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Criminal Law – Academic > Property offences > Flashcards

Property offences Flashcards

1
Q

What is the maximum sentence for basic criminal damage?

A

10 years imprisonment

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2
Q

What are the 5 parts of basic criminal damage?

A
  1. Destroy or damage
  2. Property
  3. Belonging to another
  4. Without lawful excuse
  5. Intention or recklessness as to the damage or destruction of property belonging to another
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3
Q

What is meant by ‘destroy or damage’?

A
  • No statutory definition provided
  • Destroy = property ceases to exist following D’s actions
  • Damage is a question of fact and degree - guided by circumstsances of each case
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4
Q

To be ‘damaged’, must the damage be permanent or render it useless?

A
  • Need not be permanent - can fix with time, effort and money (e.g. graffiti is damage even though it can be washed away or cleaned)
  • Need not be made useless to be damaged
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5
Q

Does ‘damage’ only encompass physical harm?

A

No - includes permanent or temporary impairment of value or usefulness (e.g. out of order toilet) as well as temporary or permanent physical damage

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6
Q

What will damage not include?

A
  • Something that can be wiped away without leaving mark or stain (spit on policeman’s raincoat)
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7
Q

For the purposes of basic criminal damage, what does ‘property’ include and not include?

A
  • Includes: real or personal tangible property, money, animals and their carcasses if they been reduced into possession
  • Does not include: mushrooms, plant, flowers, or fruit growing wild on any land, or information
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8
Q

When will property belong to another for basic criminal damage?

A
  • Custody or control of it
  • Proprietary right or interest (not equitable interest arising from estate contract)
  • Having a charge on it

Property can belong to more than one person!

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9
Q

What is the MR for basic criminal damage

A

Intention (orindary meaning) or recklessness (subj aware of risk, objc unreasonable to take in known circumstances) as to destruction or damage of property belonging to another

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10
Q

What does it mean that the MR extends to the whole of the AR for basic criminal damage?

A

Must be proved that D knew or was reckless a to whether property belonged to another (i.e. cannot cause basic criminal damage if you do not know property belongs to another)

Insufficient that D only does act that damages property intentionally

E.g. Smith - smashed wall panels and floorboards to gain access to wiring he had fitted in rented accomodation - conviction for basic criminal damage quashed - no offence committed if person destroys or damages property belonging to another if he does so in honest though mistaken belief that property is his own - provided belief honestly held it is irrelevant to consider whether or not belief is justifiable

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11
Q

If you destroy/damage property with the honest belief it is your own, will the justifiability of this belief be considered?

A

No, provided it is honestly held

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12
Q

What is arson, and to what degree does damage have to be to qualify as it?

A

Criminal damage by fire, however slight

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13
Q

How does the AR and MR differ for basic arson than basic criminal damage?

A
  • AR the same but destroy or damage by fire
  • MR the same but by fire

Can consider them in parallel from here - same for aggravated

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14
Q

When will a D not commit criminal damage?

A

If they have a lawful excuse

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15
Q

What are the two things a lawful excuse might be?

A
  1. Any general defence (self-defence, duress)
  2. Lawful excuse defences - where relevant apply to basic criminal damage/arson
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16
Q

Will lawful excuses apply to aggravated damage?

A

No

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17
Q

What are the 2 lawful excuse defences?

A
  1. Where D believes owner would have consented to damage
  2. Where D acts to protect their or another’s property
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18
Q

Does the D’s belief that the owner would have consented to the damage need to be reasonable?

A

No - only honestly held, does not need to be justified (subjective)

Even if it results from intoxication! I.e. a drunken belief

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19
Q

Will a D’s motive be taken into account?

A

No - provided D honestly believes that owner of property has/would have consented to damage

Even where motive is to perpetuate a fraud

E.g. Denton - owner of failing factory said to D a fire would improve financial circumstances of business - D took instruction to set fire to factory - conviction quashed and was entitled to defence

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20
Q

What are the limits to the lawful excuse of believed consent?

A

However strong a belief might be, consent cannot be given by God

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21
Q

Will the lawful excuse of protecting property apply to people, also?

E.g. mother kicks down door to save child from perceived threat from husband

A

No - defence only operates for protection of property - a child does not constitute property but a pet might!

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22
Q

What are the 4 requirements of the lawful excuse of acting to protect property?

