Criminal Law II

Assessment Handbook

Emily Finch, 2021-2022

ASSESSMENT HANDBOOK - EMILY FINCH 1



Assessment Pattern 4
Formative Assessment 4

Summative Part 1 4

Summative Part 2 4

Formative Assessment 5
Word Count and Format Requirements 6

Submission Instructions 6

Verbal Feedback 7

Summative Part 1 8
Submission Date 8

Word Limit 9

Competence Framework 9

The Ten Competences 10

Revised Version of the Formative Assessment 14

Summative Part 2 15
Submission Date 15

Submission Details 15

Word Limit 16

Sample Question 16

Plagiarism and Collusion 17

Problem Solving in Criminal Law 18
Issue Formulation 19
Understanding IRAC 20

Application of the Law to the Facts 23

Dealing with Gaps in the Facts 24

Look at Both Sides of the Argument 25

Reaching Conclusions 26

Meeting the Word Limit 27

Effective Referencing 29

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Suitable Sources 29

When to Reference 30

References to Statute 30

References to Case Law 30

Pinpoint References 31

Cross-Referencing 32

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 Assessment Pattern
There are three components to the assessment for this module: one formative and two
summative. These three elements t together with the objective of ensuring that you have
the opportunity to develop the knowledge and skills necessary to achieve success.

Formative Assessment

This is a short problem question on criminal damage (Lecture 1 and Workshop 1) to

provide an opportunity for you to practice your problem-solving skills in the framework
of an analysis of criminal liability. The answer must be no more than 750 words (excluding
references) and will be submitted to your tutor’s folder on SurreyLearn by 4pm on 21st
February. No late submissions will be accepted. Feedback will be provided in a group
session on 22nd February and this can be supplemented by individual verbal feedback
provided by your tutor in Weeks 3 to 7. A failure to submit this work will mean that
students cannot complete the rst part of the summative assessment.

Summative Part 1

The rst part of the summative assessment is a re ective evaluation of your formative
answer that involves the completion of the competency framework and the submission of
a revised version of the formative with annotations that show how the work could be
improved. There is no word limit in relation to the competence framework but the overall
word limit for the formative answer remains the same so you must aim to strengthen it
without lengthening it. This is due on 6th April by 4pm and it counts for 20% towards the
overall grade for the module. It is not possible to complete this work unless you have
submitted the formative assessment.

Summative Part 2

The second part of the summative assessment is a 2000-word mixed-issue problem

question that brings together the offences and defences studied in the module. It is due for
submission by 4pm on 17th May. The question will be released on 7th April to enable you
to work on the question over the Easter break. However, it would be wise to wait until
after the problem-solving workshops that take place after the break to complete the nal
draft of the work.

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 Formative Assessment
The task for the formative assessment is to answer the following question on criminal
damage. Everything that you need to answer this question is covered in Week 1. There is a
lecture on criminal damage and a workshop on how to structure an answer to a problem
question on this area of law.

Jenna lives on the edge of a village and has a part-time job in the village bakery. Her
walk to work each day takes her through the car park on the edge of a wood that is
often used by dog walkers. One day, she notices a large dog on his own in a parked
car. She is puzzled by this as people usually park to walk their dogs not to leave
them in the car but the dog seems content and the car is parked under the shade of a
tall oak tree so Jenna carries on to the bakery and thinks nothing more of it. At the
end of her three-hour shift, she walks home again and is alarmed to see the dog is
still alone in the car. ‘That’s far too long to leave the poor fellow in there alone’ she
thinks and she notices that the sun has moved now so that the car is no longer in the
shade. Jenna peers through the window and sees that the dog is panting so she runs
to her home as fast as she can and grabs her toolbox from the shed planning to nd a
way to prise the window down to let some air into the car. Jenna inserts a large
sturdy screwdriver into gap between the window and the door frame and tries to
lower the window. It takes a lot of effort to get it to move even a little bit and Jenna
has to use much more force than she has imagined would be necessary. Eventually,
the glass in the window shatters and Jenna is able to open the door and free the dog.
She leaves a note in the car for the owner.

Your beautiful dog was ever so hot and bothered in the car so I’ve taken him
home with me to give him a drink. I live in Honeysuckle Cottage just to the
left of the car park so come and collect him when you can. Don’t worry, he’s
safe with me and I’m sure you didn’t mean to leave him so long or realise that
the car would get so hot. Sorry about the window but I had to get him out.

Blake, the owner of the dog, is furious when he sees the broken window and reads
the note. He is a wildlife photographer who often spends hours at a time in the
woods but always returns at regular intervals to check on his dog and to let him out
for a run and to give him water. At the time that Jenna saw the dog and thought he
needed rescuing, the dog had only been back in the car for ve minutes after long
walk and a game with a ball which was why he had been panting and lying down.
Blake hammers on the door of Jenna’s house and demands that she pays for the
broken car window. When she refuses, he takes his dog and tells her that he is going
straight to the police to report her for smashing his car window.

Advise Jenna on whether she is likely to incur liability for criminal damage contrary
to s1 of the Criminal Damage Act 1971.

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 Word Count and Format Requirements

Your answer to the question must not exceed 750 words (excluding the footnotes). It must
be referenced using footnotes, not endnotes or in-text references. The footnotes must be in
the OSCOLA referencing style and this must include pinpoint references where necessary.
If you are not sure about when and how to use footnotes, please do ask about this and
guidance will be provided. Students who are not sure what to do sometimes neglect the
referencing style in their formative assessment on the basis that they will work it out
before the summative submission but it is far better to use the formative as an opportunity
to practice as you will then have a much clearer idea of how to reference by the time you
could to write your summative assignments.

The work must be submitted as a Word document. Pages and PDF submissions are not
acceptable. The work must be one-and-a-half or double line spaced. The word count must
appear at the end of the document.

Please refer to the Twenty Points document (on SurreyLearn and discussed later in this
Handbook) for further guidance on the presentation of your work. This is a checklist of
points that will be used in marking your work so it is very important that you nd it, read
it and use it to guide you when creating your work for this module.

