“just keep writing…” – part II

my dissertation selfie…

With a background in neurosciences, and currently practising as a psychotherapist I have always had a keen interest in how the brain (actually) works, and perhaps more importantly how we might utilise that knowledge to maximise our mental capacity when it comes to approaching the (undoubtedly) challenging UoL LLB (Hons) that many of us are harnessed to. 

The last two/three decades have seen a considerable reframing of the neuro-cognitive paradigm, and in case you don’t have a dictionary to hand, what I’m talking about is thinking, and how we conceptualise our capacity to think and essentially process cognitive data. The two biggest breakthroughs concern what has been termed neuroplasticity (the brain’s ability to reorganise itself by forming new neural connections throughout life) and what we might term cognitive ‘compartmentalisation’; referring to the fact that intelligence is very far from an unitary concept but is distinctly multi-faceted, multi-modular if you will.

Though the former is of great comfort to a mature student like me (it is now official: you CAN teach an old dog new tricks) I’m interested, in this the second of two blog articles concerning ‘how to write a dissertation’, to focus on the latter and in particular its implications when we come to tackling this 10,000 word marathon.

What compartmentalisation refers to, and as with many concepts it is glaringly obvious when it is stated in simple terms, is the idea that even though there is some degree of ‘leakage’ skill-sets are often, if not usually, modality specific. So, to illustrate, simply because I play the  piano very well does not mean I will be a world class boxer, the national chess champion may be an hopelessly nerve wracked public speaker, the articulate playwright no great shakes at downhill skiing. 

The implications of this realisation are highly significant for any potential dissertation writers (and so far the University of London LLB Dissertation Group has 117 active members). Stated in its skeleton form, it means if you want to get good at writing, write; and if that task involves academic writing, write academically.

Let’s break it down into a few bullet suggestions:

i. Take every opportunity to write; writing does generalise… so a good creative writer will more quickly learn the necessary skills of academic writing than someone who has never put pen to paper. So long before I started writing law related articles I’d published a bunch of (as it happens politically related) book reviews, been That’s Shanghai travel correspondent for 24 months, and written a personal blog (http://markpummell.com) for some years.

ii. Start learning to write in the specific language required of you within the legal profession. This may take the form of self-published articles (https://ulondon.academia.edu/MarkPummell) comments on legal websites and/or relevant Facebook pages. The law has its own glossary and it needs to be mastered. This process can obviously be supplemented by broad base legal reading, particularly academic articles and caselaw. But the word truly is supplemented; reading is not a substitute for writing. We can recall. They are different forms of ability.

iii. Start small. 10,000 words (equating to roughly 30 pages of 1.5 spaced type written pdf) is no small achievement, and it is unlikely that you will be able to tackle it if your previous personal best was a 250 word Facebook post. Much like a marathon, build up to it. Write some 1,500 – 2,000 word articles first. When you have an half dozen or so of those under your belt, suddenly the task seems that little less Sisyphean. 

iv. And finally (for today) be patient with yourself. I wrote mine over exactly 20 days. Having prepared for around three months (downloading and reading relevant articles and cases etc.) I set myself the very reasonable (and for that read achievable) target of 500 words per day. Sometimes I did more and sometimes I did less, but there was not a day that went by during that period that I didn’t write something. Self disciple is the name of the game.

just keep swimming…

So with that in mind, sharpen your pencils… on your marks, get set, go… time waits for no man; and it will somehow not seem, or indeed be any easier tomorrow.

Perhaps at these times we should remember the (slightly modified) words of Dory: “just keep writing… just keep writing…”

References:

i. https://www.thatsmags.com/shanghai
ii. https://www.facebook.com/profile.php?id=239250946629830 iii. Finding Dory – https://www.imdb.com/title/tt2277860/

“just keep writing…” Part I

“And it was always said of him, that he knew how to keep Christmas well, if any man alive possessed the knowledge. May that be truly said of us, and all of us!’’


With Diwali just over, and Christmas poised to loom large, I’m feeling particularly festive. The truth is I have much to be grateful for; my health, two wonderful children, a beautiful partner, and as a psychoanalyst, a job that never ceases to amaze. 

But much as Scrooge on that most joyous of Christmas mornings, today you’d find a particular spring in my step, and the reason is simple enough: 10,015 words of completed dissertation. It came at a cost, perhaps not requiring the same kind of existential soul-searching that was asked of poor Ebenezer, but a cost nonetheless. One that on completion merits at least one large glass of red and a few oven warmed mince-pies; even if I say so myself.

But the aim of this piece is not simply to gloat, for that would be most un-Christmasy, nor to simply expound on my efforts which would be nothing short of tedious; the aim is to both encourage, and guide other would-be dissertation aspirants. 

