Theft and Related Offences

Question 1

Definition Of Theft
Section 1 Theft Act 1968

Answer 1

Definition
The dishonest appropriation
of property
belonging to another
with the intention
to permanently deprive
the other of the property.

Elements
I. Dishonest
2. Appropriation
3. Of property
4. Belonging to another
5. With the intention to permanently
deprive the other of the property

Question 2

Dishonesty
Section 2 Theft Act 1968

Answer 2

What is Not
Dishonest?
3 beliefs
Section 2 Theft Act 1968

3 Beliefs
A person will not be
regarded as dishonest
when appropriating
property belonging to
another— if they
subjectively held any of
3 beliefs.

Subjective Test — What Is Going
On In Their Head?
* Provided the subjective
belief was honestly held -
then the defendant will not
have behaved dishonestly.
*An honestly held belief can
be mistaken.

Belief 1 - Right In Law
They had a right in law to deprive the other of
the property - on behalf of either:
*Themselves; or
* Any other person.

Belief 2 — Owner’s Consent
If the owner knew of:
* The appropriation; and
* Its circumstances — (i.e. why it was taken), ..
.they would have consented.

Belief 3 -
The owner
Lost Items
cannot be discovered
by taking reasonable
steps.

No Tracable Beneficiaries Of
Estates
Trustees & Personal Representatives —
cannot rely on the “owner cannot be
discovered by taking reasonable steps”
belief to retain property from an estate if
a beneficiary cannot be found.
If so — the property reverts to the Crown.

Question 3

Willingness To Pay?

Answer 3

The appropriation of property belonging to
another may be deemed to be dishonest
despite a willingness to pay for the
property

Question 4

Further Test If None Of
The 3 Beliefs Can Be
Established?
Ivey (Appellant) v Genting Casinos (tJK) Ltd t/a
Crockfords (Respondent)
12017) UKSC 67 On appeal from 12016) EWCA crv 1093

Answer 4

Updated Test
* The fact-finding tribunal must
ascertain the actual (subjective)
state of the individual’s
knowledge or belief as to the facts;
and
* Then determine whether their
conduct was honest or dishonest
by the (objective) standards of
ordinary decent people.

Key Change
There is no longer
a requirement
to prove that the defendant
must appreciate
that what they have done
is, by those standards,
dishonest.

Question 5

LEGAL UPDATE - DEFINITION OF DISHONESTY

Answer 5

THE HISTORIC PRINCIPLES OF R v GHOSH
If the criteria of section 2 does not assist in determining dishonesty (i.e. none of the 3 beliefs are present) – historically the judge used to apply the 2 stage test derived from the case of R v Ghosh [1982] QB 1053:

STEP 1 - OBJECTIVE LIMB
Whether what was done was dishonest according to the ordinary standards of reasonable and honest people?
If the jury decide no – the jury must acquit.
If the jury decide yes – the jury will proceed to step 2.

STEP 2 - SUBJECTIVE LIMB
Whether the defendant realised by the standards of a reasonable and honest person - that what they were doing was dishonest?
If the jury decide no – the test would fail at the second hurdle and the jury must acquit.
If the answer is yes - then the defendant will have behaved dishonestly.

LEGAL UPDATE - THE SECOND STEP OF R v GHOSH HAS NOW BEEN REMOVED
Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent) [2017] UKSC 67 On appeal from [2016] EWCA Civ 1093
The Supreme Court in Ivey has updated the test in R v Ghosh – and has removed the second step of the test – to bring the test in line with that used in civil cases.
The Supreme Court held that the second leg of the rule adopted in R v Ghosh had serious problems, as the less a defendant’s standards conform to society’s expectations, the less likely they are to be held criminally responsible for their
behaviour.
The law should not excuse those who make a mistake about contemporary standards of honesty, a purpose of the criminal law is to set acceptable standards of behaviour.
The test is now that used in civil actions – i.e. just step 1 (above).
The fact-finding tribunal must ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts and then determine whether their conduct was honest or dishonest by the (objective) standards of ordinary decent people.
There is no longer a requirement to prove that the defendant must appreciate that what they have done is, by those standards, dishonest.

