Lawmakers, Law Lords and Legal Fault: Two Tales from the (Thames) River Bank: Sexual Offences Act 2003; R v G and Another

2004 ◽  
Vol 68 (2) ◽  
pp. 130-149 ◽  
Author(s):  
Mitchell Davies
Keyword(s):  
Criminal Law ◽  
Mens Rea ◽  
Sexual Offences ◽  
River Bank ◽  
Subjective Meaning ◽  
Serious Crime ◽  
House Of Lords ◽  
Sexual Offences Act 2003 ◽  
Thames River ◽  
Different Order

This article examines the conflicting approaches of Parliament and the senior courts to the need for mens rea in relation to those offences which are seriously criminal in character. Prompted by the imminent enactment of the Sexual Offences Act 2003 and the recent decision of the House of Lords in R v G and Another, the conclusion is reached that whilst the senior courts have become ever more sensitive to the need for true mens rea to be insisted upon as a precursor to liability for any serious crime, Parliament, in enacting the Sexual Offences Act 2003, has shown itself, in this context at least, to have priorities of a very different order. In applying a purely subjective meaning to the term reckless it is argued however that their Lordships in G have gone too far and have made prosecutions under the Criminal Damage Act 1971 for unintentionally caused criminal damage potentially unwinnable as well as having thereby perpetuated the definitional plurality of this much litigated mens rea term. The reader is accordingly guided to the conclusion that G is far from being the last word on the meaning of recklessness in English criminal law.

Lawmakers, Law Lords and Legal Fault: Two Tales from the (Thames) River Bank: Sexual Offences Act 2003; R v G and Another

1995 ◽  
Vol 68 (2) ◽  
pp. 130-149
Author(s):  
Mitchell Davies
Keyword(s):  
Criminal Law ◽  
Mens Rea ◽  
Sexual Offences ◽  
River Bank ◽  
Subjective Meaning ◽  
Serious Crime ◽  
House Of Lords ◽  
Sexual Offences Act 2003 ◽  
Thames River ◽  
Different Order

This article examines the conflicting approaches of Parliament and the senior courts to the need for mens rea in relation to those offences which are seriously criminal in character. Prompted by the imminent enactment of the Sexual Offences Act 2003 and the recent decision of the House of Lords in R v G and Another, the conclusion is reached that whilst the senior courts have become ever more sensitive to the need for true mens rea to be insisted upon as a precursor to liability for any serious crime, Parliament, in enacting the Sexual Offences Act 2003, has shown itself, in this context at least, to have priorities of a very different order. In applying a purely subjective meaning to the term reckless it is argued however that their Lordships in G have gone too far and have made prosecutions under the Criminal Damage Act 1971 for unintentionally caused criminal damage potentially unwinnable as well as having thereby perpetuated the definitional plurality of this much litigated mens rea term. The reader is accordingly guided to the conclusion that G is far from being the last word on the meaning of recklessness in English criminal law.

scholarly journals Ignorance of the Law as a Defence to Rape: The Destruction of a Maxim

2012 ◽  
Vol 76 (4) ◽  
pp. 336-347
Author(s):  
Kenneth J. Arenson
Keyword(s):  
Common Law ◽  
Mens Rea ◽  
Sexual Offences ◽  
The Poor ◽  
House Of Lords ◽  
Long Line ◽  
The Common ◽  
The Law ◽  
Sexual Offences Act 2003 ◽  
Court Of Appeal