For starters I would ask you, albeit rhetorically, why not give  this module a try? Indeed, why wouldn’t you? It’s challenging, has an high pass rate, relatively high mark averages, but most importantly… pause for effect… it has to be better than sitting another three hour ‘unseen examination’ whilst being circled by vulturous invigilators that would strip search you if they even notice a misplaced eraser. 

There you have it… we’ve established the why. But what of the how?

Well in the first instance, as part of your study pack bundle, it comes with an excellent study guide that will guide you through the all important process of writing your initial proposal. I cannot overestimate the importance of formulating a good research question. 

For brevity’s sake at this stage let me make a few simple points:

i. You need to formulate a research ‘question’, not simply delineate an area of law that interest you. Perhaps for example you find the law of ‘joint enterprise’ interesting, and no doubt it is, but that does not in and of itself constitute a research question. However an outcome study considering the appeals that have followed from the Supreme Court decision Jogee [2016] for example might be more apropos.

ii. Consider preparing more than one proposal. I ended up preparing three; two property related topics and one criminal law. Of those, I think possibly the latter was the most interesting, it concerned the ‘insanity plea’ and aimed to be an essentially empirical continuation of RD Mackay’s  scholarship in this area. But after several e-mails to the Ministry of Justice (invoking the Freedom of information Act 2000) it became apparent that I just wasn’t going to be able to access the data I needed to complete the research. So in the simplest of terms, the research question asked needs to be realistically answerable.

iii. Try to become au fait with basic research ‘methodologies’. This really constitutes the ‘how’ you will attempt to answer the question you propose to answer. Is your study to be qualitative and/or quantitative? Where will you source your data? What will be the scope of your analysis? In truth hardcore empirical research (the stuff that scientists are more than familiar with) and law rarely overlap. I personally think that it is both a shame (it softens the usefulness of many of the research papers written, reducing them ultimately to at best opinions) and a pattern that is beginning to change. So one way you might think to make your research stand out is to add an empirical component: “since Jogee [2016] there have been 12 appeals 7 of which were unsuccessful, 3 of which led to sentence reductions, and 2 of which remain as yet undecided…” (data) reads far better than “I think Jogee was a really bad decision as it doesn’t seem to have changed anything …” (opinion)

iv.Finally (for today) I would suggest you choose a topic that really interests you, for (as we’ll discuss further in Part II) you’ll soon discover that 10,000 words don’t just write themselves. Considering the ‘common intention’ constructive trust I ended up downloading over 100 cases and probably a similar number of journal articles.

That hopefully should get you started, and be enough for you to see your proposal both written and ultimately accepted. In a subsequent blog (just keep writing – Part II) I hope to explore in greater depth how you might tackle writing the actual body of the dissertation itself.

References: 

  1. Charles Dickens 1843 novella – A Christmas Carol
  2. R v Jogee [2016] UKSC 8
  3. RD Mackay – Fact and fiction about the insanity defence 

Even Homer Nods

 

In March 2012, in an article entitled ‘Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme?’ Baroness Hale said the following:

“Lastly, I have heard it argued that our considerable respect for the Strasbourg jurisprudence is getting in the way of our regarding the Convention as a properly British Bill of Rights, of taking its guarantees as a starting point and working out the proper balance between the competing interests for ourselves. It might even be suggested that if we had paid less attention to the Strasbourg jurisprudence, we would not have given human rights such a bad name in certain quarters, because we could be seen to be having regard to British values, British mores and British legal principles.”

She was herself making reference; generally, to a series of cases in which the Supreme Court’s decisions can be said to have ‘mirrored’ that of Strasbourg’s, and more specifically to the scholarship of Francesca Klug and Helen Wildbore, in the light of those decisions.

This paper is an attempt to revisit some of those cases, and the controversy that they have engendered, and argue that ultimately they did play a role, indeed a significant role in feeding the anti-European sentiment that made the ‘seemingly impossible’, in the form of our unstoppable trajectory to exiting the European Union (and most likely the Council of Europe if Theresa May is re-elected in 2020), a very real, if not certain outcome.

Not written in a spirit of blame, it is simply an attempt to ‘understand’ how we might have arrived at this constitutional juncture, and that to a degree, does require apportioning ‘responsibility’. I shall openly draw on the work of New York psychoanalyst Doris Brothers as I develop the idea that ‘uncertainty’, which I believe these decisions engendered, has played a large part in fuelling both societal disregard for European ‘values’, with legal values representing  just one ‘set’ of such values, and by so doing, contributing to a wider cultural ‘dysphoria’ where in Brothers’ terms, ‘complexity-reducing dualities’ can flourish.

If there is a psychological equivalent to horror vacui, it would have to be mooted in terms of ‘uncertainty’ or some such equivalent. If as Brothers suggests, trauma begets uncertainty, it doesn’t seem an enormous leap of faith to assert that uncertainty is a ‘state of mind’ that ‘we’, both as individuals, and as a society will recoil from. A noxious stimulus if you will.

