Examiners’ reports 2022

Examiners’ reports 2022

LA1010 Criminal law – Zone A

Introduction
The exam paper followed the same format as in previous years. Students should
refer to the Assessment Criteria to familiarise themselves with the criteria that are
applied to assessed work. The compulsory question has now been asked for four
years. I have given a great deal of guidance on how to approach this question both
in written form and via an online lecture. Unfortunately, many of you have not
followed the guidance. As in past years, the best scripts always focused on the
actual questions being asked and the specific issues they raised. We do not expect
students to cover all of the points to get a good mark. We are looking for
understanding, clarity of expression and analysis, and an ability to get to the main
points of reference in each question.
Good answers also demonstrated that the student had read around the subject and
was able to apply this wider reading to the issues raised by the questions. The most
common weaknesses were a failure to stick to the question and a tendency for
students to ‘speed type’ without later reviewing their work for the typos, poor
grammar and punctuation which ‘speed typing’ almost inevitably will encourage.
The specific comments on below will explain.

Comments on specific questions

PART ONE

Question 1
One cold December night, Zoe and her partner Vijay, a heavyweight boxer,
have an argument during which Zoe tells Vijay that she is having an affair
with Vijay’s best friend, Tony. Vijay, in fury, aims a heavy punch at Zoe’s
head. The punch misses her head and Zoe runs upstairs and locks her
bedroom door. Vijay pursues her and bangs on the bedroom door, shouting,
at the top of his voice, ‘You wait until I get my hands on you. I am going to kill
you.’ When Zoe refuses to open the door, Vijay calls to his housemate, Andi,
to help him break it down. Andi has not heard Vijay’s threat but realises that
Vijay wants to hurt Zoe. They both put their shoulders to the door and the
lock gives way. Fearful for her life, Zoe jumps out of the window, lands
awkwardly and breaks her ankle. At that moment, Rhoda drives by in her car.
She offers Zoe a lift to the hospital which Zoe accepts. Unfortunately, Rhoda
gets lost and, when Zoe criticises her for losing her way, insists that Zoe get
out of the car although the temperature outside is below freezing. Zoe, unable
to walk, waits by the side of the road but no one stops to help. After a time,
Zoe loses consciousness. Several hours later she dies of hypothermia.

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 (a) If you were a prosecutor, what would be your preferred charge of
homicide, murder or manslaughter, in relation to Vijay?
(b) Give reasons for your choice in (a) above.
(c) If you did not specify this in (b) above, upon which act or omission of
Vijay would you ground your preferred choice of homicide?
(d) If you were Vijay’s defence counsel, what are the arguments you
would advance in favour of the proposition that the chain of
causation, linking Zoe’s death to the act or omission specified in (c),
was broken?
(e) If you were Vijay’s defence counsel, assuming the prosecution
charged murder, what defence(s), if any, would you seek to advance in
answer to that charge?
(f) If you were prosecuting counsel, how would you respond to defence
counsel’s arguments in (d) and (e) above?
(g) If you were prosecuting counsel, what would be your preferred charge
in relation to Andi?
(h) Give reasons for your answer in (g).
(i) If you were prosecuting counsel, what would be your preferred charge
in relation to Rhoda?
(j) Give reasons for your answer in (i) above.
(k) If you were defence counsel, what argument(s) would you raise in
answer to the charge in (i) above?
General remarks
The following is the type of answer we are looking for. The conclusions of the
candidate on each question do not have to be the same as ours but we are looking
for concise, well-organised analysis and discussion. We give credit for what is
there, if it is cogent and on point. We do not expect all relevant points and
arguments to be made but expect the major points to be covered in Chapters 7 and
15 in the module guide.
Law cases, reports and other references the examiners would expect you to use
See below.
Common errors
Many candidates did not deal satisfactorily with (b). In particular, there was a
tendency to state that the facts indicate the necessary intention without referring to
those facts and analysing their significance. Answers to (g) tended to omit reference
to the case law on joint enterprise respecting cases where there is a mismatch
between the intended outcome and that foreseen by the secondary party, e.g. Crilly.
Answers to (k) similarly were often weak, typically ignoring the test for gross
negligence and the importance of specifying the standard of care required and
ignoring key facts, e.g. Rhoda’s inability to walk.
A good answer to this question would include the following
(a) If you were a prosecutor, what would be your preferred charge of
homicide, murder or manslaughter, in relation to Vijay?
Murder.
(b) Give reasons for your choice in (a) above.
There is an unlawful act sufficient for constructive manslaughter (we gave full
credit if this is the charge proposed assuming murder was considered in (b))

