The Teaching of Criminal Law

The pedagogical imperatives

Kris Gledhill, Ben Livings, Kris Gledhill, Ben Livings

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317553373
• Edition: 1
• Topic: Education
• Subtopic: Education General

The Teaching of Criminal Law provides the first considered discussion of the pedagogy that should inform the teaching of criminal law. It originates from a survey of criminal law courses in different parts of the English-speaking world which showed significant similarity across countries and over time. It also showed that many aspects of substantive law are neglected. This prompted the question of whether any real consideration had been given to criminal law course design. This book seeks to provide a critical mass of thought on how to secure an understanding of substantive criminal law, by examining the course content that best illustrates the thought process of a criminal lawyer, by presenting innovative approaches for securing active learning by students, and by demonstrating how criminal law can secure other worthwhile graduate attributes by introducing wider contexts.

This edited collection brings together contributions from academic teachers of criminal law from Australia, New Zealand, the United Kingdom, and Ireland who have considered issues of course design and often implemented them. Together, they examine several innovative approaches to the teaching of criminal law that have been adopted in a number of law schools around the world, both in teaching methodology and substantive content. The authors offer numerous suggestions for the design of a criminal law course that will ensure students gain useful insights into criminal law and its role in society.

This book helps fill the gap in research into criminal law pedagogy and demonstrates that there are alternative ways of delivering this core part of the law degree. As such, this book will be of key interest to researchers, academics and lecturers in the fields of criminal law, pedagogy and teaching methods.

Chapter 1
Introduction

Kris Gledhill and Ben Livings

Background research

The origin of this collection of essays is a survey carried out by Kris Gledhill (with the research assistance of Blair McKeown) to identify whether criminal law courses in different parts of the common law world exhibited any significant variety. The survey was prompted by a move from legal practice in England and Wales into the teaching of criminal law in New Zealand some 25 years after studying it as an undergraduate in England and finding that the module was both very familiar – involving general principles and coverage of homicide, assaults, sexual offences, and property offences – and also that it missed many areas of the substantive criminal law that were important in practice. If it was not a coincidence that two far apart law schools taught very similar courses separated by over quarter of a century, but more systemic, obvious questions would arise: why should this be so? Was it a good thing? Another thought naturally prompted would be whether there had been any real thought given to course design in relation to the important area of criminal law.

The methodology of the survey, carried out in 2010, was simple. Law school websites were searched for descriptions of their criminal law offerings. Where one was available, it was reviewed for whether a reference was made to the teaching of general principles and what specific offences were mentioned as being included on the syllabus, with particular note being made of the coverage of homicide, assaults, sexual assaults, and property offences. If the description did not express a particular matter, an assessment was made of whether language was consistent with a particular matter being covered, or unclear or inconsistent. For example, an indication that a course was taught with illustration through homicide and sexual assaults was viewed as inconsistent with the use of property offences; an indication that unspecified offences were taught was classified as unclear, but a reference to teaching “the principal offences” or similar phraseology was classified as being consistent with the teaching of the traditional range of homicide, assaults, sexual assaults, and property offences. Specific note was also made of references to the teaching of other offences as part of the course.

The outcome of the survey can be summarised as follows:

• (i) Australia: 30 law school course descriptions were found, and all of them referred to the teaching of general principles (though the University of New South Wales made this a reference to the so-called general principles). Twenty-five course descriptions referred to, or were consistent with, the teaching of homicide, 24 with other assaults, and 23 each with sexual offences and property offences. Where the descriptions were unclear, none was inconsistent with these offences being taught as part of the course.
  There was more significant reference than in other jurisdictions to other offences being taught: 10 course descriptions made reference to drugs offences, 4 to driving offences, 2 to public order offences, and 1 reference was made to regulatory offences.
• (ii) Canada: 15 course descriptions were located, all of which made express reference to general principles being taught, or used language that was consistent with this; however, there was much less specificity in terms of the references made to specific offences than in other common law jurisdictions. Indeed, there were only 2 express mentions of homicide and 2 of sexual offences. (A review of USA law schools was also done; this similarly found a focus on general principles, and homicide was often the only offence referred to expressly.)
• (iii) England and Wales (plus an English law degree at the University of Dundee): 39 course descriptions were found, of which 38 mentioned general principles or used equivalent language, 1 being unclear but not inconsistent. The express references to homicide, assaults, sexual assaults, and property offences were as follows: 30, 28, 29, 31. Others were unclear but not inconsistent, save that the course description for the Aston Business School LLB had a clear focus on corporate offending that seemed inconsistent with assaults and sexual offences (though it covered homicide in the form of corporate manslaughter).
  There were limited references to other courses, in the form of 4 references to public order or similar matters, 2 to drugs, and 1 each to prostitution, computer hacking, and trade descriptions.
• (iv) New Zealand: there were 5 law schools; all the course descriptions referred to general principles, though only that at Victoria University of Wellington referred specifically to offences against the person and property, while the others mentioned “indictable and selected other offences”. As will be seen in the account of the regulatory regime, this language comes from the prescription of the New Zealand Council for Legal Education (NZCLE). Knowledge acquired from the process in New Zealand, whereby the law schools take turns to assess each other’s examinations, and discussion with a representative from the NZCLE indicated that the teaching was consistent with the standard model.
• (v) Scotland: 7 course descriptions were located and each one mentioned or was consistent with the teaching of general principles, homicide, assaults, sexual assaults and property offences. There were also 4 express references to public order offences and 1 each to offences against morality, involving the course of justice, and drugs.

