Examiners’ reports 2021

Examiners’ reports 2021

LA1010 Criminal law – Zone B

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, 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, having eaten lunch in Batgirls Restaurant, discovers that he has left
his cash at home. When asked for payment by Eve, Adam says that he does
not intend to pay because the food was bad, although in fact he had found it
delicious. Eve, in an attempt to placate Adam, tells Adam that he does not
have to pay and gives him a glass of wine ‘on the house’, which he accepts.
Adam then orders and consumes a pudding. When the time comes to pay for
the pudding, Adam does so with a contactless credit card, although he knows
that he has exceeded his credit limit and so does not have his bank’s
authority to use the card.
Later that day he enters Belter’s shoe shop to buy some shoes. On taking a
pair of shoes to the cash desk for purchase, Adam notices that the price tags
on each shoe show different amounts. He goes back to find another shoe to
match the lower price but is unsuccessful. He chooses, therefore, a matching
shoe without a price tag on it, intending to purchase the pair at the lower
price. A store detective notices all this and arrests him before he reaches the
cash desk. The police arrive and he is taken into custody and charged. On his
release from the police station, he returns home to find a car blocking the

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driveway to his house. He breaks the window of the car, releases the
handbrake and pushes the car away from his drive.
a) What offence(s), if any, has Adam committed in the matter of eating
lunch without the funds to pay for it?
b) Explain your reasoning in relation to (a) above.
c) If you were the prosecutor, what offence(s), if any, would you charge
in relation to the refusal to pay for the meal?
d) Explain your reasoning in relation to (c) above.
e) If you were the prosecutor, what offence(s), if any, would you charge
in relation to the glass of wine?
f) Explain your reasoning in relation to (e) above.
g) If you were defence counsel, what argument would you mount in
relation to the charge in (e) above?
h) If you were the prosecutor, what offence(s), if any, would you charge
in relation to the use of the credit card?
i) If you were defence counsel, what argument would you mount in
relation to the charge in (h) above?
j) If you were the prosecutor, what offence(s), if any, would you charge
in the matter of the shoes?
k) Give reasons for your answer in (j).
l) If you were the prosecutor, what offence(s), if any, would you charge
in the matter of the car?
m) If you were defence counsel, what argument would you mount in
relation to the charge in (l) above?
General remarks
A question designed to test your understanding of different aspects of property
crime, including criminal damage (see Chapters 12 and 13 of the module guide).
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.
A good answer to this question would…
include:
a) No offence.
b) Actus reus and mens rea do not coincide, e.g. Corcaran v Whent. By the
time any dishonest intention was formed, the meal was already consumed
and so could not be appropriated with the necessary fault for theft.
c) Fraud by false representation.
d) All the elements of the offence are present, in particular, a false
representation that the meal was poor and Adam’s intention was to make a
‘gain’ as per s.5(3) Fraud Act, by keeping his money and not paying the bill.
e) Theft.

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f) The elements of the offence are all established, including appropriation.

Although he has been gifted the wine this does not prevent him
appropriating it – Hinks. And he does so dishonestly (s.2(1)(b) not
applicable). Fraud is arguably not chargeable since the initial representation
was not made with a view to obtaining the wine. Section 3 (duty of
disclosure) might though be applicable.
g) Depending on whether the charge chosen in (e) is fraud or theft, D would
argue for the fraud charge – not chargeable since the initial representation
was not made with a view to obtaining the wine. For theft, a person cannot
appropriate a gift and/or lack of dishonesty (Hinks renders this a weak
argument).
h) Fraud by false representation.
i) He made no false representations re the credit card. Although he had no
authority, by tendering the card he made no representation to the effect that
he did. This is not a case like Charles where the donee’s willingness to
accept payment is dependent upon having authority.
j) Theft.
k) The elements of the offence are all established, including appropriation,
e.g. Hinks. No need for an act of adverse interference such as occurred in
Morris. Dishonesty is a matter for the jury, e.g. Ivey.
l) Criminal damage.
m) Lawful excuse – s.5(2)(b) – protection of a property interest, e.g.
Chamberlain v Lindon, i.e. his right to use his driveway.
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 Jane was the subject of
criminal charges (which you should not specify or discuss), consider and
discuss any defences which may be available to her:
a) Jane drives Igor, her infant child, to hospital at above the speed limit.
She does so because Igor is dangerously ill with a burst appendix.
b) Jane, a motorist, is followed on a motorway by a lorry driven too fast
and too close to be able to stop safely in case of emergency. Jane
breaks the speed limit as a means of escaping the danger.
c) Jane is a passenger on a sinking ship. While attempting to climb a
staircase to safety, she encounters Igor, another passenger, blocking
her way. In a state of terror, Igor is unable to move either forward or
back. Jane pushes Igor down the staircase to his certain death.
d) Jane and Igor are walking on a cliff path. Igor lunges at Jane for the
purpose of kissing her. Jane pushes Igor so hard that he falls over the
cliff to his death.
General remarks
The purpose of the question is to assess how far students can recognise the
difference in applicability of the various defences. Section 11.7 of the module guide
and Activity 11.11 is in point. These scenarios are all dealt with in your textbook
Cases 3, 4, 8 and 9.

