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SQE > Criminal: Non-Fatal Offences > Flashcards

Criminal: Non-Fatal Offences Flashcards

1
Q

Name the FIVE non-fatal offences?

A

s18
GBH (s20)
ABH (s47)
Battery
Assault

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2
Q

Name the two common-law non-fatal offences?

A

Battery and Assault

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3
Q

What is the AR of Assault?

A

Causing V to apprehend IMMEDIATE and UNLAWFUL PERSONAL VIOLENCE

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4
Q

What is the MR of Assault?

A

INTENTIONALLY or RECKLESSLY causing V to apprehend immediate and unlawful personal violence

– intentionally or recklessly causing another person to apprehend immediate and unlawful personal violence (Fagan v Metropolitan Police Commissioner. The HL confirmed this definition of the offence in the case of R v Ireland; Burstow).

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5
Q

What defences might be available for Assault?

A

Absence of a valid defence for:
1. Self-defence
2. Intoxication
3. Consent

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6
Q

Meaning of assault - AR - Apprehension?

A

Apprehension means to make the victim expect or anticipate but not necessarily fear immediate and unlawful personal violence (contract R v Lamb and R v Logdon)
e.g. if neither D nor V believe gun could fire, then no assault - D must cause V to believe D can and will carry out threat of force. vs If D knew it was a replica but made victim fear it was loaded, assault committed if V apprehended such threat, irrelevant D does not have means to carry it out.

No need for any force or physical contact.

Words alone and silence is enough (R v Ireland) e.g. ‘get out the guns’, or making silent telephone calls to Vs.

Words can, however, negate an assault (Tuberville v Savage) - i.e. saying would attack but won’t given near judges.

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7
Q

Meaning of assault - AR - Immediate?

A

Does not mean instantaneous but some time not excluding the immediate future (R v Constanza) or imminent (R v Ireland)

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8
Q

Meaning of assault - AR - Unlawful?

A

Not done in self-defence or with the victim’s consent

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9
Q

Meaning of assault - AR - Personal Violence?

A

All the victim has to anticipate is an unwanted touch.

must be PHYSICAL

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10
Q

Assault - MR?

A

D intends or is reckless as to causing V to apprehend immediate unlawful personal violence (R v Venna).

  • assault = basic intent crime (can be committed intentionally or recklessly)
  • D intends to assault if it was D’s aim or purpose
  • D is reckless as to assault if they:
    a. see risk that their actions will cause V to apprehend immediate and unlawful personal violence; and
    b. in the circumstances known to D, it was unreasonable to take that risk (R v G)

Subjective recklessness (as now set out in R v G) must be established for any assault charge based upon recklessness.

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11
Q

What is battery? Statute provision? Maximum penalty?

A

D touches V in an unwanted fashion.

Defined in common law.

Sentence contained in s39 Criminal Justice Act 1988

max penalty of 6 months in prison and/or £5000 fine.

= actual intended use of unlawful force to another person without consent (Fagan). includes reckless application of force.

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12
Q

What is the AR of battery?

A

Application of UNLAWFUL FORCE

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13
Q

What is the MR of battery?

A

Internationally or recklessly applies unlawful force

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14
Q

What defences available for battery?

A

Self-defence, intoxication, consent

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15
Q

Meaning of Application - three ways battery can be inflicted?

A
  1. Directly (Collins v Wilcock) - D hitting V with or without weapon, or throwing missile at V.
  2. Indirectly (R v Martin, DPP v K) - D closed exit doors of theatre, as people about to leave, turned off lights and panic ensured = indirect battery. Also digging a pit which V then falls into = indirect battery. Pouring acid onto a hand drier that then ejected on fact of another pupil causing scarring (had AR of battery, but not MR).
  3. By an omission (Santana Bermudez - police officer asked R if he had any needles/’sharps’ on him - R replied ‘no’ but then officer’s finger pierced by a hypodermic needle - D had created danger (by exposing officer to risk) which he had failed to avert).
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16
Q

Meaning of unlawful - battery?

A

Means battery not done in self-defence or with V’s consent.
Consent can be express or implied consent to inevitable everyday contact.

e.g. Police officer grabbed woman’s arm to prevent her from walking away without power to do so - police officers action went beyond implied consent.

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17
Q

Meaning of Force - battery?

A

Means merest of touch and doesn’t have to be rude, hostile or aggressive

Touching someone’s clothing is enough

Where battery results in harm, which is more than trivial, D will be liable for the more serious offence under s47

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18
Q

MR of Battery?

