Examiners’ reports 2019

Examiners’ reports 2019

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 module guide joins 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 module guide open, you will see that everything you need to answer the
questions is there. For example, look at Question 4 and turn to your module guide,
Chapter 10 and the associated activities at 10.3, 1.4 and 10.5 and the references
made to the textbook to help you solve the activities. Then turn to Sections 7.3.9–
7.3.14 of the module guide and do the same for this.

Comments on specific questions

PART ONE

Question 1
Read the following paragraph and answer the questions that follow.
Soraya, aged 20, lives with her boyfriend Bashir, aged 45. Bashir regularly
forces Soraya to have sex with his friends and is often violent to her,
particularly when drunk. Soraya has tried to commit suicide several times and
her doctor has prescribed anti-depressants. One night Bashir comes home
drunk, hits Soraya, and tells her his friends are coming round and that she
will be expected to sleep with them. Soraya takes an overdose of anti-
depressants but is violently sick immediately afterwards. Bashir laughs at
Soraya, telling her she is so pathetic she cannot even commit suicide
properly. He tells her to be ready to meet his friends in two hours. He goes
upstairs. Soraya thinks for a while and then makes her decision. She grabs a
heavy lamp, goes upstairs and, finding Bashir in the bathroom washing his
hair, smashes the lamp over Bashir’s head with all her force. Almost
unconscious, Bashir stumbles out of the bathroom and aims a blow at Soraya
who is, by now, at the top of the stairs. He misses, loses his footing, and falls
down the stairs. He dies immediately.
a) If you were a prosecutor what would be your preferred charge of
homicide, murder or manslaughter, in relation to Soraya?
b) Give reasons for your choice in (a) above.
c) If you were Soraya’s defence counsel, what is the most compelling
argument you could advance in favour of the proposition that the

1
 chain of causation, linking Bashir’s death to Soraya’s attack with
the lamp, was broken?
d) If you were prosecuting counsel, how would you respond to that
argument?
e) Supposing your argument in (c) above were successful, what
offence(s), if any, would Soraya have committed?
f) Give reasons for your answer in (e) above.
g) Assuming the court finds that the chain of causation was not broken
which defences are available to a charge of murder?
h) Which of those defence(s) considered in (g) above carries the
greatest chance of success?
i) Give reasons for your answer in (h) above.
j) Taking everything into account, what is your final conclusion on the
question of Soraya’s liability?
General remarks
The purpose of the compulsory question is to enable you to reproduce the type of
structured answer that we are looking for on all problem questions. It should form
an easily transferrable template to such questions, including issue spotting,
reasoning, analysis and argument. So you should not treat such questions as
distinct from your other problem questions. Both should adopt the same kind of
answer template. Your conclusions on each question did not have to be the same
as mine but we are looking for your ability to spot the main issues and concise, well-
organised analysis and discussion.
Law cases, reports and other references the examiners would expect you to use
Collins v Wilcox (1984); Jones (1986); Church (1966); Dawson (1985); Watson
(1989); Blaue (1975); Evans (2009); Dawes (2013); Fagan (1969); Homicide Act
1957; Cheshire (1991); Pagett (1983); Coroners and Justice Act 2009.
Common errors
Many candidates were reluctant to properly interrogate the facts of the question in
support of their analysis. For example, how the mens rea for murder is supported,
or not supported, by evidence that she thought for a while and then ‘makes her
decision …grabs a heavy lamp’. What about this suggests that she had an intention
to cause at least serious injury? Using the same facts, what is it that supports, or
does not support loss of control as a defence to murder?
A good answer to this question would…
structure their answer something like this:
The mens rea for murder includes the intention to cause serious injury. The facts
tell us that she smashes the lamp ‘with all her force’, and Bashir is nearly
‘unconscious’ indicating a desire to do more than simply cause Bashir injury. It is a
matter for the jury, however.
The most compelling argument you could advance in favour of the proposition that
the chain of causation, linking Bashir’s death to Soraya’s attack with the lamp, was
broken is as follows. Although death following escape attempts (e.g. Williams and
Davis) remain attributable to the original attacker here, his death was triggered by
his own aggressive response, which was not an involuntary reaction to the blow
(e.g. Kennedy). If you were prosecuting counsel, you would respond to that
argument by arguing that Soraya’s blow rendered his response more likely – he
reacted to it in a predictable fashion; he was also acting in a state of confusion and

