Criminal Law and Evidence

R v A [2001]

R v A [2001] UKHL 25 (17 May 2001)

Clare McGlynn, Durham University (judgment)

Louise Ellison, University of Leeds (commentary)

Following sustained feminist campaigning, the Youth Justice and Criminal Evidence Act 1999 introduced new provisions to restrict the use of sexual history evidence in sexual offence trials. In 2001, however, a unanimous House of Lords upheld a defendant's challenge to these provisions on the basis that they breached his right under Article 6 of the ECHR to a fair trial (by limiting his ability to question the complainant). The Law Lords used section 3 of the Human Rights Act 1998 to 'read down' the YJCEA so that it was in conformity with a defendant's right to a fair trial. In practice, this re-introduced judicial discretion into the system - the same judicial discretion the liberal exercise of which had given rise to the need for restrictive legislation in the first place.

Stone and Dobinson [1977]

R v Stone, R v Dobinson [1977] QB 354 (21 December 1976)

Lois Bibbings, Bristol University (judgment)

Neil Cobb, Durham University (commentary)

This case is still seen as an important precedent in relation to the imposition of omissions liability in criminal law. In the case, both Mr Stone and his "housekeeper/mistress", Ms Dobinson, were held to be guilty of manslaughter in their failure to care adequately for the former's elderly, frail Aunt Fanny, an eating disorder sufferer, who perished whilst she was living with them. Rather than, for example, deciding that liability arose through a familial connection or that there was some form of general duty to care for others, the court held that an expectation of reliance had been created by the couple's various attempts to assist Fanny. More specifically, by attempting, however ineptly and unsuccessfully, to help they had assumed a duty to act.

R v Brown [1993]

R v Brown [1992] UKHL 7 (11 March 1993)

Robin Mackenzie, University of Kent (judgment)

Matthew Weait, Birkbeck (commentary)

This cause célèbre arose out of the prosecution under the Offences Against the Person Act of a group of men engaged in consensual acts of homosexual sadomasochism. In upholding their convictions, the majority of the House of Lords held that consent could not be a defence to a charge of actual bodily harm, and also expressed strong moral disapproval of the activities involved. As the subsequent Law Commission report on consent in the criminal law made clear, however, the law governing consent to harm is an historic miscellany, rendering impossible attempts to delineate coherence. Nor do the judgments address why people might wish to engage in sexual practices such as those of the defendants, their ability to construct consensual rules governing them and the standing such agreements over conduct should have. The feminist dissenting judgment will critique the criminal law of sexual conduct and consent in this light.

R v Dhaliwal [2006]

R v D [2006] EWCA Crim 1139 (16 May 2006)

Vanessa Munro and Sangeeta Shah, Nottingham University (judgment)

Mandy Burton, University of Leicester (commentary)

The defendant subjected his wife to physical and psychological abuse over many years and was consequently charged with manslaughter and wounding when she committed suicide. The Court of Appeal confirmed previous authority that psychological injury alone did not suffice to constitute 'bodily harm' for the purposes of the Offences Against the Person Act 1861. However it also suggested that, subject to evidence and argument on the core issue of causation, bringing a charge of manslaughter against a partner whose unlawful conduct causes a recognisable psychiatric condition (e.g. post-traumatic stress disorder or battered women's syndrome) which results in suicide was not itself excluded.

R v Shah (Zoora) [1998]

R v Zoora Ghulam Shah [1998] EWCA Crim 1441 (30th April, 1998)

Samia Bano, University of Reading and Pragna Patel, Southall Black Sisters (judgment)

Susan Edwards, University of Buckingham(commentary)

Zoora Shah was convicted of the murder and attempted murder of Mohammed Azam, and her appeal on the grounds of diminished responsibility was rejected. In the Court of Appeal judgment Zoora was constructed as an 'unusual woman' whose testimony was 'beyond belief'. The Court rejected the evidence of a number of psychiatrists who had concluded that Zoora had been depressed over a number of years and was suffering from diminished responsibility during the killing of Azam. In particular they rejected the testimony of an expert in transcultural psychiatry, who explained that Zoora's inability to tell the truth at her original trial stemmed from her fear of shame and dishonour, and from other cultural constraints. The Court suggested that Zoora had 'no honour left to salvage' as her behaviour transgressed the social and moral dictates of the community to which she belonged. This case raises complex legal and ethical questions about the use of a cultural context in interpreting the actions of female defendants.

Attorney-General for Jersey v Holley [2005]

Attorney General for Jersey v. Holley [2005] UKPC 23 (15 June 2005)

Susan Edwards, University of Buckingham (judgment)

Clare Connelly, University of Glasgow (commentary)

Within the defence of provocation, the capacity for self-control of the reasonable man has vacillated over the years between a universal standard and a variable standard based on the defendant's characteristics. The Privy Council's judgment in this case reinstituted a fixed, normative standard of capacity for self-control, although the defendant's characteristics may still be taken into account in assessing the gravity of the provocation against which the capacity for self-control is judged. While this decision continues to offer a defence to those reasonable men whose characteristics are considered provocable, it has worrying implications for frightened women who kill in order to prevent their further victimisation at the hands of the deceased.