OCR A2 Criminal Law and the Special Study Paper
Introduction
The answers to the exam practice questions provided in G153 are given below, in the
order they appear in the text, hence answers for the Section C exam practice question
are given first. Two answers are given for each exam practice question – Script 1 which
is an exemplar answer and Script 2 which discusses areas where the student could
have improved their answer.
Section C question
Sergei is driving his car at speed. Dasha, a pedestrian, has to leap out of Sergei’s way
and she falls over, suffering cuts and bruises. Adrian, a passer-by, helps Dasha to her
feet. Dasha’s boyfriend, Miroslav, sees Dasha fall. He runs over and shouts at Adrian
‘Let go of her or die!’ Miroslav drags Sergei from the car and kicks him repeatedly,
breaking three of Sergei’s ribs.
Evaluate the accuracy of each of the four statements A, B, C and D individually, as they
apply to the facts in the above scenario.
 Statement A: Sergei will be liable for a section 20 OAPA 1861 offence.
 Statement B: Sergei will be liable for a section 47 OAPA 1861 offence.
 Statement C: Miroslav will not be guilty of an assault on Adrian.
 Statement D: Miroslav will be liable for a section 18 OAPA 1861 offence.
(Objective reasoning/dilemma board question – AO2 – 20 marks.)
Points to include
Potential answers may include the following:
Statement A
 P1 Reason that this offence requires the infliction of a wound or GBH.
 P2 Reason that the cuts and bruises Dasha suffers are unlikely to be GBH.
 P3 Reason that Sergei must act maliciously and have intention or subjective
recklessness to cause some harm.
 P4 Reason that this is present since Sergei is speeding.
 P5 Conclude that the statement is inaccurate.
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OR
 P2a Reason that a cut breaking the layers of Dasha’s skin is a wound.
 P3a Reason that Sergei must act maliciously and have intention or subjective
recklessness to cause some harm.
 P4a Reason that this is present since Sergei is speeding.
 P5a Conclude that the statement is accurate.
Statement B
 P1 Reason that this offence requires the causing of actual bodily harm, any
interference with health or comfort.
 P2 Reason that the cuts and bruises Dasha suffers are likely to be sufficient harm.
 P3 Reason that Sergei must have intention or subjective recklessness for the
common assault but not for the harm that results.
 P4 Reason that Sergei was reckless in causing a common assault by speeding.
 P5 Conclude that the statement is accurate.
Statement C
 P1 Reason that an assault requires a person to apprehend immediate and unlawful
personal violence and words can be an assault.
 P2 Reason that Miroslav threatening to kill Adrian is a sufficiently serious threat.
 P3 Reason that the defendant must have intention or subjective recklessness to
cause the consequence.
 P4 Reason that Miroslav seems to have intention, given the speed at which he
rushes over.
 P5 Conclude that the statement is inaccurate.
Statement D
 P1 Reason that this offence requires Miroslav to cause a wound or GBH.
 P2 Reason that broken ribs would constitute serious harm.
 P3 Reason that Miroslav must have intention for the unlawful act and the serious
harm which is caused.
 P4 Reason that dragging Sergei from his car and kicking him repeatedly would
appear to be evidence of intention.
 P5 Conclude that the statement is accurate.
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Script 1
Statement A
The mens rea for s20 is the intention or recklessness to cause some harm (some injury
or ABH) but the actus reus or the outcome has to be a wound or serious injury/GBH. As
Sergei is driving recklessly he is reckless in causing at least some harm, so the mens
rea is proved. However, Dasha suffers only cuts and bruises. Harms can be direct or
indirect but Dasha’s injuries do not constitute a wound or GBH. Therefore Sergei might
not be liable for s20 but he could be liable for s47 and so this statement is false.
The candidate identifies all the points in the mark scheme with the exception of P5. This
is because they are inconclusive in their final remarks and although they write that the
statement is false, the reasoning leading up to it is too vague to receive the P5 mark.
Statement B
The mens rea for s47 is the intention or recklessness to commit an assault, meaning the
intention or recklessness to cause the victim fear of unlawful force or applying unlawful
force. The actus reus of s47 is any injury or hurt caused which leaves a mark but is not
permanent; it should not be too trivial or too insignificant. Cuts and bruises are often
seen as being s47 so this will apply to Dasha. As Sergei is speeding he is driving
recklessly and Dasha’s injuries are the result of his driving so he will be liable. This
means the statement is true.
