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Journal of Criminal Law
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ISSN (Print) 0022-0183 - ISSN (Online) 1740-5580
Published by Sage Publications Homepage  [1087 journals]
  • Defining the Line Between Victim and Offender: Trafficked Victims and
           Prosecutorial Discretion: R v O; R v N [2019] EWCA Crim 752
    • Pages: 410 - 415
      Abstract: The Journal of Criminal Law, Volume 83, Issue 5, Page 410-415, October 2019.

      Citation: The Journal of Criminal Law
      PubDate: 2019-10-21T10:01:27Z
      DOI: 10.1177/0022018319878524
       
  • Powers of Attorney and ‘Lack of Capacity’ under the Mental Capacity
           Act 2005: A Narrowing of the s 44 Offence' R v Kurtz [2018] EWCA Crim
           2743
    • Authors: John Taggart
      Abstract: The Journal of Criminal Law, Ahead of Print.
      The Mental Capacity Act (MCA) 2005 marked a turning point in the statutory rights of people who may lack capacity. The legislation sought to place the individual at the centre of decision-making and was viewed as having the potential to give people a voice and an opportunity to be heard. Section 44 of the legislation introduced a criminal offence of ‘ill treatment or neglect’ of a person who lacks capacity. The maximum sentence of five years’ imprisonment (or a fine or both) was intended to underly the seriousness of the offence, especially considering the vulnerability of potential victims. Interpreting s 44 has, however, proved a real challenge and the courts have acknowledged the difficulties which its drafting presents. The recent Court of Appeal (COA) decision in R v Kurtz is illustrative of the kind of issue that the statute has generated. The court was tasked with deciding whether proving a lack of capacity on the part of the victim is required when the donee of a power of attorney is charged with the offence under s 44(1)(b). This article considers Kurtz within the context of the MCA 2005 and notes three related COA decisions. It examines what impact Kurtz may have on future prosecutions brought under s 44(1)(b) and considers the future of the s 44 criminal charge more generally.
      Citation: The Journal of Criminal Law
      PubDate: 2019-10-21T03:06:57Z
      DOI: 10.1177/0022018319883146
       
  • The New Test for Dishonesty in Criminal Law—Lessons From the Courts
           of Equity'
    • Authors: Zach Leggett
      Abstract: The Journal of Criminal Law, Ahead of Print.
      The Supreme Court decision in Ivey v Genting Casinos rejected the two-stage test for dishonesty set out in R v Ghosh and replaced it with a single, objective test which transcends both criminal and civil law. This article asks whether it was correct to create a single test for dishonesty and in doing so, what role will subjectivity now play in the criminal law’s application of what is considered dishonest behaviour. Historically, the civil courts have beset with confusion as to the role of subjectivity in the test for dishonesty in the light of Royal Brunei Airlines v Tan. The author will consider whether lessons can be learned from the civil courts and whether similar problems will trouble criminal law, particularly in the light of criticism of the Ivey test and a preference, by some, for subjectivity to play a greater role in criminal liability for theft and other dishonesty offences.
      Citation: The Journal of Criminal Law
      PubDate: 2019-10-21T03:06:18Z
      DOI: 10.1177/0022018319879847
       
  • The Reasonable Victim of Modern Slavery: R v N [2019] EWCA Crim 984
    • Authors: Bethany Simpson
      Abstract: The Journal of Criminal Law, Ahead of Print.

      Citation: The Journal of Criminal Law
      PubDate: 2019-10-11T04:44:08Z
      DOI: 10.1177/0022018319881875
       
  • DNA Evidence Alone as a Case to Answer: Bech, R v Court of Appeal [2018]
           EWCA Crim 448
    • Authors: Karen Richmond
      Abstract: The Journal of Criminal Law, Ahead of Print.

