Property offences

Question 1

Kohn (1979) Cr.App R 395,

Theft - things in action - AR of theft - s 4(1) of the theft act

Answer 1

Lane LJ cited approvingly the prosecution analysis:

‘where an account is in credit the relationship of debtor and creditor exists between the bank and the customer. The customer is the creditor, the bank is the debtor. The debt is owing by the bank to the customer. That debt is something which cannot be physically handled, it not a thing…in possession; it is a thing in action, namely something which can only be secured by action.’

If you have money in the bank, you have an action against the bank bc they are in debt to you. If someone steal money in your bank account, they steal ‘a debt’.

Question 2

Oxford v Moss (1979) 68 Cr App R 183 [1979] Crim LR 119, QBD.

confidential information - property

Trade Secrets? Should not these be ‘property’ for purposes of Theft? Should this be reformed according to the following principle: “A person who creates or gathers information which, but for his initiative, would not have been collated ought to be regarded as its owner”? (J.W.Harris, Property and Justice, p. 341). Or should we say this is simply ‘common property’? Or some other solution?

Answer 2

Held: confidential information is not ‘other intangible property’ under s 4(1). (Note that there is property in the paper itself).

Facts: Liverpool University. Engineering student that finds the exam and he copies it out. He’s charged with Theft.

Question 3

Low v Blease [1975] Crim LR 513

meaning of property - electricty

Answer 3

electricty cannot be stolen as property under the meaning of s 4 (nit ‘othere intangible property) of the Theft Act

surprisingly gas can.

Question 4

Old common law rule: no property in a corpse. The question emerged in:

Kelly [1998] EWCA Crim 1578.

meaning of property - body parts

Answer 4

Held: parts of a corpse can be property if they have acquired different attributes by virtue of the application of skill, such as preservation and dissection techniques. He was therefore guilty of theft.

Facts: Goes to the royal college of surgeons. Wants to sketch theses corpses and torsos. He takes some limbs with him. He makes molds out of them to create his works. Charged with theft.

Question 5

Smith [2011] EWCA Crim 66

the meaning of ‘belonging’

Answer 5

CA: upheld convictions and rejected the argument. The sole question was whether V had ‘possession or control’, the term was not to be qualified.
The ‘belonging’ need not be lawful

D took V’s heroin by force. D charged with theft and argued heroin could not be ‘property belonging to another’. V’s possession of the heroin was prohibited by law.

Question 6

can one possess or control a property of which one is unaware?

Woodman [1974] QB 754; [1974] 2 All ER 955 (CA)

possession or control

Applied in Rostron and Collinson [2003] EWCA Crim 2206

CA: As in Woodman [1974] QB 754; [1974] 2 All ER 955 golf balls the defendant trespassers had retrieved from a lake within the Whetstone Golf Course were in possession and control of the golf club. They argue that all of these balls have been abandoned by the golfers. The argument is unsuccessful.

Answer 6

Lord Widgery in CA rejects D’s argument.

“V was in control of the site and had taken considerable steps to exclude trespassers as demonstrating the fact that they were in control of the site, and we think that in ordinary and straightforward cases if it is once established that a particular person is in control of a site such as this, then prima facie he is in control of articles which are on that site. “

“The fact that it could not be shown that they were conscious of the existence of this or any particular scrap iron does not destroy the general principle that control of a site by excluding others from it is prima facie control of articles on the site as well. “

V owned a large stretch of now unused land (formerly a business area). V sold all the scrap metal on the site to a third party; the third party came to remove it, taking a lot but not all of it, (thinking what was left too much trouble to remove). Subsequently D entered as a trespasser and took the remaining scrap metal. D argued there could be no theft as V was unaware that this particular lot of scrap metal even existed. Argued there therefore could not have been possession or control over the scrap.

Question 8

Deller (1952) 36 Cr App R 184 (CA)

fraud - falsity and knowledge of falsity

But this could be an attempt. (see later this term on Attempt)

Answer 8

Held: not guilty of the old offence of obtaining proceeds of sale by false pretences.

Similarly, this could not be a false representation under the Fraud Act, since what was said was not untrue or misleading even if D believed it was.

To be established: prove that = It is untrue or misleading + D believes that it is true

D sold V a car saying it was free of encumbrances. But earlier he had mortgaged the car to a finance company so believed he was lying. It turned out the mortgage he had made with the finance company was invalid, therefore the car was unencumbered.

Question 9

Gilbert [2012] EWCA Crim 2392

fraud - s 2

Answer 9

The CA quashed the conviction bc no direction was given to the jury (=> should have directed the jury to establish whether D had intended to make a gain by the misrepresentation)

Simester and Sullivan conjecture that the court were also effectively deciding any profits the company might make from deals they went on to secure with the use of the bank account would be too remote from the lies told by the manager.

