded in certainties and uncertainties  Two categories of intention 15 22 0 i. Direct intention ii. Oblique intention Direct intention  Distinction has to be made between an accused’s desire and purpose  One can intend by having result as his purpose, without desiring it. E.g D gives a lethal injection to put a patient out of pain, but whishes he did not have to. (To distinguish purpose from desire. In criminal law, purpose is key in determining mens rea)  D has resolved to kill A. D fires a loaded gun at A with the object of doing so. It is immaterial that D is a poor shot, A was nearly out of range and that his chances of success are small.  Thus, intention – according to one school of thought - should be limited to the narrow definition of purposive or direct intention. Thus, result should never be regarded as intention unless it was the actor’s purpose – unless he acted in order to bring about the result. Oblique intention  Courts often interpret intention more broadly giving it a wider meaning – sometimes called ‘oblique’ (as opposed to direct) intention. Here it is sufficient that an accused has foreseen the prohibited result as one that is highly probably, or virtually certain to occur, even if achieving that result is not his purpose. Recklessness  In many offences, intention to cause a proscribed result or recklessness as to whether that result is caused is sufficient to impose liability. A person who does not intent to cause a harmful result may take an unjustifiable risk of causing it. Unjustifiable taking risk in conduct which might harm others is culpable behavior  Sometimes, the risk might be recognized as being much greater, but the social utility of doing the action justifies it. For example, an aircraft operator, a surgeon performing an operation must all know that their conduct might cause death but none of them would be described as reckless unless the risk take is unreasonable one  Risk taken can be justified by the social value of the activity involved relative to the probability and the gravity of the harm, which might be caused. Was the risk one that a reasonable and prudent person might have taken? Subjective recklessness and malice  The standard test for recklessness – traditionally called ‘Cunningham’ recklessness after the case of that name – requires not only proof of a taking of an unjustified risk, but proof that D was aware of the existence of the unreasonable risk – a subjective mens rea focused on D’s own cognition of the existence of a risk. 16 22 0   In Cunningham (1957) 2 QB 396, D tore a gas meter from the wall of the cellar of an unoccupied house to steal the money in it. He left the gas gushing out. It seeped into a neighboring house and was inhaled by V whose life was endangered. D was convicted of maliciously administering a noxious thing so as to endager life. Because the judge directed the jury that ‘malicious’ meant simply ‘wicked’, D’s conviction was quashed. The court of Appeal held inter alia: …in any statutory definition of a crime ‘malice’ must be taken not in the old vague sense of ‘wicked’ in general, but as requiring either: i. An actual intention to do the particular kind of harm that in fact was done, or ii. recklessness as to whether such harm should occur or not (i.e the accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it). It is neither limited to, nor does it indeed require, any ill-will towards the person injured  Thus Cunningham was not guilty unless he was aware, when he broke off the gas meter, or left the broken pipe with the gas gushing out, that someone might inhale it. Objective recklessness This entails not having known or thought of the risk but as a reasonable person ought to have known it. Therefore if the accused person does an act which creates an obvious risk but when doing the act either does not give thought to the possibility of there being risk or has recognised that there was some risk but nonetheless gone on to do the act. Negligence  While recklessness is the conscious taking of unjustifiable risk, negligence is the inadvertent taking of unjustifiable risk. If D is aware of the risk and decides to take it, he is reckless; if he is unaware of the risk, but ought to have been aware of it, he is negligent  When D considers whether or not there is a risk and concludes wrongly and unreasonably, either that there was no risk, or the risk was so small that it would have been unjustifiable to take it, he is negligent. Knowledge  Often considered alongside intention  Whereas intention is usually descriptive of the state of mind as to consequences (for example, I intent to kill), knowledge is usually used in relation to circumstances (importing substance knowing it is prohibited) Criminal liability that need not mens rea These crimes can be classified as crimes of 1. Strict liability. 2. Vicarious liability?. 17 22 0 Strict liability  These crimes usually do not require mens rea (one is held criminally liable even when there is no proof of intention, recklessness, negligent or required knowledge) as part of their element and they are invariably statutory so that a mere commission of the act will constitute the offence.  Almost always, strict liability offences are found in statutes. By enforcing them, the courts merely profess to be implementing the intention of Parliament, express or implied.  In Hamed Abdallah vs R (1964) EA 270 it was held that the Transport Licensing Ordinance, section 26 (1), created an absolute liability, and it was no defence that the accused person was not party to or even aware of the alleged breach of the conditions stated in the provision  In traffic cases, on the charge of causing death by dangerous driving, the courts have generally taken the position that mens rea is relevant for that offence. Khalif vs R (1973) EA 364 it was held that dangerous driving is not an absolute offence; there must be some fault on the part of the driver  At common law, however, crimes of strict liability arise in; 1. crimes of libel 2. crimes of public nuisance 3. contempt of court (the only one applicable to Kenya)  In R v Shepherd, Lord Diplock famously stated that courts will still discover new crimes of strict liability from time to time.  Strict liabilities are a reaction by parliament to save public fear. It may be a reaction to traffic accidents etc.  