Tuesday, August 31, 2010
ELSA
I've found something really worthwhile in my studies - ELSA. No not some nubile princess but rather the English Law Students' Association . As you may recall from pervious entries on this blog, when I started the LLB I was keen to join a law society at my university. I thought that it would be a good way not only to keep in touch with the practical side of the law but also to develop relations with other law students. Learning on my own at a distance from others can get a little lonely at times so I thought that within a law society I would be able to bounce ideas off others and learn. Well it turns out that there is no law society at my school oddly enough. Apparently some time ago the students at the university did publish a law journal with some success but as far as I can tell it faded away soon after it got started. Searching a bit further, I found that there are international, European, and English law student associations. ELSA seems by far to be the most organized and well structured. They run a number of programs for law students from a variety of schools in London and are active with a number of footprints on the web. I’ve been in touch with them and it looks like I will actually even be able to help play a role with coordinating the students at my university and those who are studying ‘virtually’ in London. I’ll keep you posted on how it develops.
Thursday, August 26, 2010
Stand and deliver
I came across a somewhat distressing story today:
It seems as if residents in one village have been so put out by cars speeding through they have decided to take action. The plan is for a volunteer crew to be positioned near speed cameras, monitor cars whose speeds are excessive and then pass their tag numbers along to the police who would send a threatening letter to the offending driver.
To be sure, one can see the danger of cars speeding through a village. I, like many others, have been shocked to see nutters far exceed the speed limit near where I live. Those who have been injured or have lost loved ones to such motorists know how dangerous such behaviour can be.
However is the answer really to have an army of big brothers watching for every misstep? Do we really want to create a culture of informing on one's neighbor? Britian already has almost every step we take monitored by CCTV, do we need more eyes on the job? Should we move to the habits that used to be common in communist countries? People who report to police on the going-ons in a block of flats? Or perhaps students who can pass on to police information overheard from other students about late night shennanigins? Both of these measures could possibly help to keep crime rates low but how much would we lose? Not just of our liberty but perhaps also of our humanity.
It seems as if residents in one village have been so put out by cars speeding through they have decided to take action. The plan is for a volunteer crew to be positioned near speed cameras, monitor cars whose speeds are excessive and then pass their tag numbers along to the police who would send a threatening letter to the offending driver.
To be sure, one can see the danger of cars speeding through a village. I, like many others, have been shocked to see nutters far exceed the speed limit near where I live. Those who have been injured or have lost loved ones to such motorists know how dangerous such behaviour can be.
However is the answer really to have an army of big brothers watching for every misstep? Do we really want to create a culture of informing on one's neighbor? Britian already has almost every step we take monitored by CCTV, do we need more eyes on the job? Should we move to the habits that used to be common in communist countries? People who report to police on the going-ons in a block of flats? Or perhaps students who can pass on to police information overheard from other students about late night shennanigins? Both of these measures could possibly help to keep crime rates low but how much would we lose? Not just of our liberty but perhaps also of our humanity.
Tuesday, August 24, 2010
A case of privilege?
Here's an interesting case that I came across yesterday.
Three former MPs and a peer were accused of making false expenses in the scandal that rocked parliament last year. In their defence they claimed that parliamentary privilege protected them from prosecution and that their fate "should lie within the hands of parliament".
The judges were told that the challenge was not an attempt to "take them above the law", but to ensure they were adjudicated by the "correct law and the correct body". It was said by the defendants that submitting an expenses form was part of the proceedings of parliament, and therefore protected by parliamentary privilege. Interestingly, they based their claim in part on Art 9 of the Bill of Rights 1688 which declared that “the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament”.
The defendants claimed that parliamentary privilege operated so that the courts had no jurisdiction over any words spoken in Parliament by a member, and by way of the Bill of Rights 1688 art.9 it provided that proceedings in Parliament ought not to be impeached or questioned in any court or place outside Parliament. They submitted that the claims for expenses constituted proceedings in Parliament pursuant to art.9 and that the criminal charges constituted an infringement of art.9. They also argued that privilege should attach to any dealing that a member might have with the House, or that the administration and decision-making process of the expenses reimbursement system itself should be subject to parliamentary privilege.