      Citation: The Journal of Criminal Law
      PubDate: 2019-10-11T04:43:28Z
      DOI: 10.1177/0022018319881826
       
  • Treason Versus Outraging Public Decency: Over-Criminalisation and
           Terrorism Panics
    • Authors: Dennis J. Baker
      Abstract: The Journal of Criminal Law, Ahead of Print.
      In this article, I shall try to outline some grounds for resisting enacting new treason-type offences. It shall be argued that an offence of treason based on the wrongness of ‘betrayal’ would add nothing extra to the protection that is already provided for in a plethora of terrorism offences that cover preparation, inchoate acts concerning terrorism as well as consummated terrorism attacks. I shall try to demonstrate that what supplies the normative case for criminalisation in these sorts of cases is culpability plus harm, not betrayal in itself. Betrayal is a minor aggravating feature that can be dealt with by sentencing judges. I also argue that there is no evidence that the sentences available in our terrorism legislation are not ample to deal with those who go abroad to fight in armed conflicts involving British forces. Finally, it is argued that while the common law offence of outraging public decency might plug gaps where returning Islamic State of Iraq and Syria brides make outrageous comments, it should be used only as a last resort when the speech involves hate speech of a serous kind.
      Citation: The Journal of Criminal Law
      PubDate: 2019-10-10T04:28:50Z
      DOI: 10.1177/0022018319879846
       
  • De-Criminalising Adolescent to Parent Violence Under s 76 Serious Crime
           Act 2015 (c.9)
    • Authors: Vanessa Bettinson, Christina Quinlan
      Abstract: The Journal of Criminal Law, Ahead of Print.
      This article questions the appropriateness of including adolescent to parent violence (APV) within the elements of a criminal offence designed to criminalise domestic violence and abuse. The offence, s 76 Serious Crime Act 2015, prohibits controlling and coercive behaviours towards a person personally connected to the defendant. This spans ongoing intimate relationships and a wide range of family relationships. The authors conducted a small-scale research study that looked at practitioners’ understandings of APV and found that many cases of APV could satisfy the s 76 offence. The article examines the correlation between the concepts of coercive control and APV, noting that there are significant differences that justify treating adolescent-perpetrators of APV differently to adult-perpetrators of intimate partner coercive control in the criminal law. These factors concern the unique vulnerabilities of both the parent-victim and the adolescent-perpetrator in APV, and human rights law requires the equal protection of both parties on the basis of their vulnerability.
      Citation: The Journal of Criminal Law
      PubDate: 2019-10-10T04:27:50Z
      DOI: 10.1177/0022018319879845
       
  • Betrayal of Trust in Medical Manslaughter
    • Authors: Rupert Wheeler, Robert Wheeler
      Abstract: The Journal of Criminal Law, Ahead of Print.
      Despite efforts spanning 200 years, judges are yet to find a form of words that can explain adequately the meaning of ‘gross’ to a jury trying gross negligence medical manslaughter. Accordingly, those assessing whether to prosecute the crime are equally bewildered unable to calculate the likelihood of conviction. Jurors tasked with determining a defendant’s guilt are faced with a lack of clarity that often fails to render just results. We are led to conclude that an entirely different formula is required for assessing whether a defendant is guilty of manslaughter in the medical context. We propose that, rather than requiring the prosecution to prove that the defendant’s actions were truly, exceptionally bad (as currently required for gross negligence manslaughter), a more appropriate test would be whether there has been a betrayal of trust by the doctor towards his patient, resulting in death. This is akin to breaching a fiduciary duty. Through applying the test to the facts of well-known cases, we argue that the ‘betrayal of trust’ test would be easier for juries, defendants and practitioners to understand. Furthermore, the proposed test avoids the long-standing difficulty of circularity that exists in the current law and is able to separate more effectively the distinction between a doctor’s personal failings and the failings of the system. We conclude that though the ‘betrayal of trust’ test may result in fewer prosecutions, the corresponding impact on the medical profession would ultimately be beneficial to society.
      Citation: The Journal of Criminal Law
      PubDate: 2019-09-30T02:45:31Z
      DOI: 10.1177/0022018319877785
       
