Practical exercise

Practical exercise: Marking exam answers

The following are extracts taken from three exam answers written by real law students (with their permission). The answers are of varying quality. Have a look at the answers and pick out things that have been done well as examples of good practice that you would hope to copy and identify things that have been done less well and consider how you would improve upon what the student has done. There are extracts from three answers to the same question so you might like to consider which you believe to be the best answer and what characteristics the answer has that makes it good.

Question

Andrew and Bart want to burgle a house owned by Lady Maybury. Andrew’s cousin, Chantelle, is Lady Maybury’s cleaner and knows the code that will disarm the burglar alarm and give access to the safe where money and jewellery is kept. Andrew promises to give Chantelle one third of the value of the goods that they steal if she will give them the code to the alarm and lend them her key to the house. Chantelle initially refuses but agrees when Andrew adds that he will let her keep two pieces of Lady Maybury’s jewellery. Andrew and Bart set out at midnight. Andrew has the alarm code written in pen on the back of his hand. Chantelle phones Andrew on his mobile just as he and Bart are climbing over the fence that surrounds Maybury Manor. She tells Andrew that she is afraid that she will be an obvious suspect as she had access to the house so she begs Andrew not to go ahead with the burglary. Andrew tells her not to be foolish and turns his telephone off so that she cannot call again. Using Chantelle’s key, Andrew enters the house and disarms the alarm. Bart stays in the doorway to keep a lookout. As Andrew is rifling through the safe, he hears a commotion outside. He looks out of the window and sees Bart struggling with an elderly man who is employed to take care of the gardens at Maybury Manor. As Andrew looks on in horror, Bart pulls out a knife and stabs the gardener who falls to the ground. Bart runs away and Andrew shouts after him ‘I always knew you were violent but fancy carrying a knife to burgle an empty house’. Andrew races to help the old man but finds that he is dead. Anxious to disassociate himself from Bart’s actions, Andrew telephones the emergency services and asks for an ambulance. He makes a full confession to the operator and waits for the police to arrive and arrest him. Bart and Chantelle are arrested in the early hours of the morning. Advise the parties as to the extent of their criminal liability.

Student answer 1

This is a question about accessories. A, B and C have committed a burglary together, at least A and B have but with C’s help, so they are liable as accessories to each other. A and B are joint principals also. Their liability is found in the Aiders and Abetters Act 1861 which says that accessories are as liable as principals. The actus reus of an accessory is aiding, abetting, counselling or procuring the offence. Each of these words has a different meaning –Attorney-General’s Reference No 1 of 1975. Procure means ‘produce by endeavour’ and is used to describe people who cause the offence to happen. Here, this is Andrew because it was his idea and he asked his cousin for the code and her keys. He is also the principal offender as he went into the house to steal the jewellery and money. Bart stayed outside but this is an accessory as he is helping Andrew so he is aiding the burglary. The burglary could not have happened without Chantelle so she is also an accessory. Bart is a principle offender for killing the gardener. Chantelle wasn’t there when he did it and Andrew was upstairs in the house so they are not involved. Andrew should be advised that he is guilty of burglary and for being an accessory. Bart should be advised that he should not have been carrying a knife because he gave in to the temptation to use it when it wasn’t necessary. The gardener was elderly so was not a real threat to Bart and Andrew clearly thought that there was no need to have a weapon for a burglary of this kind. Chantelle should be advised that she was wrong to give her keys and the code to her cousin but her telephone call demonstrates that she knows this already. She will probably lose her job because of this. She is not guilty of burglary or murder because she was not there but she is liable as an accessory.

Commentary

Bad points

This is not a particularly strong answer. If you look at it carefully, you will see that it has very little legal content. It does try to reference the statute but is mistaken about its name (a common mistake on this topic) calling it the Aiders and Abetters Act rather than the Accessories and Abettors Act plus it fails to state the relevant section number (s 8). There is only one case included in the answer and it was a case that was not particularly necessary to include. The answer does state the actus reus of accessorial liability correctly but makes no mention whatsoever of the mens rea.

This is quite short for an answer to a question in an exam. It is 335 words long which is not a great deal to write in forty-five minutes. More than that, a lot of what is written is not particularly important to the answer.

