Examiners’ reports 2016

Examiners’ reports 2016

LA1010 Criminal law – Zone B

Introduction
As in previous years, the examiners attempt to make the examination as
straightforward to pass as possible for those who are prepared to put in the hours of
study and revision. Your subject guide, together with your textbook, consolidated by
the activities appearing in each chapter. These activities direct you to sections of
the textbook. If you now go through the examination paper below with your subject
guide open you will see that everything you need to answer the questions is there.
For example, look at Question 1 and turn to 7.4.4 in the subject guide together with
the associated activities and summary, and the references made to the textbook, to
help you to complete the activities. If you do this, you will have all the information,
knowledge and understanding to get a very good mark indeed! You will see, for
example, that the activity directs you to Case 11 in Wilson which answers much of
the question for you! Make life and study easy for yourself: follow the advice and
structure your study around the subject guide and the textbook.

Comments on specific questions

PART A – Multiple choice examination

Feedback on the multiple choice exam is provided on pages 12-15 of this report.

PART B – Problem/essay question examination

Question 1
Asif is a builder who has been engaged by Sami to replace some broken tiles
on Sami’s roof. While Asif is on the roof Elspeth spots his ladder and steals
it. Not knowing the ladder has been taken, Asif slips off the roof in trying to
locate the top rung. He falls to the ground seriously injured. Sami, who is
watching his favourite football team on television, sees Asif fall but does
nothing until the end of the game 30 minutes later by which time Asif is near
to death. Sami calls for an ambulance and Asif is taken immediately to
hospital but Asif dies soon after arrival. Medical evidence indicates that if the
ambulance had been called promptly Asif would probably not have died.
Consider the potential criminal liability of Elspeth and Sami. Would your
answer be any different if Elspeth had not stolen the ladder but had removed
it as a joke and had left it nearby?

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General remarks
As always, you must start with the harm which has occurred, i.e. death. Then
identify the offence which may be involved. Here it is manslaughter (no evidence of
mens rea for murder). You shot yourself in the foot if you considered murder since
there is no evidence of an intention to harm, let alone seriously harm, Asif. There
are two potential defendants to a manslaughter charge, namely Elspeth and Sami.
Their respective liability should be dealt with separately. Elspeth’s potential liability
is for constructive manslaughter arising from her theft of the ladder. Sami’s will be
for gross negligence liability arising out of his failure to help until too late. If there is
any overlap, e.g. Elspeth and Sami might both be at risk of prosecution for gross
negligence manslaughter, cross refer rather than repeat yourself.
Law cases, reports and other references the examiners would expect you to use
Key cases on constructive manslaughter include Newbury and Jones (1976),
Jennings (1990), Church (1965).
Key Cases on gross negligence manslaughter including Adomako (1994),
Willoughby (2004); Wacker (2003), Evans (2009).
Key cases on duty in cases of omission including Pittwood (1902), Miller (1983)
Miller 2002, Evans (2009).
Key cases on causation e.g. Roberts, Paget (1983), Smith (1959), White (1910),
Lebrun (1992), Church (1965).
Common errors
Included talking about theft. This was completely unnecessary and a waste of time
as you were told Elspeth had committed theft.
A good answer to this question would…
include the following.
Elspeth (constructive manslaughter)
You should define constructive manslaughter and identify the elements. These are
the commission of an unlawful and dangerous act which causes death. You should
then examine the facts and identify what is at issue in this question.
The first issue is whether Elspeth has committed an unlawful act and what that act
is. This needs to be specified, e.g. Jennings. It is, of course, theft. The second is
whether Elspeth’s unlawful act (theft) was dangerous. You would need to have
given the Church definition of ‘dangerous’. (N.B. 7.4.6 of the subject guide and
Activity 7.11 tells you to learn this by heart. Did you?) You gained marks for
explaining why stealing a ladder in these circumstances might be dangerous. It
would only be dangerous if Elspeth had reason to know Asif was on the roof
(Watson) because ‘dangerous’ means that reasonable people would recognise that
others might suffer harm as a result and they would not recognise this if they had no
reason to know Asif was on the roof. (Dawson. See 7.4.6 of the subject guide). The
third issue is whether Elspeth has mens rea. She has because the mens rea for
constructive manslaughter is the mens rea for the base crime (here theft e.g.
Newbury). The fourth and fifth issue concerns causation. Can it be argued,
assuming the rest of the elements of manslaughter are present, that Elspeth’s act
did not cause Asif’s death, either because it was self-inflicted or because Sami’s
omission broke the chain of causation? (Cases such as Blaue (omissions) and
Roberts (foreseeable self-inflicted harm) indicate that neither of these are operative.
See 4.3.5 and 4.3.6 of the subject guide and Wilson 5.6.A.2).
If you conclude that constructive manslaughter might be difficult for some reason
(the only realistic reasons would be ‘dangerousness’ following Dawson) then gross
negligence manslaughter might be tried. This will also be the only route to a

