Theory Flashcards

Question

Consent to harm (OAPA) - general consent to assault - Simester and Sullivan

Answer 1

some touching is only harmful if there's no consent

Answer 2

legal moralism (if conduct is sufficiently immoral or degrading it should be punished regardless) and paternalism (view that the law can protect people from themselves)

Answer 3

importance of power imbalance in cases like Brown

Answer 4

difficult to find boundary of where consent can be a defence in sport (eg in Billinghurst an off the ball punch which broke V’s jaw was gbh but in Barnes a serious leg injury after a tackle was not)

Answer 5

violence in playground or barrack room is expected as normal in the male world, but violent expressions of sexuality are less normalised - hence Brown had convictions but Aitken didn’t

Answer 6

best way is to distinguish between inflicting pain for the purpose of inflicting/enjoying pain, or inflicting pain for an ulterior motive (eg winning a boxing match) - if it would be viewed as a failure if pain wasn’t convicted, the law should criminalise it

Answer 7

using ‘but for’ causations it can be argued that ‘but for’ omissions the same result would happen

Answer 8

criticises ‘bad samaritan laws’ - “it is much harder to determine why a person does not act”, “the risk of false positives”, ”if emotions and bad character attributions rule the day… innocent persons will be improperly convicted”, ”significant risk with BS laws that the decision to prosecute will be based on a prosecutor’s perceived need to respond to public outrage”

Answer 9

prosecutions under Bad Samaritan laws are likely to be expensive (several bystanders, less clear laws, deciding who to prosecute, less likely conviction)

Answer 10

risk that by trying to help, D may harm V more or harm themselves or others

Answer 11

risk of restricting personal liability by requiring people to do something (principal of autonomy - John Stuart Mill - should be free to choose what we want, for any reason we want (or none), provided it does not harm other people)

Answer 12

line between an act and an omission is too fine a line to place any great weight on - eg is dropping something an act or an omission to hold it

Answer 13

omissions liability can be supported by the distinction between normal and abnormal events - if someone’s under duty to act and fails to do so this will be regarded as ‘abnormal’ and hence a cause of the result - eg if multiple people walk past a drowning child inc their parents and fail to rescue them, their parents are the ones liable because their duty of care makes it ‘abnormal’ for them to act

Answer 14

based on the concept of social responsibility (Ashworth social responsibility view) - draws attention to the need for cooperation and mutual support

Answer 15

existence of MR shows that criminal law sees people as autonomous agents responsible for their choices

Answer 16

requirement of MR helps restrict the ambit of criminal law so it doesn’t cover too many people, helping protect freedoms and fight over-criminalisation

Answer 17

proposed a legal system without MR - suggested offences should just require harm to V and D’s state of mind should be considered during sentencing - this could make blameless people unfairly convicted of crimes but it emphasises the harm V suffers

Answer 18

people are responsible for things they choose to do so people should only be guilty of a crime if they choose to do the AR

Answer 19

accepts people are responsible for their actions but also that it’s proper to punish those who have effectively chosen to act lawfully but didn’t

Answer 20

D’s responsible for their character - if their criminal actions reveal character traits that are opposed by criminal law they should be punished

Answer 21

rejects MR approaches which focus on grand overarching theories - “the question of what should be the mens rea for a particular crime is a question which calls, in the first instance, for a local answer specific to that crime. For it depends… on what exactly is wrong, or is supposed to be wrong, with perpetrating that particular crime”

Answer 22

“several explanations have been given for the claim that more severe consequences should be imposed on an intentional offender: he has taken a conscious decision to violate the interest protected by the law; his conduct is indicative of an attitude that consciously ignores the commands of the law; his knowledge of all relevant facts makes it easier for him to avoid the criminal conduct; and intentional violations of the law do more harm to the public feeling of security and therefore require harsher sanctions in order to restore the confidence of the public in the rule of law”

Answer 23

2 approaches to intention - the formal psychological (’orthodox subjectivist’) approach (to intend something is to mean or aim to do it and our purpose is what we aim to bring about), and the morally substantive approach (splits the judgement into 2 components - the harm that constitutes the wrong and the fault of the wrongdoer - the moral quality in the act is more important than a precise distinguishing of different psychological states”)

Answer 24

intention should show that an actor sought to control a result and it has played a key role in his moral assessment of the act

Answer 25

intention should mean purpose

Answer 26

intention is to be defined as something that if not materialised as originally conceived, the act would be considered a favour

Answer 27

recklessness is an insufficient regard for the interests of others - people can be responsible for the way they form their belief that their actions are or aren’t risky - should hold D accountable if beliefs were formed when he wasn’t “adequately motivated” by the interests of others - “the agent will be reckless if the following conditions are fulfilled: (a) the action was of a kind that might carry risks with it according to the beliefs of the individual; and either: (b) given those beliefs the agent failed to fulfil his duty of investigating the risks; or (c) the agent wilfully blinded himself to the existence of the risk”

Answer 28

practical indifference - did D’s conduct (inc conscious risk-taking, failure to notice obvious risk created by their action, unreasonable belief on which she acted) display a “seriously culpable practical indifference to the interests which her action threatened?”

Answer 29

people have different motivations for indifference to risk so courts need to be flexible and consider if the indifference is justified