Summer Law School Advanced Reading
The following work is designed to prepare you for the Summer Law School. Do not worry
if you find the reading difficult, or if there are things that you don’t understand. We will
discuss the articles further in class and they are chosen to challenge you. Once you have
read each article, try to answer as many of the questions as you can.
1. The role of the jury in the criminal justice system
(a) “ Why juries work best”
Read the article and answer the following questions:
i.
What did the Ministry of Justice report conclude?
ii.
What reasons does Paul Mendelle give to support the use of juries?
Why juries work best
Despite the failings of individual jurors, the system is reliable – and new
evidence proves it
Paul Mendelle, Sunday 21 February 2010
In the quarter of a century I've been practising law, I've seen all sorts of jurors, from the highly
educated to those who could not read the words of the oath, from copious note-takers to those
who fought a battle to stay awake (usually losing it during my speech), from those who laughed
just before convicting to those who cried as they acquitted. I long ago gave up trying to read
juries or predict their verdicts. So if jury trial seems so haphazard, why do I remain such a big
fan of it?
First and foremost, because despite the failings of individual jurors, juries get it right most of the
time. They make the right decisions on the evidence and come to the right verdicts. Not every
time, of course, they are not infallible – how could they be, no humans are, not even judges, but
they do get it right most of the time.
Don't just take my word for it. The report from the Ministry of Justice published last week, the
culmination of 18 months of meticulous research into over half a million cases heard in England
and Wales, shows juries are fair, efficient and effective. They convict almost two-thirds of those
they try, they convict more than they acquit in rape, they do not exhibit any racial bias and they
only fail to reach verdicts in less than 1% of cases. So juries do a good job and now we have
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the facts and figures to prove it. Plainly that must be the first requirement of jury trial, whatever
else may be its value.
Think back to all the major miscarriages of justice of the last 50 years and you'd be hard
pressed to find one where the fault lay with the jury. Overwhelmingly the miscarriages have
been due to failures in other parts of the system – by police, by experts, by witnesses or by
lawyers. If the evidence put before the jury is flawed, because it is tainted by impropriety,
wrongly interpreted, inaccurate or incomplete, then you will get a flawed verdict.
But that juries work well is not the only reason to support trial by jury. Equally important is the
fact that juries are one of the most democratic aspects of the constitution; they are democracy
in action every day of the week, not just once every four or five years. There is no other part of
the constitution that is so open to the public, where ordinary people participate in decisions of
such immediate importance and wield real power. There are jurors settling the fates of their
fellow citizens in crown courts up and down the country every day of the week, determining by
their verdicts whether or not defendants are guilty of the most serious crimes of violence and
dishonesty such as murder, rape, robbery and fraud.
Juries bring with them the freshness and insights of those who are new to the system and have
not become case-hardened or cynical. For anyone accused of crime, the truthful defence can
be no different from the lying one – I wasn't there, I thought he was going to hit me, she
consented, I thought I was being honest, I didn't know the drugs were there. There is a limit to
the ways in which you can be innocent. But if juries are not cynical, neither are they naive, and it
is a rare jury that cannot detect where the truth lies when faced with the conflicting accounts of
witnesses.
Because that is the advantage of a jury of 12: it reduces the chance that a mistake of fact will be
made. It may be that one or two on the jury don't believe the witness or the defendant but that
all 12 will be wrong is unlikely. Those who argue for trial by judge will have to accept that judges
make mistakes and they are not infallible. But what if the judge makes a mistake of fact,
chooses to believe the wrong witness, one that only a minority of the jurors would have
believed? There is no remedy for that kind of mistake.
There is another powerful reason why trial by jury is necessary. In this age of mass media, most
people derive their knowledge of what goes on in a court from what they read in the paper and
see on television. But no newspaper report or TV item can possibly convey all the detail and
subtlety of the hours of evidence given in court. An editing process is taking place: even the
most impartial reporter has to filter the evidence. If all that citizens know of the criminal justice
system is what they read in the papers and see on TV, they are going to get a misleading
impression of how it works and that misleading impression can corrode their faith in the system.
You may wonder when you read the newspaper report of a case how a jury could have arrived
at its verdicts, but you will only have heard a fraction of the evidence that the jury heard.
When Frances Inglis and Kay Gilderdale were tried for unlawfully killing their children, there was
fierce public debate about the merits of the prosecutions, but the only people who heard all the
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evidence were the jurors, and the differing verdicts reflected the differing evidence in two cases
that were superficially similar.
How often was I asked in the aftermath of the Munir Hussain trial whether the law on selfdefence was out of touch with the public view, despite the fact that 12 members of the public
sitting on the jury heard all the evidence, including the facts of the burglary and the characters
of the participants, and were sure that the defendants had gone beyond the bounds of selfdefence?
By bringing ordinary citizens into the system and placing them at the very heart of the decisionmaking process, trial by jury exposes the criminal justice system to their scrutiny while ensuring
they gain first-hand experience of how that system works. Trial by jury helps the criminal justice
system reflect the values and standards of the general public. It's vital for the health of the
criminal justice system that citizens participate in it and it is vital for democracy that they do,
which might explain why politicians are always seeking to limit that participation.
At the start of every criminal trial, the jurors take an oath to try the defendant "and give a true
verdict according to the evidence". What last week's report shows beyond reasonable doubt is
that is exactly what juries do and, for all our sakes, they must be allowed to carry on doing it.
(b) “Judge-only trials should be an option for serious organised crime”
Read the article and answer the following questions:
i.
What problems does Louis Blom-Cooper highlight with juries?
ii.
What changes does he propose? Do you agree with his proposals?
Judge-only trials should be an option for
serious organised crimes
Trial by jury has become a central feature of the coalition agreement policy on
civil liberties - but is it time for reform?
Louis Blom-Cooper Friday 21 May 2010
There is nothing illiberal about questioning the value of the jury system of criminal justice. It is
more a question of deciding whether trial by judge and jury in the crown court for more serious
criminal offences is as good if not better than any alternative, such as trial by judge alone, or
with assessors. The experience of the Diplock courts (trial by judge alone) in Northern Ireland
since 1973 for terrorist offences suggests a valuable option, at least for serious organised
crimes.
There is no constitutional, or indeed any form of general, right to trial by judge and jury. There is
only an unqualified obligation to submit to it in indictable cases, which form only about 2% of all
criminal trials, although the proponents of the system regard the institution of the jury as a
fundamental principle of English justice.
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Interestingly, in Ireland where there is a constitutional right to jury trial, the director of public
prosecutions has recently suggested amending the constitution and permitting a professional
tribunal for serious fraud offences. Such a change was recommended in England by the Roskill
committee on fraud trials in 1986, with one dissenter. The outgoing Labour administration
attempted to legislate accordingly. The proposal to activate section 43 of the Criminal Justice
Act 2003 was vigorously and successfully opposed. But with the first non-jury trial earlier this
year, a high-profile robbery case, for the exceptional reason of suspected jury-nobbling, the
issue is once again on the political agenda.
What then are the virtues and vices of a very English institution which has for a long time been
a powerful symbol in the criminal justice system? The system needs to be judged through 21st
century spectacles.
Forty-five years ago a departmental committee on jury service under the chairmanship of
a law lord, Lord Morris of Borth-y-Gest, concluded its report: "It is vitally important that [the jury]
should be a fair, workable system for ensuring that law and order are maintained, that justice is
done, and that liberties are prescribed. In saying this we would not wish to prejudice any future
inquiry into the merits of the jury system, as to which we realise that there is room for divergent
views." The divergent views are increasingly discernible, the darkness of jury oracularity in
decision-making made more visible with recent research and court decisions on article 6 of the
European convention on human rights.