A
  1. D must act to protect property
  2. D must believe property was in immediate need of protectoin (subjective)
  3. D must believe that means of protection adopted are reasonable (subjective)
  4. Damage caused by D must be capable of protecting the property (objective)

E.g. squatter fits locks in house and damages door in doing so - raises defence there had been high number of thefts in areas - conviction of criminal damage upheld as property not in immediate need of protection

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23
Q

What is meant by the requirement that the damage caused by D must be capable of protecting the property?

A

Not sufficient that accused intended to prevent further damage, the act must be objectively capable of protecting the property from damage

Hunt - started fire in bedroom to demonstrate inadequacy of fire alarm in block of flats - fire alarm did not work so alled fire brigade

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24
Q

When will damage be too remote to protect property?

A

Hill and Hall - cut wire fence of nuclear submarine base to reduce nuclear strike and protect her property

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25
Q

What is the AR of aggravated criminal damage (or arson)?

A
  • Destroy or damage (by fire)
  • Property
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26
Q

What is the MR of aggravated criminal damage (or arson)?

A

Intention or recklessness as to:

  • The damage or destruction of property (by fire); and
  • The endangerment of life by the damage or destruction (by fire)
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27
Q

How is aggravated criminal damage (or arson) different to basic criminal damage (or arson)?

A
  • D can commit aggravated criminal damage to own property
  • Lawful excuse defences for basic now do not apply (but can still have excuse if any general defences apply)
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28
Q

Does the life of another actually need to be endangered as per the MR?

A

No - irrelevant

Sangha - set fire to furniture in flat and no danger to occupants in that flat or adjacent flats - court held issue was whether accused intended or was reckless to whether life might have been endangered, not whether it actually was endangered

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29
Q

When deciding whether life is endangered, does ‘damage and destruction’ for MR of aggravated criminal damage refer to that a) actually caused or b) that which was intended or to which there was recklessness?

A

b) that which was intended or to which there was recklessness

Dudley - threw fire bomb at house which was extinguished and only minimal damage caused - did not matter that actual damage did not endanger life as the intended damage did

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30
Q

What must the danger to life arise from?

A

The property itself, not the means of damaging it

Must be a causal link between the damage to property and danger to life

Steer - bullets shot through window did not consitute endangerment of life by damage/destruction to property; any risk to life was caused by the bullets and not by damaged property

Webster - Ds pushed stone from bridge on to train which hit carriage

  • Stone crashes through roof of train and injures passengers = not aggravated criminal damage
  • Stone smashes roof and metal or wood struts from roof and descends upon passenger endangering life = aggravated criminal damage
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31
Q

When will the risk to life always be from the damaged property?

A

If the damage is caused by fire

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32
Q

When is a person guilty of theft?

A

If he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it

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33
Q

What are the 5 elements - that make up AR and MR - that must be proven to secure a conviction for theft?

A

AR

  • Appropriation
  • Property
  • Belonging to another

MR

  • Dishonestly
  • With the intention to permanently deprive
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34
Q

When must all the elements exist?

A

Simultaneously

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35
Q

What is appropriation?

1st element of AR

A

Any assumption by a person of the rights of an owner

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36
Q

How many rights need to be assumed?

A

Any one of the rights of an owner amounts to an appropriation

Morris - D replaced labels of products in shop with lower priced labels and paid lower price for items - arrested and convicted of theft - owner’s right to label goods was assumed

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37
Q

If the owner gives consent, what is the effect on appropriation?

Especially if no adverse interference with/usurpation of owner’s rights

A

You can still appropriate with consent from the owner and there does not need to be adverse interference with the owner’s rights

Gomez - allowed co-accused to purchase goods from shop he worked at using 2 stolen building society cheques - Gomez asked shop manager to authorise sale by accepting cheques in payment - Gomez lied and told shop manager the cheques were ‘as good as cash’ - sale went ahead, cheques subsequently dishonoured, and Gomez and co-accused charged with theft. Tried to argue he could not be guilty of theft as shop manager had authorised transactions so no appropriation - convicted of theft

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38
Q

Can a valid gift be stolen?

A

Yes - state of mind of donor is irrelevant to appropriation and so can take place with or without consent of owner - so person can be guilty of stealing valid gift

Hinks - D befriended 53 y/o man of limited intelligence who she influenced and coerced into giving her £300 everyday, up to £60,000 eventually - D convicted

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39
Q

If the D does not have the MR when first assuming owner’s right, does this mean no theft can occur?

A

No - theft can ‘occur’ when the later assumption of a right happens (keeping it, dealing with it etc.) even if initial assumption of rights did not amount to theft

D will not commit theft when first assuming owner’s right but will later

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40
Q

Can an innocent purchaser be guilty of theft?