Here the candidate identifies each of the necessary points and reaches a clear,
accurate conclusion. Note their use of the facts in the scenario as a support for their
reasoning.
Statement C
An assault is when Miroslav puts Adrian in fear of immediate unlawful force. This can be
a thing said or done, signs or even silence. The mens rea for assault is intention or
recklessness as to causing the victim to fear immediate unlawful force, while the actus
reus can be as little as fear. As Miroslav threatens to kill Adrian this suggests he has the
intention of causing immediate unlawful force. Miroslav causes Adrian to feel fear and
so he is liable. The statement is false.
In this example every point in the mark scheme is covered and there is an accurate
conclusion.
Statement D
S18 requires the intention to cause serious injury/GBH or to wound. The actus reus is a
wound which breaks all layers of the skin or a serious injury. Miroslav kicks Sergei
repeatedly which clearly shows he has the intention to cause serious injury. As Sergei’s
ribs are broken this is enough for serious injury/GBH. Miroslav is liable and the
statement is true.
Here there is concise and accurate reasoning to a valid conclusion.
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This is a higher-level response. The candidate has good knowledge which is
applied to the facts and, for the most part, used to reach accurate conclusions. It
is helpful is to consider the actus reus before the mens rea and then reach a
conclusion.
Script 2
Statement A
Sergei is liable for s20 as there are sufficient cuts and bruises to be malicious wounding
which was inflicted on Dasha. Sergei is also liable for dangerous driving and the harm is
indirect which can be sufficient as in Roberts or Wood.
The candidate has identified the actus reus of the offence and applied it to the facts –
P2a and P1. They have also reached a conclusion in line with their reasoning in P5a.
They have not dealt with mens rea. They have also named two cases and citation is
unnecessary in this part of the exam paper.
Statement B
Arguably Sergei’s offence is too serious for s47 as it is a cut of the epidermis. Also it
was GBH with or without a weapon. However, he is liable for the mens rea of s47 as in
Savage and Roberts.
In this answer the candidate lacks clarity on any point and there is no clear conclusion
relating to the statement as a whole.
Statement C
Miroslav is guilty of assault. As shown in Ireland and Constanza, it can be things done
or said that makes the victim apprehend immediate unlawful force. Specifically the
words ‘let her go or die’ are a threat towards Adrian although words can cancel out
other things that have been said.
Here the candidate begins with a conclusion (P5) and has dealt with the actus reus of
assault (P1) and applied it to the facts (P2). Once again there is no mention of mens
rea.
Statement D
Miroslav is liable for a s18 offence. He has broken three of Sergei’s ribs and this would
be enough for GBH which is the actus reus of s18. Under s18 causing GBH can lead to
life imprisonment. It also has the same mens rea as s20. Furthermore, in Cunningham it
is said that recklessness must be subjective and arguably Miroslav has been reckless.
The candidate begins with a conclusion again (P5). They deal with the injury that Sergei
has suffered and they link it to the facts (P1 and P2) but they do not deal with mens rea
and they discuss information which is irrelevant to the statement.
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This is a mid-level response. The candidate focuses on the actus rea of the
offences in question, rather than striking a good balance with mens rea. Valid
conclusions in three of the statements are rewarded, to reinforce these the best
conclusions are a result of clear reasoning using the facts provided.
Section A question
Discuss whether the rules governing insanity as a defence in criminal law are in a
satisfactory state or are in need of reform.
(Essay question – AO1, AO2, AO3 – 50 marks.)
Points to include
The following provides an example of the material the candidate may include in their
answer.
AO1 [25]
 Define the essential elements of the defence – M’Naghten Rules.
 Explain that there is a presumption of sanity, the burden of proof on the accused and
who can raise the defence.
 Explain the nature of the ‘special verdict’.
 Explain the key elements:
 ‘defect of reason’ – Clarke
 ‘disease of the mind’ – Kemp, Sullivan, Burgess, Bratty
 ‘nature and quality of acts’
 ‘wrong’ – Windle.
 Explain the relationship between insanity and automatism – Quick, Hennessy,
Sullivan, Burgess.
 Explain the changes which have been made since the Criminal Procedure (Insanity
and Unfitness to Plead) Act 1991.
 Define diminished responsibility in s2 Homicide Act 1957 and its links to insanity.
AO2 [20]
Discuss any or all of the following areas:
 The antiquity and operation of the defence despite the 1991 Act.
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 Problems of definition.
