Examiners’ reports 2019

Examiners’ reports 2019

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 module guide joins together with your textbook,
consolidated by the activities appearing in each chapter. These activities direct you
to sections of the textbook. If you now go through the examination paper below with
your module guide open, you will see that everything you need to answer the
questions is there. For example, look at Question 2 and turn to your module guide,
Chapter 9 and the associated illustrations and activities at 9.12 and 9.13 and
references made to the textbook to help you solve the activities.

Comments on specific questions

PART ONE

Question 1
Read the following paragraphs and answer the questions that follow.
Colin, aged 17, is talking to his fellow pupil at college, Duncan. They are
having an argument about who is better at playing a computer game and the
argument gets heated. Colin shouts at Duncan and prods him in the chest
with his finger. Unbeknown to Colin, Duncan has recently been involved in a
car accident in which he fractured a rib. As Colin prodded him in the chest
just where the broken rib is, the rib penetrates Duncan’s lung and Duncan
collapses struggling to breathe. Colin panics and calls over to Bjorn, a
teacher at the College who is trained in first aid. Bjorn immediately starts
mouth-to-mouth resuscitation and begins chest compressions on Duncan.
These chest compressions compound the injury to Duncan’s lung and,
unable to breathe for over six minutes, he dies.
A few days later, Duncan’s mother, Astrid, was driving along a busy street
when she sneezed and momentarily lost control of her car. The car swerved
and hit Bjorn who was riding by on his bicycle. Astrid gets out of the car to
assist the cyclist who is lying unconscious on the road. She recognises the
cyclist as Bjorn, who she believes is the person responsible for her son’s
death. Shocked and raging with fury she shouts, ‘That serves you right. I
hope you die.’ She gets back in her car and drives off. Bjorn, suffering from
severe head injuries from the fall, dies 10 minutes later.
a) If you were a prosecutor, what would be your preferred charge of
homicide, murder or manslaughter, in relation to Colin?

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 b) Give reasons for your choice in (a) above.
c) If you were Colin’s defence counsel, what are the arguments you
would advance in favour of the proposition that the chain of
causation, linking Duncan’s death to Colin’s prodding him in the
chest, was broken?
d) If you were Colin’s defence counsel, what defence(s) would you seek
to advance in answer to a charge of homicide, whether murder or
manslaughter?
e) If you were prosecuting counsel, how would you respond to defence
counsel’s arguments in (c) and (d) above?
f) If you were prosecuting counsel, what would be your preferred
charge of homicide in relation to Astrid, murder or manslaughter?
g) Give reasons for your answer in (f).
h) Assuming the prosecution were to charge Astrid with murder, and
you were counsel for the defence, how would you seek to counter
the prosecution’s case that both actus reus and mens rea of murder
were present?
i) How would the prosecution counter the arguments raised in (h)?
j) Assuming the court finds both actus reus and mens rea of murder
present, and you are counsel for the defence, evaluate your
chances of success in raising a partial defence of loss of control.
General remarks
The purpose of the compulsory question is to enable you to reproduce the type of
structured answer that we are looking for on all problem questions. It should form
an easily transferrable template to such questions, including issue spotting,
reasoning, analysis and argument. So you should not treat such questions as
distinct from your other problem questions. Both should adopt the same kind of
answer template. Your conclusions on each question did not have to be the same
as mine but we are looking for your ability to spot the main issues and concise, well-
organised analysis and discussion.
Law cases, reports and other references the examiners would expect you to use
Collins v Wilcox (1984); Jones (1986); Church (1966); Dawson (1985); Watson
(1989); Blaue (1975); Evans (2009); Dawes (2013); Fagan (1969); Homicide Act
1957; Cheshire (1991); Pagett (1983); Coroners and Justice Act 2009.
Common errors
There are a number of issues involved in this question. Relatively few candidates
spotted both of the two most significant. These are, first, whether Colin in prodding
Duncan has committed any unlawful and dangerous act sufficient to ground a
charge of constructive manslaughter. Secondly, whether Astrid can be responsible
for Bjorn’s death given that the act which caused death was accidental.
A good answer to this question would…
deal with each question as posed. Do not add unnecessary information if it is not
advancing your answer. The following is an example of the type of response we are
looking for. The conclusions of the candidate on each question do not have to be
the same as mine but we are looking for your ability to spot the main issues and
concise, well-organised analysis and discussion. I shall put this in the form of a
concise essay rather than answers to specific questions for ease of reading.

