Academics quotes Flashcards
(17 cards)
SOA
- Gardner = ‘the Olugboja view of consent looks to a victim’s own perception’ + consent is a ‘spectrum’ + the ‘court leaves the task of fixing that point [on the spectrum] to the jury’
- vs. G recognises ‘indeterminate’ and so unpredictable
- The Law Commission advocated for a fixed formula of certain types of threats which would negate consent
- Gardner criticises this = ‘different people respond differently to the same pressures’
OAPA - for reform
- Alexandra-Maria Eugenicos= OAPA is in ‘urgent’ need for reform
- Eugenicos = ‘the archaic language has created unnecessary procedural complexity’ [e.g. the word assault when used as a verb means assault and battery and outdated crimes such as s.17 involves preventing the escape from a shipwreck
- Eugenicos = reform ‘lies with Parliament.’
- Gibson = the main problem is their ‘incoherence’
OAPA - agasint reform
- Practitioners argue that the OAPA works in practice + Bar Council + Criminal Bar Association + general sense that if you punch someone that that will be an offence
+ Eugenicos commening on the BC + CBA = ‘the defects in the Act are merely theoretical’
OAPA - the Law Comission’s proposals
Reform of Offences against the Person 2015
- They criticise there being no clear hierarchy in the offences
- the drafting is unnecessarily complicated
- it refers to obsolete legal concepts that no longer exist in UK law – such as felonies
- archaic vocabulary
- unnecessary offences = s.17 involves preventing the escape from a shipwreck
+ reform should be ‘clear, modern, and simple’
Homicide
- Chalmers and Leverick = Fair labelling is done out of the fairness of the defender, but also the victim + it is a ‘check on sentencing discretion’ as the certain offence that D has been convicted of will carry a specific sentence
Intention
- Pedain = ill equipped adequately to resolve the “terrorist example” raised in Lord Steyn’s speech in Woollin
- terrorist example is that the terrorist did not see the virtual certainty of a member of bomb disposal team being killed
Manslaughter
- Stark welcomes the decision in Rose as he argues it narrows gross negligence to be ’adequately, personally, culpable’
= Rose added that ‘It was reasonably foreseeable that the breach of that duty gave rise to an obvious and serious risk of death’
+ confirms Adomako elements of GNM
Theft - commentary on Hinks + Ivey
- Beatson and Simester = Ar has ‘no boundries’
- Smith = criticises judges for widening theft in cases where D should have been charged with fraud as they don’t want to acquit them
vs. - Bogg and Stanton-Ife = Hinks protects ‘the more vulnerable members of society’
- the common law and civil law can ‘float free of eachother’ [Hinks]
- Dsouza = Ivey is ‘overinclusive’
- Smith = theft has become ‘something akin to a thought crime’
Theft - Griew’s critisms of Ghosh + Lord Highes’ criticisms of Ghosh
G:
1. It leaves the law to the jury as ‘ordinary and decent people’
2. Leads to more and longer trials as you don’t know what the jury will decide so can run the risk of going to trial
3. It assumes that the jurors are honest
4. Unsuitable in cases of complex fraud where ‘ordinary’ people may not understand
[vs. The jury are not applying their own standards but social norms on morality]
LH:
1. The more warped D’s standard, the more likely they are to be acquitted [vs. Not D’s own beliefs but of what others would view as dishonest]
2. Ghosh disagreed with the civil law [vs. they can ‘float free’ of each other (Hinks)]
3. Jurors were confused by Ghosh [vs. Rarely given in directions as jurors used the ordinary meaning of the term dishonest and there was no evidence of this claim]
Complicity
- Ormerod and Wilson suggest that the law ought to be based on a test of whether D believes that P will commit the offence
- Dsouza = D doesn’t need to intend each of the circumstances but know that each fact/element of the offence exists
- Simester = Without joint enterprise liability, it leaves a gap in the law [regarding Jogee abolishing parasitic liability]
Necessity
- Dsouza = the courts should not have granted permission but let the doctors do what they think is best, so to provide an excuse in Re A (children) (conjoined twins)
- Alexander argues that the law is not clear due to an ‘absence of some common denominator for evils’, such as ‘Is violation of a custody order a lesser evil than preventing child abuse?’
Duress
- Loveless cited studies that show there is ‘a connection between domestic violence and some female criminal activity’, due to coercion
- L questions why they do not rely on duress or why they are not successful, and argues that coercion is ‘under-used by women who are coerced by domestic violence’
- L criticises that duress does not include phycological harm as domestic violence can take many forms + the threat be imminent as in domestic violence the coerced act may be to prevent future battering
Self-defence
Bettinson and Wake =
- criticise the government’s rejection of proposals by the Prison Reform Trust that would have extended self-defence in householder cases to victims/survivors of domestic abuse
- ‘the policy decision to exclude intoxicated mistaken belief in all self-defence cases ought to be revisited’ as there is a correlation between drinking to cope and domestic abuse
Intoxication
LC
- Law Commission Report on Intoxication and Criminal Liability = rejection of specific and basic intent, but there should be a statutory list of fault elements, but rejected by the givernment
- 1993 Law Commission proposal = a new offence of criminal intoxication and sentencing would reflect the degree of harm
Intoxication
Academics - C
Child:
- a ‘strictly logical approach’ where D did not have the MR due to the intoxication, versus an ‘absolutist’ approach, where failing to hold D liable would not adequately protect the public nor deter people from drinking irresponsible, so there is prior fault
- common law’s solution to this a ‘midway course’ by making D only liable for basic intent offences
- the distinction is ‘pivotal’ as it means that D will be liable or not
Intoxication
Academics - W
Williams =
- ‘the more complex the law becomes in order to take account of these varying degrees of culpability, the more difficult it becomes for juries and courts to understand and operate’ - is this the price for clarity?
- varied degrees of culpability may lead to ‘greater difficulty for a particular jury in reaching a verdict’
- Williams = ‘greater options’ risks the jury not coming to an unanimous verdict
Insanity
- Ormerod and Dsouza identify a number of issues: ‘lacking in sound psychiatric foundation, ambiguous in its terms, uncertain in its scope, illogical in its outcomes, stigmatizing in its labelling’
+ reform would ‘lack practical significance’
+ they instead argue for a new defence of showing a ‘qualifying recognised medical condition’ - Law Commission (2013) = there is ‘less evidence that the defences cause significant difficulties in practice’
