墨尔本皇家理工大学Law Essay [2]
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关键词:普通法律刑事企图法案刑事举措法案Law Essay
摘要:本文是一篇墨尔本皇家理工大学的Law Essay,普法可能是英国法学的最基本的特征也是司法的一个有力工具。它允许法律保持灵活性且对于现代不断改变的世界是永远适用的。正如桑德拉弗里德曼所说,它的目的就是“防止由于一种法定制度的严重后果导致的贫穷”。[1]然而先例法律和法官的明智审判仍然是作为一个议会法律基础的补充。
e drug smuggling case of Shivpuri [4] . Here a man appealed against his conviction of drug smuggling, claiming that since the substance he thought to be drugs was actually nothing of the sort then he could not actually be guilty in law. The courts
Referenced the new statute and reasoned that all that was necessary was an act which was more than merely preparatory to the commission of an offence which the defendant did with the intention of committing an offence. This was consistent with the idea of intention being implied from a belief that the act committed was in fact illegal which is confirmed in section 1(3)(b) as “if the facts of the case had been as he believed them to be, his intention would be so regarded.” [5] In the case of Shivpuri this is referred to as physical impossibility. [6] This means that the crime cannot be committed as the elements do not equate to an offence. This is contrasted with legal impossibility as well as ineptitude impossibility. Ineptitude impossibility refers to those cases where the means that defendant uses makes the crime not sufficient to produce the desired result. An example of this would lie in putting too little poison or the wrong type of allergen in the victim’s food. Although normally the means would suffice, in this case the person’s incompetence causes the impossibility. Legal impossibility is best exemplified in the case of Taaffe [7] in which the defendant mistakenly thought that importing currency was illegal. Although he possessed intent and was committing the actus reus he was found not guilty. This is because a crime of importing currency is not illegal and there must be an illegal crime behind the act for it to result in a conviction. An example of both a physical and a legal impossibility lies in Haughton and Smith. [8] Here stolen goods were confiscated by the police and then an undercover officer pretended to deliver them to a third party who was then charged with handling stolen goods. Not only was this a physical impossibility as it is impossible to handle stolen goods but it is not a legally not a crime to handle goods that are not stolen.
Improvements of Actus Reus Through the Criminal Attempts Act 1981
Before the advent of the Criminal Attempts Act there was a great deal of mystery surrounding what exactly had to be proven in the actions of the defendant to render a conviction. Such an instability and unsoundness proved to be potentially dangerous for both the defense and the prosecution. Common law suggested through precedent that the ‘last act’ was to be the most accurate test of liability for attempts. Thus only those actions deemed proximate to the successful completion were prosecuted. Even after the legislature was enacted, common law insisted on interpreting the words “more than merely preparatory” as being hazardously close to the completed act itself. This generated issues of proof regarding whether the defendant had truly overstepped his legally permissible boundaries. Such was the case in Gullefer [9] where a man jumped on the racetrack in hopes of distracting the dogs so that the race would be forfeited and his money returned. The court strangely ruled that this was not beyond the stage of preparation as he had not confronted the bookkeeper and thus had not reached a convictable stage. Surely this logic hints at the dangers and problems that pervaded the law before the act established even the loose guideline of more tha
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