Week 9 - Handling Stolen Goods, Fraud, POCA, Crim Dmg

Question 1

Handling stolen goods

S22 theft act

Answer 1

A person handles stolen goods if (otherwise than in the course of stealing) knowing or beleiving them to be stolen goods he dishonestly RECEIVES the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the ‘benefit of ANOTHER person’, or if he arranges to do so.

• The defendant MUST know or beleive the goods to be stolen (suspicion is not enough).
  The goods MUST be handled dishonestly (dishonestly to be determined as per R v gosh)
• If the goods have not been stolen yet then the offence of handling has not been committed… and the offence of consipracy should be considered instead

Question 2

Handling stolen goods

What are ‘goods’

Answer 2

Includes money and every other description of property (except land), and things severed from land by stealing.

Includes a ‘thing in action’

Question 3

Fraud.

Committed 3 ways

S2, s3, s4 fraud act 2006

Answer 3

S2 - by false representation

S3 - by failing to disclose information

S3 - by abuse of position

Question 4

Fraud

Fraud offences are committed when the defendant carries out the actus reas of the offence intending to make a Gain for himself or another, and /or to cause loss to another.

S5 states what about gain and loss?

Answer 4

Gain and loss extends only to gain and loss in ‘money’ or ‘other property’

Includes any such gain or loss whether temporary or permanent

Property means any property whether real or personal, including ‘things in action’ and other intangible property (intellectual property)

Gain includes a gain by keeping what one already has as well as getting what one does not have

Loss incudes a loss by not getting what one might get, as well as a loss by parting with what one has

In all 3 fraud offences (S2,3,4) the gain and/or loss do not actually have to take place

Question 5

S2 fraud act

Fraud by false representation

Answer 5

If he:
Dishonestly malkes a false representation and
Intends by doing so:
To make a gain for himself or another
OR
To make a loss to another or expose another to the risk if loss

A representation is false if:
It is untrue or misleading and
The person making it knows that it is, or might be, untrue or misleading

Representation means any representation as to fact or law, including a representation as to the state of mind of the person making the representation or any other person

A representation may be express or implied

For this section a reresentation may be regarded as made if it is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention)

This offence would include phishing… sending out emails in bulk purporting to represent a well known brand in the hope of obtaining bank account details

Question 6

Fraud… dishonesty

Answer 6

Refers to the dishonesty test in R v gosh

Question 7

Fraud..

A representation is false when?

Answer 7

A representation is false if it is untrue or misleading AND the person making it KNOWS this is or that it might be the case.

An untrue statement made in the honest belief it is true would not suffice

Question 8

Fraud

Representation may be express or implied and can be communicated in words or conduct

It may be implied by conduct.. example

Answer 8

Person dishonestly misusing a credit card, hands the card to a cashier without saying anything… by handing the cars to the cashier they are falsely implying they have authority to use it.. therefore the offence is complete immaterial as to if the cashier accepting the card is deceived by the representation. The cashiers state of mind plays no part in the commission of the offence

Question 9

Fraud by false rep

The offence is complete the moment the false representation is made.

Answer 9

The representation need never be heard or communicated to the recipient.

If the false representation is carried out by post, the offence would be complete when the letter is posted

Question 10

Fraud by false rep…

A representation may be proved be inference….

I e

Answer 10

If an imposter presents themselves to a driving school and takes a test in A’s name, it could be inferred that A was complicit in any false representation made by the imposter with a view to gaining a pass certificate in his name.

Or

If an elderly person gets quoted vastly more for a job (ie gardening) than it is worth, it may be open to a court to infer that the person quoting the work must have dishonestly misrepresented the value of the job.. even if there is no evidence of any such misrepresentation.

Question 11

Considering s24(4) of theft act (stolen goods in respect of handling stolen goods)…

Are items obtained by blackmail or fraud considered as stolen for the purposes of a handling stolen goods offence?

Answer 11

Yes. Goods obtained by blackmail or fraud are included in the definition of stolen goods

Question 12

Stolen goods under s25 theft act are those which directly or indirectly represent the stolen goods in the hands of the thief or handler, or the original goods themselves

Answer 12

I.e
Any money received or item exchanged for stolen goods would be classed as stolen in the hands of the thief (the thief sells/swaps the items he stole)…
And

If the person who then takes (handles) the stolen items, knowing they are stolen, then exchanges the stolen item for something else.. the something else is also considered as stolen whilst they remain in the hands of the handler.

(If the exchanged goods pass to another person who has no idea as to the goods origin then they cease to be stolen)

Question 13

Fraud.. making a false instrument

What section defines an instrument?

Whats is / isnt an instrument as defined by this section?

Answer 13

Documents
Stamps
Inland revenue stamp
Any disc tape or other device on which info is recorded or stored by mechanical electronic or other means
A mark denoting payment of postage which a postal operator authorises instead of a stamp

Currency is NOT an instrument for the purposes of the act.

Hacking (of a computer) CANNOT amount to forgery (as the reference to a tape/disc/other device when considering what is an instrument does not extend to electronic impulses keyed into a computer)

Question 14

Fraud by false representation…

S2 fraud act

Answer 14

.

Question 15

Fraud.

S12 obtaining services dishonesty

Answer 15

This is a result crime.

It requires the actual obtaining of a service for himself or another by a dishonest act.

