Proposals for Reforming the Law of Self-Defence

2008 ◽  
Vol 72 (5) ◽  
pp. 409-440 ◽  
Author(s):  
Amir Pichhadze
Keyword(s):  
Reasonable Person ◽  
Objective Standard ◽  
English Law ◽  
The Law ◽  
Court Of Appeal ◽  
Significant Attention ◽  
Law Commission ◽  
Self Defence

The English law of self-defence has attracted significant attention following the controversial decision of the Court of Appeal in R v Martin. At the heart of the controversy is the determination of the reasonableness of a defendant's apprehension of the necessity to use a particular amount of force in self-defence. When comparing the defendant's apprehension and actions to those of a reasonable person in the same circumstances, what characteristics of the defendant must be attributable to the reasonable person in order for the test to be appropriate? This article argues that while the Court of Appeal's reluctance to allow a psychologically individualised standard of reasonableness may have been correct, the court should have reformulated the purely objective standard into a contextual objective standard. It is suggested that unless such reform is undertaken, the English law of self-defence will remain unduly constrained. Reform proposals by the Law Commission have made it clear that such reform is not on the horizon. As an alternative, the Law Commission proposed a reformulated defence of provocation. While this alternative is commendable, it does not remove the need to reform the objective standard of reasonableness in the law of self-defence.

scholarly journals Culpability, Kingston and the Law Commission

2010 ◽  
Vol 74 (5) ◽  
pp. 434-471 ◽  
Author(s):  
Cath Crosby
Keyword(s):  
Justice System ◽  
Criminal Liability ◽  
Character Theory ◽  
Criminal Offence ◽  
Pragmatic Approach ◽  
House Of Lords ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Do So

This article considers the basis upon which a person should be held to be criminally liable, and to do so, it is necessary to examine the leading theories of character and choice that underpin the State holding a person to be culpable of a criminal offence, i.e. the link between culpability and fault. The case of R v Kingston1 is used to examine the application of these leading theories and it is observed that choice theorists would not excuse such a defendant from criminal liability even though his capacity to make a choice to refrain from law breaking was made extremely difficult by external factors beyond his control. Only character theory could possibly offer exculpation in such circumstances on the basis that the defendant acted ‘out of character’ and his deed did not deserve the full censure and punishment of the criminal law. The Court of Appeal in R v Kingston would have been prepared to excuse, but the House of Lords, and most recently the Law Commission have adopted a pragmatic approach to the involuntarily intoxicated offender. This case serves as a reminder that while justice is the aim of the criminal justice system, it is not an absolute standard.

4. Crimes of negligence

2021 ◽  
pp. 136-145
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Mens Rea ◽  
Reasonable Person ◽  
Objective Standard ◽  
The Law

Negligence refers to conduct that does not conform to what would be expected of a reasonable person. Along with intention and recklessness, negligence involves a failure to comply with an objective standard of conduct; that is, all of them are forms of fault. To prove negligence, the prosecution is not required to show that the accused failed to foresee a relevant risk; it only has to establish that his conduct failed to comply with a reasonable standard. A person is negligent if he is not able to comply with an objective standard of behaviour set by the law. This chapter deals with crimes of negligence and negligence as mens rea, negligence as the basis of liability, degrees of negligence, negligence as a form of culpable fault, and negligence and capacity.

4. Crimes of negligence

2018 ◽  
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Mens Rea ◽  
Reasonable Person ◽  
Objective Standard ◽  
The Law

Negligence refers to conduct that does not conform to what would be expected of a reasonable person. Along with intention and recklessness, negligence involves a failure to comply with an objective standard of conduct; that is, all of them are forms of fault. To prove negligence, the prosecution is not required to show that the accused failed to foresee a relevant risk; it only has to establish that his conduct failed to comply with a reasonable standard. A person is negligent if he is not able to comply with an objective standard of behaviour set by the law. This chapter deals with crimes of negligence and negligence as mens rea, negligence as the basis of liability, degrees of negligence, negligence as a form of culpable fault, and negligence and capacity.

scholarly journals THE DOCTRINE OF BENEFIT AND BURDEN: REFORMING THE LAW OF COVENANTS AND THE NUMERUS CLAUSUS “PROBLEM”

