Revision

Term 2
 Approaching Revision
How to begin: step back and try to get a view of the
whole

– Go back through the course guides from the start

and try to remember what you can from each
topic as you go
– Step back and try to visualise the whole structure
of criminal doctrine
– Make a 'normative map' of criminal law
– Make a 'contextual chart' of criminal law's
relationship with what is 'outside' it – morality,
society and politics
 Structure of criminal doctrine
General Part: The general principles of liability:

• Offences:
– Actus reus
– Mens rea
• Defences:
– Justifications
– Excuses

Special Part: The definitions of specific offences and

defences
 Revising for the exam
-You must answer three questions including at least
one problem question and at least one critical essay
question

-This means: revise for both sorts of questions

– Identify issues that are pertinent to the different

sorts of questions
• Problem questions: focus on doctrinal
analysis and controversies
• Essays: focus on normative and contextual
evaluation
 Overview of the Material
For each topic we will briefly recap:

-The essence of the offence/defence

-Some of the key doctrinal issues/points of law/

key cases/controversies

-Key critical issues, i.e. issues of normative

principle and evaluation of the law
 Loss of control
Essence

Elements of murder present, but:

-D lost control in response to a 'qualifying trigger' –

fear of serious violence or justifiable anger at things
said or done of a grave character

-A reasonable person might have lost control in D's

situation

CJA 2009, ss. 54-6

 Loss of control
Key points

-No need for loss of control to be immediate – so 'cooling off

period' allowed

-But D must not have acted out of a considered desire for

revenge

-The anger trigger cannot be merely at sexual infidelity.

However, where there is something else that can count as the
trigger, sexual infidelity is relevant as part of 'all the
circumstances'

-Reasonable person with ordinary level of self-restraint and

tolerance, but otherwise in D's circumstances
 Loss of control
Critical issues:

-Does it improve on provocation? More available to

battered women? Suddenness requirement, fear of
violence trigger, etc. (Ahluwalia)?

-Does Clinton undo the intended exclusion of sexual

jealousy as a basis for loss of control in spousal
killings? Is it possible to exclude in a principled way
such considerations?

-Does loss of control conceive of gendered violence in

homicide in a more satisfactory way than provocation
did?
 Diminished responsibility
Essence

Coroners and Justice Act 2009, s. 52

i) Abnormality of mental functioning

ii) caused by a recognised medical condition
iii) which substantially impaired D’s ability to;
a) understand the nature of their conduct
or b) form a rational judgment
or c) exercise self-control
iv) which provides an explanation for D’s conduct
 Diminished responsibility
Key points

-Recognised medical condition: psychiatrically

recognised

-Medical including psychiatric evidence now

paramount

-But not all recognised medical conditions will qualify

– In particular, voluntary intoxication (Dowds)
 Diminished responsibility
Critical points

-Potentially narrows the scope compared to the old

law: lacks the flexibility of the old wording that
allowed for 'benevolent conspiracies' in certain cases
such as mercy killings

-Is the defence desirable? It focuses on D's mental

illness rather than on the context... this may
sometimes be appropriate, but in other cases it may
distract from the real issues.
– Even where there is mental illness or
abnormality, the causes may be morally more
relevant than the effects...
 Unlawful act manslaughter
Essence:

Actus reus: an unlawful (the base offence) and

objectively dangerous act which caused death

Mens rea: the mens rea of the base offence: no need

for intention or foresight (recklessness) as to causing
death or even creating a risk of harm
 Unlawful act manslaughter
Key points of law/ doctrinal issues:

Dangerousness:
– Minimal threshold – some risk of some harm, not
necessarily serious harm (Church, Hall, Watson,
Newbury)
– Objective test: whether reasonable bystander would have
recognised it was dangerous (Church, Newbury, Watson)

Causation:
– Ordinary principles: voluntary act breaks chain (Re
Kennedy No 2, Dhaliwal)

Mens rea:
– No need for foresight of harm: basic intent offence
(Watson, Newbury)
 Unlawful act manslaughter
Critical issues:

-Constructive liability: fair respect for autonomy?

-Moral luck: is it fair to impose liability purely on the

basis of bad luck in the causal outcome of an act?

