If you want to write a great essay, you must have an introduction.  It sounds simple enough, but students struggle with the concept of stating their conclusion in their introduction.

When my lecturer suggested I write a “formal” introduction and conclusion, I thought he was nuts. It seemed like an utter waste of time and precious word-count.

Despite my better judgment, I tried it. My arguments became stronger and my marks improved.

As it’s sometimes easier to show rather than tell how it’s done, I give you the UC Davis Law Journal article, “Digitus Impudicus: The Middle Finger and the Law“.

Professor Robbins has a structured and comprehensive approach which is worth emulating – you’ll see that he sets up his argument, and then spends the rest of his essay supporting that argument.

The article might not be as interesting to read if Prof Robbins had merely started with the history of bird flipping, gone around the houses and then concluded with an, “oh, and by the way, it is/should be illegal to arrest someone for flipping the bird, The End”. Unfortunately, this is what most students do – and it just doesn’t leave the reader convinced the essayist knows what he’s doing or talking about.

Nobody is a natural born essay-writer. Good essay-writers learn from reading great essays – and  set out their conclusions from the start.

I like to deal with common misunderstandings on Day One of Public law, and, being a bit of a pedant, I like to clarify that the UK is a constitutional monarchy and the US is not a “democracy”: It’s a constitutional republic. Democracies, as far as I’m concerned, are mob rule.

The United States’ Declaration of Independence roots that nation in natural law and Enlightenment principles with its Declaration that, “all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”.

That Thomas Jefferson was able both to own slaves and to think it self-evident that all men are endowed with certain inalienable rights may be a topic for another post. The point is, nowhere in the Declaration or the Constitution does it say, “except for gay people”.  So California, for example, can hold as many referendums to deny marriage to gay people as they like, but the fact remains that the majority of citizens cannot vote away minority citizens’ rights. Well, ok, they can – but it’s unconstitutional.

I am very interested to see Ted Olson (a conservative) and David Boies (a liberal) join forces in taking the matter to court. As they explain, it’s not about being a conservative or a liberal – it’s about upholding the Rule of Law and the freedoms guaranteed by the Constitution. The video below explains. (Be sure to follow the prompts to the remaining four parts – they’re definitely worth it.)

Breaking news from Al Jazeera: Saudi Arabia could soon allow women lawyers to appear in court to argue cases for the first time.

I was excited – and then slightly underwhelmed to read, as the article goes on to note: “The female lawyers would be able to represent women in marriage, divorce, custody and other family cases”.

Ok, yay for cracking the door open – but this reminds me of women’s role in early policing in this country.  Women police officers in the UK were originally hired (early 1900s) to provide specialist protection for women and children. They were used to interview female suspects and victims, rescue children, and to patrol and supervise “doubtful public venues”.

As Frances Heidensohn observed in her book, “Women in Control?”:

“Police work for women was still defined, and was to remain until well after the Second World War, as a specialist field, mainly confined to moral and sexual matters and inevitably making female officers complicit in the control of their own sex in ways in which men’s behaviour was not controlled”.

In her 2009 HuffPo article, Sabria Jawhar saw the possibility of women appearing in Saudi courts in family cases as nothing more than, “window dressing”.

Sabria explained, “Don’t misunderstand me. I applaud the Ministry of Justice’s attempts to revamp the judicial system. But let’s not fool ourselves that we are seeing great advances in Saudi women’s rights”

Precisely.  I’ll be impressed when a Saudi woman lawyer appears on behalf of a man.

Now, before anyone gets too smug, the battle for equality’s still being fought in the UK.

If I had to do it all over again, I’d definitely get involved with pro bono work during my LL.B., rather than waiting to after qualification.  There’s is no better way to learn client care and how to apply the law to real life situations. Pro Bono’s a great way to make a positive contribution to someone else’s life – and It can also set you apart from the pack and help bolster training contract and pupillage applications.