 The reluctance of the courts to accept automatism, especially based on the
‘continuing danger’ and ‘external factor’ theories.
 The inconsistencies in the application of insanity and DR to a person charged with
murder.
 The problems of jurors faced with complex scientific evidence.
 The role of medical experts and the conflict with the role of the juror.
 The stigma issues which can prevent people using a defence which is appropriate for
them.
 The problems associated with the emotions stirred up in a jury and how this can
affect their decision.
 The proposals for reform such as the Butler Committee and the Law Commission
Draft Criminal Code bill.
 Any other relevant comment.
Script 1
The defence of insanity is used by a defendant to deny the mens rea of the offence and
is a defence to all crimes that require mens rea which means that strict liability offences
cannot use this defence. The courts presume that all people are sane and responsible
for their actions unless they are suffering from such a defect of reason caused by a
disease of the mind so that they do not know the nature and quality of their acts and do
not understand what they are doing. An example of this is where a woman throws a
baby into a fire mistakenly believing it is a piece of wood, as she obviously does not
understand what she is doing.
This is a well-focused start. It shows that the candidate understands the essence of
insanity through some clear statements and the use of an example reinforces this.
These points and other statements of fact are assessed as AO1 as they demonstrate
knowledge and understanding.
There are three elements that have to be proved and these were established in the
case of M’Naghten in 1843. The defect of reason concerns the situation where the
defendant was deprived of the power of reason and in Clarke it was established that this
must be more than mere emotions, stress or confusion. If the defendant possessed
powers of reason but did not use them then the defence is not available.
Here the key case is introduced and although a full definition is not given, the
candidate’s style suggests that they have a clear plan in their mind as to how they are
going to move through the test. Their use of a case is succinct and focuses on the point
of law rather than dwelling on extensive factual detail.
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The next step is that the defect must come from a disease of the mind – this is a legal
and not a psychiatric definition. A physical illness such as one which affects the mind
can be considered a disease of the mind, as happened in Kemp which decided that the
law is concerned with the mind and not the brain. This means that a disease or illness
which affects the mind is sufficient. In cases such as Sullivan, epilepsy has been
considered a disease because it is caused by an internal factor and the case decided
that it made no difference if this was functional or organic, transient or permanent, as
long as it produced a defect of reason from an internal factor. In the controversial case
of Hennessy it was considered that diabetes could be a disease of the mind if it led to a
hyperglycaemic rather than a hypoglycaemic state, as the former is caused by high
blood sugar levels which is an internal factor. Another area of controversy is the fact
that sleepwalking can be a disease of the mind after the case of Burgess if it was
induced by an internal rather than an external factor.
The candidate refers to cases through concise citation but, as before, focuses on the
legal importance of the case and this is a valid, as well as an efficient, approach. They
use the cases to draw out important distinctions and skilfully flag up problems through
the use of words such as ‘controversial’ – such remarks are credited as AO2 as they
address the analytical element of the question.
If the defence is to be successful the defendant must not be aware of the nature and
quality of their act or of it being legally rather than morally wrong. In Windle the
defendant showed evidence of the fact that he knew killing his wife was legally wrong
and so was not given the defence. This case was before the Homicide Act 1957 and so
Windle could not use the defence of diminished responsibility either. If the defence is
successful the verdict is ‘not guilty by reason of insanity’. Before 1991 the judge had to
impose a mandatory hospitalisation order which required the defendant to be treated for
their condition. Now the judge has the discretion to give a hospitalisation order,
supervision or guardian order, or even a complete acquittal where there is a lower level
of blame. However, if the offence is murder, then the defendant must be hospitalised
indefinitely and can only be released if the Home Secretary agrees.
In this paragraph the candidate moves confidently to the third arm of the test and also
draws out how the law has moved on as well as giving accurate examples of the
sentences which can be handed down.
There are many problems with the defence of insanity. One is that it has a great social
stigma as no one wants to be labelled as insane. This highlights the big controversy
with the defence as it is based on rules which are over a century old. It is evident that at
the time medical knowledge would not have been as advanced as it is now and so the
defence is unsatisfactory in this respect. Indeed, the fact that a disease of the mind is
given a legal definition means that there can be a conflict with psychiatric or medical
definitions – surely epilepsy as in Sullivan or even diabetes as in Hennessy should not
be diseases of the mind. Therefore, this conflicts with the common notion of what
insanity and mental disease are in the ordinary sense of these two words and makes it
difficult for juries who are just citizens to understand. The problem is exaggerated by the
fact that doctors will often argue as to whether a disorder is actually a disease of the
mind and if this affected the defendant’s power of reasoning. This means that they are
effectively being asked to make moral and not medical judgements which can lead to
inconsistency.
