If you remember nothing else, remember this – knowing the law isn’t enough
That’s right, you can sit in lectures listening and in the library reading until the cows come home and you will still be mediocre (or fail) if you do not know how to apply the law to the facts contained in the problem. Knowing the law is the foundation – the bare minimum. Once you know the law, you can get on with the job of answering the question and setting yourself apart from the pack.
So where should you start? A tried and true formula that gets results is IRAC (EYE-Rack). IRAC is: Issue, Rule, Analysis and Conclusion. Only after completing this drill do you consider any possible defences in law.
With baby steps and using the simple example given in Part 1, here we go:
“C’s liability for the death of the security guard”
The issue here is whether C is liable for G’s murder.
The actus reus of murder is the, “unlawful killing of another human being under the Queen’s Peace”.
In this case, the first test is whether C, as a matter of fact, caused the G’s death – or, to put it another way, but for C’s hitting G over the head with a brick, would G’s death have occurred the way that it did?
As C hit G over the head with a brick until G died, C, as a matter of fact, caused G’s death. (Simple as that. Do not get side-tracked into a lengthy discussion of causation here – save that for a bicycle accident and quack doctor scenario.) C therefore satisfies the A/R of murder.
The mens rea of murder is, “with malice aforethought”. The House of Lords’ cases of Maloney and Hancock interpreted the mens rea for murder as, “an intention to kill or cause grievous bodily harm”. The direction given to juries developed by the Court of Appeal in Nedrick and later confirmed in the House of Lords in Woollin is:
1) was the consequence virtually certain to occur; and
2) did the defendant foresee that consequence as being virtually certain to occur?
In the absence of an explicit indication in the facts of C’s state of mind, sufficient intent for murder may nevertheless be inferred because:
(a) By C’s repeatedly hitting G over the head with a brick, death or GBH was a virtual certainty; and
(b) C must have appreciated the fact that repeatedly hitting G over the head with a brick would, at the very least, cause GBH (if you have more evidence from the facts given, use it).
C therefore has satisfied the M/R for murder.
Accordingly, as the A/R and M/R have both been satisfied, C is guilty of G’s murder.
Further, and on the facts, there do not appear to be any general (insanity/self-defence) or special defences (diminished responsibility, provocation or suicide pact) available to C.
(If there were any defences available, repeat the drill as above, clearly indicating the burden of proof and whether it would be a “full” or “partial” defence. Remember that more than one defence in law may be available, depending on the facts contained in the problem.)
Now you can start a new paragraph and discuss burglary!
Some people love IRAC. Others hate it. The point is to adopt a structured approach which gives you a chance to:
a) clearly set out the law;
b) apply the law fully to the facts of the case; and
c) draw a conclusion.
Now you know the drill, all that remains is practice, practice, practice!
This is an outline. YOUR answer to a criminal law problem question will turn on the facts. It will also need your full reasoning.