Examiners’ reports 2015

Examiners’ reports 2015

LA1010 Criminal law – Zone A

Introduction
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 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 subject guide open you
will see that everything you need to answer the questions is there. For example,
look at Question 8 and turn to your subject guide Section 15.2.2, the associated
activities and summary, and the references made to the textbook, to help you solve
the activities. If you do this you will have all the information, knowledge and
understanding to get a very good mark indeed! 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

Question 1
Adam and Eve are having an argument. Adam pulls out a gun and threatens
to shoot Eve. Eve tells Adam he is a coward and would not dare. Without
deliberating Adam pulls the trigger. The bullet misses Eve and hits the wall
behind Eve causing the bullet to ricochet and hit Graham (who is standing six
feet away) on the head. Graham falls down unconscious. Adam runs over to
help Graham. He trips as he does so and falls on top of Graham, killing him.
Discuss.
General remarks
This question involves consideration of the offences of murder and attempted
murder. There are a number of issues which demand consideration.
1. Do the facts disclose an intention to kill or cause GBH to Eve?
2. Is it fatal to a conviction for murdering Graham that Graham was not the
intended victim?
3. Did the trip break the chain of causation between the shot and the death?
There are no issues on attempted murder other than the requirement that mens rea
is the intention to kill.

1
LA1010 Criminal law

Murder of Graham –
1. Murder requires proof of an intention to kill or cause GBH. This is a case
where the jury should not be given a Woollin direction. It’s simply a case of
did he or did he not intend to kill? There is evidence to support this, namely
that he pulled the trigger in response to a dare. A consequence can be
intended without it being deliberated (Moloney) (Wilson, Section
13.4.A.2(b); subject guide, Sections 7.2.1, 7.2.3).
2. Manslaughter is an alternative option, based upon A’s unlawful and
dangerous act or gross negligence (Wilson, Section 13.7.B; subject guide,
Sections 7.4.1, 7.4.3, 7.4.10).
3. Is the wrong victim fatal to a conviction for murder or manslaughter? No,
due to the transferred malice doctrine (Wilson, Section 8.1.B; subject guide,
Section 6.3).
4. Can Adam argue that actus reus and mens rea did not coincide (i.e. the act
which caused death was not actuated/accompanied by an intention to kill
(murder) or recklessness/gross negligence (manslaughter))? He possibly
can. The Thabo Meli/Church/Lebrun doctrine requires either a planned
sequence of events or a death effected in the process of disposing of a
body presumed dead (Wilson, Section 8.1.A; subject guide, Section 6.1.2
and Activity 6.3).
However, applying ordinary principles of causation, it could be argued that Adam
performed an act with mens rea (pulls trigger), starting a causal sequence which
ended in death, and nothing happened between gun shot and death to break the
chain of causation. Adam will want to argue that his fall was a novus actus as it was
accidental and was independent of the initial act. He might have a little trouble with
this because the two acts could be argued to be dependent (one resulted from the
other) rather than independent.
Law cases, reports and other references the examiners would expect you to
use
Key cases on the mens rea for murder, in particular Moloney (1985), also Woollin
(1999) and Matthews and Alleyne (2003).
Key cases on transferred malice, for example, Gore (1611); Saunders and Archer
(1577); Pembliton (1874); Gnango (2012).
Key cases on causation, such as Roberts (1972); Paget (1983); Smith (1959);
White (1910); Lebrun (1992); Church (1965); Rafferty (2007).
Key cases on attempted murder, such as Whybrow (1951).
Common errors
Failing to centre the analysis on a specific offence (i.e. murder), preferring to talk
about the side issues of transferred malice and causation. Spending unnecessary
time talking about the loss of self-control defence. There is not enough in the facts
of this question to warrant it. There is little evidence of loss of self-control and
absolutely nothing which could pass as a qualifying trigger. If you mention it,
therefore, it should be to dismiss it in a brief sentence.
Another error is to treat the cause of death as gross negligence (gross negligence
manslaughter through the trip) which misses the point of the question.
Poor answers to this question…
tended to talk about matters peripheral to the question such as the loss of self-
control defence. Others, without properly considering murder, went straight into
talking about constructive or gross negligence manslaughter.

