Property offences

Question 1

Basic criminal damage: The basic offence

Answer 1

Basic criminal damage: Section 1(1) Criminal Damage Act 1971 (CDA), provides: A person who without lawful excuse damages or destroys any property belonging to another
intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

Question 2

Five Parts of Basic Criminal Damage

Answer 2

The offence of basic criminal damage offence may be broken down into five parts:
* Destroy or damage
* Property
* Belonging to another
* Without lawful excuse (this will be covered in a separate section)
* Intention or recklessness as to the damage or destruction of property belonging to another

Question 3

1.2 Actus reus

1.2.1 Destroy or damage

Answer 3

The CDA does not provide a definition of the terms ‘damage’ or ‘destroy’.
The term ‘destroy’ means that following D’s actions, the property ceases to exist. However, much of the case law has concerned itself with the definition of damage. Whether property is damaged is a question of fact and degree as will be seen in the cases which follow.

Question 4

Key case: Samuels v Stubbs [1972] 4 SASR 200

Answer 4

The court considered that it was difficult to lay down a general rule as to what constitutes damage. It held that it must be guided by the circumstances of each case, the nature of the article, and the mode by which it was affected. The court stated:

[T]he word […] is sufficiently wide in its meaning to embrace injury, mischief or harm done to property, and that in order to constitute damage it is unnecessary to establish such definite or actual damage as renders the property useless or prevents it from serving its normal function.

Question 5

Key case: Hardman v Chief Constable of Avon [1986] Crim LR 330

Answer 5

The defendants had painted silhouettes on a pavement in whitewash as part of a demonstration against Hiroshima. The Local Authority had employed a ‘graffiti squad’ to clean the pavements, despite the fact that the pictures would eventually have been washed away by the rain. The court held this to be damage as damage need not be permanent. It was relevant that time,
effort and money had been spent in restoring the pavement to its original state

Question 6

Key case: Roe v Kingerlee [1986] Crim LR 735

Answer 6

Mud was spread on the walls of a police cell. This cost £7 to remove and was held to be damage.

Question 7

Key case: A (a juvenile) v R [1978] Crim LR 689

Answer 7

The court held that spitting on a policeman’s raincoat was not criminal damage. It was argued that the spittle could be wiped away with a cloth to return the raincoat to its original state without a mark or stain.

Question 8

Key case: Morphitis v Salmon [1990] Crim LR 48

Answer 8

The court stated: [Criminal damage includes] not only permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness.

Question 9

Key case: Fiak [2005] EWCA Crim 2381

Answer 9

A case where F stuffed his blanket down the toilet in his prison cell and the repeatedly flushed the toilet. This flooded the cell. Although the floor was waterproof and the blanket was washable, this constituted damage as both were temporarily unusable.

Question 10

1.2.2 Property

Answer 10

Section 10(1) CDA 1971
In this Act “property” means property of a tangible nature, whether real or personal, including
money and-

(a) including wild creatures which have been tamed or are ordinarily kept in captivity, and any other wild creatures or their carcasses if, but only if, they have been reduced into possession which has not been lost or abandoned or are in the course of being reduced into
possession; but
(b) not including mushrooms growing wild on any land or flowers, fruit or foliage of a plant growing wild on any land.

Question 11

R v Whitely (1991) 93 Cr App R 25

Answer 11

For the purposes of this subsection “mushroom” includes any fungus and “plant” includes any shrub or tree. In R v Whitely (1991) 93 Cr App R 25, the court held that information does not fall within the definition of ‘property’ contained in (s 10(1)).

Question 12

1.2.3 Belonging to another

Answer 12

Section 10(2)
Property shall be treated for the purposes of this Act as belonging to any person—
(a) having the custody or control of it;
(b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or
(c) having a charge on it.

Question 13

s 10(2)(c):

Answer 13

It can be seen that property can belong to more than one person. Where D owns property it can still belong to another, such as a co-owner. If the property is mortgaged it will also belong to the
bank or mortgage company by virtue of s 10(2)(c).

Question 14

1.3 Mens rea

Answer 14

The mens rea for basic criminal damage is the intention or recklessness as to the destruction or damage of property belonging to another.

Question 15

R v Moloney [1985] 1 AC 905)

Answer 15

Intention is to be given its ordinary meaning (R v Moloney [1985] 1 AC 905) and therefore requires consideration of whether, at the time D carried out the actus reus, it was D’s aim or purpose to destroy or damage the property belonging to another.

Question 16

Key case: R v G [2003] UKHL 50

Answer 16

The House of Lords, stated that to convict a person of reckless criminal damage the prosecution
must prove that:
(a) At the time of committing the actus reus, the accused was subjectively aware of a risk; and
(b) In the circumstances known to the accused, it was objectively unreasonable for the accused
to take that risk.

Question 17

Court of Appeal

Answer 17

It has been confirmed that the mens rea extends to the whole of the actus reus. The Court of Appeal held that it is insufficient that D does an act that damages property intentionally. What
must also be proved is that D knew, or was reckless as to whether, the property belonged to another.

Question 18

Key case: R v Smith [1974] 1 ALL ER 632

Answer 18

Facts: Smith, who lived in rented accommodation with his brother, had installed electrical wiring
to connect a stereo system. He had also, with his brother’s help and the landlord’s permission, put down floorboards, wall panels and roofing material. After two years, Smith decided to vacate the
flat and asked permission for his brother to remain: the landlord declined. After this, Smith smashed the wall panels, floorboards and roofing material, doing so he said to gain access to the
wiring that he had fitted, in order to remove it. He was found guilty.

Question 19

Key case: R v Smith [1974] 1 ALL ER 632 Judgement

Answer 19

Held: The Court of Appeal allowed the appeal and quashed his conviction (per James LJ). Construing the language of s 1(1) we have no doubt that the actus reus is “destroying or damaging any property belonging to another”. It is not possible to exclude the words
“belonging in another” which describe the “property”.

Question 20

Ordinary principles of mens
rea

Answer 20

Applying the ordinary principles of mens
rea, the intention and recklessness and the absence of lawful excuse required to constitute the offence have reference to property belonging to another. It follows that in our judgment 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. Therefore, while ignorance of the criminal law is no defence, this case is an example of how
ignorance of the civil law can prevent liability.

Question 21

1.4 Basic arson

Answer 21

Arson is criminal damage by fire, however slight. Basic arson is charged under s 1(1) and s 1(3).
Below you can see the additions to the actus reus and mens rea:
Actus reus:
* Destroy or damage by fire
* Property
* Belonging to another
* Without lawful excuse
Mens rea:
* Intention or recklessness as to the destruction or damage of property belonging to another by fire.

Question 22

Basic arson definition

Answer 22

Section 1(3) CDA 1971 provides:
Any offence committed under this section by destroying or damaging property by fire shall be
charged as arson.

Question 23

1.5 Summary

Answer 23

This section considered the offence of basic criminal damage under s 1(1) (and s 1(3) if the charge
is basic arson):
Actus reus:
* Destroy or damage (by fire)
* Property (s 10(1))
* Belonging to another (s 10(2))
* Without lawful excuse (covered in another section)

Question 24

Mens rea:

Answer 24

• Intention or recklessness as to the destruction or damage of property belonging to another (by
  fire). Whether property is damaged is a question of fact and degree:
• Guided by the circumstances of each case, the nature of the article, and the mode by which it was affected. It is unnecessary to render the property useless (Samuels v Stubbs).
• It need not be permanent. It is relevant that time, effort and money is spent in restoring the property (Hardman v Chief Constable of Avon).
• It includes not only permanent or temporary physical harm but also permanent or temporary
  impairment of value or usefulness (Morphitis v Salmon).

Question 25

2 Criminal damage - lawful excuse

2.1 Introduction

Answer 25

A defendant will not commit criminal damage if they have a lawful excuse. A lawful excuse can be:
* Any general defence: Where relevant, can apply to any offence of criminal damage/arson under (s 5(5)); or
* Section 5(2) 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 the next section).

Question 26

Section 5(2) lawful excuse defences

Answer 26

There are two lawful excuse defences in s 5(2):
* Section 5(2)(a): Operates where the defendant believes that the owner would have consented
to the damage; and
* Section 5(2)(b): Operates where the defendant acts to protect their or another’s property.