If we look at the conclusion that was reached, this shows us how little legal reasoning there is in the answer. Let’s take it point by point to demonstrate this:

• Andrew is liable for burglary. This is true but nowhere in the question is burglary defined or the elements of burglary applied to the facts to justify this conclusion. This is a whole section of the answer for which marks were available that has been omitted.
• Andrew is an accessory. It is difficult to work out exactly what this student thinks Andrew has assisted. It cannot be burglary as he is the principal offender so it must be the murder of the gardener but there is nothing in the answer that explores this issue. There was a need to consider whether Andrew is liable as an accessory given that it is clear that he did not know that Bart was carrying a knife. His actions after the death suggest that he would not have been part of a plan that involved use of a weapon so there is a good argument to be made that he is not liable as an accessory. None of these points are covered in this answer.
• Bart should not have been carrying a knife. This is hardly the issue here as Bart was carrying the knife and he used it to kill someone. As such, it would be appropriate to outline his liability for murder. Advising Bart that there was no need to use the knife as the gardener was not a threat seems to suggest that the use of the knife would have been justified if the gardener was a threat which seems a strange point to make in the circumstances (possibly the student was thinking of self-defence but it is very difficult to tell). The answer does note that Bart is the principal offender in relation to the killing but, other than that, there is little in the answer that can attract credit on this issue.
• Bart is an accessory to burglary but this is not explored other than to note that keeping a lookout is a form of assistance.
• Chantelle’s liability is not really outlined in the conclusion although it is noted elsewhere in the answer that she is an accessory to burglary and that she cannot be an accessory to the murder but there is no detail on these points. The conclusion seems to be limited to her moral responsibility and the comment that she will lose her job. This is not relevant to her criminal liability.

There is some suggestion of confusion in the answer. The opening sentences state that all the parties are accessories and then that Andrew and Bart are joint principals. This might mean that all parties have accessorial liability at some point in the answer (which is correct) or it may mean that they are accessories as they are acting in concert (which is not). Andrew and Bart are each principals at some point in the proceedings (Andrew for burglary and Bart for murder) but they are not joint principals. The sense that the student has misunderstood some fundamental principles is furthered by the statement that Andrew has procured the burglary; it is true that procure means to ‘produce by endeavour’ but this applies to people who commission an offence and then take no further part in proceedings. It is possible that the student has confused procuring as the basis for secondary liability and incitement. Overall, it seems to be the case either that the student does not understand the basic operation of primary and secondary liability or that s/he does understand this but has not expressed it clearly.

Finally, the answer is rather rambling and seems to lack structure. If you look again at the beginning of the answer, it feels as if the student has just started writing anything that comes into their mind about the question.

Good points

Notwithstanding all the bad points that have been noted, there is some strength in this answer. The student has recognized that the main issue in the question is primary and secondary liability which is a good starting point. It is quite common for students to fail to notice issues of primary and secondary liability and to answer the question solely on the basis of the substantive offences (see Answer 2). Although it was relevant to discuss liability for the primary offences here (murder and burglary), an answer to this question would not achieve a great deal of success unless it engaged with primary and secondary liability.

In addition to recognizing the focus of the question, there is evidence that the student has a basic grasp of the distinction between principal offenders and accessories. This is not always clear but there is, nonetheless, some evidence of this in the answer: the references to assistance and the acknowledgement that a secondary party faces the same liability as the principal offender. There is a correct statement of the actus reus of a secondary party and some attempt to relate this to the parties. The answer is not strong on these points but it does have some basic awareness of them.

In terms of its technical ability, the answer shows some of the core problem-solving skills that are being examined. It makes an effort to deal with the contribution of each party which gives a sense of structure and there is a reasonable attempt to use specific facts from the question to reach a conclusion. Structure, organization, and application are important skills so it is good to see some evidence of them in the question.

Student answer 2

Starting with the most serious issue, Bart has killed the gardener. This means that he may be liable for murder. Murder is a common law offence of the utmost seriousness which carries a mandatory life sentence. If Bart is found guilty, he will go to prison for life. The actus reus of murder is unlawful killing. It requires that the defendant causes the death of the victim which means that both factual and legal causation is satisfied. Factual causation is established using the but for test that was applied in R v. White. If we ask, but for Bart’s actions in stabbing the gardener, would he have died, the answer is no and factual causation is established. Legal causation requires that the defendant is a significant and operating cause of death which is the case here as there are no other causes except perhaps Andrew’s failure to intervene. That will be discussed later. As Bart is the factual and legal cause of death, he will be guilty of murder as he also had the mens rea which is the intention to kill or cause serious harm. We don’t know if Bart intended to kill the gardener but he did stab him so he intended to cause him at least grievous bodily harm. This is called implied malice and will suffice for the mens rea of murder. Bart is guilty of murder. There is nothing to suggest that he can rely on diminished responsibility to reduce his liability to murder and I don’t think that the courts would allow him to argue that he was provoked by the gardener trying to stop him committing a burglary.

