Flashcards in Mendham Law Deck (24):
Theft act definition
Theft act 1965 defines theft;
A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.
Means literally the physical taking.
D must appropriate property, assume rights of the owner and treat property as own.
Any assumption by a person of the rights of the owner amounts to appropriation. e.g selling, keeping, dealing.
CONSENT TO APPROPRIATION;
When the owner gives D the item, still possibility for appropriation to take place- as seen in lawrence and gomez.
HOL; appropriation took place even with consent.
s3(1) is clear that there can be an appropriation when D aquire property without stealing it, but then later decides to keep it or deal with it as own.
For there for be a theft D must have appropriated property.
things in action
intangible property; no existence
knowledge cannot be stolen- confidential info doesn't constitute to property. Oxford v Moss
s4(3) Theft act says a person who pick wild flowers not guilty unless sells them or for reward.
s4(4) wild creatures cannot be stolen unless tamed or kept in captivity.
belonging to another s5
In order for there to be theft of property it must belong to another.
s5 (1) states that property shall be regarded as belonging to any person having possession or control or having it in any proprietary right or interest.
Possession or control of the property is sufficient for prosecution to prove who has legal ownership.
POSSESION OR CONTROL'
normally owner has possession or control of property- but situations when they either have possession or control. e.g car hire.
Turner no2- took car to garage and said he'll pay for repairs but with spare keys took car.
Possible for someone to be in control of property even though they don't know it's theirs.
Woodman 1974- scrap metal.
PROPERTY RECIEVED UNDER OBLIGATION;
Where a person receives money on the account of another and is under obligation to retain it or deal with it in a certain way the property is regarded as belonging to another.
Wain - itv charity
Kilernberg - clear obligation to deal with deposits- stole time shares and pocketed money.
Davidge v bunnet.
the first thing when considering proof of MR of theft is that when D appropriated property he did so dishonestly.
S2 1 states that its immaterial as to whether appropriation was for own benefit or view to gain.
so doesn't matter if you didn't gain anything. Destroing property or throwing it was is still dishonest.
BEHAVIOUR WHICH IS NOT DISHONEST;
1. Has has in law the right to deprive the other of it e.g balifs
2. Believed other would consent had he known of appropriation and circumstances.
3. owner f property not discovered as taking reasonable steps.
Depends of belief of D doesn't matter whether accurate.
If genuine belief then not guilty. E.g Robinson.
WILLINGNESS TO PAY;
Even if D intended to pay, doesn't mean his conduct wasn't dishonest.
s2 2 states that a person appropriating property belonging to another is dishonest, even if he's willing to pay.
Was the actions dishonest according to the standards of a reasonable honest man.
Did D realise what he was doing was dishonest according to those standards.
intention to permanently deprive; s6
Final element to be proved is intention to permanently deprive the other of property.
This can include where D intended to return the property; Velumyl 1989 where D took money from safe.
INTENTION TO TREAT AS OWN;
If D treats the thing as his own to dispose or destroy of regardless of owners rights then D has intention to permanently deprive other of it.
This includes situations such as Rahpehal and another 2002- D offered to sell back v his car.
BORROWING OR LENDING;
Normally borrowing or lending would't be intention to permanently deprive.
s6 states borrowing isn't theft unless its for a long period or in circumstances that make it equal to outright taking.
In Llyod 1985- it was stated that this meant borrowing the property and keeping it until the goodness, the virtue and practical value had gone.
Another difficult case was Easom
D looked in bag but didn't take anything. Wasn't guilty.
Law now changed to conditional intent- intent with theft
so if intention was to steal and didn't can still be guilty.
Person is guilty of robbery if he steals and immediately before or at the time or in order to do so, uses force on any person or seeks to put V in fear of being then and there subjected to force.
Person guilty of robbery or of an assult with intent to rob shall on conviction on indictment be liable to imprisonment for life.
use of force or threat of it
immediately or at the time
intention to permanently deprive.
intention or reckless use of force or threat of it
1 COMPLETED THEFT;
There must be completed theft in order for robbery to occur
all elements must be present.
Raphael 2008- D took car by force
Corcoran 1980- Forced women to ground for bag
ALL ELEMENTS OF THEFT+ FORCE= ROBBERY
FORCE OR THREAT OF FORCE;
As well as theft prosecution must prove force.
Amount of force can be small - clouden - bag
Definition of robbery says that if d puts v in fear or seeks to put v in fear of force then robbery is committed. This covers threatening words and actions.
