Improvements to the law Flashcards
What is the law commissions proposal to improve the law of murder?
What the law com plans is to take the lower mens rea of murder (intention to do GBH) and drop it down to second degree murder (which may be favourable) and then take the higher end of the mens rea for manslaughter (reckless manslaughter where there exists a serious risk of death recognised by the defendant),
First degree murder would remain as a mandatory life sentence whilst second- degree murder would use a discretionary life sentence.
What is the benefit of a first and second degree murder charge?
- Currently an intent to do no more than GBH will suffice for mens Rea of murder (constructive) if death is to result. Clearly this seems somewhat arguable because by intentionally inflicting GBH eg a stabbing shows Ds appreciation that (objectively) serious harm be caused to. However, there are many cases of GBH where a serious risk of death does not seem apparent, for example knee capping. Take an example where D is knee-capped at a dock, and as a result falls into the water and drowns. There is no serious risk of death which arises from the knee capping itself, and it is the circumstances of Vs subsequent action which leads to the death.
- There seems to be good policy arguments that he should not be receiving a mandatory life sentence, as there is no intention to kill (knee capping often a form of torture, therefore expedient that V stays alive). Therefore a second class of murder where he is subject to a discretionary life sentence will allow the judge to attribute an appropriate sentence for his actions
- This still allows for the case where D intentionally inflicts GBH in a way where there exists a serious risk of death as a result, but D does not subjectively recognise this, he may still be given the life sentence under the second class murder charge.
What 2 elements would constitute 1st degree murder under law coms recommendation?
1) Intention to kill
2) Intention to cause GBH, foreseeing a serious risk of death (current law includes intent of GBH but no further foresight of death, and is therefore constructive)
What elements would second degree murder comprise of under law coms recommendations?
1) Where D intends to cause (non-serious) injury or fear or risk of injury where D was aware of a serious risk of causing death (injury may be less than GBH- previously reckless manslaughter)
2) Killings intended to cause GBH (no foresight of serious risk of death)
3) Partial defences to either of the first degree murder charges.
What would manslaughter involve under law coms recommendations?
Manslaughter would encompass: 1) where death was caused by a criminal act intended to cause injury, or where the offender was aware that the criminal act involved a serious risk of causing SOME injury (CLOSE TO UAM); or 2) where there was gross negligence as to causing death.
How should the law on voluntary intoxication and basic intent be changed??
As with any other criminal procedure, Ds intoxication should not suffice for the MR of the crime. Ds recklessness that he might become intoxicated is not equatable with foresight or intention to commit a crime, and requiring the court to prove MR should still be sufficient.
-It won’t provide D with the ability to escape liability for basic intent crimes in the way that it does with involuntary intoxication, it would simply provide a means of keeping up with general principles of court procedure and the presumption of innocence, as D may very well have a lack of MR
What is the main contention around UAM as a charge for manslaughter?
- The main criticism is in relation to UAM as a constructive crime, which rests on an element of luck. The difference between a charge for manslaughter, with a discretionary life sentence, and a much lesser offence eg battery rests on whether, factually, death is caused, no matter how remote death may be from the unlawful act.
- The law is therefore too broad, and the case of Newbury 1977 may provide good evidence for this
How does the law com recommend the law on unlawful act manslaughter is changed?
-How does it change the test?
- They suggest replacing UAM with a new offence of criminal act manslaughter.
- D would be guilty of CAM if death was caused through ‘a criminal act in the awareness that it involved a serious risk of causing some injury’.
- This changes the test towards a subjective test, which somewhat heightens the mens Rea requirement in two ways.
- Firstly the risk of injury appreciated must be a serious risk of injury, rather than simply some remote risk of merely some harm. Some harm is too broad
- Secondly, it allows for a subjective element, in that D must himself foresee the risk of a serious risk of harm; it is not enough that objectively there is a serious risk of injury, D himself can only be culpable if he recognises this and his personally characteristics which preclude him from doing so may be able to preclude his guilt.
What was the law coms recommendations with regards to gross negligence manslaughter?
