The structure of your answer is important. Work out the most logical sequence for dealing with the issues. Some may be the consequence of others. Depending on how one issue is resolved, there may be alternative possibilities to be considered. If you can identify the legal issue, show the results of different interpretations of the law and then make a judgment call about what you think is the right legal interpretation (and therefore the right outcome) you are on the right track. If you do this but happen to get the legal interpretation wrong, the examiner will be able to see where you went wrong and will not assume you know nothing. This approach therefore encourages you to get the right result; but, if you do not, it will get you more marks than any other.
Some supervisors and examiners recommend starting your answer with a brief introduction which indicates the main issues that emerge from the problem question and how they fit together. While this can be helpful in some cases, in particular in assisting you in marshalling your thoughts and devising a structure for your answer, it may not be appropriate for all types of question. For example, it is likely to be most help in relation to Type B problem questions because the problem question revolves around a single major event. For a Type A problem question, the most you could say would be something like, “This raises a number of sexual offences as well as issues in relation to the age of consent”, and for Type C questions it is probably best to get started on identifying all the different offences. If you are tempted to write more than a couple of lines in the introduction it is best to leave it out altogether, and very often an introduction adds nothing useful at all.
In Criminal Law questions, the best way to structure your thinking about a question is to follow a logical format. This might vary, depending on the type of question but it is usually best to work through the facts chronologically. However, it will always be necessary to identify the possible offence(s) for each person. Then for each offence, you will need to set out:
- The actus reus of the offence and identify whether it is/is not made out on the facts
- The mens rea of the offence and identify whether it is/is not made out on the facts
- Any applicable defences and consider whether they are/are not made out on the facts
A general rule of thumb is to start with the most serious offence, but this might not be appropriate for all types of question:
In a Type A problem, you must deal with each part separately, rather than seeking to form them into some kind of single essay. Be careful to check whether the separate parts are cumulative or alternative – if they are alternative, then what happens in earlier parts is irrelevant to (and may even appear to contradict) what happens in later parts.
In a Type B problem, you may have to use a combination of chronological ordering and ordering by most serious offence. In the example it would make most sense to discuss Rachel’s crimes, and then Jamie’s crimes.
In a Type C problem, it might be easier to work through the scenario in chronological order so as to avoid confusion and the risk of forgetting some incidents. In the example given previously, for example, the most serious crime is the potential murder of Stacey, but it follows a number of other crimes, beginning with the conspiracy and it is therefore more sensible (and safer) to take each potential offence in chronological order.
Another thing to be aware of when deciding which person you should talk about first is their level of participation. If one of them is a principal and one of them an accessory, or secondary party, then you should always discuss the principal’s offence(s) first. The reason for this is that the secondary’s liability will usually be parasitic upon the principal’s liability. If there are inchoate offences (e.g. attempts) it is often a good idea to discuss them first as well.
Even if it is obvious that a particular offence has not been committed, it is usually advisable to deal with it briefly, so that the examiner knows you have considered it and rejected it (unless it is very tangential). For example, whenever there is a dead body you should start by considering murder, even if you only do so in a short sentence e.g., “X has caused the death of Y but as she did not intend to cause death or grievous bodily harm (Cunningham) it will not be murder.”