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Flashcards in Critics Deck (46)
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1
Q

Law Commission on duress

A

The Court of Appeal in Graham accepted this approach in part when stating that the resistance to be expected was that of one “sharing the characteristics of the defendant”. But the court added the requirement that the resistance match that of “a sober person of reasonable firmness”, seeking in this way to “limit the defence. . .by means of an objective criterion formulated in terms of reas~nablenes. On consultation, there was strong support for our view that the defence should apply where the particular defendant in question could not reasonably have been expected to resist the threat. We do not accept the contrary view, for which there was very little support, that the defence should be withheld from the “objectively weak”. First, such an approach would be ineffectual as a means of law enforcement. If a person is in a condition that makes it unreasonable to expect him to resist, then he will not resist, and the fact that a different person in those circumstances might have resisted will not affect the matter. Second, the purpose of the defence is not to enforce unrealistically high standards of behaviour. Rather, the defence acknowledges that where the defendant could not reasonably have been expected to act otherwise he should not be convicted of a crime

2
Q

Reed on duress

A

Criminal law should not require heroism (Reed) states “it is inapt to demand heroism as a pre-requisite for exculpation”.

3
Q

Horder on self defence

A

sugguested this should be self-defence even if not faced with imminent attack.

4
Q

Krause on self defence

A

argues that an asleep partner is likely to be woken at any point, thus an imminent attack might occur.

5
Q

Ashworth and Leverick

on self defence

A

a. argue that present English law may be incompatible with art 2 (right to life) because a person’s right to life is not sufficiently protected if he may be killed by force used without reasonable grounds.

6
Q

Duff on UAM

A

a. has criticised the constructive element by which D’s liability for manslaughter turns on the consequence of death, which will often by unforeseen by D and be regarded as a matter of “bad luck” beyond his control.

7
Q

Laird ON SEXUAL Offences

A

1) a. use of s76 has been “reduced to vasnihing point” and this is a good thing. No injustice will be done to C given that the issue of herconsentcan still be considered unders.74and it is fairer to D, as the conclusive presumptions will not apply.
2) a. In mcnally –it was said that deception as to wealth will never vitiate consent. Laird asks why it should “obviously” not be enough.

8
Q

Jonathan Herring

sexual offences

A

a. suggests that If D deceives C as to any material fact82then that ought to be sufficient to vitiate herconsent, even If it is is wealth, this will likely open up the more rapes that occur.

9
Q

Ashworth

sexual offences

A

The label “rape” is extreme where there has been oral or anal penetration, due to the widening of th offence beyond its common understanding, the label can be misunderstood and jury members with strong impressions of what rape is might be less inclind to find liability

10
Q

Lowry

in C

A

1) Lowry gave a criteria of when judges should leave the law to parliament in the case of C. Quite a lot of the requirements apply to parasitic liability.

11
Q

Sullivan on attempt

A

“the line between these two cases [r v gullefer and geddes] are “so thin as to be invisible”.

12
Q

Ashworth

A

1) bgelieves that the autonomy agument against omission liability is misconceived. A duty will only arise in exceptional circumstances where V is in considerable danger, autonomy is respected. An easy rescue offence would be clearer than waiting until a court hearing to see if X was under a duty to act.

13
Q

Williams

A

1) thinks that there is a difference between acts and omissions, D is not making the world worse, she is merely failing to make it better. Also as criminal law has limited resources, it should focus on the most blameworthy conduct.

14
Q

Lord Goff

on murder

A

would narrow the law excluding those who intend to cause GBH, he thinks it is inappropriate to call label them murderers. Wilson agrees.

15
Q

Parsons critises:

A

a. No definition of loss of self control (Dawes). Parsons thinks the jurys use their common sense.
b. killing has to result from his loss of self-control–has a higher threshold than that of the previous law on provocation, where the loss of control had to be fuelled by anger but did not have to be overwhelming. ContrastJewell,where it was held that loss of control means a loss of the ability to act in accordance with considered judgment or a loss of normal powers of reasoning.5This seems to set the threshold for loss of control much lower than inDawesand suggests that Dawes had lost self-control.
c. previous law of provocation, which did allow for sexual infidelity in itself to be the basis of the defence
d. Sexual infidelity’ is not defined by the Act – only comments from the judge.

16
Q

Findlay Starks

attempt

A

– makes a point that the court seems to suggest that the approach in Khan does not apply to impossible attempt cases, such a suggestion ignores s1(3)(b) of the act. Stark makes the point that belief is more culpable form of mens rea than suspicion so D would have had the intent if they believes that the metal was stolen. Given that D suspected the metal to be stole, Stark argues that the court was correct to quash their convictions but erred in casting doubt to Khan.

17
Q

Duff

ateempt

A

Argues that D would be liable for the substantive offence if he succeeded in doint what he was trying to do with the level of mens rea as to circustaces. Logical that he should be guilty of attempt if unsuccessful.

18
Q

Melissaris

theft

A

believes that Lord Roskill’s conclusion in morris is wrong, it is not “any” appropriation of a right.

19
Q

Smith

theft

A

Due to Hinks, theft becomes “akin to a thought crime”.

20
Q

Virgo

A

a. Believes that terms in s18 and s20 are confusing, inflict = causes (burstow), GBH means really serious harm. Need statutory definitions so judge does not change it, inappropriate language.

21
Q

Shute

A

Relying on dishonest in theft takes away the certainty. Expansion of theft in Gomez and Hinks has broken down the distinction, potentially leading to inappropriate convictions and labelling

22
Q

Gardner

A

Hinks enables us to ensure that those who prey on older people and use dishonest means will be punished.

The overlapping offences are useful to ensure that all criminally deserving cases are covered, particiularly in relation to protection of the vulnerable where it may be difficult to demonstrate deception.