Which is the best case for showing the success of GNM?
- The law com wanted to strengthen the offence of GNM, indicative of its success as being grounded in the civil law of negligence, relating to standards of care owed when a duty existed and death resulted.
- What is required for GNM is an objectively viewed serious and obvious risk of death; this satisfactorily avoids the over-extension of the law where the death results not from mere negligence but a range of less apparent factors.
-Adomako= anaesthetist failed to notice a detached ventilator tube, which any component professional in their position would have noticed. Clear duty of care, broken, serious and obvious risk of death without the risk having to be uncovered.
What is the benefit of the continued existence of reckless manslaughter, despite the law coms recommendation for its abolition to fit alongside their calls for a second degree murder charge?
- Reckless manslaughter sufficient exists to catch those crimes who fall outside of the grasp of UAM or GNM.
- Reckless manslaughter can’t be UAM because there is a reckless act (no foresight in UAM), and it can’t be GNM because of the lack of duty of care owed.
- Similarly where D kills be a reckless lawful omission (no UAM) which does not pose a serious and obvious risk of death (GNM) reckless manslaughter may apply where D foresaw a risk of serious injury to V.
How does Herring recommend the law regarding deceit and consent relating to sexual offences Is changed?
- Herring is a firm believer that any information which would change a woman’s decision to have sex should be disclosed by the man, or at least is known or ought to be known to change the mind of the said woman. If such information is not disclosed when consent is given, the consent is vitiated and the man is liable for rape.
- Such a proposal certainly extends the strict limits imposed on the type of deceit which vitiates consent, currently limited to identity of the person (acting as another person known to the victim) or any deceit as to the nature or purpose of the act. Herring suggests an extension of the law to deceit as to what the parties think the sex is about; not just the purpose of the sex but the truthful reasons for it. (enlarged sense of purpose)
When approaching problems questions and referring to assault or battery, what must be said about recklessness?
That Caldwell objective recklessness does not suffice and Cunningham subjective is the actual test for recklessness. Someone can only assault someone recklessly if, in the circumstances known to them, they could foresee that they assault or batter another person.
What is Herring’s argument in relation to consent?
What does Gross say about him which Herring subsequently rejects?
- Herring makes the argument that to give meaning to sexual autonomy requires that any mistake of fact which A makes with regards to B should vitiate consent, if, knowing this fact, she would not have consented otherwise.
- He rejects the argument that Herring is a ‘legal moralist’ on the grounds that the importance that Herring attributes to informed consent is much higher than that which Gross appears to attribute to informed consent.
What quote should I remember from Gross?
What will I argue with regards to it?
“Woman’s sexual autonomy is often championed by a declaration that ““No’ means “no’.” No less important in the same cause is a recognition that ““Yes’ means “yes’.”
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What was s3 of the SOA 1956 which the law com sought to expand, how did they seek to expand it, and what impact would it have on the law? especially in regards to R v B, Dica and Konzani.
- S3 of SOA 1956 meant that it was illegal for someone to procure a woman by false pretences or representation into sexual intercourse. THIS WAS NOT A CHARGE OF RAPE, IT WAS A SEPARATE CHARGE WHICH UNDER THE NEW LAW MAY BE CONSIDERED RAPE
- Law com sort to extend this to mean deception instead, in that people who use active deception to achieve sex were guilty under s3 of SOA 1956, but would not be guilty of rape for the purposes of vitiating their consent. Under the old SOA, it was only rape where sex was achieved through
- Deception would not be analogous with passive acquiescence in a another’s self-deception, and in the case R v B, this was framed as non-disclosure, and therefore there would still be no conviction in Dica and Konzani.
- Instead these cases illustrate that non-disclosure cannot be a case of rape because there is no active deception, which leaves them open to a conviction for an OAP instead. Conversely, lying about the HIV status or something similar could be considered as deception, which would vitiate consent instead, under s74 and the references to choice, freedom and capacity. But in order to avoid a rape charge, s3 would provide a different offence without attaching the rape label to it.
