Hotlist

Question 1

What is the definition of theft?

Answer 1

s1 Theft Act 1968

“A person is guilty of theft if he/she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and ‘thief’ and ‘steal’ shall be construed accordingly”

Penalty:

• Summarily– 6 months and/ or fine (less than 5k)
• Indictment– 7 years.

Question 2

Low value shoplifting

Answer 2

22A Magistrates’ Court Act 1980

If stolen goods do not exceed £200 = summarily at Magistrates’ Court and 6 months and/ or fine/ FPN.

(4) Several shoplifting offences can be aggregated if charged at the same time.

Question 3

Acting dishonestly is a crucial part of ‘theft’.

In what circumstances is a person NOT regarded as having been dishonest?

Answer 3

(Section 2 of the Theft Act 1968)

1. He/she believes that he/she has a LAWFUL RIGHT to take the item
   - You see someone leaving a restaurant with what you believe to be your bag so you take it back from them. However, it turns out not to be yours. This wouldn’t amount to dishonestly taking the bag.
2. He/she believes that he/she would have had the OWNER’S CONSENT if the owner had known of the taking of the property and the circumstances around it.
   - An example of this would be taking £2 of loose change lying on a friends table to pay a parking meter outside their house to stop you receiving a large fine. It is clear that the friend who owns the money would consent to this in order to avoid their friend receiving a large fine.
3. The owner CANNOT BE DISCOVERED by taking reasonable steps.
   - An obvious example for this is someone finding money lying in the street.

Question 4

Main Initial Sections of the Theft Act

Answer 4

Defining Theft (Section 1 of the Theft Act 1968)

Dishonesty (Section 2 of the Theft Act 1968)

Appropriate (Section 3 of the Theft Act 1968)

Property (Section 4 of the Theft Act 1968)

Belonging (Section 5 of the Theft Act 1968)

Question 5

What is the test for dishonesty?

Answer 5

• Jury will first ascertain the actual state of mind of the individual’s knowledge or belief as to the facts.
• Was the act “dishonest” according to the ordinary standards of an honest and reasonable person? (This is often called the reasonable person test/ objective test.)

Question 6

Appropriate

When do you “appropriate” property?

Answer 6

(s 3(1) of the Theft Act 1968)

If a person, having come by property, innocently or not, without stealing it, later assume any rights to it by keeping it or treating it as his/her own, then he/she ‘appropriates it’.

For example, the right to sell it, give it away or destroy it.

Question 7

What is an exception to “appropriating” property?

Answer 7

Someone buying a car they believed to not have been stolen from a car salesman, to then later found out it was.

To then refuse to return it to original owner would not alone attract liability for theft.

Question 8

What does Section 4 of the Theft Act 1968 discuss?

Answer 8

Property

Property has its usual common meaning of a moveable object or being on an individual’s personal property.

However, it also includes things like money, ideas, intangible items e.g air in an oxygen tank, space in a skip, and trademark logos.

Additionally, things in action, such as rights e.g right to sue.

NOT electricity

Question 9

When does the taking of wild plants, fruit, flowers and fungi amount to theft?
.
.
The taking of wild animals from land can be regarded as theft, but only if:

Answer 9

If they are taken for sale, reward or commercial purpose, or if they are taken in such a way that it cannot grow back.
.
.
- The animal had been tamed and was being kept in captivity such as in a zoo or a home
- The animal had been killed there without the landowners permission, and taken (i.e poaching)

Question 10

Explain why identity theft does not fall under the definition of property.

Answer 10

Adopting another person’s characteristics and using his/ her administrative data (e.g national insurance number ) is not theft of the information as this ‘confidential information’ is not property for the purposes of the Theft Act 1968.

Question 11

Belonging to another

Property shall be regarded as belonging to any person when they have…

Answer 11

s5 of the Theft Act 1968

• A proprietary right or interest, e.g taking a car to the garage, the mechanic has a proprietary right of interest in the car as he has put an investment into it.
• Possession, e.g whoever has the vehicle in his/her possession. Whether this is lawful or not depends on circumstances and timing.
• Control, e.g the mechanic who carries out the repairs on the car.

Question 12

In terms of the Theft Act, intent to permanently deprive means what?