  • Recognising the Role of the Emotion of Fear in Offences and Defences
    • Authors: Susan SM Edwards
      Abstract: The Journal of Criminal Law, Ahead of Print.
      Anger, its part in human conduct and in crime commission has been much discussed and accorded a privileged status within the law, while the role of fear has been less considered. Notwithstanding, fear and related emotional states have received some recognition as intrinsic elements of the perpetrator’s object integral to the actus reus of certain offences and relevant to the defendant’s mens rea of some defences. The harm caused by deliberately or negligently instilling fear in another is inconsistently considered in law as is its impact on criminal responsibility and mens rea. Fear has been recently acknowledged as a permissible cause of loss of self-control in a partial defence to murder (Coroners and Justice Act 2009 s 55(3)). It remains a contested emotion and as with anger the male experience of what circumstances trigger fear predominates.
      Citation: The Journal of Criminal Law
      PubDate: 2019-09-30T02:45:11Z
      DOI: 10.1177/0022018319877784
       
  • Possessing Extreme Pornography: Policing, Prosecutions and the Need for
           Reform
    • Authors: Clare McGlynn, Hannah Bows
      Abstract: The Journal of Criminal Law, Ahead of Print.
      The law criminalising the possession of extreme pornography, first enacted in 2008 and amended to include rape pornography in 2015, continues to generate considerable controversy and calls for reform. In order to inform these ongoing discussions, we undertook a study to find out information about who is being charged with extreme pornography offences and their characteristics in terms of gender, age and ethnicity, as well as data on the specific type of pornography forming the subject-matter of those charges. Utilising freedom of information requests, our study provides valuable new information to help inform debates over the policing of extreme pornography across England and Wales. Overall, we found that the vast majority of those charged were white men across all age groups; that bestiality images formed the most common basis for charging and that, in respect of the data provided, the majority of charges were brought together with other sexual offences.
      Citation: The Journal of Criminal Law
      PubDate: 2019-09-26T03:08:39Z
      DOI: 10.1177/0022018319877783
       
  • The Safety of Convictions in the Court of Appeal: Fresh Evidence in the
           Criminal Division Through an Empirical Lens
    • Authors: Paul Dargue
      Abstract: The Journal of Criminal Law, Ahead of Print.
      An academic consensus exists that the England and Wales Court of Appeal (Criminal Division) determines appeals against conviction in a narrow or an unduly restrictive manner. This consensus has developed through observation and empirical study of the Court over several decades. It is said in particular that the Court adopts a narrow approach when considering appeals which raise primarily factual issues, especially fresh evidence or ‘lurking doubt’ appeals. This article discusses two new empirical studies of the Court, one of which is a replication of Roberts’s recent study which featured in the Journal of Criminal Law in 2017. The empirical evidence in support of the allegation of a restrictive approach is explored in this article from a theoretical and methodological perspective. It is argued that the question of the Court’s approach is difficult to study empirically, and so suggestions of empirical support for a restrictive approach overreach the limits of the methods employed. This is not to suggest that the Court of Appeal does not make mistakes, nor even is it to suggest that the Court is not narrow or unduly restrictive. Rather, it is suggested that the empirical findings offered as evidence of the restrictive approach, which gives rise to the consensus position, are weak and should be treated with caution, especially in the light of the author’s two new empirical studies of the Court.
      Citation: The Journal of Criminal Law
      PubDate: 2019-09-23T03:13:36Z
      DOI: 10.1177/0022018319877982
       
  • Power Imbalance: Adult Victims in the Criminal Justice System. Special
           Edition—Part 2
    • Authors: Nicola Wake, Alan Reed
      First page: 317
      Abstract: The Journal of Criminal Law, Ahead of Print.

