Examiners’ reports 2023

Examiners’ reports 2023

LA1010 Criminal law – Zone B

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 five
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.

Comments on specific questions

PART ONE

Question 1
Livia, the 14-year-old daughter of Marcus, asks Fred to carve his initials onto
her forearm as a sign of his love for her. Fred reluctantly agrees. The wound
was not serious, although it did require one stitch. When Marcus discovers
what Fred has done he challenges Fred to a fight. Fred does not want to fight
and so he punches Marcus and runs away. Marcus falls over, fracturing his
skull.
As Fred is making his way home Beryl, who was carrying a baby in her arms,
approaches and asks him for money to feed the baby. This annoys Fred, who
throws his water bottle at Beryl causing her to drop the baby which bruised it
slightly. The police then catch up with Fred. PC Bill tries to arrest him. Fred
pushes PC Bill out of the way in an attempt to get away, causing PC Bill to
stagger. In an effort to save himself from falling, PC Bill put his arm out and
pushed it through a shop window, sustaining severe cuts to his arm.
(a) If you were a prosecutor, what would be your preferred charge in
relation to Fred and the matter of Livia’s forearm?
(b) Give reasons for your choice in (a) including an explanation as to why
you chose as you did rather than choosing a different charge.

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 (c) If you were Fred’s defence counsel, what arguments would you
advance in response to the charge in (a)?
(d) How would the prosecution counter the arguments raised in (c)?
(e) If you were prosecuting counsel, what would be your preferred charge
against Fred in the matter of Marcus’s injuries, and why?
(f) If you were defence counsel, what arguments would you raise in
response to the charge in (e) above?
(g) If you were prosecuting counsel, how would you respond to the
arguments in (f) above?
(h) If you were prosecuting counsel, what would be your preferred charge
against Fred in the matter of Beryl and her baby?
(i) Give reasons for your choice in (h) including an explanation as to why
you chose as you did rather than choosing a different charge.
(j) If you were prosecuting counsel, what would be your preferred charge
against Fred in the matter of PC Bill’s injuries?
(k) Give reasons for your choice in (j) including an explanation as to why
you chose as you did rather than choosing a different charge.
(l) If you were Fred’s defence counsel, what arguments would you
advance in response to the charge in (j)?
General remarks
This question is designed to test your ability to identify the relevant areas of non-
fatal offences, any defences that may be available, and your ability to analyse the
question from the point of view of both defence and prosecution. We are looking for
succinct answers to the questions posed not a general description of the law.
Law cases, reports and other references the examiners would expect you to use
As below.
Common errors
Many students wrote too generally about the law without tying their discussion to
the precise sub-questions posed.
A good answer to this question would…
be something like the following, which is the kind of response we were looking for
but, if you followed the template effectively, you were given credit even if your
reasoning or use of case law does not match mine.
(a) Section 47/20 OAPA 1861.
(b) Charge depends on the prosecutor’s choice.
(c) Consent – tattoo, body alteration, e.g. Wilson.
(d) Consent not available where harm is intentionally inflicted. At 14 years of
age, Livia cannot in any event consent to tattoo/body alteration, e.g. Burrell
v Harmer.
(e) Section 47/20 OAPA 1861 – charge depends on the prosecutor’s choice
but s.20 is available due to the seriousness of the injury.
(f) Consent possibly but a stronger argument is self-defence.
(g) Consent not available to informal fight resulting in ABH or worse. e.g. A-G’s
Reference. Alternatively, punching someone pre-emptively when there was
no immediate threat of being attacked is not a reasonable response.

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 Examiners’ reports 2023

(h) Common assault.

(i) Slight bruise possibly too trivial to count as ABH.
(j) Section 20/18.
(k) Actus reus of both sections satisfied by a wound. Section 18 possible as
the injury was sustained in the courses of resisting arrest.
(l) Section 20 – no foresight of harm. Section 18 – the injury must still be done
‘maliciously’, e.g. Morrison.
Poor answers to this question…
had clearly not spent enough time practising compulsory questions, evidenced by
the lack of attention given to what is being asked in each of the sub-questions.
PART TWO

