Justice revision table

how is the law on assault fair/just

where words negate assault, it is fair for D's to face no conviction (Tuberville v Savage)

how is the law on assault unfair/unjust

where the D must cause the V to apprehend immediate unlawful force (Smith) to satisfy the AR, it would be unjust to hold D responsible if this was not the case

how is battery unfair/unjust

- Slightest touch requirement (Thomas) doesn't achieve justice in situations where the D may have simply been reckless about applying force

- Battery can be committed through very minor contact which could criminalise trivial behaviour and be seen as unjust

how is battery fair/just

- holding D responsible where application of unlawful force without consent is present (Wilcock)

how is s.47 and s.20 (constructive intent) unfair/unjust

- D can be held responsible for consequences they do not foresee so could go against the concept of justice

how is s.47 and s.20 (constructive intent) fair/just

- favours V as justice achieved for the harm they have suffered (Savage/Parmenter)

how is s.18 unfair/unjust

- D may be charged where they have injuured police officer when resisting or preventing arrest even though they were not aiming to cause GBH but to instead escape law enforcement and ergo unjust

how is s.18 fair/just

- helps to protect police

what theories link to non-fatals

- Corrective Justice (Aristotle)

- Utilitarianism (Bentham)

how does corrective justice link to non-fatals

corrective justice in terms of scales of justice so if someone/state suffers due to the actions of someone else, there needs to be some correction to make up for it to balance the scales

how does utilitatianism link to non fatals

criminalising minor force promotes social order and orevents escalation of violence which is beneficial (having utility) for the majority

how is murder unfair/unjust

- D can be convicted for murder merely by proving implied malice (GBH intent - Moloney) and can be argued as being too wide/not achieving justice as the D did not have intent to kill

what theories of justice link to murder

- Corrective Justice (Aristotle)

- Utilitarianism (Bentham)

how does corrective justice link to murder

- focuses on serious harm that has been caused ensuring acccountability of the D

how does utilitarianism link to murder

- justified as it deters serious violence and protects society benefitting the majority

what do we look at for LOC in relation to justice

- Anger trigger = s.55(4)(a) & s.55(4)(b) CJA 2009

- Sexual infidelity = s.55(6)(c) CJA 2009

how is the sections on anger trigger fair/just

- high threshold for proving the anger trigger, must be proved objectively that "thing said or done is of an extremely grave character" and therefore capable of giving D a justifiable sense of being "seriously wronged" in order to prove this trigger = sexual abuse seen as satisfying this element (Sands)

- achieves justice as only right D are given opportunity to reduce murder to manslaughter and not for trivial things said or done such as mere mocking and taughting

how is sections on sexual infidelity fair/just

- sexual infidelity is disregarded and cannot amount to a valid qualifying trigger so achieves justice as it now eliminates crimes of passion and any gender bias in law

how is sections on sexual infidelity unfair/unjust

- CA decision in Clinton where sexual infidelity plus other things done or said could still allow sexual infidelity as it would be a valid consideration when proving circumstances of D in s.54(1)(c)

- state of uncertainty and could be seen as unjust

how is DR fair/just

- where D has AMF at time of killing which arose from a recognised medical condition/provides an explanation for their conduct in killing law achieves justice by allowing D to be convicted on a lesser charge

- shows law taking into account variety of conditions that may affect ones mental state and indicates the law is keen to promote justice for such D

- if D is voluntarily intoxicated it is not enough on its own which is seen as fair as D shouldn't be afforded the defence on those grounds (Dowds/Dietschmann)

what theories link to LOC and DR

- Utilitarianism (Bentham)

- Social Justice (Rawls)

how does utilitarianism link to LOC and DR

- reducing murder to manslaughter in appropriate case, law avoids overly harsh punishment allowing appropriate sentencing

how does social justice link to LOC and DR

- DR reduces liability where a persons AMF is substantially impaired

- reflects idea that society shold operate behind a veil or ignorance, not knwoing who suffers from conditions or not but importantly protects the most vulnerable

- ensures fairness for those with reduced capacity

how is UAM unfair/unjust

- D can be convicted evenm where they do not foresee death - having MR of the unlawful criminal act is enough

- D does not need to foresee risk of someone harm (Church)

- can be seen as unfair

how is GNM fair/just

- D grossly negligent where they shpwed disregard for life and safety of the V despite an objective risk of death (Misra)

- fair and just for D to face a manslaughter charge (Bateman)

which theories link to UAM and GNM

- utilitarianism (Bentham)

