Week 8- robbery, burglary and fraud

Question 1

What is the AR of robbery?

Answer 1

AR= theft components
force
putting or seeking to put any person in fear of immediate force

Question 2

What 3 ways can robbery be committed in relation to force?

Answer 2

• 1) Where D uses force, and is no defence that V was unaware of the force eg being knocked out from behind
• 2) Where D ‘puts’ any person in ‘fear’ of being then and there subjected to force. Robbery does not require that V actually be put in fear, otherwise the commission of the offence would turn on the courage of the victim.
• 3) where the allocation is that D seeks to put V in fear of force. Therefore, no need for V to be in fear, nor apprehend force, it turns solely on Ds intention to make V apprehend force, even if V is not afraid at all.
• A threat of force may be implied as well as expressed

Question 3

Who can force be against in robbery?

Answer 3

Most cases have D using force against V, who is in possession of the property, but it can still be robbery where “if the only force used at the time of the [great train robbery] in 1963 had been on a signal man [rather than guard or train driver] this would under the act have sufficed.” It does not matter that the person threatened has no interest in the property or proprietary right.

Question 4

What is the MR of robbery?

Answer 4

• Robbery requires an intention to steal (purposive/ direct intent). D must use force or threaten it in order to steal, and merely accidental force would not be done in order to steal. It should be proved that D intended to use force against the person and not simply the property.
• D must intend to make V apprehend immediate force against the person, and Vs fear on account of being a pussy does not count as robbery unless D intended V to feel this way eg smash and grab robbery where the store assistant is scared but the thieves are unaware of his existence in the back room.

Question 5

What is the implication of force immediately before or at the time of stealing?

Answer 5

• Any limit on immediately before must be taken with regards to the theft as a whole. The fact V was attacked miles away from the depot whilst other defendants travelled there to steal the goods cannot preclude their liability for robbery.
• All force that was used in relation to the theft, in order to complete the theft, may be regarded as immediately before.
• It is not enough that D gets V to part with property by threatening to use force on a separate or future occasion; this might amount to black mail but not enough for robbery unless he is put in fear of force there and then.

Question 6

Which section of the theft act relates to burglary?

Answer 6

• Section 9 of the theft act 1968

Question 7

What 3 ways can burglary be committed and what 4 was can it be attempted?

Answer 7

Section 9(1)(a) describes 3 separate ways the offence can be committed (entering with intent to steal, commit GBH or unlawful damage) each of which can be domestic (dwelling) or not. ALL THESE OFFENCES ARE COMPLETED ONCE D ENTERS THE BUILDING WITH THE INTENT TO DO ONE OF THE THREE, EVEN IF HE DOES NOT SUCCEED IN DOING THEM

Section 9(1)(b) creates 4 separate offences of burglary (attempts to steal, stealing, attempt to do GBH and attempt to cause damage)

Question 8

What is defined as ‘enter’ in relation to a building?

Answer 8

It is now submitted that it cannot be required that D must have got so far into the building as to be able to complete his goal. It is enough that D enters through the bottom floor window with intent to commit GBH, even though his victim is on the fourth floor. The act of entry need not be substantial or effective entry; it seems to be left to the jury but the common law rule seems to be in continued operation.
- At common law if D inserted something into the building eg a hook to grab car keys through a letter box, this could constitute burglary if doing so was in order to do the prohibited act, but not if it was simply to gain entry. These technical rules regarding instruments entering a building laid down in the common law may be less simply applied by courts.

Question 9

What constitutes trespassing?

Can you be a trespasser with a honest belief as to the legal right to enter?

Answer 9

• Any intentional or reckless or entry into a building is a trespass if the building is in fact in the possession of another who does not consent to the entry. There must be a trespass in fact.
• D must intend or be reckless towards himself being a trespasser. If D is charged under s9(1)a), it need not be proved that D knew as a matter of law that he was a trespasser. It must, however, be proved that, when he entered, he knew the facts which caused him to be a trespasser, or at least be reckless to their existence. A mere negligent entry, as where D honestly but unreasonable believes it to be his own, is not enough to constitute burglary. D would also lack mens rea if he thought he had a legal right to enter eg D enters his ex-wifes matrimonial home intending to cause GBH, he is a trespasser but not guilty of burglary.

Question 10

What is the case of collins and what principles does it set?

What part of collins is not as representative of the law now?

Answer 10

Collins is the most important case here. V invited D into her home when he climbed her to her window via ladder in an attempt to rape her. He had a boner and it was contested whether he was ‘inside’ or ‘outside’ the window when she invited him in. They had sex and then she realised it wasn’t her boyfriend. His conviction was quashed on account that the judges held that the entry must be ‘substantial and effective’ but this doesn’t appear to represent the law now. If Collins knew that the victim didn’t know he wasn’t her boyfriend, he would be guilty have intentionally entered as a trespasser.

• Collins also sets out a principle that D knows facts or is reckless towards facts which would make him a trespasser.
• For D to be a trespasser, the entry now does not need to be substantial and effective for D to achieve their ulterior purpose.

