Criminal Law - Property Offences, Fraud and Criminal Damage

Question 1

Theft

Mens Rea:
Actus Reus:

Answer 1

MR - Dishonesty + intention to permanently deprive
AR - Appropriation of property belonging to another

Question 2

Theft: Actus Reus

Appropration means:

How many times can you commit theft to the same property?

Answer 2

any assumption of the rights of an owner.
Once.

Question 3

Theft: Actus Reus

What property can be appropriated for theft?

What are some things that cannot be stolen (3 examples)

5 types

Answer 3

• Money,
• Real Property
• Personal Property
• Things in action
• Other intangible property

Things that cannot be stolen:
- electricity and confidential information.
- Wild mushrooms, flowers, fruits or foliage.
- Wild creatures.

Question 4

Theft: Actus Reus

When can land be stolen?

3 circumstances

Answer 4

a. By trustee in breach of trust.
b. By person not in possession of the land, by severing any part of the land.
c. Tenant takes something fixed to the land.

Severing e.g. taking carrots.

Question 5

Theft: Actus Reus

“Belonging to another” means property in which someone else has:

Can you steal your own property?

Answer 5

• possession;
• control; or
• a proprietary interest.

Yes.

Question 6

Theft: Actus Reus

D raises money by organising events for a charity. He paid into a special bank account but then, rather pay the sponsorship money to the charity, spent it on himself.

Was this theft? What is the basis of your answer?

Answer 6

Yes. There was an obligation to deal with it in a particular way so property did belong to the charity.

Question 7

Theft: Actus Reus

Can you commit theft of abandoned property?

Answer 7

No, if genuinely abandoned.

Although courts are reluctant to treat property as abandoned.

Question 8

Theft: Mens Rea

In what three circumstances is the defendant not regarded as being dishonest?

Are these judged objectively, subjectively or upon a mixture of both?

Does the defendant need to prove these issues?

Dishonesty and the s.2 exceptions

Answer 8

(1) Has the right in law to the property.
(2) Owner would have consented had they known of the circumstances.
(3) Owner cannot be discovered by taking reasonable steps.

The defendant needs to raise these issues, but having done so, the prosecution must disprove them beyond reasonable doubt.

Question 8

Theft: Mens Rea

What three questions should you ask to establish dishonesty?

Dishonesty

Answer 8

1. Is there clear dishonesty?
2. If not, do the s.2 Theft Act exceptions apply?
3. If not, is there dishonesty under the Ivey test (common law test)

Question 9

Theft: Mens Rea

Suki shares a flat with Dana. She has run out of food and will not receive her welfare benefits until next week. She eats some of Dana’s food. Is this theft?

Dishonesty

Answer 9

No, if she believed that Dana would have consented to this had she had known the circumstances.

Question 10

Theft: Mens Rea

What is the Ivey test for dishonesty (common law test)?

Dishonesty

Answer 10

The magistrates/jury must

(a) ascertain the actual state of the defendant’s knowledge or belief as to the facts; and (subjective)
(b) determine whether their conduct was honest or dishonest by standards of ordinary people, based upon what they actually knew or believed (objective)

Question 11

Theft: Mens Rea

“Intention to permanently deprive” means:

Can this occur by borrowing alone?

Khadija takes her mum’s ring and pawns it. If she doesn’t pay the pawnbroker, then she will not be able to redeem the ring. Is this theft?

Intention to permanently deprive

Answer 11

treating the property as his own.

Yes. For example if A borrows B’s concert ticket and returns it after the perforamnce.

Yes.

Question 12

Robbery

What are the four key components of robbery under s.8 of Theft Act 1968?

What is another term for robbery?

Answer 12

1. Actus reus of theft.
2. Mens rea of theft.
3. Defendant uses threat or force immediately before or at the time of robbery.
4. Motivation to steal

Aggravated Theft.

Question 13

Robbery

Whether sufficient force is used/threatened is a matter to be determined by…

Is violence required?

Can the force/threat be directed at a third party, or does it have to be the victim?

