Friday, October 7, 2011

To the breaking point

I've written previously about how pressure brought to bear on defendants often is too much for them to deal with and they wind up confessing to crimes that they did not commmitt while under pressure.

An interesting article in the New York Times the other week helps to shed light on why someone might do such a thing.

Tuesday, September 20, 2011

Yeah baby!

Back from Oktoberfest and found a lovely present sitting on my desk upon my not the buxom blonde I was hoping for but rather the box from the university with my materials for this year. Now I can begin to study in earnest. The only piece of the puzzle which is missing is access to the course pages on the university's website. Hopefully this will come in a few days. As I wrote previously, enrollment this year was a fiasco so getting these materials so quickly helps to make up for it a bit. Oddly enough in the box was a book about land law, given that I am not taking land law this year I can only imagine that this is compensation for my pain and suffering. In any event, quite happy to have it and get rolling.

Tuesday, September 6, 2011

Denning stikes again...

Another good one from Denning which made me laugh, this time from Thornton v Shoe Lane Parking Ltd [1971]:

"None of those cases has any application to a ticket which is issued by an automatic machine. The customer pays his money and gets a ticket. He cannot refuse it. He cannot get his money back. He may protest to the machine, even swear at it. But it will remain unmoved."

Monday, September 5, 2011


Pure frustration! After waiting months to be able to reenroll and send money to my university, finally today they have access on their internet portal. The problem is that the system is so very poorly designed that I was unable to register for the courses which I need. To add insult to injury there is no way to go back and start again. Now I am at their not so tender mercy to try and enroll. I cannot imagine that a school which has been doing this for over 150 years with thousands of students every year could have such poor admin support.

Friday, August 19, 2011

More results

Yesterday those students who are not located in Europe got their results. Of those I know, I saw a couple happy campers with 71's and the rest a mixed bag. Happily not many failures at all but a few disappointments. Hard to put rhyme or reason to the grades as you don't really know how people wrote or how they were graded. I would say that is perhaps the worst part of the school - lack of material feedback on your work. To be sure you get a grade, I honestly believe it is probably one you merit, but you lack a rationale behind it. It is a tradeoff to be sure but given the cost of getting feedback, I think I would prefer to go without...

Monday, August 8, 2011

Legal Bite: Why Should You Join one of The Inns of Court?

Legal Bite: Why Should You Join one of The Inns of Court?: Last week I posed a question on which was used as inspiration for Legal Bite's post. It gives an overview of the different Inns of Court which any aspiring barrister would need to join. I thought it would be worth it to share the link with you.

Monday, August 1, 2011

The twisted path

According to an interesting book I've been reading, the word ‘tort’ is derived from the Latin tortus, meaning ‘twisted'. Somehow I seem to remember that a battle formation for the legions was called the tortus due to the shape formed when they interlocked their shield above and around the group. More important for this blog, is that tortus came to mean ‘wrong’ and it is still so used in French when one says ‘J’ai tort’ for ‘I am wrong’. However I have to say that there is nothing wrong so far with my study of the subject of tort even if the path is a bit twisted at times. I really do enjoy it, especially the bits on negligence which have been the main focus so far. The cases are really quite interesting to read (albeit a bit tragic) and the logic behind the reasoning is exciting to see develop over time. I have to confess that would find myself hard pressed to find some logical limitations on negligence although I think the judges involved have given it a fairly good shake. For example when I first heard of the judgment in Alcock v Chief Constable of South Yorkshire Police I thought that it was unjust. However after reading more about it I tend to agree with the decision. Particularly the claim that if family members were to have suffered nervous shock watching the events unfold via television a claim of action would be better brought against the broadcaster rather than the police. Also the notion of dividing people into primary and secondary victims seems to be of benefit. Still it is hard to find the right place to draw a line when one is liable under the tort of negligence - I guess that is why the requirement of "fair, just or reasonable’ is so subjective.

Friday, July 29, 2011

Dive in, the water's fine.

So, I've sorted it. This year shall be contract law, tort and trusts. I suppose that I am a creature of habit but there was just not enough to swing me to swap trusts for land law. Supposedly trusts is quite a difficult subject but so far after only a couple chapters in the study guide I find it really enjoyable. This contrasts remarkably with the land law study guide which I thought was very poorly written. In any event, now that I've decided on my three subjects I've got to plough my way through them.