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but the fact that Vijay is a heavyweight boxer, aims a heavy punch (intends
GBH?) and pursues her issuing threats (intends death?) indicate an arguable
case of murder.
(c) If you did not specify this in (b) above, upon which act or omission of
Vijay would you ground your preferred choice of homicide?
The attempted punch, together with the threats.
(d) If you were Vijay’s defence counsel, what are the arguments you would
advance in favour of the proposition that the chain of causation, linking Zoe’s
death to the act or omission specified in (c) was broken?
The injury initially caused by the fall is insubstantial and the intervening acts
of Rhoda (or omission in breach of duty based upon voluntary assumption of
care e.g. Instan) are overwhelmingly the trigger for Duncan’s death. There
may be discussion as to whether this ‘cause’ of death is an act or omission in
the manner of Airedale. If so, you would have been given credit.
(e) If you were Vijay’s defence counsel, assuming the prosecution charged
murder, what defence(s), if any, would you seek to advance in answer to that
charge?
Loss of control, the qualifying trigger being s.75(4).
(f) If you were prosecuting counsel, how would you respond to defence
counsel’s arguments in (d) and (e) above?
On the causation point, the injury initially caused by the fall is substantial and
Rhoda’s conduct is properly viewed as an omission to help or an
‘incompetent ‘reaction’ and, as such, cannot be viewed as a novus actus
interveniens e.g. Smith, Cheshire, Blaue.
Although Vijay’s sense of outrage is the trigger for what he has done, it is not
clear that is sufficient evidence of a loss of control as opposed to a loss of
temper (e.g. Dawes et al.). Moreover, the trigger is arguably not qualifying as
it concerns sexual jealousy. Even allowing for that, it does not cause D to
have a justifiable sense of being seriously wronged and would not cause a
person of ‘normal tolerance’ etc. to respond in this way.
(g) If you were prosecuting counsel, what would be your preferred charge in
relation to Tony?
Manslaughter as secondary party.
(h) Give reasons for your answer in (f).
He lacks the necessary intention to assist Vijay in the commission of murder
but does intend to give assistance to an act of violence e.g. Jogee, Crilly,
Long.
(i) If you were prosecuting counsel, what would be your preferred charge in
relation to Rhoda?
Gross negligence.
(j) Give reasons for your answer in (i) above.
She has assumed a duty (e.g. Instan), has breached it by not acting
reasonably in ensuring the deceased’s safety and was grossly negligent as to
the risk of death, given the weather and Rhoda’s inability to walk, e.g.
Adomako.

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 (k) If you were defence counsel, what argument(s) would you raise in
answer to the charge in (i) above?
She assumed a duty to take Rhoda to hospital. She discharged that duty by
making reasonable efforts. In any event, her conduct, if negligent, was not
grossly negligent as to the risk of death as Zoe was left on a public street with
multiple opportunities to reach a place of safety.
Poor answers to this question…
did not seem to have taken seriously the many examples I have given about how to
answer the compulsory question. As a result, discussion and analysis often
appeared in the wrong section. Too many candidates were very weak on one or
more of the sections, in particular (g) and (h).
PART TWO