Question 11

What problems arising regarding consent to trespassers?

Answer 11

• Did D know or was reckless as to any deception which allowed him to enter with consent, that he would otherwise not have had?
• Did D know or was reckless as to whether consent came from the relevant authority as to the property?

Question 12

What is the principle of Jones and Smith regarding limited consent?

Answer 12

• In Jones and Smith, the occupier’s son D, had general permission to enter his fathers house. He entered the house with E for the purpose of stealing, constituting burglary. D had knowingly exceeded the permission granted to him by his father. Even if D was not outside of his fathers permission, his accomplice certainly was. D had gone further than the general permissions which were granted to him, entering as a trespasser at the dead of night with the intent that he would steal or attempt to do so.

Question 13

Who is the victim in burglary? possessor or owner?

Answer 13

Possessor.

Question 14

How does trespass differ from buildings to vessels or vehicles?

Answer 14

• Vehicles and vessels are protected only when they are inhabited, although not necessarily at the time when the burglary takes place. Someone’s car doesn’t count as habited just because you’re in it when someone attempts to break in.
• Where D is a trespasser in a residential building or other building, this differs to vehicles or vessels because there is the requirement that they are inhabited, ie someone is using the vehicle or vessel as a home. Therefore, prosecution may have to prove that D knew or reckless towards someone living in the building.

Question 15

What is the mens Rea of burglary?

Answer 15

• Burglary requires that D knew or was reckless to the facts which render him a trespasser (Collins). If D had an honest belief of a right to enter, no matter how unreasonable, the prosecution would have to prove otherwise.
• It must be proved that D either:
  1) entered with intent to steal, inflict GBH or unlawful damage to the building or anything therein
  2) Entered and committed or attempted to commit stealing or inflicting GBH or unlawful damage
• It must be proved that D had the requisite intention upon entering; Ds intention may be conditional at the time of entry, but this is no defence. It is a crime of INTENTION and recklessness that entering the building as a trespasser will lead to the ulterior offence being committed won’t suffice

Question 16

Why does burglary with respect to a dwelling carry a higher sentence and what constitutes a dwelling?

Answer 16

• Since CJA 1991, burglary in respect of a dwelling has been a separate offence; a new form of aggravated burglary.
• Actus reus= Dwelling is to mean dwelling-house; house too narrow, so dwelling extends to protect a wider range of property. The crown has argued that a dwelling includes not only a building which is dwelt in but is capable of being dwelt in, although at the time it was not inhabited eg a vacant house for sale.
• Mens rea= as dwelling is an aggravating element in the offence warranting a higher maximum sentence, it should have an elevated MR, with a person guilty of simple burglary unless aware that it was a dwelling instead. Recklessness as in Collins should suffice, whereby he foresees someone might be living there, and therefore he’d be guilty of burglary with regards to a dwelling.

Question 17

What is aggravated burglary and what section of theft act relates to it?

Answer 17

s10 of theft act

A person is guilty of aggravated burglary if he commits any burglary and at the time has with him any firearm or imitation firearm, any weapon of offence or any explosive, and for this purpose
A) Firearm includes an airgun or air pistol, and ‘imitation firearm’ means anything which has the appearance of being a firearm, whether capable of discharge or not, and
B) Weapon of offence means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use, and
C) Explosive means any article manufactured for the purpose of producing a practical effect by explosion, or intended by the person having it with him for that purpose

Question 18

What 3 ways can an article be an article of aggravation for aggravated burglary?

Answer 18

they are either made for causing injury, adapted to cause injury, or an article with D for that purpose.

Question 19

What is the requirement that the article is had at the time of the commission of the burglary?

Answer 19

must be proved he had the article at the time of committing the burglary. Burglary is not aggravated merely because a weapon is used against the occupier outside the building or is held by an accomplice in a getaway car. It is not enough to prove an armed entry by D as a trespasser unless that entry is accompanied by one of the specified intents. If D, having no such intents to commit GBH, steal or do damage at the time he enters with the weapon, and then discards his weapon, he has not committed AB.

Question 20

What is the position where D carries an inoffensive weapon innocently?

Answer 20

• It has been decided that a person carrying an inoffensive weapon for an innocent purpose does not become guilty of having an offensive weapon because he uses that article for offensive purposes. The 1963 act is directed against the carrying of articles intended to be weapons, not against the use of an article as a weapon.

Question 21

What 3 ways can fraud be committed under the fraud act 2006?

Answer 21

The sections are: section 2 (fraud by false representation), b) section 3 (fraud by failing to disclose information) and c) section 4 (fraud by abuse of position)

Question 22

What does s5 of the fraud act 2006 say with regard to gain or loss?

