INTRODUCTION

Every known organized society has, and probably must have, some system by
which it punishes those who violate its most important prohibitions. However
the definition of what may constitute the prohibitions are varied depending on
jurisdictions.
CATEGORIES OF LAW: There are two main categories of law:
Criminal law Civil law
Criminal law is only one kind of social control, one form of responsibility for
deviating from social norms. So in criminal law, the basic question boils down
to “Who’s criminally responsible for what crime?
Criminal law defines crimes; sets the procedures for arrests, searches and
seizures, and interrogations; establishes the rules for trials; and specifies the
punishments for offenders.
Criminal law is an established state response to crime that seeks to play the
following three key functions:
I. Controlling behavior and maintaining social order
II. Defining serious forms of socially unacceptable behavior
III. Regulating punishment
THE DISTINCTION BETWEEN CRIMINAL LAW AND CRIMINAL PROCEDURE
In all areas of legal study, a distinction is made between substance and
procedure. Substantive law defines rights and obligations. Procedural law
establishes the methods used to enforce legal rights and obligations.
Criminal law, as a field of law, defines what constitutes a crime. It establishes
what conduct is prohibited and what punishment can be imposed for violating
its mandates. Criminal law establishes what degree of intent is required for
criminal liability. In addition, criminal law sets out the defenses to criminal
charges that may be asserted.
Criminal procedure puts substantive criminal law into action. It is concerned
with the procedures used to bring criminals to justice, beginning with police
investigation and continuing throughout the process of administering justice.
When and under what conditions may a person be arrested? How and where
must the criminal charge be filed? When can the police conduct a search? How
does the accused assert a defense? How long can a person be held in custody
by the police without charges being filed? How long after charges are filed does
the accused have to wait before a trial is held?

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SOURCES OF CRIMINAL LAW
Criminal law is actually a body of many laws emanating from many sources.
Today most Kenyan criminal law is a product of legislative enactment. That has
not always been so. Further, administrative regulations now make up a much
larger percentage of criminal law.
(NB: sources of law in Kenya are stated in section 3 of The Judicature Act
Cap 8 LoK 1967(Revised 2015)
The sources of criminal law thus includes
The Common law
The common law, as it exists in this country, is of English origin. Founded on
ancient local rules and customs and in feudal times, it began to evolve in the
King’s courts and was eventually molded into the viable principles through
which it continues to operate.
In a broader sense the common law is the system of rules and declarations of
principles from which our judicial ideas and legal definitions are derived, and
which are continually expanding. It is not a codification of exact or inflexible
rules for human conduct, for the redress of injuries, or for protection against
wrongs, but is rather the embodiment of broad and comprehensive unwritten
principles, inspired by natural reason and an innate sense of justice, and
adopted by common consent for the regulation and government of the affairs of
men.
Statutory Law/Acts of Parliament
The legislative branch is responsible for the law making process. The
legislature exercises the law making powers derived from the people and as
enshrined in our constitution. Also, parliament has authority to modify,
abolish, or adopt the common law, in whole or in part. Some of the most
known/used acts of parliament in Kenya include:

 Penal code
 Criminal procedure code
 Sexual offences Act
 Children’s Act
 Judicature Act
 Land Act
 Evidence Act
 Civil Procedure Act
 The alcoholic drinks control Act

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It is assumed that whenever laws are made, then the people are consulted and
informed through their representatives in parliament. It is for this reason that
ignorance of law is no defense.
Administrative Law
It is likely that during your life you have had to deal with several administrative
agencies. Agencies are governmental units, Ministries and state departments
that administer the affairs of the government.
Because legislatures do not possess the time or the expertise to write precise
statutes, they often enact a statute that is very general and in that statute
grant one or more administrative agencies the authority to make more precise
laws. Just as legislative enactments are known as statutes, administrative
laws are known as regulations or rules.
The Constitution
(Art.3 of the Constitution of Kenya as read with Judicature Act cap 8 LoK
sec 3)
The constitution of Kenya is the final arbiter of substantive and procedural law.
All laws, regulations or administrative acts may be judged only against the
constitution. Additionally, the bill of rights includes protections accorded to
citizens in criminal prosecutions. These provisions are indicative of the
constitutional framers fear of a strong centralized governments.
Other sources may include; case laws, the constitution and other written laws
Criminal law and Civil Law Compared
Criminal law Civil Law
Purpose for punishment Retribution, Deterrence, Compensation and
Incapacitation, Deterrence
Rehabilitation,
Remedies Fines, restitution, Damages and equitable
imprisonment, relief
counseling,
rehabilitation,
injunctions, capital
punishment
Parties Government and Individual plaintiff and
individual defendant defendant (or
government as
individual)
Standard of proof Beyond reasonable Preponderance of
doubt evidence

