Elgar Encyclopedia of Crime and Criminal Justice, 2023
Inchoate offences are characterised by their point of intervention, criminalising conduct that pr... more Inchoate offences are characterised by their point of intervention, criminalising conduct that precedes the causing of substantive harms. In this manner, they provide practical tools for harm prevention, alongside the ability to punish conduct that may be deemed wrongful in its own right. However, these same advantages, in terms of early intervention, prompt questions of over-criminalisation and inappropriate intervention into the private realm. In this article, we explore the different constructions and origins of inchoate offences, distinguishing what we call ‘general inchoate offences’ from ‘bespoke inchoate offences’ as they have come to exist across different jurisdictions. We trace the ongoing development of each, critiquing their current application, and the academic and reform responses that have followed.
Intoxication is commonly associated with disinhibition and criminal conduct, where a defendant’s ... more Intoxication is commonly associated with disinhibition and criminal conduct, where a defendant’s (D’s) claim that she ‘only did it because of the drugs’ is a matter for sentencing. But where D’s intoxication is acute, it can sometimes result in D causing potentially criminal harms without mens rea; and D’s claim changes to ‘because of the drugs, I didn’t know what I was doing’. Here, D’s claim is a matter for liability: if D lacked essential mens rea, then she did not prima facie commit an offence. Prior-fault intoxication rules apply here, at the liability stage, to expand the legal evaluation of D’s conduct to include both actions in becoming intoxicated as well as actions when later causing harm, using this expanded lens to criminalise D as if she had mens rea.
In this chapter we examine the intoxication rules, focusing on the ‘fault’ identified within such rules as a substitute for D’s missing mens rea; using insights from the fields of behavioural and neural science. Scientific enquiry into mens rea states has some academic history, exploring how people experience and process mens rea states, whether juries understand directions on mens rea, and so on. But neuroscientific enquiry into prior-fault intoxication is different, and potentially highly significant, looking to construct a picture of exactly what the criminal law is targeting as fault.
Journal of International and Comparative Law, 2021
This article explores the contested legal conceptualisation and application of “prior-fault” rule... more This article explores the contested legal conceptualisation and application of “prior-fault” rules in England and Wales, Germany and the Netherlands. Prior-fault rules operate as an exception to the traditional application of criminal offences and defences, allowing a defendant’s previous conduct outside of an offence or defence definition to directly affect his or her liability. The paradigm example of this is prior-fault intoxication, where an intoxicated defendant is found liable for an offence despite lacking mental fault at the time of causing harm; with the missing mental fault effectively substituted by their previous choice to become intoxicated. However, as we discuss, prior-fault is not necessarily limited to such examples and has the potential to operate across a broad range of criminal rules. Through the comparison of jurisdictions, each with varying doctrinal applications of prior-fault, the article seeks both to better understand the concept as well as to analyse the most effective and defensible methods for its application in practice.
The article critiques the ‘loss of self-control’ requirement within Loss of Control partial defen... more The article critiques the ‘loss of self-control’ requirement within Loss of Control partial defence, investigating its meaning (legally and scientifically), as well as its theoretical purpose. We contend that the partial defence currently performs a curious and problematic role, promoting questions of self-control, that are most effectively dealt with at a post-conviction stage (i.e., at sentencing), into questions for the liability stage. This could be (perhaps best) resolved through the abolition of the mandatory life sentence for murder, and subsequent abolition of the partial defences, but it is accepted that the current political reality weighs heavily against this option. Looking for viable alternatives, we highlight the advantages of an approach that maximises discretion based on a full appraisal of potentially extenuating circumstances; before discussing how the current partial defence, including the requirement for a loss of self-control, should be interpreted to move the current law closer to this goal.
This article explores the use of mens rea terms in the criminal general part. We contend the curr... more This article explores the use of mens rea terms in the criminal general part. We contend the current law fails properly to conceptualise mens rea for a large category of offences, namely bespoke/substantive inchoate offences, attempt, conspiracy, assisting and encouraging, and the general offence of complicity. These offences involve two conduct events: one in the present and one in future. However, current mens rea terms are defined as if applied to the more conventional category of criminal offence which only involves present conduct—a practice which we term the ‘present-fault paradigm’. We explore the limits of current mens rea terms, defined for present-conduct targets (circumstances and results), when applied to future-conduct ulterior targets within inchoate and complicity offences. We contend that current mens rea definitions and analysis within the general part are inappropriate for targeting elements related to future conduct/offending, and we suggest more appropriate bases for conceptualising such mens rea.
The lack of scientific or clinical clarity faced by courts dealing with cases involving intoxicat... more The lack of scientific or clinical clarity faced by courts dealing with cases involving intoxicated criminal defendants is unavoidable, but introducing further legal ambiguity to meet policy goals introduces ever greater risk of problematic (including unjust) legal outcomes.
Background In the recent case of R v Taj, the Court of Appeal of England & Wales upheld the convi... more Background In the recent case of R v Taj, the Court of Appeal of England & Wales upheld the conviction of a defendant who, in a psychotic delusional state, mistook his non‐threatening victim to be a terrorist, violently attacking him. The law typically allows honest mistakes (even if unreasonable) as a basis for self‐defence (in this case the defence of others). But because Taj's delusions were found by the court to have been caused by voluntary alcohol consumption, special legal (prior‐fault) intoxication rules were applied to block his defence; Taj was convicted and sentenced to 19 years for attempted murder. Argument We focus here on the simple question – what does it mean to be intoxicated? On the facts, Taj did not have drugs active in his system at the time of the attack, but the court nonetheless insisted that Taj's delusional mistake was ‘attributable to intoxication’, namely to drink and drug‐taking in the previous days and weeks. This extended conception of intoxication was questionably distinguished from psychosis induced by withdrawal. Furthermore, the court was unreceptive to evidence of a long‐standing, underlying mental health disorder. We argue that the court's expanded view of intoxication is problematic in that intoxication‐induced psychosis cannot be sharply distinguished from other causes such as mental disorders. And even if it could be distinguished, it should not give rise to blame and punishment in the same way as conduct induced by chemically active intoxicants (‘drug‐on‐board’) does. Conclusion The courts’ expansion of the definition of intoxication is both legally and forensically problematic, introducing legal vagaries where the clinical science is already vague. And with intoxication frequently interlocking with historic intoxication and secondary or co‐morbid mental health conditions, the decision risks inappropriately and/or over‐criminalising defendants.
