The Influence of Academic Writing on Legal Development - Case Study Example

The influence of academic writing on legal development Introduction: The case of Regina v Shivpuri raised the question of impossibility in so far asthe question of committing a crime was concerned. The principle of mistaken and innocent participation in criminal activity, which was raised in the case of R v Anderton was used as a defense, however the precedent set in Anderton was overruled in Shivpuri on the basis that the defendant showed the necessary mens rea and the more than preparatory level of activity that is deemed necessary to establish guilt for a criminal act. Professor Glanville Williams has addressed this issue of impossibility in a Paper wherein he has criticized the ambiguity inherent in the Anderton case and spelt out the legal principles on the basis of which an assessment of criminal intent and mens rea may be made in arriving at a decision on the accused’s culpability. This was the basis upon which the conclusions arrived at in R v Shivpuri rested and therefore this shows how valuable the writings of academics can be in helping to clarify the legal basis of the law and its application within a purely theoretical context. This can then be extended into the hot house area of actual practice in the courts, where it is difficult to arrive at the slow, measured and well thought out legal positions that academics are able to present. The impact of Professor Glanville’s writings in the decision in the Shivpuri case was acknowledged by Lord Bridge of Harwich who stated, “it would be churlish not to acknowledge the assistance I have derived from it.” Therefore, the outcome of Shivpuri and subsequent cases have undoubtedly been affected by the views of Professor Williams, which ha shelped to clarify the law of impossibility and when exclusions to the general rule would be applicable. Material facts of the R v Shivpuri1 case: The defendant Shivpuri was contacted while in India and handed a package of what was purportedly illegal drugs and asked to smuggle it in when he entered the U.K. However, he was arrested by customs officers when he went to deliver the drug to the contact person, while in possession of a suitcase which was believed to contain Class A Drugs. After he was arrested, he confessed to the officers that he knew he was dealing in drugs that were prohibited under the law. However, once the contents of the suitcase were examined, it was discovered that they were not drugs but harmless materials that could be classes as vegetable matter. The defendant was charged of a criminal offence under Criminal Attempts Act of 1981 (Section 1), for the offence of harboring prohibited drugs, an act which was in contravention of Section 170(1) (b) of the Customs and Excise Management Act of 1979. The defendant was convicted of having acted “knowingly” in committing a criminal act, especially because the Judge in the case directed the jury to make a note of the fact that it was not necessary for the defendant to know what the contents of the suitcase were, because the salient fact was his knowledge that he was engaging in an illegal act. The defendant however appealed the conviction at the Court of Appeals (which dismissed his appeal) and then the House of Lords on two major grounds: (a) the impossibility factor: It was impossible for the defendant to be convicted of dealing in dangerous Class A drugs when the reality of the matter was that the drugs found in his possession were not prohibited. Since Section 1(1) of the Criminal Attempts Act of 1981 mandates that his actions should have been ‘more than preparatory’ to the committing of the offence, he could not be held liable for actions that did not fall into that category. (b) Misdirection by the Judge: the Defendant contended that the Judge had incorrectly directed the jury that the knowledge of the contents of the suitcase were immaterial, when in fact they were, since the kind of offence that he could be charged with was dependent upon which of the three classes of drugs identified in the Misuse of Drugs Act 1971, the contents of the suitcase fell into. The decision of the House of Lords: The Court of Appeal dismissed his appeal on the following point of law - the mens rea of the alleged criminal act: This was the basis upon which the Court rebutted the point of law raised by the defendant that his actions could not constitute those that were “more than preparatory” in committing an offence because the actual offence was impossible. The court held that it was not material whether the offence was possible or impossible, the very fact that the appellant had fully intended to commit the offence in question, which related to harboring illegal drugs as covered under Section 1 of the Criminal Attempts Act of 1981, established the fact that he had the necessary mens rea establishing criminal intent and therefore could be deemed to be guilty. His acts in fact constituted much more than those merely preparatory to committing an offence. On this basis, the Court also held that despite the different penalties that would accrue for different classes of drugs, this did not change the fact that the mens rea of the plaintiff was such that he knowingly engaged in an act that was illegal. The judgment of the House of Lords was to turn down the appeal of the defendant on the basis of Sections 1(1) and 1(2) of the Criminal Attempts Act of 1981. As stated by Lord Hailsham, the decision was reached on the basis of three major questions which were posed in this connection: (a) In establishing mens rea the court questioned what the intention of the defendant had been and the answer was that the defendant was trying to evade the customs authorities out of the motive of accruing gain for himself. (b) Did this knowing evasion of the customs authorities constitute a violation under Section 1 of the Criminal Attempts Act of 1981? The Court concluded that the answer was in the affirmative. (c) Lastly the Court questioned whether the defendant’s actions constituted an act which was more than preparatory to the commission of an offence? The Court