Question 2
‘D is not treated as causing V to act in a certain way if V makes a voluntary
and informed decision to act in that way rather than another.’ (Lord Woolf in R
v Kennedy (2007).)
Explain and discuss this statement with particular reference to the concept of
‘breaking the chain of causation’.
General remarks
This question requires you to explain the basic principles governing breaks in the
chain of causation.
Law cases, reports and other references the examiners would expect you to use
As below.
Common errors
Too few students concentrated on the wording of the question, i.e. its reference to
‘voluntary and informed’ and how this may become at issue in cases such as Field
and Romero.
A good answer to this question would…
• outline the law and provide an explanation and discussion of the empirical
and evaluative nature of causal attribution (factual and legal cause)
• explain and discuss the Roberts (reasonable foreseeability) principle and
the Smith (substantial contribution) principle
• consider cases such as Pagett and Cheshire, indicating how third-party or
victim actions or reactions rarely break the chain of causation and why this
is
• outline and evaluate the thin skull rule, e.g. Blaue. It would explain and
discuss the fit, or lack of it, between the Draft Criminal Code rules and the
common law rules
• evaluate and consider the competing tests of causation – namely, those
asserting that unforeseeable acts/events break the chain and those
asserting foreseen and foreseeable actions of V or T break the chain of
causation if voluntary, e.g. Kennedy, Rafferty, Field, Romero and consider
Wallace, comparing Blaue on suicide in this regard.
Poor answers to this question…
did not interrogate the question and showed little knowledge of the law subsequent
to Kennedy.

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Student extract
Result crimes are crimes which are the result of some form of harmful
conduct, and act or an omission, on the part of the defendant as opposed to
conduct crimes which result from the violation of a societal or regulatory norm
such a dangerous driving. Criminal liability in the event of a conduct crime is
premised purely on the actus reus without the requirement of a mens rea, or
'guilty state of mind'. outcome. For criminal liability to arise in the case of a
result crime, there therefore needs to exist a 'chain of causation' between the
actus reus and the harmful consequence.
The Draft Criminal Code Bill (1989) restates the common law position on
causation requiring that the defendant be the legal and factual cause of the
harm and that the prosecution must establish and unbroken causal chain.
Normally, however, proving causation is not an issue when it comes to trial
as the facts of the case are normally easy to establish. Causation is
sometimes referred to as the 'but for' rule or 'sine qua non' meaning that but
for the actions of D, the harm wold not have occurred.
Complications arise when the chain of causation is tested by various potential
scenarios, particularly when there are multiple accused and/or a non-linear
sequence of events between the actus reus and the harmful outcome. in the
case of White (1910, D poisoned V's drink, but she died of a heart attack
before she was able to drink it, breaking the chain of causation. D was
therefor not liable for V's death due to the absence of causation.
In the case of a non-linear sequence of events complicating the chain of
causation, the possibility of a new intervening event (novus actus
intervenians) arises and it is then the jury's task, guided by the judge, to
determine whether the impact of this new intervening act was significant
enough to break the chain of causation. A defendant cannot simply claim that
by virtue of the new intervening act that liability for his/her actions no longer
exists but will need to prove that intervening act was of sufficient weight that it
broke the chain of causation.
An example of this is Pagett (1983) where the defendant was being pursued
by the police and used his girlfriend as a human shield. The police opened
fire and the girlfriend was killed. As the shot from the police was the fatal
blow, Pagett argued that this was an intervening event strong enough to
break the chain of causation. Lord Justice Goff agreed, saying that the ‘the
(intervening) act was so independent of the act of the accused that it should
be regarded in law as the cause of death to the exclusion of the act of the
accused.’ Pagett could therefore not be held liable for the death of the
girlfriend due to an intervening event giving rise to a break in the chain of
causation.
R v Kennedy (2007) is another example of a break in the chain of causation.
In this case, drugs were supplied by D to V. V, without any help Kennedy,
injected herself with the drugs and died from an overdose as a result. Lord
Woolf determined that V's actions were both voluntary and informed and that
despite her death from and overdose of drugs supplied by D, her actions
were her own and broke the chain of causation between D's supply of the
drugs and her death. D was not therefore held liable for her death.
The two cases above notwithstanding, courts have been very reluctant to
view cases of medical intervention, even negligent medical intention and an
event that could break the chain of causation.