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 Examiners’ reports 2019

The first offence is constructive manslaughter as there is no evidence of the mens

rea for murder and there is an arguable case of an unlawful and dangerous act (the
prodding). Causation is an issue as the act causing Colin’s injury is insubstantial,
the rib fracture is a pre-existing injury and the intervening acts of Bjorn are a more
than significant trigger for Duncan’s death. The prosecution could counter these
arguments quite easily by arguing that as long as the defendant’s unlawful act
made a contribution to the death that is enough. It does not have to be the sole or
main cause. Pre-existing weaknesses e.g. Blaue – do not break the chain of
causation. Moreover, the reaction of Bjorn was made necessary by that act and was
reasonable, e.g. Smith, Cheshire, Pagett. The strongest argument the defence can
muster is that the prodding is neither unlawful nor dangerous. It is not unlawful
since it is an everyday gesture (although the prosecution may claim it is too forceful
Collins v Wilcock). It is not dangerous because objectively it carries no serious risk
of causing bodily injury (Church; Dawson).
The second offence is chargeable as murder as there is evidence of mens rea in
the words she utters. This charge will be based upon her omission to provide
assistance rather than her driving since there is a lack of coincidence between the
act (knocking him over) and the mens rea (which is formed after the actus reus is
complete). Although Ingrid will argue that an omission is insufficient the prosecution
can counter by use of the continuing act doctrine as per Fagan or more plausibly by
raising the matter of the omission as the actus reus. This omission was in breach of
a legal duty to provide assistance as Astrid was responsible for the creation of the
dangerous situation, e.g. Miller, Evans
Poor answers to this question…
used the question as a peg to hang a general discussion upon rather than dealing
with the questions posed. Too many students failed to identify the issues of
dangerousness and unlawfulness in the context of constructive manslaughter.
PART TWO

Question 2
‘When the court is assessing whether consent can negate liability for
activities causing personal injury, the major influence appears to be whether
the injury consented to is inflicted intentionally or unintentionally. If it is
inflicted intentionally the presumption is that it is unlawful irrespective of
consent. If it is inflicted unintentionally the presumption is that consent
renders it lawful.’
Discuss.
General remarks
You will see in Section 9.2.4 of the module guide and Wilson 11.A.3 that, as a
general rule of thumb, consent operates as a defence to unintentional injury (even
where foreseen), e.g. Konzani but not to deliberate injury, e.g. Brown. This general
rule of thumb is subject to exceptions and your module guide and textbook leads
you through these. This question therefore requires you simply to demonstrate
knowledge and understanding of this general rule and its exceptions and
qualifications.
Law cases, reports and other references the examiners would expect you to use
Slingsby (1995); Donovan (1934); Brown (1994), A-G’s reference (No 6 of 1980)
(1981); Wilson (1997); Barnes (2004); Jones (1986).
Common errors
Many scripts demonstrated knowledge of little more than Brown, which is only half
the story and did not interrogate the question as required.

