Criminal Law - Property Offences, Fraud and Criminal Damage

Question 1

Theft

Mens Rea:
Actus Reus:

Answer 1

MR - Dishonesty + intention to permanently deprive the other of the property
AR - Appropriation of property belonging to another

Question 2

Theft: Mens Rea - Dishonesty

What three questions should you ask to establish dishonesty?

Dishonesty

Answer 2

1. Is there clear dishonesty?
2. If not, do the s.2 Theft Act exceptions apply?
3. If not, is there dishonesty under the Ivey test (common law test)

Question 3

Theft: Mens Rea

What are the s.2 exceptions to dishonesty?

Answer 3

(1) D has the right in law to the property.
(2) Owner would have consented had they known of the circumstances.
(3) Owner cannot be discovered by taking reasonable steps.

The defendant need only raise these issues. Having done so, the prosecution must disprove them beyond reasonable doubt.

Question 4

Theft: Mens Rea

What is the Ivey test for dishonesty (common law test)?

Dishonesty

Answer 4

The magistrates/jury must

(a) ascertain the actual state of the defendant’s knowledge or belief as to the facts; and (subjective)
(b) determine whether their conduct was dishonest by standards of ordinary people, based upon what they actually knew or believed (objective)

Question 5

Theft: Mens Rea: intention to deprive

“Intention to permanently deprive” means:

Can this occur by borrowing alone?

Intention to permanently deprive

Answer 5

treating the property as his own.

Yes. For example if A borrows B’s concert ticket and returns it after the performance.

Question 6

Theft: Actus Reus - Appropriation

Appropration means:

Answer 6

any assumption of the rights of an owner.

Property that can be appropriated includes intangible property. However, the following cannot be stolen:

• electricity and confidential information.
• Wild mushrooms, flowers, fruits or foliage; wild creatures.

Question 7

Theft: Actus Reus - “Belonging to another”

“Belonging to another” means property in which someone else has:

Answer 7

• possession;
• control; or
• a proprietary interest.

Note: you can steal your own property.
You cannot commit theft of abandoned property, if genuinely abandoned.

Question 8

Robbery

What are the three key components of robbery under s.8 of Theft Act 1968?

What is another term for robbery?

Answer 8

1. AR and MR of theft.
2. Defendant uses threat or force immediately before or at the time of robbery.
3. Motivation to steal

Aggravated Theft.

Question 9

Robbery

Whether sufficient force is used/threatened is a matter to be determined by…

Is violence required?

Can the force/threat be directed at a third party, or does it have to be the victim?

The defendant steals various items from the victim’s home. As he’s leaving, he threatens the victim’s son if she rings the police within five minutes of him leaving. Is this robbery? What is your reasoning?

Answer 9

The jury.

Violence is not required.

Can be directed to a third party, if the victim was aware of it.

Yes. When the threat of force was made, the theft was continuing.

Can also be directed toward property. Does not need to be substantial force, although there comes a point at which it may not be enough contact to justify and would simply be theft.

Question 10

Burglary

Is burglary an either-way or indictable-only offence?
What is the maximum sentence?
When would this sentence be increased further, and to what amount?

Answer 10

Either-way.
10 year imprisonment is the maximum sentence (Crown Court)
Burglary of a dwelling - 14 year imprisonment.

Question 11

Burglary

What are the two types of burglary?

Answer 11

Intention-based burglary
Action-based burglary

s.9(1)(a) and s.9(1)(b) respectively.

Question 12

Intention-based burglary (s.9(1)(a)

What are the mens rea and actus reus elements of intention-based (s.9(1)(a)?

Answer 12

Mens Rea: Intending or being reckless as to trespassing and entering with the intention to:
- steal;
- commit GBH; or
- commit unlawful damage.

Actus Reus: Entering a building or part of a building as a trespasser.

Reckless = defendant foresaw a risk that they did not have permission to enter and went on, unjustifiably to take that riks.

Question 13

Action-based (s.9(1)(b)?

What are the mens rea and actus reus elements of action-based burglary (s.9(1)(b))?

Answer 13

Mens Rea: Intending or being reckless as to trespassing and:
- mens rea of theft
- mens rea of s.20 GBH

Actus Reus: Entering a building or part of a building as a trespasser and completing the actus reus of theft or GBH.

The additional mens rea element for s.9(1)(b) is the mens rea for theft or GBH and not criminal damage Secondly, mens rea for s.20 GBH is possible, i.e. recklessness as to ABH will suffice. This is therefore not the same as for s.9(1)(a) where there must be an intention to commit GBH.

Question 14

Aggravated Burglary

(1) Definition:
(2) “At the time” means:

Answer 14

(1) Defendant commits burglary, and at the time has with him any firearm or imitation firearm, any weapon of offence, or explosive.

(2) At the time of entry for intention-based burglary.
At the time of the ulterior offence for action-based burglary.

Question 15

Fraud

What are the three types of fraud?

