Tutorial 8 - Property Offences Flashcards
1
Q
Lawrence v Metropolitan Police Commissioner [1972] AC 626
A
- theft can be found even when V consented to the appropriation
- an italian student who couldn’t speak english handed her wallet to D (a taxi driver) who then took more money out of it than the cost of the taxi fare
- D convicted under s1 Theft Act 1968 - appealed on the basis that she consented to the taking of the money
- conviction held and appeal dismissed
- Viscount Dilhorne - s1(1) Theft Act 1968 should not be construed as though it contained the words “without the consent of the owner” and= accordingly it was not necessary for the prosecution to prove that the taking was without his consent - D was dishonest - appropriation may occur even when V consents to some property being taken
2
Q
R v Morris [1984] AC 320
A
- appropriate means the assumption of some rights of the owner, not all rights and can be a combination of dishonest acts which do not constitute appropriate on their own
- D switched the labels of goods in a supermarket to pay a lower price - issue as to whether this constituted dishonest appropriation - defence argued that there is the assumption of some rights of the owner but assumption ofallrights is needed to amount to appropriation
- appeal dismissed - assumption of some rights of the owner is sufficient to constitute appropriation
- Lord Roskill - appropriation involves ‘an adverse interference with or usurpation’ not expressly or impliedly authorised by the owner (this bit was contrary to Lawrence and was overruled in Gomez) - sufficient for prosecution to prove assumption of some of the owner’s rights - appropriation can be constituted by a series of acts which alone would not amount to appropriation (in this case, changing the labels, removal from the shelves)
- in Hinks, Lord Steyn stated that Lord Roskill conflated the elements of dishonesty and appropriation contrary toLawrence and it was held that appropriation can occur even when there has been a valid transfer of property, which would not adverse interference
3
Q
R v Gomez [1993] AC 442
A
- overruled Morris: an act may be an appropriate notwithstanding that it is done with the consent of the owner
- D, the assistant manager of a shop, received 2 stolen checks as payment and persuaded his manager to accept them by lying - charged with theft
- D argued that the transfer of goods was consented to by the manager so there was no appropriation
- appeal dismissed HofL - there was appropriation when stolen goods were obtained with the consent of the owner under false representation and such a passing of property did not need to involve adverse interference or usurpation of some right of the owner
- Lord Keith - in Morris, Lord Roskill was right that assumption by D of any of the owner’s rights could amount to an appropriation but V can have consented to the act - also in Morris, the single act of switching the price labels is appropriation as it usurps the owner’s sole right to label his goods
- Lord Browne-Wilkinson - decision in Morris is wrong to hold that appropriation means interference with or usurpation of owner’s rights as it introduces the mental state of D and V - in the statute ‘dishonest appropriation’ indicates that the mens rea is limited to dishonesty - views Morris as incorrect and impossible to reconcile with Lawrence
- hugely simplified law on appropriation by avoiding debates about consent - Herring - practical benefits outweigh academic concerned
4
Q
R v Hinks [2000] 3 WLR 1590
A
- appropriation can occur even if an indefeasible title is obtained (ie the original owner now has no right to the property)
- D got John Dolphin, a man of limited intelligence, to give her £60,000 - this was a valid transfer of title in civil law (perfect gift with no vitiating factors such as mistake or fraud) - was a perfect gift because there were no lies or pressure
- D convicted of theft - appealed on the ground that ‘appropriation’ in s1 Theft Act excludes valid transfers of title
- appeal dismissed, conviction held (HofL) - meaning of ‘appropriation’ is not limited in this way
- strictly speaking in property law the ownership was in the midst of being transferred - criminal law doesn’t need to consider whether she had appropriated it etc - should focus on dishonesty
- Lord Steyn - tension between civil and criminal law does not justify departure from Lawrence and Gomez, and it is wrong to assume that criminal law rather than civil law is defective - mental requirements of theft are adequate protection against injustice - adopting a narrower definition of appropriation is likely to place beyond the reach of the criminal law dishonest persons who should be found guilty of theft, restrict the scope of the law of theft and complicate the fair and effective prosecution of theft
- Lord Hutton (dissenting) - where there is a valid gift there cannot be dishonesty, no matter how morally reprehensible it is regarded to be, unless the jury is satisfied that the donor did not have the mental capacity to make a gift and the donee knew of this incapacity
- Lord Hobhouse (dissenting) - an essential function of criminal is to define the boundary between conduct which is criminal and merely immoral - to treat lawful conduct as criminal merely because it is morally reprehensible would be contrary to principle and open to objection, it would fail to achieve transparent certainty required of criminal law by basic human rights principles
- Herring - like Gomez, Hinks keeps the law simply by disregarding property law, consent etc and focusing on dishonesty
5
Q
R v Briggs [2004] Crim.L.R. 495
A
- deception causing V to transfer property does not amount to appropriation