A director of a family run company falsely stated that the company was backed by family money. The bank opened an account for the use of the company.

Convicted of fraud by false representation.

Question 10

O’Leary [2013] EWCA Crim 1371.

fraud

Answer 10

Falsely claimed to elderly woman with dementia he had done work on her roof and needed to be paid

Question 11

Barnard (1837) 7 Ct P 784:

fraud - implied representation

NB: Idrees v DPP [2011] EWHC 624 (Admin. Implied representation can be made through another,
i.e., though an agent.

Facts: someone was taking a driving test (theoretical) for someone else. The latter charged with fraud.
held: implied rep. that you were the person that would sit the exam.

Answer 11

Held: by wearing the gown, implied rep. that he was a student. (analogy m/r by conduct)

Implied representation D was a student by dint of wearing borrowed student gown. He goes into a shop and the shopkeeper gives him credit upon his representation.

Question 12

Harris (1975) 62 Cr AppR (CA).

fraud - implied representation

see also:
Ray [1974] AC 370; [1973] 3 ALL ER 131 HL (3, 2 majority).

Remaining at table in a restaurant after eating meal is continuing representation to pay for it. See now: Govt v UAE v Allen [2012] EWHC 1712 (Admin) –idea of continuing representation may still be used under Fraud Act.

Answer 12

Booking into a hotel is (implied) representation of intention to pay at end of stay.

Question 13

Morphitis v Salmon[1990]

criminal damage - meaning of damage

Whitely: Lord Lane CJ: Any alteration to the physical nature of the property concerned may amount to damage + the damage itself need not be tangible (e.g Computer hackers)

.

Answer 13

Divisional Court held that scratching a scaffold bar had not impaired its value or usefulness. “Normal incident of scaffolding component” and so did not amount to damage.

= consider the nature of the objected alleged to be damaged

scratch a scaffold bar

Question 14

(1) A (a juvenile) v R [1978]:

(2) Hardman v Chief Constable of Avon and Somerset Constabulary [1986]:

(3) Fiak [2005]:

criminal damage - alteration / damage

Answer 14

(1) Held: the spitting is not damage, can easily be removed with a cloth => no alteration
(2) Held: by hiring an expensive jet washer (when the paint could literally have worn off naturally) : it was damage
(3) Held: It was damage => the cells were rendered temporarily unusable and the blanket needed to be cleaned to be reused

(1)Facts: spat on a police officer

(2)Facts: D painted concrete pavement with water-soluble paint and argued that the paint was soluble.

(3)Facts: D blocked the toilet of the police cell (with the blanket) in which he was detained => floods his cell and two others.

Question 15

R v G [2004]

meaning of recklessness in criminal damage - MR

Answer 15

“ a person acts recklessly within the meaning of s 1 Criminal damage Act 1971 with respect to:

A circumstance when they are aware that a risk exists or will exist;

A result when they are aware of a risk that it will occur; and

It is, in the circumstances known to them, unreasonable to take the risk.”

Question 16

R v Smith (Davis) [1974]

criminal damage - recklessness about whether the p belongs to another

Answer 16

Held: conviction quashed. James LJ

‘No offence is committed under this section if a person destroys or causes damage to property belonging to another if he does so in the honest though mistaken belief that the property is his own and provided that the belief is honestly held it is irrelevant to consider whether or not it is a justifiable belief.’

FACTS: D was a tenant in a flat and wanted to install wiring for his stereo system. With the landlord’s consent, he installed wall panels and flooring to cover up the wired linking the system to the speakers

Under the civil law, the wall panelling andrthis flooring were ‘fixtures’ and belonged to the landlord. But D was unaware of this, and he damaged the fixtures when he removed the wiring.

Convicted of Criminal damage.

Question 17

R v Denton [1981] 1 WLR 1446 Court of Appeal

criminal damage - lawful excuse - consent

Answer 17

Held:

The appellants conviction was quashed. There was no requirement that the person entitled to consent was honest.

The appellant set light to some machinery at his place of employment causing £40,000 worth of damage. He then gave himself in to the police and said that he had deliberately done so because the business was in financial difficulty and he thought that setting fire to the machinery would help out the employer. The employer had hinted that it would be desirable if the machinery was put out of action and that there was nothing like a good fire to improve the financial position of the business. The trial judge ruled that the word ‘entitled’ to consent in s.5(2)was qualified with the word ‘honestly’. The defendant therefore pleaded guilty to criminal damage by arson and appealed the judge’s ruling requiring honesty.

Question 18

R V HILL AND HALL (1989) 89 CR APP R 74

criminal damage - lawful excuse - immediate need of protection

this case was distinguished in In Chamberlain v. Lindon (1998),[10]
=> Lindon demolished a wall to protect a right of way, honestly believing that it was a reasonable = here there was a lawful excuse because the right of way was actually being obstructed

Answer 18

Held: The defendants’ acts would be too remote from the eventual harm they were protecting the property from.