Submission Instructions

The deadline for submissions for the formative assessment is 4pm on 21st February. This
is an absolute deadline. No extensions will be granted and late submissions will not be
accepted. If your work is not complete by the time the deadline arrives, it is better to
submit something rather than nothing. This is because this piece of work forms the basis
of the rst part of the summative assessment so you will not be able to complete that task
without submission of this piece of work.

A folder has been set up for formative assessment submissions on SurreyLearn. There is
one folder for each of the three tutors and you must submit your work in your tutorial
leader’s folder. If you are not sure who your tutor is then check your timetable to nd
out. Your tutor is the person who takes the one-hour in-person sessions that start in Week
4. Please make sure you submit in the correct folder. Your tutor will not be able to look for
it and retrieve it if you put it in the wrong place. If in doubt, ask before submission.

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 Verbal Feedback

This module takes a rather different approach to feedback than that which you may have
encountered in other modules. In this module, feedback is given in two separate stages, it
is provided the day after submission and it is verbal not written.

The rst piece of feedback is provided the day after the formative assessment is
submitted. This takes the form of a whole group session that outlines the way that the
question should have been answered. The rationale for the timing of this session is that it
works through the answer to the question with you while it is still fresh in your mind. It is
provided in a live online session which gives you the opportunity to ask questions to
make sure that you have understood how you could have tackled the assignment. This is
important as your rst summative task is to create a better version of your own formative
answer.

The second stage to the feedback is to re ect on the work you submitted and the rst
piece of feedback you received in preparation for a one-to-one discussion of your work
with your tutor. This is a highly individualised approach to feedback as it is based upon a
dialogue between you and your tutor, giving you the opportunity to ask questions about
aspects of the work that you found especially challenging. In other words, it is feedback
that is tailored to you as a student as well as providing a response to the written work that
you have submitted. It will give you a more speci c idea of the areas of your answer that
require revision and re nement to help you to prepare for the rst summative assessment.
These appointments may take place in person or by Zoom (your tutor will let you know
which method they are using) during Weeks 3 to 7. The end of Week 7 is the end of the
feedback period and no further discussions of your work can take place after that time.

As both stages of the feedback process are verbal, the onus will be on your to take such
notes that you need to enable you to improve your work for the rst summative
assessment.

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 Summative Part 1
The formative assessment and the rst part of the summative assessment are designed to
reinforce the problem solving skills that you will have developed in Semester 1 and help
you to understand how to use these in the very particular structure of a criminal liability
analysis. In this way, you will have a strong set of skills as you go into the nal part of the
summative assessment which is a mixed issue problem question.

The rst part of the summative assessment contributes to the development of these skills
by requiring you to evaluate your own work and to take a critical look at your problem
solving skills. This is why you have to complete the formative assessment as without this
you will not have a piece of work to evaluate in the summative assessment. The essence of
the rst part of the summative assessment is that you will use a ten-point Competence
Framework to evaluate your own work and this will enable you to improve your answer
to the formative assessment.

This means that you will need to submit two separate documents:

1. The completed Competence Framework; and,

2. A revised version of your formative answer which shows the changes that have been
made.

Students who submit only one these documents will be considered to have made an
incomplete submission and will receive a mark of zero of the assignment.

The two documents must be uploaded separately. Please do not combine your revised
essay and the competence framework. Both the answer and the Competence Framework
must be submitted as Word documents. Submissions in Pages, as a PDF or any other
format cannot be accepted as the feedback for the work is provided on the document
itself.

Submission Date

The rst summative assessment is due on Wednesday 6th April by 4pm.

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 Word Limit

There is no work limit for the competence framework so you may write as much or as
little as you choose. The word limit for the revised answer to the formative question
remains unchanged at 750 words (excluding references) which means that the challenge
for you is to improve your formative answer without making it longer.

Competence Framework

The idea behind the Competence Framework is to divide problem solving in criminal law
into a ten separate ingredients to help you to understand the skills that are required and
thereby make the task of answering a problem question more manageable. It will also
help you to understand the feedback that you are given on your formative assessment
because you will be able to see which parts you have done well and which parts need
some alteration or strengthening. This is a re nement of the IRAC approach that you will
be familiar with from other modules but the basis technique is the same.

The Competence Framework divides the skills and knowledge involved in an effective
liability analysis in criminal law into ten categories:

1. Issue statement
2. Statement of law
3. Actus reus
4. Mens rea
5. Defences
6. Methodical approach to problem-solving
7. Application of law to the facts
8. Use of authority
9. Written style
10. Referencing

Each of these elements will be explained in greater detail in the section that followed. You
will nd this explanation and a blank competence grid for completion on SurreyLearn
under Assessment Information. There are workshop sessions in Week 8 that will explain
the Competence Framework in more detail and show you good and less good examples to
help to guide you in the completion of this task.

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This is an extract from the Competence Framework that shows the rst three competences
and the questions that you are asked in relation to them:

As you will see, for each of the ten competences, you are asked two questions:

✦ How well has this been done in the formative assessment? This invites you to show
your understanding of the competence itself by explaining what you think it required
you to do and to evaluate how well you achieved this in your formative answer.
✦ What have you done to improve this in the summative? Here you are being asked to
show how re ection has enabled you to create a stronger piece of work by identifying
the changes that you have made to your original answer

The Ten Competences

The following is an outline of each of the competences that combine to make up an

effective liability analysis in criminal law. The rst ve competences refer to separate
segments of your answer and the nal ve competences are more general skills that
permeate through the entirety of your answer.

1. ISSUE STATEMENT. Your answer should start with an issue statement. Remember
that ‘X has done Y to Z’ is a useful formula and that you are looking for a sentence that
encapsulates the defendant’s actions that lead to potential criminal liability. It will help
you to think about the actus reus of the offence when formulating the issue statement
but do not entirely neglect the mens rea or defences. Remember, though, this is just the

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 starting point for a liability analysis so do not try to put everything at this point. It
should be one sentence long and you may combined it with the statement of law.

