Undermining Prima Facie Consent in the Criminal Law

Even when a person appears to have consented to another’s interference with her interests, we sometimes treat this apparent consent as ineffective. This may either be because the law does not permit consent to validate the actions concerned, or because the consent is undermined by the presence of additional factors which render it insufficiently autonomous to be effective. In this paper I propose that the project of categorising and systematically analysing the latter set of cases, would be furthered by recognising (1) that prima facie consent is undermined when the prima facie consenter’s autonomy to choose whether or not to consent has been unfairly constrained, and (2) that theoretical and doctrinal clarity can be promoted by analysing the factors that unfairly constrain autonomy in the criminal law using a framework developed in contract law to determine analogous questions arising in relation to assent to a contract

Retreat, Submission, and the Private Use of Force

Different jurisdictions disagree on whether a person facing an illegitimate threat is ever required to retreat in the face of it or to submit to it, rather than using force in defence. Those that have attempted to identify the principled position on this issue also disagree about (i) the philosophical source (if any) of the duty to retreat; (ii) the interests that may privately be defended; and (iii) the point of time at which private force becomes available to a defender. I address these disputes by suggesting that rules requiring retreat or submission must be limitations on private force that flow from the state’s monopoly of legitimate force within its jurisdiction. I argue that these limitations on private force operate at two stages. The first stage limitations restrict ‘in-principle’ access to private force to cases in which the threat cannot be avoided non-forcefully, and the second stage limitations ensure that the force privately deployed does not exceed the force that the state could itself have legitimately deployed. Next, I examine whether certain interests often taken to be privately defensible ought to be treated as such. Finally, I describe the model of retreat and submission that follows from the ideas canvassed

UNDERSTANDING THE “HOUSEHOLDER DEFENCE”: PROPORTIONALITY AND REASONABLENESS IN DEFENSIVE FORCE

IN Collins v Secretary of State [2016] EWHC 33 (Admin), the High Court refused to declare that Criminal Justice and Immigration Act 2008, s. 76(5A) – the so-called “householder's defence” – was incompatible with the right to life enshrined in Article 2 of the ECHR, in that it failed to protect the lives of attackers sufficiently. Section 76(5A) was inserted into the 2008 Act by Crime and Courts Act 2013, s. 43, and came into force in April 2013

Corporate Agents in Criminal Law – An Argument for Comprehensive Identification

The doctrine of identification is often used to explain how corporations can commit criminal offences in their own right. Courts identify the natural persons who can be said to personify the corporation, and attribute their conduct and mental states to the corporation. However, current versions of the doctrine of identification suffer from several well-documented shortcomings. In this paper, I consider whether these shortcomings can be remedied by reformulating the identification doctrine to treat all corporate officers and employees as embodying the corporation when acting within their real or ostensible corporate authority

Don’t panic: Artificial intelligence and Criminal Law 101

This chapter argues that at least in relation to the substantive law of core criminal offences – the kind that form the foundations of substantive criminal law teaching at universities – these challenges are sometimes overstated. It aims to consider whether the criminal law has the resources to help us identify cases in which the artificial intelligence technology (AIT) seemingly criminal activity should be attributed to a human defendant. The chapter addresses offences with three different types of actus reus stipulations separately, since they raise different issues in the attribution analysis. These are: specific conduct offences, specific consequence offences and state of affairs offences. The set of concerns most frequently voiced are to do with instances in which the AIT is faced with a difficult choice about which criminalised outcome to bring about. There are several different inchoate offences, but once again, they are all composed of actus reus and mens rea elements that have previously been analysed

Rationale-Based Defences in Criminal Law

Although it is often accepted that rationale-based defences to criminal liability can be justificatory or excusatory, disagreements about how best to conceptualise the categories of justification and excuse have appeared so interminable that some theorists argue that they should be abandoned altogether. This book offers a novel, principled, and intuitively appealing conceptual account of the natures of justifications and excuses, showing how they differ, and why the distinction between them matters. The monograph breaks new ground by defending a model of rationale-based defences that turns solely on the quality of the defendant's reasoning. This model is shown to generate appealing liability outcomes, advance convincing solutions to questions that have puzzled criminal lawyers for years, and offer suggestions for doctrinal reform that are both normatively sound, and practical. By proposing new ways to think about defences, this book makes an original contribution to criminal law theory that will be of benefit to academics, practitioners, and persons interested in law reform

The Power to Consent and the Criminal Law

I examine what it is to have the ability to validly consent, and conclude that it is a Hohfeldian power. On that basis, I argue that the necessary conditions for the grant of consent must include all the necessary conditions for the exercise of a power. Using this idea, I attempt to isolate context-independent minimum conditions necessary for the grant of consent. I argue that the grant of consent requires an exercise of volition - the making of a choice - and that there exists no general requirement either that this choice be to invite a boundary crossing rather than merely to permit it, or that the choice invariably be accompanied by a performative token. Furthermore, I argue that the power to consent cannot be exercised so as to have retrospective effect. At most, the expectation of ratification may give rise to an entitlement to a supervening defence

The Corporate Agent in Criminal Law – An Argument for Comprehensive Identification

The doctrine of identification is often used to explain how corporations can commit criminal offences in their own right. Courts identify the natural persons who can be said to personify the corporation, and attribute their conduct and mental states to the corporation. However, current versions of the doctrine of identification suffer from several well-documented shortcomings. This paper sets out, and gives serious consideration to, a reformulated version of the identification doctrine that has the potential to addresses many of these shortcomings

False Beliefs and Consent to Sex

When, if ever, do mistaken beliefs render sexual activity non-consensual despite a person's seeming consent? I suggest that existing answers can be improved upon by paying due attention to two things, (1) that valid consent is often given through exercises of sexual autonomy that are, to different extents, unreflective rather than considered; and (2) that a belief can define both the object of consent, and a precondition for it. I propose that where V putatively consents to sexual activity with D, the falseness of a belief that V holds renders the sexual activity non-consensual when it means either that what happened to V fell outside the (consideredly or unreflectively selected) boundaries of the object of V's consent, or that a precondition that V consideredly set for her consent, had not been met

Generation of two-photon EPR and Wstates

In this paper we present a scheme for generation of two-photon EPR and W states in the cavity QED context. The scheme requires only one three-level Rydberg atom and two or three cavities. The atom is sent to interact with cavities previously prepared in vacuum states, via two-photon process. An appropriate choice of the interaction times one obtains the mentioned state with maximized fidelities. These specific times and the values of success probability and fidelity are discussed.Comment: 4 pages, 5 figure