2
 Examiners’ reports 2019

thus the blow was a significant factor in contributing to the death (e.g. Wallace). If
the chain of causation was broken as defence counsel have argued, the offences
chargeable would be s.18 or s.20 OAPA 1861, depending upon mens rea. Section
18 if the jury find GBH intended. Otherwise s.20, which does not require an
intention to cause GBH. An intention to cause some injury suffices, e.g. Savage.
If the court finds that the chain of causation was not broken and you were Soraya’s
defence counsel, you would consider the following defences, supposing the
prosecutor were to charge murder: loss of control; diminished responsibility; self-
defence. The defence most likely to be successful is diminished responsibility since,
although there is a qualifying trigger (both types s.55(3) and (4)), there is little
evidence of a lack of control (s.54(1)(a)). There is a substantial time delay and
during that time she ‘makes her decision’, e.g. Ibrams, Dawes et al. On the other
hand, applying s.2(1) Homicide Act, she has a recognised medical condition
(depression); there is evidence that the context substantially impaired Soraya’s
ability to form a rational judgment, that it rendered her unable to use her reason to
formulate a plan of escape; and, given the context, her mental abnormality provides
an explanation for why Soraya hit Bashir over the head with so much force. Self-
defence is also a possibility because pre-emptive force is permitted (Beckford) and
she has no duty of retreat (Bird), depending upon her reasons for acting, it is
arguable that she used reasonable force to prevent an imminent attack on her
which Bashir had warned her would soon happen.
Taking everything into account, your final conclusion on the question of Soraya’s
liability is up to you! Mine is that it is unlikely that the chain of causation is broken,
which leaves Soraya in need of a defence to a charge of homicide. The obvious
form of homicide to charge is murder as the evidence points to an intention to cause
serious injury at least. Self-defence is the most valuable defence as it results in an
absolute acquittal but the context seems more attune with diminished responsibility.
She would, therefore, be guilty of (voluntary) manslaughter.
PART TWO

Question 2
‘All affirmative defences reduce to one key fundamental. It is a defence to
criminal liability if the defendant acts reasonably in the face of immediate
crisis.’
Explain and evaluate this statement with particular reference to TWO of the
following THREE criminal defences:
k) self-defence;
l) duress;
m) necessity.
Law cases, reports and other references the examiners would expect you to use
Section 76 Criminal Justice and Immigration Act 2008; s.43 Crime and Courts Act
2013; Criminal Law Act 1967; Beckford (1988); A-G’s Reference (No 2 of 1983)
(1984); Martin (1995); Re A (conjoined twins) (2001); Palmer (1981); Graham
(1982) Quayle (2005); Shayler (2001); Gill (1963); Hasan (2007); Howe (1987);
Conway (1989); Dudley and Stephens (1884); Re F (1990) and see cases
mentioned below.
Common errors
A number of students dealt with all three defences rather than two required. Very
few dealt with the point of the question, which was to analyse the extent to which
the statement is correct.

