1.

Ignorance of the Law

Under section 6 of the Penal Code, ignorance of the law does not afford 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. This is expressed in Latin as Ignorantia juris
non excusat. This implies that the defence of not knowing the law is not allowed or applicable.

The rationale behind the doctrine is that if ignorance were an excuse, persons charged with criminal
offenses, they would merely claim they were unaware of the law in question to avoid liability. The
best justification for this strict rule however is expediency. It would otherwise be very difficult to
prove that an accused person in every case knew the law he violated. The qualification to the rule
that ‘unless knowledge of the law by the offender is expressly declared to be an element of the
offence’ is unimportant as there is no offence in the code or elsewhere which states knowledge of
the law as an element of the offence.

Thus, the law imputes knowledge of all laws to all persons within the jurisdiction no matter how
transiently. Even though it would be impossible, even for someone with substantial legal training,
to be aware of every law in operation in every aspect of a state's activities, this is the price paid to
ensure that willful blindness cannot become the basis of exculpation.

In an old English case of R.V Bailey,1 a sailor was convicted of contravening an Act of Parliament
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 its commitment could reach him.

In Musa & Ors. v. R,2 a Member of Parliament gave a public speech in his constituency, in which
he allegedly told the audience that the remedy for cattle theft which was common in the area was
to raise an alarm whenever such a theft occurred, track down the thieves and kill them and that in
the event people killed in a group they were acquitted in court, or no action was taken against them
by the government.

1
1800 R.& R.1
2
[1970] E.A 42 (CA)
The brief material facts of this case point to the fact that as a result of this speech, an alarm-group
which was formed after the next cattle theft, searched out and killed various individuals thought
to be the thieves. Fourteen of the accused people were convicted of murder.

On appeal to the Court of Appeal for East Africa, it was argued on behalf of those convicted that
the killing was a result of the effect of the Member of Parliament’s speech which created such
intention in the minds of the appellants, who were entitled to kill cattle thieves, because in effect
the government had sanctioned it.

However, the Court of Appeal did not take on board this argument and rejected it altogether,
holding that the state of things referred to must be a factual state and that a speech by a Member
of Parliament asserting incorrectly that the law had been changed so that people could now kill
cattle thieves would not result in a mistake of fact but in a mistake of law which was no excuse for
a crime.

Similarly, misunderstanding the law is not a defence. In R v Reid (Philip),3 a constable saw the
accused driving a car without a tax disc displayed on the windscreen. He stopped the accused and
questioned him about it. The constable noticed that the accused’s breath smelt of drink. The
constable asked the accused to provide a specimen of breath. The accused refused to provide a
specimen stating that the constable had no power to administer a breath test except after an
accident, where there had been a moving traffic offence or where the constable had reasonable
cause to believe from the manner of his driving that the driver had been drinking. The accused
was arrested and charged with and convicted of failing, without reasonable excuse, to provide a
specimen for a laboratory test, contrary to section 3(3) of the Road Safety Act 1967 (of U.K). He
appealed contending, inter alia, that he had a reasonable excuse for failing to provide the specimen.
The Court of Appeal held that the fact that the accused mistakenly believed that he was not legally
obliged to provide a specimen did not constitute a 'reasonable excuse' for refusing to do so.

Read Mangai v. R [1965] E.A 667

When does the law come to the knowledge of the person?

3
[1973] 3 All ER 1020.
Under article 28 (12) of the Constitution of Uganda, all criminal offences must be written down
and their punishment specified.

2. Claim of Right

According to Section 7 of the Penal Code, a person is not criminally responsible in respect of an
offence relating to property if the act done or omitted to be done by the person with respect to the
property was done in the exercise of an honest claim of right and without intention to defraud.
Bonafide claim of right is closely related to the defence of mistake of fact only that in this case,
the accused is only mistaken in his belief that he is entitled to claim some property. It is a defence
in a charge relating to an offence relating to property.

The accused has to show that he was acting with respect to any property in exercise of an honest
claim of right and without intention to defraud e.g. a person seizes the complainant’s property in
order to enforce payment of the debt. In Francisco Sewava v. Uganda,4 the appellant was acquitted
on appeal when he had been convicted of stealing doors and roofing materials that he claimed as
his and which claim he had put forward at his trial at his trial. It was held that however unfound
the claim might be, the appellant should not have been convicted.

3. The Defence of Accident

The defence of accident arises from section 8 of the Penal Code Act which provides that a person
is not criminally responsible for an act or omission which occurs independently of the exercise of
his or her will or for an event which occurs by accident. An event occurs by accident if it is an
outcome which was not intended or foreseen by the accused and would not reasonably have been
foreseen by an ordinary person. In other words, death may result from a deliberate act, such as a
punch, but could be such an unlikely consequence of that act, that an ordinary person could not
reasonably have foreseen that death would result. An accused that relies on this defence only has
to raise a reasonable probability of its existence. Then the prosecution must prove, beyond
reasonable doubt that the death was not accidental.

