Property Offences

Question 1

John Smith

Answer 1

Theft
Accused had found a number of items and kept them for himself.
Court decided this amounted to theft.
Court did away with the requirement of taking and carrying away.

Question 2

George Brown

Answer 2

Theft
Confirmed this change in the law
Jeweller given watches to repair, but he kept them for himself
Court considered this theft, even though he had been lawfully given the property by the owner.

Question 3

Black v Carmichael

Answer 3

Theft
Most radical change in actus reus of theft came in black v Carmichael
Concerned 2 accused who were frustrated with people parking cars on their private property
Decided to clamp the offending vehicles until they got paid by the owners
Charged with extortion and theft
Defence argued this charge couldn’t amount to theft
High court decided this essential feature of the actus reus had been committed in this case
Owner had been denied control and possession of their cars, and had been deprived of being able to use them as a consequence
This was enough to amount to appropriation
Accused interfered with the property rights of the owner
Appropriation now regarded as being interference with the property rights of the owner

Question 4

Dewar v HMA

Answer 4

Things that cannot be owned
(cf violation of sepulchre) – involved a crem owner who removed the bodies from coffins, disposed of the bodies, and kept the coffins and lids for himself. Court said once the body had been buried, it cannot be stolen.

Question 5

HMA v MacKenzies

Answer 5

the accused was charged with stealing a book of chemical recipes from his employer. Also charged with making copies of these and trying to sell them on to rivals. The book classed as theft but selling on the information was not any crime in Scots law, let alone theft.

Question 6

Grant v Allan

Answer 6

Employee charged with having made and kept copies of computer print outs including copies of employer’s customers and offered to sell them on to rivals. Might have been a civil remedy, but accused had not committed a crime. HELD: Mackenzies approved, this charge was not relevant. The information was not corporeal property hence was not capable of being stolen.
English statute – theft can include intangible property.

Question 7

R v Turner

Answer 7

Cannot steal one’s own property
Registered owner of a car took it to a garage for repairs. Day before he was due to collect it and pay, he instead took it and drove it away without paying. Because the garage owner had possession and control of the car, court held that for the purposes of the theft act, he was the owner. So registered owner of the car stole it, as manager had proprietor rights over the car. This wouldn’t constitute theft in scots law.

Question 8

Scott v Everitt

Answer 8

Property that is not yet owned
Court said to take wild animals/game/fish isn’t theft as the poacher owns what he takes. Could be interfering in some other way with the property, but not committing theft by taking it.

Question 9

Valentine v Kennedy

Answer 9

If you take wild animals into their possession, farm them, and keep them in an enclosure, you can become their owner.
This case involved rainbow trout. The trout escaped to a nearby reservoir and the accused fished them out of the reservoir.
HELD: The accused did not steal from the reservoir because the fish had never been farmed.

Question 10

Mackenzie v Maclean

Answer 10

In this case, the abandoned property was beer from a brewery. The accused were two employees of a hotel who had received this delivery from the brewery. It was defective – a number of the kegs had been damaged. They arranged with the brewery as to how the kegs should be disposed of.
The hotel would keep and pay for the undamaged kegs, and abandon the damaged kegs.
A crowd assembled around the abandoned kegs. Some people offered to pay the accused, whilst other people chose to just take them. Allegation of theft here because the kegs were not abandoned as agreed, they had been appropriated by the hotel.
HELD: the hotel was acquitted. Even though as a matter of property law, the kegs technically abandoned belonged to the crown, there was a lack of the need for dishonesty here.

Question 11

Kane v Friel

Answer 11

2 accused were stopped with a considerable amount of property in their possession. They claimed that they had found it abandoned on wasteland, they had showed the police where they claimed to have found the property.
The police did not believe the accused, and they were charged with stealing.
HELD: As this was abandoned property it might technically belong to the crown, but in this case it was not clear who the property belonged to.
No dishonesty. The accused’s appeal against the charge was allowed.

Question 12

Macleod v Kerr and another

Answer 12

Appropriation has to be without consent
Mr Kerr is the owner of a car.
Buyers real name is Galloway, but he has a chequebook which belongs to someone called Mr Craig. He succeeds in making Kerr sell him the car, and pays for it using Craig’s chequebook and under his name.
Galloway resells the car to a motor dealer called Gibson.
Kerr eventually realises that Craig was not who he said he was when the cheque bounces.
To whom does the car belong to? The original seller – Kerr, or the second buyer - Gibson?
The innocent purchaser, Mr Gibson was held to be entitled to keep the car. The original seller, Kerr was deprived of his ownership. This was on the basis that the contract between Kerr and the rogue was voidable on the grounds of fraud.

