Criminal Law Evaluations Flashcards
R v Lynsey (non-fatal)
criticised non-fatal offences law stating it is in urgent need of reform
Language of OAPA
1861; lacks definitions, eg. grievous;
Cunningham interpreted ‘malicious’ as reckless;
s20 ‘malicious’ describes MR, but s18 says ‘with intent’
common assault
the precise meaning of each term confused, summary offence;
assault has been described differently over time;
no statutory definition.
‘Inflict’ or ‘Cause’ (non-fatal)
s20 ‘inflict any gbh’, s18 ‘cause any gbh’,
does inflict have a narrower meaning than ‘cause’;
s20 is easier to convict with recklessness than s47
s47 needs an assault/battery.
‘wounding’ (non-fatal)
OAPA doesn’t define a wound,
case law provides an explanation (JC v Eisenhower);
broken bones not considered ‘wound’ (Wood 1830)
Act problems (non-fatal)
over two acts; CJA 1998 and OAPA 1861;
time jump;
is common assault more modern and fit for purpose
mens rea (non-fatal)
s47 same mr as s39; s47 not demonstrative (R v Savage); s20 is the same as s47; s18 is strict liability; inconsistent mr compared to the severity
sentencing (no-fatal)
s39 = 6months, s47 = 5yrs, s20 = 5yrs, s18 = 25yrs s20 = triable either way, s18 = indictable
outdated (non-fatal)
OAPA = 150 yrs old;
cannot reflect today’s social issues and crimes;
communication, technology etc has changed;
‘bodily harm’ does not recognise psychiatric harm;
requires the development of case law
Reform (non-fatal)
‘Violence: Reforming the Offences against the Person Act 1861’ produced a draft bill
based on a law commission report in 1993
not adopted
Drink v Drugs (Intoxication)
no distinction, the law is the same;
drugs are illegal though, alcohol is not;
giving someone who takes illegal substances a defence is morally wrong;
must limit the defence to only violent crime;
should also act as a deterrent to alcohol;
wide impact on society eg NHS.
common law (intoxication)
case law
judges are legal experts creating laws with precedent
flexible regard towards the law
can develop more as society changes
undemocratic
ignores parliamentary supremacy and sovereignty
strict liability v basic intent crimes (intoxication)
neither term is properly defined
strict liability doesn’t need MR proved so should intoxication be considered
is it fair to convict someone who is involuntarily intoxicated of specific intent?
extent of intoxication
so intoxicated they cant have the MR
difficult for the jury to judge
levels of intoxication differ from person to person
it is almost impossible to know
should it be judged by if the d goes to the doctors?
acquittal in intoxication
no lesser offence for theft and attempts
this means always acquitted
suggests the law doesn’t work in practice
especially with voluntary
intoxicated mistake
jaggard - exception under criminal damage act
one exception causes inconsistency
illogical and unfit for purpose
Kingston case - protection (intoxication)
fairness
it is socially wrong to acquit molestation
paedophilia requires protection
desire does not equal intent
social concerns are more important
media backlash also needs to be considered in difficult cases
there is a link between crime and intoxication (45% rape were intoxicated d’s, 2/3 in homicide)
intoxication - reform
Law Commission 2009 report
suggested a list of crimes where intoxication apply
would provide clarity
not useful in novel situations
does it prevent a d from being able to argue intoxication
self-defence as a full defence
acquittal even if the D killed
is it too generous?
good reform - partial defence in cases of murder
fair on V family and deterrent for extreme self-defence
however, shows D is not a true criminal
should not be treated as a criminal
householders in self-defence
grossly disproportionate force question of how much is grossly disproportionate can use more than disproportionate force jury is to decide so uncertain few prosecutions law in favour of the householder law works well in practise grossly disproportionate is more than enough
pre-emptive force and self-defence
how far is to far to prepare for a potential attack
people cannot properly measure the amount of pre-emptive force
in cases of wrongful attack
should there be a full defence for this
mistakes in self-defence
as long as it’s an honest mistake, even if it’s unreasonable, the defendant will have a defence. It’s good that the law is limited.
Intoxication and self-defence
no defence (Lipman) somebody who uses self-defence under the influence of alcohol or drugs (Lipman = LSD) should not be allowed to think the force was reasonable holds people accountable
panic or psychiatric conditions in self-defence
hard to measure force when in panic
cannot make allowances for the most minimal conditions
is it unfair to not consider paranoia (R v Martin)
there is still a victim and a family concerned
the law is about justice
Reform to self-defence
no law reform proposal from the commission
should the law be codified
one act would be easier to understand
three acts and case law cause confusion and uncertainty in the law
consent and level of harm
seems it has to be great harm (Barnes)
but Wilson required medical attention unlike Barnes; homophobia in the law?
cannot consent to death (R v Pretty), euthanasia is illegal which is a controversial topic
valid consent
consent needs to be informed
D should be made aware of the risks (R v Dica) and if they would not have cont. otherwise, it is not real informed consent (Konzani)
also not relevant or to argue consent if it is uninformed (Clarence)
this development of law shows it is fit for purpose.
true consent also cannot be through fear so this protects people (Olugboja)
Individual freedom and consent
inconsistency in freedom to engage in consensual activity
some cases put forward public policy concerns AG Ref No. 6
Wilson v Brown verdict again shows inconsistency
Law Commission Report on consent
no official report
suggestions on consent in sexual offences needing better law
1994 paper Consent and Offences Against the Person discusses personal body modifications and that the law has no place in dictating this, rejected
there should be limits but also exceptions such as tattoos, piercings, consensual sexual activity etc.
