Can’t tell your dolus eventualis from your dolus directus? A brief late reflection on the Pistorius verdict

English criminal lawyers were transfixed by the spectacle of Judge Thokozile Masipa delivering her judgement on Oscar Pistorius.

Her calm and authoritative handling of the trial had been exemplary; something that could not be said for the absurdly aggressive prosecutor Gerrie Nel who played to the gallery while, as tends to happen with bullies, losing the sympathy of the court.

Gerrie Nel. Absurdly aggressive

Gerrie Nel. Absurdly aggressive

Not that Judge Masipa was above a little court-room drama herself. Many judges might have announced the verdict and then given the reasons; instead she delivered several hours of legal reasoning, rendered the more gripping by occasional stumbles over her script and the taking of unexpected breaks. Her occasional pauses to sip water seemed invested with significance; and she eventually arrived at a verdict that confounded expectations: not guilty of murder, guilty only of culpable homicide.

Judge Masipa. Calm and Authoritative

Judge Masipa. Calm and Authoritative

It has also divided opinion, with many questioning how she could possibly have failed to convict Pistorius of murder. Here I found her reasoning a little hard to follow. Once she had – rightly in my view – acquitted him of intending to kill Reeva Steenkamp, she confused me, and perhaps to some extent herself, with the alternative of dolus eventualis murder. It an unfamiliar phrase in English courts, equating to knowingly and unlawfully taking the risk of killing someone. In English law that is not murder but manslaughter: in this country murder requires nothing less than an intent.  On the other hand, if discharging a gun in the direction of someone behind a toilet door – even if you believe that person to be an intruder – is not overwhelming evidence of knowingly taking the risk of killing, it is hard to know what would be.

Pistorius was, perhaps, a lucky man.

Judge Masipa’s finding that Pistorius was guilty of culpable homicide was based on her finding that he had acted only “negligently”. Here again the law of South Africa, superficially so similar to English law, differs significantly. In England you can commit manslaughter by negligence, but it has to be gross negligence. If you kill someone through ordinary carelessness that is generally speaking not a crime at all (although there are exceptions, notably causing death by careless driving). The South African law of culpable homicide, on the other hand, seems to be made out even if the negligence in question is less than gross. That does not mean, of course, that Judge Masipa did not in fact think that he was negligent to a very high degree.

Perhaps her thoughts will become more apparent at the sentencing hearing. In the meantime, anyone looking for a lucid explanation of the verdict need look no further than Dan Bunting.

Grayling’s “Spartan but Humane” Prisons: Rape, Vermin, Overcrowding, Violence, Idleness and Suicide.

The Howard League for Penal Reform has been a constant thorn in the flesh of Justice Secretary Chris Grayling. He regards it as a left wing pressure group forever trying to frustrate his plans. There is nothing particularly left wing, however, about objecting to men being raped in gaol, the subject of the League’s latest report. According to data taken from Her Majesty’s Inspectorate of Prisons “between 850 to 1,650 prisoners” could be raped or sexually assaulted each year.

It is true that the figure is vague but the main reason for that is that Mr Grayling, in stark contrast to his predecessor Ken Clarke, refused to allow prisoners to co-operate with it. Rather than discover the truth, Grayling is reported to have said bluntly: “prisoners aren’t going to have sex on my watch,” conjuring up a creepy image of the Justice Secretary slinking along the Scrubs landings, occasionally pressing a puffy eye to a Judas hole to make sure his no sex edict is not being flouted. Continue reading

Theresa May’s Politically Driven Inquiry into Child Sexual Abuse is heading for disaster

The problem of who should chair the proposed inquiry into the handling of child sexual abuse by public bodies in past decades has, after some delay, been solved.

Many other problems remain.

Home Secretary Theresa May has announced that it is to be chaired by Fiona Woolf, the current Lord Mayor of London, assisted by Graham Wilmer MBE and Barbara Hearn OBE. Alexis Jay, the author of the recent inquiry into Rotherham Council is to act as an expert adviser to the panel.

The precise terms of reference have yet to be announced but the overall purpose of the inquiry, as set out by the Home Secretary is:

To consider whether public bodies – and other non-state institutions – have taken seriously their duty of care to protect children from sexual abuse. “

The original choice to lead the inquiry was, as readers will remember, Lady Butler-Sloss, a highly respected, retired Appeal Court judge with huge experience of family law. On paper she was an ideal appointment. Unfortunately, she was also compromised because her own brother, former Attorney-General Michael Havers, had been accused by some of being involved in a “cover up” of high profile paedophiles, one of the very issues that the inquiry was being established to investigate. After a little consideration she realised that this put her in an impossible position:

“It has become apparent over the last few days … that there is a widespread perception, particularly among victim and survivor groups, that I am not the right person to chair the inquiry. It has also become clear to me that I did not sufficiently consider whether my background and the fact my brother had been attorney general would cause difficulties.”

Theresa May therefore needed to find a replacement. Continue reading

Early Mornings and How to Avoid Them

Among many ghastly proposals to modernise the justice system, perhaps the silliest has been the idea that courts should sit longer hours. The idea, I suppose, is that time spent by a judge not sitting is time wasted.

Nothing could be further from the truth. The best judges are most reluctant to judge at all. They know that if they stay in their rooms quietly engaged in non legal pursuits, counsel will usually be able greatly to reduce the length of the sitting day, if not to dispense with any need to sit at all.

