Critical commentary Flashcards
1
Q
Critical Commentary for acts reus omissions (2)
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- Ashworth
o There is no moral difference between a positive act and an omission where a duty is established
o The law should move towards social responsibility – recognise certain duties of citizenship and acknowledge the limits on what is fair to ask of citizens
o The general offences of omissions should be child neglect and two new offences: failing to take steps to assist someone in sudden peril and failing to take steps towards law enforcement
o There is a need to develop a broader and more coherent approach to omissions, which takes proper account od the wider social and moral issues - Williams
o The criminal liability of omitters should not be made more stringent that the criminal liability of doers – it would be a retrogressive change
o There is a moral difference between a positive act and an omission – disagrees with Ashworth
2
Q
Critical commentary of acts reus causation (6)
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- Clarkson, Keating and Cunningham –
o suggest that the drug supply cases reveal a clash between two principles of the criminal law of causation – the ‘reasonable foresight test’ and the ‘voluntary intervention principle’. If the former test is used liability will attach to the supplier as it is clearly reasonably foreseeable that the drugs supplied will be taken (although it is questionable whether death is foreseeable). If the latter principle is relied on, then the chain will be broken by the voluntary taking of the drugs - Jones
o Voluntary intervention meant there was a barrier to holding drug dealers criminally responsible for the death of the drug user – more recent cases of Field and Rebelo dealt with this issue and broadened law to make drug suppliers responsible - Hart and Honoré
o Only abnormal things are causes – the free voluntary and informed act of a person is an abnormal act which breaks the chain - Michael Moore
o D is responsible for hr natural consequences of his actions but not for freakish results - G Williams
o D can urge V to do something, which may make V more likely to do it, but they do not cause D to do it - Sullivan and Simester
o Field – court could not rest causation purely on D’s supply as too broad basis of criminal liability but instead took facts of Field beyond reach of Kennedy to attribute causal force to D’s undisclosed intent – ensured D received punishment commensurate with culpability
o Wallace – Expansion of FDI principle to intervention by V needs to be not only free but also ‘unfettered’ by consequences of D’s unlawful act. Court strived to hold D responsible due to moral nature of case but in doing so underestimated the difficulties of the causal issues
3
Q
Critical commentary of mens rea intention (2)
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- Norrie
o Orthodox subjective approach (intention treated as a matter of fact excluding moral assessment of D’s conduct) v morally substantive approach (was D’s intention good or bad)
o Due to the English tradition of orthodox subjectivism, the law places too much weight on a psychological conception of the required mental state and fails to recognise the issue of ‘indiscriminate malice’. Secondly the law fails to differentiate between culpable and non-culpable acts
o After Woollin, case law contains both foresight of virtual certainty and foresight of high probability elements because nether approach adequately embodies the moral judgments required by the murder label - Wilson
o Woollin decision did not create a clear, unambiguous test for intention but was a small step in the right direction
o Judges in Woollin were correct to be cautious in setting out a framework for a universally applicable standard meaning of intention as the facts of Woollin would have made it obiter – it would need a more novel case such as Gillick or Adams to justify a broad meaning of intention
4
Q
Critical commentary of mens rea recklessness (2)
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- Amirthalingam
o Intoxication is not the only instance when inadvertence may be culpable – it is broader and simply a person is culpable when a person ought to have adverted
o There should be certain minimum duties of citizenship and every individual should have a responsibility to advert to relevant risks when actively engaging in certain conduct – failure means culpability
o Focus for test should remain on the accused and question is simply whether his/her mind should have been attuned to the risk – in R v G the young children were not attuned to the risk – if they had been two drunk it would have been unlikely this would have overturned Caldwell
o Court should distinguish between those who act out of stupidity/lack of imagination and those who act outside the bounds of what is human and decent people regard as tolerable - Crosby
o An overly subjective approach can allow those who are blameworthy to avoid criminal liability
o An overly objective approach can lead to injustice without being capacity based
o Synthesis of these two approaches is required – either by developing a capacity based test or introducing practical indifference test
5
Q
Critical commentary for murder (5)
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- Lord Hailsham – R v Howe (Mandatory life sentence argument)
o Murder consists of a bundle of offences vastly differing in culpability so having a mandatory sentence of life imprisonment for all murder offences is unjust - Lord Steyn – Powell and English (The GBH rule)
o Against GBH rule - Intention to cause GBH being sufficient for murder is controversial – a person convicted of murder having only intent to cause GBH was not ‘in truth’ a murderer - Lord Edmund Davies (The GBH Rule)
o Support for GBH rule - Intention to cause GBH is so severe that there is little consideration for whether death result or not. Therefore D should still be punished for murder - Goff
o English law should abandon intention to cause GBH or grave personal injury as constructing a sufficient mental element of murder
o Instead the Scottish concept of wicked recklessness should be implemented as it prevents trying to expand the meaning of intention to fit certain cases and do not have to make dissertation about foresight of consequences
o Wicked recklessness- intention to kill or indifference to death
o Crime of murder should be the same in England and Scotland - Ashworth
