Practical exercise 15.7.5: Evaluation and marking exercise
Evaluating the work of others can be a really powerful way of improving your own work. The question which follows should be answered in 1000 words. Two answers are provided below. Read through them both and consider which you consider to be stronger. Make a note of the strengths and weaknesses of each answer and consider what sort of mark you think that the answer would receive. Can you see any areas of weakness that are sometimes evident in your own work? Think about how you would alter each of the answers to make them more effective.
Jim goes into a post office with an imitation firearm under his coat and passes a bag to the cashier with a note that says ‘fill the bag with money or I’ll kill you’. Terrified, the cashier fills the bag and passes it across the counter to Jim. Rob, an elderly man behind him in the queue, realizes what is happening and seizes Jim by the arm and attempts to make a citizen’s arrest. Jim knocks him to the ground and runs out of the shop. Rob suffers a heart attack and is driven to hospital by Tom, the manager of the post office, who thinks that this will be quicker than calling an ambulance. The car runs out of petrol five miles from the hospital. Rob dies in the car. At the inquest, it is revealed that prompt treatment with the appropriate drug would have saved his life. It was stated that an ambulance could have been at the post office within ten minutes of an emergency call being received. Discuss the liability of Jim and Tom for homicide offences.
Sample student answer 1
<extract open>Jim has used an imitation firearm to compel the cashier to hand over money in the post office. This is likely to give rise to liability for robbery under s 8 of the Theft Act 1968. The actus reus of robbery occurs when force or the threat of force is used immediately before and in order to commit an act of theft. By saying that he would kill the cashier and possessing an imitation firearm, Jim is making a threat to use force on the cashier. This threat is made before the act of theft and in order to commit theft. Theft is defined by s 1(1) of the Theft Act as a dishonest appropriation of property belonging to another with the intention to permanently deprive. The actus reus of theft is the appropriation of property belonging to another which is satisfied here by Jim taking possession of the money belonging to the post office. The mens rea of theft is intention to permanently deprive and dishonesty. Presumably, Jim intends to keep the money, and using a gun to take the money would be regarded as dishonest by ordinary people. Jim must realize that or he would not have run away, so the Ghosh test of dishonesty is satisfied and the elements of theft are complete. As such, it is established that the threat of force was used in order to commit theft so the actus reus of robbery is complete. The mens rea of robbery is an intention to steal and an intention to use force. These are both established so Jim is liable for robbery.
Jim has knocked Rob to the ground so may be liable for battery. The actus reus of battery is satisfied if there is any non-consensual physical contact and this is satisfied as Jim has made contact with Rob in order to push him aside. The mens rea of battery is intention or recklessness as to the non-consensual physical contact and this will be satisfied as Jim pushed Rob deliberately.
Rob has died as a result of suffering a heart attack. As the heart attack occurred immediately after he was pushed it is necessary to consider whether Jim may be liable for murder. Murder is a common law offence. The actus reus is the unlawful killing of a person in being within the Queen’s peace. A person in being is someone who has been born and is capable of independent existence. It was held in Attorney-General’s Reference No 3 of 1994  AC 245 that an unborn child is not a person in being. Rob is not an unborn baby so he is a person in being. Jim’s death occurred within the Queen’s peace as it was not an act of war. There is no longer any requirement that the death occurs within one year and a day of the act which caused death as this was abolished by the Law Reform (Year and a Day Rule) Act 1996. The final requirement to be established is that Jim’s actions were the cause of Rob’s death.
