Evaluation + Reform

Question 1

Non-fatal offences

Answer 1

Evaluation
- Common and statutory law make unclear and inaccessible
- Lack of clear definition in act leads to lots of case law
- Archaic language leading to wide interpretation and inconsistency
- Outdated act not fit for purpose (medicine, language, tech)
- Contrasts basic principles (S.47/20 = without MR) (S.20/18 = same AR)
- Illogical sentencing structure (assault = 6 months, ABH = 5 years, same MR)
- Resist arrest unfair to fall under S.18

Reform
- LC recommend change in 1993
- LC 2015 report = physical assault, agg assault, int/reck causing injury, reck causing serious injury, int causing serious injury
- Consolidate sentencing
- Clearer language
- Bridge gap
- Bring under single statute

Question 2

Intoxication

Answer 2

Pros
- Deterrence (public purse)
- Common law = flexible
- Public policy (fallback)
- Distinguishing between intentional and inadvertant vol intox would open floodgates

Cons
- Harsh (Kington)
- Sacrifice legal principles
- Dutch courage conflicts coincidence
- Poor def of specific/basic
- Not a defence, lack MR
- Common lack lacks clarity and accessibility
- Inconsistency
- Fallback without MR
- Fails to distinguish between intentional and inadvertant vol intox (Allan)
- Hardie gives poor public policy message
- Protect young and vulnerable (Kington)

Reform
- Butler commission = dangerous intox
- LC report = keep Kington, reverse Hardie
- Intox mistakes in stat footing in 2008
- LC report from 2009
- Integral fault element

Question 3

Self-defence

Answer 3

Pros
- Right to protect
- Utilitarian
- Discourage vigilantism
- Consolidate in 2008
- Up to date (recent HH reform)
- Subj + Obj tests
- Mistaken self defence
- Intox mistakes = PP

Cons
- Subj test liberally interpreted
- Bird/AG bad PP message
- Grossly disprop too far
- All or nothing unfair
- Jury favour homeowner
- Ancient language (nicety)
- Unfair vol intox mistakes

Reform
- LC 2006 report suggest partial murder defence
- CJA 2008 missed reform oppt

Question 4

Consent

Answer 4

Pros
- Common law flexibility
- Change with society (Dica)
- Health and safety restrictions
- Strike fair balance
- Protect young and vulnerable
- Deterrent (prize fighting)
- Tabassum corrects Richardson (informed consent)
- Not promote harm (SM, prize fighting)
- 20/47 exceptions = fair, utilitarian
- Horseplay allows for honest sober mistakes
- Hostile horseplay protects V
- Locke conflicts Brown = shifting attitude
- Allow public utility (sport)
- Personal autonomy (tattoos)

Cons
- Judges out of touch (Brown)
- Common law bound to follow bad decisions
- Common law inaccessible and unclear
- Paternalistic
- Richardson confusing, fails to protect V
- Horseplay favour D, conflicting precedent
- Brown conflicts Art 8
- Wilson conflicts Brown
- Controversial (chastisement, euthanasia)
- Fine line between prize fighting and sports

Reform
- Defence on stat footing
- Euthanasia attempts at reform
- Draft Bill 1989 aimed to reform (never passed)