Examiners’ report 2012
Examiners’ report 2012
LA1010 Criminal law – Zone A
Introduction
As with all undergraduate cohorts, the quality of answers ranged from first class to
weak fails. Too many candidates were content to skate over the question in front of
them and to give a descriptive account of the relevant area of criminal law, gleaned
from textbook or subject guide. This is neither correct legal method nor does it show
sufficient scholarship for those desirous of an excellent mark.
By contrast, the best scripts were able to identify the issues, state them clearly, and
produce a balanced argument or discussion centred on the key issues. They also
showed good scholarship in terms of the Further reading recommended in the
subject guide and available in the VLE.
Please note that for student extracts, spelling errors and other linguistic problems
have been left as they were on the examination scripts.
Specific comments on questions
Question 1
Betts and Ridley, while in the process of stealing from Veronica's house, are
disturbed by her. Betts produces a pocket knife which Ridley had known he
was carrying. Ridley shouts at Betts, “What do you think you are doing? Put it
away.” He then runs out of the house. Betts fatally stabs Veronica.
Consider the extent of Ridley's complicity.
Would it make any difference if Betts killed Veronica in the course of a
frenzied attack, punching and kicking her?
General remarks
The question is directed towards the law of criminal complicity in cases of joint
enterprise. It asks you to consider the liability of Ridley for an unauthorised crime
(murder) committed by Betts in the course of their joint enterprise, that is burglary.
The answer must deal first with the primary liability of Betts for murder and then with
the prospect of Ridley being complicit in that murder on the basis of his possible
contemplation that Ridley might intentionally kill.
Law cases, reports and other references the Examiners would expect you to
use
Your discussion and argument will require consideration of cases such as Powell,
Mendez, Carpenter, Beccera and Rook.
Common errors
This question was badly done by most candidates. The overwhelming tendency
was for candidates to talk at length about aggravated burglary when this was only
peripheral to the question. Think about how the police would view the matter. They
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would be concentrating on the killing rather than the burglary, which simply forms
the context within which the killing takes place.
A good answer to this question would include the following points…
• The joint enterprise is burglary. B and R are principal offenders.
• B is principal offender for a homicide offence, but which one? There is
evidence that B had the mens rea for murder, at least R seemed to think he
had! However, it was only a pocket knife which is not the kind of instrument
one would use if one wanted to cause serious injury.
• If it is murder, is R complicit? This requires proof that R contemplated at the
outset of the joint enterprise that B might stab V with the mens rea for
murder. There is some evidence here, namely that he knew the weapon
was being carried. However, he would argue plausibly that it was only
contemplated that it would be used for burglary purposes since:
o it was a pocket knife
o his reaction (both words and deeds) were indicative of someone
who was unprepared for what transpired.
• Assuming this argument fails is the running away sufficient to withdraw?
• There may be room for some discussion of possible liability for
manslaughter, although B is convicted of murder (Carpenter) but since
there is little evidence of contemplation of any harm, this seems to scotch
this argument.
Poor answers to this question would…
Concentrate on the offences committed by the two parties, without identifying the
issue at the heart of the problem which is the scope of liability for joint enterprise.
Question 2
(a) To what extent is liability for theft negated by the owner consenting to
the appropriation of property?
(b) John wants to buy a bar of chocolate from a chocolate vending
machine. He discovers he has no change. He inserts, instead, a
foreign coin into the slot and the machine delivers a bar of chocolate
into the receptacle. Regretting his action, John leaves the chocolate in
the receptacle and walks away. Sophie walks past, sees the chocolate
in the receptacle, takes it and begins to eat it. Greta, the machine
owner, sees her do this and demands payment. Sophie tells her she
has no money, which is untrue, and walks away.
What criminal offence(s), if any, have been committed by John and Sophie?
General remarks
Part A is largely to do with the Hinks principle. The consent of the owner does not
negate the actus reus of theft but may well negate dishonesty.
Part B requires consideration of John’s possible liability for theft of the chocolate,
and fraud by dishonest representation. It also requires consideration of Sophie’s
possible liability for theft of the chocolate and fraud by misrepresentation.