2018 ◽  
Vol 77 (1) ◽  
pp. 72-96
Author(s):  
Chris Bevan
Keyword(s):  
Indirect Method ◽  
Theoretical Issue ◽  
Recent Reform ◽  
Numerus Clausus ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Reform Debate

AbstractThe doctrine of benefit and burden – an indirect method for enforcing the burden of positive freehold covenants – developed as an exception the strict Austerberry rule that the burden of positive covenants cannot bind successors directly at law. Three recent Court of Appeal cases (Davies v Jones; Wilkinson v Kerdene and Elwood v Goodman) confirm the continued existence and application of the doctrine but also reveal its deficiencies and limitations. This article explores the contemporary application of the doctrine, identifies its theoretical, historical and elemental frailty and, drawing on recent reform proposals of the Law Commission, highlights the case for reform. In so doing, this article argues that a vital theoretical issue has been overlooked in the reform debate: the numerus clausus principle.

Liability in negligence of the mentally ill

2016 ◽  
Vol 45 (4) ◽  
pp. 366-374
Author(s):  
Maria Orchard
Keyword(s):  
Mental Illness ◽  
Mentally Ill ◽  
Essential Element ◽  
Personal Characteristics ◽  
Standard Of Care ◽  
Tort Law ◽  
Duty Of Care ◽  
Reasonable Person ◽  
Objective Standard ◽  
Court Of Appeal

An essential element of the tort of negligence is the duty of care, which is measured by the objective standard of a reasonable person and does not take into account a defendant’s personal characteristics. In Dunnage v Randall, the Court of Appeal was tasked with deciding whether a person’s mental illness should be considered when defining the appropriate standard of care. The court held that the deceased, an undiagnosed paranoid schizophrenic who set himself on fire, was subject to the objective standard, breached his duty by failing to act with reasonable care and was therefore liable for the burns his nephew sustained while attempting to prevent the incident. The court further found that a defendant can only escape liability for negligently caused injury if their mental illness entirely eliminates responsibility, thus articulating a strict approach towards the liability in tort of persons suffering from mental illness. As this comment will discuss, the Dunnage decision is a handy illustration of the basic tenets of the tort of negligence, revealing the policy considerations at play and questioning the underlying rationale of the tort law regime.

scholarly journals There is no Such Thing as a Sham Trust

2013 ◽  
Vol 44 (1) ◽  
pp. 115
Author(s):  
BoHao (Steven) Li
Keyword(s):  
New Zealand ◽  
Legal Issues ◽  
Starting Point ◽  
Bilateral Transaction ◽  
Appeal Decision ◽  
The Law ◽  
Trust Law ◽  
Court Of Appeal ◽  
Law Commission

The Court of Appeal decision in Official Assignee v Wilson is the leading New Zealand case on "sham trusts". Obiter, O'Regan and Robertson JJ held that for a sham trust to exist, the settlor and trustee must have a common intention to not create a trust. Post-Wilson, debate continues over the precise elements that render a trust a sham. The Law Commission suggested that the sham doctrine, as a means of analysing the validity of an express trust, may not be the best approach. A better starting point would be a return to the certainty of intention requirement. In arguing that the Law Commission's recommendation is correct, this article will discuss three legal issues: whether an express trust is a unilateral or bilateral transaction; whether the excluded evidence has always been part of the objective intention requirement; and whether the legislative and policy factors have made foreign trust law distinct from New Zealand trust law. Finally, this article will expand on the test proposed by the Law Commission.

scholarly journals Unfitness to Plead and the Vulnerable Defendant: An Examination of the Law Commission's Proposals for a New Capacity Test

2011 ◽  
Vol 75 (3) ◽  
pp. 194-203 ◽  
Author(s):  
Helen Howard
Keyword(s):  
Mental Capacity ◽  
Mental Capacity Act 2005 ◽  
The Law ◽  
The Many ◽  
Mental Capacity Act ◽  
Consultation Paper ◽  
Law Commission ◽  
Self Defence ◽  
Made In

The Law Commission published Consultation Paper No. 197 in October 2010 on unfitness to plead. Among the many issues to be covered were: an examination of the test for capacity which is narrower than the test for capacity under the Mental Capacity Act 2005; the scope of the trial of facts; and whether accident, mistake or self-defence could be raised as part of the defence in the context of unfitness to plead. This article will examine some of the proposals made in the Law Commission's Consultation Paper with particular focus on the meaning of capacity, along with the scope and limitations of the current law on unfitness to plead.

