Offences against property Flashcards
Theft
Theft Act 1968 s1(1)
(1)A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.
5 elements to it
Actus reus:
1)appropriates -s3 TA 1968
2)property -s4 TA 1968
3) belonging to another -s5 TA 1968
Mens rea:
4)dishonesty - s2 TA 1968
5)with the intention to permanently deprive the owner of it -s6 TA 1968
- Lawrence [1972] AC 626
Italian student (s) arrives in London - D is a taxi driver - shows D a location- S pays with £1 note - D claims not enough- D takes further £1 and £5 notes from S’s open wallet - D drives S to location - D convicted of theft
Held by HL that not having the owners consent is not a requirement for a theft conviction under section 1(1) and it does not need to be proven by the prosecution that D did not have the owners consent
- Morris [1984] AC 320
D takes goods off the shelves in supermarkets - replaces stickers with cheaper price stickers- asked for and pays cheaper prices at checkout - D convicted of Theft - conviction upheld after appeals to CA + HL
Held that:
Appropriation can mean the assumption of some of the rights of the owner – it does not have to be all of them
appropriation can occur from a combination of dishonest acts which individually do not constitute an appropriation
Lord Roskill- things that have been OVERRULED Since this case
- It is not appropriation if there is consent of the owner – OVERRULED in Gomez – also this is contrary to Lawrence
-appropriation involves adverse interference with or usurpation…. not authorised by the owner - OVERRULED by Hinks - held appropriation can occur even when valid transfer of property
- Gomez [1993] AC 442
D is assistant manager of shop - customer wants to buy goods with 2 stolen cheques - D is aware cheques are stolen - convinces and deceives store manager into authorising the sale - convicted of theft - upheld on appeal
Held that
an act expressly or implied authorised or consented by the owner of the goods could amount to an appropriation of the goods where the authority or consent is obtained by deception
passing of property does not necessarily need to involve adverse interference or usurpation of some right of the owner
OVERRULED Morris – act may be appropriation even if it is done with the consent of the owner - follows Lawrence
Lord Browne-Wilkinson: appropriation is an objective description of an act done IRRESPECTIVE OF MENTAL STATE
5) ** Hinks [2000] 4 All ER 833 (HL)
Defendant (D) Is friendly with victim – a man of limited intelligence – over 6 months V withdrew sums of money totalling to abt £60,000 from his building society – these sums were deposited in D’s account - Valid transfer of title in civil (property) law
H convicted of theft - upheld by a 3: majority in HL
2 main points raised by D on appeal
1) there could be no appropriation unless the owner retained some proprietary interest and
2) under general law only an act that was unlawful could be an appropriation
Majority disagree with both statements
Vs
Minority agree - if disagree then unacceptable conflict between civil and criminal law created
Held that
Appropriation can occur even if them other person makes him an indefeasible gift of property, so retains no proprietary interest or any right to resume or recover any proprietary interest in the property - original owner has no right to property
For Majority - Lord Steyn
argues:
1) mens rea for theft = adequate protection vs injustice
2) by adopting narrower interpretation of appropriation likely to place dishonest people who should be convicted of theft outside scope of criminal law
3) wrong to assume it is crim not civil law that is defective
4) tension between civil + crim law not a justifiable factor for departing from current case law - Lawrence + Gomez
Lord Hobhouse -dissenting
crim law defines boundary between immoral + illegal
- to treat lawful conduct as criminal simply due to it being immoral is contrary to principle
- would fail to achieve transparent certainty required by crim law by basic human rights principles
Lord Hutton - dissenting
Valid Gift -cannot have dishonesty -no matter how morally reprehensible it is - except where jury satisfied 1) donor did not have mental capacity to make gift and 2) Donee knew of this incapacity
- Briggs [2003] EWCA Crim 3662
Mr and Mrs Reid (Rs) decided to sell their house to move closer to their great niece, Defendant (D) – selling of their house handled by Bentons- whom D had briefly worked for – Bentons telephone contact was solely with D – D handles purchase of the new house herself – title of property was registered in D and her father’s names - paid for using the money from the sale of Rs’ house
conviction of theft quashed by CA on appeal by D
still convicted of 2 counts of forgery, 2 counts of dishonestly obtaining social benefits and 1 count of obtaining services by deception
Held that
deception causing the victim to transfer property does not constitute appropriation
Silber J - appropriation involves a physical act
** Ghosh [1982] QB 1053
Overruled by Ivey