What do you think? False expense claims privileged or not?
The court of appeal ruled that parliamentary privilege did not protect them from prosecution. The decision upheld an earlier ruling by a lower court that they were not protected by parliamentary privilege. The four men, who all deny theft by false accounting, can still take their cases to the supreme court for a further challenge. The charges carry a maximum sentence of seven years' imprisonment.
Lord Judge, the lord chief justice, and two other judges rejected the argument put forward by the four and Judge said: "In our judgment no question of privilege arises and the ordinary process of the criminal justice system should take its normal course, unaffected by any groundless anxiety that they might constitute an infringement of the principles of parliamentary privilege." He went on to state: "It can confidently be stated that parliamentary privilege or immunity from criminal prosecution has never, ever attached to ordinary criminal activities by members of parliament." With the exception of the exercise of freedom of speech, he said, "it is difficult to envisage circumstances in which the performance of the core responsibilities of a member of parliament might require or permit him or her to commit crime".
Three former MPs and a peer were accused of making false expenses in the scandal that rocked parliament last year. In their defence they claimed that parliamentary privilege protected them from prosecution and that their fate "should lie within the hands of parliament".
The judges were told that the challenge was not an attempt to "take them above the law", but to ensure they were adjudicated by the "correct law and the correct body". It was said by the defendants that submitting an expenses form was part of the proceedings of parliament, and therefore protected by parliamentary privilege. Interestingly, they based their claim in part on Art 9 of the Bill of Rights 1688 which declared that “the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament”.
The defendants claimed that parliamentary privilege operated so that the courts had no jurisdiction over any words spoken in Parliament by a member, and by way of the Bill of Rights 1688 art.9 it provided that proceedings in Parliament ought not to be impeached or questioned in any court or place outside Parliament. They submitted that the claims for expenses constituted proceedings in Parliament pursuant to art.9 and that the criminal charges constituted an infringement of art.9. They also argued that privilege should attach to any dealing that a member might have with the House, or that the administration and decision-making process of the expenses reimbursement system itself should be subject to parliamentary privilege.
What do you think? False expense claims privileged or not?
The court of appeal ruled that parliamentary privilege did not protect them from prosecution. The decision upheld an earlier ruling by a lower court that they were not protected by parliamentary privilege. The four men, who all deny theft by false accounting, can still take their cases to the supreme court for a further challenge. The charges carry a maximum sentence of seven years' imprisonment.
Lord Judge, the lord chief justice, and two other judges rejected the argument put forward by the four and Judge said: "In our judgment no question of privilege arises and the ordinary process of the criminal justice system should take its normal course, unaffected by any groundless anxiety that they might constitute an infringement of the principles of parliamentary privilege." He went on to state: "It can confidently be stated that parliamentary privilege or immunity from criminal prosecution has never, ever attached to ordinary criminal activities by members of parliament." With the exception of the exercise of freedom of speech, he said, "it is difficult to envisage circumstances in which the performance of the core responsibilities of a member of parliament might require or permit him or her to commit crime".
Monday, August 23, 2010
Fact or fiction
Here is an interesting topic for discussion: the doctrine of stare decisis is a myth. When judges want to get around a case they do not like, they will always find a way.
Can a judge avoid stare decisis? If so how do they do it? One of the most commmon ways is the concept of distingusing. In distingusing, a court may regard the facts of the case before it as significantly different from the facts of a cited precedent, so it will not find itself bound to follow that precedent. Judges use the device of distinguishing where, for some reason, they are unwilling to follow a particular precedent. Law reports provide many examples of strained distinctions where a court has quite evidently not wanted to follow an authority that it would otherwise have been bound by.
A less common method is overruling. Overruling is the procedure whereby a court higher up in the hierarchy (usually the House of Lords) sets aside a legal ruling established in a previous case. Overruling should not be confused with ‘reversing’, which is the procedure by which a superior court in the hierarchy reverses the decision of a lower court in the same case.
In overruling, courts overrule longstanding authorities because they no longer accurately reflect contemporary practices or morals. Courts overrule authorities where they see them as no longer representing an appropriate statement of law.