And just as Brothers was able to observe in her patients, one can identify many of these ‘trauma-generated’ (or ‘attempt-to-reduce uncertainty’) patterns emerging over the last decade or so; “the transformation of certainty into certitude”, “denial[s] of sameness and difference” and “the creation of complexity-reducing dualities”. It was just this tendency, one can argue, that drove David Cameron (who purportedly wished to stay in Europe politically, but yet was unable to constrain his frustration at some of the judgments passing back and forth between the UK’s higher courts and the European Court of Human Rights) to reduce the nation’s constitutional destiny to the quintessential ‘complexity-reducing duality’,  a referendum. 

June 23 2016 saw the nation being posed a seemingly very simple question:

But with none of the ‘procedural constraints’ that would usually ‘hedge’ in such a proposition, we in true British pantomime style were simply asked whether we “believed in fairies or not”. Chaos and consternation (not to say legal ramifications) have flowed from a nation simply doing what it was told to do. In this particular instance, opting for the latter ‘leave the European Union’ option, has left the nation, and to a degree the world in a state of not entirely positive wonderment. Not I think so much at the actual decision, but at the extraordinary degree of naivety that underpinned the way that decision was arrived at.

Lady Hale’s  analysis followed on the heels of, but interestingly makes no reference to Lord Irvine’s 2011 Bingham Centre for the Rule of Law lecture, A British Interpretation of Convention Rights. Though there is a broad consensus between the two writers, there is also a detectable divergence. Lady Hale ends on a note of optimism (“we may look forward to an even more lively dialogue with Strasbourg in future”) whilst Lord Irvine’s offering has a distinct undertone of disbelief and frustration, and concludes with a velvet-gloved admonition:

“This temptation must be rejected. Section 2 of the HRA means that it is our Judges’ duty to decide the cases for themselves and explain clearly to the litigants, Parliament and the wider public why they are doing so. This, no more and certainly no less, is their Constitutional duty.”

Whilst both commentators agree (and I draw freely on the cases used by both) that there have been some more ‘progressive’ cases; it is the case line that runs Alconbury Developments, Ullah, Al-Skeini, Ambrose that oftentimes first comes to mind, that to a degree created that all important ‘first impression’ and one from which, after the media had made merry, it has proven extremely difficult (in spite of some moves in the right direction) to recover from.

The genesis of what Lord Irvine saw as an excessive ‘deference’ to the European Court, what Lady Hale saw as “getting in the way of our regarding the Convention as a properly British Bill of Rights”, may be traced to Lord Slynn’s Alconbury Developments [2003] speech when referring to s. 2 (1) of the Human Rights Act 1998, he stated:

“…although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence.”

And there you have it, the ‘confounding variable’, a ‘clear and constant jurisprudence’, had entered the calculations and to an extent it has yet to be eradicated. Only a year later, in Ullah [2004] Lord Bingham was adding the gelatin to the jam when he opined:

“it is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less”

which Lord Brown made his own in Al-Skeini [2008] when he ‘respectfully suggest[ed]’:

the last sentence could as well have ended: “no less, but certainly no more….”

By the time we arrive at AF and Ambrose (2009 and 2011 respectively), a disturbing pattern of unquestioning ‘deference’ to Strasbourg, had definitely set in, and the higher courts were making decisions that even they didn’t believe in; with perhaps Lord Hoffmann’s position in AF [2009] (following just weeks after the Grand Chamber judgment in A v UK) setting the high-water mark:

“A v United Kingdom requires these appeals to be allowed. I do so with very considerable regret, because I think that the decision of the ECHR was wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit. It is true that section 2(1)(a) of the Human Rights Act 1998 requires us only to “take into account” decisions of the ECHR. As a matter of our domestic law, we could take the decision in A v United Kingdom into account but nevertheless prefer our own view. But the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so.”

with Lord Hope’s judgment in Ambrose leaving little room for optimism that a true ‘dialogue’ was taking place, when he stated:

“Lord Bingham’s point…was that Parliament never intended to give the courts of this country the power to give a more generous scope to those rights than that which was to be found in the jurisprudence of the Strasbourg court. To do so would have the effect of changing them from Convention rights, based on the treaty obligation, into free-standing rights of the court’s own creation. That is why, the court’s task in this case, as I see it, is to identify as best it can where the jurisprudence of the Strasbourg court clearly shows that it stands on this issue. It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies.”

A judgment against one’s better judgement is not what we expect from the Supreme Court and neither should it be; and Lord Irvine (who supports his position from a variety of sources including Hansard) is very clear, that perhaps more importantly, it was not what Parliament had intended.