Question 27

2.2 Section 5(2)(a) - D believes the owner would have consented

Answer 27

This defence is dealt with in ss 5(2) and (3):
* Section 5(2)(a) operates where the defendant believes that the owner would have consented to
the damage; and
* Section 5(3) says that the defendant’s belief need not be reasonable. It is only necessary for it to be honestly held. Let’s consider the actual wording of this lawful excuse defence.

Question 28

5. “Without lawful excuse”

Answer 28

(2) ‘A person charged with an offence to which this section applies, shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse-
(a) if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances; or
(3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.

Question 29

2.2.1 Mistaken belief due to voluntary intoxication?

Key case: Jaggard v Dickinson [1980] Crim LR 717 (QBD)

Answer 29

Facts: Dickinson broke a window in the drunken belief that the house was that of a friend with whom she was staying.
Held: The court confirmed that the test was subjective. Applying s 5(3), the court held that Dickinson was entitled to the defence under the s 5(2)(a), irrespective of whether the belief was reasonable, even, as here, where it resulted from the defendant’s intoxication.

Question 30

2.2.2 Can a defendant’s motive be taken into account?

Answer 30

Provided the defendant honestly believes that the owner of the property has or would have consented to the damage to property, the defendant’s motive for causing the damage is
irrelevant to s 5(2)(a), even where the motive is to perpetrate a fraud. Criminal damage is not an offence of dishonesty.

Question 31

Key case: R v Denton [1982] 1 All ER 65

Answer 31

Facts: The owner of a factory in financial difficulties had apparently said to D: ‘There is nothing like a good fire for improving the financial circumstances of a business’. D took this as an
instruction to set fire to the factory, which he did.

Held: His conviction for arson was quashed, the Court of Appeal holding that he was entitled to
the s 5(2)(a) defence.

Question 32

2.2.3 Are there any limits on this defence?

Key case: Blake v DPP [1993] Crime LR 586

Answer 32

Facts: The defendant attempted to rely on s 5(2)(a) defence using a novel argument. During a demonstration protesting about the use of military force by the allies in Iraq and Kuwait, Blake, a
vicar, used a marker pen to write a Biblical quotation on a concrete pillar at the Houses of Parliament.

Question 33

Appeal against conviction

Answer 33

He appealed against his conviction for criminal damage, claiming, inter alia, that he was carrying out the instructions of God. He argued that he had lawful excuse under s 5(2)(a) in that he
believed God to be the one entitled to consent to the damage. He also argued that s 5(2)(b) applied as he had damaged the property to protect the property of others (the court’s ruling on this issue, will be discussed later).

Question 34

Judgement

Answer 34

Held: The QBD dismissed his appeal, holding that a belief, however powerful, genuine and honestly held, that God had given consent was not a lawful excuse under the domestic law of England.

Question 35

2.3 Section 5(2)(b) - D acts to protect property

Answer 35

Section 5(2)(b) operates where the defendant acts to protect their or another’s property. The section relates only to the protection of property, as opposed to the protection of people.

Question 36

Key case: R v Baker & Wilkins [1997] Crim LR 497

Answer 36

Facts: A mother could not raise the s 5(2)(b) defence to a charge of criminal damage to a door that she had kicked open in order to rescue her child from a perceived threat by her estranged husband.

Held: The court held that the child did not constitute ‘property’ for the purposes of s 5(2)(b). If it had been a pet dog or cat, then the case might have been different, as these are property. For example, letting a person’s pet parrot out of its cage could be criminal damage or theft of the bird.

Question 37

5. “Without lawful excuse”

Answer 37

(2) A person charged with an offence to which this section applies, shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse.

Question 38

5. “Without lawful excuse”

Answer 38

(b)if he destroyed or damaged or threatened to destroy or damage the property in question or, in the case of a charge of an offence under section 3 above, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed

Question 39

5. “Without lawful excuse”

Answer 39

(a) that the property, right or interest was in immediate need of protection; and
(b) that the means of protection adopted or prosed to be adopted were or would
be reasonable having regard to all the circumstances.

Question 40

5. “Without lawful excuse”

Answer 40

(3) For the purposes of this section it is immaterial whether a belief is justified or not if it is
honestly held.

Question 41

2.3.1 D acts to protect property

Answer 41

There are four requirements for the s 5(2)(b) defence aspects of which we will consider in greater
depth:
(a) R v Baker & Wilkins: The defendant must act to protect property.
(b) Section 5(2)(b)(i): The defendant must believe that the property was in immediate need of
protection (subjective test, see s 5(3)).
(c) Section 5(2)(b)(ii): The defendant must believe that the means of protection adopted are
reasonable (subjective test, see s 5(3)).
(d) R v Hunt: The damage caused by the defendant must be (objectively) capable of protecting the property.

Question 42

Key case: Johnson v DPP [1994] Crim LR 673

Answer 42

Facts: Johnson, a squatter in a council house, damaged a door while attempting to fit locks in the
house. Johnson was charged with criminal damage and raised s 5(2)(b) defence on the grounds that there had been a high number of thefts in the area, and that he had therefore acted to protect his property.

Held: The Queen’s Bench Division upheld his conviction on the grounds that he did not believe his property was in immediate need of protection.

Question 43

2.3.2 Objectively capable of protecting the property

Key case: R v Hunt [1977] Crim LR 740

Answer 43

Facts: In order to demonstrate the inadequacy of the fire alarm in a block of flats, Mr Hunt started a fire in a bedroom in a deserted part of the block. He pressed the fire alarm, which did not work. He then called the fire brigade.

Held: The Court of Appeal, rejecting the defence under s 5(2)(b), introduced an objective element into the defence in addition to those specifically mentioned in the Act. The court held that it was
not sufficient that the accused intended to prevent further damage to property (as statutory language suggests) but also required that the act be objectively capable of protecting the property from damage

Question 44

Introduction of this objective test

Answer 44

Arguably, the introduction of this objective test, is inconsistent with the language used in s 5(2)(b) which indicates a subjective test, see s 5(3). The fourth aspect of the s 5(2)(b) lawful excuse defence is that the damage caused by the accused must be objectively capable of protecting the
property.

Question 45

Key case: Blake v DPP

Answer 45

The defendant put forward the additional argument that he was entitled to rely on s 5(2)(b) because he had acted to protect property in the Gulf States. Applying the objective test from Hunt, the court held that his actions were not capable of having this effect.

Question 46

Key case: R v Hill and Hall (1998) 89 Cr App R 74

Answer 46

Facts: The accused, a nuclear protestor, was arrested outside a nuclear submarine base. She was
in possession of a hacksaw blade, which she intended to use to cut through the wire fence. She
was charged under s 3 CDA (possessing anything with intent to destroy or damage property) and
unsuccessfully raised the defence under s 5(2)(b) that she was acting in order to persuade the
Americans to leave the base, to reduce the threat of a nuclear strike, and thus protect her
property.

Held: The objective test in Hunt was confirmed in this case. The court held that cutting the wire
was far too remote from the eventual aim of protecting property to satisfy the test.

Question 47

2.4 Other lawful excuses

Answer 47

Section 5(5) preserves the availability of the general defences to criminal offences such as selfdefence, and duress Section 5(5) states: This section shall not be construed as casting doubt on any defence recognised by law as a
defence to criminal charges.

Question 48

2.5 Summary

Answer 48

A defendant will not commit criminal damage if they have a lawful excuse:
* Any general defence: Such as self-defence, where relevant, can apply to any offence of
criminal damage/arson under s 5(5); or

Question 49

Section 5(2)

Answer 49

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

Question 50

Section 5(2)(a)

Answer 50

Operates where the defendant honestly believes that the owner would have consented to the damage (s 5(3)), even if mistaken due to voluntary intoxication (Jaggard v Dickinson). Note: D’s motive is irrelevant even if it is to perpetrate a fraud (R v Denton).

Question 51

Section 5(2)(b): has four requirements to it:

Answer 51

◦ R v Baker & Wilkins - D must act to protect property.
◦ s 5(2)(b)(i) - D must honestly believe that the property was in immediate need of
protection (subjective test, s 5(3)). See Johnson v DPP on immediacy.
◦ s 5(2)(b)(ii) - D must honestly believe that the means of protection adopted are
reasonable (subjective test, see s 5(3)).
◦ R v Hunt - The damage caused by D must be objectively capable of protecting the
property (see further Blake v DPP and R v Hill & Hall

Question 52

3. Aggravated criminal damage

Answer 52

Aggravated criminal damage: Section 1(2) Criminal Damage Act (‘CDA’) 1971 provides:
A person who without lawful excuse destroys of damages any property, whether belonging to
himself or another—
(a) intending to destroy or damage any property or being reckless as whether any property
would be destroyed or damaged; and
(b) intending by the destruction or damage to endanger life of another or being reckless as to
whether the life of another would be thereby endangered; shall be guilty of an offence.

