English Criminal Law Research Articles

Analysis of Doctrine of Insanity Defense in English Criminal Law

A person suffering from legal insanity cannot be held responsible for his criminal act. English criminal law recognizes the doctrine of the insanity defense against the criminal responsibility of an accused. The objective of this paper is to study the English law on insanity defense using the doctrinal legal analysis approach. The findings show that English law deals with legal insanity differently than medical insanity. However, the opinion of the medical professionals is mandatory to determine the legal insanity of a person. Furthermore, the standard of evidence to determine legal insanity is the balance of probabilities. English law treats the insanity defense as distinct from the defense of automatism and diminished capacity and the incompetency to stand trial is also dealt with differently than the defense of insanity in English law. English law on the defense of insanity must be interpreted comprehensively by adopting multidisciplinary approaches.

"A Prison Ship Lies Waiting in The Bay": Penal Colonialism in the South Pacific

This article is offered as a contribution to this festschrift in honour of Professor Tony Smith, my colleague at Victoria University of Wellington. The main purpose of the article is to provide a Pacific orientation to the history of English criminal law and criminal and penal administration, as part of a collection of articles written as a tribute to Professor Smith's expertise and prominence in criminal law. The article draws on the historiography of English criminal law, a historiography with which Professor Smith is very familiar (and, indeed, knows some of its contributors personally). The article links this historiography to the wider historiography of the Pacific. Although the main focus is on Great Britain and the British system of convict transportation in the 18th and 19th centuries, the article also considers its French equivalent. France, too, shipped convicts to the Pacific, and just as the architectural legacy of the transportation era is obvious in Australia and Norfolk Island, it is also obvious in New Caledonia. The main approach has been to focus on "penal colonialism" as a specific variety of colonialism in its own right, and as an important dimension of British and French colonialism in the Pacific region during the colonial era. While New Zealand was not a penal colony as such, New Zealand had some connections of its own with British penal colonialism in the southwestern Pacific: New Zealand sent some convicts to the Australian penal colonies in New South Wales in Van Diemen's Land and also possessed a small-scale internal transportation of its own.

The Boundaries of Legal Personhood: Disability, Gender and the Cyborg

By considering the death of the disability activist Engracia Figueroa as the consequence of her wheelchair being damaged by an airline, this article asks whether law could accommodate a definition of legal personhood that encompasses the possibility of bodies augmented by prosthetics, technology, and mobility aids. The use of mobility aids by disabled people and the role of prosthetic penises in so-called ‘gender fraud’ cases offer two useful provocations to consider the ways in which legal personhood, if defined as largely mapping on to an ideal, normative body, is becoming an increasingly inadequate legal concept in the modern age. Drawing on the work of Donna Haraway and the figure of the cyborg, this article argues that a more protean, flexible, and fluctuating understanding of legal personhood would offer both a more accurate and utopian conception of the body in law than the current essentialist approach found in a number of legal areas and particularly in English criminal law.

Rethinking Causation in English Criminal Law

This article challenges English criminal law's approach to causation. In doing so, it proposes replacing the standard tests of causation with a single test, known as ‘INUS’ causation – where a cause is an insufficient but necessary part of an unnecessary but sufficient condition. It argues that the standard tests represent a normative exercise in finding the defendant (D) responsible for a prohibited outcome, often grounded only in D's moral responsibility for that outcome. This approach is problematic because moral responsibility is irrelevant to causal responsibility; and not distinguishing causal responsibility from moral responsibility results in inappropriate criminal-responsibility ascription for result crimes. INUS would provide a single, non-normative test of causation; a metaphysical one that offers a robust causal enquiry that focuses only on causal responsibility, which contributes appropriately to criminal-responsibility ascription. INUS would also yield practical benefits. It would be able to engage with causal enquires in a broader range of cases on a more principled, clear and consistent basis.