2. STATEMENT OF LAW. Once the issue has been stated, you need to match this to an
appropriate offence and provide a reference to the source of law. There is no need to
quote statutory de nitions: just identify the offence and its source and then set out its
requirements in the actus reus and mens rea statements. The only exception would be if
you were considering a common law offence (assault or battery) in which case the
de nition is to be found in case law. You then elaborate on the meaning of each
element of the offence (if necessary) in your liability analysis. Remember that your
opening gambit is that the defendant may be liable for the stated offence: it is not
appropriate to state that he will be liable until you have explored whether all the
elements of the offence are established.

3. ACTUS REUS. There must always be a discussion of the actus reus of an offence in
your criminal liability analysis and this must come before the discussion of the mens
rea - if the defendant has not done anything wrong then his state of mind is immaterial.
There are three components of the way that the actus reus is addressed in an answer to
a criminal law problem question. Firstly the statement of the actus reus itself which
should be a single sentence that sets out what the law requires and makes no mention
of the facts. Secondly, there should be an analysis of each of the components of the
actus reus that explores which each of these is satis es and incorporates reference to the
facts and may necessitate exploration of authorities either to de ne words used in the
actus reus or to assist in explaining the likely application of the law to the facts. Finally,
there should be a conclusion as to whether or not the actus reus is satis ed. As with
everything else in liability analysis, the possible answers are ‘yes’, ‘no’ or ‘maybe

4. MENS REA. There must be a mens rea statement for every offence covered in your
answer. As with the actus reus, this need only be provided once. You should provide a
full statement of mens rea which includes alternatives if these exist as part of the
offence. For example, if the offence can be committed intentionally or recklessly then
you must state this even if you can see that only one form of mens rea is relevant. In
other words, the mens rea statement (like the actus reus) is a complete and abstract
statement of the law. You can then move on to considering how this applies to the facts
in your liability analysis. Remember that mens rea states are always objective or
subjective so be clear about which applies to the offence in question and make sure

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 that your analysis is worded appropriately. In particular, do not use words that are
indicative of objective standards (ought, should, must) when establishing a subjective
state of mind. The mens rea analysis follow the same three-part structure as the actus
reus analysis.

5. DEFENCES. If, and only if, you have established the actus reus and mens rea of an
offence, you should consider whether the defendant has a defence. This may be a
defence that is speci c to the offence in question (such as belief in consent in relation to
criminal damage or consent in relation to non-fatal offences) or it may be one of the
general defences covered in the module (self-defence or duress). Do not consider any
of the defences covered in Semester 1. The elements of the defence should be set out as
a series of requirements and worked through methodically as part of your liability
analysis. Remember to be very clear about whether the requirements are subjective or
objective.

6. METHODICAL APPROACH TO PROBLEM SOLVING. The liability analysis is

concerned with the overall quality of your problem-solving skills. It brings together
the three components of the offence (the actus reus, the mens rea and any defences that
might be applicable) but it looks not at whether you know what they are but at how
well you know how to use them. This aspect of your answer focuses on how well you
have understood the way in which the elements of each of the components t together
and how well you organise your discussion of each component. For example, it
includes the order in which elements of each component are discussed and whether it
is made clear that these are cumulative or alternative. It is also concerned with how
areas for discussion are prioritised – simple elements should have more concise
treatment than complex ones which require greater elaboration and exploration – and
how rm a focus is kept in terms of relevance. It looks for evidence of insightful
reasoning in terms of evaluating the likelihood that liability will be established. The
end point of an analysis of liability should be a reasoned conclusion that sets out the
thinking behind your decisions about whether or not liability is established for each
offence.

7. APPLICATION OF THE LAW TO THE FACTS. The ability to use the facts effectively
is the hallmark of a good answer to a problem question. Remember that your answer
should make sense to someone who reads it without ever having seen the question. If
it does not then you have not incorporated enough facts into your answer. This does

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 not mean that the facts should be summarised at the start or in chunks throughout the
answer but that they should be woven into the fabric of the answer. Use of the facts
must be precise and speci c: never make reference to ‘the facts’ in general terms but
import particular facts into your answer. You need to be clear in your differentiation
between facts and inferences that you have made from the facts. Application of the law
to the facts requires you to nd evidence of each element of the offence and work it
into your answer. It also requires, at a more advanced level, the skilfulness with which
you create arguments and counterarguments and the way in which you deal with
ambiguities or gaps in the facts.

8. USE OF AUTHORITY. There are four ways in which you might use authority in your
answer to a problem question and these vary in complexity. Firstly, all statements of
law need to be referenced to their source in either statute or case law. Secondly, you
will need an authority for any de nition you introduce into your work. The third way
that you might use authority is to explore the meaning of a word or phrase from an
offence or defence. This is more than a mere de nition and is more of an evaluation of
the way in which case law has evolved the scope of the law (the notion of ‘immediacy’
in relation to assault is an example of this). Finally, you may wish to use case law to
demonstrate the way in which the law applies to the facts. This can be done in quite a
basic way or it can be the basis of sophisticated analysis in which analogies are created
and distinctions are made. It is likely that you will need a combination of these ways of
using authority in your work. The emphasis here is on evidence that case law has been
read and understood and there is awareness of how it should be incorporated into
legal analysis. It is also important to ensure that statements of law are supported by
the relevant primary authorities rather than being referenced to a textbook or other
secondary source.

9. WRITTEN STYLE. The answer must be expressed in a way that is clear, concise and
grammatical. It should use language in a way that is appropriate to legal analysis at
this level which, ideally, means avoiding writing from the rst (or second) person
perspective in favour of a more objective style of analysis. Punctuation should be
accurate and there should be adherence to legal convention. The clarity of the written
style refers to the way that words are used in the work but also so the use of
appropriate signposting to ensure that the structure and ow of the answer and the
relationship of the points to each other is clear to the reader.