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Burdens Government bears Plaintiff bears burden of
burden of proof and proof and parties
process designed to treated equally
protect rights of
defendant (due process)

Sociological Note: The criminal law is not, of course, the only weapon
which society uses to prevent conduct which harms or threatens to harm
the important interests of the public. Education, at home and at school,
as to the types of conduct that society thinks good and bad, is an
important weapon; religion, with its emphasis on distinguishing between
good and evil conduct, is another. The human desire to acquire and keep
the affection and respect of family, friends and associates no doubt has
a great influence in deterring most people from conduct that is socially
unacceptable. The civil side of the law, which forces one to pay damages
for the harmful results that one’s undesirable conduct has caused to
others, or which in inappropriate situations grants injunctions against
bad conduct or orders the specific performance of good conduct, also
plays a part in influencing behavior along desirable lines.

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What is a crime?
(Crime as a legal construct)
According to Professor Kenny, a crime is an act capable of being followed by
criminal proceedings having one of the types of outcomes that are specified in
law.
Criminologist Paul Tappan defines crime as “an intentional act or omission
in violation of criminal law …, committed without defense or justification, and
sanctioned by the state as a felony or misdemeanor.”
Generally, a crime is any act or omission that violates a law which results in a
punishment. Punishments can range from the payment of a fine to
incarceration in jail. The level of the offense or crime will usually be set in
proportion to the severity of the crime.

Define a crime a social construct?

Classification of Laws
There are many ways to classify laws but to narrow thins down, the law is
divided into two broad categories: Criminal law and Civil law. Civil law is all
law other than criminal law such as property law, which governs transfer and
ownership of property; contract law which is the law of personal agreements.
A violation of civil law may also happen when a behavior indirectly cause injury
that starts a chain of events that end in death. Some torts are similar to
criminal acts and that is why a person can be held on both counts. For
example it is possible to charge someone of both assault and battery, be
imprisoned, plus be sued by the victim in a tort action of assault in which the
defendant will have to pay the victim for the damages he has caused.
An important similarity between criminal law and civil law is that they have a
common purpose and this is to control people’s behavior by setting limits on
what acts are permissible in this country. The main purpose of criminal law is
to give the state power to protect the public from harm by punishing
individuals whose actions threaten the social order of things.
In tort law, the harm or injury is considered a private wrong, and the main
concern is to compensate the victim for the harm that was inflicted on them.
For criminal actions, the state initiates the legal proceedings by bringing the
charges against the criminal, then prosecuting him or her.

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Once it is determined that a criminal law has been broken, the state will then
proceed to impose a sentence against the defendant such us imprisonment,
probation or fine payable to the state. In civil actions, the injured party must
file an action in order to initiate proceedings, if the offender is found guilty,
then he or she must pay restitution to the person that was harmed. Of all
cases, criminal or civil laws that are brought up on charges, only 10% of these
charges actually go to trial and are heard before a judge or magistrate. Most
cases are settled out of court by both parties coming to an agreements that
they both can live with.
Another approach to classification is by dividing law into Public law and Private
law: public law regulates the interaction of citizens with the state eg; criminal
law, constitutional law and administrative law. Private law regulates the
relationships between individuals within the state eg; banking law, equity,
family, contract, succession law, etc.
Introducing Criminal Law
Criminal law also termed as penal law encompasses the rules and statutes
written by Parliament and state legislators dealing with any criminal activity
that causes harm to the general public, with penalties. It also covers criminal
procedure connected with charging, trying, sentencing and imprisoning
defendants convicted of crimes. It regulates how suspects are investigated,
charged and tried.
Criminal law also includes decisions by appellate courts that define and
interpret criminal law and regulate criminal procedure, in the absence of clear
legislated rules. In order to be found guilty of violating a criminal law, the
prosecution must show that the defendant intended to act as he/she did. In
other words, there had to be intention (mensrea). Criminal law is typically
enforced by the government. The state, through a prosecutor, initiates the suit.
Criminal law encompasses substantive criminal law; criminal procedure.
Objectives of Criminal law
Criminal law is distinctive for the uniquely serious potential consequences or
sanctions for failure to abide by its rules. Every crime is composed of criminal
elements. Capital punishment may be imposed in some jurisdictions for the
most serious crimes. Physical or corporal punishment may be imposed such as
whipping or caning although these elements are prohibited in much of the
world.
Enforcement of criminal law is seen to be geared towards five major objectives:

