Wednesday, March 16, 2011

Hammer time

This morning I did my first practice question under exam-like conditions - just me, my pen, a few pieces of paper and the statute book for Criminal Law. Really worthwhile and I learned numerous things:

1. Time is tight - I gave myself just 40 minutes to answer the question and I only just made it. Sadly I have to think that it had more to do with luck than with skill but for sure there was no extra time to muck about.
2. Statute book - if you don't know already what you are looking for in the statute book you will not be able to find help there on exam day. It was helpful for me in this instance to cite exact sections from the Criminal Damage Act 1971 but when I was looking for something to aid me in relation to manslaughter charges I had no idea where to look and it was a waste of time flipping through and hoping to find help.
3. Cases - I did not cite one single case in my answer, could not recall the names of any nor did I know how to correctly fit them in. When I rework my essay I will need to put some cases in. Also it seem critical that I should be able to cite some cases that might be used in any criminal law cases - for example something related to intention. Big area for improvement here.
4. Breadth rather than depth - this was a bit of a suprise but I found that I was not able to go into deep detail on each point/offence. It was necessary to cover so many points that one had to do it elegantly rather than in detail. A suprise to me considering the detail given during studies.
5. the human factor - I found that I was so out of practice with writing by hand that my hand was tired and my penmenship poor by the end of the first essay - with four to write over the course of three hours I will need to practice this skill.

I've reproduced my handwritten essay below for you to judge, any feeback is more than welcome. Here first however is the question:

Nicola wanted to frighten Susan and so poured some petrol through her letterbox and ignited it. The fire spread throughout the house. Susan, who was asleep in bed, breathed in the fumes. She was taken, unconscious, to hospital and placed on a life-support machine. After a few days the doctors diagnosed that as a result of breathing in the fumes, she was suffering from irreversible brain stem death and switched off the machine. Susan was declared dead.

My response:


Nicola may be charged with the common law offence of murder. Murder is defined as the unlawful killing of a human being with the intent to kill or to cause grevious bodily harm. In the facts of this case Nicola is the factual and legal cause of Suzan's death. But for Nicola's lighting of the petrol Susan would not have been diagnosed as breathing in noxious fumes. These fumes caused her legal brain death and thus the jury will most likely find that Nicola committed the actus reus of murder.

The mens rea of murder hinges upon the intent to kill or to cause grevious bodily harm. The facts of this case state that Nicola intended to 'frighten' Susan. Therefore it is encumbant upon the prosecution to prove beyond a reasonable doubt that Nicola had the requisite intention for the crime of murder.

To do so the prosecution must show that Nicola either intended murder or grevious bodily harm. Such intent may be oblique intent, i.e. if it is all but certain that Nicola's actions would have resulted in Susan's death then the mens rea will have been satisfied and Nicola will be liable for murder and may be sentenced to a maximum of life imprisionment.


Nicola may be charged with manslaughter if the Crown Prosecution Service believes that it will be unable to secure a murder conviction. Depending on the strength of the evidence Nicola may either be charged with reckless manslaughter or constructive manslaughter.

For reckless manslaugher the actus reus is the same as that of murder - the unlawful killing of a human being. The prosecution will need to prove this based upon the evidence outlined above for murder. The mens rea however is based upon a lower threshold than murder - gross recklessness as to whether one's actions will result in death or grevious bodily harm. In this instance the prosecution will need to show that Nicola recognised the there was a risk of death or grevious bodily harm because of her actions and yet went ahead with them despite that risk. If the jury is satisfied that the prosecution has proven their case beyond a reasonable doubt they may convict and Nicola may receive a maximum sentence of life imprisionment.

If the prosecution believes that it may have a stronger case based upon constructive manslaughter then Nicola will be charged with this offence. To be convicted under a charge of constructive manslaughter. The actus for this crime is that the unlawful killing of a human being occurs based upon an unlawful act. In this case the unlawful killing of a human being is likely to proven based upon the reasons given in "murder" above. To satisfy the 'unlawful act' element of this offence Nicola must be shown to have committed a 'gateway' offence. In this case it is likely to be that she is charged with criminal damage by arson under sections 1(2) and 1(3) of the Criminal Damage Act 1971. The actus reus of this offence is the unlawful distruction of property by fire. In this case the prosecution should be able to prove this based upon the facts of the case. The mens rea of a charge under 1(2) & 1(3) is intention or recklessness that property will be destroyed or damaged and also intention or recklessness whether life would be endangered. The prosecution must therefore prove that Nicola either intended to endanger Susan's life (and her stated intention to 'frighten' may give weight to this claim) or was willing to risk that Susan's life might be endangered. If the prosecution can prove this then Nicola will be convicted under a charge of constructive manslaughter and will face a sentence of upto life imprisionment.

