Criminal Law Evaluations

Question 1

R v Lynsey (non-fatal)

Answer 1

criticised non-fatal offences law stating it is in urgent need of reform

Question 2

Language of OAPA

Answer 2

1861; lacks definitions, eg. grievous;
Cunningham interpreted ‘malicious’ as reckless;
s20 ‘malicious’ describes MR, but s18 says ‘with intent’

Question 3

common assault

Answer 3

the precise meaning of each term confused, summary offence;
assault has been described differently over time;
no statutory definition.

Question 4

‘Inflict’ or ‘Cause’ (non-fatal)

Answer 4

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.

Question 5

‘wounding’ (non-fatal)

Answer 5

OAPA doesn’t define a wound,
case law provides an explanation (JC v Eisenhower);
broken bones not considered ‘wound’ (Wood 1830)

Question 6

Act problems (non-fatal)

Answer 6

over two acts; CJA 1998 and OAPA 1861;
time jump;
is common assault more modern and fit for purpose

Question 7

mens rea (non-fatal)

Answer 7

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

Question 8

sentencing (no-fatal)

Answer 8

s39 = 6months, 
s47 = 5yrs, 
s20 = 5yrs, 
s18 = 25yrs
s20 = triable either way, s18 = indictable

Question 9

outdated (non-fatal)

Answer 9

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

Question 10

Reform (non-fatal)

Answer 10

‘Violence: Reforming the Offences against the Person Act 1861’ produced a draft bill
based on a law commission report in 1993
not adopted

Question 11

Drink v Drugs (Intoxication)

Answer 11

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.

Question 12

common law (intoxication)

Answer 12

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

Question 13

strict liability v basic intent crimes (intoxication)

Answer 13

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?

Question 14

extent of intoxication

Answer 14

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?

Question 15

acquittal in intoxication

Answer 15

no lesser offence for theft and attempts
this means always acquitted
suggests the law doesn’t work in practice
especially with voluntary

Question 16

intoxicated mistake

Answer 16

jaggard - exception under criminal damage act
one exception causes inconsistency
illogical and unfit for purpose

Question 17

Kingston case - protection (intoxication)

Answer 17

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)

Question 18

intoxication - reform

Answer 18

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

Question 19

self-defence as a full defence

Answer 19

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

Question 20

householders in self-defence

Answer 20

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

Question 21

pre-emptive force and self-defence

Answer 21

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

Question 22

mistakes in self-defence

Answer 22

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.

Question 23

Intoxication and self-defence

Answer 23

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

Question 24

panic or psychiatric conditions in self-defence

Answer 24

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

Question 25

Reform to self-defence

Answer 25

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

Question 26

consent and level of harm

Answer 26

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

Question 27

valid consent

Answer 27

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)

Question 28

Individual freedom and consent

Answer 28

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

Question 29

Law Commission Report on consent

Answer 29

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.