Read Law Right

*or other multi-part legal principle…

This post follows on from the comment on the Auriol Grey case in the previous post. As a quick reminder, counsel for the prosecution, counsel for the defence, and the judge, all overlooked the need to demonstrate the elements of the unlawful act in Ms Grey’s manslaughter trial. This led to the conviction being overturned on appeal.

The basic principle is that the prosecution must demonstrate, so that the jury is sure, that all elements of the offence are satisfied. All the defence needs to do is negate one of those elements and the offence is not made out – the defendant must then be found not-guilty.

When answering academic assignments, do the same rules apply? Should you always explain, discuss and apply all the elements of the offence in question? Even when it is obvious from the question that the main issue rests on just one element of the offence?

I’m going to argue that you should always plan to explain all the elements of an offence. There’s a few reasons for this:

1. It is very good practice to get into, not least because of the pitfalls of failing to do so when necessary – as per the Auriol Grey case.
2. It can help you identify issues within the question that you wouldn’t otherwise notice – e.g. you immediately recognise an obvious issue when you read the question, but only when you come to explain and apply all the elements of the offence do you realise there are additional issues that might put the offence in doubt.
3. It can help you secure the basic marks for the assignment – admittedly, simply explaining the elements of the offence won’t necessarily get you a good mark, but it can get you solidly on the way to a pass not least because your tutor will be pleased to see that you were thorough.

In particular, you should assume that you will explain and apply all the elements when your assignment is a moot or a problem-style question. The scenarios that examiners provide you with are likely to be complicated and even convoluted, and end with an instruction like, “Discuss any criminal liabilities and any relevant defences.” In particular where defences are alluded to in a scenario, it can be very easy to fall into the trap of focusing on the defence alone.

At the very least, when you research, plan and draft your answer, assume you will address each element of the offence/defence because of reason 2 above.

Problem-style example

However, when the assignment is a moot or problem-style question, the necessity to discuss all the elements is paramount. Consider, for example, this assignment:

“Dr McCoy and Mr Spock had one of their famous arguments. On this occasion, Dr McCoy succeeded in provoking an emotional reaction from Mr Spock; one that was much more violent than he anticipated. Mr Spock was enraged, lost control of his emotions, and punched Dr McCoy in the face. Dr McCoy stumbled and hit his head on the ground resulting in a deep laceration.

Advise the Crown Prosecution Service on its options for charging Mr Spock.”

In this example, it would be appropriate to explain the elements of several offences from the Offences Against the Person Act and the common law, e.g. s18 GBH/wounding, s20 GBH/wounding, s47 ABH and common law battery and technical assault. Typically, one would start with the most serious offence and work down the list. So for s18 GBH/wounding, one would explain and apply:

• Definition of GBH.
• Definition of a wound.
• Level of harm D needs to foresee for GBH.
• Causation and whether it is in any doubt.
• Definition of “malicious” in s18.
• Explanation and application of direct and oblique intent.

Repeat for the elements of s20 GBH/wounding, s47 ABH, battery and assault.

Defences

• Explanation why provocation is not a defence. This is because the question uses words that imply these defences and your tutor would be looking for you to explain why they are not applicable here.
• Explanation of the definition of the elements of self-defence, and whether it applies in this instance.

It may be that having explained those elements, one or more of them can be dispensed with quite quickly. This will be the case where the scenario is silent on the facts that would assist in applying that element of the law.

For example:

1. We have not been told if Dr McCoy experienced any longer term effects from the punch. All we know is that it caused a laceration. So while we can probably demonstrate a wound for the purpose of ss18/20, we may struggle to prove GBH, still less intention to cause GBH. But we should still address those points, albeit briefly.
2. We are not told if Dr McCoy gesticulated at Spock or otherwise gave him reason to believe that he is about to attack him. So we cannot conclusively determine if self-defence would be a viable defence. We should still address this briefly, but all we can do is explain what Spock would have to do in order to demonstrate this defence.

We would end with a succinct conclusion for each of the putative offences; succinct because we have already been applying each element of the law to the facts at every step of the way.

Essay style example

There is more room for variation when the assignment is an essay-style question. In this situation, the question may indicate there is a particular element of the offence to focus on.

Here is an example essay-style question on theft that demonstrates this:

“To establish the offence of theft the prosecution must prove, beyond reasonable doubt, that there was dishonesty.  What is the legal test for dishonesty?  Discuss its strengths and weaknesses, and whether it should be changed.”

Clearly here the focus of the answer will be the dishonesty element of the offence. Nevertheless, it wouldn’t do your answer any harm at all if you began by explaining that, “The offence of theft requires the prosecution to prove that the defendant dishonestly appropriated property belonging to another with the intention of permanently depriving them of it,” with a footnote to s1 Theft Act 1968.

You would then go on to focus on the dishonesty element as the question requires. You would be careful not to discuss the other elements of theft in any great detail and if you did, you would be sure to explain how doing so helps advance your arguments about the dishonesty element.

Final thoughts

I’ve focused on criminal law examples here, because criminal offences almost always consist of multiple elements. But this is an approach you should apply to any multi-element legal principle – for example, substantive legitimate expectations in judicial review, proportionality assessment in qualified human rights, negligence in tort law, constructive trust in land law.

To recap, then, for any assignment that requires you to discuss a multi-element legal principle, assume at the outset that you will need to explain and apply, in plain language, each element of that principle. Only allow yourself to be persuaded out of that assumption once you have done the research and planning of your answer and can be sure it isn’t appropriate.