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A good answer to this question would…
structure the answer as follows. First, you should have explained how absence of
consent is a definitional element in common assault and so the offence cannot be
committed where there is consent. Secondly, you should have explained that,
where the offence charged involves the causing of physical injury e.g. s.47 or s.20
Offences Against the Person Act 1861, the offence is committed irrespective of
consent for public policy reasons unless there are countervailing public policy
reasons in favour of permitting the activity that caused the harm. In the case of
deliberately inflicted harm, this is rare beyond lawful surgery and boxing but, where
the injury is caused unintentionally, the general principle is that people should be
allowed for public policy reasons to engage in activities that create the risk of harm
(e.g. sports, horseplay, rough sex, etc.).
Poor answers to this question…
did not show any understanding of the organising principle described above and
showed little knowledge of the essential case law and what it stands for.
Question 3
Discuss how far the actions of the victim or a third party can break the chain
of causation in result crimes. Critically assess how far the law in this area is
fair and consistent.
Law cases, reports and other references the examiners would expect you to use
Roberts (1967); Pagett (1983), White (1910); Benge (1865); Smith (1959); Cheshire
(1991); Kennedy (2007); Blaue (1975); Rafferty (2007); Wallace (2017); Draft
Criminal Code (1989), cl.17.
Common errors
Students were far better describing uncontroversial aspects of causation such as
actual and legal causation and the thin skull rule than in interrogating the question
and evaluating the law in terms of fairness and consistency.
A good answer to this question would…
outline the law and provide an explanation and discussion of the empirical and
evaluative nature of causal attribution (factual and legal cause). It would include
explanation and discussion of the Roberts (reasonable foreseeability) principle and
the Smith (substantial contribution) principle. It would consider cases such as
Pagett and Cheshire, indicating how third-party or victim actions or reactions rarely
break the chain of causation and why this is. It would outline and evaluate the thin
skull rule, e.g. Blaue. It would explain and discuss the fit, or lack of it, between the
Draft Criminal Code rules and the common law rules. Finally, it would evaluate and
consider the competing tests of causation – namely those asserting that
unforeseeable acts/events break the chain, and those asserting foreseen and
foreseeable actions of V or T break the chain of causation if voluntary, e.g.
Kennedy, Rafferty and consider Wallace, comparing Blaue on suicide in this regard.
Poor answers to this question…
did not address the question, preferring simply to talk descriptively about legal and
factual causation.
Student extract
The causal connection in result crimes attributes the liability for the offence to
the harm that is caused to the victim. The chain of causation is an integral
component of the criminal law which is always the factor that is considered in
result crimes, especially homicide.
The two very significant contributing factors of the chain of causation are the
elements that causes a novus actus interveniens which means a cut or break

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 Examiners’ reports 2019

in the chain of causation. For this the actions of the victim and/or a third party
are of immense importance. It is debatable as to how far these both break the
chain of causation.
On a superficial level voluntary acts of the victim can break the chain of
causation. Something of this sort happened in the case of Kennedy no 2.
Where it was held that self injection of the victim broke the chain of causation
as it was an act that was independent and entirely voluntary and this was the
test of causation which this case expounded. However, something of an
opposite view was acknowledged in the case of R v Roberts [where the test
applied was whether the victim’s reaction was a reasonably foreseeable
response to the defendant’s sexual advances].
Comments on extract
There is much, which is pleasing in this extract. In particular, it interrogates the
question by asking whether the reasonable foreseeability test of Roberts and the
‘voluntary act test’ of Kennedy are consistent. It is spoiled by some rather ugly use
of English. The words in parenthesis are in fact my paraphrase of what you, the
reader, would have found difficult to understand. The message was good but the
expression was not. It is very important to be as clear and concise as you can. By
concise I do not mean brief. I mean do not use 20 words if exactly the same
message can be conveyed in 10. The first paragraph is an example of too many
words obscuring a simple message. The message is that proof of causation is
central to all result crimes, especially homicide. It would have been useful to explain
then what causation means and how it figures in criminal liability. See Section 4.1 of
the module guide.
Question 4
Compare and contrast the defences of self-defence, necessity and duress.
General remarks
Both your module guide (Section 11.1.) and textbook (Section 10.1) make great
play about the importance of comparing and distinguishing between these defences
as they have much in common (they excuse or justify actions designed to prevent
harm to self or other) but significantly are discrete defences with their own sphere of
operation. If you look at your module guide ‘Am I ready to move on’ section, you will
see that you could easily answer this question if you had done the activities and
read the relevant parts of the MG and textbook. We did not expect candidates to
cover all of the points. They are indications only of the kind of issues that should
have been covered. Good marks were awarded for sound knowledge and two or
three points of comparison and contrast.
Law cases, reports and other references the examiners would expect you to use
Hasan (2005), Beckford (1988), Palmer (1971), Owino (1996), Williams, Martin
(2001), Martin (1989) Re A (conjoined twins) (2001), Re F (1990), Bournewood
(1999), Shayler (2001), Quayle (2005), Pipe (2012), s.3 Criminal Law Act 1967;
s.76 Criminal Justice and Immigration Act 2008.
Common errors
Very few students addressed the point of the question, which was comparison and
contrast, preferring simply description.
A good answer to this question would…
include description and exposition of the three defences, including definitions
statutory/case law definitions (e.g. Criminal Justice and Immigration Act 2008).
Some mention should be made of the wider realms of private defence, e.g. force
used in prevention of crime, the two forms of duress and the corresponding
justificatory and excuse forms of necessity.

