Critics Flashcards
Law Commission on duress
The Court of Appeal in Graham accepted this approach in part when stating that the resistance to be expected was that of one “sharing the characteristics of the defendant”. But the court added the requirement that the resistance match that of “a sober person of reasonable firmness”, seeking in this way to “limit the defence. . .by means of an objective criterion formulated in terms of reas~nablenes. On consultation, there was strong support for our view that the defence should apply where the particular defendant in question could not reasonably have been expected to resist the threat. We do not accept the contrary view, for which there was very little support, that the defence should be withheld from the “objectively weak”. First, such an approach would be ineffectual as a means of law enforcement. If a person is in a condition that makes it unreasonable to expect him to resist, then he will not resist, and the fact that a different person in those circumstances might have resisted will not affect the matter. Second, the purpose of the defence is not to enforce unrealistically high standards of behaviour. Rather, the defence acknowledges that where the defendant could not reasonably have been expected to act otherwise he should not be convicted of a crime
Reed on duress
Criminal law should not require heroism (Reed) states “it is inapt to demand heroism as a pre-requisite for exculpation”.
Horder on self defence
sugguested this should be self-defence even if not faced with imminent attack.
Krause on self defence
argues that an asleep partner is likely to be woken at any point, thus an imminent attack might occur.
Ashworth and Leverick
on self defence
a. argue that present English law may be incompatible with art 2 (right to life) because a person’s right to life is not sufficiently protected if he may be killed by force used without reasonable grounds.
Duff on UAM
a. has criticised the constructive element by which D’s liability for manslaughter turns on the consequence of death, which will often by unforeseen by D and be regarded as a matter of “bad luck” beyond his control.
Laird ON SEXUAL Offences
1) a. use of s76 has been “reduced to vasnihing point” and this is a good thing. No injustice will be done to C given that the issue of herconsentcan still be considered unders.74and it is fairer to D, as the conclusive presumptions will not apply.
2) a. In mcnally –it was said that deception as to wealth will never vitiate consent. Laird asks why it should “obviously” not be enough.
Jonathan Herring
sexual offences
a. suggests that If D deceives C as to any material fact82then that ought to be sufficient to vitiate herconsent, even If it is is wealth, this will likely open up the more rapes that occur.
Ashworth
sexual offences
The label “rape” is extreme where there has been oral or anal penetration, due to the widening of th offence beyond its common understanding, the label can be misunderstood and jury members with strong impressions of what rape is might be less inclind to find liability
Lowry
in C
1) Lowry gave a criteria of when judges should leave the law to parliament in the case of C. Quite a lot of the requirements apply to parasitic liability.
Sullivan on attempt
“the line between these two cases [r v gullefer and geddes] are “so thin as to be invisible”.
Ashworth
1) bgelieves that the autonomy agument against omission liability is misconceived. A duty will only arise in exceptional circumstances where V is in considerable danger, autonomy is respected. An easy rescue offence would be clearer than waiting until a court hearing to see if X was under a duty to act.
Williams
1) thinks that there is a difference between acts and omissions, D is not making the world worse, she is merely failing to make it better. Also as criminal law has limited resources, it should focus on the most blameworthy conduct.
Lord Goff
on murder
would narrow the law excluding those who intend to cause GBH, he thinks it is inappropriate to call label them murderers. Wilson agrees.
Parsons critises:
a. No definition of loss of self control (Dawes). Parsons thinks the jurys use their common sense.
b. killing has to result from his loss of self-control–has a higher threshold than that of the previous law on provocation, where the loss of control had to be fuelled by anger but did not have to be overwhelming. ContrastJewell,where it was held that loss of control means a loss of the ability to act in accordance with considered judgment or a loss of normal powers of reasoning.5This seems to set the threshold for loss of control much lower than inDawesand suggests that Dawes had lost self-control.
c. previous law of provocation, which did allow for sexual infidelity in itself to be the basis of the defence
d. Sexual infidelity’ is not defined by the Act – only comments from the judge.
Findlay Starks
attempt
– makes a point that the court seems to suggest that the approach in Khan does not apply to impossible attempt cases, such a suggestion ignores s1(3)(b) of the act. Stark makes the point that belief is more culpable form of mens rea than suspicion so D would have had the intent if they believes that the metal was stolen. Given that D suspected the metal to be stole, Stark argues that the court was correct to quash their convictions but erred in casting doubt to Khan.
Duff
ateempt
Argues that D would be liable for the substantive offence if he succeeded in doint what he was trying to do with the level of mens rea as to circustaces. Logical that he should be guilty of attempt if unsuccessful.
Melissaris
theft
believes that Lord Roskill’s conclusion in morris is wrong, it is not “any” appropriation of a right.