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conviction in the alternative scenario because, if the ladder was removed as a joke,
there would be no theft and so no unlawful act. GN m/s can be committed by act or
omission. There is clearly a duty not to act dangerously (Wacker, Willoughby). Apart
from causation (see above) the main issue here would be whether there was gross
negligence as to the risk of death (lesser risks are insufficient – Adomako). You
might have tried reckless manslaughter but this would require actual foresight of the
risk of death/serious injury.
Sami
Sami has two roles to play in this question. First, was his omission a novus actus
interveniens? For discussion, see above. However, he might also be liable for
manslaughter in his own right. He could not be guilty of constructive manslaughter
which requires an unlawful act. But he could be liable for gross negligence
manslaughter but only if he was under a duty. Unlike acts, duties arising from
omissions are limited in scope. The main issue then is what would be the source of
any duty? There are a number of possibilities. First, the fact that he had engaged
Asif under a contract of services. It is not clear whether Pittwood would apply in
such a case because, under contracts of services, the householder will expect the
contractor to make his own safety arrangements. His ownership of the house might
be another source of a duty. There is no authority on this but it is arguable (Wilson
4.5.D.3). Finally, he is responsible for Asif being on the roof in the first place and
roofs are dangerous places! It could be argued that by extension from Miller and
Evans he has contributed to the creation of dangerous situations and so is under a
duty to ensure that any problem is addressed, if he was under a duty.
Poor answers to this question…
ignored the main issues preferring to concentrate on the first thing that came into
the candidate’s head, for example, talking at length about theft, because the
question mentions theft, or murder because Asif has died. You should never start
writing until you are clear what offence(s) the question involves. To make things
simple why would the police be investigating this case? Because of the theft of a
ladder? Hardly! Would they be seeking a prosecution of either defendant for
murder? Again, hardly!
Question 2
Jane, a customer, asks Roger, a grocer, if his vegetables are organic. He
confirms this to Jane. Roger purchases all his produce from what he believes
is an organic farm but he is not absolutely sure.
Later, Roger goes to a drive-in carwash. He finds that he has no loose change
in his pocket and so, being in a hurry, tries to put a foreign coin in the slot.
The coin does not fit the slot and so he goes to the carwash next door. This
time he is successful with his use of the foreign coin and his car is washed.
He then fills his car up with petrol. On reaching the cash desk he discovers he
has not brought his wallet with him. He tells Ahmed, the cashier, of his error
in relation to the petrol and the foreign coin and tells him that he will return
later to pay. Roger later decides not to return to pay.
Discuss Roger’s potential criminal liability.
General remarks
This is a question mainly concerned with fraud, including obtaining services
dishonestly and making off without payment. The different scenarios are intended to
test your understanding of the points of comparison and contrast between these
offences.