Law students in London have the opportunity to get involved with awe inspiring and popular organisations like Amicus and the Free Representation Unit . These guys require potential volunteers complete their in-house training before they turn them loose on the public. It will therefore take time to get up and running and, even once you get signed-off, you will be competing with other volunteers for work.

Law Centres are a bit more rough and ready and most can use as many hands on deck as possible.  Students typically shadow experienced lawyers / advice workers and learn by seeing how it’s done.  I volunteer at a law centre and the variety of work definitely takes me out of my comfort zone.  In the last couple of weeks, I’ve dealt with Criminal, Housing, Family, Commercial Landlord & Tenant and Employment matters. If you don’t know the answer off the top of your head, you’re compelled to learn it fast and present it in a way that’s accessible to lay people.  There’s no better way of learning how to “think like a lawyer” than doing the business on the pitch – and shadowing students can step up to giving advice themselves fairly quickly. The straight-forward, structured and comprehensive, yet focused, approach you learn giving advice is the same approach that guarantees exam success.

While not wanting to start a stampede – if I had to do it all over again as a London law student, I’d be making an application to the Toynbee Hall as a Subsidised Residential Volunteer. What a legacy.

The best revision advice I’d ever received came, not from a law tutor, but from a recent graduate of the Metropolitan Police’s training school in Hendon. It’s the, “One day, one week, one month” approach to memory and study.

Here’s how it works -  if you learn about Mrs Carlill, her smoke-ball and unilateral contracts today, it’s crucial that you review your notes, listen to an on-topic podcast, talk about it, etc the next day.

Review the topic again in a week and then one month – and on a monthly basis thereafter.

Otherwise, as time passes, you forget what you’ve read in your text or heard in your lecture – and rather than revising the topic, you end up being in a constant state of re-learning.

Trust me, it’s no fun trying to re-learn a year’s worth of course material a week or two before the exam.

Remember too there are several “pathways to learning” – which is educationalist speak for that fact that humans learn by seeing, reading, listening, speaking and doing. So it’s not about memorising your notes. In fact, mixing it up a bit will help you recognise and think about a particular issue from a variety of angles.

If you have listened to a lecture, read, made notes and talked about it to fellow students – and kept the topic fresh by one day, one week, one month, there is a much higher chance you will be able to remember the law and apply it properly on exam day.

The same applies with writing essays or preparing for advocacy. If I read an article or brief and don’t look at it again for a week, chances are, I’ve forgotten quite a bit of what I’ve read before and end up starting from scratch.

I didn’t used to have a very good track record dealing with multi-guess questions – and I was nervous that I’d have real trouble passing Civil and Criminal litigation at Bar school.

My copper friend was getting outstanding results in Hendon’s multi-guess exams and explained the method. I knew my way probably wouldn’t work  so well, so I gave it a shot and made a list of all topics I’d need to learn.

I watched and listened to a DVD lecture on a topic one day, read notes the next, did on-topic practice multi-guess questions within a week and reviewed within a month.

When I went to find my multiple choice exam results on the wall, I was amazed to see that not only had I passed – I had done much better than I’d ever dared to hope.

You don’t have to be brilliant to get a law degree – but you do have to find a way to master a volume of complex and sometimes counter-intuitive information. I swear by one day, one week, one month and recommend the method to you.

It’s hard not to feel sorry for Munir Hussain (left) and his brother Tokeer.

But put your emotions to one side and see if you can find Munir and Tokeer a defence in law.

“Mr Hussain’s nightmare began on September 3 last year when he, his wife, 18-year-old daughter and two sons aged 18 and 15 returned from their mosque during Ramadan to find three intruders in their home in High Wycombe, Buckinghamshire.

They were tied up and told to get on the floor if they did not want to be killed. One of Mr Hussain’s sons managed to escape and alerted Mr Hussain’s younger brother Tokeer, 35, who lived a few doors away.