Question 13

Butler v Richardson

Answer 13

copper wire. Convictions quashed because nothing about where it was found or its condition to suggest it hadn’t just been thrown away.

Question 14

Milne v Tudhope

Answer 14

Mens rea: intention to deprive the owner of his or hr property
Owner of a cottage had had repairs carried out by a builder, but was dissatisfied with this, so asked to carry out further repairs for free. Refused to do so. Instead took items from the cottage and held them ransom until the owner paid for the works that were done. Builders were convicted of theft in doing this. Appeal court had to consider whether the intention to temporarily deprive was sufficient to constitute theft. Court said in some circumstances, temporary deprivation would be enough. Circumstances = when the taking was clandestine/secret, and if the purpose was nefarious (wicked purpose).

Question 15

Kidston v Annan

Answer 15

Accused had advertised he would provide free estimates for repairs before he carried them out. Received tv set, but instead of giving the free estimate, he carried out the repairs and refused to give it back till the repairs had been paid for. Court compared this was previous and said the actions were sufficiently nefarious to constitute theft.

Question 16

Black v Carmichael

Answer 16

Tyre clamping case. No intention to permanently deprive the owner of their property. Charge of theft held relevant. Court didn’t specify that the accused should have ghad a nefarious purpose or interfered clandestinely.

Question 17

Fowler v O’Brien

Answer 17

High court held that an intention to indefinitely deprive could constitute the mens rea of theft. Appellant had asked complainer for a go on their bike. Complainer refused, and took the bike anyway. Didn’t make it clear whether it would be returned, and made no steps to return it, and then abandoned it. Owner eventually found it. Court said because accused had intended to deprive the owner of their property indefinitely, that was enough to constitute theft.

Question 18

HMA v Forbes

Answer 18

House breaking
Act of breaking into a house is not criminal by itself, becomes a crime when committed with intent to steal. Court also held the only kind of intent to commit a crime that could make house breaking criminal is intent to steal. Rape doesn’t make the house breaking criminal. Has to be facts used to infer that the person intended to steal

Question 19

Mason v Jessop

Answer 19

Smashed church windows and found drinking beer in the church yard. On appeal, his explanation was that he just wanted to go and drink beer. No intention to steal anything.

Question 20

Burns v Allan

Answer 20

Involved accused convicted of attempted house breaking with intent to steal by disconnected the external alarm of a nightclub. Court said this was clearly an attempt to overcome security

Question 21

Heywood v Reid

Answer 21

Accused smashed a security light. Court said this could amount to an attempt to overcome the security of the building.

Question 22

McLeod v Mason

Answer 22

• Housebreaking, despite it’s name does not just apply to residential property. It applies to any buiding.
Case law has defined it even broader than this – “overcoming the security of the building” —- you can be held liable if you tamper with security systems etc, even if you don’t actually break in.

Question 23

Edgar v Mackay

Answer 23

Embezzlement
A solicitor instructed by his clients to recover payment for sums of money.
Didn’t get in touch with client.
Client told him to stop working for them.
He had collected several sums he hadn’t told the clients about.
They found out and told him to account for it, but he didn’t do so.
Convicted of embezzlement.
High court on appeal decided the length of silence and failure to pay money were both factors in upholding the conviction.

Question 24

Kent v HMA

Answer 24

Delivery of apple puree
Accused overseeing this
Didn’t pay for it or account for the money
Court set out key criteria for embezzlement
Possession lawfully acquired
Accused dealing with it on behalf of the person who gave it
Carried out an unusual action
Dishonest intention

Question 25

Allenby v HMA

Answer 25

Accused acting as a fish salesman for some trawlers
Put all the money into communal funds and then used it to make advances to different trawler owners
Court said nothing in his actions from which dishonesty could be inferred, so he was acquitted

Question 26

Moore v HMA

Answer 26

Company director and his wife 5050 co owners in shares
director routinely withdrawing from company bank account to gamble etc
Actions suggested he was trying to strip the company of an asset so his wife would get nothing on divorce
Conduct also demonstrated his was trying to cover up what he was doing.

Question 27

O’Neill v HMA

Answer 27

Doesn’t have to amount to assault. Court held that theft accomplished by behaviour that justly causes alarm as to the personal consequences of resistance or refusal constitutes robbery

Jury had found the accused guilty on a charge of robbery but the charge of assault was not proven.
The accused appealed on the grounds that this was inconsistent – how could he be charged for robbery without assault?
On appeal, it was held that this was a coherent verdict. There can still be robbery without assault. Violence alone was enough.