4
MB 60/66
In Quninto Etum v. Uganda5 the Supreme Court held that a person could not be held criminally
liable for an act or omission carried out accidentally. However, a person accused may not be
exonerated from criminal liability if the accident was caused by negligence on his part.

An example of an accident is where A shoots a target on a rifle range but fires too high and the
bullet kills B out of sight behind the target, A is not responsible for the death of B, for the death is
an accident.

In Regina v Palmer (1990) 12 Cr App R(S) 585, in the course of an argument with his wife the
appellant fetched a knife from the kitchen to frighten her; the argument turned into a fight in the
course of which his wife received a fatal stab wound. The appellant claimed that the wound was
inflicted accidentally, without any intent to kill or cause grievous bodily harm. The jury rejected
the defence of accident but found that the appellant was guilty of manslaughter rather than
murder because his intention did not extend to an intent to cause death or really serious bodily
harm.

In the Queen v Kuzmack, [1955] S.C.R. 292, the respondent was convicted of the murder of a
woman. He and the deceased were alone in a house when the occurrence took place. His defence
was accident or self-defence in a struggle over a knife said by the respondent to have been in the
hand of the victim. Apart from his evidence, there was nothing to show the particulars of what
took place. There was evidence that the respondent and the deceased had agreed upon marriage
and that there had been prior dissension between them over the mode of life led by the deceased.
Shortly before the fatal act, they were heard quarrelling. The Supreme Court of Canada held that
the circumstances were sufficient to call for the trial judge to charge the jury with respect to
manslaughter. If the jury concluded upon the evidence that the homicide was culpable, it was
necessary for them to decide as a fact, with what intent the respondent had inflicted the fatal
wound. If they had a reasonable doubt that he possessed the intent required, the prisoner must be
given the benefit of that doubt, and the jury should then consider the offence of manslaughter.
It emerges from those decisions that the threshold for considering the defence of accident must
be evidence sufficient to permit a reasonable inference that the accused did not in fact foresee the

5
S.C.Cr. No. 19/1989
consequences of his or her act. The ultimate issue is whether the court is satisfied beyond a
reasonable doubt that the accused actually intended the consequence of his or her act, whether
the accused, at the time of the offence, actually foresaw the natural consequences of his or her
act, i.e., the death of the victim. The essence of his defence of accident is that, notwithstanding
that the act of hitting the deceased was willed and deliberate, the fatal consequences of the act
were by reason of the fight unforeseen by the accused, and hence he lacked the subjective
foresight of death required for the offence of murder. The question in this case then is whether
there is sufficient evidence to permit a reasonable inference that the accused might not have
known that hitting the deceased with such force as he did on the neck was likely to result in her
death. If there is, then if the court entertains a reasonable doubt about this element of the offence
and it must acquit the accused of murder and find him guilty of the minor and cognate offence of
manslaughter instead.

4. Mistake of Fact

Mistake of fact generally refers to a mistaken understanding by someone as to the facts of a

situation— the mistake results in the person committing a crime. A mistake of fact may mean
that, while a person has committed the physical element of an offence, because s/he was
labouring under a mistake of fact, s/he never formed the required mens rea, and so will escape
liability for offences that require mens rea.

Under section 9 of the Penal Code, a person who does or omits to do an act under an honest and
reasonable, but mistaken, belief in the existence of any state of things is not criminally
responsible for the act or omission to any greater extent than if the real state of things had been
such as he or she believed to exist. The operation of this section may be excluded by the
express or implied provisions of the law relating to the subject.

This in short means that when the accused committed the unlawful act, he was mistaken as to a
certain material fact or facts which negative mens rea. It must however not be a mistake of law or
the consequences of the act.
Read Leosoni Alias S/o Matheo v R [1961] E.A 364
The defence of mistake of facts applies to matters of fact and not law as mistake of law affords no
defence to criminal liability. The defence of mistake of fact to succeed the person raising it must
prove that the mistake of fact was of such a character that had the supposed circumstances been
real, they would have prevented the alleged liability from attaching to the person for doing what
he did. The accused cannot be excused from liability if his conduct would still have been criminal
and his mistaken belief been true.

It is important to note that the mistake must be bonafide. Also the test of a reasonable man must
be applied. This test depends on the circumstances of the case. The standard of reasonableness
varies with the circumstances of the accused. A mistake done by a village boy cannot be like a
mistake of a boy who has grown up from town.

Characteristics of a reasonable person

 A reasonable man behaves rationally, thinks first and then acts;
 He has sound judgment;
 He acts according to the standard appropriate to the circumstances of the situation
 He is of average standing;
He acts customarily i.e. like other members of the community

In R v. Sultan Maginga,6 The deceased and a woman were lying in a rice field at night after
having sexual intercourse. The accused, on his way to guard his shamba against the incursions of
wild pigs, saw a movement in the grass and shone his torch in that direction, but the batteries
were weak, and he could see little. He called out, asking whether it was an animal or people.
There was no reply. The couple then ran off in different directions. The accused threw his spear
at one of the shadow, hitting and fatally wounding the deceased. The accused was charged with
murder.