Answer 12

(s 6(1) of the Theft Act 1968)

This is complete when someone treats the property as their own. This could include lending and borrowing over an extended timescale and pawning another person’s item.

e.g You borrow someone’s laptop and then decide to lend it to one of your friends. It’s at this point that you intend to permanently deprive them of it as you are treating it as if it is yours to lend.

Question 13

Robbery and blackmail are two separate offences under the Theft Act 1968, but there are some similarities. Explain.

Answer 13

The act of stealing from a person whilst using (or threatening the use of) force or violence to appropriate property.

For blackmail, pressure is put on the victim with the aim of causing him/her a loss.

However, for blackmail no property needs to have been taken and no physical force needs to be involved for the offence to be proved.

Question 14

Define Robbery

Answer 14

s8 of the Theft Act 1968

A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and…in order to do so…he uses force on any person or…puts or seeks to put any person in fear of being then and there subjected to force.

Penalty:
- Indictment– Life imprisonment

Question 15

Robbery

There are two main ways the ‘puts in fear’ element of the offence could be established:

Answer 15

• The victim’s statement could should that he/she was put in fear; the degree of fear is not important (everyone’s different).
• The state of mind of the suspect could be evidenced from the suspect’s statement, evidence from other witnesses or circumstantial evidence, such as them holding an offensive weapon.

Question 16

Robbery

“Puts or seeks to put any person in fear of being there and then subjected to force.”

Answer 16

The threat of force:

1. Must be immediate.
2. Must be real (as in intended, not joking etc).
3. Must seek to put a person in fear of their safety (not another unaware person, unless force is used on that other person).

It isn’t necessary for the person actually threatened to fear it would be carried out, rather the person making the threats intended the person would fear that force would be used against them.

Question 17

Offence of Blackmail

Answer 17

s21 of the Theft Act 1968

(1) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief—
(a) That he has reasonable grounds for making the demand; and
(b) That the use of the menaces is a proper means of reinforcing the demand.

(2) The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.

Penalty:
- Indictment– 14 years

Question 18

Blackmail

Meaning of “Gain” and “Loss”

Answer 18

Section 34 of the 1968 Act states:

(2) For purposes of this Act—
(a) “Gain” and “loss” are to be construed as extending only to gain or loss in money or other property, but as extending to any such gain or loss whether temporary or permanent; and—

(i) “Gain” includes a gain by keeping what one has, as well as a gain by getting what one has not; and
(ii) “Loss” includes a loss by not getting what one might (expect to) get, as well as a loss by parting with what one has;

Question 19

Blackmail

1. Would demanding sexual favours constitute as an offence of blackmail?
2. Can an offence of attempted blackmail be made?

Answer 19

1. No, because it is not ‘money or other property.
2. The offence of blackmail is complete when the demand with menaces is made.
   - As a result, it is extremely difficult, if not impossible, to have an offence of attempted blackmail as the defendant will either be preparing to make the demand or will have made it.

Question 20

Blackmail

What do the words or conduct need to amount to?

Answer 20

Threats and conduct of such a nature and extent that a person of normal stability and courage might be influenced or made apprehensive so as to give in to the demands.

Menaces will therefore include threats but these must be SIGNIFICANT TO THE VICTIM – e.g locking a claustrophobic person in the boot of a car.

Question 21

Blackmail

If a situation arose where a serious threat failed to intimidate the victim at all is the offence still committed?

Answer 21

Yes, so long as it would influence a person of normal stability and courage.

Question 22

Blackmail

Does a gain or loss need to be material profit for an offence of blackmail?

Answer 22

No, as seen in R v Bevans (1988) where a blackmailer used menaces to obtain painkilling injections from a Doctor.

Question 23

Blackmail

If a defendant raises the issue that his/her demand was reasonable and proper, you will have to prove that he/she did not genuinely believe:

Answer 23

• That he/she had reasonable grounds for making the demand; and
• That the use of the particular menaces employed was not a proper means of reinforcing it.

The belief will be subjective and therefore could be entirely unreasonable.

Question 24

Burglary

Burglary is split into what two Sections?

Answer 24

s9 of the Theft Act 1968

(1) A person is guilty of burglary if:

(a) He enters any building or part of a building as a trespasser and with INTENT to:
- Steal anything therein
- Inflict GBH on anyone therein
- Commit unlawful damage to the building or anything therein

(b) Having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it OR inflicts or attempts to inflict on any person therein any grievous bodily harm.