English Criminal Law: Examination Strategy & General Tips

English Criminal Law: Examination Strategy & General Tips

‘Well, the burden never shifts, but it does’: celebrity, property offences and judicial innovation in Woolmington v DPP

AbstractIn his 1935 judgment in Woolmington v DPP, Viscount Sankey declared the prosecution's burden of proving the accused's guilt was a ‘golden thread’, running ‘throughout the whole web of English criminal law’. This paper explores what Woolmington can tell us about the appeals process – and about the criminal law itself – less than 30 years after the first automatic right to appeal was created in English criminal law. It argues that the decision helps us understand the political pressures that could help to form – and make possible – legal decisions during this period. And it finds that the Woolmington decision itself – both in the text of the decision and in its immediate reception – was more universal than it was fundamental. Woolmington, I argue, has always been more about the high-level principles of English criminal law than about securing any kind of minimal procedural rights for a defendant.

Re-examining the Presumption: Coverture and ‘Legal Impossibilities’ in Early Modern English Criminal Law

ABSTRACT The doctrine of coverture restricted married women’s legal agency during the early modern period and into the nineteenth century. While the impact and ethos of judicial decisions at private law regarding the doctrine has received sustained attention from historians, the impact upon criminal law has received less analysis. This article examines a series of cases, pertaining to offences ranging from recusancy in the sixteenth century to receiving stolen goods in the nineteenth century, to demonstrate the longstanding nature of arguments of ‘legal impossibility’ due to coverture in married women’s criminal trials. While lawmakers sought to uphold patriarchy by ensuring coverture as well as justice was served, the way these two goals were met differed over time and across offences. Yet, the underlying ideology of patriarchy remained steadfast. Overall, a holistic approach is needed to understand the impact coverture had upon the legal agency of femes covert.

Surgical harm, consent, and English criminal law: When should ‘bad-apple’ surgeons be prosecuted?

This article examines the legal principles determining when surgical harm becomes a criminal matter. In England and Wales, and other common law jurisdictions, the criminal law has predominantly concerned itself with fatal medical misconduct via the offence of gross negligence manslaughter. The convictions of two surgeons in 2017 (Ian Paterson and Simon Bramhall), for offences against the person, suggests that police and prosecutors have, for the first time, become willing to prosecute surgeons for non-fatal surgical harm. Understanding when non-fatal surgical harm should be treated as a criminal matter is, however, a complex issue. The medical exception to the criminal law legitimizes consensual and reasonable surgical harm. Thus, the question of what is reasonable and what constitutes valid consent is key to determining the parameters of lawful surgery; however, the principles are perplexing and insofar as they may be agreed and understood, they are arguably unsatisfactory. After examining the cases involving serious surgical harm and analysing the doctrines applied, this article argues for a more patient-centred approach. The focus should be on the nature of the harm to the victim, the behaviour of the dangerous surgeon and whether a violation has occurred, rather than on traditional professional assessments, which are unduly deferential to the medical profession.

Liability for Withholding Assistance: General Clause or Closed List? A Review of Competing Models in Arab Legislations

This study reviews two main approaches for dealing with omission of assistance in the criminal laws of Arab jurisdictions. The first approach adopts a general clause on the crime of withholding assistance. This approach, following the model of the French Code pénal, prioritises the right to life and bodily integrity over individual freedom, and has been adopted in Algeria, the UAE, Qatar, Lebanon, Bahrain, Morocco, and Sudan. The second approach restricts criminal omission of assistance to a closed list of cases, in which it mandates a duty to intervene. The Palestinian Criminal Code follows this alternative model, with origins in English criminal law, prioritising individual freedom. The study presents the viability of a general omission clause in criminal law. It contrasts this with the absence of a comparable clause in civil liability, where Arab jurisprudence has instead codified a set of requirements for simple omission to result in civil liability.

Мораль и современная социальная реальность = Devlin P. The Enforcement of Morals / пер. с англ. А. Б. Дидикина, О. А. Радченко

In the seventh and final chapter of his «The Enforcement of Morals», P. Devlin elaborates on a several of arguments for his polemic with H. L. A. Hart on issues of the relationship between law and morals. Based on the recommendations of the Wolfenden Committee which proposed a radical reform of English criminal law in the direction of decriminalizing a few of criminally punishable offences with immoral content, Devlin notes their extreme contradiction in terms of protecting the values of public morals. The chapter also criticizes the key arguments of J. S. Mill’s doctrine of the balance of liberty and state coercion

