Some general guidance for tackling a criminal law problem question PDF

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Criminal Law

Some guidance for tackling a criminal law problem question

In Legal System and Reasoning you have been provided with a guide to answering legal problem questions which can be found in the LSR Blackboard site course content area. There was also a lecture on how to answer legal problem questions. The advice in the guide and in the lecture applies as much to criminal law as to the other subjects and you should study them closely and refer to them when working on tackling legal problem questions.

This short document aims to provide some advice as to how to apply the general problem question guidance to criminal law problems. You should use this along with the recorded presentations provided on tackling criminal law problems and, of course, the advice you receive in lectures and tutorials. Please note that this is a guide, there are many effective models for tackling problem questions in criminal law and there is not ‘one best way’. However, the same sorts of mistakes are made every year in tackling this type of question (e.g. poor analysis of facts, and little or no application of relevant law to the facts) and basing your approach to tackling a problem on a model like this should help minimise these kind of errors. The most important thing is to listen to the advice given in lectures, tutorials and in these materials and to practice!

General note of caution:

Give the advice that is asked for in the question!

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Be sure that you take note of what the question requires. If you are asked to consider the criminal liability of David and you discuss David and Ben, you will not get any credit for your discussion of Ben’s liability as it was not required. Equally, David may have committed many offences, but if you are asked to consider his liability for causing the death of Charles, you must restrict your answer to an analysis of homicide offences. Equally you may be asked to advise either the defendant or the prosecution. If you are asked to do so, you must give advice – it is not enough to ‘sit on the fence’.

1)

Read through the problem and analyse the facts.

Identify, in general terms, which offences and defences might apply to the events described.

2)

Break the problem’s facts down.

Break it down into a series of ‘events’ or ‘incidents’ in which a criminal offence potentially has been committed. List each factual ‘event’ you have identified as possibly amounting to a crime (or crimes) and analyse each ‘event’ in turn.

3)

Identify and name a possible offence.

For each event identify, and name, the offence that may have been committed. Where more than one offence may have been committed in a particular factual event then start with an analysis of the most serious and, where appropriate, work your way down the hierarchy of seriousness. So, for example, in the case of a factual incident

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where one person has harmed another, start with the most serious offence that could realistically have been committed (is there a dead body? Could it be murder? ) and work down through the hierarchy (No dead body but serious injury? Which non-fatal offence against the person?).

4)

State the source of the offence.

Is the offence contrary to common law or statute? If it is the latter, you must specify which statutory provision and provide an outline of its provisions – for example, ‘murder is a common law offence’ and ‘the defendant may be liable for theft contrary to s. 1 of the Theft Act 1968.

5)

Define the offence: Actus Reus and Mens Rea

You must give the legal definition of the offence and this should usually be separated into actus reus and mens rea elements. The definition will come from the wording of the statute and/or from leading court judgments considering the offence. You must provide a clear explanation of the offence in terms of its composite elements. You must refer to the statute or cases that provide your definition of the crime. You should be able to cite authority for each important element of the offence.

6)

Test whether the facts of the problem satisfy the legal definition of the offence and consider possible defences that arise on the facts

Application of the law to the facts is an essential element of a successful answer to a problem question. An abstract statement of the relevant law, however accurate, will

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receive a low mark. Don’t, for example, use an issue within a problem as a peg upon which to hang ‘everything I know about the law of murder’. As a lawyer, your client will not care about the evolution of the test of oblique intention, they will want to know whether the acts that they have committed satisfy the test thus rendering them liable for murder. You need to consider each element of the offence individually to determine whether the defendant is liable. You need to be able to demonstrate that you can prioritise the problematic issues by dealing with any that are straightforward in a pragmatic and concise manner, leaving the depth of analysis for those issues that are sufficiently complex to merit more discussion. You need to identify which components are contentious/ambiguous and deal with these in more depth.

You will often find that you are not provided with enough information to reach a definite conclusion on the facts. In such circumstances, you will have to make use of what facts you have to reach a reasonable conclusion as to the likely outcome of the case. Where the facts are ambiguous and capable of two interpretations, you should argue the case either way, and be sure to state why there is ambiguity. It is up to you to determine which facts to use to support an argument for or against the imposition of criminal liability.

Defences may be general (applicable to all offences) or specific (applicable only to certain offences). Specific defences should be discussed after the actus reus and mens rea of the offence to which they refer has been established. General defences should be dealt with after a discussion of all the offences to which they may apply. The approach taken to a consideration of the existence of a defence should be similar to that used to establish the offence – name, source, definition, authority, established. It is particularly important to be clear about what the consequences are if the defence is successful, for example, is it a total defence that will lead to an

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acquittal or a partial defence that will lead to the defendant being convicted for a lesser offence?

