Guide to Answering Problem Questions PDF

Preview

Summary

Download Guide to Answering Problem Questions PDF

Description

1

Guidance on Answering Problem Questions in Criminal Law using the IRAC formula. 1. What is a problem question? The formative, summative and exam assessments consist of at least one “problem question”, the type of question with which lawyers are confronted. You will also do similar questions in your tutorials, to help you prepare for these assessments. The basic idea is that you are presented with a factual scenario which gives you information about what D did, and the circumstances involved, and you need to provide legal advice on whether D is guilty of any crime. In other words, you are being asked for a legal analysis, not a philosophical or social discourse, or your personal opinion. As such, the question requires a different approach to that for essays. A problem question in criminal law is about finding: 1. 2. 3. 4.

who is potentially liable, for which offence, at which level of participation (principal or secondary participation) and whether there is a defence that, if accepted, will render the person non-liable

2. How do I prepare to answer a problem question? To prepare yourself to answer a problem question you need to do the following (*this must be done before you begin to write your answer!):   • • • • • • • • •

complete the required reading and make your own notes Read the problem question and ask yourself these questions: Based on the facts, what crimes are likely to be charged? Against whom? Chose the most relevant offence(s). What are the elements of the crimes that will be charged? On the basis of what facts will each of the elements be established? What elements are likely to be in dispute? What arguments will each side raise in support of its respective position? What legal authority (statutes, cases, legal principles) can be cited in support of each side’s position? What will be the counterarguments of the opposing side? On what basis will it distinguish cases that are cited? What defences might be raised by the accused? What supporting authority can be cited? What counterarguments can be made by the prosecution? What is the likelihood of each side’s succeeding in respect of their position?

2

3. How do I write an answer to a problem question? What you are being asked to do is to identify the relevant law and apply it to a factual situation, reasoning your way to a conclusion in a structured manner. You do this using the IRAC methodology – this is the structure/approach to take. You start off by identifying the offence likely to be charged and the requirements for the offence. Then you move onto consider each of these requirements separately, using the IRAC methodology. You conclude by stating whether you think D is guilty of the offence or not – this will be based on your analysis of the law and the facts which you will have covered using IRAC. A conclusion as to the likely outcome may be tentative but it is not enough to say that it is for the jury (or an appellate court) to decide – this may be true, but, as a lawyer, you constantly need to assess the strength of your case and that of the opposing side. If you think there is no definite answer, you need to state what the likely outcome or possible outcomes might be. This must be supported by your analysis of the law, the facts and the law applied to the facts. A conclusion appears last. Do not start with the conclusion. General advice: -

-

-

-

-

When answering a criminal law problem question, the IRAC formula is not to be used as the approach to the whole question but as the approach to take in relation to specific issues/sub-issues that arise. This means you will be using the IRAC method several times in your answer These specific issues will be whether the precise requirements for a particular criminal offence have been met. So, when deciding whether an offence requirement has been met, you use the IRAC formula. You will start your answer by identifying the offence D may, on the facts given, have committed. You do not need to provide an introduction of the kind you would give in an essay. Instead you can start your answer by saying: The (first) offence D may be liable for is …. You will then provide a definition for that offence and/or state the offence requirements You will then take each requirement individually and assess whether it is met on the facts, using the IRAC methodology. Depending on the nature of the issue this may be done quickly or you may, in some cases, need to go into more detail on the law and its application (the R and C parts of IRAC) Where a sub-issue arises you also use the IRAC formula If D was involved in more than one incident giving rise to potential liability for a criminal offence, take each incident separately. If there is more than one D, take each potential offender individually. Do not summarise the facts by way of an introduction or state the facts without first stating/explaining the law. Students often spend a great deal of time repeating the facts given in the scenario without relating this to the applicable law. You do not need

3

to summarise the facts of the problem question by way of an introduction. The only point at which you need to discuss the facts is after you have stated and explained the law, and the facts should only then be stated with reference to how the law applies. In other words, the only point where the facts need to be discussed is with reference to the applicability of the law to the given scenario [i.e. the A part of IRAC]. You may also want to briefly refer to the facts when identifying the offence. E.g: “D may be liable for murder because he shot Joe.” But that is all you need to say! -

Do not state the law and then the conclusion without applying the law to the facts. You must apply the law to the facts in order to justify your conclusion.

-

Do not apply the law to the facts without an analysis or demonstration.