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 Examiners’ reports 2023

Cheshire held that the medical intervention was a reaction to the original
actus reus and made necessary by it and as such the attacker must bear the
risk of any negligence that results unless it is of a completely disproportionate
nature and that it would be rare that medical treatment leading to the death of
a victim could be te basis for diminishing liability of for the original attack.
The exception to the above could be gross negligence on behalf of the nurse
or doctor leading to the death of a V who otherwise may have recovered.
An unbroken causal chain is a requirement to link the acts of a defendant
with the harm for which he is being prosecuted. While generally establishing
the causal link form the fact of the case if a straightforward matter, in certain
instances such as those noted above the jury has its work cut out in
assigning criminal liability due to factors such as voluntary and informed
decisions of victims, the gross negligence of medical interventions and the
independence of interceding acts that break the chains of causality and in
doing so relieve the accused of criminal liability for the resultant harm.
Comments on extract
This is a pretty typical example of how candidates do not address the questions set,
preferring rather to simply regurgitate their notes. The question asks specifically
about how the chain of causation may be broken by a ‘voluntary and informed
decision to act in that way rather than another’. It requires therefore an in-depth
consideration of Kennedy and those cases, post-Kennedy, that address the
question of what counts as a voluntary decision and what counts as an informed
decision. These are questions addressed in cases such as Wallace, Romero and
Field.
Question 3
In English law what is meant by:
(a) intention; and
(b) recklessness.
What do these two states of mind have in common, what differentiates them,
and explain and discuss the uncertainty surrounding their definition?
General remarks
A straightforward question designed to test understanding of both fault elements,
their similarities and differences.
Law cases, reports and other references the examiners would expect you to use
See below.
Common errors
Most students did not deal satisfactorily with the source of uncertainty component.
A good answer to this question would…
explain and discuss:
• How intention and recklessness figure in criminal liability.
• Definitions and brief outlines of the elements of each offence
• How indirect intention has been successfully separated from recklessness
by Woollin. It would be useful to explain why it is important that the courts
should be able to distinguish intention from recklessness and how, following
Hyam, they were once conflated.

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Comparing intention and recklessness
• Both are forms of subjective fault. Caldwell recklessness (no foresight
required) involved objective fault, which was another point of contrast with
intention rather than a point of comparison. Indicative cases are
Cunningham, Stephenson, Parker, Caldwell, Elliot and R v G.
• Both involve degrees of choice/commitment to the outcome that render
punishment deserved. A very good answer would explain how the fault
terms reflect the retributive theory of punishment.
• Indirect intention and recklessness have fault based on foresight of the
consequences in common.
Contrasting
• Recklessness reflects a lesser degree of commitment to the outcome than
intention (desire versus willingness to run risk) and so may represent a
lesser degree of fault justifying lesser label and penalty.
• Directly intended consequences are desired. Recklessly caused
consequences are not. We have indifference at most.
• Indirect intention requires knowledge of the certainty that a consequence
will ensue. Recklessness simply requires awareness of the risk that it may
ensue. The two still are difficult to separate at the top end where the
accused foresees the very high probability of the consequence.
• Recklessness, as a fault term, requires the risk taken to be unjustified (i.e.
good motives stop risk-taking from being blameworthy and punishable).
This is not the case with (oblique) intention. One can obliquely intend a
consequence (and so be punished for it) even if one has a good motive. A
very good answer will make the caveat that the Woollin special direction
makes this difference more theoretical than real.
The source of uncertainty
• The influence on intention’s uncertain meaning of motive Adams, Gillick, Re
A, etc. The Woollin direction allows the jury to take account of motive due to
the ambiguity of the judicial direction.
• The influence on intention's uncertain meaning by ‘wicked’ killings (e.g.
Hyam).
• The influence on recklessness's uncertain meaning by indifferent
mindlessness, particularly in criminal damage (e.g. Parker, Caldwell).
• The influence on recklessness's uncertain meaning by the errors of the
young and inexperienced, particularly in criminal damage (e.g. Stephenson,
Elliot, R v G.
Poor answers to this question…
tended to discuss the fault elements generally without addressing the point of the
question and tended to be weaker on recklessness.

