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Transkills: supporting transition to University


First, it is not your job to argue about, “twist” or otherwise strain the facts you have been given. You should assume that all the facts in the question are true but they may be expressed in ambiguous terms, like “Y wasn’t sure whether or not the video player was stolen”. In such a case, you must acknowledge the ambiguity, rather than twist it to suit you: in relation to the example just given, you should not say “clearly Y must have known the video player was stolen” as that is not what the facts say. Instead, consider whether there is something important in the words “wasn’t sure” ie they suggest that he may have turned his mind to the issue but do they mean he “suspected” it was stolen? Similarly, you do not need to consider how such facts could be proven in a court of law. Just assume the facts are as they are stated to be and assume they could be proved as such. 

You also should not add in any new facts, or change the facts in any way (e.g. in a problem where you are told that X had died, do not say, “If X had not in fact died, Y might be guilty of an offence contrary to s18 of the Offences Against the Person Act”). The problem question is not designed as a jumping off point for you to try to demonstrate all the law you know. It is designed to test how you apply the law to the facts you have been given. The facts in the question are, therefore, conclusive.

Nevertheless, you need to be alert for facts that have been left out. Sometimes you will need more information before you can be definitive about whether a crime has been committed or whether a defence exists. Look out for such omissions and state how the presence or absence of these facts would affect your answer. For example, “Y may be liable for criminal damage contrary to the Criminal Damage Act 1971, s. 1(1) as he damaged property belonging to another: the difficulty is knowing whether Y did so with the fault element required for the offence. The facts state Y did not intend to damage the car door, but we do not know if he was reckless. Recklessness is [insert definition and authority]. If Y did foresee the risk of damaging the door, he is liable for criminal damage; if he did not foresee that risk, he is not liable.”

Stronger students quickly learn to avoid the temptations involved in such situations: it is very easy to try to evade a decision on whether an offence has been committed by saying “it depends...”, even where the facts of the problem are sufficient to provide a definite answer. If there is any evidence on which to base your decision, set out the key facts, and then add your authority and your conclusion. For example: “If Y did foresee the risk of damaging the door, he is liable for criminal damage; if he did not foresee that risk, he is not liable: R v G. On the facts, we know that Y was trying to open the car door and had just seen his friend smash a car window so it is quite possible he was aware of the risk of damaging the door.” 

Even if no facts are missing, what is known as a ‘question of fact’ may arise. This is where a particular magistrate or jury is given the task of determining what the special fact was. Often it is the jury we ask to make such decisions, but not always. For example, in respect of the application of the defence of loss of self-control to murder, the question of whether a person, of the same age and sex of the defendant and in the same circumstances, would react to the victim’s act by killing the victim, is a question of fact that must be decided by the jury. However, just because something is a jury question does not mean you should abandon responsibility for it. You can still give an indication of whether the evidence is such that a jury would be likely to make a decision of guilty or not guilty. If what the victim did was very minor (e.g., X called Y a clumsy cow), then a jury would not be likely to find that the “loss of control” defence to murder applies.