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Journal of Criminal Law
Number of Followers: 405  
 
  Full-text available via subscription Subscription journal
ISSN (Print) 0022-0183 - ISSN (Online) 1740-5580
Published by Sage Publications Homepage  [1090 journals]
  • Mercy Killing, Partial Defences and Charge Decisions: 50 Shades of Grey
    • Authors: Amanda Clough
      Pages: 211 - 227
      Abstract: The Journal of Criminal Law, Volume 84, Issue 3, Page 211-227, June 2020.
      The revolution of the partial defences to murder by the Coroners and Justice Act 2009 may have had a catastrophic impact on cases of mercy killing.1 While previously shoehorned into the diminished responsibility plea, the medicalisation of this defence may prevent such a ploy. However, a recent case has offered insight into the circumstances which may still result in a manslaughter conviction for mercy killers through a new avenue previously thought impermissible. This article will discuss the case and those similar, alongside charging decisions and just results. Mercy killing remains a grey area in the criminal justice system, but is there light at the end of the tunnel'
      Citation: The Journal of Criminal Law
      PubDate: 2020-06-03T08:46:43Z
      DOI: 10.1177/0022018320914687
      Issue No: Vol. 84, No. 3 (2020)
       
  • Gross Negligence Manslaughter Revisited: Time for a Change of
           Direction'
    • Authors: Cath Crosby
      Pages: 228 - 245
      Abstract: The Journal of Criminal Law, Volume 84, Issue 3, Page 228-245, June 2020.
      This article postulates that the House of Lords took a wrong turn in Adomako, missing the opportunity to revise the Caldwell/Lawrence guidance on recklessness, to produce a more appropriate determinant of criminal liability for inadvertent conduct causing death. It will be advocated that gross negligence manslaughter is replaced with reckless manslaughter utilising an objective capacity–based test. A proposal that encompasses both acts and omissions will be advanced which is theoretically underpinned by a hybrid theory of culpability. It will be contended that this hybrid theory best represents current approaches to criminally reckless conduct in practice and produces a morally apposite method of ascertaining criminal responsibility where the risk of death was not foreseen.
      Citation: The Journal of Criminal Law
      PubDate: 2020-06-03T08:46:43Z
      DOI: 10.1177/0022018320926468
      Issue No: Vol. 84, No. 3 (2020)
       
  • The Sentencing Guidelines: Reflection and Reform
    • Authors: Alec Samuels
      Pages: 246 - 248
      Abstract: The Journal of Criminal Law, Volume 84, Issue 3, Page 246-248, June 2020.
      A consideration of the current sentencing principles, the Sentencing Guidelines, and the difficulties that have emerged. A discussion of the changing sentencing principles, and the need for reform. Readers are urged to respond to the consultation.
      Citation: The Journal of Criminal Law
      PubDate: 2020-06-03T08:46:35Z
      DOI: 10.1177/0022018320926469
      Issue No: Vol. 84, No. 3 (2020)
       
  • Watching You, Watching Me: Liability for Voyeurism When the Voyeur Is also
           a Participant in a Private Act: R v Richards [2020] EWCA Crim 95
    • Authors: Tony Storey
      Pages: 259 - 262
      Abstract: The Journal of Criminal Law, Volume 84, Issue 3, Page 259-262, June 2020.

      Citation: The Journal of Criminal Law
      PubDate: 2020-06-03T08:46:43Z
      DOI: 10.1177/0022018320929515
      Issue No: Vol. 84, No. 3 (2020)
       
  • Clarifying the Applicable Test for Dishonesty and Modifying Stare Decisis,
           but Otherwise a Missed Opportunity: R v Barton; R v Booth [2020] EWCA Crim
           575
    • Authors: Mark Thomas, Samantha Pegg
      Abstract: The Journal of Criminal Law, Ahead of Print.

      Citation: The Journal of Criminal Law
      PubDate: 2020-08-04T09:12:07Z
      DOI: 10.1177/0022018320949302
       
  • Carrying a Flag in Support of a Proscribed Organisation: A Strict
           Liability Offence': Pwr and others v Director of Public Prosecutions
           [2020] EWHC 798 (Admin)
    • Authors: Neil Parpworth
      Abstract: The Journal of Criminal Law, Ahead of Print.

      Citation: The Journal of Criminal Law
      PubDate: 2020-07-29T11:20:31Z
      DOI: 10.1177/0022018320946886
       