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

6
[1967] HCB 33
Manslaughter could not be proved as the evidence did not show the requisite degree of
recklessness. Although it was common knowledge in Rufiji that many couples go off into the
bush at night and in the day for lovemaking, and the accused must have known this, he was
absolved from recklessness because he called out, asking whether the object was human or not.
Since he got no reply, he may will have thought it was a pig. Accused not guilty of any offence.
The killing was an accident.

However, if no mens rea is required with regard to one element of the actus reus then even an
honest and reasonable mistake with regard to that element will not negative liability. For example,
in the case of R v Prince,7 the accused ran off with an under-age girl. He was charged with an
offence of taking a girl under the age of 16 out of the possession of her parents contrary to section
55 of the Offences Against the Person Act 1861 (of UK). The accused knew that the girl was in
the custody of her father but he believed on reasonable grounds that the girl was aged 18. It was
held that knowledge that the girl was under the age of 16 was not required in order to establish the
offence. It was sufficient to show that the accused intended to take the girl out of the possession
of her father.

Burden of Proof and Mistake of Fact

If a person raised the defence of mistake of fact, it is upon him to adduce sufficient evidence to
satisfy the court that he had a mistake in looking at the facts. If he adduces this evidence, the case
will proceed as if the facts were true. The facts adduced must convince court that he honestly and
reasonably believed the facts to be true.

5. The Defence of Necessity

Necessity may be a defence where the accused is confronted with a choice of evils and he
reasonably believes that some harm is inevitable and that he believes that his act or omission would
avert a greater harm. It is a common law defence where a man is compelled by physical force to
go through the motions of an actus reus without any choice on his part.

7
(1875) LR 2 CCR 154.
Necessity may be a defence under the following circumstances:
 Where a person is confronted with a choice of evil and breaking the law and a person has to
choose between two courses; either to break the law or save property or life;
 Where a person reasonably believes that some harm is inevitable;
 And he or she reasonably believes that his act or omission would avert greater harm.

Necessity provides no defence where an innocent person is killed or injured by the accused to
prevent harm to himself. In the case of R v Bourne a reputable London surgeon performed the
operation of abortion upon a girl, not quite fifteen years of age who was pregnant as a result of
rape by a soldier. The burden was on the prosecution to prove that the accused was not acting in
good faith to preserve the life of the mother. The accused was acquitted and it was stated that this
was to be regarded as a case of necessity in that the surgeon faced with the choice of taking the
life of the unborn child or of preserving the physical and mental health of its mother decided to
destroy the life not yet in existence. In this connection, the penal code provides that a person is not
criminally responsible for performing in good faith and with reasonable care and skill a surgical
operation upon any person for his benefit, or upon an unborn child for the preservation of the
mother’s life, if the performance of the operation is reasonably, having regard to the patient’s state
at the time, and to all circumstances of the case..

But where it is a case of one man’s life or another’s the law has not conceded the right to destroy
a life in the interests of self-preservation. Therefore necessity doesn’t justify murder

In the case of R v Dudley and Stephens;8 Three men and a boy of the crew of a yacht were
shipwrecked and had to take to an open boat. After 18 days in the boat, having been without food
for eight days and without water for six days, the two accused suggested to the other man that they
should kill the boy and eat his body. The other man declined to fall in with this plan but two days
later, the accused killed the boy who was now in a very weak condition. And unable to resist but
didn’t assent to being killed. The three men then fed on the boy’s body and blood for four days,

8
(1884) 14 Q.B.D
when they were picked up by a passing vessel and rescued. The jury found that the accused would
not have survived if they had not acted as they did. They found that the men would probably have
died within the four days had they not fed on the boy’s body and that the boy would have probably
died before them, and that at the time of killing, there was no appreciable chance of saving life
except by killing one for others to eat.

The court found that the defence of necessity should not be afforded in such cases. They thought
first that it would be too great a departure from morality and secondly that the principle would be
dangerous because of the difficulty of measuring necessity and of selecting the victim. The seamen
were convicted of murder but the death sentence was later commuted to six months imprisonment.

Killing one that others may live will not afford the accused the defence of necessity. The killing
of one to save the lives of others cannot be justified or excused.

At the inquest into the deaths caused in the Zeebrugge disaster of 1987. Evidence was given that
one man a corporal in the army and a number of other people apparently dozens of them were in
the water and in danger of drowning, but they were near the foot of a rope ladder up which they
could climb to safety. On the ladder petrified with cold or fear or both was a young man unable to
move up or down. No one could get passed him. The corporal shouted at him for 10 minutes with
no effect. Eventually he instructed someone else who was nearer to the young man to push him off
the ladder. The young man was then pushed off the ladder and he fell into the water and as far as
is known was never seen again. The corporal and others were then able to climb up the ladder to
safety.

The question is whether the corporal and the other men could raise the defence of necessity against
the charge of murder and whether the man who pushed him off the ladder could raise the defence
of superior orders.