- corrective justice (Arsitotle)

how does utilitarianism link to UAM/GNM

- justified as it deters serious violence and protects society thus benefitting the majority

how does corrective justice link to UAM and GNM

- focuses on serious harm that has been cause (death) ensuring accountability of the D

how is theft fair/just

- elements such as dishonesty is assed by objective test (Ivey) promotes consistency as D is judged against standards of ordinary honest people

how is theft unfair/unjust

- property can be stolen even with consent or a voluntary gift (Hinks)

- property can also be stolen even if it is abandoned and the ownder did not know it was there (Woodman - metal in disused factory)

how is robbery fair/just

- recognises robbery is more serious than theft due to use of force or threat of force/violence meaning a heavier sentence

how is robbery unfair/unjust

- slightest force can count as robbery (nudging, snatching) which carries heavy penalty equivalent to an armed robbery

what theories link to theft/robbery

- utilitarianism (Bentham)

how does utilitarianism link to theft and robbery

- strong punishment deters violent crime, protecting public saefty promoting greater good

what do we look at in regard to attempts and justice

- more than merely preparatory

- comission of the impossible

how is more than merely preparatory (attempts) unfair/unjust

- D had to have begun the act of the actual offence to be convicted of an attempt rather than convicting due to planning

- no definition for more than merely preparatory so lack of clarity creates inconsistency

how is comission of the impossible (attempts) unfair/unjust

- unfair to D as even if they think they are doing something and go ahead to do it and realise they are not actually doing it they will be convicted

how is attempts fair/just

- generally achieves justice as it allows the criminal law to intervene before harm is fully caused protecting society from dangerous individuals

what theories links to attempts

- utilitarianism (Bentham)

how does utilitarianism link to attempts

- achieves justice by preventing harm before it occurs and protects society from dangerous conduct

how is intoxication fair/just

- voluntary intoxication is generally not a defence to crimes of basic intent so is fair as D who choose to become intoxicated and should face responsibility for risks arising from that decision

- prolonged substance abusers should still be treated with the same mentality as a normal D since they would have adapted their capacity to functional "normally" even when on substances but should recieve mandated rehab instead of imprisonment

how is intoxication unfair/unjust

- distinction between basic and specific intent offences can create unjust outcomes (Lipman - intox reduced liability for murder to manslaughter where intent cannot be said to have formed despite the D still causing death)

what theories link to intoxication

- Utilitarianism (Bentham)

- Corrective Justice (Aristotle)

- Social Justice (Rawls)

how does utilitarianism link to intoxication

- strongly reflected as law protects society and discourages reckless intoxication

how does corrective justice link to intoxication

- D held accountable for harm caused whilst intoxicated

how does social justice link to intoxication

- law may fail to achieve fairness where involuntary intoxication D are still convicted

how is insanity fair/just

- in relation to hyperglycemia: if a D did not have access to their insulin at the time or has any symptom affecting their brain fog/forgetfulness recognised by their diabetes they should be able to access this defence

- attempts to achieve justice by recognising those that suffer from "disease of the mind" may lack true moral responsibility (M'naughten rules -> D avoids criminal liabilit when they dont understand nature/wrong of their actions)

how is insanity unjust/unfair

- in relation to hyperglycemia: if D did not take their insulin by choice or other situations in their control it is unfair for them to access this defence

- criticised for being outdated and medically innacurate -> terms as "insane" and "disease of mind" are stigmstising and broad

- conditions such as epilepsy and diabetes have been classified as insanity despite not fitting ordinary understanding of mental illness

which theories link to insanity

- Social justice (Rawls)

- Corrective justice (Aristotle)

what does social justice say in relation to social justice

- defence recognises vulnerability and lack of capacity, promoting fairness

what does corrective justice say in relation to insanity

- unjust to punish someone who lacks understanding or control

how is automatism just/fair

- just as it allows D to be found not guilty for unconcscious or reflex actions that they could not control

how is automatism unjust/unfair

- requirement for a "complete total loss of voluntary control" so partial LOC is insufficient which can produce harsh outcomes where D clearly lacked full awareness but fail to meet the strict standard

- distinction between insanity and automatism is highly technical and confusing

what theories link to automatism

- corrective justice (Aristotle)

