Examiner’s report 2010

Examiner’s report 2010

265 0010 Criminal law Zone B

Introduction
The following introductory points apply equally to the Zone A and
Zone B papers.
There were some very good papers this year and many competent
ones. Unfortunately, there were many papers which demonstrated that
candidates had not done sufficient work and/or had not properly
prepared for the exam and/or did not really understand what was
required of them. Criminal law is not an easy discipline. However, as
those candidates who wrote good papers demonstrate, if you follow
the subject guide and its activities, listen to the audio presentations
and do the requisite reading around the subject you should be able to
pass this subject and, of course, your mark will reflect the amount of
work you have done over the year.

Studying Criminal law

Many of you reading this report will be studying criminal law for the
first time this year and I would advise all of you to read the following
very carefully.
First of all, ensure that you are familiar with the syllabus. You will find
this on the Criminal law page of the virtual learning environment
(VLE)
The Criminal law subject guide and study pack is based on the syllabus
and is the guide for the course on which you will be examined. It is
vitally important that you work your way through the subject guide,
ensuring that you do the recommended reading and attempt all of the
activities. Before you begin a topic, listen to the appropriate audio
presentation (which you will find on the VLE). You will also find these
presentations useful to return to later for consolidation and revision
purposes. Make sure you understand the topic(s) covered in a chapter
before you go on to the next one. There is a reflection and review
section at the end of each chapter. Go through it and be honest with
yourself when deciding on your responses. Revise any areas with which
you are still experiencing problems.
Don’t forget to read the Criminal law newsletters which are published
monthly on the VLE and the Recent developments which are published
in the spring of each year on the VLE.
Ensure that you do the computer marked assessments which are
available through the VLE. Although the tests are in a different format
to the examination, they are an excellent way for you to test your
knowledge and understanding of a subject and your ability to apply
your knowledge.

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Finally, you should complete the online research exercises as early in

the course as possible. They will take you around, and familiarise you
with, some of the many databases provided for you on the Online
Library. These exercises are, again, accessed through the VLE. Note
that these exercises are a compulsory component of the Common
Law Reasoning and Institutions course, but to help you with
your studies generally you should complete them as soon as possible
for you.

General remarks
All of the questions were answered at least competently by some
candidates but, understandably there were some errors and omissions.
Many of these were fairly common and I have outlined below, with
advice on how to deal with them, some of the more pervasive ones.

Common errors and omissions

 It is crucial that you ensure you are up to date. It was obvious
from the answers to some questions that quite a number of
candidates had not read the Recent developments – or had not
given sufficient thought to what they had read.
 It is also crucial that you are aware of what subjects are on the
syllabus. For example, when answering question 1, many
candidates considered the offences contrary to sections 3 and 4
of the Sexual Offences Act 2003. These offences are not on the
Criminal law syllabus.
 When using a case as an authority for a legal principle in your
answer to a problem question it is only very rarely
appropriate to refer to the facts of that case. Rather, you
should state the principle upon which you are basing your
analysis of the issue, the name of the authority (case), the
court in which the decision was made and, if possible, the year
of the decision. Where, however, you wish to distinguish a
case, it might be appropriate to explain the basis of the
distinction by reference to the facts.
 It is not necessary to repeat verbatim the facts of the question.
Of course you must make it clear to the Examiner which part
of the question you are answering but it is not necessary to
write out the whole paragraph you are about to discuss. If you
do you will find yourself repeating what you have written
before as you analyse this offence. It goes without saying that
you should never re-write the whole question!
 All of the offences on the syllabus carry a maximum penalty –
except for murder which has a mandatory penalty of life
imprisonment. Although it is appropriate to mention briefly an
offence’s maximum penalty the first time you refer to it –if
only because it demonstrates that you are aware of the
seriousness or otherwise of the offence you are dealing with,
or that you are aware of the importance of a defendant
succeeding with one of the special defences to murder –
further repetition is not necessary.

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 It should be emphasised that where there is unecessary

repetition (see points made above) the problem is not that you
will necessarily lose marks – you will just not gain any. The
time which you have used up in making these unecessary
repetitions could have been far better spent in a more careful
formulation of your answers and in considering what you
might have missed out – thus gaining you extra marks.
 When writing an essay, it is important that you come to a
conclusion. You should explain why you have come to your
conclusion and, in order to do so, you must refer to the
arguments both for and against which you have already made
in relation to the proposition in the question. See the advice in
the Criminal law subject guide.