One other new method which allows a bit of flexibility to stare decisis is the Human Rights Act 1998 which requires that courts interpet law as far as possible to fit it within the context of the European Convention on Human Rights. Thus courts may interpet laws in new ways sidestepping stare decisis in order to achieve this goal.
However, it is important to note that higher courts in the judiciary may take a poor view of a judge who attemps to avoid stare decisis and may reverse their decisions as happened to Lord Denning upon occassion...
Can a judge avoid stare decisis? If so how do they do it? One of the most commmon ways is the concept of distingusing. In distingusing, a court may regard the facts of the case before it as significantly different from the facts of a cited precedent, so it will not find itself bound to follow that precedent. Judges use the device of distinguishing where, for some reason, they are unwilling to follow a particular precedent. Law reports provide many examples of strained distinctions where a court has quite evidently not wanted to follow an authority that it would otherwise have been bound by.
A less common method is overruling. Overruling is the procedure whereby a court higher up in the hierarchy (usually the House of Lords) sets aside a legal ruling established in a previous case. Overruling should not be confused with ‘reversing’, which is the procedure by which a superior court in the hierarchy reverses the decision of a lower court in the same case.
In overruling, courts overrule longstanding authorities because they no longer accurately reflect contemporary practices or morals. Courts overrule authorities where they see them as no longer representing an appropriate statement of law.
One other new method which allows a bit of flexibility to stare decisis is the Human Rights Act 1998 which requires that courts interpet law as far as possible to fit it within the context of the European Convention on Human Rights. Thus courts may interpet laws in new ways sidestepping stare decisis in order to achieve this goal.
However, it is important to note that higher courts in the judiciary may take a poor view of a judge who attemps to avoid stare decisis and may reverse their decisions as happened to Lord Denning upon occassion...
Monday, August 16, 2010
Fire without smoke...
Situation:
When David was taken to hospital, he was given an antibiotic injection which reacted badly with the insulin he took to control his diabetes. He suffered a hyperglycemic episode during which he pushed his way into a laboratory, knocking over a Bunsen burner. This caused a fire which spread quickly and burnt down one wing of the hospital. Everybody was safely evacuated and nobody was hurt.
Question:
Consider the criminal liability of David.
Thought points suggested:
If David was charged with arson, upon what would a successful plea of automatism depend? If his plea for automatism was accepted would it amount to sane or insane automatism? Why? How are the distinguished? Is there any question of self-induced automatism in this case? If so what are the rules of this vis-à-vis criminal liability?
Answer:
If criminal liability is brought against David, then he is most likely to be charged with arson. Arson is a crime of criminal damage by fire: sections 1(1) and 1(3) of the Criminal Damage Act 1971. This offence is committed if by fire; D intentionally or recklessly, and without lawful excuse, destroys or damages property belonging to another. The prosecution could charge that David committed arson when he knocked over the Bunsen burner. They would seek to prove that his pushing into the laboratory was deliberate and argue that knocking over the Bunsen burner was at least reckless based upon his prior deliberate actions. A claim of aggravated arson would rest upon David’s intentionally setting the fire, in this case, as he knocked over a Bunsen burner, the prosecution would most likely seek to an offence of basic intent with the arson as a result of David’s recklessness.
The actus reus consists of damaging or destroying property by fire and clearly David did so.
The mens rea for arson comprises two elements: firstly that D recklessly damaged property, and secondly that he was reckless as to endangering life. In this context, recklessness bears a ‘subjective’ meaning; that is, the prosecution must prove that David was aware of a risk that life might be endangered and it was, in the circumstances known to him, unreasonable to take that risk (R v G [2003], overruling Metropolitan Police Commissioner v Caldwell [1981]). Note also Cooper [2004] in which the Court of Appeal held, applying R v G to a case of arson being reckless as to whether life would be endangered, that if D had been aware that there was a risk but had dismissed it as a negligible risk then D is not reckless.
David’s defence against the charge is most likely to be strongest if he asserts a lawful excuse – that of automatism (some may argue that automatism in fact absolves him of the necessary mens rea). However for a claim of automatism to fully succeed as a defence in absolving him of liability or possible hospital commitment, David should be able to claim that there was a total loss of control; that it was sane automatism, and that automatism was not based on some prior fault of his. He must seek to establish his innocence as Lord Denning outlined the defense in Bratty v Attorney General for Northern Ireland (1961).
