Property offences Flashcards

Question

2 Criminal damage - lawful excuse 2.1 Introduction

Answer 1

A defendant will not commit criminal damage if they have a lawful excuse. A lawful excuse can be: * Any general defence: Where relevant, can apply to any offence of criminal damage/arson under (s 5(5)); or * Section 5(2) lawful excuse defences: Where relevant, can apply to basic criminal damage or basic arson (but not the aggravated form of these offences which are covered in the next section).

Answer 2

There are two lawful excuse defences in s 5(2): * Section 5(2)(a): Operates where the defendant believes that the owner would have consented to the damage; and * Section 5(2)(b): Operates where the defendant acts to protect their or another’s property.

Answer 3

This defence is dealt with in ss 5(2) and (3): * Section 5(2)(a) operates where the defendant believes that the owner would have consented to the damage; and * Section 5(3) says that the defendant’s belief need not be reasonable. It is only necessary for it to be honestly held. Let’s consider the actual wording of this lawful excuse defence.

Answer 4

(2) ‘A person charged with an offence to which this section applies, shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse- (a) if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances; or (3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.

Answer 5

Facts: Dickinson broke a window in the drunken belief that the house was that of a friend with whom she was staying. Held: The court confirmed that the test was subjective. Applying s 5(3), the court held that Dickinson was entitled to the defence under the s 5(2)(a), irrespective of whether the belief was reasonable, even, as here, where it resulted from the defendant’s intoxication.

Answer 6

Provided the defendant honestly believes that the owner of the property has or would have consented to the damage to property, the defendant’s motive for causing the damage is irrelevant to s 5(2)(a), even where the motive is to perpetrate a fraud. Criminal damage is not an offence of dishonesty.

Answer 7

Facts: The owner of a factory in financial difficulties had apparently said to D: ‘There is nothing like a good fire for improving the financial circumstances of a business’. D took this as an instruction to set fire to the factory, which he did. Held: His conviction for arson was quashed, the Court of Appeal holding that he was entitled to the s 5(2)(a) defence.

Answer 8

Facts: The defendant attempted to rely on s 5(2)(a) defence using a novel argument. During a demonstration protesting about the use of military force by the allies in Iraq and Kuwait, Blake, a vicar, used a marker pen to write a Biblical quotation on a concrete pillar at the Houses of Parliament.

Answer 9

He appealed against his conviction for criminal damage, claiming, inter alia, that he was carrying out the instructions of God. He argued that he had lawful excuse under s 5(2)(a) in that he believed God to be the one entitled to consent to the damage. He also argued that s 5(2)(b) applied as he had damaged the property to protect the property of others (the court’s ruling on this issue, will be discussed later).

Answer 10

Held: The QBD dismissed his appeal, holding that a belief, however powerful, genuine and honestly held, that God had given consent was not a lawful excuse under the domestic law of England.

Answer 11

Section 5(2)(b) operates where the defendant acts to protect their or another’s property. The section relates only to the protection of property, as opposed to the protection of people.

Answer 12

Facts: A mother could not raise the s 5(2)(b) defence to a charge of criminal damage to a door that she had kicked open in order to rescue her child from a perceived threat by her estranged husband. Held: The court held that the child did not constitute ‘property’ for the purposes of s 5(2)(b). If it had been a pet dog or cat, then the case might have been different, as these are property. For example, letting a person’s pet parrot out of its cage could be criminal damage or theft of the bird.

Answer 13

(2) A person charged with an offence to which this section applies, shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse.

Answer 14

(b)if he destroyed or damaged or threatened to destroy or damage the property in question or, in the case of a charge of an offence under section 3 above, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed

Answer 15

(a) that the property, right or interest was in immediate need of protection; and (b) that the means of protection adopted or prosed to be adopted were or would be reasonable having regard to all the circumstances.

Answer 16

(3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.

Answer 17

There are four requirements for the s 5(2)(b) defence aspects of which we will consider in greater depth: (a) R v Baker & Wilkins: The defendant must act to protect property. (b) Section 5(2)(b)(i): The defendant must believe that the property was in immediate need of protection (subjective test, see s 5(3)). (c) Section 5(2)(b)(ii): The defendant must believe that the means of protection adopted are reasonable (subjective test, see s 5(3)). (d) R v Hunt: The damage caused by the defendant must be (objectively) capable of protecting the property.

Answer 18

Facts: Johnson, a squatter in a council house, damaged a door while attempting to fit locks in the house. Johnson was charged with criminal damage and raised s 5(2)(b) defence on the grounds that there had been a high number of thefts in the area, and that he had therefore acted to protect his property. Held: The Queen’s Bench Division upheld his conviction on the grounds that he did not believe his property was in immediate need of protection.