This year I am going to change my study plan a bit. I think that I need to do more constant revision during the course of the year instead of leaving it to the end. Therefore I am going to try and save the weekends to go through the exercises in the study guides and textbooks in detail. Weekdays will be reading and note taking. I hope that this will be a good balance. The upside remains that starting this early in the year I can remain ahead of the game. The goal is to finish off the study guides by the end of December if I can to leave plenty of time for revision and further review. Fingers crossed.

Wednesday, July 27, 2011


Well I have to confess that it does not happen very often but when it does it can be rather humbling. I am wrestling with whether to study trusts or land law this year. I have canvassed opinion on which would be the better choice and opinion seems to be spilt about 50/50. My natural inclination would be to do trusts, however a study mate of mine is pushing hard for land law. So to be fair I have spent yesterday and today having a good look at land law to see what it would be like. Sadly I have to say that I am a bit shaken. It all seems very unfamiliar territory to me and I feel like I have been knocked on my backside to be honest. I've no doubt that with the time and effort it will pull together in some cohesive form but at the start I really feel in the deep end. Perhaps because I am an American I have not been exposed much to the property market in the UK but all these different types of estates and titles and registration and whatnot are extremely foreign to me and it will take me a bit of time to orient myself. Pray for Questor.

Sunday, July 24, 2011

A tortious event

I can see that tort is going to be interesting if it is anything like the case of Cole v German Savings Bank. Obviously the key point of this is that a party's liability is limited due to the acts of a third party towards the defendant. In this case, an elevator shaft was empty and under construction. A young boy about 13 years old impersonated the usual elevator boy by dressing up in his costume. He then led a woman to the shaft, opened the door, and invited the patron to pass into the shaft and let her fall down the hole. Shocking I know. The court found that there was no evidence that the woman's injuries resulted from acts or omissions of the building owner. Rather, there was positive and convincing testimony that the woman's injuries were caused by the wrongful act of the young man, who was a trespasser. The building owner could not foresee or reasonably anticipate the young man's violation of the law and trespass upon its property. The young man's voluntary act broke the chain of causation between any prior negligence of the owner and the patron's injury. The owner's acts were not a proximate cause of the accident.

Tuesday, July 19, 2011

The results are in

After developing a blister on my finger yesterday from hitting the refresh button about a million times, I am pleased to report that I have my first year law school results. The good news is that I managed to score a 2.1 overall. Quite 'chuffed' about the result as my English friends would say. Surprisingly however I was disappointed to see that my lowest mark was in criminal which I had expected to be my highest grade. Most of my peers who got grades yesterday did comparatively well so I am happy for them. They also were surprised by lower than expected criminal law exams so I imagine that as the professor says there must be some elusive 'technique' for writing answers to that exam. I'm most pleased that I can now close the book officially on year one, that I do not have anything to 'correct' going forward, and that I can now jump on my second year subjects. Onwards and upwards.

Monday, July 11, 2011

One Week Away

Notice out from the university recently that LLB grades for European students will be out next Monday. Very excited and curious about seeing my results. Really don't have any idea how I did. I am expecting that I did the best in criminal law, ok in common law and so so in public law. However how this will rank in terms of actual grades I have no idea. Keep fingers crossed and I will let you know soon.

Wednesday, June 15, 2011

A warrantless presumption

Good news out today, a U.S. District Court Judge upheld a former colleague's ruling on California's Prop 8. The federal judge ruled that there was no evidence the previous judge was prejudiced in the case. Those in favor of Prop 8 had raised questions about the judge's ability to impartially decide the controversial question of same-sex marriage due to his homosexuality.

To be fair, the exact argument was that should the judge 'ever might' want to marry his partner he had an 'interest that could be substantially affected by the outcome of the proceeding'. Of course it is another standard of independence that no one may be a judge in their own case or have a stake in the proceedings against before him.

I think that the main point of the ruling today is well summed up as follows: "The presumption that [the judge], by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief... On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits."

Tuesday, June 14, 2011

Sexual Bias?

Interesting short article recently in The Atlantic.

The essence of the article is that California voters passed a referendum which limits marriage to heterosexual partners. This law (called Prop 8 as it was posed to voters in a mix of referendum items as Proposition 8) was been struck down by the judiciary as violating the due process and equal protection clauses under the constitution. Now those who support Prop 8 are challenging the judge's ruling on the grounds of bias - the judge in question is gay.

