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.