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This paragraph contains a lot of sophisticated analysis and it is backed up by reference
to cases. An interesting feature is that the candidate makes a point and then develops it
– this is evidence of high-level AO2 skills and is something an examiner really likes to
see as it suggests a thoughtful approach rather than an essay in which a candidate can
only regurgitate a list of pre-prepared simple points.
As well as this it can be argued that the rules on insanity are too wide as they include
any disease of the mind caused by internal factors. In Bratty the reasoning given was
that if the defendant suffers from a disease of the mind from an internal factor then it is
more likely to recur and so the defendant should be prevented from being a continuing
danger to the public and instead receive the medical attention they require. Although in
Burgess it was accepted by the court that a condition brought on by an internal factor
does not need to be classified as insanity, but the fact that many people who are clearly
suffering from a mental disorder choose to try and succeed with the defence of sane
automatism proves that the use of insanity as a defence is probably due to desperation.
Here the analysis continues and the candidate also makes reference to the other side of
the insanity defence – sane automatism. This is important and a top quality candidate
will take a broad view to demonstrate their understanding. It would be possible to argue
that a candidate who deals only with insanity is answering the question but in a subject
area such as this the need to look at both sides of the picture is clear.
In both sane and insane automatism the defendant has no control over his actions but
for sane automatism the automatic state is induced by external factors and this has
proved difficult in cases involving diabetes. In Hennessy the defendant was classed as
insane because he failed to take his insulin and then fell into a hyperglycaemic state,
whereas in Quick the defendant was acquitted when he relied on sane automatism
because his diabetes sent him into a hypoglycaemic state as he had taken his insulin
and so this was an external factor. It is arguable that this distinction is illogical since
defendants suffering from the same disorder have to use different defences which have
completely opposite results. In Quick the underlying cause of his actions was because
of his diabetes although insulin was the explicit cause. Hence the courts could do well
by classing diabetes as a disorder from internal factors.
In this paragraph there is both AO1 and AO2 material. Note the use of phrases such as
‘It is arguable that ...’ which give a clear sign to thoughtful engagement with the
question.
It can be argued that the rules on insanity are too narrow as a defendant clearly
suffering from a disorder that would ordinarily be classed as insane may not come
within the definition, an example being Byrne as he was not suffering from a defect of
reason. This means that defendants who are in need of medical treatment may escape
and so the defence of insanity is inadequate as it does not prevent people being a
continuous danger to the public. However, now defendants like Byrne would be granted
the defence of diminished responsibility and this explains why diminished responsibility
pleas are much more common than insanity – it does not create the same social stigma,
although it only reduces the offence to manslaughter, but insanity would force treatment
through mandatory detention. Indeed the Criminal Procedure Act 1991 may have
helped to create less of this stigma by adopting the mandatory hospitalisation but from
the above highlighted problems the defence is clearly in need of reform.
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Now the candidate looks at the issue from a different perspective and the confidence
with which they write suggests that this is a deliberate decision rather than one resulting
from confusion. Points are clearly made and developed as well as bringing the reader
back to the question posed.
The Royal Commission in 1953 thought that insanity should involve all those defendants
who were clearly suffering from a mental disorder and were unable to stop themselves
and so extending the defence to those like Byrne, but there may be less of a need for
this with the introduction of the 1957 Homicide Act. The Law Commission thought that
the verdict when insanity is successfully pleaded should be ‘not guilty on evidence of
mental disorder’. This would effectively reduce the social stigma but does not answer
the question of it criminalising those who do not deserve such a label.
Although there are some factual inaccuracies here, the candidate has referred to reform
proposals and it is always a good idea to deal with this kind of material in an essay as it
shows that the candidate has looked at the current state of the law, its problems and
what it might do in the future – in other words, they have presented a rounded view.
In conclusion, it is evident that insanity is in need of reform and the best solution may be
to update the M’Naghten Rules in the light of a more modern society.
In some ways this conclusion is a bit of a let-down, given what has come before!
However, it does come back to the question and it does take a stance, however, brief,
on the way forward.
This is a higher-level response. It shows a real engagement with the subject. It
has a logical structure and concise, but accurate and appropriate, use of citation.
