Eval Flashcards
Pretty v UK - cannot consent to murder
Rigid- does not take into account circum where may have low quality of life
Unfair- goes against common sense for suicide to be legal but when assisted by others when you can’t end your life yourself then it is unlawful
Certain- clear rule without exceptions other than medical reasons
Good policy decision- law may be open to abuse and coerced consent may be an issue, may be a dangerous law as death is irreversible
Brown & others- usually cannot consent to S47 & S20 GBH & Wounding
Wilson- personal adornment is an exception
Unfair- branding with a hot iron as in Wilson (led to hospitalisation) deemed acceptable whereas Brown none needed medical attention (goes against common sense
Uncertain- usually not being able to consent to crimes in Brown is vague
Flexible- can take circum/purpose into account to see whether V can consent to causing harm (like loving branding in Wilson) can cause justice
Aitken- D’s drunken and mistaken belief in consent to horseplay can still be a defence
Unfair- goes against common sense as there is no genuine consent and this is valid
Dangerous/bad policy- excuses drunk dangerous behaviour against one’s will (set fire to them and serious injuries)
Flexible- taking into account circum where D does not have bad intent and genuinely believes in consent allows flexibility to create no injustice to D
- hard to prove so may be effective
Intoxicated mistakes often are allowed for property offences like theft but not for very minor offences against the person like battery
Uncertain- confusing rule for the public very unsure of how intoxicated exceptions work in the law of consent as they are very inconsistent
Flexible- these exceptions leave room for justice as property offences can be deemed less significant impact on others so may be less anti social
S76 (6A) Criminal Justice & Immigration Act 2008- D does not have to retreat but if D has opportunity to do so, jury are more likely to decide force used not necessary
Uncertain- hard for jury to decide how important retreat is to determine if force was necessary
Flexible- can take case facts into account to see how reasonable it was for D to retreat which means just decisions
O’Grady- drunken mistakes cannot be used
Other areas of law (consent horseplay) drunken mistakes can be used
Intoxication to murder
Uncertain- inconsistency through other areas of law where intoxication can’t be used in self defence but can be used as defence to murder if negated MR
Policy decision- means public have to be extra careful when calculating if using force is needed to protect themselves
Clegg- excessive force is not self defence
Rigid- cannot take into account case facts or lesser of two evils (cannot use judicial creativity to step in to create justice)
injustice to those in defensive areas of work who are often put on those situations
Stricter rules Prevents people abusing the law or killing out of revenge as in Hussain
Respects separation of powers- said decision would have to be made by P to allow this
S76 (5A) CJ & IA 2008- householder cases as long as force not grossly disproportionate in circum D believed them to be
Flexible- takes into account circumstances of own home being invaded and allows room for more defence to be used to adapt to this
Subjective- in circum as D believed that and flexible rule of only not needing to be grossly disproportionate is dangerous- can lead to unjust killing and injustice to V
D allowed to make honest mistakes & allowed pre emptied strike
Gives easy excuse for D to instigate violence when nothing threatening had been done to them (unreasonable violence to V)
- Jury must honestly believe D thought there was a threat so may be fair that D not punished for doing what they felt they had to
ICLR: Sadler v Reynolds
- Presumptions create certainty as the parties have an idea how the courts will interpret their contract (makes sense as may be more formal/informal) fair
- unclear how commercial/social agreements differentiate from eachother in cases like this so uncertain which presumption will apply
ICLR: All presumptions can be rebutted like in Simpkins v Pays- no family connection and small sum of money meant a social agreement was binding
- injustice can be avoided by taking into account specific case facts and be flexible towards this
- type of agreement does not make parties certain and does not really determine if binding
ICLR: Rose & Frank v Crompton Bros
Jones v Vernon’s Pools
- Rose & Frank respects freedom of contract as although presumption is commercial agreements are binding, courts accepted and respected parties’ wishes not to be binding as clearly stated
- Jones, inequality of bargaining power as the same applies to B2C contracts where consumers may be unaware it’s not binding and so weaker parties are not protected
ICLR: Esso v CCE
Jones v Vernon’s Pools
- protects weaker parties from being exploited by false promises, justice, flexible
- rules when companies don’t want to be bound are inconsistent and so parties cannot be certain if they will be bound by their promises
Probity: General rule
- certainty and easy to see who has rights in a contract (either party gives consideration or does not)
- sticking to this rigidly could create injustices where 3rd parties deserve rights like in Jackson v Horizon
Probity: 4 common law exceptions
- creating broad exceptions creates flexible law which achieves justice
- uncertain as much less clear which 3rd parties can sue which makes more long and complex cases using the taxpayers money