He himself said, back in 1997, when introducing the bill to Parliament:

“[the HRA] will allow British judges for the first time to make their own distinctive contribution to the development of human rights in Europe.”

whilst Lord Bingham suggested:

“it seems to me highly desirable that we in the United Kingdom should help to mould the law by which we are governed in this area … British judges have a significant contribution to make in the development of the law of human rights. It is a contribution which so far we have not been permitted to make”

The fact this has not come to fruition, and I think it is fair to say that it has not, is perhaps all the more surprising, in that the higher courts, by the time the Human Rights Act entered into effect (2 October 2000) were no strangers to either European Union Law (through the impact of the European Communities Act 1972), nor to Convention rights; the United Kingdom having been a signatory to the European Convention on Human Rights since the early 1950s.

There had been plenty of time to adjust to Lord Denning’s ‘incoming tide’ of civilian mores; and as such, for an extended period of time, some 10-15 years there existed a very real ‘window of opportunity’ to develop a uniquely British judicial ‘take’ on the ECHR, and the Convention rights that flowed therefrom; and by so doing to make a significant contribution to how human rights developed both domestically and in Strasbourg. To establish a ‘dialogue’ with Strasbourg.

Though briefly observable in cases such as Horncastle, as it was ‘impacted’ and ultimately came to ‘impact’ Al-Khawaja, the conversation never really got started.

It is not my purpose here to look in any depth, at the reasons for this, but its effect. It created doubt, indecision and to a degree disappointment; all the hallmarks of ‘uncertainty’ in the terms of our original hypothesis. Constitutional politics entered a new era, to use Aileen Kavanagh’s term; and the ‘votes for prisoners’ prove to be the straw that broke the camels back.

Uncertainty begets uncertainty.

The nation was asked to make sense of a Prime Minister, who one the one hand, was extolling the virtues of the single market, yet with the other, was vowing to ignore the rulings of the European Court. The stage was being perfectly set for the European Union Referendum Act 2015, the disastrous lack of clarity that its ’silence’ has engendered, and ultimately the populist divisions that we are now witnessing.

By failing to truly appreciate what was being asked of them, the House of Lords, now the Supreme Court, contributed to this confusion. By failing to accurately grasp Parliament’s intent (as regard s. 2 (1) Human Rights Act 1998), and their establishment, and ultimate incorporation of of the ‘Ullah principle’ they as Lord Irvine suggested:

“elide[d] two distinct concepts. The UK Courts have no power to bind any other CoE member state, and the Strasbourg Court is of course not bound by their decisions. The domestic Courts do not interpret the content of the ECHR as an international Treaty; they interpret the Convention rights under domestic law.”

As Homer nodded so ‘uncertainty’ crept in from the cold; at best the nation faced neurotic ‘ambiguity’, at worst a schizophrenogenic/‘double-binding’ parent in the form of David Cameron. None of this helped by the complexity of the European institutions, and an executive that barely seemed to know its Strasbourg from its Luxembourg. But there you have it, and here we are.

If we have learned nothing, other than how poor Horace might have felt at times, when even the great Homer could no longer conceal his corporeal frailty; something of the fear and indignation (‘indignor’) we feel when confronted with ‘uncertainty’ from those we have appointed to be our keepers, then perhaps we have still learned something. But we can ask no more of our judiciary, than that they be human, even when they are as eminent and statesman-like, as the late great Lord Bingham, about whom Lord Irvine was originally referring. Unfortunately, to complete Lady Hale’s literary device, the net result is that ‘uncertainty’ as to quite what Argentoratum just said, or meant by what it just said, is rapidly being replaced by a very cold and certain clarity as to exactly what London has in mind; and that may well be iudicium finitum.

References:

i. indignor quandoque bonus dormitat Homerus

ii. https://www.rt.com/uk/372125-may-election-human-rights/

iii. Doris Brothers – Toward a Psychology of Uncertainty: Trauma-Centered Psychoanalysis

iv. nature abhors a vacuum

v. Miller/Santos v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) & McCord, Re Judicial Review [2016] NIQB 85 (28 October 2016) being just two examples

vi. Lord Irvine of Lairg – A British Interpretation of Convention Rights UCL Judicial Institute/The Bingham Centre for the Rule of Law

vii. R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 EM (Lebanon) v Secretary of State for the Home Department [2009] 1 AC 1198 R (G) (Adoption) [2009] 1 AC 173

viii. R (Alconbury) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295

ix. R (Ullah) v Special Adjudicator  [2004] 2 AC 323

x. R (Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153

xi. AF v Secretary of State for the Home Department [2009] 3 WLR 74

xii. Ambrose v Harris (Procurator Fiscal)[2011] 1 WLR 2435

xiii. in particular the dialogue that took place concerning hearsay

xiv. Application no 3455/05

xv. see cases such as R v Secretary of State for the Home Department ex parte Brind [1991] & Derbyshire CC v Times [1993] where pre-HRA 1998 the court drew on Convention rights as a source of legal wisdom…

xvi. Bulmer v Bollinger [1974] Ch. 401

xvii. R v Horncastle [2009] UKHL 14; [2010] 2 AC 373

xviii. Al-Khawaja and Another v United Kingdom 49 EHRR 1

xix. Lord Irvine suggests: “Many of our Judges have all too easily slipped into the mind-set that the domestic Courts, even the Supreme Court, are effectively subordinate (in a vertical relationship) to the ECHR.”