Question 6

Appropriation
Section 3 Theft Act 1968

Answer 6

Definition Of An Appropriation
The assumption
by the person
of the rights of the owner
i.e. treating the property as their own.

Must Property Be Taken In Order
For It To Be Appropriated?
No
Swapping price tags on items
= appropriation

Does The Assumption Of The
Rights Of The Owner Have To Be
Immediate?
No

Example 1 — Borrowing Item &
Later Decide To Keep It
Borrow item
= no initial appropriation
Later decide not to give the
item back
= subsequent appropriation

Example 2 — Accidentally Leave
Shop With Unpaid Item & Once You
Realise Decide Not To Return Item
Mistaken unpaid item in trolley
= no initial appropriation
Later realise mistake and decide
not to return the item
= subsequent appropriation

Is A Gain Necessary?
No

Duration Of The Appropriation
An appropriation can be for
a very short period of time.

Appropriation Can Take Place
Even When The Victim Consents
R v Lawrence [1982] AC 510

R v Gomez [1993] AC 442

Question 7

Appropriation
Exception
3 steps

Answer 7

3 Steps
An appropriation will not take place where:
* Step I - There has been a purchase for value;
* Step 2 - The person was acting in good faith; and
* Step 3 - The person assumes the rights of the
owner.

Acting In Good Faith? - Example

Question 8

Property
3 categories
Section 4 Theft Act 1968

Answer 8

Category 1
Money

Category 2
All
other property

Real
(Land and things forming part of the land)

Buildings

Personal
(i.e. moveable things that can be owned)

Things in action

Other intangible property
e.g. Gas

Category 3
Items that
cannot be physically stolen.
e.g. trade secrets.

Question 9

Examinations

Answer 9

Examination Paper Itself

The actual paper
that an examination
is written upon
property
and can be stolen
by appropriating the
physical script itself.

The Information Contained In
The Examination

The information contained
within the examination paper
(i.e. the questions posed) is
not property.

Memorising or
photographing the contents
= not appropriation

Question 10

Cheques

Answer 10

Paper = Property
The actual paper
a cheque
is written upon
pay
is property
and can be stolen.

Question 11

Contents Of Bank
Accounts
R v Kohn (1979) 69 Cr App R 395

Answer 11

Account In Credit
Funds in credit
can be stolen
from the account
holder.

Account Within The Limit Of An
Approved Overdraft Facility
Funds within
the approved overdraft
limit
can be stolen
from the account holder.

Appropriation Of Funds Which Have
Exceeded An Approved Overdraft
Limit
There will not
be a theft
from the
account holder.

Question 12

Confidential
Personal Data

Answer 12

Can Confidential Personal Data
Be Stolen?
No
Confidential personal
data
is not property
and cannot be stolen.

Question 13

Can Land Be Stolen?
Section - (c) Theft Act 1968
General Rule &
3 Exceptions

Answer 13

General Rule
Land cannot
be stolen.

3 Exceptions To The General
Rule
There are
3 exceptional
circumstances
where land
can be stolen:

Exception 1 - Trustees / PRs
Trustees or Personal
Representatives or someone
in a position of trust to
dispose of land belonging to
another
can steal land - by dealing with
the land in breach of a
confidence
by dishonestly disposing of it.

Exception 2 - Persons Not In
Possession
A person not in
possession of the
land - can steal the
land by severing it.
Strangers sever!

Exception 3 — Tenants
A tenant in possession
- can steal fixtures and structures.

Question 14

Can Things Growing
Wild On Any Land Be
Stolen?
Section 4(3) Theft Act 1968
General Rule & Exception

Answer 14

General Rule
It is not an offence of theft - to pick any:
Mushrooms
Flowers
Fruit
Foliage
.growing wild on any land.

Exception
It will be an offence - if the mushrooms, fruit,
flowers, or foliage growing wild - are picked for
either:
* Sale;
* Reward; or
* Other commercial purpose.