In Sweet v Parsley, the appellant was convicted of being involved in the management of premises used in the smoking of cannabis. The trial court agreed with the prosecution that this statutory act did not require mens rea and the defendant will be guilty under the act and it was therefore not necessary to prove that he knew that cannabis was being smoked in the premise. She was convicted. She appealed and the appeal was allowed as mens rea was essential unless the statute expressly excludes mens rea as part of the offence. Crimes of vicarious liability  In vicarious liability acts of one person will be attributed to another.  The doctrine has to be kept in strict limits as it remains of uncertain scope  Distinguish personal duty from vicarious liability  The true rule of vicarious liability is to be found in the law of torts where an employer is held liable for all acts performed by an employee in the course of the employee’s employment, or in close connection with it. This is not true in criminal law  Lloyd v Grace smith and co. In this case a solicitor's clerk, without the knowledge of his employer, induced an old lady to transfer her property to him under the pretext that it was necessary to facilitate the sale thereof and then fraudulently sold the property and pocketed the proceeds. A second 18 22 0  claim against the employer succeeded because the clerk was acting within, the scope of his employer's authority.  While it is clear that the clerk would today be criminally liable for those acts, it is perfectly certain that the employer could never could never bear criminal liability today even though has the civil liability.  At common law an employer can be held liable for his employees crimes, as a general rule, only if he participated in the commission of the crime unless it was public nuisance, criminal libel and contempt of court.  In Griffiths v Studebakers limited (1924), The respondents had been given a limited trade license for their trade cars. They were charged as a company with using on a public highway a motorcar carrying more than two passengers in addition to the driver contrary to the conditions of their limited trade license, which prohibited the driver from carrying more than two passengers. Their servant had driven the car in the course of employment by giving a trial. It held that the respondents were guilty because they had used a motor vehicle contrary to the requirements of their limited trade license. Hewart CJ said It would be fantastic to suppose that a manufacturer, whether a limited company, a firm, or an individual, would, even if he could, always show cars to prospective purchasers himself; and it would defeat the scheme of this legislation if it were open to an employer, whether a company or a firm, or an individual, to say that although the car was being used under the limited licence in contravention of the conditions upon which it was granted: “My hand was not the hand that drove the car.” On these facts there ought to have been a conviction of (the defendants) and also the driver as aider and abetter.  Justice Slate said "I am unable to agree that a distinction can be drawn between using and permitting to be used where the person charged is accompanied and the liability imposed is vicarious liability of the company for the -breach of an absolute prohibition by its individual can either commit an offence himself or he may cause or permit another to commit it. A company can only commit an offence by its servants. A company can only-use a motor vehicle in the sense of permitting another to commit it.  Most certainly, this kind of decision would not stand today. In recent jurisprudence Taj Din vs Rex, it has been held that apart from statute there is no rule of law which makes a person criminally liable for the acts of his servants  The principle of vicarious liability does not therefore apply in criminal law 19 22 0  Lecture 6 GENERAL RULES OF CRIMINAL RESPONSIBILITY 1. Presumptions Presumptions arise mainly as matters of evidence, in terms of what the prosecution may be required to prove and what may be presumed. As a rule, presumptions requires that upon proving one fact, the court may or must infer that some other facts exists or it may presume the existence of those facts. This implies the existence of two sets of facts; when one set is proved, the other may be presumed to exist by virtue of the facts proved. Presumptions are categorized into two: 1. Presumptions of law 2. Presumptions of fact 1.1 Presumptions of law These are facts that the court must presume exist. They are: a) Rebuttable presumptions and b) Irrebuttable presumptions (conclusive presumption)  Rebuttable presumptions are those that evidence can be adduced to contradict them. A fact is presumed to exist but the presumption can be displaced by evidence to the contrary. For example, section 14 (2) of the penal code states that a child under 12 years is not criminally liable, unless it can be proved that at the time of the offence he had capacity to know that what he was doing was wrong; a marriage ceremony is presumed to signify a valid union – not always the case  Irrebuttable presumptions of law is a presumed fact which if found to exist cannot be contradicted by evidence. For example section 14 (1) of the penal code presumes that a person under the age of 8 years is not capable of committing an offence; section 14 (3) of the penal code presumes that a boy of less than 12 years is presumed incapable of having carnal knowledge 1.2 Presumptions of fact  These are facts that the court may presume exist on the proof of another fact. It presupposes the existence of two sets of facts. Upon proof of one set of facts, the court, may presume another set of facts as having been equally proven. The court normally infers mens rea or presumes mens rea from proved facts or elements of actus reus. The inferences made or the presumptions of fact drawn by the court from the evidence presented by the prosecution may be rebutted upon the suspect’s defence or explanation.  In Libambula v R (2003) KLR 683 where the suspect was said to have shot an arrow at the deceased, it was presumed that, the suspect could foresee that shooting an arrow towards the deceased could cause the deceased’s death or grave injury. Thus the suspect desired the kill the deceased – presumed mens rea or intent to kill. This presumption may be displaced by the suspect’s 20 22 0  evidence that he was not shooting at the deceased but he was hunting and that the arrow had been fired at his prey  Also applies in the offence of handling stole property. When found in possession of stolen goods, the court presumes the person in possession of the stolen goods is either the thief or had received the goods knowing them to have been stolen unless he accounts for his possession. 