Property Offences

Question 1

Elements of the offence under S.1(1) of the CDA (2 MR, 4 AR)?

Answer 1

Criminal Damage

MR:

1. Intention or Recklessness as to the damage or destruction
2. Knowing or realising that it might belong to another

AR:

3. Destroy or damage
4. Property - excludes intangible property
5. Belonging to another
6. Without lawful excuse

Question 2

Define “destroy or damage” (3 points)

Answer 2

Ordinary English words, but

1. Ultimately a question of FACT OR DEGREE
2. Evidence of EXPENSE OR EFFORT to remedy the consequences of D’s acts may be indicative of damage
3. Damage includes IMPAIRMENT of value and usefulness in addition to physical harm

Question 3

Elements of the offence under S.1(2) of the CDA (2 MR, 4 AR)?

Answer 3

Aggravated Criminal Damage

MR:

1. Intention or recklessness as to destruction or damage of property; and
2. Intention or recklessness as to whether the life of another might thereby be endangered

AR:

3. Destroying or damaging
4. Property
5. Belonging to D or another
6. Where the danger must arise from the DAMAGE caused, rather than the damage’s CAUSE (cf Steer - Bullets, with Dudley - Fire from firebombs)

Question 4

Elements of arson (2 MR, 5 AR?)

Answer 4

Same as Criminal Damage, one extra AR

MR:

1. Intention or Recklessness as to the damage or destruction of the property by fire
2. Knowing or realising that it might belong to another

AR:

3. Destroy or damage
4. Property - excludes intangible property
5. Belonging to another
6. Without lawful excuse
7. BY FIRE

Question 5

Elements of aggravated arson (2 MR, 5 AR)?

Answer 5

Same as Aggravated Criminal Damage, one extra AR

MR:

1. Intention or recklessness as to destruction or damage of property by fire; and
2. Intention or recklessness as to whether the life of another might thereby be endangered by fire

AR:

3. Destroying or damaging
4. Property
5. Belonging to D or another
6. Where the danger must arise from the DAMAGE caused, rather than the damage’s CAUSE (cf Steer - Bullets, with Dudley - Fire from firebombs)
7. and the damage is caused by fire

Question 6

Elements of offence under S.2 of the CDA (2MR; 2 AR)

Answer 6

Making Threats to Destroy or Damage Property.

MR:

1. Intention that the person to whom the threat is made would fear that it will be carried out.
2. If threat is to destroy or damage his own property, he must know that this is likely to endanger the life of that other or a third person

AR:

3. Makes a threat to another to (i) destroy or damage property belonging to that other or a third person; or (ii) destroy or damage his own property in a way that he knows is likely to endanger the life of that other or a third person
4. Without lawful excuse

Question 7

Elements of offence under S.3 of the CDA (2 MR; 1 AR)

Answer 7

Possession with Intent to Destroy or Damage Property

MR:
1. Intention to use the item, or permit another to use it to (i) destroy or damage property belonging to another; or (ii) destroy or damage his or the user’s own property in a way that he knows is likely to endanger the life of that other or a third person

AR:
2. D has something in his custody or under his control

Question 8

For which CDA offences is the defence of lawful excuse NOT available?

Answer 8

Not available for (i) aggravated offences; or (ii) any CDA offence if D additionally knows he is likely to endanger life

Question 9

What is the lawful excuse under S.5(2)(a) of the CDA? Objective or subjective?

Answer 9

Belief that the owner consented or would have consented had he known. Test is ENTIRELY subjective and requires only an honest, genuine belief - intoxication, immorality or illegality is irrelevant.

Question 10

What is the lawful excuse under S.5(2)(b) of the CDA? Objective or subjective? 5 elements.

Answer 10

Belief that the damage was necessary to protect other property belonging to D or another.

Mens rea is purely subjective - requires only an honest belief. But there are two objective elements, see below.

5 elements:

1. Acted to PROTECT property belonging to himself or another
2. Believing the property is in IMMEDIATE need of protection
3. Believing that the means of protection adopted are REASONABLE
4. Those means are OBJECTIVELY REASONABLE in the circumstances
5. Those means must be objectively CAPABLE of protecting the property from further damage

Question 11

What other defences can D have besides lawful excuse to a charge under CDA?