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Examiners’ report 2012
Law cases, reports and other references the Examiners would expect you to
use
Gomez, Lawrence, Hinks, Morris and Ghosh are indicative cases.
Common errors
On Part A there was a tendency to talk about s.2(1)(b) to the exclusion of the real
nub of the question which is s.3 and Hinks.
On Part B, with respect to John, there was a tendency to talk only about Fraud
(most commonly) or theft (less commonly). Relatively few dealt with both offences.
With respect to Sophie there was a tendency to talk about theft (most commonly)
and fraud (less commonly). Relatively few dealt with both offences.
A good answer to this question – Part A – would…
Consider the notion of an appropriation under s.3 Theft Act 1968. If the owner
consents to the passing of ownership, possession or control of property to D does
this mean that D does not appropriate the property? The House of Lords answered
in the negative in Hinks. Even the donee of an absolute gift appropriates the
property. This does not mean that D will be guilty of theft, however, because the
prosecution must still prove dishonesty and this may well be negatived by the fact of
the owner’s consent.
A very good answer would examine the possible conflict between section 2 (1) (a)
and (b) and Ghosh on this question.
A good answer to this question – Part B – would…
Consider in relation to John:
Theft. Guilt depends upon whether he formed the dishonest intention at the time of
the appropriation. This in turn depends upon when the appropriation takes place.
Does one appropriate, in the sense of assuming a right of ownership over,
chocolate in a machine simply by putting the money in? If so, his later change of
mind is irrelevant.
Fraud. Guilt depends upon whether putting the foreign coin in a slot machine
counts as a representation. Consideration must be given to section 2, particularly
s.2(5).
Consider in relation to Sophie:
Theft. The issues are:
a. whether the chocolate belongs to someone else at the time of appropriation
or whether it is abandoned property? (see Woodman?)
b. Is she dishonest in taking the chocolate? The interplay of section 2 and
Ghosh are relevant here.
Fraud. Good candidates will identify the false representation and what benefit she
intends to gain from the representation.
A good answer will examine the possible conflict between section 2 (1) (a) and (b)
and Ghosh on this question.
Poor answers to this question…
Did not address the Hinks point in Part A and will talk about fraud in the first part of
Part B, without addressing theft; and talk about theft in the second part without
addressing fraud.
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Question 3
Jim and Margaret are friends. They both work in the field of public relations.
Dan, an associate of Jim, envies Jim's friendship with Margaret and
malevolently spreads rumours alleging unethical professional behaviour on
Margaret's part. As anticipated by Dan, a violent quarrel ensues when Jim calls
on Margaret. During the quarrel Margaret hurls a large tin of beans at Jim. In
attempting to avoid being struck by the tin, Jim strikes his head on an open
door, suffering a fractured skull. Margaret immediately telephones for an
ambulance. When Jim reaches hospital, his condition has deteriorated so much
that he dies expires before any treatment can be administered.
Discuss the criminal liability, if any, arising from this incident.
General remarks
This was a question designed to test understanding of the relationship between
murder and constructive manslaughter and common issues arising in such cases.
Here these issues include the way mens rea separates cases of murder from
constructive manslaughter, the availability of the defence of loss of self control, and
causation.
Law cases, reports and other references the Examiners would expect you to
use
Sample cases include Moloney, Cunningham, Vickers, Duffy, Roberts, Mackie, also
Coroners and Justice Act 2009 s.52–55.
Common errors
As usual, there was a tendency to talk generally about criminal homicide rather than
engage in the specifics of the question. In this context, there was too much
descriptive stuff about the actus reus of homicide. This is not at issue and therefore
does not need to be discussed. There was also a tendency to talk about murder to
the exclusion of constructive manslaughter. Given the fragile mens rea evidence
this was a serious error.
A good answer to this question would…
1. Identify whether there was sufficient evidence of mens rea which is the intention
to kill or the intention to cause GBH to establish murder. The Argument for is that
she:
a. was ‘angry’; b. ‘hurled’ + ‘large tin’ (presumably a half kilogram tin).
The argument against is that there is no evidence the tin was hurled at head else
it would have said so. Without this, there is no evidence of intent to commit GBH.