2. Burdens and standards of proof  Proving a criminal case is a matter of criminal procedure and evidence  The general rule is that the onus of poof in criminal cases rests throughout with the state.  Founded on the maxim: ‘He who alleges must proof’  R v Surbodinate court of the first class magistrate at City Hall, Nairobi and another, ex parte Youngidar Pall Sennik and Another Retread Ltd (2006) 1 EA 330: it was stated that when a person is bound to prove the existence of any facts it is the law that the burden of proof lies on that person. Burden of proof on the state  The onus to prove a criminal case is always on the state. The standard of proof is beyond reasonable doubt. Any doubt is interpreted in favour of an accused person  Mwaula and another v R (1980) KLR 127: mere silence by an accused does not invite the finding that the prosecution has established its case beyond reasonable doubt Burden of proof on the accused  The accused never has a burden to disapprove the charge  However, the onus to proof shifts to the accused in exceptional circumstances as follows: 1. When the accused pleads insanity/ raises the defence of insanity 2. A statute may expressly place a burden upon the accused to prove a certain fact. Section 323 of the Penal Code creates the offence of having or conveying suspected stolen property – shifts the burden to the accused to satisfy the court of how he came into possession with the property. Even then the state still has to prove the crime beyond reasonable doubt, after which the burden shifts to the accused. Section 29 of Weights and Measures Act places the burden on an accused person found in possession of a measuring instrument to explain that the instrument was for use for trade purposes. 3. After the state proving of the positive elements of a crime and an accused makes a negative averment to the contrary, the accused has to proof the negative element by producing affirmative counter evidence. For example, driving without a license. The state has to proof this fact beyond reasonable doubt. The accused has to prove that he had a licence at the time. Hatibu bin Rashid and another v The queen KLR 172 (Rudd and Forbes JJ) the appellants were convicted of moving maize without a permit. The court said 21 22 0  that the facts had been proved such as to raise a probable presumption of guilt, and in the absence of any explanation to convict.  This may also be used in cases where the doctrine of recent possession applies (handling stolen property), corruption cases, or murder where particularly an accused is said to be the last person to be seen in the company of the deceased. Ndunguri V R (2001) EA 179 (Omollo, Shah and Bosire) The appellant was the last person to be seen with the deceased whose body was later retrieved from the appellant’s latrine. The court held that the appellant had the onus of explaining the circumstances under which he and the deceased parted since this knowledge was peculiarly within his knowledge. He was unable to discharge his burden and his conviction was upheld. Similarly, in Ernest Asami Bwire Abanga alias Onyango v R (1990) (Tunoi, Lakha and Keiwua JJA) the appellant was the last person to be seen with the deceased when he was still a live. He was thereafter found dead under a bed in a hotel room, which had been booked by the appellant. There was proof beyond all reasonable doubt that the deceased was killed in that room and the appellant was the only person in actual physical charge of the room. The appellant was convicted of murder and an appeal against the conviction was dismissed. 3. Ignorance of law  General rule: ignorance of law is no defence  Exception: where knowledge of the law is an expressly provided for by law to be one of the elements of a crime.  Section 7 of the Penal Code: ‘ignorance of law does not accord any excuse for any 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.’ R v Bailey (1800) 1. A sailor was convicted of contravening a statute of which he could not possibly have known since it was enacted when he was away at sea, and the offence was committed before the news of the enactment could reach him 4. Oblique results  A person intends to commit crime A, but crime B happens either independently or simultaneously with the intended crime A. this person will be held liable for both crime A and B even though crime B is not what he intended, provided that crime B could be foreseen. What matters is that the intended results were unlawful in the first place. 5. Double jeopardy  This is essentially an American concept which prohibits the second trial of a person on account of the same facts or actual situations. The fifth amendment of the US constitution provides "Nor shall any person shall be subject for the same offence be twice put in jeopardy, of life or limb ". 22 22 0   In English law the principles applied in the plea of cause of action estoppels which is either one of a autrefois acquit -meaning previously acquitted or autrefois convict – meaning previously convicted respectively and they are pleas that are made when the accused is charged again with the same facts.  The case of Re Wilson observed in relation to autrefois acquit that the test to establish in a plea that the defendant had been acquitted is 1. That the defendant had been acquitted of the same offence 2. That he could have been convicted at the previous trial of the offence which he is now or subsequently charged. 3. That the two offences are substantially the same  However, a conditional discharge is a bar to a plea of autrefois acquit. A conditional discharge occurs where the prosecution requests to withdraw a charge before the accused takes her defence and the magistrate discharges her. Consequently, if similar proceedings are brought against the accused she may not plead autrefois acquit.  In the case R v Nathu and Another 1944 1 EACA 62 The accused were discharged of certain offences and later charged of the same offences on the same facts. However, the magistrate did not make a note of this in the case file and there was some doubt as to whether the prosecution asked to withdraw the charges. The court of Appeal held that magistrate had rightly applied the section and discharged the accused and therefore had not acquitted him. Thus, the plea of autrefois acquit was not available to him.  