-Fair moral labelling: is it appropriate to stigmatise

people with a manslaughter label where neither they
nor even the reasonable bystander could have
foreseen that death would result from their actions?

-Should people be held responsible for whatever

consequences result from minor criminal acts?
 Gross negligence manslaughter
Essence

-Negligently breached a duty of care which caused

death

-The negligent breach was 'so gross as to be criminal'

 Gross negligence manslaughter
Key points

Duty of care: established on basis of civil law approach, but

extended to include further cases where duty is 'assumed' by D
(Bateman, Stone and Dobinson)

Gross negligence: no precise definition: question is for the jury,

the issue is whether D's conduct was so bad in all the
circumstances as to amount to criminal conduct (Adomako,
Misra)

Various factors relevant, incl. need for an obvious risk of death,

the seriousness of the breach, amid all the circumstances
 Gross negligence manslaughter
Critical Issues:

-Rule of law principles: clarity, prospectivity: is it justified for

the law to use such a vague standard that is left to the jury to
decide?

-Moral fairness: is it right to expose people to manslaughter

conviction merely for honest if serious mistakes? Does it tie
liability to fault adequately to respect autonomy?

-Subjectivism or objectivism?: Is fault based on subjective

choices/intentions/foresight, or on evaluation of people's
character failings?

-Public policy: does it make sense to disincentivise people doing

jobs where lives are at stake by exposing them to
criminalisation?
 Offences against the person
Essence

Common assault: unlawful force or causing V to

apprehend unlawful force, reckless as so doing

ABH (s. 47): causing actual bodily harm, reckless only

as to assault

GBH/wounding (s. 20): reckless only as to ABH (i.e.

causing some harm)

GBH with intent (s. 18): intend to cause GBH or to

escape/avoid arrest
 Offences against the person
Key points

Mens rea: constructive liability (Savage and Parmenter)

Actual/grevious harm: includes psychiatric harm (Ireland and

Burstow)

Consent: Defence to assault; not a defence above assault, except

in certain circumstances decided ad hoc (Brown)

– -Where not 'in the public interest' not allowed

HIV transmission: where D does not disclose status this would

negate V's consent (Konzani): duty to disclose
 Offences against the person
Critical issues

Constructive liability: mismatch between mens rea and harm

Consent: should it be regarded as a defence or as an element of

the offence? Are there principled reasons for the 'exceptional'
cases?

Legal Moralism? Brown suggests criminalisation of conduct

based on spurious distinctions and motives?

Duty to disclose in STI transmission cases: how far does this

duty extend? Does this properly capture the shared nature of
responsibility in sexual relations?

-Individual liberty v public policy?

 Self-defence
Essence:

D used force to repel or prevent apprehended

unlawful force

The force used was reasonable – necessary and

proportionate

In the circumstances as D honestly believed them to

be
 Self-defence
Doctrinal Issues

No strict duty to retreat (Bird)

Danger must not have already passed

Must not act out of revenge

No need to 'weight to a nicety' (Palmer)

-'Honestly and instinctively thought necessary in the

moment' subjective evidential test

Householder cases: force must not have been 'grossly

disproportionate'
 Self-defence
Critical Issues

-Justificatory/ permission basis

-Subjectivist leanings in the objective test: designed to

protect D's autonomy to defend themselves?

-But: what about V's autonomy not to be attacked for no

reason?

-Wider latitude for householders: why is this justified?

-Moral principle or political / ideological motives?

 Duress
Essence

D committed offence because of the pressure of

danger of serious injury or death resulting from
threats of other circumstances

A sober person of reasonable firmness might have

been similarly moved
 Duress
Doctrinal issues

-Only danger of serious injury or death will do

(Valderama-Vega)

-Danger must be immediate or almost immediate

-Only reasonable mistakes allowed as basis for the

defence

-Not allowed for murder (Howe)

 Duress
Critical issues

-Excuse – based on concession to human frailty

– Emotional aspect of human life and action
– Relevance of emotions for moral judgment

-Why only fear of death or serious injury?

-Why immediate or almost immediate?

-Why not allowed for murder?

 Necessity

We studied last week!

 Fin

Well, not quite...

There will be another revision lecture after Easter...

Good luck with revision over the break!