In addition the candidate has shown a determination to answer the question
posed.
Script 2
The issue of insanity arises when the defendant is unfit to plead guilty or not guilty as he
does not understand the charge against him and the plea. He is unable to know how to
instruct a lawyer and does not understand the evidence against him. Also the defendant
was insane at the time of the crime. The court has various sentencing powers which are
set out in the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. The rules
of insanity are defined in the M’Naghten case and although old these are still valid
today. For a defence of insanity to be established it must be proved that at the time of
committing the act the defendant was labouring under such a defect of reason from a
disease of the mind as not to know the nature or quality of the act he was doing, or if he
did know, he was unaware that what he was doing was wrong.
This essay begins with some accurate factual material and a useful definition of the
M’Naghten Rules but it does not make any effort to engage with the question – this is
always helpful in an opening paragraph.
The first question is what is meant by defect of reason. The courts have decided that
there must be a complete loss of power of reasoning, not just a temporary blip, and
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confusion or absentmindedness will not be enough. In the case of Clarke the defendant
claimed that her absentmindedness amounted to insanity but the courts did not allow
the defence. In the case of Quick it was limited as it was decided that suffering from
hyperglycaemia is the result of a medical condition and not a defect of reason so the
defence was not available. Furthermore, the courts have interpreted the disease of the
mind as meaning any physical condition that affects the operation of the mind. However,
a person may be insane in the legal sense but not regarded as having a mental illness
in the medical sense. In the case of Kemp the Court of Appeal allowed insanity due to
an inherent medical physical condition resulting in a disease of the mind. Also in the
case of Bedford the court said that sleepwalking and particularly violence in sleep is not
normal. Moreover, the courts have decided that disease of the mind should not just
include diseases of the brain. Illnesses that are included are hyperglycaemia, diabetes,
brain tumours, sleepwalking and epilepsy.
Here there is some reference to the requirements of the test and supporting citation but
the case references are very basic and although they avoid unnecessary factual detail
they do not expand very much on the points of law raised either. One case name is
incorrect and although the candidate is not penalised as such for this there is an
insufficient link to the case they probably intended to use – Burgess. There is some
AO2 as the candidate draws distinctions within the defence but the point would benefit
from being reinforced further.
Also what is meant by ‘so as not to know the nature and quality of the act of what he
was doing’? It should be shown that if the defendant was aware of what he was doing
he was unaware that what he was doing was wrong. In the case of Windle this is a clear
case of the defendant knowing that what he was doing was wrong as he said ‘I suppose
I shall hang for this’ so the defendant was not allowed the defence. However, in the
case of Bell the defendant was charged with reckless driving as he said it was a secret
society and God had instructed him to act – he was not allowed the defence.
Again, there is some citation but it lacks the detail to help the candidate build an
argument. The use of rhetorical questions does not help either – if the candidate had
made a statement that this area of the law is clearly problematic that would have
allowed them to gain AO2 marks.
Again the defence of insanity has been limited, as in the case of Lipman where it was
decided that self-induced insanity was not allowed as a defence, as insanity is where a
defendant has an internal factor causing them to behave in this particular way.
Furthermore, illnesses that have been included in the defence are brain tumours and so
it could be argued that the law is satisfactory in relation to the rules governing insanity,
as in Charlson where the defendant was allowed the defence as he had been caused to
act in that particular way as medical evidence showed he was suffering from a brain
tumour.
Here the candidate seems unsure whether the law is satisfactory or not but there is
some attempt at analysis and it is backed up by reference to a case.
It could be further argued that the law is satisfactory as there has to be medical
evidence produced to show that the defendant was labouring under such a defect of
reason from the disease of the mind that he did not know what he was doing. It could
also be suggested that the various sentencing powers, such as a hospital order without
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a time limit, is satisfactory as it is not only protecting society but also helping the
defendant.
Here the candidate continues to make analytical remarks and there is a nice point about
the competing needs of protecting society and the defendant.
On the other hand, in 1975 the Law Committee report proposed radical reform for the
rule, although these were not enacted. However, in the Criminal Draft code 1989 it did
include one of the suggestions – that the M’Naghten Rules be abolished and replaced
with ‘not guilty by evidence of mental disorder’. Although I see this as a valid point I do
not believe the rules governing insanity are in need of reform as over the years they
have been developed and also limited in certain circumstances such as Lipman, which it
could be suggested provides a satisfactory defence of insanity.