3
A good answer to this question would…
include the following:
An outline and discussion (including relevant statutes and case) of the defences
and an explanation of what the statement means and how, and to what degree, ‘the
acting reasonably to crisis’ template fits the particular defence. With self-defence
reasonableness of reaction is limited to the amount of force used, although the
defender’s instinctive beliefs as to what is reasonable are taken into account, e.g.
Palmer. Mistaken beliefs can be relied upon although unreasonable, e.g. Beckford.
In other words, there can be no actual crisis and yet the defence works if the
defendant believes there to be one. Good answers will interrogate the householder
defence and what it means in terms of reasonableness of reaction. Immediate crisis
is not always demanded per se, e.g. no duty of retreat and no requirement of threat
of serious injury. Compare duress where a ‘duty of retreat’ is demanded if the
threat is not immediate, e.g. Hasan. Reasonableness of reaction is expected and
unreasonable beliefs cannot be relied upon. Crisis is demanded as shown in the
death or serious injury requirement. Necessity – immediate crisis needed for
‘duress of circumstances’. No crisis/no immediacy needed for necessity proper but
reasonableness and proportionality are of the essence, e.g. Re A, Pipe, Pommell.
Poor answers to this question…
either lacked sufficient knowledge and/or were purely descriptive with no attempt
made to interrogate and answer the question.
Question 3
In English law what is meant by:
a) intention; and
b) recklessness?
What do these two fault elements have in common, what differentiates them,
and why has there been uncertainty surrounding their definition?
General remarks
To demonstrate true understanding of legal concepts you have to be able to show
what they have in common and how they are distinct. If you look at past
examination questions you will see a lot of these type of questions, for example,
compare and contrast insanity and automatism; self-defence and duress; murder
and manslaughter; loss of control and diminished responsibility. It is of the essence
of such questions that you do not simply describe the concepts thinking that this will
count as comparing and contrasting. It doesn’t. You have to do the work! To get a
good mark you need to address at least some of the points made below. You would
not be expected to deal with all of them.
Law cases, reports and other references the examiners would expect you to use
Section 8 Criminal Justice Act 1967; DPP v Smith (1961); Hyam (1975), Moloney
(1988); Nedrick (1986); Woollin (1999); Cunningham (1957); Stephenson (1977);
Parker (1977); Caldwell (1982); Elliot (1987); R v G (2003) and cases detailed
below.
Common errors
There was generally little attempt to compare and contrast and almost no attempt to
explain how and why the uncertainty has come about.
A good answer to this question would…
include some of the following – how intention and recklessness figure in criminal
liability; definitions and brief outlines of the elements of each offence including an

4
 Examiners’ reports 2019

explanation of how indirect intention has been successfully separated from

recklessness by Woollin.
Points of comparison include the fact that both are forms of subjective fault; both
involve degrees of choice/commitment to the outcome, which render punishment
deserved; indirect intention and recklessness have fault based on foresight of the
consequences in common.
Points of contrast include – recklessness reflects a lesser degree of commitment
to the outcome than intention and so may represent a lesser degree of fault
justifying lesser label and penalty; directly intended consequences are desired,
recklessly caused consequences are not. Indirect intention requires knowledge of
the certainty that a consequence will ensue. Recklessness simply requires
awareness of the risk that it may ensue. Recklessness, as a fault term, requires the
risk taken to be unjustified – this is not the case with (oblique) intention. A very good
answer will make the caveat that the Woolin special direction makes this difference
more theoretical than real.
The source of uncertainty includes the way good motive cases have sometimes
skewed its meaning, e.g. Steane (1947), Adams (1956), Gillick (1988), Re A (2001),
etc. The Woollin direction allows the jury to take account of motive due to the
ambiguity of the judicial direction; the influence on the definition of intention caused
by ‘wicked’ killings where no direct intention can be shown (e.g. Hyam); the
influence on the definition of recklessness in cases involving indifferent
mindlessness, particularly in criminal damage (e.g. Parker, Caldwell). The influence
on recklessness's definition in cases involving errors of the young and
inexperienced, particularly in criminal damage (e.g. Stephenson, Elliot, R v G).
Poor answers to this question…
did not address the question, preferring description only. There was a lack of
balance in knowledge and understanding between intention and recklessness and
no understanding of why the courts have had difficulty pinning down a satisfactory
meaning of the two concepts.
Question 4
Compare and contrast insanity, loss of control, and diminished responsibility.
General remarks
As with Question 3, to demonstrate true understanding of legal concepts you have
to be able to show what they have in common and how they are distinct.
Law cases, reports and other references the examiners would expect you to use
Coroners and Justice Act, ss.54–56, McNaghten Rules; Bratty (1961); Kemp
(1957); Quick (1964); Bailey (1983); Sullivan (1984); Burgess (1991); Dawes and
Hatter (2013); Bowyer (2013); Clinton (2011); Dowds (2012); Byrne (1960); Loake
(2017); Goodwin (2018).
Common errors
Unbalanced answers and failing to address the question were common errors.
A good answer to this question would…
include a definition and explanation of the defences, including reference to
Coroners and Justice Act and what it replaced and the McNaghten rules.
Points of comparison include – loss of control and diminished responsibility are
partial defences to murder (only). They both mitigate the mandatory life sentence;
they both require a causal trigger; the effect of both is to reduce the defendant’s
responsibility for an intentional killing rather than to negate their mens rea; neither
are available if the trigger for the killing involves intoxication.

