Criminal Procedure free essay sample

After reading the situation and being asked five questions, I have come up with answers for each one of them. In this paper I will let you know what the answers to each one of the questions are. I will also provide you with the reasoning on why I chose the answers that I did. First, I believe that Officer Smith did have reasonable suspicion to make the stop of the vehicle. In all actuality, any reason is good enough for an officer on patrol to pull you over. It does vary as far as the type of tape you have over the taillight goes.If you were to use transparent tape than it would make the light more visible. Therefore, you would have less of a chance of being pulled over. Section 4(2) provides exceptions stipulated in s. 23, 24, 25, 27 and 28 of the penal code committed by a Ugandan outside Uganda. Such as Treason, acts intended to annoy the person of the President, concealment of treason, terrorism, promoting of war on chiefs and many others. It should be noted however that under international law, there is no restriction on the competence of the court to prosecute its own nationals for crimes committed outside its territorial jurisdiction if this right to national jurisdiction is conferred by statute. In Uganda vs Mustapha Atama 1975 HCB 254, where the accused a Kampala business man was charged in the chief magistrate’s court with obtaining money by false pretence contrary to section 9 of the PCA cap 106 now cap 120. The prosecution alleged that the accused while in the republic of Zaire obtained shs. 3360/- from the charge-d’ affaires of the Ugandan embassy by falsely pretending that he required the money for the maintenance of eight Ugandan soldiers who were stranded in Zaire while on an official mission. On the issue on whether Ugandan courts had jurisdiction over the matter as the offence had been committed in the Republic of Zaire, though in Uganda’s embassy. It was held that s. 6 of the PCA cap 106 now cap 120, confers jurisdiction to courts in Uganda to try offences committed partly within and partly without Uganda. While s. 2(b) merely presupposes the existence of a law conferring extra territorial jurisdiction to the courts in Uganda, in the absence of a Law enabling Uganda Courts to try nationals for acts committed whole outside Uganda, the Chief magistrate would have no jurisdiction to try such cases. Secondly, Local jurisdiction’s Magistrates are usually appointed to specific magisterial areas with reference to s. 5 of the MCA. The general rule is that every offence must be tried by a court within the local limits of the jurisdiction where it was committed under s.  31 of the MCA cap 16. Should the accused be found outside the area in which the offence was committed, the court in whose local limits of jurisdiction he is found will have him brought before it and cause him to be removed, in custody, to the court having jurisdiction to hear the case under s. 32 of the MCA. i. e the offence is committed in mbale and the fugitive is in Masaka, the court in Masaka will hand him over to t he Mbale court which has Local jurisdiction over the offence that was committed by the accused. However where the offence is committed partly within and partly without the Local limits of jurisdiction, any court having jurisdiction in either the two places may hear the case with reference to s. 37 of MCA. Thirdly on jurisdiction, the power to try cases, where an offence is committed in Uganda within the territorial boundaries and is committed within the local limits of jurisdiction of a particular magisterial area, the judicial officer handling the case will still have to ask himself whether he has the power to try the case, or whether the court he presides over , has jurisdiction to hear the case. For instance the Anti Terrorism Act No 14 of 2002 section 6, provides thus; The offence of terrorism and any other offence punishable by more than ten years imprisonment under this act are triable only by the high court and bail in respect of those offences may be granted only by the High court. Only the High court has powers to try the offence of terrorism under the Anti terrorism Act. The original jurisdiction of a chief magistrate’s court is governed by section 161 (1) (a) MCA. A chief magistrate may try any offence other than an offence in respect of which the maximum penalty is death. Example of these are murders, treason, rape, aggravated robbery, etc. However, a chief magistrate may pass any sentence authorized by law under section 162(1) (a) MCA. This means that he can pass a maximum sentence of imprisonment for life and can impose a fine of any amount. A magistrate grade 1 may try any offence other than an offence in respect of which the maximum penalty is death or imprisonment for life. Under 162 (1) (b) MCA, as amended provides that a magistrate grade 1  may pass a sentence of imprisonment for a period not exceeding ten years or a fine not exceeding four million, eight hundred thousand shillings or both. In Uganda vs Nicholas Okello (1984) HCB 22, The charge in this case was for attempted defilement contrary to section 123(3) PCA cap 106 of which the maximum sentence was 18 years imprisonment. The magistrate 1 tried this offence and sentenced the accused to 18 years imprisonment. He appealed against sentence and conviction. It was held that the magistrate had no powers to try such offence and therefore the trial was a nullity. A magistrate grade 2 may try any offence under any written law other than the offences and punishments specified in the first schedule of the MCA. Section 161(1) c) MCA. The sentencing powers of a magistrate grade 2 are limited to imprisonment for a period not exceeding three years or a fine not exceeding half a million shillings S. 162(1) c) MCA. In the Uganda vs c. Kiwanuka [1979] HCB 210, In this case the magistrate grade 2 tried the accused of the offence brought under the fire arms Act, which was an offence stipulated under the first schedule to the MCA to which a magistrate grade 2 had no powers to try. It was held that the conviction of the accused and sentence imposed on him by the magistrate grade 2 in disregard of the provisions of the first schedule was illegal. Article 129 of the constitution gives a list of the courts of judicature in Uganda such as, the Supreme court which is a superior court of record and a final court but does not have original jurisdiction like high court but has appellate jurisdiction. With reference to article 132(2) of the 1995 constitution of Uganda provides that it hears appeals from the Court of appeal. The court of appeal has appellate jurisdiction and hears decisions of the high court with reference to article 134(2) of the 1995 constitution, also has powers to hear cases or petitions regarding any questions as to the interpretation of the constitution according to article 137, Constitutional court. According to article 139(1) of the constitution, confers High court unlimited original jurisdiction in all matters with such appellate and other jurisdiction as may be conferred