- D deceived elderly relatives to pay for their new house to be bought under the names of D and her father instead of Vs - convicted under s1 Theft Act 1968 for theft
- appeal allowed and conviction quashed (CofA)
- Silber J - where V causes a payment to be made in reliance on deceptive conduct by D, there is no ‘appropriation’ by D - appropriation involves a physical act rather than a remote action triggering the payment - the offence of deception exists to deal with such cases
6
Q
R v Darroux [2018] EWCA Crim 1009
A
- conviction of theft quashed because there had been no ‘appropriation’ of property
- care home manager submitted falsely inflated claims for overtime and payment in lieu of holiday entitlement
- this reduced her employer’s bank balance, but because she had no control over the bank account and had not assumed the owner’s rights with regard to the bank balance, it could not be theft - should have been charged with fraud by false representation instead
7
Q
Oxford v Moss [1979] CAR 183
A
- confidential information is not property that can be stolen under s4 Theft Act 1968
- D (student) copied an examination paper and returned it - convicted under s1 Theft Act
- appeal allowed and conviction quashed (CofA) - confidential info is not property which can be stolen - in s4 “intangible property” did not include confidential info
- protection of confidential information is found in civil law where injunctions can be obtained to prevent revelation
8
Q
R v Kelly [1998] 3 All ER 741
A
- D had been granted access to the Royal College of Surgeons to take drawings of anatomical specimens and asked a junior technician of the college to remove approx 35 body parts (from corpses, in jars and preserved etc) - the body parts were taken to D’s home where he made moulds of them for sculptures and then buried them in a field near his home - convicted of theft
- appealed arguing that under common law body parts and corpses were not property so could not be stolen
- appeal dismissed - while there is no property in a corpse, there is an exception where a corpse or part of a corpse had undergone a process or application of human skill designed to preserve it for medical or scientific examination, it acquired value and became property
9
Q
R v Preddy [1996] AC 815
A
- appealed against the dismissal of his appeal against conviction for dishonestly obtaining or attempting to obtain mortgage advances, after submitting mortgage applications containing false statements to lending institutions - argued that they could not be guilty because the advances were payments made between 2 bank accounts by cheque, electronic transfer or telegraphic transfer so did not constitute the obtaining of property
- appeal allowed (HofL) - the sums in issue constituted choses in action belonging to the lender - came under s4 (1) Theft Act - however transfer of funds by debiting lender’s account and crediting D did not involve passing of property because the transaction was executed by the extinction of one chose in action and the creation of another in a different account - although the property corresponded to the debit entered in a lender’s bank account, it did not follow that the property acquired by D could be identified with the property that the lender lost when its account was debited
10
Q
R v Smith, Plummer and Haines [2011] Crim LR 719
A
- illegal property is ‘property’ under s4 Theft Act 1968
- Ds robbed V of heroin and were convicted of theft under s1 Theft Act - appealed on the grounds that illegal drugs did not constitute property under s4 as possession was unlawful
- appeal dismissed - property in unlawful possession constitutes property that can be stolen as s4 defines property as all tangible property with some express exceptions
11
Q
R v Turner (no.2) [1971] 2 All Er 441
A
- something you legally own can ‘belong’ to another within the meaning of s5(1) Theft Act 1968
- D took his car to be repaired at V’s garage - when the repairs were completed, D took his car away without paying - convicted of theft under s1 Theft Act 1968
- appeal dismissed (CofA) and conviction held - the car ‘belonged’ to V under s5(1) - property belonged to a person if at the time of the appropriation that person was in possession of control of it - possession or control did not need to be qualified in any way
12
Q
R v Hall [1972] 2 All ER 1009
A
- money from a client does not belong to the client unless there is a special arrangement to deal with the money in a particular way
- D (travel agent) received money from clients for flights, which he used for business expenses - his business collapsed and none of the flights materialised, and no refund was made - convicted of theft
- at the point the money is handed over the travel agents are appropriating it but there is no dishonesty (thought they’d be able to buy the tickets) - at the point there is dishonesty (when they decide to keep it), the money is already the travel agent’s property - way around that problem is under s5(2) where it can be treated as belonging to the victim since D is under obligation to deal with the property a certain way but this argument failed because when V handed over the cash he was not expecting an obligation to deal with those particular notes for the airline tickets
- appeal allowed (CofA)
- Edmund Davies LJ - D was contractually obliged to buy tickets for the clients but there was no evidence that they expected him to retain and deal with their money or its proceeds in a particular way that would give rise to an obligation within s5(3) Theft Act 1968 - so the money could not be considered as belonging to D’s clients
13
Q
R v Williams [1980] Crim LR 589
A