Penalty:

• Summarily– 6 months and/ or fine
• Indictment– 10 years (14 years if dwelling).

Question 25

Burglary

Difference between Section 9(1)(a) and 9(1)(b) of the Theft Act 1968?

Answer 25

Section 9(1)(a) is the intention to commit burglary only – the mens rea.

Section 9(1)(b) is the actual action, - the actus reus. Also no criminal damage in (b).

Question 26

Burglary

What does ‘entry’ mean?

Answer 26

Generally, ‘entry’ is made by the burglar by physically coming into the building.
- However, ‘entry’ can also be through inserting part of their body into the building - such as reaching through a window.

Also, using tools or items to extend the burglar’s reach into the building is considered ‘entry’, e.g ‘letterbox burglaries’, in order to enable the ulterior offence to take place.

Insertion of an instrument merely to facilitate entry, e.g using a coat hanger to open a window lock, would not be entry.

Question 27

Burglary

In order to commit burglary, does a person need to know that they are entering a building as a trespasser?

Answer 27

Yes- they must know that they do not have any right by law to enter that building, nor explicit or implied permission to do so, or reckless to that fact.

Question 28

Burglary

What more obscure types of trespassing can exist?

Answer 28

1. Entering a building by deceiving the owner into giving permission to enter.
   - e.g pretending to be from a utility company, will be sufficient, e.g “distraction burglary” offences, particularly against elderly victims.
2. When a suspect exceeds a generally given permission.
   - e.g you may have a general permission to enter your parents’ house, but should you enter and steal their jewellery, it could be said that your general permission did not extend as far as taking their personal property. Therefore, you could be guilty of burglary.
3. A further example could be a shopkeeper, who gives general permission to all his customers to enter the shop during opening hours and to go as far as the public areas. Should that general permission be exceeded, such as going into staff areas, behind the till or into the shop outside of opening hours, a person could be held to be a trespasser.

Question 29

Burglary

What constitutes a “building”?

Answer 29

s9(4) of the Theft Act 1968

• Largely considered to be a structure of a permanent nature.
• Tents and marquees, therefore, fall outside of the term.
• Inhabited vehicles are included e.g caravans.

Question 30

Burglary

What does conditional intent mean?

Answer 30

Provided the required intention can be proved, it is immaterial whether or not there is anything ‘worth stealing’ within the building.

The same will be true if the person whom the defendant intends to cause serious harm is not in the building or part of the building at the time.

Question 31

Offence of Aggravated Burglary

Answer 31

s10 Theft Act 1968

A person is guilty of aggravated burglary if he COMMITS any burglary and at the time has with him any firearm or imitation firearm, any weapon of offence, or any explosive (WIFE)…

Penalty:
- Indictment– Life imprisonment.

Question 32

Aggravated Burglary

Firearm/ Weapon of offence/ Explosive meaning

Answer 32

s 10 of the Theft Act 1968

(a) “firearm” includes an airgun or air pistol, and “imitation firearm” means anything which has the appearance of being a firearm, whether capable of being discharged or not; and
(b) “weapon of offence” means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use; and
(c) “explosive” means any article manufactured for the purpose of producing a practical effect by explosion, or intended by the person having it with him for that purpose.

Question 33

Aggravated Burglary

“Has with him”

Answer 33

There has to be a degree of immediate control (carrying/ in a bag).

More than one person can be charged with aggravated burglary even if only one has the weapon.

Must have knowledge of the presence of WIFE item.

No intention is needed to use the weapon only have with them (forgetting is not a defence).

Question 34

Aggravated Burglary

“Instant arming”

Answer 34

Ordinary items can instantaneously change into weapons of offence.

E.g using a screwdriver to get in, to then stab occupant in the stomach.

Question 35

Aggravated Burglary

What explosives are included?

Answer 35

Covers explosives such as TNT and items such as grenades as they are both manufactured to produce a practical effect by an explosion.

It also covers an item intended by the person having it with him/her for that purpose.

Fireworks are excluded.

Question 36

Aggravated Burglary

What are the ‘WIFE’ articles?

Answer 36

Weapon of Offence

Imitation Firearm

Firearm

Explosive

(also includes articles for incapacitation).

Question 37

What is “Fraud”?

Answer 37

s1 Fraud Act 2006

(1) A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence).