The killing of the man was neither justifiable nor excusable. But because there was no proof that
the man was in fact killed, a conviction of murder could not stand. There must be clear proof that
a person was in fact killed. The killing of one to save the lives of others cannot be justified or even
excused.

Necessity will provide a defence where an actus reus is done to save life. In the case of F V West
Berkshire Authority F, a female patient in a mental hospital aged 36, suffered from a very serious
mental disability. F had formed a sexual relationship with a male patient. Medical evidence was
that from a psychiatric point of view, it would be disastrous if she became pregnant. There were
serious objections to all ordinary methods of contraception. She was incapable of giving consent
to a sterilisation operation. Her mother acting as her next of kin obtained a declaration that the
absence of her consent would not make sterilisation an unlawful act.

The house of Lords held that the operation was lawful because it was in the best interests of the
patient. It was necessary to save her life.

In the case of Bodkin Adams9, Devlin J directed the jury that there is no special defence justifying
a doctor in giving drugs which shorten life in the case of severe pain. He went on to say that if life
were cut short by weeks or months, it would be just as much murder as if it were cut short by years.
In September 1992 Dr. Nigel Cox was convicted of attempted murder after he had administered
potassium chloride to a patient B, a 70 year old woman in order to terminate the great pain from
which she was suffering. B died within five minutes of the injection. She had pleaded with Dr.
Nigel to end her life. He was not charged with murder because it was no longer possible to prove
the actual cause of death.

An example is where a master of a ship makes an illegal entry into a port as a result of a storm,
this is necessary for the preservation of the vessel, the cargo and those on board; or where a driver
breaks the law on speed limit to take an injured person to the hospital. In R v Willer,10 the accused
had driven recklessly to escape from a crowd of youths who appeared to have intent to cause
physical harm to the passengers in his car; in R v Conway,11 the accused had driven recklessly to

9
[1957] CRIM LR 365
10
(1986) 83 Cr App R 225
11
[1988] 3 All ER 1025
protect his passenger from what he had honestly believed was an assassination attempt. In both
cases, the Court of Appeal ruled that the accused should have been permitted to put the defence of
necessity before the jury, given the apparent threat of death or bodily harm created by the
circumstances.

In R v Bourne,12 the accused gynaecologist performed an abortion on a young girl who had been
raped. He had formed the opinion that she could die if permitted to give birth. The accused was
found not guilty of "unlawfully procuring a miscarriage" following a direction from the trial judge
to the jury that the accused did not act "unlawfully" for the purposes of section 58 of the Offences
Against the Person Act 1861 (of UK) , where he acted in good faith, in the exercise of his clinical
judgment.

The generally accepted position however is that necessity cannot be a defence to all criminal
charges. The court has to consider the circumstances of the case including the gravity of the threat
posed and the available options to the accused. The leading case is R v Dudley and Stephens.13
The accused and a boy were cast adrift in a boat following a shipwreck. The accused agreed that
as the boy was already weak and looked likely to die soon, they would kill him and eat him for as
long as they could, in the hope that they would be rescued before they themselves died of
starvation. A few days after the killing they were rescued and then charged with murder. The
judges of the Queen's Bench Division held that the accused s were guilty of murder in killing the
boy and stated that their obvious necessity was no defence. The accused were sentenced to death,
but this was commuted to six months' imprisonment.

Lord Coleridge CJ, having referred to Sir Matthew Hale's assertion (The History of the Pleas of
the Crown, 1736) that a man was not to be acquitted of theft of food on account of his extreme
hunger, doubted that the defence of necessity could ever be extended to a accused who killed
another to save his own life. After referring to the Christian aspect of actually giving up one's own
life to save others, rather than taking another's life to save one's own, he referred to the
impossibility of choosing between the value of one person's life and another's.

12
[1939] 1 KB 687, [1938] 3 All ER 615.
13
(1884) 14 QBD 273
The principles to guide the court in deciding whether the defence of necessity is to succeed were
stated in the case of R v Martin.14 In this case, the accused had driven his stepson to work although
he was disqualified from driving. He claimed that he had done this because his wife had threatened
to commit suicide unless he did so, as the boy was in danger of losing his job if he was late. The
wife had suicidal tendencies and a doctor stated that it was likely that she would have carried out
her threat. The Court of Appeal allowed the accused's appeal against his conviction. Simon-Brown
J stated that the principles may be summarized thus:

‘First, English law does in extreme circumstances recognise a defence of necessity. It can arise
from objective dangers threatening the accused or others in which case it is conveniently called
"duress of circumstances".

Secondly, the defence is available only if, from an objective standpoint, the accused can be said to
be acting reasonably and proportionately in order to avoid a threat of death or serious injury.

Thirdly, assuming the defence to be open to the accused on his account of the facts, the issue
should be left to the jury, who should be directed to determine these two questions: (1) Was the
accused, or may he have been, impelled to act as he did because as a result of what he reasonably
believed to be the situation he had good cause to fear that otherwise death or serious injury would
result? (2) If so, may a sober person of reasonable firmness, sharing the characteristics of the
accused, have responded to that situation by acting as the accused acted? If the answer to both
these questions was yes, then the jury would acquit: the defence of necessity would have been
established.’