- D took some obsolete Yugoslavian banknotes to a bureau de change and asked either if he could change them or cash them in - given the value of current banknotes - D convicted of theft
- appeal dismissed (CofA) - it was open to a jury to find that D had by his words represented the notes as genuine and valid currency - D was guilty of obtaining the notes by deception - however the contract with the bureau was void ab initio as there was a fundamental mistake operating on the cashier’s mind - property in the money handed to D had not passed to him - given that D’s dishonest intention was admitted, the offence of theft was made out
14
Q
A-G’s Ref (1 of 1983) [1984] 3 All ER 369
A
- an employee received her pay by direct debit, and her employer mistakenly credited wages - employee charged with theft under s1 Theft Act 1968 - then acquitted
- Attorney General appealed and raised question as to whether she was guilty of theft - CofA held that the amount credited to a bank account, being a chose in action, was property under s4(1) and capable of being stolen
- a person who received and intentionally failed to repay an overpayment debt due to him could be guilty of theft under s1 - under s5(4) there would be an intention to deprive a person of his property if he got the property of another by mistake and intended not to restore it to that person
- if proved that the employee acted dishonestly and appropriate the chose of action, theft would be established
15
Q
A-G Ref (1 of 1985) [1986] Crim LR 476
A
- an employee who makes a secret profit by selling his own goods on his employer’s premises is not guilty of theft of that money
- a pub manager employed by brewers contracted to only sell their beer on the premises - in fact he was “buying out” from a wholesaler and making secret profit which he retained
- D and the barman helping him were acquitted of theft and going equipped to cheat the employer
- AG referred case on questions of whether the manager held the moneys on account for the brewery, whether he was a constructive trustee and whether therefore the moneys came within the s5(3) Theft Act 1968
- held that the money was not held on account of the brewers but in his own account, the person in a fiduciary position who made a secret profit was not a trustee within the meaning of s5 and the brewers had no proprietary interest in the money, and it could not be said to “belong to another”
16
Q
R (Ricketts) v Basildon Mags Court [2011] Crim LR 505
A
- there had been sufficient evidence before a magistrate’s court for it to properly conclude that items left outside charity shops that R had taken had belonged to someone other than R at the time of appropriation, so it had been right to commit the case to the Crown Court for trial
- claimant (R) applied for judicial review of the decision to commit him for trial at Crown Court on 2 charges of theft of property
- R was seen on CCTV taking bags from outside a charity shop and putting them in a vehicle - stopped by police who discovered a number of bags and a suitcase containing clothing - arrested and admitted he had taken them to sell - also took items from a bin at the rear of another charity shop
- at the committal hearing the magistrates’ court rejected R’s submission that it could not be concluded on the evidence that the property belonged to either of the shops so the requirements for the offence were not met
- application for judicial review refused - the magistrates’ court was entitled to infer that the items belonged to the charity shops (had been left outside with intention) and the donor had relinquished possession but not ownerships (shop’s possession not yet complete) - more appropriate to charge R with stealing property belonging to persons unknown - items in the bin were possessed by the charity at the time of appropriation - but court correct to commit to Crown Court
17
Q
Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67
A
- removed the subjective second limb of the Ghosh test for dishonesty
- civil case but persuasive on criminal courts
- judgement made conviction for theft easier as dishonesty is more easy to satisfy, removes defences based on cultural differences, impacts fraud which uses the same definition of dishonesty
- C used a technique called edge-sorting which exploited design irregularities on the back of playing cards to win £7.7m in baccarat at D casino - D later discovered and refused to pay his winnings, prompting C to sue
- D successfully argued in defence that there was an implied term against cheating in its contract with C - C admitted the implied term but denied cheating - argued that cheating involved dishonesty as defined in Ghosh but he did not meet the second limb of the Ghosh test as he genuinely believed his technique was not cheating
- appeal dismissed - D had cheated - concept of cheating doesn’t necessarily involve dishonesty
Lord Hughes: - meaning of dishonesty - “like the elephant, it is characterised more by recognition when encountered than by definition” - judges should not define it outside s2 Theft Act - Ghosh does not correctly represent the law and that directions based upon it ought no longer to be given”
- criticisms of the Ghosh test - ‘The principal objection to the second leg of theGhoshtest is that the less the defendant’s standards conform to what society in general expects, the less likely he is to be held criminally responsible for his behaviour’ - ‘sets a test which jurors and others often find puzzling and difficult to apply’ - ‘led to an unprincipled divergence between the test for dishonesty in criminal proceedings and the test of the same concept when it arises in the context of a civil action.’
