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17 Cards in this Set
- Front
- Back
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GENERAL DEFENCES INTOX PROBLEM 1 |
-The DISTINCTION BETWEEN SPECIFC AND BASIC intent crimes andthe use of the defence has been criticised as being too simplistic an approach. -The general law takes a subjective approach to mens rea. If there is nosubjective mens rea there should be no liability as can be seen in the case of R v G and R (2003), where as the boyswere not aware of the risk of criminal damage they were said not to bereckless. -The case of Majewski(1977) ignores this subjective approach for basic intent crimes, which are normallyhigh in volume, the moral questionability of getting drunk is seen as areckless course of action in itself so the defence is unarguable. -Where the Dis charged with murder or S18 he can use the defence of intoxication, even ifvoluntary, as these are specific intent crimes. -If the D is found not guiltythere are fallback offences of manslaughter and S20 for which the D is likelyto be found guilty under the Majewskirules. - However for other offences there is often no fall backoffence if a D is found not guilty of a specific intent crime which seems toallow a culpable D to have an unfair advantage if he is lucky enough to‘choose’ such an offence, e.g. Theft" |
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intox problem 1 cont |
-Thedistinction therefore requires judges to decide whether each criminal offenceis one of basic or specific intent. -This seems not to be settled as can beappreciated from the appeal in the case of Heard (2007) where the court had to decide if the offence ofsexual assault contrary to s3 of theSexual Offences Act 2003 was one of specific or basic intent. - It seemssurprising that Parliament does not make it clear in drafting an Act. There arealso some bizarre anomalies – for example attempted rape is a crime that can bedefended by a plea of intoxication, rape cannot |
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intox problem 2 |
-Another area where the law is in need of reform is where theD’s INHIBITIONS ARE BROKEN DOWN by being made intoxicated involuntarily. -Thedecision in Kingston 1994 makesthe D guilty as he was held to have formed the MR. - This ignores the fact that the D was not to blame for beingintoxicated and such a D would not be guilty of a basic intent crime where theP relied on recklessness (Hardie1984). -This appears to be unfair to Ds in Kingston’s situation |
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Intox Problem 3 |
-The defence is also criticised as it is TOO MUCH BASED ONPUBLIC POLICY. -Over the last 30 years public policy has become the main themeof law on intoxication not truly balancing the proof of fault on behalf of theD. -For example parliament has enacted the Criminal Justice and Immigration Act2008 that states for self-defence D cannot rely on ‘any mistaken beliefattributable to intoxication that was voluntarily induced’. - Majweski has been heavily criticised forallowing the defence to prove the intoxicated state of D at sometime up to thecrime as a replacement for proving the actual MR of the specified offence. -Thisignores one of the key principles of criminal law that D must be proved to havethe MR of the offence before proven guilty and that this should coincide withthe AR |
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Reforms |
-In 1975 the Butler Committee proposed REFORM by creating anew offence of ‘dangerous intoxication’. -The idea was that where the D wasacquitted of a serious offence the D would alternatively be guilty of ‘dangerousintoxication’, with a maximum sentence of 3 years. -This was aimed at balancingpublic protection and the D’s rights. -However, this proposal was rejected, asthe offence did not distinguish how serious the original offence had to be totrigger a charge. - In 1993 the LC proposed that evidence of voluntaryintoxication should be available for all offences on the issue of MR. -Thiswould allow the D to be acquitted if he did not have the necessary MR andeffectively gets rid of the Majewski rules. - A separate offence of ‘Criminal Intoxication’ similar tothat suggested in 1975 was also proposed. -The idea was abandoned and in 1995the LC proposed codifying the present law as it stood, including the Majewskirules, which it felt operated ‘fairly, on the whole and without unduedifficulty’, with the 1998 government backing this proposal. - One further proposal is to create a list of those situationswhere the courts can accept the intoxication was involuntary. -However this billhas not been enacted and the law remains to be developed by case law |