In sum, in applying the law to the facts of each factual incident/event:



Assess whether the actus reus of the offence under consideration can be

established. Are there any issues which make imposing liability problematic (e.g. in a potential murder case a break in the chain of causation through the act of the victim of third party?). Make sure your points of law and legal arguments are rooted in relevant legal authorities wherever possible.



Assess whether the defendant at the time of the incident had the relevant

mens rea for the offence in relation to each aspect of the actus reus. Was there a coincidence in time between actus reus and mens rea? Are there any issues which make establishing mens rea problematic (e.g. a doubt about the defendant’s awareness of risk in considering recklessness; did intoxication affect the defendant’s perceptions and intention and is it relevant)?



Assess whether any general or substantive defences are applicable and

discuss any issues by thoughtfully applying the relevant law backed up by relevant authorities.



Assess (in cases of potential murder/manslaughter) whether any special and

partial defences might be applicable and discuss any issues by thoughtfully applying the relevant law backed up by relevant authorities.

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7)

Move onto the next factual event or incident in the problem and repeat the process

Once you have considered all the specific issues relating to actus reus, mens rea and the availability of any defence in relation to ‘event 1’ you should then move on and repeat the process for the next ‘event’.

Some guidance for assessing problem question answers

For a problem question tutors will be assessing how well you have: 

structured your answer to the problem



analysed the facts



identified relevant legal issues and prioritised them appropriately



applied the correct law and thereby demonstrated sound knowledge and

understanding 

cited appropriate authorities (both statutory and case law)



dealt with complex/moot points through skilled legal reasoning (e.g. through

applying/distinguishing authorities intelligently or through argument by analogy) 

demonstrated a competent style of legal writing (i.e. is there effective written

communication?) 

(in course work problems rather than exams) referenced your sources

properly (in accordance with OSCOLA)

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This question featured in the University of Southampton Criminal Law Exam, Summer 2012-13. A feedback document on the exam was prepared by the course co-ordinator which included a detailed analysis of this question. It is reproduced here to give you a sense of the type of analysis we are looking for. The key thing to note is that throughout there is a structured application of the law to the facts. That is the key! Also note that this answer was written, in effect, under exam conditions and so cases, etc, are not fully referenced in footnotes according to the OSCOLA system, which is what we would expect for course work.

(1) Angus is upset that Betty, his girlfriend, has ended their relationship. He goes to her house late one night, assuming that she is on night shift at work and not there. He sets fire to the house with the aim of burning it down.

Once the fire has started, he notices Betty’s car parked across the street. He realises that she must actually be at home and, given the late hour, that it is highly likely she is asleep, and will not be able to escape the fire. He does not want her to be hurt but is too frightened to do anything. He runs away.

Betty is not, in fact, asleep and notices the fire. She could easily escape through the backdoor but she has been extremely depressed and decides that she would rather die. She locks herself in the upstairs bathroom. Meanwhile, a neighbour notices smoke coming from the house and calls the emergency services. Firefighters enter the property. The upstairs bathroom is the last room they check, and it takes some time to break down the locked door. Betty is found unconscious, but alive.

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She is taken to hospital where she makes a good recovery until, Henry, an extremely tired and hung-over junior doctor injects her with the wrong medication. She has a violent allergic reaction and dies.

Discuss the criminal liability, if any, of Angus and Henry.

A detailed guide to the issues in question 1

When Angus “sets fire to the house with the aim of burning it down” has committed criminal damage under the Criminal Damage Act 1971, section 1. He has substantially “damaged” (if not “destroyed”) “property” which “belongs to another”- the actus reus elements of the section 1 offence. He has done this by fire which will give this criminal damage offence the label “arson” by virtue of section 1(3) of the Act. The mens rea for his offence can be intentional damage or destruction of property or, at least, reckless damage or destruction (the R v G variety of foresight of a risk of damage/destruction, taking the risk of damage/destruction regardless in circumstances where it was not reasonable to take that foreseen risk). Angus displays a direct intent to damage or destroy the property as it is his purpose to do so. There is a question as to whether he could be liable for the aggravated form of criminal damage under section 1(2) of the act if it could be established that he was reckless as to endangering life through his arson. Again the test here is the subjective reckless test: did he foresee a risk of endangering life when he decided to set fire to the house. He acts on the assumption “that she is on night shift at work and not there”. This might suggest he has considered the risk and decided there was none which would bring him outside the scope of subjective recklessness – unless it © University of Southampton Law School, Criminal Law Team

was determined that he had ‘closed his mind’ to the possibility of the risk which would make him potentially subjectively reckless under the Parker gloss to Cunningham (a gloss that was approved for the purposes of criminal damage by Lord Bingham in the House of Lords in R v G).