Focus On The Point At Which The
Intention Was Formed
NB the purpose of profit must be present
at the time of picking

Question 15

Can Wild Creatures
Be Stolen?
Section 4 Theft Act 1968
General Rule & 3 Exceptions

Answer 15

General Rule
It will not be possible
to steal a wild animal.

Exception 1
The wild animal has been tamed.

Exception 2
The wild animal is ordinarily
kept in captivity.

Exception 3
The wild animal has been either:
* Reduced Into possession: or
* Is in the course of being reduced into
possession; and
possession has not been either:
* Lost; or
* Abandoned.

Question 16

Are Corpses
Property?
General Rule & Exception

Answer 16

General Rule
A corpse
is not property.
Doodeward v Spence
[1908] 6 CLR 406

Exception
A corpse will become property - if it has been
changed in some way - by either:
Dissection
Amputation
Preservation

Exception
Fluid Specimens Can Be Stolen

Question 17

Belonging To
Another
Section 5 Theft Act 1968

Answer 17

Who Will Property Belong To
Property belongs to the person who has either:
*A proprietary right or interest in it;
* Possession of it; or
*Control of it.

3 Owners?
Owner
>
Proprietary
interest

Technician
>
Possession

Manager
>
Control

The Duration Of Possession Or
Control
Possession or control
need not be permanent
it can be for only a
defined period.
R v Kelly (1998) 3 All RE 741

Is It Necessary To Prove The
Specific Individual Who Owns The
Property?
No
It is only necessary to prove that
the property belonged to
somebody
other than the accused

When Must The Property “Belong
To Another”?
The property must
“belong to another”
at the time
of the appropriation.

Making Off Without Payment —
NOT Theft

Question 18

Duties In Respect Of
Property Held On
Behalf Of Another
Section 5(3) Theft Act 1968

Answer 18

Where a person recejves property either
* From another - (eg a solicitor handling a house deposit for a
client). or
* On account of another
…and is under a (legal) obligation to them to:
* Retain;
* Deal with
…that property or its proceeds in a particular way (e.g. transfer
the funds to the seller’s solicitor) — then the property will belong
to the other (i.e. to the client).

Question 19

Permission To
Prosecute
- Theft Of Property
Belonging To A
Defendant’s Spouse Or
Civil Partner
General Rule & Exceptions

Answer 19

General Rule
— DPP Consent Required
Prosecution for the offences of ether
* Theft:
* Robbery: or
* Burglary by stealing
agatnst a defendant who has stolen property belonging to ether
* Ther or
* Thetr partner
may only be Instituted With the consent of the DPP.

Exception 1
— No DPP Consent Required
By virtue of any
judicial decree or order
-the defendant and their
spouse
are at the time of the offence,
under no obligation to
cohabit.

Exception 2
— No DPP Consent Required
An order is in force
providing for the separation of
the defendant and their civil
partner.

Exception
Persons Charged Jointly With The
Defendant
The consent of the DPP
will not be required to
prosecute
persons jointly charged
with the spouse or civil partner
of the victim.

Question 20

Intention To
Permanently Deprive
Section 6 Theft Act 1968
3 situations

Answer 20

Treating The Property
As Their Own To
Dispose Of Regardless
Of The Owner’s Rights
Situation 1

R v Velumyl [1989] Crim LR 299
A lends fridge to B
B installed into their own kitchen

DPP v J [2002] EWHC 291
A takes B’s property
and deliberately
renders it useless
(i.e. breaks it)
before returning it to B.

R v Coffey [1987] Crim LR 498
Holding property to ransom.
A holds B’s property
and threatens not to return it
unless B makes a payment to A.
The offence is complete
as soon as the ransom threat is made
(as the property may not be returned)

Question 21

Borrowing Beyond The
Scope Of The Agreed
Terms
— i.e. The Borrowing Or Lending Is For A
Period & In Circumstances Making It
Equivalent To An Outright Taking Or Disposal

Answer 21

e.g. season ticket

Question 22

Parting With Property
Under A Condition For
Its Return That They
May Not Be Able To
Perform

Answer 22

Example
Borrows lawnmower
Pawns it
Offence complete at the time of pawning
(i.e. parting)

Question 23

Receiving Property
By Mistake
Section 5(4) Theft Act 1968

Answer 23

Where a person receives property
by another’s mistake
and they are legally obliged
(NB - not just morally obliged) to restore it
to the person who made the mistake
- failure to do so will form an intention to
permanently deprive the other Of that property.