Specific comments on questions

Question 1
(a) Harry’s mother was dying from a cancerous brain tumour. Caring for
her and watching her dying in this way caused Harry to suffer from
severe stress and depression. Unable to watch her suffering any longer,
he decides to put her out of her misery by poisoning the cup of cocoa
that she drinks before going to sleep. Harry slips some surgical spirit
into her cocoa, believing that this is poisonous, although it is, in fact,
harmless. His mother drinks the cocoa, but dies during that night of a
brain haemorrhage caused by her malignant tumour.
Discuss Harry’s liability, if any, for his mother’s death.
(b) When, if at all, can a defendant successfully claim that a novus actus
interveniens breaks the chain of causation, thus negating his liability?
Note that this question consists of 2 parts. Many candidates did not
read the rubric on the examination paper and only answered one part –
usually part (a). Bear in mind that if you do this you would need to get
80% for the part you answer in order to scrape a bare pass for the
question overall. Please ensure that you always read the rubric
carefully.
So far as part (a) was concerned, most candidates who answered it
recognised the White causation point but most, having decided that
Harry could not be guilty of murder, failed to consider any other
criminal liability. Some considered manslaughter as an alternative
offence, quite forgetting that, as the actus reus of murder and
manslaughter are the same, it follows that if there is no causal link for
the purposes of the offence of murder there is equally no causal link in
respect of manslaughter. Given that there was no offence of murder
Harry could not raise the defence of diminished responsibility, contrary
to what some candidates seemed to think. Some candidates correctly
considered the offence of attempted murder but only a few of those
discussed attempting the impossible. Very few candidates obtained
good marks for this, relatively easy, problem simply because they did
not give it sufficient thought.
Part (b) was a relatively straightforward question on causation and you
should have concentrated specifically on case law involving different
types of novus actus interveniens. Some criticism of the courts’ approach

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in respect of causation generally and the inconsistencies and conflicts

between some of the decisions was required. It is a shame that some
candidates who had attempted this question did not do this part as it
was not difficult and they could have gained some marks.

Question 2
Jake, an artist, is a member of a cult which has persuaded him that women
always want sex and that when they say “no” they really mean “yes”. The
cult’s mission is to encourage its members to “give sexual pleasure to
women”. Jake decides that to be faithful to the cult’s mission he should
have sex with his long-standing friend. Anna has always made it clear that
they will never be more than good friends, but Jake now believes that she
does not mean this. He goes to her bedroom where she is asleep and climbs
into bed with her. She only vaguely recalls this incident the next morning.
The following week Jake meets Fiona in a bar. While they are chatting she
tells him that she suffers from migraine headaches. Jake tells her that he is
a faith healer with mystical powers and can cure such headaches through
the medium of sexual contact. Fiona is doubtful but thinks it is worth a try
and they go to her house where they have sexual intercourse.
Jake is then invited to the cult leader’s house for dinner, where he meets,
Debbie, the leader’s 16 year old daughter. He and Debbie go out into the
garden for a walk together and, when out of view of the house, Jake asks
Debbie to practise oral sex on him. Debbie does not want to, but has been
taught by her father never to deny a man of sexual pleasure so she agrees
to Jakes request.
Assess the criminal liability, if any, of Jake.
This question is very similar to the sample examination question that
appears – with feedback – in Chapter 11 of the subject guide.
Candidates who worked through the subject guide should, therefore,
have been able to answer it easily. Feedback to the first two events in
this question is given in the subject guide.
For some reason, when looking at the scenario involving Fiona, a
considerable number of candidates discussed the offence of fraud
contrary to section 1 of the Fraud Act 2006. Fraud is an entirely
different offence which had absolutely no bearing on this question as
Jake did not intend to make a gain for himself or cause loss to another
in a monetary sense. If having sex involves a ‘gain’ for one of the
parties, it is not a pecuniary gain so the Fraud Act cannot apply.
When dealing with the third event, you should have considered the
possibility of rape or assault by penetration of Debbie. Sections 75 and
76 of the Sexual Offences Act 2003 would not apply, but you should
have considered section 74 and the extent to which Debbie had the
freedom to choose whether to consent or not. Note that Debbie is 16. It
is not, in itself, unlawful to have sexual intercourse with a person over
the age of 16 – given her age it is doubtful as to whether issues of
capacity arose here. You should not, as many candidates did, consider
the offences contrary to sections 3 and 4 of the Sexual Offences Act
2003 as they are no longer on the syllabus.

