- Created by: KDallers-
- Created on: 15-06-18 12:55
THEFT - ACTUS REUS
Defined under s1 of the Theft Act 1968: 'the dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it
s3 - APPROPRIATION - defined as 'the assumption of the rights of the owner' - this has to be ANY of the rights, not ALL - Morris; if the owner consents to the appropriation, an appropriation can still be established - Lawrence; even consent WITHOUT deception can be an appropriation - Hinks, Gomez; Initial and subsequent - initial - taking something; subsequent - ie borrowing a film, and not returning it
s4 - PROPERTY - 'money and all other property, real or personal, including things in action and other intangible property' - coins and banknotes (not the value of money but the actual note), real property (buildings etc - Cleckheaton), personal property (physical and moveable object), things in action (ticket) or intangible property (not confidential information - Oxford v Moss)
s5 - BELONGING TO ANOTHER - anyone 'in possession or control, or having a proprietary right or interest' in the item - posession or control (can steal own car - Turner No.2); s5(3) - if 'person receives property from another, he is under an obligation to retain and deal with that property in a particular way' - can be for COMMERCIAL GOODS (charity - Wain), or for SOCIAL AND DOMESTIC PURPOSES (Davidge v Bunnett); s5(4) - if person 'acquires property by another's mistake, he is under an obligation to make a restoration to the original owner' - AG's Ref. 1
THEFT - MENS REA
The mens rea of theft is DISHONESTY and INTENTION TO PERMANENTLY DEPRIVE
s2 - DISHONESTY - this can be satisfied by applying the 2-part Ghosh test - first part is OBJECTIVE - Was the action dishonest by the ordinary standards of the reasonable and honest people?; SUBJECTIVE - Did D realise that what he was doing was dishonestby those standards? - APPLY TO THE SCENARIO - exceptions - s2(1)(a) - if D believed he had a right in law to deprive the other of it, s2(1)(b) - if D believed he would have V's consent given the circumstances, s2(1)(c) - if person to whom the property belongs to cannot be discovered by taking reasonable steps
s6 - INTENTION TO PERMANENTLY DEPRIVE - if 'D's intention is to treat the thing as his own to dispose of, regardless of the other's rights' - MONEY - if the banknotes are taken, but replaced later, this is still an IPD - it is the banknote, not the value - Velumyl; borrowing is not an IPD unless it is borrowing for a period equivalent to keeping it - Lloyd; can be an IPD even if you make an attempt to return - Raphael
CONDITIONAL INTENT - Easom - not enough for theft, but enough for burglary (s9(1)(a) - ie picking up a bag, and putting it back down again
THEFT - SUMMARY
Intro and definition
s3 APPROPRIATION - Morris rule, then apply Lawrence or Gomez if relevant, and initial and subsequent appropriation if necessary
s4 PROPERTY - definition and apply money, real property, personal property, things in action or intangible property
s5 B2A - apply definition; then apply Turner rule if necessary, or s5(3) (obligation to retain and deal) Wain, Davidge or s5(4) (obligation to make restoration) - AG's Ref
s2 DISHONEST - apply 2-part Ghosh test - OBJECTIVE then SUBJECTIVE, and apply either s2(1)(a) (right in law), s2(1)(b) (consent) or s2(1)(c) (cannot find owner) if relevant
s6 IPD - apply definition, and then apply Velumyl rule regarding money, or Lloyd rule if the property has been rendered useless when returned
CONCLUSION - may be liable - DEFINE AND APPLY
Defined in s9 of the Theft Act 1968 - can be under s9(1)(a) or s9(1)(b) - DO BOTH IF POSSIBLE - first, must enter a building as a trespasser
ENTERS - D must make 'effective entry' - Brown - this can be any entry at all - Ryan
BUILDING - a building must have 'some permanence' - Leathley, and can be 'part of a building' - Walkington - this includes an inhabited vehicle or vessel - s9(4)
TRESPASSER - if D has permission to enter, he is NOT a trespasser - Collins, however if D goes beyond his permission, he is a trespasser - Smith and Jones
s9(1)(a) - 'when D enters a building or part of a building as a trespasser WITH INTENT to steal, cause gbh or do unlawfl damage' - this must be at the point of entry - APPLY in the scenario