o Law Commissions proposals to reform murder still remains ambiguous in the wording used and still favours a flexible approach whereas academics would prefer a fuller definition
6
Q
Critical commentary for diminished responsibility (3)
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- Clough
o Mercy killers would have to prove have a recognised medical condition to rely on partial defence of diminished responsibility which cannot always prove – unfair for them to be labelled as murderers
o However, allowing mercy killers to rely on DR would make it too easy and would be an abuse of the defence for those killing for inheritance etc - Kennefick
o Change from ‘abnormality of mind to ‘abnormality of mental functioning caused by a recognised medical condition’ in the law meant requirement of recognised medical condition makes it more mechanical when deciding who does and doesn’t qualify for successful plea – should be more flexibility to allow for other circumstances such as mercy killing ect - Mackay
o There is concern that the number of successful pleas for Dr could continue to fall as the scope is a lot narrower with introduction of recognised medical condition making it harder to plead – 109 in 1979 to 39 in 2005
7
Q
Critical commentary of loss of control (5)
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- Should Loss of control be abandoned entirely?
- Withey
o Parliament missed the opportunity to clarify the law
o Loss of control need not be sudden but lacks clarity as to what classifies as loss of control as led to broad applications
o Objective test lacks clarity and may lead to inconsistent interpretations of the law - Norrie
o Although removal of sudden requirement may help where D’s reaction is delayed or gradual, there can still be an argument as to whether there was a loss of control
o Abused women acting after time delay may still struggle to argue loss of control – how does one identify a loss of control, except as a moment of departure from being in control? - Was it right to exclude sexual infidelity from loss of control defence?
- Wake
o Sexual infidelity prohibition is superfluous since loss of control defence will only be left to the jury if sufficient evidence is raised – prohibition will rarely be invoked since it is unlikely sexual infidelity will be raised in isolation from other factors - Baker and Zhao
o Being able to consider sexual infidelity when investigating the defendant’s circumstances is letting the disqualified event in ‘through the back door - Clough
o Finding a case where sexual infidelity is completely separate from other events will be difficult and therefore reference to it in Coroners and Justice Act seems purely academic – will only cover small amount of cases – those of pre sexual jealousy and anger of a possessive nature makes it virtually impossible for women who kill in such circumstances)
8
Q
Critical commentary of unlawful and dangerous act manslaughter (4)
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- Offence is too broad – D does not have to know act is unlawful or dangerous and does not have to foresee death or serious harm
- Leigh
o The scope of unlawful act manslaughter should be limited to crimes of violence – actual bodily harm would be an appropriate degree of harm provided that it is intended - Taylor
o Omissions should be included within unlawful and dangerous act manslaughter – if the omission us not just deliberate but is also inadvertent (the potential consequence of serious harm is known to D) then it should be involuntary manslaughter - Possible reform: Law Commission Report 306 Murder, Manslaughter and Infanticide
o Manslaughter would encompass
1. Where death was caused by a criminal act intended to cause injury or
2. Where the offender was aware that the criminal act involved serious risk of causing injury - Breaches principle of correspondence – mens rea has to relate to prescribed harm
- Horder
o Correspondence principle has very limited application
o It ought to be labelled as proximity principle as it would be wrong to require an exact match between actus reus and mens rea rather than simply a close approximation between the two
o Unlawful and Dangerous act manslaughter current law is correct – correspondence between actus reus and mens rea does not have to be exact (although mens rea for murder being intention to kill is not present, there is a close approximation as death results) - Principle of fair labelling – applying manslaughter label to someone who envisaged no more than a battery is disproportionate
9
Q
Critical commentary of gross negligence manslaughter (7)
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- Laird (critical of Rose)
o In favour of retaining objective approach
o Critical of Rose as took into account subjective elements
o D’s conduct should be evaluated against standards of a reasonably competent professional to ensure test remains objective and is not diluted by reference to D’s shortcomings
o There should be no distinction between optometrist who conducts investigation negligently and optometrist who is so negligent that they do not attempt to do an investigation - Stark (in favour of Rose)
o In favour of more subjective approach
o Should welcome a narrow approach to gross negligence manslaughter as ensured D held adequately liable – takes into account what D knew at the time not what they should have known - Oliver (critical of current GNMS law)
o Gross negligence is too vague – lumps together cases of slips and lapses with those of clear recklessness – problem with fair-labelling
o Gross negligence should be abolished – criminal law should be a last resort for medical cases and only where there is clear recklessness - CRITICISM THAT TEST IS CIRCULAR
- Jury should find 1. D’s actions to be criminal 2. If they think his conduct falls so far below proper standards 3. That it should be judged criminal
- Lord Mackay in Adomako
o Accepts circularity and does not find it problematic
o Phrased it differently – jury have to determine whether having regard to risk of death, conduct of D was so bad to amount to a criminal act or omission - Misra
o Circularity argument rejected in Misra
o The question for the jury is not whether the defendant’s negligence was gross, and whether, additionally, it was a crime, but whether his behaviour was grossly negligent and consequently criminal. This is not a question of law, but one of fact, for decision in the individual case.