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Law cases, reports and other references the examiners would expect you to use
See below.
Common errors
Candidates often used the wrong defence, e.g. on (b) and (c), used self-defence
rather than duress of circumstances/necessity.
A good answer to this question would…
include reference to the defence of:
a) Duress of circumstances/necessity, e.g. Martin; Pipe. This is analysed in
Wilson, Section 10.2.
b) Duress of circumstances (threat of serious injury needed), e.g. Conway;
Hasan. This is analysed in Wilson, Section 10.3.
c) Necessity – students may consider the question whether it is available to
murder (although not strictly necessary as the question requires discussion
only of defences). This is analysed in Wilson, Section 10.6.D.
d) Self-defence – see Sections 11.1. and 11.2 of the module guide. The
discussion should centre on reasonableness and proportionality, e.g.
Palmer. Criminal Justice and Immigration Act 2008, s. 76. Students may,
with reason, talk about what Jane believed Igor was attempting to do. This
is analysed in Wilson, Section 10.8.
Poor answers to this question…
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 automatism and insanity.
Law cases, reports and other references the examiners would expect you to use
Cases, e.g. M’Naghten, Kemp, Hill v Baxter, Quick, Burgess, Sullivan. Criminal
Procedure(Insanity) Act 1964 and Criminal Procedure(Insanity and Fitness to
Plead) Act 1991 and see below.
A good answer to this question would…
use Chapter 10 of the module guide. Description and exposition of the defences,
including definitions. Candidates should have included some or all of the following.
Both defences are mental condition defences that affect capacity and negate
responsibility. They require support of medical evidence. Automatism (always)
and insanity (usually) both require the defendant’s mental condition to affect D’s
understanding of the nature and quality of his act. Automatism, however, does not
require mental illness and may be raised where conduct is involuntary, e.g. Hill v
Baxter. However, there must be total involuntariness, e.g. Broome v Perkins.
Insanity, unlike automatism, requires a disease of the mind. Reference should be
made to the external/internal dichotomy created by Kemp. Automatism is an
absolute defence. Insanity is a qualified defence. Prior fault operates in relation to
automatism, e.g. Quick.
Poor answers to this question…
tended to deal with one defence to the exclusion of the other rather than give equal
attention to both.

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Question 4
‘The attempt begins when the merely preparatory acts come to an end and the
defendant embarks upon the crime proper. When that is will depend upon the
facts in any particular case.’
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.
Law cases, reports and other references the examiners would expect you to use
See below.
Common errors
A common error was the failure to answer the question set, namely, how it is not
possible to determine when the attempt begins except by reference to the facts of
the case (and the offence charged).
A good answer to this question would…
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.
Poor answers to this question…
did not tackle the point of the question, namely, how different fact situations
generate different problems of application.
Question 5
Explain and discuss the concept of joint enterprise in the context of
accessoryship, making particular reference to the changes effected by Jogee
and why they were considered necessary.
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.
Law cases, reports and other references the examiners would expect you to use
See below.
Common errors
A lack of clarity as to what constitutes joint enterprise.

