Read Law Right

I hope, in the previous two posts, that I have persuaded you that you should default to explaining all the elements of a criminal offence in your assignments. Here, I want to give you some guidance on how to go about that.

Again I will assume criminal law here, but this transfers to other multi-element legal principles – I gave some examples of where these show up at the end of the previous post.

An example – Theft

To begin with you will likely repeat the standard definition of the offence. For example, theft being the ‘dishonest appropriation of property belonging to another with the intention of permanently depriving them of it’, with a footnote to s1 Theft Act 1968.

It is good practice to then explain each of those elements in your own words and in plain language, i.e. not legalese, and apply the law to the facts of the question.

For example, you could explain that ‘appropriation’ involves assuming the role of the owner and acting as if in fact you own the object. You could footnote this to s3 of the Theft Act and it takes your explanation a little beyond the bare definition of the offence.

So at this point we have addressed two levels of the definition of the offence. We have the headline definition of theft and a plain language explanation of what those elements mean, and it has only taken us a sentence or two for each element.

Now we are in a good position to go back to the question and ask if there are any potential issues around any of those elements. Ask this from the point of view of both prosecution and defence. If you find none, you could note that ‘there appear to be no issues in proving [this element of the offence].’ And you would move on to the next element.

We will continue using appropriation as our example. If you now identify a potential issue with appropriation, it is time to explore it in more depth. Perhaps the scenario indicates that there is doubt whether the defendant has in fact assumed the rights of the owner of the object, or there is a plausible argument the defence could raise to negate that element. More research needs to be done.

Exploring relevant elements in more detail

The textbook is likely be your best starting point. Using Allen & Edwards, Criminal Law (16th ed Oxford 2021) as our example, we find a discussion of appropriation at section 12.2.1.4, p531. This section goes on for 10 pages, so clearly appropriation is a more complicated concept than s3 of the Theft Act alone indicates.

Here is what I suggest you do in this situation:

1. Read that section in full, making a note of the general areas of ambiguity in this area of law.
2. At the same time, try to more closely identify the issue in your question/scenario.
3. Having identified the specific issue with appropriation, go ahead and explore the case law the textbook refers you to.

Let’s assume the issue around appropriation is because there is evidence the stolen object was in fact gifted to the defendant.

At section 12.2.1.4.2, Allen embarks on a discussion of appropriation and consent, and the extent to which a victim consenting to the appropriation can negate the offence of theft. This develops in the following section to a discussion of whether D can appropriate an object gifted to them by V, and whether appropriation by definition means an adverse interference with the owner’s rights, p536, as opposed to merely an assumption of the owner’s rights.

These are areas that are ripe for a question-writer to include in the scenario, which might not be obvious if you failed to consider each element of the offence systematically.

Beyond the textbook

Allen discusses numerous examples of case law to illustrate the ambiguities in this area of theft. So your next task is to explore those law reports for yourself and get to grips with the facts, the legal question, the judicial reasoning and the outcome of those cases. All the time looking for arguments that you can use to demonstrate why that case should be applied or disapplied in your scenario.

When it comes to writing up your problem-style answer or preparing your moot submissions, you should be citing the law reports, in preference to the textbook that led you to them. And where you cite a particular fact, principle, argument or outcome from a law report, you should provide a pinpoint to the specific page or paragraph in that law report, so your reader can follow it up directly.

For example, in Lawrence v Metropolitan Police Commissioner [1972] AC 626, there is a succinct explanation and application of appropriation by Viscount Dilhorne at p632. The correct footnote citation would therefore be:

Lawrence v Metropolitan Police Commissioner [1972] AC 626, 632 (Viscount Dilhorne).

The pinpoint is very important, because we are citing Lawrence here for a specific point in the reasoning. The only time a bare citation to the case, without a pinpoint, is appropriate is when we are citing the case purely for its outcome.

Systematically explore each element in turn

Remember, always systematically explain and apply the remaining elements, either dispensing with them succinctly because they show up no particular issue, or by exploring the issue in depth.

It is true that all D needs to do is negate one element. Even if you are sure D can do this for the element you have just discussed, explain the others as well. Use the opportunity provided to showcase your knowledge of that offence.

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Look out for the following post, where I will show you a worked example of a problem-style answer.