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Points of comparison include:
 These are all affirmative defences. These defences negate liability,
although all the definitional elements of the offence are present.
 In each case, the claim to avoid liability is generally (not always, see Re F
for necessity) that the action undertaken by the defendant was reasonably
necessary to avoid the unjust threat of harm.
 Both self-defence and necessity are justifications, i.e. denials of
wrongdoing. Duress particularly of circumstances may, rarely, be a
justification.
 Both self-defence and duress involve action taken because of the unjust
threat of harm. Some understanding should be shown that often harm will
be threatened by a wrongdoer but not necessarily.
 Both duress (of circumstances) and necessity have degrees of overlap,
which may be important where the preventive action taken involves an
intentional killing (not a defence to duress but may be to necessity), e.g. the
9/11 terrorist plane scenario.
Points of contrast include:
 In duress, the claim to be excused is that it is unfair to expect a person to
sacrifice themselves, or a person to whom they are connected, for the sake
of conformity to the law, even where this involves the victimisation of
another innocent person. Such action is excused because it is necessary
from the actor’s own quite reasonable point of view. Both self-defence and
necessity do not permit the victimisation of an innocent person.
 In necessity, the claim is that it advances society’s purposes if a person
breaks the law in furtherance of a greater good. Such action is therefore
justified because the action is necessary from society’s, rather than, as in
duress, the individual’s point of view.
 In self-defence, the claim is that it socially permissible to defend oneself or
others against someone who launches an unjust attack. Such action is
justified because society is organised upon the premise that those who
attack other people forfeit their right to state protection, as against those
they attack. The conjoined twins case therefore is a case of necessity not
self-defence.
 Duress requires a threat of death or serious injury, self-defence and
necessity do not. (See Re F.)
 Self-defence is only a defence to crimes involving the use of force.
Speeding on a road in order to escape the threat of tailgating is therefore a
case of duress of circumstances/necessity, not self-defence.
 Duress, unlike self-defence and necessity, is not a defence to murder.
Poor answers to this question…
Dealt inconsistently with the different defences and, even where they were outlined
accurately, did not seek to compare or differentiate them.
Question 5
To celebrate her birthday, Florence throws a party. She wants to please her
guests so she makes sure she keeps filling their glasses with champagne and
encourages them to dance in the living room.