Question 53

3.1 Actus reus

Answer 53

The offence of aggravated criminal damage falls under s 1(2) (or s 1(2) and s 1(3) if the charge is
aggravated arson).
* Destroy or damage (by fire)
* Property (s 10(1))
* Belonging to another s 10(2) or himself.

Question 54

Actus reus of aggravated criminal damage/arson requires damage or destruction to property:

Answer 54

• A defendant can commit aggravated criminal damage to D’s own property.
• The lawful excuse defences in the s 5(2) do not apply. However, a defendant might
  nevertheless have a lawful excuse if any of the general defences to criminal offences apply (s
  5(5)).
• As a matter of actus reus, it is irrelevant whether the life of another was actually endangered.
  See the case of R v Sangha discussed later on in this section

Question 55

3.2 Mens rea

Answer 55

The mens rea of aggravated criminal damage (or aggravated arson) is:
* Section 1(2)(a): Intention or recklessness as to the destruction or damage of property (by fire);
and
* Section 1(2)(b): Intention or recklessness as to the endangerment of life by the damage or destruction (by fire).

Question 56

Key case: R v Sangha [1988] 2 All ER 385

Answer 56

Facts: Mr Sangha set fire to some furniture in a flat. There was no danger to the occupants since
they were not present at the time. There was no danger to the occupants of adjacent flats
because of the special construction of the building.

Held: The Court of Appeal upheld the defendant’s conviction on the basis, inter alia, that the issue
was whether the accused intended or was reckless as to whether life might have been endangered, not whether life was actually endangered.

Question 57

Key case: R v Dudley [1989] Crim LR 57 (CA)

Answer 57

Facts: Dudley had a grievance against the ‘J’ family. He consumed drink and drugs and threw a
firebomb at their house. The fire was extinguished by the J family and only trivial damage was
caused. D’s counsel claimed that it must be proved that he intended to endanger life or had been
reckless as to whether life was endangered by the actual damaged caused and that as the
damage caused was not great, he could not have been reckless as to endangering life.

Held: The Court of Appeal disagreed. The words ’destruction or damage’ in s 1(2)(b) referred back to the destruction or damage intended or as to which there was recklessness, not to the
destruction or damage actually caused.

Question 58

3.2.1 Danger to life must arise from the damaged property

Key case: R v Steer [1988] 1 AC 111 (HL)

Answer 58

Facts: The defendant had fired three shots through a window.
Held: This did not constitute the offence under the CDA 1971, s 1(2) because any risk to life
intended or foreseen had been by the bullets fired and not by the damaged property. It was held
that there had to be a causal link between the damage to property and the danger to life.

Question 59

R v Steer

Answer 59

It is not the match and the inflammable materials, the flaming firebrand or any other
inflammatory agent which the arsonist uses to start the fire which causes danger to life, it is
the ensuing conflagration which occurs as the property which has been set on fire is damaged
or destroyed. When [whether] the victim in the bedroom is overcome by the smoke or incinerated by the flames as the building burns, it would be absurd to say that this does not result from the damage to the building.

Question 60

Key case: R v Webster [1995] 2 All ER 168

Answer 60

Facts: The defendants had pushed a coping stone from a bridge onto a train, which had hit a marriage showering the passengers with debris from the roof. The conviction had been based on a
direction that intent to endanger life by the stone falling on a passenger would suffice.

Question 61

Key case: R v Webster [1995] 2 All ER 168

Answer 61

Facts: The defendants had pushed a coping stone from a bridge onto a train, which had hit a
carriage showering the passengers with debris from the roof. The conviction had been based on a
direction that intent to endanger life by the stone falling on a passenger would suffice.

Question 62

Key case: R v Webster [1995] 2 All ER 168 Judgement

Answer 62

The court substituted a conviction based on recklessness (per Taylor CJ): If the defendant’s intention is that the stone itself should crash through the roof of a train or
motor vehicle and thereby directly injure a passenger, or if he was reckless only as to that
outcome, the section would not bite.

If, however, the defendant intended or was reckless that
the stone would smash the roof of the train or vehicle so that metal or wood struts from the roof would or obviously might descend upon a passenger, endangering life, he would surely b guilty. This may seem to many a dismal distinction.

Question 63

3.3 Summary

Answer 63

This section considered aggravated criminal damage under s 1(2) (and aggravated arson under s
1(2) and s 1(3) if done by fire):

Question 64

Mens rea for Property Damage

Answer 64

• Section 1(2)(a): Intention or recklessness as to the destruction or damage of property (by fire).
• Section 1(2)(b): Intention or recklessness as to the endangerment of life by the damage or destruction (by fire)

Question 65

Mens rea for Property Damage

Answer 65

• No life need actually be endangered (R v Sangha).
• The damage intended or the damage D was reckless to is the issue, as opposed to the
  amount of actual damage caused (R v Dudley).
• Danger to life must arise from the damaged property, not the means of damaging it. If the
  damage is caused by fire, the risk to life will always be from the damaged property (R v
  Steer).

Question 66

4 Theft & the Definition

Answer 66

Theft: The definition of the offence of theft is found in s 1(1) Theft Act 1968 (TA), which provides: A person is guilty of theft if he dishonestly appropriates property belonging to another with
the intention of permanently depriving the other of it […]

Question 67

The prosecution must prove all five elements in order to secure a conviction for theft:

Answer 67

• Actus reus:
• Appropriation (s 3 TA)
• Property (s 4 TA)
• Belonging to another (s 5 TA)
• Mens rea:
• Dishonestly (s 2 TA)
• With the intention to permanently deprive (s 6 TA)

Question 68

Simultaneous Existance

Answer 68

All of the elements must exist simultaneously. This can cause problems when dealing with factual scenarios:
* Martha borrows her friend’s dress for a night out, intending to give it back the following day.
However, Martha then changes her mind and keeps the dress – is this theft? Do all five
elements of s 1(1) occur at the same time?
* What if Edward’s grandmother gave him some money to put towards a deposit for a house but
Edward uses the money to go on holiday? Has he stolen this money?

Question 69

Formation of Dishonest Intent

Answer 69

By the time Martha and Edward have formed any dishonest intent they have already appropriated the property and, for Edward, under civil law, he was spending his own money. Nevertheless, you will see that the TA caters for such scenarios and both instances could still amount to theft.

Question 70

4.1 Appropriation

Answer 70

Appropriation: The word ‘appropriation’ is defined in part in s 3(1): Any assumption by a person of the rights of an owner amounts to an appropriation […]

Question 71

4.1.1 Any assumption

Key case: R v Morris [1983] 3 All ER 288

Answer 71

Facts: The defendant took items from a shelf in a self-service shop. He removed the correct price
labels and replaced them with labels taken from lower-priced goods. At the checkout, the
defendant paid the lower price for the items. He was arrested and subsequently convicted of
theft.

Question 72

Key case: R v Morris [1983] 3 All ER 288 Judgement

Answer 72

Held: Both the Court of Appeal and the House of Lords dismissed his appeal against conviction. It
was held that it is only necessary to assume one of the rights of the owner. It was the owner’s right
to label his goods, so when Morris swapped the labels this was an appropriation.

Question 73

Two important points emerge from this case:

Answer 73

(a) The assumption of any one of the rights of an owner amounts to an appropriation for example selling it, hiring it, giving it away or destroying it.
(b) Even if D does not intend by the act of appropriation itself to deprive the owner permanently
of the property, D may be guilty of theft.

Question 74

4.1.2 Consent and appropriation

Answer 74

The natural meaning of ‘appropriation’ might suggest an act which is not consented to by the owner of the property. In R v Gomez, the majority in the House of Lords decided that a defendant
can appropriate property even with the consent of the owner

Question 75

Key case: R v Gomez [1993] 1 All ER 1 (HL)

Answer 75

Facts: Gomez was the assistant manager at an electrical store, and he allowed his co-accused to
purchase electrical goods from the shop using two stolen building society cheques. Gomez asked
the shop manager to authorise the sale of the goods by accepting the cheques in payment. The
shop manager told Gomez to check with the bank that the cheques were acceptable.

