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RE-VISITING the FRAUD ACT 2006 – a STEP TOO FAR? Hannah Willcocks
RE-VISITING THE FRAUD ACT 2006 – A STEP TOO FAR? Hannah Willcocks Brought into force on 15th January 2007,1 the Fraud Act 2006 (‘the Act’) has now been part of the criminal law of England and Wales for over 12 years. Through the introduction of a new general offence of fraud, its aim was to improve the law by making it: a. more comprehensible to juries, especially in serious fraud trials; b. a useful tool in effective prosecutions; c. simpler and therefore fairer; and d. more flexible so able to encompass all forms of fraud 2 and “deal with developing technology”.3 Following the Act’s implementation, it has generally4 been accepted5 that the Act has managed to overcome the vast majority of the difficulties previously encountered with the old offences of deception.6 In 2012, in its Post-Legislative Assessment of the Fraud Act 2006, the Ministry of Justice (‘MoJ’) concluded that the aims and objectives of the 1 The Fraud Act 2006 (Commencement) Order 2006 (SI 2006/3200). 2 Law Commission, Fraud (Law Com No 276, Cm 5560, 2002), para 1.6. 3 Home Office, Fraud Law Reform: Consultation on Proposals for Legislation (2004) p. 5. 4 For a contrary view see Anthony Arlidge QC, Jonathan Fisher QC, Alexander Milne QC and Polly Sprenger, Arlidge and Parry on Fraud (5th edn, Sweet & Maxwell 2016) 44, para 3-005. 5 See e.g. Simester and Sullivan’s Criminal Law, Theory and Doctrine (5th edn, Hart Publishing Ltd 2013) 610; Andrew Ashworth & Jeremy Horder, Principles of Criminal Law (7th edn, Oxford University Press 2013) 405; Carol Withey ‘The Fraud Act 2006 – some early observations and comparisons with the former law’ (2007) 71(3) Journal of Criminal Law, 220 – 237, 228 – 236; Nicholas Yeo, ‘Bull’s-Eye’, 157 NLJ 212 & 418. -
Principles of Criminal Liability
Criminal Law G153 PPRINCIPLES OF CCRIMINAL LLIABILITY 22:: Mens Rea By the end of this unit, you will be able to: Explain what is meant by the term ‘mens rea’ and illustrate your explanation with cases Understand what is meant by the terms: o Direct intent, o Oblique intent, o Specific & basic intent. Explain the current legal test for recklessness, and understand how the test evolved. Explain the scope of the doctrine of transferred malice and how the courts have developed the concept of coincidence. You will also be able to evaluate: The development of the law on oblique intent and the proposals for reforming it. The limitations of the doctrines of coincidence and transferred malice. Homework During this unit, you will be set the following. In completing homework, you will be expected to do your own research and supplement your own notes. This is essential to show understanding. 1. Complete Homework Sheet (2) 2. Complete Case Cards for Actus Reus and Mens Rea. End of Unit Assessment As with AS, you will sit a DRAG test on elements, but this will be done at the end of this unit. You will also complete the following problem question (from Part B of the exam), which we will plan in lesson time, and you will then write up in timed circumstances as your termly assessment. Wayne belongs to a terrorist organisation. He telephones the police to say that he has placed a bomb in a van on Westminster Bridge and confirms that it is timed to explode in fifteen minutes. The police telephone operator mistakenly thinks that Wayne has said 'fifty minutes' and immediately communicates this information to his superior officer. -
The British Journal of Inebriety
4 The British Journal of Inebriety SOME MEDICO-LEGAL RELATIONS OF INTEMPERANCE. BY STANLEY B. ATKINSON, M.A., M.B., B.Sc. Of the Inner Temple, Barrister-at-Law. IT is just three centuries since an Act was passed which first penalized “the loathesome and odious sin of drunkenness . to the great dishonour of God, and abusively wasting the good creatures of God.” Since then many pertinent questions relative to forensic proceedings have been raised for discussion by those interested in the possible medico-legal associations of the man addicted to POTUS. There are questions of immediate fact, involving skilled medical evidence; they rank as illustrations, and arise in the mass of unreported cases concerning intemperance. Thus, how can the condition of incipient or profound drunkenness be proved for practical purposes and differentiated from certain comparable disorders? In other words, Was this private citizen or that public servant “under the influence of drink ” as alleged at a stated time ? It is to be remembered in this connection that the fact of intoxication, if and when alleged in court, must be proved un- deniably by the affirmer ; for not only may the Bench or the jury be semi-sympathetic with the u weakness,” but the law presumes sobriety in all men. Again, the fact may be questioned, 1s this man ‘‘ an habitual drunkard ” ? There are also numerous occa- sions demanding the application of principles of law; when judicially decided, they rank as precedents. Thus, the fact of actual drunkenness, or of mental debility owing to the chronic abuse of intoxicants, being established, what possible legal con- sequences-advantageous or disadvantageous-can result ? Con- The British Journal of Inebriety 5 sidering the assertion that many men, on recovery from a bout of drinking, disclaim any desire to have become drunk, is it always right to speak of voluntarizcs dmon, or, with Baron Alderson, of " a madness for which the madman is to blame " (R. -
