CRIMINAL LAW

TABLE OF CONTENT
Task 01
I.

Page No.
Explain with illustrations the nature and definition of crime in
the context of criminal law (1.1)

3-6

7
II.

What illustrations the relevant elements of crime which you

can identify in the given scenario 01? (1.2)
8-19

III.

There are different levels of mens rea. To be guilty, the

accused must have at least the minimum level of mens rea
required for the offence. Critically analyze this statement with
the relevant statutes and relevant case law. (1.3)

IV.

Critically analyse with the relevant provisions of Penal code

and decided cases whether Janaka and Amal criminally liable
for Sujiths death. (1.4)

20

I.

Describe the defense available under the Penal Code of Sri

Lanka for the offences referred in the given Scenario (2a)
(2.1)

21-23

II.

Critically assess whether defence of duress is available to

Kannan for the offence referred in the given scenario 2(b)
under the Sri Lankan and English law.(2.2)

24

III.

With reference to relevant section and illustrations of Penal

critically discuss the defense of Private defense and
necessity (2.3)

25-33

I.

In the context of the above statement (task 3) critically

examine the position of law relating to offences where
secondary party (to an offence) could be found guilty even
though the principal offender is acquitted.(3.1)

34

II.

Identify the role of principal offender and secondary offender

under the criminal law (3.2)

35-37

III.

The legal effect and punishment for attempted crimes are

different fro committed crimes. Discuss (3.3)

38

Task 02

Task 03

39
1|Page

CRIMINAL LAW
IV.

Critically evaluate the legal principles articulated in the cases

of R v Bourne (1952) App R 1251 and R v Coagan and Leak
(1976) QB 217, in the context of participation in crimes. (3.4)

V.

The offence under the Criminal law, generally classified into

offence committed against person and offence committed
against property. Critically evaluate this statement with
relevant statutory provisions and decided cases. (3.5)

40-51

I.

Critically examine the jurisdiction of the criminal courts and

Criminal procedures in the context of criminal proceeding in
Sri Lanka. (4.1)

52-62

II.

Identify the provisions in the Penal Code and Code of

Criminal Procedure of Sri Lanka in respect of crimes referred
in the scenario (4.2)

63-67

III.

Briefly describe the law relating to bail and identify whether

the offences referred in the scenario are bailable or non
bailable (4.3)

68

Task 04

Consulted works

69

2|Page

CRIMINAL LAW

1.1 Explain with illustrations the nature and definition of crime in

the context of criminal law.
Introduction
"A crime is an unlawful act or default which is an offence against the public and renders the
person guilty of the act or default liable to legal punishment. 1 In case Board of Trade v
Owen (1957)2 Lord Tucker also considered that the correct definition of a crime in the
criminal law was the above passage from Halsbury's Laws of England. When somebody is
participating for a crime he makes himself criminally liable.

Discussion
According to the peal code offence is a thing made punishable by the penal code or under
any other law.3
Main purposes of criminal law are;
a. Protect individuals and there property from harm
b. Preserve order in society
c. Punish those who deserve punishments
There are two branches of criminal law;
a.

Substantive Criminal law - physical and mental element a crime, general principal of
intention and causation, the defense available and other general rules

b.

Procedural Criminal law include rules of procedure or evidence or sentencing

theory and practice
Classification of Offences, 4
(1)

a)
b)
c)
d)

Police powers

Indictable offences
Indictable offences
Terrorism offences
"Hybrid" offences
(2)

Source of law
a) Common law (judge made)
b) Statutory (defined in an act of parliament)
c) Regulatory (set out in delegated legislation)

(3)

Type offence

a)
b)
c)

Offence against the person

Offence against property
Offence against public order
3|Page

CRIMINAL LAW

Penal code has classified criminal offences under 17 topics,

1. offences affecting the human body
2. offences against property of theft
3. offences against the state
4. offences relating to the navy, army and air force
5. offences against the public tranquility
6. offences by or relating to public servants
7. offences relating to elections
8. contempt of the lawful authority of public servants
9. false evidence and offences against public justice
10. offences relating to coin and government stamps
11. offences relating to weights and measures
12. Offences affecting the public health. safety, convenience,
Decency. And morals
13. offences relating to religion
14. Offences relating to documents. property-marks, currency
Notes and bank notes
15. criminal intimidation, insult, and annoyance
16. unlawful oaths
17. attempts to commit offences
(4)

Place of trial

a)
b)
c)

Indictable only offences

Trialable either way offences
Summary offences

Offence against
Public order

Also Penal code has stated the punishments which offenders are liable,
a.
b.
c.
d.
e.

Death
Imprisonment ( simple & rigorous )
Whipping
Forfeiture of property
Fine

Elements of a crime
Crime = Actus Reus + Mens rea + Absence of a defense5
1.

Actus reus (guilty act);

A. A prohibited voluntary act D guilty of manslaughter of V, who died in their care, by
gross negligence, not by an unlawful act [Stone & Dobinson (1977)]6
B.

A failure to act (an omission) D found guilty of arson. He failed to put out a
fire which came from his lit cigarette. [Miller (1983)]7

In the case of Actus Reus of a crime, it need not simply be voluntary to satisfy the Actus
Reus. D found drunk in hospital. He was chased to public highway by policemen. Later he
4|Page

CRIMINAL LAW
was charged with being found drunk in the highway. [Winzar v Chief Constable of Kent
(1983)] 8
The Theory of Causation
The act of the defendant must cause the result or the crime. Causation is like a chain.
That mean defendants actions should be a direct link of the end result which is consider
as the criminal act. An intervening act at somewhere of the incident may break the chain
of causation. Because of that he will not find guilty.
1. Ds action must be a factual cause of criminal act- In R v White (1910)9 D tried to
poison and kill his mother. But unexpectedly she died because of natural causes
before he could give it to her. He was not guilty for her death. Because poisoning was
not the factual cause of criminal act.
2. Ds actions need not be the sole cause of criminal act In case R v Pagett (1983)10
D used his pregnant girlfriend as a human shield in hostage situation. Later she died
in police gunfire. But he found guilty because his actions need only be a substantial
cause of death.

2.

Thin Skull Rule You must find your victim as you find him. 11 This means that the
defendant cannot escape liability if the victim suffers more harm than would
otherwise be expected due to his act under normal circumstance. D was not given
excuse simply because she didnt know V was more susceptible to serious injury or
death fro her act. [R v Blaue (1975)12]

If V kills due to Medical intervention, D may still be liable In case R v Smith

(1959)13 an operating and substantial cause of death of V. In R v Cheshire (1991)14
Ds acts need not be the sole or even the main cause of death. , he died due to other
reasons as well. Again in R v Jordan (1956)15 palpably wrong medical treatment
cause the death of V. In all above three cases V died not directly because of Ds act,
but it initiate the consequence and final result was the death.

Mens rea (guilty mind) - Mens rea has two divisions as Intention and Recklessness.
(1) Intention It can be direct or indirect.
Direct; - the accused desires the outcome. And he sets out to ensure it occurs;
Or
Indirect; - the accused does not desire the outcome. But he recognizes that crime is
a virtual certainty. (R v Woollin [1998]) 16
(2) Recklessness - There is now only one test for recklessness (subjective). Did the D
foresee there was a risk involved? R v G and R (2003)17 the Ds, aged 11 and 12,
set fire to a wheelie bin. Fire spread causing damage to the neighboring building. Ds
did not appreciate the risk found not guilty (follows R v Cunningham).
3. Strict liabilityIn offences under strict liability the Defendant only needs to commit the Actus Reus to be
found guilty of the crime. The Ds state of mind at the time is irrelevant and not takes into
consideration. Someone may think it is unfair on the D who is committing a crime but may
5|Page

CRIMINAL LAW
not realize it. In Meah v Roberts (1977)18 two children asked for lemonade. But by mistake
they were served with caustic soda. D found guilty of selling food unsuited for human
consumption.

Conclusion
Criminal law is usually categorized under the public law. Because of the crimes are
considered as wrong doings against the people, though it might affect only one person.
Hence it considers as the acts against the State and they are punished by the State. Again
the person who is committed an offence will be punished in some manner prescribed by the
State. In Woolmington v DPP (1935)19 articulating the ruling, Viscount Sankey made his
famous "Golden thread" speech;
Throughout the web of the English Criminal Law one golden thread is always to be seen,
that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have
already said as to the defense of insanity and subject also to any statutory exception. If, at
the end of and on the whole of the case, there is a reasonable doubt, created by the
evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the
deceased with a malicious intention, the prosecution has not made out the case and the
prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle
that the prosecution must prove the guilt of the prisoner is part of the common law of
England and no attempt to whittle it down can be entertained. When dealing with a murder
case the Crown must prove;
1. Death as the result of a voluntary act of the accused; and
2. Malice of the accused.

Reference
1. Halsburys Laws of England, Edited by: The Right Honourable Lord MacKay of
Clashfern, ISBN: 0406047766 , LexisNexis Butterworths 3rd Ed., Vol 10, p. 271
2. Trade v Owen (1957) [1957] AC 602, HL(E)
3. S.38 Penal code
4. UNLOCKING CRIMINAL LAW, Jacqueline Martine & Tony Storey, ISBN: 978 444 109
153, Hodder Education an Hachette UK Company, 3rd Ed. , pp 11-12
5. http://sixthformlaw.info/01_modules/mod3a/3_10_principles/01_principles_actus_crime_
definition.htm on 24 Sept 2011
6. Stone & Dobinson (1977) QB 354
7. Miller (1983) UKHL 6
8. Winzar v Chief Constable of Kent (1983)
9. R v White (1910)
10. R v Pagett (1983)
11. http://www.lawiki.org/lawwiki/Thin_skull_rule on 24 Sept 2011
12. R v Blaue (1975)
13. R v Smith (1959)
14. R v Cheshire (1991)
15. R v Jordan (1956)
16. R v Woollin [1998]
17. R v G and R (2003)
18. Meah v Roberts (1977)
19. Woolmington v DPP (1935) AC 462
6|Page

CRIMINAL LAW

1.2 What illustrations the relevant elements of crime which you

can identify in the given scenario 01?
(Presentation)

7|Page

CRIMINAL LAW

1.3 There are different levels of mens rea. To be guilty, the

accused must have at least the minimum level of mens rea
required for the offence. Critically analyze this statement with
the relevant statutes and relevant case law.
Introduction
Mens rea is the mental elements of a crime. Different levels of mens rea can be identified
under following categories; 1
Direct intention
1. intention
Oblique intention
2.
3.
4.
5.

recklessness
negligence
dishonesty
transferred malice

Discussion
1. intention
a) Direct intention- Someones aim, desire or purpose.
In Calhaem [1985]2 D was infatuated with her solicitor and wished to remove
his girlfriend from him. She hired a professional killer to murder the girl. He
alleged that he visited V's house with an attempt to pretend to kill. However
after she screamed and panicked and he killed her. Then he was convicted
of Murder and D found guilty of being a secondary offender. She appealed
on the basis that her counseling of the contract killer had to be a substantial
cause of the killing. Court of Appeal rejected the appeal and agreed with the
trial judge that clearly D has direct intent to kill.
b)

Oblique intention-Here

D does not necessarily desire an outcome but

realizes that it is almost inevitable.3
DPP v Smith [1960]4 D tried to escape from the police in a car. He was
signaled to stop. He did not stop. A Police man jumped onto the car's bonnet.
D drove at high speed until the officer was thrown off and killed. The court
held that it was clear that he had intended to cause grievous bodily harm,
which meant no more and no less than really serious injury. His initial
intention was just to escape from the police but later it changed.

Criminal Justice Act 1967 explains about Proof of criminal intent;

A court or jury, in determining whether a person has committed an offence;

8|Page

CRIMINAL LAW
a. shall not be bound in law to infer that he intended or foresaw a result of his actions by
reason only of its being a natural and probable consequence of those actions; but
b. shall decide whether he did intend or foresee that result by reference to all the
evidence, drawing such inferences from the evidence as appear proper in the
circumstances.5

2. RecklessnessHere D takes an unjustifiable risk of a particular consequence occurring with

awareness of that risk. This is a sufficient mens rea for mans rea.
E.g.: Manslaughter,
Malicious wounding,
Inflicting grievous bodily harm,
Assaulting occasioning actual bodily harm
To prove mens rea of Recklessness court uses the Cunningham test which explain
later part of this question.
R v Kimber (1983)6 D assaulted indecently a female patient in a mental hospital. He
admitted that he was not interested in her feelings at all and this was recklessness.
Court held that recklessness in indecent assault cases is subjective. D found guilty
no miscarriage of justice despite misdirection.

3. NegligenceD IS liable if he or she fails to appreciate circumstances or consequences that would

have been appreciated by the reasonable man.

4. DishonestyThis form of mens rea is stated in Theft Act 1968 & Fraud Act 2006, but neither of
them has defined it exactly. Therefore there was an argument whether this should be
tested subjectively or objectively. Anyway in Ghosh (1982)7 the court was introduced
a hybrid test.

5. Transferred maliceThe word "maliciously" meant foresight of the consequence.

R v Latimer (1886)8 A soldier argued with another man C in a pub. During the
argument soldier took off his belt swung it at C. It missed C and wounded the V.
Court held that the intention to strike C was transferred to V under the doctrine of
transferred malice. The soldier found guilty.

