Preparing to Moot

A Step-by-Step Guide to Mooting

Sarah L. Cooper, Scarlett McArdle

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781138853140
• eBook ISBN: 9781317497714
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Mooting is an increasingly important activity in UK law schools. This is because mooting offers students the opportunity to develop advanced analytical, research, drafting and advocacy based skills, which help to improve their general academic achievement and employability profiles. Tangible evidence of these skills is invaluable in a progressively competitive job market.

The ideal guide for the first-time mooter, Preparing to Moot provides an accessible, systematic and pragmatic approach which demystifies the process. It focuses on analysis, research and argument construction as the foundations for successful advocacy and provides students with a working guide to use alongside moot problems in five popular topic areas: criminal law, contract law, tort law, human rights and the law of equity. Through careful use of annotated examples generated by real students, and expert tips and advice from the authors, the book shows students how to individually analyse, research and construct arguments for various advocate positions, providing a practical and easy-to-follow overview of how to tackle a moot from analysing a problem initially, right up to beginning to advocate.

1
Criminal Law

INTRODUCTION

In this chapter, we show you how to analyse, research and construct an argument in relation to the moot problem presented by the fictitious case of R v Harper. This is a criminal law themed moot problem question.

We begin by deconstructing the problem question and introducing you to its basic, but fundamental, features. Next, we focus on summarising the problem question, and consider how you should interpret the grounds of appeal. We then examine how to derive search terms from a problem question in order to allow you to progress on to researching the relevant area of law. Following that, we suggest some preliminary considerations for researchers and show you how to summarise authorities. Finally, we guide you on how to construct legal arguments by providing various example skeleton arguments.

In this question, Ali undertook the roles of Senior Appellant and Senior Respondent, and Anna prepared for the roles of Junior Appellant and Junior Respondent.

ANALYSIS

The Problem Question

IN THE SUPREME COURT OF THE UNITED KINGDOM

HARPER

V

REGINA

Laura Harper and her two work colleagues, Kate and John, went out in Birmingham to celebrate John’s promotion at work. Laura was pleased for John, although she had also applied unsuccessfully for the same position. The three colleagues worked for an international importing company.

At around 11.00pm, the group got into a taxi and requested to go home. Instead, the driver of the taxi locked the doors and took the group to a wooded area where a gang of three men were waiting. Kate, John and Laura were stripped of their valuables and beaten. John was also stabbed in the leg with a penknife. The gang repeatedly told Laura, Kate and John they were going to kill them.

The gang tied John to a tree, and told Laura to shoot him. Laura initially refused, but after being threatened with the penknife, she reluctantly held out her hand. The gang member placed a loaded pistol into Laura’s hand.

Laura raised the gun, but before putting her finger on the trigger and aiming it, she shouted: ‘You are all vile cowards. You haven’t got the stomach to finish what you started, so you need me to do it for you! But, John’s pain is on your shoulders, not mine.’ However, before she placed her finger on the trigger a team of police swarmed the area and arrested everyone present.

The gang members were all charged and convicted of various offences. John and Kate were released with apologies, but Laura was charged with attempted murder.

At the trial, Judge Warren directed the jury that Laura was guilty of attempted murder, provided that they were satisfied that when she took the gun and prepared to aim it, she intended to kill John. He directed them further that duress was no defence.

The jury returned a unanimous verdict of guilty. In the circumstances, Judge Warren decided to give Laura an unconditional discharge.

Laura’s appeal was dismissed in the Court of Appeal. She now appeals, with leave, to the Supreme Court on the grounds that the trial judge misdirected the jury:

• 
  1. In directing them that an act constituting attempted murder had been committed.
• 
  2. In his direction that duress was no defence to attempted murder.

Understanding the Basics of the Problem Question

Before you begin to analyse a moot problem question, you should familiarise yourself with its various features. Below you will find a list of features identified by the relevant letter in the problem above. These features will remain loosely the same in most moot problems. The most notable differences occur between civil and criminal law moot problems.

COURT

The court that you are advocating in dictates a number of things. For example it indicates the significance of precedent. R v Harper is in the UK Supreme Court, which is not bound by its own precedent. When advocating in the Supreme Court, it is also worth noting the types of cases that will gain permission to appeal. Cases accepted for argument in the Supreme Court will often be cases of the ‘greatest public and constitutional importance’. This fact may influence the type of argument you may seek to make.

APPELLANT

The first name indicates who is appealing to the appeal court. In R v Harper, the defendant (as indicated by the surname of the defendant, i.e. Harper) is appealing the points of law to the Supreme Court.

RESPONDENT

The second name indicates who is responding to the appeal. In R v Harper, the Crown (as indicated by the term ‘R’ for ‘Regina’) is responding to the appeal.

INCIDENT FACTS

The first four paragraphs set out the factual circumstances of the incident that led to the legal issues presented.

CHARGES

The fifth paragraph sets out the charges levelled against the defendant. In R v Harper, the defendant was charged with attempted murder. Remember, ‘charges’ are typically unique to criminal law problem questions. If the question does not indicate what specific source of law (such as case law or statutory law) defines the crime charged, you should research this as a starting point. This will become more apparent when we begin to identify research terms.

LONG PROCEDURAL HISTORY

This explains what has happened in the case in the previous courts where it has been heard. This helps you to understand how and why the current appeal came about.

IMMEDIATE PROCEDURAL HISTORY

This passage tells you what has happened in the court directly below the court in which the moot problem question is in. For example, in R v Harper the case was last heard in the Court of Appeal (Criminal Division).

GROUND ONE OF THE APPEAL

This ground ‘belongs’ to Senior Counsel for both the Appellant and the Respondent, which in this case is Ali. The Appellant will argue for the appeal (i.e. for it to be allowed), whereas the Respondent will argue against (i.e. for it to be dismissed). In R v Harper, the Senior Appellant will argue that the trial judge did misdirect the jury in saying that an act had been committed that constituted attempted murder, and the Senior Respondent will argue there was no error and attempted murder is made out.

GROUND TWO OF THE APPEAL

This ground ‘belongs’ to Junior Counsel for both the Appellant and the Respondent, which in this case is Anna. Again, the Appellant will argue for the appeal, whereas the Respondent will argue against. In R v Harper, the Junior Appellant will argue that the trial judge did misdirect the jury in saying that the defence of duress was not applicable to a case of attempted murder, and the Junior Respondent will argue there was no error and duress is not applicable.

Summarising the Case

When you are familiar with the fundamental features of the moot question, it is useful to construct a summary of the fact pattern that includes all of the salient points. This will help ensure that you know the facts thoroughly, but also it is routine for judges to request a brief summary of the problem question.

This section first reviews the summaries constructed by Ali and Anna. These are used as a springboard to show you some of the difficulties mooters can have when constructing summaries that are both concise and comprehensive. It is important to note that there is no magic formula for creating a summary; however, we employ the following ge...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• CONTENTS
• Foreword
• Introduction
• Table of Legal Authorities
• CHAPTER 1 Criminal Law
• CHAPTER 2 Tort Law
• CHAPTER 3 Human Rights Law
• CHAPTER 4 Contract Law
• CHAPTER 5 Law of Equity
• CHAPTER 6 Preparing for Advocacy
• Index