      Citation: The Journal of Criminal Law
      PubDate: 2019-09-30T02:44:11Z
      DOI: 10.1177/0022018319879011
       
  • Two Worlds Apart: A Comparative Analysis of the Effectiveness of Domestic
           Abuse Law and Policy in England and Wales and the Russian Federation
    • Authors: Kayliegh Richardson, Ana Speed
      First page: 320
      Abstract: The Journal of Criminal Law, Ahead of Print.
      In 2015, s 76 of the Serious Crime Act 2015 introduced the new criminal offence of ‘controlling or coercive behaviour in an intimate or family relationship’. This is just one of many steps the UK government have taken in recent years to acknowledge the different forms of domestic abuse and power imbalances that can be present in intimate relationships. In contrast, in February 2017, the Russian government passed an amendment to the Russian Criminal Code to decriminalise some forms of assault, a step which many human rights activists have opposed. This article will compare the seemingly dichotomous approaches to domestic abuse adopted by England and Wales and Russia and will examine the effectiveness of both approaches in deterring domestic violence, providing adequate support for victims and meeting state obligations under international law. There has been extensive commentary on the approach to domestic abuse in England, the USA and Australia. In comparison, consideration of the approach in the Russian Federation is limited. This is in part due to the approach taken in Russia to dealing with domestic abuse as a private issue and the associated lack of available data. This article seeks to go behind closed doors to explore the Russian approach to tackling domestic abuse in a way that it has not previously been considered.
      Citation: The Journal of Criminal Law
      PubDate: 2019-06-25T06:37:37Z
      DOI: 10.1177/0022018319858478
       
  • Innocent Victims and Vulnerable Offenders: Defending Impaired Adults Who
           Kill Children
    • Authors: Brenda Midson
      First page: 352
      Abstract: The Journal of Criminal Law, Ahead of Print.
      There are few societies in which child abuse is not a serious issue, with homicide being the extreme form of such victimisation. Child homicide occurs in a wide array of circumstances but there is enough anecdotal evidence to suggest that many offenders who kill children are suffering from sometimes quite acute mental distress. There may also be other factors impacting on an offender’s ability to think rationally, which may not amount to any recognised disorder. While it is imperative that we prosecute and prevent child homicide, in doing so we must avoid overlooking the realities of other vulnerable people. In rejecting a binary approach to victims and offenders, this article argues that sometimes offenders may also be vulnerable due to an impaired ability to reason or to act in a truly voluntary way. New Zealand has repealed the defence of provocation and, apart from infanticide, offers no mitigation by way of diminished responsibility. Offenders who commit child homicide, but who do not meet the legal definition of insanity, will be liable for murder even though their capacity may have been impaired or overborne by circumstances. While, in this regard, New Zealand law is particularly deficient, there is an argument that other jurisdictions also fail to adequately respond to vulnerable offenders who kill children. This article seeks to outline the failures in existing legal frameworks to assign legal responsibility for these vulnerable offenders in a way that corresponds with their moral culpability. The article will then identify and evaluate proposals for reform. As Ulbrick and others observe, in the context of arguments about defensive homicide and mentally impaired defendants, it is critical that we ‘advocate for a greater range of legal responses to cover the nuance and complexities of lethal violence’ (Madeleine Ulbrick, Asher Flynn and Danielle Tyson ‘The Abolition of Defensive Homicide: A Step Towards Populist Punitivism at the Expense of Mentally Impaired Offenders’ (2016) 40 Melb Univ Law Rev 324, 330).
      Citation: The Journal of Criminal Law
      PubDate: 2019-07-12T03:11:34Z
      DOI: 10.1177/0022018319858505
       
  • Preventing the Criminalisation of Children Who Have Been Victims of
           Group-Based Sexual Exploitation Involving Grooming Tactics—Understanding
           Child Sexual Exploitation as Enslavement
    • Authors: Raymond Arthur, Lisa Down
      First page: 370
      Abstract: The Journal of Criminal Law, Ahead of Print.
      Recently the United Kingdom has been beset by a moral panic concerning gangs grooming girls for sexual exploitation. This moral panic derived from a number of well-publicised cases, the most infamous of which took place in Rochdale, Greater Manchester. Grooming children has been criminalised by section 15 of the Sexual Offences Act 2003. Adult groomers face up to two years in prison and being automatically placed on the sex offenders register. The Act is intended to protect children from abuse and exploitation. However child victims who have been abused by gangs and coerced into offending may still be liable for prosecution for any offending they have engaged in. Fear of being prosecuted may stop victims coming forward and prevent survivors from moving on with their lives. Such children are often perceived as having made a choice and criminalised. The Modern Slavery Act 2015 was designed to combat modern slavery. Recognising child sexual exploitation as a form of slavery, could lead to victims being protected rather than criminalised themselves for these offences. This article will examine how the law can be reformulated to ensure protection of children from sexual exploitation and also ensuring children are not charged for committing crimes whilst being groomed or coerced. The article will consider the limitation of the statutory defence available under section 45 of the Modern Slavery Act 2015.
      Citation: The Journal of Criminal Law
      PubDate: 2019-09-24T02:46:40Z
      DOI: 10.1177/0022018319879013
       