Also compelling is the immediacy of the ambulance call, suggesting there was a
desire to throw the tin at Jim but not to (seriously) hurt him. There is also an issue of
causation. This will be dealt with in 2 below.
2. Good answers would also have a fall back offence, if mens rea cannot be
established – namely, constructive manslaughter; whose actus reus elements,
unlawful and dangerous act, and mens rea element, are clearly present. The major
issue is causation; specifically, whether the fact that Jim hit his own head breaks
the chain of causation. (See, for example, Roberts, Mackie.)
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Examiners’ report 2012
3. Good answers would also make the point that it is unlikely that the jury would find
the mens rea for murder. However, if they do, there is the prospect of raising the
defence of loss of self control? Is it triggered by a justifiable sense of being
seriously wronged? Reference would be made to Margaret’s job in this context.
Really good answers would discuss the possible liability of Dan as accessory or
under the Serious Crimes Act, although this was not expected.
Poor answers to this question…
Would typically assume that the offence is murder without examining the mens rea
evidence and, if they talk of loss of self control, would not explain what in the facts
makes this a possible option.
Student extract
‘If the actus rea and mens rea can be proved then he will be charged for murder.
Nevertheless he can raise the defence the loss of control.
Loss of control is defined in section 59 of the Coroners and Justice Act 2009,
section 59(i) of the Coroners and Justice Act provides three elements which has to
be proved to get this defence. The three elements are:
1) She had a loss control
2) Which arose from a qualifying trigger
3) A reasonable person in her place would have done the same thing.
The first requirement will easily satisfied as he cannot restrain herself from doing
what she did. R v Richens. The case of R v Duffy suggests that the loss of control
needs to be sudden and temporary. From the fact it appears that Marion’s loss of
control was sudden and temporary she the first requirement is satisfied.’
Comment on extract
A common mistake on the defence of loss of self control is reflected in this extract.
The main difference between this defence and provocation is the confirmation that
the requirement for the loss of control does not have to be sudden. So Duffy is not
in point. The answer too easily moves from the undeniable fact that M lost her
temper to the conclusion that she was provoked to lose her self control. The two
things are not the same. See Acott. More discussion was needed here therefore on
this point.
Question 4
Bill, a drug addict, asks Lena, his wife, to inject him with heroin. She protests
but, knowing he will do it himself if she refuses, complies with his request. A
few minutes later Bill falls unconscious. Lena feels his pulse, which is faint.
She panics and runs out of the house. Although she knows Bill is very ill, she
fails to call the emergency services, fearful that she will be held responsible
for his condition. After two hours, she calls an ambulance. It takes a further
hour for it to arrive because the ambulance workers decided to finish a game
of cards. When they eventually arrive, they find Bill dead. If Bill had received
medical attention within an hour of his collapse, his death would have been
prevented.
Discuss.
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LA1010 Criminal law
General remarks
This question is designed to explore your understanding of the actus reus
component in criminal offences, here, manslaughter. You were expected to point
out that there are two possible routes for the prosecution to establish the actus
reus. First, the affirmative act of injecting the drug which might form the actus reus
of constructive manslaughter. Second, the omission to call the ambulance which
might form the actus reus of gross negligence manslaughter. Both routes involve
(weak) issues of defence; namely, necessity or duress of circumstances and
causation.
Law cases, reports and other references the Examiners would expect you to
use
Indicative cases include Cato, Miller, Dalby, Evans, Smith, Jordan, Bonnyman.
Common errors
The most widespread error was to deal with one form of manslaughter to the
exclusion of the other. Here the majority of candidates talked about Evans and
gross negligence manslaughter, but not Cato and unlawful act manslaughter.
A good answer to this question would identify the following key issues.
1. Is the injection an unlawful act? The unlawful act should be identified.
2. Relevance of consent (Cato). A very good answer will distinguish Cato from the
case where injection may be thought the lesser of two evils.
3. Causation. The main issue is whether the chain of causation is broken where
bad medical treatment has occurred? (Cheshire). The key feature here is the
voluntary decision by medical staff not to intervene rather than mere
negligence. If so, ambulance crew may themselves be vulnerable to conviction,
(although this eventuality is not excluded by Lena’s guilt (due to her act still
being a potent cause (R v Smith)).