Answer 22

• Gain and loss in relation to money or property, property extending to property in action and other intangible property.
• Vs loss with be Ds gain, as in they go hand in hand. However, ‘intent to cause loss’ is not superfluous, D may intend V to lose out, without any monetary or proprietary gain for himself eg where D lies to V to pay X. This increases the breadth of the offence; D may not make a gain at all, simply satisfied from the loss of V when he makes false representation, dishonestly and intending that V loses out.

Question 23

How attached must Ds actions be to Ds gain or Vs loss?

Answer 23

• There must be some causal connection between the section eg ‘non-disclosure of information’ which amounts to subsequent gain/loss. The remoteness of Ds “relevant section” to Ds gain or Vs loss is likely to be a matter for the jury. There must be intent to make the gain or see the loss via the relevant section (false representation, failing to disclose information, abuse of position.)
• The jury would have to be sure under, for example, s2 that: a) D make a representation that was untrue or misleading, and in relation to that representation b)D knew it was or might have been false c) that D made the representation dishonestly and d) that D, by making that representation, intended to make a gain/cause loss etc.

Question 24

What are the elements of fraud?

Answer 24

• Dishonesty
• intent to gain or cause loss or expose to risk of loss
• Do the above as a result of the dishonest behaviour.

Question 25

How does fraud differ to theft?

Answer 25

• Unlike theft, no requirement that there is permanent deprivation of Vs property. Eg a false representation in order to induce V to lend to D. (subject to dishonesty). It reinforces the notion that the offence is based around the wrongness of lying.
• It is sufficient that D intends V to be exposed to loss, even if he does not in fact incur a loss. D who makes a dishonest false representation on his health insurance form would be liable.

Question 26

What constitutes a false representation under s2?

Answer 26

• Dishonesty
• make a gain for himself or another
• or incur a loss or expose to a risk of loss
• false representation= untrue or misleading

Question 27

How has the law on fraud shifted from the common law to statutory law/

Answer 27

The law has shifted from a result based charge to a conduct-based charge (under old law, Ds conduct actually had to deceive V and caused V to do whatever act was appropriate to the offence charged. Therefore, D may be liable where his false representations have no bearing on V.

• The s2 crime is completed before the point in time at which any person acts in response to the false representation.
• No specific victim need to be identified, because no loss is required and no person needs to have believed or acted on account of D.

Question 28

What is the mens Rea of fraud?

Answer 28

Knowing that the representation is or might be false:

• Knowledge is a strict form of MR, more so than belief, suspicion, recklessness or reasonable grounds to believe. THIS IS A SUBJECTIVE TEST- REASONABLE PERSONS UNDERSTANDING IS NOT NECESSARY
• He will only be guilty if he is misleading or gives a falsity, in a way which is dishonest applying the understanding in ivey v genting.

Question 29

What is the requirement of D failing to disclose information under s3 of fraud act?

Answer 29

Requires that they are under a legal duty to disclose the relevant information, and they seek to gain off of this lack of information.

Question 30

Valujeys facts and significance:

Answer 30

Valujeys:- The defendants, Mr Valujevs and Mr Mezals, were unlicensed gangmasters who supplied agricultural work, transport and accommodation to migrant workers from Latvia and Lithuania. It was alleged that the defendants required workers to rent rooms from them as a condition of work, at rates far above the market cost. When workers were unable to keep up with these inflated payments, work was withheld. Once in significant debt, wages earned by workers were withheld or subject to deductions by the defendants in order to ‘pay back’ their financial debt.

Question 31

DPP v Ray on deception (before 2006 act)

Answer 31

DPP v Ray-The defendant had ordered a meal in a restaurant and had consumed it with an honest state of mind. He then discovered that he was unable to pay for the meal and remained silent as to his change in circumstances. The defendant waited until the dining area was clear of waiters before running out. The defendant was convicted under s16(2)(a) of the Theft Act 1968 (now replaced by the Theft Act 1978). The House of Lords held that the defendant had exercised a deception by remaining seated in the restaurant having decided not to pay. His remaining in this position created the implied and continuing representation that he was an honest customer who intended to pay the bill, thus inducing the waiters to leave the dining area unattended, giving him the opportunity to run off without
paying.

Question 32

Lambie-implied representation through credit cards etc

Answer 32

Lambie- The defendant used her own credit card knowing that authorisation had been withdrawn. She was convicted of obtaining a pecuniary advantage by deception from her bank under s16(2)(b). The conviction was upheld by the House of Lords on the basis that if the shop assistant had known the truth she would not have accepted the credit card in payment, hence the use of the card was an operative deception. The defendant could of course, call the retailer to give evidence that she was quite happy to accept the credit card in full knowledge of the defendant’s lack of authority, but the retailer is unlikely to want to run the risk of becoming an accomplice to the defendant’s fraud on the credit card company.
-Implied representation made when using credit/ debit cards that they have the righs to the card or that the card is legally and factually capable of payment.

Question 33

In fraud by abuse of position, what must that position be?

What is authoritative for this?

Answer 33

Fiduciary or akin to fiduciary. Some positions are inherently fiduciary whereas some positions might be exposed to fiduciary roles.
-Valujevs.