It has long been a standing principle that justice must not only be done but must be mainfestly seen to be done. Thus any hint or apperance of bias should be avoided. Yet in this case is one's sexuality enough to determine bias? Is it a given that if I am a homosexual, I would naturally be in favor of marriage rights for gays and lesbians? If one agrees with that statement and believes that the judge in this case should have excused himself for bias, I can not imagine how the counter claim can not be made with the same logic. A heterosexual judge would then by the same token found biased as well. According to this logic he would naturally be in favor of Prop 8 and want to keep a ban on homosexual marriage.

Perhaps we should call for a bisexual judge who can see both sides of the issue? Or a transsexual judge who is able to rise above it? I could go on but I think you get the point...

Tuesday, June 7, 2011

Guilty as charged

Finally a statement out from the University of London.

As suspected, this New College of the Humanities will be an independent teaching institution. They will have their students enroll in the University of London International Programmes. In addition to the yearly 1.5k quid that they must pay to the University of London, they will whack on an additional 16.5k for their value added services. It looks all above board and legitimate. A smart and easy way to start a school and piggy-back along on the University of London. A brilliant chance to access some of the best academics in the world. Indeed, there will be extra courses and the caliber of students is bound to be high. However over the course of three years I can imagine better ways to spend fifty thousand pounds...

Monday, June 6, 2011

Money maker

Interesting news out today in the form of the New College of the Humanities, an academically star-studded institution based in London due to open its doors to students in October 2012. Reports are that some of the world's most celebrated academics will join this institution focusing on undergraduate studies in the humanities. Apparently no longer able to resist the steady decline in the humanities, this band of brothers (and one sister) has come together in an attempt to save its place in the academic world. They have become so alarmed by funding cuts to education that they feel compelled to act to ensure access to the intellectual fires that forge truly exceptional individuals.

Impressed? So was I.

Oh and did I mention that fees are set to be 18,000 quid a year, double the maximum for other universities?

Less than impressed? Yeah, I felt that way also.

Oh and the degrees will be awarded via the University of London.

Yes, the same school that is charging its students such as myself on its International Programme just a wee bit over 1,000 pounds a year.

Even less impressed then you were before? Me too.

To be sure, one welcomes any attempt to improve education. Those academics who are involved in setting up the college have a huge amount to offer others. However given the price they plan to charge in order to pass their students through onto a degree which is already very open and accessible, it is as a disappointment. Even if it might be a money maker...

Monday, May 30, 2011

Oh the irony of it all

Just read Jones v Padavatton [1969] 2 All ER 616. Could anything be more ironic than the mother who pays for her daughter to leave America and study to become a barrister only to have to take her daughter to court several years later when she desired to go back on her promise? This is too much...

Bargain vs Will

While still a novice in my contract studies, I have to say that I already have a basic principled objection to the central bargain theory of contracts. As far as I can tell, one of the basic concepts of contracts is that it is mean to be a exchange. In its most basic form a contract reflects an agreement or a bargain between two parties. Party A promises to do something for Party B in return for Party B's promise to do something for Party A. In other words two parties come together to exchange something of value, it need not be equal value but judges have consistently found the need to find some value or consideration in the exchange. In the absence of such consideration, courts will not honor the contract. I find this hard to fathom. Certainly there is reason to reject a contract when one party is brought to it under duress, however is it reasonable for the courts to hold that there must be an accounting of value in every instance? Is not the fact that the two parties who enter into a contract deem it worthy of value to do so? Does this not imply that the two parties find some value in the exchange?

Of course you have to assume that many of the other elements to a contract continue to exist. There must be an offer and an acceptance. The wording of the agreement must demonstrate certainty. One should have an intent to create legal relations, there must be a binding understanding between the two parties. Most certainly it would be necessary to show that there is the requisite 'meeting of the minds'.

How then would a will theory of contracts operate? Certainly we would no longer need to worry about the Foakes v Beer decision. Williams v Roffey Bros & Nicholls no longer becomes controversial. But what dangers would it open? Check in for the next post...