4. Although an omission does not usually form the actus reus of criminal homicide
it may do for gross negligence manslaughter if the failure to act was a breach of
duty. Here therefore the issue is whether Lena was under such a duty. Students
should identify the source of the duty to intervene: a. special relationship,
Bonnyman; b. creation of danger, Evans.
Poor answers to this question…
Typically ignored the possibility of constructive manslaughter on the basis of the
injection and simply talked about liability in gross negligence manslaughter for the
omission to intervene on time.
Student extract
‘Lena may have breached her duty of care. There is a general presumption in law
that a special duty of care is owed by a husband to his wife as well as by a wife to
her husband. When Bill became unconscious, Lena should have immediately called
an ambulance or seek other medical attention. The duty of care principle may be
traced back to the case of Hyman (1975) and R v Evans (2009).
Therefore, it can be said that ‘but for’ Lena failing to seek medical attention at an
earlier notice, Bill may not have died. Lena may however, in her defence use that of
duress in that she was under some sort of pressure when she committed the
offence. This is so as she knew that if she refused to inject Bill with the heroin he
would have done it himself. She may also plead fear that some sort of action may
be used against her if she was held responsible for the condition. The burden of
proof however remains on her to prove that she did in fact suffer duress of
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Examiners’ report 2012
circumstances, in that she was influenced by some sort of physical or mental
pressure arising out of the circumstance.’
Comment on extract
This is a just reasonable attempt at dealing with the issue relating to the duty of
care. One basis for the duty (relationship) has been identified. The other (the
creation of a dangerous situation) is implied by use of Evans, but should have been
identified explicitly.
The use of duress would be improved by explaining that this would be duress of
circumstances and outlining what needs to be established, and authority (for
example, Conway, Willer, Martin). A serious error in this respect was the statement
with respect to the burden of proof.
Question 5
Alison, Bertha, Charles and Desmond meet in a pub for a reunion. Alison
does not drink alcohol but Bertha puts vodka in her lemonade as a joke.
Later, Bertha suggests to Alison that Alison should drop her glass on the
floor to see if it will bounce. Alison does so and the glass breaks. Later,
Bertha, who has been drinking beer all evening, rides off on the landlord's
bicycle. When stopped by John, a police officer, Bertha says that she thought
the bicycle had been abandoned. When John tries to arrest her, she aims a
punch at him which misses and hits Phoebe, a bystander. Charles, who has
also been drinking beer, thinks that Desmond, who is aiming a dart at a
dartboard, is about to throw it at him. He therefore seizes a chair and hits
Desmond with it, injuring him.
Advise Alison, Bertha and Charles.
General remarks
This was a question designed to test your understanding of how voluntary and
involuntary intoxication may affect criminal liability. It was important to show that
you understood that intoxication can only ever affect liability if it acts to negate any
mens rea that the prosecution have to prove. You should therefore in each part of
the question identify the offence to be charged, the mens rea for that offence and
whether, by virtue of intoxication, the defendant had failed to form that mens rea.
Common errors
A surprising proportion of candidates failed to deal satisfactorily with the issue
posed by intoxication. Some ignored it altogether. Others did not distinguish
involuntary from voluntary intoxication, and basic intent from specific intent crimes
and why these distinctions might affect the parties’ liability. Few candidates, in any
event, identified the O’Grady point. And very few indeed dealt with every part of the
question.
Law cases, reports and other references the Examiners would expect you to
use
Indicative cases include Majewski, Caldwell, Kingston, Pembliton, Latimer,
O’Grady, O’Connor.
A good answer to this question would…
Separate the discussion according to the defendant as follows and identify the
following issues for discussion.
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LA1010 Criminal law
Alison
1. Offence chargeable is criminal damage. The mens rea for this offence is intention
or recklessness. The normal inference to be drawn from deliberately dropping a
glass is that the dropper intended to break it or at least was reckless. The issue
then is whether these states of mind are negated by involuntary intoxication? Was
she oblivious or simply reckless?