6. Compulsion/ Duress
In criminal law the defence of duress takes two different forms:
Duress by Threat
The defence of duress by threat was set out in A-G v Whelan [1993] IEHC 1 as arising in
circumstances where the defendant was ordered to commit an offence whilst subject to threats of

14
[1989] 1 All ER 652
immediate death or serious personal violence so great as to overbear the ordinary powers of human
resistance.

Duress by Circumstance
Duress applies as a defence where a person commits a crime as a response to a threat of death or
serious injury either to themselves or another.

Duress of circumstances arises where it is not a person that provides a threat to the defendant but
the nature of the situation. It might be that another person creates the threatening situation but
unlike duress by threat there is no requirement that a person specifies to the defendant that a crime
must be committed, so long as there is a sufficient link between the situation and the crime.

Elements of the Defence

The defence applies similarly in relation to both duress by threat and duress of circumstances and
both are governed by the same criteria. Accordingly, most of the cases are authority for both forms
of the defence.

The defence was set out in R v Graham [1982] 1 All ER 801. It set out two elements to the defence:
a subjective element and an objective element. These are:

Was the defendant or might the defendant have been induced to act as he did because he feared
that if he did not, death or serious injury would result to him, an immediate relative or someone he
is responsible for?
Would a sober person of reasonable firmness, sharing the defendant’s characteristics have acted
in the situation in the way as he did?
If these elements can be shown then the following must also be shown for the defence to succeed:

Duress may form a defence to all offences which may be heard summarily. However, the exact
scope of this defence is not clearly defined in law. This defence covers the situation where a
person is threatened by another with death or grievous bodily harm if they do not undertake a
criminal act. For example, where an accused claims that another person threatened to seriously
harm them unless they stole a digital camera for them. The fact that the accused believes that a
threat of death or grievous bodily harm will be carried out if they do not commit the offence is
not of itself sufficient if a person ‘of reasonable firmness’ sharing the characteristics of the
accused would not have given way to the threats. Whether this defence is available will depend
entirely upon the individual circumstances of the case including, in particular, whether the
person belongs to a group of persons less able to resist pressure (e.g. youth, physical disability,
mental impairment, including post-traumatic stress).

The general nature of the defence of compulsion or duress is that the accused was forced by
someone else to break the law under an immediate threat of serious harm befalling himself or
someone else, i.e. he would not have committed the offence but for the threat. Duress is a defence
because "… threats of immediate death or serious personal violence so great as to overbear the
ordinary powers of human resistance should be accepted as a justification for acts which would
otherwise be criminal."15

According to section 14 of the Penal Code, a person is not criminally responsible for an offence if
it is committed by two or more offenders and if the act is done or omitted only because during the
whole of the time in which it is being done or omitted the person is compelled to do or omit to do
the act by threats on the part of the other offender or offenders instantly to kill him or her or do
him or her grievous bodily harm if he or she refuses; but threats of future injury do not excuse any
offence.

S. 17 of the Penal Code Compulsion by husband: a married woman is not free from criminal
responsibility for doing or omitting to do an act merely because the act or omission takes place in
the presence of her husband; but on a charge against a wife for any offence other than treason or
murder, it shall be a good defence to prove that the offence was committed in the presence of,
and under the coercion of, the husband.

The following elements must be considered.

15
Attorney-General v Whelan [1934] IR 518, per Murnaghan J (Irish CCA)
 (a) Compulsion by threats

A person who commits an offence under compulsion by threats of immediate death or bodily
harm from a person who is present when the offence is committed is excused for committing the
offence if the person believes that the threats will be carried out and if the person is not a party to
a conspiracy or association whereby the person is subject to compulsion, but this section does not
apply where the offence that is committed is high treason or treason, murder, piracy, attempted
murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily
harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a
weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an
offence under sections 280 to 283 (abduction and detention of young persons).

The requirements of s.17 to have “presence” and “immediacy” is unconstitutional for violating
s.7.[1] Thus, that portion of the section has no force or effect. The listed excluded offences have
been found to be unconstitutional and so must be read out of the language of s. 17. That includes
robbery

The defence must be based on threats to kill or do serious bodily harm. If the threats are less terrible
they should be matters of mitigation only. For example, in R v Singh,16 the Court of Appeal held
that a threat to expose the accused's adultery would not be sufficient grounds to plead duress. In
DPP for N. Ireland v Lynch,17 Lord Simon stated obiter, that the law would not regard threats to
a person's property as a sufficient basis for the defence.

It is generally accepted that threats of violence to the accused's family would suffice, and in the
Australian case of R v Hurley,18 the Supreme Court of Victoria allowed the defence when the
threats had been made towards the accused's girlfriend with whom he was living at the time.