CRIMINAL ATTEMPTS at COMMON LAW Edwin R
[Vol. 102 CRIMINAL ATTEMPTS AT COMMON LAW Edwin R. Keedy t GENERAL PRINCIPLES Much has been written on the law of attempts to commit crimes 1 and much more will be written for this is one of the most interesting and difficult problems of the criminal law.2 In many discussions of criminal attempts decisions dealing with common law attempts, stat- utory attempts and aggravated assaults, such as assaults with intent to murder or to rob, are grouped indiscriminately. Since the defini- tions of statutory attempts frequently differ from the common law concepts,8 and since the meanings of assault differ widely,4 it is be- "Professor of Law Emeritus, University of Pennsylvania. 1. See Beale, Criminal Attempts, 16 HARv. L. REv. 491 (1903); Hoyles, The Essentials of Crime, 46 CAN. L.J. 393, 404 (1910) ; Cook, Act, Intention and Motive in the Criminal Law, 26 YALE L.J. 645 (1917) ; Sayre, Criminal Attempts, 41 HARv. L. REv. 821 (1928) ; Tulin, The Role of Penalties in the Criminal Law, 37 YALE L.J. 1048 (1928) ; Arnold, Criminal Attempts-The Rise and Fall of an Abstraction, 40 YALE L.J. 53 (1930); Curran, Criminal and Non-Criminal Attempts, 19 GEo. L.J. 185, 316 (1931); Strahorn, The Effect of Impossibility on Criminal Attempts, 78 U. OF PA. L. Rtv. 962 (1930); Derby, Criminal Attempt-A Discussion of Some New York Cases, 9 N.Y.U.L.Q. REv. 464 (1932); Turner, Attempts to Commit Crimes, 5 CA=. L.J. 230 (1934) ; Skilton, The Mental Element in a Criminal Attempt, 3 U. -
Tainted by Torture Examining the Use of Torture Evidence a Report by Fair Trials and REDRESS May 2018
Tainted by Torture Examining the Use of Torture Evidence A report by Fair Trials and REDRESS May 2018 1 Fair Trials is a global criminal justice watchdog with offices in London, Brussels and Washington, D.C., focused on improving the right to a fair trial in accordance with international standards. Fair Trials’ work is premised on the belief that fair Its work combines: (a) helping suspects to trials are one of the cornerstones of a just society: understand and exercise their rights; (b) building an they prevent lives from being ruined by miscarriages engaged and informed network of fair trial defenders of justice, and make societies safer by contributing to (including NGOs, lawyers and academics); and (c) transparent and reliable justice systems that maintain fighting the underlying causes of unfair trials through public trust. Although universally recognised in research, litigation, political advocacy and campaigns. principle, in practice the basic human right to a fair trial is being routinely abused. Contacts: Jago Russell Roseanne Burke Chief Executive Legal and Communications Assistant [email protected] [email protected] For press queries, please contact: Alex Mik Campaigns and Communications Manager [email protected] +44 (0)207 822 2370 For more information about Fair Trials: Web: www.fairtrials.net Twitter: @fairtrials 2 Tainted by Torture: Examining the Use of Torture Evidence | 2018 REDRESS is an international human rights organisation that represents victims of torture and related international crimes to obtain justice and reparation. REDRESS brings legal cases on behalf of individual Its work includes research and advocacy to identify victims of torture, and advocates for better laws to the changes in law, policy and practice that are provide effective reparations. -
Omissions and Criminal Liability
OMISSIONS AND CRIMINAL LIABILITY J. PAUL McCUTCHEON INTRODUCTION The question of liability for omissions raises issues of profound significance for the criminal law. While discussion thereof might be predominently theoretical - in practice prosecutors are likely to encounter few omissions cases - it is nevertheless impOltant as it embraces consideration of the proper scope of the criminal law, its function in the prevention of harm and the en couragement of socially beneficial conduct and the practical effectiveness and limits of the criminal sanction. Although it has not been seriously considered by Irish courts the issue has attracted the attention of courts and jurists in other jurisdictions. I The Anglo-American tradition is one ofreluctance to penalise omissions; to draw on the time honoured example no offence is committed by the able-bodied adult who watches an infant drown in a shallow pool. That gruesome hypothetical is happily improbable, but the general proposition is substantiated by the much-cited decision in People v. BeardsleyZ where it was held that the accused was not criminally answerable for the death from drug use of his 'weekend mistress' in circumstances where he failed to take the necessary, and not unduly onerous, steps to save her life. Likewise, the law does not impose a general duty to rescue those who are in peril nor is there a duty to warn a person of impending danger.3 A passive bystander or witness is not answerable for his failure to act, even where the harm caused is the result of criminal conduct.4 This general reluctance is evident in the manner in which criminal offences are defined. -
Should Western Australian Criminal Law Do More?