s9(1)(b) - 'when, having entered a building or part of a building as a trespasser, D STEALS/ATTEMPTS TO STEAL, or inflicts or attempts to inflict GBH - D must have MENS REA for being a trespasser too
CONDITIONAL INTENT - Easom - not enough for theft, but enough for burglary (s9(1)(a) - ie picking up a bag, and putting it back down again
Defined in s8 of the Theft Act 1968 - effectively theft with force - a completed theft, and force used, with intention for the theft and intention to use force to steal
COMPLETED THEFT - must be a completed theft - Corcoran v Anderton
USE/THREAT OF FORCE - D must use force, or threaten the use of force - can be even minimal force - Dawson and James, - force can be on ANY PERSON or even PROPERTY - Clouden
AT THE TIME/IMMEDIATELY BEFORE - force must be used at the time/immediately before the theft - can be while escaping as APPROPRIATION is a CONTINUING ACT - Hale, Lockley
MENS REA - D must have the mens rea of theft - normally already done - DISHONESTY and IPD
INTENTION TO USE FORCE TO STEAL - the use of force must enable D to steal - ie knocking someone down to steal their wallet, NOT knocking someone down and then deciding to steal their wallet
Defined under s21 of the Theft Act 1968 - defined as 'the making of an unwarranted demand with menaces, with a view to gain or intent to cause loss - described in Hadjou as 'attempted murder of the soul'
DEMAND - a demand must be made in any form - can be words, conduct, writing or an email - Collister and Warhurst - doesn't need to be a direct demand; Treacy - demand doesn't need to be received
UNWARRANTED - the demand is unwarranted unless 2-part test is satisfied - Harvey: 1) D had reasonable grounds for making the demand, and 2) the use of menaces as a proper means of reinforcing the demand - BOTH TESTS must be satisfied - apply
MENACES - 'a serious threat' must be made - 'menaces' are an ordinary word which the jury can understand - Lawrence and Pomroy - definition of menaces in Clear: words that 'the ordinary person of normal stability and courage might be influenced by, or made apprehensive so as to unwillingly accede to it' - V doesn't need to be made apprenhensive - as long as THE ORDINARY PERSON WOULD ACCEEDE
VIEW TO GAIN/INTENT TO CAUSE LOSS - defined under s34 - GAIN by 'keeping what one has' and 'getting what one has not', and LOSS by 'not getting what one might get' and 'parting with what one has' - ONLY ONE NEEDS PROVING - this also refers to property - only needs intention to cause gain/loss - Bevans
FRAUD BY FALSE REPRESENTATION
Defined in s2 of the Fraud Act 2006 - 'dishonestly makes a representation that is false, and intends by making the representation to cause a gain or loss'
REPRESENTATION - either EXPRESS (writing, speaking, letters etc) - Silverman; or IMPLIED (by D's conduct) - Barnard; representations include misuses of a credit card - Lambie, paying for a meal (Ray) or paying by cheque (Gilmartin) - s2(5) - can PAY BY A MACHINE
FALSE - can be untrue or misleading - if is not untrue, apply government definition of misleading - 'less than wholly true and capable of interpretation to the detriment of the victim'
DISHONESTY - apply 2-part Ghosh test - OBJECTIVE, THEN SUBJECTIVE - NB no Theft Act 1968 exceptions here - so discuss
KNOWLEDGE - D must know that the representation is untrue/misleading - a subjective test, apply to scenario
GAIN/LOSS - of property - in s5 of the Act - money is a thing in action in this respect - gain - 'keeping what has/getting what one does not have' - loss - 'not getting what one might get/parting with what one has' - APPLY - FRAUD DOESN'T NEED TO SUCCEED - LAVERTY
OBTAINING SERVICES DISHONESTLY
Defined in s11 of the Fraud Act 2006 - involves obtaining a SERVICE by dishonest means ie watching a football match without paying, or getting a haircute without paying
AN ACT OBTAINING - MUST BE AN ACT - D must do something to obtain the services - the services must actually be obtained - ie getting hair cut or getting a massage - intention is not enough
SERVICES - a service must be obtained, not a good - for example, football match, using a false bus pass, claiming you are 16 to get a younger cinema ticket etc.