Mr Hussain made a break for freedom by throwing a coffee table at his attackers. He and Tokeer chased the gang and brought Salem to the ground in a front garden.

Reading Crown Court heard how Mr Hussain and his brother then beat Salem while he lay on the ground, using a cricket bat, a pole and a hockey stick – leaving him with a fractured skull and brain damage following the ’sustained’ attack.

Salem’s condition meant he was unable to enter a plea to false imprisonment. He was given a non-custodial sentence-in October.

Salem, of Borehamwood, Hertfordshire, did not give evidence at Mr Hussain’s trial. Michael Wolkind, QC, representing Mr Hussain, who runs a soundproofing company, said his client’s actions were ‘taken in the agony of the moment’ and that his ‘calm judgment was not available’.

Judge Reddihough sentenced Munir Hussain to 30 months in jail for grievous bodily harm with intent. Tokeer was given 39 months because the judge said he had not faced as much provocation as his brother.

The judge added: ‘The prosecution rightly made it plain that there was no allegation against you, Munir Hussain, in respect of the force you used against Salem in defending your own home and family or of the force used by either of you in apprehending Salem.

‘However, the attack which then occurred was totally unnecessary and amounted to a very violent revenge attack on a defenceless man.

‘It may be that some members of the public or media commentators will assert that Salem deserved what happened to him, and that you should not have been prosecuted and need not be punished.

‘The courts must make it clear that such conduct is criminal and unacceptable.’ [Source]

In my previous post, “Top Marks for Problem Question Answers“, I set out how to approach answering this type of question. In an exam, you might, for example, be asked to consider the criminal liability of Salem, Munir and Tokeer.

Firstly, you’ve got to deal with the offence before you think about any possible defence.

If you were dealing with Munir’s criminal liability, the main issue to consider would be whether his hitting Salem over the head with a cricket bat causing brain damage amounted to s 18 OAPA (Grievous Bodily Harm with intent).

S18 states: “Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, or with intent to to resist or prevent the lawful detainer of any person, shall be guilty of a felony…”

The actus reus for s18 is satisfied as S’s brain damage has occurred as a direct result of M hitting him over the head with a cricket bat.

The mens rea of s18 (specific intent) is also satisfied as M hit S over the head with a cricket bat repeatedly and with such force that he caused his skull to be fractured (i.e. intent can be inferred as per Nedrick where the serious harm is “virtually certain”).

As the A/R and M/R or s18 have been satisfied, M is guilty of GBH with intent.

The key to this case is, having been tied up by S and others, whether there is any defence in law available to M?

First consider whether there are any General Defences available. The General Defences include: Automatism, Intoxication (voluntary or involuntary depending on whether the offence is a specific or basic intent crime), Insanity, Mistake, Duress and Defence of Self, Others or Property.

Insanity is defined by the M’Naughten Rules and there is no evidence that M was “labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know what he was doing was wrong”.

M may have been extremely distressed, but there’s no evidence that he had a “disease of the mind”. (Compare this with the Diminished Responsibility “abnormality of the mind”. At the time of the attack, M probably did have an abnormality of the mind, but the Special Defence of Diminished Responsibility is only available under the Homicide Act – and S is alive! Note also that Provocation is not a General Defence; it is a Special Defence, also under the Homicide Act.)

Further, Defence of Self, Others or Property is not available to M.

S3(1) of the Criminal Law Act 1967 states, “A person may use such force as reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large”.

There is no “prevention” or self-defence in this case as S was running away. M’s self-defence/prevention of crime moment had passed and his chasing S down the road and beating him up hitting was revenge. Therefore, this defence is not available to him.

Many people in the UK were outraged that M, the victim of a serious crime, received a 30 month prison sentence for GBH on S.

Today, Munir was released from prison by the Court of Appeal and on grounds of mercy, his jail term was reduced to 12 months suspended for two years. [Source]

Do you agree with the Tories that the law of self-defence needs to be changed – or do you think the law is adequate as it stands? Did the Court of Appeal deal with Munir justly and fairly?