Here there is some reference to reform ideas, although the source of these is incorrectly
named, and the candidate does attempt a conclusion although this is more of a restatement of points already made.
This is a mid-level response. It shows some factual knowledge but it lacks wideranging citation of relevant cases and does not explore all the issues. There are
analytical points, although these have a tendency to be basic rather than being
developed into something more substantial.
Section B question
Maya and Christina decide to go out for the night. They meet at Christina’s house and
begin the evening by drinking several glasses of gin. When they arrive at a pub,
Christina orders drinks. The barman, Shaun, asks them for proof of age and Maya, who
thinks Shaun is insulting them, picks up a glass of lager from the bar and throws the
contents in Shaun’s face. When Terry, another customer, steps forward to intervene,
Christina mistakenly thinks he is going to grab Maya so she picks up another glass and
smashes it into Terry’s face, gouging out his eye.
Discuss the offences which Maya and Christina may have committed and any potential
defences open to them.
(Hypothetical problem/case study question – AO1, AO2, AO3 – 50 marks.)
Points to include
The following provides an example of the material the candidate may include in their answer.
AO1 [25]
 Define assault and battery – s39 CJA 1988.
 Define assault occasioning actual bodily harm – s 47 OAPA 1861.
 Define malicious wounding – s20 OAPA 1861.
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 Define intentional grievous bodily harm – s18 OAPA 1861.
 Explain how these offences work – Eisenhower, Saunders, Smith, Savage and
Parmenter, Mowatt.
 Define intoxication.
 Explain the operation of intoxication as a defence – Beard, Majewski.
 Explain the application of the defence in relation to an intoxicated mistake – s3 CLA
1967, Gladstone Williams, O’Grady, Hatton.
AO2 [20]
 Identify assault and battery – s39 CJA 1988.
 Identify assault occasioning actual bodily harm – s47 OAPA 1861.
 Identify malicious wounding – s20 OAPA 1861.
 Identify intentional grievous bodily harm – s18 OAPA 1861.
 Identify defence of intoxication.
 Identify defence of drunken mistake.
In relation to Maya throwing lager into Shaun’s face:
 Apply assault and battery.
 There is no justification for such an act.
 Consider whether this can be s47 – the answer is probably not.
 Intoxication would not provide a defence as the charges are basic intent and Maya is
voluntarily intoxicated.
In relation to Christina attacking Terry:
 Consider s18 – she has caused potential GBH.
 Consider whether there is evidence of an intention to do serious harm.
 If there is evidence then s18 is appropriate but also consider that s20 might provide a
better way.
 There could be a defence based on the mistaken use of force in self-defence,
although the force used may be seen as excessive.
 Consider that the fact of intoxication could simply discount the defence in relation to a
charge of s20.
 If the charge were s18 there may be the possibility of a defence but only in so far as
to reduce liability back to that for a s20 offence.
Reach any sensible conclusion.
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Script 1
Both Maya and Christina may be liable for offences against the person which are
contained in the Criminal Justice Act 1988 and the Offences against the Person Act
1861.
Here the candidate has outlined the relevant area of law and given the correct statutes.
It would have been even better had they flagged up the defences which might be
relevant too.
Maya’s liability is as follows. Maya has thrown a glass of lager in Shaun’s face. Maya
may therefore be liable for s39 assault or battery. Assault s39 CJA 1988 is defined as
intentionally or recklessly causing a person to apprehend immediate personal violence.
The fear does not have to be reasonable but must be genuine. Shaun’s fear is
reasonable as Maya has thrown the contents of the glass in his face; she may therefore
be liable for s39 battery. This is defined as any unlawful intentional or reckless
application of force on a person. The key question is of consent and Maya certainly had
no consent to throw lager over Shaun so it is unlawful. The force can be minimal as
demonstrated in the case of Thomas who touched a girl’s skirt and was convicted of s39
battery. Maya’s violence was also immediate, although this is not an essential element
following the case of Constanza, as it doesn’t matter that a time span is not attached as
long as the victim fears genuine personal violence in the near future, as Shaun certainly
did.
There are some accurate definitions of relevant law and the use of some citation. The
focus is on the actus reus and there is very little, beyond the definitions, which deals
with the key mens rea aspect of the offences.
