Case Ref. 2017/KU
In the UK Supreme Court On appeal from the Court of Appeal (Criminal Division) IN THE CASE Regina v Obi-Wan BRIEF TO COUNSEL Mr. Obi-Wan is an Asian man convicted by the Crown Court in Kingston for a number of indictable offences, including culturally-oriented crimes. The Court of Appeal (Criminal Division) confirmed the decision. At first instance, the jury consisted of black and white men and women of mixed ethnical background. Nevertheless, there was no Asian juror. Preliminarily, Mr. Obi-Wan’s counsel applied to the judge for a jury including at least one member of Asian ethnical background. The judge refused the application. The case proved to be very complex with regard to both law and facts. Some of the defence’s arguments were based on ethnical and cultural issues: they submitted that Mr. Obi-Wan acted the way he did because of his culture and ethnicity and this should amount to a defence to the offences he was accused of having committed. At the end of the first instance trial, the judge directed the jury on the law and told them the following words: “On the basis of the law as I just expounded it, and given the impressive amount of evidence provided by the prosecutor on the facts committed by the defendant, it is my firmest belief that justice demands you to find the defendant guilty. The decision is up to your conscience, but in the light of the law and the facts as proved in trial, your conscience in this case cannot but go in one way: guilty!”. The jury found the defendant guilty. The Court of Appeal (Criminal Division) confirmed the decision of the Crown Court for the following reasons: 1. the judge was right in refusing an application for a jury including at least one member of the Asian community. As stated in Regina v Ford (Royston)  3 W.L.R. 762, a judge has no discretion to discharge a whole panel or part panel on grounds of racial composition of a particular panel or part panel. Similarly, in the absence of evidence of specific bias, ethnic origins could not found a valid ground for challenge to an individual juror.
2. A judge may give his opinion to the jury on a question of fact and express it as strongly as the circumstances permit, so long as he gives it as advice and not as direction. The trial judge indicated a fairly strong opinion in the present case at the end of his summing up, but he also expressly reminded the jury that “the decision is up to their conscience”. The precedent set by Regina v Wang  UKHL 9, invoked by the Mr. Obi-Wan’s counsel does not apply, as the facts of this case are different, as, unlike in Regina v Wang, the judge did not actually direct the jury on the facts of the case, he merely advised them. Mr. Obi-Wan has now appealed the Court of Appeal’s decision to the House of Lord on the following grounds. 1. The Court of Appeal was wrong in following R v Ford. An entirely non-Asian jury could not understand the cultural, mental and emotional background of the defendant, particularly in this case, which, unlike the offence considered in R v Ford, is so culturallybased. (To be addressed by the Lead Appellant/Respondent) 2. The Court of Appeal was wrong in distinguishing R v Wang. Despite the words of the judge were, of course, different in this case, the issue is exactly the same as in both cases the judge directed the jury as to the facts of the case. (To be addressed by the Junior Appellant/Respondent)
1.1. Introduction, date and place. This assessment consists in a videoed mooting exercise. Students will be grouped in different groups of four mooters, each including two moot teams of two students each, one representing the defence counsel (appellant) and one the prosecution (respondent). Due to the numbers, exceptionally two team will be made of 3 students. This team will have one Lead Appellant/Respondent and two Juniors. The Juniors are required therefore to discuss different aspects of the same legal problem. The mooting will take place on Friday, 31th March 2017 in room KHFL2002 and on Thursday, 6th April 2017 in room KHFL2002 and at the times indicated in the schedule reported below (see par. 3). Each group will be assigned a particular time slot to perform their own mooting. It is essential to be punctual in order for the other students’ performances not to be delayed. If you cannot attend on that day and you can provide evidence of serious reasons preventing you from attending, please be sure you apply for mitigating circumstances contacting Eleni George, your course administrator.
1.2. Preparation Be sure you contact your teammate and you arrange your preparation together.
To contact each other use the KU numbers listed with the names in the schedule below. Every student’s KU email address is K………@kingston.ac.uk (fill the gap with the KU number). In your own time, before the date of the mooting, you are required to prepare with your teammate to moot, according to the theoretical and practical frameworks and notions delivered during the seminars (particularly, seminars 10 and 20) and illustrated in the relevant study materials (particularly, the books Snape and Watt, How to Moot, 2010 and Holland and Webb, Learning Legal Rules, 2016). Teams will have to decide which of the two teammate will be the Lead Appellant and the Junior Appellant, if representing the defendant, or Lead Respondent and the Junior Respondent, if representing the prosecution, and organise their roles and submissions accordingly. Lead Appellants and Respondents will deal with ground of appeal n. 1. Junior Appellants and Respondents will deal with ground of appeal n. 2. The Supreme Court justices will be represented by lecturers, but no judgement will be delivered.
1.3. Mooting On the day of the mooting, students will present their case before the moot court. Particularly, each student will have to submit his arguments orally to the moot Court, relying on the research he/she has made on the legal issue he/she is called to deal with and on the structure and the arguments prepared in advance. Such arguments and presentation should be developed making the best possible use of:
• the knowledge of the English legal system – and, particularly, of the system of precedent, the court system and legal interpretation; • the skills and methodologies acquired during the module, such as, researching and reading legal books/articles, researching and reading judicial decisions and legislation, discussing and analysing legal cases, structuring and presenting legal arguments etc.; • the relevant legal terminology. Please rely on the reading materials on mooting listed in the handbook and posted online in order to prepare adequately to mooting. A full and extensive guidance is provided by the book Snape and Watt, How to Moot, 2010: you are required to study the book. Please refer to Holland and Webb, Learning Legal Rules, 2016 in order to understand how to structure and develop legal arguments. It is advisable that each mooter prepares a so-called ‘skeleton argument’ to serve as a main structure for his/her presentation. It is not advisable to prepare a written speech, as this tend to constrain the presentation and reduce its effectiveness.
Students are required to show knowledge of and put in practice all the relevant advices provided during the seminars on mooting. In the mooting students are required to apply both the theoretical knowledge on the English Legal System and the research methods and presentation skills learnt in the module. The time available for each presentation is 10 minutes per person. No reply is allowed. Be prepared to be interrupted by the judges, who can make you questions on the points of your arguments. The exercise will be videoed so to allow an appropriate and fair assessment.
2. ASSESSMENT CRITERIA You are assessed on your knowledge of the English legal system and your ability to do research, to select and use relevant cases and to develop, structure, organise and present orally a legal argument, in appropriate legal terminology and court etiquette. • Knowledge and understanding o Knowledge and understanding of the relevant features of the English legal system (precedent, the court system, legal interpretation etc.) o Ability to detect the relevant problems o Ability to explain the relevant legal, theoretical and practical frameworks • Research and use of authority o Ability to find relevant primary sources (legislation, statutory instruments, case law, etc.) and secondary sources (books, academic articles etc.) o Ability to select relevant sources and cite and use them appropriately in your arguments • Structure and strength of arguments o Ability to understand legal arguments o Ability to develop and organise persuasive legal arguments in a coherent structure • Presentation and terminology o Ability to present legal arguments o Appropriate use of English language o Appropriate use of relevant legal terminology o Familiarity with court terminology and etiquette
2.1. Marks and feedback Marks will be assigned individually (not to teams or groups). Extensive written feedback will be released as soon as possible after the mooting, in order to enable students to fully understand the assessment of their own performances.