Next month, 17 judges of the grand chamber in Strasbourg will deliver their judgment in a case
from Belgium in which the European court of human rights had indicated that the absence of a
reasoned verdict by a criminal court violated the fair trial provision of article 6. The fact that the
jury's idecision of guilty or not guilty is unanswerable and unaccountable for is now wellrecognised as a deficiency in a sound system of criminal justice - so much so that the judicial
studies board has produced a "crown court bench book" of 395 pages to provide greater
assistance to juries in performing their task accurately and confidently.
Recent research by Prof Cheryl Thomas concluded that juries were fair and the primary finding
was that there was no discernible bias on the grounds of ethnicity. But worryingly, the research
concluded that a high proportion of jurors said after their service that they could not confirm
whether they had fully understood the directions from the trial judge in the summing-up. The
author of the bench book, Lord Justice Pitchford, has aptly commented that the researcher
might helpfully have asked whether judges are fair to jurors.
The higher judiciary's aim, instilled by the lord chief justice, Lord Judge, is keen to enhance the
quality of summings-up to jurors. This can only be beneficial to minimise the lack of a reasoned
verdict, but however much the chemistry between judge and jury is improved, there will always
remain the puzzle of how much a jury appreciates what it is told and faithfully acts upon it.
The crux of the matter is that jurors take an oath to try the case upon the admissible evidence.
Do jurors loyally stick to their sworn task and not consult the internet on high-profile cases, or
disregard the law and produce a perverse verdict?
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There is every reason for retaining the jury system, if only because the British public appears to
have confidence in it. But advances in technology, communication and science, together with
the complexity and sophistication of today's criminal law, the intricacies of admissible evidence
and the length and cost of jury trial, should lead any politician or legislator to consider
modifications of jury trial.
There are two modifications that should at least be examined with a view to reform. The
experience in Northern Ireland over three decades suggests that serious organised crimes can
effectively and efficiently be tried before a professional court - a single judge or perhaps three
judges. The Roskill committee of 1986 favoured a tribunal for serious fraud of a judge and
assessors.
The second change would be to operate a system of waiver - that is the prosecutor and/or
defendant would have the right to apply for the alternative to jury trial. The court would have to
decide the question, even if both parties agreed that they wanted a professional tribunal.
The waiver system has been adopted in many Anglo-Saxon judicial systems - the US, Canada,
Australia and New Zealand. Sir Robin Auld, a retired lord justice of appeal, in his review of the
courts (October 2001) recommended that defendants should be able to opt for trial by judge
alone in all cases tried on indictment. The recommendation, wise and sensible in
acknowledging a defendant's choice of mode of trial, was not accepted by the Labour
administration. It should be revived for consideration by the coalition government. which is
ostensibly committed to liberal reform.
• Sir Louis Blom-Cooper QC is a barrister specialising in public and administrative law and was
a deputy high court judge from 1992 to 1996.
(c) “The British Jury”, Fitzpatrick (2010)
Read the following extracts from Fitzpatrick’s article:
i.
Which criminal cases involve trial by jury?
ii.
What does Fitzpatrick mean when he describes juries as democratic?
iii.
Why is it important for juries to be representative?
iv.
Are juries capable of understanding the law?
v.
What evidence is there that juries rely on inadmissible or irrelevant factors?
vi.
How are juries affected by pre-trial media?
Fitzpatrick (2010)
In England and Wales criminal offences are categorised into three classes. The least serious ‘summary’
offences are triable only in the Magistrates’ Court in front of a bench of two or three magistrates. Offences
classified as ‘indictable’, consisting of the most serious criminal offences, must be tried by judge and jury
in the Crown Court. Straddling these two classifications are a large group of hybrid offences which can be
tried ‘either-way’, meaning that they can be tried in either court and thus by either the magistrates or a
judge and jury. However, only 1% of defendants have their fate determined by a jury, with the vast
majority of proceedings, over 95%, being concluded in the Magistrates’ Court…
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The jury system and democracy are inter-related, and both founded on one of the most important
principles in any democracy; the idea of a necessary connection between the law and the outlook of people.
The law should incorporate the perspectives, mores and preferences of whatever community it purports to
serve. In this respect the jury system prevents the application of unpopular or oppressive laws by acting as
a filter mechanism; a group of twelve randomly selected people are less likely to apply an oppressive law
than a judge who probably does not share the same outlook as the general population…
A facet of the ‘democracy’ rationale underlying the jury system is the concept of public participation. The
legal system is often viewed as an elitist section of society, and its lack of transparency is not conducive to
gaining public confidence. The jury system injects the element of popular opinion into criminal trials,
making the communities own standards of justice and morality the arbiter of guilt. Drawing the citizen
into the criminal process is not only responsible in our democratic society, but it is the process which
legitimises the trial and the verdict in the eyes of the public. Such moral credibility would not be apparent
if the criminal process was solely dictated by judges who, although formally independent in Britain, will
inevitably be associated with the ‘Establishment’…
An inevitable concern is that a biased juror will disregard any evidence of guilt or innocence and base their
verdict on nothing more than a hunch or, at worst, something more sinister. One stream of thought
acknowledges this problem yet accepts that it is the price to pay for an institution involving lay citizen
participation in a criminal justice system dominated by police, lawyers and judges. I sympathise with this
viewpoint on the basis that any mode of trial will have inherent drawbacks and a problem free justice
system is unrealistic. One commentator has, however, refuted the general proposition that individual bias
will pervade the jury room, arguing that such individual errors will be discovered and discarded via a
process of group deliberation. It follows that the collective knowledge and experience of the twelve jurors
will deliver a final verdict forged from a shared understanding of the case and that this transcendent
understanding is the putative benefit of the deliberation process. Furthermore, group deliberation forces
jurors to realise that there are different ways of interpreting the same facts, whereas a sole judge does not
have this vivid reminder that alternative interpretations are possible. This argument is inherently
dependent on a representative jury as a group of jurors with similar backgrounds will be unlikely to
appreciate the possible alternatives in the case, and thus any existing bias will not only survive but could
potentially thrive. Nonetheless, although not an exact microcosm of the people, juries are generally
representative of their communities and thus the concept of group deliberation holds strong as a
justification for trial by jury…
The classic view of the jury is of a representative cross section of the public who hold the necessary
common sense to make a reasoned decision. In an ideal legal system this would be the case, however
recent research puts the competence of the jury into question. A common criticism of the system was that
juries were made up of the unemployed and the retired. Nowadays anybody can serve on jury provided
they are on the electoral role. This has increased the number of professionals available for jury service.
Nonetheless, jurors can still be excused if cause is shown and it will depend on how strictly applications for
excusal are scrutinised to nullify the myth that juries are unrepresentative of the middle classes.
Furthermore, it has often been argued that jury members are less intelligent than a truly random sample
of twelve citizens and such an argument has, to an extent, been validated by common instances of juror
incompetence. Darbyshire’s research has shown that, although juries try in earnest to follow instructions,
they invariably have a great deal of difficulty attempting to understand them. Ellsworth came to similar
conclusions on jurors’ ability to comprehend the law. Such conclusions were based on tests done by mock
jurors based on real evidence. Less than fifty percent of jurors’ references to the law were correct and in
deliberation the most forcefully expressed opinion on the law prevailed, notwithstanding its correctness.
Furthermore, in Scholfield, after a verdict of guilty to affray had been returned a juror confided to a bailiff
that the jury had not understood affray. The appeal was dismissed on the basis that it would have been
necessary to lift the veil of secrecy guarding jury deliberations. This is a very unsatisfactory situation as the
accused was convicted by a jury who did not understand the relevant law, and such a conviction cannot be
deemed safe. This misunderstanding was only made apparent by a conscientious juror and as Smith
comments, many verdicts must be passed in this most unsatisfactory of ways. The above examples of juror
incompetence do not bode well for the future of a jury system, and give credence to the prediction of
Mannheim, that “to overstrain the responsibilities of the ordinary public is not democratic and can only
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lead to a general lowering of standards”…
Jury deliberations are shrouded in secrecy and thus it is generally impossible to tell if the jury took
account of irrelevant or inadmissible factors. Despite this severe restriction, recent research, coupled with
rare instances of transparency into the jury room, have revealed what the proponents of the jury system do
not want to know. Jurors may be disproportionately influenced by evidence they are told to ignore, even to
the extent that they afford it more weight than the evidence they are directed to base their decision on.