Maya has potential general defences she can use, however. Maya has had several
glasses of gin and so could plead the defence of intoxication. There are two types of
intoxication – voluntary and involuntary. Maya is voluntarily intoxicated as it would be
hard for her to say that she did not know the effect drink would have. Maya has also
committed a basic intent crime which requires recklessness and, following the case of
Majewski, voluntary intoxication is no defence to a basic intent crime. This is because
the courts regard drunken conduct as reckless conduct. Whether Maya realised the risk
of a criminal offence when reckless about drinking is questionable, and it is a criticism
that the actus reus and mens rea do not coincide, however the defence would be
unavailable to Maya. The defence of mistake would also be unavailable to Maya as a
drunken mistake is never accepted as a defence unless the crime was a specific intent
crime which prevented the formation of mens rea, as established in the case of Beard.
An example of this is Fotheringham, who claimed a mistake defence to rape, as he
thought the babysitter was his wife. A drunken mistake was not allowed to a charge of
rape.
In this paragraph the candidate deals confidently with the defence of voluntary
intoxication. They include some analysis which is not required in this type of question
but they are able to identify, define, explain and apply relevant law.
Christina has also committed offences against the person, however her actions are
more serious as she has gouged Terry’s eye out with a glass. Christina may be liable
for s47 ABH or s20 GBH. S47 is contained in OAPA 1861 and is an assault or battery
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with some harm resulting. As set out in the case of Venna, reckless application of force
is criminally reprehensible. However, the cases of Smith and Saunders defined s20
GBH as ‘really serious harm’ or ‘serious harm’ and gouging someone’s eye out with
what can be seen as a weapon seems more appropriate to s20. As in the case of
Eisenhower, a bruise to the eye and internal bleeding was considered GBH/wounding
as ‘a break in the continuity of the skin’. S20 is defined as any intentional or reckless
unlawful malicious wounding or GBH. Christina is more likely to be liable for GBH.
Once again the focus here is on the actus reus elements. There is no mention of s18
and in this type of question it is a good idea to give the basic elements of each offence
and then, through reasoning, show which one is the best to use based on the facts.
Christina may have the defence of self-defence as it can be used in the prevention of
crime/violence to oneself or another. In this scenario Christina mistakenly thinks Terry is
going to grab Maya. The case of Gladstone Williams outlines that self-defence can still
be used if first the mistake was genuine, second the level of harm was necessary with
regards to the defendant’s mistaken belief and third the prosecution has to prove the
defendant’s self-defence was unlawful. The case of Beckford also allows self-defence in
the event of a genuine mistake. A defendant cannot be expected to ‘weigh to a nicety’
the level of force required in the event of self-defence. However, like Maya, Christina is
intoxicated and this type of mistake is not allowed as a defence, as in the case of
O’Grady who mistakenly believed he was being attacked. This case also decided that a
mistake as to the level of force needed could not be a defence, and Christina gouged
Terry’s eye out. This was not reasonable force and as such the defence of intoxicated
mistake will not be allowed. The principle was confirmed in the case of Hatton, which
rules intoxicated mistake as to the level of force required could not be used for a
specific intent crime either.
There are some nice points here about defences and their application. Citation is well
used and the candidate picks up on some of the key cases. There is also evidence of a
logical thought process – use of words such as ‘however’ in this context suggests
deductive reasoning which is an important AO2 skill.
This is a higher-level response. The candidate identifies the relevant areas of law,
discusses them using largely accurate definitions supported by relevant citation
and then applies the principles of law to the facts, using the scenario well to
support points made. However, the candidate could have covered a wider range
of offences so as to show knowledge and to demonstrate how they decided that
the offences they chose were the most suitable.
Script 2
Maya and Christina have committed several offences under the Offences Against the
Person Act 1861. Maya, who has thrown alcohol in Shaun’s face, has committed an
assault against Shaun. Assault is causing someone to apprehend immediate force. In
assault relevant cases are Logdon and Lamb. In the case of Logdon the defendant
showed the victim a fake gun and even though it was fake, it still caused them to fear
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force. The immediacy of Maya’s actions after what Shaun has said is clear as it says
she picks up the glass and throws the contents into his face. Assault can also be
actually bodily harm (s47) and in the case of Chan Fook it states that assault is an
action done to a person which can be physical or psychological. In the case of Miller it
describes ABH as something that disrupts the victim’s physical health and comfort. By
Maya throwing alcohol in Shaun’s face this does interfere with this comfort.
There are some accurate points here, referring to relevant citation. However, there is no
clear context based on simple definitions and there is no mention of the CJA 1988. The
candidate does use the scenario when applying law to facts but the focus is exclusively
on the actus reus element.
