Criminal Report 2021 A

Examiners’ reports 2021
LA1010 Criminal law – Zone A
Introductory
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, for Question 1, Activity 12.7 tells you to read
Wilson, Section 14.2.A.3 ‘“Belonging to another”: who does property belong to?’
and compare Meredith with Turner [1971] 1 WLR 901 CA, which is a good
illustration of how a true owner can steal from a mere possessor. Why was Meredith
acquitted and Turner convicted? Are they both right? Make sure you make notes of
both cases and your conclusions. This activity and the understanding you glean
from it give you what you need to know to answer the first three parts of the
compulsory question.
Comments on specific questions

PART ONE
Question 1
Adam lends Eve his car. Later Adam secretly retakes the car. When Eve tells
Adam the car is stolen, Adam, in furtherance of his dishonest plan, pretends
to be angry and insists upon Eve paying him compensation, which she does.
He then offers the car for sale to Stefan, having first reduced the mileage
shown on the odometer. Stefan asks Adam if the mileage is genuine. Adam
says to Stefan, ‘I don’t know but I think it is.’ Stefan disbelieves Adam and
does not buy the car.
Later Adam, who works in a jewellers shop, borrows, without permission, a
hugely valuable diamond tiara which he intends for his wife, Belina, to wear at
a party that evening. His intention is to return it the next morning before the
jeweller discovers it to be missing. Belina refuses to wear the tiara and insists
that Adam return the tiara to the shop. Adam does so but the shop has closed
for the night. He puts it in a carrier bag and leaves it on the doorstep. The bag
and its contents are taken by a thief and are not recovered. Adam returns
home from the jewellers to find a car blocking the driveway to his house. He
breaks the window of the car, releases the handbrake and pushes the car
away from his drive.
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a) If you were the prosecutor, what offence(s), if any, would you charge
in relation to Adam retaking the car?
b) Explain your reasoning in relation to (a) above.
c) What arguments could be raised by the defence in relation to the
charge in (a) above.
d) If you were the prosecutor, what offence(s), if any, would you charge
in relation to the demand for compensation?
e) Explain your reasoning in relation to (d) above.
f) If you were the prosecutor, what offence(s), if any, would you charge
in relation to the change in the odometer reading and Adam’s
response to Stefan’s question?
g) Explain your reasoning in relation to (f) above.
h) If you were the prosecutor, what offence(s), if any, would you charge
in the matter of leaving the tiara on the doorstep?
i) If you were defence counsel, what argument would you mount in
relation to the charge in (h) above?
j) What arguments could be raised by the prosecution in relation to the
defence argument in (i) above?
k) If you were the prosecutor, what offence(s), if any, would you charge
in the matter of breaking the window and moving the car?
l) Give reasons for your answer in (k).
m) If you were defence counsel, what argument would you mount in
relation to the charge in (k) above?
General remarks
For this question, you should always follow the template I have given you on the
VLE. Be concise. You get no extra marks for long-winded answers if a short answer
will do. This is especially the case with questions that ask you what to charge. See
(a) below.
Law cases, reports and other references the examiners would expect you to use
See below.
Common errors
Many candidates were too general in their responses and defence arguments were
often superficial.
A good answer to this question would…
note, for the identifying offence questions, it is enough to simply state the offence as
the template indicates.
a) Theft.
b) The elements of the offence are all established. The car is property by s. 4
Theft Act 1968 and it has been dishonestly appropriated by Adam with an
arguable proviso in relation to the ‘belonging to another’ element, see
Turner and Meredith.
c) Unlike Turner, the bailment could be terminated at will and so the property
would no longer belong to Eve. See Meredith.
d) Either theft or fraud by false representation.
e) Theft because all the elements are present (specify these), including
appropriation (Hinks). Fraud because all the elements are present (specify
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these) including false representation – ‘the car has been stolen’, which it
has not!
f) Fraud by false representation.
g) Because all the elements are present (to be specified) including false
representation by conduct as to the mileage, and by express representation
as to his state of mind (belief – he does not believe the odometer reading is
correct – he knows it is not).
h) Theft.
i) No intention to permanently deprive.
j) Special case under s.6(1). By leaving it exposed like this he is ‘treating it as
his own to dispose of…etc.’ e.g. Coffey.
k) Criminal damage.
l) All the elements of the offence are present, including damage to the car
and an intention to cause that damage.
m) Lawful excuse – s.5.(2)b – protecting a property interest, i.e. his right to use
his driveway(e.g. Chamberlain v Lindon).