Andrew may also be liable for murder but not by a positive act but by an omission. In general, there is no duty to act in criminal law but there is if you have a duty to do so. One of the categories of duty is if you have created a dangerous situation (R v. Miller) and you could argue that going on a burglary with a man that you know is prone to violence is a dangerous situation even if you don’t know that he’s got a knife. Alternatively, Andrew may have a duty towards the gardener by the fact that he has undertaken a voluntary assumption of care as in R v. Stone and Dobinson where the defendants tried to care for an elderly woman but gave up because it was difficult and she died. Here, Andrew has tried to care for the gardener but he is already dead. If the court decides that Andrew had a duty, then he may also be liable for the death but not for murder as he did not want the gardener to die. This is likely to be manslaughter. It could be constructive manslaughter because Andrew was committing an unlawful act (the burglary) but that might not be sufficiently dangerous so liability for gross negligence manslaughter on the basis of his failure to act is more likely.

Andrew will also be liable for burglary. Section 9(1)(a) of the Theft Act 1968 makes it an offence for a person to enter a building (the Manor) as a trespasser (which he is, even though he’s got the key, because the owner did not give it to him and the cleaner had no right to) with the intention to either steal, cause damage, or harm someone in the building. Here, Andrew intends to steal money and jewellery. It doesn’t matter that he doesn’t do this because he goes in intending to do so and is therefore liable. He may also be liable for section 9(1)(b) burglary once he is inside the building as he is rifling through the safe which will amount to attempted theft or maybe theft itself contrary to section 1 of the Criminal Attempts Act and section 1 of the Theft Act 1968 respectively.

Chantelle was part of the planning stages of these offences so will be liable for conspiracy. She may also face some liability for giving her keys to Andrew such as theft. The keys are property belonging to Lady Maybury and Chantelle has appropriated them by giving them to Andrew (R v. Gomez). She is dishonest as she gives him the keys so that he can steal and so that she can have some jewellery and she has the intention to permanently deprive the owner (Lady Maybury) of her property –not the keys themselves but the jewellery. If she is not liable for theft, it is possible that she has not committed an offence because information such as the code to the alarm cannot be stolen (Oxford v. Morris).

In summary, Bart is liable for murder unless he can find the basis for diminished responsibility. He is not liable for burglary as he did not enter the building (unless Andrew is perhaps his agent?). Andrew is liable for gross negligence manslaughter as he had a duty to act and did not do so. He is also liable for two counts of burglary. Chantelle may be liable for the theft of the keys (and Andrew for handling them).

Commentary

Bad points

The most glaring problem with this answer is that it does not cover primary and secondary liability. There is no mention of accessorial liability anywhere in the answer. Even when the student is struggling to find a basis of liability in relation to Chantelle, there is some rather erroneous discussion of theft (there are problems with the melding of two issues to establish intention to permanently deprive) and reference to conspiracy (which would apply to Andrew and Bart as well) but no consideration of her liability as a secondary party. Given that this is the main issue in the question, the failure to cover this area of law is a real problem in terms of the success that the answer can achieve.

There is some inaccuracy/flawed reasoning in the law that is covered. It is difficult, for example, to see how Andrew has a duty to act in relation to the gardener and the line of argument based upon liability arising after death is particularly unhelpful. Equally, some of the discussion of Chantelle’s liability is rather forced and leads the student into inaccuracy in an attempt to find an offence to use. Of course, none of this would be necessary if the student had been able to identify and apply the law concerning secondary participation.

It is a minor point overall compared to the lack of discussion of secondary participation but the answer is rather too chatty in places.

Good points

This is a longer and more detailed answer (854 words). It shows a reasonable grasp of a range of offences: it is clear that the student understands murder and the relationship with voluntary and involuntary manslaughter, there is a grasp of the operation of the involuntary manslaughter offences, a sound knowledge of the two types of burglary offence, and a fair grasp of theft. Cases relevant to these offences are included and there are some relevant and accurate statutory references. In terms of the substantive offences, the answer has a sound legal foundation.

There is some evidence of an ability to break the offences into their component parts and to establish liability by looking at the facts to see if these elements of the offences are satisfied. The mechanics of problem solving are demonstrated fairly well and the answer has a clear structure. There is a good conclusion that summarizes the liability of the parties.