2
 Examiners’ reports 2015

Question 2
Kimberly recently ended her relationship with Ben, a work colleague. Ben was
very angry about this and decided to ‘teach her a lesson’. He sent her a
number of obscene and abusive messages by email, and also left similar
messages on her answering machine. Owing to this Kimberly suffered a
severe psychological reaction and was absent from work for three months.
On her return to work, Kimberly saw Ben in a corridor. He was holding open a
heavy glass door and as Kimberly approached he made a movement which
made it appear as if he was about to swing the door at her. Kimberly jumped
back in alarm, fell and broke her arm. Ben now says that he was only moving
the door slightly ‘for a laugh’.
Richard, a colleague, became aware of these incidents. He approached Ben
and told him ‘to pick on somebody your own size’. They agreed to ‘settle
things’ in the boxing ring in the work’s gym. They fought together one
evening and each suffered cuts and bruises.
Advise Ben and Richard as to their potential criminal liability.
General remarks
This question tests your understanding and knowledge of the law of non-fatal
offences and, in relation to the boxing match, the defence of consent.
Law cases, reports and other references the examiners would expect you to
use
Roberts (1971); Williams and Davis (1992); Ireland (1998); Burstow (1997);
Constanza (1997); A-G’s Reference (No 6 of 1980); Brown (1994); Mowatt (1968);
Savage (1992); Chan Fook (1994).
Common errors
Talking generally about the different offences without narrowing the focus to the key
offences relevant to each incident. There was no need to talk about s.18 as there is
no evidence of an intention to cause GBH in any of the scenarios. Another common
error is to state that because Ben did it ‘for a laugh’ he lacked mens rea. His motive
is irrelevant. All that need be shown is that he intended or foresaw some harm
resulting from his act. This might be difficult to prove.
A good answer to this question…
would be structured in terms of the different victims and the offences relevant in
each case. It would include the following elements.
 Abusive messages
Offences:
1. Section 47: Assault occasioning actual bodily harm.
You should identify the relevance of Ireland on the question of whether
an assault requires a physical confrontation and the question of
whether psychological harm counts as actual bodily harm (Wilson,
Sections 13.2.B, 13.2.D; subject guide, Activity 9.4 and subsequent
commentary). Very good answers would question whether there is any
evidence of an act leading Kimberley to fear for her immediate physical
safety. The messages were not necessarily threatening but ‘abusive’
and ‘obscene’.

3
LA1010 Criminal law

2. Section 20: Malicious infliction of GBH

Section 20 does not require an assault and can be committed upon
proof that GBH was caused by Ben’s actions (Burstow). Discussion
was expected on whether serious psychological harm counts as GBH
(Wilson, Sections 13.2.B, 13.2.D; subject guide, Section 9.1.2).
 Door
Offences: Ben may be charged with either of the following offences.
1. Section 47 (as above, no need for duplication).
You should identify and address the issue that s.47 does not require
any intention or foresight on Ben’s part so long as what he did caused
the ABH (e.g. Roberts, Williams) (Wilson, Section 11.2.D; subject
guide, Section 9.1.4).
2. Section 20 (as above, no need for duplication).
a. The first issue is whether a broken arm is GBH.
b. The second issue is whether there is evidence of mens rea.
You should explain that s.20 requires harm to be intended or
foreseen but does not require GBH (i.e. serious harm) to be
intended or foreseen (e.g. Mowatt/Savage) (Wilson, Section
11.2.B.2; subject guide, Section 9.1.3).
c. The final issue is whether his act caused the harm (Roberts
again).
 Richard
Offences as above.
There is one main issue – is consent operative? The A-G’s Reference case
suggests not although here there is an important point of distinction,
namely, the fight takes place in a ‘boxing ring’ and so is not a
brawl/disorganised. Might this take the case into the ‘lawful sports’/
horseplay category?
Poor answers to this question…
Tended not to deal with all parts of the question. There was also a common error of
stating that s.20 requires a wound. This is not the case; it requires either a wound
or GBH in the sense of serious injury, whether that serious injury takes the form of a
wound or, as here, a broken limb (Wilson, Section 11.2.A; subject guide, Section
9.1.1).
Question 3
Compare and contrast the partial defences of loss of self-control and
diminished responsibility.
General remarks
Often the most challenging aspect to understanding properly a given offence or
defence is what it is about that offence or defence which makes it special. A
comparing and contrasting question seeks to identify whether you have that
understanding.