D purchases goods in good faith and for value and later discoveres that seller had no title to property, but decides to keep it

A

No - but bad faith precludes protection

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41
Q

Can all property be stolen?

2nd element of AR

A

Generally yes (money, real property, perosnal property, intangible property [right to sue/recover], shares, patents, a debit/credit, forged cheques) except

  • Land
  • Wild plants and creatures
  • Electricity
  • Corpses and body parts (except in hospitals/teaching purposes or blood given to blood bank)
  • Confidential information
  • Services e.g. train journey
  • Cheques drawn on accounts over the agreed limit

Some subject to exceptions…

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42
Q

Can unlawful/illegal items be stolen?

A

Yes!

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43
Q

Although in general land cannot be stolen, when can a person nevertheless be guilty of theft?

I.e. acts that are related to land

A
  • They are authorised to sell land and sell more than they are meant to
  • D is a trespasser or invited guest and removes a fence/plant
  • D is a tenant and removes or sells without removing a fixed greenhouse
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44
Q

Although in general plants cannot be stolen, when can a person nevertheless be guilty of theft?

A
  • Where purpose of picking wild plant is for reward, to sell, or another commercial purpose
  • D uproots or cuts part of wild plant
  • D picks cultivated plants
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45
Q

Although in general wild animals cannot be stolen, when can a person nevertheless be guilty of theft?

Wild animals = untamed animals/animals not usually kept in captivity

A
  • Tamed animals (pets)
  • Animals kept in captivity (zoo)
  • Animals in course of being reduced into possession (e.g. trapped)
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46
Q

What is included in property ‘belonging to another’? Is legal ownership required?

3rd requirement of AR

A
  • Ownership
  • Possession or control of it
  • Proprietary interest in it

at moment of appropriation

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47
Q

When will property be abandoned? For example in the case of a lost item the owner has stopped looking for or domestic waste?

(and therefore cease to belong to another)

A

Not readily found by courts; depends on whether owner wants property or wants it to go to another party

  • Not abandoned because owner has stopped looking for it (e.g. wedding ring)
  • Domestic waste is not abandoned; householder intends goods to be collected by local authority
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48
Q

Can you be in ‘possession and control’ of property that you did not know was on your land?

E.g. bracelet down the side of a sofa

A

Yes - but must demonstrate intention to exercise control over items found expressly (e.g. putting up notice) or impliedly

E.g. Parker - D found gold bracelet in British Airways executive lounge so court had to consider whether BA had possession or control of the bracelet - it did not, but would have if it had shown an intention to exercise control over the building and things in it e.g. putting up notice - would have meant that the company secured possession of bracelet before D found it but D got to keep bracelet here

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49
Q

Can you steal your own property?

A

Yes, when it is in possession and control of another

Turner - D took car from garage with spare keys without using bill - convicted of theft as mechanic was in control and possession of car

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50
Q

Where property is handed over for a particular purpose, and the title in that property passes to the D before D has formed a dishonest intention to use it for an unauthorised purpose, when will the property belong to another?

E.g. you give money to someone so they can pay for a certain thing (e.g. energy bills) and then they decide not to use it to pay that - will that be theft?

A

If D is under a legal obligation to use the property for the purpose given, the property will belong to another for the purposes of D = can say theft occurred

  • Object of law here to avoid civil law effects re the passing of title in money

LOOK AT FOLLOWING EXAMPLES IF YOU DON’T UNDERSTAND THIS

I.e. it will ‘belong to another’ with another being the person that handed it over/title has passed from

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51
Q

When will D be under a legal obligation to deal with the property in a particular way?

A

Is a matter of law; no automatic application

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52
Q

Will there be a legal obligation in a domestic context?

A

There can be e.g. Davidge - energy bill money was spent on xmas presents, found guilty of theft

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53
Q

When will a legal obligation not exist in business circumstances?

A

Where there is no expectation/undertaking that money will be kept separately/spent in a certain way

E.g. Hall - travel agent took money for flights but used it to pay off creditors rather than buy airline tickets, then D went bankrupt and customers lost money they paid - no theft; not established that clients expected him to retain money and deal with money in particular way/no undertaking - clients expected tickets in return for money, but did not expect their money to be kept separately but rather go towards general running of business

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54
Q

When will there be a legal obligation in business/trust circumstances?

A

Where an express assurance is given that money will be safeguarded by a stake-holding trust company

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55
Q

When will there be a legal obligation in a charity context?

A

Where the sponsorship money notes/coins raised are held to belong to Ts of charity the money was raised for

Especially if they are deposited into a separate bank account!