In DPP v Morgan, the House of Lords correctly concluded that an accused who entertained a genuine belief that a woman was consenting to carnal knowledge of her person could not be convicted of the common law crime of rape as such a belief and the requisite mens rea to convict were mutually exclusive of one another. Though England and Wales have resiled from this position by virtue of the Sexual Offences Act 2003, s. 1(b), which allows for conviction upon proof that the accused did not reasonably believe that the complainant was consenting, the Morgan principle has retained its vitality at common law as well as under the various statutory crimes of rape that exist throughout Australia, most notably the provisions of s. 38 of the Crimes Act 1958 (Vic). Despite a long line of Victorian Court of Appeal decisions which have reaffirmed the Morgan principle, the court has construed s. 37AA(b)(ii) of the Act as leaving open the possibility of an acquittal despite the fact that the accused acted with an awareness that one or more factors that are statutorily deemed as negating consent under s. 36(a)–(g) of the Act were operating at the time of his or her sexual penetration; specifically, the court held that the foregoing factors do not necessarily preclude a jury from finding that the accused acted in the genuine belief that the complainant was consenting. This article endeavours to explain how the accused could be aware of such circumstances at the time of penetration, yet still entertain such a belief. The article ultimately concludes that such an anomaly can only be explained through a combination of the poor drafting of s. 37AA(b)(ii) and the court's apparent refusal to follow the longstanding precept that ignorance of the law is never a defence to a crime, ostensibly prompted by its adherence to the cardinal precept that legislation is not to be construed as superfluous.

Recklessness: the House of Lords and the criminal law

Legal Studies ◽  
1981 ◽  
Vol 1 (3) ◽  
pp. 267-286
Author(s):  
Jenny McEwan ◽  
St. John Robilliard
Keyword(s):  
Criminal Law ◽  
Criminal Court ◽  
Mens Rea ◽  
Criminal Cases ◽  
House Of Lords

‘The House of Lords has a dismal record in criminal cases. All too often their lordships’ decisions have to be reversed by legislation…the present decision could well be another'.In two recent criminal appeals of major importance on the meaning of mens rea, Caldwell and Lawrence, the House of Lords has departed so far from the academically accepted deffition of ‘recklessness’, that Professor Smith is driven to ask, ‘Can we really afford the House of Lords as an appellate criminal court?’. Such desperation surely indicates that their Lordships have got things badly wrong and it is our purpose in this article to examine whether this is indeed the case.

9. Mixed Questions

2016 ◽  
Author(s):  
Mischa Allen
Keyword(s):  
Criminal Law ◽  
Mens Rea ◽  
Sexual Offences ◽  
Vast Number ◽  
Actus Reus ◽  
Questions And Answers

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, diagram answer plans, suggested answers, and author commentary. This chapter presents sample exam questions on mixed topics. The styles adopted for criminal law examination questions can vary enormously. Some examiners will set problem questions that focus largely on one area, others will set mixed questions which cut right across the syllabus. A mixed question requires knowledge of a wide variety of often unrelated topics. There are some classic combinations such as sexual offences and offences against the person or murder/manslaughter, but candidates should be aware that some topics, such as defences and actus reus and mens rea are pervasive. Mixed questions will generally be of two types: (1) where candidates have to cover a vast number of issues briefly; (2) where candidates need to cover some issues briefly, but others in some depth. This chapter presents examples of mixed questions and suggested answers. Some typical areas for combination are presented.

4. Strict, vicarious and corporate liability

2020 ◽  
pp. 139-183
Author(s):  
Janet Loveless ◽  
Mischa Allen ◽  
Caroline Derry
Keyword(s):  
Human Rights ◽  
Great Britain ◽  
Criminal Law ◽  
Strict Liability ◽  
European Convention ◽  
Mens Rea ◽  
Serious Crime ◽  
Actus Reus ◽  
Corporate Manslaughter ◽  
Corporate Liability

This chapter examines the concept of strict, vicarious and corporate liability in the context of criminal law. It discusses the implications of strict liability for actus reus and mens rea, evaluates arguments for and against strict liability, and considers the treatment of strict liability under the European Convention on Human Rights (ECHR). The chapter explains the principle of corporate liability, highlights the problems in prosecuting a corporation for a serious crime and explains/critiques the key provisions of the Corporate Manslaughter and Corporate Homicide Act (CMCHA) 2007 in Great Britain. It also provides several examples of relevant cases and analyses the bases of court decision in each of them.