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 10. REFERENCING. The contribution of others to your work must be acknowledged so
every source must have a reference that identi es what you have read. This applies to
quotations, de nitions, explanations and ideas. It makes no difference whether the
ideas of others are expressed as direct quotations or are paraphrased in your own
words, the requirement for a reference will still be the same. References must be in
footnotes (not text or endnotes) and must follow the conventions set out in OSCOLA.
This includes cross-referencing and cross-citations. Pinpoints must always be provided
to a speci c page/paragraph within a source. When citing cases, the distinction
between neutral citations and law report citations must be evidenced and two citations
must be provided for cases decided from 2001 onwards. If a bibliography is provided,
it must contain only secondary sources.

Revised Version of the Formative Assessment

In addition to the competence framework, you should submit a separate document with a
corrected and updated version of the formative assessment with the changes highlighted
or otherwise indicated. This can involve highlighting, coloured text or inserted comments:
any method is acceptable as long as it makes the changes to your work clear to the marker.
You might also want to use the ‘track changes’ feature to make sure that the difference
between the original and revised documents are clear to the marker. In essence, you can
do whatever you feel is necessary to ensure that the marker can see the changes you have
made. If you have removed words, sentences or even entire paragraphs, you should add a
note about this. If you have reworded a lengthy paragraph to make it more concise, you
can leave both versions in your work but add a note in the margin to make it clear that
this is what you have done.

The difference techniques and approaches will be covered in the workshops in Week 8. If
you are in any doubt about how to do go about this task then please check with your tutor
or the module leader prior to submission.

I know that this is a different sort of task and that it might not be immediately clear to you
what you have to do from reading this. So I want to reassure you that there are plenty of
opportunities for you to understand the task in the workshops and the feedback sessions.

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 Summative Part 2
The second part of the summative assessment is a mixed issue problem question from a
choice of three that combines the three main offence categories covered in the module
(non-fatal offences, sexual offences and property offences). There may also be defences
raised by the facts. Please ensure that you limit your answer to offences and defences
covered in this module. There is no credit available for incorporating non-syllabus
offences and defences into your answer. We are looking for understanding of the content
that has been taught on this module only.

Submission Date

The questions are released on Thursday 7th April and the deadline for the
submission of your work is 4pm on 17th May.

Submission Details

Your work must be submitted on SurreyLearn in the Summative Part 2 folder. Please
ensure that you submit a single le which has a name that includes the number of the
question that have answered and the word count of your work. For example, Q1 1999
words or 1985s Q3.

Please make sure that you read the information on SurreyLearn carefully before
submission as your work must adhere to the Declaration of Originality that is set out
there. This is a statement that the work that you are submitting is your own and that all
sources are acknowledged. You will nd more information on plagiarism and collusion in
the assessment rubric which is discussed further on in this Handbook.

It is also important to ensure that your work is submitted in a format that can be opened
by the marker and have comments appended. For this reason, please submit a Word
document rather than a Pages document or a pdf le.

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Word Limit

The word limit for the second part of the summative assessment is 2000 words (excluding
references). References are only excluded if they appear in the footnotes, not in the body
of the answer. Footnotes must only contain citations and other references. There must be
no additional text in the footnotes.

Sample Question

You might nd it helpful to see the sort of question that you will encounter in the
summative assessment. This is a question from a previous year and you should be able to
see the combination of the three offence categories in the facts.

Alastair has got into further drug debt with Brian. He has no means to pay but Brian
has told him that he has to hand over the money by 10pm that day ‘or else’. This
frightens Alastair as Brian has previously sent someone after him with a shotgun to
collect his drug debt. He talks to Shula who also buys drugs from Brian. She tells
him that she stole money to pay Brian and suggests that he does the same. Alastair
decides that this is a good idea to he hides in the park, planning to attack someone
and steal their money. He jumps out on Hannah who screams and drops her
handbag before running away. Alastair is ri ing through the bag looking for money
when he realises that Laurina has witnessed the attack. He recognises her and is
afraid that she will be able to identify him so he drags her into the bushes and forces
her to the ground. He rips open her school blouse and removes her bra to take a
photograph of her naked breasts. Later that day, he texts her a copy of the photo
which clearly shows her breasts and her face with a message threatening to post it
online if she tells someone what she saw. Embarrassed and traumatised by the
experience, Laurina refuses to go to school the next day. She stays in her room,
refusing to speak or to eat. Her mother calls the doctor who refers her to an
adolescent psychiatric unit where she is diagnosed with suffering from post-
traumatic stress disorder. Meanwhile, Alastair found no cash in Hannah’s handbag
but has used her credit card online to buy several high-value items that he sells for
cash in the pub to pay his drug debt.

What, if any, criminal liability has Alastair incurred?

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 Plagiarism and Collusion

It is essential that you do not engage in any practices in the creation of your work that
would amount to academic misconduct which is de ned as ‘acts or omissions by a
student that have the potential to give unfair advantage in assessments’ (B2 Regulations,
para. 15). The Regulations go on to de ne some of the forms of academic misconduct:

✦ Plagiarism. Inserting words, concepts, images or other content from the work of
someone else into work submitted for assessment without acknowledging the
originator’s contribution and representing the work of another as one’s own, whether
purchased or not or taken with or without permission.
✦ Collusion. Two or more students share answers or work together on an assessment that
is meant to be assessed on an individual basis. This means sharing materials and/or
ndings and/or using the same wording. Not that providing work to another student
who passes it off as their own, with or without modi cation falls within the meaning of
collusion.
✦ Contract Plagiarism. Acquiring work to pass off as one’s own that may have been
acquired or bought from services and individuals that provide inter alia essays, papers
and reports.

Students who are in breach of these Regulations will be referred for formal investigation
within the university and penalties will be applied if an allegation of academic
misconduct is upheld. In addition to this, the School of Law has an obligation to ensure
that any student who is found to have committed academic misconduct must be reported
to the professional bodies as it calls into question their tness to practice as a solicitor or
barrister.