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Question 3
Armand calls at Vera’s house, pretending to be a gas fitter offering to
service her boiler at a highly discounted rate, when in fact he wishes to
steal anything of value in her house. Vera, delighted at the bargain, agrees.
Vera lets him into her house and watches as he takes the front cover off
her boiler and starts doing something with a screwdriver inside the
workings of the boiler. Vera gets bored watching Armand at work and goes
off to watch TV and promptly falls asleep. Once Armand sees that Vera is
asleep, he creeps off around the house looking for valuables. He eventually
finds some cash hidden in an envelope in a drawer in the hall, and then
leaves the house. Armand, does not realise that, in pretending to service
the boiler, he has loosened a gas pipe and gas is leaking into the house.
Vera, whilst asleep, inhales a quantity of gas and is found dead from the
effects of poisoning the next morning.
Discuss Armand’s criminal liability, if any.
Many answers to this question demonstrated a common problem for
candidates. This is a difficulty with extrapolating a number of possible
offences from the facts of the question and then dealing with those
offences in a precise and concise manner. Some answers were literally
all over the place, with a couple of lines on fraud, then a couple of
lines on homicide, a few on burglary and then back to homicide, then
fraud, then homicide, then burglary and so on and so forth. With a
problem that contains a number of issues, treat each issue as a little
problem in itself and ensure that you have fully dealt with each
individual issue before you go on to the next one. It is much easier to
answer problem questions this way. Your answer will be much better
and so likely to get you more marks
The question requires you to consider Armand’s liability for
manslaughter. There is no indication that he intended to kill or cause
Vera serious harm – note that he did not even realise that gas was
leaking into the house so there was no need to consider murder. It is
involuntary manslaughter which should have been considered: i.e.
constructive manslaughter (manslaughter by unlawful and dangerous
act) and gross negligence manslaughter. See 7.5 of the subject guide
for a discussion of these offences. If you do the activities in the guide,
you should be able to answer this part of the question.
Was there fraud contrary to section 1 of the Fraud Act 2006 when
Armand falsely represented that he was a gas fitter? See 16.2 of the
subject guide.
Was he guilty of burglary contrary to sections 9(1)(a) and 9(1)(b) of
the Theft Act 1968. Note that he had Vera’s permission to enter the
house. How would you deal with this? See 17.2 of the subject guide for
a discussion of burglary.

Question 4
‘If is it right to offer the defence of duress at all in criminal law, then it
should be a defence to any crime, not just some.’
Discuss.
This question required a critical discussion of both the rationale for,
and the operation of, the defence of duress. A competentand critical
review of the discussion and arguments in Howe (1987) HL against the

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application of the defence to murder, and the Law Commission’s recent

proposals on this issue, was required. To see the Law Commission’s
proposals go to http://www.lawcom.gov.uk/docs/cp177_web.pdf at
page 13. See also activity 13.1 in the subject guide. Not many
candidates answered this question but, had you completed this activity
(which was also in the 2007 edition of the guide) you should not have
found it difficult to answer.

Question 5
Ivan and Katarina had been married for several years. Katarina had
suffered many years of violence and abuse from Ivan and as a consequence
suffered from severe depression. She was also diagnosed in her teenage
years as suffering from a personality disorder which results in obsessive
jealousy. One evening whilst on his way out of the house, Ivan insulted
Katarina, calling her hideous and revealed that he was having an affair
with her sister. This left Katarina feeling very depressed and she proceeded
to drink half a bottle of whisky. A few hours later Ivan returned and, with a
sneer, told her that he had had a wonderful evening. Katarina picked up
the bottle of whisky and intending to cause him serious harm, hit Ivan on
the head with it. He died from the injuries sustained.
Discuss Katarina’s liability for the homicide of Ivan.
This was a reasonably straightforward and very standard problem
concerning murder and the old defences of provocation and
diminished responsibility.
Some candidates may have recognised it from the sample examination
question in Chapter 8 of the 2007 edition of the subject guide. Since
then, the law has changed and the 2010 edition of the subject guide
takes account of these changes.
In 8.1 of the 2010 subject guide, you will see that the partial defence of
provocation was abolished by section 56 of the Coroners and Justice
Act 2009 and replaced by the defence of loss of control – see sections
55 and 56. The partial defence of diminished responsibility was
retained by the 2009 Act but modified by section 52. These provisions
come into effect in October 2010 – just in time for your 2010/11
Criminal law course!
A general point which relates to this question is that the offence of
murder should be discussed before the consideration of any defence(s).
Note that the question states that Katarina intended to cause Ivan
‘serious harm’. As an intention to cause grievous bodily harm (serious
harm) is sufficient mens rea for murder there was no need to spend
time (as many candidates did) discussing oblique intent. Always read
the question very carefully.
You would need to consider, by reference to the provisions in the
statute, whether Katarina suffered a loss of self-control (s.54(1)(a)) as
the result of a qualifying trigger (s.54 (1)(b)) and which caused her to
have a justifiable sense of being seriously wronged (s.54 1(c)). See 8.1
of the subject guide. Note that Katarina would bear an evidential
burden in respect of this defence (s.54(6))
So far as the alternative defence of diminished responsibility is
concerned, the burden of proof on balance of probabilities remains on
the defendant where s/he raises the defence. This defence is defined in

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section 2(1) of the Homicide Act 1957 as substituted by section 52 of

the Coroners and Justice Act 2009. For the ingredients of the defence
which you would need to consider in relation to Katarina see 8.2.1 of
the subject guide.
The question states that Katarina had been drinking quite heavily. You
would need to consider the impact of intoxication on this defence. See
8.2.2 of the subject guide.