- social justice (Rawls)

how does social justice link to automatism

- protects individuals who are incapable of voluntary conduct

how does corrective justice link to automatism

- punishment is avoided where there is no true fault

how is self-defence/prevention of crime fair/just

- just for D to be able to prepare for possible future attack

- allows individuals to protect themselves and others from unlawful violence as law recognises that people shoudlnt be expected to wait passively to be harmed

- force must be "reasonable in circumstances" helps balance rights of D and V's

- allows D's to be judged in their cicrumstances as they honestly believed them to be promoting fairness

how is self-defence/ prevention of crime unfair/unjust

- no limit clearly defined on how much they are able to prepare

- uncertainty around "reasonable force" where the D us not expected to "weigh to a nicety" leaves many unable to access the defence where they acted instinctively in the momeny, but society views their actions as excessive and disproportionate

which theories link to self-defence/prevention of crime

- utilitarianism (Bentham)

- corrective justice (Aristotle)

how does utilitariansim link to self-defence/prevention of crime

- promotes social safety by allowing protection against crime

how does corrective justice link to self-defence/prevention of crime

- restores balance where force is used against unlawful agression

how is duress just/fair

- acknowledged ordinary people may not fully desire to commit a crime or be able to resist threats of serious harm

- strict limits on duress such as threats must involve death or serious injury where there must be no reasonable avenue of escape and D is also unavaliable if the D voluntarily joined violent criminal groups -> prevents abuse of defence and protecting society from dangerous offenders falsely claiming coercion so justice achieved

how is duress unfair/unjust

- voluntary association with gangs: sentences for those who are threatened whilst in a violent criminal gang are not lessened despite them still being forced to commit the offence against their will

- access to help before the threat: not taken into consideration that looking for help may not be a priority for the D due to the fact the threat to them sees more immediate than it may seem to a third perspective

- cannot be used as a defence to murder so creates tension as law recognises that people may have reduced free will in other contexts of murder but not here

what theories link to duress

- social justice (Rawls)

- utilitarianism (Bentham)

how does social justice link to duress

- behind veil of ignorance, individuals would likely support a defence recognising that anyone could be subjected to threats or coercion

- fair society would not punish someone as harshly where their freedom of choice was severely restricted

how does utilitarianism link to duress

- restrictions promote public safety and deter criminal conduct

- society venefits where only genuinely coerced D can rely on the defence

which principles of criminal law do we look at in relation to justice

- Actus Reus (conduct, omissions, state of affairs)

- Causation

- Mens Rea (intention, recklessness, transferred malice)

- Strict Liability

- Coincidence of Actus Reus and Mens Rea

- Sentencing

how is actus reus fair/just

- achieves justice because it established liability depends on a guilty act

- omissions is narrow and specific so people are generally not criminally liable for failing to act unless a specific duty exists (Miller, Stone & Dobinson)

how is actus reus unfair/unjust

- state of affairs offences can undermine fairness as D may be liable despite lack of voluntariness (Winzar - highway drunk)

how is causation fair/just

- ensures D is only liable where conduct significantly contributes to harm

- "but for" test and legal causation principles aim to ensure fair attribution of responsibility

- protects D where the chain of causation is broken by independent acts

how is mens rea fair/just

- promotes justice as criminal liability usually depends on fault so considering D's mental state ensures punishment reflects blameworthiness

- intent reflects highest level of fault while recklessness captures unjustified risk taking (Cunningham) = flexibility allows proportional justice

- transferred malice may also achieve justice by preventing D from escaping liability due to mistakes about V

how is mens rea unfair/unjust

- oblique/indirect intent remain difficult for juries to apply (Woolin)

- constructive intent can be unfair from D perspective (s.47 and s.20)

how is strict liability fair/just

- used in regulatory offences involving public safety (food hygiene/pollution) so allowing easier proescution encourages high standards

how is strict liability unfair/unjust

- can be convicted without mens rea so seen as unjust as criminal liability often requires fault

how is coincidence of actus reus and mens rea fair/just

- achieves justice as D should only be liable where the guilty minf and guilty act occur together

how is coincidence of actus reus and mens rea unfair/unjust

- courts can stretch the principle using "continuing act" (Fagan, Thabo Meli) which can reduce certainty and fairness

how is sentencing fair/just

- attempts to achieve justice by balancing punishment, deterrence, rehabilitation, and public protection

- serious offencers generally recieve harsher punishment reflecting proportionality

- discretionary sentencing allows judges to tailer punishment to individual circumstances promotes fairness

how is sentencing unfair/unjust

- inconsistency undermines justice as similar offenders may recieve different punishments