That the person obtaining the services knows they are being provided on the basis that payment has been or will be made BUT intends that payment will not be made, or will not be made in full.

The services are obtained if they are made on the basis that payment has been or will be made.

This offence does NOT require deception or fraudulent representation.

If services are normally provided for free then no offence has occurred (i.e voluntary work offered to elderly people without payment.. if a young person decieves the service provider into providing their service to them, they have not committed this offence as the services are not usually paid for. It doesnt matter that the young person obtained the service by deceit )

Question 16

S7 fraud act

Making or supplying an article for use in frauds

If a person offered to supply an article for use in fraud, would this offence be commited?

Answer 16

Yes.

Offering to supply an article for use in frauds is similar to offering to supply drugs.. it doesnt matter if you actually have the goods , what matters is that the offer was made

Question 17

Forgery offences

S1, 2 3 & 4 forgery and counterfeiting act

Answer 17

S1 - making a false instrument ‘with intent’

S2 - copying a false instrument ‘with intent’

S3 - using a false instrument ‘with intent’

S4 - using a copy of a false instrument ‘with intent’

All involve ‘Intent’.
There must be the intent that ‘he or another’ shall use it to induce someone into accepting it as genuine in order to do or not do some act to his own or anothers prejudice.

S1 - It doesnt matter if the instrument is never used, the offence is committed by making it with the intent for him or another to use it.

Question 18

S27 theft act allows for admissibility of previous misconduct in relation to the offences of handling and theft

Answer 18

States that… Evidence that the defendant has, within the previous 5 years of the charge date, been convicted of theft or handling stolen goods, shall be admissible that they knew or beleived the goods to be stolen.

And also.. where there is evidence that he has had in his posession or has undertaken/assisted in the retention, removal, disposal or realisation of stolen goods from any theft in the 12mths prior to his charge date… this shall also be admissible that je knew or believed the goods to be stolen

This admissibility can only be used where handling is the ONLY offence in the proceedings.

Question 19

S6 fraud act

Posession or control of articles for use in frauds

Answer 19

Only commited in respect of future offences… NOT in respect of offences that have already taken place.

So if a person has a phishing kit at home that he used last week to obtain bank details, this offence would not apply as the items had already been used to commit a fraud…

This offence would only apply if he was going to use them in the future.

Question 20

Under s24 theft act… when do stolen goods cease to be stolen?

Answer 20

When they are restored to the person from whom they were stolen , or to other lawful posession or custody .

Question 21

S3 criminal damage…

having articles with ‘intent’ to destroy or damage property

Answer 21

A person having anything in their custody or under their control ‘intending’ without lawful excuse to use it or cause or permit another to use it…
A) To destroy or damage any property belonging to another
or…
B) To destroy or damage his own or other users property in a way which he knows is likely to endanger the life of some other person

Question 22

Criminal damage

Circumstances of having a Lawful excuse…. as per s5(2) criminal damages act

Answer 22

2 occasions whereby defendant may have lawful excuse.. remember this as permission and protect

Permission…
If believed at time that the person he believes to be entitled to consent to the damage/destruction had or would have consented

Protection
If a person damages property (or intended, caused or permitted another to do so) in order to protect property belonging to himself or another (or right/interest in the property) and believed at the time of the act that the property was in ‘immediate need of protection’
And
That the means of protection adopted or proposed were or would be reasonable having regard to all circs.

Key to this is the immediate need to protect property and the reasonableness of the means of protection adopted

Question 23

S1 Criminal damage

How is Property defined in s10 criminal damages act ?

Answer 23

S1)
A person without lawful excuse destroys or damages property belonging to another
Intending to destroy/damage it or
Being reckless as to whether it would be destroyed/damaged

‘Property’
s10 - property of a tangible nature whether ‘real or personal’, including:
Money
Wild creatures which have been tamed (i.e pets, farm animals) or are ordinarily kept in captivity, or carcasses if they have been reduced to posession

So. the differences in the meaning of property for crim dmg vs theft are…..
land and things attached to land can be damaged (even though it cannot be stolen)
But intangible items such as a copyright cannot be damaged (even though it can be stolen)

Does NOT include:
Wild flowers, foliage, fruits, or mushrooms growing wild on any land

Question 24

Criminal damage act 1971

S1 (1)

S1 (2)

S1 (3)

S2

S3

Answer 24

S1(1)
Simple damage
A person who without lawful excuse destroys or damages property belonging to another intending to destroy or damage any such property, or being reckless as to whether such property would be destroyed/damaged

S1(2)
Aggravated criminal damage
Destroys or damages any property whether belonging to himself or another
A) intending to destroy/dmg or being reckless AND
B) intending by the destruction/dmg to endanger life of another or being reckless

S1(3) arson.
Destroying/damaging property by fire.

S2 -
Threats to destroy or damage property
Makes a threat ‘intending’ that the other or a 3rd person would fear it would be carried out
A) to destroy/dmg any property belonging to the other or a 3rd person
B) to destroy/dmg his own property in a way which he knows is likely to endanger the life of the other or 3rd person

S3 -
Having articles with ‘intent’ to destroy /damage property
Has anything in his custody or under his control intending to use it or cause or permit another to use it
A) to destroy/dmg property belonging to another or
B) to destroy/dmg his own or the users property in a way which he knows is likely to endanger the life of some other person