A

Intention or recklessness as to applying unlawful force on another person (R v Venna).

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19
Q

Examples of Assault?

A

Threats of violence only
Victim anticipated violence but there is no actual touching
Some words/physical movement from D (e.g. raising fist towards victim)
Silence in some circumstances

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20
Q

Examples of Battery?

A

Mere touch
An unwanted kiss
A slap

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21
Q

What the three MOST SERIOUS non-fatal offences?

A

s47 OAPA 1861 - Assault occasioning ABH
s20 OAPA 1861 - Wounding or GBH
s18 OAPA 1861 - Wounding/GBH w Intent

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22
Q

AR of Assault occasioning ABH (s47)

A

Assault (meaning assault or batter)
Occasioning - normal principles of causation apply.
ABH

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23
Q

MR of s47 Assault occasioning ABH?

A

Intent of recklessness as to:
- causing V to APPREHEND IMMEDIATE AND UNLAWFUL PERSONAL VIOLENCE;
OR
- applying UNLAWFUL FORCE TO ANOTHER.

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24
Q

What does s47 say about those convicted on indictment of any assault occasioning ABH?

A

They shall be liable to be imprisoned for any term NOT EXCEEDING FIVE YEARS.

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25
Q

Meaning of Assault - s47 AR?

A

Both AR and MR of either an assault or battery must be established.

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26
Q

Meaning of Occasioning - s47 AR?

A

Assault/Battery must result in ABH being cause to V. Normal principles of causation apply.

Offence can also be committed through an omission (DPP v Santana-Bermudez)

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27
Q

Meaning of ABH - s47 AR?

A

includes ‘any hurt or injury calculated to interfere with the health or comfort’ of V.

Hurt must be MORE than TRANSIENT AND TRIFLING, but need not be serious or permanent.

– Momentary loss of consciousness = capable of being ABH.
– Even cutting pony tail of estranged girlfriend = ABH even though no mark on body or break of skin.
– Includes PSYCHIATRIC injury

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28
Q

MR required for OAPA 1861, s47?

A

no MR required for ABH
all that is required is MR for assault or battery

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29
Q

What is the offence of OAPA 1861, s20?

A

NOTE: there are TWO offences created by s20:
1. MALICIOUS WOUNDING; and
2. MALICIOUSLY INFLICTING GBH

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30
Q

What is AR of s20?

A

Wound; or Infliction of GBH

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31
Q

What is MR of s20?

A

D must intend or be reckless as to causing of some harm.

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32
Q

Meaning of ‘wound’ in AR of s20?

A

‘Wound’ means to cause a wound - normally causation will not be an issue.

ANY BREAKING OF SKIN will suffice, but must have break of both dermis and epidermis.

Rupture of blood vessels internally is NOT enough.

Occasionally might be, for example, where:
- D chases V, causing them to fall and cut their head; or
- D throws knife and V tries to intercept it.

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33
Q

Meaning of infliction (of GBH)?

A

Infliction = cause, and normal rules of causation apply.

Can have infliction of GBH under s20 without an assault being committed, or even simply by D phoning V a large amount.

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34
Q

Meaning of GBH?

A

Psychiatric injury MAY amount to GBH is SUFFICIENTLY SERIOUS, but cause and effect will need to be proved by expert evidence.

SERIOUS HARM suffices.

Jury should look at V’s age and health, and totality of injuries e.g. baby with multiple cuts and bruises which on own would not have been enough but taken together could amount to serious harm.

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35
Q

s18 offence?

A

TWO offences created under s18:
1. MALICIOUS WOUNDING WITH INTENT TO CAUSE GBH; and
2. MALICIOUSLY INFLICTING GBH WITH INTENT TO CAUSE GBH

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36
Q

MR for s20?

A

D must INTEND or BE RECKLESS as to the causing of SOME harm.

Does not need to foresee that unlawful act might cause physical harm of gravity described in section.

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37
Q

AR of s18?

A

Wound; or Causing GBH

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38
Q

MR of s18?

A

D must INTEND to cause GBH

39
Q

Meaning of wound under s18?

A

same meaning as under s20 - must be break in continuity of both layers of skin. Any breaking of skin will suffice.

40
Q

Meaning of ‘causing’ under s18?

A

Normal rules of causation apply

41
Q

Meaning of ‘GBH’ under s18?

A

Same meaning as under s20 - so SERIOUS harm.

