Examiners’ reports 2017

Examiners’ reports 2017

LA1010 Criminal law – Zone A

Introduction
As in previous years, the examiners attempt to make the examination as
straightforward to pass as possible for those who are prepared to put in the hours of
study and revision. Your module guide joins together with your textbook,
consolidated by the activities appearing in each chapter. These activities direct you
to sections of the textbook. If you now go through the examination paper below with
your module guide open you will see that everything you need to answer the
questions is there. For example, look at Question 6 and turn to your module guide,
12.1.4, the associated Activity 12.13 and the summary, and the references made
to the textbook to help you solve the activity. If you do this, you will have all the
information, knowledge and understanding to get a very good mark indeed! You will
see, for example, that the activity directs you to 14.2.B.1 Wilson, which answers
much of the question for you! Indeed Case 19 is essentially part (b) of Question 6.
Make life and study easy for yourself: follow the advice and structure your study
around the module guide and the textbook.

Comments on specific questions

PART A – multiple choice examination

Feedback on the multiple choice exam is provided on pages 14-15 of this report.

PART B – problem/essay question examination

Question 1
Rita is Henry’s 14-year-old sister who is in love with Fred. Rita asks Fred to
carve the letter ‘F’ on to her arm using a penknife. Fred does not want to do
this but reluctantly agrees when Rita tells Fred that she will end the
relationship if he does not. The wound is not serious, although it does require
three stitches. Henry is angry with Fred and they decide to settle their
differences by having a fight. Fred punches Henry, knocking him over and
causing him to fracture his wrist.
As Fred is making his way home, a beggar, Toni, who is carrying a baby in
her arms, approaches him and asks him for money. Fred, who is still angry
after the fight, raises his hand in a threatening way. In trying to protect herself
and the baby, Toni accidentally drops the baby which bruises it slightly.

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The police are called. PC Dibble tries to arrest Fred but Fred pushes PC
Dibble in an attempt to get away, causing PC Dibble to fall to the ground
suffering serious cuts to his arm.
Discuss the possible criminal liability of Fred.
General remarks
This is a straightforward question on offences against the person. It incorporates
elements relating to common assault and ss.47, 20 and 18 of the Offences Against
the Person Act. It involves issues of consent, including capacity and the
circumstances under which acts of violence can be consented to.
Law cases, reports and other references the examiners would expect you to use
Offences Against the Person Act 1861, Eisenhower (1984), Bollom (2003), Savage
(1992), Mowatt (1968), Burrell v Harmer (1967), Brown (1993), Donovan (1934),
Wilson (1997), A-G Reference (No 6 of 1980) (1981).
Common errors
Very few students considered Rita’s capacity to give consent in the light of Burrell v
Harmer. Although most students identified the issues relating to consenting to
physical harm, relatively few showed themselves comfortable with the case law.
There are a number of cases that were relevant, not simply Brown!
A good answer to this question would…
deal with the different scenarios separately as follows.
The tattoo – s.20 (alternative offence s.47)
Issues
 Is there a wound/ABH? E.g. Moriarty v Brooks, Mcloughlin, Eisenhower.
 If there is a wound/ABH, is there valid consent? Vitiating factors include
Rita’s age, e.g. Burrell v Harmer and the fact that ABH cannot normally be
consented to (e.g. Donovan, Brown). The counter-argument is the context
that includes the absence of hostile intent, e.g. Jones, Aitken and privacy
e.g. Wilson.

You would not be penalised for dealing with s.47 to the exclusion of s.20 so long as
you made clear that s.20 could be charged because of the wound.

The punch – s.47 (alternative offence s.20)

Issues
 Is there ABH/GBH? E.g. Miller, Donovan, Janjua, Bollom.
 Is it caused/ inflicted? E.g. Roberts, Burstow.
 Is it necessary for either offence for Fred to intend of foresee harm/serious
harm to Henry? E.g. Roberts, Savage, Mowatt.
 If there is ABH/GBH, is there valid consent? Vitiating factors include the fact
that ABH cannot normally be consented to (e.g. A-G Ref (1981). r
Note the use of different authorities re consent to that considered above in relation
to the tattoo.