Moreover, juries will give undue recognition to previous convictions, a view which has been evidenced by
Devons in his real life portrayal of jury deliberation. Devons recalls one jury discussion which, when the
previous convictions were inadvertently exposed, the jury convicted without discussion of the evidence.
This is a recurring theme which arose again in Thompson where, in between the defendant’s conviction
and his sentence, a juror revealed to a member of the public that the jurors originally wanted to acquit yet
were only persuaded to convict after viewing the list of previous convictions produced by the foreman. It
was held, on appeal, that the Court had no right to inquire into deliberations and the conviction was
upheld, showing that even where there is cogent evidence of an improper conviction the court will uphold
jury secrecy.
Research also shows that it is not just previous convictions that jurors take into account, but a wide range
of extra-curial factors, ranging from the unappealing characteristics of the prosecution witness to the
attractiveness of counsel…
The reliance on irrelevant or inadmissible considerations distorts the fact finding ability of juries.
However, the existence of bias can have a similar distorting affect on the trial. It has been argued that
conditions on the day of the trial, such as unreasonable behaviour on the part of the judge or counsel, or
extra-legal factors such as long delays and uncomfortable heat in the courtroom, can create a general bias
amongst the jury. Jurors were more likely to attribute guilt to the defendant when his attorney was the
source of annoyance and least guilt when the prosecutor was the irritator. However, this referred to jurors’
attitudes pre-deliberation, and the research showed that the deliberation process focused responses
towards the objective value of the evidence and away from the bias induced by trial conditions.
Nonetheless, although general bias, created on the day of trial, may be ameliorated via straightforward
discussion of the evidence, this may not nullify specific bias inherent in jurors before the day of trial, such
as racism, and it is to this issue which I now turn. It is frequently argued that ethnic minorities are underrepresented on juries in Britain. In retort Thomas claims that this is a myth, with there being no
significant difference between the proportion of ethnic jurors serving and the ethnic population levels in
the juror catchment area for each court. However, the same commentator admits that in some Crown
Courts the lack of ethnic representation remains a problem, which is magnified due to the high proportion
of ethnic defendants tried there, often for racially-aggravated crimes. It is obvious that racial bias is a
potential problem when an ethnic defendant is tried by an all white jury, and incidences of such bias have
raised their ugly heads in recent times. In Mirza it was revealed to counsel, after the verdict has been
delivered, that racial bias had been present in the jury room, with the defendant being accused of a
‘devious ploy’ on the basis that he had given evidence via an interpreter. Due to the confines of the
Contempt of Court Act such bias could not be investigated even when there is a possibility of a miscarriage
of justice. The Courts have also shown that, even when juror bias is revealed before the verdict, juries will
not be discharged. Thus in Gregory v U.K a juror sent a note to the judge reading ‘jury showing racial
overtones, one member to be excused’. On reading this the judge re-directed the jury that any prejudice
must be put to the back of their minds and resumed proceedings. The black defendant was duly convicted
and this was held to be legitimate by the European Court of Human Rights. In light of evidence showing
that any judicial warnings will be unlikely to affect prejudice, this is an unsatisfactory safeguard for ethnic
defendants…From the perspective of a defendant convicted on the basis of deliberations stricken with
incompetence, prejudice or malaise, the lamp that shows that freedom lives, the bastion of liberty which is
a hallmark of democracy, will have offered little glimmer of hope.
In a media-saturated society jurors will often be pre-exposed to material referring to the case they are
trying. Inevitably some will pay heed to this external material when deliberating, and in cases where the
press orchestrate a campaign of hostility towards one defendant, this can interfere with their right to a fair
trial. In Britain the law of contempt is relied on as a means of fortifying media discipline. However, in
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light of the importance given to the principle of open justice, the media are infrequently constrained from
publishing trial proceedings. Open justice entails transparency of court proceedings and the fairness of
trials in general are dependent on the openness of court hearings. Furthermore, the protective measures
under the contempt legislation require a press report to have created a substantial risk of serious
prejudice. Thus a very high threshold has to be reached in order to engage the provisions. In determining
what is ‘substantial’ the courts have placed great emphasis on the ‘fade factor’ and it would seem that the
report has to be published contemporaneously with trial proceedings to create such a risk. In addition to
this, the Attorney General can only take action against a publisher if a specific article satisfied the
threshold of section 2 (2). However, in reality the risk to a defendant’s fair trial usually results from an
accumulation of publicity and thus it will be difficult to determine which publisher to take action against.
Levi opines that such a lacuna in the law undermines the effectiveness of attempts to deter prejudicial
press coverage and forces the responsibility for dealing with the problems onto the trial judge. To
counter-act the effects of such extrinsic material the judge will often use neutralising measures such as
directions to the jury. However, as was mentioned above, judicial instructions to ignore pre-judicial
material are ineffective, and there is research to the effect that instructions to ignore such publicity are
likely to actually increase, not decrease, the chances of a conviction. Therefore, due to the great weight
given to the freedom of the press and transparency in criminal trials, coupled with leniency of the
contempt provisions, jurors will frequently come across pre-judicial material, and although they may
adhere strictly to their instructions, this is far from a guarantee, with defendants being left in an extremely
vulnerable position if faced by a hostile media and a susceptible jury.
2. Jurisprudence
(a) India overturns 148-year old law banning homosexuality
Read the news article below and consider the following questions:
i.
What arguments were made by those who wanted the ban to continue?
ii.
Is law influenced by ideas of morality within a particular society?
iii.
Is it fair for the law to reflect the morality of a society?
India overturns 148-year-old law banning
homosexuality
An Indian court has overturned a 148-year-old colonial law banning
homosexual relationships saying it was an affront to human dignity.
By Dean Nelson in New Delhi
Published: 7:31PM BST 02 Jul 2009
Members of the gay community pose during a rally to celebrate Indian court's overturning a 148-year-old
colonial law banning homosexual relationships
Campaigners described the ruling as "India's Stonewall moment," a reference to historic riots by
homosexuals in New York which are regarded as the inspiration of the modern gay rights movement.
Same-sex couples with rainbow-painted faces kissed openly at Delhi's Jantar Mantar monument in
jubilant scenes which would have been unthinkable in conservative India before the ban was lifted.
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The ban on homosexual relations was introduced by British colonial officials and describes sexual
intercourse between people of the same sex as an "unnatural offence."
Indian government officials maintained the British line until shortly after the Congress Party returned to
power with a stronger grip on government.
Senior officials had said same sex relationships were "indecent," against Indian values, and if
decriminalized would lead to an increase in delinquent behaviour and pose a health hazard to society.
"Every citizen has the right to lead a decent and moral life in society and the right would be violated if
such behaviour is legalised in the country," officials had submitted.
Their argument was rejected yesterday by Delhi's High Court judges who said the ban denied gays equal
rights and was an affront to human dignity.
"In our view Indian Constitutional Law does not permit the statutory criminal law to be held captive by
the popular misconception of who the LGBTs (lesbian gay bisexual transgender) are. It cannot be
forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will
foster dignity of every individual," the judges commented.
Their ruling will take precedence over India's Penal Code until the parliament passes a new law on
equality.
Celebrating campaigners, who until the ruling could have faced life sentences for having same sex
relationships, said the historic decision for Indian homosexuals represented a vital first step in a new
challenge to secure the same financial and social rights enjoyed by heterosexual couples.
"This is a victory for human rights not just homosexuals. It's a remarkable step. This will defiantly
encourage people to come out openly and express their sexual preferences. But this is just a milestone we
have achieved. Now we will fight for the right to same sex marriages, adoption of kids, right to own
property. The society will now accept us," said Manish Kabir, a gay rights activist.