Sunday, May 22, 2011

Just can't get enough

I have a confession to make. Despite saying that I would take a break and then start working on the next courses in a couple weeks, I've been unable to stick to my word. Since this weekend I have been digging into the next set of courses I will take at law school. Currently the plan is to take contract, tort and trusts. Perhaps I will switch land law for one of these courses although I have to admit I am not keen on land. I expect I will just leave it for my final year.

I've been assembling what resources I can from friends and on the internet for these courses. I am really looking forward to them. As any student can tell you each year begins with such hope and high aspirations, hopefully I will be able to keep the high spirits going at least through the summer.

To start with I will focus on contract as that is the course which I have the most material for and the one I know for sure that I must take. So far I really enjoy it. I have to say that I don't really agree with it all however. For example the idea that a display of goods is only an invitation to treat in this day and age seems a bit unrealistic. Should a shop owner really be able to not sell an item to me because she finds me "a ragged and verminous tramp" as Percy Winfield contends? How can one balance this claim against one of discrimination? Also are not all advertisements meant for the general public who reasonably expect to find such goods available for sale? Yet even beyond that a consumer can easily go into a shop, pick up items, scan them himself, pay for them via a machine, and subsequently exit the store. Was the offer really just when the buyer swiped their own credit card which accepted the payment? Interesting reading ahead.

Thursday, May 19, 2011

Good luck

Just a short word of encouragement to my colleagues who are sitting the contract law exam tomorrow. I know this is an intense subject with a lot of ins and outs as well as numerous cases to recall but those of you I know on this course have put in a lot of work and I am sure that you will do well as a result. All the best.

Wednesday, May 18, 2011

Last one done

So, I'm back from my Common Law exam. It was pretty much as I expected. I hope that all went well. Somehow my revision managed to be right on target so the topics that I revised over the past few days were exactly some of the options on the exam so I am really pleased about that. I don't have the feeling that I nailed it quite as well as the criminal law exam but my initial feelings are that it was better than the public law exam. Perhaps with luck an upper second might be in the cards. Fingers crossed. In any event, baring any terrible misfortune this is the end of the first year of law school. Grades should come the end of July with luck and I will see how well I did.

Next is to celebrate (I did a bit of that right after the exam and I plan to do more tonight with family) and then to see which courses to go for next year. So far research seems to be pointing me in the direction of my original plan to do contracts (a must) in conjunction with torts and trusts and leave land law for my last year. We will see if this hold true. In any event, I am really looking forward to moving on and starting with some new subjects in the next few months.

Never fear however I will continue to post things for you my loyal readers. Next on tap is the amazing statistic that 80% of all appeals are based upon judges' mistakes. Given that judges are given only limited training does this not strike one as an area for huge improvement?

Saturday, May 14, 2011

Two down, one to go

Just a quick update on exams again, Friday was Public Law. Throughout the year I have felt pretty good with Public, I think mostly because of my interest in politics, all my English friends and also the fact that I live in Europe therefore going into the exam I felt quite good. Walking out however, I had the feeling that I had not quite nailed it. Perhaps my opinion was colored by the earlier good feeling which I had from the criminal law exam, but somehow I don't think I will be getting a First. Not that the questions were particularly difficult, but rather I found it hard to make my answer shine. I went for the questions more focused on parliamentary workings and constitutional issues rather than case law, the EU, judicial review, elections, etc. We shall see. Common law coming up on Wednesday and then on to next year. Feel pretty good for Common, hopefully will do well.

Thursday, May 12, 2011

One down, two to go

So just a very brief update of yesterday's Criminal Law exam. Overall cautiously optimistic. The exam was more straight forward than I expected it to be, actually was spoiled for choice about which questions to do. I think I hit all of the main points. I know for sure that I mixed up a couple case names but I think I got all the principles correct. Might have missed one possible charge yet reading the notes on it that charge seems a bit of a stretch but I guess that is what the exam is all about. If lucky I might pull out a 2.1, I dont expect it will less than a 2.2 but who knows maybe the grading will be really quite tough. I do feel rather exhausted today however so I hope I will regain my strength before the Public Law exam tomorrow. Fingers crossed and I will let you know.