A makes mistake
B receives property by mistake
B is legally obliged to restore to A the property received
by mistake

Whose Mistake?
A person IS only under an
obligation to restore property
received by virtue of another
person’s mistake.
They are not obliged to return
property received by virtue Of
ther own mistake.

Question 24

Burglary
Section 9(1)(a)
Theft Act 1968
Intent Offence

Answer 24

• A person enters a:
• Building. or
• Part Of a building
• As a trespasser * With the intent (NB — the offence is complete
  at this pant) - to either:
• Steal anything in the building:
• Inflict GBH on any person in the building; or
• Do unlawful damage to either:
• The building; or
• Anything in the building.

What Is Excluded From The
Intention To Steal?
Electricity (no)
Gas (yes)
TWOC (no)

What If Having Entered The Building
As A Trespasser With The Intent To
Steal The Building Was Actually
Bare And There Was Nothing
Capable Of Being Stolen?
Offence complete
- Intent offence!

What If Having Entered The
Building As A Trespasser With
The Intent To Cause GBH - There
Is Nobody In The Building?
Offence complete
- Intent offence!

Question 25

Enters
The accused has crossed a boundary

Answer 25

Boundary 1
The threshold
between the
perimeter and the inside
of a building.

Boundary 2
The threshold between
separate rooms
inside a building.

Boundary 3
The threshold between a cordoned-off area to
which access is prohibited and an area to which
access is allowed within the same room

Question 26

The Extent Of The
Entry Required To
Cross A Boundary

Answer 26

Effective Entry
A person will be deemed to have
entered by crossing a boundary
if their entry is effective
R v Brown [1985] Crim LR 212.
This is a question of fact to be determined
by the jury.

No Need For The Whole Body To
Enter

Insertion Of Non-Body Parts Into
The Building
The insertion Of an instrument alone:
* Merely to gain entry to the building - (e 9
to unhinge a lock) - will P.Q.! be an effective
entry; but.
* To enable the actual ulterior offence to
take place — i.e. the stealing, GBH or
damage to be committed - will be an
effective entry.

Question 27

Building

Answer 27

Establishing A Permanent Nature
A building
must have a
degree of permanence.
Norfolk Constabulary v Seekings and Gould (1986) Crim LR 167

Portakabins
Their function and
degree of permanence
as a work site can make
them a building.
B & S v Leather-ley (1979) crim
LR 314

Dwellings
A dwelling with a degree of
permanence is a building.
An uninhabited shell of an
unfinished house is a building.
R v Manning (18711 IRI CCR 338.

Tents & Marquees
Due to their
lack of permanence
tents and marquees
are not buildings.

Inhabited Vehicles Or Vessels
* The fact that the vehicle or vessel was
desi ned for habitation is insufficient in
itsel?
* It is necessarv to establish that somebody
actuallv lived in it or that it was being use.
for thaf purpose.
* It is unnecessary for the occupier to be
actually in the vehicle or vessel at the time
of the burglary

Question 28

As A Trespasser

Answer 28

A person Will be deemed to be trespassing when they
either:
* Know; or
* Are subjectively reckless — i.e. foresaw the possibility
-that they have crossed a boundary - without either:
* Consent - (i.e. the express or implied permission to
do so); or
* The right by law to do so.

Involuntarily Acts Of Trespass

Question 29

Entering With
Consent
General Rule & Exception

Answer 29

General Rule
If a person enters a building with consent —
they will not be a trespasser.

Exception - Exceeding The Scope
Of The Consent To Enter
If consent to enter for a
specific purpose is granted
but the person nevertheless enters
with the
separate intent to either steal,
cause damage or cause GBH
- they will be a trespasser.

Question 30

Checklist — Burglary
Section 9(1)(a)

Answer 30

Step 1
Has the accused
made an effective entry
— i.e. have they crossed a boundary?