scholarly journals The inconvenience of the reasonable person standard in criminal law

Derecho PUCP ◽  
2014 ◽  
pp. 505-509
Author(s):  
Juan Pablo Pérez-León Acevedo
Keyword(s):  
Criminal Law ◽  
Minority Groups ◽  
Case Law ◽  
Human Behaviour ◽  
Criminal Cases ◽  
Reasonable Person ◽  
Objective Standard ◽  
Reasonable Person Standard ◽  
Criminal Culpability ◽  
Self Defence

Following American legal sources, I argue that the use of the reasonable person standard in criminal law is inaccurate and unfair, and, therefore, inconvenient to evaluate human behaviour based on three arguments which address flaws of the standard under analysis. Firstly, this standard is  by definition  abstract, theoretical  and  general, not  reflecting appropriately the person’s sensory and ideational perception of the situation. Secondly, the trend in American legislation and case-law is to apply, in criminal cases, e.g., self-defence, a hybrid criterion, which consists in the consideration of a person’s belief and the correspondence of such a belief to what a reasonable person would believe under the circumstances, as opposed to a purely objective standard. The principle of individual criminal culpability underlies this. Thirdly, the reasonable person standard imposes a sort of majority’s dictatorship by perpetuating a predominant culture disregarding the viewpoints from minority groups.

scholarly journals The Unilateral Determination of Price – a Question of Certainty or Public Policy?

2017 ◽  
Vol 16 (3) ◽  
pp. 66
Author(s):  
Hanri M Du Plessis
Keyword(s):  
Public Policy ◽  
Supreme Court ◽  
South African ◽  
Extended Period ◽  
Objective Standard ◽  
Bargaining Position ◽  
The Supreme Court ◽  
Form Part ◽  
Court Of Appeal

The unilateral determination of price has been a controversial issue for an extended period of time. During the 1990s the Supreme Court of Appeal asked if the rule should still form part of South African law. Specifically, the court raised a few questions in respect of the rule and commented that the rule as applied in South African law is illogical. The court also remarked that public policy, bona fides and contractual equity might also be employed when considering such issues. Despite the criticisms of the Supreme Court of Appeal, it would seem that the rule still forms part of our law. This article investigates whether or not the rule should be retained in the South African common law. The answer will depend on two separate questions: Is the rule a manifestation of the requirement of certainty of price? If not, does public policy require that the rule be retained? The article shows that the rule prohibiting the unilateral determination of price should not be seen as a manifestation of the requirement of certainty of price. This is because there are various circumstances where the unilateral determination of the price results in certainty of price or can be applied in such a way as to arrive at certainty of price. Most of these arguments require that the discretion to determine the price should not be unfettered and should be subject to some objective standard. This can be done expressly or tacitly in the contract, or an objective standard (in the form of reasonableness) will be implied by law. Thereafter, the article considers various public policy considerations that could be used to determine if a discretion to determine the price should be enforced. The article argues that public policy may dictate that such a discretion should be valid and enforceable provided that it is not unfettered and subject to an external objective standard or reasonableness. However, in cases where an unfair bargaining position is present, public policy may dictate otherwise. The article accepts that whether a term providing for the unilateral determination of the price would be contrary to public policy or not will depend on the facts of the case. However, it is submitted that, at a minimum, the considerations and factors discussed in the article should be taken into account when making such an assessment.

Land Law

2020 ◽  
Author(s):  
Elizabeth Cooke
Keyword(s):  
Land Law ◽  
Unique Role ◽  
The Supreme Court ◽  
Static Security ◽  
The Law ◽  
The Many ◽  
Ownership Of Land ◽  
Court Of Appeal ◽  
Law Commission

This book is an account of the land law of England and Wales written in the Clarendon style: as a letter to a friend, with a minimum of footnotes and statutory material. It explains the origins of land law in the feudal system, its transformation by the legislation of 1925, and the modern regime in which registration is the key to the validity and enforceability of interests in land. The unique role of the trust in English law is explored, and the many complications that can arise where ownership of land is shared (whether concurrently or consecutively). Themes of the book include the management of complexity in land law, and the tension between dynamic and static security. The law of mortgages, leases, easements, and covenants is explained. Recent decisions of the Court of Appeal and the Supreme Court are discussed, as are reform proposals by the Law Commission.

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