Criminal Damage by Arson

As stated above under 'manslaughter' Nicola may be charged with criminal damage with intent to endanger life by arson s1(2) & 1(3) of the Criminal Damage Act 1971. If found guilty of the actus reus and posessing the necessary mens rea, Nicola will be found guilty and sentenced to a maximum of life imprisionment.


  1. Hey its me again, the anonymous comment on that offer and acceptance question. Some helpful tips.

    Have you read the criminal law newsletters ? They have advised us not to go into the Nedrick/Woollin intention guidelines if its obvious from the facts that the offender did not intend to kill the victim. That would be the case here since she only wanted to frighten her friend. Of course there is no harm in setting out the Woollin guidelines, but you are losing valuable time.

    - However if you are going to mention the Woollin guidelines, you must explain them fully.
    e.g. If the jury are sure beyond reasonable doubt that it was X's purpose to kill/ cause GBH, then Y had the requisite intent. If however the jury believes that X foresaw death/ gbh as a virtually certain outcome of her actions, then the jury are entitled BUT NOT OBLIGED to find that she had the requisite intent...etc.

    - Also, to save time, you can abbreviate the names. So the first time you say Nicola write (N) and from thereon you can use N.

    - Constructive manslaughter. You must always apply the CHURCH test of dangerousness. Not only must there be an unlawful act, but that act must be dangerous. The act will be deemed dangerous if all sober and reasonable people would inevitably realize the risk of some harm, albeit not serious harm.

    - Also, study up some authorities for basic definitions. So murder is the unlawful killing of a human being with intent to kill/ cause GBH. Then cite (Moloney 1985).

    - Do mention that she will be liable for involuntary manslaughter.

    - Once you have discussed one particular form of involuntary manslaughter, before you move onto the next form it is a good idea to mention that the categories of involuntary manslaughter are not mutually exclusive so she can be guilty of the offence by more than one route (Willoughby)

    - Mention that GOODFELLOW is authority to say that arson will suffice as an unlawful act for the purposes of constructive manslaughter

    - Usually when there is a question set on involuntary manslaughter, you need to discuss all 3 : reckless, gross negligence and constructive. When you are dealing with gross negligence make sure you cite the criteria laid down by HL in ADOMAKO.

    - There is no need to keep mentioning the sentence or that the prosecution must prove etc. etc. There is no harm in doing so of course but be mindful of the time.

    Before attempting criminal law problems, I jot down the main authorities that need to be cited. Not a whole lot. So in constructive manslaughter it would be :
    1- What's the unlawful act ? If its robbery - WATSON. Arson - GOODFELLOW (more in your subject guide)

    2- the test for dangerousness - CHURCH

    All that said, this is an excellent first attempt.
    Keep up the good work!

  2. Okay sorry me again, one more thing. Regarding hand cramps I know what you mean! I'm so nervous because I've yet to practice writing more than 2 answers in a go...

    But try purchasing Steadtler triplus fineliner pens- they have a tripod grip which is good for support and your wrists will not hurt. They write like a dream.

    - Statutes : Try and remember the provisions for easy offences. E.g. Offences against the person act 1861 has only 3 offences in our syllabus - 18/20/47. For property offences however like criminal damage and theft, its impossible to remember all the provisions so flip to the statute book then. My tip is to keep the book open on that statue and keep a heavy weight on top for a couple of days. That way it creases on that page and you wont have to flip through! (I know a little sneaky but it works!)

    - Do not worry so much about penmanship and speed, once you've written a few answers i'm sure you'll catch up! When I first tried a question my handwriting was enormous and it was taking me forever to write. Then I sat down and thought about it, I thought I was doomed to be a slow writer. But basic physics right ? Speed = Distance/ time. So if I make my writing smaller, I can write faster! It took a couple of weeks but I have made my writing a lot smaller and can write faster now.

    P.S. Any helpful tips for Public Law ? I'm pretty sure I might fail it since I have yet to study more than half the syllabus....

  3. Hey,

    A million thanks for a whole bunch of really good and spot on comments. It's clear that you know criminal inside and out.

    Only on a couple of points:

    I agree with all your cases, totally should have stuck more in there to illustrate skills with the topic, especially Church on dangerous act, that was a big miss. Thanks.

    I disagree on having to mention all 3 types of involuntary manslaughter. Gross negligence manslaughter requires D to have a duty of care to V. That being clearly absent I can't see the point in mentioning it.

    Thanks for the other tips, I've started in on the statute book this weekend with highlighters for revision so that will be a huge help. I will try and write in a manner that I can leave a bit of space to go back and add things later if possible. For sure key topics with cases as memory aid is a great way to go.

    For me the main topics in Public Law are: Parliamentary Sovereignty (esp how it relates to EU law and ECHR), rule of law, separation of powers, HRA and individual rights (Fair Trial, Religion), and something about EU - treaties, directives, regulations. Perhaps also the issue of judicial review and the reasons for it. I would focus on those. If you have very little time, skip out EU.

