Reforming Offences Against the Person

Published date01 December 2015
DOI10.1177/0022018315617583
Date01 December 2015
Article
Reforming Offences Against
the Person: In Defence of
‘Moderate’ Constructivism
Adam Jackson
Northumbria University, Newcastle-Upon-Tyne, Tyne and Wear, UK
Tony Storey
Northumbria University, Newcastle-Upon-Tyne, Tyne and Wear, UK
Abstract
Whilst the criminal law typically favours the principle ofcorrespondence between actus reus and
mens rea, the current law governing offences against the person takes an approach which may be
more accurately defined as ‘moderate’ constructivism. This approach is based on consideration
of both the defendant’s mens rea and the degree of harm caused by the defendant’s actions. The
recent Law Commission Scoping Consultation Paper Reform of Offences against the Personappears
to prefer reform based on a move towards the principle of correspondence. This article dis-
cusses the theoretical rationale for both the adoption of the correspondence principle and the
retention of a moderate constructivist approach in the context of offences against the person.
Consideration is given to the fairness of attributing liability to a defendant for the unforeseen
consequences of her actions and whether such an approach can be justified bythe change in D’s
normative position based on her decision to use violence. Consideration is also given to the
concept of fair labelling and to potential lacunae that may be created as a result of a move
towards a set of offences based on the correspondence principle.
Keywords
Offences against the person, correspondence principle, mens rea,actus reus, fair labelling
According to Campbell and Ashworth:
In general the criminal law seems to adopt what may be termed a principle of correspondence between mens
rea and actus reus: if the offence is defined in terms of certain consequences and certain circumstances, the
mental element ought to correspond with that by referring to those consequences or circumstances.
1
Corresponding author:
Adam Jackson, Northumbria University, Room CCE1-352, City Campus East, Newcastle-Upon-Tyne, NE1 8ST, UK.
E-mail: adam.jackson@northumbria.ac.uk
1. K. Campbell and A. Ashworth, ‘Recklessness in Assault—and in General?’ (1991) 107 LQR 187 at 192.
The Journal of Criminal Law
2015, Vol. 79(6) 437–447
ªThe Author(s) 2015
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DOI: 10.1177/0022018315617583
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