on it by the court or any other law. Section 1 of the T. I. A cap 23 provides that the high court has unlimited jurisdiction to try any offence under any written law and may pass any sentence authorized by law. Except that no criminal case can be brought under the cognizance of the high court for trial unless the accused person has been committed for trial to the high court in accordance with the M. C. A. Section 2 of the T. I. A provides the sentencing powers of the high court whereby it may pass any lawful sentence combining any of the sentences which it is authorized by law to pass. High court hears decisions of the Chief magistrate and magistrate grade 1 as provided in section 204(1) a) of M. C. A. with reference to section 168 of the M. C. A.  provides for committal proceedings where, When a person charged with an offence to be tried by the High Court appears before a magistrate and the Director of Public Prosecutions has complied with subsection (1), the magistrate shall give the accused person a copy of the indictment together with the summary of the case, read out the indictment and the summary of the case and explain to the accused person the nature of the accusation against him or her in a language he or she understands and inform him or her that he or she is not required to plead to the indictment, commit the accused person for trial by the High Court and transmit to the registrar of the High Court copies of the indictment and of the summary of the case. According to the law in Uganda, judicial officers are not entitled or empowered to make any phone calls to the accused to appear before court. There is a clear procedure on the issuing of summons. With reference to the Blacks law dictionary summon refers to a writ or process commencing the plaintiffs action and requiring the plaintiffs to appear and answer. A criminal summon is a simple court document that contains a number of facts justifying an inquiry into a complaint against an accused person and requiring him to attend the inquiry. It is a document issued by court to be served on the person addressed in it requiring that person to appear before court on the date specified in the document to answer charges brought against him or her. Most importantly every summon must be in writing, prepared in duplicate, signed and sealed by the magistrate or such other officer as the chief justice may from time to time direct with reference to section 44(2) of the M. C. A. Every summon must be directed to the person summoned and shall require him or her to appear at a place, date, time indicated therein before the court having jurisdiction to inquire into and deal with the complaint or charge as provided in section 44(2). In section 44(3), a summon must also state shortly the offence with which the person against whom it is issued is charged. This is basically for purposes of letting the accused know and prepare for the charge he is being compelled to answer. Service of summons to accused is supposed to be in person. According to section 45(1) of MCA every summon must be served by a police officer or an officer of the court issuing it or any public servant but in practice, a summons is served by a police officer or an officer of the court called a process server. A summons must be served on to the persons to whom it is addressed personally but the section states, if practicable. The summons is served on the accused by giving him a duplicate of the summons and in practice he must sign the original copy of the summons. Section 45(2) of the MCA provides that every person on whom a summons is so served, shall if so required by the serving officer, sign a receipt of it on the back of the original summons. In a situation where service of summons to an accused who cannot be found, service of summons maybe effected by leaving the duplicate of the summons for the accused with an adult member of the family or the accused’s servant who normally resides with him or by leaving it with his employer as provided in section 46 of the MCA. The person with whom the summons is left, if so required by the process server, must sign receipt of it on the back of the original summons. The procedure when service cannot be effected is provided in section 47 of the MCA, the process serving officer shall affix the duplicate of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides and thereupon the summons shall be deemed to have been duly served. Where the person summoned is in the active service of the Government or of the East African Community, the court issuing the summons shall ordinarily send it in duplicate to the head of the office in which that person is employed, and the head shall thereupon cause the summons to be served in the manner provided by section 45, and shall return it to the court under his or her signature with the endorsement required by that section. That signature shall be evidence of the service as provided by section 48 of the MCA. A summon can too be issued to a company with reference to section 49 of the MCA, that provides that service of summons on an incorporated company or other body corporate may be effected by serving it on the secretary, local manager or other principal officer of the corporation or by registered letter addressed to the chief officer of corporation or by a registered letter addressed to the chief officer of the corporation at the registered office of the company or body corporate in Uganda. Service of criminal summons on a body corporate can be done by sending the summons by registered mail addressed to the chief officer of the company, secretary, local manager or other principal officer of the company. These officers of a company are deemed competent to plead on behalf of the company. In showing proof that service was effected, section 50 provides where a summon can be served, that is at any place in Uganda. Where the summons was served outside the local limits of jurisdiction of the presiding court or if the accused for whom the summons was intended doesn’t appear at the place, date and time indicated, the court might either on its own or upon application by the prosecution decide to issue a warrant for his apprehension. But before the court does so, it will be necessary to show by evidence that the accused was served and had deliberately refused to obey the summons. According to section 51 of the MCA, ordinarily proof of service of summons shall be given by calling the process server to give evidence on oath that service was effected. But where the officer is not present or the summons was served outside the local limits of the jurisdiction of the issuing magistrate, proof maybe effected by the person with whom the summons was left, swearing an affidavit before a magistrate and presenting the original summons duly endorsed in the manner described above. Even if the original summons is not endorsed, the affidavit shall be admissible in evidence if the court is satisfied from the statements made in it that service of the summons has been effected properly with reference to section 51(2) of MCA.