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The academic approach…

A question of criminal law…

My brother, Charon QC, has little taste for writing on matters of law. This is not the case with me.  I have devoted a large part of my life to writing law books, articles and monographs designed to make the law as obscure as possible to student and practitioner alike.  I believe that I have been quite successful in so doing.

Recently, Ruthie posted a question on Criminal Law on the Geeklawyer website.  It was a post headed ‘Back to School’ 

The question posed 

“As its back to school time Ruthie thought she should pose a mock exam question for budding criminal lawyers.

Ruthie reads today about a woman who has allegedly given white “mints” containing animal sedative to five ponies belonging to her son’s competitors in a show jumping contest in Jersey. The woman was seen by a witness to kick one of the “mints” into the dirt after it fell from a pony’s mouth. One of the “doped” ponies smelt of hay, had slurred speech and was unsteady on its feet. The event was cancelled before any of the ponies ran.

The prize for winning was a mere twenty pounds, but the event was apparently prestigious to win.

So, what if any criminal offence has potentially been committed here? For the purposes of the question assume that English, rather than Jersey law applies, although no doubt some smart arse will give me an answer in Jersey law. Remember to show your reasoning.”

I rarely write for free these days – but, for this question, I make an exception.

Here is my opinion 

At the request of my brother, Charon QC, I am pleased to be able to comment on the question and, perhaps, lower the tone of reasoning and debate.

For thirty years I have taken the view that students should be put to the sword from the very first day in law school. I recall a film, ‘The Paper Chase’, I think it was, where the professor asked a student in his class a question. The student was not able to provide a satisfactory answer. The professor took a dime out of his pocket, held it up and said “here is a dime. Go telephone your mother and tell her you aren’t going to be a lawyer.”

I must enter a caveat to the effect that I know absolutely nothing about the criminal laws of this country. My brother Charon QC does – because he has been up before The Beak several times on speeding charges. He rides a motorcycle, which, frankly, is absurd for a man of his age. It is not so much the riding of the motorcycle which offends my eye. It is the mirrored sunglasses and bright yellow helmet which is an affront to good taste. And as for those bright yellow racing boots, black leathers and bright yellow jacket with a black panther on the back – ridiculous! Mutton dressed as lamb.

I recall Professor Griew many years ago – an excellent role model for any aspiring Professor of Law. (Criminal Lawyers may well be familiar with his book on The Theft Act.). This recollection is not, of course, relevant – but I always think about my tutorials with Edward Griew when I think about Criminal Law. He used to smoke No 6 cigarettes. Older readers will recall that No 6 were cheap and very much smaller than normal King Size cigarettes. He kept them furtively in a metal filing cabinet and would take one out of the packet and smoke it in the tutorial. Sometimes he had two cigarettes during the course of the one hour tutorial. In those days I did smoke cigarettes. It was always a pleasure to smoke in Griew’s tutorials. I am pretty sure all six of us the room smoked then – so it was quite smoky by the end of the hour. I digress. Allow me to return to the point in issue.

Clearly, a number of offences have been committed. The relevant law is contained in The Subversion of Horse Racing Act 2006 which came into force only this morning to cover events such as those postulated in the question. I pride myself on keeping up to date, even in subjects which I know absolutely nothing about and read the Act this morning with my coffee. I do not share my brother’s desire to drink espresso – an affectation which he believes gives him a certain ‘je ne sais crois.’ Nor do I smoke. I take snuff, straight up the barrels of both nostrils. One may do this even in a No Smoking area.

Unusually, The SHRA 2006 has retrospective effect – a new idea put forward by John Reid, the current Home Secretary, to ensure that any blunders by the government can be cleared up after the event.

s23, 24 and 28 are the relevant provisions. S.23 provides that it shall be unlawful to administer any veterinary medicine, drug or preparation likely to enhance the performance of horses, ponies, camels, greyhounds or any other mammal, insect, arachnid, reptile, bird or fish involved in racing or other sporting competitions.

S. 23, therefore, covers the first point raised: The administration of the ‘doped mints.’

S24 makes it an offence to attempt to hide evidence which may be useful in relation to the proving of an offence under S.23. Kicking the mint into the dirt would, therefore, come within this provision.

S.28 makes it a criminal offence to be in possession, ownership or charge of a horse, pony, camel, greyhound or any other mammal, insect, arachnid, reptile, bird or fish involved in racing or other sporting competitions.

The woman who administered the doped mints would be classed a person ‘in charge of a doped pony’ and would, therefore, be liable to prosecution under this section.

The penalties are set out in Schedule 5 of the Act. Persons convicted under SS23, 24 and 28 SHRA 2006 are liable upon conviction to imprisonment for up to 10 years or be detained, at the discretion of The Home Secretary, without trial, at a suitably secure location in Eastern Europe provided there is room and the Americans agree to fly the convicted person out in one of their ‘extraordinary rendition’ flights which leave routinely fom all UK airports, including Luton.