David’s total loss of control can be established by medical facts as he entered a hyperglycemic episode. Such episodes have been successful used in cases to support a claim of automatism such as in Hennessy (1989).
However hyperglycemia is often related to insane automatism as it is seen as a disease of the mind (see the comments of Lord Lane in Hennessy (1989)). To qualify as sane automatism, David must therefore demonstrate to the court that his automatism as a result of the hyperglycemic episode was brought on by an external factor not related to the disease of the mind, something unique and quantifiable. David should be able to show that the antibiotic injection (which was indeed unusual and not in the normal course of events) was the external factor which caused his hyperglycemic episode and led to a loss of control. There is also a practical benefit to raising the defense as sane automatism versus insane automatism. The burden of proof of a claim of sane automatism once raised remains on the prosecution to prove the case beyond a reasonable doubt. While if a claim of insanity is raised by the defence, then the defence must prove it based upon a balance of probabilities. Thus for the defence it is easier to raise a reasonable doubt.
Turning to the last point, David should be able to demonstrate that the automatism was not caused by some prior fault of his. In crimes of basic intent, such as arson, which require only recklessness, prior fault of the defendant may be sufficient for a conviction if the defendant should have known the danger of their actions. The defence can reasonably claim that David did not have any prior fault in this instance. His actions in the laboratory were clearly related to the injection David received when he was in hospital. He was treated by staff of the hospital and given an antibiotic injection which reacted badly with the insulin he took to control his diabetes. David could argue convincingly that such treatment was not his fault (one would imagine that the decision was taken by the doctors based on David’s medical history, indeed one might suggest that the staff giving him the injection should have been aware of such a possibility to enter into a hyperglycemic reaction, however it is unlikely David would have been and as the injection was given by professionals he would likely be correct in following their advice.)
If David can raise reasonable doubt based on a claim of sane automatism supporting the notion of a loss of total control and with no prior fault of his own, then he should be cleared of the charge of arson likely to be laid against him.
When David was taken to hospital, he was given an antibiotic injection which reacted badly with the insulin he took to control his diabetes. He suffered a hyperglycemic episode during which he pushed his way into a laboratory, knocking over a Bunsen burner. This caused a fire which spread quickly and burnt down one wing of the hospital. Everybody was safely evacuated and nobody was hurt.
Question:
Consider the criminal liability of David.
Thought points suggested:
If David was charged with arson, upon what would a successful plea of automatism depend? If his plea for automatism was accepted would it amount to sane or insane automatism? Why? How are the distinguished? Is there any question of self-induced automatism in this case? If so what are the rules of this vis-à-vis criminal liability?
Answer:
If criminal liability is brought against David, then he is most likely to be charged with arson. Arson is a crime of criminal damage by fire: sections 1(1) and 1(3) of the Criminal Damage Act 1971. This offence is committed if by fire; D intentionally or recklessly, and without lawful excuse, destroys or damages property belonging to another. The prosecution could charge that David committed arson when he knocked over the Bunsen burner. They would seek to prove that his pushing into the laboratory was deliberate and argue that knocking over the Bunsen burner was at least reckless based upon his prior deliberate actions. A claim of aggravated arson would rest upon David’s intentionally setting the fire, in this case, as he knocked over a Bunsen burner, the prosecution would most likely seek to an offence of basic intent with the arson as a result of David’s recklessness.
The actus reus consists of damaging or destroying property by fire and clearly David did so.
The mens rea for arson comprises two elements: firstly that D recklessly damaged property, and secondly that he was reckless as to endangering life. In this context, recklessness bears a ‘subjective’ meaning; that is, the prosecution must prove that David was aware of a risk that life might be endangered and it was, in the circumstances known to him, unreasonable to take that risk (R v G [2003], overruling Metropolitan Police Commissioner v Caldwell [1981]). Note also Cooper [2004] in which the Court of Appeal held, applying R v G to a case of arson being reckless as to whether life would be endangered, that if D had been aware that there was a risk but had dismissed it as a negligible risk then D is not reckless.