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Toni’s fright
Common assault. There are no significant issues here. The elements of psychic
assault are threat and intention or foresight as to the apprehension experienced by
the victim, e.g. Venna, Stephens v Myers.
The baby (s.47)
Issues
 Is slight bruising ABH? E.g. Miller, Donovan.
 Did the assault on Toni cause the baby’s ABH? E.g. Roberts.
 Is foresight necessary? E.g. Roberts.
 Does s.47 require the act to be directed against the victim? E.g. Haystead.
Officer Dibble s.18/s.20 (alternative offence s.47)
Issues
 Were the serious cuts inflicted/caused? E.g. Roberts, Wilson.
 Do serious cuts amount to a wound/GBH/ABH?
 Were the injuries accompanied by mens rea? Mowatt for s.20. Section 18
requires simply an intention to resist arrest and so the issue arising in
relation to s.18 is whether Fred was acting in lawful self-defence.
Poor answers to this question…
Ignored the main issues, particularly consent, and many students made the classic
error of discounting s.20 in relation to the carving on the ground that the wound was
insufficiently serious to count as GBH.
Student extract
Fred could potentially be liable for section 20 OAPA 1861 (malicious
wounding). Fred wounded Rita (a wound which penetrated both layers of skin
and which required stitches) inflicting grievous bodily harm with the use of a
weapon, in this instance a penknife. However, in the alternative, as Rita’s
wound is not serious Fred may face criminal liability under section 47 OAPA
1861, being assault occasioning actual bodily harm. The harm that Rita has
suffered has potentially interfered with her health and comfort but is more
than merely trifling and transient. If Fred was successfully convicted of a
section 47 offence he could be imprisoned for a term not exceeding five
years. However Fred may have a potential defence of consent by Rita. It was
at the request of Rita that Fred carved his initials on her arm. Furthermore the
carving could fall under the exception of tattooing and other body alterations.
Comments on extract
This is generally sound – it is structured logically – but contains one bad error,
namely the implication that a wound is synonymous with grievous bodily harm. It is
not and this point is emphasised at 9.1.1 of the module guide and Wilson 11.2. A
1(a). There is no value in saying what the maximum prison term is. The discussion
of consent is sound but entirely lacking in case law and discussion. If you read 9.2.4
of the module guide, you will see all the authorities and also Illustration 9.5, which
is pertinent in this question.
Question 2
a) John went to stay with his friend Luke. One evening Luke cooked a
special dish of mussels and prawns for John. Later that evening
John began to vomit due to an allergic reaction to the mussels.
Luke put John to bed hoping that a good sleep would aid his

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 recovery. When Luke tried to wake John the next morning John was
in a coma. Luke did not realise this and so did not call the
ambulance. When, a few hours later, Luke finally realised that
something was seriously wrong with John he called for an
ambulance. John died on the way to hospital.
Consider Luke’s possible criminal liability for gross negligence
manslaughter.
b) Imran and Ed, who were both in love with the same woman, had an
argument. In the course of the argument Ed pushed Imran hard.
Imran responded by pushing Ed equally hard. Ed fell over, cutting
his arm badly. Imran tried to stop the bleeding with a handkerchief
but was unable to do so because Ed was a haemophiliac which
meant that his blood would not clot. Imran took Ed to the hospital
but got stuck in traffic. By the time he had arrived at hospital Ed had
died of blood loss.
Consider Imran’s possible liability for constructive manslaughter.
General remarks
Part (a) was a straightforward question on gross negligence manslaughter, made
particularly easy by the fact that the question directs you straight there. Everything
you need to know was on the last three pages of Chapter 7 of the module guide and
13.7 of Wilson. Many students did not seem to have read (or understood) either.
Law cases, reports and other references the examiners would expect you to use
Adomako (1995), Miller (1983), Evans (2009), Instan (1893).
Common errors
Many students dealt with this as a question simply on omissions and were unable or
unwilling to talk about the elements of gross negligence manslaughter. You should
have considered separately whether there could be liability based on Luke’s act
(cooking a meal). Many students strangely concluded that this was a possibility
since Luke should have inquired about the possibility of John having an allergy!
Those who dealt with gross negligence manslaughter did not seem to be up to
speed on the elements as stated in Adomako. Very few had learned Lord Mackay’s
statement and very few apparently had taken seriously the “Am I ready to move
on?’ part of Chapter 7.
A good answer to this question would…
analyse the various issues in the question separately as follows.
The offence: gross negligence manslaughter
Having concluded that liability based upon a negligent act was a non-starter you
should have explored the possibility of liability based on the omission. You should
have started by identifying the elements of the offence by reference to Adomako.
Issues
 Is there a duty? If so, what is it based upon?
 If the duty is based on Miller or Evans, is it appropriate to find that Luke has
created or contributed ‘to a danger’. If it is not, are there grounds for
extending the duty to cover accidental involvement in the coming about of a
dangerous state of affairs?
 If the duty is based upon the assumption of responsibility, is the putting of
John to bed sufficient to raise this assumption?