You will nd a warning about these forms of academic misconduct in the rubric that
accompanies the summative assessment. Please make sure that you read and understand
the rubric and abide by its terms. Provided you create your own answer and make sure
that all your sources are fully acknowledged then you should not fall foul of the
Regulations. In particular, avoid sharing a copy of your work with any other student.
Once the work has passed out of your possession, you have no control over what happens
to it and you will nd yourself called to an academic misconduct meeting if the other
student copies it and submits it as their own or if they share it with someone else who
copies and submits it.

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 Problem Solving in Criminal Law

The key to success when problem solving in any subject area is to be methodical. This is
especially important in criminal law because it is often the case that you will be dealing
with offences that have a particular relationship to each other: a hierarchy as we see in
non-fatal offences, for example, or situations where one offence is a component of another
(theft/robbery) or where the offences are mutually exclusive (fraud/making off without
payment).

Criminal law also has a another structural consideration which is the liability equation:

actus reus + mens rea (- defence) = liability

This creates an order that needs to be followed when considering each potential instance
of criminal liability. So we always start with the actus reus before moving on to consider
the mens rea if, and only if, the actus reus is established - if the defendant has not done the
prohibited thing or caused the prohibited consequence then his state of mind is of no
interest to us. Once the actus reus and mens rea is established then we have prima facie
liability; the defendant will be liable unless he can rely upon a defence.

But before you start to plan the structure of your answer, you need to analyse the
question. A sensible starting point is to look at the end of the question and see what it is
that you are asked to do. Are you asked to discuss any criminal liability that arises or are
you given a more speci c instruction to consider a particular party’s criminal liability?
Once you are clear about what is required, you can start to analyse the question,
highlighting the name of each person you encounter and making a list of the things that
they have done that might lead to criminal liability.

Once you have a list of what each person has done, have another check through the
question to make sure that you have not missed anything. Sometime information that
seems inconsequential may be signi cant and you should always think about why you
have been given each piece of information - it is also included for a reason even if the
signi cance is not immediately obvious.

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 Always remember Chekhov’s gun….

Anton Chekhov was a Russian writer who famously once said that if an author described
a gun hanging on the wall of a room, there had to be a reason for it; the gun had to have
signi cance later in the story. Chekhov believed that all irrelevant detail should be
excluded from a story, otherwise the writer is
making false promises to the reader. The same
principle applies when academics write problem
questions so try to puzzle out why you have been
given a particular piece of information.

Once you have a list of who has done what in the scenario, you can compare this with the
list of actus reus elements in relation to all the offences that have been covered in the
module. That should help you to identify the relevant offence to explore or, at least,
narrow it down to two or three options.

Issue Formulation

Once you have analysed the fact pattern, you are ready to start constructing the issue
statements that will form the structure of your answer. Your entire answer should be
constructed around a series of issues statements: things that the defendant has done that
could give rise to criminal liability. It is a question that needs to be answered using the
law. For example, ‘is the defendant liable for theft?’ is a question that cannot be answered
unless you know what the offence of theft requires.

It can be helpful to use the following formula to help you to word your issue statements:

X has done Y to Z
It makes sense to create a list of issue statements before you start writing your answer to
the question. This will help you to see if you have any similar issues that can be grouped
together and it will give you an idea of how much detail you have to address each issue.

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 Once you have analysed each party, you should have a list of issues that you can match
with one or more potential area of liability. It may not be obvious which offence a person
has committed or whether or not they are liable but that is the point of your answer; you
need to explore what, if any liability, exists. That may mean that you have to consider
more than one offence for each issue and it may be that a person is liable for more than
one offence arising from the same facts. Alternatively, it may be that you reach a
conclusion that there is no liability at all. That is a perfectly acceptable conclusion: you
demonstrate just as much knowledge and understanding of the law in reaching a
negative conclusion as you do in nding liability.

The words ‘may be’ are important in the formulation of the issue. Using ‘may be’ phrases
the issue as a possibility to be explored which is exactly the purpose of a problem
question. If you start by stating the a defendant is liable, you have a conclusion from the
start and this might be a conclusion that our analysis does not actually support.

Try to follow the rule that each party should cover one defendant, one victim and one
incident unless you are absolutely sure that two defendants/victims/incidents can be
combined, i.e. they raise exactly the same considerations.

Understanding IRAC

You will be familiar with the IRAC method of problem solving from Semester 1 and know
that the statement of the issue is the starting point of each section of your answer.

Once you have identi ed and formulated the issues,

you have the framework of the answer and you can
build upon this by adding the law and exploring how
it applies to the facts.

So your answer will start with the statement of the

rst issue but then what comes next in terms of the
rule stage of IRAC? The rule is the statement of law.
This includes the identi cation of the offence that you
are considering, the statement of actus reus and mens
rea and any elaboration on the meaning of words

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 found in the de nition of the offence. So each of the following are rules for the purposes of
IRAC:

✦ Initial statement of law. The defendant may be liable for rape contrary to s1 of the
Sexual Offences Act 2003.
✦ The actus reus and mens rea statements. The actus reus of s18 is satis ed by wounding
or causing grievous bodily harm.
✦ De nitions. Grievous bodily harm means ‘really serious harm’ (DPP v Smith).
✦ Tests. The test for dishonesty is set out in Ivey v Genting Casinos and requires …

Remember that all rule statements requires a reference to the source of the law that you
have stated. This must be a primary source (statute or case law) not a secondary source
(textbook, website, lecture slides). You should also note that there is no need to provide a
source for the actus reus and mens rea statements as these are extrapolated from a statute
that you will have already identi ed when you provided a source for the offence that is at
the heart of the liability analysis.

The important thing to remember about IRAC is that it is a planning device that helps you
to create a methodical answer. It is not an exact model that can be followed so that you
have a series of four separate chunks in your answer. In fact, this would be
counterproductive because the real skill in problem-solving lies in bringing the law and
the facts (rule and application stages of IRAC) together. So, despite the separate stages in
the diagram, what you actually need to do is to state the issue and the switch backwards
and forwards between the rule and application stages until you are able to reach a
conclusion about liability. So you might end up with an answer which, in terms of
structure, is more IRARARARAC than IRAC!