Religious groups, including leading muslim clerics and catholic clergymen, said despite the judgment,
they still regarded homosexuality as immoral.
Ahmed Bukhari, the chief imam at Delhi's historic Jama Masjid mosque, said: "This is absolutely wrong.
We will not accept any such law."
In fact India has had mixed feelings towards homosexuals. Hundreds of thousands of 'hijras' or eunuchs,
mainly homosexual men who have been castrated and dress as women, are revered and their blessings are
sought by conservative families for weddings and new births.
Manvendra Singh Gohil, the scion of the Rajpipla royal family, is still set to be India's first openly
homosexual maharajah after his family reconciled with him. When he first came out, following a nervous
breakdown in 2005, villagers burned pictures of him and his family issued press notices stating he was no
longer their son.
Many homosexuals have suffered violent attacks from their relatives and others and have been forced
from their homes, and experts say criminalisation has been a factor in the spread of HIV/AIDS.
(b) The Hart/Devlin Debate
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In 1957 the Wolfenden Report was published. This was a government report advocating
the legalisation of homosexuality between consenting adults in the privacy of their own
homes. The publication of this Report sparked a debate between Professor Hart and
Lord Devlin. Lord Devlin argued that any society needs a common morality and that the
law should uphold this morality; he claimed that the Wolfenden Report was wrong and
that homosexuality should remain illegal because reasonable people considered it to be
immoral. Professor Hart, on the other hand, argued that the criminal law should only
prevent behaviour which causes harm and that society had no single common morality.
Read ‘Legal Moralism’ and answer the following questions:
i.
Why does Lord Devlin disagree with the Wolfenden Report?
ii.
When does Mill think that the law can prohibit behaviour?
iii.
Why does Lord Devlin think that society needs a common morality?
iv.
How does Lord Devlin decide what constitutes common morality within a given
society?
v.
Is it always a good thing for a society’s conception of morality to be upheld?
vi.
Do you think that Devlin is right that the law should reflect society’s common
morality? Or do you prefer Hart’s argument that we should only criminalise
behaviour which is harmful?
Legal Moralism
(Extract from John Stanton-Ife, ‘The Limits of Law’, Stanford Encyclopedia of Philosophy, 2006)
H.L.A Hart began his essay entitled ‘Social Solidarity and the Enforcement of Morality’ in this way:
It is possible to extract from Plato's Republic and Laws, and perhaps from Aristotle's Ethics and Politics,
the following thesis about the role of law in relation to the enforcement of morality: the law of the city state
exists not merely to secure that men have the opportunity to lead a morally good life, but to see that they
do. According to this thesis not only may the law be used to punish men for doing what morally it is wrong
for them to do, but it should be so used; for the promotion of moral virtue by these means and by others is
one of the ends or purposes of a society complex enough to have developed a legal system. This theory is
strongly associated with a specific conception of morality as a uniquely true or correct set of principles—
not man-made, but either awaiting man's discovery by the use of his reason or (in a theological setting)
awaiting its disclosure by revelation. I shall call this theory “the classical thesis” and not discuss it further.
(Hart 1983, p. 248)
Having gone to the trouble to state the thesis in question—that the State should see to it that people live
good lives—and to cite two heavyweights in its support, Hart's final sentence comes as something of a
surprise. He took the view, it would seem, that there was little to be said for a view of morality according
to which it awaited discovery by reason or disclosure through revelation. So much so that it was not
worthy of serious discussion. It is contrasted with ‘man-made’ morality which Hart does consider worth
discussing in the present context.
The reason-based, revelation-based and the man-made versions of the view all tend to arouse suspicion.
The moralist has been branded a kill-joy and, more darkly, an inquisitor. Shakespeare's Sir Toby Belch
makes the first sort of complaint: ‘Dost thou think that because thou art virtuous there shall be no more
cakes and ale?’ (Twelfth Night Act II, Scene III). Harmless activities which give pleasure or are otherwise
valued by some are thought fair game by the moralist because immoral or vice-ridden. Arthur Miller's
image of the crucible is an apt characterisation of the second sort of suspicion: a crucible is ‘a vessel in
which metals are heated to extreme temperatures, melted down, and purified’ (Miller 1952, Singer and
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Singer 2005, p. 568). The moralist, on this view, is the inquisitor apt to see those who fail to conform to
the ‘right ideas’ as impure and prepared to go to great lengths—to heat to extreme temperatures—in order
to ‘purify’ such persons.
The specific version of Legal Moralism that Hart was opposing was that of Lord Devlin. Lord Devlin, at
the time an English High Court judge, was reacting to a government report recommending the legalisation
of homosexual behaviour between consenting adults in private. The report, known as the ‘Wolfendon
Report’, concluded that there ‘must remain a realm of private morality and immorality which is, in brief
and crude terms, not the law's business’ (‘Wolfendon Report’ 1957, para 61). Devlin's main point was to
argue that this specific theoretical conclusion did not stand up. Mill of course believed that harmless
behaviour was not the law's business, whether or not it could be styled immoral, and Hart's purpose in
challenging Devlin was to reassert a modified version of Mill's view.
Mill's canonical formulation of his Harm Principle begins as we have seen with the following words: ‘the
sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of
action of any of their number is self-protection.’ Devlin, while of course implacably opposed to how Mill
was to continue the passage, seems to agree. ‘Self protection,’ for him, stretches to the idea of selfprotection on the part of the state. In Devlin's view a society is in part constituted by its morality and it
therefore has a right to defend itself against any attack on that morality.
For society is not something that is kept together physically; it is held by the invisible bonds of common
thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the
bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price.
(Devlin 1965, p. 10)
A society needs its morality as it needs a government and it is therefore, for the sake of self protection,
entitled to ‘use the law to preserve morality in the same way as it uses it to safeguard anything else that is
essential to its existence’ (Devlin 1965, p. 11). For Devlin, then, to say, as the Wolfendon Committee
does, that there is an area of the morality and immorality that is not the law's business is not just ‘crude’
and ‘brief’; it is downright mistaken. The law must do what it has to do to exact the price of society,
which is the protection of the morality of that society.
It was said earlier that Devlin's moralism is in Hart's terms of the ‘man-made’ variety. He believed that
the invisible bonds of common thought in a given society are not the same in different societies. Some
societies abhor polygamy for example and others find it a worthy form of social organisation. In different
ways both monogamy and polygamy can partly constitute the invisible bonds of common thought in
different societies. For Devlin, it follows that in one society the law can be used to enforce monogamy
against polygamy and in the other it can be used to enforce polygamy against monogamy, should the
latter threaten the former in either case. In industrialized societies, Devlin tells us, it is generally true that
monogamy ‘is built into the house in which we live and could not be removed without bringing it down’
(Devlin, 1965, p. 10). But this is merely a contingent truth and if our houses were built differently the
content of the law to be enforced could legitimately be the opposite of what it is. Morality is, for Devlin,
conventional.
The relevant sense of morality for Devlin is relative. One is to consider the views of the ordinary person
living in that society to determine the content of the morality; in Devlin's English terms, it is ‘the
juryman’ whose views one should ask for, or the ‘man on the Clapham omnibus’. In enforcing the
criminal law ‘there must be toleration of the maximum individual freedom that is consistent with the
integrity of society.’ (Devlin 1965, p. 16). Devlin famously says that the limits of toleration are reached
not simply when a majority dislikes a practice; ‘no society, he says, ‘can do without intolerance,
indignation and disgust, they are the forces behind the moral law, and indeed it can be argued that if they
or something like them are not present, the feelings of society cannot be weighty enough to deprive the
individual of freedom of choice.’ (Devlin 1965, p. 17). In the late 1950s in English society, it was at least
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arguable in Devlin's view that there was enough intolerance, indignation and disgust to justify the
criminal law prohibition against homosexual behaviour between consenting adults.