There are two elements of causation that need to be satisfied. Firstly, it must be established that Jim was the factual cause of Rob’s death. If Rob would not have died ‘but for’ Jim’s actions, then Jim is the factual cause of Rob’s death. Although Rob could have had a heart attack at any time, it was Jim’s actions that triggered the heart attack so factual causation is established. Legal causation must also be established. This requires that Jim has made a more than minimal contribution to Rob’s death. It was held in Pagett (1983) 76 Cr App R 279 that the defendant’s act need not be the sole or even the main cause of death provided it is a cause. Even though it seems that Jim’s contribution to Rob’s death was relatively small, it was still the first act in the chain of events that led to death and it was a culpable act whereas Tom was trying to save Rob’s life. It seems reasonable to conclude that Jim’s act was a cause of Rob’s death even if it was not the main cause. If Tom’s actions in driving Rob around and delaying his treatment amount to an intervening act, the chain of causation will be broken and the actus reus of murder will not be established. The acts of third parties such as Tom can break the chain of causation if they are an unexpected and unforeseeable intervention that makes a significant contribution to death. It is not unforeseeable that a bystander will intervene to assist a person who is suffering from a heart attack and Tom’s logic was sound in seeking to get Rob to hospital as quickly as possible so it is the sort of decision that could be foreseen. It was unfortunate that the car ran out of petrol but any sort of delay was possible either with the car or with the arrival of an ambulance so it does not seem that this will break the chain of causation thus the actus reus of murder is established.
The mens rea of murder is malice aforethought which has been interpreted to mean intention to kill or cause grievous bodily harm: Cunningham  AC 566. Jim did not aim to cause Rob’s death so he does not have direct intention to kill but it may be that he has oblique intention if he rendered death or serious injury a virtual certainty: Woollin  1 AC 82. It is not virtually certain that a person who is pushed aside will suffer a heart attack and die so it seems that the mens rea of murder is not established.
Jim may be liable for constructive manslaughter as he committed an unlawful act (battery) which was dangerous and which caused Rob’s death. Jim committed battery on an elderly man which is dangerous and caused Rob’s death so Jim is liable for constructive manslaughter.
Sample student answer 2
Rob suffered a heart attack and died after being pushed to the ground by Jim during a robbery thus Jim may be liable for the common law offence of murder. The actus reus of murder is unlawful killing and requires that the defendant’s act was both the factual and legal cause of the victim’s death. Factual causation is established by application of the ‘but for’ test. An example of this is seen in White  2 KB 124 where the defendant put poison in his mother’s tea but she died of natural causes before the poison could take effect. As she would have died anyway, he was not the factual cause of her death and could not be liable for murder. If it is asked whether Rob would have died ‘but for’ Jim’s actions in pushing him to the ground, the answer is ‘no’ so factual causation is established.
Legal causation requires that the defendant’s act is a substantial and operating cause of the victim’s death. This requirement does not mean that the defendant’s action must be the most immediate cause of death or be the more overwhelming cause of death as it was held in Pagett (1983) 76 Cr App R 279 that the defendant’s act need not be the sole or even the main cause of death provided that it is a cause of death. In Pagett, the defendant used his pregnant girlfriend as a shield to protect himself from armed police. The police fired at the defendant and struck the girlfriend who died from her injuries. The defendant was held to be the cause of death even though it was not his bullet that struck the victim because he had set the whole chain of events in motion. Following this line of reasoning, it can be concluded that Jim is the legal cause of death. However, it is also necessary to eliminate any intervening acts that break the chain of causation. An intervening act is a new and overwhelming cause of death that occurs after the defendant’s act and relieves the defendant of responsibility for the death that has occurred. For example, in Jordan (1956) 40 Cr App R 152, the defendant stabbed the victim who was treated in hospital as a result of the injury. The wound healed and the victim was well on the road to recovery but the hospital mistakenly gave the victim a drug that caused an allergic reaction and the victim died. It was held that the ‘palpably wrong’ medical treatment broke the chain of causation because the original wound had healed and was no longer life threatening. Rob has died not as a result of flawed medical treatment but as a result of not receiving any medical treatment at all. This arose as Tom, acting out of good motives, tried to take Rob to hospital but was delayed when his car ran out of petrol. As it has been stated that prompt medical treatment would have saved Rob’s life and the ambulance could have been at the post office in ten minutes, it is clear that Tom’s actions did contribute towards Rob’s death but that does not necessarily mean that they are an intervening act that breaks the chain of causation. Jim’s initial act was a culpable one and the courts have been reluctant to allow culpable actors to avoid liability as a consequence of subsequent foreseeable intervention by a third party. It is likely that the chain of causation remains unbroken.