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 If the duty is established, is his failure to check the seriousness of John’s

condition immediately on failing to wake him a gross breach of duty within
the meaning Adomako, including the risk of death requirement? This is
what Lord Mackay said:
[Responsibility] will depend on the seriousness of the breach of duty
committed by the defendant in all the circumstances in which the defendant
was placed when the breach occurred...The jury must consider whether,
having regard to the risk of death involved, the conduct of the defendant
was so bad in all the circumstances as to amount in their judgement to a
criminal act or omission. (Adomako per Lord Mackay).
 In the light of this statement, you should have considered whether Luke’s
failure to recognise the seriousness of the situation was ‘having regard to
the risk of death involved, the conduct of the defendant was so bad in all
the circumstances, etc.’ or was it simply routine negligence based on
understandable lack of appreciation of the dangers of allergies and their
aftermath?
Poor answers to this question…
often ignored the instruction to limit the discussion to the offence of gross
negligence manslaughter. An alarming number of students thought friendship was
enough to raise a special relationship. The main weakness displayed, however, was
ignorance of the elements of gross negligence manslaughter.
Question 3
To what extent have the statutory definition of consent in section 74 of the
Sexual Offences Act 2003 and the presumptions contained in sections 75 and
76 eased the burden of prosecution and the vulnerability of rape victims to
intrusive court procedures?
General remarks
This was a question that asked you to consider the policy behind the 2003 Act and
how effective it has been in delivering that policy. This was outlined in the module
guide at 8.3 and Wilson 12.7. It was not simply designed for you to regurgitate all
you have learned about ss.74, 75 and 76. The overall message you should have
been pursuing is that being the chief prosecution witness (i.e. the rape victim) in a
rape case is a harrowing affair, which discouraged victims from reporting acts of
sexual violence and/or pursuing them in court. Section 75 in particular was
designed to ensure that the defendant could no longer rely on the prosecution’s
usual burden to prove subjective fault (Morgan (1975)) and absence of consent
beyond reasonable doubt. A key part of this therefore was to explain exactly what
‘the burden of prosecution and the vulnerability of rape victims to intrusive court
procedures’ means (module guide at 8.3).
Law cases, reports and other references the examiners would expect you to use
See below.
Common errors
Too many candidates simply described rather than analysed the law. Many
students were content to outline the provisions of ss.74, 75 and 76 without
explaining the extent to which they were useful in achieving the goal referred to in
the question.

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A good answer to this question would…
explain exactly what ‘the burden of prosecution and the vulnerability of rape victims
to intrusive court procedures’ means (module guide at 8.3).
Your essay should therefore have contained the following.
 Discussion of the presumptions and how they are designed to relieve the
victim from having to give evidence and suffer cross examination in cases
where it is obvious that consent was not forthcoming.
 Discussion of how these changes have had the beneficial effect of
encouraging more victims of rape to go to court.
 Discussion of the meaning and application of s.74 as compared with e.g.
Olugboja, R v Ali and Ashraf, unreported, July 17, 2015, CA.
 Discussion of the problems posed for s.74 by deception e.g. B (2006) and
intoxication, e.g. Kamki, Bree and Assange. Here at least the victim
continues to have a key and problematic court role.
 Discussion of the relationship between ss.74, 75 and 76, e.g. Jheeta,
Cicciarelli and Devonald.
 Discussion of the importance of ss.75 and 76 for non-invasive proof of fault
as compared with Morgan.
 Discussion of the role of the judge in removing questions from the jury, e.g.
Ciccarelli supporting the interests of the victim where the defence case
relies on consent and belief is flimsy.
Poor answers to this question…
tended to ignore the question and simply talked about the actus reus and mens rea
and the coverage of ss.74, 75 and 76.
Question 4
EITHER
a) Compare and contrast duress, self-defence and necessity.
OR
b) Explain and discuss the partial defences of loss of control and
diminished responsibility.
Law cases, reports and other references the examiners would expect you to use
See below.
A good answer to this question would…
include some of the following elements. As there is a lot in this, a student would not
be expected to cover more than a few of the points below to get a good mark.
(a) Compare and contrast duress, self-defence and necessity
Description and exposition of the three defences, including definitions
statutory/case law definitions (e.g. Criminal Justice and Immigration Act 2008,
Hasan, Palmer, Owino, Williams, Martin, Re A (conjoined twins), Re F and
Bournewood).
Mention should be made of the wider realms of private defence, e.g. force used in
prevention of crime, the two forms of duress and the corresponding justificatory and
excuse forms of necessity.