Question 28

Cromar v HMA

Answer 28

Involved an appeal where the accused tried to argue that his actions of tugging a plastic bag out of the hands of the complainer wasn’t violent enough to constitute robbery. Court held that it was.

Question 29

Marion McDonald

Answer 29

Extortion
Accused threatened to reveal complainers immoral conduct to relatives, friends and neighbours unless he paid her money. This conduct formed the basis of an extortion charge. Threat wasn’t unlawful in itself, but it was the coupling of this threat with the demand for money that made it extortion.

Question 30

Silverstein v HMA

Answer 30

MD of a company that rented out premises to tenants was charged with attempting to extort payments from tenants by threatening to evict them if they didn’t pay. Had the accused been a landlord, his actions wouldn’t have been criminal. Court stated the question on whether pressure exerted is regarded in law as legitimate determines whether the threat amounts to extortion.

Question 31

Rae v Donnelly

Answer 31

Director of a company fired one of his employees – employee had had an affair and was pregnant with the other employees baby.
The employees brought legal action against the director.
Accused called in the two concerned and said that unless the legal action was dropped, he would reveal that the other employee was the father of the child.
Director was convicted of extortion.
Even on appeal it was found that the nature of the demand made no difference. The accused was still liable.

Question 32

Black v Carmichael

Answer 32

Clamping case. Court said even if the accused had been entitled to the levy they were demanding, their actions would still be extortion because of the illegitimate means they were using to try to enforce their demands.

Question 33

Tapsell v Prentice

Answer 33

Fraud
involved the accuse misrepresenting herself and falsely claiming to be a member of a gang of gypsies nearby. Did this to induce the complainer to buy a rug from her. This might make him more likely, as he would get their custom. Didn’t make any misrepresentations about the rug itself. Court held they weren’t material to the sale, so there was no fraud

Question 34

Strathearn v Fogal

Answer 34

Fraud
Father and sons charged with trying to induce tenants to continue with their leases by saying if they didn’t, the sons would take over the tenancy. False pretences seen by the courts to be collateral to the bargain reached between them and the tenants

Question 35

Richards v HMA

Answer 35

Accused were charged with trying to induce sale of a mansion and the surrounding property. The person acting on behalf of accused claimed he wanted to buy the mansion, live there with its family, and keep it in its current condition. This was untrue. Court held this lie was an essential factor in this sale and not merely a collateral matter. Could constitute the basis of fraud.)

Question 36

McKenzie v HMA

Answer 36

Accused lied to their solicitors in order to get the solicitor to raise unjustified legal action against other parties.
The accused were charged of fraud before the action had been brought to court and before any court orders had been made.
The accused relied on this to object – there was no loss for the victims. Things had been set in motion but not to their detriment.
HELD: this was enough to constitute a “practical result”. The falsehood led the solicitors to do something that they would not otherwise have done.

Question 37

Adcock v Archibald

Answer 37

Accused, coal miner, falsely claimed that one of his colleagues pile of coal was his in order to get a bonus. The pile wasn’t large enough to get a bonus. So didn’t make a gain and complainer didn’t suffer loss, but court held fraud had been committed

Question 38

Mather v HMA

Answer 38

False pretences must be the means of bringing about a practical result. Convicted of fraud for using a bad cheque to pay for some cattle. On appeal, court said he had definitely lied but this was not the means by which he secured the delivery of the cattle, as the delivery was before the exchange of the cheque.

Question 39

MacKenzie v Skeen

Answer 39

The mens rea of fraud is knowledge of the falsity of the representation, and intention to bring about the practical result
Accused was careless in weighing out something for pet food. Couldn’t be shown he had any intention to deceive anyone, so he was acquitted.

Question 40

Druce v Friel

Answer 40

Involved people who had stolen a number of articles – one of them being a chequebook. They tried to use the chequebook to pay for something.
They were initially charged with both theft and reset, but it was held by the high court that they could not be charged with both – it had to be one or the other.
Reset and theft are mutually exclusive: a person cannot be convicted of theft and of reset of the same articles

Question 41

HMA v Browne

Answer 41

Actual possession not necessary
Accused was charged with theft and handling of certain banknotes. The case established that it was not necessary to prove that the accused ever had personal possession of object (privy to retention) “not necessary to prove that the accused ever had the property in his personal possession.”

Question 42

McNeill v HMA

Answer 42

Actual possession not necessary
Court didn’t define what the phrase means. But the fact reset can be used in this way is used to convict someone using a stolen car knowledgably.