Tuesday, May 10, 2011

Thank you

One thing I think that we forget to do in this day and age is to take the time to say thank you to others. In order to attempt to rectify this, prior to my first exam tomorrow I would like to say thank you to a few people. First of all to you, my gentle reader, for having a look at this blog. I am glad that you could come and have a look, I sincerely hope that you have enjoyed it so far and will come back again and again. To all those who took the time to comment on the blog - my thanks, you have made this experience much richer. To my colleagues at the law school and to all those other law students whom I have met along the way. I've enjoyed exchanging ideas and experiences more than you can imagine. I am a better law school student because of you. To my friends who have offered me encouragement and support. You have lifted my spirits and helped me to carry on. Finally to my family - words can not express how grateful I am that I have such a strong foundation upon which to build my life. My thanks to you all.

Friday, May 6, 2011

The Final Countdown

So at long last my exams begin next week. Apologies that I have not been keeping up with my law blog as much as I would like, I've been deep in revision. It is funny how much clicks into place in the last few days. I now see things with much more clarity than I did before and also can deal (I hope) with subtle issues which were so subtle before that I did not even recognize their existence. Hopefully all with come together on exam day and the grades will be adequate. Cross fingers for me.

To be honest however more than anything, I am looking forward to some new subjects. Probably I will dive right into the new subjects as soon as I finish. Currently the plan is to take Contract, Torts, and Trust law. I think that the first year will be rather easy by comparison. I looked at Contract already and it seems like there are very many cases involved. Trust law I hope will tie in with my finance background. Torts with any luck will be as interesting as Criminal law is this year. Hopefully my interest will remain high.

Tomorrow I am off to pay for my exams. I am quite curious what the actual mechanics of the exams will be like. I am especially curious if there will be anyone else taking exams with me or if I will be all alone in some big lecture hall by myself. Either way I am looking forward to it. Time to close one chapter and begin another.

Thursday, April 7, 2011

Before the storm...

I remember several years ago I was living in a city which suffered from flooding. While there was a large amount of damage caused I believe that few lives were lost if any. However what was interesting to me was the way that the animals behaved. Apparently they could somehow sense in advance that something was wrong and were attempting to flee in advance of the disaster. Indeed many of the animals in the local zoo could not be saved by the attendants because they were in such a state of panic that the handlers could not safely move them to another location. I have to admit that students in advance of coming exams react in a similar manner.

Next month we are due to sit our exams for the law school. For many this will be the first exams that they sit at the school. Most of the students I know are relatively experienced and have been studying for some period of time. Yet they seem to still act in way similar to the animals before the flood. Most have withdrawn from contact, bunkering down for what is to come. Some seem to have withdrawn altogether sticking their heads into the ground as the fabled ostrich. Some run frantically around yelling 'the exams are coming' 'the exams are coming' as if others were blissfully unaware of such a clear fact. A few seem to be moving towards higher ground, a vantage point where they can prepare for what is to approaching. What is apparent in all of them however is that they have become more focused. There seems to be less willingness to reach out to others, to communicate and share information. Interesting to see how animal instincts are so ingrained in all of us.

Wednesday, March 16, 2011

Hammer time

This morning I did my first practice question under exam-like conditions - just me, my pen, a few pieces of paper and the statute book for Criminal Law. Really worthwhile and I learned numerous things:

1. Time is tight - I gave myself just 40 minutes to answer the question and I only just made it. Sadly I have to think that it had more to do with luck than with skill but for sure there was no extra time to muck about.
2. Statute book - if you don't know already what you are looking for in the statute book you will not be able to find help there on exam day. It was helpful for me in this instance to cite exact sections from the Criminal Damage Act 1971 but when I was looking for something to aid me in relation to manslaughter charges I had no idea where to look and it was a waste of time flipping through and hoping to find help.
3. Cases - I did not cite one single case in my answer, could not recall the names of any nor did I know how to correctly fit them in. When I rework my essay I will need to put some cases in. Also it seem critical that I should be able to cite some cases that might be used in any criminal law cases - for example something related to intention. Big area for improvement here.
4. Breadth rather than depth - this was a bit of a suprise but I found that I was not able to go into deep detail on each point/offence. It was necessary to cover so many points that one had to do it elegantly rather than in detail. A suprise to me considering the detail given during studies.
5. the human factor - I found that I was so out of practice with writing by hand that my hand was tired and my penmenship poor by the end of the first essay - with four to write over the course of three hours I will need to practice this skill.