Maya did not commit any wounding under s20 which is the breaking of continuous skin.
In the case of Eisenhower, when the victim’s blood vessel in the eye was ruptured, it
said wounding didn’t include internal bleeding. Furthermore, neither did she commit s18
malicious wounding or GBH with intent. The case of DPP v Smith states GBH as being
really serious harm while the case of Cunningham recognises it as just serious harm.
With the facts here Maya did not commit a s18 offence. She may be liable for s47 as
there was no consent – if there had been consent this would be a defence. A factor that
could affect Maya is that at the time of the assault she was voluntarily intoxicated.
Intoxication is no defence to crimes of basic intent, according to Majewski, which means
if Maya used intoxication she would be automatically guilty of assault as it is a crime of
basic intent. If it was a crime of specific intent then she might lack the necessary mens
rea. Another defence she could try is provocation although from the facts of the case it
shows that the things said from the case of Duffy were not directed to Maya, they were
directed to Christina which means Maya will not be able to use it as defence. All this
means Maya will not have a defence to the potential crime of assault on Shaun.
In this paragraph there are some partial definitions but once again there is a clear focus
on actus reus and no mention of mens rea. The candidate then goes on to deal with
defences and there are some accurate remarks on voluntary intoxication. The reference
to consent is unnecessary and this candidate makes a common error in that they try to
apply provocation to a non-fatal offence. Although they reach the correct conclusion in
that Maya will not have a defence, their reasoning is not as clear, or as accurate, as it
needs to be.
Christina, who mistakenly thinks Tony is going to grab Maya, picks up a glass and
smashes it into Terry’s face, gouging out his eye. Christina may be found guilty of an
offence under OAPA 1861. An assault is causing someone to apprehend immediate
force. Apprehend comes from the cases of Lamb and Logdon. In Lamb the defendant
was pointing a gun at a friend but because the friend knew it was not loaded it was not
an assault. Force comes from the case of Collins v Wilcox and states that there can be
consent to everyday force. In the case of Christina the force she inflicted on Terry was
not everyday force. Under s47 Christina has not committed ABH although she could be
liable for s20 wounding which is the breaking of continuous skin, from the case of
Eisenhower. This case also states that internal bleeding is not wounding. Looking at
what Christina did to Terry, as it states that she gouged his eye out this could be seen
as wounding although due to her state it could also be seen as a malicious wound and
the mens rea for s18 malicious wounding is the same as for murder from the case of
Bryson.
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The candidate changes the focus of their answer but then repeats a lot of the
information given earlier. This means that they lose the time to consider new and more
relevant material. Some of the case citation is also repeated and it is not necessary to
do this. There is some good reasoning as to the most appropriate charge but it would be
helpful to see much more in the way of basic and clear definition to support the
candidate’s thought processes.
It does state that Christina mistakenly thinks something is going to happen and this
means that she could use mistake as her primary defence or even self-defence as it
states you can protect others, from the case of Rose. Due to her state of mind as she
mistakenly thinks Terry is about to grab Maya, she could use mistake from the case of
William and Gladstone. The facts of William and Gladstone and the situation Christina is
in are similar although Christina is intoxicated. Intoxication is no defence to a crime of
basic intent although Christina has committed either s20 or s18. For s18 she would use
the intoxication to show the lack of necessary mens rea as s18 is a specific intent crime.
However, this will depend on the level of Christina’s intoxication. From the information it
may be possible to say that she was extremely intoxicated and therefore was unable to
form the mens rea necessary for the crime.
This paragraph again shows some application skills but the candidate’s thought process
is not fully explained. It is clear that they have knowledge of the key distinctions when
applying the defence of intoxication but lack the ability to make the final link in terms of
a successful plea to a s18 offence only leading to a lesser included offence.
In conclusion Christina may be liable for a charge of s20 or s18 malicious wounding or
GBH with intent. She may be able to use mistake as a defence and also intoxication to
show the lack of mens rea for the crime due to the level of intoxication.
It is good to see a clear conclusion but this candidate hedges their bets to a level where
the examiner is left wondering just how much they really know.
This is a mid-level response. It is reasonably logical in its approach, there are
some relevant cases and the scenario is used in the application of law to facts.
However, there is a lack of clear, succinct definitions in a heavily statute-based
area of law and an overly heavy focus on actus reus. As a consequence the
application could be more convincing.
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