All criminal appeal cases have their origins in the trial courts. All legal principles developed by the appellate courts have their origins in things that have happened to and between real people living in the real world. Despite the accurate and often vivid accounts that appeal court judges provide of the facts that have given rise to appeals, these accounts will necessarily be partial and monologic. Because appellate judges are concerned with those matters that give rise to appeals (such as misdirections as to the law by trial judges), they will necessarily and inevitably focus on matter that is material to the question they are asked to address and discard the flotsam and jetsam irrelevant to that question. For the undergraduate student who merely wishes to 'know what the law is', there is no need to be concerned with the trial. But for the one who wishes to understand what the law involves, engaging with the human origins of that law is, I suggest, a valuable thing. Not only does it provide a fuller picture that can help explain, in an exciting and engaging way, the basis for the development of legal principle, it has an important pedagogical effect - one discussed in the context of medical education by Martin Johnson (2002). In a fascinating essay, Johnson discusses male medical students' attitudes to examining the male body - something which, in the context of intimate examination, many find difficult. One cause of this, Johnson suggests, is the fact that medical students' approach to living bodies is profoundly influenced by the fact that their first confrontation is with dead ones. Johnson speculates about the way in which there may be parallels (and similarly negative consequences) in legal education:
In education generally, and professional education such as medicine and law in particular, there has perhaps been too little emphasis on the role that emotions can play in conditioning intellectual and behavioural activities. Thus, the expression of emotion professionally is generally disapproved of, and this disapproval has translated somewhat illogically into training and educational regimes that encourage suppression of emotion and thereby denial of its importance. (Johnson, 2002, pp. 99-100)
I think Johnson is right, and I think that by teaching law primarily through legal cadavers (the decided case), we contribute to the distancing of students from the affective dimensions of the subject. For some, no doubt, this will be thought right and proper; but I do think there is scope for at least exploring the 'living law' in parallel, for at least part of the study of criminal law.
The law has to confront a range of problems when dealing with human relationships, especially sexual relationships. Consent as a defence to a charge under s. 20 of OAPA is a technical, legal question but one that has developed through cases, such as R v Konzani, where we are witness (if we engage critically with the evidence at trial) to a number of important matters: the (mis)communication that can exist between sexual partners, the source and causes of false and harmful assumptions about risk and potential harm, the ways in which physical desire can result in the repression and denial of danger, the way conscious participation in risky behaviours increases with growing intimacy, how trust is developed and undermined, and the way the dynamics of specific, meaningful relationships can cause people to ignore risks of which they are conscious in general terms.
Trial transcripts give us, as students and teachers of law, an opportunity to reflect on the way human passions, sentiments, behaviours and expectations are, through the reductive lens of the criminal law, understood as problems capable of legal resolution. Lived experience is rendered into a set of discrete resolvable questions, organized and framed by the elements of the offence to be proven, which are possible (and necessary) to answer. That answer (the reaching of a verdict) is achieved by the asking of questions which must of necessity occlude the inconclusiveness and complexity of experience. The difficulty is that it is not possible to exclude fully from such questions the complexity, the relevance of which they attempt to deny. The reductive process is porous, impossible to seal completely. There is, it would appear, an intuitive sense that knowledge matters - that it is important in establishing the presence or absence of consent (in this case illustrated by the idea that a person consciously aware of a partner's HIV positive status might reasonably be thought to have consented). In this sense the importance of knowledge is affirmed. At the same time it is denied (because there is no legal obligation - unlike, for example, in Canada - to disclose such status). Of more concern, perhaps, is the fact that all this lived experience - what happened in the real world, in real time, to real people - can be reduced to imagining, hypothetically, the effect on the complainants' decision-making of information provided via the surreptitious whispers of a fictive, talking bird.
The trial of Feston Konzani provides us with a valuable insight into the ways in which concepts and categories, typically articulated and explored merely as legal principles open to intellectual analysis and clarification within the comparatively sterile surroundings of the criminal appeal courts, have a vibrant and contested life, meaning and application in the real world of trial courts. We can continue to ignore this, or we can embrace it. I would suggest that the latter has the potential to make the study of criminal law more relevant, more exciting and more real.