Academics quotes Flashcards
SOA
- Gardner = ‘the Olugboja view of consent looks to a victim’s own perception of her interests’ + consent is a ‘spectrum’ + the ‘court leaves the task of fixing that point [on the spectrum] to the jury’
- Gardner also recognises that this can make the law ‘indeterminate’ and so unpredictable
- The Law Commission advocated for a fixed formula of certain types of threats which would negate consent
- Gardner criticises this = ‘different people respond differently to the same pressures’
OAPA - for reform
- Alexandra-Maria Eugenicos= OAPA is in ‘urgent’ need for reform
- Eugenicos = ‘the archaic language has created unnecessary procedural complexity’ [e.g. the word assault when used as a verb means assault and battery and outdated crimes such as s.17 involves preventing the escape from a shipwreck
- Eugenicos = ‘the responsibility of modernising legislation lies with Parliament.’
- Gibson = the main problem with the offences in the OAPA is their ‘incoherence’
OAPA - agasint reform
- Practitioners argue that the OAPA works in practice
- Bar Council + Criminal Bar Association = the OAPA works fine in practice so should not be reformed, particularly as the public have a general sense that if you punch someone that that will be an offence, so do not necessarily need to understand the entire Act
= Eugenicos commening on the BC + CBA = ‘the defects in the Act are merely theoretical and legal meaning has already been successfully established in case law.’
OAPA - the Law Comission’s proposals
Reform of Offences against the Person 2015
- They criticise there being no clear hierarchy in the offences [s.47 is the least serious with s.18 being the most serious]
- the drafting is unnecessarily complicated
- it refers to obsolete legal concepts that no longer exist in UK law – such as felonies
- archaic vocabulary
- unnecessary offences = s.17 involves preventing the escape from a shipwreck
- there are words with no clear meaning, such as ‘maliciously’
- whether that involves the two step Cunningham test or the three step G and R test
= They conclude that it should be replaced by ‘clear, modern, and simple’ reform
Homicide
- Chalmers and Leverick = Fair labelling is done out of the fairness of the defender, but also the victim + it is a ‘check on sentencing discretion’ as the certain offence that D has been convicted of will carry a specific sentence
Intention
-
Manslaughter
- Laird argues the worse the breach, the less likely to convict as it is less likely that the risk was to be foreseen at all and must be foreseeable
- Stark welcomes the decision in Rose as he argues it narrows gross negligence to be ’adequately, personally, culpable’ = Rose added that ‘It was reasonably foreseeable that the breach of that duty gave rise to an obvious and serious risk of death’
Theft - commentary on Hinks
- Beatson and Simester = the AR was been ‘so broadened by Hinks it has no boundries’
- Smith = criticises judges for widening theft in cases where D should have been charged with fraud as they don’t want to acquit them
vs. - Bogg and Stanton-Ife = Hinks ‘offers distinct protection to some of the more vulnerable members of society’ = in the case a vulnerable old man’s career took him to the bank to make withdrawals, argued to be gifts, but still theft as kept dishonestly
- the common law and civil law can ‘float free of eachother’ [Hinks] - they do not need to use the same test for dishonesty
Theft - Griew’s critisms of Ghosh
- It leaves the law to the jury as ‘ordinary and decent people’
- Leads to more and longer trials as you don’t know what the jury will decide so can run the risk of going to trial
- It assumes that the jurors are honest
- Unsuitable in cases of complex fraud where ‘ordinary’ people may not understand
[vs. The jury are not applying their own standards but social norms on morality]
Theft - Lord Hughes criticisms of Ghosh
- The more warped D’s standard, the more likely they are to be acquitted [vs. Not D’s own beliefs but of what others would view as dishonest]
- Ghosh disagreed with the civil law [vs. they can ‘float free’ of each other (Hinks)]
- Jurors were confused by Ghosh [vs. Rarely given in directions as jurors used the ordinary meaning of the term dishonest and there was no evidence of this claim]
Theft - Criticisms of Ivey
- Dsouza = Ivey is ‘overinclusive’
- Dsouza = Ivey ‘converts objectively innocuous events into crimes’ if what you believe what you are doing is dishonest - Metro [free] newspaper example
- Ormerod, Laird, and Gibson = ‘much complex case law’
- Smith = theft has become ‘something akin to a thought crime’
Complicity
- D Ormerod and K Laird argued for the law to be based on belied instead of intention
- Ormerod and Wilson suggest that the law ought to be based on a test of whether D believes that P will commit the offence
- Dsouza = D doesn’t need to intend each of the circumstances but know that each fact/element of the offence exists
- Simester = Without joint enterprise liability, it leaves a gap in the law [regarding Jogee abolishing parasitic liability]
Necessity
- Dsouza = the courts should not have granted permission but let the doctors do what they think is best, so to provide an excuse in Re A (children) (conjoined twins)
- Alexander argues that the law is not clear due to an ‘absence of some common denominator for evils’, such as ‘Is violation of a custody order a lesser evil than preventing child abuse?’
- Tamblyn argues that ‘there is an alternative and hitherto unarticulated defence of necessity latent in the case law which could be a defence to murder.’ = where a group are all going to die but some may be saves by ones dying, and the killing would be lawful
Duress
- Loveless cited studies that show there is ‘a connection between domestic violence and some female criminal activity’, due to coercion
- Loveless questions why they do not rely on duress or why they are not successful, and argues that coercion is ‘under-used by women who are coerced by domestic violence’
- Loveless criticises that duress does not include phycological harm as domestic violence can take many forms + the threat be imminent as in domestic violence the coerced act may be to prevent future battering
Self-defence
Bettinson and Wake = -
- criticise the government’s rejection of proposals by the Prison Reform Trust that would have extended self-defence in householder cases to victims/survivors of domestic abuse
- there should be a rebuttable presumption that the victim did not have ‘a realistic opportunity to retreat unless proven otherwise’
- ‘the policy decision to exclude intoxicated mistaken belief in all self-defence cases ought to be revisited’ as there is a correlation between drinking to cope and domestic abuse
Intoxication
LC
- Law Commission Report on Intoxication and Criminal Liability = rejection of specific and basic intent, but there should be a statutory list of fault elements, but rejected by the givernment
- 1993 Law Commission proposal = a new offence of criminal intoxication and sentencing would reflect the degree of harm
Intoxication
Academics - C
- a ‘strictly logical approach’ where D did not have the MR due to the intoxication, versus an ‘absolutist’ approach, where failing to hold D liable would not adequately protect the public nor deter people from drinking irresponsible, so there is prior fault
- common law’s solution to this a ‘midway course’ by making D only liable for basic intent offences
- the distinction is ‘pivotal’ as it means that D will be liable or not
Intoxication
Academics - W
Williams =
- ‘the more complex the law becomes in order to take account of these varying degrees of culpability, the more difficult it becomes for juries and courts to understand and operate’ - is this the price for clarity?
- varied degrees of culpability may lead to ‘greater difficulty for a particular jury in reaching a verdict’
- Williams = ‘greater options’ risks the jury not coming to an unanimous verdict
Insanity
- Ormerod and Dsouza identify a number of issues: ‘lacking in sound psychiatric foundation, ambiguous in its terms, uncertain in its scope, illogical in its outcomes, stigmatizing in its labelling’
- reform would ‘lack practical significance’
- they instead argue for a new defence of showing a ‘qualifying recognised medical condition’
- Law Commission (2013) = there is ‘less evidence that the defences cause significant difficulties in practice’
- MacKay = diminished responsibility has ‘led to the demise of the insanity defence in murder cases