There is a maxim, saying that;

Actus non facit reum nisi mens sit rea

9|Page

CRIMINAL LAW
This means it is not proper to punish a man criminally unless he had a guilty mind. According
to this it is very clear accuseds state of mind has a vital bearing on his responsibility.
Mistake is a general defense. If someone is done an offence by mistake no mens rea can
be found. To prove mistake need a subjective test. In B (a minor) v DPP [2000]9 D was
aged 15 boy incited a girl under 14 years and asked her several times for a shiner (oral
sex). He honestly believed the girl to be over 14. The court held defendant not guilty. There
court defined, the mental element in a crime was concerned with a subjective
state of mind.
Is there here a compellingly clear implication that Parliament should be taken to have
intended that the ordinary common law requirement of a mental element should be excluded
in respect of the age ingredient of the new offence? Thus far, having regard especially to the
breadth of the offence and the gravity of the stigma and penal consequences which a
conviction brings, I see no sufficient ground for so concluding.
It is clear that the law never require the mistake have been reasonable if the honesty of the
mind is proved.
Some offences need specific intention. [E.g. unlawful wounding (s18) under English law] in R
v Belfon [1976]10 D attacked and slashed victims with a razor, causing severe wounds to his
head and chest, with intent. But court held that he was not guilty, by saying that; [D]..had
certainly foreseen the risk of such consequences, but it had not been proved that he had the
specific intent required for the more serious offence
In R v Caldwell (1982)11 Lord Diplock stated that;
It is unnecessary to classify the offence as one of specific or basic intent, since, as far as
recklessness is concerned, evidence of intoxication is logically irrelevant and therefore no
defence anyway.
There D was guilty for setting fire by night to a residential hotel where he had been
employed.
House of Lords formulated the test later known as Caldwell recklessness:
A person is reckless as to whether property is destroyed or damaged where:
(1) His act creates an obvious risk that property will be destroyed or damaged and
(2) When he does it he either;
a) has not given enough consideration about the possibility of such risk; or
b) has recognised the risk and has nonetheless gone on to do it.
But in R v G & R [2003]12 House of overruled MPC v Caldwell [1982] decision. Two boys,
aged 11 and 12, went out at night without their parents permission. They lit old newspapers
with a lighter and threw them under a wheelie bin. They then left without putting them out
and the fire spread to a shop and caused over 1m of damage.
Court quashed convictions and introduced new test for recklessness. The appropriate test of
recklessness for criminal damage is:
"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971
with respect to
(I) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur;
10 | P a g e

CRIMINAL LAW

and it is, in the circumstances known to him, unreasonable to take the risk."
R v Crossman (1986)13 is a case where D found Guilty for driving recklessly. He was driving
with the knowledge that by doing so he was putting other road users at risk of serious injury
or death. It is clear that though someone do not have intend to do a crime, if he has done the
Actus reus of the crime because of recklessness still it is a crime.
Murder is most serious offence against human body. In a murder it is not need to be proved
the intention for murder. Intention to commit homicide or grievous bodily harm, but not to
cause death is sufficient to prove Mens rea.
R v Cunningham (1981)14 D attacked V by hitting him repeatedly with a chair, which
resulted in V s. death. Court held D guilty and said he must have foreseen a risk and
recklessly gone ahead and taken it.
Lord Hailsham LC:
"malice aforethought has never been limited to the intention to kill or to endanger life".
Lord Edmund-Davies:
"I find it strange passing that a person can be convicted of murder if death results from, say,
his intentional breaking of another's arm, it no doubt constituting "really serious harm. But I
recognise the force of the contrary view that the outcome of intentionally inflicting serious
harm can be so unpredictable that anyone prepared to act so wickedly has little ground for
complaint if, where death results, he is convicted and punished as severely as one who
intended to kill."
In Data Protection Registrar v Amnesty International [1995]15 court held only some
regulatory offences such as the requirements of the Data Protection Act (offences of
misusing data), require Caldwell recklessness.
Rose LJ stated that:
To establish recklessness, the prosecution must prove first that there is something in the
circumstances that would have drawn the attention of an ordinary, prudent individual to the
possibility that this act was capable of causing the kind of mischief that the Act intended to
prevent and that the risk of those mischief occurring was not so slight that the ordinary,
prudent individual would feel justified in regarding them as negligible.
Secondly the prosecution must prove that before doing the act, the defendant either failed to
give any thought to the possibility of their being such a risk, or, having recognised that there
was such a risk, he nevertheless went on to do it.

W (A minor) v Dolbey [1983]16 was a case which defines recklessness and malice intention
is not the same. D shot V with an air rifle believing that it had run out of pellets. Court said
that he genuinely believed that he had used the last pellet. He ignored the risk that it might
be loaded and so D was reckless. The court squashed the conviction of D and held that, to
prove malice intention prosecutor must show D actually foresaw that a particular kind of
harm might be done to his victim. In this case he had not. In Caldwell malice intention and
recklessness were clearly distinguished.
DPP v A [2000]17, here court explain the level of foresight required to prove the mens rea of
an offence. A and S entered to a game. They agreed to shoot at each other below the knee
with air pistols. Both were wearing cricket pads for protection. But A fired a shot at S which
hit the eye. Court held, Maliciously for the purposes of s 20 of the Offences Against the
11 | P a g e

CRIMINAL LAW
Person Act 1861 meant actual intention or recklessness as to whether a particular type of
harm "might" be done, thus it would be sufficient that only slight harm had been foreseen.
Anyway the matter would therefore be remitted to a fresh bench of justices for
reconsideration.
R v Farrell [1989]18 showed objective recklessness which expressed in Caldwell is not
enough for some offences. [E.g. Assault (s 20)] D shot V with a crossbow. But he said it was
an accident. Held that not guilty. Objective recklessness was not enough to support a s.20
conviction. Even a clear intention to frighten V, which is sufficient for common assault, would
not be enough for unlawful wounding unless D had given some thought to the possible
consequences.
Flack v Hunt (1979)19 D shot M by firing into bushes. M was hiding there. D was only
intending to frighten him. D suspected M was poaching in his woods. It was held that D had
not foreseen the risk of harm. Again he had considered the matter and decided there was no
risk and D was not guilty.
R v Forbes (2000)20 D imported two pornographic videos. Although he believed the videos
were banned in the UK. He did not know that they contained indecent photographs of
children under the age of 16. Court held that it was not necessary for the prosecution to
prove that D knew the nature of the material. It is sufficient only that he knew it was indecent.
He was guilty.
R v Grimshaw (1984)21 D was in a pub when someone insulted her boyfriend. She pushed
the glass he was holding into his face. It was held, she would only have had the mens rea if
she had at least foreseen that he might suffer some harm. It was satisfied only by proof of
what D actually foresaw. The trial judge directed the jury to consider whether she should
have foreseen the risk of harm. Anyway it was only a minor harm. Not Guilty.
DPP v K (1990)22 D who was a student placed acid in a hot air drier to hide it from his
teachers. Later V used the drier and the acid caused burns on his face. The court held if the
charge was simply battery, it is not necessary to prove harm, and he was guilty.
Parker LJ stated: D had "just as truly assaulted the next user of the machine V as if D had
himself switched the machine on".
This case was decided on Caldwell Recklessness but on that point was overruled by Sprat,
which was later confirmed by Parmenter, which states that Cunningham Recklessness is the
test for assaults. The House of Lords settled the issue in Parmenter and Savage They also
upheld Roberts (1971).
R v Scalley [1995]23 D set fire to a house by pushing lighted newspaper through the
letterbox. A child died in the fire. D was charged with murder. The judge told the jury they
should convict the defendant if they were sure that D intended death or grievous bodily
harm. The judge should have made it clear that foresight was merely evidence of intent and
it was not to be equated with. It held that not guilty of murder but guilty of manslaughter.
R v Seymour (1983)24 a driver collided his lorry with a car. When the driver of the car V got
out of the car D drove his lorry into the car and V was crushed between the two vehicles. V
was killed. D was convicted of manslaughter. Court held: Defendant was Guilty of death by
reckless driving and manslaughter. Case where death was caused by reckless driving was
Lord Diplock's dicta in Lawrence.
Lord Roskill:

12 | P a g e

CRIMINAL LAW
"there is. a need to prescribe a single and simple meaning of the adjective "reckless"
and the adverb recklessly throughout criminal law ... That simple and single meaning should
be the ordinary meaning of those words as stated in this House in R v Caldwell and in R v
Lawrence".
R v Sheehan & Moore [1975]25 Two defendants in a drunken state poured petrol over V and
burned him to death. It was held that the question was not whether defendants were capable
of forming the necessary intention but whether they had in fact done so. They were not guilty
of murder but guilty of manslaughter.
R v Stubbs (1989)26 D in a drunken state stabbed V causing grievous hurt. He was charged
under s.18. Held that although the absence of mens rea due to drunkenness would be a
defence to a crime of specific intent that drunkenness would have to be very extreme to
justify reducing a s.18 offence to s.20. He was not guilty.
Accused must have at least the minimum level of mens rea as well as correct mens rea to
be guilty for specific offence. R v Taaffe (1984)27 D wrongly believed that importing currency
was illegal. Therefore he sought to smuggle several currency packages from Holland. He
had been enlisted by a third party to import cannabis. There was no such offence of
importing currency at that time. He could not be liable for attempting a crime that does not
exist. The court held that, for this offence D must be judged on the facts as he believed them
to be. His mens rea for a non existent crime could not be imported to the smuggling of
drugs.
D's mistake of law could not convert the importation of currency into a criminal offence and
importing currency is what D had assumed he was doing. He was not guilty. Hereafter this
has know as the Taaffe defence. This is much favoured by smugglers.
Actus Reus and mens rea of an offence can be quite separate in time and geography.
In Jakeman (1982)28 the mens rea occurred in Ghana, and the Actus Reus was by the
innocent agency of Paris.

Conclusion
Different offences need different level of mens rea. To be guilty, the accused must have at
least the minimum level of mens rea required for the offence. Level of mens rea needed for
different offences has mentioned in common law and statutes.
Penal code has clearly stated the level of mens rea needed for different offences under each
section. They can be highlighted as follow. (Table 1.0)

13 | P a g e

CRIMINAL LAW

Criminal offences
(1) culpable homicide

(2) Murder

Penal code
section
293

Physical element

Mental element

causes death by
doing an act

intention of causing
death or causing
such bodily injury as
is likely to cause
death or with the
knowledge

294

commits such act

without any excuse
for incurring the risk
of causing death or
such injury as
aforesaid

(3) Abetment of suicide

299

intention of causing
death intention of
causing bodily
knows that it is so
imminently
dangerous injury

any act

(4) Miscarriage
303
(5) Cruelty to children
308A

(6) Cause hurt/ Grievous

hurt
(7) Assault

310 & 311

causes a woman with

child to miscarry

assaults, ill-treats ,
neglects, or
abandons such
person or causes or
procures such
person

intention or
knowledge
voluntarily. not
caused in good faith
(intention)
willfully(intention)

causes bodily pain,

disease, or infirmity
Causes (Intention or
knowledge)

(8) Sexual harassment

342

makes any gesture

or any preparation
intending or knowing

345
(9) Kidnapping

assault or use of
criminal force,
sexually harasses

causes sexual
annoyance or
harassment (with
Intention)
14 | P a g e

CRIMINAL LAW

(10) Abduction

(11) Sexual exploitation of

children

350

353

conveys any person

beyond the limits of
Sri Lanka without the
consent or takes or
entices any
by force compels
abuse of authority

by force compels, or
by any deceitful
means, or by abuse
of authority
(Intention)

(12) Trafficking
360B
(13) Soliciting a child
(14) Rape
(15) Incest

without the consent

(Intention )

360C

child to be sexually
abused.. participate
in any form of sexual
activity
buys, sells or barters
or instigates another
person to buy

Knowingly

Intention

(16) Unnatural offence

(17) Acts of gross
indecency between
persons

360E

solicits

363

sexual intercourse

364A

sexual intercourse

365

carnal intercourse

365A

act of gross
indecency

(18) Grave sexual abuse

(19) Theft
(20) Extortion
(21) Robbery
(22) Dishonest
misappropriation of
property
(23) Criminal breach of
trust

Purpose(= Intention)
Without consent

Intention or
knowledge
Voluntarily (Intention
or knowledge)
gross indecency
(Intention)

365B

366

372

committed any act

moves that property

puts any person in

fear

for sexual
gratification
(=Intention)
intending to take
dishonestly
intentionally
15 | P a g e

CRIMINAL LAW
(24) Cheating

dishonestly
379

386

committing of the
theft

voluntarily
(=Intention)

misappropriate
Dishonestly

388

misappropriate
Dishonestly

398

deceived to deliver
any property

fraudulently or
dishonestly

Table 1.0
The Common law approach on the level of mens rea is appreciatable. Level of mens rea for
different offences can be identified in case law. They show much progressive approach by
being much flexible than statutory law. They have been developed through many cases over
centuries. (Table1.2)
Related
offence
or concept
Criminal Damage

reckless or
intention
murder
murder

murder

murder
murder

murder

Common Law rules on Mens Rea

In criminal damage recklessness is the
test
for Criminal Damage
is
always
objective recklessness
Mens rea subjective recklessness used in
most crimes malice means reckless or
intention
Mens rea of murder, intention to commit
homicide or grievous bodily harm
For Mens rea of murder, intention to kill or
intention to GBH is needed. intention can
be formed instantly and can be inferred
Mens rea of murder, intention can be
inferred held to have caused that death and
to have done so intentionally, even though
that would not have been his primary
motive.
Mens rea of murder, intention includes
knowledge or foresight
In mens rea of murder foresight is evidence
of intent, not necessarily is intent. The
judge should have made it clear that
foresight was merely evidence of intent and
was not to be equated with it.
For murder intention must be proved

Related Case
examples
Caldwell, R v (1982)

Cunningham, v[1957]

Cunningham,R v 1981)
Smith, DPP v [1960]

Re A (Children) (2000)

Nedrick, R v (1986)
Scalley, R v [1995]

Sheehan & Moore, R

v [1975]
16 | P a g e

CRIMINAL LAW
murder
manslaughter

mistake
Offences under
Data Protection
Act
Grievous bodily
harm(GBH)

Grievous bodily
harm(GBH)
pornography

transferred malice

assault

assault

assault

assaults

Mens rea of murder, intention not formed

when intoxicated.
Mens rea of transferred malice in
manslaughter. D intention to assault X can
transferred to C.
to prove mens rea general defences of
mistake need subjective test
Only some regulatory offences, such as the
requirements of the Data Protection Act
require Caldwell Recklessness
Mens rea of assault (s20) GBH need to
foresee some harm not necessarily the
harm caused. She would only have had
the mens rea if she had at least foreseen
that he might suffer some harm. s.20 was
satisfied only by proof of what D actually
foresaw
In Mens rea of (s20) GBH not only foresaw
but also level of foresight required
For mens rea in pornography knowledge is
sufficient. video recordings It was not
necessary for the prosecution to prove that
D knew the nature of the material only that
he knew it was indecent
Mens rea of transferred malice must be
same crime. The intention to strike C was
transferred to V under the doctrine of
transferred malice, although the result, in
some respects, is an unintended one.
Mens rea of transferred malice in assault
cannot be transferred to a different offence;
His "malice" in intending to strike another
person could not be transferred to an
intention to break the window.
Mens rea of assault did D, or would D, if
sober, foresee the consequences V can
consent to horseplay what another person
would have foreseen but what DD
themselves would have foreseen had they
been sober.
Mens rea of Cunningham recklessness
required in assault. D had "just as truly
assaulted the next user of the machine V
as if D had himself switched the machine
on"
Mens rea of Cunningham Recklessness
applicable in assaults. In cases involving
offences against the person, subjective

Lipman, R v [1969]
Mitchell, R v [1983]

B (a minor) v DPP
Data Protection
Registrar v Amnesty
International[1995]
Grimshaw, R v(1984)

DPP v A [2000]
Forbes (Giles), R v
(2000)

Latimer, R v (1886

Pembliton, R v(1874)

Richardson & Irwin,

R v [1999]

K, DPP v (1990)

Spratt, R v (1990)

17 | P a g e

CRIMINAL LAW

Assault
Assault
Assault
Assault

Assault
indecent assault
actual bodily
harm

actual bodily
harm and
common assault
driving offences&
motoring cases
driving offences&
motoring cases
driving offences
& motoring cases

driving offences&
motoring cases
action not aimed
at police

attempt

rape

foresight under the Cunningham test is

required to prove recklessness.
Assault (Sec 20) objective recklessness
(Caldwell) not enough.
Mens rea assault specific intent needed for
(Sec 18)
Mens rea in assault (Sec 20) recklessness
and malice intention are not the same.
Assault (malicious wounding) intention no
risk seen D had not foreseen the risk of
harm; on the contrary, he had considered
the matter and decided there was no risk
In Assault
no mens rea because of
drunkenness
Mens rea of
Recklessness in indecent
assault cases is subjective
Mens rea of ABH, occasioning refers to
causation not the assault, and is an
objective test. If the (common) assault was
intentional there is no need to consider
Recklessness.
subjective recklessness apply in ABH and
common assault, intention or recklessness
foresee some harm not necessarily the
harm caused
Mens rea of reckless driving model
direction
driving knowing load is unsafe is reckless
Objective recklessness is relevant to
motoring cases. Recklessness could not be
restricted to a subjective test and included
failing to appreciate an obvious risk.
Caldwell recklessness applicable to prove
the Mens rea of a manslaughter caused by
reckless driving
D willfully obstructed a police man of his
duty if he deliberately did an act which,
though not necessarily aimed at or hostile
to the police, in fact prevented a police man
from carrying out his duty or made it more
difficult for him to do so, and if he knew and
intended that his conduct would have that
effect.
Intent is an essential ingredient of an
attempt and is the only mens rea of
attempts.
To be guilty of rape Mens rea required

Farrell, R v [1989]
Belfon, R v [1976]
Dolbey, W (A minor)
v [1983]
Flack v Hunt (1979)

Stubbs, R v (1989)
Kimber, R v (1983)
Roberts, R v (1971)

Savage; Parmenter, R
v (1992)

Lawrence, R v(1982)
Crossman, R v(1986)
Reid, R v (1992)

Seymour, R v(1983)

Lewis v Cox [1985]

Mohan, R v (1976)

Satnam, R v; Kewal, R
18 | P a g e

CRIMINAL LAW
is recklessness of Cunningham type. D
must know the woman did not want to have
sexual intercourse, or was reckless as to
whether she wanted it or not.

v (1985)

Table1.2
Therefore it is clear that, to be guilty for different offences, the accused must have at least
the minimum level of mens rea required for the offence. This concept was a result of
evolution over centuries by the judges through their decisions and then through the statutes.