Question 2
Sandy is a cleaner who cleans Trinny’s house. Whilst Sandy is cleaning
Trinny’s bedroom one day she fails to notice that Trinny has left a scented
candle lit by her bedside. As Sandy is dusting, the candle catches light to the
bottom of her shirt and starts to smoulder setting off the smoke alarm. She
pats out the fire on her shirt but sees it has left a scorch mark. Unable to stop
the smoke alarm beeping, she climbs on a chair and removes the battery from
it to disarm it. She then takes a shirt from Trinny’s wardrobe, intending to
wear it home, wash it and then replace it. She also takes a squirt of Trinny’s
expensive perfume before resuming her cleaning duties in the house.
Sandy is annoyed about her shirt being damaged and later, as she is cleaning
the kitchen, she notices an account card for a local chauffeur service that
Trinny’s company allows Trinny to use. Feeling that she is owed some
compensation for her shirt, she phones the number on the card and uses the
account to book herself a chauffeur service to take her home later that day.
Having finished her cleaning duties, she relights the scented candle in the
bedroom to disguise the earlier smell of smoke and leaves the house. She
decides to get a takeaway coffee from the café over the road while she is
waiting for her car to arrive. As the coffee is made and handed to her, she
sees the chauffeur service car arrive at Trinny’s house. Knowing the café
owner well, she shouts, ‘Sorry, Mick, I have to rush, I’ll pay you for this
tomorrow’, and runs out of the café to get in the car. After Sandy has left, but
before Trinny arrives home, the candle sets light to a lampshade next to it and
a fire starts in Trinny’s house. The fire services are not alerted to the fire
because Sandy has removed the battery from the monitored smoke alarm.
The emergency services are only called when a neighbour notices smoke
billowing from the roof and there is extensive damage to Trinny’s house as a
result.
Assess the criminal liability, if any, of Sandy.
General remarks
In this question, students need to draw on their knowledge of a number of property
offences, including criminal damage. We do not expect students to cover all the
points to get a good mark. We are looking for understanding and an ability to get to
the main points of reference in each question.
Law cases, reports and other references the examiners would expect you to use
See below.

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 Examiners’ reports 2022

Common errors
Many candidates ignored the relevance of key facts in their analysis of the law, for
example, ignoring the significance of removing the battery from the smoke alarm for
the purpose of simple criminal damage and how this might be excused or justified.
Also, few dealt properly with the factual basis of the dishonesty on either theft re the
candle or shirt or fraud by false representation re the chauffeur service.
A good answer to this question would include the following
In the first part of the scenario, Sandy causes damage to her shirt. As this is not
property belonging to another this will not attract liability. Disarming the smoke
alarm may also constitute damage in its own right as it renders the alarm unusable
for a period of time and there is at least recklessness here as to minor damage.
Sandy appropriates the shirt according to s.3 Theft Act 1968, it belongs to Trinny
and it is property. She could try to argue a dishonesty defence under s.2 but is
unlikely to succeed in arguing that Trinny would have consented to the
appropriation. Therefore you should consider Ivey dishonesty. Sandy would argue
under s.6 that she did not intend to permanently deprive T of the shirt. You should
discuss this in the light of the wording of s.6 and Lloyd and Marshall. The use of the
perfume could attract another charge of theft, subject to mens rea.
Arranging for the car service on a company account could amount to fraud. You
should consider a false representation under s.2 FA 2007 and the mens rea of both
dishonesty and intention to cause loss. Equally, this could amount to a s.11 offence
of obtaining services dishonestly. As regards the coffee, this could be discussed as
a s.3 TA 1978 making off offence. You should carefully apply all the relevant
elements of the offence, in particular looking at whether S made off without paying
‘as expected or required’ and whether she was both dishonest and intended not to
pay (Allen).
S could be held responsible for the damage to T’s house as she both lit the candle
and disarmed the smoke alarm. Liability here would largely hinge on her mens rea.
Did she, at the moment of committing either action, foresee the risk of damage to
the house or the risk of endangering lives to others?
Poor answers to this question…
tended to ignore the importance of analysing the question from the point of view of
both prosecution and defence, preferring to assume guilt on all possible charges.
Some key issues were left undiscussed, e.g. the intention to permanently deprive
issue in relation to the shirt and dishonesty generally.
Question 3
Discuss D’s possible criminal liability for rape in the following situations:
(a) D promises his girlfriend, V, a religious person who does not believe
in sexual intercourse before marriage, that he will marry her if she has
sexual intercourse with him. After intercourse takes place, D tells V
that he did not mean what he said and ends the relationship;
(b) D, who looks like the film star George Clancy, induces V into having
sexual intercourse with him, falsely representing that he is George
Clancy;
(c) D, who is happily married to V, comes home to find her asleep and
starts having sexual intercourse with her. She wakes up and tells him
to stop;
(d) in a bar, D secretly buys V an alcoholic cocktail rather than the non-
alcoholic drink she asked for. V does not notice the difference and