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Law cases, reports and other references the examiners would expect you to use
Corcoran v Whent; (1977), Vincent (2001), Allen (2005), Ghosh, Hammond and see
below.
Common errors
Many candidates wasted valuable time writing out the relevant sections of the Fraud
Act. You would get no marks for this. Candidates also often relied on s.3 which was
not in point. Candidates also tended not to analyse the facts of the question
sufficiently thoroughly. For example, it is not obvious from the facts whether, at the
time of putting the foreign coin in the slot, his intention was to avoid paying entirely
or whether it was done simply out of convenience. If it was done out of
convenience, it would mean that the dishonesty component in fraud by
representation and obtaining services dishonestly may be negated. Also, under s.2,
it might mean that no gain was intended (s.5(3)).
Finally, very few students covered all the potential wrongs committed here.
A good answer to this question would…
separate out the different scenarios as follows.
Roger’s organic vegetables
You should have considered whether: Roger made a representation about the
vegetables and what it was. You should have also considered whether whatever
representation Roger made was false in the sense of being untrue or misleading;
whether Roger knew this or knew it might be; whether Roger intended by that
representation to make a gain or cause a loss or might he have other reasons for
the representation? Whether Roger was (Ghosh) dishonest.
The first car wash
By trying (and failing) to put a foreign coin in the slot was Roger ‘making a
representation’ within the meaning of s.2(1)(a)? If so, was this dishonest or simply
done out of convenience? See above. Only if it was not a representation would an
attempt be worth considering.
Was it done to make a ‘gain’? What was that gain? Soap and water and/or non-
payment of debt within the meaning of s.5 (3)?
The second car wash
As above. The important difference is that, in the second case, a representation
definitely has been made. A good answer would have specified what that
representation is and why it was false. Roger was representing that his coin was the
correct coin for the purpose when it was not.
The petrol
There is no evidence of an intention not to pay from the outset so theft of petrol
does not need to be addressed in detail except to deny it. Corcoran v Whent.
Paying for the petrol
Fraud by false representation requires the representation (that he intends to return
and pay) to be false. The element of intention to make a gain requires consideration
of s.5(2) and (3). This is not clear from the facts. Making off without payment
similarly requires Roger to intend not to return and pay at the time he departs from
the cash desk (Allen). There is also an issue about whether the offence is
committed where departure is permitted as here. The indicative case is Hammond.

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Poor answers to this question…

many students skated over the main offences and dealt with each scenario on the
basis of one offence only, particularly making off without payment.
Question 3
Mark is in love with Louise who is married to Nick. Mark tells Nick that Louise
has been having an affair with Russell, which is untrue. Nick confronts Louise
and challenges her to deny the accusation. She refuses angrily, telling Nick
that she would have an affair with Russell if she had the chance as Nick is a
‘loser in a dead-end job’, is no good in bed and is physically repulsive. In a
fury Nick picks up a poker and aims a blow at Louise. In attempting to avoid
the blow, Louise slips over and hits her head on the fireplace, rendering her
unconscious. Nick storms out of the room shouting, ‘That serves you right.’
When he returns hours later Louise is dead, having suffered heart failure.
Discuss.
General remarks
This was a straightforward case on murder and the partial defence of loss of self-
control. As always, you were expected to deal first with murder and only having
satisfied yourself that there is a case to answer to talk about the defence. There are
two issues on murder, namely mens rea and causation. There are three main
issues on loss of control namely whether there was a loss of self-control, whether
there was a qualifying trigger and whether the reaction was consonant with that of
an ordinary person with normal levels of self-control.
Law cases, reports and other references the examiners would expect you to use
Coroners and Justice Act 2009, ss.54 and 55. The Law Commission Report on
Partial defences and cases such as Acott (1996), Ahluwalia (1992), Clinton (2012)
Dawes (2013), Hatter (2013).
Key cases on the mens rea for murder, in particular Moloney (1985), also Woollin
(1999) and Matthews (2003).
Key cases on causation e.g. Roberts (1967), Paget (1983), Smith (1959), White
(1910), Lebrun (1992), Church (1965).
Common errors
Many students skated over the offence elements and related factual analysis to
concentrate almost exclusively on the defence. Too many students copied out s.54
word for word.
A good answer to this question would…
state the offence to be charged as murder, define and identify the elements and
indicate that the main issues concern mens rea and causation. On the mens rea
issue there should have been consideration of the facts which might support a
conviction, in particular the motive, the fury and the aiming of the blow at Louise
with a poker, an object quite capable of causing serious injury at least if aimed at
the head. That he intended to cause serious injury at least gains further support by
his immediate reaction to her unconsciousness, ‘That serves you right’. On the
causation point, mention should be have been made of the tests for causation, in
particular, that factual causes of harm are also the cause in law unless the chain of
causation is broken by an abnormal/unforeseeable event or voluntary act. In
particular, you should have questioned whether the heart attack was a complete
coincidence or was influenced by the attack and its aftermath.
On the issue of loss of control, a good answer to this question would have identified
elements s.54, indicating that loss of temper is not the same as loss of control – e.g.