DISHONESTY - apply the 2-part Ghosh test - OBJECTIVE, then SUBJECTIVE
KNOWLEDGE - D must know that the services are available on the basis that payment will be made - ie having a builder fix the house, or getting your car fixed
INTENT TO AVOID PAYMENT - must be at the time of payment - can't be satisfied if someone else has paid - intention to PERMANENTLY AVOID PAYMENT - Allen
NB - OSD COMES WITH FRAUD MOST OF THE TIME
MAKING OFF WITHOUT PAYMENT
Defined under s3 of the Theft Act 1978 - replaced 1968 Act - issues with petrol cases - Greenberg
D MAKES OFF - D must completely leave the scene where payment is expected - if D stays on the premises until he is forcibly removed, he has not made off - MacDavitt
GOODS SUPPLIED - there is no liability if provision of the service is not completed - ie going for a hair cut but not finishing the hair cut - Troughton (taxi service example)
PAYMENT REQUIRED - payment for the service must be required on the spot - if the payment is not required there and then, there is no liability - Vincent
D HAS NOT PAID - if D has not paid satisfying all other elements, actus reus committed
DISHONESTY - applying 2-part Ghosh test - OBJECTIVE, then SUBJECTIVE
KNOWLEDGE - D must know that payment is required on the spot - SUBJECTIVE TEST
INTENT TO AVOID PAYMENT - D must intend to permanently avoid paying - Allen - paying in the near future does not satisfy this
NB - MOWP COMES WITH FRAUD MOST OF THE TIME
BASIC CRIMINAL DAMAGE
Set out in s1 of the Criminal Damage Act 1971 - creates 4 offences - criminal damage, aggravated criminal damage, arson and aggravated arson - basic offence defined as 'a person who, without lawful excuse, destroys or damages property belonging to another intentionally or recklessly'
DESTROYS/DAMAGES - this is not defined - although destroy means rendering property useless, and damage means something that will cost time, effort or money to repair - Fiak, Roe v Kingerlee; MORPHITIS V SALMON (impairing usefulness, very little damage scenarios)
PROPERTY - s10(1) - defined as 'all tangible property, real or personal, including money' - includes lots of things, but doesn't include intangible property
BELONGING TO ANOTHER - s10(2) - belongs to anyone 'in custody or control, having a proprietary right, interest or charge' - this is obvious, so apply to the scenario
INTENTION - intent to do damage - Pembliton - simple Mohan definition, or Woollin
RECKLESSNESS - this is now A SUBJECTIVE TEST - G+R - regular Cunningham definition applies for this - was D aware of the risk?
LAWFUL EXCUSE AND AGGRAVATED CRIMINAL DAMAGE
LAWFUL EXCUSE - these can only be pleaded FOR THE BASIC OFFENCE - in s5(2)(a) of Act
s5(2)(a): if D believes that the other party WOULD CONSENT to the damage - Denton - but NB - Jaggard v Dickinson - if D is intoxicated and believes D would consent, STILL ALLOWED
s5(2)(b): if D causes property in order to PROTECT OTHER PROPERTY - can plead - if D honestly believes property is in immediate need of protection - however, cannot be used for people - ONLY PROPERTY - Baker and Wilkins - reasonable methods must be used - Hunt
AGGRAVATED CRIMINAL DAMAGE - in s1(2) of the Act - in exam, do aggravated offence first - D must also endanger life and have mens rea for endangering life - NO LAWFUL EXCUSES
ENDANGERS LIFE - 'danger to life must come directly from the damage to property' - Steer - apply; NB - the damage does not actually have to endanger a life - just potential to - Sangha
MENS REA - often D does not intend to endanger life - intention is Mohan/Woollin and Pembliton - however, D may be reckless about doing this - G+R and Cunningham - subjective test, so apply the circumstances. ARSON - same as basic/aggravated damage, but is DAMAGE BY FIRE - can arise from an omission - Miller - a 'failure to act'
Asks three questions of the defendant - DID D HAVE MENS REA? WAS THE INTOXICATION VOLUNTARY OR INVOLUNTARY? WAS THE OFFENCE ONE OF BASIC OR SPECIFIC INTENT?