I've reproduced my handwritten essay below for you to judge, any feeback is more than welcome. Here first however is the question:

Nicola wanted to frighten Susan and so poured some petrol through her letterbox and ignited it. The fire spread throughout the house. Susan, who was asleep in bed, breathed in the fumes. She was taken, unconscious, to hospital and placed on a life-support machine. After a few days the doctors diagnosed that as a result of breathing in the fumes, she was suffering from irreversible brain stem death and switched off the machine. Susan was declared dead.

My response:


Nicola may be charged with the common law offence of murder. Murder is defined as the unlawful killing of a human being with the intent to kill or to cause grevious bodily harm. In the facts of this case Nicola is the factual and legal cause of Suzan's death. But for Nicola's lighting of the petrol Susan would not have been diagnosed as breathing in noxious fumes. These fumes caused her legal brain death and thus the jury will most likely find that Nicola committed the actus reus of murder.

The mens rea of murder hinges upon the intent to kill or to cause grevious bodily harm. The facts of this case state that Nicola intended to 'frighten' Susan. Therefore it is encumbant upon the prosecution to prove beyond a reasonable doubt that Nicola had the requisite intention for the crime of murder.

To do so the prosecution must show that Nicola either intended murder or grevious bodily harm. Such intent may be oblique intent, i.e. if it is all but certain that Nicola's actions would have resulted in Susan's death then the mens rea will have been satisfied and Nicola will be liable for murder and may be sentenced to a maximum of life imprisionment.


Nicola may be charged with manslaughter if the Crown Prosecution Service believes that it will be unable to secure a murder conviction. Depending on the strength of the evidence Nicola may either be charged with reckless manslaughter or constructive manslaughter.

For reckless manslaugher the actus reus is the same as that of murder - the unlawful killing of a human being. The prosecution will need to prove this based upon the evidence outlined above for murder. The mens rea however is based upon a lower threshold than murder - gross recklessness as to whether one's actions will result in death or grevious bodily harm. In this instance the prosecution will need to show that Nicola recognised the there was a risk of death or grevious bodily harm because of her actions and yet went ahead with them despite that risk. If the jury is satisfied that the prosecution has proven their case beyond a reasonable doubt they may convict and Nicola may receive a maximum sentence of life imprisionment.

If the prosecution believes that it may have a stronger case based upon constructive manslaughter then Nicola will be charged with this offence. To be convicted under a charge of constructive manslaughter. The actus for this crime is that the unlawful killing of a human being occurs based upon an unlawful act. In this case the unlawful killing of a human being is likely to proven based upon the reasons given in "murder" above. To satisfy the 'unlawful act' element of this offence Nicola must be shown to have committed a 'gateway' offence. In this case it is likely to be that she is charged with criminal damage by arson under sections 1(2) and 1(3) of the Criminal Damage Act 1971. The actus reus of this offence is the unlawful distruction of property by fire. In this case the prosecution should be able to prove this based upon the facts of the case. The mens rea of a charge under 1(2) & 1(3) is intention or recklessness that property will be destroyed or damaged and also intention or recklessness whether life would be endangered. The prosecution must therefore prove that Nicola either intended to endanger Susan's life (and her stated intention to 'frighten' may give weight to this claim) or was willing to risk that Susan's life might be endangered. If the prosecution can prove this then Nicola will be convicted under a charge of constructive manslaughter and will face a sentence of upto life imprisionment.

Criminal Damage by Arson

As stated above under 'manslaughter' Nicola may be charged with criminal damage with intent to endanger life by arson s1(2) & 1(3) of the Criminal Damage Act 1971. If found guilty of the actus reus and posessing the necessary mens rea, Nicola will be found guilty and sentenced to a maximum of life imprisionment.

Wednesday, March 9, 2011

Left out of rights?

Interesting developments in the past few weeks in relation to the UK and its membership in the European Court of Human Rights. As many of you already know the European Court of Human Rights was established by the European Convention on Human Rights which was put forward by the Council of Europe. The aim of the court was to give force to the rights articulated within the Convention. The UK was one of leading proponents of the Convention and actively helped to develop the document. However it was not to be until the Human Rights Act 1998 that its provisions were incorporated into law. Undoubtedly the HRA has played a major role in strengthening the rights enunciated in the Convention, however a number of recent decisions by the European Court of Human Rights have drawn scorn from a number of MP's in that they have gone too far and that unelected judges in Strasbourg are now having their way with the cherished doctrine of the sovereignty of Parliament.