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 Examiners’ reports 2023

Question 4
Jack and Asif have an argument. During the quarrel, Asif pushes Jack
violently and aims a punch at Jack. Jack stands his ground and punches Asif
in the face. Asif falls over, hits his head and loses consciousness. Jack is
shocked and upset and tries to resuscitate Asif. When this fails to work he
concludes, wrongly, that Asif is dead. He drags Asif’s body upstairs, hitting
Asif’s head several times on the stairs in the process. Jack places Asif on the
bed and calls an ambulance. When the ambulance arrives Asif is still alive.
However, Piotr, an ambulance worker, stumbles when entering the bedroom,
and falls on top of Asif. This precipitates Asif’s death. Medical evidence
shows that the first blow was unlikely to have caused Asif’s death and that
death was caused by the combined effect of all the blows to the head Asif had
suffered when Jack dragged him upstairs and Piotr’s accidental fall.
Discuss.
General remarks
This is a question designed to test a number of competencies, including murder,
loss of control, the supposed corpse cases, causation.
Law cases, reports and other references the examiners would expect you to use
See below.
Common errors
Failure to identify all the points at issue, e.g. ignoring the supposed corpse issue
and analysing if it applies where the defendant is not seeking to cover up their crime
were common errors.
A good answer to this question would…
discuss the following elements:
• Criminal homicide – constructive manslaughter preferred charge due to
absence of evidence of mens rea for murder.
• Constructive manslaughter.
• Defence of self-defence.
• Causation (e.g. Smith) and/or supposed corpse issue e.g. Thabo Meli/
Church.
Poor answers to this question…
left the majority of the question unanalysed preferring to concentrate on causation.
Student extract
What will be an issues here is the causal link between Jack's actions and the
death. As stated by the medical evidence, the first blow was unlikely to have
caused Asif’s death. But, the death was caused by the combined effect of all
the blows to the head Asif had suffered when Jack dragged him upstairs and
Piotr’s accidental fall. We will deal with Piotr later. To be a factual cause of
the death it is enough for Jack to accelerate the process of Arif's dying
(Dyson). Jack's hitting Asif’s head several times on the stairs can be said to
be the act that contributed to the death. To be the legal cause Jack's actions
need not be the sole cause of the death. As identified in Smith and proved by
the medical report, Jack's contribution was still an operating and a substantial
cause at the moment of death. Dalloway is an authority for the proposition
that Jack would be responsible for Asif's death only if the death could have
been avoided by the proper dragging up the stairs. Smith suggests that Jack
will not be liable only if the second cause, here - Piotr's actions, is so

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 overwhelming as to make the original harm only ‘a part of the history’. Since
the medical evidence said that the cause of death is the combined effect of
both men's actions, it is unlikely that Piotr's conduct will break the chain of
causation and be the novus actus interveniens. Still, it is worth discussing.
The general rule is that an independent voluntary act or an abnormal event
sufficient in itself to cause the harm can be used to ignore the defendant's
cause of harm. Piotr, as a part of the ambulance team, did not get the chance
to start any medical treatment. Therefore, the cases of proper medical
response, in accordance with the clinical practice where this treatment does
not break the chain of causation (Malcherek, Smith, Cheshire and Jordan),
are not relevant. Piotr's fall onto Asif is rather a simple third party intervention,
which could break the chain of causation (but did not), because it was not
reasonably foreseeable (Environment Agency v Empress Car), but did make
a substantial difference in the victim's condition. However, here both Jack's
and Piotr's actions were the causes of death.
Comments on extract
This extract shows a sound understanding of many points at issue relating to
causation. It also shows a good knowledge of the case law and how it fits together.
What is missing here is a recognition that there is an issue relating to the supposed
corpse cases, namely, whether, in cases where the defendant manages to cause
death to a person they wrongly think they have already killed, it is possible to argue
that there is no coincidence of actus reus and mens rea. All the cases in point
involve defendants trying to cover up their crimes. In LeBrun it was said that the
chain of causation is not broken by a defendant who accelerates death by an act
intended ‘to enable the defendant to avoid liability’, i.e. intended for concealment.
Here, there is no such intention and so it might well be argued that the chain of
causation is broken and that Thabo Meli, Church, etc. can be distinguished. It is
only an argument but very good answers will address it.
Question 5
Tahir and Winny are actors, who have fallen in love on set while shooting
their latest film. They decide to kill Haris, Winny’s husband, who is hated by
all the other actors. Haris’s screen role is as a dangerous gangster who is
shot dead by Winny, a police officer, at the end of the first reel. Tahir’s and
Winny’s plan is for Winny to shoot Haris with the props gun, having first
substituted live ammunition for the blank cartridges the props gun is
supposed to carry. The shooting will thus appear to be a tragic accident,
rather than a deliberate killing. They tell their plans to their fellow actors Zak,
Indira and James. Indira is secretly pleased but says nothing. Zak, on the
other hand, says, ‘Oh goody. Haris deserves all he gets’. James tells Tahir
and Winny where they can buy live ammunition. Winny and Tahir decide,
however, to go to a different ammunition supplier than that suggested by
James. They choose Theo’s gun shop, and ask Theo for a round of
ammunition. While Theo is out of the room, he hears Winny and Tahir discuss
the full details of their plan but nevertheless supplies the ammunition, so as
not to lose a sale. On the day of the killing, Yan, the props manager, loads the
props gun with the live ammunition, not knowing it has been substituted for
the blank cartridges. When rehearsals start Winny takes the gun and aims it
at Haris, as the script requires, and pulls the trigger. Haris is shot dead.
Discuss the possible criminal liability for Tahir, Winny, Zak, Indira, James,
Theo and Yan.