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 becomes intoxicated. D drives V back to her flat where, after a long
session of petting, they have sexual intercourse; and
(e) D and V, who are lovers, are having consensual intercourse, during
which D says to V, ‘I wish you were more passionate. You are not
nearly as sexy as Marta (D’s ex-wife).’ V angrily tells D to cease
intercourse. D refuses, whereupon V shouts, ‘Get off!’ and begins to
struggle. ‘That’s better’, says D. ‘Now you are showing a bit of
passion’, and continues to have intercourse with her.
General remarks
This is a question on rape with particular emphasis on consent and belief in consent
requiring understanding of ss.74, 75 and 76 and the relationship between them.
Law cases, reports and other references the examiners would expect you to use
See below.
Common errors
The most common error encountered is a widespread failure to properly understand
and interrogate the relationship between ss.74, 75 and 76. For example, with
respect to both (a) and (b) you should analyse whether an absolute or evidential
presumption applies and, if not, whether consent (and/or reasonable belief therein)
might be negated by reference to s.74.
A good answer to this question would include the following
(a) Sections 75 and 76 are not, on the face of it, applicable. This is because
deceptions falling outside s.76 normally do not vitiate consent unless
fundamental e.g. McNally to the act consented to e.g. Boyling.
(b) This is not on the face of it a s.76(2)(b) deception as the defendant was not
known personally to the complainant but you should question whether
looking like the film star and being known as that film star by the
complainant makes a difference. Otherwise, deceptions falling outside s.76
normally do not vitiate consent. See above.
(c) Section 75(2)(d) presumption – this is rebuttable. You should explain how
the presumption could be rebutted and how, in such a case, s.74 must be
relied upon.
(d) Section 75(2)(f) is applicable but absence of consent and belief can be
rebutted. You should explain how, especially in relation to the significance
of the ‘heavy petting’ beforehand. In which case, you are back to square
one needing to prove absence of consent by reference to s.74.
(e) Section 78 includes failure to withdraw. The issue here is reasonable belief
in consent, not consent.
Poor answers to this question…
showed little knowledge of case law, did not interrogate the facts preferring simply
to assert guilt, or lack of it and failed to understand the relationship between ss.74–
76.
Student extract
Situation: D convinces V to sleep with him under the false promise that he will
marry her. Rape has been defined in s. 1 of the Sexual Offences Act 2003
(SOA). The actus reus elements of this offence are: penetration, of a penis,
into a vagina, anus or mouth, without consent: s. 1(1)(a) and s. 1(1)(b). D has
‘sexual intercourse’ with V. This implies that there is a penetration of a penis
into the V's vagina. Hence, these elements of actus reus are likely satisfied.
The issue is whether this was consented to. The conclusive and evidentiary

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presumptions will probably not apply here. Therefore, the question is whether
V has made a choice, and whether she has the freedom and capacity to
make that choice: s. 74(1). William Wilson writes that where deception has
led to a ‘morally significant difference’ in V's decision to have sex, then
consent may be vitiated. V may argue that she would never have consented
if she had known D to be lying. The fact that she is deeply religious, and the
deception has a severe moral implication on her life would be considered as
evidence that she has not consented. However, case law has established a
trend against deception vitiating consent. In R (Monica) v DPP an undercover
police office slept with the victim, who would not have slept with her if she
knew of his real identity. The courts held that generally deception does not
vitiate consent unless it falls under s. 76. Further, in Lawrence (2020) the
defendant lied about having a vasectomy. Once again, the courts held that
the deception was not to with the act of sex but rather the ‘consequences
associated with it.’ Ultimately, V did consent to having sex with D. Simple
deception is insufficient to vitiate consent. Therefore, D would likely escape
liability. Assuming V did not consent, D would also need to have not
reasonably believed that V was consenting: s. 1(1)(c). This is an objective
test and what matters is whether D's beliefs were reasonable, not simply
whether D believed them: B (2013). D would know that V would not consent
to sex if she knew the truth. Therefore, he knows that complete consent has
not been given. Thus, there is evidence to prove that D could not have
reasonably believed V to be consenting. D, meanwhile, will argue that he
knew that V was consenting to sex, despite the lie. Ultimately, this is a
question for the jury, and it heavily depends on whether they believe V to
have consented. (b) Situation: D pretends to be a film star to get V to sleep
with him. Once again, the actus reus elements of penetration of a penis into
V's vagina seems to have been satisfied as V has ‘sexual intercourse’ with
her. The remaining issue is whether V consented. S. 76(2)(b) provides a
conclusive presumption that, where the defendant has impersonated another
person personally known to V, and this induces V to have sex with the
defendant, there is no consent. In Elbekkay pretending to be V's boyfriend
was rape. However, the statute requires that the person D impersonates is
personally known to V. This implies that V must have a personal relationship
with the person being impersonated. This may be a close friend or partner
like in Elbekkay. Here, it is a film star. In all likelihood, V has never spoken to
this film star, and they probably do not have any relationship between each
other. Hence, it would be a stretch of the English language to consider
George Clancy to be a person ‘personally’ known to V. Moreover, Jheeta
establishes that the courts are hesitant to employ the conclusive presumption
for fear of false convictions. Therefore, it seems that this presumption would
fail. It must be proved under s. 74(1) that V did not consent. There is little
evidence to state that V did not consent. She agreed to have sex with the
person standing in front of her. Therefore, it seems that there is insufficient
evidence to prove beyond reasonable doubt that V did not consent, given the
evidence present in the question. If V did not consent, the prosecution must
move to mens rea. There is little evidence as to D's beliefs. However, if D can
prove that he reasonably believed that V was consenting, then he may avoid
conviction. Once again, this depends on the jury and other evidence available
to them.
Comments on extract
If you are unclear as to what a first-class answer looks like, just take a look at this
extract. It reads well. It is crystal clear. It is well informed. The legal and factual
analysis are on point. Cases are used as authorities rather than, as many