With regard to autrefois convict the test is that the offence with which he is now charged must be the same or practically the same as the one with which he was previously charged on account of which he was convicted.  In Republic v Thomas ALL E.R 662 the accused was convicted of wounding his wife with intent to murder her and was sentenced to seven years imprisonment. His wife later died of her wounds (within the year and a day rule). The Court of Appeal held that although the accused had been convicted and sentenced for the wounding he could still be tried for murder and could not plead autrefois convict.  This position is reflected in Kenya under the s140 of the Criminal Procedure Code CAP 75 which states; “A person convicted or acquitted of an act causing consequences which together with that act constitute a different offence from that for which he was convicted or acquitted may be afterwards tried for the last-mentioned offence, if the consequences had not happened or were not known to the court to have happened at the time when he was acquitted or convicted.” 6. Privileges and immunities Judicial immunity  Section 15, Penal Code: ‘Except as expressly provided by this code, a judicial officer is not criminally responsible for anything done or omitted to be done by him in the exercise of his judicial functions, although the act done in excess of his judicial authority or although he is bound to do the act omitted to be done.’ 23 22 0   In Attoney General v Oluoch (1972) EA 392 judicial immunity was said to be a matter of policy that was necessary if such judicial officers are to discharge their duties without fear or harassment by those who may feel aggrieved by judicial officers actions. 8. Principle of Legality  It is expressed in the Latin maxim ‘nulla poena sine lege’ loosely translated ‘no man shall be made to suffer except for a distinct breach of criminal law which shall be laid down beforehand in precise and definite terms that it prohibits.’ 1. Extension by analogy of criminal offences to cover cases not obviously within it. 2. The retrospective imposition of criminality. 3. Prohibits the formulation of criminal statutes in excessively wide and vague terms.  In Kenya it is applied through Articles 50(2)(n) and 50(2)(p) of the Constitution that states that an accused person has the right;  Article 50(2)(n) states that an accused person has the right; “not to be convicted for an act or omission that at the time it was committed or omitted was not— (i) an offence in Kenya; or (ii) a crime under international law  50(2)(p) states that an accused person has the right; to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing;  In the case of R v Price, the accused was charged with the offence of attempting to burn a dead body through cremation instead of burying it as was the practice then. Justice Steven acquitted the accused arguing that he had not found any authority that created such an offence.  It is unfair to apply to the accused retrospectively a law of greater severity than the one in effect at the time of his conduct. It is divided at legislative agencies in order to limit the abuse of power by public officials. The case of Calder v Bull 3 U.S. 386 (1798) defined ex post facto laws as follows 1. Every law that makes all action done before the passing of the law and which was innocently done criminal, and punishes such actions. 2. Every law that aggravates a crime or makes it greater than it was when committed. 3. Every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed. 4. Every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offence in order to conflict the offender.  However in 1961, the House of Lords in Shaw v. Director of Public Prosecutions handed down a decision which caused great consternation 24 22 0  amongst lawyers and commentators: In the case Shaw had published a booklet called the ‘Ladies Directory,’ which advertised the names and addresses of prostitutes. The booklet: “... left no doubt that the advertisers could be got in touch with at the telephone numbers given and were offering their services for sexual intercourse and, in some cases, for the practice of sexual perversions.” Shaw was successfully prosecuted under a number of provisions of the Sexual Offences Act 1956 and the Obscene Publications Act 1959(of England). He was also convicted on a charge of "conspiracy to corrupt public morals" on the basis that, when he published the booklet, Shaw was conspiring with the prostitutes "... to debauch and corrupt the morals of youth and other subjects of the Queen." Shaw complained to the House of Lords, inter alia, that the crime of conspiracy to corrupt public morals was hitherto unknown. All five law Lords upheld the conviction. Only Lord Reid maintained that the crime with which Shaw was charged was an existing common law misdemeanour. The other four law lords went further. They held that courts have a residual power to superintend offences which are prejudicial to the public welfare. The majority built their argument upon the notion put forward by Lord Mansfield almost two hundred years earlier, that the courts are "guardians of public morals" and that they ought to restrain and punish "... whatever is contra bonos mores et decorum".  A principle of considerable importance but disquieting possibilities was established by the House of Lords in Shaw v. Director of Public Prosecutions. It is difficult not to regard the decision... as a serious blow to the principle nullum crimen sine lege.  In the earlier case of R. v. Manley, Manley made false allegations of robbery to the police. Before the Court of Criminal Appeal she was found guilty of "unlawfully effecting a public mischief". This decision was widely attacked as being an example of ex post facto punishment, as no such crime existed before R. v. Manley. Courts had avoided following that case until Shaw v. DPP provided an implied affirmation (and, in the judgment of Viscount Simonds, an express affirmation) of the decision. Both Manley and Shaw were found guilty of having committed crimes that were not recognised as such when they committed the acts in question. These two cases have been much criticised, yet they remain as examples of how the principle of non- retroactivity has not been universally applied in British courts. However, as stated earlier the House of Lords in its decision in Knuller Ltd v DPP rejected the residual power of courts to create new offences. 