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.

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 Most have withdrawn from contact, bunkering down for what is to come. Some seem to have withdrawn altogether sticking their heads into the ground as the fabled ostrich.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.

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:

Murder

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.

Manslaughter

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.

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.

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.

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?

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.