NB
A copy of the trial judge’s remarks on sentencing here.

Ahhh, the memories.  Blasphemy used to be a English law exam and essay topic favourite.  It had everything.

Blasphemy was especially fun to research and write about as you could chart English legal history from canon to common law, all the way down and through to Mary Whitehouse’s private prosecution of Denis Lemon for his publication in Gay Times of the poem, “The Love that Dares to Speak its Name” in 1977.

Blasphemy remained a LL.B exam favourite, even in the 90s, and essayists went on to consider whether a law protecting Christian beliefs, as held by the Church of England, should be extended to “protect” all faiths -  or whether it had any role at all  in a post-modern, multi-faith society.

Some argued that the extension of a law against blasphemy covering all faiths would send a signal to all that their religious traditions were valued by society.

Others wondered how blasphemy experts, judges and juries would be selected. Why should religious hurt feelings and insult be treated any differently than any other insult or “hurt” feeling? What is the legitimate Government aim of shutting down religious debate or comment in a free society?

The English law against blasphemy was finally abolished in the Criminal Justice and Immigration Act, 2008. (Although that was a trade off for amendment of the Public Order Act to include, “Incitement to Religious Hatred” in 2007″.)

It is therefore somewhat surprising, to me at any rate, that blasphemy’s been resurrected in Ireland to cover all faiths.

Michael Nugent, Chair of the “Atheist Ireland” said the following:

“We believe in the golden rule: that we have a right to be treated justly, and that we have a responsibility to treat other people justly. Blasphemy laws are unjust: they silence people in order to protect ideas. In a civilised society, people have a right to express and to hear ideas about religion even if other people find those ideas to be outrageous.”

While better legal minds than mine held in Wingrove v UK that blasphemy laws are compatible with Article 10 Freedom of Expression rights contained in the European Convention on Human Rights, I just don’t see where in the ECHR we are given a “right not to be offended”? Why haven’t Ireland, if they felt the pressing  need to address “intemperate” religious speech, simply made it a public order offence rather than a matter of blasphemy?

Did Ireland take the easy way out by making blasphemy an “equal opportunity” law rather than amending its Constitution and abolishing it altogether?

I look forward to a case backed by Atheist Ireland making its way to Strasbourg in due course.

As an Anglo-American lecturer in English Criminal and Public (constitutional and administrative) law, I am bemused by the myriad of approaches to US Constitutional interpretation.

So here’s a question: Is Miranda v Arizona “unconstitutional”?  How do you approach the Sixth Amendment right “to have the assistance of counsel”?

The Sixth Amendment states:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence”.

People tend to fall  broadly into one of three approach camps.

On one hand, you’ve got the “Strict Constructionalists” – and like a good constructionalist, I’ll give you the Black’s Law Dictionary definition: “1. An interpretation that considers only the literal words of the writing. 2. A construction that considers words narrowly, usu[ally], in their historical context”.

On another hand, you have the “Originalists“, who prefer, again according to Black’s:  “The theory that the U.S. Constitution should be interpreted according to the intent of those who drafted and adopted it”.

The Strict Constructionalists and the Originalists use the plain meaning of the text, at the time the Constitution was written, as a starting point – and do so by consulting dictionaries published at the time of drafting as well as Blackstone’s Commentaries.

For the Constructionalist, the plan meaning of the word(s) is the beginning and end of the discussion: either the specific action is allowed or it is not – end of.  The Originalist, however,  will go on to consider the intent of the Founders and the context within which the text was written.

Of his own approach, Scalia J is reported to have said:

“The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”

Finally, you’ve got the people who believe the Constitution is a “living document” which should be read in light of contemporary norms and values.