Facts: The defendants were in possession of a hacksaw blade with intent to damage property. Their intention was to cut the fence of a US naval base in England. They were part of a CND campaign (Campaign for Nuclear Disarmament), so had an honest belief that the damage was justified to protect other property. In the event of war, the base would be the subject of nuclear attack and damage would occur to the surrounding area, including their own property.

Question 19

R v Hunt (Anthony Gerald)

criminal damage - conduct undertaken in order to protect the property

subjective v objective : the courtsvseem to have added an objective aspect to the test

Answer 19

The Court of Appeal upheld the conviction. Applying an objective test, the defendant’s acts were not inherently capable of protecting any property.

The defendant was charged with criminal damage after he set fire to a bed in an isolated room in an old people’s home. He claimed that he did this to highlight that the fire alarm at the home was defective. At trial, he argued that he had a lawful excuse under S.5(2)(b)

S.5(3) states that the belief does not need to be justified, just honestly held. The trial judge held that he could not rely on lawful excuse, and the jury convicted him. The defendant appealed.

Question 20

Ziegler[2021]

criminal damage - lawful excuse- convention rights (art 11 & 10)

But see Brown [2022]: D’s glued himself to an aircraft
=> the court asserted that the Convention provided no defence to the crime of public nuisance. ( we can suppose that this reasoning applies in the case of criminal damage as well) => there is a limit to rights provided for in the convention (qualified rights).

Answer 20

appeal allowed : the partial blockage of a public road leading to an arms fair could be viewed as as a lawful excuse

the court considered art. 10 and 11

The Appellants took part in a demonstration protesting the Defence and Security International weapons fair at the Excel Centre. They were charged with obstructing the highway, contrary to section 137 Highways Act 1980. They were acquitted at Trial because their actions fell within the “lawful authority or excuse” defence contained in section 137 Highways Act 1980. The Director for Public Prosecutions appealed successfully by way of case stated to the High Court.

Question 21

Cresswell v DPP

criminal damage - lawful excuse - belonging to himself or another

Answer 21

held : it was criminal damage as the property did not eblong to anyone.

Ds went into farmland to destroy badger traps and protect wild badgers. the badgers were not wned

Question 23

Turner (No 2) [1971] 2 ALL ER 441 (CA)

theft - “belonging to another” - s 5(1)

Garage may have had a priopritary right in car (civil law lien) for work done, but not necessary to establish that because also had ‘possession or control’ of it. Better dealt with as Making off Without Payment under s3 Theft Act1978? Couldn’t they say that he has stolen the lien ?

Answer 23

one can steal one’s own property where another has possession/control.

D leaves his car in a garage. The mechanic does their work and leave the car outside the garage. Takes his car and drives it away at night. D charged with theft. He argues that the car is his.

Question 24

Pitham and Hehl (1976) 65 Cr.App 45 (CA)

theft - appropriation - s 3

Answer 24

Offer to sell is assumption of right to dispose of owner’s interest = appropriation

Question 25

Lawrence v MPC [1971] 2 ALL ER 1253

theft - appropriation - s 3(1) - consent

Held, unanimously, consent was irrelevant to appropriation. The theft Act has removed those words.

Answer 25

Lord Dilhorne: ‘I see no ground for concluding that the omission of the words “without the consent of the owner” was inadvertent and not deliberate and to read the subsection as if they were included is, in my opinion, wholly unwarranted. Parliament by the omission of these words has relieved the prosecution of the burden of establishing that the taking was without the owner’s consent.’

=> they could also say that consent is relevant but the facts at hand display a lack of relevant knowledge to give genuine consent.

Facts: A student from Italy comes to the UK so wants to take a taxi from Victoria. The student does not speak English very well. The student opens his wallet and invites the taxi driver to take the relevant notes: but the taxi driver takes an absurd number of notes (an exaggerated amount of money). Charged with theft (acquiring property by deception might have been more relevant)

The taxi driver contends that the student was consenting and offered to hand him the notes.

Question 26

Morris [1984] AC 320

theft - appropriation - s 3(1) - consent - seems contradicts Lawrence.

NB: This seems to contradict Lawrence, but Lord Roskill does not say he is overruling Lawrence! And, to reiterate, both are decided in the House of Lords. Roskill LJ is talking about an authorization which equates the notion of consent.

Two conflicting judgments from the HoL regarding the issue of appropriation.

