Oh, I wish this was a blog post about someone who rode shotgun in a car and it resulted in their untimely death. That would be much funnier and, far less infuriating than what I am going to blog about. Quite a few people in the twittersphere and blogosphere, such as the wonderful Jack of Kent and slightly mental Constantly Furious, have already done this story to death. But I thought I'd give the thing a few kicks while it's down because a.) I've got nothing else to blog about and b.) I'm a coward that can only attempt to kill something that's already dead. For those who don't know, there was once a man called Paul Clarke (still is, actually, unless the death penalty has been instated for possession of a firearm...). He saw a black bag at the bottom of the garden, looked inside, and saw that it was a sawn-off shotgun (for those who don't play GTA IV, that's a shotgun that's been shortened to make it easier to conceal. For teh gangstaz, yeh?). He took that shotgun to the police station, after a strange four day lag, and was arrested. He was charged and found guilty of possession of a firearm, although today he was sentenced to a 12 month suspended sentence.
As a law student, I’m not particularly interested in the dodgy circumstances surrounding this case (such as Mr Clarke sleeping with one of the detectives), unless they are relevant to the law. The law on this matter is rather simple. It is a crime of strict liability, which means that it requires only an act, rather than most other crimes which require both an act and a mental element, such as intention or negligence. Thus, simply the act of possessing the gun is enough to make one guilty of this crime. There are, however, some safeguards. Firstly, the CPS has some pretty clear guidelines on when to prosecute, and won’t prosecute if it is not in the public interest.
This case, as some would have us believe, is not as simple as “Man hands in gun to police station and gets arrested for it!” In those circumstances, the CPS would certainly not prosecute. This is a case of “Man finds gun. Waits four days. Man hands in gun to police and gets arrested.” The crucial element is that four day lag. The Judge, when sentencing, described it as ‘very odd’. To quote Lt Aldo Raine:
“We got a word for that kinda odd in English. It’s called suspicious’.
From that four day lag, it could be inferred that Mr Clarke intended to commit a crime with the weapon, but changed his mind and decided to hand it in to the police station. Personally, I don’t believe that was the case but that is certainly not self-evident. So, I don’t blame the CPS for prosecuting under those circumstances.
Since possession of a firearm is a strict liability offence, there really wasn’t much that Mr Clarke could do to defend himself. He certainly had possession of the firearm, there was no denying that. His only route out would have been an ‘exceptional circumstance’; namely, the defence of duress of circumstances. In the case of Pommell (1995), a man was found in bed with a loaded gun. He argued that he had taken the gun off someone who intended to commit a crime, and was going to hand the gun into the police station the next day. That defendant was granted the defence of duress of circumstances, because he acted to avoid a threat of death or serious injury to others. In other words, he committed a crime to prevent a greater evil, and was excused for it (i.e. necessity, but the courts don’t like us to use that word…Ssshhh!). Unfortunately for Mr Clarke, he was not acting to prevent a threat of death or serious injury, and thus the defence of duress of circumstances/necessity could not be available to him.
And so, Mr Clarke was found guilty by the jury of possession of a firearm and faced five years in jail. At this point, the judge should have been lenient. He said it himself: “It is an exceptional case because you took this weapon to the police station to hand it in." Under the statute, the defendant should receive a prison sentence unless there were exceptional circumstances which meant the offence did not justify a prison sentence. Quite frankly, it is astounding that Mr Clarke handing the gun into the police station was held not to be an exceptional circumstance (even though it was called an exceptional case by the judge, although maybe ‘case’ doesn’t quite mean ‘circumstance’?). Mr Clarke should have been absolutely discharged by the judge, to signal that while Mr Clarke did commit a crime, he was not in any way blameworthy and that the proceedings were a waste of time.
Friday 18 December 2009
Tuesday 1 December 2009
The Coroners and Justice Act-protecting 'battered wives'?
The Coroners and Justice Act 2009 received the Royal Assent on only the 12th November this year, and so the full ramifications of the Act are obviously not yet clear. But I think that now is as good a time as any to take an analytical look at the provisions of the Act, particularly in relation to the law on provocation. And I’m not just saying that because I just attended a lecture on the subject by the God of Criminal Law, Andrew Ashworth.
The Coroners and Justice Act 2009 reforms several elements of the law on homicide (before you get ahead of yourself, homicide isn’t some fancy synonym of murder. It simply means one human being killing another), mostly in the context of the partial defences to murder. Under the Homicide Act 1957, there were two main such defences: diminished responsibility and provocation. Now, diminished responsibility has been altered somewhat by the Act, and provocation has been abolished altogether and replaced with a new defence of loss of control. In subsequent blog posts I will delve into the other provisions of this Act, but today I want to talk about loss of control.
What is immediately striking about this defence is that it clearly emphasises the conduct of the defendant rather than the conduct of the provocative act; the change in wording may not reflect such a shift in the law, but linguistically it is preferable to an emphasis on the provocative act (now called the ‘qualifying trigger’)
Provocation is probably best known in the public psyche because of cases like that of Kiranjit Ahluwalia, who you may remember (I say this as if I remember…) set fire to her husband in 1989. She had suffered years of physical and mental abuse at the hands of her husband, including marital rape (As an aside, that was not a crime until 1991). One night he was violent towards her, and so when he was sleeping she poured petrol over him and set him alight. He died some days later, and she was charged with his murder.
Her original trial was a farce; she spoke very little English and her defence counsel didn’t try very hard in pushing through on a provocation defence. You see, under the old law provocation only worked if there was a ‘sudden and temporary loss of self-control’. The longer the time-gap between the provocative act and the offence, the less likely it would be that a defence of provocation would work. It has been argued on many occasions that such a provision (an entirely judge-made provision, incidentally, which stems from pre-Homicide Act law and yet was confirmed as applicable to it) is inherently sexist, as it does not afford adequate protection to women in abusive relationships who may lose their self-control but will not react immediately but rather wait for their husband to go to sleep or lie down etc.
