Examiners’ reports 2016

Examiners’ reports 2016

LA1010 Criminal law – Zone A

Introduction
As in previous years, the examiners attempt to make the examination as
straightforward to pass as possible for those who are prepared to put in the hours of
study and revision. Your 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 5 and turn to 10.3.2, 11.1, 11.5.1
and 9.2.4 in the subject guide, together with the associated activities and summary,
and the references made to the textbook to help you to complete the activities. If
you do this, you will have all the information, knowledge and understanding to
address the questions. 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

PART A – Multiple choice examination
Feedback on the multiple choice exam is provided on pages 12-15 of this report.

PART B – Problem/essay question examination

Question 1
Following an argument in the street, Alastair punches Hashim who falls over,
cutting his elbow. Alastair walks away. As Hashim is attempting to get up he
bumps into Isobel who has just turned the corner. Hashim falls over again,
hits his head and loses consciousness. Isobel, who is in a hurry, keeps on
walking after the collision and does not look behind her. Hashim is taken to
hospital suffering from concussion and loss of blood. He is given a blood
transfusion and he regains consciousness. However, the blood transfused
was infected by a life-threatening virus, from which Hashim dies three weeks
later.
Discuss.
General remarks
This is a question on constructive manslaughter (for Alastair) with the main issue
relating causation. There was scope for discussing non-fatal offences against the
person but only as the default option if the causation element in constructive
manslaughter cannot be established. It is a question on constructive manslaughter

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and gross negligence manslaughter (for Isobel) with issues relating to the voluntary
act requirement in criminal liability and causation on constructive manslaughter and
the duty, breach and causation requirement in gross negligence manslaughter by
omission.
Law cases, reports and other references the examiners would expect you to use
See the cases below.
Common errors
The most common error was to concentrate on non-fatal offences at the expense of
homicide,
A good answer to this question would…
include the following.

Alastair
1. Constructive manslaughter
You should have indicated that, since a death has occurred, Alastair’s liability for
constructive manslaughter has to be considered. You should have defined this,
identified its elements and the issues. These include whether:
 a punch is an unlawful and dangerous act – e.g. Church;
 the chain of causation is broken by Hashim bumping into Isobel – e.g.
Mackie;
 the chain of causation is broken by the infected blood transfusion – e.g.
Jordan, Bush.
There is no need for foresight as to harm – e.g. Church, DPP v Newbury and Jones
(1976).
2. Assuming the chain of causation is broken
You should have considered as an offence s.47 and/or s.20 in relation to the punch
and cutting elbow (9.1.3 of the subject guide).
You should have identified and defined the key elements stating how they are
satisfied, e.g. a punch is an assault and it has caused ABH for the purpose of s.47.
The main issues on both offences are causation (see above) and mens rea. In
relation to s.47, there is no need to establish foresight of resulting harm, e.g.
Roberts. In relation to s.20, there is no need to establish foresight of the wound
(Mowatt (1968)).

Isobel
Constructive manslaughter
You should have defined and stated the elements unless this was done in relation
to Alastair. The key elements here is that no unlawful act occurs if the collision was
involuntary. You should have analysed the facts carefully to decide this. If it is not
constructive manslaughter then gross negligence manslaughter was an option
based on Isobel’s failure to go to Hashim’s aid. The issue here is whether
Miller/Evans apply where Isobel’s initial act was involuntary? Even if it does, to be
liable Isobel must have breached her duty. Has she? There is also a possible
defence of impossibility based on lack of knowledge (e.g. Harding v Price).
Causation as above.
Poor answers to this question…
identified murder as the core offence in an astonishing number. Murder should
never be considered where there is patently no evidence of an intention to kill or