42
Q

Intention to cause GBH under s18 meaning?

A

D must actually INTEND to cause harm which amounts in law to GBH (serious harm). Recklessness is not enough.

NOTE: where AR is wound, MR is still intention to cause GBH. Intention to wound is not enough.

Intention can be direct (aim, purpose, R v Moloney) or oblique (R v Woolin).

43
Q

Are juries entitled to find s18 by oblique intent?

A

NO , unless they feel sure:

a. serious injury was a VIRTUAL CERTAINTY as a result of D’s action (objective element);

AND

b. D APPRECIATED that (subjective element).

44
Q

Examples of injuries under s47 (assault occasioning ABH)?

A

Temporary loss of sensory function (sight or hearing)

Temporary loss of consciousness

Extensive bruising

Cutting someone’s hair without their consent

Minor fractures

Psychiatric injury that is more than trivial - beyond mere fear, distress or panic.

45
Q

Examples of injuries under s20 (wounding or inflicting GBH) or s18 (wounding or causing GBH with intent)?

A

GBH:
– Permanent Loss of sensory function
– Permanent disability
– Broken Bones
– Fractured Skull
– Substantial Blood Loss

Wound - breaking of both layers of skin, the dermis and epidermis.

46
Q

What is the basic offence of criminal damage?

A

s1(1) Criminal Damage Act 1971

  1. Destroy of damage
  2. Property
  3. Belonging to another
  4. Without lawful excuse
  5. Intention or recklessness as to the damage or destruction of property belonging to another.
47
Q

What is the maximum sentence for basic criminal damage?

A

10 years’ imprisonment.

48
Q

Meaning of ‘destroy or damage’ - AR of basic criminal damage?

A

Destroy = following D’s actions, property no longer exists.

Damage = Q of fact and degree through case law
– no need for property to be useless or prevented from serving its normal function
– covers injury, mischief or harm done to property.
– damage need not be permanent - relevant that time, effort and money spend in restoring property to original state (e.g. pavement graffiti removal)
– Mud on walls that cost £7 to remove = damage
– Not just permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness
- spitting on policeman’s coat was not criminal damage as could be wiped away with cloth to return to original state without mark/stain.
- blocking toilet with blanket in prison cell = damage as both floor (though waterproof) and blanket (though washable) temporarily unusuable.

49
Q

Meaning of Property - AR of basic criminal damage?

A

Property of TANGIBLE nature, whether real or personal including:
- MONEY and
- wild created which have been tamed or ordinarily in captivity
- any other wild creatures or their carcasses if, but only if, they have been reduced into possession which has not been lost/abandoned/in course of being reduced into possession.

But NOT including mushrooms (any fungus) growing wild on any land, or flowers, fruit or foliage of a plan (includes any shrub or tree) growing wild on any land.

Also information does not fall within s10(1) CDA 1971 definition.

50
Q

Meaning of ‘belonging to another’ under AR of basic criminal damage?

A

Belonging to any person who:
- has custody/control of it; OR
- has in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); OR
- having a charge on it

Property can be owned by more than one person. Where D owns property, it can still belong to another, e.g. a co-owner. If property mortgaged, will also belong to bank or mortgage company.

51
Q

MR of criminal damage explained?

A

MR of basic criminal damage is INTENTION or RECKLESSNESS as to destruction or damage of property belonging to another.

Intention = ordinary meaning i.e. whether at time D carried out the AR, it was D’s aim or purpose to destroy or damage the property belonging to another.

RECKLESS CRIMINAL DAMAGE - prosecution must provide that:
a. at time of committing AR, accused was SUBJECTIVELY aware of a risk; and
b. in circumstances known to the accused, it was OBJECTIVELY unreasonable for the accused to take that risk.

MR extends to WHOLE of AR - i.e. must do act that damages property recklessly with knowledge, or recklessness as to whether property belonged to another.

52
Q

What is required for BASIC ARSON?

A

Arson = criminal damage by FIRE.

s1(1) and 1(3) CDA 1971 = basic arson charge.

AR: Destroy or damage BY FIRE, Property, Belonging to another, without lawful excuse

MR: Intention or recklessness as to the destruction or damage of property belonging to another BY FIRE.

53
Q

Meaning of without lawful excuse - basic criminal damage/arson?