The worst judges sit the longest hours. Invariably they like to start at 10 o’clock if not earlier. There are five judicial types in particular who have a tendency towards this deplorable practice. Continue reading

If Lord Harley of Counsel wants to be taken seriously he should be more polite

Contrary to what some might imagine the Criminal Bar remains, on the whole a polite and civilised profession. Even when offences of deadly seriousness are being contested in court barristers – and indeed solicitor advocates – generally speaking remain on good, or at least polite, terms with each other out of court.

So I was a little surprised to be told yesterday, by one of my learned friends, a Dr Alan Blacker, that I was an “ignorant cretin.” Still more surprising was that the learned friend in question is not just a Solicitor Advocate but an Irish Peer (“The Earl of Dublin”), a Doctor of Philosophy, a Fellow of the Royal Geographical Society, a Consultant “Transactional Analysis Clinical Psychoanalytical Psychologist,” a Knight of Justice or Grace of the Hospital of St John and even a Privy Counsellor. Taking a deep breath, he also has two undergraduate degrees, two MAs and an MSc in Clinical Forensic Psychiatry, as well as umpteen other letters after his name. There is more:  he apparently owns the patents on two Second World War artillery weapons, the “Blacker Bombard” (a 29 spigot mortar, since you ask), and the “Hedgehog” (a multiple spigot mortar). He is even a qualified bus driver and a member of the Institute of Advanced Motorists. He is, it would seem, a Jack of all Trades and, if his qualifications are taken at face value, he is eminently well-qualified to accuse others of ignorance, even if his online diagnosis of my “cretinism” might be a little controversial in modern Forensic Psychiatry. Continue reading

Boris Johnson’s proposal to abolish the burden of proof is a dreadful idea that would create more terrorists

Boris Johnson considers it a “minor change in the law” that could be swiftly accomplished. There should be a “rebuttable presumption that all those visiting war areas without notifying the authorities have done so for a terrorist purpose.”

It sounds all very well but it is at precisely moments like these that ill-judged legislation is most likely to be passed.

Before looking at the principled objections to Mr Johnson’s idea, there are a large number of practical ones. It is easy to make sweeping “something must be done” suggestions. It is much harder to draft workable legislation. Unworkable legislation will simply compound the problem. Continue reading

The Stop the War Coalition is inexpressibly repulsive

In language inspired by Private Eye’s Dave Spart after he’s shared the Big Brother house for too long with George Galloway, the Stop the War Coalition has abandoned humanity.

There is not the slightest doubt about what is happening. It was on our television screens last night, and if the STW demonstrators who marched so bravely against Broadcasting House yesterday were not sitting in the pub celebrating, they would have seen it too.

Driven out of their homes by ISIS, thousands of Yazidis are huddling under a few trees as the only shelter from a relentless Middle-Eastern sun, on a rock-strewn mountain. They have no food, no sanitation and apart from that recently dropped by American aeroplanes, no water. Hundreds have already died of thirst, hunger and disease.

Continue reading

Should George Galloway be prosecuted for inciting racial hatred?

There have been calls, led by the distinguished human rights barrister Adam Wagner, for the prosecution of George Galloway for “racial incitement”.


The evidence so far in the public domain consists of a video of Mr Galloway, the Member of Parliament for Bradford West, apparently addressing a public meeting. It would appear that the speech may have been delivered at a political meeting called by Mr Galloway’s party “Respect”. His words, which are delivered by him standing in front of a Palestinian flag, are very clear:

We have declared Bradford an Israel-free zone. We don’t want any Israeli goods. We don’t want any Israeli services. We don’t want any Israeli academics coming to the university or college. We don’t even want any Israeli tourists to come to Bradford even if any of them had thought of doing so. We reject this illegal, barbarous, savage state that calls itself Israel. And you have to do the same.” Continue reading

Hamas is a wicked organisation but that doesn’t put Israel above the law.

The law of self-defence is easy enough to state.  It is much harder to apply in practice.

In a typical criminal case an argument breaks out in a pub. A punch is thrown. The situation escalates and a drinker smashes his glass into someone’s face causing deep cuts. He claims that he did so in the heat of the moment because he thought he was about to be stabbed.

Was his action lawful?

It is impossible to give a purely legal answer. It all depends on what the jury make of his explanation. If the jurors are sure that he’s lying when he says “I thought I was about to be stabbed,” and that in fact he just wanted to join in the fight, he will be convicted.

On the other hand if they accept that he may have thought he was about to be stabbed they will probably acquit him. A glassing is a terrible thing, but if the alternative is a potentially fatal knife in the ribs then it is the lesser of two evils. It would, though terrible, be a proportionate response to an imminent and terrifying threat. Continue reading

Ian West was rude to the judge, but let’s keep a sense of proportion

Those attending His Honour Judge Kelson’s court in Durham on Monday 14th April had an unexpected treat: a blazing row between a judge and a barrister. The confrontation ended with the Judge fining the barrister £500 for contempt of court. The barrister appealed to the Court of Appeal. He was successful in that the Court of Appeal ruled that the judge had failed to follow the correct procedure and quashed the fine. But his success came at the cost of a public condemnation of his behaviour, coupled with what the barrister might have found faintly unctuous praise for the judge. Continue reading