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cause serious injury, as here. Many candidates ignored the death altogether or
dealt with it cursorily and concentrated on the non-fatal offence aspect of the
question. This should only have been dealt with as the default crime if you conclude
that causation cannot be established.
Student extract
The student answers begins with a discussion of Alastair and Isobel’s potential
liability under s.47. (S)he continues…
Is Alastair liable for constructive manslaughter of Hashim? Constructive
manslaughter is also known as unlawful ac[t] manslaughter. This offence is
defined in Larkins, where the defendant, in this case Alastair, intentionally did
an unlawful act which is objectively dangerous and cause the death of the
victim. All these elements have to be proved by the prosecution to count
Alastair liable. Lawrence v MPC.
An unlawful act requires an act that constitutes a criminal offence. This must
be a positive act and not an omission. Lowe. According to the facts of this
case the unlawful act is the punch. The next question is whether Alastair’s
punch is regarded as objectively dangerous. Gomez. He did foresee that
there will be consequences to his act. The actus reus is therefore
established…
Is Alastair’s punch the ‘substantive or operative cause’ of death? Smith. In
Pagett, Goff LJ stated that as long as the defendant’s act is more than
significant, the defendant may be liable, it does not need to be the sole or
main cause of death.’
Comments on extract
As explained above starting with Alastair’s potential liability for a non-fatal offence is
not the way to do it. There is a death here and so any wrongdoing committed by
Alastair or Isobel should be analysed with this result in mind. Section 47 is the
default crime if the more serious crime cannot be established and is of course
properly mentioned as the base crime in a charge of constructive manslaughter By
saying ‘the unlawful act is the punch’ the candidate did not do this satisfactorily in
fact (although (s)he would not have lost marks). What should have been said is that
‘since the punch constitutes an assault the unlawful act element in the actus reus is
established.’
The succeeding sections are relatively sound, although the erratic use of authorities
is a bit strange. Lawrence and Gomez are authorities on theft, not manslaughter.
There was no need to talk about the fact that constructive manslaughter cannot be
committed by omission in relation to Alastair since his wrongdoing is an act not an
omission. Do not throw in pieces of law which do not help you answer the question.
It would have been a better use of time for ‘objectively dangerous’ to be defined as
per Church. See 7.4.6 and Activity 7.1 of the subject guide, where you are advised
to commit the principle to heart. Unfortunately, the candidate lost his/her way at this
point conflating ‘dangerousness’ with what Alastair happened to foresee. Finally,
you must remember your key principles verbatim. There is a big difference between
saying ‘Is Alastair’s punch the “substantive or operative cause” of death?’ And the
correct versions which is, ‘Is Alastair’s punch the “substantive and operative cause”
of death?’
Question 2
Jane, a customer, asks Roger, a grocer, if his vegetables are organic. He
confirms this to Jane. Roger purchases all his produce from what he believes
is an organic farm but he is not absolutely sure.