A

A D will NOT commit criminal damage if they have a lawful excuse – this can be:

  • any GENERAL defence - where relevant, can apply to any offence of criminal damage/arson under the CDA 1971 (s5(5))
  • s5(2) CDA 1971 lawful excuse defences - where relevant, can apply to basic criminal damage or basic arson (but not the aggravated form of these offences which are covered in a separate element).
54
Q

What are the TWO lawful excuse defences to basic criminal damage/arson?

A

s5(2)(a) - where D believes that owner WOULD HAVE CONSENTED to the damage

s5(2)(b) - where D acts to PROTECT THEIR OR ANOTHER’S PROPERTY

55
Q

What is an additional requirement of s5(2)(a) lawful excuse defence, which is found under s5(3)?

A

D’s believe need NOT be reasonable. Only necessary for it to be HONESTLY HELD.

56
Q

Does D’s voluntary intoxication impact his ability to rely on the s5(2)(a) lawful excuse defence?

A

NO -Entitled to defence even if resulting from D’s (voluntary) INTOXICATION

57
Q

Can D’s motive be taken into account re the s5(2)(a) lawful excuse defence?

A

Provided D honestly believes owner of property has or would have consented to damage to property, D’s motive for causing damage is IRRELEVANT, even where motive is to perpetrate a fraud.

Criminal damage is not an offence of dishonest.

e.g. owner of business in financial trouble had allegedly said to D that ‘nothing like fire to held out struggling business’. D thought this meant owner instructing D to set fire to factory. His conviction for arson quashed, he could rely on s5(2)(a) defence.

58
Q

What is the limit of the s5(2)(a) defence though? Believing WHO has given consent will not be enough?

A

A belief, however powerful, genuine and honestly held, that GOD has given consent = NOT a lawful excuse under domestic law of England!

59
Q

Does s5(2)(b) lawful excuse defence apply to protection of people?

A

NO - only to protection of property. Children do not constitute property for purpose of section. Does apply to pet dog or cat though as these are property, but not to people.

60
Q

What are the FOUR requirements for s5(2)(b) defence to apply?

A
  1. D must act to PROTECT PROPERTY
  2. D must believe property was in IMMEDIATE need of protection (subjective test)
  3. D must believe that means of protection adopted are REASONABLE
  4. Damage caused by D must be (objectively) CAPABLE OF PROTECTING THE PROPERTY.
61
Q

Do other lawful excuses apply to basic criminal damage/arson, or just the s5(2) ones?

A

YES - s5(5) CDA 1971 preserves the availability of the general defences to criminal offences such as self-defence, and duress.

62
Q

Aggravated criminal damage?

A

s1(2) CDA 1971 s1(2):

Person who

  1. WITHOUT LAWFUL EXCUSE
  2. DESTROYS OR DAMAGES (by fire if aggravated arson is the charge)
  3. ANY PROPERTY,
    4:
    a. intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; AND

b. intending by destruction or damage to endanger life of another or being reckless as to whether the life of another would be thereby endangers….

shall be guilty of an offence.

63
Q

Can D commit aggravated criminal damage/arson on D’s own property?

A

YES!

64
Q

Do the lawful excuse defences in s5(2) CDA 1971 apply to aggravated criminal damage/arson?

A

NO - The lawful excuse offences do not apply. However, D might have a lawful excuse if any of the general defences to criminal offences apply (s5(5)).

65
Q

For AR of aggravated criminal damage or arson, it is relevant whether life of another was actually endangered?

A

NO - this is IRRELEVANT i.e. doesn’t matter whether accused life was ACTUALLY in danger - about whether accused intended or was reckless as to whether life might have been endangered.

66
Q

What do words ‘destruction and damage’ in s1(2)(b) re aggravated criminal damage/arson refer to?

A

They refer back to destruction or damage intended, or as to which there was recklessness, NOT to the destruction or damage actually caused.

67
Q

Must danger to life arise from damaged property?

A

YES - There needs to be a casual link between damage to property and danger to life.

If damage caused by fire, risk to life will always be from damaged property. It is not the match and the inflammable materials, the flaming firebrand or any other inflammatory agent which arsonist uses to start fire which causes danger to life, it is the ensuring conflagration which occurs as the property which has been set on fire is damaged or destroyed.

Compare with situation where D fired 3 shots through a window. Any risk to life intended/foreseen had been caused by bullets fired, not by damaged property - so no causal link between damage to property and danger to life.

Look at R v Webster case?

68
Q

Definition of offence of theft?