(2) The sections are—
(a) s2 (fraud by false representation),
(b) s3 (fraud by failing to disclose information), and
(c) s4 (fraud by abuse of position).

Penalty:

• Summarily– 6 months and/or fine.
• Indictment– 10 years and/ or fine.

Question 38

Fraud

What three ways can fraud be committed?

Answer 38

• False representation (s2)
• Failing to disclose information (s3)
• Abuse of position (s4)

Question 39

Fraud

What is the ‘Actus Reus’ of Fraud?

Answer 39

All fraud offences under s2, s3 and s4 are committed when the defendant carries out the actus reus of the offence intending to ‘make a gain for himself or another’ and/or ‘to cause loss to another’.

Question 40

Fraud

What is the meaning of ‘Gain’ and ‘Loss’ for fraud offences?

Answer 40

s5 Fraud Act 2006

(3) “Gain” includes a gain by keeping what one has, as well as a gain by getting what one does not have.
(4) “Loss” includes a loss by not getting what one might get, as well as a loss by parting with what one has.

IMPORTANT: these relate only to money and other property (inc intellectual property).

Question 41

Fraud

Fraud by False Representation

Answer 41

s2 Fraud Act 2006

(1) A person is in breach of this section if he—
(a) Dishonestly makes a FALSE representation, and
(b) Intends, by making the representation—
(i) To make a GAIN for himself or another, or
(ii) To cause LOSS to another or to expose another to a risk of loss.

(2) A representation is false if—
(a) It is untrue or misleading, and
(b) The person making it knows that it is, or might be, untrue or misleading.

Key points:

• Can be communicated in words or conduct.
• Can be a misrepresentation.
• An untrue statement made honestly would not suffice.

Question 42

Fraud

Fraud by Failing to Disclose Information

Answer 42

s3 Fraud Act 2006

A person is in breach of this section if he—

(a) Dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and

(b) Intends, by failing to disclose the information—
(i) To make a gain for himself or another, or
(ii) To cause loss to another or to expose another to a risk of loss.

Question 43

Fraud

Fraud by Abuse of Position

Answer 43

s4 Fraud Act 2006

(1) A person is in breach of this section if he—
(a) Occupies a position in which he is 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 the abuse of that position—
(i) To make a gain for himself or another, or
(ii) To cause loss to another or to expose another to a risk of loss.

(2) A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.

Question 44

Fraud

Possession or Control of Articles for Use in Frauds

Answer 44

s6 Fraud Act 2006

(1) A person is guilty of an offence if he has in his possession or under his control any article for use in the course of or in connection with any fraud.

Penalty:

• Summarily– 6 months and/or fine.
• Indictment– 5 years and/ or fine.

Question 45

Fraud

Possession or Control of Articles for Use in Frauds

What is considered an ‘article’ for this section?

Answer 45

Can be anything whatsoever.

It includes any program or data held in electronic form, e.g:

• A computer program that generates credit card numbers.
• A computer template that can be used for producing blank utility bills.
• A computer file that contains lists of other people’s credit card details

Question 46

Fraud

False Accounting Offence

Answer 46

s17 Theft Act 1968

(1) Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another,—
(a) Destroys, defaces, conceals or falsifies any account or any record or document made or required for any accounting purpose; or
(b) In furnishing information for any purpose produces or makes use of any account, or any such record or document as aforesaid, which to his knowledge is or may be misleading, false or deceptive in a material particular;

…He shall commit an offence

Penalty:

• Summarily– 6 months and/or fine.
• Indictment– 7 years and/ or fine.

Question 47

Fraud

Making or Supply Articles for Use in Frauds

Answer 47

s7 Fraud Act 2006

A person is guilty if he makes, adapts, supplies or offers to supply any article:

(a) Knowing that it is designed or adapted for use in the course of or in connection with fraud, or
(b) Intending it to be used to commit or assist in the commission of fraud.

Penalty:

• Summarily– 12 months and/or fine.
• Indictment– 10 years and/ or fine.

Question 48

Fraud

Obtaining Services Dishonestly

Answer 48

s11 Fraud Act 2006

A person is guilty of an offence if he obtains services for himself or another…

(a) By a dishonest act or
(b) Services have been made on the basis that payment has been, is being or will be made.
(c) He obtains them without any payment having been made and when he obtains them he knows that they are being made not he belief above (ie payment will be made)

But intends that payment will not be made, or will not be made in full.