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Later, Roger goes to a drive-in carwash. He finds that he has no loose change
in his pocket and so, being in a hurry, tries to put a foreign coin in the slot.
The coin does not fit the slot and so he goes to the carwash next door. This
time he is successful with his use of the foreign coin and his car is washed.
He then fills his car up with petrol. On reaching the cash desk he discovers he
has not brought his wallet with him. He tells Ahmed, the cashier, of his error
in relation to the petrol and the foreign coin and tells him that he will return
later to pay. Roger later decides not to return to pay.
Discuss Roger’s potential criminal liability.
General remarks
This is a question mainly concerned with fraud, including obtaining services
dishonestly and making off without payment. The different scenarios are intended to
test your understanding of the points of comparison and contrast between these
offences.
Law cases, reports and other references the examiners would expect you to use
Corcoran v Whent (1977), Vincent (2001), Allen (2005).
Common errors
Many candidates wasted valuable time writing out the relevant sections of the Fraud
Act. You would get no marks for this. Candidates also often relied on s.3 which was
not in point. Candidates also tended not to analyse the facts of the question
sufficiently thoroughly. For example, it is not obvious from the facts whether, at the
time of putting the foreign coin in the slot, his intention was to avoid paying entirely
or whether it was done simply out of convenience. If it was done out of convenience
it would mean that the dishonesty component in fraud by representation and
obtaining services dishonestly may be negated. Also, under s.2, it might mean that
no gain was intended (s.5(3)).
Finally, very few students covered all the potential wrongs committed here.
A good answer to this question would…
separate out the different scenarios as follows.
Roger’s organic vegetables
You should have considered whether: Roger made a representation about the
vegetables and what it was. You should have also considered whether whatever
representation Roger made was false in the sense of being untrue or misleading;
whether Roger knew this or knew it might be; whether Roger intended by that
representation to make a gain or cause a loss or might he have other reasons for
the representation? Whether Roger was (Ghosh) dishonest.
The first car wash
By trying (and failing) to put a foreign coin in the slot was Roger ‘making a
representation’ within the meaning of s.2(1)(a)? If so, was this dishonest or simply
done out of convenience? See above. Only if it was not a representation would an
attempt be worth considering.
Was it done to make a ‘gain’? What was that gain? Soap and water and/or non-
payment of debt within the meaning of s.5(3)?
The second car wash
As above. The important difference is that, in the second case, a representation
definitely has been made. A good answer would have specified what that
representation is and why it was false. Roger was representing that his coin was the
correct coin for the purpose when it was not.

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 Examiners’ reports 2016

The petrol
There is no evidence of an intention not to pay from the outset so theft of petrol
does not need to be addressed in detail except to deny it. Corcoran v Whent.
Paying for the petrol
Fraud by false representation requires the representation (that he intends to return
and pay) to be false. The element of intention to make a gain requires consideration
of s.5(2) and (3) This is not clear from the facts. Making off without payment
similarly requires Roger to intend not to return and pay at the time he departs from
the cash desk (Allen). There is also an issue about whether the offence is
committed where departure is permitted as here. The indicative case is Hammond.
Poor answers to this question…
many students skated over the main offences and dealt with each scenario on the
basis of one offence only, particularly making off without payment.
Student extract
In the given question several issues arise that must be clarified separately
and in detail. What we are dealing with here is mainly the areas of property
offences, including fraud. The issues surrounding Roger’s potential criminal
liability are: will Roger be liable for fraud by false representation in relation to
the organic vegetables; will Roger also be liable for fraud by false
representation in relation to the use of the foreign coin; and will Roger be
liable for making off without payment in relation to the petrol?
Jane, a customer, desires to [know] if Roger’s vegetables are organic. He
confirms that they are. Would this amount to a fraudulent representation if he
is not sure that this fact is true? S.2 of the Fraud Act 2006 states that a
person is in breach of this section if he dishonestly makes a false
representation and intends to make a gain for himself or cause a loss to
another.
Breaking things down we first must see if the representation was indeed
false. S.2(2) states that a representation is false if it is untrue or misleading
and the person making it knows it to be so, or might be so. Based on the
facts we cannot be entirely sure if the produce is actually bought from an
organic farm, and thus cannot rule it untrue. It can be argued that Roger
knows it may be untrue, therefore it may be untrue, but since the facts do not
solidify this piece of information we cannot conclude that it is as such.
Comments on extract
For those of you who are unsure how best to introduce a problem this is a good
starting point. The extract begins the candidate’s answer and concisely introduces
most of the main issue. There are some omitted, e.g. that of Roger possibly being
guilty of obtaining services dishonestly in relation to the car wash and theft in
relation to the petrol but the overall method is good. The examiner knows what the
candidate intends to talk about and that the candidate is thinking like a lawyer.
Another good feature is the way the candidate relates the issue, the law and the
facts together. Instead of talking generally about the law of fraud (s)he states that
fraud can only be established if the statement is untrue. It is not enough that Roger
believes it may be untrue. It also has to be untrue. Unfortunately, (s)he gets into a
bit of a muddle in this context about what the representation is, which is or may be
false, when (s)he says ‘we cannot be entirely sure if the produce is actually bought
from an organic farm’. This, of course, is not the potentially false representation
which Roger has made which is that the vegetables are organic which is not the