5
Insanity and diminished responsibility are mental condition defences and the burden
of proof exceptionally is on the defence.
Points of contrast include some or all of the following: insanity is a defence to all
crimes, unlike the other two and is a full defence, although it results in a special
verdict. Diminished responsibility – the causal trigger is internal (mental
abnormality.) With loss of self-control it is external (words or deeds); diminished
responsibility may be relied upon even where there is no loss of self-control (and
even where D knows what he was doing so long as the mental abnormality played a
part in the killing. Insanity cannot be relied upon for simple loss of control.
Diminished responsibility and insanity are mental condition defences. Loss of self-
control, by contrast, cannot be relied upon where the loss of self-control is due to
the defendant lacking the ordinary person’s powers of self-control. With diminished
responsibility and insanity, the burden of proof is on the defendant unlike loss of
control.
Poor answers to this question…
gave an unbalanced description of the defences, concentrating at best on only two
in any depth and failed entirely to address the question on the comparison and
contrast elements.
Question 5
Consider the possible secondary party liability of Eve, Kei, Polly, and Rohit in
the following scenarios:
a) Adam asks his girlfriend, Eve, to supply him with a key to Cain’s (her
father’s) house. Eve does so. Adam uses the key to enter and kill
Cain. Eve believed Adam’s plan was to steal money;
b) Narinder and Kei agree that Narinder will assault Vanburn. Narinder
punches Vanburn who falls over and hits his head on the floor, as a
result of which Vanburn dies;
c) Ian and Suki are engaged in a bank robbery. Unknown to them
Janice, a customer in the bank, is an off-duty police officer. Janice
runs over to them intending to make an arrest. Polly, another
customer, believing Janice to be another bank robber, intentionally
trips her up, thus enabling Ian and Suki to escape; and
d) Denise, intending to kill Majid, asks her husband, Rohit, to drive her
to Majid’s house. Rohit, who is unaware of her intention but
knowing she has some form of criminal plan, asks what she is
going to do. Denise says ‘It’s better you don’t know’. Rohit drives
her there and then drives off. Denise shoots Majid dead.
General remarks
This a four-part question designed to test your knowledge and understanding of
different aspects of complicity law, particularly mens rea and the knowledge aspect
of mens rea. Part (b) is about liability for unforeseen consequences in joint
enterprise liability. If you had completed the various activities in Chapter 15,
particularly Sections 15.6, 15.7 and 15.9, you would have found this easy.
Law cases, reports and other references the examiners would expect you to use
Section 8 Accessories and Abetters Act 1861; Johnson v Youden (1950);
Bainbridge (1960); Maxwell (1978); Anderson and Morris (1966).
Common errors
Many students failed to identify the issues in (a), (c) and (d), which asks you what
degree of knowledge of the principals’ plans must an accessory have to be liable.

6
 Examiners’ reports 2019

A good answer to this question would…

(a) refer first to the principal offence, namely murder and then to the requirement
that the accessory has mens rea as to the assistance/encouragement provided and
make reference to the requirement that A should know the basic facts that
constitute the offence committed and for which they are indicated as an accessory
(Johnson v Youden). Here Eve does not and so cannot be complicit in the murder.
(b) refer first to the principal offence, namely constructive manslaughter. Narinder is
the principal. Kei is the accessory. There is no need to deal with Jogee as the facts
disclose a classic case of unexpected outcome of a common purpose for which
both parties must take responsibility, e.g. Anderson and Morris.