There is nothing to be said in favour of Devlin's construal of homosexuality as ‘addictive’ or a ‘miserable
way of life’ (Devlin 1965, p. v), but he himself does not rest much theoretical weight on this construal
himself: what matters to him theoretically appears to be the beliefs of a population, backed up by the
emotion of disgust and a degree of cool reflection. Presumably, if alive today, Devlin would argue on the
same premises for the illegitimacy of the criminalisation of homosexual behaviour between consenting
adults. In English society today none of the mainstream political parties takes the view of homosexuality
Devlin thought widespread in the 1950s, or, more pertinently in Devlinite terms, believes that there are
votes to be gained from advocating such a view.
But it is this very aspect of his thought which makes his view untenable. Bernard Williams has shown
that the tempting line of thought of the sort adopted by Devlin is often underlain by an unstable amalgam
of relative and non-relative views.
1. ‘Activity X is wrong’
2. ‘Activity X is wrong in the functional sense, i.e. for the persistence of that society’
3. Therefore ‘Society S has the right to do what is necessary to preserve its own existence; it may do
what is necessary to suppress Activity X’ (slightly adapting Williams 1972, pp. 34-39; cf. the
distinction between ‘positive morality’ and ‘critical morality’ in Hart 1963, pp. 17-24)
But the conclusion does not follow. It may be true that if certain steps are not taken, the society will
disintegrate. Apartheid in South Africa disintegrated. What if by a more sustained enforcement of its
central racist elements it had managed to persist longer? Would this continued existence be underwritten
by a moral right? Does anyone now owe the society the duty to restore the system or did such a duty lie
for a period after its disintegration? The suggestions are absurd. The point of course is that some societies
are so lacking in legitimacy that it may be emphatically for the best that they disintegrate. Devlin is in
error when he says ‘What is important is not the quality of the creed but the strength of the belief in it.
(Devlin 1965, p. 114)’
According to Ronald Dworkin what is wrong with the Devlin thesis is that it misidentifies what a moral
argument is. We do not argue morally, he says, when we prejudge, when we parrot, when we rationalize
and when we merely emote. Certainly one will occasionally overhear exchanges with genuine moral
content, some of them robust, if one takes Devlin's advice and catches the Clapham omnibus, but one will
also get served up as much prejudgment, as many rationalizations and parrotings, and as much mere
emotion. Devlin gives us nothing to help us discriminate: it all counts equally for him. Not everybody
accepts in turn Dworkin's claim that emotional responses cannot be moral responses; but Devlin has
nevertheless picked on an emotion—disgust—that is particularly susceptible to distortion (cf. Nussbaum
2004). It is clear that in arguing for ‘the enforcement of morality’ Devlin has not focussed on moral
argument at all.
Devlin's account unacceptably implies that a corrupt and immoral society has as much right to perpetuate
itself as a decent society, provided it is able to integrate the society. He also as we have just seen operates
with an unsatisfactory understanding of what morality is. This leaves the possibility of another account of
legal moralism that does not make these errors and sees morality aright as reason-based, but which also
holds to Devlin's claim quoted right at the beginning of the paper that ‘there is no area of morality into
which the law is under no circumstances allowed to enter.’ His own account fails to give any clear route,
but his challenge to those who propose the harm principle and similar limitation principles is to show an
adequate basis for insulating certain domains of morality from the state in the passing of its law.
3. LNAT Sample Test
Answer the questions on the LNAT Sample Test.
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4. Cambridge Law Test
Read the following passage and try to plan answers to both questions
Cambridge Law Test: Example Comprehension Question
Jones (“J.”), a tramp who lived in an unoccupied building, woke up to discover that a cigarette he had been
smoking had set fire to the mattress on which he was lying. He did not attempt to put out the fire, and moved
to another room. The house caught fire. J. was convicted of the offence of arson under the Criminal Damage
Act 1971. The Court of Appeal (“CA”) dismissed his appeal against conviction, but he appealed to the House of
Lords (“HL”).
The CA asked the House of Lords to consider the following question:
Whether the offence of arson is committed when a defendant accidentally starts a fire and thereafter,
intending to destroy or damage property belonging to another or being reckless as to whether any such
property would be destroyed or damaged, fails to take any steps to extinguish the fire or prevent
damage to such property by that fire?
Giving the judgment of the HL, Lord Diplock said:
The first question to be answered where a completed crime of arson is charged is: "Did a physical act
of the accused start the fire which spread and damaged property belonging to another?”. This is a pure
question of causation; it is one of fact to be decided by the jury. It should be answered "No" if, in
relation to the fire during the period starting immediately before its ignition and ending with its
extinction, the role of the accused was at no time more than that of a passive bystander. In such a
case the subsequent questions to which I shall be turning would not arise. The conduct of such a
person may indeed be deplorable, but English law has not so far developed to the stage of treating it
as criminal; and if it ever were to do so there would be difficulties in defining what should be the limits
of the offence.
If on the other hand the question is answered "Yes," as it was by the jury in the instant case, then for
the purpose of the further questions the answers to which are determinative of his guilt of the offence
of arson, the conduct of the accused, throughout the period from immediately before the moment of
ignition to the completion of the damage to the property by the fire, is relevant; so is his state of mind
throughout that period.
Since arson is a result-crime the period may be considerable, and during it the conduct of the accused
that is causative of the result may consist not only of his doing physical acts which cause the fire to
start or spread but also of his failing to take measures that lie within his power to counteract the
danger that he has himself created; and if his conduct, active or passive, varies in the course of the
period, so may his state of mind at the time of each piece of conduct. If at the time of any particular
piece of conduct by the accused that is causative of the result, the state of mind that actuates his
conduct falls within the description of one or other of the states of mind that are made a necessary
ingredient of the offence of arson by section 1 of the Criminal Damage Act 1971 (i.e. intending to
damage property belonging to another or being reckless as to whether such property would be
damaged) I know of no principle of English criminal law that would prevent his being guilty of the
offence created by that subsection. Likewise I see no rational ground for excluding from conduct
capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie
within one's power to counteract a danger that one has oneself created, if at the time of such conduct
one's state of mind is such as constitutes a necessary ingredient of the offence.
No one has been bold enough to suggest that if, in the instant case, the accused had been aware at the
time that he dropped the cigarette that it would probably set fire to his mattress and yet had taken no
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steps to extinguish it he would not have been guilty of the offence of arson, since he would have
damaged property of another being reckless as to whether any such property would be damaged.
I cannot see any good reason why, so far as liability under criminal law is concerned, it should matter
at what point of time before the resultant damage is complete a person becomes aware that he has
done a physical act which, whether or not he appreciated that it would at the time when he did it, does
in fact create a risk that property of another will be damaged; provided that, at the moment of
awareness, it lies within his power to take steps, either himself or by calling for the assistance of the
fire brigade if this be necessary, to prevent or minimise the damage to the property at risk.
My Lords, in the instant case the prosecution did not rely upon the state of mind of the accused as
being reckless during that part of his conduct that consisted of his lighting and smoking a cigarette
while lying on his mattress and falling asleep without extinguishing it. So the jury were not invited to
make any finding as to this. What the prosecution did rely upon as being reckless was his state of mind
during that part of his conduct after he awoke to find that he had set his mattress on fire and that it
was smouldering, but did not then take any steps either to try to extinguish it himself or to send for
the fire brigade, but simply went into the other room to resume his slumbers, leaving the fire from the
already smouldering mattress to spread and to damage that part of the house in which the mattress
was.
The recorder, in his lucid summing up to the jury told them that the accused having by his own act
started a fire in the mattress which, when he became aware of its existence, presented an obvious risk
of damaging the house, became under a duty to take some action to put it out. The Court of Appeal
upheld the conviction, but the basis for their decision appears to be somewhat different from that of
the recorder. As I understand the judgment, in effect it treats the whole course of conduct of the
accused, from the moment at which he fell asleep and dropped the cigarette on to the mattress until
the time the damage to the house by fire was complete, as a continuous act of the accused, and holds
that it is sufficient to constitute the offence of arson if at any stage in that course of conduct the state
of mind of the accused, when he fails to try to prevent or minimise the damage which will result from
his initial act, although it lies within his power to do so, is that of being reckless as to whether property
belonging to another would be damaged.