Answer 19

Facts: In order to demonstrate the inadequacy of the fire alarm in a block of flats, Mr Hunt started a fire in a bedroom in a deserted part of the block. He pressed the fire alarm, which did not work. He then called the fire brigade. Held: The Court of Appeal, rejecting the defence under s 5(2)(b), introduced an objective element into the defence in addition to those specifically mentioned in the Act. The court held that it was not sufficient that the accused intended to prevent further damage to property (as statutory language suggests) but also required that the act be objectively capable of protecting the property from damage

Answer 20

Arguably, the introduction of this objective test, is inconsistent with the language used in s 5(2)(b) which indicates a subjective test, see s 5(3). The fourth aspect of the s 5(2)(b) lawful excuse defence is that the damage caused by the accused must be objectively capable of protecting the property.

Answer 21

The defendant put forward the additional argument that he was entitled to rely on s 5(2)(b) because he had acted to protect property in the Gulf States. Applying the objective test from Hunt, the court held that his actions were not capable of having this effect.

Answer 22

Facts: The accused, a nuclear protestor, was arrested outside a nuclear submarine base. She was in possession of a hacksaw blade, which she intended to use to cut through the wire fence. She was charged under s 3 CDA (possessing anything with intent to destroy or damage property) and unsuccessfully raised the defence under s 5(2)(b) that she was acting in order to persuade the Americans to leave the base, to reduce the threat of a nuclear strike, and thus protect her property. Held: The objective test in Hunt was confirmed in this case. The court held that cutting the wire was far too remote from the eventual aim of protecting property to satisfy the test.

Answer 23

Section 5(5) preserves the availability of the general defences to criminal offences such as selfdefence, and duress Section 5(5) states: This section shall not be construed as casting doubt on any defence recognised by law as a defence to criminal charges.

Answer 24

A defendant will not commit criminal damage if they have a lawful excuse: * Any general defence: Such as self-defence, where relevant, can apply to any offence of criminal damage/arson under s 5(5); or

Answer 25

Lawful excuse defences: Where relevant, can apply to basic criminal damage or basic arson but not the aggravated form of these offences which are covered in a separate element

Answer 26

Operates where the defendant honestly believes that the owner would have consented to the damage (s 5(3)), even if mistaken due to voluntary intoxication (Jaggard v Dickinson). Note: D’s motive is irrelevant even if it is to perpetrate a fraud (R v Denton).

Answer 27

◦ R v Baker & Wilkins - D must act to protect property. ◦ s 5(2)(b)(i) - D must honestly believe that the property was in immediate need of protection (subjective test, s 5(3)). See Johnson v DPP on immediacy. ◦ s 5(2)(b)(ii) - D must honestly believe that the means of protection adopted are reasonable (subjective test, see s 5(3)). ◦ R v Hunt - The damage caused by D must be objectively capable of protecting the property (see further Blake v DPP and R v Hill & Hall

Answer 28

Aggravated criminal damage: Section 1(2) Criminal Damage Act (‘CDA’) 1971 provides: A person who without lawful excuse destroys of damages any property, whether belonging to himself or another— (a) intending to destroy or damage any property or being reckless as whether any property would be destroyed or damaged; and (b) intending by the destruction or damage to endanger life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence.

Answer 29

The offence of aggravated criminal damage falls under s 1(2) (or s 1(2) and s 1(3) if the charge is aggravated arson). * Destroy or damage (by fire) * Property (s 10(1)) * Belonging to another s 10(2) or himself.

Answer 30

* A defendant can commit aggravated criminal damage to D’s own property. * The lawful excuse defences in the s 5(2) do not apply. However, a defendant might nevertheless have a lawful excuse if any of the general defences to criminal offences apply (s 5(5)). * As a matter of actus reus, it is irrelevant whether the life of another was actually endangered. See the case of R v Sangha discussed later on in this section

Answer 31

The mens rea of aggravated criminal damage (or aggravated arson) is: * Section 1(2)(a): Intention or recklessness as to the destruction or damage of property (by fire); and * Section 1(2)(b): Intention or recklessness as to the endangerment of life by the damage or destruction (by fire).

Answer 32

Facts: Mr Sangha set fire to some furniture in a flat. There was no danger to the occupants since they were not present at the time. There was no danger to the occupants of adjacent flats because of the special construction of the building. Held: The Court of Appeal upheld the defendant’s conviction on the basis, inter alia, that the issue was whether the accused intended or was reckless as to whether life might have been endangered, not whether life was actually endangered.

Answer 33

Facts: Dudley had a grievance against the ‘J’ family. He consumed drink and drugs and threw a firebomb at their house. The fire was extinguished by the J family and only trivial damage was caused. D’s counsel claimed that it must be proved that he intended to endanger life or had been reckless as to whether life was endangered by the actual damaged caused and that as the damage caused was not great, he could not have been reckless as to endangering life. Held: The Court of Appeal disagreed. The words ’destruction or damage’ in s 1(2)(b) referred back to the destruction or damage intended or as to which there was recklessness, not to the destruction or damage actually caused.