I.e. moving proceeds to personal account would be appropriating the money for own purposes

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56
Q

If a legal obligation is shown, what is proved and what else still needs to be proved?

A
  • Will show that property ‘belongs to another’
  • Still need to deal with other elements of theft: dishonest appropriation and intention to permanently deprive!
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57
Q

Where property is given to D by mistake and civil law title passes, when will property ‘belong to another’?

E.g. overpays employee

A

When D is under a legal obligation to make restoration of property

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58
Q

When will D be under a legal obligation to make restoration?

A

Under law of restitution, when someone is aware they have acquired property by mistake, they are usually under a legal obligation to restore it

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59
Q

Will the person under obligation to make a restoration not be the legal owner of the money?

A

They will be - but property also belongs to another person (the overpayer)

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60
Q

In a situation where property is transferred by mistake, how is an intention to permanently deprive shown?

A

If there is an intention not to make restoration of the money

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61
Q

What might the bank retain where money is transferred by mistake?

A

Equitable interest

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62
Q

With the above cards considered, when can property belong to another?

Thus satisfy 3rd requirement of AR

A
  • General provisions: control and possession, having proprietary right or interest
  • Situations where title to property has passed to D before dishonest intent formed: must be a legal obligation to deal with property in particular way
  • Situations where property given by mistake: D must be under legal obligation to make restoration
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63
Q

Can property belong to more than one person for the purposes of the Theft Act?

A

Yes - to owner and same time as another by virtue of s5(3) [given for particular purpose] and s5(4) [given by mistake]

64
Q

What are the two requirements for MR of theft?

A
  1. Dishonesty
  2. Intention to permanently deprive
65
Q

How is dishonesty defined by the theft act?

1st requirement for MR

A

It is not - is for jury to decide whether appropriation is dishonest

66
Q

What are the 3 genuine beliefs that might be held which means D will not be dishonest if appropriating property?

I.e. the negative aspect

A

In the genuine belief that:

  1. D had a right in law to deprive the other of property
  2. D would have other’s consent if other person knew; or
  3. Person to whom the property belongs cannot be discovered by taking reasonable steps
67
Q

Do the beliefs need to be reasonably held?

A

No - only honestly

E.g. honest belief D has a right in law to deprive other of property

68
Q

For the exception that D will not dishonestly appropriate property in belief that the person to whom property belongs cannot be discovered by taking reasonable steps, what reasonable steps need to be taken?

A

None - only necessary for D to believe that taking such steps will not enable owner to be found

69
Q

What happens if the owner becomes known to the accused after appropriation?

A

Keeping the property (later appropriation) could be dishonest and therefore theft

70
Q

If none of the excpetions providing for no dishonesty from D, what is the test for dishonesty?

A
  1. What was the D’s knowledge and belief as to the facts?
  2. Given that knowledge and those beliefs, was the D dishonest by the standards of ordinary people?
71
Q

What happens if a person appropriates property but is willing to pay for it later?

E.g. people take property the owner does not wish to selll intending to pay for it later

A

They can still be dishonest in appropriating the property

72
Q

When must the dishonest intent form?

A

At the time when the goods belong to another

D cannot form dishonest intent after ownership of property has passed to D (subject to s5(1) and 5(4)

73
Q

When will property pass to another generally, and for food, and petrol?

A
  • Generally = when parties intend for it to pass (usually when paid for)
  • Food = when eaten or possibly before e.g. ordered and cooked
  • Petrol = when it is put in a petrol tank

It is after these points when the dishonesty cannot form

74
Q

What is the recourse where someone forms a dishonest intent after acquiring the property?

I.e. does not pay after eating

A
  • ‘Making off without payment’ s3 provision under Theft Act designed to catch those who cannot be convicted of theft as they did not form the MR from the outset
  • S5(3) [given for particular purpose] and s5(4) [given by mistake] may assist (provided conditions; legal obligation and restoration)

As per a few cards above

75
Q

How does the Theft Act define intention to permanently deprive?

2nd requirement for MR

A

Does not - should be given ordinary everyday meaning

76
Q

When should the relevant provision on intention to permanently deprive not be referred to?

A

Where it is clear that D does intend for owner to lose property permanently

77
Q

When must the D have the intention to permanently deprive?

A

At the time of the appropriation

NB appropriation not one single occurence - can be continuing appropriation and at some point in that intention to permanently deprive forms

78
Q

Is there a requirement that the owner actually be deprived of their property for intention to exist?

A

No

79
Q

When can the intention to permanently deprive cover circumstances when D does not intend owner to actually lose property itself?