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Comparing
 These are all affirmative defences. These defences negate liability although
all the definitional elements of the offence are present.
 In each case the claim to avoid liability is generally (not always, see Re F
for necessity) that the action undertaken by the defendant was reasonably
necessary to avoid the unjust threat of harm.
 Both self-defence and necessity are justifications, i.e. denials of
wrongdoing. Duress is an excuse, i.e. a denial of fault.
 Both self-defence and duress involve action taken because of the unjust
threat of harm.
 Both duress (of circumstances) and necessity have degrees of overlap,
which may be important where the preventive action taken involves an
intentional killing (not a defence to duress but maybe to necessity) e.g. the
9/11 terrorist plane scenario.
Contrasting
 Each defence can be differentiated, however. In duress, the claim to be
excused is that it is unfair to expect a person to sacrifice themselves, or a
person to whom they are connected, for the sake of conformity to the law,
even where this involves the victimisation of another innocent person. Such
action is excused because it is necessary from the actor’s own quite
reasonable point of view.
 In necessity, the claim is that it advances society’s purposes if a person
breaks the law in furtherance of a greater good. Such action is therefore
justified because the action is necessary from society’s, rather than the
individual’s, point of view.
 In self-defence, the claim is that it socially permissible to defend oneself or
others against someone who launches an unjust attack. Such action is
justified because society is organised upon the premise that those who
attack other people forfeit their right to state protection, as against those
they attack. The conjoined twins case therefore is a case of necessity not
self-defence.
 Duress requires threat of death or serious injury. Self-defence and
necessity do not.
 Self-defence is only a defence to crimes involving the use of force.
Speeding on a road in order to escape the threat of tailgating is therefore a
case of duress of circumstances/necessity not self-defence.
Duress, unlike self-defence and necessity, is not a defence to murder.
General remarks
This is a straightforward question, which requires little more than you knowing and
understanding the respective coverage of the defences and identifying the issues
and points of discussion that both involve.
Law cases, reports and other references the examiners would expect you to use
See below.

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Common errors
A large number of candidates concentrated on loss of control to the exclusion of
diminished responsibility. Others spent too much time talking about the old law of
provocation in isolation from loss of control.
A good answer to this question would…
contain a definition and explanation of both defences, including a reference to the
Coroners and Justice Act and what it replaced (module guide, 7.3.2 and 7.3.9;
Wilson 13.5 and 13.6). Some of the following elements should be mentioned.
 They both mitigate the mandatory life sentence.
 They are partial defences (only) to murder.
 Both require a causal trigger.
 Loss of self-control must be justifiable and consistent with what can be
expected of ordinary people. E.g. Bowyer (2013).
 The fact that a thing done or said constituted sexual infidelity is to be
disregarded for the purpose of loss of control. The fact that the trigger
involved an allegation of sexual infidelity does not deprive the defendant
from relying on other related triggers. E.g. Clinton (2012); cf. Dawes and
Hatter (2013).
 The effect of both is to reduce the defendant’s responsibility for an
intentional killing rather than to negate their mens rea.
 Neither is available if the trigger for the killing involves intoxication, e.g.
Dowds (2012), Dietschman (2003) and Asmelash (2013).
 Diminished responsibility – the causal trigger is internal (mental
abnormality). With loss of self-control, it is external (words or deeds), e.g.
Acott.
 Diminished responsibility may be relied upon even where there is no loss of
self-control so long as the mental abnormality played a part in the killing.
The meaning of ‘substantial’ as in ‘substantially impaired’ was clarified in
Golds (2014).
 Diminished responsibility is a mental condition defence. Loss of self-control,
by contrast, cannot be relied upon where the loss of self-control is due to
the defendant lacking the ordinary person’s powers of self-control.
 With diminished responsibility, the burden of proof is on the defendant.
 For the purposes of subsection (1)(a), it does not matter whether or not the
loss of control was sudden. Cf. Duffy and Ahluwalia.
 Role of judge and jury – repeal of s.3 of the Homicide Act 1957 (questions
of provocation to be left to the jury).
These are indicative points only. Students were not expected to deal
comprehensively with the defences to gain a good mark but general understanding
should be shown and credit was, as usual, given for any points made not covered
above.
Poor answers to this question…
confused the elements of loss of control with automatism and/or diminished
responsibility with insanity showing a general lack of understanding about all of
these defences!

