Law And Justice : Substantive

Question 1

Strict liability

Answer 1

These crimes allow a criminal conviction without proof of men’s rea which is arguably unfair and unjust

Smedleys v breed

Question 2

Consent as a defence to non fatal offences

Answer 2

Brown- the possible effect on society of immoral behaviour outweighed the rights of the individuals to consent to harm.

This may be seen as unjust as individuals should have the freedom to act as they wish with regards to their own body.

Wilson- in contrast in the case of Wilson it was held that the private matters between husband and wife should not be interfered with.

Question 3

Defences

Answer 3

The law gives more favourable treatment to those who kill while suffering from DR or LSC that it does to those who’s free will is overpowered by an external threat(duress).

The decision of the house lords in Howe established that the defence of duress is not available for murder or attempt.

The removal of the need for LSC to be sudden under the CAJ act,may improve justice for women,but as a loss of control still needs to exist,women are arguably still at a disadvantage and not on equal terms with men under domestic violence cases.

Question 4

Recklessness

Answer 4

In the famous case or cordwell objective recklessness was introduced as the appropriate test for recklessness however this produced unjust results as can be seen in the case of Elliot v C.
The fact that she not realised or appreciated the risk was of no relevance as the test was objective.

Fortunately the injustice of this outcome will not occur again following the decision in G and R (2003) where the test for recklessness was reinstated as subjective and not objective.

Question 5

Tort

Answer 5

1) Negligence

Justice can be demonstrated clearly in the ground breaking judgement of Donoghue v Stevenson. Before that time there’s was no general duty of care and little possibility of a remedy not only did the case secure a remedy for the C against the manufacturer it also introduced the neighbour principle which gave the means of identifying other duty of care situations in negligence.

The decision in Nettleship v Weston may be regarded as unfair as it was held that a learner driver would be judged according to the objective standard of a competent driver. However it can be argued that leaving an innocent victim without a remedy is even greater injustice.

In Bolton v stone it was decided that it was unjust to the claimant as he received no remedy. as the cricket club had not breached their duty of care when the innocent claimant was injure by a cricket ball as they had taken all necessary precautions to guard against the risk of passers by being hit.

2) Vicarious liability- makes an employer liable for the wrongs of an employee. This may give justice to the victim when the employer is not at fault so this may seem unfair.
3) occupiers liability- the House of Lords used the powers under the practice statement to rule that an occupier may be liable for harm caused to trespassers in relation to the case, child trespassers this result appeared to be just as it compensated the injured boy and as the social conditions had changed since the previous leading case on the topic of adi v dumbreck which rules that the occupiers owed no duty to child trespassers