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Revision of reforms

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Introduction

Reform of NFOAP. Structual: - Mixture of common law and statute (Sexual Offences 2003/CJA 1988) - No clear definitions = confusion, cost, delay + injustice - Criticisms by law commission: 'Rag bag of offences' 1993 - Govt: 'It's a disgrace' 1998 Age: Principal act (1861) almost 150 years old. CJA is also 20 years old - In fast evolving social, cultural and technological society this needs updating: - Psychiatric harm (Ireland/Burstow/Chan-Fook) - Cyber Bullying/Stalking - HIV/AIDS - Dica/Konzani Language: Some terms archaic + don't reflect modern language (Smith - Grevious/Maliciously - Mowatt) - Terms lack clear definition - Assault - Occasioning/Inflicting/Causing all mean the same thing - Burstow Heirarchy: Of offences defies logic - MR doesn't determine liability, AR does - Sentencing of S.47 + 20 are 5 years, then S.18 jumps to life - REFORM? Assault = 6 Months. - New S.47 = 5 Years - New S.20 = 7 Years - S.18 Remains at life. Clarify essential as it deals with 80,000 cases/year. Consent: Adds confusion, public policy constraints make it assault/battery only except from lawful exceptions (Brown/Wilson) Critique Of Offences: Common Assault: - Police/Lawyers/Judges use terms interchangeably. Confusing to lay person - Proposals integrate two offences to simplify and make law clearer Assault: - Man in street believes this is a violent offence when infact no harm is required - Absence of 'Fair Labelling' (Clarkson) ...read more.

Middle

Law Com. 2 Sentences. 1) Min Life Sentence. 2) Max Life Sentence. Coutts - Can Return verdict of MS - Too much for Jury - Reform fixes this - Murder can be committed by omission, but this does not reflect the seriousness of the offence as even battery can't be committed by omission (Fagan) - When can 3rd Party Break Chain (Chesire/Jordan) Conflict with each other - When V's actions stop being self neglect (Dear/Holland) and start being daft + unexpected - Think Skull Rule unfair, attracts liability for something reasonable man could not foresee (Blaue) Self Defence: Not fair or just, as excessive use of force would lead to a full murder conviction - All or nothing - Police/Army judged to the same standard as Martin, not fair as they are acting to protect society as a whole as they may be much more 'anguished' - Judiciary cannot make separate offence for them as it is parliaments job (Clegg/Demenez) - Similar argument for reforming duress which is not a defence to murder or attempted murder (Howe/Gotts) MR of 'Malice Aforethought' is misleading as there is no need for any kind of malice or ill will - Intention for GBH should be removed (Lord Steyn) ...read more.

Conclusion

Reform of Intoxication. - Majewski said it was a defence to specific intent only, however the distinction between basic and specific is illogical and unfair as intoxication means abolition of MR. If you don't have MR for one crime, you should not have it for another - This undermines the basic principle of law that there must be MR - The Butler Committee in 1975 suggested an alternative approach as used in Germany where when they are not liable for a crime due to intoxication they will be liable for a separate offence of intoxication. This preserves the logic of the law and prevents people from escaping liability. - HOWEVER, this categorises a wide range of offences under one title and the public will not know what specific offence was committed - In 2009 the Law Commission suggested keeping the law largely as it is but codifying it with clearer definitions of what is basic and specific intent - Problems with involuntary intoxication include Kingston as Drunken Intent is still Intent. Prof. Clarkson argues this is unfair to convict a person when their powers of reason have been removed by a third party. - Drunken Mistakes (O'Grady/Hatton) are not a defence, although this goes against the rules of normal intoxication - Inconsistency with the way the law is dealt with in intoxication (Aitken/Richardson + Irwin) ...read more.

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