Criminalising Cyberflashing: Options for Law Reform

In this article, we examine the phenomenon of cyberflashing, outlining its prevalence, harms, and victim-survivors’ experiences. We then consider the extent to which English criminal law currently applies to this form of sexual abuse. We argue that although cyberflashing can be prosecuted in England and Wales, this is only in very limited circumstances; the existing law is confusing, piecemeal, has significant omissions, and consequently prosecutions are extremely unlikely. As such, the current criminal law in England and Wales is failing victim-survivors of cyberflashing. Due to its prevalence, its harmful impacts and similarities with other criminalised forms of sexual violence, comprehensive law reform, which appropriately addresses cyberflashing as a sexual offence, is now critical. Accordingly, we examine legislation in other jurisdictions where criminal laws targeting cyberflashing have been adopted, and provide recommendations for law reform: specifically, we recommend the development of a new criminal offence that purposely targets cyberflashing in all its forms.

A-2 The Legal Maxim “an accused is innocent until proven guilty” and its Applications in Islamic Criminal Law and Criminal Law of Pakistan (A Conceptual and Applied Study)

Al Qaidah al Fiqhiyah (Islamic Legal Maxim) is a collection of rules having the same ruling in different chapters but of a specific field of al Fiqh al Islami. (we will discuss latter with some detail about the concept of Qaidah and Dhabit). The Al Aslu Fe al Muttaham Baraahatoho (The accused is innocence until proven guilty) is one the basic principle and maxim of English Criminal Law and so of Pakistani Criminal Law. (a mixture of somehow Islamic and Common Law). This maxim is recognized by Sahriah but in a way that it could not became a shelter for professional criminals and trouble makers in the society because administration of criminal justice system of Islamic Law safeguards the right of accused, but not by putting the right of lives and property of others innocents in vain, so that they spent their lives while reaching about their rights in the hands of unknowns. this work focuses on the literal and technical meaning of the maxim, as well as significance of its consideration in the field of Islamic Criminal Law and also its applications in the field. The study will come with the proofs of the maxim from the verses of Quran and traditions of the Holy Prophet (PBUH). After that it will bring out relevant cases from the Islamic Criminal Law along some of exceptional cases as well. The study will also deal with its relevance with Pakistani Criminal Law, highlighting the common areas of both in traditional Islamic Law and Criminal Justice System in Pakistan, and basic points of differences between them and its impacts while fulfilling the administration of justice.

Colonial penal stations and uneven legal reform after the Bigge Commission of Inquiry: the Port Macquarie absconders at Macquarie Harbour

Between 1822 and 1824, just under 100 convict absconders from the mainland penal settlement at Port Macquarie were relocated to Van Diemen’s Land under executive orders they be retained at the island’s new penal station at Macquarie Harbour. The subsequent fate of this cohort reveals an early moment of divergence in policy and practice between the two colonies. Two years later, when the New South Wales government tacitly acknowledged that many convicts had been illegally sentenced to penal stations by magistrates, the benefits of that disclosure were not extended to those mainland convicts who had been relocated south to Van Diemen’s land. Nor, importantly, were they extended to Vandemonian convicts whose sentences were equally suspect. This article considers how developments in New South Wales which served to sharpen thinking about the nature and role of colonial penal settlements passed virtually unnoticed in Van Diemen’s Land, allowing the local authorities to evade much larger questions about magisterial sentencing practices and the application of English criminal transportation law.

An Examination of the Practicability of Antony Duff and John Gardner’s Legal Moralism as a Basis of Criminalisation in Contemporary English Criminal Law

An Examination of the Practicability of Antony Duff and John Gardner’s Legal Moralism as a Basis of Criminalisation in Contemporary English Criminal Law

Is publicly funded criminal defence sustainable? Legal aid cuts, morale, retention and recruitment in the English criminal law professions

AbstractThis paper examines how continued reductions in fee levels for criminal legal aid work affect recruitment and retention in the English publicly funded criminal defence profession. Data from 29 qualitative interviews with English defence solicitors and barristers are analysed to explore the impact of these reductions on recruitment of new lawyers and retention of current lawyers. On the basis of these findings, also building on research conducted by lawyer professional associations, I argue that a combination of cuts to legal aid, the resulting working patterns and low morale has led to a position where the criminal defence profession, as we know it, is unsustainable.