The survey also considered other common law jurisdictions, with similar results: Hong Kong, Papua New Guinea, Vanuatu, and the West Indies. In Ireland, 3 course descriptions were located, which were consistent with this but did not mention specific offences; the National University of Singapore mentioned that it would “mainly” use homicide offences. Where they were available, course descriptions for South African law schools and 1 in Namibia followed a similar pattern of the traditionally-taught offences.

In short, there was a significant level of similarity across jurisdictions (at least where it could be assessed – Canada, for example, being problematic in this regard, as was Northern Ireland); Australia had the only significant – though minority – use of a range of other offences, though there was a noticeable reference to public order matters in Scotland.

The survey was repeated in part in 2015 in the Australasian jurisdictions, where there had been several new law schools opened, and several schools in Australia adopted a JD model, with consequent opportunities for course design. The results from this shorter 2015 review were as follows:

• (i) Australia: 46 criminal law course descriptions were surveyed, with the increase coming both from new law schools and new JD courses at existing law schools. Of these, all used language that was consistent with general principles or, where it was too brief to tell, was not inconsistent with that; this time it was the University of Tasmania that regarded them as so-called general principles. It is also worth noting, given that there are several chapters in this collection that relate to a “law in context” approach to the teaching of criminal law – namely, using it to explain to students that the socio-political factors behind legal structures have to be understood – that 16 course descriptions referred expressly to such an approach being used. Fourteen seemed inconsistent in that they give the impression of the course presenting a more neutral “black-letter” law approach; the other 16 left the law in context approach as a possibility.
  In terms of offences covered, 24 course descriptions made reference to homicide and 5 made reference to matters such as “more significant indictable offences”. The other 17 were unclear. In relation to other offences against the person, 17 course descriptions were unclear, but the express references were as follows: assaults, 26; sexual assaults, 18; property offences, 27. The other course descriptions, respectively, 3, 11, and 2, used language that was consistent with the teaching of assaults, sexual assaults, and property.
  Other offences were mentioned: 13 course descriptions made reference to drug offences, 5 to driving offences, 5 to public order offences, 3 to the growing range of Commonwealth offences, 1 to anti-terrorism, and 1 to regulatory offences. Two course descriptions emphasised coverage of a broad range of offences.
• (ii) New Zealand: the 5 law schools that had been surveyed in 2010 remained as they had before, save that VUW had decided to use the same description as the others (“certain indictable offences”); this was perhaps strange, given that the Criminal Procedure Act 2011 (NZ) has abolished the classification of indictable and summary offences. The new AUT Law School did not make this mistake and also made reference to the offences taught: offences against the person and various commercial crimes, including those involving intellectual property.

Again, this revealed limited variety. This is reflected by the contents of the main textbooks, which follow the same pattern, though with occasional exceptions. Texts from earlier years can also be reviewed to assess whether there has been significant change over time. For example, the first edition of the Smith and Hogan cases and materials book, a staple in English teaching, published in 1980, covered the standard range of offences. The same authors’ textbook, which may be aimed at a wider audience, has covered public order and a limited range of road traffic offences since its first edition in 1965; initially, it also covered offences against public morals, the administration of justice, and the security of the state, but this coverage changed in the 1990s to coverage of obscenity. In contrast, the new Smith and Hogan’s Essentials of Criminal Law, published first in 2015, covers just the standard range as the casebook. Ancient books, such as J. H. Beale’s A Selection of Cases and Other Authorities on Criminal Law, published in 1894 by the Harvard Law Review Publishing Association before drug offending existed, have the same structure.

