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The Northern Ireland legal quarterly最新文献

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Women who kill abusive partners: reviewing the impact of section 55(3) ‘fear of serious violence’ manslaughter – some empirical findings 杀害虐待伴侣的女性：审查第55（3）条“对严重暴力的恐惧”过失杀人的影响——一些经验发现
The Northern Ireland legal quarterly Pub Date : 2021-09-16 DOI: 10.53386/nilq.v72i2.877
S. Edwards
{"title":"Women who kill abusive partners: reviewing the impact of section 55(3) ‘fear of serious violence’ manslaughter – some empirical findings","authors":"S. Edwards","doi":"10.53386/nilq.v72i2.877","DOIUrl":"https://doi.org/10.53386/nilq.v72i2.877","url":null,"abstract":"In October 2010, section 55(3) of the Coroners and Justice Act 2009 came into force, and ‘fear of serious violence’ was expressly included in the statute as a qualifying trigger for ‘loss of self-control’ voluntary manslaughter, a partial defence to murder. This development (albeit that it is a gender-neutral provision) was anticipated to be an important step in recognising the situation of a woman who, in fearing a partner’s violence, control and abuse, kills to preserve her own life. The provision is only operative where ‘fear of serious violence’ and ‘loss of self-control’ can be established, which, given its limitations, prohibits many women in fear of a partner’s violence and coercion from successfully using this defence. The author’s review of the legal reform and the case law, together with 40 homicide cases involving female defendants who killed intimate current or former partners (April 2011–March 2016) demonstrates that this defence, which promised to deliver justice for abused women, has been little used. Women’s vulnerability and fear and response to intimate partner abuse and control is still insufficiently understood and explored and is evident where juries return murder rather than manslaughter verdicts. Further reform is needed to the legal framework regarding this and other defences in order to achieve a just law by incorporating women’s experience of, and defensive response to, violence and control in its many forms.","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44642641","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
Loss of control in the appeal courts 在上诉法院失去控制
The Northern Ireland legal quarterly Pub Date : 2021-09-16 DOI: 10.53386/nilq.v72i2.564
G. R. Sullivan, H. Crombag, J. Child
{"title":"Loss of control in the appeal courts","authors":"G. R. Sullivan, H. Crombag, J. Child","doi":"10.53386/nilq.v72i2.564","DOIUrl":"https://doi.org/10.53386/nilq.v72i2.564","url":null,"abstract":"The article critiques the ‘loss of self-control’ requirement within Loss of Control partial defence, investigating its meaning (legally and scientifically), as well as its theoretical purpose. We contend that the partial defence currently performs a curious and problematic role, promoting questions of self-control, that are most effectively dealt with at a post-conviction stage (ie, at sentencing), into questions for the liability stage. This could be (perhaps best) resolved through the abolition of the mandatory life sentence for murder, and subsequent abolition of the partial defences, but it is accepted that the current political reality weighs heavily against this option. Looking for viable alternatives, we highlight the advantages of an approach that maximises discretion based on a full appraisal of potentially extenuating circumstances; before discussing how the current partial defence, including the requirement for a loss of self-control, should be interpreted to move the current law closer to this goal.","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42568745","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Partial defences to murder: changed landscape and nomenclature 谋杀的部分辩护:景观和命名的改变
The Northern Ireland legal quarterly Pub Date : 2021-09-16 DOI: 10.53386/nilq.v72i2.897
Rudi Fortson
{"title":"Partial defences to murder: changed landscape and nomenclature","authors":"Rudi Fortson","doi":"10.53386/nilq.v72i2.897","DOIUrl":"https://doi.org/10.53386/nilq.v72i2.897","url":null,"abstract":"The reformed partial defences to murder, enacted under the Coroners and Justice Act 2009, reflect Parliament’s attempt to align those defences with modern social norms and medical experience whilst retaining the existing definition of ‘murder’, being an offence that attracts a mandatory fixed sentence of imprisonment or detention. However, Parliament departed from the recommendations of the Law Commission in important respects and the appellate courts have added their ‘voice’ to the scope of the partial defences. This article, which is written from a practitioner’s perspective, discusses the existing law and considers the extent to which, since 2009, the aims of policy-makers and law-makers have been fulfilled or have fallen short of expectations. The author contends that the reforms did not go far enough, that the term ‘diminished responsibility’ is no longer apt, that rules relating to ‘loss of control’ are unnecessarily complex and unsatisfactory, and that expert opinion evidence remains problematic.","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42515747","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