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candidates do, as illustrations or as padding. There is little to criticise apart from a
little quibble about the ‘burden of proof’ in relation to (b). The prosecution do the
proving, not the defendant. In short, this was an absolute pleasure to read.
Question 4
Consider the legality of the following activities in which injury is caused:
(a) deliberately fouling a player in football in order to prevent them from
scoring a goal;
(b) kicking a person in the face in ‘kick boxing’;
(c) a body artist cutting a client’s ear off, at their instigation, in honour of
the painter Van Gogh;
(d) gouging deep scratches on a partner’s back during consensual
lovemaking; and
(e) punching a friend hard in the stomach during play fighting.
How far, if at all, does consent provide a defence to potential non-fatal
offence liability in each situation?
General remarks
This is a question concerning the availability of the defence of consent to acts of
violence. It should encompass an explanation of the principle that, where physical
injury is caused, the fact that the victim consented to the act that caused it is not,
without more, an answer. Some discussion is expected of how the law operates to
protect socially acceptable activities by contrast with those that are deemed to be
contrary to the public interest, e.g. AG’s Reference.
Law cases, reports and other references the examiners would expect you to use
See below.
Common errors
On (a), although Barnes was widely referred to by candidates, the facts of the
problem and how the principle in Barnes might be applied to them was often not
considered. On (c), too many candidates assumed this to be a simple question of
tattooing/lawful body alteration, citing Wilson as authority leaving R v BM, for
example, unexplored.
A good answer to this question would include the following
Although a person can consent to the application of force, where physical injury is
caused, the act, to be lawful, must fall within a recognised exception:
• Consent is implied to all contacts that are part and parcel of the game as
played even if contrary to the rules of the game, e.g. Barnes. Context and
motivation are taken into account.
• Boxing is a recognised exception and, by analogy, so is therefore
kickboxing. Kicks can be consented to depending on the application of
Barnes.
• Body alteration, outside the medical exception, can be lawful if reasonable
and so not contrary to the public interest by analogy with tattooing. This is
unlikely to be deemed so, e.g. R v BM.
• Although sadomasochism cannot be consented to (Brown), the courts are
slow to interfere with sexual activity per se even where it involves injury,
e.g. Slingsby.
• Play fighting can be consented to and so be lawful as in horseplay, e.g.
Jones.

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Poor answers to this question…