Poor answers to this question…
tended to be too general and not focus on the questions posed.
PART TWO
Question 2
In each of the following four scenarios, assuming Igor was the subject of
criminal charges (which you should not specify or address), consider and
discuss any defences which may be available to him:
a) Cain offers to provide Igor’s child, who is critically ill, with life-saving
medical facilities if Igor stabs Jane. Igor carries out the stabbing of
Jane.
b) Igor sees Jane, a burglar, enter his cellar where he has a valuable
wine collection. He follows her and knocks her over the head with a
baseball bat to overpower her.
c) Igor, a police officer, unreasonably suspects Jane, a respected
member of the Women’s Institute, of being a terrorist. He challenges
her and demands that she put her hands in the air. In panic, Jane
reaches for her asthma inhaler. Igor shoots Jane dead, believing the
object to be a gun.
d) Igor, a motorist, has an argument with Jane, another motorist, due to
Jane having stalled her car at a traffic light. Jane gets out of her car in
a threatening manner. Igor, fearful for his safety, drives off and breaks
the speed limit as a means of escaping the danger.
General remarks
This question was designed to test your understanding of the different affirmative
defences, in particular, to see how, although they all seek to protect potential
victims of harm from a criminal conviction where they act to escape that harm, their
areas of application differ. This is explained in Section 11.1 of the module guide and
Wilson, Section 10.1.
See below.
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Common errors
Candidates often used the wrong defence, e.g. in (d) used self-defence rather
duress of circumstances.
include the following:
a) No defence is available. Duress (of circumstances) requires a threat of
unlawful violence (e.g. Hasan). Necessity does not permit victimisation of
an innocent for the benefit of another, even if it is the lesser of two evils
(e.g. Dudley and Stephens).
b) Defence may be available – defence of property/prevention of
crime/effecting a lawful arrest. This requires Igor’s use of force to be
reasonable (proportionate), however. It is an objective not subjective test
e.g. Palmer/Graham that, particularly in the case of householders such as
this, takes into account the particularly stressful experience of being
burgled, e.g. R v Ray. Section 76(6) and (7) Criminal Justice and
Immigration Act 2008.
c) Self-defence may be available. Amount of force used must be proportionate
on the facts as Igor believed them to be, even if the factual belief was
unreasonable – (s.76 (3) and (4) 2008 Act.). Pre-emptive strike permitted
(Beckford).
d) Only duress/duress of circumstances is possible, which requires fear of
death/serious injury (Hasan) (e.g. Conway). Self-defence is not available as
force is not being used by Igor against the aggressor. Hasan provides the
requirements for successful raising of defence.
despite the precise wording of the question, some candidates talked about the
offence that might be charged.
Question 3
Explain and discuss the defences of insanity and diminished responsibility.
General remarks
‘Compare and contrast’ questions test how well you understand the areas of law
under discussion. This is made clear by your ability to identify both similarities and
differences. See Chapter 7 of the module guide.
See below.
Common errors
Many students were unclear about which defence to run in (d) and ignored the
‘householder’ provision in (b).
include the following indicative elements:
• Description and exposition of the defences, including definitions. Reference
should be made to relevant statutes, including Coroners and Justice Act
2009, Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and
cases including M’Naghten, Bratty, Quick, Burgess, Kemp, Sullivan,
Brennan, Dowds, Inglis, Golds, Kay.
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Comparison
• Both are mental condition defences.
• Both affect capacity.
• Both operate as excuses.
• Both require support of medical evidence.