(c) refer first to the principal offence, namely robbery (assuming it is ongoing) and
then to the requirement that the accessory has mens rea as to the
assistance/encouragement provided and make reference to the requirement that A
should know the basic facts that constitute the offence committed and for which
they are indicted as an accessory (Johnson v Youden). Here Polly does not and so
cannot be complicit in the murder. The actus reus of accessoryship to robbery is
present but not mens rea since Polly does not intend to assist or encourage it.
(d) refer first to the principal offence, namely murder and then to the requirement
that the accessory has mens rea as to the assistance/encouragement provided and
make reference to the requirement that A should know the basic facts that
constitute the offence committed and for which they are indicated as an accessory
(Johnson v Youden). The issue here is whether this is a Bainbridge-type case or a
Maxwell-type of case? Or is this ‘shopping list’ of possible crimes to be committed
by Denise too open ended to justify Rohit’s accessorial liability?
Poor answers to this question…
either treated the four scenarios without reference to accessoryship or showed little
knowledge of accessoryship beyond a garbled description of Jogee, which is
relevant, if at all, only in (b).
Question 6
State, giving reasons, whether the following scenarios are capable of
resulting in a conviction for fraud by false representation under section 2
Fraud Act 2006. (Do NOT consider any other offence.)
a) Freddie falsely promises to marry Greta in order to encourage her to
agree to sexual intercourse.
b) Morgan, a financial journalist, anxious to demonstrate his power
over the stock market, writes a column urging readers to invest in a
financially fragile company, stating it is a ‘sure fire winner’.
c) Ashanti, a committed vegetarian who wants people to stop buying
meat products, puts an advertisement in the Daily Echo implying
that the hotdogs of HotdiggetyDog hotdog manufacturers actually
contain dog meat, which she knows to be untrue.
d) Klara, an art dealer, describes a painting in the sales particulars as
an ‘early Constable’. The painting, as she knows, is painted not by
John Constable, the famous artist, but by his son, John Charles
Constable, a lesser artist.
e) Jonas tells Zahra honestly that the mileage reading on the car he is
selling is accurate. Prior to concluding the sale, he discovers that
the previous owner tampered with the mileage reading and the

7
 reading is false. He does not communicate this to Zahra and Zahra
buys the car.
General remarks
This question was designed to test your knowledge and understanding of both
actus reus and mens rea of fraud by representation. It required you to analyse s.2
(and s.5) and be able to identify with precision what, if any, false representation was
made. Some of the scenarios are covered in the illustrations and activities in
Chapter 12 of the module guide and Chapter 15 of Wilson so it should not have
proved difficult for those who had properly prepared.
Law cases, reports and other references the examiners would expect you to use
Fraud Act 2006, s.2; Firth (1990); Allsop (1977); Rai (2000).
Common errors
The main error, which appeared in the majority of papers, was failing to analyse the
facts of the case with a view to identifying exactly what it was that was a fraudulent
representation, e.g. simply asserting that Morgan committed fraud by writing a
misleading column, or Klara committed fraud by not telling customers who the real
painter of the picture was. This is not legal analysis! It is necessary to analyse every
fact and the reasons why that individual fact confirms or negates an element in the
offence. You will see how this is done in the next section.
A good answer to this question would…
include the following:
(a) A false express representation of fact (s.2 (ss.3 and 4)) has been made.
However, s.2 is clearly inapplicable because, by s.2(1)(b), fraud is only committed
where the representor’s intention is to make a gain or cause a loss. For the purpose
of the Fraud Act 2006, obtaining sexual favours is not a gain and no loss is caused
to the victim due to the operation of s.5(2), which limits the meaning of gain or loss
to money or property.
(b) A false express representation of fact (s.2 (ss.3 and 4)) has been made
because, by s.2(2), a representation is false if it is (a) untrue or misleading and (b)
the representor knows it is or might be untrue or misleading. This representation is
untrue, not simply misleading and Morgan knows this. He knows because he is a
financial journalist, that the company is not a ‘sure fire winner’. Morgan also has the
mens rea for fraud because, although his intention is not to cause his readers loss,
it is his intention to expose them to the ‘risk of loss’ (s.2(1)(b)(ii)). The risk is that his
readers will rely on what he says and lose all their savings. Ivey dishonesty must
also be established.
(c) A false express representation of fact (s.2 (ss.3 and 4)) has been made
because, by s.2(2), a representation is false if it is (a) untrue or misleading and (b)
the representor knows it is or might be untrue or misleading. This representation is
untrue, not simply misleading and Ashanti knows this. Ashanti also has the mens
rea for fraud because it is her intention to cause HotdiggetyDog loss of sales and,
therefore, of revenue. Ivey dishonesty must also be established.
(d) A false express representation of fact (s.2 (ss.3 and 4)) has been made
because, by s.2(2), a representation is false if it is (a) untrue or misleading and (b)
the representor knows it is or might be untrue or misleading. This representation is
not untrue but it is misleading as it is a ‘half-truth’ and Klara knows this. Klara also
has the mens rea for fraud because it is her intention to gain a sale and, therefore,
of revenue. Ivey dishonesty must also be established.
(e) Although staying silent about a key fact is not a representation for the purpose of
s.2, an exception is where a statement has been made that at the time was true but