The threats must be directed at the commission of a particular offence. In R v Coles,19 the accused
was charged with committing a number of robberies at building societies. At his trial he sought to

16
[1973] 1 All ER 122
17
[1975] AC 653
18
[1967] VR 526
19
[1994] Crim LR 582
adduce evidence that he had acted under duress. The basis for the defence was that he had owed
money to money-lenders who had threatened him, his girlfriend, and their child with violence if
the money was not repaid. The trial judge ruled that the facts did not give rise to the defence as the
threats had not been directed at the commission of a particular offence, but to the repayment of the
debt. The accused's appeal against conviction was dismissed. It was held that the defence of duress
by threats was only made out where the threatener nominated the crime to be committed by the
accused. In the present case the threatener had indicated that he wanted the accused to repay the
debt, an action that, if carried out, would not necessarily involve the commission of an offence.

(b) The Test for Duress

The two-stage test for duress is contained in R v Graham.20 In this case, the accused (G) lived in
a flat with his wife and his homosexual lover, K. G was taking drugs for anxiety, which made him
more susceptible to bullying. K was a violent man and was jealous of the wife. One night after G
and K had been drinking heavily, K put a flex round the wife's neck, pulled it tight and then told
G to take hold of the other end of the flex and pull on it. G did so for about a minute and the wife
was killed. Both were charged with murder. The accused pleaded not guilty and said that he had
complied with K's demand to pull on the flex only because of his fear of K. The judge directed the
jury on the defence of duress but the accused was convicted. The Court of Appeal, in confirming
the conviction, laid down the model direction to be given to a jury where the defence of duress
was raised. This was subsequently approved by the House of Lords in R v Howe.21 The jury should
consider: (1) Whether or not the accused was compelled to act as he did because, on the basis of
the circumstances as he honestly believed them to be, he thought his life was in immediate danger.
(Subjective test)
(2) Would a sober person of reasonable firmness sharing the accused's characteristics have
responded in the same way to the threats? (Objective test)

The jury should be directed to disregard any evidence of the accused's intoxicated state when
assessing whether he acted under duress, although he may be permitted to raise intoxication as a
separate defence in its own right.

20
[1982] 1 WLR 294.
21
[1987] AC 417
(c) Immediacy
The threat must be "immediate" or "imminent" in the sense that it is operating upon the accused at
the time that the crime was committed. If a person under duress is able to resort to the protection
of the law, he must do so. When the threat has been withdrawn or becomes ineffective, the person
must desist from committing the crime as soon as he reasonably can. As Lord Morris said in DPP
for N. Ireland v Lynch,22 the question is whether a person the subject of duress could reasonably
have extricated himself or could have sought protection or had what has been called a 'safe avenue
of escape'.

What is the position if the accused has an opportunity to seek help but fears that police
protection will be ineffective?

In R v Hudson and Taylor,23 two teenage girls committed perjury during the trial of X. They
claimed that X's gang had threatened them with harm if they told the truth and that one of them
was sitting in the public gallery during the trial. The accused were convicted of perjury following
the trial judge's direction to the jury that the defence of duress was not available because the threat
was not sufficiently immediate. Allowing the appeals, Lord Widgery CJ stated:

The threat was no less compelling because it could not be carried out there if it could be carried
out in the streets of the town the same night. The rule does not distinguish cases in which the police
would be able to provide effective protection, from those when they would not. And that the matter
should have been left to the jury with a direction that, whilst it was always open to the crown to
shown that the accused had not availed themselves of some opportunity to neutralize the threats,
and that this might negate the immediacy of the threat, regard had to be had to the age and
circumstances of the accused.

22
[1975] AC 653
23
[1971] 2 QB 202
(d) Limitations of the defence of mistake
Duress is considered to be a general defence in criminal law, but there are a number of offences in
relation to which duress cannot be raised as a defence:

(i) Murder
Duress and murder is now governed by the House of Lords' decision in R v Howe and Others,24
in which it was held that duress would not be available to an accused who committed murder either
as principal or accomplice. In this case, two appellants, Howe and Bannister, participated with
others in torturing a man who was then strangled to death by one of the others. These events were
repeated on a second occasion but this time it was Howe and Bannister who themselves strangled
the victim to death. They claimed that they had acted under duress at the orders of and through
fear of Murray who, through acts of actual violence or threats of violence, had gained control of
each of the accused. The House of Lords dismissed their appeals against conviction. Lord
Hailsham LC made the following points:
 Hale's Pleas of the Crown (1736) and Blackstone's Commentaries on the Laws of England
(1857) both state that a man under duress ought rather to die himself than kill an innocent.
 If the appeal (and consequently the defence) were allowed the House would also have to say
that R v Dudley and Stephens was bad law (which it was not prepared to do). A person cannot
be excused from the one type of pressure on his will (ie, duress) rather than the other (i.e.,
necessity).
 In the present case, the overriding objects of the criminal law must be to protect innocent lives
and to set a standard of conduct which ordinary men and women are expected to observe if
they are to avoid criminal responsibility.
 In the case where the choice is between the threat of death or serious injury and deliberately
taking an innocent life, a reasonable man might reflect that one innocent human life is at least
as valuable as his own or that of his loved one. In such a case a man cannot claim that he is
choosing the lesser of two evils. Instead he is embracing the cognate but morally disreputable
principle that the end justifies the means.

