30 November 2013

'Academic', 'Practical', Moss v The Queen

It is surprising how many officials cause problems because they neglect simple legal requirements. Moss v The Queen [2013] UKPC 32 for example arose because a Commonwealth of the Bahamas' Court of Appeal and trial court decided not to hear part of the appellant's testimony. I use this as a catalyst to explore the way 'academic' is sometimes contrasted with 'practical'.

1. Reasons For Moss' Appeal

The Crown initially prosecuted Moss (D) for murder. The punishment was the death penalty. On appeal the charge dropped to manslaughter. D's sentence reduced to twenty-five years' imprisonment. The charge and punishment were lowered because D may have been drunk during the crime.

Murder in the bahamas requires an intention to kill, which may be precluded by inebriation. If drunk, D may have killed the victim but not 'murdered' her. The trial judge omitted to discuss this issue even although the appeal court lowered D's sentence on the basis of that omission. Neither court, however, permitted D a personal 'opportunity to be heard' (at [4]).

2. Further Arguments from Appellant and Crown

Considering the co-accused's sentence is only six years, D argues his twenty-five is excessive. The Crown agrees defendants deserve an opportunity to be heard but a co-accused's sentence does not set a benchmark for every colluder. D's co-accused's sentence is therefore an insufficient reason to rest an appeal on.

The Crown also confirms it is sometimes possible to predict that a sentence-appeal will not reduce a tariff. Moreover, a successful appeal cannot rescue an appellant from an injury already caused, suffered from, and ended: if refusing to hear D's appeal will not induce any extra injury, the Crown may refuse to hear D's testimony. The Crown's argument relies on saving time.

The Privy Council agreed with the Crown on these points. Lord Hughes progressed the idea. He asserted that if the appeal would be purely 'academic', an appeal against sentence could be legitimately denied. An appeal would be 'academic' if the convicted has already been released from prison. It doesn't matter then whether the term was excessive: after serving, it is too late for a reduction; so an appeal over sentencing would be inappropriate. (That is not to exclude a claim for restitution, compensation, or an apology.)

3. The 'Academic' Problem

Lord Hughes writes 'academic' here to imply something is of little consequence or practical import. To reiterate the Crown's argument, the appeal would be academic if the sentence were already served. It is worth noting, however, that for people who do things in the future, not much in law is solely academic: how a court determines a legal question today may directly impact how individuals are permitted to act in the future.

Protention--to imagine future events--is relevant no matter how near or far into the future one thinks. The law may be used to help predict how authorities will later react. But it is impossible to predict accurately what events will happen, or behaviours people will execute. More importantly, it is impossible to know when these events will happen.

The point I make here is that it is impossible to know just how 'academic' determinations are unless one knows when those determinations will next be engaged. If for example Lord Hughes dismissed Moss' appeal because he considered it 'academic', and the next day the same question arose, he might suddenly have realised that his then-academic consideration would have become immensely practical--especially for the fictional-though-unfortunate defendant whose freedom might have depended on a Privy Council opinion.

Unfortunately for my argument this point is moot. It is academic. If an appeal against sentence in a similar case must be allowed or dismissed tomorrow, Lord Hughes would already know of it because the law moves so slowly. He would already know that to reject Moss (due to its being academic) would only allow the same issue to be raised in a more practical light tomorrow.

4. 'Practical'

In an early twentieth-century Harvard lecture, ' Philosophy: General Introduction', Ralph Perry defines 'practical', which 'seem[s] to mean relevant to the matter in hand' (at 7):
The practical is anything that will serve the end already (…) pursued; the unpractical is anything else, and especially reflection on the end itself (at 7).
The 'academic' as alluded to by Lord Hughes is consilient with the 'unpractical' in Perry's analysis. Furthermore, this illustrates that Lord Hughes' use is acceptable: 'academic' is attributable if one cannot identify a practical application.

The point discussed in Moss v The Queen had not become academic for the appellant. There was still time for Lord Hughes to facilitate justice and serve that already pursued aim. Although the appellant had served some of his sentence, it is unlikely he would have the whole thing quashed, so there was still time to avoid any potentially surplus injury.

5. Concluding Remarks

Lord Hughes delivers a clear opinion in Moss. Though some critics use 'academic' with a disdainful tone Lord Hughes is respectful and accurate in his allusions. 'Academic' and 'Practical' certainly raise problems. When considered alongside philosophical observations, however, 'academic' and 'practical' may adequately propel an argument for or against the type of issues suitable for judicial consideration. Such arguments may be useful for both sides--prosecutors and defendants, appellants and respondents--because if one convinces a court that an issue is academic and outside its jurisdiction, one is closer to a favourable result.

Further Reading

For those enticed by the brief reference to 'protention', it is contrasted with 'retention' (events extending into the past) and you can read more in David Carr, 'Time, Narrative, and History' (Indiana UP 1991). So far as I know, the words originate in Husserl's work (see Carr 20, n 3).

Though I have yet to read any in detail, Ralph Perry wrote other texts, such as The Approach To Philosophy (1905, Hardpress 2013). You can find free online copies at Project Gutenberg.

Created: 30 November 2013. Version 1.0.

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