Mods- Revision-2012- Past Paper

Essays. Question 2. Are the legal principles underpinning accessorial liability the same in cases of joint enterprise as they are in cases of aiding, abetting, counselling and procuring? Should they be? Introduction & Argument: When we ask for advice, remarked Saul Bellow, we are usually looking for an accomplice, but it is not only the legal doctrine of complicity that upholds the tenet that one can be held legally responsible for the actions of another, the principle of joint enterprise also upholds that tenet. Despite this similarity, the two doctrines have a number of irreconcilable structural differences that, despite a similar theoretical grounding, mean that the legal principles that underpin both doctrines are not entirely identical. Furthermore, given the differences between both crimes it is wholly right that there is a difference in principles in order to lead to a satisfactory justification for both concepts. This can be elucidated through: defining the legal principles that are at the heart of both doctrines; comparing those principles for both similarities and differences; and evaluating whether the relationship between the principles that underpin both doctrines is currently correctly balanced. Begin with theoretical principles at the heart of accessorial liability: the derivative principle (Wilson, Dressler [Forfeit theory]) the causation principle (R v Kennedy; John Gardner; Hornle on Child Pornography) & the inchoate principle (Spencer) Then ask whether case law & theory indicates that these principles are the same for joint enterprise: highlight differences: For a Joint Enterprise the mens rea requirement is less than for an accessoryall that is required is that the defendant foresaw that the principle might go on to commit the crime they did [as per Mendez & R v A,B,C & D] As per AGs reference No 1 of 1975 a meeting of minds is not needed for accessorial liability to be incurred, this is contrary to Gnango in which it is held that a joint purpose is necessary. As per Lord Bingham in Rahman: it is not necessary for purposes of parasitic accessorial liability for murder in JE that accessory has foresight of intent to kill. A difference elucidated by Spencer, Sullivan and Virgo is that Aiding/abetting and joint enterprise are structurally unalike. In cases of aiding and abetting only one crime is at issue: crime A. S directly participates in crime A by her intended act of aiding and abetting that very crime. The wrong which makes S

responsible for crime A is that deliberate assistance or encouragement: it is her act of directly associating herself with Ps crime. Contra to Toulson LJ in Mendoza: it is probably impossible for there to be a joint enterprise where the members are not aware of anothers identity [as identified by herring] In R v Calhaem it is held that no causal link is needed: however in Gnango a causal link is needed. As R v Millward & R v Cogan & Leak: if the principal has not incurred criminal liability then the accomplice can still be held liable: this principle does not make any sense under Joint Enterprise laws. Another difference elucidated by Spencer, Sullivan and Virgo in [Criminal law: theory and doctrine] by entering into an agreement or joint enterprise, S changes her normative position. They become, through their own deliberative choice, a participant in a group action to commit a crime. Moreover their new status has moral significance: they associate herself with the conduct of the other members of the group in a way that the mere aider or abettor, who remains an independent character throughout the episode, does not. There is also a much greater degree of causation [Bring in Hart and Honore on Causation here] and a shift away from the inchoate principle given that there is a greater degree of action and change of normative position noted by John Gardner. Do just finally note David Ormerod: in [Smith and Hogans Criminal Law] that joint enterprise is simply one way of being an accomplice, however the structural differences mean that trying to understand the concept of joint liability through the three competing theories, given the change in normative position and the greater responsibility shouldered by the defendant, will lead to an unsatisfactory conclusion, given to the clear gulf within principles. It clouds judgements, leads to a greater deal of unsurety around the law. Then conclude.

Question 4. The offence of rape needs to balance the rights of sexual autonomy of defendants and victims. The current law fails to do that appropriately. Introduction & Argument: Everything in the world is about sex, remarked Oscar Wilde, except sex: sex is about power, and one of the most brazen displays of sex as power is present in the crime of rape. Indeed, the notion of sexual autonomy is one that is at best disregarded and at worst treated with disdain by the current laws on rape, with both the sexual autonomy of the defendant and the victim both often ignored by our legal system, thus leading to severe injustices. This failure can be elucidated by: defining the notion of sexual autonomy; evaluating whether the current legal precedents respect that notion; and whether the right of sexual autonomy should even be an integral part of our law on rape. Points to make: Firstly use Graupners definition of sexual autonomy: both the right to engage in wanted sexuality and the right to be free and protected from unwanted sexuality, from sexual abuse and sexual violence. This concept of reign over our sexual bodies is integral to the concept of rape: being seen by Shute and Horder as to where the wrong in rape comes from: drawing upon the philosophy espoused by Kant in a critique of pure reason they identify the wrong of rape being the sheer use of another person. Sexual autonomy, however is also irrevocably linked with the notion of personal autonomy, particularly the effect of violence upon personal autonomy, as Donald Dripps notes. Thus these notions irrevocably linked produce the concept of integrity: a combination of both the mind and the body & thus a true definition of sexual autonomy. Then use Laceys point about the importance of sexual autonomy: allow the body to integrate psychic and bodily experiences.

one small final distinction can be drawn between respect for the sexual autonomy of defendants and victims as individuals, defined above, and that as defendants and victims as members of society. It must be remembered, as McGregor notes, that rape expresses very clearly the message of the inferiority of women, and a message is sent out that the woman is for the rapists enjoyment, this trivialisation of rape leads to a culture in which women are seen as objects, and sexual abuse against women is normalised. Indeed, radical feminist theories of law, as argued by Mackinnon, note that rape must be seen in the context of a patriarchal society, and the current state of laws on rape will also impact individuals sexual autonomy through their detrimental effects on society, not just the individual Move onto evaluating whether current legal precedent respects that notion: Begin with cases in which defendant's sexual autonomy hasnt been respected: Kirk; Bree; Linekar; Jheeta Then note cases in which it has: Olugoja; Cicarelli; Devonald; Flattery & Williams Then go onto SOA 2003: argue that the key issue with balancing the interests of the defendant and the victim is that of consent, and that as the SOA hinges on consent it is fatally flawed. The concept of consent, as Robin West notes: is an extraordinary malleable notion, and the current laws concept of consent is one that is too narrow, So why should we worry about this? Well it sways the balance rampantly to the side of the defendant, not the victim. This could be seen as a causal factor as to why only 6% of rape cases currently result in a conviction 1. The social setting for consent. 2. Rape myths & pornography Use Laceys wider definition of consent that depends on the freedom to choose & then reiterate a need for a notion of consent based on relational autonomy. [If time note the concept of sexual autonomy in HIV positive individuals: Konzanzi & Dica] Conclusion: As Marx remarks: social progress is measured by the position of the female sex in society.