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Attempting The Impossible

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So long as a crime lies in the human mind it is not punishable, because criminal thoughts often occur to people without any serious intention of putting them into execution. However, the legal position differs when some form of action is taken to put the desire into effect. A man who is stopped before he was able to accomplish his crime may commit what is in itself an inchoate offence. The offence of attempt at common law was put into statutory form, with some amendments, by the Criminal Attempts Act 1981. But what if the crime committed was in fact impossible to commit?

A man stabbed a women in her sleep, not realising that his victim had already died in her sleep from a heart attack. Could the stabber be convicted of murder? The obvious answer would be no as ‘murder’ is defined as an “unlawful premeditated killing”. In this scenario, although the man committed an unlawful act, he did not commit a killing. Theoretically speaking, the man is also clear of attempted murder, given that it would be impossible for the man to kill someone who is already dead. The man has therefore attempted the impossible. Section 1 of the Criminal Attempts Act 1981 states that “a person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.” Therefore, if the facts of the case had been as he believed them to be, his intention would be regarded and he would therefore be able to be convicted of attempted murder.

This rather cumbrous statutory provision boils down to the fact that in respect of an attempt, you take the facts as the defendant believed them to be. If, on the supposed facts, he would have been guilty of an attempt, then he is guilty of it. The area of impossibility falls into multiple categories. One category is legal impossibility; this is where a man believes he is doing an illegal act, which is actually legal. Suppose a person thinks he is smuggling bread into the country and mistakenly thinks that it is an offence to import bread. This would not be classified as attempt because the offence that he has in mind to commit does not exist as an offence. Legal impossibility in the pure sense will exempt prosecution as there is no real offence to prosecute. However, in the above scenario concerning a murder, it was not the law, but the facts which made the act impossible. A second category of impossibility is called factual impossibility; this is when a crime is factually impossible to commit because the means used were insufficient or because the facts or circumstances were not as one believed. Stabbing a corpse, thinking it is still alive, comes under the area of factual impossibility as if the facts were correct and “the corpse was alive”, speaking in legal terms, a criminal offence has been committed. A further category of factual impossibility concerns ‘inherent factual impossibility’; this usually concerns cases where it is absolutely impossible for the intended crime to be committed because of the insufficiency of the means he used, such as a man attempting to shoot down a plane using a water pistol.

Is there a difference between attempting the possible and the “inherently impossible? A careful distinction needs to be made between the “possible” and the “inherently impossible”. In the real world, it is possible to steal from a pocket if it contains money, therefore stealing from an empty pocket would come under the area of factual impossibility and there would be a crime to prosecute. In contrast, stabbing a voodoo doll with the genuine belief that your actions are causing harm and pain to someone else, would not be seen as a prosecutable offence, as it is inherently unachievable, since he cannot succeed.

Legal

Legal Reform: Social Norms and Technology

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In the same way that photoreceptors in your eye respond to light, law responds to the stimulus of social pressure and technological advances. Take smoking as a first example. Rising drastically during the First and Second World War, the number of adults smoking cigarettes by 1949 amounted to approximately 81% of the male population and 39% of the female population. In the mid-20th century, smoking was seen as a social norm, with many advertisements oblivious to the health detriments caused by smoking. Notable slogans claimed fabricated benefits: “for digestion’s sake”, “a feeling of well-being”, and “throat protection against cough irritation”.

It was not until a 1950 report published in the British Medical Journal that evidential research was found, linking smoking with the formation of lung cancer. This was the first of a chain of research that changed the way both doctors and the public viewed smoking, resulting in social pressure for legal reform, in which the government was forced to respond to. In 1965, a ban on television cigarette advertisement was implemented, progressing to a complete advertisement ban in 2005 and most significantly an end to smoking in public was enforced in July 2007. More recently, the debate over cannabis legislation is a hot topic for future debate, with 26 US states currently legalising marijuana in some form. As scientific research progresses in this field of study, perhaps society’s attitudes towards cannabis may change, prompting further legal reform.

New crimes were necessary as computing became more prominent towards the end of the 20th century. The Computer Misuse Act 1990 served as a response to the rise in cyber-crime, most significantly hacking. Further legislation brought in targeted identity fraud and harassment over the web, encompassing cyber-bullying although it has no specific mention. Moreover, the development of cars and their sudden surge in frequency led to more common traffic accidents. Subsequently, laws were implemented to make driving on the roads a safer experience, with drink driving, mobile phone usage, and speeding all becoming new additions to criminal law in the UK.

To conclude, law has successfully evolved in line with social norms and technological developments in order to protect society and respond to pressure from reformist groups. It is vital that the law regularly adapts to modernisation, to prevent a backwards legal system and to protected the welfare of the majority.

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Recent Case of Charlie Gard – Who Knows Best?

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doctors vs judges

The recent Charlie Gard case that has flooded international news is characteristic of the intricate, global controversy: who has the right over life?

Infant Charlie Gard was born with an extremely rare genetic defect known as MDDS, which irreversibly deteriorated his condition to severe brain damage, immobility, deafness and ventilation by artificial means alone. Established under The Children Act 1989, institutional authorities (hospitals, governments) were assigned with giving the final decision on whether a young patient could live, designed to safeguard parents from protecting their own needs rather than what was best for their child.