o Rejected argument that GNMS is unclear so contradicts Art 7 - Does not contradict Article 7 (no punishment without law) circularity does not result in uncertainty - Quick
o Argues that gross negligence MS should be replaced by subjective reckless MS – he argues the breath given to gross negligence leads to unfairness and mislabelling – with cases of momentary slips being lumped together with cases of clear recklessness - Possible reform of GNMS – Law Commission Report 306
o Manslaughter would encompass where there was gross negligence as to causing death
1. A risk that D’s conduct will cause death would be obvious to a reasonable person in D’s position
2. D is capable of appreciating the risk and
3. D’s conduct falls far below what can reasonably be expected of him in the circumstance
o Recommend that there should no longer be a category of ‘reckless manslaughter’ and instead worst forms of reckless manslaughter should fall within second degree murder and other forms would fall into gross negligence manslaughter
10
Q
Critical commentary for non-fatal offences (2)
A
- Clarkson
o Current law is illogical and chaotic
a) It is illogical that a wounding (which could only be minor cut) is treated as serious bodily harm
b) Why should a defendant be guilty of the most serious non-fatal offence, section 18, carrying a maximum of life imprisonment, when only minor injury is foreseen but there is an intention to resist arrest?
c) It is unclear whether there is a difference between causing grievous bodily harm in section 18 and inflicting grievous bodily harm in section 20
d) A section 18 offence can be committed “by any means whatsoever” while a section 20 offence allows the violence to be inflicted “either with or without any weapon or instrument.” What is the difference?
e) Correspondence issue - The only mens rea required for inflicting grievous bodily harm contrary to section 20 is that the defendant foresees the risk of some bodily harm.
f) Similarly, with section 47the defendant must cause actual bodily harm but need not realise that this is possible. The mens rea of a mere common assault (assault or battery) will suffice
g) Sections 20 and 47both carry the same maximum penalty of five years’ imprisonment. This is a serious distortion of the relative seriousness of the offences.
h) A battery involves a ‘hostile’ touching – uncertain what this means
i) Assault and battery and s.47 can be committed intentionally or recklessly – despite Savage/Parmenter there is confusion over whether this is subjective or objective - Gardner
o Lack of clarity in the current law and inconsistency violates the rule of law – how can the law be consistently applied and interpreted by judges in the courtroom as well as citizens trying to follow the law if it is illogical and incoherent
11
Q
Critical commentary for consent (3)
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- Clement
o The law on exceptions to consent and expanding into body modification will remain ill-principled, inconsistent and illiberal until parliament intervenes - Giles
o Judgment in Brown reflected the view that paternalism triumphs over individual freedom
o There should be a compromise between complete freedom to act consensually and liability for all harms, minor or not, consensual or not – this should eb for Parliament to decide not the unelected, unrepresentative judiciary - Pope
o Brown brought about the codification of the rule in section 71
o Section 71 – consent to serious harm for sexual gratification is not a defence was necessary to respond to domestic abuse cases
o Although feminist and queer concerns of over-criminalisation, have concerns for homophobic implications of ‘normative sex’, they fail to consider prevalence of domestic abuse and violence in this defence
o Section 71 necessary to ensure that ‘rough sex’ narrative does not disguise domestic abuse
o Further reform is still necessary to target underlying causes of domestic abuse, rather than merely punishing perpetrators
12
Q
Critical commentary of rape (4)
A
- Herring – deception as to gender
o In thinking about free agreement we need to look at what complainant would like to know and what D would know the complainant would want to know in order to consent to sexual activity - Sharpe – deception as to gender
o CofA judgement is underpinned by homophobia and transphobia. It misrepresents what it is like to live trans and D may not have been deception as to gender, they are instead living as their true self.