The defendant - a locum surgeon - had claimed payment for operations that either he had not performed, or which had been carried out under the National Health scheme so that no fees were due
Convicted of theft - appeal dismissed by HL - judge’s direction was wrong but conviction safe
Establishes 2 limb test for dishonesty -later OVERRULED in Ivey
1) was whether according to ordinary standards of reasonable and honest people, if what D had done was dishonest
2) Only necessary if first limb answered yes – jury must consider if D himself must have realised that what he was doing by those standards was dishonest
For dishonesty both limbs must be answered in the affirmative
2) ** Ivey v Genting Casinos [2017] UKSC 67
Claimant is a professional gambler – he plays Punto Banco Baccarat – game of pure chance – at D’s casino – he wins over £7.7 million – following the big win there was an investigation - D determined the claimant had compromised the game by using a method of play called edge -sorting- D (which had not known about edge sorting) refused to pay the claimant his winnings – on ground that such play altered the odds against it unfairly – supreme court determine D does not have to pay out the winnings
This is a civil case but discussed dishonesty - to be included in criminal purposes
New test for dishonesty created - removal of second limb of Ghosh test
new test is:
1) Jury must decide what the defendant believed the facts to be
2) Jury must decide whether the conduct of D, on the facts that D believed to be, is dishonest by the standards of ordinary decent people
Lord Hughes reasoning for the new test - states problems with Ghosh test- key ones
1) unintended effect that more warped D’s standards of dishonesty are - less likely D is to be convicted of dishonest behavior
2)sets a test that is puzzling and hard to apply for jurors
3) creates unprincipled divergence between test for dishonesty in crim law vs test in civil law
4) not compelled by any auhtority
Counter argument for Ghosh is that Ivey test removes subjective element of the test - now purely objective - does this make dishonesty a conduct element now not a mental element
- Barton [2020] EWCA Crim 575
D ran a luxury nursing home – operates business through a company – prosecution case was that D dishonestly targeted, befriended and ‘groomed’ wealthy vulnerable, and childless elderly residents of the home – to profit from them – number of these residents made him financial beneficiary of their wills – also allowed him to assume control of their finances –D received approx. £4,130,000 total from offences over the 20 year span of this occurring
Convicted of 10 counts - 3 of theft
“In the result, the test for dishonesty in all criminal cases is that established in Ivey. “
Ivey test established as crim law test for dishonesty
“When Lord Hughes talked in [74] of the ‘actual state of mind as to knowledge or belief as to the facts’ he was referring to all the circumstances known to the accused and not limiting consideration to past facts.”
- Oxford v Moss (1979) 68 Cr App R 183
-property
D is a civil engineering undergraduate – he dishonestly obtained the proof of an exam paper for an exam that was to be held at his uni the next month – he returns the paper from where he obtained it after reading it’s contents
Charged with theft of confidential information - dismissed - appeal dismissed - no conviction - actions condemned and regarded as cheating tho
confidential information does not fall within the definition of ‘intangible property’ in section 4(1) and so cannot be the subject matter of a charge of theft
- Turner (No 2) [1971] 1 WLR 901
-belonging to another
D took the car - of which he was the registered owner of – to a garage to have it repaired- the repairs were then practically completed -car left in road outside garage – D calls garage and tells owner that he would return the following day to pay and take car – instead he took the car several hours later without paying
Convicted of theft - conviction upheld on appeal by D
held that:
property is said to belong to a person if, at the time of the appropriation, that person was in possession or control of it
Something that one owns or has ownership over can legally ‘belong’ to another for the purpose of section 5(1)
** Lloyd [1985] QB 829
- intent to permanently deprive
D (Lloyd) is a cinema projectionist – he illicitly removed feature films due to be shown in the cinema and lent them to other Ds (B and A) and another man M – who made master videotape copies of the film- then returned before their absence was noted – many of these films were sold – the continued success of the scheme depends on rapidness in returning the films
convicted on count of conspiracy to steal conviction quashed on appeal by Ds
Held that
Borrowing can only amount to the intention to permanently deprive where the intention was to return it in a changed state where it had lost its goodness, virtue or practical value
- in this case no such loss as films could still be screened
Robbery
s8 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.