Essentially, then, what IRAC is encouraging you to do is to start with a statement of

possible liability and then break the relevant law down into chunks and nd evidence
from the facts that will establish whether or not each element of the offence is satis ed so
that you can make a decision about whether the defendant is liable. It can be encapsulated
by the following mantra which you should have in mind at all times when answering a
problem question in any module:

State the law and apply it to the facts

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It might help you to understand how this works more effectively if we look at an example.
The segment of a sample answer below has been colour-coded to show you the different
stages of IRAC in operation. You will also see that a fth colour has been added to
indicate the signposting sections of the answer.

Adam has set his dog on Jennifer and she sustains a bitten
Issue
hand which requires stitches so he may be liable under
Rule
s18 of the Offences against the Person Act 1861. The actus
Application reus of s18 is satis ed by either grievous bodily harm or
Conclusion wounding. Grievous bodily harm was de ned in DPP v.
Smith as ‘really serious harm’ and although Jennifer has
Signposting
received hospital treatment it seems unlikely that the bite
to her hand will have crossed this threshold of
seriousness. It will, however, t the de nition of a wound as ‘a break in the continuity of
the skin’ as it required stitches so the skin must have been broken. Although the actus reus
of s18 is established, the mens rea is more problematic as it includes an ulterior intent
requirement that the defendant must have intended to cause grievous bodily harm. The
farmer has set his dog on Jennifer as he is angry that she is on his land but it is not clear
that he wanted the dog to bite Jennifer. Section 20 offers an alternative basis for liability as
it shares an actus reus with s18 and it has a less stringent mens rea requiring only that the
defendant foresees a risk of some harm albeit not harm of the seriousness which ensued.
Adam will satisfy this if he realised that there was a possibility that Jennifer would suffer
any sort of injury as a result of his actions. However, this will only be satis ed if he was
aware of a possibility that his dog might bite Jennifer. Much will depend upon what
Adam knows of his dog’s temperament and previous behaviour; if it has a history of
snappiness with people then he may well have realised that there was a risk that Jennifer
would be bitten and injured in which case he will be liable under s20. However, if Adam
had no notion that his dog would bite Jennifer then he will not have the required mens rea
and it would be necessary to consider liability under s47. The actus reus of s47 is an assault
or battery that occasions actual bodily harm …

Once you see it in colour, the switch backwards and forwards between rules and
application can be seen clearly and you will also notice that there are conclusions reached
at different stages of the answer.

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Application of the Law to the Facts

This is the clever stage of problem-solving. It is one thing to be able to identify the
relevant law and write it down but real understanding of the law is shown by an ability to
work out how it applies to a factual situation. Think about it like this: if you say that the
actus reus of theft is the application of property to another then that is perfect accurate but
also very easy to copy down out of a book or from the lecture slides. It does not tell the
marker anything about your understanding of what these words mean. But if you are then
able to apply the facts to work out whether Jennifer is liable for theft when she picks
mushrooms growing at the edge of the farmer’s eld then the marker can see that you
have understood how the law works. And this is important. Clients do not go to see
lawyers to be told what the law is, they go to nd out how the law applies to them; in
criminal law, this typically means that they want to know whether or not they will be
convicted. So the ability to take the law that exists and work out how it applies to factual
situations is one of these most crucial lawyering skills.

It is also the application stage that makes the criminal law endlessly interesting because
you encounter new situations all the time and the only way that you can work out
whether or not an offence has been committed is to reason through the elements of an
offence and see what situation you reach. You can only do this if you actually understand
the law. So let’s look at an example that is a bit
different. If you stay in a hotel that has toiletries in the
rooms for guests to use during their stay, is it theft to
take these home with you? There is a hotel in Oxford
built on an old prison and they have prison-themed
toiletries. Would you think that a person was more or
less likely to be liable to theft if they took the shampoo
in the picture?

It is only when you understand the law that you are able to reason through whether or not
liability exists in relation to a particular set of facts. It is this process of reasoning that
shows understanding and it can only be done effectively in an answer to a problem
question if you know how to use the facts effectively.

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 So what does this involve?

✦ Look for evidence in the facts pattern. The objective of an answer to a problem
question is for you to reach conclusions about liability by assessing whether or not each
element of an offence is established. To do this, you need to search the facts for
evidence that supports a nding that every element either is or is not satis ed.
✦ Make sure that the facts match the law. Be sure that you select facts that are an exact
match for the requirements of the law. This may sound obvious but it is surprisingly
easy to miss the point.
✦ Avoid generic statements. You need to nd speci c facts from the question and bring
them into your answer. One common mistakes is to follow a statement of the law with a
phrase such as ‘applying this to the facts, it is clear that the actus reus is satis ed’ but
that is not actually application and it tells the marker nothing about your
understanding of how the law operates.
✦ Include enough facts. Your answer should make sense to someone who has not read
the question. If it does not, you have not included suf cient facts. You need to make
sure that all the material facts are included somewhere in your answer. That does not
mean that you include a summary of the facts but that you intersperse them
throughout your answer where they are needed.
✦ Do not over-use the facts. Just as you can have too few facts, you can also have too
many facts in your answer. You need to sift through the facts and identify those that are
relevant to the defendant’s liability. Not all facts do this to try not to include any
super uous detail.
✦ Do not talk about ‘the facts’ or ‘the scenario’. A problem question is a simulation of
what lawyers do in practice: listen to what someone has done and advise them about
their likely criminal liability. For this reason, answer should be written as if the case
was real and not make reference to ‘the scenario’ or include phrases such as ‘the facts
do not specify’.

Dealing with Gaps in the Facts

Problem solving in criminal law is rather like doing a jigsaw

puzzle. The question gives you half of the pieces, the law
gives you the other half and your job is to put the pieces
together in the right order so that you can see the full picture
of criminal liability. But the dif culty with answering

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problem questions in any area of law is that you will always nd that there are a few
pieces missing. This can be infuriating because you cannot reach a de nite conclusion
about liability without these missing facts.