o Disclosing their gender history is not without risk and could come with violence etc so it is not necessarily something that should be required to disclose. - Cowan – consent and intoxication
o Needs more clear guidance on where capacity to consent is negated where there is intoxication and the threshold for this
o Parliament should introduce legislative reforms to include consent in extreme drunkenness as one of situations where consent is not present
o Courts need more support and guidance, which is not tainted by discriminatory views about appropriate gender behaviour, on how to distinguish someone intoxicated to point that consent is negated and someone who is drunk but still capable of consent
o There are too many prejudices and biases around women’s responsibility for attacks perpetrated upon them while they are voluntarily intoxicated - Temkin and Ashworth – impact of change with Sexual Offences Act 2003
o Change does not really make a difference - Myths and gendered assumptions around sexual behaviour may still not be filtering out of criminal system and may still influence when it is reasonable to belief consent
o ‘The broad reference to “all the circumstances” is an invitation to the jury to scrutinize the complainant’s behaviour to determine whether there is anything about it which could have induced a reasonable belief in consent. In this respect, the Act contains no real challenge to society’s norms and stereotypes about either the relationship between men and women or other sexual situations and leaves open the possibility that those stereotypes will determine assessments of reasonableness.’
13
Q
Critical commentary for self-defence (4)
A
- Thomas (householder defence)
o A jury must be directed to take account of the householder’s actions to the same extent that they would a non-householder, namely whether the force used was nevertheless reasonable in the circumstances – Parliamentary intentions were appropriately followed in Collins
o There is the potential that Article 8 ECHR could be infringed if Parliament were to say that a householder must regulate their alcohol intake within their own homes on the basis that no defence can be availed if a mistake was induced by voluntary intoxication. It would be, it is argued, absurd to suggest that householders regulate their consumption of alcohol
o At present, the householder defence may only be availed were the force was used in defence of oneself or another, as opposed to defence of property – how can a distinction be drawn between these two in practice - Elliott (householder defence)
o Under Art 7 ECHR, criminal law must be certain, predictable and clear – risk that changes introduced by 2013 Act introduce uncertainty into the law as distinction between ‘disproportionate’ and ‘grossly disproportionate’ are unclear - Wake (problem for battered women)
o The legitimisation of disproportionate force under s.43 unfairly places the ‘startled householder’ in a better position than every other defendant claiming self-defence
o It is unjust to allow an affirmative defence in home invasion cases but preclude that same defence where the battered woman kills her abuser simply because the person is known to her
o Battered woman is only allowed partial defence under loss of control, whereas householder is allowed full defence of self-defence
o Suggests implementation of new partial defence of self-preservation/psychological self-defence for battered women - McColgan (problem for battered women)
o Jury’s assessment of the reasonableness of the battered woman’s conduct regarding self-defence should be judged considering the abuser’s past conduct
o A battered woman may anticipate an attack from abuser previous actions leading up to a previous attack and therefore pre-empt another attack – jury should consider battered women’s ability to apprehend danger even where there is no threat apparent to an onlooker
14
Q
Critical commentary for duress (4)
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- Arenson (should duress be a defence for murder)
o Refusing to allow duress to be used as a defence to murder is seriously flawed
o It is unrealistic to expect of any person to refuse to follow a direction to take an innocent life when consequence of that refusal is certain to result in the loss of own life or close friend/family member - Gardner (duress as defence to attempted murder)
o Decision in Howe that duress is no defence to murder has been undone in subsequent cases and the decision was ill-judged
o Duress being no defence to murder fails to recognise the moral implications of this decision – those who murder out of duress should not be expected to be treated the same as all other murderers - Loveless (duress defence for BWS)
o BWS ignores women who do not display learned helplessness – this poses an additional obstacle to them that is not applied to men on duress scenario - Edwards (gender bias in duress defence)
o The reasonable person standard does not consider abused women – therefore a strict objective approach restricts women from raising the defence
o In more novel cases such as women in domestic violence, a more subjective approach should be taken
o There is a higher threshold for women to raise a defence than for men – defences are crafted on male experience
o Should there be a separate defence available for domestic abuse victims – how would we find this balance
15
Q
Critical commentary of theft and robbery (2)
A
- Betts
o Offence of robbery is too wide
o Could incorporate minimum threshold of force so low levels are thefts with force being aggravating factior taken into consideration at sentencing
o Fair labelling – treating minimal force thefts as robberies is unfair
o Sentencing is not representative – 7 years for theft and max life for robbery - Ashworth
o Robbery is too broad – covers everything from push or raised hand to most violent robbery of a security vehicle with guns fired
o Ladder of robbery offences should be introduced to considerer fairer sentencing and fair labelling