Step 2
At the time
of crossing the boundary
- was the accused a trespasser?

Step 3
At the time of crossina the boundary as a trespasser -
did the accused intend¯to either.
* Steal anything in the building:
* Inflict GBH upon any person in the building;
* Do unlawful damage to either:
* The building; or
* Anything in the building.

Question 31

Burglary
Section 9(1)(b)
Theft Act 1968
Result Offence

Answer 31

Having entered a
* Building; or
* Part Of a building;
as a trespasser * a person either.
* Steals or attempts to steal anything in the building - (l e. causes
the result). or
* Inflicts GBH or attempts to inflict GBH on any person in the
building - (l e causes the result)
N8 — there IS reference to the result unlawful damage being
caused

Question 32

Checklist — Burglary
Section 9(1)(b)

Answer 32

Step 1
Has the accused
made an effective entry
— i.e. have they crossed a boundary?

Step 2
At the time
of crossing the boundary
- was the accused a trespasser?

Step 3
Having crossed the boundary as a trespasser -
did the accused either proceed to:
* Steal or attempt to do so - (result); or
* Commit GBH or attempt to do so - (result).

Question 33

Aggravated Burglary
Section 10 Theft Act 1968

Answer 33

Aggravated burglary will arise where both:
*A person commits burglary; and
*At the time they have with them one of a
“F.E.W.” things.
NB - the defendant has some degree of
immediate control of the item — i.e. it is readily
to hand
Mute

Question 34

FEW

Firearm /Imitation Firearm, Explosive, Weapon of Offence

Answer 34

Firearm
A firearm includes:
*An airgun; and
*A pistol.

Imitation Firearm
An imitation firearm
includes anything that has the
appearance of a firearm
- irrespective of whether it is
capable of being discharged.

Not An Imitation Firearm

Explosive
Any article either:
* Manufactured for the purpose of
producing a practical effect by
explosion; or
* Intended by a person having it with
them for that purpose.

Not An Explosive
Fireworks

Weapon Of Offence
Any article either
* Made (sole purpose - e g a bayonet).
* Adapted (e g a rolling pm With a natl drrven through It), or
* Intended;
for causing either
* Injury (e g knife. baseball bat etc or
* Incapacity; (e g rope. gaffer tape. handcuffs etc )
. to a person.

Weapons Made Or Adapted
If a weapon Of offence IS made or adapted for causing
injury or incapacity to a person:
* It IS only necessary to prove that the person had the
item With them at the point of committing the
burglary offence. and
* No additional mens rea IS required to prove the
commission of the aggravated burglary offence.

Not Made Or Adapted
If a person has anything else (e.g. a screwdriver) which is
not made or adapted for causing injury or incapacity to a
person.
* Simply having the screwdriver to gain entry will be
insufficient; and
* It will also be necessary to prove that the person had the
accompanying intention to use the screwdriver as a
weapon of offence to cause either injury or incapacity to
a person.

Question 35

At The Time

Answer 35

Aggravated Section 9(1)(a)
Offence
It must be shown that they
had one of a F.E.W. things with them
at the point of entry
— i.e. when they crossed the boundary.

Aggravated Section 9(1)(b)
Offence
It must be shown that they had one of a F.E.W.
things with them at the point of the result of either:
* Stealing; or
* Inflicting GBH
.or attempting to do either of the above.

Question 36

Establishing
Awareness Of The
“FEW” Item

Answer 36

Awareness Required
The offender(s) must know that they
have got one of the “FEW things”
with them at the time of committing
the burglary.
If the offender was unaware — they
will not be guilty of aggravated
burglary.

Question 37

JOINT ENTERPRISES AND AWARENESS OF “HAS WITH THEM”

Answer 37

ADDITIONAL LEARNING POINT
If A, B and C enter a building as a trespasser intending to steal and A has a firearm with him:
* B and C will only commit the aggravated section 9(1)(a) burglary offence if they knew that A had a firearm with him.
* If B and C did not know that A had a firearm with him – then only A will have committed the aggravated section 9(1)(a) burglary offence.

