Provocation and non-violent homosexual advances.

Some controversial areas of provocation have been developed to a significant extent in foreign jurisdictions before migrating to England and Scotland. The most obvious example is that of the battered women defence which modifies a crucial aspect of the plea for the particular and unusual situation in hand. The same point can be said of the so-called non-violent homosexual advance defence which has received a significant amount of coverage (most notably in Australia) but has yet to be discussed in any detail here. The particular aspect of provocation discussed here is the relevance of the proportionality requirement in cases of homosexual advance

Provocation: pushing the reasonable man too far?

Almost every aspect of the partial defence of provocation has caused considerable debate over the years. Areas of difficulty range from the question of when the issue should be left to the jury, to the relevance of the defence to battered women who kill. The issue for consideration here will be the reasonable or ordinary man and the characteristics imputed to him in the light of the accuseds own character. R. v. Smith reaffirms the Court of Appeals view that the accused's characteristics should be included at all levels of the test. Attitudes to this differ considerably. On the one hand, some argue that the doctrine weakens the legal requirement of self-control and is therefore only acceptable where the accused has been pushed to extremes. This is ensured by maintaining a highly objective approach and narrow interpretation of the reasonable man. On the other hand, it is argued that, in the interests of attaining justice, characteristics of the accused should be imputed to the reasonable man in order to acknowledge that some people will find conduct more provoking than others, and that some individuals may have a lower threshold of self-restraint which should be taken into account. This article considers the merits of these two approaches by analysing recent English case law and contrasting this with Australian developments

Crimes against the foetus: the rights and wrongs of protecting the unborn.

The legal position of the foetus raises difficult questions about the status which we accord the developing human being within society. Most conceptions of criminal liability are predicated on the person; usually, there is a victim and an aggressor, both of whom must be legally relevant persons before doctrines of criminal law can be applied. Conceptions of personhood in this context are most often taken in relatively straightforward terms. Surely we know who is, and is not, a “legally relevant person”? And yet, the question is not easily answered in respect of the foetus. Within the UK and American traditions, a “legally relevant person” has not included the unborn child, but increasing developments in the field of foetal rights, particularly in some American jurisdictions, casts doubt on this. In analysing the status of the foetus under national criminal laws, there are two questions to be posed. First, is the foetus capable of being described as a victim and secondly, should recognition of the foetus as a victim bring into play the associated criminal defences which would be available if the accused had attacked or killed an independent individual? Of these, the first presents perhaps the greatest hurdle while the second falls into place if the first is accepted. If we accept that the foetus can be classified as the victim, then a prosecutable crime has been perpetrated and, in principle at least, it would seem reasonable to make available such defences as would be open to the accused in any other such case. Thus, and of particular note to the American developments discussed later, if we accept the foetus as a victim of a homicidal assault at the hands of a third party, should we then accept a defence for a person who intervenes, and perhaps even kills that third party, in defence of the unborn victim

Inchoate crimes: incitement, conspiracy and attempts in Scottish criminal law.

The question of whether it is suitable to inflict punishment, and if so, to what degree, arises in all areas of legal inquiry, and beyond them, most notably in religion, philosophy and social science. Punishment is generally defined as a painful or unpleasant consequence imposed on an offender for a breach of a legal rule. A central feature of any concept of punishment is some form of identification of punishment with legitimate authority. Without this we are left with little more than private, random and retributive violence. Such legitimacy may rest upon various grounds amongst which a legal basis is of outstanding importance and may, substantively, take many forms. Legitimation in general and, more specifically, the legitimation of punishment are issues rooted in the historically most remote areas of intellectual inquiry; essentially the religious and philosophical struggles to give meaning to the potentially meaningless round of human existence. The file for this record represents only a sample chapter from the whole work, which is available for purchase from the publisher

Pater knows best: withdrawal of medical treatment from infants in Scotland.

The cases of Charlie Gard and Alfie Evans placed the withdrawal of treatment from terminally ill infants at the forefront of medical law and ethics. In the medico-legal context, Scottish court procedures materially differ from those in England. This article considers these differences in light of the possibility that a similar case might soon be called before the Scottish courts. The Court of Session would then be required to consider whether to utilise its parens patriae jurisdiction to consent to the withdrawal of treatment as if it were the parent of the infant. The operation of this jurisdiction is such that the outcome of any Scottish case cannot be said to be certain, as the Scottish courts are bound to pay more heed to parental autonomy than their English counterparts do

Making treatment decisions for the future: advance directives and the question of legislative clarity.

This article sets out to consider the extent to which advance directives can be used as an effective means to entrench personal autonomy, and, in the light of their statutory form in numerous other jurisdictions, consider the various approaches which are currently used abroad to determine whether Scotland, which at present has no legislation entrenching their use, would benefit from such an approach

Opening Our Eyes : How film contributes to the culture of the UK

Opening our eyes looks at how films are consumed and the factors which affect people’s viewing choices. It also covers the relationships audiences report between film and other activities. It goes on to explore the sorts of effects which film has upon people, their sense of identity and relationship with the world. Finally it looks at the various effects which individual films have had on those surveyed and reaches a number of conclusions.Final Published versio