18
Q
R v Barton [2020] EWCA Crim 575
A
- CofA affirmed that the test for dishonesty in criminal contexts was that set out in Ivey, expressly overruling Ghosh
- D appealed against his convictions of conspiracy to defraud on basis it didn’t fit Ghosh rule for dishonesty - D ran a nursing home and manipulated and isolated a number of wealthy elderly relatives to make him the residuary beneficiary of their wills and give him control of their financial affairs - also accept large gifts from residents - obtained over £4m - judge followed dishonesty test from Ivey
- test proposed by the Supreme Court inIveywas, first, to determine the defendant’s actual state of knowledge or belief as to the facts and, second, to ask whether their conduct was dishonest by the standards of ordinary decent people
- appeal against conviction dismissed - judge was correct to follow test from Ivey
19
Q
R v Lloyd [1985] 2 All ER 661
A
- D worked at a cinema as a chief projectionist - took out movie tapes for hours at a time to 2 other Ds to be copied and sold - convicted of theft under s1 Theft Act 1968
- appeal allowed and conviction quashed (CofA) - no intention to permanently deprive
- borrowing can amount to the intention to permanently deprive only if the intention was to return it in a changed state where it had lost its goodness, virtue or practical value - no such loss in this case as films can still be screened
20
Q
R v Marshall [1998] 2 CAR 292
A
- Ds convicted of theft for obtaining used but unexpired London Underground tickets and travelcards and selling them to other potential customers
- argued there had been no intention to deprive London Underground of the tickets, which would returned to its possession - contended that the issuing of a ticket was analogous to the drawing of a check in that it created a chose in action belonging first to the passenger and second to the payee, so following Preddy, the ticket belonged to the passenger not London Underground, so there could be intention of depriving London Underground of it
- conviction held and appeals dismissed - Ds had the necessary intention to treat the tickets as their own to dispose of regardless of London Underground’s rights - they had disregarded London Underground’s right to insist that the ticket was used by the purchaser only - the tickets were not choses in action
- since Ds had admitted to acting dishonestly by pleading guilty, the convictions were safe
- different to reselling items like clothing because on the ticket it says that it remains the property on the London Underground so they could still ask for it back
21
Q
DPP v Lavender [1994] Crim LR 297
A
- D charged with stealing 2 doors from a council property undergoing repair, which he used to replace damaged doors at another council property of which his girlfriend was a tenant
- argued that the had not had the intention to permanently deprive the council of the doors as he was just moving it
- appeal allowed and case remitted to the justices to convict - the words “to dispose of” in s6 Theft Act could include disposal to the owner of the property and dealing with the property - proper question was whether D intended to treat the doors as his own regardless of the council’s rights
22
Q
R v Mitchell [2008] EWCA Crim 850
A
- appeal would be allowed in the case of a defendant convicted of robbery for allegedly being one of 4 persons who had violently taken a vehicle from V and used it as a getaway car before abandoning it
- D convicted of robbery - potentially one of 4 men who set upon and threw a woman out of her BMW and then drove it off to use as a getaway car after being involved in thefts from telephone kiosks and crashing their car (might have not participated in violence or the actual stealing but was in the BMW - blood evidence - and had been in the other car when it was crashed) - the BMW was then abandoned
- held that none of the authorities extended the scope of s6 Theft Act 1968 to a case of taking a car for its brief use before abandoning it
- appeal dismissed - lack of intention to permanently deprive as car was abandoned in good condition
- Rix LJ - “Given the overall criminality displayed in this case, we regret the conclusion to which we have felt constrained to come” - “As it is, by charging the wrong offence this prosecution could not succeed and ought not to have succeeded. We therefore allow this appeal.”