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same thing. Nevertheless this level of analysis and clarity is well within the upper
second class standard.
Question 3
Frasier and Merys are married to each other. One night, after both of them
have been drinking heavily, Frasier tells Merys that he finds her physically
repulsive and cannot stand her touching him. He tells her that he has never
loved her and that he has been having an affair with Merys’s sister, Roz, since
before the marriage. Merys reaches for a paperweight with which she
smashes Frasier several times over the head. She then collapses in a drunken
stupor. When Merys awakes and sees Frasier unconscious on the floor, she
regrets her action and decides to take Frasier to the hospital. Unfortunately,
as Merys is carrying Frasier out of the front door, she trips over and drops
Frasier on the front door step. As a result of the injuries he sustained from
the fall on the door step, Frasier dies.
General remarks
This is a case on murder with issues including mens rea, intoxication, causation and
the partial defence of loss of self-control. As always, you were expected to deal first
with murder and only having satisfied yourself that there is a case to answer to talk
about the defence.
Law cases, reports and other references the examiners would expect you to use
Coroners and Justice Act 2009, ss.54 and 55. The Law Commission Report on
Partial defences and cases such as Acott (1996), Ahluwalia (1992), Clinton (2012)
Dawes (2013), Hatter (2013).
Key cases on the mens rea for murder, in particular Moloney (1985), also Woollin
(1999) and Matthews (2003).
Key Cases on intoxication, e.g. Majewski, DPP v Beard (1920), O’Connor (1991).
Key cases on causation, e.g. Roberts (1967), Paget (1983), Smith (1959), White
(1910) Lebrun (1992), Church (1965).
Common errors
Many students failed to analyse the question’s facts for the purpose of deciding
whether mens rea is present, often ignoring the significance for criminal liability of
the intoxication. Again, many students did not analyse the facts for the purpose of
deciding whether a qualifying trigger was present and how the state of intoxication
was relevant in the light of s.54(3), i.e. D’s capacity for tolerance and self-restraint.
A good answer to this question would…
state the offence to be charged as murder, define and identify the elements and
indicate that the main issues concern mens rea and causation. On the mens rea
issue there should have been consideration of the facts which might support a
conviction, in particular the motive, the fury and the repeated use of the table lamp.
That she intended to cause serious injury at least gains further support by her
‘regret’. The issue is complicated by her state of intoxication. This is not a defence
in itself but evidence may be used to support a claim of lack of mens rea since
murder is a specific intent crime. Do the facts support a conclusion that she did not
intend to cause Frasier at least serious injury? Or did the intoxication simply release
her inhibitions and stoke her fury? On the causation point mention should have
been made of the tests for causation, in particular that factual causes of harm are
also the cause in law unless the chain of causation is broken by an
abnormal/unforeseeable event or voluntary act. In particular, you should have
questioned whether the stumble breaks the chain of causation because involuntary

