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So we're looking here at an essay and I am going to talk you through it paragraph-by-paragraph, giving you the sorts of thoughts I would have if I were marking it to give you an insight into the thinking behind marking and feedback.
So it's an essay there, you can see the question at the top. It's an essay about spousal immunity, whether it should be abolished, because it differentiates between marriage and cohabitation, or whether there's still a justification for its continued existence.
So I'd expect to see those things addressed in the answer. Take a look here at the introduction - I mean, this is a good introductory paragraph. I like it. It focuses on the key issue, which is the question about whether spousal immunity should be abolished. It picks up on some of the key terminology in the question. There's no mention of parity between cohabitants and spouses, though, which rings a little alarm bell, but there's still plenty of scope to bring that into it and I'm left with a generally good first impression. It's a pretty good introduction. It gives me an idea about what the essay is going to talk about and it's a good enough match with the question.
This paragraph here is a sound starting point for the essay because it explains the general rule, so the general rule is that all witnesses are competent and compellable and it establishes that spouses and, indeed, the defendant themselves are exceptions to that. So, it's quite a good context for the essay and it's particularly good to see inclusion of the rationale for the rule of comparability here because perhaps the essay will come back to that. So I'm happy with what I'm reading so far.
Okay, there's nothing wrong with this, as such. It brings in commentary, Frost's article and it outlines Frost's view about spousal immunity with admirable clarity. So it's fine as far as it goes, but I'm surprised to see it this early on. Normally in an essay like this, Frost’s arguments would come in later as arguments in favour of the continuation of spousal immunity and we aren't really at that point of the essay yet. So, it's good in its own right but I can't really see why it's this early on. It's also, I'm a bit concerned, it's a bit abstract - there's no link. It's just a paragraph, isn't it? There's no link to the paragraph that came before it and there's no link to the question. So, I'm left wondering what purpose this paragraph serves in answering the question and I'm wondering where we're going next. So yeah, there's nothing wrong with it as such, but in terms of essay-writing craftsmanship, I'm just wondering what's happening here. So, let's see what comes after this.
Okay, I'm not sure what this one's about at all. I mean it looks like this first sentence here builds on the point previously about requiring a spouse to testify being too great a thing to ask for them, it does pick up on Frost's point, it just doesn't say that. And then to throw in this idea from Hoskyn about - Hoskyn is a case that gave four reasons to justify the existence of spousal immunity, of which natural repugnance was one of them - o, I don't know. It seems like a bit of a throwaway here and I'm not really sure what it's doing. I'm also a little bit concerned because all of the arguments that have been made in this and the preceding paragraph could equally apply to cohabitation, which still hasn't been mentioned yet. So, not a great paragraph, but let's see where we go now.
My sense that this essay is a series of random paragraphs rather than a line of argument continues when I read this paragraph. Again, it's fine in its own right: the origins of spousal immunity are biblical, you could talk about the origins of the role and the idea of legal unity is part of this essay. That's absolutely fine. But it needs to be earlier than a discussion of Frost's arguments. It's a sort of, “where did the law come from?” point. Which naturally belongs earlier in the essay. And I'm not sure what the point about conspiracy and theft adds, really, here. So, it seems an unnecessary elaboration in an essay of this length. And again, where is the link to the question? I'm becoming less positive about this essay. It started well, but I'm wavering a little in thinking that it's going to turn out good.
Let's have a look. Yeah, again, this self-incrimination point which has already been mentioned. I mean this first half of the paragraph and this paragraph could have been combined together and made more concise and put earlier on when we were explaining where the law came from and why it's like it is. This second point about exceptions to the role and modifications to the law seems to have no relevance to the first part of the paragraph. It's two separate points in one paragraph and still no explicit reference back to the question - so, not so good, still.
And now here we are, finally there's a mention of cohabitation. This is better because that was explicitly the point of question so it needs to be addressed. Pearce, here, is a good case to use. I'd be unhappy if the essay didn't mention it, but so much more could have been done with it. I mean, this is a gross over-simplification of the discussion in Pearce, which was explicitly about whether or not spousal immunity should be expanded to cover cohabitants, an argument which was rejected by the Court of Appeal. So, I mean that needed to be pulled out a lot more here I think. It's a clever idea to counteract it with CPS and register of births, deaths, and marriages, but again, could perhaps have done a little bit more with it. So, it's good to see these cases in there. Clearly the person who wrote this understands what they're about, but we're not really doing justice to them in the context of this essay, yet.
And this, now, is a bit of a missed opportunity. We're talking about the reasons that spouses and cohabitants are treated differently. So it's an invitation, really, to discuss something in this area of law called the “substance and form argument” but that's not mentioned. And this is all a little bit superficial, really. I'm quite frustrated with this essay now because all of the ingredients of a good answer to this question are here, they're just not being used as effectively as they could. So there are all the ingredients of a good discussion, but the good discussion isn't happening.
We're at the conclusion now and you know, of course, that this should match the introduction and really tackle the explicit questions, explicit points raised by the question head-on. It is talking about the need for parity between cohabitation and marriage, so it's touching on them. But the question specifically said that spousal immunity should be abolished to create parity and it hasn't really talked about that. It just says there's no justification for abolition, but we haven't really discussed that, unfortunately. And this point about cohabitants could just get married is a little bit strange and not altogether helpful.
So overall, then, the essay started really nicely and then it suffered a little bit, it became too abstract from the question. The structure wasn't good. There were some points early on that belonged later. Case law was used, but not as effectively as it could have been. And the key thing really is just - we sort of meandered through some relevant material but never really got to grips with the question.
So my overall positive first impression became -I became less impressed as the essay moved on. It started with promise, but that fizzled out. It needed a stronger and explicit link with a question and a clear line of argument. One of the key things that it does, which students often do, is to talk about issues without explaining why they're relevant to the question. So you're talking about relevant subject matter, but not actually answering the question. You can't leave the lecturer to make the link between your content and the question themselves. So, make sense of the question, look at what it asks, and make sure you're actually answering it, not just talking about things that are relevant to it. Repeating the language of the question can be helpful there. But I mean, if you check back over these paragraphs and ask in each one, where is the link to the question? The answer is, I think, in each case, I don't see it. And that's a shame, because it was an essay with a great deal of potential.