Criminal Law `a` Level Examination Answer

Criminal Law

A Level Law

Daryl joined a gang which was well known in the area for stealing from local stores. Daryl was ordered to steal a lap top computer. When he refused, the leader of the gang told Daryl that if he did not do this, Daryl s young son would end up in hospital very soon.

Fran went to collect a laptop and mobile phone that she had ordered from a local store. Daryl followed her into the store and watched as Fran was handed a laptop and a mobile phone. She put the mobile phone straight into her bag and held the laptop as she paid the shopkeeper. When Fran left the shop, Daryl followed her and remembering the earlier threat about his son, pushed her hard against the wall, snatched the laptop and ran down the street.

Later, that evening, when Fran switched on the mobile phone, she realised that it was not the one she had ordered but a more expensive model, and so she decided to keep it.

Consider Daryl and Fran s criminal liability for property offences in relation to the laptop computer and the mobile phone.

Assess the ways in which Daryl and Fran may obtain legal advice about their cases before trial.

Part A

(i) Daryl s criminal liability for property offences in relation to the laptop computer.

Theft

Daryl snatched the laptop from Fran and ran down the street. He had appropriated the laptop (DPP v. Gomez, 1993). The laptop is property (Section 4, Theft Act 1968), which belonged to another (Section 5, Theft Act 1968). Daryl s appropriation of the laptop was dishonest (Section 2, Theft Act 1968). The test of dishonesty requires an examination of the defendant s actual state of knowledge or belief as to the facts and an assessment of whether their conduct was dishonest by the standards of ordinary decent people. (Ivey v Genting Casinos (UK) Ltd (t/a Crockfords Club) (2017). By this test Daryl was dishonest. There was an intention by Daryl to permanently deprive Fran of the computer. (Section 5, Theft Act 1968) because of the threat.

Robbery

Daryl committed the offence of robbery. When he stole the computer from Fran, at the time of doing so and in order to do so, he used force on Fran, contrary to Section 8, Theft Act 1968. Where a theft takes place after an assault it will be a matter of fact to determine whether the force was used in order to steal. (R. v. Harris (The Times 4 March 1988)). Where the force and the theft are quite separate from each other, this is not robbery. (Robinson (1977)). However, wrenching property from the victim is sufficient. (Clouden (1987)).

Defence of duress

Daryl voluntarily joined the gang. When Daryl initially refused to steal the computer, the leader of the gang told Daryl that if he did not do this, Daryl s young son would end up in hospital very soon. This was a threat of serious injury to a close member of his family (Singh (1971)), (Valderrama Vega (1985) and Ortiz (1986)). Would a person of reasonable firmness, sharing the characteristics of the accused have responded in the same way? (Graham (1982)). The success of the defence would also depend on Daryl not having a reasonable opportunity to enable his son to escape the consequences of the threat.

Even though he was forced to commit this crime under duress, the defence will only be available to him if the gang s original crimes did not involve violence. (Shepherd (1987). If, however, Daryl knew when he joined the gang that they were likely to use violence, duress will not be available as a defence (Sharp (1987)). The defence of duress is not available if the defendant foresaw, or ought reasonably to have foreseen, the risk of being subjected to any compulsion by threats of violence. (Hasan (2005)). In that case Lord Bingham said: The policy of the law must be to discourage association with known criminals, and it should be slow to excuse the criminal conduct of those who do so. If a person voluntarily becomes or remains associated with others engaged in criminal activity in a situation where he knows or ought reasonably to know that he may be the subject of compulsion by them or their associates, he cannot rely on the defence of duress to excuse any act which he is thereafter compelled to do by them.

(ii) Fran s criminal liability for property offences in relation to the mobile phone.

Theft

Fran had appropriated the mobile phone (DPP v. Gomez, 1993). Whilst her initial appropriation of the phone was with consent it was appropriated within the meaning of section 3 (1) Theft Act 1968 when she decided to keep it. The mobile phone is property (Section 4, Theft Act 1968), which belonged to another (Section 5, Theft Act 1968). Fran had received the property by mistake. There can be an appropriation where the victim does not genuinely consent to the taking (Lawrence (1971)). She should have returned it or retained it and paid extra. Fran s appropriation of the mobile phone was dishonest (Section 2, Theft Act 1968). The test of dishonesty requires an examination of the defendant s actual state of knowledge or belief as to the facts and an assessment of whether their conduct was dishonest by the standards of ordinary decent people. (Ivey v Genting Casinos (UK) Ltd (t/a Crockfords Club) [2017] UKSC 67, [2018] AC 391). By this test Fran was dishonest, the mobile phone was not the one she had ordered but a more expensive model. She formed a dishonest intention when she realised that the phone was not hers and decided to keep it. Appropriation is any assumption by a person of the rights of an owner (Morris (1983). There was an intention by Fran to permanently deprive the store of the mobile phone. (Section 5, Theft Act 1968).

Part B

Assessment of the ways in which Daryl and Fran may obtain legal advice about their cases before trial.

When Daryl and Fran have been arrested, they must be told about their right to free legal advice before they are questioned at a police station. They can:

ask for the police station s duty solicitor - they re available 24 hours a day and independent of the police

tell the police they would like legal advice - the police will contact the Defence Solicitor Call Centre (DSCC)

ask the police to contact a solicitor, for example, their own solicitor.

The advice is free and independent of the police.

Police station duty solicitors

These solicitors are available for clients who have been arrested under suspicion of committing a crime. Frequently, such solicitors are called by an individual while already in police custody, or meetings take place in person at the same location. They are often present at police interviews where an individual is questioned.

Court duty solicitors

These solicitors are available to clients who have already been charged with a criminal offence but require representation at the Magistrates Court. They are often hired by those who do not already have a solicitor or have not been able to contact their regular solicitor. The right to this form of lawyer is the same regardless of whether a client remains in police custody or qualifies for bail.

Public Access allows a person to go directly to a barrister for advice. Quicker than firstly instructing a solicitor and for them to seek Counsel s opinion on the client s behalf

The Bar Pro Bono Unit is a charitable organisation run by volunteer barristers who will offer free advice to those unable to afford legal advice and who cannot obtain public funding

Helplines and internet lines may also be used.