Simon Taj began drinking heavily on Friday 29 January 2016 and continued into the early hours of ... more Simon Taj began drinking heavily on Friday 29 January 2016 and continued into the early hours of Saturday 30 January. At roughly 2 pm on Sunday 31st January 2016, Taj came across the broken-down vehicle of Mohammed Awain. The vehicle was smoking, and Awain was standing beside it. Unfortunately, Taj mistook the wires and equipment he saw in the open boot of Awain’s car (Mr Awain is an electrician) as the components of a terrorist bomb which he was on the point of assembling to explode. Taj called the police, who attended the scene, to find that Awain was entirely innocent. Taj initially drove away following police assurances as to Awain’s innocence, but soon returned, still convinced that Awain was indeed a terrorist. Taj felt that he must do something to stop him. At 2.46 pm, Taj launched a ferocious attack on Awain with a metal tyre lever, almost killing him. When police arrived and restrained Taj, he expressed surprise – ‘why are you arresting me he's the terrorist’. Taj was so calm and lucid at interview, the police officers present did not arrange for blood samples to be taken. He was charged with attempted murder, but claimed to have acted in self-defence on the basis of his mistaken belief.
Our aim was to explore how (neuro)scientific understanding of addiction as a brain-disease impact... more Our aim was to explore how (neuro)scientific understanding of addiction as a brain-disease impacts criminal sentencing decisions in courts in England and Wales, where legal rules concerning intoxication, prior-fault and mental disease conflict, and sentencing guidelines lack clarity. We hypothesized that despite significant neuropsychiatric overlap of addiction and other brain-disorders, variables in relation to etiology would moderate magistrates’ sentencing decisions in cases involving addicted offenders. Using a questionnaire-based, quantitative design, and combining frequentist and Bayesian analysis approaches, we probed actual court magistrates’ sentencing decisions, and underlying rationale, for defendants presenting with brain damage resulting from a (fictional) disease, addiction to heroin, or more complex, mixed etiologies. When identical neuropsychiatric profiles resulted from disease, but not heroin addiction, prison sentences were significantly reduced. Study 1 ( N =109) found the pivotal factor preventing addiction from mitigating sentences was perceived choice in its acquisition; removing choice from addiction increased the odds of sentence reduction (~20-fold) and attaching choice to disease aggravated or reversed earlier leniency. Study 2 ( N =276) replicated these results and found that when heroin use led to disease or vice versa , magistrates found middle ground. These differences were independent of the age of onset of drug use. Finally, evidence of addiction was more likely to evoke punishment considerations by magistrates, rather than rehabilitation. Consistent with legal rules relating to intoxication, but running counter to norms around mental-illness and choice, our results demonstrate the need for clarity in sentencing guidance on addiction specifically, and mental disorders more generally.
When looking to identify the basic ingredients of criminal responsibility, reference is standardl... more When looking to identify the basic ingredients of criminal responsibility, reference is standardly made to a voluntary act requirement (VAR). We blame a defendant (D) for what she has done or (perhaps) failed to do where such doing or failing to do is proscribed by law; we do not punish mere thoughts or character. However, despite the continued appeal of the VAR in abstract principle, the precise definitions and restrictions entailed within it are not always clear, and its usefulness in preventing inappropriate criminalisation is openly (and in many cases correctly) challenged. Principally, and crucially, the VAR has received sustained attack in recent years from critics within the philosophies of action, highlighting its descriptive and normative shortcomings. It is contended that such criticism is misplaced. This article provides defence to a stripped-back definition of the VAR, distinguishing the general definition of action in philosophy from the definition of action within the criminal law, and seeking to identify and preserve a doctrinally workable model of the latter.
In chapter four, ‘The current state of murder in English law: a critique, wrong turns and all’, D... more In chapter four, ‘The current state of murder in English law: a critique, wrong turns and all’, Dr J.J. Child and Professor G.R. Sullivan explore the offence of murder in the context of its uniquely draconian mandatory sentence. The chapter highlights the normative restraints that such a sentence imposes; criticising the current law for its failure to maintain a narrow definition. In Part 1, the authors discuss the primary route to murder liability, where a defendant (D1) acts as a principal agent, highlighting the inappropriate breadth of current mens rea requirements in particular. In Part 2, discussion switches to the secondary route to murder liability, where D2 commits murder as the accomplice of D1. Focusing upon the recent landmark Supreme Court case of Jogee [2016] UKSC 8, the authors discuss and generally welcome the court’s ambition to narrow accomplice liability in murder to require something approaching a parity of culpability between D1 and D2. However, they also highlight conflicts and uncertainties within the judgment that threaten to undermine its potential in narrowing liability, including (a) uncertainty as to whether D2 must intend D1 to commit murder, (b) the use of conditional intention, and (c) assumptions around manslaughter as an alternative or back-up to murder. Across these alternative routes to murder liability, the chapter contends that liability should be interpreted narrowly and consistently and offers some guidance on associated reform.
The concept of ‘prior fault’ presents a number of significant challenges for the criminal law. Th... more The concept of ‘prior fault’ presents a number of significant challenges for the criminal law. The focus of criminal law (offences and defences) is necessarily event specific; we target and assess liability in relation to a snap-shot moment in time or a short series of acts, not as a judgement of prior or more general culpability or character. Therefore, prior fault should be largely an irrelevance at the liability stage. However, remaining faithful to this narrow focus in all circumstances would lead to considerable unfairness, creating an opportunity for defendants to manipulate legal rules to their own advantage. Some of the clearest examples of this arise in so-called contrived defence cases. Let’s take the example of self-defence, a general and complete defence where the defendant’s (D’s) use of force against the victim (V) is both necessary and reasonably proportionate. The standard operation of this defence is largely uncontroversial; people should be empowered to defend themselves from unlawful attack. However, what if D manufactures the circumstances of that ‘attack’ in order to use the law of self-defence to ‘justify’ her pre-planned use of force against V. For example, D wants to kill V. D hands V a knife and then goads V continuously until V (as anticipated) lashes out at D. D shoots and kills V in self-defence.