Penalty:

• Summarily– 12 months and/or fine.
• Indictment– 5 years and/ or fine.

Question 49

Fraud

Copying a False Instrument with Intent

Answer 49

s2 Forgery and Counterfeiting Act 1981

It is an offence for a person to make a copy of an instrument which is, and which he knows or believes to be, a false instrument, with the intention that he or another shall use it to induce somebody to accept it as a copy of a genuine instrument, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

Question 50

Fraud

Using a False Instrument with Intent

Answer 50

s3 Forgery and Counterfeiting Act 1981

It is an offence for a person to use an instrument which is, and which he knows or believes to be, false, with the intention of inducing somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

e.g Under 18 buying alcohol with fake ID.

Question 51

Fraud

Using a Copy of a False Instrument with Intent

Answer 51

s4 Forgery and Counterfeiting Act 1981

It is an offence for a person to use a copy of an instrument which is, and which he knows or believes to be, a false instrument, with the intention of inducing somebody to accept it as a copy of a genuine instrument, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

Question 52

Fraud

Making a Counterfeit Note or Coin with Intent

Answer 52

s14 Forgery and Counterfeiting Act 1981

It is an offence for a person to make a counterfeit note or coin intending to pass it off as genuine.

A person cannot make a counterfeit note or coin without lawful authority.

*Also offences of Passing Counterfeit Notes with Intent or Having Custody or Control of Counterfeit Notes with Intent are governed under this act.

Question 53

Proceeds of Crime

There are three main offences under POCA 2002, and these cover most eventualities in benefiting from the proceeds of crime:

Answer 53

Concealing criminal property (s 327)

Arrangements in relation to criminal property (s 328)

The acquisition, use and possession of criminal property (s 329)

Question 54

Proceeds of Crime

Criminal conduct is conduct which—

Answer 54

s340(2) Proceeds of Crime Act 2002

(a) Constitutes an offence in any part of the United Kingdom, or
(b) Would constitute an offence in any part of the United Kingdom if it occurred there.

(4) It is immaterial…
- Who carried out the criminal conduct
- Who benefited from it
- Whether the conduct occurred before or after the passing of the Act.

Question 55

Proceeds of Crime

Property is criminal property if–

Answer 55

s340(3) Proceeds of Crime Act 2002

(a) It constitutes a person’s benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and
(b) The alleged offender knows or suspects that it constitutes or represents such a benefit.

Question 56

Proceeds of Crime

Offence of Concealing Criminal Property

Answer 56

s327 Proceeds of Crime Act 2002

(1) A person commits an offence if he—

(a) Conceals criminal property;
(b) Disguises criminal property;
(c) Converts criminal property;
(d) Transfers criminal property;
(e) Removes criminal property from England and Wales or from Scotland or from Northern Ireland.

Suspecting the property is criminal property is sufficient here rather than beleving.

Penalty:

• Summarily– 6 months and/or fine.
• Indictment– 14 years and/or fine.

Question 57

Proceeds of Crime

Offence of Concealing Criminal Property

A person does not commit an offence under this section if…

Answer 57

s327(2) Proceeds of Crime Act 2002

(2) But a person does not commit such an offence if—
(a) He makes an authorised disclosure under section 338 and (if the disclosure is made before he does the act mentioned in subsection (1)) he has the appropriate consent;
(b) He intended to make such a disclosure but had a reasonable excuse for not doing so;
(c) The act he does is done in carrying out a function he has relating to the enforcement of any provision of this Act or of any other enactment relating to criminal conduct or benefit from criminal conduct.

Question 58

Proceeds of Crime

Offence of Arrangements in relation to Criminal Property

Answer 58

s328 Proceeds of Crime Act 2002

(1) A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person.

Penalty:

• Summarily– 6 months and/or fine.
• Indictment– 14 years and/or fine.

Question 59

Offence of the acquisition, use and possession of criminal property

Answer 59

s329 Proceeds of Crime Act 2002

(1)A person commits an offence if he—

(a) Acquires criminal property;
(b) Uses criminal property;
(c) Has possession of criminal property.

Penalty:

• Summarily– 6 months and/or fine.
• Indictment– 14 years and/or fine.