Whilst Charlie’s parents wanted their precious child to live, all courts of appellate jurisdiction, along with the doctors at Great Ormond Street Hospital, at which Charlie was kept on the life support, thought it was in Charlie’s best interests to end his life rather than allow his quality of life to be irrevocably poor.

So, who should we trust to give the final say about a child’s well-being? Should families, who have given birth to the child, their possession, be given the legal responsibility to overrule the state in their decision? Of course, this brings moral implications, such that the parents would not want to say goodbye to their child and therefore not act in his/her’s best interests.

Let’s now bring in another scenario, whereby the patient is of adult age. Tony Bland sustained detrimental injuries from the Hillsborough Disaster in 1989, which left him in a permanent vegetative state (PVS) until his death in 1993. It was eventually ruled in the House of Lords that the Artificial Nutrition and Hydration (ANH), that was prolonging him living, should end to allow Bland to “die in dignity” (Court order). This case differs from the Charlie Gard case as both the parents and the doctors thought withdrawing ANH was in Tony’s best interests.

Despite differences, the Bland case elucidates the complexity involved in euthanasia cases in the UK. Was it morally right for the state to prevent Gard’s parents from allowing experimental treatment to be made in the hope of keeping their son alive, despite his physical and mental state? Was it morally right for the court to give consent to the withdrawal of ANH and allow Tony to die? How would the result differ if it was unsure how long he would be in a vegetative state for?

Let us assess one last scenario. Terminally ill man Noel Conway, aged 67, launched a legal challenge for his own right to die. He was diagnosed with motor neurone disease, which has meant his ability to move, dress, eat and even breathe has irrevocably diminished. Noel condemned Section 2(1) of the Suicide Act 1961, which prohibited assisted suicide (voluntary euthanasia) under UK law, outlining his deteriorating quality of life and the prospect of “unimaginable suffering”. As he strongly remarks, “Current law means that I will have no control of how my life ends”.

We are once again asking ourselves where ultimate authority lies in determining the end of one’s life. This global complexity should never be looked on lightly and all cases of similar note should be looked at distinctly and intricately.

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After Taiwan, What’s Next For Asia?

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LGBT rights in Asia

T​aiwan has long been home to Asia’s most spirited LGBT communities, with the hashtag #TaiwanGayMarriageLegalization attracting over 11 million views on China’s Weibo. The country ​has recently joined the United States, Canada and 18 others to rule in favor towards ​constitutional protection of same-sex marriage. But the question of what it symbolises in Asia remains unresolved.

If the law functions to balance the need for stability with the demand for progress, Taiwan’s ​announcement from May acts as a positive testament. The decision favoring constitutional protection confirms growing momentum in the country, where child adoption by unmarried same-sex couples is becoming increasingly popular. Yet until the legislation was passed, only one individual can be recognised as a legal guardian. A condensed look reveals that legalising marriage is bound to cultural and political acceptance more deeply than economic concerns. It implies that the parliament has two years to amend laws regarding same-sex marriages. If not, couples will be permitted to register under the current framework. Both mothers or fathers of the adopted child could be entitled to equal welfare and property benefits.

Around the world, controversies surrounding alternative ideas from LGBT to the businesses of Uber and AirBnB have demonstrated the difficulty of balance. Taiwan’s ruling is undoubtedly a landmark for changing attitudes in Asia, but what does it signify for the rest of the hemisphere, where responses to minority cultural views remain conservative? Although attitudes to homosexuality were relatively liberal during the imperial times in mainland China, the ​Communist revolution in 1949 led to more cautious attitudes. Despite having it removed from the list of “mental disorders” in 2001, the stigma remains. Naturally, responses from China have been two-folded. Some are excited by the milestone, but others remain disheartened to the possibility of achieving legislative change. While many were still rejoicing shortly after the Taiwanese ruling, China’s most iconic lesbian socialising platform ‘Rela’ was shut down without explanation.

Likewise, although LGBT is not prohibited in the South Korean constitution, many remain closeted due to pressure from cultural traditions. But this is understandable, when some of the largest mobile corporations in the country have agreed to ​remove homosexual dating apps on the market, and a presidential candidate openly attacks gay soldiers for “weakening the country’s military.” Whether the rest of Asia could follow Taiwan’s footsteps as the social forerunner is still open to question, and it is certainly unjustified to generalise one of the largest and most diverse continents with a handful of examples. But one can be certain that ​LGBT continues to grow as an influential social dynamic in many Asian societies. ​Although t​he tug of war between traditional cultural views and changing public opinion will persist, ​Taiwan’s ruling could induce a chain effect in the long term.

When asking the youth “what do you dream of the world,” perhaps many would speak of tolerance. Such an abstract idea will undoubtedly carry a fluid definition, but obscurity is both its limitation and its beauty. The road to constitutional desegregation in the United states during in the 20th century was a difficult journey back and forth, and the same will go for LGBT in our time. But acceptance, before any legislative change is the first step that can go a long way. Regardless of whether one is in support of Taiwan’s ruling, it is an optimistic sign that ​societies are increasingly being warmed to the rights of gender and sexuality minorities through activism. It signifies not only acceptance of LGBT, but acceptance of cultural differences and their rights to equality before the law.

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