I.e. intention to deprive can still exist without owner physically losing it

A

When D has an intention to treat the thing as their own to dispose of regardless of the other’s rights

80
Q

What threesituations will an intention to treat thing as their own to dispose of regardless of the other’s rights cover?

A
  1. ‘Dispose of’ = attempting to sell, using property for bargaining, rendering property useless i.e. deal with definitely/getting rid of
  2. Intending to treat in a manner which risks loss
  3. More than ‘dealing with’
81
Q

If D takes things and offers them back to owner to buy if they wish, will this be intention to permanently deprive?

A

Yes - will be treating the property as their own

Scott - stole curtains from store intending to return, alleged she had purchased them and was claiming a refund - was treating as her own to dispose of regardless of other’s rights

82
Q

What if the D does not demand money from the owner for the property they have appropriated, but rather a condition?

A

This is a ransom case where D is using the owner’s property for bargaining - still counts as treating it as own to dispose of

V will only get back their property on fulfilment of condition = ITPD

Waters - D took mobile phone from V and would not return it until she had persuaded someone to talk to them

83
Q

If the property is broken, will this show an intention to permanently deprive?

A

Yes - demonstrating intention to treat property as own to dispose of regardless of owner’s rights

DPP v J - headphones snatched from V and snapped in 2

84
Q

What can ‘intending to treat it in a manner which risks its loss’ cover?

A

Transferring money out of client account to invest in risky money-lending business

85
Q

When will property only be ‘dealt with’ (and so no ITPD)?

No intention to dispose of as their own

A

Where property is left in a manner where dealer knows owner will get back e.g. car used for getaway was found abandoned with hazards lights on

For jury to decide on circumstances

86
Q

What 2 conditions are needed for borrowing/lending count as treating property as own to dispose (regardless of the other’s rights)?

A

Where borrowing/lending is:
1. For a period and
2. In circumstances making it equivalent to outright taking or disposal

87
Q

What will make borrowing equivalent to an outright taking or disposal?

A

Where the intention is to return it minus all its goodness, virtue and practical value

E.g. taking a torch battery with intention of returning it after power exhausted

Not borrowing films from cinema, copying them on to videotape and returning original films so they could be displayed as usual in cinema

88
Q

What happens where D pledges V’s property as security for a loan intending to redeem loan and return said property, but V parts with property under condition as to its return which D cannot fulfil?

A

D will have trated property as their own to dispose of regardless of other’s rights

89
Q

What happens if the actual property is taken with an intention to replace with equivalent property?

A

Will still not be returning identical ones that were taken and is not enough to avoid intention to permanently deprive

90
Q

What is the aggravating factor that elevates theft to a robbery?

A

The use of force

91
Q

What is the AR and MR of robbery?

A

AR

  • AR of theft (no theft = no robbery [even if a fight unsues])
  • Force or threat of force (3 different ways)
  • On any person
  • Use or threat of force immediately before or at time of stealing

MR

  • MR of theft
  • Intended to use force in order to steal

Recall AR of theft = 1) appropriation 2) of property 3) belonging to another

92
Q

What are the 3 different categories under the use/threat of force?

2nd requirement of AR for robbery

A
  1. Use of force
  2. Puts any person in fear of being subjected to force then and there
  3. Seeks to put any person in fear of being subjected to force then and there

FORCE IS A MATTER FOR THE JURY

Person must be present

93
Q

Does force require that violence is used by the D?

A

No - force does not require violence (e.g. can even be a nudge)

94
Q

Must force be used then and there?

A

Yes - if intended victim is not present, force would in the future = no robbery

95
Q

Can force be applied through property?

A

Yes as long as the force against th property caused force against the person (minimal indirect contact)

E.g. wrenched shopping bag out of hand and running off = force

Removing cigarette from victim’s hand = no force

96
Q

What is needed to ‘put’ another person in fear?

A

A threat by D causing person to think that force will be used against them/apprehend that fact at very least (rather than fear it)

97
Q

Must V fear the force that they think will be used against them?

E.g. especially brave person

A

No

Otherwise Ds could avoid liability if threatening someone brave

98
Q

What if a person is not aware they are being threatened with force?

A

The intention of the D (provided they have it) to make person think they will be subjected to force is enough for D to be liable

99
Q

What is the significance of ‘on any person’ as a requirement for AR?

3rd requirement of AR for robbery

A

The threat or use of force does not have to be directed towards the person from whom the property is stolen; threat or use of force can be on any person

But not animals e.g. threatening dog

100
Q

When does the ‘time of stealing end’ for purpose ot deciding if the use or threat of force happened ‘immediately before or at time of stealing’?