 Retribution
 Deterrence

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  Incapacitation
 Rehabilitation
 Restitution
Retribution
Criminals ought to suffer in some way. This is the most widely seen goal.
Criminals have taken improper advantage, or inflicted unfair detriment, upon
others and consequently, criminal law will put criminals at some unpleasant
disadvantage to ‘’balance the scale’’. People submit to the law to receive the
right not to be murdered and if people contravene these laws, they surrender
the rights granted to them by the law. Thus, one who murders maybe
murdered himself. A related theory includes the ides of ‘’righting the balance’’,
Deterrence
Individual deterrence is aimed towards the specific offender. The aim is to
impose a sufficient penalty to discourage the offender from criminal behavior.
General deterrence aims at the society at large. By imposing a penalty on those
who commit offences, other individuals are discouraged from committing the
offence.
Incapacitation
Designed simply to keep criminals away from society so that the public is
protected from their conduct. This is often achieved through prison sentences
today. The death penalty or banishment serves the same punishment.
Rehabilitation
Aims at transforming an offender into a valuable member of the society. Its
primary goal is to prevent further offence by convincing the offender that their
conduct was wrong.
Restitution
This is a victim oriented theory of punishment. The goal is to repair, through
state authority, any hurt inflicted on the victim by the offender. For example,
one who embezzles will be required to repay the amount improperly acquired.
Restitution is commonly combined with other main goals of criminal justice
and is closely related to concepts in the civil law.

SERIOUSNESS OF A CRIME
Generally speaking, acts that are defined as crimes are considered more
serious violations of norms than non-criminal acts. Nevertheless, perceptions

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of the seriousness of certain crimes may vary between different times/cultures
and societies. For instance, while citizens may agree generally that those
violent crimes are more serious than property crimes, yet more people may
view a parent’s assault on a child as more serious than a husband’s assault on
his wife.
Crimes can be considered wrong for one or two reasons:

 Firstly, crimes considered inherently wrong or evil (mala in se)

 Secondly, crimes considered wrong because they were prohibited by a
criminal statute (mala prohibita).
Subsequently, common law offences classified as mala in se included murder,
manslaughter, rape, sodomy, robbery, larceny, arson, burglary and mayhem.
These offences were also referred to as Felonies. Felonies are serious offences
that are considered to be inherently wrong.
The mala prohibita crimes were considered less serious crimes and may have
included offences created by certain statute laws. They were consequently
classified as misdemeanors.
The significant distinction between felonies and misdemeanors reflect the
perceptions of the degree of public harm that they present. Because felonies
(mala in se) crimes were believed to be inherently evil and posed a major threat
to the social order, it was understandable that they would be sanctioned by law
and more severely punished.
Misdemeanors (mala prohibita) crimes such as public drunkenness, loitering,
prostitution and gambling did not carry the same moral condemnation.
Offences classified as mala in se crimes have largely remained the same but
the number of mala prohibita crimes has largely increased. Statutes have been
enacted to prohibit several crimes like, drunk driving, copyright laws, dealing
in illegal drugs, cybercrime, theft of information, copying of software, identity
theft etc.
Felonies are the most severe crimes and they result in more severe penalties
and carry maximum sentences of death or imprisonment and typically carry
higher fines than misdemeanors.
In many jurisdictions, felony convictions may result in the loss of certain rights
such as the right to hold public office, carry a gun or receive certain licenses.
Misdemeanors on the other hand carry less severe punishment than that
meted out for felonies. Maximum incarceration sentences will usually attract a
one year or less jail sentence and a smaller fine than would be incurred in a
felony.