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Insanity problem 1 |
-INSANITY has been criticised as a general defence as earlyas 1953 when the Royal Commission on Capital Punishment said the rules wereOBSELETE AND MISLEADING because therules date back to the 1843 case of M’Naghten. -This is backed up by thesignificant improvement in medical understanding of conditions such as diabetes(Quick) and epilepsy (Hennessey ) which in most cases can be easily controlledby drugs and/or diet. - But Insanity still treats these D’s as a threat to thepublic which is clearly based on a set of archaic rules of disease of the minddating back to Victorian times |
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Insanity problem 2 |
-The defence is criticised as BEING TOO NARROW as it excludessome of the very cases it originally seeks to protect society from. -Clearlycases like that of Byrne, a psychopathic killer and Johnston who suffered from paranoid schizophreniarequired the disposal structure arising from the special verdict of being foundNG by reason of insanity (Criminal Procedures (unfitness to Plea) Act 1991), sothat they could be forced to be treatedfor their conditions until they were regarded as no longer being a threat tothe public. - However, Irresistible impulses (Byrne) and an admission by Johnston (confirmingan earlier 1959 ratio in Windle) prevented the use of the defence as the Dsknew the nature and quality of their act, i.e., Byrne knew it was legally wrongto kill but just couldn’t help himself with his mental condition |
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Insanity problem 3 |
-The COURTS RIGHTS TO DETAIN THE D INDEFINATELY have beencriticised (particularly under the disposal for murder) as it is said to breachArt 5 (right to liberty) of the Human Rights Act as D’s detention has not been reached through the rules on insanity based on objectivemedical opinion but only a legal one. - According to the case of Winterwerp (1979) this is aninfringement of a person’s human rights and in the example diseases listedclearly such a disposal would go against all common sense and justice, yet thedefence still operates without reform |
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nfo problem 1 |
-The GENERAL STRUCTURE of non-fatal offences (NFO) has beencriticised for being complicated and illogical. -The OAPA 1861 is Victorianlegislation that was never intended to be a logical and consistent set of rulesas it is a piece of legislation that simply brought all the then applicablelaws into one Act, called a consolidation act. -This means the sections arerandomly ss47, 20 and 18 because the Act also includes other sections settingout the law on matters as diverse as poisoning and kidnapping. -The OAPA doesnot include Common Assault which is not even defined in an act, though has beenclarified as an offence in the CJA 1998 leading to further confusion |
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nfo problem 2 |
-The phrase BODILY HARM has also caused much criticism as itis used in S47, S20 and S18 but has no statutory Definition. The courts havehad to interpret the phrase widely to cover matters which were beyond theVictorian legislators’ contemplation. -For example Chan Fook said bodilyharm should include depression for ABH and Ireland said more serious psychiatricharm for GBH, to ensure cases of stalking and harassment by electronic meanscould be criminalised. - In Dica the notion of biological GBH wasdeveloped to allow the Ps who wilfullyspread aids to be prosecuted for this offence. -Clearly when the act wasdeveloped medical knowledge was not sufficiently developed to understand howsuch diseases could be spread and the law is criticised for applying manydifferent meanings to a similar phrase but across 3 different offences |
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Reform 1 |
-Home office draft Bill in 1998 defined injury toinclude physical and mental injury with definitions and a much closer link to medical definitions, immediately improvingthe criticism on the use of archaic language for an easily understood word thathas very clear boundaries. -However the reform suggested means that onlyintentional serious injury can be committed through transmitting a disease, andit is not clear what diseases would be included, so even the reforms suggestedlack clarity in some areas |
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Nfo problem 3 |