Answer 34

Facts: The defendant had fired three shots through a window. Held: This did not constitute the offence under the CDA 1971, s 1(2) because any risk to life intended or foreseen had been by the bullets fired and not by the damaged property. It was held that there had to be a causal link between the damage to property and the danger to life.

Answer 35

It is not the match and the inflammable materials, the flaming firebrand or any other inflammatory agent which the arsonist uses to start the fire which causes danger to life, it is the ensuing conflagration which occurs as the property which has been set on fire is damaged or destroyed. When [whether] the victim in the bedroom is overcome by the smoke or incinerated by the flames as the building burns, it would be absurd to say that this does not result from the damage to the building.

Answer 36

Facts: The defendants had pushed a coping stone from a bridge onto a train, which had hit a marriage showering the passengers with debris from the roof. The conviction had been based on a direction that intent to endanger life by the stone falling on a passenger would suffice.

Answer 37

Facts: The defendants had pushed a coping stone from a bridge onto a train, which had hit a carriage showering the passengers with debris from the roof. The conviction had been based on a direction that intent to endanger life by the stone falling on a passenger would suffice.

Answer 38

The court substituted a conviction based on recklessness (per Taylor CJ): If the defendant’s intention is that the stone itself should crash through the roof of a train or motor vehicle and thereby directly injure a passenger, or if he was reckless only as to that outcome, the section would not bite. If, however, the defendant intended or was reckless that the stone would smash the roof of the train or vehicle so that metal or wood struts from the roof would or obviously might descend upon a passenger, endangering life, he would surely b guilty. This may seem to many a dismal distinction.

Answer 39

This section considered aggravated criminal damage under s 1(2) (and aggravated arson under s 1(2) and s 1(3) if done by fire):

Answer 40

* Section 1(2)(a): Intention or recklessness as to the destruction or damage of property (by fire). * Section 1(2)(b): Intention or recklessness as to the endangerment of life by the damage or destruction (by fire)

Answer 41

- No life need actually be endangered (R v Sangha). - The damage intended or the damage D was reckless to is the issue, as opposed to the amount of actual damage caused (R v Dudley). - Danger to life must arise from the damaged property, not the means of damaging it. If the damage is caused by fire, the risk to life will always be from the damaged property (R v Steer).

Answer 42

Theft: The definition of the offence of theft is found in s 1(1) Theft Act 1968 (TA), which provides: A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it […]

Answer 43

* Actus reus: - Appropriation (s 3 TA) - Property (s 4 TA) - Belonging to another (s 5 TA) * Mens rea: - Dishonestly (s 2 TA) - With the intention to permanently deprive (s 6 TA)

Answer 44

All of the elements must exist simultaneously. This can cause problems when dealing with factual scenarios: * Martha borrows her friend’s dress for a night out, intending to give it back the following day. However, Martha then changes her mind and keeps the dress – is this theft? Do all five elements of s 1(1) occur at the same time? * What if Edward’s grandmother gave him some money to put towards a deposit for a house but Edward uses the money to go on holiday? Has he stolen this money?

Answer 45

By the time Martha and Edward have formed any dishonest intent they have already appropriated the property and, for Edward, under civil law, he was spending his own money. Nevertheless, you will see that the TA caters for such scenarios and both instances could still amount to theft.

Answer 46

Appropriation: The word ‘appropriation’ is defined in part in s 3(1): Any assumption by a person of the rights of an owner amounts to an appropriation […]

Answer 47

Facts: The defendant took items from a shelf in a self-service shop. He removed the correct price labels and replaced them with labels taken from lower-priced goods. At the checkout, the defendant paid the lower price for the items. He was arrested and subsequently convicted of theft.

Answer 48

Held: Both the Court of Appeal and the House of Lords dismissed his appeal against conviction. It was held that it is only necessary to assume one of the rights of the owner. It was the owner’s right to label his goods, so when Morris swapped the labels this was an appropriation.

Answer 49

(a) The assumption of any one of the rights of an owner amounts to an appropriation for example selling it, hiring it, giving it away or destroying it. (b) Even if D does not intend by the act of appropriation itself to deprive the owner permanently of the property, D may be guilty of theft.

Answer 50

The natural meaning of ‘appropriation’ might suggest an act which is not consented to by the owner of the property. In R v Gomez, the majority in the House of Lords decided that a defendant can appropriate property even with the consent of the owner

Answer 51

Facts: Gomez was the assistant manager at an electrical store, and he allowed his co-accused to purchase electrical goods from the shop using two stolen building society cheques. Gomez asked the shop manager to authorise the sale of the goods by accepting the cheques in payment. The shop manager told Gomez to check with the bank that the cheques were acceptable. Gomez pretended to do this and later told the shop manager that the cheques were ‘as good as cash’. The sale went ahead and the cheques were subsequently dishonoured. Gomez and his coaccused were charged with theft. Gomez argued that he could not be guilty of theft since the shop manager had authorised the transactions and so there had been no appropriation. Gomez was convicted of theft and he appealed to the Court of Appeal

Answer 52

Held: The Court of Appeal certified the following point of law of general public importance for appeal to the House of Lords: When theft is alleged and that which is alleged to be stolen passes to the defendant with the consent of the owner, but that consent has been obtained by a false representation, has, (a) an appropriation within the meaning of section 1(1) of the Theft Act 1968 taken place, or, (b) must such a passing of property necessarily involve an element of adverse [interference] with or usurpation of some right of the owner?