Answer 26

held: theft
Lord Roskill: an appropriation is…

‘…not an act expressly or impliedly authorized by the owner but an act by way of adverse interference with or usurpation of (any of) those rights.’ => a misappropriation (wrongful element in it)

There is another important point decided in Morris:
Is an appropriation an assumption of all the rights or any of the rights of the owner?
Lord Roskill: ‘Any’ is sufficient—one will do. (this aspect of Morris is still good law): not necessarily all the rights of the owner but single one will do => It’s wide so the hurdle is easy to overcome but that is GOOD LAW

Facts: exchange the price labels of two goods (one expensive and one much cheaper)

Question 27

Gomez [1993] AC 442 HL

theft-appropriation - s 3(1) - consent - following lawrence

Implications: cases like Eddy v Niman (1981) 73 Cr App R 237, DC must now be considered wrongly decided:

Facts: D goes into a shop to steal some good but then changes his mind and leaves. He’s charged with theft.

The MR is here and they argued that by taking up the good he appropriates them.

Held: there can’t be a theft. (wrongly decided according to Lawrence & Gomez)

Answer 27

conviction upheld
Lord Keith for the majority (4:1) answers: Wrong to say that ‘an act expressly or impliedly authorised by the owner could never amount to appropriation’ => Lawrence authoritative and correct. The question of consent is irrelevant.
= consent is a neutral word

D has a friend who works in the shop. Wants to get his friend to use his influence to convince the manager to accept his cheques without any verification. The manager did and the cheque bounced. Gomez is charged with theft.
=> The certified questions the CA put to the HoL were:

‘When theft is alleged and that which is alleged to be stolen passes to the defendant with the consent of the owner, but that consent has been obtained by false representation, has,

A) an appropriation [under s1(1)] taken place? (Lawrence)

B) must such a passing of property necessarily involve an element of adverse [interference] or usurpation of some right of the owner? (Morris)

Question 28

Hinks [2000] (UKHL 53, HL)

theft - appropriation - s 3(1)

conflicting views in the judiciary

Lord Hobhouse (minority):

Theft [as a result of these decisions] may exist where there is no more than consciously falling below the standards of an ordinary and decent person and may include anything which such a person would think was morally reprehensible.

It may be no more than a moral judgment…To treat lawful conduct as criminal merely because it is open to [moral] disapprobation … fails to achieve the objective and transparent certainty required of the criminal law by the principles basic to human rights.

Answer 28

HL held: 3:2 majority: D could be guilty of theft even if V had made a valid gift (in civil law terms)
Lord Steyn (majority):
[I]t is immaterial whether the act was done with the owner’s consent or authority.

…It is true of course that the certified question in R v Gomez referred to the situation where consent had been obtained by fraud. But the majority judgments do not differentiate between cases obtained by fraud and consent obtained in any other circumstances.….

R v Gomez therefore gives effect to s3(1) of the 1968 Act by treating ‘appropriation’ as a neutral word comprehending ‘any assumption of the rights of the owner”. If the law is as held in R v Gomez, it destroys the argument advanced in the present appeal, namely that an indefeasible gift of property cannot amount to an appropriation (: widens the scope of the notion of ‘appropriation’)

The mental requirements of theft are an adequate protection against injustice.

Facts: man with learning difficulties and he met a woman who took care of him. V was said to be capable of making a gift. Evry day she takes him to the bank, together with him they withdraw cash and Mrs Hinks puts it into her own account + There was a valid transfer of title in civil (property) law, meaning that there was a perfect gift and no vitiating factors such as mistake or fraud applied. ‘V ‘capable of making valid gift’ (in civil law) though ‘unlikely he could make decision alone’.

Question 29

Holden [1991] Crim LR 478.

theft - dishonestly - s 2

Question: the trial judge misdirected the jury: but would it be good to reform the law so that is the test?

Answer 29

CA, allowing the appeal: question was whether D had, or might have had, an honest belief (not necessarily reasonable) in his right to deprive the firm of the property

D worked at Kwik Fit and took a tyres away.
trial judge had misdirected the jury in stating the test was whether D had a reasonable belief in his right to take the tyres.

Question 30

Falconer-Atlee (1974) 58 Cr. App. R. 348 :

not really important but if you have time

Wootton and Peake [1990] Crim. L.R. 201 (CA (Crim Div))

The Court of Appeal stressed that a jury must be directed on s 2(1)(a) whenever a claim of right is raised. Directing only in accordance with the Ghosh test (or now Ivey) was not enough.

Answer 30

Held: Roskill LJ allowed appeal against conviction. Among other things, this possibility should have been left to the jury– with a direction on 2(1)(a) –that D had made an honest mistake– honestly thinking ‘Sea Shanty’ was the puppy V intended to sell.

=> Shortly after the implementation of the TA, the courts are quite insistent on following the direction

D is a dog breeder. Finds an ad for a puppy that is missing a ball but she comes away with another puppy (which possesses two testicules)

Question 31

Barton and Booth [2020] EWCA Crim 575. CA.