4
 Examiners’ reports 2015

Law cases, reports and other references the examiners would expect you to
use
Law Commission Report Partial defences to murder (2004); Acott (1996); Ahluwalia
(1992); Clinton, Parker & Evans (2012); Dawes and Hatter (2013); Asmelash
(2013); Dowds (2012); Golds (2014); Tandy (1989); Dietschmann (2003).
Common errors
Ignoring the question and simply describing the two defences without making a
serious attempt to identify their points of comparison and difference. Spending too
much time on the previous law and overconcentrating on Ahluwalia – an important
case since both defences were considered in its resolution, but the question
demands a lot more than this.
A good answer to this question would…
include the following elements.
1. A definition and explanation of both defences. Reference should be made
to the Coroners and Justice Act and what it replaced (Wilson, Section 13.5;
subject guide, Sections 7.3.2, 7.3.9).
2. Comparisons should include some or all of the following.
Partial defence (only) to murder.
a. They both mitigate the mandatory life sentence.
b. Both require a causal trigger.
c. The effect of both is to reduce the defendant’s responsibility for an
intentional killing rather than to negate their mens rea.
d. Neither are available if the trigger for the killing involves
intoxication.
3. Contrasts should include some or all of the following.
a. Diminished responsibility – the causal trigger is internal (mental
abnormality). With loss of self-control it is external (words or
deeds).
b. Diminished responsibility may be relied upon even where there is
no loss of self-control so long as the mental abnormality played a
part in the killing.
c. Diminished responsibility is a mental condition defence. 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.
d. With diminished responsibility the burden of proof is on the
defendant.
These are indicative points only. You are not expected to deal with more than a
couple of points of comparison and contrast and would be given credit for any
points made not covered above.
Poor answers to this question…
tended to talk about the defences generally rather than focusing on the point of the
question.

5
LA1010 Criminal law

Question 4
‘Although core cases of murder and manslaughter may be easy to
distinguish, there exists a substantial grey area where precise categorisation
is difficult. Arguably this would not matter if judges had a complete
sentencing discretion across the range of criminal homicides. They do not.
Such discretion is available only for manslaughter. With murder however, a
life sentence is mandatory.’
Discuss with particular reference to the major points of similarity and
difference between the two offences.
General remarks
This question, again, asks for points of comparison and contrast but it does so with
a particular focus, namely the ‘grey area’ between murder and manslaughter at the
top end.
Law cases, reports and other references the examiners would expect you to
use
Proposals for reform by bodies such as the Law Commission (e.g. Law Com 304:
Murder, manslaughter and infanticide (2006)). Indicative cases include Hyam
(1975); Nedrick (1986); Woollin (1999); Moloney (1985); Hancock and Shankland
(1986); Matthews and Alleyne (2003); Goodfellow (1986); Adomako (1995); Misra
(2004); Newbury and Jones (1977).
Common errors
Not explaining and analysing the quotation.
A good answer to this question would…
after briefly explaining and discussing murder and the different forms of
manslaughter, turn to the quotation. The key elements in a good answer would
include how murder can be committed without direct intention to kill or cause GBH
where the defendant knows that either of those consequences are (virtually) certain
to occur as a result of their action. This arguably creates a grey area, policed only
by the jury, between murder and manslaughter because manslaughter (not murder)
is committed where the cause of death is the defendant’s extreme recklessness
(Wilson, Sections 13.4.A.2(b), 6.6.C; subject guide, Section 7.2.3). A good answer
would therefore explain the difference between ‘foreseeing death/GBH as virtually
certain’ (murder) and foreseeing it as ‘highly/extremely probable’ (manslaughter)
(Wilson, Section 6.6.A.1). Another grey area is created by GBH murder. A jury may
convict of murder if, although doubtful as to whether the defendant intended to kill,
they are convinced the defendant intended to cause GBH/serious injury.
Unfortunately, there are no set rules which distinguish serious injury from non-
serious injury. If, say, the facts are that D hit V over the head once with an iron bar
or gave V a beating with fists and feet and V dies, a jury may well have difficulty
deciding whether to classify D’s intention as an intention simply to harm V
(constructive manslaughter) or an intention to cause serious harm to V (murder). A
third grey area is created by the partial defences, although the quotation does not
appear to be directed towards this particular grey area. These partial defences turn
what would otherwise be a murder conviction into a manslaughter conviction, but
whether a person can avail themselves of diminished responsibility or loss of self-
control is not always self-evident, as cases such as Clinton, Dawes and Hatter,
Bowyer, Ahluwalia, Wood and Dietschmann indicate.
After this analysis of the quotation more general points of similarity and difference
can be discussed.