Under this new Act, things have changed. s 54 (2) of the Act specifically states that the loss of self-control does not have to be sudden. Furthermore, s 55 (3) states that the qualifying trigger which sparks off the loss of control can be fear of death or serious violence. This is a great victory for women in abusive relationships who lose their control and kill their husbands, only to not be afforded the proper protection of the law. This defence in no way justifies the conduct of the defendant; it merely offers them an excuse. A successful loss of control plea will reduce the offence to one of manslaughter, which gives the judge more flexibility in sentencing depending on the circumstances of the case.
However, one element of the provisions is slightly worrying. s 54 (4) explicitly disapplies the defence where D acted in a considered desire for revenge. While this is a logical conclusion, it somewhat impinges on the welcome broadening of the law achieved by the other provisions. In many ways, killings spurred on by a loss of control are all fuelled by a desire for revenge: the defendant wants to get back at the victim for being wronged. The key word here is ‘considered’. This implies an element of planning, but it is not defined in the statute. From a ‘battered wives’ viewpoint, it is unclear what the threshold for a ‘considered’ act of revenge would be. Was Ahluwalia’s conduct ‘considered’? After all, she waited for her husband to go to sleep. What about the wife who goes into the kitchen, takes a knife, and then sharpens it, before killing her husband. This is revenge, but is it ‘considered’? At this early stage, it is unclear, but I for one hope that the judiciary clarify this term in favour of protecting those in abusive relationships rather than enforcing a return to androcentric provocation.
The Coroners and Justice Act 2009 reforms several elements of the law on homicide (before you get ahead of yourself, homicide isn’t some fancy synonym of murder. It simply means one human being killing another), mostly in the context of the partial defences to murder. Under the Homicide Act 1957, there were two main such defences: diminished responsibility and provocation. Now, diminished responsibility has been altered somewhat by the Act, and provocation has been abolished altogether and replaced with a new defence of loss of control. In subsequent blog posts I will delve into the other provisions of this Act, but today I want to talk about loss of control.
What is immediately striking about this defence is that it clearly emphasises the conduct of the defendant rather than the conduct of the provocative act; the change in wording may not reflect such a shift in the law, but linguistically it is preferable to an emphasis on the provocative act (now called the ‘qualifying trigger’)
Provocation is probably best known in the public psyche because of cases like that of Kiranjit Ahluwalia, who you may remember (I say this as if I remember…) set fire to her husband in 1989. She had suffered years of physical and mental abuse at the hands of her husband, including marital rape (As an aside, that was not a crime until 1991). One night he was violent towards her, and so when he was sleeping she poured petrol over him and set him alight. He died some days later, and she was charged with his murder.
Her original trial was a farce; she spoke very little English and her defence counsel didn’t try very hard in pushing through on a provocation defence. You see, under the old law provocation only worked if there was a ‘sudden and temporary loss of self-control’. The longer the time-gap between the provocative act and the offence, the less likely it would be that a defence of provocation would work. It has been argued on many occasions that such a provision (an entirely judge-made provision, incidentally, which stems from pre-Homicide Act law and yet was confirmed as applicable to it) is inherently sexist, as it does not afford adequate protection to women in abusive relationships who may lose their self-control but will not react immediately but rather wait for their husband to go to sleep or lie down etc.
Under this new Act, things have changed. s 54 (2) of the Act specifically states that the loss of self-control does not have to be sudden. Furthermore, s 55 (3) states that the qualifying trigger which sparks off the loss of control can be fear of death or serious violence. This is a great victory for women in abusive relationships who lose their control and kill their husbands, only to not be afforded the proper protection of the law. This defence in no way justifies the conduct of the defendant; it merely offers them an excuse. A successful loss of control plea will reduce the offence to one of manslaughter, which gives the judge more flexibility in sentencing depending on the circumstances of the case.
However, one element of the provisions is slightly worrying. s 54 (4) explicitly disapplies the defence where D acted in a considered desire for revenge. While this is a logical conclusion, it somewhat impinges on the welcome broadening of the law achieved by the other provisions. In many ways, killings spurred on by a loss of control are all fuelled by a desire for revenge: the defendant wants to get back at the victim for being wronged. The key word here is ‘considered’. This implies an element of planning, but it is not defined in the statute. From a ‘battered wives’ viewpoint, it is unclear what the threshold for a ‘considered’ act of revenge would be. Was Ahluwalia’s conduct ‘considered’? After all, she waited for her husband to go to sleep. What about the wife who goes into the kitchen, takes a knife, and then sharpens it, before killing her husband. This is revenge, but is it ‘considered’? At this early stage, it is unclear, but I for one hope that the judiciary clarify this term in favour of protecting those in abusive relationships rather than enforcing a return to androcentric provocation.
Monday 23 November 2009
The Ultimate Defence?
Steve Hagen wrote in "Buddhism: Plain and Simple" that when we are awake (i.e. enlightened), we are without intention. Thus, Buddhas cannot be convicted of a criminal offence unless it is one of strict liability. Now that I have discovered this, I do hope to see plenty of pretend Buddhas clogging our courts claiming they couldn't have had the necessary mens rea because they had achieved enlightenment.
Introductions...
In this blog I shall be taking a critical and analytical look at English law from the perspective of an undergraduate lawyer at the University of Oxford, as well as ranting about whatever else piques my interest. Some examples of some things I will be talking about: movies, video games, religion and secularism, literature, cake, bananas, and solipsism. Lots and lots of solipsism.
So, let's get this party started shall we?
So, let's get this party started shall we?
Subscribe to:
Posts (Atom)