A Semester of Growth and Discipline

The skill that I have developed in the course of my studies in this semester is related to research. Research is one area that I was not very strong at before, but which I have most improved in since the beginning of this course. My lack of proficiency in this area meant that I was not able to approach organisation of my studies efficiently before. This has changed. Included in this skill are the abilities to apply methods like IRAC and also referencing skills. I can say that my research skills have improved tremendously in the past few months and I have a clearer head for research and writing than I had before. I am trying to incorporate good discipline into research activities. This means that I first approach the topic for study from the perspective of identifying core research questions. This helps me to narrow down my research area to the core issues and not getting diverted by irrelevant considerations when I am studying. Next, I use library and databases for honing in on the key primary and secondary sources from where I will get data for the area under study. Primary sources would include legislation and case law or European laws (if relevant) and secondary sources would include books, articles from journals and even reports. I have stopped looking at internet sources for research purposes like I used to before. I now understand that Wikipedia is not a research resource. When I have identified the key sources, I spend time reading and noting the data, which I always attribute back to the authors or sources. This is where my newly developed knowledge about referencing comes in. Whether in handwritten notes as well as work done in the computer file, I always ensure that I attribute the work taken from a source to the source itself. Regarding the IRAC system, this has helped me tremendously in approaching problem situations in the correct and systematic manner. Earlier, problem questions would leave me flustered and confused, but now I am able to organise my research and writing more efficiently by applying this method. I also found the IRAC method very helpful when reading judgments.

The skill that I have acquired will help me in organising my studies better going forward in the course. Criminal law is an exciting but also challenging area in the law because so much of criminal law is still in the form of common law. This means that in order to study criminal law, one is required to research into judgments a lot. Application of research skills and particularly the IRAC method will help me to understand the law better and also to apply specific case laws to specific problem areas or situations. To summarise, I think that continuing forward, I will keep honing my research skills as this is where I will be able to best approach my studies in criminal law.

The Convention for the Protection of Human Rights and Fundamental Freedoms 1950 or the European Convention on Human Rights (ECHR) was incorporated into the law of the UK through the passage of the Human Rights Act 1998 (HRA 1998). The HRA 1998 is significant for recognising the ECHR rights through a parliamentary legislation. The HRA 1998 has had significant impact on the constitutional law of the UK, particularly in the convention of parliamentary sovereignty, one of whose aspects is that the law created by the parliament is outside the scope of judicial review. This is so because Section 4 of HRA 1998 provides that there should be compatibility between ECHR rights and British law. This is the direct applicability of the ECHR rights under the UK. The courts in the UK are required by Section 4 to interpret the domestic law in a way that it does not violate any ECHR rights. Moreover, the HRA 1998 also gives individuals the right to directly appeal to the European Court of Human Rights (ECtHR) for violation of their rights.

As the HRA 1998 requires compatibility between the domestic law and the ECHR, a significant change with respect to the UK constitution is in judiciary approaches judicial review of parliamentary law. HRA 1998 provides certain rights to the individuals, which have come to be recognised as constitutional or fundamental rights by the judiciary. This has also meant that parliamentary law that is contrary to the ECHR has come to the courts for judicial review and has been taken up by the courts even though traditional parliamentary sovereignty would not allow it. However, because Section 4 of the HRA 1998 allows power to the British courts to make declarations of incompatibility courts have used this power. A notable example is found in the Belmarsh case, in which the House of Lords made a declaration of incompatibility between a terrorism law and the ECHR. Similarly in another case, the House of Lords prioritised ECHR rights over a parliamentary law. The Supreme Court has followed

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1. Gary Slapper and David Kelly, The English Legal System (Oxon: Routledge 2009) 24.
2. Alastair Mowbray, Cases, Materials and Commentary on the European Convention on Human Rights (Oxford University Press 2012).
3. Ibid.
4. G Slapper and D Kelly, The English Legal System (Oxon: Routledge 2009) 25.
5. Thoburn v Sunderland City Council [2003] QB 151; R v. Lord Seville of Newdigate, ex. Parte A [2000] 1 WLR 1855.
6. A & Others v. Secretary of the State for the Home Department [2004] UKHL 43.
7. Attorney General’s Reference (No. 4 of 2002) [2004] UKHL 56.

the same principle of reaching compatibility between the ECHR rights and the domestic law in some cases that came before it.

