This Consultation Paper gives provisional recommendations on whether a claimant who has been involved in illegal conduct should be entitled to enforce a claim in contract, unjust enrichment, trusts and tort. It follows earlier consultation papers on illegality in contacts and trusts (LCCP 154, 1999, 9780117302396) and the illegality defence in tort (LCCP 160, 2001, ISBN 9780117302457). How should the law respond if a claimant has been involved in some form of illegal conduct? Should this prevent the claimant winning his or her claim? It is difficult to set out hard and fast rules as the illegality defence may be used against claimants in such a wide variety of contexts. The courts have attempted to lay down a series of rules to apply in different circumstances. The result is a body of law which is uncertain and sometimes arbitrary, occasionally producing results which may appear unduly harsh or not harsh enough. The Commission believes that, in most areas of the law, it is up to the courts to develop clear, fair law, based on a set of policy rationales. Judges should base their decisions directly on the policies that underlie the illegality defence and explain their reasoning accordingly. The Commission makes proposals on what those policies should be. There is one area in which the Commission does not think that judicial clarification is possible: where a trust has been set up to hide true ownership for criminal purposes. The Commission feels that statutory reform is needed here, and is in the process of preparing a draft Bill which will be presented with the final report later this year.
This consultation paper reviews the law relating to homicide in England and Wales, and sets out a number of provisional proposals in order to establish a more rational and coherent framework of legislation. Issues discussed include: the existing law and problems with it; the definition of murder and manslaughter; partial defences including provocation, diminished responsibility and duress; the fault element in murder and the concept of intention; and the doctrine of double-effect. The paper proposes the creation of a new Homicide Act (to replace the Homicide Act 1957) to establish clear definitions of murder and the partial defences to it, as well as defining manslaughter, within a graduated system of offences (the ladder principle) to reflect seriousness of offence and degrees of mitigation. For example, the offence of murder should be divided into two categories, of 'first degree murder' (with a mandatory life sentence) and 'second degree' (with a discretionary life sentence maximum). Responses to the consultation paper proposals should be received by 13.04.2006.
Conspiring to commit a crime is a criminal offence. Under the current law, when two or more persons plot a crime they can be arrested at the planning stage, regardless of whether the crime is ultimately committed. Attempting to commit a crime is also an offence, but only if the perpetrator commits an act which is a "more than merely preparatory" step towards the commission of the offence itself. This consultation paper examines these two areas of criminal law. With conspiracy, conviction is dependent on it being proved that the perpetrator actually knows that the crime will be committed. With criminal attempt the uncertain character of the law leaves too much doubt in cases where common sense suggests that the accused is guilty. The law's definition of "preparatory" has become too generous to the accused. The Commission puts forward 21 proposals for consultation (which closes on 31 January 2008). The proposals should be considered in light of the recommendations made in the Commission's 2006 report "Inchoate liability for assisting and encouraging crime" (Cm. 6878, Law Com. No. 300, ISBN 9780101687829).
This report address the issue of intoxication from alcohol or other drugs and its bearing on the criminal liability, if any, of a person charged with an offence, whether it is alleged that the defendent committed the offence or that he/she took a secondary role in the commission by assisting or encouraging a perpetrator. The focus, in particular, is the extent to which voluntary intoxication should be available to support a 'defence' based on absence of fault.
In 1994 the Home Secretary made a reference to the Law Commission in the following terms: to consider the law of England and Wales relating to heresay evidence and evidence of previous misconduct in criminal proceedings; and to make appropriate recommendations, including, if they appear to be necessary in consequence of changes proposed to the law of evidence, changes to the trial process. This paper addresses this reference in three main sections: an account of the present law on the admissibility of bad character evidence; an attempt to identify the principles on which the law in this area should be based; and an examination of a number of options for reform, some of which are provisionally proposed.
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