Answer 53

The majority of the House answered that there could still be an appropriation where property has passed with the owner’s consent, as there was no need for an adverse interference with the owner’s rights. Lord Browne-Wilkinson said: I regard the word “appropriation” in isolation as being an objective description of the act done irrespective of the mental state of either the owner or the accused.

Answer 54

Facts: The defendant became friendly with a 53-year-old man of limited intelligence. Every day she took him to his building society and he withdrew the maximum daily amount of £300. She influenced, persuaded, or coerced him into giving her this money. Ultimately, he gave her £60,000. She was charged with theft. The trial judge directed the jury to consider the donor’s state of mind when he gave the defendant the money and whether the defendant was dishonest. The defendant was convicted. She appealed against her conviction on the grounds that the trial judge had failed to clearly direct the jury that she could not be guilty of theft if the donor had made a valid gift to her.

Answer 55

The House of Lords dismissed the appeal and held: (a) Appropriation is a neutral act and the state of mind of the donor is irrelevant to appropriation; (b) Therefore appropriation could take place with or without the consent of the owner; and (c) Therefore a person could be guilty of stealing a valid inter vivos gift.

Answer 56

All the elements of theft must exist simultaneously. There are likely to be occasions when the defendant does not have the mens rea when first assuming an owner’s right and therefore does not commit theft at this point. In such circumstances, when the defendant does form the necessary mens rea later it will then be necessary to apply s 3(1), which provides for a later assumption of the owner’s rights to amount to an appropriation:

Answer 57

Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner. (Emphasis added)

Answer 58

Section 3(2) exempts a defendant from liability for theft where the defendant purchases goods in good faith and for value, then later discovers that the seller had no title to the property, but decides to keep it. Note that mala fides (bad faith) precludes the protection afforded by s 3(2)

Answer 59

The defendant purchased goods not knowing that they were stolen. The trial court convicted him of theft on the basis that there had been a later appropriation under s 3(1) when he kept the goods after finding out that they were stolen. However, the conviction was quashed on appeal on the ground that the judge failed to direct the jury that he had a defence under s 3(2).

Answer 60

In order to prove theft, it must be established that the defendant has appropriated property. Section 4 defines what property may be stolen. Property: Section 4(1) states: ‘Property’ includes money and all other property, real or personal, including things in action and other intangible property. Generally, all property may be stolen, although there are certain exceptions in relation to land (s 4(2)), things growing wild (s 4(3)), and wild creatures (s 4(4)).

Answer 61

(2) A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that is to say- (a) when he is a trustee or personal representative, or is authorised by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him; or (b) when he is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed; or (c) when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the land.

Answer 62

* Section 4(2)(a): D is authorised to sell land and sells more than they are meant to; * Section 4(2)(b): D is a trespasser or invited guest and removes a fence or a lavender plant; * Section 4(2)(c): D is a tenant and removes or sells without removing, a fixed greenhouse.

Answer 63

D will not be guilty of theft if they pick any of the following from plants growing in the wild: * Mushrooms; * Flowers; * Fruit; and/or * Foliage. D can however be guilty of theft if: * The purpose of picking from the wild plant is: - A reward; - To sell; or - For another commercial purpose. * D uproots or cuts parts of the wild plant. * D picks cultivated plants.

Answer 64

A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose. For the purposes of this subsection “mushroom” includes any fungus, and “plant” includes any shrub or tree.

Answer 65

D will not be guilty of the theft of: * Untamed animals; and/or * Animals not ordinarily kept in captivity. D can be guilty of theft of: * Tamed animals (for example, pets such as a cat or dog); * Animals kept in captivity (for example, in a zoo); and/or * Animals in the course of being reduced into possession (for example, have been trapped)

Answer 66

Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.