There is an obvious chicken and egg situation here: do texts reflect what is taught and so meet that need? Or do they limit the ability to teach other areas because the infrastructure is not present? Australian examples seem to suggest the latter: as both Gans and Steel record in their chapters in this collection, academics who wish to teach criminal law courses that differ from the standard approach can write textbooks to support that approach; as such, it is the decision to teach to a different format that comes first.

Posing the question to be explored

The similarity between the various course descriptions might be thought to allow only limited conclusions without any form of more detailed analysis of how courses are taught. At the same time, it seems proper to assume that an academic putting out a course description would seek to capture the essence of how he or she teaches the subject: on that basis, the course descriptions provide a reliable basis for suggesting that there is a stark similarity over jurisdictions. When combined with the structure of most textbooks, which offer little variety in coverage, it confirms that there is a question, noted at the outset, as to why there should be such similarity.

It also suggests a possible concern, should this similarity arise from a failure to consider whether variety in content produces benefits (or the focus on a small range of offences has significant opportunity costs). As to this, there is no good evidence of a process of discussion leading to a consensus as to the best way of teaching criminal law. Rather, there is little material to suggest that law school curricula in general or criminal law courses in particular are designed on a foundation of research that supports how best to secure an understanding of how criminal law operates.

There have been critiques: Alldridge’s suggestion that the “traditional” criminal law course was inadequate because it focussed too much on black-letter law questions of responsibility – a critique mentioned more than once in this collection – is 25 years old (Alldridge, 1990). More generally, and in the context of US law schools, Feinman and Feldman suggested, “Most legal educators are anti-intellectual about the area of their primary professional concern”; they suggested that there was an unwillingness even to reflect on the goals of legal education and the content of the curriculum. Part of the evidence they cited for this was that only 1 of 200 legal journals in the United States dealt regularly with pedagogy and that most of the literature was “anecdotal or platitudinous” (Feinman and Feldman, 1984). Simon and others writing in 1999 suggested that the call by Feinman and Feldman had essentially fallen on deaf ears (Simon et al., 1999). Cownie, focussing on England, suggested that the very structure of academia has led to a focus on doctrinal research, such that research on teaching and teaching methodology is a neglected poor cousin (Cownie, 1999).

A consequence of this may be a tendency for university academics to be influenced more by their own experiences as students than by a research-based analysis of how best to teach when it comes to matters such as the content of a core course: familiarity substitutes for academic rigour. There is no doubt there has been some progress, though some would argue that it has been inadequate and others would suggest that a focus on what James terms ‘pedagogicalism’, whilst welcome in many respects, has led to an uncritical acceptance of what constitutes ‘good teaching’ (2004). In terms of the places for scholarship to be published, in the USA, Blasi recorded that an explosion of law reviews in the United States up to 1995 had not produced an additional one dedicated to law school pedagogy (Blasi, 1995, p. 397). Outside the United States, the United Kingdoms’ the Law Teacher, from the Association of Law Teachers, is approaching its fiftieth volume and has been joined by the Legal Education Review, which commenced publication in Australia in 1989; both journals produce a significant amount of work relating to pedagogy. But the point remains that there is a limited range of scholarship compared to that on doctrine. Critics can properly argue that this is problematic in light of the significant range of educational scholarship, including as to such matters as the importance of active rather than passive learning. (Blasi, 1995; Schwartz, 2001).

A clear exception to this is the area of clinical legal education, with journals which are replete with material relating to pedagogy and the value of experiential education as a form of active learning. This suggests an explanation for the deficit in other parts of the legal curriculum: clinical legal educators have been able to start with a relatively blank canvas and follow a research-informed process of course design, identifying the graduate attributes they wish to secure, and constructing a course to achieve that. In contrast, in established courses, lecturers will invariably walk into a pre-existing syllabus, familiar to them from their law school days, which may reduce the need that exists in a freshly minted course to think through and plan a course from the bottom-up. But when a course is a central part of any degree, as criminal law invariably is, the need for such informed planning is all the much greater.

