Evaluation and criticisms Flashcards
intoxication criticism - Coincidence
AR and MR coincidence -
Some areas of law on intoxication are contrary to normal rules on actus reus and mens rea. DPP v Majewski had the defendant guilty of a basic intent crime as getting drunk is reckless. This ignores principles that AR and MR must coincide. Decision to drink may be hours before any crime is committed. As seen in O’Grady where the defendant had fallen asleep and only hit his friend hours later.
In addition recklessness in becoming intoxicated means the D takes a general risk of doing something stupid when drunk. When getting intoxicated the D has no idea that they will commit an offence. For an offence where recklessness is sufficient for an offence it has to be proven that D knew there was a risk of specific offence being committed
law comissions proposal on coincidence
Considered in law comissions consultation paper of 1993. Said that Majewski rule was arbitrary and unfair. However the proposal for changing the law weere severely criticised and by time they published firm proposals for reforms in 1995 they had changed their opinion. By this time they believed the law operated fairely on the whole, and without undue difficulty.
- Positives to law - The alternate approach to the Majewski decision was seen in Richardson and Irwin does make the law fairer. Under this the magistrates or the jury have to consider whether a defendant would have realised the relevant risk if they wasnt drinking. The fact of being intoxicated doesnt make them automatically guilty.
- However still shaky as hard to tell if defendant would have realised risk if sober and one of the judges in Richardson and Irwin in the C of A stated that the defendants were not hypothetical reasonable men but university students. so would they have realised the risk sober ?
Specifi/Basic intent crimes and intoxication
When a D is charged with murder or s18. GBH he can use this as a defence. However, because intoxication is not a defence to basic intent crimes it cant be a defence to lower level crimes. There are manslaughter where murder is charged or an offence under s20 OAPA where a s18 offence has been charged.
-However for other crimes there is often no fall back offence. if a defendant is charged with theft and sucessfully claims he did not have the mens rea becuase he was too intoxicated he will not be guilty of any offence.
Involuntary intoxication
- A final point in the law needing reform is a Ds inhibitions are broken down by being made intoxicated involuntarily. The decision in kingston makes such a D guilty if he formed the necessary mens rea. This ignores the fact the D was not to blame for the intoxication. Such a D would not be guilty of a basic intent offence where the prosecution relied on recklessness (like in hardie) this appears to be unfair to the defendants in kingston
public policy issues in intoxication
Many of the contradictions in the law on intoxication have arisen because the law in the area is largely policy based This is because of two main reasons :
- intoxication is a major factor in the commission of many crimes and many offences are committed when the D is intoxicated
- there is a need to balance the rights of the defendant and the victim if intoxications were tro always be a defence then victims rights arent protected.
public policy can be clearly seen on the law for self defence , the defence of another and prevention of a crime. Parliament has inacted in s76 CJ and immigrations act 2008 that D cannoit rely on any mistaken belief attributable to intoxication that was voluntary induced when claiming any of these defences
Consent criticism inconsistency
In brown the H of L ruled that consent could not be a defense to sadomasochistic behavior between consenting adults because of the cruelty and degradation involved. In Wilson the C of A ruled that consent could be a defence where a husband branded his wifes bum with his initials. These decisions where made despite the fact that none of the victims in Brown needed medical attention where as the wife in WIlson did.
Consent criticism policy considerations
the law is prepared to condone acts where the parties are consenting heterosexuals but not consenting homosexuals. There are also contradictiory decisions within cases having heterosexual coules like Emmet where consensual sexual behaviour meant then woman had to seek medical attention on two occasions and her partner was charged is s47 OAPA 1861. This contrasts decison in Wilson.Can be said where consenting isnt allowed as adefence its the courts adding their own moral beliefs and values. Public policy issues were important considertions in brown where the judgement it said there is a difference between violence that is incidental and inflicted for indulgence of cruelty. in a civilised society, cruelty should not be tolerated. is it right the law should interfere with peoples private lives.
Horseplay criticism in consent
Law accepts the defence of consent for horseplay even when resulting injuries are serious. This is based upon the aggressor not having the MR for the assault. Is this fair when compared to sexual behaviour like in brown
Euthanasia criticism for consent
no one can consent to another person assisting in bringing about their own death. This means a terminally ill patient wishing to die would take their own life. IF anyone helps with their death they will be faced with a charge of murder or assisted suicide. This was decided in the case pretty. There has been several attempts to challenge this rule including Tony Nickilson in 2014. It has been said that this is an issue for parliament, but despite wide support, has they have been unwilling to debate
Self defence necessary force criticism
A jury question. There can be problems in deciding when force is necessary, in paticular, does a victim have to retreat before using force as in R v Bird s76 CJIA 2008 states a person is not under a duty to retreat when acting for a legitimate purpose. But the possibility that D could have retreated is to be considered as a relevant factor in decidng if degree of force was necessary.
Amount of force used in householder case self defence
the law seems supportive of the view that a householder has a right to defend him or property using force but only to a certain level, higehr than it was when the CJIA was introduced in 2008. On the otherhand, if someone was to defend their property and resulted in a faitality, a successful plea, does this mean the judicial system places more value on property than life.
Pre -emptive strikes self defence
The law allows these.It appears to be a sensible rule as it would be ridiculous if people had to wait until they was shot or stabbed before being allowed to defend themselves. However it could also result in unsatisfactory cases.How can it be determined for certain that V would have attacked at all.
All or Nothing Self defence
The defence is all or nothing and can seem harsh in murder cases such as Marin and Clegg. Excessive, rather than reasonable force, leads to a murder conviction with mandatory life.If reasonable force is used, D is acquitted. It has been argues that there should be a partial defence where the amount of force in self defence was justified, but D used ecsessive force in that circumstance