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or whether it is just another link in the chain. See Lebrun (1992), Church (1965) and
Smith (1959).
On the issue of loss of control, a good answer to this question would have identified
elements s.54, indicating that loss of temper is not the same as loss of control – e.g.
Dawes. You should also have made the point that an accusation of infidelity
(s.55(6)) e.g. Clinton; Dawes and Hatter is not a qualifying trigger (s.55(6)),
although the defence can still be relied upon if other circumstances of an extremely
grave character are present, e.g. Clinton; Dawes and Hatter. You should then have
considered the overall context of abuse including the hurtful statements made to
Nick to decide this and whether it would have caused a justified sense of being
seriously wronged and the objective ‘reasonableness’ of the reaction under
s.54(1)(c).
Although not required, you would have been given credit if you had decided for
good specified reason, for example, lack of mens rea due to self-induced
intoxication that murder ( a specific intent crime) was not available but constructive
manslaughter (a basic intent crime) was. Again, this was not required if the first part
was well done.
Poor answers to this question…
ignored intoxication and did not engage in factual analysis.
Question 4
a) Hawking works in a research laboratory, which is conducting
experiments on live animals. Owning a Labrador dog himself, he is
distressed to discover that Labrador dogs have recently been
introduced to test the toxicity of certain new drugs. He opens all the
dog cages and then leaves the premises. When the caretaker arrives
later she finds half of the dogs have escaped. Within two days all of
the escaped dogs have been recaptured except for one which was
killed in a collision with a car.
Discuss Hawking’s potential criminal liability.
b) Explain and discuss the notion of ‘intention to permanently deprive’
for the purpose of the Theft Act 1968.
General remarks
Both sections are concerned with ‘the intention to permanently deprive’ element in
theft. In part (a) does opening the cages desiring to release the dogs from captivity
express this intention? Other elements in part (a) are ‘appropriation’ – does opening
the cage doors count as an appropriation? Dishonesty – is the good motive
relevant, if so how?
Law cases, reports and other references the examiners would expect you to use
Theft Act 1968, Ghosh, Hinks, Pitham and Hehl, Lloyd, Coffey (1987), Lavendar
(1994).
Common errors
The most common error was, in part (a) talking about the law in isolation from the
facts and, in part (b), talking about theft generally rather than intention solely.
A good answer to this question would…
identify the basic elements of theft and how they are satisfied e.g. s.4 property,
whether dogs are property, s.3 appropriation, how opening cages satisfies ss.3,
6(1) how intending the dogs to escape satisfies the intention requirement. The fact
that the dogs are recaptured makes no difference to the MR issue. And finally, the
bigger issue of whether Ghosh might provide a not dishonest defence. You were

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given credit if you considered criminal damage in relation to the killed dog. But this
was not expected.
In part (b) you were expected to explain and discuss how intention to permanently
deprive (borrowing is insufficient e.g. Lloyd) is necessary. And consider s.6(1) and
(2) and what it means with a few examples such as ransoming, ticket cases,
exhaustion of usefulness, e.g. Marshall, Velumyl, Coffey, Lavendar.
Poor answers to this question…
many candidates treated the question simply as an excuse to rehearse pre-learnt
material on theft.
Question 5
What, if any, DEFENCES are available to Sim, Rita, David and Ben to criminal
charges in the following THREE situations:
a) Sim is driving along a motorway in his car. He notices a lorry is
driving dangerously close behind. Sim breaks the speed limit to
avoid a possible crash.
b) Rita is a diabetic. One morning, on the way to work, she is raped by
John. Despite being traumatised by the rape she makes her way to
work. A little later, while sitting at her desk, she succumbs to
hyperglycaemia, having forgotten to take her insulin due to the
trauma of the rape. She becomes very confused. Moeen, a male
colleague, notices that Rita is looking unwell. He goes over to her,
puts his hand on her shoulder and asks her if she is all right. Rita, in
her confusion, thinks Moeen intends to rape her and so punches
him in the groin.
c) David sees Ben, a work colleague, bullying Julio. He approaches Ben
and tells him ‘to pick on somebody your own size’. They agree to
‘settle things’ in the boxing ring in the work’s gym. They fight
together one evening and each suffers cuts and bruises.
General remarks
This was generally disappointingly done. Again, if you had read the subject guide
and associated text in the textbook you would have found this a lot easier. The
question asks you to consider defences not offences. Part (a) concerns the defence
of duress of circumstances and/or necessity. Part (b) concerns self-defence,
insanity and automatism. Part (c) concerns consent.
Law cases, reports and other references the examiners would expect you to use
include a selection from the following
See below and Clarke (1972), Hennessy (1989), Rabey (1980), R v T (1990); Quick
(1965), Beckford (1988), Oye (2013), Martin (1987),Conway (1988), Pipe (2014),
Martin (1989), Conway (1986), Willer (1986), Palmer (1971), Hasan (2005), Bowen
(1996), Howe (1987), Graham (1982), Pipe (2102); Quick (1973), Sullivan (1984),
Bratty (1963), Burgess (1991).
Attorney General’s Reference (no.6 of 1980), Brown (1993), Savage (1992).
Common errors
Many students mistook part (a) as a question on self-defence and ignored self-
defence in part (b).