    Hope that helps and good luck.

  4. *Re : duty of care for this Nicola and Susan Q, I didn't think there was one either but in the subject guide there was . We have to deal with it according to the ordinary principles of negligence.I think that's tort law but we should have a very basic idea. You have a duty to not expose people to the risk of harm. So that would be along the lines of Donoghue V Stevenson :

    “The rule that you are to love your neighbour become in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions, which you can reasonably foresee, would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

    *Haha thank you, I tend to study criminal at the expense of everything else which is a terrible habit that I am paying for dearly by having to cram in Public/common law/ contract.

    *I'm not so great with property offences/ fraud etc. There are so many elements to go through I never know what to write but there's no avoiding them.

    *They have put up new lectures on the VLE, the common law ones are extremely helpful (are you taking that this year?)

    *Thank you so much for the Public tips! Really killing me, I can't seem to ever remember things for public. I think I'll focus on Parliamentary Sovereignty/ Rule of law/ Separation of powers/ HRA/ House of Lords is very likely/ EU/ Parliamentary Privilege (Just last year's question since it was answered very badly, they might repeat. I know its bad to question spot but if you go through examiner's reports, questions that were badly done one year do come up later. So its very likely we'll get one on Parliamentary Standards Act 2009). Also electoral law is a hot topic these days.

    HRA I'm not so sure, its such an enormous topic to cram in at the last minute....though it wont hurt to have a basic idea about it.

    I don't have time to cover it but it maybe worth studying the royal prerogative. There was a 2009 or 2008 question on how they are placing it on a statutory basis. Consitutional Reform and Governance Act places treaty making + civil service on statutory basis right ? There may be a question on that...

    Okay, happy studying then! Its nice to know I'm not alone and there are people out there who are willing to help me out a bit (Law students are notoriously competitive).

  5. Hi again,

    Yes shocking about that duty of care but it does follow on from the contracts case as well as the rationale in Miller I suppose. They also seem to apply it for drug dealers in away with Evans although they don't follow constructive manslaughter for them in Kennedy no2. Really odd.

    I think the key with property/fraud is to be able to use your statute book very well and know the elements of the offence inside out. For example the need for fraud for gain/loss to monetary is important.

    Yes, I am doing Common, Public and Criminal this year. New lectures on the VLE for Common? Do you mean the main page? Maybe 8 of them on various subjects? Yes listening to the one on mens rea right now.

    Yes for public I think Parliamentary standards is a good one. Also the case about the MP's and the Lord who were convicted of falsifying expense claims and tried to get protected under the Bill of Rights that no one should question proceedings in the House. All good topics. Election as you say is hot. Also whether Parliament needs to accept an ECHR ruling.

    HRA and the European Convention are both in the statute book by the way.

    Good luck studying.

  6. Q,
    I suppose if its D V S category of duty then there's still have to be an objective risk of death as per MISRA.

    No, not drug dealers exactly, at least I don't think so. In EVANS, Carly was the appellant's half sister, she procured heroin for her. V freely voluntarily injected it. But when she showed signs of overdosing and had blue lips, they failed to get help afraid they'd get in trouble...maybe for drug dealers then if they wait around and see that the victim is in danger? Not too sure with the case law on that.
    I think Kennedy No.2 is saying that if V freely voluntarily injects himself then that would break the chain of causation ?

    Thanks for the tip about fraud,

    Yes I do mean those lectures. Especially the binding precedent and statutory interpretation ones. There's also one on legal aid but i don't think i have time to study that..Criminal ones weren't all that helpful to be honest, but doesn't hurt to listen of course.

    Hmm are you talking about the CHAYTOR case ?

  7. Hiya,

    Yes for me Evans did not seem so much about a family relationship (remember there is probably no duty of care between siblings) as the fact it was she who gave her the drugs and saw the later distress. I do agree with the point on time and location. Would be interesting to see how far they could extend it.

    You are right on the main point in Kennedy.

    I listened to the recordings and they seemed ok as you say but not much improved over the regular lectures. Statutory interpretation was an eye opener however. God forbid anyone starts that question on the exam with "there are 3 ways that judges interpet laws"...

    Yes the Chaytor case, I would love for that to come up on the exam, one of my earlier blog posts was about it...


  8. Yes Dr. Adam Gearey seems like a terrific lecturer...I attend part time tutorials at an institution and they advised us completely wrong. They said to apply each of the so called rules to the people in the problem question!!
    We went through every single SI problem Q with 'Applying the literal rule...applying the golden rule etc.' !

    Public law's really taking a toll, serves me right for leaving revision this late I guess. I've read Barnett but my notes are so long I guess I have to somehow condense and remember in point form. Sorry I know I sound like I'm whining (Which I am haha).

    Hope revision's going well, the last stretch.