Question 43

Latta v Herron

Answer 43

Mens rea for reset: knowledge that property ‘stolen’ and intention to keep it from the owner
involved a solicitor, also a weapons collector, buying guns from his client in the middle of the night at half their true value. Court said if they didn’t know they were stolen, it was because he blinded himself to the obviously questionable circumstances of the deal
‘Wilful blindness’

Question 44

Forbes v HMA

Answer 44

Mens rea for reset:
incriminating circumstances can be used to infer the accuseds knowledge. Accused had a large parcel in his car with a stolen valuable painting. Claimed he didn’t know it was there and had an awkward story as to why he was driving around. This combination implied the necessary knowledge to be guilty of reset. Difficult to show someone knows goods are stolen. Doctrine of wilful blindness established. This means that a person can be convicted of reset when circumstances are such that the average person would have known that the goods were dishonestly acquired.

Question 45

HMA v Wilson

Answer 45

Actus reus of malicious mischief
Extended malicious mischief beyond its original boundaries. It was traditionally thought that it only applied to corporeal property, but in this case, the High Court held that malicious mischief includes interfering with property so as to cause patrimonial (i.e. economic) loss. This decision has been questioned by commentators, including for the overlap that it apparently creates between malicious mischief and theft.

FACTS: Involved someone who had broken into a power station and hit the emergency stop button on one of the turbines. It took about 28 hours to fix this.
It was estimated that the electricity that wasn’t generated in this time was worth a lot of money.
Accused was charged with malicious mischief.
The Sheriff originally led the jury to believe that this was an irrelevant charge.
BUT, on appeal it was held that where you interfered with another persons property, and that has caused financial loss, that would constitute malicious mischief.

Question 46

Bett v Hamilton

Answer 46

Actus reus of malicious mischief
Alternative way of committing was applied. Tried to convict someone of this – unsuccessful. Accused had moved a bank security camera so that it no longer covered the entrance. Tried to argue running costs of the camera were wasted and increased chance of people breaking in. Argument failed as no loss.

Question 47

Ward v Robertson

Answer 47

Mens rea for malicious mischief: intention or recklessness
court held it wasn’t essential for there to be deliberate intent to damage property to commit malicious mischief. If accused has disregarded the property rights of another person, this is also malicious mischief. Crime can be committed recklessly

Question 48

Clark v Syme

Answer 48

Mens rea for malicious mischief: intention or recklessness
Accused killed a neighbours sheep he thought he was allowed to if it strayed onto his land. High court appealed the conviction and decided his actions had been deliberate and showed complete disregard for the property rights of another person.

Question 49

Black v Allan

Answer 49

Vandalism
Argued that the effect of the statutory basis of the charge of vandalism was to replace the law of malicious mischief.
The court in this case rejected that argument. These are two separate offences, they are both competent charges available to the crown in property damage cases.
• Differences?
Slight difference in the form of the mens rea.
Also a difference of the recklessness required. Recklessness was defined in Black v Allan as conduct falling below that which would be expected of a reasonable person.
• “reasonable excuse” defence
In the context of vandalism, you can offer this excuse, which is not available for malicious mischief.
• Application to patrimonial loss?
Malicious mischief can be applied to economic loss / financial loss, but the same doesn’t apply in relation to vandalism. Vandalism is limited to property damage.

Question 50

MacDougall v Ho

Answer 50

Reasonable excuse defence
Shopkeeper charged with vandalism after smashing a taxi window for thinking they smashed his window.
Circumstances – 3am, immediate response.
Court said it constituted a reasonable excuse

Question 51

John v Donnelly

Answer 51

Reasonable excuse defence
Accused tried to argue her belief against trident should excuse her vandalism
The defence was rejected, with the observation that no attempt had been made actually to establish the illegality of the Trident programme under international law. The defender had relied, instead, merely on a sincere belief on her part that the programme was contrary to international law.

Question 52

Byrne v HMA

Answer 52

Wilful fire raising
Wilful fire raising and culpable and reckless fire raising can be committed on any type of property, the difference is in the mens rea.
A guy set fire to some papers on the floor of a room, the fire then spread from the paper to other surrounding objects in the room.
Accused was convicted of wilful fire raising. The sheriff had directed the jury that they could infer the intention for this, by the fact that it was intentional to set fire to the pile of papers, and it was likely that it would spread.
On appeal ,the high court disputed that ruling. The high court significantly clarified what had previously been a messy area of the law. They were clear that there were 2 offences of fire raising:
i). wilful fire raising
ii). culpable and reckless fire raising
The difference between the two is only with regards to the mens rea.
In this particular case, the only allegation of intention of the accused was that he had intentionally set fire to the papers. This did not entail that he also intended to set fire to the other property in the room as well.
There was no room for the doctrine of transferred intent in this case.
HELD: There had been misdirection in the case. If there was going to be liability, it would have to be proved that it was culpable and reckless.