The mens rea of murder is an intention to kill or cause grievous bodily harm. Jim did not have a direct intention to kill Rob as it was not his purpose or aim to bring about Rob’s death. If he foresaw that Rob’s death was a virtually certain consequence of his actions, oblique intention will be established and liability for murder will be complete but this is unlikely. It was held in Woollin  1 AC 82 that oblique intention requires that death or serious injury is a virtually certain consequence, barring some unforeseen intervention, of the defendant’s actions and the defendant appreciates that this is the case. In Woollin, the defendant threw his baby across the room because it was troublesome to feed and would not stop crying. His conviction for murder was quashed because the judge did not direct the jury in terms of virtually certain consequences but asked whether the defendant had foreseen a risk that the baby would die which blurred the line between recklessness and intention.
If Jim lacks the mens rea for murder, as seems to be the case, he may be liable for constructive manslaughter. This requires that the defendant commits a criminally unlawful act that is dangerous and results in the victim’s death. Jim has committed the offence of battery by deliberately pushing Rob to the ground. The issue of dangerousness was considered in Church  1 QB 59. The defendant attacked the victim and thought that he had killed her. He threw her body in the river to cover up his crime but the victim was actually still alive and drowned in the river. It was held that a dangerous act is one that a reasonable and sober person would recognize carried a risk of at least some harm. Jim pushed Rob, an elderly man, to the ground. It is likely that reasonable and sober people would see the risk of some harm in this action as elderly people are fragile and can easily suffer broken bones. It is also possible that a reasonable and sober person might think that pushing an elderly person during a robbery might cause him to suffer a heart attack because they are not as strong as younger people. This makes the battery that Jim committed an unlawful and dangerous act and it is this that caused Rob’s death, taking into account the potential intervening act that has already been addressed, thus Jim’s liability for constructive manslaughter is complete.
Each of these answers demonstrates a particularly common error made by students in answering problem questions that causes them to include material that is not of direct relevance to the question. In the first sample answer, the writer has overlooked the instruction at the end of the essay that stipulates that the answer would address liability for homicide offences. As the writer has ignored this and discussed robbery and battery, these sections of the answer are irrelevant (although the battery issue could have been discussed later in relation to constructive manslaughter). As such, about one third of the essay is irrelevant and will attract no marks whatsoever. There are other passages in the first essay that could be eliminated without detracting from the answer. The elaboration on ‘person in being’ and ‘Queen’s peace’ was not really necessary, for example, nor was the discussion of the abolition of the year and a day rule. As these points were relevant to the actus reus of murder, it is not so much that they are not relevant more that it is not necessary to elaborate upon on these facts, particularly given the tight word limit. Try to devote words to contentious issues rather than those that are readily determined.
The second sample answer demonstrates an altogether different problem and that is the tendency to include too much elaboration on otherwise relevant points. You will see that there are several instances when the detailed facts of cases have been included, often in relation to very minor points such as White. It is true that it can help to demonstrate your understanding by using case law to explain a particular legal concept as was done in relation to Pagett and Jordan but it is also necessary to ensure that this does not take up words that are needed elsewhere in the essay. The key weakness in this second answer was that the writer takes a very long time and uses an excessive amount of words to make each point. Take the final paragraph on constructive manslaughter as an example: can you reword this to make it more concise without removing any of the key points?
As Jim lacks the mens rea for murder, he may be liable for constructive manslaughter which is based upon an unlawful and dangerous act which causes death. Jim has committed battery by deliberately pushing Rob to the ground. This unlawful act will be dangerous if it is considered by the reasonable and sober person to carry a risk of at least some harm: Church  1 QB 59. It is likely that reasonable and sober people would see a risk of some harm in pushing an elderly man to the ground. As causation has already been established, it is likely that Jim is liable for constructive manslaughter for pushing Rob and causing him to suffer a fatal heart attack.
This is an example of how the final paragraph could be reworded in a more concise way but still retaining the most important points. This reduces the paragraph from 242 words by half to 119 words. If similar reductions were made throughout the essay, a large amount of words would be released to be used to address issues that would have strengthened the answer. In particular, such reductions would have enabled the writer to do what neither of the answers did: address Tom’s potential liability. If you do not address all aspects of the answer, you are limiting the marks that you are able to achieve so it is important to ensure that you leave sufficient words to do this.