Answer 11

Any normal defence - self-defence, duress, etc, which can apply to all defences, including aggravated ones.

Question 12

Define appropriation. When must appropriation take place?

Answer 12

Pursuant to S.3(1) of the Theft Act, appropriation = any assumption by a person of the rights of an owner. Appropriation can take place AFTER the item is found, so long as it coincides at some point with the MR.

Question 13

When is D never liable for theft?

Answer 13

Where he is an innocent purchaser, i.e., did not know he was buying stolen property (S.3(2)).

Question 14

Five types of property that cannot be stolen (with appropriate exceptions)?

Answer 14

S.4(1)-S.4(4) -

1. Confidential information
2. Electricity
3. Land, unless the property allegedly stolen is severed from the land
4. Wild flowers or fruit unless picked for reward or sale
5. Wild animals unless reduced or being reduced into possession by another at the time D appropriates them

Question 15

What types of property are included in S.4(1) of the Theft Act?

Answer 15

Money, personalty, realty, things in action and intangibles (e.g. patent, but NOT confidential information)

Question 16

Elements of theft (3 AR; 3 MR)

Answer 16

AR:

1. Appropriation
2. Of property
3. Belonging to another

MR:

4. Intention to permanently deprive that other (S.6(1) and (2) - intends to treat the thing as his own to dispose of regardless of that other’s rights; includes disposal or taking the risk of disposal by pawning, lending or borrowing)
5. Dishonesty - i.e.
   (a) S.2(1) exceptions do not apply - D does not subjectively believe that (i) he had the legal RIGHT to deprive the owner of the property; (ii) that the owner would have CONSENTED had they known of the circumstances; and (iii) the owner could not be found by taking REASONABLE STEPS; and
   (b) Ghosh test - D’s behaviour was (i) objectively dishonest by the ordinary standards of reasonable and honest people; and (ii) D subjectively realised this.

Question 17

What is the definition of “belonging to another”?

Answer 17

Any possession, control, proprietary right or interest (S.5(1)).

Question 18

Proper chain of inquiry when an item is alleged to have been abandoned?

Answer 18

1. Has the owner disclaimed all intention to reclaim the property?
2. If the item has been abandoned on land, does it belong to the (i) finder; or (ii) owner (property owner has demonstrated an intention to control things found there or exclude trespassers)?

Question 19

When will property given to the defendant nevertheless “belong to another” (2 scenarios)?

Answer 19

Normally, belongs to D because civil title has passed. UNLESS

1. , D is under a legal obligation to use it for a particular purpose (S.5(3)).
2. The property has been given to D by mistake AND D is under an obligation (e.g. pursuant to law of UE).

Question 20

When will borrowing amount to an intention to permanently deprive?

Answer 20

Only if all the goodness, virtue and practical value has gone. (R v Lloyd)

Question 21

Effect of S.2(2) on dishonesty?

Answer 21

Paying for the property or being prepared to does not necessarily make D honest.

Question 22

Elements of the offence under S.9(1)(a) Theft Act (3 AR and 2 MR)?

Answer 22

Burglary

AR:

1. Enters by any part of his BODY
2. A BUILDING or part of a building (i.e. a structure of considerable size, intended to be permanent or endure for a considerable time)
3. As a TRESPASSER (without or in excess of permission) at the time of entry

MR:

1. Knowing or being reckless as to the entry being a trespass
2. Intending to (i) steal; (ii) inflict GBH; or (iii) damage the building or anything inside (includes conditional intent)

Question 23

Elements of the offence under S.9(1)(b) Theft Act (5 AR and 2 MR)?

Answer 23

Burglary + offence

AR:

1. Enters by any part of his body
2. A building or part of a building (i.e. a structure of considerable size, intended to be permanent or endure for a considerable time)
3. As a trespasser (without or in excess of permission)
4. At the time of entry
5. Commits the actus reus of the ulterior offence: theft, attempted theft, inflicting GBH or attempting GBH

MR:

1. Knowing or being reckless as to the entry being a trespass
2. Has the requisite mens rea to (i) steal; (ii) inflict GBH; or (iii) damage the building or anything inside (includes conditional intent)

Question 24

Elements of the offence under S.1 Theft Act (3 elements)? Must D intend to use the weapon?

