Restructuring debate and reform in the criminal law: element analysis

K Law > KD England and Wales

Child, John James ; Shute, Stephen,Cryer, Robert

University:University of Birmingham

Department:Birmingham Law School

关键词: K Law;    KD England and Wales;   

Others  :  http://etheses.bham.ac.uk//id/eprint/1725/1/Child_11_PhD.pdf

来源: University of Birmingham eTheses Repository

【 摘 要 】

This thesis explores the structure of the criminal law and, in particular, the structural device of element analysis. Building upon the classical actus reus/mens rea distinction, element analysis further sub-divides both parts of an offence into acts, circumstances and results. In doing so, element analysis offers advantages within the criminal law, both as a structure for legal discussion and analysis, and as a structure for law reform. In relation to the latter, recent reform of inchoate assisting and encouraging (as well as a range of Law Commission recommendations) has made use of element analysis to structure the reform of the general inchoate offences, requiring different levels of fault in relation to different offence elements. However, despite the increasingly important role played by element analysis, it remains a controversial device. Critics have exposed a lack of objectivity within the separation of elements, and an unacceptable level of complexity, particularly in relation to assisting and encouraging. Accepting much of their criticism, but rejecting the viability of the alternatives offered, this thesis therefore seeks to reinterpret and remodel element analysis in order to realise its potential