Seemingly MP's are put out that court has stated that the blanket ban on convicted criminals being denied the right to vote violates the Convention as there has never been a proper airing of the topic in a legislative assembly. Well, that was true until a few weeks ago when there was a rather entertaining and open debate about the Court's ruling in the House of Commons. While the Attorney General was present to give the government's position and Labour was quick to provide that of Her Majesty's Loyal Opposition, most interesting was that it was a back bencher debate which saw much cross party support for not only maintaining the ban on prisoner voting but also sought to reaffirm the primacy of Parliament in making such decisions. Only a few brave MP's from the Liberal Democrats were bold enough to suggest that as the Court had in the past played a role in carving a path for the recognition of rights within various societies before their time, perhaps it might be worth giving them the benefit of the doubt on this issue as well.

Where does the UK stand in relation to the Convention? Can it in fact go against a ruling by the European Court of Human Rights? As far as I can tell, it can. Unlike EU law which is must be adopted by the UK, there seems to be no compunction for the Courts rulings to be treated in a similar manner. Granted the HRA requires that judges take into consideration the rulings of the HRA and also that it is illegal for public bodies not to follow principles established in the HRA, however there seems to be nothing preventing the Parliament from acting contrary to a ruling by the ECHR. Indeed, the vote which took place in the Commons specifically stated at that while they support and recognize their obligations under the Convention, they affirm that prisoners should not have the right to vote.

Perhaps the wider implications of these developments is the UK's membership in the European Court on Human Rights. While only a few call to withdraw from the Convention, there was harsh criticism of the court's workings. Some hope is pinned on correcting the weaknesses of the Court, but this seemingly opens the door for the Conservatives to possibly repeal or water down the HRA in favour of a Bill of Rights. How the courts, the legislature and most importantly the public will react to a possible lessening of rights remain to be seen.

Thursday, February 24, 2011

The King's shilling

Once upon a time, in days of yore, in merry ole England soldiers in the King's service received a shilling as their wage. Interestingly the word shilling comes from schilling, an accounting term that dates back to Anglo-Saxon times when it was deemed to be the value of a cow in Kent or a sheep elsewhere. I remember as a child that my father kept some shillings as a souvenir but they had dropped out of circulation in England soon after I was born. In any event, the term 'to take the King's shilling' means to be in the employ of the Crown. The reason why I mention this is because I found out during my studies that if you wish to resign from Parliament this is exactly what one must do.

Apparently in 1624 a resolution was passed that election as a Member of Parliament is such a sacred trust that one can not resign their position. Obviously you can certainly lose your seat in an election, or you can die in office but what is one to do when there is a pressing need to leave the Commons for some reason. Recent events related to Parliament expenses has brought this to light - the MP must take the King's (or in this case the Queen's) shilling.

Based upon a provision in the Act of Settlement 1701, an MP who accepted a paid office under the Crown was obliged to leave the Commons and give up his position as an MP. The rationale being that his independence would be compromised if he were in the King's pay. As a result an MP who wished to give up his seat applied to the King for a post of the steward of an estate which had come into the ownership of the Crown. While such positions are archaic, really no more than in name only with little pay, they are taking the King's shilling nonetheless.

So now according to section 4 of the House of Commons Disqualification Act 1975 a member of the House of Commons becomes disqualified should they take the office of steward or bailiff of Her Majesty's three Chiltern Hundreds of Stoke, Desborough and Burnham, or of the Manor of Northstead. Still a rather spiffy title I should think.

Friday, February 18, 2011

Sneak Preview

Three interesting things I wanted to let you know are coming up in future blog posts:

Will the UK withdraw from the ECHR?

The unusual way in which MP's can 'resign' from their posts.

Finally have you ever noticed how many appeals are based upon poor instructions by the trial judge to the jury? What is to be done to fix this?