PROTECTING OLDER PERSONS FROM LIFE- THREATENING AND FATAL ABUSE: SHOULD WESTERN AUSTRALIAN CRIMINAL LAW DO MORE? MEREDITH BLAKE* The criminal law has a fundamental role in protecting bodily integrity and specifically the value of human life. This paper examines the role which the criminal law has played in addressing life-threatening and fatal abuse of older persons by others. It does so in light of the recent recommendations from the Australian Law Reform Commission and the Western Australian Parliamentary Inquiry Report on this issue. These reports acknowledge that elder abuse takes a variety of forms, but is commonly characterised by the breach of trust in an existing relationship. The paper reviews existing criminal protections in Western Australian criminal law and reflects upon several coronial inquiries. It submits that the moral distinctions characterising abuse which involve a life-threatening or fatal harm to an older person requires that the criminal law responds specifically to this abuse, and that such a response could be led by the inclusion of provisions in the Criminal Code (WA) which target those who facilitate this form of abuse of older persons. INTRODUCTION We live in an ageing society. Statistics from the Australian Institute of Health and Welfare indicate that in 2016, 15% of the population constituted older persons (persons aged 65 years and over), with that proportion expected to steadily rise.1 Global ageing is claimed to have led to ‘a corresponding increase in the number of older persons living in vulnerable and dependent circumstances, making them particularly vulnerable to abuse and neglect’.2 However being older is not inherently associated with vulnerability; the World * Law School, University of Western Australia. -
Criminal Law and Litigation CPD Update
prepared for Criminal Law and Litigation CPD Update Andrew Clemes CPD Training 2008 edition in Law ILEX CPD reference code: L22/P22 CPD © 2008 Copyright ILEX Tutorial College Limited All materials included in this ITC publication are copyright protected. All rights reserved. Any unauthorised reproduction or transmission of any part of this publication, whether electronically or otherwise, will constitute an infringement of copyright. No part of this publication may be lent, resold or hired out for any purpose without the prior written permission of ILEX Tutorial College Ltd. WARNING: Any person carrying out an unauthorised act in relation to this copyright work may be liable to both criminal prosecution and a civil claim for damages. This publication is intended only for the purpose of private study. Its contents were believed to be correct at the time of publication or any date stated in any preface, whichever is the earlier. This publication does not constitute any form of legal advice to any person or organisation. ILEX Tutorial College Ltd will not be liable for any loss or damage of any description caused by the reliance of any person on any part of the contents of this publication. Published in 2008 by: ILEX Tutorial College Ltd College House Manor Drive Kempston Bedford United Kingdom MK42 7AB Preface This update has been prepared by ILEX Tutorial College (ITC) to assist Fellows and Members of the Institute of Legal Executives (ILEX) in meeting their continuing professional development (CPD) or lifelong learning requirements for 2008. Fellows are required to complete 16 hours of CPD in 2008 and Members eight hours of CPD. -
H LTD V J & ANOR
SUPREME COURT OF SOUTH AUSTRALIA (Applications Under Various Acts or Rules: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. H LTD v J & ANOR [2010] SASC 176 Judgment of The Honourable Justice Kourakis 15 June 2010 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - OTHER MISCELLANEOUS OFFENCES AND MATTERS HEALTH LAW - MISCELLANEOUS MATTERS HIGH COURT AND FEDERAL COURT - HIGH COURT OF AUSTRALIA - ORIGINAL JURISDICTION - MATTERS IN WHICH HIGH COURT HAS ORIGINAL JURISDICTION - COMMONWEALTH AS A PARTY PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - DECLARATIONS - JURISDICTION First defendant a resident in a high care unit of plaintiff’s facilities – first defendant informed plaintiff to end life by ceasing to take any food, water or medical treatment necessary for particular conditions suffered – first defendant proposes to give plaintiff direction not to provide nutrition, hydration and insulin - plaintiff seeks declarations which will allow it to determine the extent to which it can lawfully comply with direction of first defendant to be given to achieve stated intention – Commonwealth opposes directions sought with respect to consequences -
Peter Rowlands
