Looking at the mark scheme for the question and answer below, what mark do you think I would get for this essay?:
Critically evaluate two general defences and suggest one reform for one of your chosen defences (25 marks)
A criticism of the defence of intoxication is that the concept of specific and basic intent is unnecessary, illogical and inconsistent. This is because there are two conflicting definitions: the first one is that specific intent crimes require intention whereas basic intent are crimes that can be committed recklessly, and the second definition is that specific intent crimes require mens rea that goes beyond the actus reus. Although, the aim of the rules is sensible in that those who are reckless about their intoxication should usually be responsible, it would be a lot clearer if parliament implemented the Law Commission’s proposal that integral fault elements must be proved for lot offences and the MAJEWSKI rules followed for others.
Also, for some specific intent offences there is a similar fall back offence of basic intent of which D can be convicted if the mens rea was negated. For example those charged with murder can be convicted of manslaughter and those charged with s.18 OAPA 1861 can be convicted of s.20 OAPA 1861. Unfortunately, there is no coherent system of fall back offences and whether one exists depends on what D is charged with. For example , for offences such as theft and robbery no fall back offences exist so intoxication may be a complete defence.
Finally, the fundamental principle of the defence is that it only applies if intoxication has negated the mens rea- GALLAGHER/ SHEEHAN/ KINGSTON. This means that lowered inhibitions as a result of intoxication cannot be a defence and a drunken intent is an intent. This can be justified for voluntary intoxication because D is still responsible to some extent for their conduct. However, it can be argued that this is unjust when applied to cases of involuntary intoxication such as KINGSTON whose conviction was upheld by the House of Lords.
Reforms have been proposed by the Law Commission who stated that the terms specific and basic intent should be abolished. Also, for selected offences integral fault elements should be introduced which must be proved before D can be convicted. For offences where these are not required recklessness as to intoxication would suffice for the mens rea as in the current rules. Therefore, this would clear up any doubt as to whether intoxication can or can’t be a defence.
The second general defence is consent. The courts have stated in AG-REF (No.6 of 1980) that consent will only be a defence for ABH and above if these was good public policy reason. However, there is no clear rationale for what may be ‘good reason’ and there is conflicting case law. For example in the case of JONES AND OTHERS the defence was given in the name of horseplay despite serious injury caused. It has been argued that the defence of consent should not be available in such cases so that people know that the law will not protect them if rough behaviour goes wrong. Furthermore, the conduct in JONES AND OTHERS was a little more than bullying, and is questionable whether there was actually true consent.
It is difficult to reconcile the decision in BROWN AND OTHERS, in which sadomasochistic behaviour amongst homosexuals in privately resulted in criminal convictions, with the case of WILSON in which the court decided that consent could be a defence to similar activity between a heterosexual couple. It has been argued that the distinction from BROWN AND OTHERS on the grounds that it was a form of tattooing is unjustifiable and indicates that the courts apply different approaches to heterosexual and homosexual activity.
Finally, consent to your own death cannot be a defence to ‘mercy killing’ or ‘assisted suicide’, which was established in the case of PRETTY V DPP. It has been argued that this prevents terminally ill people from arranging their own death, in circumstances of their own choice. This is despite the fact that public opinion is in favour of some change to the law. The law has slightly moved in this direction, as seen in the case of PURDY in which the Court of Appeal ordered the cps to produce guidelines stating when ‘assisted suicide’ would be prosecuted. The guidelines state that a person will only be prosecuted for ‘assisted suicide’ if the police suspect their motives.
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Aqa Unit 3 A-level Law: Defences essay watch
- Thread Starter
- 07-11-2017 17:44