The defendant steals various items from the victim’s home. As he’s leaving, he threatens the victim’s son if she rings the police within five minutes of him leaving. Is this robbery? What is your reasoning?

Answer 13

The jury.

Violence is not required.

Can be directed to a third party, if the victim was aware of it.

Yes. When the threat of force was made, the theft was continuing.

Can also be directed toward property. Does not need to be substantial force, although there comes a point at which it may not be enough contact to justify and would simply be theft.

Question 14

Burglary

Is burglary an either-way or indictable-only offence? What is the maximum sentence? When would this sentence be increased further, and to what amount?

Answer 14

Either-way.
10 year imprisonment is the maximum sentence (Crown Court)
Burglary of a dwelling - 14 year imprisonment.

Question 15

Burglary

What are the two types of burglary?

Answer 15

Intention-based burglary
Action-based burglary

s.9(1)(a) and s.9(1)(b) respectively.

Question 16

Burglary: Actus Reus

What are the common actus reus elements of intention-based (s.9(1)(a) and action-based (s.9(1)(b) based burglary?

What is the additional actus reus element for s.9(1)(b)?

Answer 16

Common actus reus:

• Entering a building or part of a building as a trespaser.

Additional actus reus for s.9(1)(b): Defendant commits or attempts to commit theft or GBH.

Question 17

Burglary: Mens Rea

What is the common mens rea element of intention-based (s.9(1)(a) and action-based (s.9(1)(b) based burglary?

Expand on the definition of “reckless”

Answer 17

**Common mens rea element:
**
Defendant knows or is reckless as to being a trespasser at the time of entry into the building.

Reckless = defendant foresaw a risk that they did not have permission to enter and went on, unjustifiably to take that riks.

Question 18

Burglary: Mens rea

What is the additional mens rea requirement for s.9(1)(a)?

What is the additional mens rea requirement for s.9(1)(b)?

Answer 18

Additional mens rea element for s.9(1)(a): Intention to commit theft, GBH or criminal damage in the building or that part of the building.
​
**Additional mens rea element for s.9(1)(b): ** Necessary mens rea for theft or GBH.

This is quite tricky stuff. The additional mens rea element for s.9(1)(b) is the mens rea for theft or GBH and not criminal damage Secondly, mens rea for s.20 GBH is possible, i.e. recklessness as to ABH will suffice. This is therefore not the same as for s.9(1)(a) where there must be an intention to commit GBH.

Question 19

Aggravated Burglary

(1) Definition:

(2) Which of the following is not a weapon of offence?

Broken bottle
Handcuffs
Fencing Sword
Length of rope

(3) At the time means (2 different meanings)

Answer 19

(1) Defendant commits burglary, and at the time has with him any firearm or imitation firearm, any weapon of offence, or explosive.

(2) Fencing sword.

(3) At the time of entry for intention-based burglary.
At the time of the ulterior offence for action-based burglary.

Question 20

Fraud

What are the three types of fraud?

Answer 20

a. Making a false representation
b. Failing to disclose information.
c. Abuse of position

Question 21

Fraud: False representation

What are the two conditions for a representation to be false?

Does the prosecution need to prove that the victim was deceived?

On that basis, a representation by email is made when…
and a representation by withdrawing money from a cash point machine is made when…

Answer 21

(a) Untrue or misleading;
(b) person making it knew that it was, or might have been, untrue or misleading.

No.
Email is sent; pin is keyed into the machine.

Question 22

Fraud: False Representation

Additional to the mens rea of knowing the representation to be untrue/misleading, the defendant must be shown to have…

2 conditions

Answer 22

(1) acted dishonestly and
(2) intended, by that representation, to make a gain or cause loss to another.

Making a gain includes to oneself and to another.
Causing loss includes exposing another to the risk of loss.

Question 23

Fraud: Failing to disclose information

This occurs where a person (2 conditions):

Give 5 examples of a legal duty to diclose information.

Answer 23

(a) dishonestly fails to disclose to another person infromation which they are under a legal obligation to disclose; and
(b) intends, by failing to disclose the information, to make a gain or cause loss to another.