4. Strict, vicarious and corporate liability

2018 ◽  
Author(s):  
Janet Loveless ◽  
Mischa Allen ◽  
Caroline Derry
Keyword(s):  
Human Rights ◽  
Great Britain ◽  
Criminal Law ◽  
Strict Liability ◽  
European Convention ◽  
Mens Rea ◽  
Serious Crime ◽  
Actus Reus ◽  
Corporate Manslaughter ◽  
Corporate Liability

This chapter examines the concept of strict, vicarious and corporate liability in the context of criminal law. It discusses the implications of strict liability for actus reus and mens rea, evaluates arguments for and against strict liability, and considers the treatment of strict liability under the European Convention on Human Rights (ECHR). The chapter explains the principle of corporate liability, highlights the problems in prosecuting a corporation for a serious crime and explains the key provisions of the Corporate Manslaughter and Corporate Homicide Act (CMCHA) 2007 in Great Britain. It also provides several examples of relevant cases and analyses the bases of court decision in each of them.

Concentrate Questions and Answers Criminal Law

2016 ◽  
Author(s):  
Mischa Allen
Keyword(s):  
Criminal Law ◽  
Mens Rea ◽  
Sexual Offences ◽  
Actus Reus ◽  
Questions And Answers ◽  
Assessment Techniques ◽  
Property Offences

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, diagram answer plans, suggested answers, and author commentary. Concentrate Q&A Criminal Law offers advice on what to expect in exams and how best to prepare. The book starts off looking at exam and assessment techniques and then moves on to consider the elements of a crime (including actus reus and mens rea), murder and manslaughter, non-fatal offences, and sexual offences. It examines defences in detail before looking at inchoate offences, property offences, and concludes with some mixed examination questions.

Criminal Law Concentrate

2018 ◽  
Author(s):  
Jonathan Herring
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Strict Liability ◽  
Mens Rea ◽  
Sexual Offences ◽  
Essential Information ◽  
Actus Reus ◽  
Recent Developments ◽  
The Law

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. Criminal Law Concentrate covers fundamental principles of this area of law and helps the reader to succeed in exams. Topics covered include the basis of criminal liability, actus reus, mens rea, and strict liability. The chapters also examine offences such as non-fatal offences, sexual offences, homicide, inchoate offences, theft, and fraud. Defences are also examined in the final two chapters. This edition has been updated to include: recent developments in the law and new cases such as Jogee, Conroy, Golds, Ivey, and Joyce; more detail on sexual offences; more revision tips and tables to improve learning; and an ‘Exam essentials’ feature.

Criminal Law Concentrate

2020 ◽  
Author(s):  
Jonathan Herring
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Strict Liability ◽  
Mens Rea ◽  
Sexual Offences ◽  
Essential Information ◽  
Actus Reus ◽  
Recent Developments ◽  
The Law

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. Criminal Law Concentrate covers fundamental principles of this area of law and helps the reader to succeed in exams. Topics covered include the basis of criminal liability, actus reus, mens rea, and strict liability. The chapters also examine offences such as non-fatal offences, sexual offences, homicide, inchoate offences, theft, and fraud. Defences are also examined in the final two chapters. This edition has been updated to include: recent developments in the law and new cases such as Jogee, Conroy, Golds, Ivey, and Joyce; more detail on sexual offences; more revision tips and tables to improve learning; and an ‘Exam essentials’ feature.

Criminal Law

2019 ◽  
Author(s):  
Michael Allen ◽  
Ian Edwards
Keyword(s):  
Criminal Law ◽  
Strict Liability ◽  
Case Law ◽  
Mens Rea ◽  
Sexual Offences ◽  
The Past ◽  
Actus Reus ◽  
The Subject ◽  
The Law

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. Textbook on Criminal Law has been providing students of criminal law with a readable and reliable introduction to the subject for the past 28 years. This is the fifteenth edition, which has been updated to include all of the latest case law and statutory changes. Topics covered include actus reus, mens rea, negligence and strict liability, and capacity and incapacitating conditions. It also examines general defences, parties to crime, inchoate offences, and homicide. Towards the end of the book chapters consider non-fatal offences, sexual offences, offences under the Theft Acts 1968 and 1978, fraud, and criminal damage.

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