8
 Examiners’ reports 2019

which later became false. In those circumstances, the representor (Jonas) must
correct the false impression that the representee (Zahra) will have that the
statement made originally is still accurate, e.g. DPP v Ray and R v Rai. See
Illustrations 12.5 and 12.6 of the module guide. A false express representation of
fact (s.2 (ss.3 and 4)) has been made because, by s.2(2), a representation is false if
it is (a) untrue or misleading and (b) the representor knows it is or might be untrue
or misleading. This representation is untrue, not simply misleading and Jonas
knows this. Ivey dishonesty must be established.
Poor answers to this question…
did not do anything other than assert that fraud had or had not been committed,
without any proper legal analysis or reasoning.
Student extract
(b) Morgan, a financial journalist, anxious to demonstrate his power over the
stock market, writes a column urging readers to invest in a financially fragile
company, stating it is a ‘sure fire winner’.
It is a fraud by false representation. According to section 2(2), a
representation is false if it is untrue or misleading and the person making it
knows that it is or might be untrue or misleading. Morgan is anxious to
demonstrate his power over the stock market and asks his readers to invest
in a financially fragile company. This may cause loss to another or expose
another to the risk of loss.
Comments on extract
This candidate wrote out the whole question. He/she did so for each of the five
questions. This means they spent as much time writing the question out as
answering it. You should not do this. You get no marks for it and you eat into the
time you need to answer the question with appropriate analysis and reasoning.
There are the beginnings of an analysis here but only the beginnings. Having
written the question out once the candidate then writes out s.2 verbatim. So far
nothing original has been said, although the candidate has identified what should be
an important element in the answer. But if you read on there is no analysis. The
candidate simply repeats the question again – ‘Morgan is anxious’. I know what
they would like to say. They would like to say that the statement is clearly untrue
and Morgan knows it but is prepared to risk saying it in order to advance his career
but this is left for me to work out. This is not analysis. You, the candidate, have to
spell it out rather than leave it to the examiner to fill in the gaps. The last sentence
is the candidate’s only attempt at analysing the facts but even this does not
advance us much because to be guilty of fraud it must be the Morgan’s ‘intention’
to cause loss or expose another to the risk of loss. Saying simply ‘it may cause loss,
etc. is not enough. The candidate should have said something like ‘Because he
knows for certain that his statement is untrue and that the company is fragile he
knows for certain that he is exposing readers to the risk of financial loss if they act
upon his recommendation’. ‘Knowing for certain’ means he intends to expose them
to the risk of loss (Woollin).
Question 7
Rhonda and Stefan are partners. One day Stefan starts tickling Rhonda on the
sofa. For a while she finds this enjoyable but then becomes breathless, as
she suffers from asthma. She tells Stefan to stop but he carries on. In
attempting to escape Rhonda jumps off the sofa, as a consequence of which
she twists her ankle causing it to swell up and this gives her considerable
pain. Stefan apologises and bends over Rhonda to help her up. In doing so he
trips and falls on top of her. This has the consequence of breaking Rhonda’s