Tracing a Thousand Years of Subjective Fault as the Fulcrum of Criminal Responsibility in Common Law

In this article I shall try to outline the history of subjective fault in English criminal law from the Anglo-Saxon period (roughly from 500 to 1066) to the time of Lambarde’s writings in the late 1570s. I do this to provide the historical foundations for some of the interpretations given to the law in this treatise. Furthermore, this historical understanding explains some of the modern approaches to criminalization which tend to blindly allow some serious wrongs to be treated as private wrongs rather than as crimes (i.e., privacy invasions, unfair dismissal for complaining about sexual harassment or bullying and so on), while at the same time criminalizing trivial wrongs that could be left to the parties to resolve.

A Philosophically Enriched Exegesis of Criminal Accessorial Liability

The central features of the English criminal law’s approach to the liability of principal offender are fairly clear, coherent, and settled. By contrast, the English law of criminal accessorial liability is notoriously lacking in these qualities. In this paper, I attempt to correct this imbalance by developing a philosophically enriched exegesis (and where appropriate, critique) of the English law on criminal accessorial liability, by reference to the structures of responsibility underpinning English criminal law. I take the relatively settled state of the English criminal law of principal liability to suggest that it is a good guide to these underlying structures. Therefore, using these rules (as adjusted for the differences in context between liability as a principal and liability as an accessory) as a template, I evaluate the English law of criminal accessorial liability.

Deception, mistake and non-disclosure: challenging the current approach to protecting sexual autonomy

English criminal law appears reluctant to criminalise deceptive sexual behaviour. It currently does so only in circumstances where the defendant has actively lied to the complainant regarding a fact recognised by law as crucial to consent. This restrictive approach arguably fails in many cases to protect the complainant’s sexual autonomy. The central argument presented in this article is that all forms of deception, including non-disclosure, a false promise and mistake as to a material fact, may distort the complainant’s decisionmaking process and undermine her ability to make an informed choice. A material fact is one which plays a significant role in a person’s decision to engage in sex. This article advocates that the law of rape should be widened to include mistake on the part of the complainant and non-disclosure by the defendant.

‘Hell has no flames, only windows that won’t open’: justice as escape in law and literature

ABSTRACTStruggles for justice are commonly articulated in literature and drama through metaphors of physical encumbrance (of being cramped, constrained, entangled and mired) and escape (to open landscapes and a view of the horizon and sky). What is less well known or observed is that this metaphorical opposition of encumbrance/escape plays an important role in legal language too. This article traces the appearance of this metaphor across some key moments in English criminal law in which injustice is conceptualized metaphorically in terms of being held up, kept down or back, etc. and that achieving a just outcome necessitates shaking off the encumbrance and getting free. Through a close reading of some important legal judgments, it shows how establishing this intersection between law and literature helps to advance our understanding of the plausibility and persuasiveness of legal language. The article applies this insight to producing a new reading of the Supreme Court’s recent reworking of dishonesty in Ivey v Genting Casinos [2017] SC 67, as well as a novel re-examination of established and apparently familiar authorities on recklessness and excuses to murder.

DISTORTED TERMINOLOGY: THE UK'S CLOSURE OF INVESTIGATIONS INTO ALLEGED TORTURE AND INHUMAN TREATMENT IN IRAQ

AbstractThe UK Ministry of Defence (MOD) has closed hundreds of investigations into alleged ill-treatment of detainees by British troops in Iraq. This article probes one reason given for the closure of these investigations: the assertion (without further evidence) that the allegations were ‘less serious’, ‘lower-level’ or in the ‘middle’ range of severity. These terms usually appear without reference to international law, and are once defined with reference to the English criminal law of assault, so that investigations were closed if the alleged treatment resulted in less than grievous bodily harm. The MOD's terminology is wrong-headed and conceptually underinclusive: it fails to grasp the threshold of inhuman or degrading treatment in international human rights law (IHRL), and largely neglects the investigatory obligations in IHRL, international humanitarian law (IHL) and international criminal law (ICL).