Bertha
Offence chargeable is theft. The mens rea for theft is dishonesty and intention to
permanently deprive. Since theft is a specific intent crime she can use evidence of
self induced intoxication to negate either dishonesty or intention to permanently
deprive. The question then is; does it? What is she saying about her mens rea?
Offence chargeable is assault. The first issue concerns B’s mens rea. Mens rea for
assault is intention or recklessness. This means that assault is a basic intent crime.
Intoxication cannot be used to negate the mens rea of basic intention crimes.
(Majewski). The second issue concerns the doctrine of transferred malice which
prevents B successfully claiming that she did not intend to punch Phoebe.
Very good answers will also mention encouraging criminal damage under s.45 SCA
2007. You would be given credit for mentioning this as a possibility but was not
expected.
Charles
1. Offence chargeable under s.47 OAPA 1861. The first issue concerns Charles’s
mens rea. The mens rea for s.47 is intending or foreseeing the application of force
to the body of the victim (Venna). This means that his intoxication cannot be used to
negate his mens rea. (Majewski). The second issue concerns the possible use of
the defence of self defence which can be used even where the defendant is
mistaken that he is subject to an attack (Beckford). However, it cannot be used
when the mistake was made because of voluntary intoxication (O’Grady).
Poor answers to this question…
Talked about the offences but not the defences, ignoring the basic intent/specific
intent dichotomy, in particular.
Question 6
Consider the case for reforming the law of homicide.
General remarks
This is a wide ranging question, which should have been rooted in recent Law
Commission, and other, proposals for reforming murder and manslaughter.
Common errors
Very few candidates tackled this question and sadly most who did so did not earn
admiration for their answers. This is not the kind of question to do if you have not
read widely and thought long and hard about our rather archaic and unwieldy law of
homicide and the defences available thereto. The majority of candidates knew this
was required and avoided the question.
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Examiners’ report 2012
Law cases, reports and other references the Examiners would expect you to
use
Recent Law Commission reports, for example, those on Murder, Manslaughter and
Infanticide, Involuntary Manslaughter, and Partial Defences, Hyam, Moloney,
Woollin, Nedrick, Re A (conjoined twins), Nicklin, Purdey, Pretty, Sullivan, Vickers,
Powell.
A good answer to this question would…
Include discussion of the mandatory sentence (and explain how it is responsible for
many of the difficulties facing the law of murder). Also the Law Commission, the
Royal Commission and other proposals for changing the fault element in murder,
including the most recent proposal for a two-tiered crime of murder. It would also
consider and evaluate the current law of manslaughter together with the Law
Commission’s eventually watered down reform proposals to address the concerns
surrounding constructive liability and the indeterminacy of gross negligence
manslaughter. Very good answers would have referred to unlegislated reform
proposals in the area of defences, particularly mercy killing, and duress and
necessity.
Poor answers to this question…
Tended to ignore the various reform proposals issuing from the Law Commission
and gave a descriptive account of homicide generally together with the odd ad hoc
criticism.
Question 7
(a) Graham suffers from delusions. Often they take the form of hearing
voices which tell him to do things. One day the voices tell him to set
fire to a van parked outside a block of flats. He does so. The fire
spreads quickly to the block of flats. Karen, who lives in an upstairs
flat, escapes uninjured at the last moment.
(b) Ian, while walking along the street, is attacked by a dog. While flailing
his arms around to protect himself, he hits Dawn in the face, breaking
her nose. Harry, a passer-by, bends over Dawn and asks if she needs
help. Marian, another passer-by, assumes that Harry is attacking
Dawn and strikes Harry on the head with a brick lying nearby, killing
him instantly.
Discuss any criminal liability arising.
General remarks
Part a. concerns the possible use of the defence of insanity to the crime of criminal
damage and aggravated criminal damage.
Part b. concerns the availability of the defence of automatism to the crime of assault
and, in relation to Marian, the availability of the defence of self defence in relation to
either murder or manslaughter.
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Common errors
The most common error was to devote disproportionate time to different parts of the
question. The defence of insanity was not very well tethered to the need to negate
mens rea and many candidates mistook Ian’s defence as self defence rather than
automatism.
