Paper 1 Evals Flashcards
(12 cards)
NON FATAL OFFENCES LACK OF DIFF
one of the key issues with the law on non-fatal offences is the lack of difference in mens rea between common assault and assault occasioning S47 ABH. both are basic intent offences, with the mens rea being “intent or recklessness” to either cause another to apprehend immediate personal violence or cause another to suffer unlawful touching, as established in OAPA 1861 and in the case of R V Roberts. despite this, the punishment for the crimes are vastly different, with common assault alone leading to a maximum of 6 months imprisonment whereas S47 ABH carries a maximum sentence of 5 years. some may argue this is necessary, as the consequence of actual bodily harm is more serious than the lack of consequence following an assault alone and therefore the harm caused to the victim is reflected in the seriousness of the sentence. however, for defendants the liability is the same; the mental element reflects the level of intention on the part of the defendant, and so someone who intends not to cause harm but accidentally does is treated the same as someone who intends not to cause harm and doesn’t. this may allow for retribution based on consequence, but the legal system should be fair on defendants and their level of culpability and this is currently not the case. this shows that the law on non-fatal offences should be reformed to ensure the punishment fairly reflects the crime.
NON FATAL OFFENCES GBH FORMS
another reason for reform is the inconsistent rules and and principles outlined in precedent. the cases of rv laskey, jaggard and brown, along with r v wilson give different rulings on similar circumstances. both cases have similar facts, where partners have consented to minor injuries - however only laskey, jaggard and brown were found guilty of ABH/GBH. although some people may say the facts could be distinguished as in r v brown the defendants engaged in sadomasochism, with a risk of serious injury which was not necessarily present in r v wilson. but the argument of discrimination may be made in regard to the different judgments. furthermore, as the facts are so similar, it makes it difficult for judges to distinguish and use the correct precedent when ruling in current and future case rulings. as defendants and legal aid should be able to rely on precedent to predict outcomes, this precedent creates accessibility problems and makes the trust in the judiciary decline. In order to reform the law and make it more accessible, it would be advisable to eradicate this precedent, and instead implement it through statute with more precise principles.
NON FATAL OFFENCES REFORMS
the law commission proposed a series of reforms to the act which would be beneficial. this includes creating a clear hierarchy of offences, with many more offences including specifying physical or threatened assault. this would remove the confusion between a technical assault as defined in r v nelson and common assault which covers both technical assault and battery. In addition, the consequence crimes would be rewritten to keep the language consistent and appropriate, removing uses of wounding and codifying current law into one clear statute. this would be beneficial for many reasons. firstly, it would remove any outdated references and allow for the understanding of different forms of harm such as those via disease or mental harm to be included in the statute. secondly, it would ensure that the developments through case law, such as definitions of “malicious”, could be written into the statute and exist in one piece of law. finally, it would ensure that all developments are written in a way which is easy to understand for both those in the legal system but also for citizens who live with the law every day. despite this, parliament has not reformed the law, resulting in continued precedent to develop this area of law which in turn has made the established principles of the crimes disparate and incoherent. reform is needed in order to ensure the law is fair.
INTOXICATION INCONSISTENT
one issue is that the law on intoxicated mistakes is very inconsistent. in jagged v brown, an intoxicated mistake about having consent from a house owner was allowed as a defence, furthermore in rv lipman an intoxicated defence could be used for murder. however in o’ grady, a mistake about the need to use force due to intoxication disallowed the defence of self defence. this is a problem as it creates uncertainty and inconstant precedent in intoxication cases. it could be argued that the mistake of genuinely believing you are defending yourself is a less serious offence that mistakenly committing murder and much more serious crimes. however it may be argued that this law is beneficial for the legal system as it prevents cases for petty, drunken street fights having the ability to use self defence making it much more simple.
INTOXICATION VOL V INVOL
another issue with intoxication is how it fails to differentiate between voluntary and involuntary intoxication in certain cases. in the case of ghallager, the defendant drank for dutch courage in order to commit a murder, however in r v kingston where the defendants drink was spiked - the mens rea was still upheld as the courts ruled that drunken intent was still intent. this is an issue as it means defendants who have committed crimes they would have not otherwise committed are not protected under the law. however, it may be argued that this law protects victims which is a positive. it prevents defendants from lying about the circumstances of intoxication, for example claiming for involuntary intoxication, when it was voluntary.