tended to avoid analysing the facts of each individual question, preferring simply to
state the obvious relevant case and insist on its applicability.
Student extract
(B) Kicking an individual in the face in kick boxing causing injury will likewise
draw section 47. However, according to Barnes, in the games, criminal
allegation may be made on the off chance that the injury is intentional or in
outstanding case. thus, in this case, as there is no notice that the injury is
purposely caused, henceforth assent will work as the safeguard to area
47and litigant can benefit the assent and it will be successful.
(C) A body craftsman removing client's ear at their induction to pay tribute to
painter Van Gogh’. It can be drawn into the charge of section 20 as there is
injury. It require[s] unlawful and malignant injuring or incur any GBH
regardless of any instrument. Eisenhower characterized the twisted as
‘demonstrating entering in the two layers of skin’. In our case, wound is
significant instead of GBH which is characterized in DPP v Smith as ‘truly
genuine damage’. Slicing up the ear will add to wound. According to Mowatt,
the mens resa [sic] required is expectation or wildness. it should be
demonstrated as that he planned or predicted hurt yet not really the level of
damage. In any case , again the contention of assent becomes possibly the
most important factor. It is reference in the case that he cuts it at clients
incitement. In Wilson, that's what court said ‘marking on skin with a hot blade
is permitted whenever finished wit[h] reason for embellishment as opposed to
discipline’. Courts further said that criminal 11/13 regulation should not slow
down individual's life. Consequently, almost certainly, Body craftsman can
raise guard effectively and won't be at risk under section 20.
Comments on extract
Although this candidate seems to have done a reasonable amount of work it is
spoiled by poor use of English. I cannot emphasise enough how important it is to
write clear, meaningful sentences. Examiners are not there to try to make sense of
what you are saying. They are there to evaluate your answer and, if the answer
does not ready admit of evaluation because the sense is unclear, the mark will
reflect this.
In (b), it appears that what the candidate is saying is that injuries inflicted in the
course of kick boxing is lawful, as per Barnes, so long as the kick was not delivered
for the purpose of causing injury. Barnes does indeed imply that a whether a tackle
in football is lawful or not may depend upon the intention and motive of the tackler –
was it to prevent a goal or to cause harm? But this does not necessarily apply to
cases of kick boxing where, like boxing, the point of the sport is to land (harmful)
blows.
With respect to (c), again, the meaning is unclear due to poor use of language but
here an extra problem arises because of the peculiar use of words such
‘expectation or wildness’. In connection with the mens rea for s.20. The mens rea
for s.20 is intention or recklessness. No other word is appropriate. A clear
meaningful sentence to convey this in the context of the question at hand would be
as follows.
In order to succeed with a charge under s.20, the prosecution must be able to
establish either a wound or “serious” bodily injury. The removal of an ear will
satisfy either of those. The mens rea for s.20 is intention or recklessness.
Clearly, it was the body artists’ intention to remove the ear and so mens rea
is satisfied.

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The candidate then goes on to consider the main point of the question, which is
whether the removal can be consented to by the client, thus rendering it lawful. The
candidate, again without sufficient clarity, asserts that it can, relying on Wilson. This
conclusion has a degree of merit but it is not arrived at by argument or debate. It is
simply asserted without reference to any public interest considerations that inform
all of the law relating to consent to bodily injury. A little more knowledge of the case
law would have directed the candidate to R v BM, which argues against consent
being available. Too many things spoil this answer for it to be a pass.
Question 5
‘Whilst manifestly fair and just to the defendant, subjective formulations of
mens rea inevitably result in acquittals which others may regard as unfair or
unjust.’
Discuss this statement in relation to TWO of the following:
(a) recklessness;
(b) oblique intention;
(c) gross negligence.
General remarks
This is a question requiring understanding of the concept of subjective fault and, by
extension, objective fault and an ability to evaluate the concept, its connection with
desert in punishment and possible mismatch between subjective fault and desert
and/or justice.
Law cases, reports and other references the examiners would expect you to use
See below.
Common errors
The most common error was a failure to address the key point of the question,
which is how far a requirement of subjective fault is necessary for desert in
punishment and whether desert in punishment is necessarily equivalent to justice in
the individual case.
A good answer to this question would…
include an explanation of subjective fault together with why it is thought desirable
for purposes of desert and how objective fault is considered by some commentators
to be incompatible with desert. You should also refer to its perceived limitations as a
form of fault in terms of societal goals and how crimes of objective fault may
accommodate those objections.
(a) Your answer should define recklessness in both its subjective and objective
sense and will desirably show how subjective fault has become necessary,
with reference to cases such as Caldwell, G and R, Cunningham and how
closed mind recklessness has been used to water down the excesses of
subjective fault, e.g. Parker. You should cite examples of perceived
injustice/fairness, e.g. Elliot v C, G and R.
(b) Your answer should define oblique intention and how it differs from direct
intention indicating that, although a form of subjective fault, it permits the
acquittal of some who know for certain their action will bring about a
prohibited result although this may be perceived as unjust, e.g. Woollin and
how the courts have sought to deal with this problem, e.g. Steane, Gillick.
(c) Your answer should define and contextualise gross negligence in the light
of cases such as Adomako and refer to the uncertainties of gross
negligence, which permits juries to convict of manslaughter based on non-