6
 Examiners’ reports 2015

 Similarities
1. Actus reus is comparable (unlawful killing).
2. Both can be committed in the absence of an intention to kill.
3. Both can be committed in the absence of a purpose, even to cause
harm (the effect of Nedrick/Woollin for murder).
 Differences
1. Mandatory sentence for murder. Absolute sentencing discretion for
manslaughter.
2. The partial defences are not available for manslaughter.
3. Murder is a crime of intention. Recklessness/negligence is not enough.
4. In GBH murder the intention must be to cause serious harm. Neither
constructive nor gross negligence manslaughter require D to intend or
foresee any harm, let alone serious harm.
Poor answers to this question…
simply described the elements of murder and the different forms of manslaughter.
Student extract
Murder can be defined as the unlawful killing of a human being with malice
aforethought or intent to cause grievous bodily harm. Manslaughter is also the
unlawful killing of a human being, however without malice aforethought. There
are many similarities between the two. However we will discuss the similarities,
namely the defences and the actus reus and the difference, namely the mens
rea….Murder and manslaughter share the same defences.. Ironically enough a
successful defnce may reduce a murder charge to manslaughter. We see this
in the case of Attroney General for jersey v Holley (2005)
Comment on extract
This brief statement is a good reflection of a common response to this question.
There is an attempt to identify a point of similarity and a point of difference between
murder and manslaughter. However, there is no reference here or later to the
question itself. In short, the question is being largely ignored.
The definition given in the first sentence is inadequate. It is not ‘malice aforethought
or intent to cause GBH’. It is ‘malice aforethought, which includes the intention to kill
or the intention to cause grievous bodily harm’.
The phrase ‘Murder and manslaughter share the same defences’ is also
problematic. They do not. The partial defences are available only to murder and
neither duress nor duress of circumstances is available to murder.
The use of A-G for Jersey v Holley is puzzling, since it is pre-Coroners and Justice Act,
and there is no need to use a case to support a general statement about a statutory
defence. Instead of this statement it would have been preferable simply to refer to the
two partial defences and the relevant sections of the Coroners and Justice Act.
Finally, the statement discloses a more fundamental weakness. It begins by saying
‘we will discuss the similarities, namely the defences and the actus reus and the
difference, namely the mens rea’. In short, after taking into account the error
regarding defences, the similarities to be discussed reduce to one similarity and the
differences reduce also to one. Quite apart from the failure to address the question
this statement tells the examiner that the candidate can only identify one similarity
and one difference.

7
LA1010 Criminal law

Question 5
Joey is sexually attracted to his neighbour, Phoebe, whom he (incorrectly)
believes shares his feelings. One evening he invites Phoebe over to his house
for a drink. After Phoebe has entered the house, Joey locks the front door and
puts the key in his pocket. There have been several burglaries in the area and
Joey always does this for security.
Joey pours Phoebe a drink and secretly slips into it a drug, which normally
has the effect of loosening inhibitions. However, the drug has a different
effect on Phoebe making her paranoid and terrified of Joey. Joey starts
making sexual advances to Phoebe. In her state of confused paranoia Phoebe
thinks that Joey will attack her if she does not submit. She also thinks she
cannot escape because she saw Joey lock the door. As a result she submits
to intercourse with Joey. Joey, believes, during intercourse, that Phoebe is
consenting and that the drug has merely loosened Phoebe’s inhibitions a
little. After the intercourse Phoebe goes home.
The next morning Phoebe decides to report the matter to the police. She is
furious with Joey and phones him to tell him of her intentions. Joey is scared
and decides he must kill Phoebe before she goes to the police. He decides to
burn down Phoebe’s house which he hopes will cause her death. He is
climbing over the back garden wall, armed with a can of petrol and matches,
when another neighbour sees him and shouts out. Joey runs away.
Discuss the criminal liability of Joey.
General remarks
There are two main points of discussion in this question. The first is rape, with
particular reference to the evidential presumptions and effect they have on the
prosecution’s burden of proving the elements of the crime.
The second is the law of criminal attempts, specifically attempted murder, although
credit was given to candidates who relied on (attempted) aggravated arson as the
substantive offence.
Law cases, reports and other references the examiners would expect you to
use include
Cicarelli (2011); Boyle (2010); Kamki (2013); Assange (2011).
Campbell (1991); Jones (1990); Gullefer (1987); Tosti (1997); Geddes (1996);
Whybrow (1951); Collins (1973); Brown (1985).
Common errors
Answering one part of the question at the expense of the other. Not dealing with a
major issue on the rape part, namely the effect of the evidential presumption on the
‘reasonable belief’ element in rape. There was no need to talk about s.76.
A good answer to this question would…
incorporate the following elements.
1. Rape – definition and its elements, the issues:
a. Consent. A good answer would have made reference to s.75(1)
and (2) specifying the two cases to be relied upon – unlawful
detention and involuntary intoxication. The discussion on this point
should have concentrated upon whether the facts of the question
disclose any evidence capable of rebutting the presumption that
Phoebe did not consent. In that case the prosecution would need to