CANNOT BE AFTER

A

For the jury to decide when it comes to an end (so long as the force was used in order to steal) - appropriation is a continuing act

E.g. e.g. D broke into house of victim and stole, then threatened to hurt her child if she phoned the police, D appealed submitting that the theft was complete once jewellery box seized so force after that was not ‘before or at time of stealing’ - held that appropriation is a continuing act and is for jury to decide when it has come to end; tying up V after seizing items could be relied on provided they were satisfied the force was used in order to steal

101
Q

What should the 2nd requirement of MR - ‘intention to use force in order to steal - be distinguished from?

Robbery

A

Stealing as an afterthought to the force; this will not result in a robbery conviction

Vinall - two people fought and bike taken by D as an afterthought - intention to permanently deprived formed at a later point in time than force being used = no theft at time force used = no conviction for robbery

102
Q

What are the two types of burglary and when is each committed?

A
  1. S9(1)(a) - D enters as trespasser with intention to commit an ulterior motive
    1a. Committed at point of entry whether or not they committed ulterior offence
  2. S9(1)(b) - D enters as trespasser and once they are inside they (attempt to) steal or (attempt to) inflict GBH
    2a. Committed at point of attempt/commission of theft or infliction of GBH

Sentencing is no different - dependent on evidence

103
Q

What are the ulterior motives under s9(1)(a) and to what extent must they be committed for a conviction under this type?

A
  1. Theft (steal)
  2. Inflict GBH on any person in (part of) building
  3. Unlawfully damage property (building or anything therein)

Do not have to be committed for the burglary to have been committed

104
Q

What is the AR and MR of s9(1)(a) (type 1) burglary?

A

AR

  • D enters
  • A (part of) building
  • As trespasser

MR

  • Knowing or being reckless as to entry as trespasser
  • At time of entry D intended any of the ulterior motives

NO NEED FOR D TO ACTUALLY COMMIT THE OFFENCE

105
Q

What counts as D ‘entering’?

1st requirement of AR for 1st type

A

Partial presence is all that is required

E.g. head and arm stuck through window

106
Q

What counts as a ‘building’?

2nd requirement for AR of first type

A

Inhabited building, vehicle or vessel of considerable size and intended to be permanent or endure for a considerable time whether occupants present at time or not

  • Freezer container detached from chassis resting on railway sleepers in position for 2 years = building
  • Containers still on wheeled chassis at rear of supermarket for temporary storage = not building
107
Q

What are the 2 ways a D can enter (part of) a building as a trespasser?

3rd requirement for AR of first type

A
  1. Without consent
  2. In excess of authority (D can still be a trespasser if given consent to enter; may be given consent to come over for dinner but if entered with the intention to steal something, they are entering in excess of authority)

For both - you are trespassing on entry

Jones & Smith - entered home of S’s father and took 2 TVs - father said that son could never be trespasser in his house at any time - court found entry was in excess of permission given to them

108
Q

What if a person is not a trespasser at the time of entering, but later becomes one (e.g. exceeds express/implied limitation)?

A

There can be no conviction for burglary

Distinguish this from 2nd point of last card:

  • This card is talking about entering as a not trespasser then becoming one = no conviction for burglary
  • Previous card talking about being a trespasser when you enter even if given consent (so you are a trespasser when you enter) = can be conviction for burglary
109
Q

What needs to be proved and does not need to be proved to show that D entered knowing or being reckless that the entry was a trespass?

1st requirement of MR for 1st type

A
  • Proved = D knows or is reckless as to facts which make them a trespasser e.g. acting in excess of permission
  • Not proved = D knew in law they were a trespasser
110
Q

When must it be proved that D intended to commit one of the ulterior offences?

2nd requirement of MR for 1st type

A

Upon entry i.e. upon entry the D must intend to steal, inflict GBH, unlawfully damage

111
Q

What is the position on conditional intent?

Intention of D is to have a look inside property to see if anything worth stealing

A

Conditional intention counts as intention

112
Q

What 5 elements must the prosecution establish for a conviction under s9(1)(b) (type 2) burglary?

Easier to consider this offence by establishing 5 elements rather than breaking down into AR and MR

A
  1. D entered
  2. A (part of) building
  3. As a trespasser
  4. Knowing or being reckless as to entry as a trespasser
  5. D did one of the following:
    5a. Stole something from (a part of) building
    5b. Attempted to steal something from (a part of) building
    5c. Inflicted GBH on any person
    5d. Attempted to inflict GBH on any person
113
Q

When is the offence of s9(1)(b) burglary committed?