A

s1(1) Theft Act 1968

Person = guilty of theft if:

  1. DISHONESTLY (mr)
  2. APPROPRIATES (ar)
  3. PROPERTY (ar)
  4. BELONGING TO ANOTHER (ar)
  5. WITH INTENTION TO PERMANENTLY DEPRIVE over of it (mr)
69
Q

What does ‘appropriation’ mean?

A

Any assumption by a person of the rights of an owner amounts to an appropriation.

  • Note: only necessary to assume one of the rights of the owner. It was owner’s right to label his goods, so when Morris swapped the labels (removing correct price labels and replacing them with labels for lower-priced goods), this was appropriation.

such rights might include selling it, hiring it, giving it away, destroying it etc

70
Q

Can a D appropriate property with consent of owner?

A

YES - when theft alleged and that which is alleged to be stolen passes to the D with consent of the owner, but that consent has been obtained by a false representation, has (a) an appropriate within meaning of s1(1) taken place, or (b) must such a passing of property necessarily involve an element of adverse interference with some right of owners?

There could still be appropriation where property passed with owner’s consent, as there was no need for an adverse interference with the owner’s rights.

71
Q

Can a person be guilty of stealing a valid inter vivos gift?

A

Appropriation is a neutral act and the state of mind of the donor is irrelevant to appropriation

therefore appropriation could take place with or without the consent of the owner; and

therefore a person could be guilty of stealing a valid inter vivos gift.

72
Q

Can theft occur where MR only develops later after the D first assumes owner’s rights?

A

Yes

  • Theft Act 1968 s3(1), which provides for later assumption of owner’s rights to amount to an appropriation:

‘Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner’.

– can be applied where initial assumption of rights does NOT amount to theft - provides that a later assumption of a right, either by keeping it or by dealing with it, will be appropriation. Theft will take place when the D forms the MR, subject to remaining elements also being present.

73
Q

Can an innocent purchaser be guilty of theft?

A

NO - D who purchases goods in good faith for value and then later discovers that seller had no title to property but decides to keep it = exempt from liability under s3(2) Theft Act 1968.

Note: bad faith precludes protection afforded by Theft Act 1968 s3(2).

74
Q

Meaning of ‘property’ re AR on Theft?

A

s4 Theft Act= ‘property’ includes money and all other property, real and personal, including things in action and other intangible property.

certain exceptions to land (s4(2)), things growing wild (s4(3)) and wild creatures (s4(4)) - but generally all property may be stolen.

75
Q

Exceptions to ‘property’ under theft - land?

  • General Rule
  • THREE exceptions
A

General rule: land cannot be stolen.

However, person guilty of theft is:

s4(2)(a) - D is authorised to sell land and sells more than meant to;

s4(2)(b) - D is a trespassor or invited guests and removes a fence or a lavender pland (appropriates anything by severing it, or causing it to be severed

s4(2)(c) - D is tenant and removed/sells without removing, the whole or part of any fixture or structure let to be used with the land e.g. fixed greenhouse.

76
Q

Exceptions to ‘property’ under theft - wild animals?

A

D will NOT be guilty of theft of:
- untamed animals and/or
- animals not ordinarily kept in captivity

D can be guilty of theft of:
- tamed animals (e.g. pets such as cats or dogs)
- animals kept in captivity (e.g. in a zoo); and/or
- animals in the course of being reduced into possession (e.g. have been trapped).

77
Q

Exceptions to ‘property’ under theft - wild plants?

A

D will not be guilty if pick any of the following growing wild:
- mushrooms,
- flowers
- fruits; and/or
- foliage

D can be guilty of theft is:
1. Purpose of picking from wild plant is:
– A reward;
– To sell; or
– For another commercial purpose
2. D unroots or cuts parts of the wild plant
3. D picks cultivated plans

78
Q

What property can be stolen (FIVE)?

A
  1. money - notes, coins
  2. Real property - land in certain circs
  3. Personal property e.g. coat, ring
  4. Intangible property such as things in action (right to sue/recover) - company shares, trademarks, patents, a debt, a credit in bank account, forged cheques
  5. Unlawful/illegal items such as Class A drugs
79
Q

What CANNOT be stolen (SIX)?

A
  1. Wild plants and animals -except in certain circs
  2. Electricity
  3. Corpses and body partes, except those which have been taken into another’s possession or control such as:
    — corpses in hospitals
    — blood given to a blood bank
    — Corpses or body partys which have ‘acquired different attributes for scientific or teaching purposes.
  4. Confidential information does not fall within definition of intangible property.
  5. Services such as a train journey
  6. Cheques drawn on accounts over the agreed overdraft limit (as the bank is not obligated to honour the cheque).
80
Q

Can abandoned property cease to belong to another?