My Lords, these alternative ways of analysing the legal theory that justifies a decision which has
received nothing but commendation for its accord with commonsense and justice, have, since the
publication of the judgment of the Court of Appeal in the instant case, provoked academic controversy.
Each theory has distinguished support. Professor Smith espouses the "duty theory"; Professor Williams
prefers that of the continuous act. When applied to cases where a person has unknowingly done an act
which sets in train events that, when he becomes aware of them, present an obvious risk that property
belonging to another will be damaged, both theories lead to an identical result; and since what your
Lordships are concerned with is to give guidance to trial judges in their task of summing up to juries, I
would for this purpose adopt the duty theory as being the easier to explain to a jury; though I would
commend the use of the word "responsibility," rather than "duty" which is more appropriate to civil
than to criminal law, since it suggests an obligation owed to another person, i.e., the person to whom
the endangered property belongs, whereas a criminal statute defines combinations of conduct and
state of mind which render a person liable to punishment by the state itself.
So, I would answer the certified question "Yes" and would dismiss the appeal.
Answer both of the following questions:
1. Explain in your own words, and indicating how it differed from the reasoning of the Court of Appeal, the
reasoning of Lord Diplock in this case.
2. In the first paragraph of his judgment, Lord Diplock suggests that a bystander who came across the fire
would not be guilty of any offence if he failed to take steps which were within his powers to put it out.
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Why should that be? Do you agree that such a person should not be guilty of an offence? Give reasons
for your answer.
5. Family Law
Under the current law, when a couple divorce, the courts will determine how their assets
are to be divided if they cannot reach an agreement between themselves. In the past,
the poorer spouse used to be allocated sufficient assets to meet his or her ‘needs’, whilst
the richer partner kept the remainder of their wealth. More recently, the House of Lords
has held that the court should presume that wealth will be divided equally unless there
are compelling reasons against such equal division.
Pre-nuptial agreements are contracts signed by two parties before they marry, which
state which assets they will be entitled to in the case of a divorce. They have traditionally
been ignored by English courts, but they are upheld in lots of countries including France,
Germany, and the United States of America. The English Supreme Court is currently
considering whether they should be recognised in English law.
Read the following article and consider these questions:
i.
What were the facts of the case?
ii.
What did the High Court decide?
iii.
What did the Court of Appeal decide ?
iv.
What reasons are there for recognising pre-nuptial agreements?
v.
Why might it be important for both parties to get legal advice before signing a
pre-nuptial agreement?
Judges back pre-nuptial agreements as heiress
wins battle against husband
From The Times
July 3, 2009
Frances Gibb, Legal Editor
Senior judges rewrote the divorce laws yesterday to give resounding backing to prenuptial
contracts and bring England into line with the rest of Europe. One of Germany’s richest women
secured victory in the Court of Appeal in enforcing a prenuptial agreement with her former
husband.
The judges said that England should not be out of step with other countries, condemning
existing law — under which prenuptial contracts are not enforceable — as “patronising” and
outdated.
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They upheld a challenge brought by Katrin Radmacher, 39, an heiress said to be worth £100
million, ruling that a prenuptial contract should be decisive when the courts divide a couple’s
assets after a marriage fails.
Until now, judges have regarded prenuptial agreements as “persuasive” but in future, courts will
regard them as binding unless there is a reason not to do so.
Ms Radmacher’s former husband, Nicolas Granatino, 37, a banker who has become a student,
had agreed not to make any claims on her fortune if they split up but was awarded £5.85 million
for his own use by a High Court judge last year.
Lord Justice Thorpe said that any rule that prenuptial contracts are void seemed “to be
increasingly unrealistic” and “reflects the laws and morals of earlier generations”. He added: “As
a society we should be seeking to reduce and not to maintain rules of law that divide us from
the majority of the member states of Europe.”
Lawyers said the ruling signalled the end of London being seen as the “divorce capital of the
world” where people could pursue extravagant claims. Simon Bruce, family partner at Farrers,
said: “English courts will now respect the agreements made by couples both before and after
marriage.
“It is judge-made law, the courts plugging the gap left by government inactivity.” The ruling
would help individuals to become “masters of their own future”.
Michael Gouriet, family partner at Withers, said: “This is a really significant development and
shot in the arm for prenuptial contracts, with very senior judicial support for reform.”
Sandra Davis, head of family law at Mishcons, said there would be “a seismic shift” in how the
courts approached prenuptial contacts.
“The legal burden will start falling on the person who wants to extricate themselves from the
prenup rather than, as now, on the person who wants to uphold it,” she said.
The judges cut Mr Granatino’s £5.85 million award to about £1 million as a lump sum in lieu of
maintenance for the couple’s children, with a fund of £2.5 million for a house which will be
returned to Ms Radmacher when the younger of their two daughters, who is 6, is 22.
His debts of about £700,000 are to be paid off by the heiress, who had always agreed to that.
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Ms Radmacher’s lawyers argued that Mr Granatino, who is French, was heir to a family fortune
of up to £20 million and that he had originally planned to become an investment fund manager
specialising in biotechnology companies on completion of his PhD, although he now intended to
remain an academic.
Mrs Justice Baron, in the High Court, had ruled that it would be “manifestly unfair” to hold Mr
Granatino to the deal, given the respective financial strengths of the two sides.
The judge also had some concerns that the prenuptial agreement was defective in that Mr
Granatino had not had independent legal advice and there had not been full disclosure of
assets.
Ms Radmacher was running a boutique in Knightsbridge and Mr Granatino working for JP
Morgan on as much as £300,000 a year when the two met.
He gave up his banking career in 2003 to pursue a doctorate in biotechnology at Oxford. The
couple separated in 2006 and were divorced soon after. Ms Radmacher now lives in Germany
with the couple’s children.
After the ruling Ms Radmacher said in a statement: “I am delighted that the court accepts that
the agreement Nicolas and I entered into as intelligent adults before our marriage should be
honoured. Ultimately, this case has been about what I regard as a broken promise. When we
met and married, Nicolas and I were broadly on an equal footing financially.
“He too is an heir to a multimillion-pound fortune and, when we met, was an investment banker
earning up to £330,000 a year.
“The agreement was at my father’s insistence as he wanted to protect my inheritance — this is
perfectly normal in our countries of origin, France and Germany. My father taught me the value
of hard work and family values.
“Like all wealthy parents, he feared gold-diggers.
“As an heir himself, Nicolas perfectly understood this. The agreement gave me reassurance that
Nicolas was marrying me because he loved me as I loved him. . . that we were marrying for the
right reasons.
“Nicolas and I made each other a promise and all I have been asking is that he be kept to it.”
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Mr Granatino is expected to seek permission to take the case to the House of Lords for the
issue of prenuptials to be reviewed by the highest court in the land.
6. International Law
(a) What is International Law?
Read the introduction to international law below, and answer the following questions:
i.
What is international law?
ii.
List some examples of types of international law.
iii.
What are the sources of international law?
International Law: an Overview
Traditionally, international law consisted of rules and principles governing the relations and dealings of nations
with each other, though recently, the scope of international law has been redefined to include relations between
states and individuals, and relations between international organizations. Public international law, concerns
itself only with questions of rights between several nations or nations and the citizens or subjects of other
nations. In contrast, Private international law deals with controversies between private persons, natural or
juridical, arising out of situations having significant relationship to more than one nation. In recent years the
line between public and private international law have became increasingly uncertain. Issues of private
international law may also implicate issues of public international law, and many matters of private
international law nave substantial significance for the international community of nations.
Domains of International Law
International Law is rooted in acceptance by the nation states which constitute the system. The following are
major substantive fields of international law:
-
International economic law
International security law
International criminal law
International environmental law
Diplomatic law
International humanitarian law or law of war.