Answer 67

* Money: Notes, coins including other currencies * Real property: Land in certain circumstances discussed already * Personal property, for example a coat, a ring, a car, water, gas * Intangible property such as things in action (a right to sue/recover): Company shares, trademarks, patents, copyright, a debt, a credit in a bank account, forged cheques, cheques drawn on accounts in credit or those drawn on accounts within the agreed overdraft limit (as the bank is obligated to honour the cheque) * Unlawful or illegal items such as Class A drugs (Smith, Plummer and Haines[2011] EWCA Crim 66)

Answer 68

* Wild plants and animals, except in certain circumstances discussed already * Electricity (Low v Blease[1975] Crim LR 513) * Corpses and body parts except those which have been taken into another’s possession or control such as: - Corpses in hospitals - Blood given to a blood bank - Corpses or body parts which have ‘acquired different attributes’ for scientific or teaching purposes (Kelly and Lindsay[1999] QB 621) * Confidential information does not fall within the definition of intangible property (Oxford v Moss(1978) 68 Cr App R 183) * Services such as a train journey * Cheques drawn on accounts over the agreed overdraft limit (as the bank is not obligated to honour the cheque)

Answer 69

Section 5(1) provides: Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest […] This is a wide definition, which extends beyond ownership to include those having possession or control of it or a proprietary interest in it at the moment of appropriation. Again, there is considerable case law and additional statutory provisions that deal with the issue of when property will be deemed to belong to another.

Answer 70

Property can cease to belong to another if it has been abandoned. However, the courts do not readily find that property has been abandoned.

Answer 71

It was held that householders do not abandon goods that are put in their domestic waste. The householder intends the goods to be collected by the local authority, so a refuse collector could be guilty of theft if appropriating goods from a bin with the relevant mens rea. Property is not abandoned just because the owner has stopped looking for it. Smith, Hogan and Ormerod’s Criminal Law notes that a husband who has lost his wedding ring and has long since given up looking for it, will not have abandoned it.

Answer 72

It was held that lost golf balls had not been abandoned by their owners. However, this does not mean that property cannot be abandoned. It will depend on whether the owner wants the property or wants it to go to another party, or whether the owner does not mind what happens to it.

Answer 73

Section 5(1) states that property belongs to those having possession or control of it. The courts have found that property can belong to persons who have possession or control, not just of the specified property, but over the land upon which it was found. This can be so even if the owner of the land is unaware of its existence

Answer 74

The Court of Appeal held that, because the factory owners had taken steps to exclude trespassers, there was evidence that they were in control of the factory and thereby had control of the scrap metal, which unknown to them, had been left inside the factory

Answer 75

Facts: The defendant was an airline passenger who found a gold bracelet in a British Airways executive lounge. The court considered whether British Airways had possession or control of the bracelet.

Answer 76

Held: The court decided that the company did not, but stated that if it had shown an intention to exercise control over the building and things in it, the company could have secured possession of the bracelet before the defendant found it. The court held that British Airways could have demonstrated this intention either expressly, for example by putting up a notice, or impliedly. However, in this case it had shown no such intention. When the original owner did not come forward to claim the bracelet it could be kept by the passenger.

Answer 77

Facts: The defendant took his car to a local garage. He later contacted the mechanic to check if the car was ready and was told that it was. The defendant took the car using his spare keys without paying the bill. He was convicted of theft and appealed. Held: The Court of Appeal held that the mechanic was in possession and control of the car and, therefore, the car did ‘belong to another’.

Answer 78

Sometimes defendants will not form the necessary mens rea until after their initial appropriation of the property. Section 5(3) sets out the rules for when title of the property has passed to the defendant by the time D has formed the dishonest intent. The general civil rule is that title in property passes at the time that the parties intend it to pass

Answer 79

Can be used to cover cases where property is handed over for a particular purpose, and the title in that property passes to the accused before D has formed a dishonest intention to use it for an unauthorised purpose.

Answer 80

Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other.

Answer 81

The prosecution to prove that the property still belongs to another for the purposes of the Act, without the need to use s 5(1), which could involve much more complex legal issues.

Answer 82

Where the accused is under a legal obligation to use the property for the purpose given. This is a matter of law which will be decided by the judge, having regard to civil law. Very often there will be a trust which means that the property will also belong to another under s 5(1) which covers equitable interests

Answer 83

It is better to use s 5(3) which allows the prosecution to make out its case more easily without having to resort to the technicalities of trusts law. Please note that for the purposes of your BPP Criminal Law assessment you are not expected to consider whether a Quistclose trust exists here. Following an analysis of the cases set out below, it appears that the courts have taken the view that particular arrangements should have been made with the defendant regarding the specified property.

Answer 84

R v Jenkins went to the House of Lords on another issue where no allusion to or criticism was made of what the Court of Appeal had said on this issue. It is therefore the current law

Answer 85

This section considered the offence of burglary under s 9 Theft Act 1968. There are two separate offences: * Section 9 (1)(a) committed at the point of entry into the building as a trespasser and the defendant must know or be reckless as to entry as a trespasser and intend to commit one of the offences set out in s 9(2): theft, GBH or criminal damage. * Section 9(1)(b) committed when, having entered the building as a trespasser, knowing or being reckless as to entry as a trespasser, the defendant goes on to commit: - Theft or attempted theft; or - GBH or attempted GBH. Note. Although criminal damage is stated as a relevant offence in s 9(2) for the purposes of a s 9(1)(a) offence, it is not included in a s 9(1)(b) offence.