Answer 15

a. Making a false representation
b. Failing to disclose information.
c. Abuse of position

Question 16

Fraud: False representation

What are the two conditions for a representation to be false?

Does the prosecution need to prove that the victim was deceived?

On that basis, a representation by email is made when…

Answer 16

(a) Untrue or misleading;
(b) person making it knew that it was, or might have been, untrue or misleading.

No.
…the email is sent.

Question 17

Fraud: False Representation

Additional to the mens rea of knowing the representation to be untrue/misleading, the defendant must be shown to have…

2 conditions

Answer 17

(1) acted dishonestly and
(2) intended, by that representation, to make a gain or cause loss to another.

Making a gain includes to oneself and to another.
Causing loss includes exposing another to the risk of loss.

Question 18

Fraud: Failing to disclose information

This occurs where a person (2 conditions):

Give 5 examples of a legal duty to diclose information.

Answer 18

(a) dishonestly fails to disclose to another person infromation which they are under a legal obligation to disclose; and
(b) intends, by failing to disclose the information, to make a gain or cause loss to another.

• Statute
• Utomost good faith transactions (e.g. contracts of insurance)
• Express or implied terms of a contract
• Custom of a particular trade or market
• Fiduciary relationship

Question 19

Fraud: Abuse of position

Occurs where a person:

3 conditions

Answer 19

(a) occupies a position in which they are expected to safeguard, or not to act against, the financial interests of another person;
(b) dishonestly abuses that position; and
(c) intends, by means of that abuse of position, to make a gain or cause loss to another.

Question 20

Fraud: Abuse of position

What does “position of financial trust” mean?

Answer 20

Victim voluntarily placed the defendant in a privileged position with respect to their financial interests.

Interpreted widely. Not just fiduciary positions.

Question 21

Simple Criminal Damage

Mens Rea:
Actus Reus:

Answer 21

MR:

(a) Intention or recklessness as to destruction or damage of property belonging to another; and

(b) Knowledge or belief that the property belongs to another

AR: Destruction or damage to property belonging to another, without lawful excuse.

Question 22

Simple Criminal Damage: MR

Recklessness means:

Answer 22

Whether the particular defendant foresaw the risk of criminal damage and went on to take that risk unreasonably.

Question 23

Simple Criminal Damage: AR

a. Drawing on a pavement with soluble chalk
b. Spitting on a police officer’s raincoat.

Which one of these is criminal damage and why?

Answer 23

a. is criminal damage: expense incurred in rectifying.

Question 24

Simple Criminal Damage

Can intangible property be criminally damaged?
Can animals be criminally damaged?

Answer 24

No.
Yes, if tamed or ordinarily kept in captivity or reduced into possession.

Flowers growing in local authority park may be damaged, but not wild mushrooms, flowers, foliage and plants.

Question 25

Simple Criminal Damage: AR

Can simple criminal damage be done to a person’s own property?

What property can criminal damage be done to? (property possessed in three different ways):

Answer 25

No.
Property over which the victim has:
a. custody/control
b. proprietary right/interest
c. a charge

Question 26

Q

Simple Criminal Damage: AR

What are the two (non-exhaustive) situations of lawful excuse set out in s.5 of the CDA 1971?

Lawful excuse

Answer 26

1. Honest belief that the person entitled to consent did consent, or would have consented had they known of the circumstances (subjective test) *
2. Honest belief that the property was in need of protection.

• Even if belief was held due to intoxication, this will be a defence.

Question 27

Simple Criminal Damage: AR

What are the four questions to ask in determining whether the defendant can rely upon the lawful excuse of the property being in “need of protection”?

Honest belief that the property was in need of protection.

Answer 27

1. Did the defendant honestly believe their action was protecting, or was capable of protecting the property? (subjective)
2. Was the action objectively done to protect the property? (objective)

If so,

3. Did D honestly believe the property was in immediate need of protection? (subjective)
4. Did D honestly believe their action was reasonable in the circumstances? (subjective)

Question 28

Arson

Arson is simply the offence of ____ by fire.

Answer 28

Criminal damage.

Question 29

Aggravated Criminal Damage

What is the additional mens rea elment of aggravated criminal damage?

What are the two differences between the actus reus in criminal damage and aggravated criminal damage?

Answer 29

MR: The defendant intended, by the destruction or damage, to endanger the life of another, or is reckless as to whether the life of another would be thereby endangered.

AR: In aggravated criminal damage:

1. Property can belong to the defendant himself or to another.
2. The statutory defence of lawful excuse does not apply. *

Does not prevent reliance on a general defence.
Adding in the ingredient of fire will make this aggravated arson.

Question 30

Aggravated Criminal Damage

Does life actually need to be endangered?
Does the defendant need to have intended to endanger life?

The defendant fires a shot through a window pane, behind which two people were standing. No damage was caused. The defendant’s only intention was to shoot the victims with the bullet. Was there aggravated criminal damage?

Endangerment to life

Answer 30

No.
No. Recklessness.
No. Endangerment must be caused by the damage, and not the act.