“In the written directions given to the jury, the judge included a passage identifying the case for David Barton by making clear that he said that he believed that the property in question was freely given to him by people of capacity, in short that there were straightforward gifts which he neither procured nor accepted dishonestly.”

Lord Burnett continues:

“That explanation was rejected by the jury. Whilst a direction tailored to section 2(1)(a) might have been given, it was not required.

“If his case on the “gifts” was or might have been true, David Barton was not dishonest and would have been acquitted.”

Is this convincing? See later on Ivey and (the main question of) the decision of Barton itself. Jury not told that it is the ‘honesty’ of the belief, not the ‘reasonableness’, that matters in the statutory dishonesty defence.

Answer 31

Lord Burnett: rejects the argument
convicted of theft

the correct test is the one in Ivey also in crim law (Gosh superseeded)

David Barton ran a high-end care home, Barton Park. Barton, together with his chief administrator, Rosemary Booth convicted on multiple counts of offences including theft and fraud. Alleged Barton targeted, befriended, groomed and manipulated lonely elderly (wealthy) residents, who often made him beneficiary of their wills. Mrs Pinnington…was a wealthy widow, when she came to Barton Park. She a arrived at the home … when she was 86, and remained there until her death, aged 90… Barton convicted on specimen counts of theft form Mrs P of £70,000.

Barton = Mrs P was happy at Barton Hall, after a traumatic time at another home, and was grateful to him; and these were gifts.

Barton convicted on another count of theft, having sold to Mrs P a Rolls Royce for £500,00, ‘a sum far in excess of its actual value’—he had paid £140, 000 for it.

Barton = Mrs P bought the Rolls-Royce because she enjoyed being driven in it and did not want it to be sold to someone else which would mean that her outings would come to an end (unclear why Barton could not have driven Mrs P in any of his many other cars)

He appealed on the basis that trail judge failed to direct the jury in terms of section s 2(1)(a) and s 2(1)(b) =>

Question 32

Ivey:

dishonesty - theft - Ivey test

Lord Hughes in the Supreme Court :

Ivey “didn’t just watch the cards with a trained eye but rather took active steps to fix the shoe.’’ (= the decks of cards)

Not all cheating is dishonest. A runner who trips up a rival is cheating but is not necessarily dishonest. What Ivey did probably would ordinarily be described as dishonest- he duped croupier.

Answer 32

Hughes LJ disapproves of the Gosh test=> partially overruling the G test which required subjective realisation that it was dishonest.

(1) decide what individual knew and what the circumstances were. (2) given that knowledge - would ordinary decent member of society say that what was done was dishonest?
If yes, the behaviour does not become honest because the individual in question has different or lower standards.

But Ivey, though a Supreme Court case, is a civil case and it is obiter. Is it binding on the criminal law courts?

takes place on the casino. He is a professional gambler. The croupier usually uses six packs, but Ivey asks him to use one pack and that pack had a non-symmetrical pattern. Ivey wins 7.7 million pounds. The casino accused him of cheating (with the edge sorting technique) and refused to pay it (civil law not criminal law). Ivey sues the casino.
Gosh test :
(1) was D dishonest according to the standard of honest and reasonable ppl
(2) did D realise that their conduct was dishonest by those standards

He believed his conduct legitimate and strategic
=>So, Gosh not satisfied
I argued Cheating requires dishonesty and not dishonest here

Question 33

Crump (1825) 1 Carrington and Payne 658

theft - intention to permanently deprive

other offences may be relevant (not on the syllabus)
Removal of articles from places open to the public: s11
Taking a Motor Vehicle or other Conveyance without Authority: s12

Answer 33

Held: no intention to permanently deprive V of horse => so has not stole the horse. (but he stole the saddles)

=> theft is not borrowing (even if dishonest)

temporary appropriation not sufficient for MR

facts: C is Guilty of stealing saddles, not guilty of stealing horses. Took V’s horse, rode it a few miles, then abandoned it and continued on foot.

Question 34

Raphael EWCA Crim [2008] 1014 (CA)

theft - constructive intention to permanently deprive s 6(1) (before ;)

Answer 34

will count as an ITPD => conviction for theft is upheld.

D takes V’s Ford Focus car and says V can have it back only on payment of £500. Liable under 6(1):‘intention to treat as own to dispose of…..’

Question 35

Lloyd [1985] QB 829[1985] 2 All ER 661 (CA)

theft - constructive intention to permanently deprive - s 6(1) after ;

—appears not to try to give the italicized any fixed meaning but instead introduces new terminology:
=> goodness and virtue of property: ‘fungible’ (cash) vs ‘non-fungible’. If property is non-fungible, it seems to matter more but not really..