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A good answer to this question would…
do the following:
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.
Poor answers to this question…
did not have a clear idea of what a joint enterprise is and how it differs from the
usual case of secondary party liability.
Question 6
John and Imran are rivals for Sara’s affections. Sara has been dating Imran
for a year. John tells Imran that he had slept with Sara the previous night and
that Sara had confided to him that Imran was stupid and dreadful in bed. In a
fury, Imran hits John several times over the head with a fire iron, fracturing
his skull and rendering him unconscious. John is taken to hospital. The
doctor on duty mistakes John, who is still unconscious, for another patient,
who is receiving chemotherapy for cancer. Instead of giving John treatment
suitable for his condition, he administers a dose of chemotherapy. This has a
catastrophic effect. Within minutes John has died. If the dose of
chemotherapy had not been administered, John would have survived.
Meanwhile, on the way to visiting Sara later that night, Imran notices Fred, a
member of a rival gang, who is walking down the street. Imran throws a stone
at him. It misses Fred, ricochets off a lamppost and goes through the
windscreen of a car, driven by Ahmed, causing the car to mount the
pavement and crash into Karin. Both Karin and Ahmed are seriously injured.
Imran does nothing to help Karin and Ahmed, who later both die of their
injuries.
Consider the criminal liability, if any, of Imran.
General remarks
This question involves a number of different aspects of your course including
murder and its special defence, loss of control, causation, constructive and gross
negligence manslaughter.
Common errors
There was a general failure to interrogate key issues, such as whether Cheshire
could be distinguished and whether the trigger was sufficiently serious. Also
transferred malice.

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 Examiners’ reports 2021

A good answer to this question would…

include the following points:
•Offence: murder – clear evidence of mens rea. Issue of causation. (Section
4.3.5 of the module guide).Bad medical treatment does not generally break
the chain of causation, even if very negligent. Is Cheshire distinguishable,
e.g. on the ground that the treatment given, as it was a case of mistaken
identity, was not treatment given ‘attempting to repair the harm done’?
Activity 4.8. addresses this question.
• Defence – loss of control (ss.54 and 55. Issues: loss of control or mere loss
of temper, e.g. Dawes? Qualifying trigger: ‘extremely grave’ trigger? – does
Imran have a justifiable sense of being seriously wronged, e.g. Clinton? Does
it matter that the trigger was information relayed by a third party?
• Fred – attempted s.47 or common assault depending on whether Fred was
aware of the launch of the stone.
• Assuming no homicide, malicious infliction of GBH – the mens rea ‘foresight
of harm’, no necessarily serious harm with regard to Fred’ as per Savage.
Transferred malice operates.
• Imran can also be guilty of constructive manslaughter due to transferred
malice and/or gross negligence manslaughter due to Miller.
Poor answers to this question…
tended to ignore most of the question, dealing at best with minor issues such as
causation.
Student extract
The area of law is homicide. The legal issues in relation to the facts provided
are as follows:
· Whether or not Imran can be said to be legal and factual cause of the
death of the victims.
· If not whether or not there was a break in the chain of causation.
· Whether or not Imran can be considered liable for murder of the victims.
· Whether or not any possible defences may be made available for D.
Imran and John:
Considering the facts provided in the matter of Imran and John the relevant
the relevant offence to be considered is murder.
Murder is the unlawful killing of a human being with the intention to kill or
cause Grievous bodily harm (GBH) as decided in the case of R v Vickers.
The conduct element in this offence is the unlawful killing of a human being.
In trying to establish the actus reus of the given facts, we would have to
consider causation as the offence in this instance is a result crime and in
such crimes a particular harm must result from the unlawful conduct. To
establish the factual causation it should be considered in the sin [sic] qua non
of the event, as required in R v White. But for the conduct of Imran, would
John have ended up dead? After establishing the factual causation the next
question to be considered is whether the conduct of Imran was the still
operative cause of the death of John, just as required in the case of R v
Smith, and to establish that, it is necessary to find whether any following act
broke the chain of causation. Considering, the act of Imran it is clearly stated