10. Use of force in effecting arrest  Section 18 and 124 of the Penal Code allows security agents and private individuals to use all necessary means and all such force as are reasonable to effect a lawful arrest of a wanted person 25 22 0   When determining the reasonableness of force used, the courts may be guided by the behavior of the person being arrested and the nature and gravity of the offence committed or about to be committed.  In Marwa s/o Robi v R (1959) EA 660. The deceased had gone to the homestead of the appellant armed with a stick to claim cattle that did not belong to him. The dispute between the deceased and the appellant was a long-standing one. Although the deceased was armed with a stick, he neither used it on the appellant nor threatened to use it or commit any other forcible crime. He however attempted to drive away the disputed cattle when the appellant hit him fatally with a spear. The court found that the appellant was entitled to use reasonable force to prevent the taking away of his cattle, but the means used were disproportionate to the tort, which was being committed by the deceased. The thrust of the spear into the chest of the deceased was calculated to kill, rather than to prevent the removal of the cattle.  Similarly, in Muhidini s/o Asumani v R (1962) EA 383, a landowner went out at night armed with a panga in search of thieves stealing from his farm. Two people came running towards him, and as they ran past him, he slashed one with the panga killing him instantly. The deceased was a youth of 16 with no intention of stealing. (discuss) 11. Corporations  A corporation is a group of people who come together for a common purpose, usually for business  Corporations are legal entities with a legal personality distinct from the natural persons – members, employees, directors – who make up the corporation  Corporations include Public Limited Companies, private limited companies, limited liability partnerships and other organizations such as local authorities  In Kenya, a corporation is either established under statute or formed under the companies Act  A corporation has the same criminal responsibility as a natural person  Although a corporation is in law a legal entity, common law still relies on the culpability of the individual directors in fixing liability on the corporation  The traditional concepts of actus reus and mens rea can be applied to the company via its human controllers  R v ICR Haulage Ltd (1944) 1 All ER 691. A limited liability corporation was charged with conspiracy to defraud. It raised the objection that it was not a natural person, it did not have a mind and therefore it could not form a men rea. The court held that the acts and state of mind of a company’s servants may be treated as that of the company itself.  Some offences, by their nature, cannot be committed by corporations: bigamy and perjury 26 22 0  Section 23 of the Penal Code: where an offence is committed by a corporate or non corporate body, every person who is in charge of the control of the management of the affairs of the corporate or the non corporate body is guilty of an offence and is liable to punishment for it  Unincorporated bodies such as political parties, trade unions, partnerships and firms do not have corporate existence. The principles of corporate liability in criminal law do not therefore apply.  In the case of a corporation, criminal liability is attached to the company and its managers. In the case of unincorporated bodies, liability is attached on its managers as individuals  Stephen Obiro v R (1962) EA 61, the court observed that an incorporated body could theoretically be guilty of an offence, but in practice no criminal proceedings could be instituted against it, for there is no procedure for bringing it before a court or receiving its plea. The plea of guilty by the chairman of the society acting on behalf of the society was thus said to be a nullity as it was not made by a person duly authorized to plead on behalf of the society 27 22 0  Lecture 7 PARTIES TO A CRIME Either one party or a group of individuals can commit a crime. In the case of a group, responsibility is attached to the level of involvement in the crimes thus the need for classifying parties to a crime. There are two major distinctions of participants of a crime: principal offenders and accomplices a) Principal offender  This is the person who directly and immediately performs the actus reus of an offence.  For example, in theft, it is the person who actually steals; murder – one who pulls the trigger etc b) Accomplices and consortees  The difference between a principal and an accomplice is a fine one: unlike the principal, an accomplice does not bring about the actus reus of the offence  This refers to the association with the offenders.  This is where one is accused for associating with actual perpetrators for an offence in circumstances, which give rise to a presumption that there was common intention to commit an offence.  In practice, an accomplice is therefore likely to be either an aider, abettor, procurer or accessory  In Watete v Uganda (2000) EA 559, it was stated that a person is an accomplice if he participated as a principal or accessory, in the commission of the crime  Section 20 of the Penal Code includes aiders, abettors and those who counseled or procured (assisted or encouraged) the principle offend er into this category. Under common law, this would be classified as secondary offenders or accessories  Liningushu and others v R (2005) 1 EA 229; the second appellant was the widow of the deceased, she did not actually kill the deceased, but she was the mastermind of the crime and she is the one who procured the actual killers. The third appellant was her daughter who facilitated the killing. Both were held to be the principle offenders and convicted as such for murder  The penal Code does not distinguish between principals in the first or second or third degree as is the case in other jurisdictions. Neither does it distinguish between secondary offenders and principal offenders as does the common law. 1. Aiding and abetting  This is the giving of assistance or encouraging principal offenders either before or after the commission of a crime  Knowledge of the crime intended by other parties is key  There is no clear distinction between these two terms 28 22 0   Bonar v McLeod (1983) Scottish Crim. Case Rep 161, a senior police officer who did nothing while one of his juniors assaulted a detained person, was convicted as an accomplice for aiding and abetting. He was said to have had a duty to intervene. 