UAM essay Flashcards
3 issues with UAM
1) constructive crime 2) unlawful act 3) objective test
Why is AUM a constructive crime
AR of murder but MR for a lesser offence which would usually require additional elements- here the construct liability upon the base offence for a more serious crime
What should we aim to have
correspondence of AR and mR
What does constructive crimes creates an issue of
fair labelling, convictions should reflect the wrong doing of the offender by making the outcome the aggravating feature this distorts the wrong of D
What does constructing the offence result in
A wide range of offences which are capable with varying ranges of blameworthiness e.g. cases falling short of murder where D realises that death may result but not as a VC other end of the spectrum a minor offence without seeking
Why does Ashworth argue that constructive crimes are unfair
such a label to a person who envisaged no more than a battery is unfair and disproportion. Bad lucks makes the difference between 6 months and life
What is the argument of moral distance
the gap between what D intended and what actually happened is too great. Statistically speaking a punch the risk of death Is so small to not enter into the reasonable contemplation- therefore attaches too much weight to chance- Ashworth
Why did the LC reject the 1996 proposal of the moral distance argument
anyone who embarks on an illegal course of violence should accept the consequences even if there are unforeseeable. In doing the act he has shifted his own normative position and creates his own bad luck
What did the LC in 2006 suggest
proposed that there should at least be intention as to some injury but this has not been enacted
What acts will suffice
only unlawful intentional acts, omissions will not do R v Lowe
Is there any reason for not including omissions?
there does not seem to be any cogent reason for not including omissions. The criminal law beyond places harm caused by act and omission on the same level therefore why should it be any different in this context?
However what is the argument for not including omissions
Omissions liability has grey areas between acts and omissions and the distinction can be difficult to define therefore adding unnecessary complexity and confusion to the law e.g. the tug of war example
Why is not having omissions probably unproblematic
Will likely be dealt with by GNM
What is the objective test
DPP v Newbury and Jones outlined the test in R v Church, in judging dangerousness would the reasonable and person recognise its danger?
Why is the objective element problematic
it is a strict liability element therefore it is not a question of D’s person perception of MR. e.g. in Watson the question was not whether D had foreseen the risk but whether the resoanble person at the scene would have foreseen the risk to an old vulnerable man? Irrelevant if D personally foresaw this risk even if cannot foresee this risk e.g. due to low IQ Bowen
