AN ANALYSIS OF THE LAW ON STRICT LIABILITY IN THE PURSUIT OF CRIMINAL JUSTICE IN UGANDA.

INTRODUCTION;

The Black’s Law Dictionary[1]defines substantive criminal law as that law which for the purpose of preventing harm to society, (a) declares what conduct is criminal, and (b) prescribes the punishment to be imposed for such conduct. It includes the definition of specific offenses and general principles of liability. Substantive criminal laws are commonly codified into criminal or penal codes.

This therefore implies that liability is a quality or state of being legally obligated or accountable for; It is a legal responsibility to another or to society according to Bryan a Garner[2]. In the context of criminal law, liability is the responsibility for a criminal action that is satisfied by the sufferance of a penalty by the wrongdoer.

A person who does a culpable (wrong) act is generally criminally liable for that act. Therefore, as a consequence of the wrong act, a prosecution is carried out against them. This prosecution happens because the person is liable (held accountable for) the wrong act they have done.

In Uganda, one can only be liable for Offences that are codified[3] with the exception of Contempt of court. The law that sanctions criminal actions in Uganda is the Penal Code Act[4]. This is an act to establish the Code of criminal law as it is written in the headnote of the statute.

In General, liability for criminal actions shall be satisfied after the proof beyond reasonable doubt that the wrong doer not only did the act, but also had a blameworthy mind[5]. This general rule is a common law presumption that has been passed to Uganda from England. It is expressed in the latin maxim, “actus non facit reum, nisi mens sit rea.” Technically, the act (actual commission of the offense) is called the Actus Reus while the blameworthy mind is called the (mens rea).

The two technical terms are broader than they seem, but in summary (for lay man), The actus reus in criminal law can be an action, an omission (a failure to act) or an existing state of culpable circumstances[6] that are not sufficient to fit in either the act or omission bracket. Mens rea refers to a blame worthy mind. A mind can be blame worthy if an act was committed with an intention to cause the result suffered, if an act is committed with an indifference towards the possible result suffered (negligence) or where the wrong doer commits an act that any reasonable man would expect to result into a crime (recklessness).

EXECUTIVE SUMMARY

STRICT LIABILITY;

In law, very many concepts and principles have open ends, this is what makes them to seem abstract, this is what makes litigation a contest/debate.

As a 2nd, year student of law school my viewpoint is that, there has been a recurring standard in every general rule of common law we have looked at. I am tempted to say that in law, every general rule has an exception.

The rule on the imposition of criminal liability is that the wrong doers act (actus reus) and mind (mens rea) must be evaluated to a degree that convinces court beyond reasonable doubt that the accused is guilty.

The concept of Strict liability is one of the exceptions to this common law presumption and it is the reason for this paper. Strict liability is criminal responsibility for a criminal act that is done without a guilty intention. For those offenses that are said to be of strict liability, mens rea is not required in respect of at least one aspect of the actus reus

HISTORICAL CONSIDERATION;

To fully appreciate strict liability today, it is prudent to evaluate the position of the Common law of England on the matter.

Over the years, the concept has been discussed, criticized and structured to suit the spirit of the law. It could be suggested that making a defendant liable especially for criminal actions that are sanctioned by penalties when they have no guilty/blameworthy state of mind could have harsh results. As such therefore, courts are really reluctant to impose liability if the defendant can not be shown to have had a blameworthy mind.

According to Jacqueline Martin and Toney Story in their book Unlocking Criminal law[7], The first known instance of the operation of strict liability dates as far back as 1846, “in the middle of the 19th century”.

It was in Woodrow (1846)[8] where the defendant was convicted of having in his possession adulterated tobacco, even though he did not know that it was adulterated. The judge, Parker B, ruled that he was guilty even if a ‘nice chemical analysis’ was needed to discover that the tobacco was adulterated.

In that case, Woodrow 1846, we witness that an individual, was held criminally responsible after he perpetrated a prohibited act even though he did not have it in his conscience that what he was doing was wrong. In 1846, for the first time, Court in England found an individual guilty simply because they had done a prohibited act.

THE POSITION OF THE LAW TODAY.

Offences of strict liability are creatures of statute. This is because in as much as there is a presumption that all criminal liability requires a certain degree of fault/guilty intention/ mens rea, (actus non facit reum nisi mens sit rea); The supremacy of parliament as far as legislation is concerned[9] empowers the law makers to impose liability for particular acts even without fault.

In this case, words of the statue are enacted expressly excluding proof of mens rea for a conviction. The code that governs criminal law in Uganda is the Penal Code Act , In Section 8(1), the code discusses intention and motive (mens rea) bringing out the idea that unless it is expressed in the statute, there is no liability for acts done in the absence of will(mens rea).

With reference to the penal code of Uganda, a general observation is that most Offences are silent as to whether or not they require any mens rea for a conviction

A great illustration of this is the offence of Defilement created by Section 129. It reads;

“Any person who performs a sexual act with someone who is below the

age of eighteen years commits an offence and is on conviction liable to

Life imprisonment”

From the illustration, there is no express statement to show whether or not defilement requires any mens rea. However, with practically, defilement is a strict liability offence despite the silence of the act. In Uganda v Edroma Pascal, Justice Stephen Mubiru ruled that for defilement (aggravated) mistake as to the age of the victim shall not be enough to exonerate an accused because defilement (aggravated) was a strict liability offence.