8
 Examiners’ reports 2015

prove absence of consent by reference to s.74 (Wilson, Section

12.7.A.1; subject guide, Sections 8.4.2, 8.5).
b. Lack of reasonable belief. Again, a good answer would have made
reference to s.75(1) and (2) specifying the two cases to be relied
upon – unlawful detention and involuntary intoxication (Wilson,
Sections 12.7.A.1, 12.7.C; subject guide, Section 8.6).
This is a case where Joey will try and rebut the presumption by
reference to his motives and his understandable lack of awareness
of the effect the drug has on Phoebe. If the presumption of lack of
reasonable belief is rebutted the jury must consider reasonableness
by reference to the evidence presented remembering always the
evidence (not presented here) as to whether Joey made any efforts
to assure himself that Phoebe was consenting (subject guide,
Section 8.5).
2. The intended arson.
Possible offences – the obvious offence to emphasise is attempted murder but
you could still get a good mark if you deal properly instead with one of the other
possible inchoate offences (i.e. attempted arson/aggravated arson or burglary).
1. Attempted murder.
a. Reference should be made to the mens rea component (i.e.
intention to kill). An intention to do GBH is not enough (Whybrow)
(subject guide, Section 14.3).
b. Section 1 of the CAA. Is Joey’s action more than merely
preparatory to the commission of the offence of murder? Is he on
the job or simply in an advanced stage of preparing for it? (Wilson,
Section 18.5.A.1; subject guide, Section 14.2.1).
2. Burglary/aggravated burglary. Is there sufficient entry into a building?
Collins (1973), Brown (1985). The answer must be no, and so the question
again is whether there may be a conviction for an attempt (Wilson, Section
16.4.B; subject guide, Section 12.2.1).
3. Attempted burglary/aggravated burglary. Is Joey’s action more than merely
preparatory to the commission of the offence of burglary? Is he on the job
or simply in an advanced stage of preparing for it?
4. Attempted aggravated arson. Elements of the attempt as above.
Poor answers to this question…
ignored s.75, or simply copied it out of a statute book without referring to the facts of
the question.
Question 6
(a) Jaycee, a law student, lends Amir his book, ‘Smith on Theft’. Finding it
a touch dull, Amir puts it on a shelf and forgets about it, as does
Jaycee. A few months later Amir discovers the book again and
decides that it is not worth giving it back to Jaycee as the law course
has ended. He determines to sell it at the first available opportunity
but meanwhile leaves it on his shelf. A day later Jaycee telephones
and asks Amir for the book. 'Yes, I've got it', he says. 'I thought you'd
forgotten about it. I was going to sell it.'
Discuss.