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Infractions on the other hand refers to petty offences and violations against
administrative regulations and ordinances that would attract simple fines as
remedy. Infractions are generally not punishable by incarceration but fines or
community service may rather be imposed.
Functions of criminal law
Criminologists often hold differing views of the functions of law in society but
they generally agree that in a complex society, law becomes increasingly
necessary to regulate human conduct. Three of the most commonly identified
functions of criminal law can be espoused:
1. Defining serious forms of socially unacceptable behavior.
2. Controlling behavior and maintaining social order.
3. Regulating punishment.
In defining socially unacceptable behavior, the law helps to establish
boundaries for social interactions and when people overstep these social
boundaries, the law holds them accountable. This does not mean however that
all members of society agree that a particular behavior is objectionable or
intolerable. It simply means that a significant number of people define some
acts as falling outside the boundaries of acceptable behavior, then they decide
that that behavior should be punished by law and are able to convince law
makers to implement their concerns.
In controlling behavior and maintaining social order, criminal law goes beyond
only stating what will not be tolerated through its enforcement, it also controls
objectionable behaviors. Not all undesirable behavior are described as crimes.
Many are informally controlled by what sociologist Thorsten Sellin referred to
as conduct norms or norms that are specific to localized groups and that may
or may not be consistent with crime norms found in criminal law. Conduct
norms reflect the values, expectations and behaviors of groups in everyday life
and as such, exert powerful control over the behavior of members.
In regulating the punishment of behavior, the law specifies the kind of
punishments that should be imposed for criminal offences which helps to
prevent arbitrary or excessive punishments by the state for instance, imposing
the death penalty for infractions such as shoplifting. The law also regulates
punishment to [prevent unauthorized persons from imposing their own
punishment. If people do not believe that the severity and certainty 0of the
punishment mandated of a person accused of committing a particularly
heinous crime are sufficient, they may be tempted to take the law into their
own hands.

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ELEMENTS OF A CRIME
Our law generally limits criminal responsibility to the ACTUS REUS which is
an actual act, the planning or attempt to act in violation of the law or the
specific omission to act when the law requires action.
The written or oral expression of certain thoughts such as making threats or
intimidating remarks to a witness may also be viewed as an ACTUS REUS and
may therefore be prohibited by criminal law. If a person does not fully complete
a criminal act or does not directly participate in the act, s/he may not have
committed a crime. The law defines such partial acts as inchoate crimes.
An inchoate crime may take any of the following forms:
An attempt to act which involves the intent to commit a crime and the
taking of a substantial step towards its completion.
A conspiracy to act in which two or more people agree to commit a
criminal act. Is some jurisdictions, at least one co-conspirator must
commit an overt act towards accomplishing the crime for the act to
qualify as a conspiracy.
A solicitation of another to act which includes asking, enticing,
encouraging or hiring another person to engage in a criminal act.
Being an accomplice to an act which does not require that the individual
participate directly in the crime. Someone may serve as an accomplice by
giving the perpetrator assistance or encouragement before or after the
crime.
Mens Rea
According to an old latin maxim, an act does not make a person guilty unless
the mind is guilty. In other words a defendant is not criminally liable for
conduct unless the mens rea (criminal intent) was present at the time of the
act. For a crime to exist, a person must intent for his/her action to have a
particular consequence that is a violation of law.
The mere fact that a person engages in conduct that is a violation of the law is
not sufficient proof of criminal liability, rather the defendant must prove the
intent to commit the crime.
Different degrees of criminal intent exist and there are some exceptions to the
requirements that intent must be present. The law identifies levels of criminal
responsibility or culpability, reflecting differing degrees of intent to act. The
person must have acted:

