Q&A Criminal Law 2E © Mischa Allen, 2018. Chapter 6: Property Offences

Home , Actus reus, Fraud Act 2006, R v Collins, Theft, Theft Act 1968, Theft Act 1978

Allen: Q&A Criminal Law 2e

Chapter 6: Property Offences

Question 1

Jessica wants to buy a dress from her favourite clothes shop but she has no money. She goes home and sees her mother’s purse on the kitchen table from which she takes £30, intending to pay her mother back next month. She also borrows her mother’s Oyster Card which has been pre-paid to the value of £5. She returns to the shop and buys the dress for £21.00. The shopkeeper mistakenly thinks Jessica has handed her two £20 notes, whereas in fact it is one note for £20 and another for £10. She gives Jessica £19.00 in change. Jessica realises the error but decides to say nothing and spends the entire unexpected bonus on a pair of sandals to go with the dress. On her way home, she stops for a cup of coffee in a café and leaves before paying when the waitress goes into the kitchen. She then enters a supermarket and puts a large chocolate cake into her basket. She wants to take it home without paying but when she sees the security guard near the check out she puts it back on the shelf. Back home, Jessica picks some roses growing in a neighbour’s garden for her mother and replaces the Oyster Card in her mother’s purse. Her journey to and from town on the bus cost £4.50 on the Oyster Card.

Discuss Jessica’s criminal liability.

Answer guidance

A question requiring detailed application of section 1 of the Theft Act 1968 and the offence of making off without payment under section 3 Theft Act 1978. In relation to her intention in taking the Oyster card and the cash from her mother’s purse, students should discuss the interpretation of s6 Theft Act 1968, including the notion of goodness and virtue (Lloyd). In relation to the incorrect change, s5(4) of the Act should be discussed. Does this additional money ‘belong to another’ within the meaning of s5? The fact that Jessica realises the error but goes on to spend the money is relevant to dishonesty. This should be defined and applied (Ghosh). The case of Ivey v Genting Casinos has rejected the second limb of this test and has declared it to be inapplicable to criminal cases. Therefore, if the jury consider her to be objectively dishonest (having considered her subjective belief), she will be convicted, provided all the other elements of theft have been satisfied. On her behaviour in the supermarket, students should discuss appropriation (on the chocolate cake) and intention to permanently deprive once again. Finally, are the roses property under s4?

Question 2

Answer all parts.

(a) Christina sends Britney a £50 note as a gift because Christina believes that Britney has passed her Criminal Law examination. In fact, Britney has not passed it and knows that Christina is mistaken. She uses the £50 to purchase some bottles of wine.

(b) Kashif takes a £50 note from the cash register of his employer Ahmed on a Friday evneng because he has no money to go out with his friends that night. Kahif, who earns £400 per week working for Ahmed, is normally paid in cash on Saturdays. Kashif leaves a note in the cash register explaining that he has taken the money and that Ahmed should deduct it from the wages due to Kashif the following day.

Discuss whether theft has been committed in the above scenarios.

Answer guidance

The note is clearly property within the meaning of the Act. The notion of ‘belonging to another’, however, should be discussed here. Are there any grounds on which it could be argued that property in the money does not pass to Britney? Section 5(1). Is there an equitable interest? (R v Shadrokh Cigari). Section 5(4) may apply here. If Britney got the money by mistake she would be under an obligation to make a restoration of the amount to Christina. As the money was ‘given’ to Britney, the case of R v Hinks should be considered. Can Britney appropriate if there is a valid gift? Lord Hobhouse’s judgement on the transfer of property suggests that the property no longer belongs ot another once it has been transferred. The next step to discuss is dishonesty. Britney may seek to use s2(1)(a) Theft Act 1968. The Ghosh test will also be appropriate, though note that this has been modified. Her subjective belief may still be taken into account in the context of the objective test. The court said “…the fact-finding tribunal [or in the case of a criminal trial, the jury] must first ascertain… the actual [subjective] state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether

his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest”

Intention to permanently deprive is not an issue here as she clearly intended to do so by purchasing and consuming the wine – this will be a question of fact for the jury.

In the second part of the problem, students should discuss firstly the actus reus of theft which appears to be made out. Dishonesty should then be discussed. S2(1)(b) is likely to be most appropriate here. In relation to intention to permanently deprive, Kashif may argue that he was not intending to cause any real loss to Ahmed. R v Velumyl states that he did, however, intend to deprive him of the £50 in question. By taking the money and spending it, he is treating it as his own to dispose of regardless of Ahmed’s rights.