Other examples of offences that fall under strict Liability in Uganda include inter alia,` offences in the Traffic and Road Safety Act 1998, The Pharmacy And Drugs Act, cap 280, The Food And Drugs (Food Fortification) Regulations, 2005, The Narcotic Drugs and Psychotropic Substances (Control) Act, No. 3 of 2016. The Firearms Act. Cap 299 among others.

Silence of a the statute creates a legal conundrum. Generally, it should be noted that even in silence of a statute, there is a common law presumption in favour of the requirement for mens rea. This presumption and how it can be rebutted(defeated) was discussed extensively and conclusively by several Lords in the case of Sweet v Parsley[10]

CASE DEVELOPMENT ON THE LAW OF STRICT LIABILITY.

The locus case that developed the law on criminal strict liability, is a long decided case of Sweet v Parsley (1969) 1 All ER 347 and the background of the case, Extracted (as is) from Sourcebook on Criminal law

“The wording of S5 of the Dangerous Drugs Act 1965, is as follows: If a person:

(a) being the occupier of any premises, permits those premises to be used for the purpose of smoking cannabis or cannabis resin or of dealing in cannabis resin (whether by sale or otherwise); or (b) is concerned in the management of any premises used for any such purpose as aforesaid, he shall be guilty of an offence against this Act”

Facts in Brief

Defendant rented a farmhouse and let it out to students. The police found cannabis at the farmhouse, and the defendant was charged with ‘being concerned in the management of

premises used for the purpose of smoking cannabis resin’. However, The defendant did not know that cannabis was being smoked there.

LEGAL ISSUE.

Whether or not the offence was one of strict liability making the defendant liable.

Judgement of lord Reid;

“there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that, whenever a section is silent as to mens rea, there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea it is firmly established by a host of authorities that mens rea is an ingredient of every offence unless some reason can be found for holding that it is not necessary.”

Whereas the Judgement of Lord Morris stated as follows;

My Lords, it has frequently been affirmed and should unhesitatingly be recognized that it is a cardinal principle of our law that mens rea, an evil intention or a knowledge of the wrongfulness of the act, is in all ordinary cases an essential ingredient of guilt of a criminal offence. It follows from this that there will not be guilt of an offence created by statute unless there is mens rea or unless Parliament has by the statute enacted that guilt may be established in cases where there is no mens rea.

The other case that is worth noting is the Privy council's decision in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong[11]wherein the defendant(now the appellant) substantially deviated from building plans in his Hong Kong development The appellant believed that his deviation was minor, but the offence committed was one of strict liability (It was an offence to deviate from the plans in a substantial way. The appellant accepted he had deviated from the plans but he believed that the deviation was only minor rather than substantial.)thus raising the issue of Could a mens rea requirement be read into the offence? Court held that The offence was one of strict liability and therefore his belief was irrelevant and his conviction upheld. In determining whether an offence is one of strict liability there is a presumption that mens rea is required.[12] This presumption may be rebutted where:

1. The crime is regulatory as oppose to a true crime; or

2. The crime is one of social concern; or

3. The wording of the Act indicates strict liability; or

4. The offence carries a heavy penalty.

DEDUCTIONS;

From the judgments of Lord Reid and Lord Morris, the concept of strict liability can be premised within the following boundaries.

Generally Offences of strict liability are created by direct expression in the statute

In the event of silence , there is a presumption that mens rea is required

The presumption that mens rea is required can be reversed if the prohibition of the matter act in question is a matter of public concern, may pose a grave social danger or is concerned with the general preservation of the planet

By

ABRAHAM MORGAN MUSEKURA LLB2

UGANDA CHRISTIAN UNIVERSITY

l BIBLIOGRAPHY.

The 1995 Constitution of Uganda as Amended

u Acts of parliament

Penal Code Act Cap 120

u Case law

Sweet v Parsley [1970] AC 132 (HL)

Woodrow (1846) 15 M & W 404

u Books

Garner A Bryan , Blacks law Dictionary (8th edn, 2004)

Jacqueline Martin and Toney Story, Unlocking Criminal law(4th edn, Routledge 2013)

Molan Michael , Sourcebook on Criminal law (2nd edn, Cavendish Publishers Limited)

[1] Henry C. B. Black’s Law Dictionary ((6th Edition 1990.) By St. Paul, Minn. West Publishing Co.) pg. 374 [2] Bryan A Garner, Blacks law Dictionary (8th edn, 2004) Pg 2676 [3] The 1995 Constitution of the Republic of Uganda as Amended Article 28(12) [4] Penal Code Act Cap 120 [5] [1935] AC 462 [6] [1993] Cr App R 74 [7] Jacqueline Martin and Toney Story, Unlocking Criminal law(4th edn, Routledge 2013) Pg 82SS [8] 15 M & W 404 [9] Constitution (n2) Article 79 [10] [1970] AC 132 (HL) [11] [1985] AC 1 [12] http://www.e-lawresources.co.uk/Gammon-(Hong-Kong)-v-Attorney-General-of-Hong.php Available at 1/16/2022 12:27 PM