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Purposely; This means to act with the conscious deliberation, planning or
anticipation to engage in some conduct that will result in specific harm.
Knowingly; A person acts knowingly when he/she is aware that the conduct is
prohibited or will produce a forbidden result.
Recklessly; this is action which involves conscious disregard of a known risk;
although there is also conscious intent to commit the harm-such as over
speeding and intentionally causing an accident.
Negligently; Negligent conduct which creates a risk of harm when an
individual is unaware but should have been aware. In other words, to be
negligent, a person must engage in conduct that a reasonable person would
not engage in or an individual must fail to act (omit to act) in a manner in
which a reasonable person would act under the same or similar circumstances.
The intention can be General or Specific. General intent requires the willful
commission of a criminal act or an omission of a legal duty to act. The person
must intend to violate the Criminal law.
Specific intent is the intent to engage in precise act prohibited by law. Specific
intent is present when circumstances demonstrate that the offender must have
subjectively desired the prohibited result.
For an act to be considered criminal, both the act prohibited by the criminal law
and the intent prohibited by the criminal law must be present before the crime is
completed.
It is not sufficient for an act to be defined as a crime if the offender only has
the guilty mind, but failed to act on it. Nor is it sufficient for a person to have
acted without criminal intent with the exception of strict liability offences
(crimes that require no proof of mens rea).
Example:
Supposing A points a gun at B and shoots with the intent to kill B but
misses hitting B and instead kills C. A is still liable for murder under the
doctrine of transferred intent. The intent to kill in other words is
transferred from B to C.
If the bullet missed both B and C but instead hit an electrical transformer that
caused a fire, A would not be responsible for the crime of arson since he did
not intent to commit this specific act; although he may still be held responsible
for reckless behavior.
Defense and Responsibility

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Society and criminal law have long recognized that certain actions may be
justified or excused such that the offender does not bear legal liability for the
act. Both justifications and excuses are affirmative defenses which means that
the defendant must prove that his or her actions were justified or excused.
1. Justifications
These are based on the defendant admitting responsibility but arguing that
under the circumstances, what he/she did was right. For instance, defendants
who raise the claim of self-defense as a justification for avoiding criminal
responsibility argue that they acted in a lawful manner to defend themselves,
others, their property or to prevent a crime.
The law in many jurisdictions around the world permits a person to use as
much force as is reasonably necessary for such protection. The individual must
also have an honest and reasonable belief that he or she is in immediate
danger from unlawful use of force by another person. The degree of force used
in one’s self-defense must be limited to a reasonable response to the threat.
Thus a person who is attacked by an unarmed assailant should not respond
with a weapon. Deadly force may be used only in response to a belief that there
is imminent threat of death, serious bodily harm, kidnapping, or rape.
Some jurisdictions also require that when there is a safe escape route from a
house, a person must retreat.
2. Necessity
Necessity as a defense in law represents the dilemma of choosing between two
evils. A person may violate the law out of necessity when he or she believes
that the act which is a violation of the law is required to avoid a greater evil.
Conduct that a person believes to be necessary to avoid harm or evil to him or
another is justified provided that the harm or evil sought to be avoided by such
conduct is greater than that sought to be prevented by the law defining the
offense charged.
Example:
Breaking into a home to use the telephone to report an emergency may
establish the defense of necessity.
3. Insanity
In reality, insanity pleas are very rare and out of the few raised, the percentage
of those vindicated is very small. It is important to note that people who are
released from criminal charges owing to insanity do not go free, but are instead

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sent to mental hospitals until they are considered sane. Only then would they
be released back to society.
The insanity defense is based on a legal concept rather than a medical or
psychiatric definition of insanity. Legally, insanity refers to a person’s state of
mind at the time he/she committed the crime charged, though actual legal
definitions of insanity have been and continue to be vague.
In the past, concepts such as madness, irresistible impulse, state of unsound
mind, weak mindedness, mental illness disease, defect, or disorder have all
been used to inform the law.
To establish a defense on insanity, it must be clearly proven that at the time of
the committing of the act, the party accused was laboring under such defect or
reason from disease of the mind as not to know that the nature and quality of
the act he was doing OR if he knew it, he did not know that what he was doing
was wrong.
Under the insanity rule, the defendant is assumed to be sane and he/she must
prove that they suffered from a disease of the mind and therefore lacked a
sufficient degree of reason to distinguish between right from wrong.
Arguments against this defense have revolved around the following grounds:

 There exists no clear definition of what constitute a disease of the

mind
 Too much stress is placed on the requirement of knowing
 The law does not specify how a person must know that an act was
wrong
 Some people may be insane, but yet still be able to distinguish right
from wrong
A modernized version of this rule holds that it may be possible for a person to
know that their action was wrong but nevertheless be so overcome by emotion
that he/she temporarily loses self-control or the ability to reason to a degree
sufficient to prevent the act. Referred to as the irresistible impulse test, it
allows the defendant to raise the insanity defense and plead that although they
knew that what they were doing was wrong, they were unable to control their
behavior.
Ultimately, though, the insanity plea includes the following provisions:
 A person is not responsible for criminal conduct if due to a mental
defect or disorder, he or she lacks the substantial capacity to
appreciate the criminality (wrongfulness) of his/her conduct or to
conform to the requirements of law