International human rights law
Sources of International Law
Customary law and conventional law are primary sources of international law. Customary international
law results when states follow certain practices generally and consistently out of a sense of legal obligation.
Recently the customary law was codified in the Vienna Convention on the Law of Treaties. Conventional
international law derives from international agreements and may take any form that the contracting parties
agree upon. Agreements may be made in respect to any matter except to the extent that the agreement
conflicts with the rules of international law incorporating basic standards of international conduct or the
obligations of a member state under the Charter of the United Nations. International agreements create law for
the parties of the agreement. They may also lead to the creation of customary international law when they are
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intended for adherence generally and are in fact widely accepted. Customary law and law made by international
agreement have equal authority as international law. Parties may assign higher priority to one of the sources by
agreement. However, some rules of international law are recognized by international community as
peremptory, permitting no derogation. Such rules can be changed or modified only by a subsequent
peremptory norm of international law.
General principles common to systems of national law is a secondary source of international law. There are
situations where neither conventional nor customary international law can be applicable. In this case a general
principle may be invoked as a rule of international law because it is a general principle common to the major
legal systems of the world and not inappropriate for international claims.
Subjects of International Law
Traditionally, states were the main subject of international law. Increasingly, individuals and non-state
international organizations have also become subject to international regulation.
The law of nations is a part of the law of the United States unless there is some statute or treaty to the
contrary. International law is a part of the law of the United States only for the application of its principles on
questions of international rights and duties. It does not restrict the United States or any other nation from
making laws governing its own territory. A State of the United States is not a "state" under international law,
since the Constitution does not vest it with a capacity to conduct foreign relations.
International law impose upon the nations certain duties with respect to individuals. It is a violation of
international law to treat a [foreign national] in a manner which does not satisfy the international standard of
justice. However in the absence of a specific agreement an individual cannot bring the compliant. Only the state
of which he is a national can complain of such a violation before an international tribunal. The state of
nationality usually is not obligated to exercise this right and can decide whether to enforce it.
International organizations play increasingly important role in the relationships between nations. An
international organization is one that created by international agreement or which has membership consisting
primary of nations.
The United Nations, the most influential among international organizations, was created on June 26, 1945. The
declared purposes of United Nations are to maintain peace and security, to develop friendly relations among
nations, to achieve international cooperation in solving international problems, and to be a center for
harmonizing the actions of the nations and attaining their common ends. The Charter of the United Nations has
been adhered to by virtually all states. Even the few remaining non-member states have acquiesced in the
principles it established. The International Court of Justice is established by the UN Charter as its principal
judicial organ.
[Extract from Cornell University Law School LII]
(b) 2006 Lebanon War
Read the following timeline of events and try and summarise the key events.
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The Lebanon War was a 33-day conflict in Northern Israel and Lebanon, principally fought between the
Israeli army and the Lebanese paramilitary party Hizballah. It lasted from July 12 th 2006 to 14 August
2006, when a ceasefire, organised by the United Nations, came into effect.
General Background
From 1968, the Palestine Liberation
Organisation (PLO) had engaged in attacks
on Israel from Southern Lebanon. In 1978
and 1982, Israel invaded Lebanon, and the
second time succeeded in driving out the
PLO. After the conflict, the Israelis withdrew
to southern Lebanon, where they
unilaterally established and continued to
militarily occupy a “buffer zone” between
the rest of Lebanon and Israel.
From 1976 to 2005, Lebanon was occupied
by Syria, instituted during the Lebanese Civil
War of 1975-1990.
In 1985, a Lebanese Muslim militia calling
itself Hizballah (literally translated as The
Party of God) declared an armed struggle to end the Israeli occupation of southern Lebanon (Hizballah is
not the Lebanese government). Hizballah refused to disarm with the conclusion of the Lebanese Civil
War in 1990, claiming that the continued Israeli occupation of Lebanese territory both necessitated and
justified their being armed. Following further attacks on the Israeli forces occupying the south, Israel
withdrew to behind its own borders in 2000.
Citing further Israeli actions, including the continued holding by Israel of Hizballah members in prison in
Israel, Hizballah continued to organise cross-border attacks into Israel. These included the abduction of
Israeli soldiers, with which it obtained a prisoner exchange in 2004. It continues to refuse to recognise
the right of Israel to exist as a state.
Hizballah is believed to be supported and funded by Syrian and Iranian support. Israel is heavily funded
and supported by the United States of America.
2006 Timeline
12th July: During a conflict between Israel and various Palestinian factions in Gaza, Hizballah launches
rocket attacks on Israel and a Hizballah ground contingent cross the border with Israel, attacks an Israeli
patrol, killing three, injuring two and seizing two Israeli soldiers. Five more Israeli soldiers were killed,
during an unsuccessfully Israeli attempt to rescue the soldiers.
Over the prior year and a half, Hassan Nasrallah, the leader of Hizballah, had pledged publicly to seize
Israeli soldiers and exchange them for four Lebanese held by Israel. Prime Minister of Israel, Ehud
Olmert calls the attacks “an act of war”, and stated, “Lebanon will bear the consequences of its actions”.
Israel blames the Lebanese government for the attacks. Lebanese Prime Minister Fouad Siniora denies
knowledge or authorisation of the raid.
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Israeli Defence Forces attack Lebanon with Artillery and Airstrikes. 44 civilians are killed.
13th July: Israel imposes a sea-blockade on Lebanon and launches attacks on a series of Lebanese
installations. Hizballah bombards Israeli towns with rockets, killing 2 civilians and wounding 29.
14th July: Hizballah launches missile attacks which hit Israeli towns, an Israeli naval vessel, and an
Egyptian civilian vessel.
The President of Iran, Mahmoud Ahmadinejad, warns of a “fierce response” if Israel attacks Syria. Israel
establishes its blockade of Lebanon, cutting off cruise ships and fuel supplies from reaching Lebanon.
Israel attacks various installations in Lebanon. Israeli Prime Minister Ehud Olmert lays out three
conditions for end of Israeli operation: Disarming of Hizballah in accordance with UN Security Council
Resolution 1559, an end to rocket attacks on Israel, return of the two captured soldiers.
July 15-16th: Israeli and Hizballah continue their respective strikes. Numerous civilian deaths and injuries
on both sides. Israeli missiles hit Beirut airport, Lebanon’s only international airport, forcing its closure.
Israel claims that this is necessary to prevent Hizballah accessing weapons through this airport.
However, evidence suggests that it is unlikely that Hizballah had any control over the airport. On July
16th, Israeli government releases a communiqué stating that: “Israel is not fighting Lebanon but the
terrorist element there…who have made Lebanon a hostage and created Syrian- and Iranian-sponsored
terrorist enclaves of murder.”
July 17th: Israeli and Hizballah attacks continue. Israeli ground force briefly enters Southern Lebanon on
an attack. Israeli Prime Minister Ehud Olmert states: "Israel will not agree to live under the threat of
missiles or rockets aimed at its citizens. Citizens of Israel, there are moments in a nation's life where it
must face reality and say: Enough! And I am telling you all. It is enough."
UN Secretary General Kofi Annan and UK Prime Minister Tony Blair urge for an international force to
stop the fighting. Israel argues it is too early for a UN force. 10,000 demonstrators hold a rally outside
the UN headquarters in New York in support of Israel, with smaller anti-Israeli crowds also present.
July 18th-21st: Israeli and Hizballah attacks continue. 300 Lebanese civilians so far killed in the conflict.
July 22nd: Israeli troops move into Southern Lebanon. Hizballah attacks continue. According to the New
York Times, America sends an emergency shipment of precision-guided missiles to Israel. Condoleezza
Rice, US Secretary of State, says that Israel should ignore calls for a ceasefire, as the war is the ‘birth
pangs of a new Middle East’.
July 24th: Condoleezza Rice proposes ambitious international forces of up to 40,000 troops to help the
Lebanese government re-assert control over Lebanon. Israel is accused of using cluster munitions in
attacks on Lebanese towns.