xx. Aileen Kavanagh – Constitutional Review Under the UK Human Rights Act (Law in Context)

xxi. http://www.echr.coe.int/Documents/FS_Prisoners_vote_ENG.pdf

xxii. http://www.telegraph.co.uk/news/uknews/law-and-order/11911057/David-Cameron-I-will-ignore-Europes-top-court-on-prisoner-voting.html

David Howarth: On Parliamentary Silence

xxiv. https://www.sonoma.edu/users/d/daniels/laingsummary.html

xxv. Lord Bingham having sadly passed September 11 2010

xxvi. http://www.vanityfair.com/news/2017/01/hard-brexit-theresa-may

 

 

whose fault is it anyway…

3Richelieuhttp://www.honourandthesword.com

“If you give me six lines written by the hand of the most honest of man, I will find something in them which will hang him”.

So said Cardinal Richelieu (Louis XIII’s Chief Minister”) and it goes a long way to explain why the objective/subjective fault argument is a protracted one; unlike in a civil court where perhaps at worst we might be dealing with an injunction or some financial recompense, in criminal cases we are dealing with a man’s liberty or ultimately (in some jurisdictions) a man’s life. Consequently it should not be that surprising, that what exactly constitutes fault and from what perspective that should be considered has been subject to the greatest degree of scrutiny within the legal profession.

Originating from Latin; subjectivus and objectivus respectively… the former has come to be synonymous with a personal essentially internal view of a set of actions/circumstances while the latter with an impartial, external consideration of the same situation; but quantum physics (in particular Einstein’s notion that it is the “theory that decides what one can observe”) has taught us that such divisions are perhaps less black and white than we might imagine

Let’s try to see how these two ways of assessing criminal fault may or may not be reconciled and which if either should we be favouring in the name of justice.

It might be said that “desert in punishment” lies at the very core of criminal law and indeed penology, explored in Punishment and Responsibility (HLA Hart 1968) it works outwards (or indeed inwards) from the premise that the more serious the punishment the more subjective the mental attitude/state (or mens rea) should be in order (in a somewhat tautological manner) to justify said punishment; we should have as Hart tells us a “fair opportunity” to exercise our “mental and physical capabilities” to avoid transgressing the law and by so doing avoid punishment. Only by this being so can society apportion blame, hold the wrongdoer responsible for his/her acts and they be punished accordingly.

Consequently for an act such as murder; it may not be surprising to find that the requisite mens rea has a highly subjective criterion (based on intention) central to its common law definition; whilst at the other end of the spectrum we find crimes (often driving related such as careless/dangerous driving) that are assessed using essentially objective criteria. Now this may all be very well and good if there were no (or minimal consequences) to such a degree of criminalisation (and this is largely the rationale behind strict liability crimes which are usually considered “regulatory” rather than “criminal”). But what if I am a doctor found guilty of gross negligence manslaughter (see Adomako [1994]) where the consequences involve a loss of livelihood and potential imprisonment; is it right and proper that my internal view as to the wrongness of my action, (whether or not I chose to act wrongly(or otherwise)) plays no part. Similarly was it fair that Riding (McCrone v Riding 1938) as a novice driver was held to the same standards as a more experienced driver?

If we consider intention, recklessness and carelessness/negligence as three mens rea shades of grey (as we move across the fault spectrum from highly subjective to highly objective) we could do well to visit briefly each in turn but also retaining an awareness that alongside mens rea the subjective-objective dialectic plays a great part in the assessment of the validity of the vast majority of the available partial and full defences in criminal law.

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https://greenwalledtower.wordpress.com

Running through the complex case law regarding intention (and these have generally been as explained previously homicide cases) we immediately see a tension as the law lords have attempted to tease apart cases such as Hyam (v DPP (1975)) and Nedrick (1986) from more obvious “smoking gun” (direct intention) murder cases; anxious not to confuse motivation with intention and amidst a sea of misdirections the final distillation in the form of (when deemed necessary) the Woollin (1998) direction does partly resolve this dilemma by returning the conundrum in the form of admissible evidence for the jury’s ultimate consideration in its terms of “virtual certainty” and “appreciation” but we are in many ways no nearer resolving the subjective/objective conundrum.