Answer 86

(1) ‘A person is guilty of aggravated burglary if he commits any burglary and at the time has with him any firearm or imitation firearm, any weapon of offence, or any explosive; and for this purpose – (a) ‘firearm’ includes an airgun or airpistol, and ‘imitation firearm’ means anything which has the appearance of being a firearm, whether capable of being discharged or not; and (b) ‘weapon of offence’ means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use; and (c) ‘explosive’ means any article manufactured for the purpose of producing a practical effect by explosion, or intended by the person having it with him for that purpose. (2) A person guilty of aggravated burglary shall on conviction on indictment be liable to imprisonment for life.

Answer 87

Consider the maximum sentences set out in the statute for burglary and aggravated burglary. * The maximum sentence for burglary is set out in s 9(3) Theft Act 1968 as: - 14 years, where the building or part of a building was a dwelling; or - 10 years, in any other case. * The maximum sentence for aggravated burglary is set out in s 10(2) as life imprisonment

Answer 88

Burglary when in possession of a firearm, weapon of offence or explosive is deemed so serious to warrant a maximum of life imprisonment. The reason given by the Criminal Law Revision Committee at the time for this maximum sentence is that aggravated burglary could be very frightening to anyone in the building and could potentially lead to fatal consequences. We will now consider in greater depth the articles which fall within a ‘weapon of offence’ for the purposes of s 10(1)(b).

Answer 89

If you break down the wording of s 10(1)(b) a ‘weapon of offence’ can be any article: * Made or adapted for causing injury to or incapacitating a person; or * Which, at the time of committing the burglary, the defendant possesses with the intention of causing injury to or incapacitating a person

Answer 90

Facts: The defendant was seen running away from a house which had just been burgled. He had a knife in his possession. He claimed he had to for self-defence. Held: The phrase ‘intended by the person having it with him for such use’ does not impose a requirement to prove that the intended use was with respect to the particular burglary.

Answer 91

Facts: K used a screwdriver to break into a house. When surprised by the householder, K told him to unplug the video and then stabbed the householder with the screwdriver. On leaving, K was arrested with a video in one hand and the screwdriver in the other.

Answer 92

Held: His appeal against conviction for aggravated burglary was dismissed. The court said that K was charged on the basis of the Theft Act 1968, s 9(1)(b). Therefore, the time at which K had to be proved to have had a weapon of offence, in order to be guilty of aggravated burglary, was at the time that he actually stole. The screwdriver would become a weapon of offence when K intended to use it for causing injury to, or incapacitating any person. He had this intent by the time of the theft. This construction followed from the clear language of the Theft Act 1968, s 10 and was consistent with its purpose.

Answer 93

It is important to establish that the defendant has the offending article with them at the time they commit the relevant burglary, be it a s 9(1)(a) burglary (at the point of entry) or s 9(1)(b) burglary (on commission or attempted commission of theft or grievous bodily harm). This was confirmed in the following cases.

Answer 94

Facts: Here, the appellant forced entry into a private house while unarmed. He then picked up a knife from the kitchen and went upstairs where he confronted the two occupants. He committed a theft and injured the occupants. In answer to a charge of s 9(1)(b) aggravated burglary, the appellant claimed he could not be guilty because he was not armed when he entered the house.

Answer 95

Held: However, the Court of Appeal held that the time when he must have the weapon of offence was the time at which he actually stole. In this case, that was when he confronted the householders and demanded their cash.

Answer 96

Facts: Ds, who were armed with sticks, were allowed by V to enter after they noisily demanded entry. They then discarded their sticks and subsequently stole articles in the house. Held: Their convictions for aggravated burglary were quashed; they may have entered with weapons of offence, but there was no evidence that at the point of entry they intended to steal. Facts: Ds, who were armed with sticks, were allowed by V to enter after they noisily demanded entry. They then discarded their sticks and subsequently stole articles in the house.

Answer 97

Facts: K and two other men, one of whom had a piece of pole in his hand, wrenched open the door of a caravan and demanded money from the occupant. The occupant ran out of the caravan. Once outside, the occupant was repeatedly assaulted with the pole by one of the accomplices. There was no evidence that this accomplice with the pole ever went inside the building. K then entered the caravan without the pole and committed burglary. He was convicted of aggravated burglary. Held: The Court of Appeal allowed the appeal on the grounds that there was no entry into the building with a weapon.

Answer 98

This section considered the offence of aggravated burglary under s 10 Theft Act 1968. * First it is necessary to establish that a burglary under s 9(1)(a) or (b) has occurred. * If so, for s 10 to apply, the defendant must have with them, at the time of the burglary, one of the articles set out in s 10 (1)(a)–(c), that is: - Firearms or imitation firearms; - A weapon of offence which ‘means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use’; or - Explosives. For aggravated burglary relying on a: - Section 9(1)(a) offence: The defendant must have this article with them when entering the building; or - Section 9(1)(b) offence: The defendant must have this article with them when committing the theft (or attempt) or the grievous bodily harm (or attempt).