R v Westwood (Thomas): diminished responsibility and disposals under the Mental Health Act 1983 R诉Westwood（Thomas）：1983年《精神卫生法》规定的责任减轻和处置
The Northern Ireland legal quarterly Pub Date : 2021-09-16 DOI: 10.53386/nilq.v72i2.879
Sean Mennim
{"title":"R v Westwood (Thomas): diminished responsibility and disposals under the Mental Health Act 1983","authors":"Sean Mennim","doi":"10.53386/nilq.v72i2.879","DOIUrl":"https://doi.org/10.53386/nilq.v72i2.879","url":null,"abstract":"This is a commentary on R v Westwood (Thomas), where the Court of Appeal of England and Wales held that the judge had erred in assessing Westwood’s ‘retained responsibility’ as medium to high under the Sentencing Council Guideline for manslaughter by reason of diminished responsibility. Although the sentencing judge concluded that the offending was caused by Westwood’s anger, the Court of Appeal found the psychiatric evidence clearly indicated that the most significant factor was Westwood’s mental illness and that his anger at the time of the offence was a manifestation of his mental illness. Westwood’s responsibility was low, and it was appropriate to impose both a hospital and restriction order.\u0000 ","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48397736","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
R v Foy (Nicholas): voluntary intoxication, mental health and the case for diminished responsibility R v Foy(尼古拉斯):自愿醉酒、精神健康和减轻责任的案例
The Northern Ireland legal quarterly Pub Date : 2021-09-16 DOI: 10.53386/nilq.v72i2.880
B. Simpson
{"title":"R v Foy (Nicholas): voluntary intoxication, mental health and the case for diminished responsibility","authors":"B. Simpson","doi":"10.53386/nilq.v72i2.880","DOIUrl":"https://doi.org/10.53386/nilq.v72i2.880","url":null,"abstract":"In R v Foy, the appellant sought to adduce fresh evidence based on a difference in expert opinion. Dismissing the appeal, the Court of Appeal in England held that, where there is no solid basis for expert assertions, these appeals must fail. The case highlights the legal complexities intrinsic in diminished responsibility cases in the context of intoxication and mental health issues. This commentary addresses the legal ambiguities that arise under these circumstances.","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46751878","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Introduction: ‘Domestic and comparative perspectives on loss of self-control and diminished responsibility as partial defences to murder: a 10-year review of the Coroners and Justice Act 2009 reform framework’ 导言:“从国内和比较的角度来看，作为谋杀的部分辩护，自我控制的丧失和责任的减少:对2009年验尸官和司法法案改革框架的10年回顾”
The Northern Ireland legal quarterly Pub Date : 2021-09-16 DOI: 10.53386/NILQ.V72I2.930
A. Reed, N. Wake, B. Simpson
{"title":"Introduction: ‘Domestic and comparative perspectives on loss of self-control and diminished responsibility as partial defences to murder: a 10-year review of the Coroners and Justice Act 2009 reform framework’","authors":"A. Reed, N. Wake, B. Simpson","doi":"10.53386/NILQ.V72I2.930","DOIUrl":"https://doi.org/10.53386/NILQ.V72I2.930","url":null,"abstract":"","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":"21 1","pages":"161–170-161–170"},"PeriodicalIF":0.0,"publicationDate":"2021-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86709789","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The role of loss of self-control in defences to homicide: a critical analysis of Anglo-Australian developments 自我控制丧失在谋杀辩护中的作用:对英澳发展的批判性分析
The Northern Ireland legal quarterly Pub Date : 2021-09-16 DOI: 10.53386/nilq.v72i2.878
H. Douglas, A. Reed