  • Consent and the ‘Rough Sex’ Defence in Rape, Murder,
           Manslaughter and Gross Negligence
    • Authors: Susan SM Edwards
      Abstract: The Journal of Criminal Law, Ahead of Print.
      When women die at the hands of men, a not infrequent defence is that she consented to, or initiated, the beating, strangulation and penetration which contributed to her death. While strangulation has been a typical method of killing in male on female intimate partner homicide for many decades (‘thou little recognised), what has changed is men’s excuses for their violence. Excuses such as ‘She made me lose my self-control in an argument’ or ‘She was unfaithful to me’ are being supplanted by ‘She consented to rough sex’. Since the dead cannot speak, nor is there any property in the dead, the defendant’s tactic of impugning the deceased’s character cannot be easily rebutted, and he, while maligning her in this way, may profit from a lighter sentence. Law reformers, politicians, academics and activists are pressing for legal reform to shut down this misogyny. On 16 June 2020, during the Public Committee stage of the Domestic Abuse Bill, cls 4 and 5 were approved. Clause 4, ‘No defence for consent to death’, provides ‘(1) If a person (“A”) wounds, assaults or asphyxiates another person (“B”) to whom they are personally connected as defined in section 2 of this Act causing death, it is not a defence to a prosecution that B consented to the infliction of injury. (2) Subsection (1) applies whether or not the death occurred in the course of a sadomasochistic encounter’. Clause 5, ‘No defence for consent to injury’, provides ‘(1) If a person (“A”) wounds, assaults or asphyxiates another person (“B”) to whom they are personally connected as defined in section 2 of this Act causing actual bodily harm or more serious injury, it is not a defence to a prosecution that B consented to the infliction of injury or asphyxiation. (2) Subsection (1) applies whether or not the actual bodily harm, non-fatal strangulation, or more serious injury occurred in the course of a sadomasochistic encounter’. These two new clauses would prevent the alleged consent of the victim from being used as a defence to a prosecution in intimate partner homicides and non-fatal assault which result in s 47 assault occasioning actual bodily harm, Offences Against the Person Act 1861, or more serious injury. Additional new clauses including, proposing that consent of the Director of Public Prosecutions would be required, in the case of death, to accept a charge to anything less than murder (cl 6); the requirement to consult with the family of the deceased regarding charges (cl 7); the prohibition of reference to sexual history of the deceased in domestic homicide trials (cl 10); anonymity of victims of domestic homicide (cl 11); and anonymity of domestic violence survivors (cl 14); the Parliamentary Under-Secretary of State for Justice (Alex Chalk), while sympathetic, said there were difficulties with the clauses in their present form. Of the proposal to make non-fatal strangulation (cl 8) a standalone offence, he considered that ‘creating a new offence could limit the circumstances covered, and create additional evidential burdens’. These motions reflect the several debates since October 2019, when MPs, Harriet Harman and Mark Garnier, introduced the ‘No defence for consent’ amendment to the second reading of the Domestic Abuse Bill. Since men also plead the ‘sexual consent defence’ on ‘first dates’, which may fall outside the definition of ‘domestic abuse’ as set out in the Bill, a loophole also recognised by Alex Chalk at the Public Committee stage, 16 June 2020, this too will be addressed. The murder of Grace Millane, in New Zealand in 2018, murdered on a ‘first date’ provides such an example.
      Citation: The Journal of Criminal Law
      PubDate: 2020-07-24T08:54:52Z
      DOI: 10.1177/0022018320943056
       
  • A Lacuna in the Criminal Law’s Protection of Antenatal Life
    • Authors: James P King, Philip Morrison
      Abstract: The Journal of Criminal Law, Ahead of Print.
      The criminal law protects antenatal and postnatal life primarily through three offences: murder, child destruction and the prohibition on procuring a miscarriage. However, recent advances in medical science have rendered this framework under-inclusive and exposed gaps in the law’s protection. By setting out some of these scientific advancements, this article explores these gaps, considers how they have arisen and proposes a solution.
      Citation: The Journal of Criminal Law
      PubDate: 2020-07-20T12:09:40Z
      DOI: 10.1177/0022018320943038
       
  • Domestic Abuse, Suicide and Liability for Manslaughter: In Pursuit of
           Justice for Victims
    • Authors: Anne Lodge
      Abstract: The Journal of Criminal Law, Ahead of Print.
      There is significant debate about the attribution of criminal responsibility for involuntary manslaughter to a defendant who has subjected a victim to a protracted campaign of emotional abuse (falling short of psychiatric injury), where the victim has consequently taken their own life. By virtue of it having been subjected to the most comprehensive judicial and academic scrutiny in this context, the primary focus of this discussion is on the applicability of the unlawful act manslaughter offence to the circumstances described above. The offence requires proof that the victim was placed at risk of some harm by virtue of the defendant’s criminal conduct and that the abusive conduct significantly contributed to the victim’s death. The accused does not have to foresee or intend the victim’s death, and while the imposition of criminal responsibility for serious homicide offences in cases where the defendant displays no subjective advertence to the risk of death has long been controversial, it is nonetheless well established in English and Welsh criminal law. Therefore, assuming satisfaction of the requisite offence elements, there is arguably no principled reason to deny the extension of liability to domestic abuse-induced suicide cases. It is proposed that a more progressive and transparent approach to the interpretation of the unlawful act manslaughter offence requirements provides the most appropriate means of securing prosecutions in deserving cases, although alternative options for the imposition of liability—the offence of gross negligence manslaughter and the creation of a context-specific homicide offence—are also acknowledged. It is argued that the constructive manslaughter offence label reflects both the moral culpability of the perpetrator’s patterned and invasive conduct and the exceptional gravity of the harm caused by non-physical domestic abuse.
      Citation: The Journal of Criminal Law
      PubDate: 2020-07-07T10:57:43Z
      DOI: 10.1177/0022018320940127
       
  • Deprivation of Liberty and the Carltona Principle: R v Adams [2020] UKSC
           19
    • Authors: Neil Parpworth
      Abstract: The Journal of Criminal Law, Ahead of Print.