In order to understand and analyse examples such as the one above, we must distinguish two points in time within each potential criminal event. First, and standardly, we must look at the time where the potential criminal offence is committed (T2), asking whether the elements of the potential offence are completed, and if so, whether the elements of a potential defence can be found. In our example above, it is likely that the offence of murder was committed by D, but D would also be able to raise self-defence because of the attack from V. Secondly, we must look at D’s conduct prior to the potential crime (T1), to ask if D has done anything to undermine her future use of a defence at T2. In our example, this could be D’s prior fault in planning, and in manipulating V, in order to create the circumstances of her own defence. It is at this second stage, looking back to T1, that legal rules relating to prior fault must be identified and applied.
Issues of prior fault are (potentially) relevant across every criminal defence, and this has given rise to a variety of legal rules designed to prevent the application of contrived defences. However, the legal rules relating to prior fault are often unclear and inconsistent between different defences. Basic questions about what D must have done at T1, what she must have intended, and how this can impact liability at T2, all require investigation. In this article, we provide such an investigation. In Part 1 we explore the application of legal rules relating to prior fault within the current law, exposing areas of inconsistency and incoherence. Part 2 discusses the academic response to this inconsistency, including different models of prior fault that have been recommended in an effort to bring coherence to this area of law. Finally, in Part 3, building upon the academic analysis, we set out our own model of legal rules relating to prior fault; a model that we believe can (and should) be applied across all criminal defences. It is contended that the issue of prior fault can be addressed consistently, and that such rules should form part of any codification project.
Where criminal offences such as attempt and conspiracy require a defendant (D) to intend future c... more Where criminal offences such as attempt and conspiracy require a defendant (D) to intend future conduct, D’s intention will always be conditional. D’s intention may be explicitly conditional (eg, D intends to rob the shop, but only if unable to pay her rent), or implicitly conditional (eg, D intends to rob the shop, but if asked, would not do so if she found it surrounded by police). Rather than interpreting and defining conditional intention as synonymous with all future conduct intention, however, courts and commentators have too often approached it as unique, separate, and problematic. This has led to problems of inconsistency in application, and simple incoherence. This article sets out and defends a model of conditional intention as future conduct intention, and as the key to understanding and applying ulterior mens rea.
Academics and other legal researchers have always played a valuable role in the reform of crimina... more Academics and other legal researchers have always played a valuable role in the reform of criminal law, both through critique of the current law as well as through advocating reform options. There is no doubt that the expertise of legal researchers can contribute to better reforms of the law, and it is a position that carries obvious attractions for the researcher as well. Particularly for those of us who focus our research on identifying unfairness and incoherence within the current system, the opportunity to contribute to the betterment of the law, to use our work to improve that system, may be one of our principal motivations. It is also an activity, increasingly, that is being supported by universities and funding bodies, not least because of the emergence and growth of ‘impact’ requirements within the Research Excellence Framework (REF). Yet the role of the lone legal researcher within the dynamics of law reform remains difficult to identify, and even more difficult to realise in practice. It is on this topic that we contribute this short paper to the SLS Special Issue of the Journal of Criminal Law, and we also take the opportunity to introduce a new national reform network, the Criminal Law Reform Now Network (CLRN Network) that we will be launching in 2017.
This chapter explores consciously manipulated sexual ‘consent’ from legal, psychological, and phi... more This chapter explores consciously manipulated sexual ‘consent’ from legal, psychological, and philosophical perspectives. As a prism through which to explore these issues, the paper looks at the lucrative ‘seduction industry’, with a particular focus on courses which purport to teach single men how to ‘programme’ women in the pursuit of sexual ‘consent’. Sitting between the extremes of consent by hypnosis, and consent by charm, we ask whether (and how) the law should engage with such activity, and what, if anything, this phenomenon tells us about the nature of consent. We analyse techniques of programmed consent over three parts. In Part A we discuss attacks on the mind in general terms, exploring the extent to which the law protects against mental manipulations. In Part B we focus on the seduction industry, and the detail of the claims made about their techniques. Finally, in Part C, we discuss how the current law (in the sexual context at least) could be used to protect victims’ mental integrity, whether the techniques attempted for programming consent are successful or not.
The criminal law of England and Wales, as with other jurisdictions, is made up of many thousands ... more The criminal law of England and Wales, as with other jurisdictions, is made up of many thousands of offences. Therefore, no more than a small sample could ever be taught within a criminal law module. The task for the academic is to teach this small subset of offences so as to provide students with a wide and contextual understanding of criminal law in general and a mechanism through which to understand and analyse other specific offences in the future. Both aspects are vital to any criminal law module, but it is the mechanism aspect that will be the focus of this chapter.
Our mechanisms for understanding and analysing criminal law are often referred to as the elements of crimes. Essentially, we aim to deconstruct whole criminal offences into their constituent elements . We do this in order to identify patterns between offences (often referred to as general principles), encourage consistent analysis between offences, provide a vocabulary for commenting on specific parts of offences, provide a structure for independent analysis of future offences, and so on. However, the identification and use of elements within the criminal law can also be problematic, potentially complicating rather than facilitating analysis and debate.
This chapter explores the teaching of criminal elements over five sections. The first discusses current practice in teaching, textbooks, and in court judgments, highlighting problems of incoherence and inconsistency. The second examines the potential for a universal structure of element analysis and how this can be used in teaching. The third highlights the potential advantages of this, with the fourth highlighting some potential problems. Finally, the fifth provides an overview of element analysis in other common-law jurisdictions. The discussion makes use of law and psychology literature to explain and support a number of the points made.
This paper provides a “first principles” analysis of the role and application of the insanity def... more This paper provides a “first principles” analysis of the role and application of the insanity defence. The defence works primarily as a mechanism for qualifying the normal rules of criminal liability as applied to mentally disordered offenders, balancing D’s individual (lack of) blameworthiness against the need for public protection. In order to perform this role effectively, we contend that the insanity defence must have an exclusionary effect. If the elements of the defence are satisfied, it should be applied at the exclusion of other overlapping (and otherwise alternative) rules. For example, where D might otherwise escape liability on the basis of lack of mens rea or via an alternative defence, if his plea is founded either directly or indirectly on a defect of reason arising from a disease of the mind, the insanity defence should be applied to the exclusion of these alternatives. Having established doctrinally this exclusionary effect in Pt 1, Pt 2 examines a number of recent cases where it has not (or has not fully) been recognised. These cases also prompt reflection in Pt 3 on which conditions should be categorised as a disease of the mind for the purposes of the insanity defence.