23
Q
R v Collins [1973] QB 100
A
- burglary requires D to know or be reckless as to whether he was entering without permission
- D was drunk and climbed into V’s house to seek sex - V was also drunk and welcomed him as she thought he was her boyfriend - D convicted of burglary with intent to commit rape under s9 Theft Act 1968
- D appealed on the basis that the jury was not directed to consider whether D entered as a trespasser knowing he had no permission or was reckless as to that fact
- appeal allowed (CofA) and conviction quashed because of the incorrect direction by the judge - ‘There cannot be a conviction for entering premises “as a trespasser” within the meaning ofsection 9 of the Theft Actunless the person entering does so knowing that he is a trespasser and nevertheless deliberately enters, or, at the very least, is reckless as to whether or not he is entering the premises of another without the other party’s consent.’
- concept of trespass is a civil law concept in tort that did not involve a mental element - this case added a mental element to trespass within the meaning of s9
24
Q
R v Ryan [1996] Crim LR 320
A
- an occupier of a household found D stuck in a downstairs window - D convicted of burglary
- appeal on issue of whether his action was capable of constituting entry within the meaning of s9 Theft Act 1968
- CofA held that the facts of the case were that it was a domestic burglary, in the early hours of the morning, in the house of an elderly victim - only reason nothing was taken was that D got stuck
- the partial entry within the building, although stuck in the window, was capable of constituting entry
- appeal dismissed
25
Q
Smith and Jones [1976] 3 All ER 54
A
- the actus reus of trespass can involve doing entry for a purpose in excess of permission and the mens rea of trespass under s9 Theft Act 1968 can be knowledge or recklessness as to exceeding permission
- D entered his father’s house and stole 2 televisions - convicted of burglary
- appealed on grounds that he had not trespassed since he was given general permission to enter the house
- appeal dismissed (CofA) - D had trespassed
- James LJ - a person is a trespassed only when he enters premises of another knowing that he is entering in excess of permission given or being reckless whether he is entering in excess of permission, providing that the facts are available for him to consider - jury was satisfied that D knew he had entered in excess of the permission given to him
- controversial because it means that whether D is a trespasser depends on their mental state (ie whether at the point of entering they intended to commit a crime)
26
Q
R v Walkington [1979] 2 All ER 716
A
- entry in excess of implied permission amounts to trespass under s9 Theft Act - D is not absolved of burglary even if the thing he intended to steal was not there
- D entered into an unmanned counter in a department store before closing and opened the till which he found to be empty - sought to leave but was caught before he could
- D convicted for burglary under s9 Theft Act
- appeal dismissed - D was a trespassor
- Geoffrey Lane LJ - management had impliedly prohibited customers from entering the counter area and D was aware of this - jury was satisfied that D was a trespasser and intended to steal, so the fact there was nothing to steal was immaterial
27
Q
R v Valujevs [2014] EWCA Crim 2888
A
- s4 Fraud Act 2006 is not restricted to situations involving a breach of fiduciary duty
- the expectation in s4(1) in objective
- unlicensed gangmasters (labour suppliers) Ds made unwarranted deductions in their workers’ pay (excessive rent, unwarranted fines and penalties) - charged under s4 Fraud Act 2006 for fraud by abuse of position - acquitted on the basis there was no expectation that Ds safeguard the financial interests of their works - prosecution appealed
- CofA - appeal allowed - Ds were convicted
- Fulford LJ - the regulatory scheme applicable to gangmasters imposed a duty to not withhold payment due to a worker - as Ds “assumed responsibility for collecting the wages for a worker, or by exercising control over the wages that would be received by a worker at the point they are received’, there was an expectation that Ds will act in the financial interests of their workers and that the workers will receive their pay without unwarranted deductions” - “We stress, we have focused on the regulatory scheme that applies to gangmasters and whether or not the approach taken on this appeal will apply in future cases as regards others who, in different roles, take on the responsibility for collecting the wages of a worker, employed or self-employed, is not for this court to determine.” - expectation under s4 is an objective one based on the position of the reasonable man
28
Q
R v D [2019] EWCACrim 209
A
- residents liable to pay council tax were not under any general legal duty to notify the local authority of their continuing residence of the property in question so a judge was correct in making a terminating ruling where D had been charged under s3 Fraud Act for dishonestly failing to disclose that she was living in a property to avoid paying council tax
- D had lived in the property and paid council tax, then told the council she had moved out - Crown’s case was that she had stayed in the property and thus committed fraud by failing to disclose she was living in the property
- it could only fall under s3 if D failed to disclose something that she was under a legal duty to - prosecution argued that this duty was applied but judged rule it wasn’t - prosecution appealed
- appeal dismissed - Crown could not identify how it was implied that she had a duty
- local authorities had other options for remedy
29
Q
R v G and R [2004] 1 AC 1034
A
- overruled R v Caldwell - misinterpretation of s1 Criminal Damage Act - objective test replaced by a subjective one
- 2 boys (11 and 12) went camping without parental permission - set fire to some newspapers in the early morning under a wheelie bin outside a supermarket which then spread and burnt down the shop and adjoining buildings - convicted on the basis the risk would be obvious to a reasonable person - appealed unsuccessfully to the court of appeal (judge said he regretted having to dismiss the appeal due to the laws), then onto the house of lords
- charged under s1 Criminal Damage Act 1971 for reckless arson
- HofL held that Ds were not guilty of arson as they had not been reckless - unable to appreciate the risk due to their immaturity
- Lord Bingham - found the idea of caldwell recklessness “is capable of leading to obvious unfairness” - ‘It is neither moral nor just to convict a defendant (least of all a child) on the strength of what someone else would have apprehended if the defendant himself had no such apprehension.’