• Both may result in hospitalisation or a restriction order.
Contrast
• Insanity, unlike diminished responsibility, requires a disease of the mind.
Reference should be made to the external/internal dichotomy created by
Kemp. This should be contrasted with the idea of a ‘recognised mental
condition’ as provided by the amended s.2(1) Homicide Act 1957 in relation
to diminished responsibility.
• Insanity is a qualified defence. DR is a partial defence.
• Insanity, unlike DR, cannot be based upon loss of control.
• The effect of DR is still a conviction (for voluntary manslaughter). Insanity –
the special verdict means a not guilty verdict.
did not deal with points of contrast and comparison, being content to simply
describe the defences.
Student extract
The requirement of this question appropriates itself to the chapter of
defences to criminal liability and it further requires a defined explanation of
both diminished responsibility and insanity this essay will conclude detailed
information about defenses by testing if its effective or not. Firstly, we will
discuss the defense of insanity, the defense insanity is basically generated
when a person or defendant cannot exercise due to loss of physical or mental
control. Mostly the defence of insanity is criticized by certain academics.
According to certain case laws such as Hennessy in which defence of
insanity was properly imposed. The provisions related to insanity are mostly
unsuccessful to succeed as law commission reflected the view ‘ the key
concept of the disease of the mind ‘ are not seen as psychiatric disorder
according to law commission 2010 epilepsy and diabetes were not just as
mental disorders.
In some cases insanity is regularly supervised by M’Naghten rules 1843.
House of lords expressed that there is assumption that every man is well-
balanced. To establish the defence of insanity the defendant should show
that he was suffering with any mental disorder at the time of any criminal act
or offence as well as he was not aware about the nature and quality of his
act. The first component ‘ defect of reason’ consist of any proof that
defendant was lacking of his ability of reasoning not only absent minded. This
was illustrated by the case of Clarke 1972.
There are different conditions consisted in this term such as brain tumour or
sleep walking. If we consider the judgement of Devlin J in Kemp 1957 a
‘disease of mind must effect the mind rather than just the brain in the
physical.’ Moreover in Bratty v AG for Northern Ireland Lord Denning
elaborated about the disease of mind ‘ any mental disorder which has
manifested itself in violence and is prone to recur.’ In Burgess sleepwalking
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was also considered to be a disease of mind. These case show that during
an epileptic or sleepwalking is deemed to be legally insane.
Comments on extract
This extract shows a fair grasp of principle but is rather imprecise in a number of
respects. For example, the candidate states ‘that he was suffering with any mental
disorder at the time of any criminal act or offence’. Mental disorder is not within the
meaning of the M’Naghten rules. The condition stated is a ‘defect of reason from
disease of the mind’. The elaboration referred to by Devlin J in Kemp is also sloppily
expressed and imprecise. These are key statements that guide case outcomes and
so must be learned verbatim. The conditions referred to as encompassing insanity
are sketchy and show no depth of understanding. No mention is made of the
internal/external dichotomy and how this causes problems of disposal in cases of
diabetes e.g. Quick Broome v Perkins, nor why sleepwalking is considered insanity
and not automatism.
Question 4
‘The “more than merely preparatory” test informing the actus reus of criminal
attempts is too vague to form the basis of a clear and consistently applied
rule capable of distinguishing between true attempts and acts which are too
remote from the substantive crime to warrant punishment.’
Explain and discuss this statement with particular reference to the case law.
General remarks
See Section 14.2 of the module guide. The activities make special reference to this
type of question.
See below.