Fear doesn't have to present for robbery to occur as can still be robbery if V didn't feel threat of force
R v DPP 2007.
FORCE ON ANY PERSON;
This means person feeling threatened doesn't need to be the person being robbed.
e.g rob in a bank
FORCE IN ORDER TO STEAL;
Forced must be used in order to steal, if it wasn't used then any later theft isn't robbery.
Force has to be used at the time- not any later.
e.g D argues with V and knocks him down. and sees money and takes it- its two different offences - assault and theft.
A person is guilty of blackmail if, with a view to gain for himself and intent to cause a loss to another, he makes an unwarranted demand with menaces and for this purpose a demand with menace is unwarranted unless the person making it does so in the belief;
a) he has reasonable grounds for making demand
b) the use of menaces is a proper means of reinforcing demand.
4. view to gain or intent to cause a loss.
ACTUS REUS ;
make a unwarranted demand with menaces
intents to make an unwarranted demand with menaces with the view to gain or cause a loss.
1. There must be a demand - can take in any forms-
words, conduct, writing and email.
2. May even be suggested or implied as seen in collister and warhurst 1955
where police man intimidated v that he'd be prosecuted if he didn't something. No demand made but implied due to conduct.
3. Making a demand is the actus reus therefore when the demand is complete so is the actus reus.
Demand doesn't have to be recieved by V
e.g Treacy v dpp- D posted letter to germany
s21 explains that a demand made with menaces is unwarranted unless two tests set out are fulfilled;
a) he has reasonable grounds for making demand
b) the use of menaces is a proper means of reinforcing
2. Tests show D's belief- so if he believed he had reasonable grounds then he's not guilty.
e.g Harry 1981- given worthless cannabis so demanded refund.
two tests mean even though D had genuine claim he can still be guilty if he doesn't believe that the he use of menaces was proper means of reinforcing demand.
Demand must be made with menaces (serious threat)
2. In lawrence v pomray found that menaces was an ordinary english word that any jury can be expected to understand.
3. In clear 1968
Shows that menaces had to be such a nature + extent that the mind of a ordinary person of a normal stability and control would be influenced.
4. Its not necessary to prove V was intimidated. meaning that if the menaces affected an ordinary person then that was enough- if it didn't then blackmail didn't occur.
5. However in Garwood 1987
The COA said where the threat is made an it doesn't affect an ordinary person then it can still be blackmail if D was aware of the likely affect it would have on V.
6. V doesn't have to give in for D to be guilty.
The view to gain or intent to make a loss.
Mens rea of blackmail includes that D must be acting with a view to gain for himself or another
Gain = included gain by keeping what one has or gain by getting what one doesn't have.
Loss = loss by not getting what one might want and loss by parting with what one had.
Has to involve money and other property.
Property is same as in theft
things in action
GAIN OR LOSS CAN BE TEMPORARY;
D doesn't need to be successful, most important part is that D intended to make a unwarranted demand with menaces with the view to gain and intent to cause a loss.
Bevans 1988 is an unusual case;
Gunpoint to have morphine unjection
This is an offence under s9 of the theft act 1968.
Section 9 has two ways in which burglary can be committed;
s9 (1) a; Enters- intention to commit crime
s9 (1) b ; having entered commits crime or attempts to
2. building or part of a building
3 as a trespasser
- The difference is in the intention at the time of entry.
3) part of a bulding
5)going beyond permission
6) Mens rea
7) aggravated burglary
Not defined in the theft act, but cases illustrate the definition;
COA said that the jury had to be satisified that D made an effective and substantial entry.
in brown 1985
it was modified to effective entry as he was able to steal within.
Buildings include inhabited places such as house boats and caravans
normally no problem with the meaning - offices/ blocks of flats
- However structures such as portacabins used for storage led to issues which courts struggle with
B + s v leathley 1979
Norfolk constabuly v seekings and gould 1986
- Structure such as garages and shets within the property are considered to fall in definition of dwelling- part of a persons home
PART OF A BUILDING
Phrase used in situations when D may have permission to be in one part of the building but not the other.
e.g walkington 1979
D reached behind the counter and looked into till.
other examples include storerooms.
D must enter as a trespasser in order for burglary to be committed.
if D has permission to enter he has not trespassed.
Shown in Collions 1972
where women invited him in.
Therefore prosecution must prove D knew he was trespassing or was being subjectively reckeless when he trespassed.
GOING BEYOND PERMISSON;
if you go beyond permission given then could be considered a trespasser
E.g Smith v Jones
Had permission to enter house but went beyond that permission when they stole the TV.