Question 3

Bill and George go out one night looking for houses to break into. They see that Doris, an elderly lady has left her front door open. They see Doris, who is partially sighted, through the window. Thinking that George is her grandson, Nathan, she asks him to come in. Once inside, George pushes Doris over. Meanwhile, Bill goes upstairs to see what there is to steal. He finds some cash in a drawer, and takes a small painting from the bedroom wall. On their way home, Bill and George see Trevor, an acquaintance, eating a sandwich on a park bench. They approach him and ask him if they have a cigarette. When he says no, George takes out a knife, and threatens Trevor, who hands over £20. Bill and George run away. George says that he only took the money as Trevor owed him £15. Bill says that he only took the cash and the painting from Doris’ house as George said that he had to or he would tell the police about other times they had stolen things from people’s houses. Bill feels guilty and sends the money and the painting back to Doris by post.

Advise the CPS of any property offences committed by Bill and George.

Answer guidance

A question on a number of property offences. The first to consider is burglary. Has George ‘entered the property? (R v Collins). Section 9(1)(b) burglary is appropriate here due to the offences he commits once inside. All elements of the actus reus and the mens rea of this offence must be discussed. In relation to Trevor, the offence of robbery should be discussed. Dishonesty – s2(1)(a) and R v Robinson. Does George have a subjectively held belief that he had the right in law to deprive Trevor of this money? Students should also discuss the timing of the incident. Do they exert force in order to steal? Will this afford him a valid defence? Did he intend to permanently deprive Doris of the property given that he posts it back to her? Finally, the defence of duress should be considered. Hasan precludes a defendant from benefitting from the defence if he ‘voluntarily associates with criminals.

Question 4

Jemima asks Billy for a quotation to build a conservatory at her house, having seen his advertisement in the local paper stating, ‘Billy the Builder – a name you can trust. Experience, reasonable prices and quality workmanship guaranteed.’ Billy has just set up his own business after leaving college with a diploma in gardening. He tells her the materials will cost £15,000 and the Guild of Master Conservatory Builders requires him to charge her £5,000 for her labour charges. In fact, there is no such Guild.

Jemima agrees to hire him to build her conservatory. Billy goes to the local DIY store to buy the materials which cost him £5,000. Knowing he has insufficient credit on his credit card, he uses his father’s credit card for which he knows the PIN number. Before entering the store, he is approached and asked if he would like his van cleaned for which he must pay £5 when he leaves the store. He agrees. When he leaves the store, he sees that his van had been washed but he drives off without paying.

When he returns to Jemima’s house to start work, she is just leaving. She tells him that she has left some money on the kitchen table to pay the milkman. When the milkman calls later that morning, Billy tells him Jemima did not leave any money for him. Billy then uses the money to put a bet on a horse in the 3.30 race at Upsom.

Three weeks after completing the building job, the conservatory falls down and Jemima has to have it rebuilt.

Discuss the liability, if any, of Billy.

Answer guidance

A question dealing with various offences under the Fraud Act 2006, the Theft Act 1968 and the ~Theft Act 1978 (making off without payment). The advertisement may consist of a false representation under s2(2) of the Fraud Act 2006. In addition, mens rea must be shown. This consists of an intention to make a false representation, dishonesty (using the common law test in Ghosh as amended by Ivey) and an intention to make a gain or cause a loss. He may also have committed fraud by abuse of position (section 4). Driving off the van without paying constitutes an offence under s11, s2 or s3. His intention to avoid payment when he leaves the store is self-evident. If he initially intended to pay but subsequently changed his mind, his

offence will be ‘making off without payment’ according to s3 Theft Act 1978. It applies wherever goods or services are supplied for which payment on the spot is required or expected and D dishonestly makes off without having paid as required with intent to avoid paymentThe use of the credit card will also constitute a fraud under s2. Billy will have made an implied false representation to the cashier that he has the credit card company’s authority to use the card (Lambie [1982]). Billy was both knowing and dishonest as to that falsity and it was made with an intent to make a gain or cause or expose another to the risk of loss. A reasonable jury is likely to find that he did so dishonestly. Billy appears to be guilty of several fraud offences, one offence contrary to s3 Theft Act 1978 and one offence of theft contrary to s1 Theft Act 1968.