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 Examiners’ reports 2019

While Brian is dancing, his wristwatch gets caught in Ermintrude’s hair. As he

pulls his hand away he rips some of her hair out. Angry about this,
Ermintrude waits until his back is turned and hits him on the back causing
him to fall forward. His head hits the wall and a picture hanging on the wall
falls and hits him on the head. Brian is left with bruising and a large lump on
his forehead. The picture frame smashes into pieces.
Dylan is in the kitchen eating a homemade mushroom pie. Unknown to him,
Florence baked the pie with mushrooms which she knew to have psychedelic
properties. She did this thinking it would help her guests relax and have fun.
Dylan begins hallucinating and, as Rusty walks into the kitchen, Dylan
believes Rusty is a dinosaur about to attack him. He grabs a knife to defend
himself, but stumbles as he does so, cutting Rusty’s arm with the knife. Rusty
suffers partial paralysis of his wrist as a result of nerve damage in his arm.
Later in the evening Florence sees Zeb, whom she does not know and has not
invited to the party. Zeb is drunk and is annoying other guests. Fearful that
things could get unpleasant, Florence grabs an empty champagne bottle and
hits Zeb over the head with it, causing him to collapse unconscious and
bleeding from a head wound. He survives the attack but needs eight stitches
in his head and suffers post-traumatic stress disorder as a result of the
attack.
Discuss the criminal liability, if any, of the parties.
General remarks
This is a problem question that requires you to consider various non-fatal offences
against the person and criminal damage. It also requires consideration of various
defences, including intoxication, automatism and self-defence.
Law cases, reports and other references the examiners would expect you to use
Majewski (1976), Kingston (1995), Lipman (1970), Oye (2013), Burstow (1997),
Smith (1959), Cunningham (1957), Parker (1977).
A good answer to this question would…
separate the different possible offences as follows:

Brian might be guilty of battery and, if so, s.47 OAPA 186 since loss of hair is
actual bodily harm (ABH), e.g. Smith. The issue is mens rea. There is no intent. But
is he reckless? The test for recklessness is subjective (Cunningham). It would be
difficult to prove foresight, although an argument can be raised that he closed his
mind to the obvious (Parker) when pulling his hand away. You might have
considered intoxication in the context of this basic intent crime (Majewski) but this
was not expected.
Ermintrude may be charged with s.47 based upon the battery – no technical
assault. Intentional battery that caused ABH. There is no defence available to her
as the attack was not in self-defence.
She might also be charged with criminal damage but there is a problem with mens
rea. There was no intent to damage the picture and the only harm foreseen would
have been the injury to Brian not the damage to the picture. There is no indication
of intoxication to the level required for a defence but the offences charged are basic
intent charges anyway. Brian cannot be guilty of criminal damage as his action was
involuntary (e.g. Burns v Bidder).
Dylan might be charged with s.18 or s.20 OAPA 1861 based upon the wound. The
mens rea for s.18 is an intention to cause GBH and for s.20 is
intention/recklessness as to some harm, e.g. Savage. However, he lacks mens rea
for either offence due to involuntary intoxication. Automatism is an alternative

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defence since he is lacking responsibility and the cause is external (e.g. Loake
(2017), Quick (1965).
Florence – might be charged under s.18 OAPA 1861 as there is some evidence of
intent. Otherwise chargeable under s.20. Here defence would be self-
defence/defence of others. It is enough that she has an honest belief in the need to
use force in defence of others – even a pre-emptive strike argument is viable (s.76
Criminal Justice and Immigration Act 2008) and see Beckford/Attorney General’s
Reference (assuming not through intoxication). There is a question as to whether
the force used was reasonable. However, this might be a householder case as
Zebedee is not invited to the party. If not grossly disproportionate force, e.g. Collins,
jury has to decide whether, despite being disproportionate, it may still be
reasonable.
Poor answers to this question…
tended to deal with only a small part of the question. To get good marks, all of the
offences and the issues relating thereto needed to be covered.
Student extract
Another offence Florence may be convicted of is causing actual bodily harm.
Zeb now suffers from a mental illness due to the attack. She caused a
psychiatric illness to the victim. This was illustrated in R v Constanza and R v
Ireland (1997) when the defendant’s act made the victim suffer chronic
depression. The courts held that even a psychiatric injury is actual bodily
harm. Therefore in this respect she should also be charged under s.47 OAPA
1861.
Comments on extract
This answer contains some useful points but overall it lacks depth and analysis. The
useful points are the references made to Constanza and Ireland and the correct
statement of law that these cases are authority for the proposition (not illustrations
as the candidate puts it) that s.47 covers cases where mental illness is caused by
an unlawful act of the defendant. What it does not contain is any defence argument
about whether Florence’s actions were justified on grounds of self-defence/defence
of others. This is something you must always be alert to. What is the defence going
to argue against the charge chosen by the prosecution and how will the prosecution
respond to that defence argument?
Question 6
Discuss the issues arising out of consent, and proof of consent, in each of
the following scenarios, in which Dennis has been charged with a sexual
offence under the Sexual Offences Act 2003.
a) Dennis chats to Biffo in an online chat room, using a false name. He
tells Biffo falsely that he is a physiotherapist and Biffo tells him he
has a bad back. He invites Biffo round to his flat for some treatment
and as he is massaging him he touches Biffo’s genitals.
b) Dennis meets Walter in a bar and, after chatting for a while, invites
Walter home for the night. They agree to have sexual intercourse,
during the course of which Dennis ties Walter to the bed and, to add
to the excitement, tells Walter that he would like to slap him
repeatedly, which he does.
c) Dennis works with Minnie and has always found her attractive but he
knows she is in love with their boss, Billy, who is rich. Over lunch
one day Dennis asks Minnie for a date. When she refuses, he tells
her that he has just won £1 million pounds in a lottery and that Billy