Perhaps greater clarity emerges from the 2006 Law Commission Murder, Manslaughter, Infanticide’s suggestion that a “person is taken to intend a result if he or she acts in order to bring it about” (a return to the common law interpretive notion that words should be given their everyday meaning) and greater yet from Duff’s highly subjective notion that direct intention refers to a state of mind that would result in a sense of failure if certain “intended” consequences did not result. As regards oblique intention the Law Commission’s position is very similar to the wording found in Woollin the net result being that cases such as Matthews and Alleyne (2003) are still decided on the jury’s (mixed objective and subjective) inference of culpability (given regard to all the evidence).

If none of the above is terribly clarifying the law surrounding recklessness is perhaps no more edifying; though as Wilson points out it should be so, with recklessness a subjective fault element requiring “thought” and/or “awareness” and as such easily distinguished from negligence which does not. The case history (and this is only compounded if one considers Scottish law) is complex and contradictory so much so that it prompted Joshua Barton to write a 2011 paper attempting to ascertain what was the predominant modality (subjective v objective) in Scottish law; a question of vital significance (as he points out) with recklessness forming the mens rea of a whole host of offences.

To briefly recap it is standard to start with Cunningham (1957) which in fact (and this is as we shall see later underpins some if not much of the problem in this area) centred on a dissection of the term “malice” and ended up by invoking Professor Kenny’s definition which included (alongside classic intention) an essentially subjective definition of recklessness with an emphasis on “conscious foresight” (Stephenson (1979)). A brief and confusing period followed Lord Diplock’s ratio in Caldwell (1982) which invoked objectivity (so long as the “risk was obvious” but was both confused by D’s voluntary intoxication and subsequent decisions such as Spratt (1991) in which these criteria were not applied to assault/malicious wounding cases) for this only to be finally overruled in 2003 in the criminal damage/arson case concerning two minors R and G.

If we take it as a given that “all examples of recklessness” are automatically “examples of negligence” but not necessarily vica versa; where does that leave us with cases such as Daryl Parker’s smashed telephone booth (R v Parker [1977]) of “closed mind recklessness” in which essentially the subjective fault element is imputed given the obviousness of the outcome in relation to the actions/circumstances etc.

Negligence, with its focus on conduct is potentially wider yet, yet despite its pure objective aspirations it is a far from a binary criteria with a variety of subtle gradations from plain old butter finger carelessness to actions of such a preposterously low standard that only serious criminal consequences seem to fit the bill.

It is perhaps (at the margins of these various categories) that we are able to gain some access to to begin to assess the relative justness/unjustness of these two (not necessarily opposing) models of apportioning blame.

Barton makes the very valid point that in the vast majority of cases the answer to this question will not make a very great difference but it is in these borderline decisions that clarity of thought seems of the utmost importance.

 

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For sake of brevity I want to focus on just three areas I consider important:

  • just how objective can any decision be (and in corollary the same can be said to apply to subjective decisions)
  • the unique beast that is UK common law
  • how might this situation be improved; is a greater degree of codification the answer?

Firstly I think it is a fundamental truth that is underpinned by many disciplines (scientific, philosophical and psychoanalytical) that there is no such thing as a pure decision/assessment of a situation etc. All seemingly objective decisions ultimately include subjective factors and vica versa and as the law tries to resolve the inevitable tension between two of its most fundamental tenets (Sankey’s “presumption of innocence” and there being “no excuse for ignorance of the law”) it seems inevitable that victims and perpetrators alike will attempt to draw on both sides of this “consideration spectrum” to maximise their personal sense of justice, just as society will continue (one can only imagine) to demand its pound of flesh in instances in which it considers itself wronged/ violated. (Rape and the changes evinced by the Sexual Offences Act 2003 is a perfect example of the struggle to fine tune legislation and an attempt to make sense of the subjective/objective continuum).

Secondly UK common law is highly based on very evolved definitions (of for example intention/recklessness/negligence etc.) alongside very precise drafting of statutes etc. (as opposed to European civil tradition with its emphasis on generalised statements of principles). This undoubtedly has its advantages but one of its disadvantages is that occasionally it can produce rogue decisions and the excessive (some might say) attention to detail can at times obfuscate the obvious.

A simple example might be the notion of gross negligence manslaughter; for all its objective aspirations it is coined in what is highly subjective (responsibility invoking) language and in its need to transmit its sense of outrage and disapprobation often misses a lot of the details (Adomako had been trained in Russia and was considered by the judge to be woefully under-supervised etc.).

Some kind of justice is served, blame is undoubtedly apportioned but some vital ingredient that I think is at the core of justice is omitted; (it may even be in this day and age that Adomako’s counsel would invoke Article 6 of the HRA 1998 and suggest that denying his subjective position as regards the case was a denial of his right to a fair trial etc.).