Reference:
1. UNLOCKING CRIMINAL LAW, Jacqueline Martine & Tony Storey, ISBN: 978 444
109 153, Hodder Education an Hachette UK Company, 3rd Ed., Ch 3, pp 55-66
2. R v Calhaem [1985] QB 808
1. UNLOCKING CRIMINAL LAW, Jacqueline Martine & Tony Storey, ISBN: 978 444
109 153, Hodder Education an Hachette UK Company, 3rd Ed., Ch 3, p56
3. DPP v Smith [1960] 3 All ER 161
4. (section 8) Criminal Justice Act 1967
5. R v Kimber [1983] 1 WLR 1118
6. R v Ghosh [1982] 3 WLR 110
7. R v Latimer (1886) 17 QBD 359
8. B (a Minor) v Director of Public Prosecutions (2000) 1 ALL ER 833
9. R v Belfon [1976] 1 WLR 741
10. R v Caldwell [1982] AC 341
11. R v G and R [2003] UKHL 50
12. R. v.Crossman [1986] R.T.R. 49
13. R Cunningham [1981] 2 All ER 863
14. Data Protection Registrar -v- Amnesty International (British Section) CO 1323/94;
[1995] Crim L R 633
15. W (a Minor) v Dolbey [1983] Crim L. R.681
16. DPP v Armstrong 1999 EWHC QB 270, 2000 Crim LR 379
17. R v Farrell [1989]. CLR 376
18. Flack v Hunt (1980) Crim. L.R. 44
19. R v Forbes (2000) All ER (D) 2291
20. R v Grimshaw [1984] Crim LR 108
21. DPP v K (a minor)[1990] 1 WLR 1067
22. R v Scalley [1995] Crim LR 504
23. R v Seymour [1983] 2 AC 493
24. v Sheehan and Moore (1975) 60 Cr App R 308
25. R v Stubbs (1989) 88 Cr App R 53
26. R v Taaffe [1984] AC 539
27. R v. JAKEMAN. (1982) 76 Cr App R 223

19 | P a g e

CRIMINAL LAW

1.4 Critically analyse with the relevant provisions of Penal code

and decided cases whether Janaka and Amal criminally liable
for Sujiths death.
(Class activity)

20 | P a g e

CRIMINAL LAW

2.1 Describe the defense available under the Penal Code of Sri
Lanka for the offences referred in the given Scenario (2a)
Scenario (2a)
Hassan on a train when he saw what he thought was a man assaulting a youth. In fact it was
a man trying to arrest the youth of mugging a young lady. Hussain got off the train at
Gampola station and asked what was happening. The man said he was a police officer
arresting the youth, but when Hussain asked him to show his police ID card he could not do
so. There was then a struggle between Hussain and the man in which the man was seriously
injured.

Introduction
The defences which are available to offences depend on the wording of the statute and rules
of the common law. There are two types of defences.
General Defence
Insanity (Section 77)

self defence (Section 89-99)

Mitigatory Defence
Duress (except
murder,
attempted
murder and some forms of treason)
(Section 87)
Necessity (except murder, attempted
21 | P a g e

CRIMINAL LAW

mistake
automatism
Intoxication (involuntary) (Section 78)
Marital coercion (except treason and
murder)

Infancy (Section 75 & 76)

Consent (Section 80-85)
Private defence (section 89-99)

murder and some forms of treason)

(Section 74)
mistake
infanticide
Intoxication
Diminished responsibility

Loss of control

Table 2.1

Discussion
Section 89 of the Penal code explains;
Nothing is an offence which is done in the exercise of the right of private defence.
Again in the section 90 shows extent of the defence which some person can plea under it.
Every person has a right ., to defend; . His own body and the body of any other
person, against any offence affecting the human body;
According to this it is very clear the idea of the defence available in broad sense not only
ones own body but also to the human body.
Section 92 states the limitation of the defence, instances which no right of private defence
available against certain acts. There the law has covered and protect public servants by
disallowing the private defence against their acts. But in Explanation 1 and 2 say that;
A person is not deprived of the right of private defence against an act done, or attempted to
be done by,
a public servant, as such, unless he knows, or
has reason to believe, that the person doing the act is such public servant.
Or
the direction of a public servant, unless he knows, or has reason to believe, that the
person doing the act is acting by such direction ; or
unless such person states the authority under which he acts, or.
if he has authority in writing, unless he produces such authority, if demanded.
Therefore it is clear that if the public servant unable to prove his authority still private
defence is available for the defendant.
In Gladstone (1984)1 D was not guilty of assault to a police officer. There D saw a man
assaulting a youth. The youth was calling for help. In the fact man was a police officer who
22 | P a g e

CRIMINAL LAW
was arresting the youth lawfully at that time. But D intervened to the struggle, honestly
believing that he was preventing an unlawful assault. According to the fact the court decided
that his belief was not unreasonable. Therefore he cannot uphold for assaulting the police
officer though the officer was acting in good faith under color of his office.
Hassans case can be identified misjudging circumstance mistakenly as to self-defence on
the facts. Hassan honestly believes that he is helping the youth. Again he could not verify the
authority of the officer, may be because of he was not on duty. But Hassan asked his police
ID card but he was failed to do so. Therefore his plea under private defence would no be
restricted under the section 92 of the penal code. Hassan did not have a reasonable ground
to believe that he was a police officer.
Lord Lane CJ said in the Gladstone case that
the jury should be directed
first of all that the prosecution have the burden or duty of proving the unlawfulness of the
defendant's actions;
secondly, if the defendant may have been labouring under a mistake as to the facts, he must
be judged according to his mistaken view of the facts;
thirdly, that is so whether the mistake was, on an objective view, a reasonable mistake or
not.
In Beckford (1988)2 D, police officer shot dead a suspect. The suspect had told that he was
armed and dangerous. D shot him because he feared for his own life. But later found he was
unarmed at that time. The prosecution case was that the victim had been unarmed and thus
presented no threat to the defendant. The trial judge directed the jury that the defendant's
belief in the need to shoot in self-defence had to be both honest and reasonable. Therefore
he upheld the conviction. But the Privy Council rejected this direction and approved the
approach in Williams.
Lord Griffiths commented that juries should be given the following guidance:
"Whether the plea is self-defence or defence of another, if the defendant may have been
labouring under a mistake as to facts, he must be judged according to his mistaken belief of
the facts: that is so whether the mistake was, on an objective view, a reasonable mistake or
not."
Here three elements had been outlined clearly.
1. He honestly believed the facts he was aware were true.
2. He reacted on his belief.
3. His reaction was reasonable.
The police officer therefore, had a defence of self-defence because the killing was not
unlawful if, in the circumstances as he perceived them to be, he had used reasonable force
to defend himself. Hassan was not guilty of assault the man.
Accordingly to accept the defence on the ground private defence those facts should make
clear. In Hassans case those elements are very clear;
1. Hassan attacked under a mistake as to facts,
2. he judged according to his mistaken belief of the facts; and
3. it was a reasonable mistake on an objective view.
23 | P a g e

CRIMINAL LAW

Conclusion
Hassan is liable to plea under on the footing private defence under sections 89 and 90 of
the penal code.
He will not comes under restrictions of section 92 because had no reason to believe that he
was a police officer.
According to the judgments at R v Williams (Gladstone) (1984) and R v Beckford (1988) it
is further clear that he is not guilty for attacking the police officer.

Reference

1. R v Williams (Gladstone) (1984) 78 Cr App R 276

2. R v Beckford (1988) 1 AC 130

2.2 Critically assess whether defence of duress is available to

Kannan for the offence referred in the given scenario 2(b)
under the Sri Lankan and English law.
(Class Activity)

24 | P a g e

CRIMINAL LAW

2.3 With reference to relevant section and illustrations of Penal

critically discuss the defense of Private defense and necessity
Scenario (2a)
Kannan was 19 years old boy whose parents were separated. His mother is working as a
house maid in Kandiahs house. Kandiah is a reputed lawyer. Kannans father thought that
his separated wife had a special and intimate relationship with Kandiah. Kannan was
threatened with violence by his father unless he agreed to stab his mother. Kannan attacked
his mother but did not kill her. He was charged for an attempted murder.

Introduction
An accused person is presumed innocent until proven guilty. In the prosecution the
prosecutor may have to disapprove a defence which the defendant raises. For all common
law defences except insanity the defendant only has to raise some evidence to the key point
defence. 1 Private defence and necessity are two defences available for defendants under
different circumstances.
25 | P a g e

CRIMINAL LAW
Private defence can divide into two branches according to it are extending;
a) Self-defence
b) Public defence
According to U.S. law the right of self-defense is the right for civilians acting on their own
behalf to engage in violence for the sake of defending one's own life or the lives of others,
including the use of deadly force.2 Public defence in preventing the crimes protecting others.
In U.S. criminal law, necessity may be either a possible defence or exculpation for breaking
the law. Defendants seeking to rely on this defense argue that they should not be
held liable for their actions as a crime because their conduct was necessary to prevent some
greater harm and when that conduct is not excused under some other more specific
provision of law such as self defense. 3

Discussion
Private defense
According to the section 89 of the penal code Nothing is an offence which is done in the
exercise of the right of private defence. Again it says Every person has a right.. to
defend4 under private defense for a threat against;
1. His own body, and the body of any other person, against any offence affecting the
human body;
2. The property, whether movable or immovable, of himself or of any other person,
against any act which is an offence falling under the definition of theft, robbery,
mischief, or criminal trespass, or which is an attempt to commit theft, robbery,
mischief, or criminal trespass.
Therefore it is very clear that private defence available for protection from offence affecting;
1.
2.
3.
4.

His own body

Any other human body
His own property
Property of any other person

Offences which the property must be protected also stated clearly;

theft,
robbery,
mischief, or
criminal trespass,
an attempt to commit theft,
an attempt to commit robbery,
an attempt to commit mischief, or
an attempt to commit criminal trespass.
There are other circumstances where every person has the same right of private defence
against, they are;
1. offence by reason of the youth,
2. the want of maturity of understanding,
26 | P a g e

CRIMINAL LAW
3. the unsoundness of mind, or
4. the intoxication of the person doing that act or
5. by reason of any misconception on the part of that person.5
As an example if Z, under the influence of madness, attempts to kill A; Z is guilty of no
offence. But A has the same right of private defence which he would have if Z were sane.
(Illustrations a)
A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a
housebreaker, attacks A. Here Z, by attacking A under this misconception. Here A commits
no offence, but A has the same right of private defence against Z which-.he would have if Z
were not acting under that misconception. (Illustrations b)
These are the circumstances which can be justified by the either angles of A or Z. Anyway
this concept ensures the right of all people to protect against the attacks of the others. This
is a very vital concept. Because of the security is an essential requirement for all, through
out their lifetime.
Also right of this defence is subjected to the restrictions contained in section 92. It states the
acts against which there is no right of private defence.
1. There is no right of private defence against an act which does not reasonably cause
the apprehension of death or of grievous hurt, if done, or attempted to be done, by a
public servant acting in good faith under color of his office, though that act may not
be strictly justifiable by law.
2. There is no right of private defence against an act which does not reasonably cause
the apprehension of death or of grievous hurt, if done, or attempted to be done, by
the direction of a public servant acting in good faith under colour of his office, though
that direction may not be strictly justifiable by law.
3. There is no right of private defence in cases in which there is time to have recourse
to the protection of the public authorities.
4. The right of private defence in no case extends to the inflicting of more harm than it
is necessary to inflict for the purpose of defence.
A person is not deprived of the right of private defence against an act done, or attempted to
be done by a public servant, or other person by the direction of a public servant, as
such, unless he knows, or has reason to believe, that the person doing the act is such public
servant or that the person doing the act is acting by such direction or unless such person
states the authority under which he acts, or if he has authority in writing, unless he produces
such authority, if demanded. (Explanation 1 & 2)
The right of private offence of the body extends to the voluntary causing of death or of any
other harm to the assailant in a case of; (Section 93)
1. Such an assault as may reasonably cause the apprehension that death will otherwise
be the consequence of such assault;
2. Such an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault;
3. An assault with the intention of committing rape;
27 | P a g e

CRIMINAL LAW
4. An assault with the intention of gratifying unnatural lust;
5. An assault with the intention of kidnapping or abducting;
6. An assault with the intention of wrongfully confining a person, under circumstances
which may reasonably cause him to apprehend that he will be unable to have
recourse to the public authorities for his release.
But in offences other than stated, person do not have right to voluntary causing of death but
still have the right of private defence and have the right of voluntary causing any harm other
than death to the assailant. (Section 94)
The right of private defence of the body commences as soon as a reasonable apprehension
of danger to the body arises from an attempt or threat to commit the offence, though the
offence may not have been committed. and it continues as long as such apprehension of
danger to the body continues.(Section 95)
The right of private defence of property start extends, if the offence, the committing of
which, or the attempting to commit which, occasions the exercise of the right, be an offence
of any of the descriptions hereinafter enumerated (Section 96)

Robbery;

House-breaking by night;

Mischief by fire, or explosives committed on any building, tent, or vessel, which

building, tent, or vessel is used as a human dwelling, or as a place for the custody of
property;

Theft, mischief, or house-trespass under such circumstances as may reasonably

cause apprehension that death or grievous hurt will be the consequence if such right
of private defence is not exercised.