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Dawes. You should also have made the point that an accusation of infidelity
(s.55(6)) e.g. Clinton; Dawes and Hatter is not a qualifying trigger (s.55(6)),
although the defence can still be relied upon if other circumstances of an extremely
grave character are present e.g. Clinton; Dawes and Hatter. You should then have
considered the overall context of abuse including the hurtful statements made to
Nick to decide this and whether it would have caused a justified sense of being
seriously wronged and the objective ‘reasonableness’ of the reaction under
s.54(1)(c).
Although not required, you would have been given credit if you had decided for
good specified reason that murder was not available on the basis of the act (blow
with the poker) but might be on the basis of Nick’s failure to help – mens rea and
causation as above. You would also have been given credit for considering as your
default offence constructive manslaughter. Again, this was not required if the first
part was well done.
Poor answers to this question…
ignored key parts of the question. In particular, the elements of murder and whether
the heart attack was independent of the attack or a coincidence.
Student extract
For the purpose of this question, we must look at the defence of loss of self
control, provided in the section 54(1) of the Coroners and Justice Act and the
liability for murder and manslaughter.
Murder is the unlawful killing of a human being with the intention to kill or
cause GBH. Here Nick satisfies the actus reus of causing GBH ‘by aiming a
blow’ to Louise. His attempt, although unsuccessful is still an attempt.
Whether Louise’s fall was grievous is defined under the Crown prosecution
service. Nonetheless we are still posed with a question. Did Nick intend to
cause Louise’s death? (Vickers and Cunningham). I[f] he did intend so, is the
defence of loss of self control available to Nick. The defense of LOSC
requires the act to be the result of a qualifying trigger and the act must be a
result of a loss of self control and not premeditated or done out of revenge
(Ibrans). The first qualifying trigger is the fear of serious violence which is
irrelevant here. The second qualifying trigger poses two questions…
Comments on extract
There are some good bits and bad bits here. The good bit is that it is essentially
well structured. It moves from talking about the offence and whether its elements
are satisfied to talking about the defence and whether its elements are satisfied. It
does so in a logical order and key authorities are mentioned. However, there some
problems here. The first, not a disaster by any means, is the first paragraph where
the defence is mentioned before the offence. This is not good structure. Luckily the
candidate structures the succeeding paragraphs properly, exhausting discussion of
murder and its elements before moving on to loss of self-control. However, the
discussion of murder is confused. It reads ‘Nick satisfies the actus reus of causing
GBH “by aiming a blow to Louise”’. This does not follow on from the previous
sentences. A better statement would be that, by aiming the blow at Louise which
resulted in her death, the act element of the actus reus of murder is satisfied. This
improved statement ignores the issue of causation, that is, did the blow result in the
death? The candidate deals with this out of turn after dealing with the defence. The
point the candidate should have been making is a point about the mens rea not the
actus reus. By aiming a blow at Louise with a poker there is evidence that he
intended to cause her GBH which is sufficient for murder. So long as the attempt to
hit her caused the death, the actus reus is also satisfied. The authorities referred to
i.e. Vickers and Cunningham support this. There is another confusion here, namely