It is widely acknowledged that the criminal legislation is woefully anachronistic (Draft Criminal Code 1989) and I think it is without doubt that a thorough review of many core charges would be welcome; but alongside such a process (which is not the focus of this essay) I think that justice would be better served by the understanding that the subjective- objective continuum in fact exists as a dialectic rather than a dichotomy. This doesn’t mean that for all strict liability charges the defendant would have the right to submit a 3,000 word statement as to just why he/she had parked their car on the double yellow line but it does mean that (rather along the lines of the Woollin direction) the jury are entrusted with as much evidence (both subjective and objective) as is practically possible and in that light their decision is made.

If the prime aim of justice is to be fair and as such to reduce to an absolute minimum any miscarriages of justice I can see no other practical alternative; this process (which could be seen as further allying the UK legal decision making process to that of European civil law principle driven practice) needs to be accompanied by a closer examination of just what (objective) standards we are asking of our citizens and an assurance that (in terms of precedence) we really are comparing like with like (for example much mention of R v Seymour [1983] was made in Adomako [2014]; at one level it is arguable how much these two cases actually have in common).

Law just like life is not a static phenomenon (see Lord Scarman in McLoughlin v O’Brien [1983] 1 AC 410) and neither should it be; sometimes the twain can meet.

behind closed doors…

 

Oscar Pistorius murder trial

 

Our right to privacy is fundamental indeed constitutional (enshrined by Article 8 of the European Convention on Human Rights); and this is no less true of South Africa where it is clearly stated in Section 14 of the Bill of Rights (Chapter 2 of the Constitution of South Africa):

14 Everyone has the right to privacy, which includes the right not to have:
a. their person or home searched;
b. their property searched;
c. their possessions seized; or
d. the privacy of their communications infringed.

But few believe that this right is or should be utterly inviolate.

Owen Fiss in his 1996 masterpiece “The Irony of Free Speech” has gone so far as to suggest that even such a fundamental notion as free speech has very different meanings according to one’s socio-economic background; that such discrepancies should enter a courtroom seems to violate something very fundamental in our collective psyche.

Enter the world of the “superstar” trial & bear witness to the almost global indeed universal disapproval of Judge Thokozile Masipa’s verdict in the Oscar Pistorius trial (see http://www.theguardian.com/world/2014/sep/15/south-africa-disappointed-pistorius-verdict) and I can only imagine the interest that (in four days time) her sentencing of Pistorius will engender.

It goes to the very root of the Rule of Law and justice itself; but lest I need remind it is not the first time that it has been suggested that the rich and famous can buy their way out of trouble but few cases have garnered such public interest with perhaps the sole exceptions of People of the State of California vs. Orenthal James Simpson (which lasted nearly a year running from the jury being sworn in on November 2 1994 to the final not guilty verdict of October 3 1995).

Pistorius undoubtedly (to use a term from the recent Rebekah Brooks trial) had a Rolls Royce defence team and such cases always raise the question of equality of arms (see Hannibal Lecter QC (http://www.markpummell.com/uncategorized/hannibal-lecter-qc/)); the police procedure was clearly substandard, which undoubtedly hampered the prosecution, but fundamentally the buck stopped with Masipa.

No one was asking the world of her but I think the world was asking something of her and I think in this she failed. Most if not all legal commentators were accepting of the fact that the verdict would not be “first degree” murder but I think we were all entitled to expect a degree of logic above the statement that:

“Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door – let alone the deceased as he thought she was in the bedroom at the time…” Masipa said. “To find otherwise” (in reference to his rapidly afforded excuse that he mistook Steenkamp for a burglar) “would be tantamount to saying that the accused’s reaction after he realised that he had shot the deceased was faked, that he was play acting, merely to delude the onlookers at the time.”

article-2282675-182CE6FB000005DC-703_634x479

Let’s be clear about this; this was four shots from a 9mm pistol… a pistol that was loaded with Black Talon hollow point “zombie -stoppers” (Pistorius’s own description)… how could you possibly (in the circumstances described) not “subjectively foresee the possibility” of killing someone; and it is crucial to understand that for a “second degree”/”common law”murder conviction the person behind the bathroom door could just as well have been an intruder (as Pistorius allegedly believed) rather than in fact as it turned out to be Reeva Steenkamp. So even if we give Pistorius the benefit of the doubt, this is a highly flawed judgement. It is doubly so in a judgement that did little to conceal that Masipa (and one presumes her two independent assessors too) thought little of Pistorius as a witness.

Leaving lengthy legal analysis of “dolus eventualis” aside (on this matter see Ulrich Roux’s excellent piece in the Guardian 12th September 2014) to quote the words of Martin Hood, Johannesburg based criminal lawyer:

“She hasn’t got it right”.

article-2282675-182BF39A000005DC-496_306x423He went on to say:

“The consensus among the legal community was that he is guilty of murder. This could really open the door to systematic abuse of our legal system by people who shoot their partners and claim self-defence. If someone can shoot in an irresponsible manner, and even in a negligent manner and not be held accountable to the fullest extent of the law, then it means that we are not able to use the law as a tool to address violent crime in this country.”