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  The terms mental disease or defect do not include an abnormality
manifested only by repeated criminal/antisocial conduct.
A significant part of the insanity defense shifts the burden of proof from the
prosecution to the defense and the limitations are placed on the role of experts.
In the event that the verdict returned is that of guilty but mentally ill, the
courts may be allowed to impose a punishment of incarceration with a
requirement that prison authorities provide a psychiatric treatment to the
convicted offender during the specified period of confinement.
Intoxication
The defense of intoxication is based on the claim that the defender had
diminished control over himself/herself owing to influence of alcohol, narcotics
or drugs and therefore lacked criminal intent. However this defense is not
meant to be used unless it negates an element in the crime such as lack of
criminal intent.
However, the courts have to recorgnize the difference between involuntary
intoxication and voluntary intoxication. Involuntary intoxication that
results from mistake, deceit of others or duress (for example, if a drug was
unknowingly put in a person’s drink or liquor was forcibly poured down a
person’s throat) will excuse the defendant from criminal responsibility for
criminal action that resulted from the intoxication. Voluntary intoxication on
the other hand is generally not a defense but it may be presented in an effort to
mitigate the seriousness of the crime. A person charged with committing
premeditated murder while voluntarily intoxicated for example may be able to
have the charge reduced to a less serious charge of manslaughter.
Entrapment
The defense of entrapment is an excuse for criminal actions based on the claim
that the defendant was encouraged or enticed by agents of the state to engage
in an act that he/she would not have committed otherwise. The courts have
generally held that it is permissible for law enforcement agents to solicit
information from informants, use undercover officers and even use electronic
devices to monitor informants or officers to record conversations regarding
criminal behavior.
It is however considered illegitimate for police to encourage or coerce
individuals to commit crimes when they had no predisposition to commit such
acts. Simply put, the law does not allow government agents to initiate a
criminal design, implant in an innocent persons mind the disposition to
commit a criminal act and then induce commission opf the crime so that the
government may prosecute.

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However, for an entrapment defense to be valid, TWO elements must be
present:

 Government inducement of the crime

 The defendants lack of predisposition to engage in the criminal conduct
Predisposition is considered to be the more important of these two elements.
Thus entrapment may not have occurred if the government induced a person
who was predisposed to commit such a crime. To determine whether an
entrapment has been established, a line must be drawn between the unwary
innocent and the trap for the unwary criminal and entrapment occurs when
government activity in the criminal enterprise crosses this line.
Duress
The defense of duress presents the claim that the defendant is actually a victim
rather than a criminal. For example: If A holds a gun to B threatening to
shhot unless he/she steals money, the resulting theft would be considered an
action under duress and the thief should not be held criminally responsible for
complying with the demand to steal.
It is an offense committed under duress if it is proven that thenactor engaged
in the conduct charged to constitute an offense because he or she was
coareced to do so by the use of, or a threat to use force, unlawful force against
his person or the person of another, which a person or reasonable firmness in
his situation would have been unable to resist.
However, this defense is not applicable to people who intentionally, recklessly
or negligently place themselves in situations in which it is probable that they
will be subject to duress. For instance, a person who in the course of escaping
from prison commits kidnapping in order to avoid being caught cannot claim
duress as a defense against the charge of kidnapping.
QUESTION: What do you understand by the terms Actus Reus Non Facit Reum
Nisi Mens Sit Rea
Mistake
We all regularly use the expression “ignorance of the law is no excuse”, but
what does it mean? We may be familiar with many laws but are we awre of all
the laws? Do we know what they prohibit? Under what circumstance?
Ignorance of what a law requires or prohibits generally does not excuse a
person from committing a crime. Mistake as a criminal defense takes two
forms:

 Mistake of Law

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  Mistake of Fact
Mistake of law occurs when a defendant does not know that a law exists and it
would be a defense in very rare cases. A case in point would be when a new law
is passed but not published so as to give the public adequate knowledge of it.
Mistake of fact occurs when a person unknowingly violates the law because
he/she believes some/certain facts to be true when it is not. In other words,
had the facts been as a defendant believed them to be, the defendants actions
would not have constituted a crime. For instance, a woman who is charged
with the crime of BIGAMY may have believed that her divorce had been
finalized before she remarried when in fact it was not.
Mistake of fact is often raised as a defense by people who are charged with
selling alcohol to a minor or committing statutory rape. In such cases, the
defendant may have been lead to believe the minor was older than he or she
claimed to be because the claim appeared to be consistent with the minor’s
appearance.
Exceptions
In some situations, a defendant may raise the defense that he or she is legally
exempted from Criminal Responsibility. Unlike the defenses discussed above,
legal exemptions are not based on the question of the defendant’s mental
capacity, or culpability for committing the crime. They are seen as concessions
to the defendant for the greater good of the public welfare.
Double Jeopardy
The double jeopardy provisions protect an accused from being tried on the
same or similar charges following an acquittal or conviction. The principle is
embodied in Article 50(2)(o) of the Constitution and the CPC sections 138-
142. This proviso is not intended to provide protection for guilty defendants,
but rather to prevent the state from repeatedly prosecuting a person for the
same charge until a conviction is finally achieved.
Jeopardy in a bench trial becomes activated when a first witness is sworn in
BUT in jury trials, some jurisdictions consider a defendant in jeopardy once the
jury is selected though a few place it at the point of indictment, when criminal
charges are filed.
Double jeopardy does not apply when a case is ruled a mistrial on motion of
the defense or when a jury is unable to agree on a verdict and the judge
declares a mistrial. In both circumstances, the prosecutor may retry a case.
Similarly, if upon a conviction the defendant appeals to a higher court and has
the conviction reversed, he or she may be retried on the original charges.

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However, by virtue of section 139 throguh section 141 of the CPC, a person
may be charged and tried again:

 For a separate offense arising from the same set of facts as those of
the crime for which the accused was previously convicted or
acquitted.
 For consequences which arise after a conviction or acquittal, if they
were not known at the time of conviction or acquittal.
 If the court that tried the accused in the first instance was not
competent to try the offense for which he is subsequently charged.
Statute of Limitation
Statute of limitation refers to the limit on the amount of time that can pass
between a criminal act and the sates prosecution of the crime. Many
jurisdictions have enacted statutes of limitations establishing the maximum
time allowed between the act and its prosecution by the state.
A defendant may therefore raise the defense that the statute of limitation for
the crime has expired which leads to a dismissal of the charges. Statutes of
Limitations would vary by jurisdiction and are generally longer for more serious
offences. For example, murder has not statute of limitations whereas in many
jurisdictions, burglary carries a 5yr limitation while misdemeanors have a 2yr
limitation period.
Age
Although not considered a justification nor an excuse for a criminal act, a
person’s age may establish a defense against criminal prosecution. Under early
English Common law, children younger than 7yrs were considered incapable of
forming criminal intent and could therefore not be convicted of crimes.
Children between the ages of 7 and 14 were considered to have limited criminal
responsibility and children older than 14 were; presumed to have the capacity
to form criminal intent and thus would be criminally prosecuted.
With the introduction of the juvenile court system, most youths between the
ages of 7 and 18 who were charged with crime were processed through the
more informal proceedings of that court.
In this context, laws tend to use the phrase, “age of criminal responsibility” in
two different ways:
As a definition of the process for dealing with an alleged offender, the range of
ages specifies the exemption of a child from from the adult system of
prosecution and punishment. Most states develop special juvenile justice
systems in parallel to the adult criminal justice system.

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As the physical capacity of a child to commit a crime. Hence, children are
deemed incapable of committing some sexual or other acts requiring abilities
pof a more mature person.

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CONSTITUTIONAL COROLLARIES
The Due Process and the Rights of the Accused
Due process which is established in procedural Criminal Law ensures the
constitutional guarantees of a fair application of the rules and procedures in
Criminal proceedings from the investigation of crimes to an individual’s arrest,
prosecution and punishment.
The principles of procedural fairness in Criminal cases are designed to reduce
the likelihood or erroneous convictions. Criminal procedures that produce
convictions of large numbers of innocent of defendants

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