Tuesday, February 1, 2011

Jury Rights and Wrongs

I've come across an interesting bit of material in my studies about juries that I thought I would share. Basically it concerns the benefits and disadvantages of jury trials. Many of these are common fare - juries are a poor choice to sit in judgment of others because they are not experts neither in the law or in the specifics of the case, they cost more than a judge would, they are expensive and time consuming. On the other hand many believe that juries are an essential, participatory and democratic element to the justice system. Studies have constantly shown that people believe that due to their random selection (and in America their supposedly unbiased nature) they are eminently fair. Satisfaction with the jury system is extremely high. However there seems to be one argument put forward against the jury that has a good bit of traction in my mind - the notion that juries are arbitrary. Arbitrary in the sense that their judgment is limited to one or two words (i.e. "guilty" or "not guilty") without the need to say what drove them to their decision. No justification of their decision is required. While I understand why this might be the case (the believe that by giving specific justification for their decision such as "we did not believe the witness for the defense" may open them up to a legal challenge and thus a never ending court procedure) it does sit poorly when looking for an open and transparent process.

This line of criticism was taken up recently by the European Court for Human Rights (ECHR) in the case of Taxquet v Belgium. In this case Mr. Taxquet appealed against his conviction in a Belgium court based upon the fact that he did not know what were the reasons which drove the jury to respond in the affirmative to four questions which were the basis for his conviction. He complained that this lack of transparency violated his right to a fair trial as protected under Article 6 of the European Convention on Human Rights. The ECHR agreed with him. It is important to note however that the ECHR in no way condemned jury trials by their nature - but rather that in relation to this case, the verdict lacked the transparency required for the ECHR to deem it fair. It remains to be seen how this may play out give that the case was only decided recently. However one could imagine that by providing a rationale the system would allow more light to fall into the darkness of the jury's deliberations.

Friday, January 21, 2011


As you may recall from my previous post "A Case of Privilege" there was a ruling last year in the Chaytor case on the abuse by some MPs of Parliament’s system of expenses, which surfaced spectacularly in 2009. In the latest episode in this saga at the start of this year David Chaytor, a former Labour MP, was sentenced to 18 months in prison for false accounting. On January 11th it was the turn of Eric Illsley, who kept his seat at the last general election, to appear before a judge. He pleaded guilty to fraudulently claiming £14,000 in expenses associated with a second home, and later announced his resignation from Parliament. He is likely to face jail as well. Four other politicians—two ex-MPs and two peers—have been charged with similar offences, and the police are investigating several others. Nice to see the wheels of law churning and catching a few guilty parties.

Thursday, January 20, 2011

A Matter of Perspective

I came across an really thought provoking book last night as I was wandering around the internet: The Legal Analyst - A Toolkit for Thinking about the Law by Ward Farnsworth. I've only read to the second chapter so far but what I've read really helps me to conceptualize things. One great point is to view the law through the perspectives of ex ante and ex post. The ex post perspective involves looking back at a disaster or other event after it has occurred and deciding what to do about it or how to clean it up. The second perspective, ex ante, involves looking forward and asking what effects the decision about this case will have in the future —on parties who are entering similar situations and haven’t yet decided what to do, and whose choices may be influenced by the consequences the law says will follow from them.

Thursday, January 6, 2011

Another Milestone

When was the last time that you actually saw a milestone? I always find them quite interesting actually, almost like Stonehenge to be honest. A quaint relic of a time gone by, weathered by the elements yet still visible. Perhaps not as much of a mystery as the Wiltshire stones but still intriguing. At least to me.

In any event today I reached another milestone in my quest for the LLB. I stopped by my local examination centre this morning to get their sign off on my papers to sit my exams in the spring and I have just posted them to the university. In a few more days I can expect a much more visible sign when the fee for the exams is deducted from my account.

Slightly behind where I wanted to be at this point but I will be putting my nose to the grindstone over the next few months so keep the bandages handy...

Monday, January 3, 2011

Happy New Year

Big apologies for the slide in my number of postings at the end of last year. I am going to use the excuse that I was deep deep in studying and could not even be bothered to lift my nose out of the books to eat and drink much less to post a few words here. I will leave it up to you to decide whether this is true or not but I am going to stick with it...

I have actually made a bit of progess in the past couple of months especially in criminal law but there is a strange thing which is slowing me down - a lack of index cards. Sadly it is impossible to get index cards where I live (hard to believe I know but seemingly true). I wanted to use them to make flash cards to study the huge number of accumulating cases. Somehow I got really fixated on this issue and searched high and low for index cards but was unable to find them in any shop or office supply store. Neither was Santa clever enough to find them. So I am left to my own devices to find an old fashioned means to study the cases. Open to suggestions so if you have any good tips please write back and let me know.