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A good answer to this question would…

include the following.
Part (a)
This question is essentially the same as that found in the subject guide at
Illustration 11.2 and Activity 11.2, which tells you to commit the principle to memory.
Very few did! The question is also found in the corresponding text in Wilson at 10.3,
Case 4. Even worse, many students treated it as a case of self-defence when, if
you had read the subject guide and Wilson, you would know it could not be (11.1
and Illustration 11.1 of the subject guide and Wilson 10.1, Case 1). The issue
relating to the defence of duress of circumstances is whether the reaction was
immediately necessary and reasonable action to avoid the threat of serious injury
given the option of driving onto the hard shoulder? If not, then it would be proper to
consider necessity, which is decided on the lesser of two evils basis and does not
require a threat of death or serious injury– might be argued. For example, Conway,
Martin, Graham, Howe, Pipe.
Part (b)
There are three potential defences here – automatism, insanity and self-defence.
Rita would wish to rely on self-defence if possible as it is easier to establish and is a
complete defence. Whether the defence of insanity or automatism can be pleaded
depends upon whether the trigger is an external or internal element. Identify
elements of both defences. (Subject guide 10.2.2. and 10.3.2 and Activities 10.2.
and 10.5 and the accompanying text in Wilson at 10.9.A.3). The issue – assuming
her confusion negated voluntariness/mens rea is whether this is due to an external
cause. Hennessy suggests possibly not but the rape might suffice to introduce the
factors of ‘novelty or accident’ which allow it to be distinguished, e.g. R v T. If this
fails, the defence is insanity.
However, self-defence is the most advantageous defence for Rita because an
honest, even if unreasonable, mistake as to the need to use force can be relied
upon. But she has a problem, namely that the mistake is due to her temporary
mental abnormality. The issue here is whether an honest and mistaken belief on
irrational grounds takes priority over insanity if the belief is irrational due to
(Kemp/Hennessy) insanity. For example, Oye [2013] EWCA Crim 1725, 11.2 of the
subject guide, Wilson 10.8.A.3.
Part (c)
This is a straightforward question on consent and its application on crimes of
violence. You were expected to talk about how consent is a defence to common
assault but is not a defence where harm is caused unless the context is specially
privileged. The issue here then is whether this is one of those specially privileged
contexts. On the one hand, this is not a street fight which is not privileged (A-G’s
Reference) but neither is it an organised boxing match, which is. You were
expected therefore to discuss which side of the line the case falls. There is no right
answer but the kind of considerations which should have been part of your
argument were the fact that it occurs in a gym (where sparring routinely takes place
and is presumably legal due to consent).
Poor answers to this question…
were unclear on the correct defence (and its core elements) to rely on and/or
ignored defences and talked only of the offence committed.