• Statute
• Utomost good faith transactions (e.g. contracts of insurance)
• Express or implied terms of a contract
• Custom of a particular trade or market
• Fiduciary relationship

Question 24

Fraud: Abuse of position

Occurs where a person:

3 conditions

Answer 24

(a) occupies a position in which they are expected to safeguard, or not to act against, the financial interests of another person;
(b) dishonestly abuses that position; and
(c) intends, by means of that abuse of position, to make a gain or cause loss to another.

Question 25

Fraud: Abuse of position

What does “position of financial trust” mean?

Answer 25

Victim voluntarily placed the defendant in a privileged position with respect to their financial interests.

Interpreted widely. Not just fiduciary positions.

Question 26

Simple Criminal Damage

Mens Rea:
Actus Reus:

Answer 26

MR:

(a) Intention or recklessness as to destruction or damage of property belonging to another; and

(b) Knowledge or belief that the property belongs to another

AR: Destruction or damage to property belonging to another, without lawful excuse.

Question 27

Simple Criminal Damage: MR

Recklessness means:

Answer 27

Whether the particular defendant foresaw the risk of criminal damage and went on to take that risk unreasonably.

Question 28

Simple Criminal Damage: AR

a. Drawing on a pavement with soluble chalk
b. Spitting on a police officer’s raincoat.

Which one of these is criminal damage and why?

Answer 28

a. is criminal damage: expense incurred in rectifying.

Question 29

Simple Criminal Damage

Can intangible property be criminally damaged?
Can animals be criminally damaged?

Answer 29

No.
Yes, if tamed or ordinarily kept in captivity or reduced into possession.

Flowers growing in local authority park may be damaged, but not wild mushrooms, flowers, foliage and plants.

Question 30

Simple Criminal Damage: AR

Can simple criminal damage be done to a person’s own property?

What property can criminal damage be done to? (property possessed in three different ways):

Answer 30

No.
Property over which the victim has:
a. custody/control
b. proprietary right/interest
c. a charge

Question 31

Q

Simple Criminal Damage: AR

What are the two (non-exhaustive) situations of lawful excuse set out in s.5 of the CDA 1971?

Lawful excuse

Answer 31

1. Honest belief that the person entitled to consent did consent, or would have consented had they known of the circumstances (subjective test) *
2. Honest belief that the property was in need of protection.

• Even if belief was held due to intoxication, this will be a defence.

Question 32

Simple Criminal Damage: AR

What are the four questions to ask in determining whether the defendant can rely upon the lawful excuse of the property being in “need of protection”?

Honest belief that the property was in need of protection.

Answer 32

1. Did the defendant honestly believe their action was protecting, or was capable of protecting the property? (subjective)
2. Was the action objectively done to protect the property? (objective)

If so,

3. Did D honestly believe the property was in immediate need of protection? (subjective)
4. Did D honestly believe their action was reasonable in the circumstances? (subjective)

Question 33

Arson

Arson is simply the offence of ____ by fire.

Answer 33

Criminal damage.

Question 34

Aggravated Criminal Damage

What is the additional mens rea elment of aggravated criminal damage?

What are the two differences between the actus reus in criminal damage and aggravated criminal damage?

Answer 34

MR: The defendant intended, by the destruction or damage, to endanger the life of another, or is reckless as to whether the life of another would be thereby endangered.

AR: In aggravated criminal damage:

1. Property can belong to the defendant himself or to another.
2. The statutory defence of lawful excuse does not apply. *

Does not prevent reliance on a general defence.
Adding in the ingredient of fire will make this aggravated arson.

Question 35

Aggravated Criminal Damage

Does life actually need to be endangered?
Does the defendant need to have intended to endanger life?

The defendant fires a shot through a window pane, behind which two people were standing. No damage was caused. The defendant’s only intention was to shoot the victims with the bullet. Was there aggravated criminal damage?

Endangerment to life

Answer 35

No.
No. Recklessness.
No. Endangerment must be caused by the damage, and not the act.