A

Yes - although courts do not readily find that property has been abandoned e.g. domestic waste is NOT abandoned, and refuse collector could be guilty of theft is appropriate goods in bin with relevant MR.

81
Q

Is owner stopped looking for property, is it abandoned?

A

NO - husband who has lost wedding ring, and given up looking for it, has not abandoned it.

82
Q

What does someone have to have in respect of property for it to belong to them?

A

has possession or control over it

83
Q

Does having possession or control of thing extend to having possession/control over land upon which it is found? Is this true even if owner of land unaware of it existence?

A

YES and Yes.

84
Q

Lost bracelet - British airways case - theft?

A

D was airline passenger who found gold bracelet in BA lounge. Court found BA had not shown an intention to exercise control over building and things in it - could have done so either expressly e.g. putting up notice, or impliedly. No such intention, so when original owner came forward to claim bracelet, it could be kept by passenger.

85
Q

Can you steal your own property?

A

D who took his own care using his spare keys without paying the bill was convicted of theft. Mechanic doing work was in POSSESSION and CONTROL of car and, therefore, car did ‘belong to another’.

86
Q

Rules around when property has passed to D by time D has formed dishonest intent?

A

General civil rule; title in property passes at time that parties intend it to past.

Exception = s5(3) Theft Act - where person receives property from or on account of another, and is under an obligation to the other to retain and deal with property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other’

Note s5(3) will only operate where accused is under a LEGAL OBLIGATION to use property for purpose given. Note - v often there will be a trust which means property will also belong to another under s5(1) which covers equitable interest.

– note: obligations can be imposed upon domestic/social arrangements.

87
Q

s5(4) Theft Act 1968?

A

Where a person gest property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.

e.g. money overpaid to police woman for overtime - although ownership of money had passed to D, from moment she became aware that mistake had been made, she was under a legal obligation to restore the money she had received by mistake. So, by virtue of s5(4) money would be regarded as BELONGING to the POLICE authority.

NOTE: s5(4) does not prevent recipient of property being the legal owner. It provides that, for the purposes of the Act, the property also belongs to the person entitled to restoration.

88
Q

Does s5(1) Theft Act extend to equitable interests?

A

YES - property belongs to any person having it it any right or interest.

In Chase v Israel-British Bank it was held that a person who gives property by a mistake retains an equitable interest in that property. This civil case was applied in R v Shadrokh-Cigari, where CA upheld conviction for theft of property given by mistake without recourse to s5(4).

89
Q

Theft Act - ‘belonging to another’
s5(1)
s5(3)
s5(4)

A

5(1)
Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).

(3)Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other.

(4)Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.

90
Q

What is the definition of ‘dishonesty’ as MR of theft?

A

Theft Act does NOT define the term. It is for the JURY to decide whether an appropriate is dishonest.

However, s2 does provide THREE scenarios in which an appropriate of property is NOT to be regarded as dishonest.

91
Q

What are the THREE scenarios in which appropriate of property is not to be regarded as dishonest (MR of theft)?

A

If D appropriates property in the believe that:
- s2(1)(a): D has a right in law to deprive the other of the property;
- s2(1)(b): D would have the other’s consent if the other person knew; or
- s2(1)(c): the person to whom the property belongs cannot be discovered by taking reasonable steps.

Note: for (c) no need for D to take such reasonable steps, only necessary for D to believe that taking such steps will not enable the owner to be found. Note also although s2(1)(c) may apply to the original finding, if the owner becomes known to the accused later, then with the application of s3(1) {later appropriation}, keeping the property at this later stage could be dishonest and therefore theft.

92
Q

Does D’s believe under s2 Theft Act needs to be reasonably held?

A

NO - as long as genuinely held, D will not be dishonest.

93
Q

For situations where s2(1) Theft Act does not apply, what is the appropriate test?

A

The common law test - IVEY v GENTING CASINOS i.e. test for dishonesty in criminal law should be the same as that in civil law: the test given in the case of Royal Brunei Airlines v Tan. Ask TWO questions:

  1. What was D’s knowledge and belief as to the facts?
  2. Given knowledge and those beliefs, was D dishonest by the (Objective) standards of ordinary, decent, people?

SQE (14 decks)

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