I always thought my views were in the Scalia J camp – that is, until I read Orin Kerr’s excellent post, “Originalism and the Sixth Amendment Right to have the Assistance of Counsel”

Kerr observes:

Here’s my question for readers who take this view: How do you interpret the Sixth Amendment right “to have the Assistance of Counsel” in criminal prosecutions? The right to Assistance of Counsel was a response to the traditional English common law practice of forbidding defense lawyers in criminal trials. Defense attorneys were banned for fear they would focus the jury on technicalities, not guilt or innocence. The core concept of a criminal trial at common law was that the defendant would be forced to testify without preparation or counsel, and that the jury would be able to distinguish a lying defendant from a truthful one directly without a lawyer getting in the way.

“By the time of the framing, the English practice had been changed and criminal defendants were allowed to bring an attorney if they had hired one. The Sixth Amendment then recognized that right as the right to have the Assistance of Counsel. However, my sense is that this was originally understood to mean the same as the English right: It was a right to have a lawyer if you had one, not a constitutional right to have a lawyer provided to you free of charge (and one who had to do a constitutionally effective job). That’s my sense, at least; I am the first to admit that the history here is sparse. The history is sparse in part because federal law provided by statute that counsel should be appointed in criminal cases, at least capital ones. It is also sparse because no one really wants to go back to the old rule, so no one is invested in looking more closely at the question. But as far I can tell, the idea that the Constitution provides a right to the appointment of counsel that the defendant doesn’t have to pay for arose in the 20th century”.

The name of the man responsible for change in English criminal trial practice Mr Kerr notes above is William Garrow.

Mr Garrow made a name for himself in the Old Bailey in the 1780s. The Founders, many of whom were Middle Temple and other trained lawyers, would have been aware of the changes to English criminal trial practice allowing a defence counsel role – hence the Amendment in 1791. (Note also that the Court didn’t assign Mr Garrow his clients and there was no LSC in place to publicly fund those clients).

So, as Kerr asks, “If you are a pure originalist concerned only with getting it right, and you believe stare decisis has no role at all, how do you interpret the Sixth Amendment right to assistance of counsel? Let me break it into two questions. The first is the most interesting: If you agree that the original understanding was just a right to have a lawyer present you if you hired one, do you believe that courts should overturn the modern precedents and return to that original understanding? And second, and somewhat less interesting for my purposes: do you agree that this is the original public understanding?”

Now I’ll ask:  Where in the Constitution does it say “if you can’t afford an attorney, one will be provided at no cost”? Err, not the Sixth Amendment.

Are you unhappy with “judge-made law”?  Would you throw out Miranda v Arizona, and all the subsequent cases flowing from it,  as “unconstitutional” and go back to the days of William Garrow and the 1791 Amendment?

- or does stare decisis have a role, no matter which interpretive approach you’ve (previously) adopted?

I wonder what Uncle Antonin would have to say…

Up and down this country, law graduates on the Legal Practice Course (LPC) are waking up to the fact that they aren’t in Kansas anymore.

While the LPC does have a fairly high pass rate – LL.B students shouldn’t fool themselves into thinking the course is a piece of cake. The fact is, many people who did well on their LL.B. struggle to keep up with LPC.

Perhaps the biggest culture shock is the style of teaching. While your LL.B. professors were interested in developing your cognitive skills and critical thinking, the solicitors on the LPC are trying to teach you how to run a case.

Actually, not “a” case, but civil litigation, conveyancing and criminal litigation cases etc- all at the same time. There is no lecture you can listen to that is going to substitute rolling your sleeves up, getting into the books and working out the rules and procedure.

As LPC students are presented with a barrage of papers, my first suggestion is to ensure you’re very organised. I suggest a lever-arch file with dividers.

Welcome to bundle prep

If you still can’t see the wood for the trees, my second suggestion is to make use of the practitioner texts in your library. My favourites include the following:

Stuart Sime on Civil Procedure;

Frances Silverman on Conveyancing;

Hannibal & Mountfort on Criminal Litigation; and, of course

Weston & Montague’s Legal Practice Companion

It’s not too late to get a grip. Many will have the Christmas holiday before their first exams. Don’t use it to have a melt-down. Take a deep breath, use the time to get organised, look to the practitioner texts, ask questions and nil desperandum!