9
leg. Stefan takes her to hospital where, due to a medical error, Rhonda is
given an overdose of a palliative drug. This sends Rhonda into a coma. She
regains consciousness a few days later with no ill effects.
Discuss.
General remarks
This is a question on non-fatal offences, which incorporates related issues such as
consent and causation.
Law cases, reports and other references the examiners would expect you to use
Offences Against the Person Act 1861, sections ss.47, 18 and 20. For cases see
below.
Common errors
Many students missed the issue as to whether Stefan’s use of force was lawful on
account of it being horseplay. The mere fact that Rhonda withdraws consent does
not mean that the continued tickling is thereby unlawful if Stefan did not realise
Rhonda meant what she said – see Aitken.
A good answer to this question would…
include the following:
Section 20 is your first port of call because Rhonda’s injuries include a broken leg
and coma both of which might be considered ‘serious injury’. You should have
stated the offence and outlined its elements. You should then deal with the issues
arising from the facts. The general issue is whether Stefan’s unlawful act has
inflicted/caused the broken leg/coma and, if so, is it serious injury (e.g. Bollom,
Brown and Stratton)? This general issue can be further refined into discrete
elements.
1. Was the tickling unlawful? Unlawfulness depends upon whether tickling is
impliedly consented to as play fighting (only at first) and was Stefan aware
of this at the time of the tickling (see horseplay cases, e.g. Jones, Aitken).
2. Inflict means cause (Burstow). This begs the following questions:
a. Does the self-inflicted injury break the chain of causation
(Roberts)? Or was it a simple accident?
b. Does the accidental falling on top break the chain for
involuntariness?
c. Does the overdose break the chain, e.g. Cheshire, Jordan?
3. Did Stefan have the mens rea for s.20, which is intention or foresight as to
some harm, e.g. Savage? This depends upon whether Stefan knew of
Rhonda’s vulnerability. It is unlikely that Stefan foresaw any harm arising
from the tickling and so you should have considered charging s.47. But
similar issues of causation and consent apply to s.47 as they do to s.20.
Poor answers to this question…
dealt with the question only very superficially, preferring to talk about routine
matters, e.g. causation and the palliative drug rather than the key issues of consent
and whether the injuries suffered were accidental rather than ‘caused’.
Student extract
In discussing the issue present in the question which revolves around the
Areas of omission and causation, first of all before discussion Stefan’s
criminal liability it is important to discuss the possible duty of Stefan to act…
Stefan carries on tickling, despite Rhonda telling him to stop. Hence this

10
 Examiners’ reports 2019

clearly shows that Stefan’s omission to stop the tickling when he becomes
aware of her asthmatic attack and failure to avert the attack, such as calling
for medical help, it shows that Stefan was in breach of his duty to act.
However Stefan’s defence counsel may argue that in the course of
attempting to escape Rhonda jumps off the sofa, which was her voluntary
act. Here it was Rhonda’s voluntary act that resulted in her enduring the pain
and twisted ankle. Hence as per Blaue Rhonda is responsible for her own
act.
The prosecution will then argue that the causal link was not broken. This is
because as per the case of Smith (in which, etc.) the injuries sustained were
due to the defendant’s act as it was still the substantial and operative cause
of the victim’s death.
Comments on extract
The first paragraph is misconceived. This is because the injuries sustained by
Rhonda can be traced back to Stefan’s act of tickling. The prosecution does not
need to argue that the actus reus was an omission in breach of duty even if it was.
It simply will aver that the actus reus of the offence of s.20 or s.47 is established
because Stefan performed an unlawful act (tickling), which resulted in the injuries
sustained, i.e. the tickling caused the injury not the omission to stop tickling! The
defence will of course challenge this argument by saying that the tickling was not
unlawful and the chain of causation was in any event broken.
The second and third paragraphs, by contrast, are very pleasing because the
candidate is doing exactly what I hoped they would do, namely construct arguments
between prosecution and defence. The candidate has learned a lesson the
compulsory question is designed to teach, namely how to structure a typical
problem question in terms of argument and reasoning.

11