Gomez pretended to do this and later told the shop manager that the cheques were ‘as good as cash’.
The sale went ahead and the cheques were subsequently dishonoured. Gomez and his coaccused were charged with theft. Gomez argued that he could not be guilty of theft since the shop manager had authorised the transactions and so there had been no appropriation. Gomez
was convicted of theft and he appealed to the Court of Appeal

Question 76

Key case: R v Gomez [1993] 1 All ER 1 (HL) Judgement

Answer 76

Held: The Court of Appeal certified the following point of law of general public importance for
appeal to the House of Lords:
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 a false representation, has, (a)
an appropriation within the meaning of section 1(1) of the Theft Act 1968 taken place, or, (b)
must such a passing of property necessarily involve an element of adverse [interference] with
or usurpation of some right of the owner?

Question 77

Majority of House

Answer 77

The majority of the House answered that there could still be an appropriation where property has passed with the owner’s consent, as there was no need for an adverse interference with the
owner’s rights. Lord Browne-Wilkinson said: I regard the word “appropriation” in isolation as being an objective description of the act done irrespective of the mental state of either the owner or the accused.

Question 78

4.1.3 Theft of gifts

Key case: R v Hinks [2000] 4 All ER 833

Answer 78

Facts: The defendant became friendly with a 53-year-old man of limited intelligence. Every day
she took him to his building society and he withdrew the maximum daily amount of £300. She
influenced, persuaded, or coerced him into giving her this money. Ultimately, he gave her £60,000. She was charged with theft.

The trial judge directed the jury to consider the donor’s state of mind when he gave the defendant the money and whether the defendant was dishonest. The defendant was convicted. She appealed against her conviction on the grounds that the trial judge had failed to clearly direct the jury that she could not be guilty of theft if the donor had
made a valid gift to her.

Question 79

Judgement

Answer 79

The House of Lords dismissed the appeal and held:
(a) Appropriation is a neutral act and the state of mind of the donor is irrelevant to appropriation;
(b) Therefore appropriation could take place with or without the consent of the owner; and
(c) Therefore a person could be guilty of stealing a valid inter vivos gift.

Question 80

4.1.4 A later appropriation

Answer 80

All the elements of theft must exist simultaneously. There are likely to be occasions when the defendant does not have the mens rea when first assuming an owner’s right and therefore does not commit theft at this point. In such circumstances, when the defendant does form the necessary mens rea later it will then be necessary to apply s 3(1), which provides for a later assumption of the owner’s rights to amount to an appropriation:

Question 81

Appropriation

Answer 81

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. (Emphasis added)

Question 82

4.1.5 The innocent purchaser

Answer 82

Section 3(2) exempts a defendant from liability for theft where the defendant purchases goods in
good faith and for value, then later discovers that the seller had no title to the property, but
decides to keep it. Note that mala fides (bad faith) precludes the protection afforded by s 3(2)

Question 83

Key case: R v Adams [1993] Crim LR 72

Answer 83

The defendant purchased goods not knowing that they were stolen. The trial court convicted him
of theft on the basis that there had been a later appropriation under s 3(1) when he kept the goods after finding out that they were stolen. However, the conviction was quashed on appeal on the ground that the judge failed to direct the jury that he had a defence under s 3(2).

Question 84

4.2 Property

Answer 84

In order to prove theft, it must be established that the defendant has appropriated property. Section 4 defines what property may be stolen. Property: Section 4(1) states: ‘Property’ includes money and all other property, real or personal, including things in action and other intangible property. Generally, all property may be stolen, although there are certain exceptions in relation to land (s
4(2)), things growing wild (s 4(3)), and wild creatures (s 4(4)).

Question 85

Property: Exceptions: Land, s 4(2)

Answer 85

(2) A person cannot steal land, or things forming part of land and severed from it by him or by
his directions, except in the following cases, that is to say-
(a) when he is a trustee or personal representative, or is authorised by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to
another, and he appropriates the land or anything forming part of it by dealing with it in
breach of the confidence reposed in him; or
(b) when he is not in possession of the land and appropriates anything forming part of
the land by severing it or causing it to be severed, or after it has been severed; or
(c) when, being in possession of the land under a tenancy, he appropriates the whole or
part of any fixture or structure let to be used with the land.

Question 86

In general land cannot be stolen. However, a person can be guilty of theft if, for example:

Answer 86

• Section 4(2)(a): D is authorised to sell land and sells more than they are meant to;
• Section 4(2)(b): D is a trespasser or invited guest and removes a fence or a lavender plant;
• Section 4(2)(c): D is a tenant and removes or sells without removing, a fixed greenhouse.

Question 87

4.2.1 Exceptions: Wild plants, section 4(3)

Answer 87

D will not be guilty of theft if they pick any of the following from plants growing in the wild:
* Mushrooms;
* Flowers;
* Fruit; and/or
* Foliage.
D can however be guilty of theft if:
* The purpose of picking from the wild plant is:
- A reward;
- To sell; or
- For another commercial purpose.
* D uproots or cuts parts of the wild plant.
* D picks cultivated plants.

Question 88

Property: Section 4(3) states:

Answer 88

A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage
from a plant growing wild on any land, does not (although not in possession of the land) steal
what he picks, unless he does it for reward or for sale or other commercial purpose. For the purposes of this subsection “mushroom” includes any fungus, and “plant” includes any
shrub or tree.

Question 89

4.2.2 Exceptions: Wild animals, s 4(4)

Answer 89

D will not be guilty of the theft of:
* Untamed animals; and/or
* Animals not ordinarily kept in captivity.
D can be guilty of theft of:
* Tamed animals (for example, pets such as a cat or dog);
* Animals kept in captivity (for example, in a zoo); and/or
* Animals in the course of being reduced into possession (for example, have been trapped)

Question 90

Property: Section 4(4) states:

Answer 90

Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of
reducing it into possession.

Question 91

4.2.3 What property can be stolen?

Answer 91

• Money: Notes, coins including other currencies
• Real property: Land in certain circumstances discussed already
• Personal property, for example a coat, a ring, a car, water, gas
• Intangible property such as things in action (a right to sue/recover): Company shares,
  trademarks, patents, copyright, a debt, a credit in a bank account, forged cheques, cheques
  drawn on accounts in credit or those drawn on accounts within the agreed overdraft limit (as
  the bank is obligated to honour the cheque)
• Unlawful or illegal items such as Class A drugs (Smith, Plummer and Haines[2011] EWCA Crim
  66)

Question 92

4.2.4 What property cannot be stolen?

Answer 92

• Wild plants and animals, except in certain circumstances discussed already
• Electricity (Low v Blease[1975] Crim LR 513)
• Corpses and body parts 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 parts which have ‘acquired different attributes’ for scientific or teaching
  purposes (Kelly and Lindsay[1999] QB 621)
• Confidential information does not fall within the definition of intangible property (Oxford v
  Moss(1978) 68 Cr App R 183)
• Services such as a train journey
• Cheques drawn on accounts over the agreed overdraft limit (as the bank is not obligated to
  honour the cheque)

Question 93

4.3 Belonging to another

Answer 93

Section 5(1) provides:
Property shall be regarded as belonging to any person having possession or control of it, or
having in it any proprietary right or interest […] This is a wide definition, which extends beyond ownership to include those having possession or control of it or a proprietary interest in it at the moment of appropriation.
Again, there is considerable case law and additional statutory provisions that deal with the issue
of when property will be deemed to belong to another.

Question 94

4.3.1 When is property abandoned?

Answer 94

Property can cease to belong to another if it has been abandoned. However, the courts do not
readily find that property has been abandoned.

Question 95

Key case: Williams v Phillips (1957) 41 Cr App R 5

Answer 95

It was held that householders do not abandon goods that are put in their domestic waste. The
householder intends the goods to be collected by the local authority, so a refuse collector could
be guilty of theft if appropriating goods from a bin with the relevant mens rea.

Property is not abandoned just because the owner has stopped looking for it. Smith, Hogan and
Ormerod’s Criminal Law notes that a husband who has lost his wedding ring and has long since
given up looking for it, will not have abandoned it.