      Citation: The Journal of Criminal Law
      PubDate: 2020-07-06T11:05:32Z
      DOI: 10.1177/0022018320939815
       
  • Getting Away With Murder' A Review of the ‘Rough Sex
           Defence’
    • Authors: Hannah Bows, Jonathan Herring
      Abstract: The Journal of Criminal Law, Ahead of Print.
      Several high-profile murders of women killed during alleged consensual sex ‘gone wrong’ have led to widespread calls for reform to prevent the use of what has been termed the ‘rough sex defence’. Concerns about the use of this ‘defence’ are located within broader concerns about the high rates of domestic abuse and fatal violence against women. Lobbyists, campaign groups and members of parliament have drawn attention to the increase in this ‘defence’ featuring in criminal cases in England and Wales and have consequently proposed two amendments to the Domestic Abuse Bill (2020), namely a statutory prohibition of consent as a defence to actual bodily or more serious harm, including death, and introducing additional scrutiny in charging decisions by requiring the Director of Public Prosecutions to authorise charges of manslaughter (rather than murder) in cases involving rough sex/sadomasochism (SM). This article provides a critical analysis of the use of rough sex/SM in female homicide cases and proposed legal reforms and concludes that the proposed reforms would fail to capture many of the ‘rough sex’ cases that have come before the courts in recent years and may not have the intended effect. We consider potential alternative approaches.
      Citation: The Journal of Criminal Law
      PubDate: 2020-06-29T08:25:07Z
      DOI: 10.1177/0022018320936777
       
  • ‘A General Description’: Incorporating Battery Into a Generic Charge
           of Common Assault: R (on the application of Ward) v Black Country
           Magistrates’ Court [2020] EWHC 680 (Admin)
    • Authors: Mark Thomas
      Abstract: The Journal of Criminal Law, Ahead of Print.

      Citation: The Journal of Criminal Law
      PubDate: 2020-05-05T11:46:06Z
      DOI: 10.1177/0022018320924132
       
  • Is There a ‘Practical Benefit’ to an Extended Sentence' R v Baker
           & Richards [2020] EWCA Crim 176
    • Authors: Andrew Beetham
      Abstract: The Journal of Criminal Law, Ahead of Print.

      Citation: The Journal of Criminal Law
      PubDate: 2020-05-05T11:45:05Z
      DOI: 10.1177/0022018320923784
       
  • Is It Really a Risk' The Parameters of the Criminalisation of the
           Sexual Transmission/Exposure to HIV
    • Authors: David Hughes
      First page: 191
      Abstract: The Journal of Criminal Law, Ahead of Print.
      This article considers whether there is a rationale for criminalisation of the sexual transmission and exposure to HIV by reviewing the harm principle. The article then provides a comparative jurisdictional analysis of transmission and exposure in three particularised jurisdictions: England, Canada and the US. It will be established that few jurisdictions truly consider the risk of serious harm, and thus lack a theoretical foundation for criminalisation. A comparison of relational judicial precepts will follow the discussion of extant law in each country. The final part of the article proposes a bespoke new legislative framework that will criminalise certain types of transmission and exposure.
      Citation: The Journal of Criminal Law
      PubDate: 2020-03-10T11:04:05Z
      DOI: 10.1177/0022018320908668
       
  • ‘Expert Shopping’: Appeals Adducing Fresh Evidence in Diminished
           Responsibility Cases: R v Foy [2020] EWCA Crim 270
    • Authors: Mark Thomas
      First page: 249
      Abstract: The Journal of Criminal Law, Ahead of Print.

      Citation: The Journal of Criminal Law
      PubDate: 2020-04-20T10:42:44Z
      DOI: 10.1177/0022018320921053
       
  • Sentencing Those Who Assault Emergency Workers: A Guideline-influenced
           Approach: R v Whelan [2020] EWCA Crim 195
    • Authors: Neil Parpworth
      First page: 255
      Abstract: The Journal of Criminal Law, Ahead of Print.

      Citation: The Journal of Criminal Law
      PubDate: 2020-05-04T10:31:47Z
      DOI: 10.1177/0022018320924185
       
  • The Cost of Open Conditions: R (Samuel) v Parole Board [2020] EWHC 42
           (Admin)
    • Authors: Andrew Beetham
      First page: 263
      Abstract: The Journal of Criminal Law, Ahead of Print.

      Citation: The Journal of Criminal Law
      PubDate: 2020-04-17T09:52:58Z
      DOI: 10.1177/0022018320920993
       
  • The Unconstitutional Nature of the Criminalisation of the Purchase of Sex
           in Canada: R v Anwar & Harvey 2020 ONCJ 103
    • Authors: Zach Leggett
      First page: 266
      Abstract: The Journal of Criminal Law, Ahead of Print.

      Citation: The Journal of Criminal Law
      PubDate: 2020-05-07T10:52:03Z
      DOI: 10.1177/0022018320925010
       
 
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