General Defences.
GENERAL DEFENCES MISTAKE & INADVERTENCE The defences of mistake and inadvertence (a failure to appreciate or realise) consist of a denial of the mens rea of the particular crime charged. I. Offences requiring subjective fault Here, either a mistake or inadvertence will operate as a defence. IMPORTANT The test of mistake and of inadvertence is also a subjective one. What this means is there is no requirement that the mistake be one which a reasonable man would have made or that a reasonable man would have failed to appreciate that which the accused failed to appreciate. DPP v MORGAN [1976] AC 182 - HL This was a rape case where a husband invited a number of his friends to have sexual intercourse with his wife. The wife did not consent and it was claimed that her protestations were mistakenly believed to be a 'kinky' way of love making. The House of Lords upheld the convictions on the basis that the accused had not actually held any mistaken belief but said that had they indeed been mistaken, then they would have been acquitted. II. Offences not requiring subjective fault A. Inadvertence and mistake . Inadvertence It is clear that inadvertence is a defence to an offence requiring at least subjective recklessness. 2. Mistake The situation is a little confused but it is probable that a genuine mistake is a defence to objective Caldwell recklessness only if the
Domestic Violence Murder Problem Case.
Q2; SHERRY HAS BEEN SUFFERING DOMESTIC VIOLENCE FROM HER HUSBAND, STAN FOR MANY YEARS. Battered woman syndrome: R v Ahluwalia [1992] 4 All ER 889 d), • R v Thornton [1996] 1 WLR 1174 The jury may take into account actions over a period of time: R v Ahluwalia [1992] 4 All ER 889 ONE EVENING ON RETURN HOME FROM RESTAURANT HE GOES TO BED,TELLING HER WHEN HE WAKES UP IN MORNING HE IS GOING TO GIVE HER THE HIDING OF HER LIFE . AS HE RETURNS TO WALK UP STAIRS,SHERRY PICKS UP VASE FROM TABLE AND HITS HIM IN THE BACK OF THE HEAD.STAN FALLS OVER,SERIOUSLY INJURED HE GETS UP STAGGERS TO FRONT DOOR,SHERRY MOVES TOWARDS HIM,HE PANICS,STAGGERS DOWN DRIVEWAY AND INTO ROAD,WHERE HE IS HIT BY A CAR.DEAD ON ARRIVAL AT HOSPITAL SHERRY COME TO U FOR ADVICE.WHAT DEFENCE OPEN TO HER IF CHARGED WITH STANS MURDER. . ACTUS REUS FOR MURDER/CAUSATION(FACTUAL/LEGAL) 2. IS THERE MENS REA FOR MURDER 3. ARE ELEMENTS OF PARTIAL DEFENCE OF LOSS OF CONTROL PRESENT.WHAT WOULD SHERRYS LAWYERS HAVE TO ESTABLISH 4. USE CASES TO ILLUSTRATE POINTS U MAKE 5. USE I.R.A.C ANSWER: Murder is 'the unlawful killing of a human being in the Queen's peace, with malice aforethought'. The Actus Reus of murder is the unlawful killing of a human being in the Queen's peace; Unlawful killing can be committed by an act or an omission. All unlawful killings are result crimes and causation must also
Justifying Punishment
Justifying Punishment In Chapter 1 we argued that the most crucial factor in the current malaise in the penal system is the 'crisis of legitimacy'. A social institution is 'legitimate' if it is perceived as morally justified; the problem with the penal system is that this perception is lacking and many people inside and outside the system believe that it is morally indefensible, or at least defective. We need to investigate whether such moral perceptions are accurate, if only to know what should be done about them. If they are inaccurate, then the obvious strategy would be to try to rectify the perceptions, by persuading people that the system is not unjust after all. But if the perceived injustices are real, then it is those injustices which should be rectified. This chapter accordingly deals with the moral philosophy of punishment and attempts to relate the philosophical issues to the reality of penal systems such as that of England and Wales today. The basic moral question about punishment is an age-old one: 'What justifies the infliction of punishment1 on people?' Punishing people certainly needs a justification, since it is almost always something which is harmful, painful or unpleasant to the recipient.2 Imprisonment, for example, causes physical discomfort, psychological suffering, indignity and general unhappiness along with a variety of other disadvantages (such as
The Inchoate Offences: Conspiracy, Incitement and Attempt.