"In Pace and Rogers the Court of Appeal provided a welcome return to first principles for the me... more "In Pace and Rogers the Court of Appeal provided a welcome return to first principles for the mens rea of criminal attempt. They begin with an analysis of the rationale of attempts as a separate form of liability (and as a separate wrong) from the principal offence attempted: stressing that there is nothing anomalous, and indeed there is often merit, in attempts requiring a narrower mens rea than the principal offence. From here, the court are then able to interpret the mens rea of attempt (section 1(1) of the Criminal Attempts Act 1981 (CAA)) unencumbered by considerations of mens rea as to other offences, Davis J stating simply that ‘“intent to commit an offence” connotes an intent to commit all elements of the offence.’
With Pace and Rogers likely to be appealed to the Supreme Court, this comment argues that the approach taken by the Court of Appeal should be followed. In doing so, it is contended that the previous and inconsistent case of Khan should not be distinguished by the Supreme Court, but explicitly overruled. "
Elgar Encyclopedia of Crime and Criminal Justice, 2023
Inchoate offences are characterised by their point of intervention, criminalising conduct that pr... more Inchoate offences are characterised by their point of intervention, criminalising conduct that precedes the causing of substantive harms. In this manner, they provide practical tools for harm prevention, alongside the ability to punish conduct that may be deemed wrongful in its own right. However, these same advantages, in terms of early intervention, prompt questions of over-criminalisation and inappropriate intervention into the private realm. In this article, we explore the different constructions and origins of inchoate offences, distinguishing what we call ‘general inchoate offences’ from ‘bespoke inchoate offences’ as they have come to exist across different jurisdictions. We trace the ongoing development of each, critiquing their current application, and the academic and reform responses that have followed.
Intoxication is commonly associated with disinhibition and criminal conduct, where a defendant’s ... more Intoxication is commonly associated with disinhibition and criminal conduct, where a defendant’s (D’s) claim that she ‘only did it because of the drugs’ is a matter for sentencing. But where D’s intoxication is acute, it can sometimes result in D causing potentially criminal harms without mens rea; and D’s claim changes to ‘because of the drugs, I didn’t know what I was doing’. Here, D’s claim is a matter for liability: if D lacked essential mens rea, then she did not prima facie commit an offence. Prior-fault intoxication rules apply here, at the liability stage, to expand the legal evaluation of D’s conduct to include both actions in becoming intoxicated as well as actions when later causing harm, using this expanded lens to criminalise D as if she had mens rea.
In this chapter we examine the intoxication rules, focusing on the ‘fault’ identified within such rules as a substitute for D’s missing mens rea; using insights from the fields of behavioural and neural science. Scientific enquiry into mens rea states has some academic history, exploring how people experience and process mens rea states, whether juries understand directions on mens rea, and so on. But neuroscientific enquiry into prior-fault intoxication is different, and potentially highly significant, looking to construct a picture of exactly what the criminal law is targeting as fault.
Journal of International and Comparative Law, 2021
This article explores the contested legal conceptualisation and application of “prior-fault” rule... more This article explores the contested legal conceptualisation and application of “prior-fault” rules in England and Wales, Germany and the Netherlands. Prior-fault rules operate as an exception to the traditional application of criminal offences and defences, allowing a defendant’s previous conduct outside of an offence or defence definition to directly affect his or her liability. The paradigm example of this is prior-fault intoxication, where an intoxicated defendant is found liable for an offence despite lacking mental fault at the time of causing harm; with the missing mental fault effectively substituted by their previous choice to become intoxicated. However, as we discuss, prior-fault is not necessarily limited to such examples and has the potential to operate across a broad range of criminal rules. Through the comparison of jurisdictions, each with varying doctrinal applications of prior-fault, the article seeks both to better understand the concept as well as to analyse the most effective and defensible methods for its application in practice.
The article critiques the ‘loss of self-control’ requirement within Loss of Control partial defen... more The article critiques the ‘loss of self-control’ requirement within Loss of Control partial defence, investigating its meaning (legally and scientifically), as well as its theoretical purpose. We contend that the partial defence currently performs a curious and problematic role, promoting questions of self-control, that are most effectively dealt with at a post-conviction stage (i.e., at sentencing), into questions for the liability stage. This could be (perhaps best) resolved through the abolition of the mandatory life sentence for murder, and subsequent abolition of the partial defences, but it is accepted that the current political reality weighs heavily against this option. Looking for viable alternatives, we highlight the advantages of an approach that maximises discretion based on a full appraisal of potentially extenuating circumstances; before discussing how the current partial defence, including the requirement for a loss of self-control, should be interpreted to move the current law closer to this goal.
This article explores the use of mens rea terms in the criminal general part. We contend the curr... more This article explores the use of mens rea terms in the criminal general part. We contend the current law fails properly to conceptualise mens rea for a large category of offences, namely bespoke/substantive inchoate offences, attempt, conspiracy, assisting and encouraging, and the general offence of complicity. These offences involve two conduct events: one in the present and one in future. However, current mens rea terms are defined as if applied to the more conventional category of criminal offence which only involves present conduct—a practice which we term the ‘present-fault paradigm’. We explore the limits of current mens rea terms, defined for present-conduct targets (circumstances and results), when applied to future-conduct ulterior targets within inchoate and complicity offences. We contend that current mens rea definitions and analysis within the general part are inappropriate for targeting elements related to future conduct/offending, and we suggest more appropriate bases for conceptualising such mens rea.
The lack of scientific or clinical clarity faced by courts dealing with cases involving intoxicat... more The lack of scientific or clinical clarity faced by courts dealing with cases involving intoxicated criminal defendants is unavoidable, but introducing further legal ambiguity to meet policy goals introduces ever greater risk of problematic (including unjust) legal outcomes.