For specific intent offences, if D was voluntarily intoxicated to the extent where he did not know what he was doing (no mens rea) - he is not guilty of the specific intent offence, but guilty of a 'fallback' offence - SHEEHAN AND MOORE
If D did have mens rea when he was voluntarily intoxicated (ie drinking for 'dutch courage'), he is still guilty - Gallagher
If D was involuntarily intoxicated, but he still had mens rea for the offence, he will be guilty - Kingston (harsh rule) - child molestor had drink spiked and abused a child - guilty
If D was involuntarily intoxicated, but did not have mens rea for the offence, then he will not be guilty and will be acquitted - Hardie
BASIC INTENT OFFENCES - if D is pleading intoxication for a basic intent offence, then voluntary intoxication cannot be pleaded as getting intoxicated is a reckless course of conduct - Majewski. So - VOLUNTARY/INVOLUNTARY - DID D HAVE MENS REA - BI OFFENCES
Set out in s76 of the Criminal Justice and Immigration Act 2008 - asks - was the use of force necessary, reasonable and proportionate?
NECESSARY - if the attacker was in retreat, it is unlikely the force was necessary (Hussain) - all the circumstances are relevant here - if D was threatened, the force was likely necessary. NB - if D makes a genuine mistake in assessing V's intentions, and genuinely believed the force was necessary, then this is allowed - in the perception of D - Williams / s76
REASONABLE - degree of force used must be reasonable - reasonable was defined in s76 - 'acting honestly and instinctively to acheive a legitimate purpose, and D does not have to weigh to a nicety the exact measure of any necessary action' - essentially, D doesn't need to calculate how much force is needed, if he is using the force legitimately (to protect himself) - this must be used AT THE TIME OF THE FORCE OR BEFORE - not days/hours after
PROPORTIONATE - the force used must not be 'disproportionate' - householders get extra protection in terms of whether the force was proportionate - must be 'grossly disproportionate'
PRE-EMPTIVE STRIKES - the case of Bird says that these are allowed.
DURESS BY THREAT
Can be pleaded for all offences apart from murder, attempted murder and treason - mainly DURESS BY THREAT, but defence of DURESS OF CIRCUMSTANCES also exists.
1) SERIOUSNESS - must be determined if there was a central threat of death/serious injury - Valderrama-Vega - this can be to anyone that D has responsibility for, but not to a stranger - APPLY - RELATIONSHIP WITH D
2) WAS D THREATENED? To establish this, apply the 2-part Graham test: 1) Was D compelled to act as he did because he reasonably believed he had a good cause to fear serious injury or death? SUBJECTIVE, and 2) If so, would the sober person of reasonabl firmness, sharing the characteristics of the accused, have reacted in the same way? MAINLY OBJECTIVE, however 'sharing the characteristics' - Bowen - can include age, sex, disability, pregnancy and mental state.
3) SAFE AVENUE OF ESCAPE - this relates to seeking police protection - police protection may not always be effective, however - Hudson and Taylor; NB HASAN - if D can seek police protection, and doesn't, defence will fail - APPLY
4) IMMEDIACY - normally, Abdul-Hussian - immediate means that the threat must be 'hanging over D' - however, HASAN - the threat must be immediate/almost immediate - ie about to happen - APPLY
DoT ONLY - SPECIFIC THREAT - Cole - must be a threat to commit a specific offence ie 'rob a bank' - APPLY
SELF-INDUCED DURESS AND DURESS OF CIRCUMSTANCES
Self induced duress rules - if D was AWARE of the risk that he would be put under duress, he cannot plead - Sharp - ie VIOLENT GANGS, however if D was UNAWARE that he would be put under duress, he can plead - Shepherd - NON-VIOLENT GANGS
NB - HASAN - if D 'foresaw or had ought to have reasonably forseen the risk of duress', then he CANNOT PLEAD DURESS - APPLY THIS RULE
Duress of circumstances - is a modern defence, realting to surrounding circumstances - ie driving offences - Willer and Conway - escaping from moped gangs etc.
HOWEVER, can now be pleaded for all offences as DoT can be - Pommell - apply same rules as for DoT, minus the Cole rule
SUMMARY - Seriousness, Graham test, safe avenue of escape, immediacy, Cole (not for DoC), self-induced (if applicable), DoC (if applicable)