Overall, the sense that one has in relation to this answer is that it is a real shame that the student has not dealt with the key issue because it is clear that this is a student who is really quite able. The answer is methodical with some good use of the facts and the student has a good grasp of the law that is covered in his/her answer. There is also evidence of some ability to reason through problem areas as it is clear that the student has tried really hard to find a basis for liability (discussion of omission and theft).

Student answer 3

Andrew, Bart and Chantelle have embarked on a criminal enterprise with the aim of stealing Lady Maybury’s money and jewellery from her house. In doing so, each party has incurred criminal liability.

Dealing first with Andrew, he is clearly the driving force behind the plan. He knows that his cousin, Chantelle, has information that can get him into the house and he is the one that goes into the house while Bart waits outside. Andrew may be liable for incitement to burglary for his role in suggesting the offence to the others. Equally, all of the parties are liable for conspiracy to burgle as they have agreed a course of action that will lead to the commission of the offence. Nothing more is needed. Andrew is the party who has committed the actual burglary so he is the principle offender. He has entered a building as a trespasser with the intent to steal as required by section 9(1)(a) of the Theft Act 1968. His liability for this offence is not in question. What is less clear is whether the other parties are accessories to this offence.

Taking Bart first, he has accompanied Andrew and has stood outside the building to act as a lookout. He has not entered the building and has made no contribution to the main offence so cannot be a joint principal. Section 8 of the Accessories and Abettors Act 1861 imposes liability on those who aid, abet, counsel or procure the commission of an offence and treats them in the same way as a principal offender. Andrew has provided assistance at the time of the offence by watching out. He also has the mens rea of an accessory as he intends to assist the commission of the offence – even if this involves going to extreme lengths like attacking elderly gentlemen – and he acts in full knowledge of the circumstances surrounding the offence. His liability as an accessory to burglary is complete.

Chantelle’s position is less clear as she has not accompanied Andrew and Bart to the house. Her contribution was to provide the information that enabled Andrew to carry out the burglary as she lent him her keys and told him the code to the burglar alarm. Without this, Andrew may not have even contemplated going ahead so her role is a significant one even though she was not actively breaking into the building with them. This assistance is likely to fall within the actus reus of an accessory as it is a form of aiding and abetting the offence of burglary – it could not have gone ahead without her. She intends to assist, even though she has to be bribed to do so, and she has knowledge of the offence in question even down to the detail of what property is to be stolen. The only way in which she could argue that she should not be liable is that she has attempted to withdraw from participation. This must be clear and equivocal and it must communicate her desire that the offence no longer goes ahead rather than telling the others that they should go ahead without her as this would imply that she is still with them in spirit. This was the situation in Becarra. In Rook, a defendant was part of a plan but changed his mind and did not turn up but was still liable as an accessory to murder as a failure to attend as planned did not negate his initial contribution. Chantelle has done more than this because she has tried to stop Andrew from going ahead. However, how can she undo her contribution? It is not possible to take away the value of what she has done as Andrew still has the information she provided but in Whitehouse it was actually said that information is easier to revoke than more active assistance as it is a smaller role in the offence. This seems odd because none of this would have happened without Chantelle but, applying Whitehouse and Becarra, it seems that the only conclusion is that Chantelle has made a clear and unequivocal withdrawal from the planned offence so will face no liability.

In conclusion, it is clear that Andrew is the principal offender who will be liable for burglary. Bart will be liable as an accessory to murder for his role in keeping watch and killing the person who disturbed the burglary but Chantelle has made it clear that she wants no part in what is going on so will be held to have withdrawn from the criminal enterprise despite the fact that none of it could have happened without her.

Commentary

Bad points

There is an obvious flaw in this answer and that is that it does not address the issue of the death of the gardener and question whether Andrew and Chantelle are accessories to the murder committed by Bart. This is a significant limiting factor as there is an issue of liability for actions that go beyond the common plan that needed exploration. This would have taken into account the use of a weapon that the defendant was not known to be carrying. There is a good body of case law on this issue and it is unfortunate that it is not addressed.

This is a weakness in an otherwise good answer.

Good points

There is plenty of strength to this answer. The student demonstrates a good understanding of the difference between primary and secondary liability and shows a solid grasp of the relevant law. There is some good discussion of the issue of withdrawal that is supported by relevant case law. It is clear that this student understands most of the issues raised by the question and can use the law effectively to answer a problem question. The answer is well structured and there is a methodical approach to problem solving. If this answer had only dealt with all the issues raised by the question, it would have been a very strong answer to the question. There is a good summary of liability so it is not even the case that the student has run out of time to discuss the other issue—it can only be presumed that they failed to recognize the significance of the stabbing incident.