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JCL 74 (2010) 223

Anger and Fear as Justifiable Preludes for Loss of Self-control
Susan S. M. Edwards

Following the Coroners and Justice Act 2009, s. 56, the common law defence of provocation, which depended on a sudden and temporary loss of self-control (following R v Duffy), is now abolished, as is s. 3 of the Homicide Act 1957. In its place is substituted a statutory defence of loss of self-control, which relies on some of the principles that constituted the grounds for provocation, its predecessor. For the first time fear qualifies as a new ground for loss of self-control (2009 Act, s. 55(3)). This article examines the new partial defence of 'loss of self-control' and considers what distinguishes the new defence from its predecessor and the features which are retained. It also evaluates whether the overarching objectives of restricting the ambit of the earlier defence and providing a new defence for battered women, shared by both the Law Commission and the government, are well considered and likely to be achievable. The new partial defence will be considerably restricted both by the new criteria and by returning the power to the judge, as 'gatekeeper', to prohibit an unmeritorious defence from going to the jury (2009 Act, s. 54(6)). The inclusion of fear as a new ground for loss of self-control will continue to present difficulties as long as the definition of 'extremely grave', a requisite of the qualifying trigger to this loss of self-control, is a jury question, and also insofar as 'justifiable sense of being seriously wronged' is to be judged on objective grounds. Further difficulties are presented by the requirement that the capacity for self-control, now expressed as the 'tolerance' and 'restraint', required of the defendant, is to be decided on objective grounds.

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JCL 74 (2010) 242

Being Informed : The Complexities of Knowledge Deception and Consent when Transmitting HIV
Lisa Cherkassky

The offence of inflicting grievous bodily harm under s. 20 of the Offences Against the Person Act 1861 has been confirmed as the most appropriate ground for convicting a reckless transmission of the HIV virus through sexual intercourse. An informed consent from the victim, along with a reasonable belief in that consent from the defendant, will now suffice as a defence to such a charge. However, it remains unclear how and when the victim must be informed of the relevant circumstances in order to provide consent to infected intercourse, and it is also undecided whether the defendant himself must divulge his HIV status in order to claim an honest belief in the victim's consent. Additionally, the fine line of consensual activity drawn in R v Brown appears to have been eroded by recent HIV transmission cases. This article outlines the development in relation to s. 20 to include HIV offences; it aims to untangle the recent authorities on knowledge, deception and consent in relation to both victims and perpetrators in reckless HIV transmission cases and suggests a way forward for the law in the shape of a new offence.

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JCL 74 (2010) 259

To Prosecute or Not to Prosecute? A Reconsideration of the Over-zealous Prosecution of Parents under the Fraud Act 2006
Chris Monaghan

The Fraud Act 2006 has received considerable public attention and press coverage as a result of the unsuccessful attempt to prosecute a mother for allegedly lying on her son's school application form. This article argues that it was inappropriate to begin proceedings using the Fraud Act 2006 in such circumstances. The use of fraud, which has become a catch-all offence under the Act, is dangerous. The prosecution attempted to stretch the statutory provisions of the Act and fell foul of the meaning of 'gain' or 'loss' and the principle of 'remoteness'. This article submits that it is wrong to criminalise behaviour just because we find it morally or socially objectionable. Consideration will also be given to whether there are other, more appropriate sanctions which may be taken in such circumstances.

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Links to other issues

Volume 65 (2001) :   1   2   3   4   5   6

Volume 66 (2002) :   1   2   3   4   5   6

Volume 67 (2003) :   1   2   3   4   5   6

Volume 68 (2004) :   1   2   3   4   5   6

Volume 69 (2005) :   1   2   3   4   5   6

Volume 70 (2006) :   1   2   3   4   5   6

Volume 71 (2007) :   1   2   3   4   5   6

Volume 72 (2008) :   1   2   3   4   5   6

Volume 73 (2009) :   1   2   3   4   6

Volume 74 (2010) :   1   2   3

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