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Student extract
4(b)
Murder is defined by Coke LJ as the unlawful killing of a reasonable creature
in being under the Queens Peace. (There are two partial defences available,
namely loss of control and diminished responsibility.) The effect of
successfully raising these defences is that the criminal liability of the
defendant is reduced to one of voluntary manslaughter rather than murder.
However success depends upon whether the requirements of the defences
are fulfilled.
Firstly, according to the Coroners and Justice Act 2009, in order to raise the
defence of loss of control, the defendant has to show that one of the
qualifying triggers provided in section 55 are present. There are two
qualifying triggers which can be raised to explain the loss of control/the first is
a fear of serious violence being inflicted on the defendant. In the case of R v
Ahluwalia (1992) this notion was encapsulated. [The candidate gives facts of
Ahluwalia.] …In raising the defence of loss of control the court considered
whether it was reasonable for her to be fearful of serious violence being
inflicted on her. As such in raising such a defence the defendant would have
to generally substantiate the reasonableness in their fear of serious violence
which caused them to lose control.
The second trigger which can be raised is that something said or done of an
extremely grave character which caused the defendant to lose control. One
of the major questions for the court with this partial defence is whether the
circumstance was sufficiently grave to amount to a trigger. For example in R
v Dawes and Hatter.
Comments on extract
The first paragraph is good. It deals in logical fashion with the area of law under
consideration. The second is not as good since it appears to suggest that Ahluwalia
was decided on the basis of the first trigger. It was not. Indeed, the defence of
provocation (the precursor to loss of control) failed. Mrs Ahluwalia was forced to rely
on diminished responsibility. This is an example of a candidate who has read the
module guide without reference to the accompanying text in Wilson (13.5.A 2.) As a
result, the candidate did not know what Ahluwalia was an authority for. What the
candidate could have said was that the general scenario, if it were decided today,
could be presented as a case of loss of control relying on the first trigger, although
there would still be a question as to whether she did in fact lose control. The last
sentence of this paragraph is defective in that it implies that the burden of proof is
on the defendant. It is not. If the judge considers that the evidence supports the
defendant’s claim that he/she might have lost control due to the fear of serious
violence, it is the prosecution’s job to convince the jury that this did not occur. The
final paragraph starts promisingly.
Question 5
‘The effect of R v Jogee (2016) on the law of joint enterprise is more apparent
than real.’
Discuss.
General remarks
This was a question you should have been able to do with your eyes closed if you
had read up on the numerous blogs, newsletters and updates that I have sent out
about the case. It required you simply to explain what the law used to be as in
Powell and English, what it became as in Jogee and what the real difference