Question 38

Robbery
Section 8 Theft Act 1968

Answer 38

An offence of robbery *s committed by a person who
* Steals (i.e. there is a theft): and
* Either
* Immediately before the theft; or
* At the time of the theft; and
* In order to facilitate the theft * either
* Uses force on any person:
* Puts any person in fear of being then and there subjected
to force; or
* Seeks to put any person in fear of being then and there
subjected to force.

Question 39

Theft As A
Prerequisite

Answer 39

There Must Be A Theft
If there is no theft
- there can be no robbery
R v Robinson [19771 Crim LR
173

Question 40

Using Force To TWOC

Answer 40

Using force to TWOC
is not robbery
- as a TWOC does
not amount to an
offence of theft.

Question 41

Force Must Be Used
Or Threatened

Force Used

Answer 41

The Extent Of Any Force Used?
The force used
need only be
minimal.
Pv DPP (20121 EWHC 1657

Where May The Force Be
Applied?
The force may be applied either:
* Directly onto a person’s body; or
*Via a struggle wrenching an item that a victim
was carrying — (e.g. a bag snatch).

The Force Used Must Be
Voluntary
If a pickpocket is in the process
of stealing a purse
and is nudged by the crowd,
loses their balance and falls
into the victim applying
involuntary force
— no robbery will be committed.

Who May The Force Be Directed
Towards
The force used can be directed towards
either:
*The victim; or
*A 3rd party.

Question 42

Threats To Use Force —
Puts or Seeks To Put
Any Person In Fear Of
Force Being Used
There And Then

Answer 42

The Accused Must Intend For Their
Threat To Have The Effect Of
Placing A Person In Fear Of Force
Being Used Against Them
At the time of making the threat
the accused must intend
for the recipient of the threat
to be placed in fear of force being used
against them.

• The accused’s intention in making a
  threat must be to put a person in tear
  of force being used against them.
• An intention to put the recipient of a
  threat in fear of force being used
  against another is insufficient
• You cannot fear for someone else’s
  safety — that is covered by the separate
  offence of blackmail.

There Is No Need For The Result Of
The Person Threatened Actually
Being Fearful Of Force
It is irrelevant
whether the threat did or did not have the result
of causing the person threatened
to be fearful of force being used against them.
R v Khan [2001) LTL 9 April.

The Threat Made Must Be Capable
Of Being Carried Out There And
Then
The force threatened must be
capable of being carried out
there and then
— i.e. at the time of the threat.

Threat To Use Force In The
Future?
Any threat to use force in the
future:
*Will not result in the commission of
a robbery; and
*Will instead constitute a blackmail.

Remote Threats Of The Use Of
Force
Threatening the use of force
at any place other than at
the scene
will be insufficient
- as it will not be possible to
execute such threats there
and then.

Threats Made Over The
Telephone?
Not a robbery
-as it will not be
possible to execute
such threats
there and then.

Question 43

The Timing Of The
Use Or Threat Of
Force

Answer 43

Timing
The use or threat of force - must
be used or made either:
* Immediately before the
stealing, or
*At the time of stealing.

Using Violence After The Theft
A robbery
will not be committed
- if force is used
only to make good an escape
after the act
of stealing (i.e. theft)
has taken place.

Appropriation Is A Continuous
Act
If force is used or threatened
whilst the act of appropriation is
ongoing
then this shall result in the
commission of the robbery offence.
R v Hale [19791 68 Cr App Rep 415

Question 44

Establishing The
Purpose Of The Use
Or Threat Of Force

Answer 44

Purpose?
The force that is either
used or threatened
- must be ‘in order to steal’.

Question 45

Checklist
Robbery
— Force Used

Answer 45

Step 1
Was there a
theft?

step 2
Was force used upon either the:
*Victim; or
*A 3rd party?

Step 3
Was the force used either:
*Immediately before the theft; or
*At the time of the theft.

Step 4
Was the purpose
of the force used
to facilitate the theft
from the victim?