David’s defence against the charge is most likely to be strongest if he asserts a lawful excuse – that of automatism (some may argue that automatism in fact absolves him of the necessary mens rea). However for a claim of automatism to fully succeed as a defence in absolving him of liability or possible hospital commitment, David should be able to claim that there was a total loss of control; that it was sane automatism, and that automatism was not based on some prior fault of his. He must seek to establish his innocence as Lord Denning outlined the defense in Bratty v Attorney General for Northern Ireland (1961).
David’s total loss of control can be established by medical facts as he entered a hyperglycemic episode. Such episodes have been successful used in cases to support a claim of automatism such as in Hennessy (1989).
However hyperglycemia is often related to insane automatism as it is seen as a disease of the mind (see the comments of Lord Lane in Hennessy (1989)). To qualify as sane automatism, David must therefore demonstrate to the court that his automatism as a result of the hyperglycemic episode was brought on by an external factor not related to the disease of the mind, something unique and quantifiable. David should be able to show that the antibiotic injection (which was indeed unusual and not in the normal course of events) was the external factor which caused his hyperglycemic episode and led to a loss of control. There is also a practical benefit to raising the defense as sane automatism versus insane automatism. The burden of proof of a claim of sane automatism once raised remains on the prosecution to prove the case beyond a reasonable doubt. While if a claim of insanity is raised by the defence, then the defence must prove it based upon a balance of probabilities. Thus for the defence it is easier to raise a reasonable doubt.
Turning to the last point, David should be able to demonstrate that the automatism was not caused by some prior fault of his. In crimes of basic intent, such as arson, which require only recklessness, prior fault of the defendant may be sufficient for a conviction if the defendant should have known the danger of their actions. The defence can reasonably claim that David did not have any prior fault in this instance. His actions in the laboratory were clearly related to the injection David received when he was in hospital. He was treated by staff of the hospital and given an antibiotic injection which reacted badly with the insulin he took to control his diabetes. David could argue convincingly that such treatment was not his fault (one would imagine that the decision was taken by the doctors based on David’s medical history, indeed one might suggest that the staff giving him the injection should have been aware of such a possibility to enter into a hyperglycemic reaction, however it is unlikely David would have been and as the injection was given by professionals he would likely be correct in following their advice.)
If David can raise reasonable doubt based on a claim of sane automatism supporting the notion of a loss of total control and with no prior fault of his own, then he should be cleared of the charge of arson likely to be laid against him.
Friday, August 13, 2010
Breaking the law...
So I am less than pleased to report that I have had my first face to face encounter with English law! Yours truly, during his recent holiday in the UK, was charged within the Royal Borough of Windsor and Maidenhead with an offense against The Traffic Management Act 2004, s.78; Civil Enforcement of Parking Contraventions (England) General Regulations 2007; Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. Quite dramatic don't you think? Well before you run off to call a defence attorney or abandon me altogether in shame, I will be happy to let you know what this offense is in layman's terms - a parking ticket. Basically, I was in a 'pay and display' parking lot in Windsor and got a ticket for being 'Parked in a car park without clearly displaying a valid pay & display ticket or voucher or parking clock'.
Needless to say this completely ruined my day for several reasons. Firstly I had bought a ticket and put it on my dashboard and it covered this period. Secondly I came back and bought yet another ticket before I found the fine on my car. Thirdly I now have to deal with this issue. I plan to protest my innocence obviously but I feel the hand of pressure upon me. The fine is 50 pounds but if you pay quickly only 25. So today I must go on line and begin my campagin to uphold my honor. Wish me luck, I will let you know how this step into the legal system goes...
Needless to say this completely ruined my day for several reasons. Firstly I had bought a ticket and put it on my dashboard and it covered this period. Secondly I came back and bought yet another ticket before I found the fine on my car. Thirdly I now have to deal with this issue. I plan to protest my innocence obviously but I feel the hand of pressure upon me. The fine is 50 pounds but if you pay quickly only 25. So today I must go on line and begin my campagin to uphold my honor. Wish me luck, I will let you know how this step into the legal system goes...
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