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the reference to ‘attempt’, which is nothing to do with what the candidate is trying to
establish, namely the elements of murder. Finally, although the candidate correctly
states that the mens rea for murder is an intention to kill or cause serious injury
(s)he forgets this when (s)he says ‘we are still posed with a question, did Nick
intend to cause Louise’s death?
The moral of the story is that you should think what you want to say before writing.
This candidate did not and so jumbled up the different parts of the murder cake
making for a confused analysis.
Question 4
Consider and discuss the potential liability for theft in EACH of the following
situations:
a) Gibbons, a stamp collector, spots a rare stamp on Orlando’s stamp
stall at a car boot sale. Orlando, who is 12, is selling all his stamps
to raise money for charity. Gibbons offers Orlando £5 for the stamp
although he knows it is worth nearer £50,000. Orlando accepts and
the deal is done.
b) Alan takes a cheque for £100 drawn by Cherry and made payable to
Barbara. Cherry has £100 in her bank account. Alan opens an
account in the name of Barbara and pays the cheque into the
account causing a transfer of funds from Cherry’s to Alan’s
account.
c) Jobs, a software developer, is in the process of developing a new
application (App). Berners, his assistant, downloads a file
containing a prototype of the application from Jobs’s computer
onto a USB memory stick intending to sell the prototype to a rival
organization.
General remarks
These are three very straightforward theft scenarios. To get good marks you would
need to answer each of them well. You should avoid multi-part questions if possible
if there is one or more you are unsure of.
Law cases, reports and other references the examiners would expect you to use
See below and Morris (1984), Pitham and Heyl (1977), Broome and Crowther
(1984), s.2 Theft Act 1968, Ghosh (1982), Marshall (1998), Oxford v Moss, Dixon v
R (2015), Chan-Man Sin v A-G for Hong Kong (1988), Hinks (2000).
Common errors
Few students seemed to have studied the subject guide and done the activities.
Instead, there was a tendency simply to talk about stealing £100 (b) or what the
stamp was worth (a). A disappointing number of students failed to consider whether
an ‘app’ was property and if so what kind (Wilson 12.2.2.9b).
A good answer to this question would…
have included the following.
Part (a)
You should have considered generally the elements of theft -– once only was
necessary. There was no need to duplicate discussion in the other sections. The
first question is largely concerned with appropriation and the relevance of Orlando’s
consent in the light of Hinks and Gomez. Liability would depend upon a finding of
dishonesty in the light of s.2(1)(a) and (b) and Ghosh.

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Part (b)
This was a very straightforward question which, if you had read the subject guide
and done the associated Activities 12.1 and 12.2 which is covered in the
accompanying text in Wilson (14.2.A 2.), would have been very easy. The question
requires you to identify the nature of the property appropriated that is the cheque
form and the thing in action represented by the bank funds. It requires you also to
analyse what the respective appropriation comprise, i.e. taking the cheque form and
paying in the cheque e.g. Kohn; Chan Man Sin.
Part (c)
You should have considered whether the prototype app is property within the
meaning of s.4. If so, what type? Is it tangible property, intangible property, or not
property? Relevant cases include Oxford v Moss. Although not mentioned in the
subject guide, the New Zealand case of Dixon v R [2015] NZSC 147 is also in point
although reference was not expected.
Poor answers to this question…
tended to talk generally about theft and dishonesty in particular rather than
analysing the facts and teasing out the issues arising in relation to each scenario.
Question 5
What, if any, DEFENCES are available to Sim, Rita, David and Ben to criminal
charges in the following THREE situations:
a) Sim is driving along a motorway in his car. He notices a lorry is
driving dangerously close behind. Sim breaks the speed limit to
avoid a possible crash.
b) Rita is a diabetic. One morning, on the way to work, she is raped by
John. Despite being traumatised by the rape she makes her way to
work. A little later, while sitting at her desk, she succumbs to
hyperglycaemia, having forgotten to take her insulin due to the
trauma of the rape. She becomes very confused. Moeen, a male
colleague, notices that Rita is looking unwell. He goes over to her,
puts his hand on her shoulder and asks her if she is all right. Rita, in
her confusion, thinks Moeen intends to rape her and so punches
him in the groin.
c) David sees Ben, a work colleague, bullying Julio. He approaches Ben
and tells him ‘to pick on somebody your own size’. They agree to
‘settle things’ in the boxing ring in the work’s gym. They fight
together one evening and each suffers cuts and bruises.
General remarks
This was generally disappointingly done. Again, if you had read the subject guide
and associated text in the textbook you would have found this a lot easier. The
question asks you to consider defences not offences. Part (a) concerns the defence
of duress of circumstances and/or necessity. Part (b) concerns self-defence,
insanity and automatism. Part C concerns consent.
Law cases, reports and other references the examiners would expect you to use
include a selection from the following
See below and Clarke (1972), Hennessy (1989), Rabey (1980), R v T (1990), Quick
(1965), Beckford (1988), Oye (2013), Martin (1987), Conway (1988), Pipe (2014),
Martin (2013), Martin (1989), Conway (1986); Willer (1986), Palmer (1971), Hasan
(2005), Bowen (1996), Howe (1987), Graham (1982), Howe (1987), Pipe (2102),
Quick (1973), Sullivan (1984), Bratty (1963), Burgess (1991).

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Attorney General’s Reference (no 6 of 1980), Brown (1993), Savage (1992).