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objective criteria, e.g. Misra, Adomako and the implication this has for the
delivery of criminal justice and fairness to the individual.
Poor answers to this question…
tended to simply repeat notes about reckless, intention and gross negligence
without aligning these concepts to the type of fault and the importance of desert in
punishment.
Student extract
Recklessness has a long history and can be seen often with manslaughter
and gross negligence. Recklessness is a fault element which require that the
persons mind should be aware and thinking. The basic meaning of
recklessness is that person deliberately performs an act which he was aware
of the consequences. Awareness of the risk is compulsory in recklessness.
The first case for this was Cunningham (1957) where D was conscious of the
risk he was taking. D ripped the pipe meter in order to steal it as a result all
the gas was escaping. D was charged contrary to S.23 of thr [sic] Offences
Against persons act 1861. It is also to be noted that being aware of the risk
does not always require conscious thought process. Although this is true in
some crimes where malice is important for example malicious wounding S.20
OAPA. Professor kenny has discussed about defandant [sic] foreseen. But
sometimes the nature of act is such that being aware of the result is obvious.
In Parker (1977) defendant slammed the telephone because of bad day and
it broke down. He was fined and court of appeal held that the risk was
foreseen if you slam the telephone hard it will break. But there are some
situations where D does not have the mental capacity to foresee the event.
Such as in the case of Stephenson (1976) D lit fire in Haystack and it all
destroyed. D had a history of Schizophrenia which means he did not have the
same ability to foresee events as a normal person does. Prosecution has
also need to prove conscious foresight that is the lack of awareness due to
voluntary intoxication. In Brady (2006) D while drunk clim[b]ed the stairs and
fekk [fell] on V and was convicted for S.20 of OAPA. This means that if a
pers[o]n is involuntary intoxicated he cannot properly foresee the future
events and cannot predict the likelihood of any event taking place. The risks
that the defandant [sic] takes must be unreasonable in the circumstances.
We all take risks in every day lifes [sic] while driving or crossing road etc.
Taking risk is part of human behaviour but it is blameworthy if D takes the risk
that he should not have taken. E.g driving fast in rain or snow which could
lead to serious injuries that type of risk must not br [sic] taken. There is also
objective form of recklessness. In the recent years the law has developed in
a sense that it is no longer necessary to prove that D foresaw the risk of
harm. It is enough that it should have for[e]seen it. Similar to the case of
Caldwell (1982). D set hotel on fire while drunk he argued that he was not
aware of what he was doing same as in Stephenson but there it was mental
incapacity here it is intoxication. In the case of G v R [sic] (2003) The D were
young boys of 11 and 12 years they spread fire in backyard of the house.
House of lord said it would be unfair to apply Caldwell test here so House of
Lords had Three options , whether to keep the law as it is or to modify it by
bringing things like age gender and race or to the kaw [?] to pre caldwell
pos[i]tion. and they chose the final option to retuen [sic] to law pre caldwell
state. ‘
Comments on extract
The first point to note is that this candidate, like the majority of candidates, have not
spent any time tidying their spelling and grammar. You may think this is unimportant
but it is not. Messy grammar and spelling inevitably leads the reader to conclude