  • Battered Woman Syndrome, Diminished Responsibility and Women Who Kill:
           Insights from Scottish Case Law
    • Authors: Rachel McPherson
      First page: 381
      Abstract: The Journal of Criminal Law, Ahead of Print.
      Using Scotland as a case study, this article maps the development of Battered Woman Syndrome in law. It looks to the potential space for development that has been created by the recent case of Graham v HM Advocate, concluding that such a more would be an important step and one with significant implications for domestic abuse policy and the treatment of female accused more widely.
      Citation: The Journal of Criminal Law
      PubDate: 2019-06-25T06:37:36Z
      DOI: 10.1177/0022018319858506
       
  • Protecting Victims of Human Trafficking from Liability: An Evaluation of
           Section 45 of the Modern Slavery Act
    • Authors: Julia Muraszkiewicz
      First page: 394
      Abstract: The Journal of Criminal Law, Ahead of Print.
      The evolution of protective measures offered to victims of human trafficking at a European regional level has begun to have an impact at a national level. In this article, the author explores a provision intended to guard victims of human trafficking, who have been compelled to commit crimes, against prosecution and punishment. The provision under scrutiny is the statutory defence found in s 45 of the Modern Slavery Act, 2015 (England and Wales). The article draws on the obligations spelt out in regional law (the 2005 Council of Europe Convention on Action Against Trafficking in Human Beings and Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims) and asks if England and Wales fulfil their duties with respect to protecting trafficked persons from being prosecuted and punished.
      Citation: The Journal of Criminal Law
      PubDate: 2019-06-20T03:15:25Z
      DOI: 10.1177/0022018319857497
       
  • Diminished Responsibility and Unanimous Psychiatric Evidence: R v Hussain
           (Imran) [2019] EWCA Crim 666 (2 April 2019)
    • Authors: Beatrice Krebs
      First page: 406
      Abstract: The Journal of Criminal Law, Ahead of Print.

      Citation: The Journal of Criminal Law
      PubDate: 2019-09-19T03:48:36Z
      DOI: 10.1177/0022018319876709
       
  • ‘Sexual Gratification’ and the Presence of a Child: R v B & L [2018]
           EWCA Crim 1439; [2019] 1 WLR 3177
    • Authors: Andrew Beetham
      First page: 416
      Abstract: The Journal of Criminal Law, Ahead of Print.

      Citation: The Journal of Criminal Law
      PubDate: 2019-09-19T03:48:55Z
      DOI: 10.1177/0022018319878030
       
  • The Test for ‘Substantial Injustice’ After Jogee and Johnson: R v
           Towers and Another [2019] EWCA 198 (Crim)
    • Authors: Zach Leggett
      First page: 420
      Abstract: The Journal of Criminal Law, Ahead of Print.

      Citation: The Journal of Criminal Law
      PubDate: 2019-09-25T03:16:20Z
      DOI: 10.1177/0022018319878905
       
  • ‘Interactive Communication’ and Driving—Does It Matter Whether It Is
           a Mobile or Camera' Director of Public Prosecutions v Ramsey Barreto
           [2019] EWHC 2044 (Admin)
    • Authors: Adam Snow
      First page: 425
      Abstract: The Journal of Criminal Law, Ahead of Print.

      Citation: The Journal of Criminal Law
      PubDate: 2019-09-10T03:11:45Z
      DOI: 10.1177/0022018319875527
       
 
 
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