2. Counseling, procurers, instigators and inciters  Covered under section 22 of the Penal Code  A person who offers advice on the commission of a crime or procures another to commit a crime upon conviction will be liable to the same punishment as if he had committed the substantial offence  In the case of advice, it is immaterial that the offence eventually committed is different from the one counseled. Of importance is that the facts constituting the offence committed are a probable consequence of the counsel  R vs Benard (1858) 1 F & F 240, a person who counseled another to kill a particular person was convicted of murder when the person counseled killed a different person other than the one he had been counseled.  R v Masabo s/o Mwendabantu 13 EACA 172, a woman was convicted of a charge of counseling and procuring the murder of her h usband. There was evidence that the man who actually killed the husband was her lover. The trial court inferred from the evidence that the wife was actively concerned in the murder and must have counseled and procured her lover to kill him. The Court of Appeal held that it could not be established from inferences that she had beyond reasonable doubt aided, abetted, counseled and procured her husbands death. This was a case of mere suspicion. 3. Accessories before and after the fact  An accessory after the fact assists an offender evade punishment or by destroying incriminating materials  Covered under section 396, Penal Code 396. (1) a person who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is said to become an accessory after the fact to the offence. (2) A wife does not become an accessory after the fact to an offence of which her husband is guilty by receiving or assisting him in order to enable him to escape punishment; by receiving or assisting in her husband's presence and by his authority another person who is guilty of an offence in the commission of which her husband has taken part, in order to enable that other person to escape punishment; nor does a husband become an accessory after the fact to an offence of which his wife is guilty by receiving or assisting her in order to enable her to escape punishment.  In R vs SaidiNsumbuga s/o Juma and another (1941) 8 EACA 81, it was said that an accessory after the fact of murder can be convicted as such even when no one has been convicted of murder provided that there is sufficient evidence of such.  The Penal Code has got no provisions on accessories before the fact. In practice however, this has been used interchangeably with aiders, abe ttors and procurers 29 22 0 How does the law treat these parties?  The law treats both the principal and secondary offenders in identical terms in terms of punishment  Question: what about a situation where a person is attacked by a group of individuals but the medical evidence points to death resulting from a single stab. (Open discussion as to the distinction between the two parties)  Unless there is evidence that a particular member of the group inflicted the fatal wound, the prosecution may have no alternative but to allege that each member was either the principal offender or an accessory.  What if there is only one fatal stab? Can the court find all accused persons responsible as the principle offenders?  Section 20, Penal Code provides thus: 20. (1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say- (a) every person who actually does the act or makes the omission which constitutes the offence; (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; (c) every person who aids or abets another person in committing the offence; (d) any person who counsels or procures any other person to commit the offence; and in the last- mentioned case he may be charged either with committing the offence or with counselling or procuring its commission. (2) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence. (3) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with doing the act or making the omission.  The distinction between principal offenders, accessories, secondary offenders, aiders and abettors, is therefore more of an academic exercise. Under Kenyan law, aiding and abetting, procuring and counseling of a person to commit a crime have all been classified as a principal offender  Separating principals and accessories is complicated by two factors: 1. Joint principalship: an offence can be committed by more than one perpetrator (see e.g. Agatha Christie’s Murder on the Orient Express) 2. Innocent agency: where the actus reus of an offence is committed by an innocent agent, the party who has induced that agent to act is not an accomplice but a principal. 30 22 0 Joint offenders  Section 21, Penal Code provides as follows: When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.  R v Mughuria s/o Bwaya 10 EACA 105, it was said that the common intention to use violence may be inferred from the fact that the gang is armed with lethal or dangerous weapons even when if only one of them is so armed.  R v Okute s/o Kaliebi and another (1941) 8 EACA 78. The deceased died due to shock resulting from two independent beatings. There was no evidence to an intent common to the two appellants. The court held that since the death was caused by the effect of the second beating to which the appellant was not a party, then they should be acquitted.  R vs. Enoch Achila and another (1941) 8 EACA 63. The deceased was being beaten by sticks by the first appellant as the second appellant held him on the ground. The first appellant then came and twisted the deceased neck dislocating it. They were convicted of murder. On appeal, the court considered that the second appellant could not be convicted of murder unless it was established that not only was he holding the deceased while the first appellant was twisting his neck but also that he was identified with the first appellants purpose.  