Reforming Offences Against the Person

Abstract

Whilst the criminal law typically favours the principle of correspondence 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 Person appears to prefer reform based on a move towards the principle of correspondence. This article discusses 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 by the 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.

Not Giving Up the Fight

“…61 In this view, if D decided to commit an offence, then he has already acted beyond the 'threshold of criminality' and for this reason holding him liable for any adverse consequence caused by his conduct is warranted. 62 What might be preferred, however, is a form of 'moderate constructivism'. Under this approach we can be more restrictive as to the circumstances under which liability can be established.…”