Common errors
Many students mistook part a as a question on self-defence and ignored self-
defence in Part b.
A good answer to this question would…
have included the following.
Part (a)
This question is essentially the same as that found in the subject guide at
Illustration 11.2 and Activity 11.2, which tells you to commit the principle to memory.
Very few did! The question is also found in the corresponding text in Wilson at 10.3,
Case 4. Even worse, many students treated it as a case of self-defence when, if
you had read the subject guide and Wilson, you would know it could not be (11.1
and Illustration 11.1 of the subject guide and Wilson 10.1, Case 1). The issue
relating to the defence of duress of circumstances is whether the reaction was
immediately necessary and reasonable action to avoid the threat of serious injury
given the option of driving onto the hard shoulder? If not, then it would be proper to
consider necessity, which is decided on a lesser of two evils basis and does not
require a threat of death or serious injury– might be argued. For example, Conway,
Martin, Graham, Howe, Pipe.
Part (b)
There are three potential defences here – Automatism, insanity and self-defence.
Rita would wish to rely on self-defence if possible as it is easier to establish and is a
complete defence. Whether the defence of insanity or automatism can be pleaded
depends upon whether the trigger is an external or internal element Identify
elements of both defences. (Subject guide 10.2.2 and 10.3.2 and Activity 10.2. and
10.5 and the accompanying text in Wilson at 10.9.A.3). The issue – assuming her
confusion negated voluntariness/mens rea is whether this is due to an external
cause. Hennessy suggests possibly not but the rape might suffice to introduce the
factors of ‘novelty or accident’ which allow it to be distinguished, e.g. R v T. If this
fails, the defence is insanity.
However, self-defence is the most advantageous defence for Rita because an
honest, even if unreasonable, mistake as to the need to use force can be relied
upon. But she has a problem, namely that the mistake is due to her temporary
mental abnormality. The issue here is whether an honest and mistaken belief on
irrational grounds takes priority over insanity if the belief is irrational due to
(Kemp/Hennessy) insanity. For example, Oye [2013] EWCA Crim 1725, 11.2 of the
subject guide, Wilson 10.8.A.3.
Part (c)
This is a straightforward question on consent and its application on crimes of
violence. You were expected to talk about how consent is a defence to common
assault but is not a defence where harm is caused unless the context is specially
privileged. The issue here then is whether this is one of those specially privileged
contexts. On the one hand this is not a street fight which is not privileged (A-G’s
Reference) but neither is it an organised boxing match, which is. You were
expected therefore to discuss which side of the line the case falls. There is no right
answer but the kind of considerations which should have been part of your
argument were the fact that it occurs in a gym (where sparring routinely takes place
and is presumably legal due to consent).

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Poor answers to this question…
were unclear on the correct defence (and its core elements) to rely on and/or
ignored defences and talked only of the offence committed.
Student extract
5(a) In the scenario of Sim, it is important to highlight the relevant offence
which would be reckless driving. Reckless driving is a strict liability offence
but however there is a certain defence which Sim may be able to use, namely
duress of circumstances. Murghan J in AG v Whelan defined duress as
immediate threats of death or serious injury to the defendant or family or
close relation. The test is the two stage Graham test which was approved in
Howe for duress by threats and Marytin [sic] for duress of circumstances. The
first question to ask is whether the defendant did as he did because he
feared that otherwise he would suffer death or serious injury. In our case Sim
did what he did which is breaking the speed limit because he feared the lorry
would crash into him (with the possible consequence of death or serious
injury). The second question to ask is whether a sober person of reasonable
firmness sharing the characteristics of Sim would respond in the same way.
To this question it is unclear whether a sober person of reasonable formness
would respond in this way because there are other ways to prevent a crash
from occurring.
Comments on extract
This is a clear and accurate analysis of both the law and facts. The use of
authorities is good – the main authorities were covered – and the issue is
immediately identified, namely whether the threat was serious enough to justify Sim
doing what he did. The candidate goes on talk about how reasonable people might
act differently to Sim but is careful not to jump in with an answer. The candidate
realises that it is the identification of the issue which is important not necessarily the
solution thereto. There were one or two minor errors, e.g. talking about reckless
driving when the offence is simply speeding but this lost no marks because the
candidate was not expected to talk about the offence and did so only to introduce
the valuable point that a defence was needed as ‘reckless driving [speeding] is a
strict liability offence’.
Question 6
EITHER
a) Outline and discuss critically the present law of joint enterprise
liability, giving suggestions for reform.
OR
b) Outline and discuss critically the present law of non-fatal offences
against the person, giving suggestions for reform.
General remarks
To ensure the syllabus is effectively covered in the examination now that there are
only 6 questions, this question is an either/or question.
Law cases, reports and other references the examiners would expect you to use
English (1997), Rahman (2008), Bristow (2011), Carpenter (2012), Gamble (1989),
Jogee (2016).
Roberts (1967), Williams (1991), Ireland (1997), Burstow (1997), Constanza (1997),
Attorney General’s Reference (no 6 of 1980), Brown (1993), Mowatt (1968), Savage
(1992), Chan Fook (1994). Consideration of The Law Commission (LAW COM No
361) Reform of Offences Against the Person would have been helpful but not
expected.