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 Examiners’ reports 2023

General remarks
This question interrogates your knowledge and understanding of the elements of
accessoryship.
Law cases, reports and other references the examiners would expect you to use
As below.
Common errors
Lack of balance between the different issues raised by the question was a common
error.
A good answer to this question would
Address the question as follows:
• Substantive crime – murder. Principal is Winny – mens rea and actus reus are
satisfied.
Accessories
• Tahir – he intended to help and encourage Winny to commit murder.
• Zak – he intended to help and encourage Winny to commit murder, e.g.
Giannetto.
• James – he intended to help Winny to commit murder. Lack of causal effect is
not fatal, e.g. Calhaem.
• Theo – he intended to help Winny to commit murder. Purpose is not necessary
e.g. NCB v Gamble.
• Yan – not an accessory as he does not know the facts essential for the
occurrence of the offence, e.g. Johnson v Youden.
• Indira – not an accessory as she gives no assistance or encouragement, e.g.
Clarkson.
Poor answers to this question…
showed little understanding of the law of accessoryship.
Question 6
(a) With reference to both case and statute law, explain and discuss the
meaning of appropriation for the purpose of the Theft Act 1968.
(b) D takes his car to a garage for a service. When he goes to collect the
car he finds the car on the forecourt with the door open and the key in
the ignition. He waits for 30 minutes and, when nobody arrives, and
annoyed that his car has been so carelessly exposed to theft, he
decides to drive the car away and not pay for the service. In fact, the
car had not yet been serviced.
Advise D.
General remarks
Part (a) is self-explanatory and requires discussion of s.3 and its application in the
case law. Part (b) requires discussion of s.5 – belonging to another and its
application in the case law. Also dishonesty.
Law cases, reports and other references the examiners would expect you to use
As below.

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Common errors
Many students did not go beyond the question of appropriation and consent in part
(a) and did not interrogate s.3 itself. In part (b), too many students did not consider
in sufficient detail dishonesty given the facts of the question.
A good answer to this question would…
Part (a)
• identify the offence (theft) of which appropriation is an element. Explain how
appropriation forms part of the actus reus
• explain and discuss how s.3(1) defines appropriation far more broadly than
taking, including the case of coming by property innocently
• give examples of appropriations – indicative cases are Pitham and Heyl,
Morris, Chan Man Sin v AG for Hong Kong
• explain the relevance of transferor's consent – indicative cases are Morris,
Lawrence, Gomez, Hinks
• discuss decision in and problem posed by Hinks
• consider whether an act is necessary. Can one appropriate by omission?
Part (b)
The question is largely concerned with property belonging to another and whether
the context – no work done so no bailment – and no obvious control (s.5(1) means
the property does not belong to the garage for the purpose of s.1, e.g. Turner cf.
Meredith). Liability would, in any event, depend upon a finding of dishonesty.
Question 7
Outline and discuss the law of criminal attempts.
Common errors
Lack of balance between the actus reus and mens rea elements and failure to
address other issues, e.g. impossibility were common errors.
A good answer to this question would…
include the following:
• 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.
• On mens rea, in addition to Whybrow on attempted murder, some mention
should have been made of the problems surrounding attempting an
offence, whose mens rea elements include recklessness as to

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 Examiners’ reports 2023

circumstances (Wilson 18.5.B2) (e.g. Khan, Pace). Finally, there should be

some discussion of impossible attempts, e.g. Shivpuri, Anderton v Ryan
and those grey areas that might still remain, such as that in Study task 5 in
Topic 15 of the module. Very good answers may have considered the
reform proposals of Law Commission – see the discussion in Wilson
18.5.A1.
Poor answers to this question…
tended to consider only the actus reus of attempts.

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