-

Do not discuss the facts of case-law authorities in detail. Case law is used because it contains the legal rule or principle relevant to the issue at hand. You need to state the legal rule/principle that comes from the case, but you usually do not need to provide the facts of the case. Occasionally, it may be useful to refer to the facts of a similar case when applying the law to your facts in order to help justify/explain your analysis, but, otherwise, do not state the facts from case law.

-

Do not begin with a conclusion such as ‘Fred is guilty of murder’. o If you consider this to be a possibility in the light of the facts disclosed in the question, then begin your answer by saying, for example, ‘Fred may be charged with murder’ or ‘I will begin by discussing Fred’s possible criminal liability for murder’.

-

For defences. o Do not hypothesise. If the facts do not indicate the possibility of a defence do not discuss defences. o Where the facts do indicate a defence, do not begin your answer with a discussion of that defence/those defences. Discuss the offence first and only when you have completed that part of the answer should you go on to discuss any possible defence o Do Use the IRAC/ILAC method to consider whether the identified defence may be relied upon: i.e. state and explain the requirements of the defence; apply each requirement to the facts; conclude about likelihood of success.

4. How do I use IRAC This is how your answer should be structured, using the IRAC methodology: I.

First incident D was involved in:

(a) Offence You start your answer by saying: D may be liable for …. [offence]

4

Offence = Identify the first offence D may have committed. You chose the most relevant offence – i.e. on the facts, what is the most serious offence D could be liable for?* *For example, in a homicide scenario, it could be immediately evident from the facts that D could not be guilty of Murder, but may be guilty, for example, of UAM. Here you do not need to explore Murder in detail using IRAC – it is not the relevant offence. Instead, you can briefly explain why it is not murder [e.g. on facts X, it is evidence D did not have an intention, meaning that it was his aim, purpose or objective, to kill or cause really serious harm (i.e. GBH)…] in a couple of sentences. Then you move on to explore UAM in more detail, using IRAC for each requirement. Requirements for offence = list all requirements ……. For example, if you thought D had committed theft, you would start your answer in this way: D may be liable for theft. The requirements are: appropriation, property, belonging to another; dishonesty; intention to permanently deprive. Then you move on to consider each requirement separately. Each of the requirements must be established in order for D to be guilty. This is when you use the IRAC formula: Requirement 1 Issue: the issue is whether that requirement is met [e.g. The first issue is whether …] Rule: you outline and explain the relevant law that relates to that issue (see PowerPoint slides for basics, and textbooks for further detail) Apply: apply the rule you have just explained to the facts you have been given Conclude: state whether the requirement is met or not

Requirement 2: (basically repeating the above) Issue: the issue is whether that requirement is met Rule: you outline and explain the relevant law that relates to that issue (see PowerPoint slides for basics, and textbooks for further detail) Apply: apply the rule you have just explained to the facts you have been given Conclude: state whether the requirement is met or not

Requirement 3

5

REPEAT AND SO ON…..  



Once you have gone through each requirement and reach a conclusion on each, you then state an overall conclusion at the end: D is guilty/not guilty of ….. Sometimes it is not possible to come to a definite conclusion because, for example, the law is not very clear and we cannot be sure about what decision the jury would reach. In such a situation DO NOT SAY: It is for the jury to decide! Instead, you need to give the range of possible conclusions/outcomes and explain why (based on your assessment of the law (under the R part of IRAC), and its application (under the A part of IRAC) the jury may conclude D is or is not guilty. If there is doubt about whether D committed the offence you have just considered, and there is an alternative offence that could be considered, you also need to assess the alternative related offence. To do this, repeat all of the above.

(b) Defence If the facts indicate that D may be able to rely on a defence you do the following: Defence: identify the offence D may be able to use Requirements: list the requirements for the defence Then you move on to consider each requirement separately. This is when you use the IRAC formula: Requirement 1 Issue: the issue is whether that requirement is met Rule: you outline and explain the relevant law that relates to that issue (see PowerPoint slides for basics, and textbooks for further detail) Apply: apply the rule you have just explained to the facts you have been given Conclude: state whether the requirement is met or not

Repeat above for all defence requirements and state overall conclusion about whether D can rely on that defence If there is another defence D may be able to rely on, repeat above. -------------------------------------------------------II. 

If D was involved in another incident giving rise to criminal liability (or if there are other Ds in the scenario), you move on to consider those offences Repeat the above process with respect to analysis for offence(s) and defences(s)...