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Common errors
The most common error was to ignore the evaluative part of the question and
makes suggestions for reform.
A good answer to this question would…
include the following.
a) Joint enterprise liability
First, you should provide an outline of the law relating to joint enterprise liability in
which the general principle e.g. Anderson and Morris, or Powell is stated. You
should explain the problems which have surfaced and how they have been
addressed. These include the fairness or otherwise of holding someone liable for
another’s crime which he has not intended, authorised or agreed to; the problems of
application posed by the fundamental difference principle as illustrated by English,
Mendez and Rahman; the continuing authority, or otherwise of Gamble in the light
of Rahman and Mendez. In murder, the problems of application posed by cases
such as Mendez and Carpenter concerning the availability of manslaughter as a
default verdict; the fairness and cogency of convicting an accessory to murder of
murder on the basis of mere foresight; suggestions for reform, e.g. foresight of high
probability to replace present test or a requirement of intention rather than foresight,
e.g. Jogee (Wilson 19.4.D; 15.3.6 of the subject guide).
Credit was given for mentioning Jogee but this was not expected as the current
subject guide does not mention this and was decided after the closing date for
recent developments. If the question was answered on the basis of Jogee, the
suggestions for reform part of the question would not carry so many marks.
b) Non-fatal offences
First, you should provide an outline of the law relating to non-fatal offences with the
respective elements of common assault, ss.47, 20, and 18 identified. You should
analyse their points of comparison and distinction. You should have included
evaluation and criticism, to include some or all of the following: overlap and
duplication between the offences; restricted coverage and how the judges have
sought to address these concerns; linguistic imprecision; problems relating to the
correspondence of actus reus and mens rea as illustrated by Mowatt, Savage and
Roberts. Credit was given for consideration of the latest Law Commission report.
Poor answers to this question…
tended to write all they knew about complicity or non-fatal offences rather than
answer the question set.

11
Criminal law

Multiple choice questions (MCQs)

The 2016 exam in Criminal law contained MCQs for the first time. As a matter of practice, we
will not be publishing the questions or the answers for this section of the paper. To support
students in this alternative form of assessment for this year alone we are publishing a short
report by the Chief Examiner on three of the questions.