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Question 6
EITHER
a) Outline and discuss critically the present law of joint enterprise
liability, giving suggestions for reform.
OR
b) Outline and discuss critically the present law of non-fatal offences
against the person, giving suggestions for reform.
General remarks
To ensure the syllabus is effectively covered in the examination now that there are
only six questions, this question is an either/or question.
Law cases, reports and other references the examiners would expect you to use
English (1997), Rahman (2008), Bristow (2011), Carpenter (2012), Gamble (1989),
Jogee (2016).
Roberts (1967), Williams (1991), Ireland (1997), Burstow (1997), Constanza (1997),
Attorney General’s Reference (no 6 of 1980), Brown (1993), Mowatt (1968), Savage
(1992), Chan Fook (1994). Consideration of the Law Commission (LAW COM No
361) Reform of Offences Against the Person would have been helpful but not
expected.
Common errors
The most common error was to ignore the evaluative part of the question and
makes suggestions for reform.
A good answer to this question would …
include the following.
a) Joint enterprise liability
First, you should provide an outline of the law relating to joint enterprise liability in
which the general principle e.g. Anderson and Morris and/or Powell is stated (see
the subject guide). You should explain the problems which have surfaced and how
they have been addressed. These include the fairness or otherwise of holding
someone liable for another’s crime which he has not intended, authorised or agreed
to; the problems of application posed by the fundamental difference principle as
illustrated by English, Mendez and Rahman; the continuing authority, or otherwise
of Gamble in the light of Rahman and Mendez. In murder, the problems of
application posed by cases such as Mendez and Carpenter concerning the
availability of manslaughter as a default verdict; the fairness and cogency of
convicting an accessory to murder of murder on the basis of mere foresight;
suggestions for reform, e.g. foresight of high probability to replace present test or a
requirement of intention rather than foresight, e.g. Jogee (Wilson 19.4.D; 15.3.6 of
the subject guide).
Credit was given for mentioning Jogee but this was not expected as the current
subject guide does not mention this and was decided after the closing date for
recent developments. If the question was answered on the basis of Jogee, the
suggestions for reform part of the question would not carry so many marks.
b) Non-fatal offences
First, you should provide an outline of the law relating to non-fatal offences with the
respective elements of common assault, ss.47, 20 and 18 identified. You should
analyse their points of comparison and distinction. You should have included
evaluation and criticism, to include some or all of the following: overlap and
duplication between the offences; restricted coverage and how the judges have

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sought to address these concerns; linguistic imprecision; problems relating to the

correspondence of actus reus and mens rea as illustrated by Mowatt, Savage and
Roberts. Credit was given for consideration of the latest Law Commission report.
Poor answers to this question…
tended to write all they knew about complicity or non-fatal offences rather than
answer the question set.

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Criminal law

Multiple choice questions (MCQs)

The 2016 exam in Criminal law contained MCQs for the first time. As a matter of practice, we
will not be publishing the questions or the answers for this section of the paper. To support
students in this alternative form of assessment for this year alone we are publishing a short
report by the Chief Examiner on three of the questions.