But these gaps are deliberate because they encourages you to speculate, to engage in an
exploration of what the missing facts might be and how this would affect liability. In other
words, you need to ll in the gaps by thinking about what the missing information might
be. And, of course, because you cannot possibly know what information lls the gap, it
makes sense to look at two possible alternatives: one that supports the prosecution and
the other that supports the defence. This will enable you to make a balanced argument.

Look at Both Sides of the Argument

Do you see a rabbit or a duck?

There are two sides to every legal argument. This must be true in criminal law because
every case has a prosecution and a defence and each will advance arguments that
supports the conclusion - conviction or acquittal - that they want to reach. This means that
there is not always a single right answer but rather that it will be acceptable to reach either
conclusion based upon how you construct your argument. However, that does not mean
that you should argue for either conviction or acquittal without any acknowledgement of
the arguments on the other side: you should explore liability in a way that takes account
of both sides of the argument.

This two-sidedness should be re ected in the answer to a problem question.

But that does not mean that you have to present both sides of the argument on every
component of every offence. Some of the elements will not have an ‘other side’ - a book is
tangible property and there is no counter-argument, for example, just as penetration has

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 occurred if the defendant and victim have had intercourse. So be able to differentiated
between elements of an offence that have an ‘other side’ and those which do not.

A good rule of thumb is that if you look at what the law requires and decide that you do
not know whether it is satis ed on the facts then you need to look at it from both sides.
And there will be at least one such area of uncertainty built into each problem question
because this is a skill that we want you to be able to demonstrate.

Reaching Conclusions

The objective of a problem question is for students to demonstrate understanding of the

law and ability to use the law in relation to the facts in order to reach reasonable and
reasoned conclusions about liability. With that in mind, you need to make sure that you do
reach conclusion in the answer and ensure that it is an effective one that mirrors the issue
that you identi ed at the start of that section of your answer.

An effective conclusion also makes it clear how sure you are that liability will be
established. If you are con dent that there is liability, say so. If you have decided that
there is no liability, make sure that you identify the aspect of the offence that is absent. It
may be that you are not sure whether there will be liability or not so highlight the factor
that makes a certain conclusion impossible and explain how it affects liability:

✦ De nite liability. The defendant is liable under s20 as he caused the injury to the
victim’s face and was aware that there was a risk that he would cause her some injury.
✦ Possible liability. The defendant may be liable under s20 but it will depend on whether
he foresaw this risk that he would cause the victim some injury when he pushed her.
✦ No liability. The defendant cannot be liable under s20 even though he caused the
injury to the victim’s face because he did not realise that there was any possibility
whatsoever that she would suffer any kind of harm when he pushed her.

It is not helpful to reach a vague conclusion or to abdicate responsibility for reaching a

decision altogether. A conclusion is also less effective even if it is accurate if it does not
include an indication of your reasoning:

✦ I don’t know. The defendant may be liable under s20 but it is impossible to say for
certain without more information about his state of mind.

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 ✦ It’s up to the jury. The defendant may be liable under s20 but that is a question for the
jury.
✦ No reasoning. The defendant is not liable for s20.
✦ No meaningful reasoning. The defendant is not liable for s20 as not all of the elements
of the offence are satis ed.

You will need to reach a conclusion on each issue as you work through your answer but it
can be helpful to end your answer with a summary of your ndings about liability. This
pulls together the different parts of your answer and gives your work a strong ending.
The conclusion is the last thing that the marker reads so a clear and reasoned summary of
liability can leave them with a positive view of your work.

Meeting the Word Limit

It can be really frustrating to have put a lot of hard work into creating a detailed answer
only to nd that you are signi cantly over the word limit so you have to start to think
about cutting things out. But that is not the only way to reduce the word count and it may
not be the most effective way either

Think about each of these four ways of reducing the extent of your work. It can be very
effective especially if you print your work out and go through it with a pen in your hand,
crossing out extraneous words.

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It is important, though, that you do not sacri ce the quality of your work in order to
reduce the word count. For example, it is not acceptable to introduce abbreviations in
your work because it is still a piece of formal academic writing. So we would expect to see
references to the ‘the defendant’ and ‘the victim’ rather than D and V, and to actus reus and
mens rea not AR and MR. Other abbreviations are acceptable: it is ne to write about GBH
and ABH, for example. The rule here is that you write a phrase in full on rst mention
with the abbreviation in brackets afterwards and then you can refer to the abbreviation
thereafter. So, you would write ‘may be liable for causing grievous bodily harm (GBH)’
and then ‘GBH has been de ned as…’ As a guide, you can abbreviate phrases if the
abbreviation is something that we would say in speech. Think about the sentence ‘I think
D has the AR of GBH’ and you should see what I mean!

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 Effective Referencing

The referencing style used in the School of Law and quite widely elsewhere in the legal
world is OCOLA and you should try to ensure that your references are compliant with
this system of referencing. There is a comprehensive guide to OSCOLA available online
and a concise ‘quick reference’ guide to accompany it that covers the most common
sources that you might need to reference in your work.

Suitable Sources

For the purposes of this module, most of your references are likely to be to primary
sources, i.e. statutes and case law, so these are the sources that you need to know how to
reference. Just to be clear, when you are providing a reference as a source of a legal rule
then you should refer to the source itself rather than the place that you have read it. So, for
example, if you de ne GBH as ‘really serious harm’ then your source in DPP v. Smith
[1961] AC 290 and not the textbook, lecture slides or a website where you found the
de nition. The law should always be referenced to its actual source and this means that, in
answering a problem question, most of your references will be to statute or case law.

If you nd that you want to reference a textbook, stop and ask yourself what it is you are
referencing. Is it the law itself? If so, the reference needs to be to the actual source. If it is
an explanation of the law, stop using the textbook and explain the law in your own words.
This is important. If you quote an explanation of the law or its interpretation from the
book, how will your marker know whether or not you have understood it? The use of
your own words to explain the law and its interpretation show that you know what it
means and it is this that will attract credit from your markers. So be sparing in your
reliance on textbooks but if you are using the book as a source then make sure that you
include a reference otherwise you may nd that concern are raised about plagiarism.

