Journal of Criminal Law, The

Publisher:: Sage Publications, Inc.
Publication date:: 2021-08-12

ISBN:: 0022-0183

Issue Number

No. 89-1, February 2025

Latest documents

‘Discriminatory’ Sentencing: A Return to Coherence
Is Affirmative Consent the Answer? Yes, Sort of, Maybe
Recently, there have been some powerful calls in the media for the law to adopt an affirmative consent model in relation to the law on rape. This article explores this proposal. It argues that while there is much that is attractive about the concept of affirmative consent, it needs considerable unpacking and explanation before it can be accepted. Indeed, if adopted at a simplistic level, it carries considerable dangers. The article presents six ambiguities around what is meant by affirmative consent but concludes with a proposal as to what an appropriate nuanced model of could look like.
‘Deception as to Gender’: A Review of Proposed Revisions to CPS Legal Guidance on Rape and Serious Sexual Offences
This article considers recent proposed revisions to Crown Prosecution Service legal guidance on ‘Deception as to Gender’, that were put out for public consultation in September 2022. It does so against a backdrop of a series of sexual offence prosecutions brought against young LGBTQ people since 2012. These prosecutions, especially those brought against trans people, have been widely criticised. The article offers an assessment of the merits of the proposed revisions and their likely impact on prosecution decision-making, if implemented. The article will proceed as follows. Part 2 will provide some background context regarding prosecutions of this type. Part 3 will set out the current law pertaining to sexual fraud. Part 4 will provide a detailed analysis of the proposed revisions and will consider their likely impact on the practice of prosecution, if implemented. The article will argue that, while the proposed revisions strike a better balance between the interests of cis complainants and trans suspects charged with sexual offences, they continue, in important ways, to approach questions of evidence through hetero and cisnormative lenses to the detriment of trans and LGBQ suspects, and they provide a questionable pro-prosecution interpretation of legal doctrine concerning the proper scope of ‘deception as to gender’.
Seven Police Officers and a WhatsApp Group: What Could Go Wrong?
Suspicionless Stop and Search: You’re Joking, not Another one!
Police stop and search powers have been on the statute book for many years and are widely regarded as being an important tool in the prevention or detection of criminal offences. Whilst most of these powers require that an officer has ‘reasonable grounds to suspect’ that a person is in possession of a prohibited item or article before they may be exercised, the last 30 or so years has seen the emergence of ‘suspicionless’ stop and search powers on the statute book. These have proved to be controversial for a number of reasons, not least because they permit random stop and searches to occur which rarely result in officers finding what they were looking for, and have the potential to strain relations between the police and the communities they serve. Official data also makes clear that they have consistently been used in a racially disproportionate way. Under the Public Order Act 2023, a new suspicionless stop and search power has been created which is exercisable by the police in the context of peaceful protests. The case against it was strongly made in the House of Lords and beyond Parliament. Regrettably, it was not accepted by a government which was also unwilling to amend the legislation so as to enhance the safeguards designed to prevent the misuse of the power.
An Opportunity Missed. Clarifying the Availability of the Common Law Defence of Duress to Conspiracy to Commit Murder
Public Nuisance and the Meaning of a ‘Section of the Public’
Justifications for Imposing Strict and Absolute Criminal Liability, and the Case for a Halfway House Defence
The imposition of strict criminal liability is often controversial. This article first revisits the important functions of mens rea and establishes that imposing strict liability is prima facie unfair. This article then turns to explore arguments in favour of imposing strict liability, and evaluates whether these arguments are convincing. After establishing that displacing the requirement for the prosecution to prove mens rea can be justified in some circumstances, this article explores different alternatives that allow a balance to be struck between achieving the purpose of criminalisation and minimising the infringement of the presumption of innocence. Through a comparative analysis, it is suggested that enabling a halfway house defence through statutory construction by the courts would be valuable.
Nine Critical Factors in Prosecution Decision-Making
Prosecutors are critical players in the criminal justice process. The decisions they make have huge implications for defendants, victims and the wider public. Yet, the factors that influence their decisions are little understood. This article presents new empirical findings drawn from interviews with Crown Prosecutors. It reveals nine important factors that influence Crown Prosecutor decision-making. Together, these nine factors paint a much wider and richer picture of how and why Crown Prosecutors make decisions than has hitherto been presented in research or that is described in the Code for Crown Prosecutors. The article concludes by considering the implications for prosecution policy and practice from this new, richer and wider perspective.
Criminalising Stealthing: Lessons From the UK and Australia
The boundaries of sexual offences and the many facets of consent have provided somewhat of a legal conundrum, especially in the 21st century. Correctly identifying and labelling the various offences, alongside discussions around consent and deception, has had particular significance. The focal research question this article will consider is the concept of stealthing – a term used to describe non-consensual condom removal during sexual intercourse, how the criminal law should deal with such behaviour and the legal ramifications of this. We examine the utility of the current statutory frameworks and suggest avenues that extend beyond the criminalisation of this behaviour, focussing on both the UK and Australian territories in comparative analysis. An ideal and novel legal approach to addressing this non-consensual form of sexual behaviour is suggested.