In offences against property or the attempting to commit which other than stated, person do
not have right to voluntary causing of death but still have the right of private defence and
have the right of voluntary causing any harm other than death to the assailant. They are;
theft,
mischief, or
criminal trespass (Section 97)
Commencement and continuance of the right of private defence of property up to such
extend where that person clear his mind and feel secure in above offences against property.
98
1. The right of private defence of property commences when a reasonable
apprehension of danger to the property commences.
2. The right of private defence of property against theft continues till the offender has
effected his retreat with the property or the assistance of the public authorities is
obtained, or the property has been recovered.
3. The right of private defence of property against robbery continues as long as the
offender causes or attempts to cause to any person death or hurt or wrongful
28 | P a g e

CRIMINAL LAW
restraint; or as long as the fear of instant death or of instant hurt or of instant
personal restraint continues.
4. The right of private defence of property against criminal trespass or mischief
continues as long as the offender continues in the commission of criminal trespass or
mischief.
5. The right of private defence of property against house-breaking by night continues as
long as the house-trespass which has been begun by such house-breaking
continues.
If in the exercise of the right of private defence against an assault which reasonably causes
the apprehension of death, the defender is so situated that he cannot effectually exercise
that right without risk of harm to an innocent person; his right of private defence extends to
the running of that risk. 99
A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right
of private defence without firing on the mob, and he cannot fire without risk of harming young
children who are mingled with the mob. A commits no offence'. it by so tiring he harms any of
the children. (Illustration)
In Chandradasa, e. V. The queen (NLR - 439 of 55) D charge of murder. But Plea of self
defence. The mere fact that the accused himself, or his counsel, has contended for a
complete acquittal on the ground of self-defence does not excuse the jury from considering,
or the trial Judge from directing them upon, the question as to whether the true facts would
not necessitate a verdict of culpable homicide not amounting to murder.
THE KING v MUTTU (NLR - 516 of 47) was a Sri lankan case on private defence. D was
on a charge of murder, when there is sufficient evidence of the exercise of the right of
private defence, it is a grave misdirection if the summing up misleads the jury into thinking
that the accused had exceeded the right of private defence.
MEDIWAKE v DE SILVA (NLR - 190 of 42) In a charge of criminal trespass failure to
specify the offence which was intended to be committed is a material omission which cannot
be cured under section 425 of the Criminal Procedure Code unless such offence was
obvious from the evidence. An act, which is justified as being within the limits of the right of
private defence, cannot give rise to a right of private defence in turn. Mendis v. Silva (I C.
W. R. 124) followed.
In the case QUEEN v PODI BABA (NLR - 23 of 1) There was a defective warrant of
arrest-Competency of a police headman as public servant to arrest a person charged with
robbery, independently of a warrant- Causing hurt to such servant-Plea of private defence.
Causing hurt to a police headman, while in good faith and under colour of his office he was
executing a defective warrant of arrest upon a person charged with robbery, is an offence
under section 323 of the Penal Code. And in the absence of any act on the headman's part
to cause reasonable apprehension of death or grievous hurt, the right of private defence
cannot be availed of against an arrest made by such public servant, who believed bonafide
that he had the power to make the arrest
THE QUEEN v M. RAYMAN FERNANDO (NLR - 1 of 66) Evidence-Statement made by
accused to police officer-Evidence of omission to mention therein facts subsequently
narrated by the accused from the witness-box- Admissibility-Evidence Ordinance, ss. 8 (2),
9, 155,-Criminal Procedure Code, s. 123. Although, under section 155 of the Evidence
Ordinance, the credit of a witness may be impeached by proof of a former statement
inconsistent with any part of his evidence which is liable to be contradicted, omission to
29 | P a g e

CRIMINAL LAW
mention in the former statement a relevant fact narrated by him in evidence subsequently
does not fall within the ambit of the expression '' former statement ''. In a trial for murder the
accused, when he gave evidence, stated that he had acted in self-defence. In crossexamination he was asked whether, in his statement to the police, he had mentioned about
self-defence, and his answer was that he had done so. At the close of the case for the
defence, the prosecution was permitted by the Court to call the police officer in question to
give evidence in rebuttal. In answer to questions put by Crown Counsel, the police officer
denied that the accused, in the statement made by him, had made any reference to having
acted in self-defence. The court held that the evidence of the failure of the accused to
narrate to the police officer the facts which he narrated from the witness-box was not
admissible under section 155 of the Evidence Ordinance. Nor was it admissible under
section 8 (2) or under section 9 of the Evidence Ordinance.
SINNALEBBE ET AL V. THE POLICE (NLR - 405 of 47) D applied private defence. He was
wrongful arrested by public servant. Arrest wholly illegal-Arrested persons right of private
defence under Code, 8. 92 (1) Section 92 (1) of the Penal Code does not deprive a person
of the right of private defence against on act done by a public servant if the act of the public
servant is wholly illegal. Goonesekere v. Appuhamy (1935) 37 N. L. R. 11 and The King v.
Simon Appu (1926) 38 N. L. R. 240 followed.
In SOYSA, L.H. V. THE QUEEN (NLR - 252 of 55) D was charged of murder. He plead of
self-defence. He had exceeded right of private defence. Jury's rider recommending mercyEffect on reasonableness of verdict. Appellant, who was convicted of murder, gave evidence
at the trial stating that he had killed the deceased in self-defence. As regards the second
exception to section 294 of the Penal Code, the presiding Judge directed the jury that if the
accused exceeded the right of private defence he was guilty of culpable homicide not
amounting to murder. It was contended for the appellant that the jury should also have been
directed to consider whether the appellant had acted without any intention of doing more
harm than was necessary for the purpose of such defence, and that the omission of such a
direction made the direction that was given misdirection. Court held, that there was no
misdirection. On the contrary the direction was unduly favourable to the appellant.

Necessity
Common-law and statutory definitions of the necessity defense include the following
elements: 1
1.
2.
3.
4.

defendant acted to avoid a significant risk of harm;

no adequate lawful means could have been used to escape the harm;
harm avoided was greater than that caused by breaking the law; and
harm must have been imminent and that the action taken must have been
reasonably expected to avoid the imminent danger.

These elements contrast the principles of the defense of necessity: 6

blind adherence to the law will not achieve highest social value, what society expect;
people who violate law under necessity acting to promote or achieve a higher social
value, therefore it is unjust to punish them; and
even if doing so necessitates a technical breach of the law, it is the society's best
interest to promote the greatest good and to encourage people to seek to achieve the
greatest good.

30 | P a g e

CRIMINAL LAW
Section 74 of the penal code define the defence necessity as act likely to cause harm but
done without a and to prevent other harm Nothing is an offence merely by reason of its being
done with the knowledge criminal intent, that it is likely to cause harm if it be done without
any criminal intention to cause harm and in good faith for the purpose of preventing or
avoiding other harm to person or property.
In the explanation it says that, It is a question of fact in such a case whether the harm to be
prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of
doing the act with the knowledge that it was likely to cause harm. Here it justify or excuse
the risk of doing the act with the knowledge that it was likely cause harm.
Illustration (a) of the section makes it clearer.
A, the captain of a steam vessel, suddenly and without any fault or negligence on his part,
finds himself in such a position that, before he can slop his vessel, he must inevitably run
down a boat, B. with twenty or thirty passengers on board, unless he changes the course of
his vessel, and that, by changing his course, he must incur risk of running down a boat. C,
with only two passengers on board, which he may possibly clear. Here, if A alters his course
without any intention to run down the boat C, and in good faith for the purpose of avoiding
the danger to the passengers in the boat B. he is not guilty of an offence, though he may run
down the boat C by doing an act which he knew was likely to cause that effect, if it be found
as a matter of fact that the danger which he intended to avoid was such as to excuse him in
incurring the risk of running down the boat C.
In here had a chance the cargo and enhancing the danger of loss of the ship on the one
hand and of discarding the cargo as a means of saving the ship on the other. Therefore the
captain has chosen the reasonable choice.
Illustration (b) state an incident where necessity can plea for destruction of properties.
A in a great fire pulls down houses in order to prevent the conflagration from spreading. He
does this with the intention, in good faith, of saving human life or property. Here, if it be found
that the harm to be prevented was of such a nature and so imminent as to excuse A's act, A
is not guilty of an offence.
The Criminal Law Commissioners, who were attempting to define English, considered the
matter of necessity several times; 7
a) Fourth report, Digest of Law (Art.39) 1839, included necessity as a defence
to homicide;
b) Seventh report (Art.29) 1843, also included the defence necessity;
Requisite elements of the defence necessity8 can be pointed out;
1. The exigency of the situation is making a choice between two alternative courses of
action, one is entirely lawful and other prima facie unlawful but prevent serious harm
to a person or property. This second action entitles infraction of the criminal law by
accused. The legal issue is whether the accused has chosen lesser of the two evils
as a reasonable man.
Validity of defence depend on relative gravity of the risk attend in the circumstance
and positive response tantamount of breach of the criminal law.
2. Accused may invoke the defence legitimacy only in circumstances where he can be
said to have had no choice other than committing the offence.
3. Whether the accused act is consist with the object of preservation of the greater
value in circumstances which inevitably involve a conflict of values. The fact that
responsibility is impossible to the accused in regard to the pre existing situation is a
31 | P a g e

CRIMINAL LAW
ground on which he defences of necessity may be disallowed. 9 The most important
thing is there should not be fault or negligence on accused part.
The accused entitle for the benefit of the defence will be allowed on the basis objective
standards of the situation. This evaluation may base on; 10
a) Qualitative criteria
b) Quantitative criteria
As an example; a driver who swerves the vehicle to avoid a cattle which unexpectedly cross
the road, as doing so, kill a pedestrian. He would be protected by the necessity. Because of
human life is worthier than an animal life.
It is an obvious feature to balance the value of the two situations.
Other example a person who borrows a car without the permission of the owner for the
purpose of taking a patient to the hospital in an emergency situation may grant the defence.
Again a fire extinguisher who break a property for the purpose of saving a human life also
liable for the defence necessity.
If the both alternatives have equal value the next consideration should be the amount. As an
example in the illustration (a) the captain kills smaller number of people to save lives of large
number of people in the ship. Therefore that situation is fair enough to allow the defence
necessity though all human lives have equal value.
Granwill Williams stated that;
We need a general rule, and one allowing necessity as a defence to homicide where the
majority are killed to preserve the majority is, on the whole, more satisfactory than the
opposite.11
There is argument about application of necessity English law. Anyway in 1878-1879,
declined to codify the defence necessity in UK as it was "better to leave such questions to be
dealt with when, if ever, they arise in practice by applying the principles of law to the
circumstance of the particular case."
R v Dudley and Stephens [1884]12 is one of the leading English criminal case that
established a precedent, that necessity is no defense against a charge of murder.
Dudley, Stephens, Brooks, and Parker, the cabin boy who was 17 years old and an
inexperienced seaman, were crew members on a yacht. They were cast adrift 1600 miles
from land in an open lifeboat. After 12 days, they were out of
foods. Dudley and Stephens suggested to Brooks that one person might have to be
sacrificed to save the others. But Brooks dissented. Without consulting
him, Dudley and Stephens killed Parker on the 20th day. They were rescued 4 days after the
murder; they would have all died if they had not fed off of Parker's remains. Homicide may
not be excused when the person killed is an innocent and unoffending victim. It concerned
survival cannibalism following a shipwreck and its purported justification on the basis of a
Custom of the Sea.
Here Murnaghan J, said that murder is a crime so heinous that [it] should not be committed
even for the price of life and in such a case the strongest duress would not be any
justification The question is they survived three lives by killing one boy, they would have all
died if they had not fed off of Parker's remains, isnt it fair enough to grant the defence.
According to my point view that was a situation where the defence should be available as a
plea. But if the same incident happened today the result might change than this.

32 | P a g e

CRIMINAL LAW
Re A (Children) [2001]13 was an English Court of Appeal decision on the surgical separation
of conjoined twins. It was subjected to a greater consideration because it raised few legal,
ethical and religious dilemmas. Questions raised were;

whether it would be permissible to kill one of the children to save the other? and

whether it was permissible to act against the wishes of the twins' parents?

"Jodie" and "Mary were conjoined twins, who were joined at the pelvis and were born on 8
August 2000. The medical evidence showed that Jodie was the stronger sibling and he was
sustaining the life of Mary. If surgically separated Jodie could live but Mary would die. If they
not been separated and there would have been a chance that they could have died before
they were one year old.
The Court of Appeal judges who presided over the case gave very different legal reasoning.
Lord Justice Alan Ward suggesting that;
"If Jodie could speak she would surely protest, Stop it, Mary, you're killing me."
Lord Justice Brown relied upon R v Dudley and Stephens and invoked necessity as a
defence. Lord Justice and Robert Walker focused upon the intention of the surgeons in
concluding that surgeons can carry out the surgery. The operation to separate the twins took
place on the 7th November 2000. As expected Jodie survived the operation and Mary died.

Conclusion
The latest developments on necessity as a defence to murder, has remarkably stated by the
authors of the Smith & Hogan textbook of criminal law in his book. They think that
following the destruction of the World Trade Center in New York it now appears to be
recognized that it would be lawful to shoot down the plane, killing all the innocent
passengers and crew if this were the only way to prevent a much greater impending
disaster, and this on the basis of necessity as a defence. If American army shoot down the
plane and kill all innocent passengers before they struck to the building is it comes under the
necessity? Same situation frequently occur in battle fields today. Hundreds and thousands of
innocent civilians die due to military missions. The only defences available for the relevant
governments are the necessity. They justify all of their attacks by bringing forward the
defence necessity. Is it fair or not? It isnt a question of law but a question of facts.

Reference
1. UNLOCKING CRIMINAL LAW, Jacqueline Martine & Tony Storey, ISBN: 978 444 109
153, Hodder Education an Hachette UK Company, 3rd Ed., Ch 1, p 19
2. http://en.wikipedia.org/wiki/Right_of_self-defense on
3. http://en.wikipedia.org/wiki/Necessity on
4. Section 91 Penal code
5. ibid
6. http://legal-dictionary.thefreedictionary.com/Necessity+defense on
7. http://en.wikipedia.org/wiki/R_v_Dudley_and_Stephens on
8. GENERAL PRINCIPLES OF CRIMINAL LIABILITY IN SRI LANKA A Comparative
Analysis, G.L. PERIS, ISBN 955-8156-18-3, Stamford Lake (Pvt.) Ltd., ch 6 po 237
9. ibid ch 6 p 239
10. ibid ch 6 p 240
11. Glanville Williams, Criminal Law: The General Part, ISBN, 0420382909 ,Stevens & Sons,
1953, 2nd edition, Ch 2 p54
12. R v Dudley and Stephens [1884] 14 QBD 273 DC
33 | P a g e

CRIMINAL LAW
13. Re A (Children) (Conjoined Twins: Surgical Separation) [2001 ] Fam 147

3.1 In the context of the above statement (task 3) critically

examine the position of law relating to offences where
secondary party (to an offence) could be found guilty even
though the principal offender is acquitted.
(Class Activity)

34 | P a g e

CRIMINAL LAW

3.2 Identify the role of principal offender and secondary

offender under the criminal law.
Introduction
When there is more than one participant in a crime, the various offenders play different roles.
The principal offender is one who most directly and immediately linked with the actus reus of
the crime. Others who aid, abet, procure or council to the principal are called as secondary
parties.
E.g. A shoots B with a gun. C hands the weapon to the perpetrator. D shouts encouragement
to the attacker. A is the principal. C and D are secondary parties.
If secondary participants do not create a multiplicity of offences, there remains only one
crime. The relevant statutory provision in UK is;
Accessories and Abettors Act 1861 (amended by Schedule 12 Criminal Law Act 1977) It
says;

35 | P a g e

CRIMINAL LAW
whosoever shall aid, abet, counsel or procure the commission of any indictable offence
whether the same be an offence at common law or by virtue of any act passed or to be
passed shall be liable to be tried, indicted and punished as a principal offender1
There we can identify the ways which someone can participate for an offence;
1) aid,
2) abet,
3) counsel or
4) procure.