The mere presence at the scene of the crime does not make a party to the crime without their participation, R v KingoriwaGakuha 13 EACA 81, this does not include being a member of the gang committing an offence 31 22 0  Lecture 8 INCHOATE CRIMES  Inchoate crimes are incomplete crimes  They are divided into: incitement, attempts and conspiracies 1. Encouraging or Assisting Crime –encouraging or assisting another to commit a crime, similar to accomplice liability (but offence never takes place). A unsuccessfully tries to persuade B to burgle C’s house 2. Conspiracy – A and B agree that B will burgle C’s house 3. Attempt – B tries to break into C’s house, but does not succeed in doing so. 1. Encouraging or Assisting Crime An inciter is one who: “seeks to influence the mind of another to the commission of a crime…[and] may take various forms, such as suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity.” R v.Goldman Crim LR 894 Actus Reus To incite another to commit an offence, whether or not the offence is actually carried out: DPP v. Armstrong Crim LR 379 R v. Goldman Crim LR 594 Mens Rea The prosecution must prove the accused intended the offence incited to be committed and intended any consequences inherent in the actus reus of the crime intended. R v. Curr 2 QB 944 2.Attempts  Covered under section 388 of the Penal code: (1) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence. (2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention. (3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.  This is a situation where mens rea alone without prove of the actual actus reus suffices to find an accused criminally liable. 32 22 0   Section 389 provides for the punishment of these crimes as follows: Any person who attempts to commit a felony or a misdemeanour is guilty of an offence and is liable, if no other punishment is provided, to one-half of such punishment as may be provided for the offence attempted, but so that if that offence is one punishable by death or life imprisonment he shall not be liable to imprisonment for a term exceeding seven years. Question: Can there be accomplice liability for attempts? Consider DPP v. Armstrong (2000) Criminal Law Review 379 3. Conspiracy  Even though not defined under the Penal Code, the case of Mulcahy vs The queen (1868) LR 3 HL 306 defined it as an agreement between two or more people to do an unlawful act by unlawful means Common law conspiracy  There are 2 forms of conspiracy under common law: a) Conspiracy to defraud b) Conspiracy to corrupt public morals and outrage public decency  There are three forms of conspiracy to defraud: i. Where loss is suffered ii. Where victim is deceived into taking an economic risk iii. Where a public official is induced by deception to act contrary to his public duty i. Where loss is suffered  Scott v. Metropolitan Police Commissioner (1975) AC 819: A defendant is guilty of conspiracy to defraud if they cause economic loss to another with the intent to cause such harm.  R v Evans (2014) 1 WLR 2817: must show i) dishonest agreement; ii)Unlawful means used iii) to damage ownership rights ii. Where victim is deceived into taking an economic risk  R v Allsop (1976) 64 Cr App R 29, per Shaw LJ: ‘Where a person intends by deceit to induce a course of conduct in another which puts that other person's economic interests in jeopardy he is guilty of fraud even though he does not intend or desire that actual loss should ultimately be suffered.’ iii. Where a public official is induced by deception to act contrary to his public duty 33 22 0   Welham v DPP (1961) AC103 (forgery case): under this heading a defendant can be guilty of fraud even if s/he had no intention of causing anyone to suffer loss  Conspiracy to corrupt public morals and outrage public decency  Knuller v DPP (1973) AC 435: Court of Appeal defines the relevant terms:  ‘Public morals’ are defined as the ‘publicly shared’ and essential moral rules of society  ‘Public decency’ refers to the requirement that the outrageous act is exposed to general view, e.g published in a book or magazine  ‘Corrupt’ and ‘outrage’: An appeal to standard sense of proprietary. No requirement that anyone is actually outraged or corrupted. Statutory conspiracy  Conspiracy can either be a felony or a misdemeanor.  A conspiracy becomes a felony in accordance to section 393 which provides that Any person who conspires with another to commit any felony, or to do any act in any part of the world which if done in Kenya would be a felony, and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of a felony and is liable, if no other punishment is provided, to imprisonment for seven years, or, if the greatest punishment to which a person convicted of the felony in question is liable is less than imprisonment for seven years, then to that lesser punishment.  If the conspiracy is with regard to a misdemeanor, then the person conspiring will be held responsible for the misdemeanor  Section 394. ‘Any person who conspires with another to commit a misdemeanour, or to do any act in any part of the world which if done in Kenya would be a misdemeanour, and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of a misdemeanour.’ 34 22 0  Lecturer 9 GENERAL DEFENCES  These are conditions that try to justify or excuse the commission of crimes that are calculated towards achieving an acquittal of an accused person  Absolute or partial  Once an accused raises a defence, the onus is on the prosecution to proof beyond reasonable doubt that the said defence does not apply to a particular case.  Defences are either specific or general. Specific to a particular offence or general – applicable to more than one crime. It is not general in the sense that it applies to more than one crime, some general offences are not applicable to other crimes. 1. Insanity  This is where an accused claim that he lacked mental capacity at the time of commission of the acts alleged to constitute the criminal offence. The test of insanity/ the M’Naghten Rule  (1843); Daniel M’Naghten, intending to murder sir Robert Peel, killed Peel’s secretary by mistake. His acquittal of murder on grounds of insanity provoked controversy and was debated in the legislative chamber of the House of Lords, which sought the advice of the judges and submitted to them a number of questions. The answers to these questions became the famous ‘M’Naghten Rules” …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 laboring under such a defect of reason, from disease of 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 that he was doing what was wrong.  