Question 46

Checklist
Robbery
- Threat Of Force
Made

Answer 46

Step 1
Was there a
theft?

step 2
Was a threat of force
made to a person?

Step 3
Did the accused intend
for the recipient of the threat
to be placed in fear of force
being used against them?
NB — There is no need to prove the result
that the recipient of the threat
actually feared the use of force against them.

Step 4
Was the threat
capable of being carried out
at the time of the threat
i.e. there and then?

Step 5
Was the threat made either:
*Immediately before the theft; or
*At the time of the theft.

Step 6
Was the purpose
of the threat to
facilitate the theft
from the victim?

Question 47

Blackmail
Section 21 Theft Act 1968

Answer 47

The offence of blackmail will be committed when
the accused makes an unwarranted demand of
another - accompanied by menaces with either:
*A view to (i.e. contemplating the possibility of) a
gain for either:
* Themselves; or
* Another.
* The intent to cause a loss to another.

No Result Is Required
The offence is complete at the point
that the demand with menaces is
made.
There is no need for the result of
gain or loss to be suffered.

When Is The Offence Complete In
Relation To Demands With
Menaces Sent By Post Or Email?
At the time of
posting I sending the email
The letter I email does
not have to be received.
Treacy v DPP (19711 AC 537

Question 48

Definition Of A Gain

Answer 48

A gain includes both:
* Keeping (retaining) what you already have;
and
*Gaining (acquiring) something that you do not
already have.

Question 49

Definition Of A Loss

Answer 49

A loss includes both:
*Not getting something due to you; and
* Parting with (losing) something that you
already had.

Question 50

Definition Of
Menaces

Answer 50

A menace shall encompass either:
* Threats; or
* Conduct
..of such a.
* Nature; and
* Extent
.that a person of normal stability and
courage - might be influenced so as to
give into the demands.

Question 51

Will The Victim’s
Personal
Characteristics Be
Taken Into Account?

Answer 51

Defendant’s Awareness Of The
Victim’s Characteristic Is Key
If the defendant is aware
of a characteristic of the victim
that would increase the impact
of a threat or conduct upon them
-this can be taken into account in
determining whether their
behaviour was menacing.

Examples
*The victim has a timid nature; or
*The victim has a condition that can be
preyed upon e.g. phobia.

Question 52

Defence To
Blackmail

Answer 52

Defence
No offence is committed if the accused
believed (i.e. a subjective test) - that
both
* They had reasonable grounds for
making the demand; and
* The menace was a proper way of
enforcing the demand.

Question 53

Handling Stolen
Goods
Section 22 Theft Act 1968
5 step test

Answer 53

Step 1
Was the accused
acting otherwise than in
the course of stealing
i.e. had the goods already been stolen?

step 2
Did the accused either
know or believe
the goods to be stolen?

Step 3
Did the accused behave dishonestly in
carrying out either of the following acts?
* If no — no offence— proceed to step 5.
* If yes — guilty of handling.

Step 4A — Act 1
Did the accused
receive the stolen goods
for their own benefit?
NB The accused must ersonall benefit
from the receipt of

step 4B - Act 2
Did the accused either
* Undertake; or
* Assist;
-In the stolen good’s
* Retention;
* Removal;
* Realisation;
* Disposal;
..by or for the benefit Of another person?

step 5
Did the accused arrange (i.e. took preparatory
steps) to do either of the acts?
NB — There is no need for the result of any of the
acts.
If no — no offence.
If yes — guilty of handling.

Question 54

Definition Of Goods
Section Theft Act 1968
2 categories

Answer 54

Category 1
Money

Category 2
All other property
- except land.
NB Things severed from land
by stealing are goods.

Question 55

Handling

Answer 55

The Theft Must Be Complete
Prior To The Handling
The theft of the goods must be complete
before the “handling” activity takes place
-i.e. the handling can only take place
after the commission of the theft.
Theft > Handling

Question 56

Knowledge Or Belief
That The Goods
Were Stolen

Answer 56

Mental Element
The accused must either
know or believe
that the goods were stolen
mere suspicion is
insufficient.

Turning A Blind Eye?
“Deliberately turning a
blind eye”
— is capable of providing
evidence of knowledge or
belief.