The Inchoate Offences: Conspiracy, Incitement and Attempt The taking of certain acts towards committing a "full" offence (e.g. theft) may render the actor liable for one or another of the "inchoate" (or "incomplete") offences - conspiracy, incitement or attempt. Note that the labels "inchoate" or "incomplete" are misleading. Each of the "inchoate" offences is complete in itself, and possesses elements of actus reus and mens rea. It is the full offence that is incomplete, though prosecutors sometimes favour charging an inchoate offence for evidential reasons. The key question you should be asking in connection with each offence is "why is this conduct being criminalized"? . Conspiracy Conspiracy under statute is simply an agreement to commit a crime:- s 1 Criminal Law Act 1977 ("CLA 1977"):- "If a person agrees with any other person or persons that a course of conduct shall be pursued which will necessarily amount to or involve the commission of any offence by one of the parties to the agreement ... if the agreement is carried out in accordance with their intentions." So there must be proof of:- (i) an agreement (ii) which if carried out in accordance with the parties intentions (iii) necessarily amounts to the commission of a crime .1. "An agreement ... " s2 CLA 1977 excludes agreements between spouses and those where the only other party is under the age of
Physical Resistance in Rape
The Essentiality of Physical Resistance in Rape: A Comparative Legal Dimension. By Dr. Mohamad Ismail Bin Hj. Mohamad Yunus Historically, the element of resistance which is in concert with the used of force by the accused - which a fully comprehending woman must show when sexual advances are made remains a vexed question. No doubt the vexations nature of the problem arises from prevailing social and moral attitude towards sexual relations. Perhaps due to acceptance of the sentiments of Sir Matthew Hale in his oft quoted statement: "It is true rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered, that it is an accusation easily to be made and hard to be proved."1 It is noted that the assertions that the important issue in a prosecution for rape is non-consent rather than active repulsion have in many cases tended to be quietly overlooked in the search for evidence of struggle by the complainant, struggle being regarded as essential factual evidence of non-consent, and often a lack of this factual evidence leading to the assumption that consent must have been given.2 Indeed the framing of some judgments leads rapidly to the belief that the "without consent" construction is limited to cases of fraud or complete helplessness on the part of the complainant, unconsciousness, total mental incapacity.
Eyewitness Testimony
Official Reports In 1976, in the UK, the Devlin committee was formed to investigate the reliability of eyewitness testimony, the Devlin committee released its findings in the Devlin report; The Devlin committee looked into a number of cases that had been proven as wrongful convictions due to eyewitnesses misidentification, these cases ranged from 908 - 1972. Several of the cases that lead to the Devlin committee being formed were the cases of, Alfred Beck, Oscar Slater, Luke Dougherty and Laszlo Virag; Even though the Devlin committee found that a number of eyewitnesses had misidentified suspects as the culprits, the committee reported that the findings did not warrant eyewitness testimony from being disallowed. However the Report did recommend that statutory safeguards should be implemented, but the government took no action. Professor Glanville Williams, one of the Devlin committee members, reported that "Neither the Beck case at the turn of the century nor the many miscarriages of justice since then have sufficiently impressed those concerned with criminal justice of the dangers of identification evidence. To mention some of the instances in late years: three occurred alone in the space of a few months in 1967-68. A memorandum of the National Council of Civil Liberties published in 1968 gave details of 15 cases from 966 onwards; in most of
the advantages and disadvantages of the United Kingdom Law Commission’s proposal that the law governing homicide in England and Wales be reformed to codify homicide offences.