This presents two lines of defence to an accused: 1. An accused must he acquitted if, because of a disease of mind, he did not know the nature and quality of his acts (an effective denial of mens rea) or; 2. Even if he did know the nature and quality of his acts, he must be acquitted if, because of a disease of mind, he did not know it was wrong  Adopted under section 12 the Penal Code;  The ‘nature and quality of his act’ refers to the physical nature and quality of the act and not to its moral or legal quality. It simply means that D did not know what he was doing: for example, A kills B under an insane delusion that he is breaking a jar and where a mad man cuts a woman’s head thinking he is cutting a loaf of bread  Regarding the second limb, the question the courts will be asking is: was the accused able to appreciate the wrongness of his acts? Even if an accused did not know that his acts were contrary to law, he will still be liable if he knew 35 22 0  that it was wrong ‘according to the ordinary standards adopted by ordinary man’. The fact that an accused thought it was right is irrelevant if it is proven that he knew that people generally considered it wrong  In Philip Muswi s/o Musele v Reginam (1956) 22 EACA 622. The accused was convicted of the murder of his wife. He argued that he did not know what he was doing. Psychiatric evidence was tendered to proof that he was depressed and though he was justified to kill his wife. That his believe as to whether what he was doing was right or wrong was coloured by his believe that his wife was practicing witchraft. He appealed asking the court to find him guilty but insane. The appeal was dismissed as the court found that he was able to give a fairly coherent account of what happened, suggesting that he knew what he was doing.  This rule has been criticized for being over-inclusive (Smith and Hogan, 13 Edn. (2009) 295). In England for example, this has been interpreted to include everyday illness like diabetes  Amnesia, Bipolar, Dementia, PTSD Insane delusions and insanity  Not covered under the Penal Code; applicable as a common law rule  This is an insane believe which cannot be eradicated from a person’s mind by reasoning with them.  The rule is, an accused person suffering from insane delusions must be treated as being in the same position of responsibility as if the facts with respect to which the delusion exists were real. The defence would be available, for example, in a case where a person is deluded into thinking that another is attacking them to kill them, and he kills that other person in purported self-defense. In such a case, if the facts are believed as he believed them, he would be justified in killing in a reasonable self-defense  Rex v Gerevazi s/o Lutabingwa (1952) 9 EACA 56. The accused murdered his mistress and raised the defense that he was suffering from a delusion that she was committing adultery with other men. (class discussion)  The burden of proving insanity is on the accused and the standard of proof required is on a balance of probability. However, after the accused has proved the defence, the burden shifts on the prosecution to disapprove the defence beyond reasonable doubt Finding guilty but insane  This is where the accused successfully proves the defence of insanity but the prosecution proves actus reus, then a finding of guilty but insane is entered.  Following such finding, the accused is detained during the pleasure of the president – which period of time is indefinite  Constitution Section? 3. Intoxication 13. (1) Save as provided in this section, intoxication shall not constitute a defence to any criminal 36 22 0 charge. (2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and - (a) the state of intoxication was caused without his 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. (3) Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused shall be discharged, and in a case falling under paragraph (b) the provisions of this Code and of the Criminal Procedure Code relating to insanity shall apply.  (4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.  (4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.  Section 13 P.C- As a general rule, intoxication is no defence DPP V Majewski (1977) AC 443 per Lord Elwyn-Jones; Intoxication ‘in order to escape from reality, to go on a trip, to become hallucinated’ is recklessness enough in itself to provide mens rea  The law recognizes 3 instances under which intoxication can be said to be a defence: 1. Involuntary intoxication  R v Kingston (1994) 99 Cr App R 286: involuntary intoxication is not a defence unless there is complete lack of mens rea in the defendant. 2. Intoxication amounting to insanity 3. Intoxication negating intension 4. Infancy  Section 14 (1) of the Penal Code creates an irrebuttable presumption that a child under 8 years can never be held responsible for any criminal offence.  Section 14 (2) creates a rebuttable presumption that a child under 12 years is not criminally responsible unless it is proven that the child had the mental capacity to comprehend the criminal acts  Section 14 (3) creates an irrebutable presumption that a boy under the age of 12 years is incapable of having carnal knowledge. Thus this age group enjoys total immunity from crime of rape or defilement.  In Rex v Opiri s/o Meope and another EALR 90 a boy of 12 to 13 assisted another boy of over 14 years to rape a woman. It was held that the boy of 14 was capable physically to commit rape on a woman as he had reached the age of puberty. The other boy, though incapable of committing rape, he was himself guilty as an abetter for assisting his colleague. 5. Duress/ compulsion 37 22 0   An accused claim that he or she was compelled by another or others to commit the crime which they are being charged for  Provided for section 16 of the Penal Code which limits the application of the offence to the following circumstances: 1. The offence is committed by two or more offenders 2. The compulsion consists of threats to kill or cause grievous bodily harm to the person compelled if he refuses 3. The threat is applied through out the period of the commission of the offence- future threats not applicable 4. Not applicable to justify murder/ attempted murder  M’Kanyoro v R (1962) EA 110: the threats need not be articulate, they can be inferred from conduct and surrounding circumstances 5. Necessity  This is when an accused is confronted by two unpleasant alternatives and he reasonably believes that his acts or omission would avert a greater harm  Not expressly provided for under Kenyan law: section 240 Penal Code o