Law cases, reports and other references the Examiners would expect you to
use
Indicative cases include Hill v Baxter, Bratty, McNaghten rules, Windle,
Cunningham, Beckford, Palmer, Martin. Criminal Justice and Immigration Act 2008.
A good answer to this question…
Would separate the analysis into different defendants as follows.
Graham – The offence chargeable is aggravated criminal damage. The mens rea
for this fault element is intending or being reckless both as to the damage and as to
the risk of death. Reference should be made to this fault element and the relevance
of the McNaghten rules in establishing this fault element. On the face of it, they do
not apply since there is no evidence that Graham did not know what he was doing
or that it was (legally) wrong (Windle).
Ian – The offence chargeable is s. 47 OAPA 1861. A broken nose is ABH. The
issue is whether mens rea is negated by the involuntary nature of his conduct (Hill v
Baxter).
Marian – The offences chargeable are murder or constructive manslaughter
depending upon mens rea. The evidence is equivocal on this since it appears there
was only one blow. The main issues relate to mistake (which is not fatal to the
defence of self defence (Williams) and disproportionality (which is fatal), unless, for
murder, Marian can be brought within the defence of loss of self control which on
the facts is doubtful.
Poor answers to this question…
Tended not to examine closely the McNaghten rules and left Marian’s liability
underanalysed in a number of ways, particularly in failing to discuss both the
offence chargeable and the defence thereto.
Question 8
Romeo and Juliet are lovers. Romeo discovers he has AIDS (a potentially fatal
disease capable of being transmitted by sexual intercourse). He decides to
break off the relationship with Juliet out of love for her, not wishing to
communicate the disease or admit to his condition. When he tells Juliet, first
she becomes angry and then she despairs. She begs that they have sexual
intercourse telling him that it will be a sign that he still loves her. Reluctantly
he agrees, convincing himself that this will be the last time and that no harm
will come of it. Six months later Juliet is found to have contracted the
disease.
Discuss Romeo's possible liability under each of the following sections of the
Offences Against the Person Act 1861.
(a) s.47
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Examiners’ report 2012
(b) s.20
(c) s.18
General remarks
There is an ambiguity in this question, namely whether Juliet is made aware of
Romeo’s condition before the request for sex. Candidates’ papers were marked
according to whichever of these two interpretations they adopted. I am assuming
she does not know.
Law cases, reports and other references the Examiners would expect you to
use
Indicative cases include Clarence, Wilson, Salisbury, Dica, Konzani, Burstow,
Ireland, Belfon.
Common errors
Few candidates made the point that irrespective of whether consent is operative
s.47 requires an assault and s.20 does not. Quite a few other candidates did not
seem to understand that whereas consent needs to be informed to negate liability
(Dica), if it is informed it is a defence despite the risk of serious harm (Konzani).
Brown is irrelevant. There is also an argument that the recklessness required by
both s.20 and s.47 might be negated by the reason for having intercourse.
A good answer to this question would separate out the different offences as
follows:
s. 47 Dica and Konzani held that a person’s consent to intercourse must be
informed if it is to act as a defence to assault. By ‘informed consent’ in this context
we mean that the victim was aware that her partner was suffering from venereal
disease. The effect of these decisions is to place agents under a duty of disclosure
in cases where there is a risk of transferring a disease. Clearly, if she knew of R’s
condition there is no assault as these cases confirm that one can consent to the risk
of sexually transmitted disease. Brown is not applicable.
s. 20 As above, except a very good answer might suggest that no infliction without
the serious harm being delivered by the application of force (Salisbury) except in
the case of psychiatric injury (Burstow). It will state that serious harm includes AIDS
(Dica). It may also argue that recklessness requires the running of an unjustified
risk which, given the context, might conceivably be countered.
Section 18 – Section 18 requires proof of an intention to cause GBH. There is no
evidence of this specific intent here, whether of direct or indirect intent.
Poor answers to this question…
Tended not to distinguish between the answers to s.20 and s.47 and miss the point
that informed consent is a valid defence to each offence.
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