-The language used in NFO’s is ANTIQUATED AND OUT OF DATE. Lord Steyn commented in Ireland; Burstow (1997) regarding themeaning of GREVIOUS BODILY HARM that ‘the Victorian legislator ... would nothave in mind psychiatric illness’ but illnesses affecting the mind are now anestablished area of medical health and legislation needs to reflect this. -Judges have found ways to establish liability for psychiatric harm in thestalking cases (e.g. Constanza)but the liberal interpretations they imposed upon the wording of GBH in the Actin order to achieve this have been the subject of much criticism. - This area of law has been REFORMED as stalkerscan now be prosecuted under the Protectionfrom Harassment Act 1997 as opposed to the OAPA 1861, clearly aDESIRABLE development in this area of increasingly prevalent criminal behaviour |
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Nfo problem 4 |
-Themeaning of WOUNDING is also not set out in the Act and case law hasprovided that it means a breaking of both layers of the skin (Eisenhower). -This does not match the normal understanding of the word and this means that aperson can be charged under s20 for wounding by merely pricking their victim’sfinger with a pin. -However, the Charging Standard recommends that suchminor injuries including small cuts and lacerations would be more appropriatelycharged under s47. -However CPS Charging Standards are guidelines to assistprosecutors and are not legally binding upon the courts. -Once the charge isdetermined, the courts will be decide the case in accordance with statute andcase authority, potentially leading to serious offences for minor wounds |
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Reform 2 |
-1993LC report on OAP: Languagetotally altered to suite modern understandings. -The word injury is used anddefined in the proposed bill making it clear it includes physical as well asmental injury. -This resolves the complexity of definitions through case law forall NFO’s making law fit for purpose, e.g. no more problems with wound beingtechnically just a pin prick and risk of injustice |
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Nfo problem 4 |
-Section 39 of the CJA 1988 and ss47, 20 and 18 were notdesigned to work as one coherent HIERACHY OF OFFENCES. Accordingly, there isnot a logical sentencing structure that reflects the seriousness of eachoffence, known as the ladder principle. - Lord Bingham has recentlyput it that ‘ the interests of justice are not served if a defendant who hascommitted a lesser offence is either convicted of a greater offence, exposinghim to greater punishment than he deserves or acquitted altogether.’ -Forexample this is risked with s39 of CJA 1988 and s47 since the threshold of harmthat qualifies as ACTUAL BODILY HARM is set very low, ‘transient and trifling’(R v Miller (1954), and injuries at the lower scale of s47 and thosecharged under s39 of the CJA 1988 are morally similar but the respectivesentences of five years and six months do not follow a clear hierarchy ofseriousness and can be seen as unjust |
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Nfo problem 5 |
-CONSTRUCTIVE INTENTION, an MR concept, has been criticisedin the offence of S47 ABH and S20 as the P only have to prove a lower level ofblameworthiness to establish a much more serious level of MR and offence. -Forexample even though Roberts only intended to touch the girls leg, abattery, proving the MR of the battery was sufficient to show that D had causedand should be blamed for an ABH (Savage). -This is unfair to D’s as theyshould only be found guilty of an offence if it can be shown they have the MRfor it, in otherwords an intention or recklessness as to the ABH, not just thebattery. -On the other hand in Mowatt, a S20 offence the courts arguedthat making a D liable for a more serious offence by proving the MR of a lesseroffence would serve to act as a deterrent and was in the interests of V’s andsociety as a whole |
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Reform 5 |
-AS the LC Bill 1993 would encompass all NFO’s there is a coherent hierarchy in terms of seriousness, also reflected in the sentencing of each offence, sticking to Bingham’s ladder principle, allowing for much fairer charging and sentencing. -.MR now links clearly to the level of awareness of the D, e.g. Reckless serious injury is required for S20 where D must be proved to have recklessly caused serious injury, not just some harm. - LAW REFORM under the 1998 draft Bill says that harm intended or foreseen must correspond to the offence committed abolishing the much criticised mens rea principles in Roberts and Mowatt. -Accordingly, the reckless defendant will only be convicted under the new s47 if he has foresight of the injury as opposed to the battery that caused it and hemust have foresight of serious injury to be convicted for grievous bodily harm |
