Commentary Flashcards
Lady Hale
Debbie Purdy case - necessity/duress/Gnango - para 68 - each person has autonomy to value their lives as they please, but it may be justifiable for society to insist that we value their lives even if they do not
Jonathan Herring
Issues with victims being convicted as principles - NB the only other case where a victim was prosecuted was over 400 years ago cf. Wright – in Gnango the courts said obiter that s51 SCA meant that there was no general principle of victims not being liable, but this is assuming a CL principle from a statute
Alan Reed
Has argued for a fuller and more accessible defence of withdrawal in JE following US jurisdictions and the Moral Penal Code which promulgate a reasonableness/proportionality standard as opposed to the unequivocal nature found in English law (Baker)
Lord Bingham
Partial defences to murder - defendants must be ‘neither over convicted nor under convicted’ echoed by the Law Commission in their report no. 304
Ronnie Mackay
‘Responsibility’ is now absent from the newly inserted section of the HA 1957 - has approved of this because it sidesteps the need for juries to make value judgments about morality, they can objectively assess
Barry Mitchell
Despite C&JA replacing the CL defence of provocation and getting rid of the requirement of ‘sudden and temporary’, which allows slow-burn cases often found in battered spouses - the LOSC condition, assuming it is broadly interpreted like under the old law, is a significant restriction - he says that the new LOSC is merely a guise
Jennifer Temkin and Barbara Krahé
Sexual Assault and the Justice Gap: Question of Attitude
They have called for the abolition of jury trials due to certain jurors having strong bias towards to ‘rape myths’, which means they are also more likely to vocalise them to other jurors - it is certain that this would receive fierce opposition and potentially have implications on human rights and constitutional rights.
A Pedain
Suggested a wider meaning of intent with less weight on foreseeability, as a ‘virtual certainty’ is illogical, instead it should be asked, did the D endorse the harm? With foresight being an element of the decision
R v Hasan, Baroness Hale, dissenting
Also, Loveless
It has been argued that the bar to duress when ‘self-exposed’ is too narrow, and may bar a woman who is forced to commit a crime by her abusive partner – the objective test of self-exposure also debars anyone who involves themselves with a criminal, even though they may not foresee any issues - Hale said foresight should be added in
Professor Clarkson
Argued that the law of duress/necessity/self-defence should be simplified into one defence of ‘necessary action’ and has argued that the current distinction is currently for historical reasons and lack reason - this would be a defence to any crime for any threat and a reasonableness/proportionate test would apply
Finch and Munro
Temkin
Mock trials showed that the new definition of consent was confusing for jurors and has therefore not increasing conviction rates
Also note the rebuttable presumption as to deception
Catherine Elliott
Gross neg manslaughter imposes a wide lacuna, where the D has fallen below the required standard, but it is still much too far from manslaughter liability - should concern criminal liability
Helena Kennedy QC
LOC for women - ‘a snapping in slow motion, the final surrender of frayed elastic’ - the LOC element, which is still present, and is much more a male characteristic, is still prejudice to women
