Oscar Pistorius guilty of culpable homicide – an English legal perspective: Has the judicial system failed? And how did Oscar just walk free?

London solicitor Julian Young analyses the case from a UK viewpoint, and questions how the outcome might have been different had it taken place in an English court

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The Independent Online

Yesterday and today Judge Thokozile Masipa has given the reasons for the verdicts reached in the trial of Oscar Pistorius.  He was acquitted of premeditated and common law murder but convicted of culpable homicide and one firearms offence and released on bail, for sentence on 13th October.

A number of interesting questions arise from the trial.

Firstly, what would have been the position if the trial had been before a judge and jury in a Crown Court?  If Oscar Pistorius had been charged in England with murder, the prosecution would have had to prove that the defendant either intended to kill or cause really serious harm to the victim.  Nothing less than either intention suffices for a conviction. That is not the same as South African law, where murder as an offence exists in different classes; premeditated [pre-planned] murder and 'ordinary/common law' murder where the prosecution would have to prove an unlawful intent to kill without planning (malice aforethought).  In my opinion, these relatively subtle distinctions more accurately reflect the realities of an accusation of murder. The English requirement for murder to include an intent to cause 'only' very serious injury rather than to kill is illogical.

Secondly, Pistorius was convicted of culpable homicide – an equivalent to manslaughter in England & Wales.  The concept of manslaughter has been examined in the UK courts and can best be defined as a killing as a result of the unlawful act of the defendant and which any sober and reasonable person would realise would result in some harm to the victim.  Judge Masipa [and her assessors] accepted the evidence that Pistorius acted too quickly, that there was another avenue open to him deal with the perceived danger [calling for assistance], and that he used excessive force. Thirdly, Pistorius was convicted of discharging a loaded firearm in a restaurant.  A foolish and criminal act which his defence counsel appears to have accepted as being made out on the evidence before the court.

As for being remanded on bail pending sentence, I am surprised that he was admitted to bail and that the judge did not sentence him today.  It is correct to say that Pistorius has been on conditional bail effectively from charge to trial, but prison appears almost inevitable in view of the findings of the Learned Judge; it certainly would be in English law.  Since the court has heard from Pistorius, both from his own mouth and through psychiatric reports, I am also surprised that, subject to hearing from the defence advocate in mitigation, the judge did not move straight to sentence. That would almost certainly have happened here in England. The defence team should or could have planned for conviction[s] and prepared their mitigation appropriately.

There is one interesting aspect of the trial. The judge gave a full and reasoned judgement indicating the evidence which she [and the assessors] did and did not accept. Here we only receive the verdict of the jury; guilty or not guilty without any reasons or the ability of the defence lawyers to challenge any specific findings made by the jury. Although such findings might not permit a jury to acquit in the face of evidence, perhaps the provision of written reasons for a verdict is an aspect of South African criminal justice which should be discussed in the UK at some time in the near future.

Julian Young is  a solicitor and solicitor advocate, and senior partner at Julian Young and Co. in Central London

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