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between the two approaches to joint enterprise is and whether it is likely to make a
big difference to the way cases are dealt with by the prosecution and the courts.
Law cases, reports and other references the examiners would expect you to use
See below.
A good answer to this question would…
briefly explain the pre-Jogee law of joint enterprise and how it was applied in Chan
Wing Siu and Powell and the problems it created. A number of recent blogs and the
Pre-exam update summarise this and the effect of Jogee. What follows is an edited
version of those materials.
Until 2016 the basis of liability for those involved in a joint enterprise differed
significantly from that of accessoryship generally. In the specific context of
murder, for example, to be guilty as an accessory to murder the prosecution
had to show that the secondary party intended to assist or encourage the
principal to commit murder, which is to kill with the intention to kill or cause
serious injury. So, in an example given in the case of Gamble v NCB, a
person who supplies a gun to another who then uses it to commit murder will
only be guilty of murder as accessory if they intended, by that act of supply,
to assist or encourage the commission of murder. This ‘intention’ does not
require them to desire that this offence be committed. It is enough that they
know for certain that he will do so. This standard basis for liability did not
apply in cases of joint enterprise, that is, in cases where, unlike our gun
supplier, the parties involved were part of a gang bent on committing an
offence. In cases of joint enterprise, for example a burglary, or a punch up at
a football match, all parties to the joint enterprise were not only guilty of
burglary (or assault) but also any other crime committed by any of them
which they contemplated one of their number might commit. It was not
necessary for them to desire this or know it for certain. So if A, B and C
decide that B and C will commit the burglary and A will dispose of the
proceeds and in the course of that burglary C kills V, a householder, with a
gun supplied by D and which A and B knew he was carrying A and B will be
complicit in the murder simply upon proof that they contemplated that C might
kill someone in the course of the burglary with the mens rea for murder. The
fact that A and B knew that C was carrying the gun would be strong evidence
of this contemplation (Chan Wing Siu/Powell). D on the other hand, would
only be guilty if he knew that C’s purpose was to kill or cause serious injury
(Gamble) and gave his assistance or encouragement with that knowledge.
The importance of Jogee is that it abolishes the rule that as a matter of law,
in joint enterprise cases, the basis of liability is contemplation rather than
intention. Post Jogee the prosecution will only succeed with a conviction for
murder of A and B if, in addition to knowing that C had the gun, A and B
intended to help or encourage C to use it to kill or cause serious injury or to
do so if it became necessary. In effect, A and B intended C to use it if it
became necessary. In other words the fault element in joint enterprise liability
is now directly comparable to that for accessoryship generally. The
prosecution have to prove the same fault element for D, A and B.
A number of commentators have argued that the change may be more
apparent than real. To explain, Jogee changes what used to be a rule of law
to a rule of evidence. If A and B contemplate that C may use the gun to kill V
and yet carried on with the burglary this does not mean that A and B are
guilty of murder as matter of law. However, it is evidence from which the jury
may infer that A and B intended C to use the gun or intended it if it became
necessary. It is very important therefore for trial judges to direct the jury

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properly to ensure that it understands that it is looking for intention rather

than mere contemplation. Otherwise the practical effect of Jogee will be
marginal. How would such a direction look? In Woollin the House of Lords
said that a jury, if not sure that D desired the consequence for its own sake,
could still infer the requisite intention if it was foreseen as virtually certain. In
the case of accessoryship there is however a qualification, namely the case
of conditional intention. It is very unlikely that the parties to a joint enterprise
will agree all the contingencies in advance but it may well be that it is
understood by them that if worse comes to worse one of their number will use
murderous force to effect the plan or to escape. This conditional intention
suffices for liability in cases of joint enterprise. It would have been more
satisfactory if the Supreme Court had made clear how exactly the jury could
infer intention of either sorts from contemplation. Exactly what degree of
foresight provides good evidence of intention?
(D Ormerod and K Laird ‘Jogee: not the end of a legal saga but the start of
one?’ [2016] Crim LR 539.)
As applied to our burglary case, the jury might be given a jury direction
something like this if Woollin is to be applied, as it should be applied, to
cases of joint enterprise:
‘members of the jury for A and B to be guilty of murder as accessories you
must be sure that they intended C to kill V or intended C to cause V serious
injury or to do so if it became necessary. If you think that they knew C was
likely to use the gun in these circumstances and yet carried on regardless
then this might mean that they intended this possible outcome. But you will
have to be sure that this was indeed their intention. Contemplation alone is
not enough but obviously the greater level of risk the defendant foresaw the
more likely it is that he actually intended it to happen. On the other hand, you
have been told that they knew C had the gun but did not approve its potential
use. If you think that this may have been the case then you must acquit of
murder as accessories unless you feel sure that, whatever they may have
desired, they still knew it was virtually certain that V would use the gun in this
way if it became necessary. If you are not sure that they had this knowledge
or intention but you are sure that they contemplated the strong possibility that
this gun might be put to murderous use then you should bring in a verdict of
manslaughter rather than murder.‘
Instead of quashing Jogee’s conviction the Supreme Court, as they were
bound to given the seriousness of the case and the undeniable participation
of Jogee in the attack which resulted in the killing, ordered a retrial. That
retrial occurred in 2016 at Nottingham Crown Court. The case for the
prosecution was that the principal, Mohammed Hirsi had fatally stabbed a
police officer after an altercation and Jogee had encouraged the attack by
‘egging him on’. The jury found Jogee not guilty of murder but guilty of
manslaughter. As the trial judge explained, this meant that the jury found that
Jogee did not intend Hirsi to kill or cause serious injury to the police officer
but did intend him to launch the attack and cause him some injury, albeit not
serious injury. His life term was replaced by a sentence of 12 years. This
verdict and the reasons for it is likely to set the basic template for cases such
as this when, as violent arguments involving multiple parties are wont to, the
argument escalates into murderous violence.
Since the Supreme Court decision and the retrial, however, a number of
appeals have been lodged by prisoners convicted of murder on the basis of
the Chan Wing Siu/Powell joint enterprise principle. Significantly these have
been unsuccessful, perhaps supporting the ‘more apparent than real claim’.