Background In the recent case of R v Taj, the Court of Appeal of England & Wales upheld the convi... more Background In the recent case of R v Taj, the Court of Appeal of England & Wales upheld the conviction of a defendant who, in a psychotic delusional state, mistook his non‐threatening victim to be a terrorist, violently attacking him. The law typically allows honest mistakes (even if unreasonable) as a basis for self‐defence (in this case the defence of others). But because Taj's delusions were found by the court to have been caused by voluntary alcohol consumption, special legal (prior‐fault) intoxication rules were applied to block his defence; Taj was convicted and sentenced to 19 years for attempted murder. Argument We focus here on the simple question – what does it mean to be intoxicated? On the facts, Taj did not have drugs active in his system at the time of the attack, but the court nonetheless insisted that Taj's delusional mistake was ‘attributable to intoxication’, namely to drink and drug‐taking in the previous days and weeks. This extended conception of intoxication was questionably distinguished from psychosis induced by withdrawal. Furthermore, the court was unreceptive to evidence of a long‐standing, underlying mental health disorder. We argue that the court's expanded view of intoxication is problematic in that intoxication‐induced psychosis cannot be sharply distinguished from other causes such as mental disorders. And even if it could be distinguished, it should not give rise to blame and punishment in the same way as conduct induced by chemically active intoxicants (‘drug‐on‐board’) does. Conclusion The courts’ expansion of the definition of intoxication is both legally and forensically problematic, introducing legal vagaries where the clinical science is already vague. And with intoxication frequently interlocking with historic intoxication and secondary or co‐morbid mental health conditions, the decision risks inappropriately and/or over‐criminalising defendants.
Simon Taj began drinking heavily on Friday 29 January 2016 and continued into the early hours of ... more Simon Taj began drinking heavily on Friday 29 January 2016 and continued into the early hours of Saturday 30 January. At roughly 2 pm on Sunday 31st January 2016, Taj came across the broken-down vehicle of Mohammed Awain. The vehicle was smoking, and Awain was standing beside it. Unfortunately, Taj mistook the wires and equipment he saw in the open boot of Awain’s car (Mr Awain is an electrician) as the components of a terrorist bomb which he was on the point of assembling to explode. Taj called the police, who attended the scene, to find that Awain was entirely innocent. Taj initially drove away following police assurances as to Awain’s innocence, but soon returned, still convinced that Awain was indeed a terrorist. Taj felt that he must do something to stop him. At 2.46 pm, Taj launched a ferocious attack on Awain with a metal tyre lever, almost killing him. When police arrived and restrained Taj, he expressed surprise – ‘why are you arresting me he's the terrorist’. Taj was so calm and lucid at interview, the police officers present did not arrange for blood samples to be taken. He was charged with attempted murder, but claimed to have acted in self-defence on the basis of his mistaken belief.
Our aim was to explore how (neuro)scientific understanding of addiction as a brain-disease impact... more Our aim was to explore how (neuro)scientific understanding of addiction as a brain-disease impacts criminal sentencing decisions in courts in England and Wales, where legal rules concerning intoxication, prior-fault and mental disease conflict, and sentencing guidelines lack clarity. We hypothesized that despite significant neuropsychiatric overlap of addiction and other brain-disorders, variables in relation to etiology would moderate magistrates’ sentencing decisions in cases involving addicted offenders. Using a questionnaire-based, quantitative design, and combining frequentist and Bayesian analysis approaches, we probed actual court magistrates’ sentencing decisions, and underlying rationale, for defendants presenting with brain damage resulting from a (fictional) disease, addiction to heroin, or more complex, mixed etiologies. When identical neuropsychiatric profiles resulted from disease, but not heroin addiction, prison sentences were significantly reduced. Study 1 ( N =109) found the pivotal factor preventing addiction from mitigating sentences was perceived choice in its acquisition; removing choice from addiction increased the odds of sentence reduction (~20-fold) and attaching choice to disease aggravated or reversed earlier leniency. Study 2 ( N =276) replicated these results and found that when heroin use led to disease or vice versa , magistrates found middle ground. These differences were independent of the age of onset of drug use. Finally, evidence of addiction was more likely to evoke punishment considerations by magistrates, rather than rehabilitation. Consistent with legal rules relating to intoxication, but running counter to norms around mental-illness and choice, our results demonstrate the need for clarity in sentencing guidance on addiction specifically, and mental disorders more generally.
When looking to identify the basic ingredients of criminal responsibility, reference is standardl... more When looking to identify the basic ingredients of criminal responsibility, reference is standardly made to a voluntary act requirement (VAR). We blame a defendant (D) for what she has done or (perhaps) failed to do where such doing or failing to do is proscribed by law; we do not punish mere thoughts or character. However, despite the continued appeal of the VAR in abstract principle, the precise definitions and restrictions entailed within it are not always clear, and its usefulness in preventing inappropriate criminalisation is openly (and in many cases correctly) challenged. Principally, and crucially, the VAR has received sustained attack in recent years from critics within the philosophies of action, highlighting its descriptive and normative shortcomings. It is contended that such criticism is misplaced. This article provides defence to a stripped-back definition of the VAR, distinguishing the general definition of action in philosophy from the definition of action within the criminal law, and seeking to identify and preserve a doctrinally workable model of the latter.
In chapter four, ‘The current state of murder in English law: a critique, wrong turns and all’, D... more In chapter four, ‘The current state of murder in English law: a critique, wrong turns and all’, Dr J.J. Child and Professor G.R. Sullivan explore the offence of murder in the context of its uniquely draconian mandatory sentence. The chapter highlights the normative restraints that such a sentence imposes; criticising the current law for its failure to maintain a narrow definition. In Part 1, the authors discuss the primary route to murder liability, where a defendant (D1) acts as a principal agent, highlighting the inappropriate breadth of current mens rea requirements in particular. In Part 2, discussion switches to the secondary route to murder liability, where D2 commits murder as the accomplice of D1. Focusing upon the recent landmark Supreme Court case of Jogee [2016] UKSC 8, the authors discuss and generally welcome the court’s ambition to narrow accomplice liability in murder to require something approaching a parity of culpability between D1 and D2. However, they also highlight conflicts and uncertainties within the judgment that threaten to undermine its potential in narrowing liability, including (a) uncertainty as to whether D2 must intend D1 to commit murder, (b) the use of conditional intention, and (c) assumptions around manslaughter as an alternative or back-up to murder. Across these alternative routes to murder liability, the chapter contends that liability should be interpreted narrowly and consistently and offers some guidance on associated reform.