Answer 24

Aggravated Burglary

1. D has committed a burglary under either S.9(1)(a) or (b)
2. At the time of the burglary - i.e. time of entry for S.9(1)(a); time of commission of ulterior offence for S.9(1)(b)
3. D has with him any weapon (includes firearms, imitation firearms, explosives or weapons of offence)

Not necessary that D intends to use the weapon, so long as he has it with him at the time of the burglary.

Question 25

Elements of the offence under S.8 of the Theft Act (3 AR; 3 AR)?

Answer 25

AR:
Robbery

1. There is a theft.
2. Immediately before or at the time of the theft (NOTE appropriation can be continuing act)
3. Either
   (a) uses force on any person;
   (b) puts a person in fear; or
   (c) seeks to put a person in fear of being then and there subjected to force

MR:

(i) Intention to permanently deprive owner of the property
(ii) intention to use force to either steal, or escape after stealing

Question 26

Elements of the offence under S.21 Theft Act?

Answer 26

Blackmail

MR:

1. Demand was SUBJECTIVELY UNWARRANTED - did not believe there were (ii) reasonable grounds for making the demand and (ii) using menaces to enforce the demand
2. Made with a view to make an economic gain or intent to cause an economic loss

AR:

1. D makes a DEMAND (need not be received by V so long as it is made);
2. With MENACES - i.e. (i) threats of any action detrimental or unpleasant against the addressee or a third party; (ii) which might influence a person of ordinary stability and courage OR which D knows that V, being particularly vulnerable, is likely to succumb to

Question 27

Elements of the offence under S.2 of the Fraud Act (4 AR, 3 MR)?

Answer 27

Fraud by False Representation

AR:

1. A representation by words or conduct
2. About a fact, law or state of mind
3. To a machine or a human
4. Which is untrue or misleading

MR:

1. Awareness that the representation was possibly true or misleading
2. With intent to make a gain or to expose anyone to risk of a loss
3. Dishonesty - D’s behaviour was (i) objectively dishonest by the ordinary standards of reasonable and honest people; and (ii) D subjectively realised this.

Question 28

When can overcharging constitute fraud under S.2?

Answer 28

Only if there is a position of trust between D and V, implying a representation that he will charge a fair fee (and if it is not fair, then the representation is false). Usually only where there is a long-standing relationship between D and V.

Question 29

Elements of the offence under S.3 of the Fraud Act (2 AR, 2 MR)?

Answer 29

Fraud by Failure to Disclose
AR:
1. D is under a legal duty (e.g. statutory, uberimmae fidei contracts, fiduciary duties) of disclosure
2. D fails to disclose.

MR:

1. With intent to make a gain or to expose anyone to risk of a loss
2. Dishonesty - D’s behaviour was (i) objectively dishonest by the ordinary standards of reasonable and honest people; and (ii) D subjectively realised this.

Question 30

Elements of the offence under S.4 of the Fraud Act (2 AR, 2 MR)?

Answer 30

Fraud by Abuse of Position
AR:
1. D occupies a position where he is expected to safeguard the FINANCIAL INTERESTS of another (e.g. trustee, director, employer)
2. Which he abuses

MR:

1. With intent to make a gain or to expose anyone to risk of a loss
2. Dishonesty - D’s behaviour was (i) objectively dishonest by the ordinary standards of reasonable and honest people; and (ii) D subjectively realised this.

Question 31

Elements of the offence under S.3 of the Theft Act?

Answer 31

Making Off Without Payment
AR
1. Making off, i.e. leaving the place where payment is required
2. Without having paid
3. Where the payment is required and expected (so if agreement to defer payment, then no offence)

MR

1. Subjectively knowing that he is required to pay
2. Intending to permanently avoid payment
3. Dishonesty - D’s behaviour was (i) objectively dishonest by the ordinary standards of reasonable and honest people; and (ii) D subjectively realised this.