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 The latest, R v Johnson and Others and other cases (2016), explains the
reason for this. An appeal based on a post-conviction change in the law will
only be successful if that conviction was ‘unsafe’ (s.2 Criminal Appeal Act
1968). It would not be unsafe if, for example, on the proven facts the jury
would be unlikely to have reached a different verdict had the original trial
judge directed it in accordance with the changed law. Given, as explained
above, that Jogee replaces a rule of law (contemplation is culpability) with a
rule of evidence (contemplation is evidence of intention/culpability) it is not
surprising the Court of Appeal were not inclined to quash the convictions. The
average jury person will not take much convincing that a person who robs a
bank with a person who he knows is carrying a lethal weapon and may use it,
actually intended (directly or indirectly) it to be used if the occasion arose.
This does not mean of course that the law has not changed. It means rather
that compared with the previous law, it will just be a little less easy for the
prosecution to gain a conviction on the basis of foresight.
Poor answers to this question…
were unclear about the effect of Jogee and many were also unclear about the
law that preceded it.
Question 6
a) Explain and discuss the meaning of ‘intention to permanently
deprive’ for the purpose of the law of theft.
b) Henrik and Sergio are golfing rivals. Sergio has never won a major
championship. Henrik wins them all the time. On the eve of the
Open Championship, Sergio removes Henrik’s putter (a type of golf
club) from Henrik’s bag and hides it. He knows that Henrik will find
it difficult to win using a new putter. He is right. Henrik is forced to
buy a new putter when he discovers his loss and putts badly
throughout the tournament. He comes second and Sergio wins.
Sergio then returns the putter as he had always intended.
Discuss.
General remarks
This question was generally done very badly. I was particularly disappointed that so
few of you took notice of how, in the last three examiner’s reports, I have told you
how crucial it is to base your studies and your revision around the module guide and
the corresponding pages in Wilson. If you had done so, you would have seen that,
simply by reading the section on intention to permanently deprive, together with doing
Activity 12.13, which refers to Wilson 14.2 B.1, you would have everything you
needed to answer this question extremely well. Part (a) of the question could have
been answered simply by learning the relevant part of the module guide. Part (b) of
the question is covered at Case 19 Wilson 14.2 B.1 and is effectively identical. Either
you are not using the module guide and your textbook as you should or you are
‘question spotting’ (a very dangerous strategy).
Common errors
Too many candidates spent their time talking about theft generally in part (a). You
would have received little credit for this. The question asks you only about intention.
In Part (b), any time spent talking about appropriation, property, belonging to
another and dishonesty other than a brief mention that they are not at issue, would
have taken time properly spent on the major issue, namely whether s.6 applies or
whether this is to be treated like Lloyd (1985). Another common error was for
candidates to write out verbatim the words of the statute for which you would get no
credit as you have the statute book with you!

12
 Examiners’ reports 2017

A good answer to this question would…

in part (a) explain the general principle, i.e. mere borrowing is not theft however
dishonest the taking is, and however valuable the item. This is a mens rea rather
than an actus reus element. Intention includes conditional intention; e.g. Easom and
A-G Reference (Nos 1 and 2 of 1979).
Reference should be made to the special case of fungibles such as money, food,
drink, e.g. Velumyl.
Reference should be made to s.6(1) and 6(2) of the Theft Act and their effect, i.e.
ransom and exhaust of value cases, e.g. Coffey, Marshall, Lavender and Lloyd.
In part (b) there should be a brief outline of the law and the main issue, namely
whether the facts disclose an intention to permanently deprive. Reference should
be made to s.6(1) and whether the context renders the taking equivalent to an
outright taking. The argument would be that the usefulness is not exhausted as per
Lloyd. Moreover, it is not a ransom case as the putter will be returned irrespective of
the outcome of the match. On the other hand, given the importance of the Open
Championship, it might be argued that there is no point having a favourite putter
unless it is there when you need it and so Lloyd is distinguishable. There may be
discussion of dishonesty. This is not an important issue but some credit would be
given for a brief reference to Ghosh.
Poor answers to this question…
showed no knowledge or understanding of the meaning and/or relevance of
intention to permanently deprive in part (a) and how it was the main, if not sole
issue in part (b).