Of course, it may be that this is not teaching that is stuck in a time warp. A consistency of approach over jurisdictions and through time in relation to the content of the criminal law curriculum may reflect the fact that the course content is (and since it became settled has been) satisfactory for the purposes of legal education at the academic stage. Nevertheless, it should always be a matter for consideration and discussion as to whether the content of a course remains fit for purpose: this means that, first, the purpose must be identified and, second, there should be analysis of the success of a course in securing this purpose. If this validates the typical structure, that is all well and good, but if it does not, or suggests that the traditional course is neither unique in achieving this or does not do so as well as alternatives, there may be reason to support change.

Regulatory constraints

Another factor that might impact a syllabus is the regulation of content by the legal profession – a quid pro quo for allowing the degree to play its role in the process of admission to the profession. To the extent that this conditions the content of a criminal law offering to the traditional structure, it might also be suggested that this confirms its value, as it has the collective experience of the profession behind it. However, unless there has been a considered process of arriving at the content set by regulation, exactly the same points as have been made earlier apply in relation to this constraint.

The interests of the profession and the academy should align. Both want to have graduates who understand substantive criminal law. For the profession, this understanding is necessary so that lawyers can apply the law, develop it through appellate argument, and contribute to law reform, as the profession regularly does. Legal academics wish for that outcome in light of the importance of having both graduates who go into practice and those who go into policy positions, as well as for the more purely academic outcome of securing an understanding of the law as a whole even if the graduate heads into a different direction. Given this commonality of interest, pedagogically valid reasons for suggesting that a different structure to the academic criminal law course can secure this understanding of substantive criminal law should be persuasive to the profession’s regulators as well. This in turn means that academia cannot simply adopt a stance of passive acceptance of what should be taught on the basis that the regulators prescribe it; rather, there should be discussion between the legal academy and profession as to the content of any prescription.

In any event, the approach to regulation is rarely prescriptive. In the countries from which chapter authors come, the framework is as follows. In New Zealand, Part 8 of the Lawyers and Conveyancers Act 2006 requires the New Zealand Council for Legal Education to set the standards for admission to the legal profession. Sections 274, 278, and 281 of the statute are key and are structured on the basis that those seeking admission have undertaken an academic law degree followed by a professional training course: there is no method for New Zealand students to take a non-law degree followed by a condensed introductory professional exam, as in England and Wales, though law students often take conjoint degrees and thereby undertake tertiary-level education outside law school.

Section 278 of the statute allows the Council to make regulations, under which it has made the Professional Examinations in Law Regulations 2008, which set out the requirements for admission to the fused profession of barrister and solicitor in New Zealand. As consolidated on 1 December 2014, the 2008 Regulations provide that the academic law degree required has to have been approved as a whole by the NZCLE (reg 3(1)(a)), and it must include courses on the legal system, contract, torts, criminal law, public law, and property law (reg 3(1)(b)). The content of the courses is also regulated (reg 3(2) and Schedule 1), but this is done in a way that provides no real restriction. The prescription for criminal law is in the following terms (in Schedule 1): “The general principles of criminal liability. The law relating to indictable and other selected offences chargeable under New Zealand law. Procedure on indictment and summary procedure (excluding Evidence)”. As has already been noted, there has been no such thing as an indictable offence in New Zealand since the Criminal Procedure Act 2011 removed that previous classification. The important point for present purposes is that this prescription allows the law school...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of contributors
• Foreword
• 1 Introduction
• 2 Building block or stumbling block? Teaching actus reus and mens rea in criminal law
• 3 Teaching the elements of crimes
• 4 Enhancing interactivity in the teaching of criminal law: Using response technology in the lecture theatre
• 5 Using problem-based learning to enhance the study of criminal law
• 6 Turning criminal law upside down
• 7 Criminal law pedagogy and the Australian state codes
• 8 Teaching criminal law as statutory interpretation
• 9 Shaking the foundations: Criminal law as a means of critiquing the assumptions of the centrality of doctrine in law
• 10 The challenges and benefits of integrating criminal law, litigation and evidence
• 11 ‘Crime and the criminal process’: Challenging traditions, breaking boundaries
• 12 Context and connection
• 13 Teaching and learning criminal law ‘in context’: Taking ‘context’ seriously
• 14 Teaching indigenous and minority students and perspectives in criminal law
• 15 Introducing feminist legal jurisprudence through the teaching of criminal law
• 16 Choice
• 17 The absence of regulatory crime from the criminal law curriculum
• 18 Conclusion: Looking to the future
• Index