Answer 35

Held: no theft; pirate copying of film – no intention of permanent deprivation unless ‘all the goodness or virtue has gone’. In the present case as the film reels were undamaged and returned as intended, all the goodness and virtue could not have been said to have gone. So, if, for example, batteries returned completely spent, that would amount to all goodness and virtue having gone. (the Loyd test simply sums up s 6 after the semicolon)

Facts: D a projectionist took the reels to proceed to a pirate copy of the film but had no intention to PD

Question 36

Velumyl [1989] Crim LR 299

theft - constructive intention to permanentlty depi-rive - s 6 (after;)

Is this a good decision? It surely makes sense with non-fungible property (e.g a birthday present from a much-loved relative) that one token of the same type is not exactly the same (to V). But with fungible property, such as bank notes or books of stamps, surely one can simply replace one token of the same type with another? Anyway, the rule is surely explained by the policy of discouraging people from removing (‘borrowing’) cash from their place of work with the intention (often unrealistic) of replacing the cash.

Answer 36

Argument rejected: Since intention is not to return the specific notes taken, this is an intention to permanently deprive the (specific) notes taken.

Facts: D took notes from the company safe as the weekend began, said he intended to return the money after the weekend, therefore did not intend to permanently deprive.

Question 37

Mitchell [2008] EWCA Crim 850 CA

Abandoning Property and Intention to Permanently Deprive (s 6 after ;)

Judiciary more generally appear to be downplaying the part of s6(1) that comes ‘after the semicolon.’

prosecutors should normally proceed on an offence of taking without consent (see below) where there is no evidence that the defendant intended to do anything other than simply use the vehicle before abandoning it. However, where there is evidence that for example the index plate was changed or that the vehicle was deliberately written off or destroyed (for example by fire), that might be sufficient to establish intent to permanently deprive.

Answer 37

= No ITPD so no theft
Rix LJ: The trial judge erred. Was ‘beguiled’ by s6. Rix LJ spoke of:

Danger of turning every case of taking and driving away without authority under s 12 of the Theft Act into a case of theft……whereas of course the whole point of s12 is to get round the problem that a car which is taken and driven away for a ride only to be abandoned, is not easily found to be a case of theft.

Facts: V, Mrs Davis, sitting in her family’s BMW in country lane in Essex minding her own business. Meanwhile police are chasing escaping motorists…Escapees succeed in shaking off the police. Escapees come across V’s car and decide to exchange that for theirs (they throw Mrs Davis out). Escapees drive on, then abandon V’s car leaving it (undamaged) with the hazard lights on. They get into yet another car and drive that off. Finally, they dump the other car, having set fire to it. Ds charged with robbery (elements of theft + violence)

Defendants initially convicted because ‘in circumstances equivalent to outright taking’ under s6(1)—the clause ‘after the semi-colon.’ Defendants appealed on the point.

Question 38

Fernandes [1996]1 Cr App R 175

theft - s 6(2) and 6(1) - ITPD

Answer 38

“……deals with that property in such a manner that he knows he is risking its loss.”

Sufficient. = eg taking someone’s money and betting it on a horse or taking it to a pawn shop.

the defendant embezzled money from his client and invested it. He intended to return the money.

Question 39

Cox v Riley

criminal damage - ‘property’

Answer 39

held to be damage

erasure of a computer program

Question 40

Roe v Kingerlee

‘damage’ - criminal damage

this case was followed by R v Whiteley (which was judged under the computer misuse act) : Lord Lane CJ: Any alteration to the physical nature of the property concerned may amount to damage + the damage itself need not be tangible (Computer hackers)

Answer 40

the damage need not be permanent
= His conviction was upheld. The smearing of mud did amount to damage for the purposes of the Criminal Damage Act 1971. What constitutes damage is a matter of fact and degree and it is a matter for the Justices applying their common sense to decide if what occurred did constitute damage.

The appellant smeared mud over the wall of a police cell. It cost £7.00 to have it cleaned off. He was convicted of Criminal Damage by the Magistrates and appealed by way of case stated contending that no permanent damage had occurred and therefore no conviction for criminal damage could result.

Question 41

B (a minor) v DPP [2000]

‘without a lawful excuse’ - criminal damage

=> but Bingham LJ’s words in R v G are more authoritative: when D is ‘aware of a risk that it exits or it will exist

Answer 41

suggested that Where recklessness about non-consent needs to be proved, it is sufficient that D did not believe that V consented w/o proving that D positively believed that there was risk that V did not consent

this is a sexual offence case

Question 42

MPC v Charles [1977] AC 177

fraud - s 2 - credit cadr and cheques - representation

“Section 16(1) does not provide either expressly or by implication that the person deceived must suffer any loss arising from the deception. What does have to be proved is that the accused by deception obtained for himself or another a pecuniary advantage. What there must be is a causal connection between the deception used and the pecuniary advantage obtained. (can also be applied in s 2)”