Question 6
‘English common law rules in respect of insanity and automatism are as
insane as those who try to rely on them.’
Discuss.
This was a very broad question which required candidates to comment
critically on the application of these defences rather than just a
narrative description of these defences which, unfortunately, was all
that some candidates did. There should have been some critical
comment on the distinction between sane and insane automatism and
how decisions are made in respect of these different types. How does
the distinction affect the burden of proof and ultimate disposal of the
defendant? What purpose does this distinction serve?

Question 7
Davina applies for a job as a resident au pair for a family. She writes in her
CV that she has been trained at the Montefiore school for nannies. She did
indeed attend that school but failed her exams. The family hire her because
at her interview she demonstrates an affinity with the children.
While working for the family, she empties the piggy banks belonging to the
children and uses the money to invest in some shares in her boyfriend’s
company, hoping to double the money so that she can replace their
savings. She also becomes very friendly with the children’s elderly
grandmother who lives with them. The grandmother becomes so besotted
with her that she changes her will, leaving Davina £10,000 to thank her for
looking after her grandchildren. When the grandmother dies three months
later, Davina inherits the £10,000. Her employers then ask the police to
take legal action against her.
Advise the police as to whether Davina has committed any criminal
offences.
This question, like question 7 on the Zone A paper required
consideration of a number of fraud and theft offences. Therefore, as
with the Zone A question, note that it is easier to produce a good,
concise and precise answer by breaking it down into a number of
smaller parts (or questions) and dealing with each part/question fully
before going on to the next one. The completed answer will read as
though it is the answer to a single problem question but there is less
chance that you will conflate and confuse issues. See the Examiner’s
comments on question 7 in the report for the Zone A paper.
Candidates should have considered Davina’s liability for fraud and
theft offences. First her false or misleading statement in her CV, that
she was ‘trained’ at the Montefiore school. She may well have been
trained there but the fact that she failed her exams may make this
statement misleading. There may also have been a fraud by failure to

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disclose. Was this done with a view to gain or cause loss? Note that the
reasons why she was hired are irrelevant to liability as the fraud does
not need to be operative.
Using the money in the piggy banks – could she be liable for theft
and/or fraud? Which type of fraud would you discuss here?
So far as Davina’s inheritance was concerned, there was no false
representation. Could she be guilty of theft?
See Chapter 16 of the subject guide for a discussion of fraud and theft.

Question 8
Hector is furious that his girlfriend has left him for Vince. Hector’s friends,
Phillippe and Xavier, tell him that they should play a practical joke on Vince
by way of revenge. They plan to call at Vince’s house, pretending to be
bailiffs coming to evict him for non-payment of rent. Hector agrees and
they go to Vince’s house and knock on the door. As Vince opens the door,
they tell him that, if he does not pay this month’s rent to them
immediately, they will forcibly remove him and his possessions from the
house. Vince is scared by this threat and tries to shut the door, but traps
Xavier’s foot as he does so, breaking several small bones. Hector, who had
drunk half a bottle of vodka, cannot contain his anger and punches Vince
hard in the stomach. They all run off, leaving Vince lying on the ground and
struggling to breathe as the incident has brought on an asthma attack. As
they run off, Phillippe grabs Vince’s wallet.
Discuss the criminal liability, if any, of the parties involved.
NOTE - you are not required to discuss any inchoate offences which may
arise in this question.
First of all – please see the note above which instructs you not to
discuss any inchoate offences which may arise in the question. I cannot
emphasise strongly enough that it is extremely important to read the
question carefully. Many candidates did not do this and discussed a
range of inchoate offences. In doing so, they wasted valuable
examination time as, not only did they not get any marks for it, but the
time they used thinking and writing about these inchoate offences
could have been used to good effect by discussing what was relevant.
They would obviously have then gained marks for doing so.
Note also that the question does not state that anybody died. You will
gain no marks, when answering a question like this, if you state ‘…if X
had died then…’ and then go on to discuss one or more of the forms of
unlawful homicide.
In answering this question, you were expected to consider a range of
non-fatal offences against the person, property offences and, in relation
to some of these offences, accomplice liability. Remember, when a
question requires you to consider accomplice liability, always deal with
the possible liability of the principal before you go on to examine any
liability on the part of an accomplice. There was also the issue of
intoxication on the part of Hector. What impact might that have had on
his liability? Might Vince be able to take advantage of the defence of
self-defence in respect of any offence(s) you should have considered in
relation to him?