. Woollin [1999] 1 AC 82 2. Adomako [1995] 1AC 171 3. Smith (Morgan) [2001] 1 AC 146 4. Wilmot (No 2) [1985] 2 Qd R 413 5. DPP v Beard [1920] AC 479 6. Boughey (1986) 161 CLR 10 7. Kai-Whitewind [2005] EWCA Crim 1092, [2005] 2 Cr App R 31 8. Cawthorne [1996] 2 Cr App Rep (S) 445 9. Z [2005] UKHL 22, [2005] 2 AC 467 0. Howe [1987] AC 417 1. Gotts [1992] 2 AC 412. 2. Z [2005] UKHL 22, [2005] 2 AC 467 3. Dixon v US (2005) 413F 3rd 520 . Law Commission Act 1965 2. Human Rights Act 1998 3. Criminal Justice Act 2003 4. Infanticide Act 1938 5. Homicide Act 1957 6. European Convention on Human Rights .0 Introduction: The Law Commission The Law Commission was set up by section 1 of the Law Commission Act 1965 for the purpose of promoting the reform of the law. The Law Commission reviews the various elements of murder, including the defenses and partial defenses to it, and the relationship between the law of murder and the law relating to homicide (in particular manslaughter) in England and Wales. The review will make recommendations that take account of the continuing existence of the mandatory life sentence for murder and provide coherent and clear offences which protect individuals and society. It is also to ensure that those convicted to be appropriately punished. Recommendations that are made should be fair and non-discriminatory in accordance with the European
The use of psychologists in the detection of criminals is more fictional than functional discuss. Criminal Profiling.One of the most controversial methods of using psychologists in the detection of criminals
Criminology, Combined Studies: Year 3. Tutor: Dave Holmes. By: Diane Callaghan. The use of psychologists in the detection of criminals is more fictional than functional discuss. Criminal Profiling. One of the most controversial methods of using psychologists in the detection of criminals, is that of profiling. The subject of criminal profiling has caught the public's imagination in recent times, with references to it occurring in all forms of media. The most well known example of criminal profiling in the popular media is in the film Silence of the Lambs, based on the Thomas Harris novel of the same name. Several television shows have also recently been based around the premise of criminal profiling, including Cracker and even the X-Files. Interestingly, all of these popular portrayals of profiling are somewhat inaccurate, suggesting as they do, that profiling is a magical skill somewhat analogous to a precognitive psychic ability. Those who practice criminal profiling have claimed that it is alternatively a science or an art, depending on who is speaking. Even those who confess that it is more an art than a science (e.g. Ressler & Shactman, 1992) still point to scientific studies to support their claim that it is in fact worth using. Yet one of the biggest hurdles standing in the way of acceptance of criminal profiling is that there is very little authoritative
COMPARE AND CONTRAST LEGAL APPROACH ADOPTED TO COMBAT MONEY LAUNDERING IN TH UK
Compare and Contrast the legal approach adopted to combat Money laundering in the United Kingdom with that of a non-EU state with a view to ascertaining the most effective elements of anti laundering approaches. Introduction Money laundering permeates almost all facets of management or governance and several establishments have taken cognisance of its effect on their business, reputation, most especially as every society or body is challenged with the issue of combating fraud, financial crime and corruption in their immediate business community and in the larger society. As is evident with several hydra headed problems plaguing any financial, business or corporate environment, money laundering has come to be a reference point in accountability in financial transactions. The legal approach in combating money laundering will be examined using Nigeria as an example of a non-EU state and comparing it with the legal approach as practised in the UK. Nigeria is favourably chosen as the country has seen a fair share of its public officers being investigated, prosecuted and shamed in the full glare of the international community in relation to money laundering charges. The office of the presidency in Nigeria views money laundering as a dastardly crime and is passionately committed to curbing the menace. In light of this, it has set up different law machineries to monitor and
Distinction between criminal and civil law
Criminal assignment for attention of TJ McIntyre Topic: In the light of new "hybrid" jurisdictions such as anti-social behaviour orders is it still true to say that there is a clear distinction between the civil and criminal law? Student Name: Bialiayeva Iryna Student number: 06860818 BBLS 2 "This assignment is entirely my own work, except where otherwise stated. All sources used have been acknowledged by explicit reference. I confirm that I have read and understood the guidelines on plagiarism contained in the Undergraduate Student Handbook. SIGNED:__________________ DATE:___________________." Contents: . Criminal Justice (Public Order) Act 1994 p.3 2. Criminal Justice Act 2006 p.8 3. Conclusion p.15 4. Bibliography p.16 In the light of new "hybrid" jurisdictions such as anti-social behaviour orders is it still true to say that there is a clear distinction between the civil and criminal law? New laws and measures have been introduced in Ireland in 2006 to tackle anti-social behaviour. But before to talk about new laws, I should say about previous measures which were taken to deal with public offences. The common law rules relating to the more serious public order offences were abolished and replaced by the Criminal