Answer 42

Conviction upheld - this was an implied representation of the ability to pay

D bought gaming chips at a casino with a number of cheques backed by a cheque guarantee card issued to him by his bank. He knew that the amounts drawn would result in overdrawing his account by well in excess of the agreed overdraft limit of £100. D was convicted of obtaining a pecuniary advantage (being allowed to borrow by way of overdraft) by deception contrary to s. 16 of the Theft Act 1968 (now fraud)

Question 43

Lambie [1982] AC 449

fraud - s 2 - implied representation-note that before Fraud Act

the seller’s potential complicty ?
The conviction was upheld by the House of Lords on the basis that if the shop assistant had known the truth she would not have accepted the credit card in payment, hence the use of the card was an operative deception. The defendant could of course, call the retailer to give evidence that she was quite happy to accept the credit card in full knowledge of the defendant’s lack of authority, but the retailer is unlikely to want to run the risk of becoming an accomplice to the defendant’s fraud on the credit card company.

Controversial case: According to author Glanville Williams ‘It is a strong thing to say that a person who deals with A impliedly represents to A that he is not defrauding B, A having no pecuniary interest in the question, whether the fraud is committed or not.’ = this was not an appropriate case for the criminal law.

Answer 43

in presenting card arguably D is impliedly representing that D has the authority of the bank/credit card company to use it.

A new mother with financial difficulties. Goes to Mothercare with a Barclaycard. She presents the card and the payment. However, she had been instructed by the bank not to use the card because overdraft.

The idea of ‘implied representation’ is potentially very wide. It is still not fully clear how lower courts are interpreting the idea; and how a higher court would rule should a major case emerge

Question 44

Augunas [2013] EWCA Crim 2046; [2014] 1 Cr App R 241.

fraud - s 2- mens rea - knowledge of falsity

Answer 44

It is wrong to direct the jury by saying the person ought to know it is untrue or misleading. Subjective awareness is certainly required. But CA added (obiter) ‘if an accused person wilfully shuts his eyes to the obvious doubts as to the genuineness of the misrepresentation that he is making, then he knows that it might be untrue or misleading and he would be guilty of the offence’.

Question 45

1. Razoq [2012] EWCA Crim 674.
2. Mashta [2010] EWCA Crime 2595.
3. White [2014] EWCA Crim 714.

fraud - s 3 - legal duty to disclose

see also Forrest and others [2014] EWCA Crim 308. :
relationship between s 2 and s 3

Court of Appeal: Pitchford LJ: ‘the case reaffirms the point that not every false representation can give rise to possible liability for failing to disclose.’ But seems very high possibility of overlap between s3 and s2 (cf. idea of ‘implied representation’ under s2).

Answer 45

1. Court of Appeal: D was under a legal duty to disclose the fact that he was subject to disciplinary proceedings.
2. Appeal allowed in CA (appeal on sentence allowed, reducing D’s sentence from 15 to 8 months imprisonment.)
3. CA: D under no s 3 legal duty to disclose his unemployment when applying for a mortgage. Was not required by the terms of the mortgage application. (But D did make a false representation and could have been guilty of fraud under s 2).

1. Facts: NHS doctor wishing to augment income, signed on to locum agency. It was stipulated in his contract that the locum agency must have its attention directed to any disciplinary proceedings instituted against D. But R does nit disclose that he is in a disciplinary proceeding.
2. Facts: D was receiving asylum support on grounds of destitution. Then gained employment. Among other charges, D was charged with fraud by failing to disclose his employment.
3. Facts: D makes a mortgage application but fails to mention that he is unemployed. But this was not stated in the document.

Question 46

D [2019] EWCA Crim 209.

“But that cannot of itself, as we see it, connote that she was obliged in law to notify the council of her continued residence. It is quite wrong to equate a liability to pay with a liability to notify. It may be, as the judge thought, that one might have expected to find such a provision as to notification in the statutory scheme. But that was a matter for Parliament to decide. The fact is, as we have said, that such a provision simply is not there, either within the primary legislation or in subordinate legislation…” (para 19)

Law Commission had said a duty of disclosure may derive for example:
* from statute,
* from certain kinds of contract (of utmost good faith),
* from the express or implied term of a contract,
* from the existence of a ‘fiduciary relationship’ etc.

But in D, Court found that nothing of the sort applied here. In sum, no implied duty would be found

Answer 46

There was no legal duty (even judge surprised) so no fraud under s 3

Facts: D for many years paid council tax to Hertsmere Borough Council on a property she owned at a 25% discount based on her non-residence at the property. The council alleged that at a certain point she had moved back into the property without informing the council while all the while continuing to benefit from the 25% reduction. Was this fraud by failing to disclose under s3?