Question 96

Key case: Hibbert v McKiernan [1948] 1 All ER 860

Answer 96

It was held that lost golf balls had not been abandoned by their owners. However, this does not
mean that property cannot be abandoned. It will depend on whether the owner wants the
property or wants it to go to another party, or whether the owner does not mind what happens to it.

Question 97

4.3.2 Possession or control

Answer 97

Section 5(1) states that property belongs to those having possession or control of it. The courts have found that property can belong to persons who have possession or control, not just of the specified property, but over the land upon which it was found. This can be so even if the owner of
the land is unaware of its existence

Question 98

Key case: R v Woodman [1974] 2 All ER 955

Answer 98

The Court of Appeal held that, because the factory owners had taken steps to exclude
trespassers, there was evidence that they were in control of the factory and thereby had control
of the scrap metal, which unknown to them, had been left inside the factory

Question 99

Key case: Parker v British Airways Board [1982] 1 All ER 834

Answer 99

Facts: The defendant was an airline passenger who found a gold bracelet in a British Airways
executive lounge. The court considered whether British Airways had possession or control of the
bracelet.

Question 100

Key case: Parker v British Airways Board [1982] 1 All ER 834 Judgement

Answer 100

Held: The court decided that the company did not, but stated that if it had shown an intention to
exercise control over the building and things in it, the company could have secured possession of
the bracelet before the defendant found it. The court held that British Airways could have demonstrated this intention either expressly, for example by putting up a notice, or impliedly. However, in this case it had shown no such intention. When the original owner did not come forward to claim the bracelet it could be kept by the passenger.

Question 101

4.3.3 Can you steal your own property?

Key case: R v Turner (No 2) [1971] 1 WLR 901

Answer 101

Facts: The defendant took his car to a local garage. He later contacted the mechanic to check if
the car was ready and was told that it was. The defendant took the car using his spare keys
without paying the bill. He was convicted of theft and appealed.
Held: The Court of Appeal held that the mechanic was in possession and control of the car and,
therefore, the car did ‘belong to another’.

Question 102

4.3.4 Property given to another for a particular purpose

Answer 102

Sometimes defendants will not form the necessary mens rea until after their initial appropriation
of the property. Section 5(3) sets out the rules for when title of the property has passed to the
defendant by the time D has formed the dishonest intent. The general civil rule is that title in property passes at the time that the parties intend it to pass

Question 103

Section 5(3)

Answer 103

Can be used to cover cases where property is handed over for a particular purpose,
and the title in that property passes to the accused before D has formed a dishonest intention to
use it for an unauthorised purpose.

Question 104

Section 5(3) provides:

Answer 104

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.

Question 105

Section 5(3) enables:

Answer 105

The prosecution to prove that the property still belongs to another for the purposes of the Act, without the need to use s 5(1), which could involve much more complex legal
issues.

Question 106

S 5(3) will only operate

Answer 106

Where the accused is under a legal obligation to use the property
for the purpose given. This is a matter of law which will be decided by the judge, having regard to
civil law. Very often there will be a trust which means that the property will also belong to another under s 5(1) which covers equitable interests

Question 107

Smith, Hogan and Ormerod’s, Criminal Law

Answer 107

It is better to use s 5(3) which
allows the prosecution to make out its case more easily without having to resort to the technicalities of trusts law. Please note that for the purposes of your BPP Criminal Law
assessment you are not expected to consider whether a Quistclose trust exists here. Following an analysis of the cases set out below, it appears that the courts have taken the view that particular arrangements should have been made with the defendant regarding the specified
property.

Question 108

Case strictly follows the words of the statute

Answer 108

R v Jenkins went to the House of Lords on another issue where no allusion to or criticism was made of what the Court of Appeal had said on this issue. It is therefore the current law

Question 109

6.5 Summary

Answer 109

This section considered the offence of burglary under s 9 Theft Act 1968.
There are two separate offences:
* Section 9 (1)(a) committed at the point of entry into the building as a trespasser and the
defendant must know or be reckless as to entry as a trespasser and intend to commit one of
the offences set out in s 9(2): theft, GBH or criminal damage.
* Section 9(1)(b) committed when, having entered the building as a trespasser, knowing or being
reckless as to entry as a trespasser, the defendant goes on to commit:
- Theft or attempted theft; or
- GBH or attempted GBH.

Note. Although criminal damage is stated as a relevant offence in s 9(2) for the purposes of a s
9(1)(a) offence, it is not included in a s 9(1)(b) offence.

Question 110

7. Aggravated burglary

7.1 Section 10, Theft Act 1968

Answer 110

(1) ‘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; and for this
purpose –

(a) ‘firearm’ includes an airgun or airpistol, 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.

(2) A person guilty of aggravated burglary shall on conviction on indictment be liable to
imprisonment for life.

Question 111

7.2 Why do we need another offence of burglary?

Answer 111

Consider the maximum sentences set out in the statute for burglary and aggravated burglary.
* The maximum sentence for burglary is set out in s 9(3) Theft Act 1968 as:
- 14 years, where the building or part of a building was a dwelling; or
- 10 years, in any other case.
* The maximum sentence for aggravated burglary is set out in s 10(2) as life imprisonment

Question 112

Possession of a fire arm

Answer 112

Burglary when in possession of a firearm, weapon of offence or explosive is deemed so serious to
warrant a maximum of life imprisonment. The reason given by the Criminal Law Revision
Committee at the time for this maximum sentence is that aggravated burglary could be very
frightening to anyone in the building and could potentially lead to fatal consequences.
We will now consider in greater depth the articles which fall within a ‘weapon of offence’ for the
purposes of s 10(1)(b).

Question 113

7.3 What will amount to a ‘weapon of offence’?

Answer 113

If you break down the wording of s 10(1)(b) a ‘weapon of offence’ can be any article:
* Made or adapted for causing injury to or incapacitating a person; or
* Which, at the time of committing the burglary, the defendant possesses with the intention of
causing injury to or incapacitating a person

Question 114

Key case: R v Stones [1989] 89 Cr App R 26 (CA)

Answer 114

Facts: The defendant was seen running away from a house which had just been burgled. He had a knife in his possession. He claimed he had to for self-defence.
Held: The phrase ‘intended by the person having it with him for such use’ does not impose a requirement to prove that the intended use was with respect to the particular burglary.

Question 115

Key case: R v Kelly [1993] 97 Cr App R 245 (CA)

Answer 115

Facts: K used a screwdriver to break into a house. When surprised by the householder, K told him to unplug the video and then stabbed the householder with the screwdriver. On leaving, K was
arrested with a video in one hand and the screwdriver in the other.

Question 116

Judgement

Answer 116

Held: His appeal against conviction for aggravated burglary was dismissed. The court said that K was charged on the basis of the Theft Act 1968, s 9(1)(b). Therefore, the time at which K had to be proved to have had a weapon of offence, in order to be guilty of aggravated burglary, was at the
time that he actually stole. The screwdriver would become a weapon of offence when K intended
to use it for causing injury to, or incapacitating any person. He had this intent by the time of the theft. This construction followed from the clear language of the Theft Act 1968, s 10 and was consistent with its purpose.

Question 117

7.4 When must D have the article with them?

Answer 117

It is important to establish that the defendant has the offending article with them at the time they
commit the relevant burglary, be it a s 9(1)(a) burglary (at the point of entry) or s 9(1)(b) burglary (on commission or attempted commission of theft or grievous bodily harm). This was confirmed in the following cases.

Question 118

Key case: R v O’Leary [1986] 82 Cr App R 341 (CA)

Answer 118

Facts: Here, the appellant forced entry into a private house while unarmed. He then picked up a knife from the kitchen and went upstairs where he confronted the two occupants. He committed a theft and injured the occupants. In answer to a charge of s 9(1)(b) aggravated burglary, the
appellant claimed he could not be guilty because he was not armed when he entered the house.

Question 119

Court of Appeal

Answer 119

Held: However, the Court of Appeal held that the time when he must have the weapon of offence was the time at which he actually stole. In this case, that was when he confronted the
householders and demanded their cash.

Question 120

Key case: R v Francis [1982] Crim LR 363 (CA)

Answer 120

Facts: Ds, who were armed with sticks, were allowed by V to enter after they noisily demanded entry. They then discarded their sticks and subsequently stole articles in the house.

