Sarah Christie

Provocation – pushing the reasonable man too far?

Almost every aspect of the partial defence of provocation has caused considerable debate over the years. Areas of difficulty range from the question of when the issue should be left to the jury, to the relevance of the defence to battered women who kill. The issue for consideration here will be the ˜reasonable or ˜ordinary man and the characteristics imputed to him in the light of the accuseds own character. R. v. Smith reaffirms the Court of Appeals view that the accuseds characteristics should be included at all levels of the test. Attitudes to this differ considerably. On the one hand, some argue that the doctrine weakens the legal requirement of self-control and is therefore only acceptable where the accused has been pushed to extremes. This is ensured by maintaining a highly objective approach and narrow interpretation of the ˜reasonable man. On the other hand, it is argued that, in the interests of attaining justice, characteristics of the accused should be imputed to the reasonable man in order to acknowledge that some people will find conduct more provoking than others, and that some individuals may have a lower threshold of self-restraint which should be taken into account. This article considers the merits of these two approaches by analysing recent English case law and contrasting this with Australian developments.

Effective end-of-life care planning in Scotland: culture and law.

In the context of an ageing population, end-of-life care planning is increasingly important. The law in Scotland does not, as yet, take the active and specific steps to help address this that are evident in other jurisdictions. I contend that there are two particular issues which need to be addressed here: normalising the idea of a discussion about dying, such that individuals feel entitled to discuss and plan for it by way of an advance directive, feel that it is a valuable exercise, and feel reassured that their plans will not falter if they lose capacity; and formulating an approach which prompts and encourages that discussion, but also promotes autonomous decision-making. I assert that the law can, and should help with this by providing a legislative basis for advance directives in order to set out the requirements for formal validity, and by making provision for an allied, non-mandatory pro-forma to guide and assist those who wish to use it.

Bereaved relatives’ experiences in relation to post mortem: a qualitative exploration in North East Scotland

Abstract When a family is grieving the loss of a member the consideration of post mortem is an additional concern. This study set out to explore how relatives are supported to give authorisation and throughout the post mortem process. Thirteen relatives with varied experiences of a relatives death took part in interviews. Data analysis revealed the post mortem as part of the narrative of the death, with more significance for some than others. Important aspects for relatives were being able to say ‘goodbye’ properly, and engagement with staff in hospital and procurator fiscal (public prosecution) services in more substantive communicative relationships, rather than only receiving basic information. Relatives valued receiving results they could understand. There may be opportunities, particularly in coroner or procurator fiscal services, for development of roles in liaison between relatives and pathology services, and support for relatives.

Making treatment decisions for the future: advance directives and the question of legislative clarity.

This article sets out to consider the extent to which advance directives can be used as an effective means to entrench personal autonomy, and, in the light of their statutory form in numerous other jurisdictions, consider the various approaches which are currently used abroad to determine whether Scotland, which at present has no legislation entrenching their use, would benefit from such an approach.

Medical Law and Ethics, by Jonathan Herring, Oxford, Oxford University Press, 2012, 4th edition, 655 pp., £31.99 (paperback), ISBN 978-0-19-964640-1

compiling additional optional chapters, but the result is likely to be a text that better aligns with university curriculums, which should in turn lead to higher sales. The Herring text offers an accompanying electronic online resource centre. This provides ongoing updates to the law, a list of useful web links, a multiple choice question bank and guidance on answering some of the questions posed in the textbook. This is all very standard fare with nothing to get terribly excited about. As with most accompanying electronic resources it feels very much like an afterthought. Herring is not available on the Kindle or other competitor e-readers. This is a shame given the increasing use of such technology and on a practical level for students the size and weight of the book. A number of competitor texts are available on the Kindle including Smith and Hogan’s Criminal Law (13th edition, Oxford University Press, 2011) and Simester and Sullivan’s Criminal Law: Theory and Doctrine (4th edition, Hart Publishing, 2010). If this omission has not hurt sales to date, it is likely to do so in the near future. This reviewer for one will be less likely to recommend Herring as a required purchase to students if it continues to be unavailable in the e-reader format. Overall, Herring’s text is a strong competitor in the higher level undergraduate criminal law market and if it embraces recent technological changes in publishing as well as developments in curriculum content it should remain so.

The relevance of harm as the criterion for the punishment of impossible attempts.

There has been much debate about the relevance of punishment in cases of impossible attempts. This article sets out the current position in Anglo-American jurisdictions and considers the rationale behind punishment in hypothetical impossible attempt cases in order to draw out the key issues at the heart of responsibility. The cases of the inadequately prepared attempt and the attempt which is doomed to failure are compared to illustrate the relevance of the potential to cause harm in the justification for punishing such actors. The article concludes with the suggestion that the relevant criterion is the presence of the potential to cause imminent harm, as opposed to future, speculative harm.