Comments on specific questions

Question 5
Which ONE of the following statements is the BEST description of the mens rea of an
offence under s.20 OAPA 1861?
a. Intention or recklessness to wound
b. Intention or recklessness to cause grievous bodily harm
c. Intention or recklessness to wound or inflict grievous bodily harm
d. Intention or recklessness to cause actual bodily harm
Chief Examiner’s comments
This is a question which tests basic knowledge of the elements of a crime, here s.20 OAPA
1861. Each of the above are plausible answers but only one is accurate. If you did your
homework, it is a very easy question. The answer is (d) and you would have found it at 9.1.3
in the subject guide and Wilson 11.2.B.2.
Question 7
Which ONE of the following tests best sums up the effect of R v Constanza (1997) Crim
LR 576 (a stalker case)?
a. for the purposes of assault, the victim must apprehend an immediate
unlawful application of force
b. for the purposes of assault, the victim must apprehend an immediate or
imminent unlawful application of force
c. for the purposes of assault, the victim must apprehend an application of
unlawful force at some time not excluding the immediate future
d. for the purposes of assault, ‘apprehend’ does not necessarily require the
victim to be fearful.
Chief Examiner’s comments
This is the kind of question which tests how precise your knowledge is. All of the above are to
a greater or lesser extent accurate statements of the law of assault but only one of them
properly encapsulates the effect of Constanza. There was no reason why, if you had done
your homework properly, you would not know this. See 9.2.1 of the subject guide and Wilson
1.3.A.1.
Question 15
In which TWO of the following scenarios would be a verdict of guilty of murder be
INAPPROPRIATE if the jury were correctly directed by the judge?
1. Eve, following a car crash, is trapped in the car which is ablaze. She
pleads with Adam, a police officer outside the car, to shoot her dead to
enable her to avoid being burnt alive. He shoots as requested but at the
post mortem it is not possible to determine whether the shot or the fire
killed Eve.
2. Eve is locked in an office which is ablaze. The key is in the lock on the
other side of the door. She asks Adam, the caretaker and who is outside,
to unlock the door. Adam does not do so because he wants her job and
wishes her dead. Eve dies.
3. Adam, a physician who is treating Eve for terminal cancer, administers a
dose of painkillers at her request for the purpose of relieving her pain.
Although it is the minimum dose necessary to relieve the pain, Adam
knows that it will probably accelerate the time of her death, which it does.
4. Adam, a police officer, shoots Eve, whom he wishes to question, through
both legs to disable her from escaping. He then faints and falls over,
hitting his head, which causes him to lose consciousness for an hour.
When he recovers he finds Eve has bled to death.
5. Adam rapes Eve, a two-year-old child. He throws her into a fast flowing
river to remove the DNA evidence, hoping the child will survive but
knowing it will not. Eve drowns.
a. 1 and 2
b. 2 and 3
c. 3 and 4
d. 4 and 5
e. 1 and 3
f. 3 and 5
g. 2 and 4
Chief Examiner’s comments
The offence charged is murder. The actus reus of murder is unlawfully killing a human being.
The mens rea is intending to kill or intending to cause grievous bodily harm. Each of the five
scenarios above require you to analyse whether ALL of these actus reus and mens rea
elements are present as demonstrated below:
1. If the jury were correctly directed by the judge it would be inappropriate to find Adam
guilty of murder. Admittedly he has shot Eve; admittedly he has the mens rea for
murder (intention to kill); and admittedly her consent and his compassionate motive
afford no defence to murder. However, to be guilty of murder there must be ‘beyond
reasonable doubt’ evidence that the shot caused Eve’s death. The judges should
have told the jury that they should not convict of murder if they were unsure about
this.
2. If the jury were correctly directed by the judge it would not be inappropriate to find
Adam guilty of murder. Although the general rule is that one cannot commit murder
by omission Adam’s status as a caretaker places him under a contractual duty to act
reasonably to ensure the safety of the building and its visitors. He has therefore
committed the actus reus of murder. This omission was actuated by an intention to
kill Eve by that omission.
3. If the jury were correctly directed by the judge it would be inappropriate to find Adam
guilty of murder. Although his act of administering the painkillers has resulted in her
death, the judge should direct the jury not to convict of murder unless they are sure
 he intended to kill her. The evidence shows he had no direct intention. It also shows
that he had no indirect (Woollin) intention either. This requires proof that he foresaw
the accelerated death as virtually certain. He did not. He foresaw it only as probable.
4. If the jury were correctly directed by the judge it would NOT be inappropriate to find
Adam guilty of murder. His act of shooting Eve is the legal cause of death. Shooting
someone to prevent them escaping is not a defence to murder so it is an unlawful
killing. The mens rea for murder is the intention to kill or cause serious injury by the
act which caused death. If the judge correctly directed the jury on the mens rea for
murder it would be perfectly entitled to conclude that the police officer intended
serious injury when he shot her.
5. If the jury were correctly directed by the judge it would NOT be inappropriate to find
Adam guilty of murder. His act of throwing Eve into the river is the legal cause of
death. The mens rea for murder is the intention to kill or cause serious injury by the
act which caused death. Although his primary purpose was to remove DNA evidence,
the jury are entitled to find that a person intends a consequence (here death) if they
know that consequence is virtually certain. He does.
In conclusion, the correct answer is (e).