Held: Their convictions for aggravated burglary were quashed; they may have entered with weapons of offence, but there was no evidence that at the point of entry they intended to steal. Facts: Ds, who were armed with sticks, were allowed by V to enter after they noisily demanded entry. They then discarded their sticks and subsequently stole articles in the house.

Question 121

Key case: R v Klass [1998] 1 Cr App R 453 (CA)

Answer 121

Facts: K and two other men, one of whom had a piece of pole in his hand, wrenched open the door of a caravan and demanded money from the occupant. The occupant ran out of the
caravan. Once outside, the occupant was repeatedly assaulted with the pole by one of the accomplices. There was no evidence that this accomplice with the pole ever went inside the building. K then entered the caravan without the pole and committed burglary. He was convicted of aggravated burglary.

Held: The Court of Appeal allowed the appeal on the grounds that there was no entry into the building with a weapon.

Question 122

7.5 Summary

Answer 122

This section considered the offence of aggravated burglary under s 10 Theft Act 1968.
* First it is necessary to establish that a burglary under s 9(1)(a) or (b) has occurred.
* If so, for s 10 to apply, the defendant must have with them, at the time of the burglary, one of
the articles set out in s 10 (1)(a)–(c), that is:
- Firearms or imitation firearms;
- A weapon of offence which ‘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’; or
- Explosives.
For aggravated burglary relying on a:
- Section 9(1)(a) offence: The defendant must have this article with them when entering the
building; or
- Section 9(1)(b) offence: The defendant must have this article with them when committing
the theft (or attempt) or the grievous bodily harm (or attempt).

Question 123

8. Fraud by false representation

8.1 Three ways of committing fraud

Answer 123

The Fraud Act 2006 (FA) abolished the old offences related to deception. They were replaced primarily by one offence of fraud under s 1 FA. The Act lists three different ways in which fraud can be committed:
* fraud by false representation (s 2);
* fraud by failure to disclose (s 3); and
* fraud by abuse of position (s 4).
This element will focus on fraud by false representation.
The maximum penalty for fraud, in relation to each of the different ways in can be committed, is the same and is also set out in s 1. If the defendant is tried on indictment, the maximum penalty is ten years in prison, or an unlimited fine.

Question 124

9 Fraud by false representation

Answer 124

This offence most closely matches the old offences of deception, and therefore reference will be made to case law that assists in explaining the concepts involved. It is, however, much wider than the deception offences, being a conduct rather than a result crime. All that is required for the actus reus is a false representation. There is no requirement that this representation deceives anyone.

Question 125

Section 2

Answer 125

(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.

Question 126

9.1 Actus reus

Answer 126

According to s 2:
(2) A representation is false if—
(a) it is untrue or misleading […]
(3) “Representation” means any representation as to fact or law, including a representation as
to the state of mind of—
(a) the person making the representation, or
(b) any other person.
(4) A representation may be express or implied.

Question 127

9.1.1 Express or implied representation

Answer 127

The representation that forms the heart of the case can be made expressly by the defendant, or
can be implied (s 2(4)). An implied representation can arise from:
* What the defendant says: In R v King[1979] Crim LR 122 a second-hand car dealer who stated that the mileage reading on a particular car ‘may not be correct’ impliedly represented that he
was not certain the reading was wrong when in fact he knew it was wrong as he had altered it

Question 128

9.1.1 Express or implied representation

Answer 128

• The defendant’s conduct: In DPP v Ray [1974] AC 370 the court held that the respondent made a continuing implied representation when entering a restaurant, ordering and eating a meal that he had the means and the intention of paying for it before he left.
  Pure silence, without an accompanying action cannot amount to a representation (R v Twaite)

Question 129

False representation by conduct

Key case: Idrees v DPP [2011] EWHC 624

Answer 129

Idrees had failed his driving theory test 15 times. An unknown person then took the test pretending
to be Idrees and passed. There was good evidence that Idrees had arranged this: Idrees had booked the test slot and he had booked it in English despite having taken the previous 15 tests in Urdu. It was found that the person who took the test made a false representation by conduct that he was Idrees and he did this as Idrees’s agent. The magistrates’ court convicted Idrees of fraud
by false representation and the High Court upheld the conviction.

Question 130

9.1.2 Representation as to fact, law or state of mind, Section 2(3)

Answer 130

A representation as to fact or law will normally be relatively straightforward. A representation as
to the state of mind, whether of the defendant or any other person, requires further consideration.
A false representation as to one’s belief may satisfy the requirements of s 2 if it can be shown that
the defendant does not in fact hold that opinion or belief.

Question 131

Key case: Edgington v Fitzmaurice (1885) 29 Ch D 459

Answer 131

The court stated: It is very difficult to prove what the state of a man’s mind at a particular time is, but if it can be
ascertained it is as much a fact as anything else. A misrepresentation as to the state of a man’s mind is therefore, a misstatement of fact […]

Question 132

Key case: R v King [1979] Crim LR 122

Answer 132

A second-hand car dealer stated that the mileage reading on a particular car ‘may not be correct’. The court held that the defendant had impliedly represented that he was not certain the reading was wrong (in fact he knew it was wrong as he had altered it). The latter representation is
one of present fact, about the dealer’s mental state.

Question 133

Key case: Smith v Land and House Property Corporation (1884) 28 Ch D 7

Bowen LJ:

Answer 133

If the facts are not equally well known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of material fact, for he impliedly states that he knows facts which justify his opinion. If the defendant is in a better position to express the belief or opinion than the other party, this may also amount to a false representation.

Question 134

Key case: DPP v Ray [1974] AC 370

Answer 134

The state of mind required can also relate to an intention. If the defendant states an intention to
do something, when D in fact has no such intention, this may also amount to a false representation. In this case, it was implied from the respondent’s course of conduct that he would pay for his meal before leaving the restaurant, which was a false representation of his intention/ state of mind after he made the decision to leave without paying.

Question 135

9.1.3 The representation must be untrue or misleading

Answer 135

Section 2(2)(a) The issue as to whether a representation is untrue will be an issue of fact for the jury to determine and will often be a straightforward one to resolve.
The Act appears to create an alternative approach by describing a false representation as one that is untrue or misleading. It is, however, unclear at present what the term ‘misleading’ adds.

Question 136

9.1.4 Overcharging

Answer 136

One situation that the courts had to resolve under the old deception offences, was whether a
trader or service provider, who charges a customer a sum for goods or services significantly above
the market rate, was guilty of deception. It has been argued that the basic principle in English law is that a person is entitled to charge
whatever sum they consider appropriate – it is up to the customer to assess whether the amount
charged represents a fair price. Nevertheless, criminal law has been willing to impose liability in certain circumstances for such overcharging.

Question 137

Two cases of overcharging

Answer 137

• R v Silverman, where Watkins LJ found that a false representation arose because of ‘circumstances of mutual trust’; and
• R v Jones, where Auld LJ referred to the defendant being the victim’s ‘trusted friend’.

Note. It might be possible in a similar situation to charge the defendant with fraud by abuse of position (see the separate element on this) but a more straightforward route would be to establish liability under s 2 on the grounds that there was an implied representation that the charge was
fair

Question 138

Key case: R v Silverman (1988) 86 Cr App R 213

Answer 138

This case concerned a builder who had worked for the family of two elderly sisters for a number of
years. On several occasions, he charged excessive amounts for work done on their home. He
argued that he made no specific comment about the fairness of the charge.

Question 139

Criminal Law applies with dishonest intent

Answer 139

It seems clear to us that the complainants, far from being worldly wise, were unquestionably gullible […]. [T]hey relied implicitly upon the word of the appellant about their requirements in their maisonette. In such circumstances of mutual trust, one party depending upon the other for fair and reasonable conduct, the criminal law may apply if one party takes dishonest advantage of the other by representing as a fair charge that which he but not the other knows is dishonestly excessive.

Question 140

Per Watkins LJ

Answer 140

Note that the method the Court of Appeal used to impose liability in these circumstances was to
imply a false representation into the dealings between the defendant and the victims that the charge made was a fair one.

Question 141

Victim is somewhat vulnerable

Answer 141

Watkins LJ referred in the quote above to the victims in Silverman as being ‘far from worldly wise’
and ‘unquestionably gullible’. Does this mean that an essential factor required where overcharging can be regarded as fraud, is that the victim is in some way ‘vulnerable’?

