Showing key publications in this field, as selected by the author
Change to sort them by year | title | type OR
Show All 89 | Recent publications

DOI: 10.1525/nclr.2008.II.2.232

Critical re-examination of the doctrine of 'change of normative position' in criminal law theory, comparing it with forms of constructive liability.

ISBN: 1933-4206

A critique of the doctrine that ignorance of the criminal law is no excuse, showing how preposterous the doctrine is and arguing that, even if it should continue in a muted form, it should be accompanied by positive duties on the State to publicise its criminal laws.

ISBN: 0026-7961

This is a principled attack on the propensity of the English and Irish legislatures to impose strict liability for criminal offences that carry a sentence of imprisonment.

ISBN: 0021-1273

The article argues that certain criminal offences of possession, i.e. 'risk-based possession offences', cannot be justified within current criminal law doctrines.

ISBN: 1871-9791

Textbook on criminal law

ISBN: 978019 9578115

Book discussing theoretical debate in criminal law

ISBN: 978 0230577237

The current offence of child cruelty in the Children and Young Persons Act 1933 originates in 1868. This article contends that it is not fit for its purpose, particularly given new understanding of the neurological and developmental impairments inflicted by neglect and emotional abuse. It proposes a new comprehensive maltreatment of fans which would be comprehensible to criminal and civil child protection agencies, professionals and the public.

DOI: 10.1007/s11572-013-9231-z

This paper is about how best to understand the notion of ‘public wrongs’ in the longstanding idea that crimes are public wrongs. By contrasting criminal law with the civil laws of torts and contracts, it argues that ‘public wrongs’ should not be understood merely as wrongs that properly concern the public, but more specifically as those which the state, as the public, ought to punish. It then briefly considers the implications that this has on criminalization.

English law does not recognise the defence of obedience to superior orders. Recent years have seen voices calling for reconsideration of the law and for the adoption of a defence in some form. One of the reasons for this stance is the fact that the defence is recognised in the Rome Statute constituting the International Criminal Court (ICC). This article examines whether the law should be changed and the defence of superior orders introduced into English law. As the title suggests, the article concludes that such a change is not desirable and that the current position of the law is correct. Over the years very little has been written on the defence of superior orders in the domestic context but, not surprisingly, the subject has been widely discussed in international law in the context of the laws of war. Thus, the article starts (Section I) with the debate in international law, presenting the two main approaches regarding the recognition of a defence of obedience to superior orders: the absolute liability approach adopted by the Nuremberg Tribunal and other ad hoc tribunals over the years, and the conditional liability approach adopted by the ICC in the Rome Statute. Section II goes on to examine the possible rationales that underlie each position. It argues that the defence can be justified either as a recognition of the dilemma faced by the soldier who is required to obey the order as per national law, and to disobey it as per international law, or as a claim of mistake of law or of fact. The question then is whether these rationales can be transformed into domestic English law and support a claim for an adoption of a qualified defence of superior orders. Section III argues that two differences between the stance of English law and international law need to be accounted for: the first is that though the soldier’s dilemma is still applicable, it exists in a somewhat different structure which results in a limitation of the dilemma to borderline cases only, and the second is the fact that English law does not recognise the defence of mistake of law. As a consequence, it is submitted that the defence of superior orders should not be recognised in English law. Nevertheless, a claim of obedience to superior orders often obscures the real defence which should be advanced, and while superior orders should not be recognised as an independent defence the facts may constitute a basis for a defence of duress or of a mistaken case of private defence, both of which are recognised in English law.

Does a person who is voluntarily drunk remain capable of giving valid consent to sex? The Court of Appeal in Bree held that ‘a drunken consent is still (valid) consent’, though it further recognises that the capacity to consent may evaporate well before a complainant becomes unconscious. This decision is a move in the right direction, yet this article argues that it has not gone far enough, and that s. 74 of the Sexual Offences Act 2003 which governs these scenarios allows—and even requires—a more drastic interpretation: a drunken consent is not consent when the person is very drunk. Based on a distinction between factual and legal consent, the article starts by setting up the legal framework as set out in s. 74, and developed in Bree and H. It then goes on to criticise the current case law and its interpretation of s. 74 for not being restrictive enough, by examining two possible theoretical rationales, mentioned in the judgments. The first, which is based on an analogy with the law relating to intoxicated offenders, is criticised on the grounds of differences between consent and intent. The second, which is based on the general argument that this position recognises the positive aspect of sexual autonomy, is criticised for its failure to distinguish between claims of normative facts and claims of public policy and for giving too much weight to the latter considerations. From the discussion an alternative, more restrictive position, emerges in line with s. 74 of the 2003 Act, according to which a drunken consent is not consent. This position can be adopted by judges, through the provision of better guidance to juries, but failing that a reform of the law might be needed.

The article argues that there are two key problems with the current law concerning voluntary intoxication. First, the rules applicable so-called crimes of basic intent, contrary to some of the more recent case law, can in fact only apply coherently to reckless result crimes. Second, given the differences between the threshold for liability for sober defendants and the threshold for liability for voluntarily intoxicated defendants, the current rules amount in cases of basic intent to criminalisation of the intoxication itself. If this is to be the case, the article argues that the law should take this approach openly, so that in any case where the defendant lacks mens rea as a result of voluntary intoxication (s)he should be convicted instead of a new statutory offence of 'committing the actus reus of offence X while intoxicated', which could also apply coherently to all offences.