Answer 99

The Fraud Act 2006 (FA) abolished the old offences related to deception. They were replaced primarily by one offence of fraud under s 1 FA. The Act lists three different ways in which fraud can be committed: * fraud by false representation (s 2); * fraud by failure to disclose (s 3); and * fraud by abuse of position (s 4). This element will focus on fraud by false representation. The maximum penalty for fraud, in relation to each of the different ways in can be committed, is the same and is also set out in s 1. If the defendant is tried on indictment, the maximum penalty is ten years in prison, or an unlimited fine.

Answer 100

This offence most closely matches the old offences of deception, and therefore reference will be made to case law that assists in explaining the concepts involved. It is, however, much wider than the deception offences, being a conduct rather than a result crime. All that is required for the actus reus is a false representation. There is no requirement that this representation deceives anyone.

Answer 101

(1) A person is in breach of this section if he— (a) dishonestly makes a false representation, and (b) intends, by making the representation— (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss.

Answer 102

According to s 2: (2) A representation is false if— (a) it is untrue or misleading […] (3) “Representation” means any representation as to fact or law, including a representation as to the state of mind of— (a) the person making the representation, or (b) any other person. (4) A representation may be express or implied.

Answer 103

The representation that forms the heart of the case can be made expressly by the defendant, or can be implied (s 2(4)). An implied representation can arise from: * What the defendant says: In R v King[1979] Crim LR 122 a second-hand car dealer who stated that the mileage reading on a particular car ‘may not be correct’ impliedly represented that he was not certain the reading was wrong when in fact he knew it was wrong as he had altered it

Answer 104

* The defendant’s conduct: In DPP v Ray [1974] AC 370 the court held that the respondent made a continuing implied representation when entering a restaurant, ordering and eating a meal that he had the means and the intention of paying for it before he left. Pure silence, without an accompanying action cannot amount to a representation (R v Twaite)

Answer 105

Idrees had failed his driving theory test 15 times. An unknown person then took the test pretending to be Idrees and passed. There was good evidence that Idrees had arranged this: Idrees had booked the test slot and he had booked it in English despite having taken the previous 15 tests in Urdu. It was found that the person who took the test made a false representation by conduct that he was Idrees and he did this as Idrees’s agent. The magistrates’ court convicted Idrees of fraud by false representation and the High Court upheld the conviction.

Answer 106

A representation as to fact or law will normally be relatively straightforward. A representation as to the state of mind, whether of the defendant or any other person, requires further consideration. A false representation as to one’s belief may satisfy the requirements of s 2 if it can be shown that the defendant does not in fact hold that opinion or belief.

Answer 107

The court stated: It is very difficult to prove what the state of a man’s mind at a particular time is, but if it can be ascertained it is as much a fact as anything else. A misrepresentation as to the state of a man’s mind is therefore, a misstatement of fact […]

Answer 108

A second-hand car dealer stated that the mileage reading on a particular car ‘may not be correct’. The court held that the defendant had impliedly represented that he was not certain the reading was wrong (in fact he knew it was wrong as he had altered it). The latter representation is one of present fact, about the dealer’s mental state.

Answer 109

If the facts are not equally well known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of material fact, for he impliedly states that he knows facts which justify his opinion. If the defendant is in a better position to express the belief or opinion than the other party, this may also amount to a false representation.

Answer 110

The state of mind required can also relate to an intention. If the defendant states an intention to do something, when D in fact has no such intention, this may also amount to a false representation. In this case, it was implied from the respondent’s course of conduct that he would pay for his meal before leaving the restaurant, which was a false representation of his intention/ state of mind after he made the decision to leave without paying.

Answer 111

Section 2(2)(a) The issue as to whether a representation is untrue will be an issue of fact for the jury to determine and will often be a straightforward one to resolve. The Act appears to create an alternative approach by describing a false representation as one that is untrue or misleading. It is, however, unclear at present what the term ‘misleading’ adds.

Answer 112

One situation that the courts had to resolve under the old deception offences, was whether a trader or service provider, who charges a customer a sum for goods or services significantly above the market rate, was guilty of deception. It has been argued that the basic principle in English law is that a person is entitled to charge whatever sum they consider appropriate – it is up to the customer to assess whether the amount charged represents a fair price. Nevertheless, criminal law has been willing to impose liability in certain circumstances for such overcharging.