INTOXICATION NO BASIC INTENT
finally, a problem with the defence of intoxication is that many crimes of not have a basic intent alternative. this is a problem as it may lead to the acquittal of criminals just because of their drunken state. for example, murder can be downgraded to manslaughter, however in theft cases, there is no basic intent version and therefore a successful use of intoxication would lead to a complete acquittal and therefore be unfair on the victim. this is also bad for public policy and may give courts a bad reputation and lead to intrust within society. however, it may be argued that due to the circumstances of certain crimes, like theft, it may be more efficient to acquit rather than charging many people for petty crimes which are not of big public importance.
SELF DEFENCE NECESSARY
one strength of the defence of self defence is that the statute outlines that the force used must be necessary and reasonable. in the criminal justice and immigration act, it was outlined that a person may not be able to ‘weight to a nicety’ the exact amount, but the amount of force used was only what they thought was honestly and instinctively necessary. this limits the amount of people who may be able to use the defence and this means that cases can remain less complex and not be unfair on the victim. however, this causes issues for controversy over what this can be limited at, for example in the case of r v martin, although doing what he thought was necessary he was denied the defence die to excessive force.
SELF DEFENCE VAGUE
one problem is that the language used is vague. in the statute, the law decides that the defendant only mist weigh to a nicety, however it then says that excessive force cannot be used. his means that the jury must distinguish between instinctive and excessive which may cause problems with consistency and a fair application of law. however, in response to this the criminal justice and immigration act has slightly codified the law in order to make the difference more distinctive, for example the leeway being disproportionate, and grossly disproportionate in householder cases.
SELF DEFENCE MISTAKE
another strength is that self defence can be used in cases where the defendant has made a mistake on the amount of force needed. r v williams demonstrated the courts willingness to allow the defence. however the the defendant cannot be mistaken about the degree of force used and an intoxicated mistake will not be allowed. this may be considered overly harsh considering intoxication is a defence in specific intent crimes, and this may obstruct justice for defendants attempting to use self defence.
CONSENT VAGUE AND NON EXHAUSTIVE
one reason for reform is the vague and non exhaustive language used in precedent. AG Ref No6 of 1980 outlines the circumstances in which consent can be used as a defence. the law outlines specific circumstances such as ‘properly conducted sports’ but also uses ‘etc. this means that the law must be applied on a case-by-case basis. this makes the law hard to understand, and therefore apply. some people may argue that the non-restrictive law is important as it allows for more scenarios and gives judges more to work with, allowing them to fully exercise their powers, however, rather than being beneficial, the law is ultimately less predictable which decreases confidence in the judiciary, and creates further problems in cases where the public may begin to doubt the fairness and accordance with the law. overall, the non exhaustive language used should be reformed to become more precise and give boundaries for judges to work with, ultimately making the law more consistent and increasing the confidence in the courts and the judiciary.
CONSENT INCONSISTENT
another reason for reform is the inconsistent rules and and principles outlined in precedent. the cases of rv laskey, jaggard and brown, along with r v wilson give different rulings on similar circumstances. both cases have similar facts, where partners have consented to minor injuries - however only laskey, jaggard and brown were found guilty of ABH/GBH. although some people may say the facts could be distinguished as in r v brown the defendants engaged in sadomasochism, with a risk of serious injury which was not necessarily present in r v wilson. but the argument of discrimination may be made in regard to the different judgments. furthermore, as the facts are so similar, it makes it difficult for judges to distinguish and use the correct precedent when ruling in current and future case rulings. as defendants and legal aid should be able to rely on precedent to predict outcomes, this precedent creates accessibility problems and makes the trust in the judiciary decline. In order to reform the law and make it more accessible, it would be advisable to eradicate this precedent, and instead implement it through statute with more precise principles.
CONSENT TOO LENIENT
a third reason for reform is that the law is too lenient. r v slingsby showed that V may consent to an act which leads to death as long as it is not unlawful. however, it may be difficult to make definite judgement in such cases as it is difficult to prove that the victim actually consented to the act.
Some people may argue that the law needs to be this lenient in order to maintain the defence of consent and make the law fair on defendants where acts have become fatal. however, it may also be argued that all acts may be considered reckless to injury whether or not the original act is considered dangerous, and therefore it may also be difficult to distinguish between if an act is unlawful or not. this means that case rulings where defendants have been successful in using consent as a defence may be too lenient and therefore unfair on victims who have lost their life. In order to reform this law, creating separate sentencing would allow for more lenience on defendants without making it for victims who are unable to make their own case and bring their own justice.