The same applies to websites that summarise the law. The best approach would be not to
use them at all. There are two reasons for this: rstly, by using summaries that someone
else has produced, you lose the opportunity to show your own understanding of the law
and, secondly, they are simply not very good. All the ‘easy’ law websites that exist take a
very super cial approach to the law and are replete with over-simpli cations and
inaccuracies. Avoid them. But if you do use them, be honest and cite them as otherwise
you are at risk of falling foul of the rules on academic misconduct.

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 When to Reference

Every statement of law needs to be linked to its source. So, for example, if you state the
de nition of an offence then it needs to either be referenced to statute (so rape is de ned
by s1 of the Sexual Offences Act 2003) or case law (there are a number of cases that you
could use that have a de nition of assault). Make sure that your de nition contains only
necessary information and that you do not include details of the penalty. In criminal law,
we are only interested in whether someone will be convicted of an offence; what sentence
they are given if they are convicted is an entirely separate area of law. In addition to this,
you will need a reference every time you make a speci c point from a source or if you
quote words from a source. In essence, if you have taken some words or an idea from
somewhere then you need to acknowledge it.

References to Statute

Some topics that we have covered in this module are quite heavily statute-based which
means that you may need to reference several different provisions in your work. For
example, there may be numerous references to the Sexual Offences Act 2003 and the Theft
Act 1968. By contrast, the Offences against the Person Act 1861 states the de nition of the
offence and does not elaborate on its meaning so more references to case law may be
necessary.

Make sure that you are clear about which section of the Act you are using at any point in
time. And think about how you reference it from the point of the view of the word limit:
section 1, s 1 an s1 are all correct but the latter counts as one word whereas the others are
two words so it makes sense to use this as your approach. However, remember that
‘section’ is always written in full when it is the rst word of a sentence:

Section 1 of the Sexual Offences Act 2003 de nes rape as…

Rape is de ned in s1 of the Sexual Offences Act 2003 as…
S1 of the Sexual Offences Act de nes rape as…

References to Case Law

In order to understand the most effective approach to citing case law, it is necessary that
you understand the differences between a case that has been reported in the Law Reports

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 and one that has a neutral citation. Before the advent of the internet, a case was only
regarded as ‘reported’ and therefore authoritative if it was written up into one of the
bound copies of law reports such as the Weekly Law Reports, the Appeal Cases, the
Queen’s Bench Reports and so on. Since 2001, a transcript of all cases decided by the
Supreme Court/House of Lords, the Court of Appeal and the High Court has been
published online. The more signi cant of these cases will also still be reported in one of
the series of Law Reports. This is important because it will help you to understand what
the two sort of citations mean and how to cite cases correctly. Let’s look at an example
with a case that has both forms of citation

R v. Jogee [2017] AC 387 This is the citation from the Law Reports. It tells us where to nd the
case if we were to go into a library to read it. It is in the Appeal Cases
for 2017 and the judgment starts on page 387.

R v. Jogee [2016] UKSC 8 This is a neutral citation. It does not tell us where the case can be found
because it refers to a transcript that is online. The citation tells us that
this was the eighth case decided by the Supreme Court in 2016.

When a case has both forms of citation, OSCOLA states that you should reference both
and that the neutral citation should appear rst. It is also this source that should be used
for pinpoint references.

Remember that references to case law should either be incorporated into a sentence or
appear in a footnote. Never duplicate a reference in the text and in a footnote and avoid
any temptation to simply tack a case name on in brackets at the end of the sentence. This
is very poor practice.

Pinpoint References

Whenever you quote from a case (or other source) or

rely on a speci c point even if you express it in your
own words, you need to provide a pinpoint reference
that identi es the page or paragraph number without
the source where the words can be found. This enables
anyone reading your work to go to the speci c place
within the source where the words can be found.

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This works differently for Law Reports and neutral citations. The correct pinpoint
reference to a Law Report citation is to use the page number on which the words/point
appears separated from the rest of the citation with a comma whereas a pinpoint for a
neutral citation requires a paragraph number which is presented in square brackets. This
difference in approach is necessary because Law Report references tend not to have
numbered paragraphs whilst neutral citations do not have page numbers. The difference
in presentation is also practical: it is common practice with references for other types of
source (books, articles, reports, etc) to identify page numbers with a comma so square
brackets have been used to indicate a paragraph number to differentiate it from a page
reference.

Cross-Referencing

OSCOLA makes it clear that cross-referencing and cross-citation is preferable to repeating

the references in full each time. It takes a different approach to statutes, cases and
secondary sources.

✦ Statutes. These are never cross-referenced. Instead, OSCOLA requires that the full
statute name is used on rst mention and that this includes an indication of the
abbreviation that will be used thereafter. So, for example, your rst mention of the
Sexual Offences Act 2003 would include the abbreviation that you will use for all
subsequent mentions: Sexual Offences Act 2003 (SOA 2003).
✦ Cases. You need only cite each case in full once in your answer. Thereafter, you should
cross-cite to the original reference by using the name of the defendant and the number
of the footnote plus any necessary pinpoint. So a second mention of R v Bree might look
like this: Bree (n4) [24]. This tells the reader the name of the case (Bree) the number of
the footnote in which the full citation can be found (footnote four) and the paragraph
within the judgment that you are relying upon in the current footnote (paragraph 24).
✦ Secondary sources. This is similar to case except that you use the surname of the rst
author and you pinpoint to page numbers not paragraph numbers: Charles (n36) 146.
This means page 146 of the work by Charles referenced in footnote 36.

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 And nally I want to
wish you the very
best of luck with
your coursework.

But I also want to remind you of the words of the golfer, Gary Player, who said
‘the harder I practice, the luckier I get’.

Problem solving is a skill like any other. Don’t expect to be good at it without
practice. Take all of the opportunities to practice and develop your problem
solving skills and to learn from your feedback and the formative assessment. It
will be worth it. And remember, if in doubt .. ASK.

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