Although this argument is well put, following Fraud Act 2006 where proof of deception is no longer required, it is debatable whether this justification still holds.

23
Q

Griew

A

1) There is a “fiction of community norms”, no such thing as standard of honest and reasonable people
2) ghosh test leads to longer and more complex trials, encouraging D’s to “try their luck”.
3) Even ordinary people are dishonest, Are the jury expected to apply standards of ordinary people or what they ought to behave? Clearly what they ought to behave but this creates “hypocrasy”.

24
Q

Smith and Hogan

A

The allocation of a crime to the specific intent category is a matter of policy rather than logic

25
Q

Law commission recommendation for insanity

A

1) Remove the label insanity, and someone will be “not criminally responsible by reason of a recognised medical condition”

26
Q

Law Commission recommendation for intoxication

A

Recent

Abandonment of the Majewski distinction between basic and specific intent.

27
Q

What does insanity breach?

A

Art 6 - right to a fair trial, this includes a presumption of innocence, this places a burden on prosecution whereas whereas in the denial of offending, the current law reverses the legal burden of proof.

28
Q

Klimchuck

A

Eggshell principle:

believes that a person should only be held to have caused the reasonably foreseeable consequences of their action.

29
Q

Weait

A

1) disagrees and believes that the defendant is only guilty where he knew he was positive, because the defence of consent is still available. We are all responsible for our sexual health. Thus those who are not infected should be responsible for asking their partner if they are infected.

30
Q

Stannard

OAP

A

It should be possible for the law to recognise the
infliction of emotional harm as a crime provided that: (1) it is of a kind
or degree in excess of what a person should be expected to suffer in the
course of everyday life; (2) the defendant knew or at least ought to have
known that the victim would suffer it; and (3) the defendant had no
legitimate interest in causing it.

31
Q

Lord STeyn in Powell

A

Thought that intention to commit GBH was not “in truth a murderer”.

32
Q

Ashworth

A

Argued that the rule in Gladville Williams and Beckford - that the D can rely on an honest (even if unreasonable) mistake as the basis of self defence can infringe of victim’s art 2 right to life.

33
Q

Martin (David)

A

D committed two robberies claiming he was under duress from two men who lived on the same estate, he may have been mistaken, he suffered from an illness which made him more likely to feel threatened and perceive statements as threatening. CA upheld his conviction based on Graham but dicta sugguests that a subjective test would be preferable.

34
Q

Rogers

A

divisional court went further where D claimed duress of circumstances where he was drink driving to escape from a threatening neighbour. Judge said the test for mistake was subjective and question of “reasonable” in Graham was wrong. But he should not do this because divisional court should regard CA authority as superior.

35
Q

Baroness Hale thought that this should be the law.

A

That the threat need not be reasonable but subjective.

36
Q

Ð Hale said the approach in hasan, where if voluntary contact with them you lose defence:

A

said this strict view might make a battered partner who stays with violent partner prone to lose the defence if he forces her to commit a crime because voluntarily associated with him.

37
Q

Arenson

A

reasons enunciated by Lord Hailsham for refusing to allow duress to be interposed as a defence to murder are seriously flawed.
basic human instinct to appreciate that it is unrealistic to expect any person, to refuse to follow a direction to take an innocent life when the consequence of that refusal is all but certain to result in the loss of one’s own life or that of a close friend or family member.
It is equally apparent that one who kills under duress63 at common law is less morally blameworthy than one who kills in response to provocation that would be a sufficient mitigating circumstance to reduce murder to the lesser offence of voluntary manslaughter.

38
Q

Lord Keith in Gomez

A

Lord Keith - “The decision in Lawrence was a clear decision … which stood for 12 years” … Lawrence must be regarded as authoritative and correct”.

But… Lawrence stood for 12 years, it was ignored for 12 years and case law Court of appeal show that they prefer Morris. Such as in Skipp or Eddy v Niman.

All these must be wrong and cannot stand with new decision, Lawrence was not a respected authority.
All of which apply the concept later identified in Morris. These cases must now all be wrong in light of Gomez,

NB the 1968 Act was framed to reflect a difference between ‘thieves’ and ‘rogues’ – Gomez does not.

39
Q

Simester & Sullivan

theft

A

the effect of Hinks is to cut theft adrift from the law of property rights: the cart is now before the horse’

‘The main problem with Hinks, surely, is it turns the very rationale of property offences on its head. Theft is not a crime in thin air. It is designed to protect and reinforce property rights.

so the link up to the civil law is crucial

40
Q

Smith

A

The requirement that there must be a complete loss of self control has been condemned across the board by leading commentators on the law as “very harsh”. He was commentating on Broome v perkins.

41
Q

Wasik

automatism

A

We suggest, therefore, that there are no major public safety issues in Parliament legislating to accept the Law Commission’s long-standing suggested revision, to “effective loss of control”. instead of “complete loss of voluntary control”

42
Q

Law Commission suggested

A

the phrase proposed by the law commission “depriving him of effective control”,

not broome v perkins - total loss of voluntary control.

43
Q

Ashworth

A

the phrame prosed by the law commission “depriving him of effective control”, would expressly empower the courts to evaluate and judge D’s worthiness for a complete acquittal, whereas if the decisions in broome v perkins represent the law the doctrine of automatism is unavailable whenever the court believes that there was a residual element of control in D’s behaviour at the time.

44
Q

MacKay

A

There should be a review of internal/external discitnction because sleepwalkers are being names insane!

45
Q

Horder

GBH

A

Thought that intent to do GBH was enough mens rea for murder was outrageous.

46
Q

Theft example

A

In 2007 survery, 20% said that they stole something from work