Long time no blog! Things seem to have been very busy of late, but now we’ve got the New Year exam season out of the way, perhaps it’s time for a little reflection. In discussing the issues with a fellow law teaching friend, we identified a few surprisingly common errors that always seem to come up. Let’s focus on Criminal law to begin with:
Beware of blindly assuming that the lecturer is always right. If you think something may be wrong, then question it. We are human, we do get it wrong sometimes…after all, nobody’s perfect (except perhaps John Eales, if you happen to be a Wallaby fan!) The same can even be true of textbooks. I’ll never forget the text I happened upon which included an admirable diagram of the criminal court system with a flow chart indicating different possible outcomes. One of these outcomes was ‘jury acquits – criminal goes free’, a sentiment that could be argued to be a teeny bit at odds with the fundamental principle of ‘innocent until proven guilty’. However, most respected legal texts should be reliable and it’s fair to say that the likes of Smith and Hogan are unlikely to make that sort of mistake! (However, do remember that old legal textbooks can be hazardous as the law is prone to change.)
So, on to the substantive offences. I was going to begin here by dividing this list into fatal offences and non-fatal offences…but here’s the first issue. If there is a death then you are dealing with a fatal offence – i.e. murder or manslaughter. Just because death occurred as a result of a knife wound does not mean that you should charge the offence as wounding under s18 or 20 OAPA 1861.
Having established that…on to the non-fatals:
Make sure that you can differentiate between, and identify, a wound and GBH. You do not need a wound for an injury to be classed as GBH. However, as my friend put it, ‘if there is lots of blood from a knife attack, how about calling it a wound?’
Make sure that you can define ABH as well and please, please, don’t start quoting the charging standards in a law paper. Charging standards are not the law and attempting to apply them instead of the law is a really good way of irritating the examiner!
Make sure that you know the different levels of mens rea for the various non-fatal offences against the person. An amazing number of candidates manage to get this wrong, so make the examiner happy and get them right!
…and so on to the fatal offences…
With any criminal offence, you need to make sure that you refer to all of the elements of the actus reus and mens rea and confirm that they can be established. However, be judicious in deciding what merits half a page’s explanation and what doesn’t. As my friend noted, ‘if there is a dead male body in a bar it’s probably unnecessary to distinguish it from a foetus.’ Similarly, an extended explanation of ‘the Queen’s Peace’ is generally fairly irrelevant.
A key fact about diminished responsibility and loss of control is that they are only available for murder, and not to be used liberally for non-fatal offences. Note that loss of control replaces the old partial defence of provocation.
Try to discuss turning off of life support as a decided point on causation rather than raising the possibility of suing the doctors in negligence. This, as my friend notes, is particularly advisable on a criminal law paper…
How many times have I said it? Always answer the question, don’t use it as an excuse to discuss the question you would prefer to answer! As my friend observed, ‘using an evaluation question on murder/manslaughter as an harangue on bringing back the death penalty is probably not a good way to go’.
And finally, Law Commission reports are not the law. They may have recommended a system of first and second degree murder, but this is not the law in the UK at present. The Law Commission’s proposals are well worth discussion in a suitable essay question, but please don’t attempt to apply first and second degree murder in a problem question. At best this suggests that you don’t know the current state of the law and, at worst, it looks as though you have been watching too many American cop shows!