A

At the time of (attempted) commission of the offence

Offence being theft, GBH

The offence rquires them to be inside building as a trespasser

114
Q

Will an attempt suffice for a s9(1)(b) offence?

A

Yes

115
Q

What is the difference between s9(1)(a) and s9(1)(b) in terms of committing the (ulterior) offences and intention to?

A
  • For s9(1)(b), the D must actually (attempt to) commit one or more of the offences but needs no intention
  • For s9(1)(a), the D need not actually commit one of the ulterior offences but needs to intend to
116
Q

What MR is required for the infliction of GBH for s9(1)(b) burglary?

A

None at all (nor offence) - all that is needed is the infliction of harm

117
Q

How is criminal damage inflicted under s9(1)(b)?

A

It cannot be

118
Q

What is the difference in sentence for burglary and aggravated burglary?

A
  • Burglary = 14 years where (part of) building is dwelling or 10 years otherwise
  • Aggravated burglary = life imprisonment
119
Q

When is a person guilty of aggravated burglary (over burglary)?

A

When they commit burglary and at the time have with them any (imitation) firearm, weapon of offence, or explosive

120
Q

What is first necessary to establish aggravated burglary?

A

That burglary has occurred (under s9(1)(a) or (b))

121
Q

What two conditions will amount to a ‘weapon of offence’?

A

Anything:
1. Made/adapted for causing injury to or incapacitating a person
2. Which, at the time of committing burglary, the D possesses with the intention of causing injury to/incapacitating a person (does not have to use it)

Can be a screwdriver - adapted to use it for causing injury to a person

122
Q

What is meant by ‘made’ and ‘adapted’ for the purpose of a weapon of offence?

A
  • Made = anything specifically designed to injure/incapacitate e.g. pepper spray
  • Adapted = modified to cause for injury e.g. a wooden pole which has been sharpened
123
Q

What will a weapon of offence not include?

A
  • Something used to hit a pet/object (not a person)
  • Something possessed by A, which B intends for them to use for injuring another person
124
Q

Must it be proved that the intention for carrying a weapon of offence was for the intended use of a buglary?

A

No

125
Q

Whe must D have the article on them for a s9(1)(a) or (b) offence?

Article = firearm, weapon of offence or explosive

A
  • S9(1)(a) = when entering the building
  • S9(1)(b) = when they (attempt to) commit theft or GBH (e.g. picks up a knife after entering home)

I.e. at the time they commit the relevant burglary

126
Q

What happens if the individual with the weapon does not enter the building?

E.g. Man part of burglary stays outside building and beats occupant with pole

A

No conviction - no entry into the building with a weapon

127
Q

What if the D has forgotten that they have the article with them?

A

Does not matter - they are still considered to know they have it

128
Q

Will there be aggravated burglary where a person uses a weapon of offence to enter the house?

E.g. screwdriver

A

Not if there is no intention to use it (and is not adaopted for use for causing injury)

129
Q

What are the 3 different ways fraud can be committed?

A

Fraud by:
1. False representation
2. Failure to disclose
3. Abuse of position

Fraud is one offence; these are just the ways of committing

NB you can commit several frauds at once

130
Q

What is the maximum penalty for fraud tried on indictment?

A

10 years in prison or unlimited fine

131
Q

What is the AR for fraud by false representation?

A

That person in breach makes a false representation

Was previously deception (old offence)

132
Q

Who must be deceived by the false representation?

A

No one; no requirement that representation deceives anyone

Fraud by false representation is a conduct crime

133
Q

What can the false representation be?

3 things

A
  1. Express or implied representation
  2. Representation as to fact, law or state of mind
  3. Representation untrue or misleading
134
Q

From what can an implied representation arise?

And what can it not arise from?

A
  • What D says (second-hand car dealer says he is not sure if the mileage on a car was correct, when he actually did as he altered it, implied he was not certain the reading was wrong)
  • The D’s conduct (entering a restaurant, ordering and eating a meal implies that he has means and intention of paying)

Cannot arise from pure silence without accompanying action

135
Q

Can an agent make a false representation by conduct?

A

Yes - e.g. Idrees - failed driving test 15 times, unknown person took test pretending to be them, evidence that Idrees arranged: booked in English for first time after 15 tries - person who took test made false representation by conduct that he was Idrees as their agent - Idrees convicted of fraud by false representation

136
Q

How can a false representation as to one’s belief (state of mind) be proven?