concluded that this was so, since the intent of the defendant was criminal in nature and he was knowingly trying to evade the authorities since he had indulged in a criminal act. The Court also took into consideration the case of Anderton v Ryan2 in which the defendant Mrs. Ryan had been accused of criminal intent because she had purchased a recorder on the false assumption that it was stolen. In this case, the recorded had however not been stolen and therefore due to the impossibility of establishing the committing of a criminal act, the defendant was not convicted. He pointed out that there was a distinction in the two cases when the criminal intent was defined by reference to the prohibited act which the defendants had engaged in. In the Shivpuri case, the act of the defendant was clearly an illegal, prohibited act, therefore his intent defined in the context of the act helped to establish the mens rea for the criminal act. In supporting this view, Lord Bridge also made reference to the case of Reg v Hussain3in which the defendant had been in similar circumstances and where similar accusations of misdirection to the jury had been made, Widgery LJ had said: “It seems perfectly clear that the word “knowingly” in Section 304(b) is concerned with knowing that a fraudulent evasion is taking place…..and if the ..[accused]…knowingly takes part in that operation, it is sufficient to justify his conviction…..”4 Moreover, he also pointed out that Section 1(2) of the Criminal Attempts Act states as follows: “A person may be guilty of attempting to commit an offence….even though the facts are such that the commission of the offence is impossible.” Moreover, Lord Bridge was also of the opinion that the decision that had been given in the case of Anderton was wrong and that the defendant should not been granted immunity from conviction on grounds of impossibility, since the establishment of the clear mens rea is adequate objective justification to establish criminal intent that satisfies the conditions laid out in Section of the Criminal Attempts Act of 1981. Professor Glanville’s views: Professor Glanville Williams5 has discussed in detail the entire phenomenon of impossibility as it applies in establishing the motivation and criminal intent to engage in an illegal act. The major focus of his article is the decision in the case of Anderton in which the defendant had purchased material believed to be stolen but was held to have believed she was acting innocently but had landed up becoming liable for a criminal offence. He has blasted the decision in this case in the most forceful way and questioned the premise upon which the defendant was deemed to be innocent on the premise that the nature of the crime was such it was impossible to commit. Professor Williams has spelt out the grounds that should be taken into account where the phenomenon of impossibility arises in so far as committing a crime is concerned, on the basis of principle. According to Sheriff Gordon6 "One of the most controversial problems in the law of attempt is the question of responsibility for attempts to commit crimes which are impossible of achievement.” It is this aspect of responsibility that Professor Williams addresses in his article and lays out the fact that when an accused has the necessary mens rea for a criminal act and has carried it out to a degree that is sufficient enough to constitute perpetration, then the accused must be deemed to be guilty of committing the offence and must be convicted. This is also the basis upon which Professor Williams forcefully attacks the decision in Anderton as being unviable from a legal standpoint, in so far as a criminal attempt is concerned. Professor Williams points out the Section 1 of the Criminal Attempts Act came into being in fact, precisely to effect a radical change in the law such that when an actor engages in a criminal act believing that he is doing so and is aware of the criminal nature of the act, then he should be held accountable, irrespective of whether the actual committing of the crime was impossible or not, and the provision was intended to remove from judges, the burden of having to distinguish between the various categories of impossibility. Therefore, the decision in Anderton was greeted with dismay and opposition.7 A general rule cannot be laid down in so far as establishing the extent of criminal offence, for example under the Misuse of Drugs Act of 1971. The approach that was followed in the case of R v Smith8 was an assessment was to be made on a case by case basis. For instance, under the Drug Misuse Act, a person can be convicted for selling drugs to another, however if the drug in question is not in existence, this will again raise the question of impossibility and a sentence of conviction, if administered would not be as harsh as one where a prohibited drug was already in existence. In fact, the harshness of Professor Williams’ remarks are because their Lordships held in the case of Anderton that despite the provisions of the Criminal Attempts Act, the defendant could not be deemed guilty of handling stolen goods because she had handled the goods while mistakenly believing them to be stolen. Therefore, the decision in this case set out a distinction between a punishable attempt to do the impossible crime vis a vis a non punishable attempt, but did not provide any kind of guidance on how such a distinction was to be applied, thereby leaving the way open for more confusion and lack of clarity on the matter as asserted by Williams. Therefore the key points that Williams presents in his article are that the Criminal attempts Act was set up precisely for the purpose of establishing clarity and accountability in criminal attempts where the impossible was the issue. Another aspect that he points out is that once the necessary mens rea establishing criminal intent in the performance of the act has been established then the impossible nature of the crime will not be a bar to conviction. However, there could be some exceptions to the rule where impossibility was concerned, where mens rea cannot be effectively established or where the nature