Under the application of the traditional doctrine of parliamentary sovereignty, such conclusions would be unthinkable. Therefore, the application of HRA 1998 has brought a significant change in the English constitutional law. Additionally, the application of HRA 1998 has required under Section 6 that the public authorities should not act contrary to the provisions of the HRA 1998. Thus, apart from the direction to the courts to interpret legislation in accordance with HRA 1998 under Section 4, Section 6 requires public officials to ensure that their actions are in compliance with ECHR. To conclude this essay, the HRA 1998 incorporates the ECHR rights into UK law and also makes it incumbent on the courts to read parliamentary law in accordance with ECHR. This puts pressure on the traditional doctrine of parliamentary sovereignty, which is an important change in the constitutional law of England.

Issue

Is Dawn liable for murder or manslaughter of Vik?

Rule

The common law definition of murder is unlawful killing with malice afterthought. In criminal law, liability for an offence arises when the actus reus elements and the mens rea elements are satisfied in the case. In cases of homicide, the actus reus element is the causing of the death of another human being. Mens rea is the fault element that speaks to the mental elements, whereas actus reus relates to the physical condition of death. While the actus reus element is common for murder and manslaughter, which is the death of a human being, there is a difference in mens rea which may go on to distinguish the liability of the defendant under murder or manslaughter. In other words, whether the act of the defendant will amount to murder or manslaughter will depend on what fault element at time of the injury. Fault elements for murder are intention to kill or cause grievous bodily harm likely to cause death. Where intention is missing, the death may come within the scope of manslaughter, which includes death by negligence, or unintentional killing.

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8. Brice Dickson, Human Rights and the United Kingdom Supreme Court (Oxford University Press 2013) 373.
9. Terence Morris and Louis Blom-Cooper, Fine Lines and Distinctions: Murder, Manslaughter and the Unlawful Taking of Human Life (Waterside Press 2011) 105.
10. R v West (1848) 2 Cox CC 500; Attorney General Reference (No 3 of 1994) [1997] 3 WLR 421.
11. A Ashworth and J Horder, Principles of criminal law (Oxford University Press 2013)

Defences for the crime of murder are categorised as complete defences, which include automatism and self-defence, under which the defendant can claim complete defence from the liability of murder; and partial defences, which include diminished responsibility, loss of control and killing in pursuance of a suicide pact. Diminished defence does not allow complete freedom from liability of murder but can diminish the liability to a degree. Defence for manslaughter can arise where the defendant killed with the intent for murder but due to loss of control. In cases where the defendant suffer from some mental condition and commits murder, then the court may convict the person for manslaughter instead of murder under the principle of diminished responsibility. Section 52 of the Coroners and Justice Act 2009 applies in such cases. In cases where the defendant can show that there is some abnormality of mental functioning due to which they are not able to normally function, then the diminished responsibility principle may be applicable. The defendant may be able to argue that they do not have the ability to exercise willpower or to control their physical acts complying with rational judgement.

Application

In this situation, Dawn suffers from an inoperable brain tumour leading her to act impulsively and not be able to control her actions. She may argue that Vik’s brushing past her and causing her to fall led her to lose control due to her medical condition, grab the metal chain-link lock out of Vik’s hands and hit him repeatedly over the head.

Conclusion

Dawn may use her medical condition for arguing that her actions do not amount to murder but manslaughter. She may take the defence of diminished responsibility and lack of intention to make that argument. In that case, she will still be liable for the death of Vik, but her liability and punishment will be diminished in the light of her tumour.

Cases

A & Others v. Secretary of the State for the Home Department [2004] UKHL 43.

Attorney General Reference (No 3 of 1994) [1997] 3 WLR 421.

Attorney General’s Reference (No. 4 of 2002) [2004] UKHL 56.

R v Byrne [1960] 2 QB 396.

R v. Lord Seville of Newdigate, ex. Parte A [2000] 1 WLR 1855.

R v West (1848) 2 Cox CC 500

Thoburn v Sunderland City Council [2003] QB 15.

Books

Ashworth A and Horder J, Principles of criminal law (Oxford University Press 2013).

Dickson B, Human Rights and the United Kingdom Supreme Court (Oxford University Press 2013).

Morris T and Blom-Cooper L, Fine Lines and Distinctions: Murder, Manslaughter and the Unlawful Taking of Human Life (Waterside Press 2011).

Mowbray A, Cases, Materials and Commentary on the European Convention on Human Rights (Oxford University Press 2012).

Slapper G and Kelly D, The English Legal System (Oxon: Routledge 2009).

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