Question 142

Key case: R v Jones (1993) The Times, 15 February

Answer 142

Facts: J, a milkman, was convicted of obtaining property by deception for overcharging for crates of milk. The purchaser regarded J as a friend.

It is true that [the victim] was not gullible in the same sense as was alleged in the case of Silverman. He was an experienced businessman who has been running a busy corner shop for many years […]. But he was gullible in the sense that in his busy life he never for a minute felt
that he needed to check what his long time and trusted friend asked for each week or to relate it to the actual quantities received. It may be that he was remarkably stupid or careless about this. But on the evidence it was a stupidity or carelessness born of trust, and it was a stupidity or carelessness of which the appellant was aware and of which he was able to take advantage
for many years.

Question 143

9.1.5 Deceiving a machine

Answer 143

This is covered by s 2(5) which states:
For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

Question 144

Stolen credit cards and pincodes

Answer 144

This provision will catch those using stolen credit cards and PIN codes to get money from ATMs, and also those who use such cards to make online purchases. In such cases a defendant could be charged with the theft of the card, and also for using the card to falsely represent to a machine
that they are entitled to withdraw the funds, or are entitled to make a payment for the sum, which D attempts to spend

Question 145

9.2 Mens rea

Answer 145

There are three aspects of the mens rea of fraud by false representation:
* Dishonesty;
* Mens rea for the false statement; and
* Intention to make a gain or cause a loss.

Question 146

9.2.1 Dishonesty

Answer 146

The test for dishonesty has always been the same as that applied in theft. This means that Ivey v
Genting Casinos is the test which should be applied. Note, however, that the negative definitions of dishonesty contained in the s 2(1) Theft Act 1968 apply only to the offence of theft and therefore will not apply to offences under the FA. This
means that the first part of the test in Ivey, which directs the jury to the defendant’s knowledge and belief, may well prove to be significant.

Question 147

Key case: Ivey v Genting Casinos [2017] UKSC 67

Answer 147

The Supreme court gave two questions to ask regarding the test for dishonesty:
(a) What was the defendant’s knowledge and belief as to the facts?
(b) Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people?

Question 148

Key case: R v Clarke [1996] Crim LR 824

Answer 148

This is an interesting case to bear in mind, when considering the issue of dishonesty. It is a case decided under the old law, although the principle which flows from it is thought to be equally valid under the Fraud Act 2006. In this case Clarke, a private investigator, falsely told a group of potential clients that he was a
former fraud squad officer and a court bailiff. As a result of those representations, he had been
engaged to trace funds of a group of victims of fraud. He was charged under s 16 Theft Act 1968
(now repealed).

Question 149

Judge’s Direction

Answer 149

The judge directed the jury that he was dishonest if he made these deceptions. Clarke’s case was that he believed he was able to do the work well, so was not dishonest. The Court of Appeal allowed an appeal. The interpretation of the trial judge’s indication was that he thought it was necessarily dishonest to tell lies to obtain employment, irrespective of whether or not the liar thought he could do the job properly and intended to do so

Question 150

Parliament had included in offence

Answer 150

Parliament had included
in the offence the requirement of dishonesty as well as the requirement for a deception. Therefore, there should have been a direction on dishonesty.

Question 151

9.2.2 Mens rea for the false statement

Answer 151

The defendant must know, or be aware, that the statement is untrue or misleading (s 2(2)(b)). It appears that the requirement that the defendant is aware that the statement is untrue or misleading will be satisfied if D is subjectively aware of the possibility that what they are saying or implying is false

Question 152

Key case: R v Staines (1974) 60 Cr App R 160

Answer 152

The Court of Appeal held that recklessness with regard to a false statement requires more than
mere carelessness or negligence; there must be an indifference to, or disregard of, whether a statement is true or false. A belief, however unreasonable, that the representation is true will prevent the defendant’s conduct from amounting to deception. Thus, if a person knows the statement they are making might be false, then they should make that clear to the person they are making it to. If a person gives a clear caveat, then they do not make a false statement, but a true statement.

Question 153

9.2.3 Intention to make a gain or cause a loss

Answer 153

This requirement of mens rea (which is common to all the ways that the offence of fraud can be committed) marks one of the most important differences between the old deception offences and those created by the FA The deception offences, such as obtaining property by deception, required that the defendant actually obtain something as a result of D’s representation (property in the case of this specific offence).

Question 154

Intention to make gain

Answer 154

The requirement of an actual gain or loss is absent from the offences of fraud under the FA. All that is required is that the defendant intended to make a gain, even if no such gain arose. In fact, this element of mens rea is much wider than that as it is enough that the defendant:
* Intends to make a gain for themselves;
* Intends to make a gain for someone else;
* Intends to cause a loss to another; or
* Exposes someone to a risk of loss.

Question 155

R v Dziruni [2008] EWCA Crim 3348

Answer 155

In R v Dziruni [2008] EWCA Crim 3348 a false representation made with a view to getting a job
could be regarded as intention to make a gain in terms of money.
Reference must be made to s 5 to find the full definition of ‘gain’ and ‘loss’:
(2) “Gain” and “loss”—
(a) extends only to gain or loss in money or other property; In R v Dziruni [2008] EWCA Crim 3348 a false representation made with a view to getting a job
could be regarded as intention to make a gain in terms of money.
Reference must be made to s 5 to find the full definition of ‘gain’ and ‘loss’:
(2) “Gain” and “loss”—
(a) extends only to gain or loss in money or other property;

Question 156

R v Dziruni [2008] EWCA Crim 3348

Answer 156

(b) includes any such gain or loss whether temporary or permanent; and “property” means any property whether real or personal (including things in action and other intangible
property).
(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

Question 157

9.3 Summary

Answer 157

This section considered one of the ways to commit the offence of fraud under s 1. The key elements of fraud by false representation are set out in s 2:

Question 158

Actus reus: false representation

Answer 158

• Express or implied representation
• Representation as to fact, law or state of mind
• Representation must be untrue or misleading
  A false representation can arise in certain circumstances of overcharging (Silverman, Jones) and
  representations include those made to a machine (s 2(5)).

Mens rea:
* Dishonesty: use the test from Ivey v Genting Casinos
* Mens rea for the false statement
* Intention to make a gain or cause a loss (see s 5)

Question 159

10 Fraud by failure to disclose

Answer 159

This method of committing fraud is set out in s 3:
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.
The actus reus of fraud by failure to disclose requires:
* Existence of a legal duty; and
* Failure to disclose.

Question 160

10.1 Actus reus

10.1.1 Existence of a legal duty to disclose

Answer 160

The Fraud Act 2006 makes no attempt to define the type of duty to which this section applies.
Some guidance can be obtained from the Law Commission’s report that led to the Act.
The Commission suggested a number of examples of the type of duty involved, including a duty:
(a) Arising from statute (such as the provisions governing company prospectuses);
(b) Within a transaction of the utmost good faith (such as a contract of insurance);
(c) Contained in the express or implied terms of a contract;
(d) Arising from a custom in a particular trade or market; and
(e) Arising from a fiduciary relationship (such as that between a principal and agent).

Question 161

Key case: R v Razoq [2012] EWCA Crim 674

Answer 161

An example of a duty arising from contract. Razoq was a doctor who signed a contract with a locum agency in which he agreed to inform the agency of any disciplinary proceedings against him. When he failed to disclose this information,
he was found guilty of s 3 FA on the basis that his legal duty to disclose arose from an express term of a contract.

Question 162

Key case: R v Mashta [2010] EWCA 2595

Answer 162

Mashta was claiming benefits on the grounds of destitution.
During this time, he obtained employment. He was held to be under a legal duty to disclose the change in his financial circumstances.

Question 163

10.1.2 Failure to disclose

Answer 163

Once the existence of a legal duty has been established, the prosecution must prove that the defendant failed to disclose the information to another person. This will be a matter of fact, and in most instances will be easy to prove.

Question 164

10.2 Mens rea

Answer 164

Two aspects of mens rea are required, which are very similar to the mens rea for fraud by false
representation. The first is dishonesty.

Question 165

10.2.1 Dishonesty

Answer 165

The test for dishonesty has always been the same as that applied in theft. This means that Ivey v
Genting Casinos is the test which should be applied. Note, however, that the negative definitions of dishonesty contained in s 2(1) Theft Act 1968, apply only to the offence of theft and therefore will not apply to offences under the FA.