Hale (1979) 68 Cr App R 415
Ds (Hale) and M force way into house of victim after she answers door to them - take jewelry box from her - tie her up and leave threatening to hurt her son if she called police too soon after leaving
Conviction of robbery upheld on the appeal by Ds
Act of appropriation does not suddenly cease when one has the property - it is a continuing act - up to jury to decide when it ends
Dawson (1977) 64 Cr App R 170
V on pier at midnight- Ds come either side of him and nudge him back and forth - third D takes his wallet - convicted of robbery
Nudging constitutes force for s8 TA
It is for jury to decide what constitutes force for the purpose of s8 TA 1968
Burglary
s9 TA 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 commit any offences of
1) stealing anything
2) inflicting GBH on any person
3) doing unlawful damage to the building or anything in the building
All offences must be intended to be committed in the building
(b)having entered any building or part of a building as a trespasser he steals/attempts to steal anything in the building/part of it or inflicts or attempts to inflict GBH on any person therein
Aggravated Burglary
s10 TA 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
- Collins [1973] QB 100
D looked into V’s bedroom through window - V asleep - D undresses and crouches on windowsill - V awakes - invites D in assuming D is her bf (he
is not) - they have sex
D’s conviction of burglary with intent to commit rape quashed on appeal by D - conviction deemed unsafe- jury not invited to consider if D had entered believing he had permission too
Held that for one to be a trespasser for s9 TA 1968 one must either
1)know he does not have permission to enter and enter regardless or
2) be reckless as to whether one is entering with or without permission
- Jones & Smith [1976] 3 All ER 54
During night -D’s (J and S) enter bungalow of S’s dad - they steal 2 tv sets - convicted of burglary- appeals against conviction dismissed
it is trespassing to enter a building for a purpose that was outside the permission given if the accused realised or was reckless as to whether he was entering outside that permission given to him
Fraud
Sections 1-4 Fraud Act 2006
There are 3 different ways in which one can be guilty of fraud
1) fraud by false representation - s2
2) fraud by failing to disclose information -s3
3) fraud by abuse of position- s4
Fraud by false representation
- s2
Statutory Requirements:
(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.
False representation is where it is untrue or misleading, and the person making it knows that it is, or might be, untrue or misleading.
Fraud by failure to disclose information
-s3
Requirements
(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
Fraud by abuse of position
-s4
Requirements
(a) one 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
- Valujevs [2014] EWCA Crim 2888
Allegd that Ds abused their position as gangmasters - exploiting members of the migrant workforce – controlled their wages- took unjust deductions from workers’ wages in the form of unwarranted financial reductions – also charged grossly excessive rent – tried to indebt the workers to them
Prosecution appeal against trial judge’s decision of no case to answer on a count of fraud by abuse of position - appeal allowed by CA - Ds convicted
Held that the expectation under s4 is an objective one based on the position of the reasonable man - Fulford LJ
Criminal Damage
- sections 1-3 Criminal Damage Act 1971
section 1 - destroying or damaging property
section 2 - threats to destroy or damage property
section 3 - Possessing anything with intent to destroy or damage property
** G [2003] UKHL 50, [2004] 1AC 1034
- Same case as G recklessness
2 boys aged 11+ 12 set fire to newspaper under some bins - leave it - fire catches to bins and spreads causing £1mil worth of damage - conviction of arson quashed by HL on appeal by Ds
Test for recklessness for criminal damage is G (same as Cunningham) recklessness
A person acts recklessly within the meaning of section 1 of the criminal damage act with respect to
i) A circumstance when he is aware of a risk that it exists or will exist;
ii) A result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk
essentially:
awareness of a risk + in circumstances known to D it is unreasonable to take risk
