Offences of dishonesty

Question 1

What are the four actus reus elements of theft? (common law offence).

Answer 1

1. Appropriation (Black v Carmichael) (removal of the property is not expressly required e.g. clamping tyres).
2. Of property, (only corporeal ‘moveable’ property)
3. Belonging to another.
4. Without their consent.

Question 2

What is the mens rea of theft?

Answer 2

The intention to deprive.
- Indefinitely? (Fowler v O’Brien 1994 SCCR 112).
- Temporarily for a “nefarious purpose”? (Milne v Tudhope 1981 JC 53).
- Just to deprive temporarily? (Black v Carmichael).

Question 3

What are the aggravated forms of theft?

Answer 3

• Theft by housebreaking and opening lockfast places (must contain theft or not a crime! HMA v Forbes 1994 SLT 861).
• Does not need to be a house, anything securable with a roof (Burns v Allan 1987 SCCR 449).

Question 4

What are the actus reus and mens rea of embezzlement? (common law offence).

Answer 4

Actus reus: “the felonious appropriation of property which is in the possession of the offender as a trustee, agent, factor, or other administrator; or which is in his possession with a view to his becoming beneficial owner in certain contingencies… or which is in his custody for a purpose left unspecific” (Macdonald, 45).

Mens rea: dishonesty (Allenby v HMA 1938 JC 55) - can be inferred from the facts (McCraw v PF Aberdeen [2016] HCJAC 20).

Question 5

What is the definition of robbery?

Answer 5

• Theft accomplished by personal violence (Cromar v HMA 1987 SCCR 635).
• Not simply aggravated assault (Cromar or O’Neill v HMA 1934 JC 98).
• VIOLENCE MUST BE IN ORDER TO ACHIEVE THE THEFT.

Question 6

What is the definition of extortion?

Answer 6

“Consists in using the threat to concuss a person into paying a demand which he intend to resist; and the crime, the use of threat for that purpose, is the same whether the party using the threat thinks his demand good or bad…” (Black v Carmichael, quoting, Alex Crawford (1850) J Shaw 309 at 332).
- Regardless of legitimate demand, you can’t make threats to back up your claim (Black v Carmichael).
- Even if you can legitimately reveal something, you can’t demand something in return for not doing so (Rae v Donnelly 1982 SCCR 148).

Question 7

What are the actus reus and mens rea of fraud? (common law offence).

Answer 7

Actus reus:
(a) A false pretence (can be false pretence regarding present intention as to future conduct: Richards v HMA 1971 JC 29).
(b) A definite practical result (Adcock v Archibald 1925 JC 58).
(c) A causal link between the two (Mather v HMA (1914) 7 Adam 525).

Mens rea: Intent. Recklessness will not suffice (Mackenzie v Skeen 1971 JC 43).

Question 8

What are the actus reus and mens rea of reset? (common law offence).

Answer 8

Actus reus: “Receiving articles taken by theft etc., feloniouslt taking them or being privy to the retaining of property that has been dishonestly come by” (Macdonald, 67).

Mens rea: Knowledge that the items have been dishonestly obtained or being wilfully blind to that fact (Latta v Herron 1967 SCCR (Supp) 18).