For both s9 (1) A and sections 9 (1) b ;
D must know or be subjectively reckless as to whether he is trespassing.
Additionally for Section 9 1 a ;
D must have the intention to commit on of the three offences at the time of entering the building;
2. inflicts GBH
3. Does unlawful damage in the building.
Where D enters but doens't steal= conditional intent and can still be guilty.
section 9 (1) b ;
Having entered the building D steals or attempts to
and conflicts gbh or attempts to.
A person is guilty of aggravated burglary under s10 (1) of the theft act 1968 if he commits burglary in s9 and at the time has on him
any weapon of offence meaning any artificial made or adapted for use of causing injury.
Sentence in Burglary s9
Maximum sentencing for burglary of building other than dwelling is 10 yrs on indictment
Maximum sentencing for burglary of dwelling is 14 years
Maximum sentencing for aggravating burglary is imprisonment for life.
Fraud act 2006
Fraud was outdated in the theft act as the following were not present;
a) fraud by false representation s2
b) obtaining servises dishonestly s11
FRAUD BY FALSE REPRESENTATION;
offence of fraud is commited if D
A) dishonestly makes a false representation
B) intends by making the representation
(i) to make a gain for himself or another
(ii) to cause a loss for another or expose another to risk of loss.
ACTUS REUS AND MENS REA OF FRAUD
AR is D must make a representation which is false
MR= Mens rea has three parts D must be;
- must know or believe the actus reus to be untrue or misleading
- intention to make a gain or cause a loss
REPRESENTATION TO MACHINES
GAIN OR LOSS
OBTAINING SERVICES DISHONESTLY.
Means any representation as to law or fact including making a representation as to the state of mind of
a) the person making the representation
B) any other person.
1. representation as to fact covers situations such a false identity, or D states they own something when they actually do not or overstating the milage on a car.
2. representation as to law covers situations where D states the law knowing what theyre saying isn't true. such as customer saying they are going to pay bill but don't. This can also be expressed or implied.
3. representation as to machines
section 2 (5) now covers devices and machines. This is so for modern situations where you can obtain property via a machine or the internet - cash machines
Wide enough to cover putting false coins in a sweet machine or buying good of the web.
4. Express representation;
The fraud act makes it clea there is no limit to the way a representation must be expressed
written, spoken or posted on a website. d may show false reference or identity.
Excessive quote - silverman 1987 or Hamilton 2008- overpaid fence panels.
5. Implied representation;
Implied as shown in Barnard 1837
who wore a commoners gown and cap= false pretence
A more modern example would be standing on street with charity box.
Deception shown in lambie 1981
6. Implied can also be;
ordering a meal = Dpp v Ray 1975
Paying a cheque = Gilmartin
Using gurantee cards = Mpc v Charles 1976
Gain or loss
Fraud act states a representation is false if;
a) its untrue or misleading
b) The making making it knows its untrue or it might be misleading.
GAIN OR LOSS ;
Offence requires D to make a gain or cause a loss to another or expose another to risk of loss.
Gain or loss can be temporary = kapitene 2010
Mens rea has three parts
1. dishonest = ghost- two part test
2. Know or believe representation to be untrue or misleading = a subjective test what did D know or believe
3. Intent = fraud doesn't need to be complete as shown in laverty 1970
- Fraud doesn't need to be complete just an attempt is needed for prosecution.
All prosecution have to prove is intent for the completed offence.
obtaining services dishonestly and making off without payment
S11 fraud act 2006 states;
A person is guilty of an offence under this section if he obtains services for himself or another
a) by a dishonest act
b) in breach of subsection 2
1. There must be an act- The offence cannot be commited by an omission.
4. not paid for or not paid in full
1, offence requires that the services are taken - unlike fraud where the demand is enough.
- services e.g using a false credit card to obtain on web, or false buss pass in order to travel cheaper
- D only has to obtain services dishonestly
2. Knowledge that services are or might be being made on the basis that payment will be made for them
3. intention not to pay or pay in full.
1. Dishonesty the ghost test applies
a) Whether Ds behaviour would be regarded as dishonest by the ordinary standards of a reasonable and honest person if yes then
b) whether D was aware that their conduct was dishonest and would be regarded as dishonest by a reasonable and honest person
2. knowledge and intent
D must know that the services are only available on the basis of payment.
Proescution must prove that D intended not to pay or pay in full.
If D thought somebody else had paid then D is not guilty - belief