It is not clear that criminal liability for the death of Betty would arise at the moment of starting the fire. At this point it is clear that he lacks the mens rea for the offence of murder. He is working on the assumption that Betty is not at home and therefore he neither directly intends (it is not his purpose) to kill anyone or cause them grievous bodily harm (interpreted as “serious harm” in Smith), nor is it his oblique intention (he does not foresee death or serious harm as a virtual certainty as required by the House of Lord’s case of Woollin). Liability for Betty’s death at this point would therefore depend on an analysis of unlawful and dangerous act/constructive manslaughter. Criminal damage would constitute and unlawful (in the criminal sense of that word – Franklin; Lamb) act. It would be dangerous according to the test from Church/Newbury if all sober and reasonable people would inevitably recognise that starting the house fire risked causing some bodily harm. Would the assumption of Angus that Betty was not at home be relevant to that objective determination of dangerousness? The cases of Dawson and Watson suggest that the hypothetical ‘sober and reasonable’ person evaluating the dangerousness of the act should be attributed with the knowledge of the defendant and no more (so knowledge of the frailty of the victim in Watson could be attributed but the heart disease of the victim in Dawson could not). Angus did not have ‘knowledge’ that the house was empty but he appeared to believe it. So by analogy from Dawson and Watson would the sober and reasonable person who believed that the house was empty have regarded the act of setting fire to the house as inevitably subjecting someone to a

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risk of some bodily harm? On the other hand, the case of Ball distinguished these earlier two cases and stresses more robustly the objective nature of this dangerousness test. A distinction is drawn between knowledge about the victim (which could be attributed to the reasonable man as per Dawson and Watson) and knowledge about the inherent dangerousness of the act (which according to Ball should be disregarded – “the appellant’s intention, foresight or knowledge is irrelevant”). Angus’s belief regarding the empty house appears to be about both the victim and the inherent dangerousness of the act but arguably more about the latter which would tend towards a finding of dangerousness (through having to disregard his belief of the empty house – particularly if this is an unreasonable belief that the “sober and reasonable man” would not have formulated).

If the original act of setting fire to the house is not regarded as dangerous then criminal liability for the death could plausibly be constructed by taking into account the subsequent failure/omission of Angus to do anything once he had come to realise that Betty might well, in fact, be inside the property asleep and therefore in serious peril. Generally there is no criminal liability for omissions in English law but there are exceptions to this rule where there is a relevant legal duty. In this case the most relevant of these duties stems from the House of Lords case of Miller (a case of criminal damage) more recently applied (in a manslaughter case) by the Court of Appeal in Evans. Miller establishes a doctrine under which liability for omitting to act results from a duty to take reasonable steps to rectify a dangerous situation created by the defendant’s conduct (which, as in Miller, may have itself not been criminally culpable). Angus realises Betty may well be in peril from the fire he has created and runs away. On the basis of Miller/Evans liability for manslaughter could then flow from this omission. As this

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would be an omission rather than an act it would be dealt with under gross negligence manslaughter rather than unlawful act manslaughter. The advantage (in terms of establishing liability) is that at the point of the omission he has the awareness of Betty’s potentially perilous situation and chooses to do nothing to help: in other words, it would be easier to establish mens rea in relation to her death. The mens rea would still not be murderous however as it does not appear that death or serious harm was foreseen as a . virtual certainty. ‘Gross negligence’ (as per Adomako) seems more likely

An alternative route for finding liability would be to apply the ‘continuing act’ doctrine from the case of Fagan: by analogy setting fire to the house and not putting it out/calling for help is equivalent to driving the car onto the policeman’s foot and leaving it there. The advantage is that it would be possible to find a coincidence between actus reus (setting fire to the house) and mens rea (acknowledging Betty’s perilous situation and doing nothing), and thereby confirm the finding of dangerousness as per the Church/Newbury test. If these discrete activities were not viewed as a continuous act (and it is arguable that Fagan stretched things somewhat here) then the doctrine of a “complex single transaction” from the PC case of Thabo Meli could be applied to find . the required coincidence between actus reus and mens rea

Whatever the approach adopted to attach culpability to Angus’s conduct it is necessary in a case of either unlawful act manslaughter or gross negligence manslaughter to find that Angus’s act of starting the fire, or alternatively his failure to help after the fire was started, was a factual and legal cause of Betty’s death. Factual causation is straightforward as but for his act of setting fire to the house Betty would not have died in the way that she did and when she did. There is a strong chance that such a factual

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connection could also be established between the omission to help Betty and her death too (though if it were to be argued that by that stage she would have died anyway – Dalloway - then this would bolster the argument for attempting to construct liability .( through the initial act through the single transaction principle

On the assumption that Angus’s act of starting the fire made a significant, more that trivial, contribution to Betty’s death (Cheshire), it is important to consider whether Betty’s behaviour upon seeing the fire, and the doctor’s poor trea...