The concept of ‘prior fault’ presents a number of significant challenges for the criminal law. Th... more The concept of ‘prior fault’ presents a number of significant challenges for the criminal law. The focus of criminal law (offences and defences) is necessarily event specific; we target and assess liability in relation to a snap-shot moment in time or a short series of acts, not as a judgement of prior or more general culpability or character. Therefore, prior fault should be largely an irrelevance at the liability stage. However, remaining faithful to this narrow focus in all circumstances would lead to considerable unfairness, creating an opportunity for defendants to manipulate legal rules to their own advantage. Some of the clearest examples of this arise in so-called contrived defence cases. Let’s take the example of self-defence, a general and complete defence where the defendant’s (D’s) use of force against the victim (V) is both necessary and reasonably proportionate. The standard operation of this defence is largely uncontroversial; people should be empowered to defend themselves from unlawful attack. However, what if D manufactures the circumstances of that ‘attack’ in order to use the law of self-defence to ‘justify’ her pre-planned use of force against V. For example, D wants to kill V. D hands V a knife and then goads V continuously until V (as anticipated) lashes out at D. D shoots and kills V in self-defence.
In order to understand and analyse examples such as the one above, we must distinguish two points in time within each potential criminal event. First, and standardly, we must look at the time where the potential criminal offence is committed (T2), asking whether the elements of the potential offence are completed, and if so, whether the elements of a potential defence can be found. In our example above, it is likely that the offence of murder was committed by D, but D would also be able to raise self-defence because of the attack from V. Secondly, we must look at D’s conduct prior to the potential crime (T1), to ask if D has done anything to undermine her future use of a defence at T2. In our example, this could be D’s prior fault in planning, and in manipulating V, in order to create the circumstances of her own defence. It is at this second stage, looking back to T1, that legal rules relating to prior fault must be identified and applied.
Issues of prior fault are (potentially) relevant across every criminal defence, and this has given rise to a variety of legal rules designed to prevent the application of contrived defences. However, the legal rules relating to prior fault are often unclear and inconsistent between different defences. Basic questions about what D must have done at T1, what she must have intended, and how this can impact liability at T2, all require investigation. In this article, we provide such an investigation. In Part 1 we explore the application of legal rules relating to prior fault within the current law, exposing areas of inconsistency and incoherence. Part 2 discusses the academic response to this inconsistency, including different models of prior fault that have been recommended in an effort to bring coherence to this area of law. Finally, in Part 3, building upon the academic analysis, we set out our own model of legal rules relating to prior fault; a model that we believe can (and should) be applied across all criminal defences. It is contended that the issue of prior fault can be addressed consistently, and that such rules should form part of any codification project.
Where criminal offences such as attempt and conspiracy require a defendant (D) to intend future c... more Where criminal offences such as attempt and conspiracy require a defendant (D) to intend future conduct, D’s intention will always be conditional. D’s intention may be explicitly conditional (eg, D intends to rob the shop, but only if unable to pay her rent), or implicitly conditional (eg, D intends to rob the shop, but if asked, would not do so if she found it surrounded by police). Rather than interpreting and defining conditional intention as synonymous with all future conduct intention, however, courts and commentators have too often approached it as unique, separate, and problematic. This has led to problems of inconsistency in application, and simple incoherence. This article sets out and defends a model of conditional intention as future conduct intention, and as the key to understanding and applying ulterior mens rea.
Academics and other legal researchers have always played a valuable role in the reform of crimina... more Academics and other legal researchers have always played a valuable role in the reform of criminal law, both through critique of the current law as well as through advocating reform options. There is no doubt that the expertise of legal researchers can contribute to better reforms of the law, and it is a position that carries obvious attractions for the researcher as well. Particularly for those of us who focus our research on identifying unfairness and incoherence within the current system, the opportunity to contribute to the betterment of the law, to use our work to improve that system, may be one of our principal motivations. It is also an activity, increasingly, that is being supported by universities and funding bodies, not least because of the emergence and growth of ‘impact’ requirements within the Research Excellence Framework (REF). Yet the role of the lone legal researcher within the dynamics of law reform remains difficult to identify, and even more difficult to realise in practice. It is on this topic that we contribute this short paper to the SLS Special Issue of the Journal of Criminal Law, and we also take the opportunity to introduce a new national reform network, the Criminal Law Reform Now Network (CLRN Network) that we will be launching in 2017.
This chapter explores consciously manipulated sexual ‘consent’ from legal, psychological, and phi... more This chapter explores consciously manipulated sexual ‘consent’ from legal, psychological, and philosophical perspectives. As a prism through which to explore these issues, the paper looks at the lucrative ‘seduction industry’, with a particular focus on courses which purport to teach single men how to ‘programme’ women in the pursuit of sexual ‘consent’. Sitting between the extremes of consent by hypnosis, and consent by charm, we ask whether (and how) the law should engage with such activity, and what, if anything, this phenomenon tells us about the nature of consent. We analyse techniques of programmed consent over three parts. In Part A we discuss attacks on the mind in general terms, exploring the extent to which the law protects against mental manipulations. In Part B we focus on the seduction industry, and the detail of the claims made about their techniques. Finally, in Part C, we discuss how the current law (in the sexual context at least) could be used to protect victims’ mental integrity, whether the techniques attempted for programming consent are successful or not.
The criminal law of England and Wales, as with other jurisdictions, is made up of many thousands ... more The criminal law of England and Wales, as with other jurisdictions, is made up of many thousands of offences. Therefore, no more than a small sample could ever be taught within a criminal law module. The task for the academic is to teach this small subset of offences so as to provide students with a wide and contextual understanding of criminal law in general and a mechanism through which to understand and analyse other specific offences in the future. Both aspects are vital to any criminal law module, but it is the mechanism aspect that will be the focus of this chapter.