Common errors
A common error was the failure to talk about the principle of proximity.
make reference to s.1 Criminal Attempts Act 1971, explaining that the ‘more than
merely preparatory’ test of the actus reus of criminal attempts is an attempt to
create suitable boundaries for the test of proximity (Eagelton) that underpinned pre-
1971 law (e.g. the Rubicon test) but which was never satisfactorily defined. This test
sought to place the relevant degree of proximity at a point beyond preparation. This
was to ensure that people were not punished for their thoughts alone, a key
principle. However, it did not succeed in indicating where that point was. This was
because different types of crime and the different ways of executing them have no
unifying template, indicating when preparation ends and execution starts. Examples
of cases illustrating this problem include Geddes, Campbell, Jones, Gullefer,
Robinson, Davey and Lee. The Law Commission proposed dealing with the
problem by creating a new inchoate offence of preparing for crime but the proposal
was shelved. The latest attempt to put flesh on the bones of proximity is the ‘on the
job’ test, e.g. Jones.
did not tackle the point of the question, namely, the indeterminacy of the test and
the problems of application that this threw up.
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Question 5
Explain and discuss the changes in the law relating to joint enterprise liability
effected by the case of Jogee (2016).
General remarks
All that needed to be said is to be found in Section 15.3 of the module guide, which
includes activities and illustrations designed to help you understand pre- and post-
Jogee law. See Wilson, Section 19.4.D.
See below.
a) Outline the law relating to joint enterprise liability.
b) State the general principle.
c) Explain the usefulness of the doctrine, particularly in cases of murder where
there is evidence lacking as to which of two or more gang members is the
principal, e.g. Chan Wing Siu.
d) Explain the problems of justice posed by the pre Jogee law and how Jogee
sought to address these, e.g. Chan Wing Siu, Powell and English.
e) Discuss the extent to which the changes are more apparent than real given
the evidential value of foresight and the absence of success with appeals,
e.g. R v Johnson-Haynes, cf. Crilly.
f) Discuss the uncertainty as to how the gap between foresight and intention
can be bridged in jury directions.
g) Discuss the lack of support lent in Australia and Hong Kong, e.g. Miller,
Chan Kam Shing.
did not have a clear idea of what a joint enterprise is and how it differs from the
usual case of secondary party liability.
Student extract
There are instances when more than one person is involved in the
commission of the offence. The principle is a person who commits the crime
with the mens rea and is ‘the most immediate cause of the actus reus’. The
innocent agent lacks the mens rea and the responsibility. The accessory
drives his liability from P’s liability. Joint enterprise is where a gang is formed
to commit a crime and A’s liability is derived from the shared common
purpose. R v A held that ‘joint enterprise liability is found between two
principals or between principal and accessory’. The secondary parties are
liable if the offence arose from the execution of the common purpose or the
parties expressly or impliedly agreed that ‘this should happen or should
happen if the necessity arose’. Johnson v Youden stated the mens rea for
joint enterprise is also intention to assist or encourage the crime.
The basic principles for joint enterprise are the same as one for accessory
ship. Baldessare 1930, stated that it is a question of evidence and D2 liable
because he willingly participated and intentionally encouraged the joy riding.
Anderson v Morris 1966, stated that M is not liable if he did not contemplate
the use of the knife however, ‘he would have been guilty if the death resulted
from blow from fist or foot. Parker held that members of joint enterprise are
liable for the acts done in pursuance of the enterprise including the
unforeseen consequences’ (Wilson). All members are liable if the death or
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consequence arose from the execution of the common purpose. If P
accidentally deviated A will be liable as he encouraged or assisted the
commission of the offence and the consequence arose from the execution of
the common purpose. However, A is not liable if P deliberately/substantially
deviated from the common purpose or what was agreed between the parties.
The secondary party must encourage or assist P to commit the crime.
Gamble, held that knowledge can be used as evidence to infer intent but it
itself is not equal to intention. Before 2016, if A contemplated that one of the
member would kill someone with mens rea A was held liable. Chan Wing Siu
1985 was confirmed in Powell; Daniels 1999, that secondary party is guilty if
you realize or contemplated that the crime would be committed with mens
rea. English, held that ‘A could not be liable as P did something so
fundamentally different from the planned attack and it is a Qs of fact for the
jury to decide’. Similar was held in Uddin 1999. Mendez 2010, held that ‘if
you share a common purpose to kill, it does not matter how you end up
killing’. ‘The criticism of Powell; Daniels is that parties are liable although they
did not intend to assist or encourage the crime rather just had a foresight of
the possibility that that P might commit it. Hence, D’s wrongdoing should be a
reflection of his culpability’ (Wilson). Hence this led to the change in law and
a new law was introduced by Jogee.