Rep as to fact or law is straightforward

A

If it can be shown that D does not in fact hold that opinion or belief

137
Q

Can overcharging (e.g. charging a customer for sum of goods higher than market rate) come under fraud by false representation?

A

Potentially

  • Where a false representation arises from circumstances of mutual trust (esp where vulnerable)
  • Where the D is victim’s ‘trusted friend’
138
Q

Can a D make a false representation to a machine?

E.g. using stolen credit cards and PIN codes to get money from ATM

A

Yes - representation can be regarded as made to anything submitted to any system/device designed to receive and convey information

139
Q

What is the MR for false representation?

A
  1. Dishonesy
  2. MR for the false statement
  3. Intention to make a gain or cause a loss
140
Q

What is the test for dishonesty for fraud by false misrepresentation?

1st requirement for MR for fraud by false rep

A

Same as theft:
1. What was D’s knowledge and belief as to the facts
2. Given those, was the D dishonest by the standards of ordinary decent people

141
Q

What is meant by MR for the false statement?

2nd requirement for MR for fraud by false rep

A

D must know, or be aware, that the statement is untrue or misleading; will be satisfied if D is subjectively aware of possibility that what they are saying/implying is false

A belief, however unreasonable, that the representation is true will prevent D’s conduct from amounting to deception

142
Q

Must the D have the intention to make a gain or cause a loss only for themselves?

3rd requirement for MR for fraud by false rep

A

No, is enough that D:

  • Intends to make gain for themselves (e.g. false representation made with a view to getting a job regarded as making a gain in terms of money) or for someone else
  • Intends to cause a loss to another or exposes someone to a risk of loss

Gain and loss will only extend to money and (real or personal) property

143
Q

Must the intention be accompanied by an actual gain or loss?

A

No; intention alone will suffice

144
Q

What do gain and loss mean? Must it be permanent?

A
  • Gain = inc keeping what one has and getting what one does not have
  • Lose = inc not getting what one might get and parting with what one has
    Neither have to be permanent
145
Q

What is the AR for fraud by failure to disclose?

A
  1. Existence of a legal duty to disclose
  2. Failure to disclose information another person (matter of fact; easy to prove)
146
Q

When will there be a legal duty to disclose?

A

Statute, transaction of utmost good faith, express/implied terms of contract, custom in trade, fiduciary relationship

147
Q

What is the MR for fraud by failure to disclose?

A

Same as fraud by false representation bar MR for false statement (1. dishonesty and 2. intention to make a gain or cause a loss regardless if made by D or gain actually arose)

148
Q

What is the AR for fraud by abuse of position?

A
  1. Occupy a position which requires D to look after V’s financial wellbeing
  2. Abuse that position (use incorrectly or put to improper use)
149
Q

Must the position requiring D to look after V’s financial wellbeing be professional?

A

No, can include fiduciary or long-term business relationship, or family or voluntary work

But is for judge to assess whether position is capable of being one

Marshall - manager of residential home had control over their bank accounts - withdrew money of one resident to spend on herself, convicted of fraud

Valujevs - gang masters who controlled group of Eastern European workers found them work and took responsibility for paying their wages - were making deductions from wages before paying them - paying their wages was crucial in putting them in position

150
Q

Is abuse of position limited to a successful unlawful act?

A

According to Pennock v Pennock; a D who dishonestly embarks on an improper purpose will avoid criminal liability if it subsequently transpires that D’s acts are lawful

Narrow interpretation but is current position of CoA

This is in spite of fact that Ds (couple) in this case did not necessarily carry out acts that would be to V’s (elderly great uncle) benefit, but courts took a legalistic approach:
1. Ds transferred money from their joint bank account with V to pay for V’s house and put in D’s names - any signatory can withdraw money where no restrictions = legal
2. Title to V’s house later transferred to the daughter of D - V retained equitable interest and daughter not a bona fide purchaser for value so ownership subject to V’s equitable interest = Legal

151
Q

Can a position only be abused by an act?

A

No - can also be committed by omission

E.g. employee who has duty to collect payment on behelf of employer does not - would be oblique intention

152
Q

What is the MR for fraud by abuse of position?

A

Same as fraud by failure to disclose (1. dishonesty and 2. intention to make a gain or cause a loss regardless if made by D or gain actually arose)

153
Q

Summary of criminal damage

A
154
Q

Summary of theft and robbery

A
155
Q

Summary of burglary

A
156
Q

Summary of aggravated burglary

A
157
Q

Summary for fraud

A

Criminal Law – Academic (7 decks)

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