{"title":"The role of loss of self-control in defences to homicide: a critical analysis of Anglo-Australian developments","authors":"H. Douglas, A. Reed","doi":"10.53386/nilq.v72i2.878","DOIUrl":"https://doi.org/10.53386/nilq.v72i2.878","url":null,"abstract":"The provocation defence has been the subject of legislative reform in England and Australia over the past 10 years. In England, it was abolished by section 56 of the Coroners and Justice Act 2009 and replaced with a partial defence of loss of control. In Australia, the provocation defence has been abolished in some states and significantly reformed in others. One of the key challenges for law reform has been how to ensure homicide defences are not overly restrictive for abused women who kill their abuser, while at the same time ensuring that homicide defences are not overly expansive for domestic abusers who ultimately kill their partner. With these challenges in mind, we critically examine the operation of the loss of control defence in England. There has been significant reform to the provocation defence across Australia, and, in this article, we also focus on the most recent reforms in Queensland and New South Wales. We conclude with some suggestions for further reform.","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45742847","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
Rationales: rejected, imagined and real – provocation, loss of control and extreme mental or emotional disturbance 理性：被拒绝、想象和真实——挑衅、失控和极端的精神或情绪障碍
The Northern Ireland legal quarterly Pub Date : 2021-09-16 DOI: 10.53386/nilq.v72i2.884
V. Bergelson
{"title":"Rationales: rejected, imagined and real – provocation, loss of control and extreme mental or emotional disturbance","authors":"V. Bergelson","doi":"10.53386/nilq.v72i2.884","DOIUrl":"https://doi.org/10.53386/nilq.v72i2.884","url":null,"abstract":"What makes intentional killing under provocation less reprehensible than murder? The answer to this question determines the rationale for the law; and the choice of the primary rationale – justificatory or excusatory – determines the scope and fundamental features of the partial defence.In this article, I attempt to parse through two reforms – one promulgated by the Model Penal Code 1980 (MPC), the other by the Law Commission for England and Wales – and compare their versions of the defence both to each other and to the ‘loss of self-control’ defence of the Coroners and Justice Act 2009 in the hope of determining and appraising the governing rationales for each version of the defence. I conclude that the largely justificatory defence of provocation developed by the Law Commission (and to a lesser degree the ‘loss of self-control’ defence) is legally and morally preferable to the largely excusatory defence proposed by the MPC.","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42013935","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Surrogacy and public policy 代孕与公共政策
The Northern Ireland legal quarterly Pub Date : 2021-08-31 DOI: 10.53386/nilq.v72iad2.921
E. O’Callaghan
{"title":"Surrogacy and public policy","authors":"E. O’Callaghan","doi":"10.53386/nilq.v72iad2.921","DOIUrl":"https://doi.org/10.53386/nilq.v72iad2.921","url":null,"abstract":"The Supreme Court in the United Kingdom has held that it is not contrary to public policy to award damages in tort to fund a commercial surrogacy in another jurisdiction where this is lawful. This significant decision, in the case of Whittington Hospital NHS Trust v XX [2020] UKSC 14, will potentially have an impact on the regulation and reform of surrogacy law in the United Kingdom, Ireland and internationally. The judgment delivered by Lady Hale draws attention to multiple inconsistencies in the law, and it highlights, in particular, the need for effective regulation of domestic surrogacy. Legislators face an important and imminent challenge to reconcile the reality of commercial surrogacy with a deficient legal framework. This article seeks to highlight some of the important issues which this case has raised when considering regulation and reform of surrogacy law.","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46343591","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Formulating the legislative structure of a hate crime 制定仇恨犯罪的立法结构
The Northern Ireland legal quarterly Pub Date : 2021-08-31 DOI: 10.53386/nilq.v72iad2.197
J. Schweppe
{"title":"Formulating the legislative structure of a hate crime","authors":"J. Schweppe","doi":"10.53386/nilq.v72iad2.197","DOIUrl":"https://doi.org/10.53386/nilq.v72iad2.197","url":null,"abstract":"Whilst hate crime legislation is well established in the three jurisdictions of the United Kingdom, Ireland has failed to address the issue of hate crime on a statutory basis. This article will seek to explore what legislative structure is most appropriate for such legislation in an Irish context, drawing on a comparative analysis of both the form and operation of such legislation in England and Wales, Northern Ireland, and Canada.","PeriodicalId":83211,"journal":{"name":"The Northern Ireland legal quarterly","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44635217","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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