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 Examiners’ reports 2019

is happily married (neither of which is true). Minnie then agrees to

the date, following which they have intercourse in Minnie’s
apartment.
d) Gnasher is nervous about flying and, on a long haul flight, is sitting
next to Dennis. Dennis tells him he has just the thing to calm him
down. He gives Gnasher two tablets, which Dennis tells him contain
the herb chamomile, but are in fact prescribed sleeping tablets.
They have no effect on Gnasher but he so enjoys chatting to Dennis
during the flight that, when they arrive at their destination, Gnasher
agrees to go to Dennis’s hotel and have sex with him.
e) Plug and Dennis are on holiday in the same hotel. Sitting by the pool
one day, they begin chatting and drinking cocktails. They continue
drinking until the bar closes when they go back to Dennis’s room to
have sex. Plug wakes up the next morning in Dennis’s room. He
remembers having sex with Dennis but cannot remember how he
got to the room.
General remarks
This is a question requiring understanding of ss.74–76 Sexual Offences Act 2003
on consent. There was no requirement to discuss the offences that are chargeable
in each case. You are asked simply to talk about how the prosecution would go
about establishing absence of consent and absence of reasonable belief in consent
and how the defence might wish to respond. See Section 8.5 of the module guide
and Activity 8.1. If you had done this activity properly you would have found the
question relatively easy.
Law cases, reports and other references the examiners would expect you to use
Williams (1923); Linekar (1995); Jheeta (2007); Richardson (1999); Olugboja
(1982); Kamki (2013); Bree (2007).
Common errors
Many students spent unnecessary time talking about the elements of rape and
whether they were present or not. Only consent and mens rea needed to be
discussed. The presumptions were not well dealt with.
A good answer to this question would…
include the following:
(a) The prosecution, having proven the facts, may raise s.76 SOA 2003 – arguing
that there was deception as to the nature and purpose of the act and/or as to the
person’s identity, which provides a conclusive presumption against consent and
against a reasonable belief therein. The defence may argue that Jheeta states that
s.76 should not be lightly used but, on the basis of Tabassum, s.76 looks watertight.
(b) Prosecution, having proven the facts, may raise s.75 – that there is an evidential
presumption based on Walter being unlawfully detained and threatened with
violence. The defence may rebut this by leading evidence that Walter consented
nevertheless and that if he did not consent the context provided Dennis with a
reasonable belief that he was consenting. A side issue is what does ‘unlawfully
detained’ mean in this context? Does tying up during a sex game count? If the
judge considers that the facts provide a plausible case then the presumption is
rebutted and the jury are asked to consider whether, on the basis of all the
evidence, there was consent and Walter reasonably believed that there was
consent.
(c) Neither s.75 nor s.76 applies. The issue arising is whether the deception
impedes Minnie’s free choice under s.74. Is the deception as to wealth and Billy’s