Peter Rowlands YEAR OF CALL: 1990 Peter Rowlands has an established reputation as a tough and committed advocate and experienced leader in criminal defence work. He has a wide-ranging practice from homicide where he acts as leading junior or sole counsel to serious sexual offences, major drug importations, fraud and money-laundering. Peter is ranked for crime in Chambers UK 2019 and the Legal 500 2019. "A decent and fair opponent who is fazed by nothing." "A wonderful advocate who you can listen to all day, he is great with juries and clients. He's the archetypical jury advocate." CHAMBERS UK, 2021 (CRIME) "His thorough case preparation, unrivalled knowledge of the law and relaxed character enables clients to firstly understand and then thoroughly trust his advice and guidance." LEGAL 500, 2021 (CRIME) "His deft and intelligent cross-examination is a joy to observe." LEGAL 500, 2020 "He defends in gang and organised crime-related cases." LEGAL 500, 2019 Extremely thorough and committed, a skilled tactician and incredibly eloquent." LEGAL 500, 2017 If you would like to get in touch with Peter please contact the clerking team: [email protected] | +44 (0)20 7993 7600 CRIMINAL DEFENCE Peter Rowlands has an established reputation as a tough and committed advocate and experienced leader in criminal defence work. He has a wide-ranging practice from homicide where he acts as leading junior or sole counsel to serious sexual offences, major drug importations, fraud and money-laundering, including contested confiscation proceedings. He has been mentioned in the Legal 500 as having developed a particular expertise in murder and armed kidnapping cases and has maintained a ranking in Chambers UK Bar Guide for many years. -
THE ADELAIDE LAW REVIEW Law.Adelaide.Edu.Au Adelaide Law Review ADVISORY BOARD
Volume 40, Number 3 THE ADELAIDE LAW REVIEW law.adelaide.edu.au Adelaide Law Review ADVISORY BOARD The Honourable Professor Catherine Branson AC QC Deputy Chancellor, The University of Adelaide; Former President, Australian Human Rights Commission; Former Justice, Federal Court of Australia Emeritus Professor William R Cornish CMG QC Emeritus Herchel Smith Professor of Intellectual Property Law, University of Cambridge His Excellency Judge James R Crawford AC SC International Court of Justice The Honourable Professor John J Doyle AC QC Former Chief Justice, Supreme Court of South Australia Professor John V Orth William Rand Kenan Jr Professor of Law, The University of North Carolina at Chapel Hill Professor Emerita Rosemary J Owens AO Former Dean, Adelaide Law School The Honourable Justice Melissa Perry Federal Court of Australia The Honourable Margaret White AO Former Justice, Supreme Court of Queensland Professor John M Williams Dame Roma Mitchell Chair of Law and Former Dean, Adelaide Law School ADELAIDE LAW REVIEW Editors Associate Professor Matthew Stubbs and Dr Michelle Lim Book Review and Comment Editor Dr Stacey Henderson Associate Editors Kyriaco Nikias and Azaara Perakath Student Editors Joshua Aikens Christian Andreotti Mitchell Brunker Peter Dalrymple Henry Materne-Smith Holly Nicholls Clare Nolan Eleanor Nolan Vincent Rocca India Short Christine Vu Kate Walsh Noel Williams Publications Officer Panita Hirunboot Volume 40 Issue 3 2019 The Adelaide Law Review is a double-blind peer reviewed journal that is published twice a year by the Adelaide Law School, The University of Adelaide. A guide for the submission of manuscripts is set out at the back of this issue. -
A Comparison of R. V. Stone with R. V. Parks: Two Cases of Automatism
ANALYSIS AND COMMENTARY A Comparison of R. v. Stone with R. v. Parks: Two Cases of Automatism Graham D. Glancy, MB, ChB, John M. Bradford, MB, ChB, and Larissa Fedak, BPE, MSc, LLB J Am Acad Psychiatry Law 30:541–7, 2002 Both the medical and legal professions recognize that The Diagnostic and Statistical Manual of Mental Dis- some criminal actions take place in the absence of orders, fourth edition (DMS-IV),3 does not define consciousness and intent, thereby inferring that these automatism, although it does include several diag- actions are less culpable. However, experts enter a noses, such as delirium or parasomnias, that could be legal quagmire when medical expert evidence at- the basis for automatism. tempts to find some common meaning for the terms The seminal legal definition is that of Lord Den- “automatism” and “unconsciousness.” ning in Bratty v. A-G for Northern Ireland: 1 The Concise Oxford Dictionary defines autom- . .an act which is done by the muscles without any control by atism as “Involuntary action. (Psych) action per- the mind, such as a spasm, a reflex action, or a convulsion; or an formed unconsciously or subconsciously.” This act done by a person who is not conscious of what he is doing, seems precise and simple until we attempt to de- such as an act done while suffering from concussion or while 4 fine unconscious or subconscious. Fenwick2 notes sleepwalking. that consciousness is layered and that these layers This was developed by Canadian courts in R. v. Ra- largely depend on subjective behavior that is ill de- bey: fined.