Question 166

10.2.2 Intention to make a gain or cause a loss

Answer 166

Reference must be made to the Fraud Act 2006, s 5 to find the full definition of ‘gain’ and ‘loss’: In R v Dziruni [2008] EWCA Crim 3348 a false representation made with a view to getting a job could be regarded as intention to make a gain in terms of money. This could also apply to fraud by failure to disclose.

Question 167

10.3 Summary

Answer 167

This section considered one of the ways to commit the offence of fraud under s 1.

The key elements of fraud by failure to disclose are set out in s 3:

Question 168

Actus reus

Answer 168

• Existence of a legal duty to disclose eg from statute, a transaction of the utmost good faith, contained in the express or implied terms of a contract, arising from a custom in a particular trade or market or arising from a fiduciary relationship.
• Failure to disclose information to another person: a matter of fact

Question 169

Mens rea

Answer 169

• Dishonesty: Use the test from Ivey v Genting Casinos
• What was the defendant’s knowledge and belief as to the facts?
• Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people?
• Intention to make a gain or cause a loss (see s 5).

Question 170

11 Fraud by abuse of position

Answer 170

Details of this form of fraud can be found in s 4 FA 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 171

11.1 Actus reus

11.1.1 Occupying a position

Answer 171

The Act does not seek to define the type of position required, except to state that this position must be one requiring the defendant to look after the victim’s financial wellbeing

Question 172

Law Commission Report

Answer 172

The necessary relationship will be present between trustee and beneficiary, director and company, professional person and client, agent and principal, employee and employer, or between partners. It may arise otherwise, for example within a family, or in the context of
voluntary work, or in any context where the parties are not at arm’s length. In nearly all cases where it arises, it will be recognised by the civil law as importing fiduciary duties, and any relationship that is so recognised will suffice

Question 173

Why the existence of such duties should be essential.

Answer 173

This does not of course mean that it would be entirely a matter for the fact-finders whether the necessary
relationship exists. The question whether the particular facts alleged can properly be described as giving rise to that relationship will be an issue capable of being ruled upon by the judge and, if the case goes to the jury, of being the subject of directions.

Question 174

Conclusion

Answer 174

The conclusion that can be drawn from the explanation from the Law Commission seems to be that the position required by s 4, will be easy to prove where there is a professional, fiduciary or long-term business relationship. However, the type of fraud outlined in the s 4 is clearly not limited to such relationships.

Question 175

Key case: R v Pennock & Pennock [2014] EWCA Crim 598

Answer 175

Court of Appeal has confirmed that this is a matter which will be determined on a case-by-case
basis. This case primarily deals with the issue of abuse of this position and will be discussed later
in this element.

Question 176

Key case: R v Marshall [2009] EWCA Crim 2076

Answer 176

Marshall was the manager of a residential home for adults with severe learning difficulties. She
had control over the residents’ bank accounts. She withdrew money from the bank account of one resident and spent it on herself. She was convicted of s 4.

Question 177

Key case: R v Valujevs and another [2014] EWCA Crim 2888

Answer 177

Valujevs and Mezals were gang masters who controlled a group of Latvian and Lithuanian workers
who had come to Cambridgeshire in search of agricultural work. They found work for these workers and took responsibility for paying their wages and finding their accommodation. Valujevs
and Mezals had been making deductions from the workers’ wages and had charged the workers
inflated rents for their accommodation. The trial judge held that V and M were not in a position in
which they were expected to safeguard or not act against the financial interests of the workers.

Question 178

Court of Appeal

Answer 178

The decision was overturned by the Court of Appeal. In finding that the defendants occupied a position of trust as required by s 4, the court said it was clear from the wording of the section that Parliament did not intend to restrict the application of s 4 to those who owed a fiduciary duty to the victim. However, if there was no fiduciary duty it was necessary for the prosecution to show an obligation that is akin to a fiduciary duty.

Question 179

Fulford LJ

Answer 179

Fulford LJ agreed with the judge that s 4 should not apply in ‘the general commercial area where individuals and businesses compete in markets of one kind or another, including labour markets, and are entitled to and expected to look after their own interests’. So he concluded that the fact that the defendants provided accommodation for the workers did not give rise to the relevant
position. What was crucial and put them into the required position was that the defendants assumed responsibility for collecting the workers’ wages.

Question 180

Expectation in section 4 of the 2006 Act is an objective one

Answer 180

Although the statute does not provide any assistance on the issue, in our view the “expectation” in section 4 of the 2006 Act is an objective one. It is for the judge to assess whether the position held by the individual is capable of being one “in which he is expected to safeguard, or not to act against, the financial interests of another person.

Question 181

Objective Test based on a reasonable person

Answer 181

If it is so capable, it will be for the jury thereafter to determine whether or not they are sure that was the case. It would be untenable to suggest that the expectation should be that of either the potential victim (the test would, in all likelihood, be too low) or the defendant (the test is likely to be
set too high). Therefore, this is an objective test based on the position of the reasonable person.

Question 182

11.1.2 Abuse of position

Answer 182

Once the prosecution have shown that the defendant occupied a position requiring D to safeguard the position of the victim of the fraud, they must then prove that the position has been abused. Once again, there is no guidance from the FA as what would amount to an abuse of position.

Question 183

R v Pennock & Pennock [2014] EWCA
Crim 598.

Answer 183

However, some direction has been provided from the case of R v Pennock & Pennock [2014] EWCA
Crim 598. The Court of Appeal adopted the definition suggested in Archbold, namely: ‘uses incorrectly’ or ‘puts to improper use’ the position held in a manner that is contrary to the expectation that arises because of that position. The way in which the Court of Appeal applied this definition against the facts in Pennock provides a useful insight of how this may apply within particular scenarios.

Question 184

Key case: R v Pennock & Pennock [2014] EWCA Crim 598

Answer 184

In this case, the defendants, Mr and Mrs Pennock befriended Mrs Pennock’s elderly great uncle,
Mr Spann. Mr Spann was residing in New Zealand at the time but, partly for health reasons, he decided to move back to the UK.

Question 185

Abuse of position by omission

Answer 185

Note that s 4(2) provides that this offence can be committed by an omission as well as by an act.
An example of how this might occur is when an employee who has a duty to collect payment on behalf of their employer fails to do so.

Question 186

11.2 Mens rea

Answer 186

There are two aspects to the mens rea of fraud by abuse of position:
* Dishonesty; and
* Intention to make a gain or cause a loss.

Question 187

11.2.1 Dishonesty

Answer 187

Section 4(1)(b): dishonestly abuses that position
Note, however, that the negative definitions of dishonesty contained in s 2(1) Theft Act 1968, apply
only to the offence of theft and therefore will not apply to offences under the Fraud Act 2006.

Question 188

11.2.2 Intention to make a gain or cause a loss

Section 4(1)(c): an intention to make a gain or cause a loss

Answer 188

The second aspect of the mens rea is intention to make a gain or cause a loss. The requirement of an actual gain or loss is absent from the offences of fraud under the Fraud Act 2006. All that is required is that the defendant intended to make a gain, even if no such gain arose. In fact, this element of mens rea is much wider than that as it is enough that the defendant: intends to make a
gain for themselves, intends to make a gain for someone else, intends to cause a loss to another or exposes someone to a risk of loss

Question 189

R v Woollin

Answer 189

Note. Where an employee fails to collect sums owed to their employer, due to laziness (rather than assisting the person who should be paying or punishing their employer), there would be an oblique intention to make a gain for another and cause a loss to their employer. Applying the test in R v Woollin, it would be virtually certain that such a gain and loss would be caused and the
defendant would appreciate this to be the case.

Question 190

11.3 Summary

Answer 190

This section considered one of the ways to commit the offence of fraud under s 1. To be liable for
fraud by abuse of position (s 4) D must:

Actus reus:
* Occupy a position which requires D to look after V’s financial wellbeing. Determined on a caseby-case basis. Can be a professional, fiduciary or long-term business relationship or even within the family or voluntary work.
* Abuse that position: use it incorrectly or put it to improper use (R v Pennock &Pennock).

Question 191

Mens rea

Answer 191

• Dishonesty: Use the test from Ivey v Genting Casinos:
• What was the defendant’s knowledge and belief as to the facts?
• Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people?
• Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people?
• Intention to make a gain or cause a loss (see s 5)