I suspect that I may have missed a few of the more subtle, subtextual twists which examiners always insert into exam questions to ensure that no student can achieve a mark higher than 72%. It would, to say the least,  be a shock for an examiner to realise that one of his or her own students was actually more clever. Our marking system in the UK, mercifully, is designed to avoid such a possibility.

Professor RD Charon Ph.D, D.Litt CBE

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Examinations…marking of…

I have just seen my brother’s reference to marking examination scripts. Yes, it is true. He did this for some time. In my view he should be tried as a war criminal. He was far too lenient.

In but a few days or weeks, the hapless (or should that be hopeless?) and lazy will be appealing to the examinations board, producing spurious medical certificates or, taking it on the chin, and settling down for a bit of work before the September re-sits. Bar the odd genius who gets a First class answer on the first two questions out of four and then fails to submit answers to the remaining two (Fail usually) and genuine illness – there are usually two reaons why students fail examinations. They either do not know enough law – through laziness or lack of ability or, secondly, they fail to address the questions set. In the latter case, the student rarely fails – but the mark gained does not reflect his or her ability. Examinations are not the best way of testing ability, but what is the alternative? Coursework, in the age of the internet where students can plagiarise or, worse, pay a cheat site to do the coursework for them, is no longer viable.

So… the misery of the exam hall continues. I was always a bit baffled by some of my colleagues in academe who did not seem to be prepared to help students by showing them how to approach essay or problem questions. They regarded my efforts with flow diagrams and specimen answers with disdain. How can one bowl like Monty Panesar without knowledge and practice? I have seen some truly horrific exam scripts – garbage is easy to identify and despatch (dispatch may be used in the alternative). So too, the B52 bomber who spatters law all over the page in the vain hope that some of it will be relevant to the question posed. Others just give up and doodle for a while before leaving. I can’t quite see how a law student, who does a reasonable amount of work, who is not actually ill or distracted by personal problems, who has been shown how to approach exam questions, can actually ‘fail to satisfy the examiners’.You have to be reasonably bright to get into law school these days. Getting a First or a decent 2.1 does require hard work and ability – but that is the way of the world and there are plenty of good lawyers out there with not particularly brilliant degrees. (The difficulty is – these days, they would probably find it difficult to even get into the firms in which they are now partners! or secure even a pupillage in chambers)
What, however, really irritates me is the tendency in some law schools to teach law to a formula. I shall be returning to this theme another time. I have been talking to two students recently who have been taught in this way. They did not find it a satisfying experience. Anyway..enough… I have to read Atiyah, Sale of Goods and see if I still agree with some of the more interesting ideas still contained in the book!

i was asked to review a book once.  It was not a particularly good book on law…in fact, it was terrible.  I borrowed the aphorism of Sir Maurice Bowra (Oxford) and wrote back to the Publisher – “Thank you for sending me this book – “I shall lose no time at all in reviewing it”   I was not asked to review any further books – thankfully.
R D Charon

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A start by “RD”

While my younger brother grapples with the technical aspects of wordpress and works out how to give me posting rights under my own ‘moniker’ I shall post with my avatar.

I began my academic career at a good university, but one, unfortunately placed geographically, far too distant from where I wished to be, so I did not spend much time there. I did make occasional journeys to the university town, with the intention of visiting the law school, but often found myself waylaid by the attractions of a fine pub situated about half a mile from the Law School and was not always able to make it to the school. I do, however, remember the Dean giving all the new students an address. The Dean was a solemn man, newly elevated to professorial rank, a man whose knowledge of criminal and other law stupefied the judges when he was at the Bar, to a point where it was felt that his talents might be better used in academe – which, indeed, they were.

He looked straight at us all. His eyes flickered and darted from side to side. He spoke quickly as he told us that of the 100 in the theatre only two would get a First, twelve, possibly, fifteen, would get an Upper Second, the herd would get Lower Seconds (and find solace practising law in modest firms), a few would get Thirds (and find little pleasure in a life in the law) and, sadly, – looking menacingly around the theatre: “Five to six of you will get pass degrees – a certificate of incompetence.”

I’m afraid, possibly though mild intoxication, that I found this absurdly funny and burst out laughing.

“Mr Charon” the Dean asked “Perhaps you find that amusing? Why so?”

I cannot, of course, remember the exact words which I used to reply (It always amazes me how people who write biographies can remember almost every word they spoke in their lives) but I will give the gist (and in future posts, should I need to resort to dialogue, I will ask you to imagine that I can remember every single word.)

“Well it is rather amusing, Professor ‘X’. How can anyone spend three years of their lives studying something and end up with a certificate of incompetence? Better to cut the losses after the first year and run.” The Dean merely smiled and passed on to other matters. I could, however, see a few anxious looks on the faces of my fellow students. There were eight women on the course. This was most disappointing. Things have changed – a theme to which I shall return when I next post.

R D Charon

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