24
[1987] AC 417
 If a mandatory life sentence would be harsh on any particular offender there are effective
means of mitigating its effect - the trial judge may make no minimum recommendation, the
Parole Board will always consider a case of this kind, and the prerogative of mercy may be
used.

(ii) Attempted Murder

In R v Gotts,25 the accused, aged 16, seriously injured his mother with a knife. In his defence to a
charge of attempted murder he claimed that his father had threatened to shoot him unless he killed
his mother. The trial judge ruled that such evidence was inadmissible since duress was not a
defence to such a charge. The accused pleaded guilty and then appealed. The House of Lords held
that the defence of duress could not be raised where the charge was one of attempted murder. Lord
Jauncy stated:

The reason why duress has for so long been stated not to be available as a defence to a murder
charge is that the law regards the sanctity of human life and the protection thereof as of paramount
importance. Does that reason apply to attempted murder as well as to murder? As Lord Griffiths
pointed out [in Howe] … an intent to kill must be proved in the case of attempted murder but not
necessarily in the case of murder. Is there any logic in affording the defence to one who intends to
kill but fails and denying it to one who mistakenly kills intending only to injure?

It is of course true that withholding the defence in any circumstances will create some anomalies
but I would agree with Lord Griffiths (Reg. v Howe) that nothing should be done to undermine in
any way the highest duty of the law to protect the freedom and lives of those who live under it. I
can therefore see no justification in logic, morality or law in affording to an attempted murderer
the defence which is held from a murderer. The intent required of an attempted murderer is more
evil than that required of the murderer and the line which divides the two is seldom, if ever, of the
deliberate making of the criminal. A man shooting to kill but missing a vital organ by a hair's
breadth can justify his action no more than can the man who hits the organ. It is pure chance that
the attempted murderer is not a murderer. …"

25
[1992] 2 AC 412
 (iii) Burden of Proof
The accused bears the burden of introducing evidence of duress and it is then up to the prosecution
to prove beyond reasonable doubt that the accused was not acting under duress. If a defence is
established it will result in an acquittal.
Read Nasur Abdula v. Uganda MB 142/70

7. Immunity
This refers to the condition of being exempt from some liability. Instances of immunity include
the following:

7.1 Immunity (Official capacity)

Presidential immunity: The 1995 Constitution of Uganda states in Article 98(4) that while in
office the President shall not be liable to any proceedings in any court. This means the sitting
President cannot be arrested and tried for alleged offence.

7.2 Judicial immunity

This is enshrined in Article 128(4) of provides a person exercising judicial power shall not be
liable to any action or suit for any act or omission by that person in the exercise of judicial
Power. Section 13 of the Penal Code, it is provided that a judicial officer is not criminally
responsible for anything done or omitted to be done by him or her in the exercise of his or her
judicial functions, although the act done is in excess of his or her judicial authority or although
he or she is bound to do the act omitted to be done.

However, disciplining of judicial officers is covered under Articles 147 and 148 which deal with
the mandate of the Judicial Service Commission.
See Attorney General v Nakibuule Gladys Kisekka Constitutional Appeal No. 2/2016

7.3 Diplomatic immunity

Under the Diplomatic Privileges Act, diplomats in Uganda cannot be arrested and tried for any
offence they commit. However, the diplomat must have committed the offence in the course of
performing his duty. If he commits the offence while not on his duties, he can be declared be
declared a person non grata in which case he is given a period in which he should leave Uganda.

Those who are protected include ambassadors, high commissioners, heads of international
organisations and staff of embassies and international organisations. In case of a serious offence,
diplomatic immunity can be waived only by the accredited diplomatic agent of the country.

Under the defence of diplomatic immunity under international law, the states relinquish the
jurisdiction of their courts to entertain suits against diplomatic representatives of foreign states.
Diplomatic privileges and immunities under the Diplomatic Privileges Act, Cap 185 are
extended to the diplomatic agents, representatives, officials and employees of those
organisations. The Diplomatic Privileges Act domesticated certain provisions of the Vienna
Convention on Diplomatic Relations to confer immunity on diplomatic agents from criminal,
civil and administrative jurisdiction of the receiving state. Article 31 (1) of the Diplomatic
Privileges Act provides that a diplomatic agent shall enjoy immunity from criminal, civil and
administrative jurisdiction of the receiving state.

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

a) a real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
b) an action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State;

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

agent in the receiving State outside his official functions.

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

3. No measures of execution may be taken in respect of a diplomatic agent except in the
cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided
that the measures concerned can be taken without infringing the inviolability of his person or of
his residence.
4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not
exempt him from the jurisdiction of the sending State.

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

2. Waiver must always be express.

3. The initiation of proceedings by a diplomatic agent or by a person enjoying the immunity

from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction
in respect of any counter-claim directly connected with the principal claim.