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marital status sufficiently compromising of Minnie’s autonomy to deprive her of
choice? For example, McNally/R (F) v DPP – and see Sections 8.4.3 and 8.5 of the
module guide and Wilson 12.7.B2 Cases 3 and 4, which are particularly relevant
here.
(d) Prosecution, having proven the facts, may raise s.75, as the substance is
capable of stupefying and there is an evidential presumption under s.75(2)(f). This
can be rebutted, however. First, it has no effect and it seems G agrees by choice
nevertheless?
(e) Neither s. 75 nor s.76 applies. The question under s.74 is whether, by dint of
intoxication, either Plug lacked capacity to consent or free choice was compromised
– e.g. Bree/Wright/ Kamki.
Poor answers to this question…
did not understand the relationship between ss.74, 75 and 76 and the judge’s role.
Question 7
Marion has just lost her job and is unhappy. Although she has no money, she
goes to a local luxury hotel where there is a gym, swimming pool and spa for
the use of paying guests. She dresses in her best suit and carries a briefcase
to make it look as if she is attending a conference at the hotel. She walks
through reception and no one challenges her.
She heads for the gym first. As she is warming up, a private trainer asks if
she would like some help, as free instruction is available to residents of the
hotel. She says ‘Yes please’ and he begins to offer her training advice. With
the trainer’s advice she starts lifting some weights but very quickly decides
she has had enough.
She leaves the gym and heads for a rest in the hotel residents’ lounge. She
starts reading an expensive magazine that she decides she will take home
with her to finish reading later. A waiter comes over and she orders a large
gin and tonic which she asks him to charge to room 211. She later orders a
second and then a third and a fourth gin and tonic. After drinking her drinks
she is not feeling well and decides to go home. As she leaves the bar she
stumbles into a table knocking over a vase which smashes on the ground.
Anxious to leave before anyone notices she walks through reception, grabs
an umbrella from the coat stand because it is raining, and walks out to hail a
taxi, forgetting to take the magazine.
At home she has a lie down and does not wake up for several hours. She
cannot remember anything that happened after ordering her first gin and
tonic.
Discuss the criminal liability, if any, of Marion.
Common errors
Very few candidates considered whether there was an intention to gain money or
property or cause loss of property/money and if so how. Very few considered
questions of voluntary intoxication and criminal damage as a basic intent crime and
theft as a specific intent crime and whether she lacks mens rea for the theft of the
umbrella.
A good answer to this question would…
include the following:
M enters hotel – fraud s.2 applies– good answers would have identified an implied
false representation, stating what it was, and dishonesty. See, for example, Firth
(1990). The issue is whether she intends to gain/cause loss in terms of

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 Examiners’ reports 2019

money/property. The services provided that she intends to use are not necessarily
‘paid’ services and, on that assumption, it is arguable that no financial gain is made
or loss caused.
M takes the advice of trainer – s.2 fraud – false representation by silence (e.g.
Firth), including a dishonesty issue. Again, the main issue is whether there is an
intention to gain/cause loss. Alternatively, she can be charged with obtaining
services dishonestly. Here, no deception is needed but the issue is whether these
were provided on the basis that they had been or would be paid for. It is likely that
the services were provided on the basis that they would be paid for by M paying her
hotel bill.
Theft of the magazine – the issue concerns the point at which she appropriates the
magazine and whether she had mens rea at that point. It is not pertinent to this
issue that she leaves it behind.
M – s.2 fraud re drinks – false rep, dishonest by behaviour and words, intends to
cause loss. Alternatively, making off without payment if payment on the spot is
required.
M – criminal damage to vase – reckless?
M – theft of umbrella – insanity as above.
Poor answers to this question…
addressed few of the offences and failed to identify key issues in relation thereto.

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