Discussion
In Sri Lanka penal Code;
A person abets the doing of a thing who
Firstly - Instigates any person to do that thing; or
Secondly- Engages in any conspiracy for the doing of that thing; or
Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing defines as
Abetment of the doing of a thing.2
It explains;
A person who by willful misrepresentation or by willful concealment of a material fact which
he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a
thing to be done, is said to instigate the doing of that thing. (Explanation 1)
It further explains;
A conspiracy for the doing of a thing is when two or more persons agree to do that thing or
cause or procure that thing to be done, A person within the jurisdiction of the court abets an
offence by engaging with one or more Other persons beyond the Jurisdiction of the court in a
conspiracy for the commission of an offence by them, or either of them, or by any other
person. (Explanation 2)
And at last it explains;
Whoever, either prior to or at the time of the commission of an act does anything in order to
facilitate the commission of that act, and thereby facilitates the commission thereof, is said to
aid the doing of that act. (Explanation 3)
It further define abettor as;
A person abets an offence who abets either the commission of an offence or the
commission of an act which would be an offence if committed by a person capable by law of
committing an offence with the same intention or knowledge as that of the abettor.3
There it explains the form of a abettor using 3 explanations;
Explanation 1
The abetment of the illegal omission of an act may amount lo an offence although the
abettor may not himself be bound to do that act.

36 | P a g e

CRIMINAL LAW
Explanation 2
To constitute the offence of abetment, it is not necessary that the act abetted should be
committed, or that the effect requisite to constitute the offence should be caused.
Explanation 3
It is not necessary that the person abetted should be capable by law of committing an
offence, or hat he should have the same guilty intention or knowledge as that of the abettor,
or any guilty intention or knowledge.
Explanation 3
The abetment of an offence being an offence, the abetment of such an abetment is also an
offence.
Explanation 3
It is not necessary to the commission of the offence of abetment by conspiracy that the
abettor should concert the offence with the person who commits it. It is sufficient if he
engage in the conspiracy in pursuance of which the offence is committed.
Section 102 state the punishment for abetting.
Whoever abets any offence shall, if the act abetted is committed in consequence of the
abetment, and no express provision is made by this Code for the punishment of such
abetment, be punished with the punishment provided for the offence
Section 103 Whoever abets the commission of an offence shall, if the person abetted does
the act with a different intention or knowledge from that of the abettor, be punished with the
punishment provided for the offence which would have been committed if the act had been
done with the intention or knowledge of the abettor and with no other. it is not necessary to
have the same mens rea in both the principal and the abettor until both aggregate together
for some kind of criminal act. Here the accessory can have a different intention than the
principal, but still accessory liable for the offence because he has knowledge or intention
about some kind of criminal act.
Section 104 When an act is abetted and a different act is done, the abettor is liable for
when the act done, in the same manner and to the same extent as if he had directly abetted
it; here it is clear that the secondary party cannot escape his liability easily until the principal
commit the criminal action.
Liability as a secondary participant is a common law concept. It applicable to all offences
whether indictable or. There is an equivalent to definition in Accessories and Abettors Act
1861 regards summary offences in Magistrates Courts Act 1980 which provides that;
a person who aids, abets, counsels or procures the commission by another person of a
summary offence shall be guilty of the like offence and may be tried (whether or not he is
charged as a principal) either by a court having jurisdiction to try that other person or by a
court having by virtue of his own offence jurisdiction to try him.4
Some statutes make explicit that being an accessory to an offence is an offence. If a case
where the principal offender is guilty for a crime the secondary party can be liable for aid,
abet, council or procure for that crime. But mens rea of the secondary party should be
proved. To prove the mens rea of secondary liability the defendant must have had
37 | P a g e

CRIMINAL LAW
knowledge of the type of crime to be committed and had the intention to aid, abet, counsel or
procure.
There are circumstances where a secondary party could be found guilty even though the
principal offender is acquitted.
1. if the principal lacks mens rea
2. if the principal has a defence
If the principal of the actus reus of a crime do not have mens rea or not guilty because of a
defence such as infancy or insanity, become an innocent agent of the crime. Then the the
person most closely connected with the agent is the principal. [Bourne (1952) & Coagan
and leak (1976)]

Conclusion
Secondary party also liable for the same punishment which principal party liable is. If the
principal offender escape his liability because of a defence or lack of mens rea the
secondary party still can liable for the offence.

Reference
1.

(Section 8) Accessories and Abettors Act 1861

2. S 100 penal Code
3. S 101 penal Code
4. section 44(1) Magistrates Courts Act 1980

3.3 The legal effect and punishment for attempted crimes are
different fro committed crimes. Discuss.
(Class Activity)

38 | P a g e

CRIMINAL LAW

3.4 Critically evaluate the legal principles articulated in the

cases of R v Bourne (1952)App R 1251 and R v Coagan and
Leak(1976) QB 217, in the context of participation in crimes.
(Class Activity)

39 | P a g e

CRIMINAL LAW

3.5 The offence under the Criminal law, generally classified into
offence committed against person and offence committed
against property. Critically evaluate this statement with relevant
statutory provisions and decided cases.
Introduction
A crime which is committed by direct physical harm or force being applied to another person
usually refers as the offence against the person.
These offences are usually analysed by division into the following categories:
provisions are given under UK law.

Statutory

1. Fatal offences;
a) Murder
b) Manslaughter
c) Corporate manslaughter (contrary to section 1 of the Corporate Manslaughter
and Corporate Homicide Act 2007 in UK)
d) Infanticide(contrary to section 1(1) of the Infanticide Act 1938)
2. Sexual offences;
40 | P a g e

CRIMINAL LAW

a) Rape
b) Sexual abuse
3. Non-fatal non-sexual offences;2
a) Assault or common assault
b) Battery or common battery
c) Wounding or wounding with intent(contrary to section 18 / section 20 of the
Offences against the Person Act 1861)
d) Poisoning(contrary to section 24 of the Offences against the Person Act 1861)
e) Assault occasioning actual bodily harm and derivative offences
f) Inflicting grievous bodily harm or causing grievous bodily harm with intent and
derivative offences
Crimes against property only involve the taking of money or property and do not
involve force or threat of force against a person. 3
E.g.; burglary, larceny, theft, motor vehicle theft, arson, shoplifting, and vandalism
Although robbery involves taking property it is not come under Crimes against property.4 It is
classified as a violent crime against person. Because it involve force or threat of force on an
individual that is present is involved in contrast to burglary which is typically of an
unoccupied dwelling or other unoccupied building.
In Hale (1978)5 D was used force to stop a woman raising the alarm while her jewellery box
was being stolen. A substantial part of the force took place when the box was in the thieves
possession. Therefore, violence may come after the act of theft. D was guilty for robbery.

Visiting Forces Act 1952 in UK define offence against person as any of the following
offences;
1. murder, manslaughter, rape, torture, buggery, robbery and assault and any offence
of aiding, abetting, counselling or procuring suicide or an attempt to commit suicide;
and
2. any offence not falling within the foregoing sub-paragraph, being an offence
punishable under any of the following enactments:
a) the Offences against the Person Act, 1861, except section fifty-seven thereof
(which relates to bigamy);
b) the Criminal Law Amendment Act 1885;
c) the Punishment of Incest Act, 1908;
d) section eighty-nine of the Mental Health Act (Northern Ireland), 1948 (which
relate respectively to certain offences against mentally defective females);
e) sections one to five and section eleven of the Children and Young Persons Act,
1933, and sections eleven, twelve, fourteen, fifteen, sixteen and twenty-one of
the Children and Young Persons Act (Northern Ireland), 1950; and
f)

the Infanticide Act, 1938 and the Infanticide Act (Northern Ireland), 1939. And

41 | P a g e

CRIMINAL LAW
g) article 3(1)(a) of the Protection of Children (Northern Ireland) Order 1978
h) sections two to twenty-eight of the Sexual Offences Act 1956
i)

section 1(1)(a) of the Protection of Children Act 1978

j)

the Child Abduction Act 1984.

k) section 1 of the Prohibition of Female Circumcision Act 1985

l)

the Child Abduction (Northern Ireland) Order 1985

This Act further stated that an offence under section 2 of the Nuclear Material (Offences)
Act 1983, also consider as the offences against person in certain circumstances.
Again it say an offence of making such a threat as is mentioned in section 3 of the United
Nations Personnel Act 1997 and any of the following offences against a UN worker within
the meaning of that Act;
1. an offence of kidnapping;
2. an offence of false imprisonment;
3. an offence under section 2 of the Explosive Substances Act 1883 of causing an
explosion likely to endanger life.

Discussion
Penal code of Sri Lanka has distinguished clearly the offences against property and offences
against person. (see Table 1.2)
Offence against the person

Penal Code
provision

Offence against property

Penal Code
provision

(25) culpable homicide

293

(1) Theft

366

(26) Murder

294

(2) Extortion

372

(27) Abetment of suicide

(28) Attempt to murder
(29) Attempt to commit
culpable homicide

299
300
301

(30) Miscarriage
(31) Exposure and
abandonment of a

303
308

(3) Robbery

379

(4) Attempt to commit

robbery

381

(5) Dishonest
misappropriation of
property

386

(6) Criminal breach of

trust

388
42 | P a g e

CRIMINAL LAW
child under twelve
years by parent or
Person having care of
it
(32) Cruelty to children
(33) Concealment of birth
by secret disposal of
dead body
(34) Cause hurt/ Grievous
hurt

(7) Cheating
(8) Cheating by
personation

398
399

308A

(9) Mischief

309

(10) Criminal trespass

408

(11) House- breaking

427

310 & 311

431

(35) Wrongful restraint

(36) Wrongful
confinement
(37) Criminal force
(38) Assault

330
331
340 & 341
342

(39) Sexual harassment

(40) Kidnapping
(41) Abduction
(42) Debt bondage,
serfdom, forced or
compulsory labour,
slavery and
recruitment of
children for use in
armed conflict
(43) Sexual exploitation
of children

345
350
353
358A

360B

(44) Trafficking
(45) Offences related to
adoption

360C
360D

(46) Soliciting a child

(47) Rape

360E

(48) Incest

363

(49) Unnatural offence

364A
43 | P a g e

CRIMINAL LAW

(50) Acts
of
gross
indecency
between
persons

365
365A

(51) Grave sexual abuse

365B

Table 3.1
Penal code of Sri Lank recognizes offences against person as OFFENCES AFFECTING
THE HUMAN BODY They are further categorize under 8 subtopics;
1. OF OFFENCES AFFECTING LIFE (s293-s309)
2. OF THE CAUSING OF MISCARRIAGE, OR INJURIES TO UNBORN CHILDREN.
OF THE EXPOSURE OF INFANTS, AND OF THE CONCEALMENT OF
BIRTHS(s293-s309)
3. OF HURT(s310-s329)
4. OF WRONGFUL RESTRAINT AND WRONGFUL CONFINEMEN(s330-s339)
5. OF CRIMINAL FORCE AND ASSAULT(s340-s349)
6. OF KIDNAPPING, ABDUCTION, SLAVERY, ETC(s350-s362)
7. OF RAPE AND INCEST(s363-s364)
8. OF UNNATURAL OFFENCES AND GRAVE SEXUAL ABUSE(s365-s365B)
Culpable homicide is causing death by doing an act with the intention of causing death, or
with the intention of causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the offence of culpable
homicide.
But culpable homicide amount to a murder if it present either one of these limbs;
if the act by which the death is caused is done with the intention of causing death; or
1. If it is done with the intention of causing such bodily injury as the offender knows to
be likely to cause the death of the person to whom the harm is caused ; or
2. If it is done with the intention of causing bodily injury to any person, and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death; or
3. If the person committing the act knows that it is so imminently dangerous that it must
in all probability cause death, or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such
injury as aforesaid.
Abetment of suicide is an offence under our penal code. According to that any person who
abets the commission of a suicide shall be punished with death.

44 | P a g e

CRIMINAL LAW
Not only murder and culpable homicide but also Attempt to murder and Attempt to
commit culpable homicide consider as a crime under Sri Lankan law. Whoever does any
act with such intention or knowledge and under such circumstances that if he by that act
caused death he would be guilty of murder, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine; and if
hurt is caused to any person by such act, the offender shall be liable to imprisonment of
either description for a term which may extend to twenty years, and shall also be liable to
fine. Or culpable homicide not amounting to murder, shall be punished with imprisonment
of either description for a term which may extend to three years or with fine,-or with both;
and if hurt is caused to any person by such act, shall be punished with imprisonment of
either description for a term which may extend to seven years, or with fine, or with both.
If miscarriage be not caused in good faith for the purpose of saving the life of the woman, it
is a crime. Therefore the accused must be punished with imprisonment of either description
for a term which may extend to three years, or with fine, or with both; and if the woman be
quick with child, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine.
In REX v. FERNANDO6 A person may be convicted of the abetment of an offence under
section 303 of the Penal Code, causing a woman to miscarry, even where there is no
evidence that woman was pregnant, provided that the accused believed she was in that
condition.
Causes Hurt defines as an act causes bodily pain, disease, or infirmity to any person. If the
act causes serious consequences to the body it is Grievous hurt.
Wrongfully to restrain refers voluntarily obstructs any person so as to prevent that person
from proceeding in any direction in which that person has a right to proceed that person.
Wrongfully to confine is wrongfully restrains any person in such a manner as to prevent
that person from proceding beyond certain circumscribing limits that person.
Force is using force to another if he causes motion, change of motion, or cessation of
motion to that other, or if he causes to any substance such motion or change of motion or
cessation of motion as brings that substance into contact with any part of that other's body,
or with anything which that other is wearing or carrying, or with anything so situated that
such contact affects that other's sense of feeling. Provided that the person causing the
motion or change of motion or cessation of motion causes that motion, change of motion, or
cessation of motion in one of the three ways hereinafter described;

1) By his own bodily power.

2) By disposing any substance in such a manner that the motion or change or cessation
of motion takes place without any further act on his part or on the part of any other
person.
3) By inducing any animal to move, to change its motion, or to cease to move.
Whoever intentionally uses force to any person, without that person's consent, in order to
the committing of any offence, or intending illegally by the use of such force to cause, or
knowing it to be likely that by the use of such force he will illegally cause injury, fear, or
annoyance to the person to whom the force is used, is said to use criminal force to that
other.

