Policy issue - cases

Cases which will be useful in the unit 6 policy issue, judicial precedent and law making essay.

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Brief facts - Contraventions of the Buildings Ordinance, Gammon was a contractor who was carrying out building works and was charged with a material deviation from an approved plan.

Issue - Strict Liability

Policy Issues - Punishing people when they are not seen to be at fault AND protecting the public as non strict liability offences are harder to get a conviction.

Decision - 1)there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence, 2)the presumption is particularly strong where the offence is 'truly criminal' in character; 3)the presumption app;ies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; 4)the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern public safety is such an issue; 5)even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.

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R v R

Brief facts - A man had sex with his wife against her will, which at the time was not considered to be ****.

Issue - **** within marriage

Policy Issues - Judges making law AND the protection of women

Decision - A man can be guilty of ****** his wife

Judicial comments on policy involved - Lord Keith, There is no good reason why the whole proposition could not be inapplicable in modern times. + Marriage is regarded as an equal partnershipi and a wife is no longer subsurvient to their husbands.

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R v Brown

Brief facts - A group of men took part in sado-masochistic acts which involved genital torture, all where older than the age of consent and had consented to the acts.

Issue - Consent

Policy issues - Protection of society AND the right to do what we wish in private

Decision - Guilty, consent is not a defence to s.47, if there had been no injury then it would have been a different matter.

Judicial comments on policy involved - Lord Lowry, This is not a manly diversion e.g. rugby + Not conducive to family life or the welfare of society. Lord Mustyl, spreading of disease does not warrant criminalising it. Lord Slynn, for parliament to decide.

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Re A

Brief facts - Jodie and Mary are conjoined twins, they each have their own brain, heart and lungs and other vital organs and they each have arms and legs. They could be successfully seperated but one of the twins would then die, however if the twins are not seperated then they will both die.

Issue - Necessity

Policy Issues -Right to life AND wishes of the parents

Decision - The surgery was completed and as expected one of the twins survived and the weaker one did not. 1)The feelings of the twins' parents are entitled to great respect, especially so far as they are based on religious convictions. 2) But as the matter has been referred to the court the court cannot escape the responsibility of deciding the matter to the best of its judgment as to the twins' best interests.

Judicial comments on policy involved - Walker LJ, In the absence of parliamentary intervention the law as to the defence of necessity is going to have to develop on a case by case basis.

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Basic facts - Charged with ABH under s.47 Offences against the Person Act 1861 by repeatedly making silent telephone calls accompanied by heavy breathing, to three women.

Issue -Harassment/stalking

Policy Issues - Protection from assault AND Judges extending the criminal law

Decision - Silent phone calls can amount to an assault

Judicial comments on policy involved - Lord Hope of Craighead, In my opinion silent telephone calls of this nature are just as capable as words or gestures, said or made in the presence of the victim, of causing an apprehension of immediate and unlawful violence.

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Brief facts - Some people who were homeless and others who were living in bad conditions sought assistance of a squatter's association, they made an orderly entry into some empty houses in the Borough of Southwark which were owned by the council. THe squatted there.

Issue -Duress

Policy Issues - Protection of property AND Providing housing and shelter

Decision - Squatters can not use necessity as a defence

Judicial comments on policy involved - Lord Denning, If homelessness were once admitted as a defence to trespass no one's house could be safe, necessity would open a door which no man could shut. + So the courts must for the sake of law and order take a firm stand. They must refues to admit the idea of necessity to the homeless and trust that their distress will be relieved by the charitable and the good.

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Brief facts - self induced intoxication

Issue - Intoxication

Policy Issues - whether someone who voluntarily became intoxicated should be allowed a defence to commiting a criminal offence

Decision - Intoxication is not a defence to basic intent crimes

Judicial comments on policy involved - Lord Elqyn-Jones LC, If a man of his own violition takes a substance which causes him to cast off the restraints of reason and conscience, no harm is done by holding him answerable criminally for any harm he may do while in that condition.

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