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 that Imran’s conduct resulted in John getting a fractured skull, if not for that
John wouldn’t have been admitted in the hospital. In establishing whether
there was a break in the chain of causation, the question to be asked is
whether the act on its own can be enough to end in the results? R v Jordan
states that where such is the case, the ne intervening act will be enough to
break the chain of causation. The facts clearly provide that the doctor
administered dose of chemotherapy in the victim, and went on to say that it in
fact resulted in the death of V. this means that the new intervening act is both
the factual and legal cause of the death of John.
Comments on extract
Although the language used here is a little imprecise, this extract represents a
largely good attempt. There is a weakness displayed in identifying issues. The
candidate says these include ‘Whether or not Imran can be considered liable for
murder of the victims’ and ‘Whether or not any possible defences may be made
available for D’. These are not issues. They are general questions that all questions
of this character raise. The candidate also says the issues include ‘Whether or not
Imran can be said to be legal and factual cause of the death of the victims’. And, if
not, whether or not there was a break in the chain of causation. This is better but to
be truly considered an issue, the facts under discussion must be incorporated. In
this case, the causation issue is whether ‘although John is a factual cause of death
the extremely irregular administration of chemotherapy breaks the chain of
causation’. This issue was dealt with satisfactorily in the body of the answer,
although I would have preferred more discussion and argument taking into account
such cases as Cheshire, as well as Jordan.
Question 7
After a late night at work, George’s sleep is disturbed by the sound of a car
crash outside the house. Although still sleeping, George, who has no history
of sleepwalking, gets out of bed and enters his flatmate Roshana’s bedroom.
Roshana screams upon seeing him and struggles with him, in the course of
which George slaps her across the face. Roshana pushes him out of the door
so violently that George trips and falls downstairs causing him serious
bruising and waking him up.
George, groggy from the fall, goes to the kitchen and pours himself a whisky
from a bottle owned by Roshana and uses one of Roshana’s whisky tumblers.
He breaks the tumbler when, having drunk the whisky, he throws it into the
sink.
He then stumbles out of the house. Amara, a police officer, assuming George
to be drunk, tries to stop him and, when George ignores her request, takes
hold of George’s arm. Due to a combination of the whisky and the fall he is
confused as to where he is and angry that he is being detained. He punches
Amara and then puts his hands around her neck and squeezes until Amara
loses consciousness. When Amara regains consciousness two hours later
she has bloodshot eyes and a broken jaw.
Discuss any criminal offences which may have been committed and any
defences which may be available thereto.
General remarks
See Chapter 10 (Activities 10.2 and 10.5 are in point) and Wilson, Sections 9.8.C
and 9.9.A.3.
Law cases, reports and other references the examiners would expect you to use
See below.

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 Examiners’ reports 2021

Common errors
A common error was the failure to argue both sides of the sleepwalking case.
A good answer to this question would…
consider:
George – battery on Roshana. Issue is can he rely on automatism due to the
context that indicates there is no underlying condition/sleep disorder, e.g.
Lowe/Thomas or is Burgess authority for the proposition that sleep walking per se is
insanity?
Roshana – s.47. Defence: self-defence – available although George is not a
wrongful aggressor. Objective test of reasonableness.
Whisky tumbler – criminal damage. This requires intention or foresight, which
evidence suggests will not be present due to his condition at the time (fall not
sleepwalking).
Amara – ss.47 and 20. Intoxication cannot be relied on unless it negates mens rea,
and even then not for s.20 or 47, which are basic intent crimes. If charged with s.18,
he can rely on intoxication if his mens is not rea.
Poor answers to this question…
did not understand how intoxication can only operate to negate mens rea and made
no mention of the basic intent/specific intent distinction nor consider whether the
intoxication was involuntary and how this might matter for crimes such as s.47.
Student extract
Assault and battery of Roshana by George: George may be liable for assault
and battery of Roshana whereby he has caused her to apprehend immediate
unlawful force (Parmenter) by entering her room late at night and battery
where he has slapped her which is an unlawful application of direct force
(Collins v Wilcox). He may be able to rely on a defence of insane automatism
even though sleepwalking does not fit traditional ideas of insanity. The
sleepwalking is an internal trigger and so a disease of the mind as seen in
Lowe (2005) and Burgess (1991) which causes an inability to reason (R v
Clarke) since he is asleep. Because he is asleep he lacks awareness of the
physical nature and quality of the act, he likely does not even know he has
entered Roshana’s room and of course he holds no knowledge that the act is
wrong, he hold no knowledge of the act at all because he is asleep.
Application of the M’Naughten rules for insanity (1843) shows that George
should be able to use insanity defence and likely be granted an absolute
discharge because of the nature of his condition or at least placed under
supervision if his sleepwalking is dangerous. The fact that he has not walked
in his sleep before suggests that he does not know how to manage it so the
defence should be available because it is not self-induced.
Comments on extract
The candidate shows decent knowledge and understanding of this area of law but
there is a weakness in that it hurries to give answers rather than identify issues
ready for discussion and argument. For example, in relation to the sleepwalking
episode, the candidate treats it as uncontroversial that a crime committed while
sleepwalking can only support a defence of insanity. Your job as a law student is to
identify weaknesses in the prosecution case as well as strengths. Clearly, the
prosecution will argue, as the candidate has done, that Burgess renders
sleepwalking an internal condition and thus not a case of simple automatism. But
this still requires a defence counterargument, which is simply that Burgess can be
distinguished on the facts by the fact that the episode is brought on by an external

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influence (sound of a car crash while asleep and George has no history of
sleepwalking, i.e. has no sleepwalking ‘condition’). The point of the compulsory
question is to alert you to the importance of arguing both sides of the question
rather than rushing to a fixed conclusion.

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