Our mechanisms for understanding and analysing criminal law are often referred to as the elements of crimes. Essentially, we aim to deconstruct whole criminal offences into their constituent elements . We do this in order to identify patterns between offences (often referred to as general principles), encourage consistent analysis between offences, provide a vocabulary for commenting on specific parts of offences, provide a structure for independent analysis of future offences, and so on. However, the identification and use of elements within the criminal law can also be problematic, potentially complicating rather than facilitating analysis and debate.
This chapter explores the teaching of criminal elements over five sections. The first discusses current practice in teaching, textbooks, and in court judgments, highlighting problems of incoherence and inconsistency. The second examines the potential for a universal structure of element analysis and how this can be used in teaching. The third highlights the potential advantages of this, with the fourth highlighting some potential problems. Finally, the fifth provides an overview of element analysis in other common-law jurisdictions. The discussion makes use of law and psychology literature to explain and support a number of the points made.
This paper provides a “first principles” analysis of the role and application of the insanity def... more This paper provides a “first principles” analysis of the role and application of the insanity defence. The defence works primarily as a mechanism for qualifying the normal rules of criminal liability as applied to mentally disordered offenders, balancing D’s individual (lack of) blameworthiness against the need for public protection. In order to perform this role effectively, we contend that the insanity defence must have an exclusionary effect. If the elements of the defence are satisfied, it should be applied at the exclusion of other overlapping (and otherwise alternative) rules. For example, where D might otherwise escape liability on the basis of lack of mens rea or via an alternative defence, if his plea is founded either directly or indirectly on a defect of reason arising from a disease of the mind, the insanity defence should be applied to the exclusion of these alternatives. Having established doctrinally this exclusionary effect in Pt 1, Pt 2 examines a number of recent cases where it has not (or has not fully) been recognised. These cases also prompt reflection in Pt 3 on which conditions should be categorised as a disease of the mind for the purposes of the insanity defence.
"In Pace and Rogers the Court of Appeal provided a welcome return to first principles for the me... more "In Pace and Rogers the Court of Appeal provided a welcome return to first principles for the mens rea of criminal attempt. They begin with an analysis of the rationale of attempts as a separate form of liability (and as a separate wrong) from the principal offence attempted: stressing that there is nothing anomalous, and indeed there is often merit, in attempts requiring a narrower mens rea than the principal offence. From here, the court are then able to interpret the mens rea of attempt (section 1(1) of the Criminal Attempts Act 1981 (CAA)) unencumbered by considerations of mens rea as to other offences, Davis J stating simply that ‘“intent to commit an offence” connotes an intent to commit all elements of the offence.’
With Pace and Rogers likely to be appealed to the Supreme Court, this comment argues that the approach taken by the Court of Appeal should be followed. In doing so, it is contended that the previous and inconsistent case of Khan should not be distinguished by the Supreme Court, but explicitly overruled. "
Fitting to a modern-day Law Commission publication, this collection of essays is rather lengthy (... more Fitting to a modern-day Law Commission publication, this collection of essays is rather lengthy (some 39 chapters over 400 pages), but it has been built to last. From conference to collection, the editors have brought together a strikingly impressive range of contributors, including past and present Commissioners, Chairs of the Law Commissions, Chief Executives, as well as independent academics and parliamentarians. Marking the fiftieth anniversary of the Law Commission of England and Wales and the Scottish Law Commission, the collection offers something of a celebration of the Commissions’ good works, but principally stands as a unique insight into the dynamics (personal and institutional) of a cherished reform institution.
Th ere is plenty about our systems of criminal law, in England and Wales and in Scotland, that ne... more Th ere is plenty about our systems of criminal law, in England and Wales and in Scotland, that needs reform; there are plenty of groups working to reform particular aspects of our criminal law. Th ere are also two Law Commissions, for England and Wales and for Scotland, whose responsibilities cover law reform more generally – although they are not of course concerned only with criminal law. Each Law Commission develops regular ‘ Programmes of Reform ’ to guide its work over a number of years: the Law Commission for England and Wales published its 13th Programme in December 2017; the Scottish Law Commission produced its Tenth Programme in January 2018; in both cases, the Programme was based on a process of wide consultation. Law Commissions, both here and abroad, perform essential work in improving the quality of law reform, and provide an invaluable link between legal experts and the reform process. What is missing, however, is any systematic inquiry into the possibilities of, and needs for, criminal law reform – an inquiry that would engage practitioners, policy makers, academics, and citizens in the discussion of criminal law reform, and whose results could then help the Law Commissions (and other reform-oriented agencies) in developing concrete reform proposals. This book marks the first stage of a new project, which is intended to promote this kind of inquiry.
Criminal Law Reform Now brings together a set of legal experts to debate contemporary proposals for change within the criminal law. Th e first nine chapters of this volume outline and defend these proposals, with topics ranging across criminal law, criminal justice and evidence – including confiscation, control orders, criminal attempts, homicide, assisted dying, the special status of children, time restrictions on prosecution, the right to silence, and special measures in court. Each chapter is followed by a comment, providing an additional expert view on each reform proposal. Finally, the last two chapters broaden the debate to discuss criminal law reform in general, examining various reform bodies and mechanisms across England, Wales and Scotland.
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In this article, we explore the different constructions and origins of inchoate offences, distinguishing what we call ‘general inchoate offences’ from ‘bespoke inchoate offences’ as they have come to exist across different jurisdictions. We trace the ongoing development of each, critiquing their current application, and the academic and reform responses that have followed.
In this chapter we examine the intoxication rules, focusing on the ‘fault’ identified within such rules as a substitute for D’s missing mens rea; using insights from the fields of behavioural and neural science. Scientific enquiry into mens rea states has some academic history, exploring how people experience and process mens rea states, whether juries understand directions on mens rea, and so on. But neuroscientific enquiry into prior-fault intoxication is different, and potentially highly significant, looking to construct a picture of exactly what the criminal law is targeting as fault.
In order to understand and analyse examples such as the one above, we must distinguish two points in time within each potential criminal event. First, and standardly, we must look at the time where the potential criminal offence is committed (T2), asking whether the elements of the potential offence are completed, and if so, whether the elements of a potential defence can be found. In our example above, it is likely that the offence of murder was committed by D, but D would also be able to raise self-defence because of the attack from V. Secondly, we must look at D’s conduct prior to the potential crime (T1), to ask if D has done anything to undermine her future use of a defence at T2. In our example, this could be D’s prior fault in planning, and in manipulating V, in order to create the circumstances of her own defence. It is at this second stage, looking back to T1, that legal rules relating to prior fault must be identified and applied.