Comments on specific questions

Question 5
Which ONE of the following statements is the BEST description of the mens rea of an
offence under s.20 OAPA 1861?
a. Intention or recklessness to wound
b. Intention or recklessness to cause grievous bodily harm
c. Intention or recklessness to wound or inflict grievous bodily harm
d. Intention or recklessness to cause actual bodily harm
Chief Examiner’s comments
This is a question which tests basic knowledge of the elements of a crime, here s.20 OAPA
1861. Each of the above are plausible answers but only one is accurate. If you did your
homework, it is a very easy question. The answer is (d) and you would have found it at 9.1.3
in the subject guide and Wilson 11.2.B.2.
Question 7
Which ONE of the following tests best sums up the effect of R v Constanza (1997) Crim
LR 576 (a stalker case)?
a. for the purposes of assault, the victim must apprehend an immediate
unlawful application of force
b. for the purposes of assault, the victim must apprehend an immediate or
imminent unlawful application of force
c. for the purposes of assault, the victim must apprehend an application of
unlawful force at some time not excluding the immediate future
d. for the purposes of assault, ‘apprehend’ does not necessarily require the
victim to be fearful.
Chief Examiner’s comments
This is the kind of question which tests how precise your knowledge is. All of the above are to
a greater or lesser extent accurate statements of the law of assault but only one of them
properly encapsulates the effect of Constanza. There was no reason why, if you had done
your homework properly, you would not know this. See 9.2.1 of the subject guide and Wilson
1.3.A.1.
Question 15
In which TWO of the following scenarios would be a verdict of guilty of murder be
INAPPROPRIATE if the jury were correctly directed by the judge?
1. Eve, following a car crash, is trapped in the car which is ablaze. She
pleads with Adam, a police officer outside the car, to shoot her dead to
enable her to avoid being burnt alive. He shoots as requested but at the
post mortem it is not possible to determine whether the shot or the fire
killed Eve.
2. Eve is locked in an office which is ablaze. The key is in the lock on the
other side of the door. She asks Adam, the caretaker and who is outside,
to unlock the door. Adam does not do so because he wants her job and
wishes her dead. Eve dies.
3. Adam, a physician who is treating Eve for terminal cancer, administers a
dose of painkillers at her request for the purpose of relieving her pain.
Although it is the minimum dose necessary to relieve the pain, Adam
knows that it will probably accelerate the time of her death, which it does.
4. Adam, a police officer, shoots Eve, whom he wishes to question, through
both legs to disable her from escaping. He then faints and falls over,
hitting his head, which causes him to lose consciousness for an hour.
When he recovers he finds Eve has bled to death.
5. Adam rapes Eve, a two-year-old child. He throws her into a fast flowing
river to remove the DNA evidence, hoping the child will survive but
knowing it will not. Eve drowns.
a. 1 and 2
b. 2 and 3
c. 3 and 4
d. 4 and 5
e. 1 and 3
f. 3 and 5
g. 2 and 4
Chief Examiner’s comments
The offence charged is murder. The actus reus of murder is unlawfully killing a human being.
The mens rea is intending to kill or intending to cause grievous bodily harm. Each of the five
scenarios above require you to analyse whether ALL of these actus reus and mens rea
elements are present as demonstrated below:
1. If the jury were correctly directed by the judge it would be inappropriate to find Adam
guilty of murder. Admittedly he has shot Eve; admittedly he has the mens rea for
murder (intention to kill); and admittedly her consent and his compassionate motive
afford no defence to murder. However, to be guilty of murder there must be ‘beyond
reasonable doubt’ evidence that the shot caused Eve’s death. The judges should
have told the jury that they should not convict of murder if they were unsure about
this.
2. If the jury were correctly directed by the judge it would not be inappropriate to find
Adam guilty of murder. Although the general rule is that one cannot commit murder
by omission Adam’s status as a caretaker places him under a contractual duty to act
reasonably to ensure the safety of the building and its visitors. He has therefore
committed the actus reus of murder. This omission was actuated by an intention to
kill Eve by that omission.
3. If the jury were correctly directed by the judge it would be inappropriate to find Adam
guilty of murder. Although his act of administering the painkillers has resulted in her
death, the judge should direct the jury not to convict of murder unless they are sure
 he intended to kill her. The evidence shows he had no direct intention. It also shows
that he had no indirect (Woollin) intention either. This requires proof that he foresaw
the accelerated death as virtually certain. He did not. He foresaw it only as probable.
4. If the jury were correctly directed by the judge it would NOT be inappropriate to find
Adam guilty of murder. His act of shooting Eve is the legal cause of death. Shooting
someone to prevent them escaping is not a defence to murder so it is an unlawful
killing. The mens rea for murder is the intention to kill or cause serious injury by the
act which caused death. If the judge correctly directed the jury on the mens rea for
murder it would be perfectly entitled to conclude that the police officer intended
serious injury when he shot her.
5. If the jury were correctly directed by the judge it would NOT be inappropriate to find
Adam guilty of murder. His act of throwing Eve into the river is the legal cause of
death. The mens rea for murder is the intention to kill or cause serious injury by the
act which caused death. Although his primary purpose was to remove DNA evidence,
the jury are entitled to find that a person intends a consequence (here death) if they
know that consequence is virtually certain. He does.
In conclusion, the correct answer is (e).