As explained in my previous post on answering problem questions, there are generally two elements to be proved in order to convict someone for the commission of a crime – the actus reas and mens rea. Criminal liability generally attaches where the Defendant has the intent to do an illegal act (mens rea) at the time he carried out the illegal act (actus reas).

Further, criminal offences are divided into categories on the basis of their mens rea (mental element):

Specific Intent crimes include murder, s18 OAPA (wounding or inflicting GBH with intent) and s21 Theft Act (blackmail) and the other dishonesty offences. In these types of cases, the Prosecution has to show “the intent to accomplish the precise criminal act that one is later charged with”. (Black’s Law Dictionary)

Most crimes fall into the Basic or General Intent/Recklessness category (such as criminal damage, manslaughter and assault) and require the Prosecution to prove, “subjective recklessness” – that is, did the Defendant foresee that the consequences of his actions were possible. The leading case is, for the purposes of criminal damage, R v G [2003] 3 WLR 1060.

There is a third category – the no intent crimes of Strict Liability where, “liability does not depend on actual negligence or intent to harm..” (Black’s Law Dictionary).

The no intent crimes of strict liability include many motoring offences (nobody cares why you were speeding, driving and texting, driving drunk etc, you just were and that’s enough), sex with children under 13 (she looked 18 to me is not a defence in law) and, as Paul Clarke discovered recently, possession of a firearm.

In the video above, Paul Clarke says he: saw a bag of rubbish, took it inside, opened it up and realised there was a gun in the bag. He waited until the next day to ring the police, telling them he had “something to give them”, but only brought the gun in to the police four days after he found it.

As you will see, the judge correctly held that Mr Clarke had no defence in law and the jury found him guilty of possessing a firearm contrary to s5 of the Firearms Act 1968.

Mr Clarke’s solicitor and many legal bloggers such as Charon QC and Jack of Kent are of the view that Mr Clarke is wrongly being punished for doing his civic duty and, in any event, possessing a firearm should not be a strict liability crime. They, like Mr Clarke’s solicitor, consider Mr Clarke’s conviction an injustice that will deter people from contacting the police.

I don’t.

Firstly, it’s tough – but ignorance of the law is no excuse.

But let’s hang on a moment. What would you do if you saw a strange bag in your garden? Would you pick it up, take it into your house and then look to see what was inside? I think I would look at it where I found it.

On discovering it was a gun, what would you do? Casually walk into the the police station with it four days after you found it?

On seeing a bag in my garden contained a gun, I think I would consider that someone might be intending to use it and immediately ring 999. I just can’t see myself touching it – and I definitely can’t see hanging on to it for four days.

Call me crazy.

So, I don’t know about you, but I’m struggling to see the “injustice” here. Not only was Paul Clarke in technical breach of the strict liability law – his story is incredible. The Crown Prosecution Service had no basis upon which to exercise the discretion they have in deciding whether to prosecute.

Had Paul Clarke rung 999 and told them he’d just found a gun “when he opened the bag in his house”, I might have some sympathy – but the fact is, he possessed the gun for four days before “doing the right thing” and his story does not have a ring of truth to it.

Further, and while gun and gang related crime blights our youth and inner cities, it is wholly legitimate for the Government to deal with firearm possession just as seriously as the other no intent crimes of strict liability.

NB (18 December 2009)
Paul Clarke was given a 12 month suspended sentence on the basis of “exceptional circumstances”. Judge Christopher Critchlow told Mr Clarke: “‘Your account seems somewhat implausible but I am not prepared to find, bearing the burden and standard of proof and that I must be sure upon such matters, that it was other than as you have maintained.”

The Daily Mail’s article on today’s sentencing hearing.