- “A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to—(i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.”
30
Q
Morphitis v Salmon [1990] Crim LR 48
A
- M removed the bar and clip of a barrier across an access road - convicted of criminal damage to the bar and clip
- appeal allowed - if the removal of a part caused damage or impairment to the whole structure that could constitute damage and there was no evidence of criminal damage to the parts removed
- had the info been framed so as to allege criminal damage to the whole barrier the prosecution would have succeeded because he impaired the structure of the barrier as a whole
31
Q
R v Hunt [1977] Cr, App. R 105
A
- D, believing that the council had been informed that fire alarms in a block of old people’s flats did not work but had done nothing, set fire to a bed in a fairly isolated part of the block, told his wife to get people out, summoned the fire brigade and broke the alarm to show it wasn’t working
- D convicted of arson
- appeal dismissed - the test of whether an act was done “in order to protect property belonging to another” within s5(2) of the Criminal Damage Act 1971 was objective - D’s act was not one which did or could in itself protect property
32
Q
R v Steer [1988] AC 111
A
- intention or recklessness in the Criminal Damage Act 1971 is directed to dangers to life caused by the damaged property and not by the way in which it is damaged
- D, after a disagreement with his business partner, went to his partner’s bungalow and fired shots from a rifle at 2 windows and the door - no injuries caused
- charged with damaging property with intent, being reckless as to whether life would be endangered, contrary to s1(2) of the Criminal Damage Act 1971
- D appealed and the appeal was upheld - the danger to life came from the rifle shots not the damaged property
- Crown appealed and was dismissed - the section was directed at danger to life cause by the damaged property not by the way in which was damaged
33
Q
R v Smith (DR) [1974] QB 354
A
- mistaken belief that damaged property belongs to oneself, even if unreasonable, is a good defence to criminal damage
- D mistakenly thought that structural additions he made to his rented apartment were part of his personal property and damaged them while seeking to remove them at the end of his tenancy - convicted of criminal damage contrary to s1(1) Criminal Damage Act 1971
- D appealed on grounds that the judge misdirected the jury to convict as honest though mistaken belief that the property was his own was not a lawful excuse
- appeal allowed - conviction quashed (CofA)
- James LJ - applying the ordinary principles of mens rea, the intention and recklessness and the absence of lawful excuse required to constitute the offence have reference to property belonging to another - no offence is committed if a person has honest though mistaken belief that the property is his own - as long as the belief is honestly held it is irrelevant to consider whether it was justifiable
34
Q
R v Denton [1981] 1 WLR 1446
A
- damaging one’s own property with fraudulent intent is not criminal damage, nor is damaging another’s property at their instance to serve their fraudulent intent
- D was told by his employer T to set fire to T’s business premises as part of an insurance fraud - convicted of criminal damage and arson under s1 Criminal Damage Act 1971 - judge thought T was not entitled to consent to the damage under s5 due to his fraudulent intent
- appeal allowed CofA - no offence was committed as D had a lawful excuse
- Lord Lane CJ - had T been charged, he wouldn’t have been convicted as damaging one’s own property is not an offence, thus it would be anomalous for D to be convicted - unnecessary for D to rely on s5 since he had a lawful excuse without it, in that T was lawfully entitled to burn the premises down and D believed it