July 25th: Israeli and Hizballah attacks continue. Israeli troops push further into Southern Lebanon.
Hizballah’s leader Hassan Nasrallah threatens to take the Islamic militia’s fight “beyond Haifa” the main
city in North Israel.
July 26th: Israeli and Hizballah attacks, by rocket, and on the ground, continue. Talks in Italy over how to
resolve the situation flounder.
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July 27th: Lebanon’s Prime Minister Fouad Siniora proposes a peace plan at the conference in Italy.
Israeli Defence Minister Amir Peretz says: Israel aims at "changing the reality on the northern
border…Hizballah must not in the future be what it has been in the past." The second in command of
terrorist network Al-Qaeda states that they would not “stay silent” on the conflict, and called for “Jihad”
on Israel.
July 28th: Iran denies helping Hizballah over the current conflict. Hizballah and Israeli attacks continue.
E.U. announces it has withdrawn most of its 20,000 citizens from Israel. UN announces that aid agencies
are finding it impossible to get aid to Lebanon,
July 29th: Israeli forces attack and kill two Islamic militants in the West Bank, an area of land
internationally recognised to be Palestinian, but which has been militarily occupied by Israel since 1967.
Negotiations continue. Hassan Nasrallah, Hizballah’s leader, announces: “It's clear ... that the Zionist
enemy has not been able to reach a military victory. I'm not saying that. They said that. The whole world
is saying that.” Hizballah states it will not disarm until Israeli troops leave the disputed region along the
Syrian border, known as the Sheeba Farms, than the UN recognises as Syrian territory. Syria, Lebanon
and Hizballah all claim agree that the area is Lebanese territory.
As of this stage, Lebanon announces, 421 people have been killed and 1,661 have been wounded in
Lebanon, a clear majority of these civilians. Israel announces 52 Israelis have been killed, more than half
of them soldiers, and more than 1,200 have been wounded.
July 30th: Israeli hits a three-storey building in Qana, Southern Lebanon with an air strike, killing 28
people, including 16 children. Israel announces it will initiate a 48-hour period of restraint in its airstrikes
as a result.
July 31st: Israeli and Hizballah attacks observe a 48-hour period of relative restraint. Israelis declare
Qana airstrike was a mistake, and apologises for the pain suffered by the Lebanese people. Syrian
President Bashar al-Assad directs his country’s military to heighten its readiness, vowing to back
Lebanese resistance against Israel, it is reported.
August 1st-2nd: Israel expands its operations in Lebanon, doubling its ground forces in Southern Lebanon.
In Gaza, where Israel is engaged in another military operation after militants there kidnapped an Israeli
soldier, an airstrike hit a group of militants who were approaching Israeli forces with rocket-propelled
grenades.
August 3rd: Human Rights Watch accuses Israel of committing war crimes in Lebanon. Hizballah and
Israeli attacks continue. Hizballah leader Hassan Nasrallah states: “If you strike Beirut, the Islamic
resistance will strike Tel Aviv and it is able to do so.” Lebanese announce 1 million people have been
displaced by the conflict. UN considers a permanent cease-fire resolution.
August 4th: Hizballah and Israeli attacks continue. Syria denies supplying Hizballah with weapons. UN
continues to consider a permanent cease-fire resolution.
August 5th: US faces criticism for not calling for an immediate end to hostilities. Hizballah announces it
cannot agree to a cease-fire until Israeli soldiers leave Lebanon, not currently mentioned by the UN
resolution.
August 6th: Israel defends the progress of the Israeli campaign, saying Hizballah had amassed an arsenal
of about 10,000 rockets over the past six years, and stating: “it's going to take time to get rid of all those
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missiles." Israeli and Hizballah attacks continue. Syria warns Israel it will respond to any attacks on its
soil.
August 7th-8th: Hizballah and Israeli attacks continue. Negotiations over the UN resolution continue.
August 9th: Hizballah and Israeli attacks continue. “We will leave, and we will be happy to withdraw the
minute the area has been stabilized, the minute the international presence will make sure that the
Hizballah has been removed and disarmed," said Dan Gillerman, Israel's ambassador to the United
Nations. "We come to the Security Council asking for an immediate and comprehensive cease-fire,"
Tarek Mitri, Lebanon's special envoy to the U.N., told the council. "Twenty-seven days ago, we asked for
an immediate cease-fire. More than 900 lives ago, we asked for an immediate cease-fire." The UNSecurity Council-proposal calls for Hizballah to move out of South Lebanon, but it makes no mention of
disarmament. Arab League (an association of Arab states) chief Amr Moussa said that talks from the
evening of August 8, which came after the Arab delegation presented its views at a Security Council
session, "were promising".
August 10th: Progress on a UN Resolution stalls. Israeli and Hizballah attacks continue.
August 11th: Israeli and Hizballah attacks continue. Vitaly Churkin, Russia's UN ambassador, called for a
72-hour humanitarian truce between Israel and Hizballah while negotiations continued between the
United States and France on a draft resolution to end the fighting. The UN Human Rights Council has
voted to launch an inquiry into alleged abuses committed by Israel during its month-long offensive in
Lebanon. Late in the day, a UN-resolution is unanimously accepted by the Security Council. The
resolution, drawn up by France and the US, demands a full cessation of all hostilities and the release of
abducted Israeli soldiers. The resolution authorises 15,000 international troops to police the LebanonIsrael border. The deal also calls for the release of two Israeli soldiers whose capture by guerrillas
sparked the conflict.
August 12th: Hizballah’s leader Hassan Nasrallah expressed reservations about the resolution, saying,
"When the Israeli aggression stops, then the reaction by the resistance will stop." He also charges that
the Security Council resolution is biased toward Israel, neglects to blame Israel for "massacres" and "war
crimes". The Lebanese government, which includes two members of Hizballah, unanimously approved
the Security Council resolution. A UN-brokered cease-fire between Hizballah and Israel will begin at 8
a.m. August 14, UN Secretary-General Kofi Annan announces. Israeli and Hizballah attacks continue.
August 13th: Israeli and Hizballah attacks continue.
August 14th: Cease-fire comes into effect. Israeli Prime Minister Ehud Olmert announces "We will
continue to pursue them everywhere and at all times…We have no intention of asking anyone's
permission." Hizballah leader Hassan Nasrallah says that the militia would consider Israeli troops
legitimate targets until they leave. Sporadic fights continue after the cease-fire starts.
August 15th: Sporadic fights continue. UN decides to send a peacekeeping force to Southern Lebanon.
Lebanese forces prepare to move into Southern Lebanon to assert control. Syrian President Bashar alAssad apparently says there could be no peace while Bush is president. Iranian President Mahmoud
Ahmadinejad says Hizballah was victorious against Israel, despite the immense damage inflicted on
Lebanon and blamed the United States and Britain for standing in the way of a cease-fire and said that
"they should be punished."
August 16th-18th: Lebanese army moves into Southern Lebanon. UN preparations for an international
force continue.
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August 19th: Israel organised an attack on a town held by Hizballah with helicopters, apparently to
prevent Iranian weapons being smuggled to Hizballah. Israel is accused of breaking the cease-fire by
Lebanon’s Prime Minister, Fouad Siniora. But the conflict does not resume.
August 27th: UNIFIL, the UN mission that has been in Lebanon since 1978, is tasked to maintain peace
between Israel and Hizballah.
September 7th-8th: Israel lifts its blockade of Lebanon.
Late September onwards: Hizballah claims it was victorious in the war.
1st December: Kofi Annan reports to the Security Council that there have been no serious incidents or
confrontations since the Cease Fire. Around 1,100 Lebanese civilians had been killed and 4,400
wounded. Roughly 50 Israeli civilians and been killed and 1,500 wounded. Roughly 120 Israeli soldiers
were killed, and 450 wounded. Roughly 500 Hizballah militia were killed.
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