45 | P a g e

CRIMINAL LAW
An assault is makes any gesture or any preparation, intending or knowing it to be likely that
such gesture or preparation will cause any person present to apprehend that he who makes
that gesture or preparation is about to use criminal force to that person.
Whoever, by assault or use of criminal force, sexually harasses another person, or by the
use of words or actions, causes sexual annoyance or harassment to such other person
commits the offence of sexual harassment and shall on conviction be punished with
imprisonment of either description for a term which may extend to five years or with fine or
with both and may also be ordered to pay compensation of an amount determined by court
to the person in respect of whom the offence was committed for the injuries caused to such
person.
1) Unwelcome sexual advances by words or action used by a person in authority, to a
working place or any other place, shall constitute the offence of sexual harassment.
2) For the purposes of this section an assault may include any act that does not amount
to rape under section 363 or grave sexual abuse under section 365B.
3) Injuries includes psychological or mental trauma.
Kidnapping is of two kindsKidnapping from Sri Lanka - Whoever conveys any person beyond the limits of Sri Lanka
without the consent of that person or of some person legally authorized to consent on behalf
of that person.
Kidnapping from lawful guardianship - Whoever takes or entices any minor under fourteen
years of age if a male, or under sixteen years of age it a female, or any person of unsound
mind, out of the keeping of the lawful guardian of such minor or person of unsound mind,
without the consent of such guardian.
Abduct is said to induces any person to go from any place by force compels, or by any
deceitful means, or by abuse of authority or any other means of compulsion.
PREMADASA V. STATE 7 The date of the incident as deposed to by the Prosecutix was
22.8.1998. It was her position that she was a virgin until 22.8.1998. She had only
complained to the Police 2 days later - 24.8.1998. The Medical Expert had observed the tear
of the hymen, but stated that the tear had taken place 8 days or more prior to her examining
the prosecutrix which was on 24.8.1998. Court held:
(1) According to the Medical Expert the probable date would be 16.8.88 or a date prior to
that date. Neither the State Counsel nor the trial Judge had invited her to elucidate her
opinion any further or elaborate the grounds upon which the opinion was based.
(2) The crucial issue was whether the prosecutrix had been in fact ravished on 22.8.1998 by
the accused appellant. The trial Judge has refrained from making any assertion in respect of
this matter.
(3) This non direction on a vital question of fact tantamounts to a grave error of law which is
sufficient to vitiate the conviction.
Trafficking means;
a) buys, sells or barters or instigates another person to buy, sell or barter any person or
does anything to promote, facilitate or induce the buying, selling or bartering of any
person for money or other consideration;
b) recruits, transports, transfers, harbours or receives any person or does any other act
by the use of threat, force, fraud, deception or inducement or by exploiting the
vulnerability of another for the purpose of securing forced or compulsory labour or

46 | P a g e

CRIMINAL LAW
services, slavery, servitude, the removal of organs, prostitution or other forms of
sexual exploitation or any other act which constitutes an offence under any law;
c) recruits, transports, transfers, harbours or receives a child or does any other act
whether with or without the consent of such child for the purpose of securing forced
or compulsory labour or services, slavery, servitude or the removal of organs,
prostitution or other forms of sexual exploitation, or any other act which constitutes
an offence under any law,
Any person who is guilty of the offence of trafficking shall on conviction be punished with
imprisonment of either description for a term not less than two years and not exceeding
twenty years and may also be punished with fine and where such offence is committed in
respect of a child, be punished with imprisonment of either description for a term not less
than three years and not exceeding twenty years and may also be punished with fine.
Rape is enactment has sexual intercourse with, a woman under circumstances falling under
any of the following descriptions:
a. without her consent even where such woman is his wife and she is judicially
separated from the man;
b. with her consent, while she was in lawful or unlawful detention or when her consent
has been obtained, by use of force or intimidation, or by threat of detention or by
putting her in fear of death or hurt;
c. with her consent when her consent has been obtained at a time when she was of
unsound mind or was in a state of intoxication induced by alcohol or drugs,
administered to her by the man or by some other person;
d. with her consent when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is, or
believed herself to be, lawfully married;
e. with or without her consent when she is under sixteen years of age, unless the
woman is his wife who is over twelve years of age and is not judicially separated from
the man.
Again here it stated Penetration is sufficient to constitute the sexual intercourse necessary
to the offence of rape and Evidence of resistance such as physical injuries to the body is not
essential to prove that sexual intercourse took place without consent.
R v Fotheringham (1989) 8D raped the babysitter after arriving home with his wife. D and
his wife went out. They ask to sleep babysitter on their bed because they got late. His
defence was that he was drunk and thought he was in bed with his wife. But he was guilty.
Court held that intoxication that is self-induced is no defence to rape.
Incest is another offence related to the sexual offences;
whoever has sexual intercourse with another, who stands towards him in any following
enumerated degrees of relationship, that is to say
a. either party is directly descended from the other or is the adoptive parent, adoptive
grand parent, adoptive child or adopted grand child or the other ; or
b. the female, is the sister of the male, either by the full or the half blood or by adoption,
or is the daughter of his brother, or of his sister, by the full or the half blood or by
adoption, or is a descendant from either of them, or is the daughter of his wife by
another father, or is his sons or grandsons or fathers or grandfathers widow; or
c. the male, is the brother of the female either by the full or the half blood or by
adoption, or is the son of her brother or sister by the full or half blood or by adoption
or is a descendant from either of them, or is the son of her husband by another

47 | P a g e

CRIMINAL LAW
mother, or is her deceased daughters or grand daughters or mothers or grand
mothers husband, commits the offence of incest
The offence of incest shall not be affected or negated by reason of the existence of any
defect in the legality of any relationship given in this section, such as absence of a valid
marriage or adoption.
a. commits incest, shall be punished with rigorous imprisonment for a term not less than
seven years and not exceeding twenty years and with fine.
b. Attempts to commit incest shall be punished with imprisonment of either description
for a term which may exceed to two years.
Unnatural offence is the third type of offence related to the sex. Whoever voluntarily has
carnal intercourse against the order of nature with any man, woman, or animal, shall be
punished with imprisonment of either description for a term which may extend to ten years,
and shall also be punished with fine and where the offence is committed by a person over
eighteen years of age in respect of any person under sixteen years of age shall be punished
with rigorous imprisonment for a term not less than ten years and not exceeding twenty
years and with fine and shell also be ordered to pay compensation of an amountdetermined by court to the person in respect of whom the offence was committed for injuries
caused to such person. Penetration is sufficient to constitute the carnal intercourse
necessary to the offence described in this section.
Grave sexual abuse is the last sex related offence. It says committed any person who, for
sexual gratification, does any act, by the use of his genitals or any other part of the human
body or any Instrument on any orifice or part of the body of any other person, being an act
which does not amount to rape under section 363, in circumstances falling under any of the
following descriptions, that is to saya. without the consent of the other person ;
b. with or without the consent of the other person when the other person is under
sixteen years of age;"
c. with the consent of the other person while such other person was in lawful or
unlawful detention or where that consent has been obtained, by use of force, or
intimidation or threat of detention or by putting such other person in fear of death or
hurt;
d. with the consent of the other person where such consent has been obtained at a time
the other person was of unsound mind or was in a state of intoxication induced by
alcohol Of drugs.
commits grave sexual abuse shall be punished with rigorous imprisonment for a term not
less than five years and not exceeding twenty years and with fine and shall also be ordered
to pay compensation of an amount determined by court to the person in respect of whom the
offence was committed for the injuries caused to such person;
Commits grave sexual abuse on any person under eighteen years of age, shall be punished
with rigorous imprisonment for a term not less than seven years and not exceeding twenty
years and with fine and shall also be ordered to pay compensation of an amount determined
by court to the person in respect of whom the offence was committed for the injuries caused
to such person;
Offences against property have listed in CHAPTER XVII Penal code of Sri Lank. They are
further categorizing under 8 subtopics;
1. OF OFFENCES AGAINST PROPERTY OF THEFT(s366-s371)
2. OF EXTORTION(s372-s378)
48 | P a g e

CRIMINAL LAW

3. OF ROBBERY(s379-s385)
4. OF CRIMINAL MISAPPROPRIATION OF PROPERTY(s386-s309)
5. OF CRIMINAL BREACH OF TRUST(s293-s387)
6. OF THE RECEIVING OF STOLEN PROPERTY(s388-s392B)
7. OF CHEATING(s393-s403)
8. OF FRAUDULENT DEEDS AND DISPOSITIONS OF PROPERTY(s404-s407)
9. OF MISCHIEF AND ILLEGAL REMOVAL OF WRECKS(s408-s426)
10. OF CRIMINAL TRESPASS(s427-s451)
Whoever, intending to take dishonestly any movable property out of the possession of any
person without that person's consent, moves that property in order to such taking, is said to
commit theft.
"A person is guilty of theft if he,
(1) dishonestly
(2) appropriates
(3) property
(4) belonging to another with the
(5) intention of permanently depriving the other of it.
thief and steal shall be construed accordingly"
In Oxford v Moss (1979)9 A university student saw a proof copy of an exam paper. He was
not guilty of theft because the exam paper was information and information cannot be stolen.
The issue was the student saw the paper but he did not physically remove the paper.
Whoever intentionally puts any person in fear of any injury to that person or to any other
and thereby dishonestly induces the person so put in fear to deliver to any person any
property or valuable security or anything signed or sealed which may be converted into a
valuable security, commits extortion. "
In all robbery there is theft or extortion;
when theft is robbery- Theft is " robbery ", if, in order to the committing of the theft, or in
committing the theft, or in carrying away or attempting to carry away property obtained by
the theft, the offender, for that end, voluntarily causes or attempts to cause to any person
death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant
wrongful restraint.
When extortion robbery. Extortion is " robbery ", if the offender, is at the time of committing
the extortion, is in the presence of the person put in fear and commits the extortion by
putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to
that person or to some other person, and, by so putting in fear, induces the person so put in
fear then and there to deliver up the thing extorted.
Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a
term which may extend to seven years, and shall also be liable to fine.

49 | P a g e

CRIMINAL LAW
Whoever dishonestly misappropriates or converts to his own use any movable property
shall be punished with imprisonment of either description for a term which may extend to two
years, or with fine, or with both.
Whoever, being in any manner entrusted with property, or with any dominion over property,
dishonestly misappropriates or converts to his own use that property, or dishonestly uses or
disposes of that property in violation of any direction of law prescribing the mode in which
such trust is to be discharged, or of any legal contract, express or implied, which he has
made touching the discharge of such trust, or willfully suffers any other person so to do,
commits criminal breach of trust."
Whoever, by deceiving any person, fraudulently or dishonestly induces the person so
deceived to deliver any property to any person, or to consent that any person shall retain any
property, or intentionally induces the person so deceived to do or omit to do anything which
he would not do or omit if he were not so deceived, and which act or omission causes or is
likely to cause damage or harm to that person in body, mind, reputation, or property, or
damage or loss to the Government, is said to cheat.
Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or
damage to the public or to any person, causes the destruction of any property, or any such
change in any property or in the situation thereof as destroys or diminishes its value or utility
or affects it injuriously, commits mischief. "
Whoever enters into or upon property in the occupation of another with intent to commit an
offence, or to intimidate, insult, or annoy any person in occupation of such property, or
having lawfully entered into or upon such property unlawfully remains there with intent
thereby to intimidate, insult, or annoy any such person, or with intent to commit an offence,
is said to commit criminal trespass."
A person is said to commit house- breaking who commits house-trespass if he effects his
entrance into the house or any part of it in any of the six ways hereinafter described; or if,
being in the house or any part of it for the purpose of committing an offence, or having
committed an offence therein, he quits the house or any part of it in any of such six ways,
that is to say1. he enters or quits through a passage made by himself, or by any abettor of the
house-trespass, in order to the committing of the house-trespass ;
2. if he enters or quits through any passage not intended by any person, other than
himself or an abettor of the offence, for human entrance; or through any passage to
which he has obtained access by scaling or climbing over any wall or building ;
3. if he enters or quits through any passage which he or any abettor of the housetrespass has opened, in order to the committing of the house-trespass, by any
means by which that passage was not intended by the occupier of the house to be
opened ;
4. if he enters or quits by opening any lock in order to the committing of the housetrespass, or in order to the quitting of the house after a house-trespass ;
5. if he effects his entrance or departure by using criminal force or committing an
assault or by threatening any person with assault
6. if he enters or quits by any passage which he knows to have been fastened against
such entrance or departure and to have been unfastened by himself or by an abettor
of the house-trespass.

50 | P a g e

CRIMINAL LAW
Section 9 Theft Act 1968 creates two offences which come under burglary;
Where a person:
(a) Enters any building or part of a building as a trespasser with intent to commit theft,
grievous bodily harm or unlawful damage, or
(b) Having entered a building as a trespasser steals or attempts to steal anything in the
building or inflicts or attempts to inflict grievous bodily harm upon any person therein.
But in our penal code the term burglary not itself expressed.

Conclusion
These are two major groups of offences under the penal code. Offences mainly categorized
under three groups as;
Offences against person
Offences against property
Offences against public order
It shows clearly the priority is given to the protection of people, next is their property.
Judges has contributed lot for the development of concept of these offences. The law is not
a static field. It has to be modified with new areas being regulated and others being
deregulated, with changes in the social expectations.
With the technological development new offences have raised.
E.g. Computer fraud
Child pornography on the internet
New discussion has come to exist;
E.g. Euthanasia
Use frozen sperm from dead man
HIV pandemic
Therefore it is continuously need of patching, repairing and from time to time overhauling in
law related to the offences against person an offences against property.

Reference
1.
2.
3.
4.
5.
6.
7.
8.

9.

http://en.wikipedia.org/wiki/Offence_against_the_person on
ibid
http://en.wikipedia.org/wiki/Offence_against_propertyon on
ibid
R v Hale (1978) Cr App R 415
REX v. FERNANDO NLR - 181 of 27
PREMADASA V. STATE SLR - 385, Vol 2 of 2000
R v Fotheringham (1989) Crim LR 846
Oxford v Moss (1979) Crim LR 119

51 | P a g e

CRIMINAL LAW

4.1 Critically examines the jurisdiction of the criminal courts and

criminal procedures in the context of criminal proceeding in Sri
Lanka.
Introduction
1978 Constitution of the Democratic Socialist Republic of Sri Lanka defined the, the
judiciary consists of a Supreme Court, a Court of Appeal, a High Court, and a number of
magistrate's courts which are situated one for each division, as set out in the Administration
52 | P a g e

CRIMINAL LAW
of Justice Law. The magistrate's courts and the High Court are the courts with
primary jurisdiction, in cases of criminal law. Criminal procedure of Sri Lanka is governed by
the code of criminal procedure.

