Common faults in criminal law examination problems

Criminal Law stock photoBefore we begin on the newsletter ‘proper’ there are a couple of things which have been overlooked in the subject guide which I would like to warn you about both of which relate to chapter 11 ‘Sexual Offences’.
The first thing is the reference to the sexual offence of sexual assault in the Learning Outcomes at the bottom of page 142 of your subject guide. If you have read the syllabus – which you should have done by now – you will be aware that sexual assault is no longer on the syllabus. This error was overlooked at the editing stage of the subject guide and for that I apologise. Please ignore any references to the offence of sexual assault.
The second thing is not so much an error as a distinction between offences one of which is sexual assault. This statement is merely a distinction between offences which does not mean that sexual assault is an examinable offence. You will find this at the bottom of page 149 under the heading ‘The Meaning of Sexual’.
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Some of your lecturers will recently have attended a providers’ conference organised by the University of London. Unfortunately I was unable to be there to give a talk on answering criminal law examination problems so this newsletter will reflect what I would have said and I hope it is useful both for you and your lecturers.
The resit examinations have now been sat and marking is almost completed. Many of the papers demonstrate that, notwithstanding the advice given in the subject guide and on the VLE, that student do not really know how to deal with a problem question in criminal law. It really is worth teaching and learning this as early as possible in the criminal law course.
You do not need to come to a definite conclusion when dealing with a criminal law problem question.
This might be appropriate for some other subjects but it is not usually appropriate for criminal law problems. There is often insufficient information in the problem to enable you to say with absolute certainty that D is or is not guilty of a particular offence. Many students do not seem to be aware of this and try to come to a definite conclusion when it is impossible to do so – please see the manslaughter example in next month’s newsletter. So many students do this that I suspect some are being taught that this is the way to do it so it is important that you show this to your lecturers and my apologies to all of those lecturers who do not teach students to do this.
You don’t need to set everything out to the same extent in your answer. Some examples are given below of where this fault is most likely to occur.
When answering a theft question, students often seem to think that they need to go through sections 1-6 of the Theft Act is great depth when this is generally not necessary. What you should do is look carefully at the facts of the question to see which elements require an in-depth discussion.
For example, consider Activity 16.11 (d) on page 229 of your subject guide:-
Jane takes some paper and coloured pen from the stationery cupboard at work to give to her small children to draw pictures with. When caught by her boss she tells him that everyone takes things from the stationery cupboard as they consider it to be a perk of the job.
The activity itself requires you to consider whether Jane is dishonest but, imagine that it is part of a question in an examination. Here you would need to consider Jane’s liability for theft contrary to section 1 of the Theft Act 1968. If you look at section 1, you will see that the offence of theft consists of a number of elements all of which need to be proved by the prosecution in order to convict Jane but you would not need to go into all of them in great depth. The actus reus of theft is ‘appropriates property belonging to another’ (see section 1 and also sections 3, 4 and 5). What you should not do is spend ages on these issues – although you would deal with them briefly – as the facts of the question make it clear that these elements of the actus reus are established. Please don’t copy the whole of the relevant section(s) from your statute books as this will not gain you extra marks.
The mens rea for theft is dishonesty and intention to permanently deprive the other of [the property]. The facts of the question make it clear that Jane intends to permanently deprive her employer of the pen and paper so that leaves us with the issue of whether she was dishonest. This is the element which requires an in-depth discussion and, you will remember, this was the issue which the activity required you to consider and there is feedback on this issue on page 310 of your subject guide to point you in the right direction.
Homicide is an area where students often feel they need to go through all of the non-fatal offences against the person before they begin their discussion of murder and/or manslaughter. If the facts of the question tell you that one person does something to another which results in that other’s death then the examiner wants to know how you can deal with one or more of the homicide offences – not non-fatal offences. Remember, you only have about 40 minutes to answer a question and if you spend time working your way through all of the non-fatal offences before you get on to murder and/or manslaughter you will not have time to deal with it properly.
The issue of causation is frequently one that students spend too much time on. If there is a causation issue the facts of the question will make it clear but all too often when the facts are straightforward on this issue – for example Fred shot John and John died instantly – some students seem to feel that they need to go into factual and legal causation in great depth which is a complete waste of examination time. Be aware that, if we want you to examine the issue of causation, the facts of the question will make this clear. There will be an indication, perhaps the ambulance was delayed/crashed or the doctor or somebody else did something wrong or infected the victim but if you are told – without more – that the victim died as the result of the defendant’s conduct it is sufficient to merely state, when dealing with the actus reus of the offence, that the facts of the question make it clear that the defendant’s conduct was both the factual and legal cause of the victim’s death.