Question 47

Valujevs [2014] EWCA Crim 2888

fraud - s 4 - ‘expected’

Answer 47

appeal allowed
Fulford LJ

1. it is for the judge to assess whether D was potentially in ‘a position in which [D] is expected to safeguard etc the financial interests of others.’ If so, jury determines if this was the case.
2. Test is to be based on ‘reasonable person’ standard.

What is the nature of a relevant ‘abusable’ position more specifically?
“a position in which [D] is expected to safeguard or not to act against “another. One that specifically implicates the other’s ‘financial interests’.

Unlicensed gangmasters (labour suppliers) Ds made unwarranted deductions in their workers’ pay in the form of excessive rent and unwarranted fines and penalties
Ds were charged under s4 Fraud Act 2006 for fraud by abuse of position but acquitted on the basis that there was no expectation that Ds safeguard the financial interests of their workers for the purposes of s4(1)(a). The prosecution appealed

Question 48

Re Coomber [1911] 1 Ch 723.

fraud - s 4 - on the nature of fiduciary expectation

Answer 48

‘Fiduciary relations are of many different types; they extend to the relation between myself and an errand boy who is bound to bring me back my change up to the most intimate and confidential relations which can possibly exist between one person and another where the one is wholly in the hands of the other because of his infinite trust in him.’

= So can be fiduciary relations as regards only certain limited purposes.

Question 49

Marshall [2009] EWCA Crim 2076.

fraud - s 4 - expected to safeguard

Compare the theft case of Hinks [2000] UKHL 53.
Does the fact that Fraud Act now covers this situation mean Theft Act should cease to?
Does this solve two of the concerns hanging over from law of theft?

Lloyd(refer back to Theft)

Borrowing insufficient for intention to permanently deprive unless ‘intention is to return the thing in such a changed state that it can truly be said all its goodness or virtue has gone.’
But employee who pirates company goods for personal profit.. Occupying a position where expected to safeguard etc?

Oxford v Moss (refer back to Theft)
Confidential information not property under Theft Act.
But might holder of such information occupy a position where expected to safeguard etc?

Answer 49

conviction of fraud under s4

D was manager of a residential home for persons with severe learning difficulties. She used £7,000 from residents’ accounts for her own purposes (conviction under s4).

Question 50

Troughton [1987] Crim LR 138

making of w/o payment

Answer 50

= the service needs to have been completed
Held: it cannot be said that D has failed to pay as required or expected if contract is not yet complete. The agreement was that the taxi driver would drive D home. D had told the taxi driver to drive to Highbury, at which point D would give him the more precise address. On arrival at Highbury (in other words before the contract had been completed), the taxi driver handed D over to the police.

D, heavily intoxicated, took a taxi and during the journey argued with the taxi driver, saying he was not going to pay him and accusing him of taking a deliberately meandering route in order to charge more. The taxi driver left the man with the police.

D was initially convicted of Making Off without Payment. Overturned on appeal.

Question 51

Allen [1985] AC 1029

making of without payment - MR

Answer 51

Appeal allowed: CA– required an intent to avoid payment permanently, not just at time expected

D left hotel without settling bill. What is the meaning of “with intent to avoid payment of the amount due”? D convicted after jury were directed that it was an intent to avoid paying at the time it was expected that was required.

Question 52

Vincent [2001] EWCA Crim 295

making off without payment

At first instance: per trial judge Mary Mowat:
Where D brings about agreement by ‘dishonestly conning and manoeuvering’ there was no ‘proper’ agreement to postpone the ‘requirement and expectation for payment’.

But overturned on appeal. Pill LJ: – Struck down. No: the fact that the agreement to defer payment was dishonestly obtained did not reinstate expectation of payment on the spot.

Answer 52

D stayed (a month) at the Bricklayers Arms, Windsor. Left having only partly paid. D stayed (a week) at the Langton Arms. Left without paying. D claimed to have got agreement at both places that he would pay/pay in full at dates after his departure. Claimed to be waiting for payment from both a TV company and a newspaper for work he had supposedly done for them.

Question 53

Hibbert v McKierran

theft - appropriates - belonging to another

Answer 53

abandonment may negate ownership. Once abndoned ⇒ownership vested in the first person to take possession of them.

= on the facts
His conviction for theft was upheld. The golf club had exercised sufficient control demonstrating both an intention to control for possession and an intention to exclude others. As a trespasser, the defendant could not demonstrate a better right to the balls.

The defendant collected lost balls on a golf course owned by a golf club. He then sold the balls to golfers coming on to the ground. He did not have permission to be on the golf course or to collect the balls. . He was convicted of theft and appealed contending that the balls were abandoned and as a finder of the balls he had a better right to the balls than the golf club as landowner, since the balls were on the surface of the ground rather than underneath.