Issues of prior fault are (potentially) relevant across every criminal defence, and this has given rise to a variety of legal rules designed to prevent the application of contrived defences. However, the legal rules relating to prior fault are often unclear and inconsistent between different defences. Basic questions about what D must have done at T1, what she must have intended, and how this can impact liability at T2, all require investigation. In this article, we provide such an investigation. In Part 1 we explore the application of legal rules relating to prior fault within the current law, exposing areas of inconsistency and incoherence. Part 2 discusses the academic response to this inconsistency, including different models of prior fault that have been recommended in an effort to bring coherence to this area of law. Finally, in Part 3, building upon the academic analysis, we set out our own model of legal rules relating to prior fault; a model that we believe can (and should) be applied across all criminal defences. It is contended that the issue of prior fault can be addressed consistently, and that such rules should form part of any codification project.
Our mechanisms for understanding and analysing criminal law are often referred to as the elements of crimes. Essentially, we aim to deconstruct whole criminal offences into their constituent elements . We do this in order to identify patterns between offences (often referred to as general principles), encourage consistent analysis between offences, provide a vocabulary for commenting on specific parts of offences, provide a structure for independent analysis of future offences, and so on. However, the identification and use of elements within the criminal law can also be problematic, potentially complicating rather than facilitating analysis and debate.
This chapter explores the teaching of criminal elements over five sections. The first discusses current practice in teaching, textbooks, and in court judgments, highlighting problems of incoherence and inconsistency. The second examines the potential for a universal structure of element analysis and how this can be used in teaching. The third highlights the potential advantages of this, with the fourth highlighting some potential problems. Finally, the fifth provides an overview of element analysis in other common-law jurisdictions. The discussion makes use of law and psychology literature to explain and support a number of the points made.
With Pace and Rogers likely to be appealed to the Supreme Court, this comment argues that the approach taken by the Court of Appeal should be followed. In doing so, it is contended that the previous and inconsistent case of Khan should not be distinguished by the Supreme Court, but explicitly overruled. "
In this article, we explore the different constructions and origins of inchoate offences, distinguishing what we call ‘general inchoate offences’ from ‘bespoke inchoate offences’ as they have come to exist across different jurisdictions. We trace the ongoing development of each, critiquing their current application, and the academic and reform responses that have followed.
In this chapter we examine the intoxication rules, focusing on the ‘fault’ identified within such rules as a substitute for D’s missing mens rea; using insights from the fields of behavioural and neural science. Scientific enquiry into mens rea states has some academic history, exploring how people experience and process mens rea states, whether juries understand directions on mens rea, and so on. But neuroscientific enquiry into prior-fault intoxication is different, and potentially highly significant, looking to construct a picture of exactly what the criminal law is targeting as fault.
In order to understand and analyse examples such as the one above, we must distinguish two points in time within each potential criminal event. First, and standardly, we must look at the time where the potential criminal offence is committed (T2), asking whether the elements of the potential offence are completed, and if so, whether the elements of a potential defence can be found. In our example above, it is likely that the offence of murder was committed by D, but D would also be able to raise self-defence because of the attack from V. Secondly, we must look at D’s conduct prior to the potential crime (T1), to ask if D has done anything to undermine her future use of a defence at T2. In our example, this could be D’s prior fault in planning, and in manipulating V, in order to create the circumstances of her own defence. It is at this second stage, looking back to T1, that legal rules relating to prior fault must be identified and applied.
Issues of prior fault are (potentially) relevant across every criminal defence, and this has given rise to a variety of legal rules designed to prevent the application of contrived defences. However, the legal rules relating to prior fault are often unclear and inconsistent between different defences. Basic questions about what D must have done at T1, what she must have intended, and how this can impact liability at T2, all require investigation. In this article, we provide such an investigation. In Part 1 we explore the application of legal rules relating to prior fault within the current law, exposing areas of inconsistency and incoherence. Part 2 discusses the academic response to this inconsistency, including different models of prior fault that have been recommended in an effort to bring coherence to this area of law. Finally, in Part 3, building upon the academic analysis, we set out our own model of legal rules relating to prior fault; a model that we believe can (and should) be applied across all criminal defences. It is contended that the issue of prior fault can be addressed consistently, and that such rules should form part of any codification project.
Our mechanisms for understanding and analysing criminal law are often referred to as the elements of crimes. Essentially, we aim to deconstruct whole criminal offences into their constituent elements . We do this in order to identify patterns between offences (often referred to as general principles), encourage consistent analysis between offences, provide a vocabulary for commenting on specific parts of offences, provide a structure for independent analysis of future offences, and so on. However, the identification and use of elements within the criminal law can also be problematic, potentially complicating rather than facilitating analysis and debate.
This chapter explores the teaching of criminal elements over five sections. The first discusses current practice in teaching, textbooks, and in court judgments, highlighting problems of incoherence and inconsistency. The second examines the potential for a universal structure of element analysis and how this can be used in teaching. The third highlights the potential advantages of this, with the fourth highlighting some potential problems. Finally, the fifth provides an overview of element analysis in other common-law jurisdictions. The discussion makes use of law and psychology literature to explain and support a number of the points made.
With Pace and Rogers likely to be appealed to the Supreme Court, this comment argues that the approach taken by the Court of Appeal should be followed. In doing so, it is contended that the previous and inconsistent case of Khan should not be distinguished by the Supreme Court, but explicitly overruled. "
Criminal Law Reform Now brings together a set of legal experts to debate contemporary proposals for change within the criminal law. Th e first nine chapters of this volume outline and defend these proposals, with topics ranging across criminal law, criminal justice and evidence – including confiscation, control orders, criminal attempts, homicide, assisted dying, the special status of children, time restrictions on prosecution, the right to silence, and special measures in court. Each chapter is followed by a comment, providing an additional expert view on each reform proposal. Finally, the last two chapters broaden the debate to discuss criminal law reform in general, examining various reform bodies and mechanisms across England, Wales and Scotland.