Discussion
1. Magistrate's courts
Magistrate's courts lay the lowest level of the judicial system and majority of the
criminal cases are tried at there. Magistrates Courts are established under the Judicature
Act, No. 2 of 1978 for each judicial division in Sri Lanka. Magistrates are appointed,
dismissed and disciplinary controlled by the Judicial Service Commission.
Criminal cases at magistrate's courts may be initiated by any police officer or public servant
or by any oral or written complaint to the magistrate by any of the civilian. Magistrates are
empowered to make an initial investigation of the complaint. Then magistrate determines;
whether magistrate court has proper jurisdiction over the case;
whether it should be tried by the High Court; or
whether it should be dismissed.
Magistrates' courts have exclusive original jurisdiction over all criminal cases involving fines
of up to Rs1, 500 or prison sentences of up to two years.
If the magistrate's court is has proper jurisdiction over the case, prosecution may be
conducted by the complainant or by a government officer. The government officers can be
the attorney general, the solicitor general, a state counsel, a pleader authorized by the
attorney general, or any officer of any national or local government office. At the trial, the
accused has the right to call and cross-examine witnesses. Trials are conducted without a
jury. At the end of prosecution the verdict and sentence are given by the magistrate. If the
offender unsatisfied with the judgment he has the right to appeal to the Court of Appeal on
any point of law or fact.

There are 74 judicial divisions in Sri Lanka. 1

Column I
Judicial Zone/ Name of High
Court/ PHC

Colombo/ High Court of the

Western Province sitting in

Column II
Judicial District/ Name of
District Court

Column III
Judicial Division/ Name of
Magistrates Court

Colombo

Colombo

Mount Lavinia

Mount Lavinia
Gangodawila
53 | P a g e

CRIMINAL LAW

Colombo

Moratuwa

Moratuwa
Kaduwela

Kalutara/ High Court of the

Western Province sitting in
Kalutara

Kalutara

Kalutara

Matugama

Matugama

Panadura/ High Court of the

Western Province sitting in
Panadura

Panadura

Panadura

Horana

Horana

Galle/ High Court of the

Southern Province sitting in
Galle

Galle

Galle

Balapitiya/ High Court of the

Southern Province sitting in
Balapitiya

Balapitiya

Matara/ High Court of the

Southern Province sitting in
Matara

Matara

Baddegama
Balapitiya
Elpitiya
Matara
Morawaka
Tangalle

Tangalle

Tissamaharamaya

Tissamaharamaya

Hambantota/ High Court of

the Southern Province sitting
in Hambantota

Hambantota

Hambantota

Walasmulla

Walasmulla

Batticaloa/ High Court of the

Eastern Province sitting in
Batticaloa

Batticaloa

Batticaloa

Kalmunai

Kalmunai

Akkraipattu

Akkraipattu

Amparai

Amparai

Trincomalee

Trincomalee

Amparai/ High Court of the

Eastern Province sitting in
Amparai

Mutur
Jaffna/ High Court of the
Northern Province sitting

Jaffna

Jaffna

Kayts

Kayts

54 | P a g e

CRIMINAL LAW

inJaffna

Point Pedro

Point Pedro

Chavakachcheri

Chavakachcheri
Killinochchi

Chilaw/ High Court of the

NorthWestern Province sitting
inChilaw

Negombo/ High Court of

theWestern Province sitting
inNegombo

Mallakam

Mallakam

Chilaw

Chilaw

Marawila

Marawila

Puttalam

Puttalam

Negombo

Negombo
Minuwangoda
Wattala

Gampaha/ High Court of

theWestern Province sitting
inGampaha

Kegalle/ High Court of

theSabaragamuwa Province
sitting in Kegalle

Gampaha

Gampaha

Attanagalla

Attanagalla

Pugoda

Pugoda

Kegalle

Kegalle
Mawanella
Warakapola

Warakapola
Kurunegala/ High Court of the
North Western Province
sitting in Kurunegala

Kandy/ High Court of

theCentral Province sitting
inKandy

Kurunegala

Kurunegala
Wariyapola

Kuliyapitiya

Kuliyapitiya

Maho

Maho

Kandy

Kandy
Teldeniya

Gampola

Gampola
Nawalapitiya

55 | P a g e

CRIMINAL LAW

Hatton

Hatton

Matale

Matale
Dambulla

Avissawella/ High Court of

theWestern Province sitting
inAvissawella

Avissawella

Avissawella
Ruwanwella

Homagama

Homagama
Kesbewa

Ratnapura/ High Court of

theSabaragamuwa Province
sitting in Ratnapura

Badulla/ High Court of

the UvaProvince sitting
in Badulla

Anuradhapura/ High Court of

the North Central Province
sitting in Anuradhapura

Ratnapura

Ratnapura
Balangoda

Embilipitiya

Embilipitiya

Badulla

Badulla

Bandarawela

Bandarawela

Welimada

Welimada

Nuwara Eliya

Nuwara Eliya

Moneragala

Moneragala

Anuradhapura

Anuradhapura
Kebithigollawa
Kekirawa
Thambuththegama

Vauniya/ High Court of the

Northern Province sitting
inVauniya

Polonnaruwa
Vauniya

Polonnaruwa
Vauniya

Mannar

Mannar

Mullativu

Mullativu

Table 4.1

56 | P a g e

CRIMINAL LAW

2. High Court
The High Court is the highest court of first instance in criminal law. Here the prosecution
must be conducted by the attorney general, the solicitor general, a state counsel, or any
pleader authorized by the attorney general. At the trial accused are present defenses and
call and cross-examine witnesses. The court allow to trial by jury which consist of seven
members, for serious such as crimes against the state, murder, culpable homicide,
attempted murder, and rape. This is the only court present a jury for a trail in Sri Lanka. For
other trials the judge gives the verdict and passes sentence. If the accused did not satisfied
by it he has the right of appeal to the Court of Appeal on any matter of law or fact.
The High Court consists of not less than ten and not more than Forty Judges .2 The Judges
are appointed to Provincial High Courts by the Chief Justice from among Judges of the High
Court of Sri Lanka.3 Judges of the High Court are appointed by the President on the
recommendation of the Commission made after consultation with the Attorney General. 4
Judges of the High Court are removable by the President and are subject to disciplinary
control by the President on the recommendation of the Judicial Service Commission.5 Age of
retirement is 61 years. 6
Original jurisdiction of high court is:
1. all indictable prosecutions which are exercised by the Provincial High Courts in
respect of offences committed within the Province. These are criminal cases
involving penalties over Rs1, 500 or two years imprisonment ;
2. commercial jurisdiction;7
3. admiralty jurisdiction which is ordinarily exercised in Colombo;
4. jurisdiction vested by Article 111L(2) to hear and determine an offence under Article
111L(1)
5. applications for the return of or access to a child under the Hague Convention on
the Civil Aspects of International Child Abduction . This power only exercised by
the High Court of the Western Province.
Appellate jurisdictions of Provincial High Courts are:
1. appellate and revisionary jurisdiction in respect of convictions, sentences, orders
entered or imposed by Magistrates courts and Primary courts within the Province;
2. appeals from Labour Tribunals, Agrarian tribunals and Small Claims Courts.
3. writ jurisdiction in respect of powers exercised under any law or under any statutes
made by the Provincial Council of that Province, in respect of any matter set out in
the provincial Council list;
Relevant statutes to the High Jurisdictions are;
Judicature Act, No. 2 of 1978;
High Court of the Provinces (Special Provisions) Act, No. 19 of 1990;
High Court of the Provinces (Special Provisions) Act, No. 10 of 1996,
Civil Aspects of International Child Abduction Act, No. 10 of 2001
Places where High Courts are situated can be listed as follows;
Colombo,
Kalutara,
57 | P a g e

CRIMINAL LAW

Galle,
Matara,
Batticaloa,
Jaffna,
Chilaw,
Negombo,
Gampaha,

Kegalle,
Kurunegala,
Kandy,
Awissawella,
Ratnapura,
Badulla,
Anuradhapura.

58 | P a g e

3. Court of Appeal
Court of Appeal was constructed under Article 137 of the Constitution. It is consists of the
President of the Court and not less than six and not more than eleven other Judges.
President appoints President of Court of Appeal and the other Judges of the Court of Appeal.
Court of Appeal is subjected to the provisions of the Constitution and of any law; 8
The number of judges present for the jurisdiction depends on the nature of appeal.
nature of appeal
judgments, sentences and orders of the High
Court other than judgments, sentences
and orders pronounced at a Trial at Bar
appeals from a magistrate's court
Parliamentary election petitions

Other matters

number of judges present

by at least three Judges

at least two judges

by the President or by a Judge nominated by
the President or by one or more Judges
nominated by the President of whom the
President may be one
by a single Judge unless the President
directs otherwise
by three Judges who shall review the matter

In the event of disagreement between two

Judges
Table 4.2

Court of Appeal has only appellate jurisdiction in matters of criminal law. It is vested with the
following jurisdiction;
1. Appeals from the High Court in the exercise of its appellate or original jurisdiction; 9
Appeals from judgments, sentences and orders pronounced at a High Court Trial at
Bar lie direct to the Supreme Court 10
2. Appeals from any court of first instance and any tribunal or other institution ;
3. Sole and exclusive cognizance by way of appeal, revision and restitution ;
4. Power and authority to inspect and examine records of any court of first instance;11
5. Jurisdiction to grant and issue according to law, writs of certiorari, prohibition,
procedendo, mandamus and quo warranto 12 other than matters relating to the
exercise of the powers of the Elections Commission;
6.

Jurisdiction to grant and issue writs of habeas corpus;13

7. Jurisdiction to grant Injunctions ;14
8.

Jurisdiction to try election petitions in respect of the election of Members of

Parliament ;15

Jurisdiction of Court of Appeal is ordinarily exercised in Colombo but the Chief Justice may
from time to time direct that sittings be held in any judicial zone or district. 16 After the
decision, further can appeal to the Supreme Court, on any matter involving a substantial
question of law. But the appeal requires the approval of either the Court of Appeal or the
Supreme Court itself.

Judges of the Court of Appeal as at 13th July 2011;

1. Hon. Justice S. Sriskandarajah (President of Court of Appeal)
2. Hon. Justice W.L.R. Silva
3. Hon. Justice W.L.R.Silva
4. Hon. Justice K.S.J.De Abrew
5. Hon. Justice Eric Basnayake
6. Hon. Justice Rohini Marasinghe
7. Hon. Justice Sarath De Abrew
8. Hon. Justice Anil Goonaratne
9. Hon. Justice A.W.A. Salam
10. Hon. Justice A.H.M.Upaly Abeyrathne
11. Hon. Justice D.S.C.Lecamwasam
12. Hon. Justice K.T.Chitrasiri
13. Hon. Justice H.N.J. Perera

4. The Supreme Court

President appoints Chief Justice and the other judges of Supreme Court. He seeks advice of
the parliament in such Appointment.17 Judges hold office during good behaviour and cannot
be removed except by an order of the President made after an address of Parliament,
supported by a majority of the Members of Parliament, has been presented to the President
for removal on the ground of proved misbehaviour or incapacity.18 A resolution which is
signed by not less than one third of the total number of Members of Parliament and required
to provide for all matters relating to the presentation of such an address, by law or by
Standing Orders of Parliament. A Judge of the Supreme Court and Court of Appeal is not
permitted to perform any other office, whether paid or not, or accept any place of profit or
emolument, except as authorized by the Constitution or by written law or with the written
consent of the President.19 Age of retirement of a supreme court judge is 65 years.27
The Supreme Court is the highest and final superior court of record and is empowered to
exercise the following powers; subject to the provisions of the Constitution.
1. Jurisdiction in respect of Constitutional matters;21
2. Jurisdiction for the protection of fundamental rights;22
3. Final appellate jurisdiction;23
4. Consultative jurisdiction;24
5. Jurisdiction in petitions relating to election of President ; petitions relating to the
validity of a referendum ; appeals from Orders/judgments of the Court of Appeal in
other election petitions;25
6. Jurisdiction in respect of any breach of the privileges of Parliament;26
7. Jurisdiction in respect of other matters which Parliament may by law vest or ordain.
Appeals from judgments, sentences and orders pronounced at a High Court Trial at Bar lie
direct to the Supreme Court. Those appeals shall be heard by a Bench of five or more
Judges. But ordinarily its powers are exercised at all times by a Bench of at least three
Judges. The Chief Justice may direct that an appeal, proceeding or matter be heard by a
Bench comprising five or more Judges in a case;

according to his own point of view if he think it is necessary;

at the request of two or more Judges hearing any matter;

on the request of application of a party,

if the question involved is in the opinion of the Chief Justice one of general and public
importance.

The jurisdictions of the Supreme Court is ordinarily exercised in Colombo unless the Chief
Justice otherwise directs and, subject to the provisions of the Constitution. The Chief Justice
with any three Judges of the Supreme Court nominated by him is empowered to make Rules
regulating generally the practice and procedure of the court including the matters specifically
referred to in the Article.28
Present Judges of the Court are;
1.
2.
3.
4.
5.
6.
7.
8.

9.

Hon. Justice Hon. Dr. Shirani A Bandaranayake

Hon. Justice Hon. S. Thilakawardena
Hon. Justice Hon. A.R.N. Gamini Amaratunga
Hon. Justice Hon. Saleem Marsoof, P.C
Hon. Justice Hon. K.Sripavan
Hon. Justice Hon. P.A.Ratnayake, P.C.
Hon. Justice Hon. Chandra Ekanayake
Hon. Justice Hon. S. I Imam
Hon. Justice Hon. R.K.S.Suresh Chandra

Criminal Procedure
Once a crime is reported it is the duty of the government to take necessary action bring that
out. There are few governmental bodies such as police and attorney department involve in
the process of arresting and carrying out criminal jurisdiction. In criminal cases the police
gather evidence and, in court, public prosecutors present the case against the person
accused of the crime. Arrest of a person is done under provisions of the penal code.
(1)

In making an arrest the person making the same shall actually touch or confine the
body of the person to be arrested unless there be a submission to the -custody by
word or action and shall inform the person to be arrested of the nature of the charge
or allegation upon which he is arrested. 29
Explanation Keeping a person in confinement or restraint without formally arresting
him or under the colourable pretension that an arrest has not been made when to all
intents and purposes such person is in custody shall be deemed to be an arrest of
such person;30

(2) If such person forcibly resists the endeavour to arrest him or attempts to evade the
arrest, the person matting the arrest may use such means as are reasonably
necessary to affect the arrest.31
(3) Anything in this section shall not give a right to cause the death of a person who is
not accused of an offence punishable with death.32

In the Magistrates Court the mostly the prosecutor is a police officer whereas in the higher
courts the prosecution is conducted by the Attorney general in Sri Lanka. Accused of a
felonies or serious crimes is generally charged in a formal accusation called an indictment.
The prosecutor must prove their case before the court beyond a reasonable doubt. Duty of
the police is investigating the evidences. The first stage is to decide whether there is a case
to answer. This process is called non summary investigation, will be dealt with by a
magistrate on the basis of evidence disclosed in papers provided by the prosecutor.
When the accused appears or is brought before the Magistrate's Court, the Magistrate shall
in a case
(a)

where the offence or any one of them where there is more than one,
falls within the list of offences set out in the Second Schedule to the Judicature Act;
or

(b)

where the Attorney-General being of opinion that evidence recorded

at a preliminary inquiry will be -necessary for preparing an indictment, within three
months of the date of the commission of the offence so directs, hold a preliminary
inquiry according to the provisions hereinafter mentioned.33

