On Thursday 10th March 2011 the day of online dissertation supervisor sign-up arrived, and having been regaled by horror stories of over-sleeping and waking to find the only remaining title on offer was "An In-depth Study of Medieval Land Law," I had set my alarm for 6:30 a.m., a good hour and a half before the online system "went live," to ensure both mind and forefinger were primed for prompt clicking/'refreshing homepage' action. Many of my peers were hoping to choose a title focusing on an area of law they had performed well in during the previous term exams, while others were willing to choose almost any topic as long as it didn't involve land or contract law; the collective nemeses of most law students. I, on the other hand, had a more personal reason for wanting to write about my chosen topic -- "the relevance of cultural background to the application of the law" -- my interest in it having been triggered while spending time in East Africa the previous summer.
I had traveled with a team of several other law students as part of a 'Summer Justice Mission' program, and before embarking on our African adventure we had undertaken a day-long training session on cultural differences to ensure we wouldn't inadvertently offend our African hosts. Over the course of six weeks living and working in Rwanda, Uganda and Kenya, differences in culture became a key topic of conversation, as we noticed obvious cultural differences between our team (composed mainly of Westerners) and the different African nations we visited, in the way we behaved and communicated, and even in our perceptions of whether a certain action or statement was acceptable or offensive.
This led me to consider the extent to which the societal values with which we have been brought up govern what we consider to be accepted standards of behavior, and I began to consider the problems that this could cause in the criminal law. After researching further I discovered that an area in which differing societal and cultural values would cause major problems was the newly reformed partial defenses to murder.
In this area of the criminal law the defense of "loss of control" can be raised against the charge of murder where a "qualifying trigger," is present, namely where "circumstances of an extremely grave character" and a "justifiable sense of being seriously wronged" are seen to exist by a jury. While a defendant from a Western, specifically British cultural background can readily explain to the court why a certain insult or event caused him so much anger or offense that it triggered him to kill, the same will not be true for a defendant with a different cultural background, triggered by an act or insult with which the jury is unfamiliar, for example, an insult spoken in a language that the jury do not understand or an action, which would be found offensive or provocative only by members of the specific cultural background of the defendant. In these circumstances a jury will be unable to assess whether the reason for their loss of control has met the necessary threshold to be regarded as "a qualifying trigger." As a result of this, members of minority culture backgrounds are prevented from successfully raising the defense, with the implications of this as far reaching as a potential human rights violation, on grounds of discrimination.
When I initially began researching this topic I discovered that little academic literature, which considered such cultural issues in a legal environment existed, and as a result much of my research was carried out using primary sources, which meant a welcome visit to the brightly lit anthropology and psychology sections of the library rather than lurking amongst the law books in the building's lower catacombs. Although taking on such a challenging topic was at times a cause of significant stress, I'm glad I wasn't deterred by the lack of existing academic research. Although it's easy to think "if no one else has written about this before, it's probably not worth writing about now," you have to have faith that your supervisor wouldn't agree to supervise a thesis if its basis was fundamentally flawed, and daunting though the task may have been it was this piece of work that has made me the proud winner of the Undergraduate Award for Law. Another main benefit of carrying out a truly original or innovative piece of work is, no one can accuse you of plagiarism.
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