9
LA1010 Criminal law

(b) Akande drives into a car park. He gets out of his car to purchase a car
park ticket from the machine. Chichima, who is leaving the car park,
spots him and calls out ‘Hi! Do you want my ticket? It still has two
hours left. I don’t want any payment.’ ‘Akande thanks Chichima and
takes the ticket. An hour later Akande arrives back at the car park.
Emengo, a friend of Akande’s, asks Akande if he can have his ticket.
Akande replies “Yes, but I want £1 for it. Emengo pays him and takes
the ticket.
Discuss.
General remarks
Part (a) is designed to test your understanding of two aspects of the law of theft.
First, how is property appropriated? Second, what test of dishonesty is to be
applied? Part (b) is slightly more challenging since, in addition to those aspects, it
requires discussion and analysis of the ‘belonging to another requirement’ and the
meaning to be attributed to the ‘intention to permanently deprive’.
Law cases, reports and other references the examiners would expect you to
use
Morris (1983); Pitham and Hehl (1977); Broome (1984); Section 2 of the Theft Act
1968; Ghosh (1982); Marshall (1998); Turner (1971); Hinks (2001).
Common errors
Not identifying the relevant part of s.3 which is central to the resolution of the
question. Not identifying the specific problem the prosecution might have in proving
dishonesty.
Not identifying the main issues in part (b), namely, whether theft can be committed
where the owner of the ticket or owner of the £1 in the final scenario consents to
you having it.
A general error was not breaking the question into its different parts. There are a
number of potential thieves here:
1. Akande by receiving the ticket from Chichima
2. Chichima by giving the ticket to Akande
3. Akande by selling Emengo the ticket
4. Emengo, by purchasing the ticket.
A good answer to this question would…
include the following elements.
Part (a)
1. Brief statement of the elements of theft.
2. Identify the issues.
3. Discuss the issues.
a. Given that Amir did not steal the book when first borrowing it (no
intention to keep, no dishonesty) did he steal it later when deciding
to sell it? This requires consideration of s.3. In particular the part
which says that a person can appropriate property after having first
received it innocently without stealing it (subject guide, Section
12.1.3; Wilson, Section 14.2.A.1). The issue then is does Amir
appropriate the book by deciding to keep it or dispose of it or does

10
 Examiners’ reports 2015

he need to do something inconsistent with the rights of the owner?

(Subject guide, Section 12.1.3.)
b. Belonging to another. When Jaycee forgets about the book, does it
cease to belong to him through abandonment? (Subject guide,
Activities 12.7 and 12.8 and accompanying text; Wilson, Section
14.2.A.3(a).)
c. Dishonesty. Assuming s.2 does not apply, does Amir’s statement to
Jaycee indicate that he does not realise his decision to keep/sell
the book to be objectively dishonest? If so, Ghosh dishonesty
cannot be established (subject guide, Section 12.1.4; Wilson,
Section 14.2.B.2).
Part (b)
1. A good answer would refer to the possibility that Chichima (also Akande by
receiving it) is guilty of theft if giving/receiving the ticket is an appropriation
of property belonging to another, referring to Hinks (receiving a gift is an
appropriation) irrespective of consent, Gomez (transferring property is an
appropriation) (subject guide, Section 12.1.3; Wilson, Section 14.2.A.1(c),
(d), (e) ,(f)) and Marshall (a car park ticket, once purchased, still belongs to
the original transferor for the purpose of the Theft Act 1968) and the
transfer demonstrates an intention permanently to deprive the owner of the
ticket for the purpose of s.6. (Marshall) (subject guide, Section 12.1.4).
2. Emengo may also be guilty of theft of the ticket under the Hinks principle as
above. Akande may also be guilty of theft of £1 under the Hinks principle,
assuming dishonesty (Wilson, Section 14.2.A.1(f)).
3. In each case, liability depends upon dishonesty. If s.2 applies it is
conclusive on the question of dishonesty. This is not obvious. For example,
if Akande thinks the ticket is Chichima’s to deal with as he wishes and does
not appreciate the status of the car park owner, does this mean that
s.2(1)(a) and/or (b) are applicable? If it does not apply, the Ghosh test must
be applied and in each case the main question which must be asked is
whether these kinds of arrangements are treated by ordinary people as
dishonest and whether the individuals concerned knew this.
Poor answers to this question…
In part (a), simply stating the elements of theft without any attempt to analyse the
facts. In part (b), dealing with the question on the basis of the Fraud Act or ‘making
off without payment’, which is entirely off point.
Question 7
‘The common elements structuring the majority of criminal defences operate
to negate criminal liability by virtue of the fact that the defendant’s conduct
was a “one-off” reaction to a crisis which manifested no broader antisocial or
dangerous disposition.’
Explain and discuss this statement by reference to at least THREE criminal
defences.
General remarks
This question requires you to identify the common elements in criminal defences
and explain how the defences operate to ensure that people can only rely on a
defence if their conduct is reasonable or reasonably to be expected.