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Multiple choice questions (MCQs)
The MCQs had a good range of marks ranging all the way through the grades from fails to
very good firsts. A broad range of marks is the sign of a successful assessment method.
MCQs have the ability to test real understanding as opposed to simple knowledge. Specific
feedback will not be given on the MCQ part of the examination since the value and
usefulness of the examination depends upon candidates coming to them ‘from scratch’. I will
however give you feedback to three of the questions to demonstrate how useful they are in
identifying those candidates who really know and understand their stuff!

Question 4

Which ONE of the following statements is the MOST ACCURATE statement of the legal
position regarding consent?

a. If A, knowing that he is HIV positive, has consensual intercourse with B, A

is guilty of inflicting grievous bodily harm if A communicates the virus to B,
irrespective of B’s consent.

b. If A, knowing that he is HIV positive, has consensual intercourse with B, A

is guilty of inflicting grievous bodily harm if A communicates the virus to B,
unless A informs B of his condition.

c. If A, knowing that he is HIV positive, has consensual intercourse with B, A

is guilty of inflicting grievous bodily harm if A communicates the virus to B,
unless B knows of A’s condition.

d. If A suspects that he may be HIV positive but does not know for sure A is
guilty of inflicting grievous bodily harm if he communicates the virus to B,
unless B also suspects that A may be HIV positive.

Chief Examiner’s comments

This question tests whether your knowledge of consent to physical harm is basic or deep.
Someone who has a basic knowledge will answer a. on the basis that Brown states that a
person cannot consent to physical harm for purposes of sexual gratification. Someone who
has a deeper knowledge will know that sexual intercourse does not become unlawful simply
because a person knowingly transmits an STD. It only becomes unlawful if the victim does
not have informed consent so the answer is either b or c. The correct answer is of course c.
So long as B knows that A is HIV positive and consent with that knowledge it does not matter
how that knowledge comes about. (Wilson 11.4.A.2 (d) iii). You either know this or you don’t
and, if you do, it indicates that you did the right amount of work on this part of the syllabus,
worked for and used your reading material effectively.

Question 7

For the purpose of constructive manslaughter a dangerous act is one which carries, as
a minimum, an objective risk of (choose ONE):

a. Death.

b. Life threatening injury.

c. Serious injury.

d. Significant injury.
Chief Examiner’s comments
The correct answer is d. Anyone who got this wrong really does not understand how
constructive manslaughter is constructed. It requires proof of an unlawful and dangerous act
which causes death. Church (1967) tells us that ‘dangerous’ means, simply, an act which
reasonable people would understand to carry the risk of causing some harm however trivial.
Wilson 13.7.B.1 (b)). The words ‘as a minimum’ are key here as it shows the full extent of the
potential; coverage of this offence.

Question 10

Which of the following options BEST expresses the law as decided in Evans (2009)?

a. Where D has created or contributed to a dangerous state of affairs, D is

under a duty to act reasonably to remedy that state of affairs.

b. Where D is an occupier of premises in which a visitor falls seriously ill, D is

under a duty to seek medical attention.

c. Where D has voluntarily assumed the care of V, D is under a duty to act

reasonably to discharge that care.

d. Where D is a member of the close family of someone who falls seriously ill,
D is under a duty to seek medical attention for that seriously ill family
member.

Chief Examiner’s comments

Evans is a key case on liability for omissions and gross negligence manslaughter. It is a case
I would expect anyone, who expects to pass their exam, to know and understand thoroughly.
If you didn’t know it is because you did not do your activities, or do them properly, and did not
commit to memory one of the core principles governing liability for omissions and the
authority thereof. It is one of the subjects of Activity 3.5 in the Study Guide. The principle it
expounds is dealt with at 7.4.11. It is covered in depth at Wilson 13.7.C and Wilson 4.5.D.3.

If you found that you did better in the MCQ part of the exam than the problem/essay part of
the exam this possibly means that you need to improve your exam technique. If you did
better in the problem/essay part of the exam than the MCQ part of the exam this possibly
means that your level of knowledge/understanding is not as strong as your writing/discursive
ability.