4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings

shall not be held to imply waiver of immunity in respect of the execution of the judgment, for
which a separate waiver shall be necessary.”

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

The immunity conferred on international organisations by virtue of extension of immunity under

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

8. Superior Orders Or Obedience to Orders

As a general rule a person is not criminally responsible for an act or omission in obedience to an
order, which he is bound by law to obey, unless the order is manifestly unlawful. Obedience means
compliance with an authoritative command. In other words, obedience is a duty. In some
circumstances, obedience to orders of a superior may be relevant in negating mens rea.

A person who is bound to obey a superior is under a legal duty to refuse to carry out an order
received from that superior, to do some act or make some omission, if the order is manifestly
illegal. If the illegal order is carried out, an offence may be committed. Where the order is not
manifestly illegal, an accused will not be excused if they carried out the order and in doing so
commits an offence.

The International Criminal Court Act Cap 14. Section 19(1)(c) provides that ‘a person charged
with the offence may rely on any justification, excuse, or defence available under the laws of
Uganda or under international law’. The reference to international law is wider than the Rome
Statute. Under the Rome Statute, superior orders must not constitute a defense to the crimes
within the jurisdiction of the Court (ICC). Article 8 of the London Charter establishing the
Nuremberg International Military Tribunal explicitly prohibited the application of superior
orders as a defense, and this principle is by now well established in international law. The
judgments of the Nuremberg Tribunal considered the defense of superior orders where
circumstances were such that the subordinate was deemed to have had no moral choice or
alternative to carrying out the order. The specific exclusion of superior orders as a defense is also
expressed in international instruments such as the Convention against Torture and Other
Inhuman or Degrading Treatment or Punishment. The principle is reflected in Security Council
Resolution 955 (1994) establishing the International Criminal Tribunal for Rwanda. Consistent
with the approach developed since the Nuremberg Tribunal, such orders may be considered as a
mitigating factor in determining punishment, but do not exonerate criminal responsibility.
There is little authority as to how far superior orders excuse a man of criminal responsibility. The
defence of obedience to orders rarely affords any defence in English law.

In Keighly v Bell26 it was confirmed that the better opinion is that an officer or soldier acting under
the orders of his superior not being necessarily or manifestly illegal would be justified by his
orders. However if an officer or soldier unlawfully inflicts harm to another person, he can not plead
as a defence merely that he was acting under orders from his superior officer. Of course if the
orders are not obviously unlawful, the inferior officer may be able to raise a defence under some
general rule of law of superior orders.

If the public servant or inferior officer shows that he obeyed an unlawful order from his superior
under a reasonable but mistaken belief that they were lawful, he may be afforded the defence of
superior orders. The inferior officer must show that there was an obligation upon him to obey the
directions of his superior.

Persons in the navy, military or air force may find themselves in a difficult position if superior
orders are given to them to carry out something which seems contrary to the ordinary criminal law
of the land.

In the case of Uganda v Kadiri Matovu & Anor27 Karokora Ag J held: only lawful orders of
superior officers must be obeyed by inferior officers, therefore a servant would not be liable if he
committed a crime in obedience of a lawful order from his master.

Only lawful orders of superior officers can constitute part of a defence. A servant would not be
liable if he committed a crime in obedience of a lawful order of his master. In Uganda vs. Kadiri
Matovu [1983] HCB 27, a person has a duty to disobey an unlawful order.

26
(1866) 4 F & F
27
[1983] HCB 27
In Magayi v Uganda 28
Where an order is plainly unlawful, a person cannot shelter behind it to escape criminal
responsibility.

To what extent is a junior officer responsible for the unlawful act? If the order is obviously illegal,
is the junior officer protected?
This one depends on the order. Most examples include soldiers and policemen in cases of
suppressing riots. In Ededey v State,29 the appellant an acting chief superintendent of police of
police led the mobile police force which was under him on a wide spread assault and looting in
order to recoup himself of money stolen from his wife near the market. He was convicted of assault
and stealing. On appeal, he argued that his subordinate officers who took part in the raid and who
testified against him were accomplices whose evidence required corroboration. Rejecting the
appeal, it was held that it is wrong for the order to police officers to assault and plunder innocent
citizens whom they had a duty to protect. It was manifestly unlawful to assault them.

Insubordination disobeying lawful orders

S. 133 of the Uganda Peoples Defence Forces 330 provides that:

1) A person subject to military law who either wilfully or through neglect disobeys a lawful
order commits an offence and is, an on conviction, where it results in failure of operation or loss
of life, liable to suffer death or, in any other case, liable to life imprisonment.
2) For purposes of this section, disobeying lawful orders means─
a. Failing to carry out lawful orders;
b. Failing to communicate lawful orders;
c. Breaking lines of formation;
d. Taking unauthorised route while in operation;
e. Breaking off from the main operational group; or
f. Talking to unauthorised persons outside terms of reference while on operation.

28
[1965] E.A 667
29
[1972] 1 All NRL 15.