11
LA1010 Criminal law

Law cases, reports and other references the examiners would expect you to
use
You should choose around 6–7 cases to illustrate your discussion from the following
list of indicative cases (assuming the defences used include duress, self-defence,
insanity, loss of self-control, and automatism): Clegg (1995); Oye (2013); Martin
(1989); Conway (1989); Willer (1986); Palmer (1971); Hasan (2005); Bowen (1997);
Howe (1987); Graham (1982); Pipe (2102); Re A (Conjoined Twins) (2001); Re F
(1993); Quick (1973); Sullivan (1984); Bratty (1961); Burgess (1991); Clinton,
Parker & Evans (2012); Dawes and Hatter (2013).
Common errors
Not answering the question; only giving a general discussion of three defences.
A good answer to this question would…
1. State and describe three defences with their elements.
2. Discuss how these elements reduce or (as in insanity for example) do not
reduce to:
a. The requirement of an external trigger (crisis). For example, duress
and self-defence require an external threat of harm (e.g. threat of
harm). Loss of self-control requires a (qualifying) trigger.
Automatism requires an external cause of the automatism.
b. An immediacy requirement reflecting the question’s reference to
‘crisis’ (e.g. duress, self-defence). No such requirement is present
in automatism, insanity, necessity.
c. A reaction to that trigger (e.g. duress and self-defence require D to
be acting because of the threat).
d. Reflecting the question’s reference to ‘no broader anti-social or
dangerous disposition’, a requirement that the reaction be a
reasonable one (and be proportionate). For loss of self-control the
trigger is qualified and requires the reaction to be consistent with an
ordinary person of ordinary tolerance and self-restraint.
e. Reflecting the question’s reference to ‘no broader anti-social or
dangerous disposition’, a requirement that the reaction disclose
prior fault.
Poor answers to this question…
did not relate their description of the elements of the three defences to the question
posed.
Question 8
Explain whether in each of the following scenarios if A is complicit in the
crime of P:
(a) A encourages P to have intercourse with V. Neither he nor P knows
that V is under age. Sexual activity with a minor is a strict liability
offence for which P is liable.
(b) A, a gunsmith, sells a revolver type handgun to P. Although P has a
licence for the gun, A suspects that the licence may be forged and
that the gun may be used for a wrongful purpose including murder. P
does use the gun for this purpose.
(c) P asks A, a gunsmith, for a replica gun which looks ‘as authentic as
possible’. A believes it is to be used to hold up a bank but he sells P

12
 Examiners’ reports 2015

the gun anyway. In fact, P modifies the gun so that it is capable of

firing bullets. He kills V, a counter assistant in a bank, with it.
(d) A, who does not like V, tells P, his friend, that V deserves a good
beating and asks him to effect it. P goes round to V’s house and
shoots him dead.
General remarks
Four part questions are notoriously difficult to get good marks on because a failure
on one or more parts of the question reduces your marks accordingly. With this in
mind, you should not attempt such a question unless you have sound knowledge
and understanding on each part. The question in each case requires discussion of
the mens rea for accessoryship and part (d) involves the area of joint enterprise
liability. Activity 15.6 of the subject guide prepares you for this question.
Common errors
Not understanding the mens rea requirement in accessoryship. Not referring to
Johnson v Youden.
A good answer to this question would…
include the following elements.
Part (a)
Although P can be guilty of the offence in the absence of mens rea as to V’s age,
for the accomplice to be complicit he must have knowledge of all the relevant facts
which make it an offence (Johnson v Youden). This is so even for strict liability
offences (e.g. Carter v Richardson). This requires A to have knowledge that V is (or
may be) under age (Wilson, Section 19.4.B; subject guide, Activity 15.6).
Part (b)
A’s liability as an accomplice is limited to what offence/range of offences/type of
offence he knows/believes P intends/may intend to commit. Since murder is one of
those crimes, A is complicit in it under the authority of Maxwell (1978) and Johnson
v Youden and Bryce (2004). The only issue arising here is whether simply suspicion
that the offence might be committed is enough. Bryce tells us that A must foresee
the commission of the offence as a real possibility.
Part (c)
A’s liability is limited to the crimes he believes P will or may commit. A is not liable
for murder, which requires A to contemplate that this offence may be committed by
P with the mens rea for murder. A may possibly be guilty of manslaughter on the
ground that he contemplated that the gun may be used for a dangerous purpose
(bank robbery) (e.g. Bristow (2011), Carpenter (2011)). Otherwise, he is complicit
only in the robbery (Wilson, Section 19.4.B; subject guide, Activity 15.6).
Part (d)
A is not liable as an accomplice to murder unless he intends to assist/encourage P
to commit murder (standard complicity) or, as part of a joint enterprise,
contemplates P might kill with the mens rea for murder (Powell (1997)). A cannot be
liable for murder, then, unless he contemplated/intended P to commit at least GBH
(subject guide, Section 15.3.5). Even then, he cannot be guilty of murder if what P
did (shooting) was fundamentally different from what was agreed/contemplated
(beating) (English (1997), Rahman (2008)) (subject guide, Section 15.3.6). He may
possibly be guilty of manslaughter (Bristow (2011)). Otherwise he will not be
complicit in the killing (Gamble (1989)) (Wilson, Section 19.4.D; subject guide,
Section 15.3.6).