September 12th 2014 was a sad day for women, a sad day for South Africa but ultimately a sad day for justice. Let’s hope that come Monday 13th October 2014 she uses her discretionary sentencing powers to better effect.

 

References:

http://www.gov.za/documents/constitution/1996/a108-96.pdf

Owen Fiss; The Irony of Free Speech Harvard University Press 1996 ISBN 0674466608

Tom Bingham; Rule of Law Penguin Books 2010 ISBN 9780141962106

http://www.theguardian.com/world/2014/sep/12/pistorius-verdict-questioned-as-state-prepares-appeal

 

“times they are a changin’…”

bob dylan

Come gather ’round people
Wherever you roam
And admit that the waters
Around you have grown
And accept it that soon
You’ll be drenched to the bone
If your time to you
Is worth savin’
Then you better start swimmin’
Or you’ll sink like a stone
For the times they are a-changin’.

If May 2014 has started as it means to go on it should prove to be quite some month; with two news stories catching my eye… 1st May 2014 marked an historic day with the first Radio 5 Live broadcast (& a fascinating interview with Lord Neuberger (current President of the Supreme Court)) from courts one and two of the UK Supreme Court. The interview is surprisingly candid for someone that apologised on at least more than one occasion for being “cagey” and touches on a variety of very current topics including Legal Aid, the “tension” (my choice of words) between the UK & the European courts and the current somewhat “embarrassing” (Victoria Derbyshire’s choice of words) socio-sexual admixture of the current Supreme Court (there being only one lady (in the form of Lady Hale) & no non-caucasians amongst the “Justices” of the Supreme Court).

Meanwhile only a day later Alexander Cameron QC (David’s elder brother; himself heading 3 Raymond Buildings (currently representing Rebekah Brooks)) made history by playing a seminal role in the “halting” of a huge Southwark Crown Court fraud trial primarily as a result of punishing cutbacks in Legal Aid (the net result being no defence barristers were willing to take on this immensely complex (46,000 pages of written evidence) case; the judge Anthony Leonard QC stating:

“I have taken into account that it is common ground between the parties that where the defendant is not at fault, in a case of this complexity the defendants could not receive a fair trial without advocates to represent them.”

With 7 similar cases in the pipeline (due to be heard before September 2015) the implications are very far reaching.

The Supreme Court first agreed to television coverage in July 2009; with Sky News Live (http://news.sky.com/info/supreme-court) beginning their broadcasts in May 2011. To listen to Victoria Derbyshire’s interview simply go to: http://www.bbc.co.uk/5live &/or for a more edited version download as a podcast at the iTunes store.

Law, Like Love

Auden8

“The first thing we do, let’s kill all the lawyers” 

Henry VI Part II

Most lawyers if asked for a quote from Wystan Hugh (usually shortened to WH) Auden’s body of work might run to “Law is The Law” but in fact the title of his 1939 poem is more correctly “Law, Like Love” and indeed perhaps no finer place to start one’s legal studies than with an acknowledgement or perhaps better put a realisation that in fact there exists far greater parallels between the “grey hospitals of human corruption” (as Piero Calamandrei described the courtrooms in his “A Eulogy of Judges”) & the beating of our hapless lovestruck hearts than one might initially imagine; & in this blog it seems likely that i will attempt to walk that most uncomfortable of ground between certainty (if such a thing exists) and the fumblings that only a fledgling lawyer (perhaps like a teenage suitor) can be allowed to indulge in and for that (indulgence) i shall remain eternally grateful.

I intend to explore cases, current legal topics and unfolding exam terror (as i fast approach the initial papers of my LLB) and at times may seem asinine (as i develop a series of mnemonics to help with case name remembrance) but i yet hope at times challenging as i attempt (in an initially most rudimentary of styles) to highlight and hopefully to a degree illuminate some current areas of dissonance and tension in the (predominantly) UK lego-political landscape as i work my way through the current LLB (International Programme) syllabus.

Writing legalese; & hopefully more importantly going beyond that legalese to discuss these matters clearly yet eruditely is no small challenge & hence the choice of a blog that will literally give me a (near) daily chance to hone these skills; rather like public speaking, these are skills that i can see need a great deal of practice and if the first day i attempt this is some sweaty London afternoon in or around May/June 2015 (when i first sit my Year 1 papers) i figure i may well live to regret that decision.

But for now as the sun rises in Shanghai & breakfast call i will leave the closing words to Mr. Auden himself:

Like love we don’t know where or why,
Like love we can’t compel or fly,
Like love we often weep,
Like love we seldom keep.

WH Auden: Law, Like Love

source/s: Piero Calamandrei “A Eulogy of Judges” (Princeton University Press 1942, repr. 1992), chap. XII, p. 95