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that the analysis may be messy as well. You should always spend at least two
minutes per question checking this. This is particularly important for type-written
answers where it is easy to do a typo or miss a comma if you are typing quickly.
With handwritten answers this does not tend to happen for obvious reasons.
Some specific points on the extract: first sentence is waffle. It adds nothing to the
answer. Second sentence is a clumsy attempt to define recklessness in the
candidate’s own personal style. Always use legal definitions rather than try to
paraphrase them. Fifth sentence: this is poor style. Cunningham is correctly
identified as authoritative and that is how it should be used, rather than described
as ‘the first case for’ whatever that means. So a better expressed sentence would
simply state ‘Authority for this proposition is Cunningham’. Cases should be used in
this way – not simply as illustrations or, as here, marking chronology.
Another example of how this candidate did not take care to ensure that their
meaning was adequately expressed in the typing are in the following sentences
‘It is also to be noted that being aware of the risk does not always require
conscious thought process. Although this is true in some crimes where
malice is important for example malicious wounding S.20 OAPA. Professor
kenny has discussed about defandant foreseen.But sometimes the nature of
act is such that being aware of the result is obvious.
This first sentence is good but the next sentences are completely impenetrable. A
few moments spent thinking, rather than speed typing, should have made this clear
to the candidate and so clear also to the examiner.
All that said, the candidate shows a decent grasp of this area of law and the effort
would gain a high third. If it had been tidied up and properly reviewed it would
qualify for a lower second.
Question 6
One day, India and Rahan go walking together in the mountains. At the top of
the hill, Rahan tells India that he is going to kiss her. India, who has strong
moral and religious principles, says, ‘If you do, I shall jump.’ Rahan does not
believe India and kisses her. India then jumps off the mountain and falls 20
metres onto a ledge rendering her unconscious. Rahan goes to rescue India.
He carries her to his car, intending to take her to hospital. After travelling a
few hundred metres, the car is involved in an accident with James, a drunk
driver. Rahan gets out of the car, opens the door of James’ car and aims a
punch at him. James, who is not thinking clearly due to his intoxication, pulls
out a revolver and shoots Rahan through the shoulder. Both Rahan and India
survive their respective injuries.
Discuss the potential criminal liability of Rahan and James.
General remarks
This is a question on offences against the person with particular emphasis on
causation. It contains an element of voluntary intoxication, which you were expected
to address.
Law cases, reports and other references the examiners would expect you to use
See below.
Common errors
Many candidates failed to consider intoxication. And a substantial proportion did not
effectively address causation or, if they did, did not base this on a consideration of
the relevant offence against the person.

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 Examiners’ reports 2022

A good answer to this question would include the following

Rahan v India
You should identify three possible offences, namely, common assault, s.47 or s.20
OAPA 1861. You should outline the elements of the offence and apply them to the
specific facts of the case.
The kiss is an ‘assault by beating’, otherwise known as a battery. You should define
GBH, e.g. Janjua and make the point that India’s unconsciousness is GBH, if the
jury so consider, e.g. Bollom. Whether it is inflicted depends, as ABH does, on
causation, on which you should state that Rahan's belief is not relevant to
causation. The issue is whether the jump breaks the chain of causation (indicative
case law: Roberts, Williams, Blaue, Dhaliwal, Kennedy) or is a novus actus
interveniens.
Rahan v James
The first offence you should consider is common assault. You should define this if
you have not done so already and identify its elements, e.g. Stephens v Myers,
Venna and explain how an attempted punching is an assault.
James v Rahan
You should consider s.20 or s.47 and outline their elements. The bullet causes a
wound or ABH. Mens rea is not negated by intoxication as s.20 is a basic intent
crime, e.g. Majewski.
Poor answers to this question…
dealt with causation without considering what offence might be committed, or did
not consider causation at all. Particularly poor answers did not cite case law or
sufficient case law.
Question 7
‘English law does not normally impose liability for failure to act despite the
fact that there may be compelling moral justifications for doing so.’
Discuss this statement and consider what, if any, reforms would be desirable.
General remarks
Chapter 3 of the module guide suggests ways of tackling questions such as this.
Law cases, reports and other references the examiners would expect you to use
See below.
Common errors
Many candidates did not deal effectively with the evaluative part of the question.
A good answer to this question would include the following
Outline the actus reus principle and how omissions form a qualification in the case
of result crimes but not in the case of statutory crimes of omission where their
appearance is ‘normal’.
Give illustrations of the general principle of no liability for omissions despite any
moral imperative.
Outline the duty qualification and the reasons for it (e.g. it helps individuals to know
when they are expected to intervene and establishes a basis upon which a person
can be said to have ‘caused’ the result although they have done ‘nothing’).
Evaluate the cogency of the act/omission distinction; the scope, determinacy and
cogency of duty situations; and the theoretical arguments for and against omissions
liability. On the general duty question: the arguments concerning autonomy and
legality. A very good answer will show some understanding of the distinction

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between a generalised duty to act and being accountable for the consequences of
omitting to act.
You should suggest possible reforms that may include extending the range of duty
situations and a duty of easy rescue.
Poor answers to this question…
simply rehearsed duty situations with little reference to case law.

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