Question 57

The Admissibility Of
Previous Misconduct In
Establishing
Knowledge Or Belief
That The Goods Were
Stolen
Section 27(3) Act 1968

Answer 57

If a person is being proceeded against for
handling stolen goods — if at any stage in the
proceedings evidence has been given of them
either:
* Having or arranging to have in their
possession the goods subject to the charge; or
* Undertaking or assisting in, or arranging to
undertake or assist in — their retention,
removal, disposal or realisation…

…then the following shall be admissible for the
purposes of proving that they either:
* Knew; or
* Believed
-the goods to be stolen goods:

Evidence that they:
* Have had in their possession; or
* Have assisted in the retention, removal,
disposal or realisation
.of stolen goods from any theft - taking place
not earlier than 12 months before the offence
charged.

Question 58

Power Of Search For
Stolen Goods
Section 26 Theft Act 1968

Answer 58

Justice’s Belief?
The contents of an information provide a Justice with
reasonable cause to believe that any person has
stolen goods either:
* In their custody;
* In their possession; or
* On their premises.

Justices Power?
The Justice may
grant a warrant to search the same.

Constables Power Under The
Warrant?
A constable may:
* Enter and search premises; and
* Seize any goods on the premises that they
believe to be stolen.

Question 59

Definition Of
Criminal Conduct
Section 340 Proceeds of Crime Act 2002
2 forms of conduct

Answer 59

Situation 1
Conduct
that constitutes an offence
in any part of the UK.

Situation 2
Conduct
that would constitute an offence
in any part of the UK
if it occurred there

Question 60

Definition Of
Criminal Property
Section 340 Proceeds of Crime Act 2002
2 steps

Answer 60

Step 1
Either:
* It constitutes a person’s benefit from criminal
conduct; or
* It represents such a benefit from criminal
conduct (in whole or in part and whether
directly or indirectly).

step 2
The alleged offender either:
* Knows; or
* Suspects
…that it constitutes or represents such a
benefit.

Can A Person Still Be Convicted Of A
POCA Offence Even If The Original
Offence Or Offenders That Gave Rise
To The Proceeds Cannot Be
Identified?
Yes

Question 61

Concealing Criminal
Property
Section 327 Proceeds of Crime Act 2002

Answer 61

Definition
A person commits an offence if they carry out
one of 5 actions
in relation to criminal property.

Action 1
Conceal criminal property

Action 2
Disguise criminal property

What Is Concealing Or Disguising
Criminal Property?
It includes concealing or disguising its:
* Nature
* Source
* Location…
* Disposition
* Movement
* Ownership
* Any rights with respect to it

Action 3
Convert criminal property

Action 4
Transfer criminal property

Action 5
Remove criminal property

From Where?
From either:
* England and Wales;
* Scotland; or
* Northern Ireland.

Question 62

Similar to Handling
But Not The Same

Answer 62

Handling stolen goods must take place
‘otherwise than in the course of stealing’
and
‘by or for the benefit of ‘another’.
This is not the case for the POCA offence.

Question 63

Arrangements In
Relation To Criminal
Property
Section 328 Proceeds of Crime Act 2002

Answer 63

Actus Reus
A person commits an offence if they either:
* Enter into an arrangement; or
* Become concerned in an arrangement

Mens Rea?
.which they either:
* Know; or
* Suspect…
…facilitates (by whatever means) either the:
* Acquisition
* Retention
* Use
* Control
..of criminal property by or on behalf of another
person.

Question 64

Acquisition, Use and
Possession of Criminal
Property
Section 329 Proceeds Of Crime Act 2002

Answer 64

Actus Reus?
A person commits an offence if they either:
* Acquire criminal property;
* Use criminal property; or
* Have possession of criminal property.

Mens Rea Relating To Property
Either:
* Knowing; or
* Suspecting’
.that the property is criminal.

Defence
A person will not commit an offence if they
acquired, used, or had possession of the
property for adequate consideration.
For example - a plumber gets paid for services
rendered via ill-gotten gains by his customer.