13
LA1010 Criminal law

Poor answers to this question…

tended to answer the question without reference to accessoryship, or completely
ignore the mens rea requirement.
Student extract
Part (a)
P commits the strict liability offence of statutory rape. P would be considered
the principal, as he has committed the offence in question.
Furthermore an accomplice is someone who helps the principal in some way.
This person would be considered the secondary party, who is liable for
committing the actus reus is he/she encourages, assists or procures the
principal to commit the offence. In the situation in question, A would be liable
for encouraging P to have intercourse with V.
However the mens rea for secondry parties must aslo be stsfied. As seen in
Clarkson, the act of encouraging or assistance must be intentional and the
defendant must know that the act is capable of encouraging or assiting. From
the situation, A would satisfy this criteria.
The second requirement for mens rea is that at the time of the act of
encouraging or assisting the secondary party foresaw the commission of the
offence of the principal. Neither A nor P knew that V was underage, therefore
A would not satisfy this criteria for mesn rea as he was unaware of the
commission of the offence. Hence A would most likely not be a secondary
party and the requirements for mens rea were not satisfied.
Comment on extract
This is a reasonable attempt at part (a). First, the candidate distinguishes between
principals and secondary parties and their respective roles in the commission of an
offence. Second, they correctly state the conduct element of accessoryship –
namely, giving assistance or encouragement to the principal in the commission of
an offence. Third, they correctly identify the issue in the question – namely, that to
be liable as an accessory, A must not only give assistance or encouragement to P
in the commission of an offence but must do so intentionally. This requires an
intention to assist or encourage the act of the principal which constitutes the
offence. This is obviously present, as the candidate explains. But it also requires A
to know of the facts which render that act criminal. A person does not intentionally
encourage a person to commit a crime unless they believe that P intends to
commit a crime and that their words will encourage P to do so. If the act was
ordinary rape, A would have to know that V did not consent. If the act was a killing
and P was charged with murder, A would have to know that P intended to kill or
cause GBH to V. In the case of ‘statutory’ rape, A would have to know that the girl is
under age.
There are weaknesses, however. The first major weakness is sloppy legal
language. For example, the candidate says ‘Furthermore an accomplice is
someone who helps the principal in some way’. A lawyer would say ‘By s.8
Accessories and Abettors Act 1861 an accomplice is someone who aids, abets,
counsels or procures the commission of an offence. The actus reus can be restated
as helping or encouraging the principal to commit an offence.’
The candidate then states ‘In the situation in question, A would be liable for
encouraging P to have intercourse with V’. There are two weaknesses in this
statement. First, it is an assertion rather than an explanation. Second, a person is
not ‘liable’ simply for satisfying the actus reus. A lawyer would say ‘it is clear that
the actus reus of secondary party liability is satisfied in this case since he has

14
 Examiners’ reports 2015

encouraged the act of intercourse. Whether he is liable as a secondary party

depends upon his mens rea.’
Another weakness is the poor use of cases. For each proposition of law you make
there should be a corresponding authority in support. Clarkson is not an authority
for the proposition the candidate makes about mens rea. The authority is NCB v
Gamble (1947) and Johnson v Youden (see subject guide, Section 15.2.2). Ideally,
the candidate should also have stated that the requirement that A knows all the
relevant facts extends even to strict liability offences such as this. The authority is
Carter v Richardson (subject guide, Activity 15.6).

15