A Magistrate conducting a preliminary inquiry shall at the commencement of such inquiry

read over to the accused the charge or charges in respect of which the inquiry is being held,
but upon such reading over the accused shall not be required to make any reply thereto; if
any such reply is made, it shall not be recorded by the Magistrate; nor shall any such reply
be admissible in evidence against the accused.34
If the case proceeds, it is heard in the High court in Sri Lanka.
Subject to the provisions of this Code and of any other written law the High Court shall not
take cognizance of any offence unless the accused person has been indicted before it for
trial by or at the instance of the Attorney-General.34
In the High Court the trial is handling before a judge or judge and jury. The judge presides
over the trial process and attempt to ensure clarity and fairness. He must consider and
decide on legal issues and instruct the jury as to the correct view of the law relevant to the
case. The jury decides the facts whose story is more believable? and applies the law. It is
the jury not the judge which achieves a verdict on the guilt or innocence of the accused. In
less serious criminal cases the case is sent for summary trial in one of magistrates courts. A
summary trial means case where there is no indictment and trial is carrying before a
magistrate.
Subject to and in accordance with the provisions of this Code every Magistrate's Court shall
have;
(a) power and authority and is hereby required to hear, try, determine, and dispose of in a
summary way all suits or prosecutions for offences committed wholly or in part within its
local jurisdiction, which offences by this Code or any other law in force are made
cognizable by a Magistrate's Court or a District Court ;
(b) Jurisdiction I.

to inquire into alt offences committed or alleged to have of been committed wholly or
in part within its local jurisdiction or in relation to which jurisdiction is by this Code
given to such court to inquire into, to summon and examine all witnesses touching

such offences, and to issue warrants and other processes to apprehend and
summon all criminals and offenders and deal with them according to law ; and
II.

to issue warrants to search or to cause to be searched all places wherein any stolen
goods or any goods, articles, or things with which or in respect of which any offence
has been committed are alleged to be kept or concealed, and to require persons to
furnish security for the peace or for their good behaviour according to law ; and

III.

to inquire into all cases in which any person shall die in any prison or mental or
leprosy hospital or shall come to his death by violence or accident, or when death
shall have occurred suddenly, or when the body of any person shall be found dead
without its being known how such person came by his death.36

Conclusion
Criminal courts of Sri Lanka are;
1. Magistrate Court
2. High Court
3. Court of Appeal

Courts of first instances

Courts of Appeals

4. Supreme Court
The whole procedure, from committing an offence by some body to punish him, is controlling
under Code of Criminal Code.
CRIMINAL ACT

GUILTY MIND
CRIMINAL OFFENCE
INVESTIGATION BY
POLICE
ARREST
GATHER EVIDENCE BY
POLICE
TRY AT MAGISTRATE
COURT
NON SUMMARY
INVESTIGATION

TRY AT MAGISTRATE
COURT

DECIDE WHETHER
THERE IS A CASE TO
ANSWER

IF THE CASE
PROCEEDS

SUMMARY
INVESTIGATION

INDICTMENT

MAGISTRATE COURT

HIGH COURT

NOT GUITY

GUITY

GUILTY

NOT GUITY

APPEAL
COURT OF APPEAL

SUPREME COURT
Figure 4.1

Reference
1. http://www.justiceministry.gov.lk/courts%20of
%20Law/MAGISTRATES'%20COURTS.htm on 2011 09 20
2. Article 111 and section 4 of the Judicature Act, No. 2 of 1978 (amended by Act, No.
16 -1989)
3. Article 154P
4. Article 111
5. Article 139
6. Section 6(3) of the Judicature Act, No. 2 of 1978
7. High Court of the Provinces (Special Provisions) Act, No. 10 of 1996 ;
8. Article 138
9. Article 139
10. Code of Criminal Procedure (Amendment) Act, No. 21 of 1988
11. Article 145
12. Article 140
13. Article 141
14. Article 143
15. Article 144
16. Article 146
17. 18th amendment
18. Article 107(2)
19. Article 110(2)
20. Article 118
21. Articles 120 to 125
22. Article 126
23. Article 127, 128
24. Article 129
25. Article 130 (as amended by the 14th Amendment)

26. Article 132

27. Article 107(5)
28. Article 136
29. Section 23 (1) Code of Criminal Procedure
30. Section 23 Explanation; Code of Criminal Procedure
31. Section 23 (2) Code of Criminal Procedure
32. Section 23 (3) Code of Criminal Procedure
33. Section 145 Code of Criminal Procedure
34. Section 12 Code of Criminal Procedure
35. Section 146 Code of Criminal Procedure
36. Section 9 Code of Criminal Procedure

4.2 Identify the provisions in the Penal Code and Code of

Criminal Procedure of Sri Lanka in respect of crimes referred in
the scenario (task 4).
Scenario 4
Simon entered into a business contract with Hussain, according to it Hussain shall deliver a
valuable set of furniture worth Rupees Five Hundred Thousand and Simon shall pay the
price within the six months of the delivery. Hussain delivered the said set of furniture five
days after the agreement but Simon failed to pay price within the given time and when
Hussain demanded him to pay the money he threatened Hussain by saying that he will
physically attack Hussains 19 years old unmarried sister if he does not give up his claim and
terminat agreement in his (Simon) favor. Husain ignored his warning and repeatedly
demanded Simon to pay his money. Simon hired a mercenary, Podi Nihal, to grievously hurt
Hussain and paid Rs 25,000 for his task. On July 4 th when Hussain was leaving his house to
visit his friends house, Podi Nihal stabbed Hussain with a sharpened knife and Hussain
sustained a serious bodily injury.

Introduction
Penal code is the legal code governing crimes and their punishment.1 Code of Criminal
Procedure is the body of state law dealing with procedural aspects of trial for criminal cases. 2
in the given scenario 4 Simon, the accused can be charged for series of criminal acts which
he has done against Hassan, the victim. The offences he has done can be identified under
the penal code. They are;
1. Criminal breach of trust (s388)

2.
3.
4.
5.

Criminal intimidation (s483)

Abetment of the doing of a thing (s100)
Attempt to murder (s300)
Grievous hurt (s311)

Discussion
1. Criminal breach of trust
According to the penal code;
Whoever, being in any manner entrusted with property, or with any dominion over property,
dishonestly misappropriates or converts to his own use that property, or dishonestly uses or
disposes of that property in violation of any direction of law prescribing the mode in which
such trust is to be discharged, or of any legal contract, express or implied, which he has
made touching the discharge of such trust, or willfully suffers any other person so to do,
commits criminal breach of trust. (Section 388)
Simon bought a voluble set of furniture from Hussain on hire purchasing. He agreed to pay
the price of Rupees Five Hundred Thousand within the six months of the delivery. But he
didnt pay the amount according to their contract. Using that property can be identified as
dishonestly use of a property. The illustrations (c) explain;
A, residing in Colombo, is agent for Z, residing in England, There is an express or implied
contract between A and Z that all sums remitted by Z to A shall be Invested by A according to
Z's direction, Z remits ten thousand rupees to A, with directions to A to invest the same on
mortgage of coffee estates, A dishonestly disobeys the directions, and employs the money in
his own business. A has committed criminal breach of trust.
Section 389 of the penal code impose the punishment for Criminal breach of trust
Whoever commits criminal breach of trust shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with both.
2. Criminal intimidation
Whoever threatens another with any injury to his person, reputation, or property, or to the
person or reputation of any one in whom that person is interested, with intent to cause alarm
to that person, or to cause that person to do any act which he is not legally bound to do, or
to omit to do any act which that person is legally entitled to do, as the means of avoiding the
execution of such threat, commits criminal intimidation. (Section 483)
It further explanation;
A threat to injure the reputation of any deceased person in whom the person threatened is
interested is within this section
Here Simon threatened Hussain by saying that he will physically attack Husains 19 years
old unmarried sister if he does not give up his claim and terminate agreement in his favor.
Illustration of this section makes it clear the threatening someone is including in this section.
A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's
house. A is guilty of criminal intimidation

Section 486 say;

Whoever commits the- offence of criminal intimidation shall be punished with imprisonment
of either description for a term which may extend to two years, or with fine, or with both;
and if the threat be to cause death or grievous hurt, or to cause the destruction of any
property by fire, or to cause an offence punishable with death or with imprisonment for a
term which may extend' to seven years, or to impute unchastely to a woman, shall be
punished with imprisonment of either description for a term which may extend to seven
years, or with fine, or with both.
3. Abetment of the doing of a thing
A person abets the doing of a thing whoFirstly - Instigates any person to do that thing; or
Secondly- Engages in any conspiracy for the doing of that thing; or
Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing is defined as
an abettor under the penal code. (Section 100)
Simon used Podi Nihal to heart Hussain. Therefore he is an abettor under this section of the
penal code. Conspiracy for the doing criminal act is an offence. Though Simon hired a
mercenary for the intended offence he cannot escape from his liability. He clearly had the
criminal intention and the actus rea of the offence was carried out through another person.
Explanation 1 says that;
A person who by willful misrepresentation or by willful concealment of a material fact which
he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a
thing to be done, is said to instigate the doing of that thing.
Abetting for an offence is punishable criminal act under the Section 102 penal code.
Whoever abets any offence shall, if the act abetted is committed in consequence of the
abetment, and no express provision is made by this Code for the punishment of such
abetment, be punished with the punishment provided for the offence.
4. Attempt to murder
Whoever does any act with such intention or knowledge and under such circumstances that
if he by that act caused death he would be guilty of murder (Section 300)
Podi Nihal stabbed Hussain with a sharpened knife and Hussain sustained a serious bodily
injury. According to the facts the attack was seriously amount to caused death, though
Hussain survived. It is clear that He had the knowledge and under such circumstances that if
he by that act caused death. Because he was the one who planned the criminal act.
Therefore it is enough to hold the attempt to murder under the penal code.
The illustrations explains;
A shoots at Z with intention to kill him under such circumstances that, if death ensued, A
would be guilty of murder. A is liable to punishment under this section.
5. Grievous hurt

Whoever causes bodily pain, disease, or infirmity to any person is said to cause hurt."
(Section 310)
The following kinds of hurt only are designated as grievous"
Any injury which causes the sufferer to be in severe bodily pain or unable to follow his
ordinary pursuits, for a period of twenty days either because of the injury or any operation
necessitated by the injury (Section 311)
Podi Nihals act cause serious harm at the end. Again he did hurt by dangerous weapons.
Voluntarily causing hurt by dangerous weapons or mean;
Whoever, except in the case provided for by section 325, voluntarily causes hurt by means
of any instrument for shooting, stabbing, or cutting, or any instrument which, used as a
weapon of offence, is likely to cause death, or by means of fire or any heated substance, or
by means of any poison or any corrosive substance, or by means of any explosive
substance, or by means of any substance which it is deleterious to the human body to
inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished
with imprisonment of either description for a term which may extend to three years, or with
fine, or with both. (Section 315)

Conclusion
Criminal procedure code guides the prosecutor about the way of arresting the offenders
Simon and Podi Nihal and carrying out the trial at court.
Offence
has
done by Simon

Whether
bailable or
not

Whether
Peace
Officer
may
arrest
without
warrant
or not

1. Criminal breach
of trust (s388
& 389)

Not bailable

May arrest
without
warrant

2. Criminal
intimidation
(s483 & 486)

Bailable

Shall not
arrest
without
warrant

Whether a
warrant or
a
summons
shall
ordinarily
issue
in
first
instance
Warrant

Punishment
under
the
Penal Code

By
what
Court other
than
High
Court
triable

Whether
compoundabl
e or not

Imprisonment
of
either
description
for
three
years, or fine,
or both

Compoundable

Warrant

Imprisonment
of
either
description
for two years,
or fine, or
both

Magistrate's
Court.
Primary
Court, except
where
the
value of the
property
exceeds five
hundred
rupees.
Magistrate's
Court.
Primary
Court, except
where threat
is to cause
death,

Compoundable

3. Abetment of the
doing of a
thing (s100) &
Abetment; of
any offence, if
the
act
abetted
is
committed in
consequence
and where no
express
provision
is
made for its
punishment
(s102)
4. Attempt
to
murder (s300)

5.

Grievous
hurt
(s311 (i) & 315)

According
as
the
offence
abetted is
bailable or
not

May arrest
without
warrant if
arrest for
the offence
abetted
may
be
made
without
warrant,
but
not
otherwise

According
as
a
warrant or
summons
may issue
for
the
offence
abetted

The
same
punishment
as for the
offence
abetted

Not bailable

May arrest
without
warrant

Warrant

Bailable

May arrest
without
warrant

Warrant

Imprisonment
of
either
description
for ten years,
and fine
Imprisonment
of
either
description
for one year,
or fine of one
thousand
rupees,
or
both

grievous hurt
or
destruction
of property
by fire or
cause
an
offence
punishable
with death or
with
imprisonmen
t which may
extend
to
seven years
or
impute
unchastity to
a woman.
The
court
(including the
Primary
Court)
by
which
the
offence
abetted
is
triable.

According
as
the
offence
abetted
is
compoundable
or not

Magistrate's
Court.

Not
compoundable

Magistrate's
Court.
Primary
Court, except
where hurl ;
caused to a
public officer,
member or
employee of
a
public
corporation
or a member
or employee
of a local
authority,
engaged in
the exercise,
performance
and
discharge of

Compoundable

his powers,
duties
and
functions.

Table 4.3
Simon can be charged for the offences;
1.
2.
3.
4.
5.

Criminal breach of trust

Criminal intimidation
Abetment of the doing of a thing
Attempt to murder
Grievous hurt

Podi Nihal liable for;

1. Attempt to murder
2. Grievous hurt

Reference
1. wordnetweb.princeton.edu/perl/webwn on 2011-09-28
2. wordnetweb.princeton.edu/perl/webwn on 2011-09-28

4.3 Briefly describe the law relating to bail and identify whether
the offences referred in the scenario are bailable or non
bailable.
(Class Activity)

CONSULTED WORKS
Referred books
1. GENERAL PRINCIPLES OF CRIMINAL LIABILITY IN SRI LANKA A Comparative
Analysis, G.L. PERIS, ISBN 955-8156-18-3, Stamford Lake (Pvt.) Ltd.
2. OFFENCES UNDER THE PENAL CODE OF SEI LANKA, G.L. PERIS, ISBN 955-815609-4, Stamford Lake (Pvt.) Ltd.
3. UNLOCKING CRIMINAL LAW, Jacqueline Martine & Tony Storey, ISBN 978 1 444 109
153, Hodder Education An Hachette UK Company, 3rd Edition.
4. Halsburys Laws of England, Edited by: The Right Honourable Lord MacKay of
Clashfern, ISBN: 0406047766 , LexisNexis Butterworths 3rd Ed.
5. Glanville Williams, Criminal Law: The General Part, ISBN, 0420382909 ,Stevens & Sons,
1953, 2nd edition

Referred Web sites

1. http://www.judcom.nsw.gov.au
2. http://en.wikipedia.org
3. http://www.cps.gov
4. http://sixthformlaw.info
5. http://www.lawteacher.net
6. http://en.wikipedia.org/wiki/Law
7. http://www.law.harvard.edu
8. http://www.justiceministry.gov.lk
9. http://www.guardian.co.uk/law
10. http://www.law.cam.ac.uk
11. http://www.topix.com/law
12. http://www.law.columbia.edu
13. http://www.law.stanford.edu
14. http://www.law.cornell.edu
15. http://www.intute.ac.uk/law