Jogee 2016, held that the knowledge that you contemplated that P would kill
does not mean that you authorize that act, the knowledge and contemplation
can be used as an evidence but it itself can be termed as intention to assist
or encourage the crime. Also the foresight is evidence and it is Qs for jury to
find whether there was intention to assist or encourage the crime. Hence,
holding D liable for his own culpability and a mere foresight of the
contemplated use of weapon would not mean that D had the intention to
assist and encourage the crime. Also, ‘The Supreme Court confirmed that
even if D did not intent to assist or encourage P to commit murder, he may
still be guilty of manslaughter if he is party to violent attack on another without
intend to assist in causing death or serious injury’ (Smith & Hogan). This
ensured that the law had no intention of promoting injustice and D would be
held accountable for his act of participation not his contemplation that was
termed as intention.
Post-Jogee Johnson Haynes 2019, stated that ‘the appeal based on new law
will only be successful if the given Jogee direction would lead to a different
conclusion regardless of what you claim’. Hence the courts were reluctant to
interfere. And Crilly, held A not liable as there was no strong evidence that he
had the intention to cause GBH and the Jogee direction lead to a different
result.
The Jogee direction was also criticized internationally and the courts were
reluctant to follow it Hong Kong case of HKSAR v Chan Kam Shing, held that
‘the court rejected the argument that it was anomalous to have different
thresholds of mens rea for the principal and accessory’ (Smith & Hogan).
Also in Australian case of Miller v The queen 2016, it was held that ‘if there
was to be a change of law to the rules regarding secondary liability it should
come from the legislature’ (Smith & Hogan).
In conclusion, Jogee changed the law set out in Chan Wing Sui and Powell
and held that contemplation and knowledge was to be taken as evidence it
cannot itself be termed as intention as it would lead to injustice as D will be
held liable for his own culpability rather is being held for the foresight that he
contemplated the use of weapon and the consequence by P. However, it did
8
face a lot of rejection and criticism and courts are reluctant to refuse to follow
Powell. The international courts such as of Australia and Hong Kong also
rejected that and stated that the change in law if necessary should be done
through legislation so we can conclude that the changes in law have not
effected the law to that extent Jogee tried to improve the law but its rejection
shows that there have been no great effect.
Comments on extract
This extract, although clumsily expressed on occasions and showing wobbly
sentence construction, shows a good understanding of this area of law and deals
with all the key cases.
Question 6
Zoe and Yan are partners in a long-standing relationship. Yan is a heroin
addict. Zoe is an ex-addict. One day Yan asks Zoe to inject him. At first Zoe
refuses. Yan threatens to inject himself unless she agrees. Reluctantly Zoe
complies, concerned that, if she does not, Yan may overdose. After a short
while, Yan finds breathing difficult and he collapses. Zoe, hoping Yan will
recover and anxious not to get herself into trouble, puts him to bed and
watches over him. Two hours later, Yan has not regained consciousness and
so Zoe calls for an ambulance. At the hospital, Yan’s breathing gets worse
and he appears to be in great distress. Dave, a junior doctor, mistakenly
administers a strong sedative. The combined effect of the heroin and sedative
results in Yan’s death. Medical evidence indicates that administering a
sedative to someone unconscious due to heroin ingestion is potentially lethal
and that if the sedative had not been administered Yan would probably have
survived.
When Dave tells Zoe about the mistake he has made she flies into a fury and
stabs Dave through the heart with a pair of scissors. Dave dies immediately.
Discuss the potential criminal liability of Zoe.
General remarks
This question deals with murder and its special defence of loss of control. Also
constructive manslaughter, gross negligence manslaughter and the key issue of
causation (see Chapters 4 and 7 of the module guide).
See below.