of the crime is not as serious. Lastly, he contests the decision in Anderton since it set up this distinction between punishable and non punishable offences, but did not offer clarifications such as the nature of the crime in order to throw some light on when and how such distinctions were to be applied. Lord Glanville Williams provides a clear and cogent analysis of the phenomenon of impossibility. While it is true that he has railed against the decision in the Anderton case in the strongest terms, nevertheless he is able to clearly apply the law as laid out in the criminal Attempts Act to show how it is to be applied in establishing mens rea in order to set out culpability for a criminal act. The decision in Anderton does pose a conundrum, since an innocent involvement in criminal activity, such as innocently being a part of a criminal act without a definite intent and motive to commit that criminal act can be deemed to be fit for exclusion from the general accountability for criminal intent that has been set out in the Criminal Attempts Act. It may be seen that the views of academics can sometimes be very useful in clarifying the path and progress of the law, as well as its intent and the goals it sets out to achieve. In fact, the clarity and cohesiveness of the legal arguments and positions advocated by academics in their legal writing ahs also been used by the judges in the Courts in administering their decisions. In assessing whether the inclusion of academics as judges in the courts would be a favorable move, some opposition has been offered on the grounds that “It is one thing for ideas and theories to evolve and be tested over the years in the study and the lecture room and another thing to judge competing theories in the hot house of the court room.” 9 While this policy may be opposed at the lower courts, it does not appear to be as relevant in the Supreme Court since as Pannick points out, the Supreme Court is one area where the “messy issues of fact have already been resolved and the issues of law carefully defined and refined in advance of the hearing.”10 Therefore, academics who are used to carefully thinking out legal issues could be very useful in the apex court, and Lord Williams of Mostyn was unequivocal in his praise of academics when he specifically singled put professor Glanville Williams by stating that “It is reasonable to suggest that if say, Professor Glanville Williams had been in the Court of Appeal Criminal Division or in the House of Lords dealing with criminal appeals, many errors and oddities might have been avoided.”11 This may be seen to be very relevant especially in the context of impossibility which is the aspect that was raised in both the case of Anderton and the case of Shivpuri which overruled Anderton. The views expressed by professor Glanville Williams are clear and concise and have explicated the application of the law to every case where criminal attempts are involved. Through the use of the mens rea approach which he lays out in his article, he provides some good justification for the criteria that must be taken into consideration while assessing criminal liability for an act that falls into the category of impossibility. Conclusion: In conclusion, it may be stated that Professor Williams has advocated some excellent and cogent points in its article, which have helped to provide considerable clarity on the process of law that will be applicable and relevant within the context of impossibility. Therefore, his analysis and the views he has presented are well worth implementing, and his contribution has been acknowledged as a part of the process of decision making in the case of Shivpuri. While it must be acknowledged that there may be exceptions to the finding of criminal liability, the manner in which such distinctions are to be made was not clarified by the Lords, however Professor Williams’ writings help to clarify and present a cogent overview of the impossibility situation in imputing criminal intent in the performance of an act that may be impossible to complete from a criminal standpoint of assessment. He clearly sets out the foundation of mens rea to be sued, as well as emphasizing the establishment of the more than preparatory level in determining criminal liability. Therefore his writing has helped to shape the development of law in this area as evidence in subsequent decisions of the Courts. On this basis therefore, it may be concluded that academic writing provides an invaluable aid for judges who have to function under pressure in practicing the law in the courts and may not always have the facility for slowly and cogently thinking through legal problems and deriving the means to resolve them equitably. The writings of academics helps to highlight important issues in the law, to clarify ambiguous issues where clear direction is not available from the Courts but may be analyzed and concluded from the law. Therefore, academic writing is very useful in legal development because it helps to clarify the law in a way that case law is not always to achieve, especially where thorny or difficult issues are concerned. In the case of impossibility for example, the law has developed along the lines suggested by professor Glanville in his writing and therefore the value of such writing in legal development and the shaping of case law and future laws cannot be underestimated. Bibliography Books/Articles: * Gordon, Sheriff, “Criminal law (2nd edn) at para 6-49 * Lord William of Mostyn, 1996. “Judges” IN “Law reform for all” Blackstones, at pp 76 * Meggary, R.E., 1962. “Lawyer and Litigant in England.” Stevens and Sons, pp 120-122 * Pannick, 1988. “Judges.” Oxford University Press, pp 56 * Williams, Glanville, 1985. “The Lords achieve the virtually impossible” 135 NLJ 302, smith Crim Law Journal: 504-508 * Williams, Glanville, 1986. “The Lords and Impossible attempts or Quis custodiet ipsos custodies.” 45 Cambridge Law Joiurnal 33 Cases: * Anderton v Ryan [1985] 2 All ER 355, [1985] AC 560, [1985] 2 WLR 23, HL * R v Smith (Roger) 1975 AC 476 * Reg v Hussain (1969) 2 QB 567 * R v Shivpuri (1986) 2 WLR 988 Read More