- Created by: Francesca Marks
- Created on: 18-04-15 12:36
Glover 'can dishonesty be salvaged? Theft and the grouding of MSC Napoli' 2010- abandoned cargo on Cornish coast and 1000 came to salvage the wreckage, no one dealt with the people as didnt know how law was applied. It was clear there was theft though, police werent satisfied that courts would find the salvors dishonest.
Law Commission said dishonesty does most of the work and the other bits are relatively uncontraversial. There is a danger of inconsistency in Ghosh test, a different juries will decide different things on same facts. There isnt a single community standard of dishonesty that juries inevitably recognise- things like class contribute to differences.
Theft and rule of law- intention to permanently deprive- saves it under the rule of certainty. It is contended that it doesnt comply as without dishonesty there isnt a 'comprehensive definition of proscribed behaviour' required by European court. Doesnt meet quality of law test as dishonesty is a morally evaluative term. Law Commission said its not problematic.
There was theft of Napoli. Wouldve passed first test of Ghosh. Shows Ghosh doesnt solve Robin Hood problem. Commercial property treated as fair game. Others saw as standard practise. Elliot proposed taking dishonesty out of definiton. Unlikley this would happen. NZ have a much clearer defintion. 'dishonesty, means done or omitted without the belief there was express or implied consent or authority for the act or omission.' Not subjective.
Ormerod 'The Fraud Act 2006- Criminalising lying?' 2007.- All are conduct offences, complete despite no harm needed. Reformed as deception was notoriously difficult. Numerous supporters of reform. Fraud not defined in act and no universal common law definition. As dont need to prove result or that any one acted on it it appears to criminalise lying. Classic defintions include intent to decieve, much narrower than to gain. Absense of loss may make degree of blameworthiness and appropriate punishment difficult. Fails to promote certainty. Protects against new electronic fraud. Home Office and Law Commission wanted Ghosh dishonesty, but its left to the jury.
s3- fraud by failing to disclose- legal duty to disclose- but no guidance on what is legal duty. Duty may arise from statute, fact transaction of good faith, from express or implied terms, or custom. Unclear and complex as to whether complied with the duty. Appears to create strict liability as to existence of duty.
S4- fraud by abuse of position- described in Parliament as woolly. A position- is board and ill defined. Seems civil law duties will saddle with liablity. Abuse is deliberately left defined. Extremely broad with a huge amount of potential defendants.
S6- possession for use in fraud- D must know he had the article. For use for fraud is very wide.
S7- making, supplying any article- 10 years max. Software manufacturers. Oblique intention as well.
S11- obtaining services dishonestly- mens rea must know services need to be paid for. 5 year max. Includes obtaining of rail travel and say someone getting illegal Sky. Replaced obtaining by decpetion in Theft Act 1978. Must acquire something- result crime. Cant committ by omission
Broad offences get rid of old technicalities. Gov wanted to improve efficiency. Max sentences pretty much same. Success of act will depend on consistency and quality of prosecuting. May have practical advantages including clear expression of large scale criminality. Offences so wide that Professor Green has shown astonishment.
Simester and Sullivan 'on the nature and the rationale of property offences' 2005- protection of property right must be justified in interest of persons. Harm must be sufficiently important to outweigh loss of liberty. Interference with property rights constitutes a prima facie harm. The regime serves our well being, provides reliable means to have a good life, through voluntary acquisition, use and exchange of resources. Community benefits from predictable rules. V has lost a valuable resource, diminishing means and opportunities to have a good life.
Can be harmed in a wholly conventional sense without suffering any substantive disvalue or set back of human interests. Violation of ownership, control or possession of property need not always set back the interest of an agent whose rights have been contravened.Needs the moral wrong to make it worthy of punishment. Law of theft is protector of the status quo, something normally dealt with in civil law. Criticism of Hinks- deployment of the conceptof dishonesty to segregate criminal and non criminal transactions, undesirable for rule of law that vague concept should bear significant weight.
Criminal damage normally involves fire, force or conduct so more a violent and disorder offence rather than property. Concerned with item, rahter than anothers rights. Burglary- intent to committ the ulterior crime that radically changes the nature of the legal wrong. It is a wrong in its own right. Need private space so causes victims distress. Unparrelled access to goods, sentimental and valuable. Robbery- use of force changes moral character of D's actions. Experience deprivation and psychological harm. Personal integrity seen as less than material gain. Personal property and security ideas undermined, robbery is a distinct wrong.
Ashworth and Horder- Fraud Act expands the realm of white collar crime. Hard to investigate. £30 billiion worth of fraud. Office of Serious Fraud set up to combat fraud of more than £1 million.
Appropriation- very wide. Supports institution of property. New defintion violates the principle of fair labelling by putting theives and swindlers together. Many fraud is theft. Gomez prinicple so broad that shows no respect for maximum certainty and no precision. 'Belonging to another' can steal from own company as different entity. No obligation to pay back a book maker if they overpay you. 'Intention to permanently deprive'- temporary will suffice. Easom said Conditional appropriation isnt theft, eg looking through handbag and not taking anything. Max sentence is 7 years. 'Dishonesty'- violates the rule of law. Police can now give Penalty Notice for Disorder for retail theft under £200. Step to recoginsing the minor nature of much theft.
Robbery- 85'00 in 2007 and 75'000 in 2009. 28% are only mobile phone theft. Radical idea would be to replace with theft with use of force. Or divide into categories with different harm. Present defintion of robbery breaches fair labelling.
Fraud- representation could be a cheque as assume they have an account with money in it. Conspiracy to defraud- agreement between two with dishonesty to deprive, very wide and may be too uncertain to satisfy the Convention said the Law Commission. Government disagrees.