Common errors
There was a general failure to consider seriously whether the chain of causation
was broken by what appears not simply extremely negligent treatment by Dave but
‘palpably wrong’ treatment, cf. Cheshire and Jordan. There was also little
discussion of whether, on a charge of constructive manslaughter, Zoe might
successfully argue consent, cf. Slingsby or necessity.
regarding:
Zoe – possible liability for constructive manslaughter and gross negligence
manslaughter.
Constructive manslaughter – the main issue is whether the injection involves an
unlawful act since it is consented to and also, arguably, given the context, not
contrary to the public interest. Jennings states that the prosecution charging this
type of manslaughter must specify and establish the unlawful act. This was
9
assumed in Cato. The difference here though is an arguable case of
necessity/duress of circumstances (e.g. Conway, Pipe).
Gross negligence manslaughter – a duty exists following Miller/Evans. The main
issues on gross negligence manslaughter are:
a) Whether there has been a breach. After all, her failure to immediately call
for an ambulance, if negligent, was arguably not grossly so – see Adomako.
b) Causation – tricky given how inappropriate Dave’s response was (Jordan).
R v Broughton (2020) places a heavy burden on prosecution re Zoe.
Scissors – crime: murder. Evidence of intention to kill/cause GBH. Issue loss of
control. Anger not enough, e.g. Goodwin. Qualifying trigger? Does D have a
justifiable sense of being seriously wronged, e.g. Bowyer?
did not successfully interrogate the facts, being content to deal generally with
homicide.
Question 7
Marian is a diabetic and suffers from panic attacks. Bruce, a practical joker,
aware of Marian’s physical and psychological conditions, steals Marian’s
insulin, which she injects daily. He then telephones her to tell her what he has
done although he knows that this may precipitate a panic attack and
hyperglycaemia.
This is indeed what happens. Marian suffers a panic attack, whereupon she
drives her car intending to go to her doctor for a prescription for insulin. After
a few minutes, she becomes hyperglycaemic and confused, causing her to
crash into a lamppost, which collapses. Marian suffers shock and a bruised
sternum. Debris from the collapsed lamppost strikes Ayesha, a pedestrian.
This renders her unconscious and fractures her pelvis. Both Marian and
Ayesha are taken to hospital, where they later recover from their injuries.
Consider the criminal liability of all respective parties. (DO NOT consider
Bruce’s liability for theft.)
General remarks
This is a question designed to test how far you understand the constituent elements
of various offences against the person. A similar question is covered in Activity 9.6
in the module guide, which refers you to the analysis in Wilson, Section 11.2
‘Offences protecting physical integrity’.
See below.
Common errors
Candidates did not have a clear grasp of the elements of s.47, presumably because
they had not done Activity 9.6.
A good answer to this question would include reference to the following
points
Bruce v Marian
Theft and telephone call – s.47 not applicable since there is no battery (no physical
contact made) and no assault (no apprehension of immediate physical contact).
Section 20 probably not committed since, despite hospitalisation, neither shock
(Chan Fook) nor hyperglycaemia, nor bruised sternum are likely to be considered
by the jury as really serious injury, e.g. Bollom. There is an issue of causation that
can be dealt with in relation to Ayesha.
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Marian v Ayesha
Marian not liable (involuntary action, e.g. Hill v Baxter).
Bruce v Ayesha
Section 20 is applicable re Bruce’s possible liability for Ayesha’s injury, which the
jury might find to be serious, e.g. Bollom. The issue is causation. Is this too remote
a consequence from the original wrongdoing? Reasonable foresight tests do not
really help the prosecution but nothing that happens subsequent to the telephone
call is unreasonable and/or unexpected and Bruce knew Marian might suffer some
harm (e.g. Savage) in the form of hyperglycaemia, which means she might injure
herself or someone in that state. Students might talk about transferred malice in this
context. If Bruce foresaw some injury to Marian this mens rea (Savage/Mowatt) can
be transferred to the actus reus of the offence committed against Ayesha (e.g.
Latimer).
did not seem to grasp the essential elements of the different offences.
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LA1010 Criminal law – Zone A

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