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Criminal Law Criminal Law Theft & Fraud Begin by identifying the defendant and the behaviour in question. Then consider which offence applies: •! Theft •! Fraud •! Making off without payment Theft (S1(1) Theft Act 1968) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. Actus Reus Appropriation of property belonging to another •! Appropriation: Assumption of the rights of an owner amounts to an appropriation, including where a person comes by the property (innocently or not) without stealing it, and later assumes the right to it by keeping or dealing with it as owner (S3(1) Theft Act 1968) →! DPP v Gomez – Consent of the owner is irrelevant as to appropriation →! R v Morris – Switching the price labels so as to pay less for meat was considered appropriation →! R v Hinks – The acquisition of an indefeasible title to property (gift) is capable of amounting to an appropriation →! R v Briggs – Appropriation involves some contact with the property, not sufficient to cause victim to use property in a manner beneficial to the defendant →! R v Atakpu – Cannot steal property more than once – although appropriation can be continuous Criminal Law •! Property: This includes money and all other property, real or personal, including things in action and other intangible property (S4(1) Theft Act 1968) →! Smith, Plummer and Haines – Includes prohibited drugs unlawfully in the complainant’s possession →! Chan Man-sin v R – Things in action i.e. intangible property, are capable of being stolen e.g. copyright and bank account →! R v Navvabi – Can also be an overdraft/theft from bank →! Oxford v Moss – Cannot be confidential information as this isn’t property within the meaning of the Theft Act 1968 →! Low v Blease – Cannot steal electricity as electricity is not property •! Belonging to another: Property also belongs to anyone who has possession or control of the property other than the owner (S5(1) Theft Act 1968) – but doesn’t include abandoned property →! R v Turner – A person can steal his own property i.e. when it is in the lawful possession of another →! S5(3) Theft Act 1968 – Where a person receives property from another, and is under an obligation to the other to retain and deal with that property in a particular way the property as belonging to the other Mens Rea Dishonesty and intention to permanently to deprive •! It has to be established that: a)! the defendant was dishonest; and b)! he had an intention permanently to deprive the owner of the property Criminal Law •! Dishonesty: There is no definitive definition in the Theft Act 1968 but considerations will be made of the provision under S2(1), S2(2), and the Ghosh Test. −! S2(1) the Act provides three situations which, if applicable, mean that the defendant is not dishonest: a)! Right to property – there was in law the right to deprive the person; or b)! Belief in Consent – the owner would have consented; or c)! Owner not Discoverable – the owner could not have been found by taking reasonable steps. −! S2(2) provides that appropriation of property belonging to another may not dishonest if he is willing to pay for the property. It’s a question of fact for the jury −! Gosh Test: the Ghosh test requires the jury to ask themselves two questions: a)! Was what the defendant did dishonest according to the standards of reasonable and honest people? b)! If so, did the defendant realise that reasonable and honest people would regard what he did as dishonest? •! Intention to Permanently Deprive: The defendant must also have the intent permanently to deprive the other of the property that he has appropriated. The ordinary meaning will usually be taken i.e. to permanently lose the item →! S6(1) Theft Act 1968 – Treating the item as his own to dispose of regardless of the owner’s rights will amount to intention to permanently deprive →! S6(2) Theft Act 1968 – Parting with an item under the condition as to its return which the defendant may not be able to perform is also an intention to permanently deprive Criminal Law →! Chan Man-sin – Even if the bank will reimburse the victim, it is still possible to permanently deprive them of their account balance →! R v Velumyl – Taking money from someone (in this case an employer) intending to repay it is an intention permanently to deprive →! R v Lloyd – Taking a film to make pirate copies and returning was held to be borrowing as the goodness and practical value remained intact The AR and MR must coincide e.g. if property had passed on to defendant by the time he made out the MR for theft, he will not be liable (Edwards v Ddin). Fraud (S2 Fraud Act 2006) The 2006 Act creates a general offence of fraud which can be committed in three different ways. Under s 1 of the Act, the general offence can be committed: a)! by making a false representation; b)! by failing to disclose information; c)! by abuse of position Fraud by False Representation Actus Reus •! Making a representation →! R v Lambie – Use of credit cards can amount to fraud where the defendant has exceeded limit but continues to pay with it →! DPP v Ray – Eating at a restaurant can imply means and intention of paying through conduct, thus it can amount to a representation →! S2(4) Fraud Act 2006 – A representation may be express or implied Criminal Law →! S2(5) Fraud Act 2006 – A representation may can be made to any system or device designed to receive, convey or respond to communications (with or without human intervention) •! That is false – in the circumstances and no consequence must follow →! S2(2) Fraud Act 2006 – False if it is untrue or misleading, and the person making it knows that it is, or might be, untrue or misleading →! Explanatory Note 13 – It is immaterial whether anyone was in fact misled by representation Mens Rea •! Dishonesty: use Gosh test (Explanatory Note 9) – a)! Was what the defendant did dishonest according to the standards of reasonable and honest people? b)! If so, did the defendant realise that reasonable and honest people would regard what he did as dishonest? •! Intend, by making the representation, to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss (S5 Fraud Act 2006) •! Knowledge that the representation is untrue or misleading, or knows that it might be so Making off without Payment (S3(1) Theft Act 1978 Actus Reus: •! Goods must be supplied or a service done Criminal Law →! S3(3) Theft Act 1978 – Will not apply where the supply of the goods or the doing of the service is contrary to law, or where the service done is such that payment is not legally enforceable •! The defendant must make off from the spot where payment is required →! S3(2) Theft Act 1978 – Defines ‘payment on the spot’ as including payment at the time of collecting goods on which work has been done or in respect of which service has been provided •! Without paying as required or expected (includes paying with a worthless or stolen card unless supported by a cheque guarantee card) Mens Rea: •! Dishonest – Ghosh test a)! Was what the defendant did dishonest according to the standards of reasonable and honest people? b)! If so, did the defendant realise that reasonable and honest people would regard what he did as dishonest? •! Knowledge that payment on the spot was required or expected •! Intent to avoid payment →! R v Allen – Defendant not liable if he intends to come back and pay later. Will only be liable if he intends to avoid payment permanently →! R v Vincent – It is a defence where the defendant has acquired an agreement to pay in the future .
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