Answer 113

* R v Silverman, where Watkins LJ found that a false representation arose because of 'circumstances of mutual trust’; and * R v Jones, where Auld LJ referred to the defendant being the victim’s ‘trusted friend’. Note. It might be possible in a similar situation to charge the defendant with fraud by abuse of position (see the separate element on this) but a more straightforward route would be to establish liability under s 2 on the grounds that there was an implied representation that the charge was fair

Answer 114

This case concerned a builder who had worked for the family of two elderly sisters for a number of years. On several occasions, he charged excessive amounts for work done on their home. He argued that he made no specific comment about the fairness of the charge.

Answer 115

It seems clear to us that the complainants, far from being worldly wise, were unquestionably gullible […]. [T]hey relied implicitly upon the word of the appellant about their requirements in their maisonette. In such circumstances of mutual trust, one party depending upon the other for fair and reasonable conduct, the criminal law may apply if one party takes dishonest advantage of the other by representing as a fair charge that which he but not the other knows is dishonestly excessive.

Answer 116

Note that the method the Court of Appeal used to impose liability in these circumstances was to imply a false representation into the dealings between the defendant and the victims that the charge made was a fair one.

Answer 117

Watkins LJ referred in the quote above to the victims in Silverman as being ‘far from worldly wise’ and ‘unquestionably gullible’. Does this mean that an essential factor required where overcharging can be regarded as fraud, is that the victim is in some way ‘vulnerable’?

Answer 118

Facts: J, a milkman, was convicted of obtaining property by deception for overcharging for crates of milk. The purchaser regarded J as a friend. It is true that [the victim] was not gullible in the same sense as was alleged in the case of Silverman. He was an experienced businessman who has been running a busy corner shop for many years […]. But he was gullible in the sense that in his busy life he never for a minute felt that he needed to check what his long time and trusted friend asked for each week or to relate it to the actual quantities received. It may be that he was remarkably stupid or careless about this. But on the evidence it was a stupidity or carelessness born of trust, and it was a stupidity or carelessness of which the appellant was aware and of which he was able to take advantage for many years.

Answer 119

This is covered by s 2(5) which states: For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

Answer 120

This provision will catch those using stolen credit cards and PIN codes to get money from ATMs, and also those who use such cards to make online purchases. In such cases a defendant could be charged with the theft of the card, and also for using the card to falsely represent to a machine that they are entitled to withdraw the funds, or are entitled to make a payment for the sum, which D attempts to spend

Answer 121

There are three aspects of the mens rea of fraud by false representation: * Dishonesty; * Mens rea for the false statement; and * Intention to make a gain or cause a loss.

Answer 122

The test for dishonesty has always been the same as that applied in theft. This means that Ivey v Genting Casinos is the test which should be applied. Note, however, that the negative definitions of dishonesty contained in the s 2(1) Theft Act 1968 apply only to the offence of theft and therefore will not apply to offences under the FA. This means that the first part of the test in Ivey, which directs the jury to the defendant’s knowledge and belief, may well prove to be significant.

Answer 123

The Supreme court gave two questions to ask regarding the test for dishonesty: (a) What was the defendant’s knowledge and belief as to the facts? (b) Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people?

Answer 124

This is an interesting case to bear in mind, when considering the issue of dishonesty. It is a case decided under the old law, although the principle which flows from it is thought to be equally valid under the Fraud Act 2006. In this case Clarke, a private investigator, falsely told a group of potential clients that he was a former fraud squad officer and a court bailiff. As a result of those representations, he had been engaged to trace funds of a group of victims of fraud. He was charged under s 16 Theft Act 1968 (now repealed).

Answer 125

The judge directed the jury that he was dishonest if he made these deceptions. Clarke’s case was that he believed he was able to do the work well, so was not dishonest. The Court of Appeal allowed an appeal. The interpretation of the trial judge’s indication was that he thought it was necessarily dishonest to tell lies to obtain employment, irrespective of whether or not the liar thought he could do the job properly and intended to do so

Answer 126

Parliament had included in the offence the requirement of dishonesty as well as the requirement for a deception. Therefore, there should have been a direction on dishonesty.

Answer 127

The defendant must know, or be aware, that the statement is untrue or misleading (s 2(2)(b)). It appears that the requirement that the defendant is aware that the statement is untrue or misleading will be satisfied if D is subjectively aware of the possibility that what they are saying or implying is false

Answer 128

The Court of Appeal held that recklessness with regard to a false statement requires more than mere carelessness or negligence; there must be an indifference to, or disregard of, whether a statement is true or false. A belief, however unreasonable, that the representation is true will prevent the defendant’s conduct from amounting to deception. Thus, if a person knows the statement they are making might be false, then they should make that clear to the person they are making it to. If a person gives a clear caveat, then they do not make a false statement, but a true statement.

Answer 129

This requirement of mens rea (which is common to all the ways that the offence of fraud can be committed) marks one of the most important differences between the old deception offences and those created by the FA The deception offences, such as obtaining property by deception, required that the defendant actually obtain something as a result of D’s representation (property in the case of this specific offence).

Answer 130

The requirement of an actual gain or loss is absent from the offences of fraud under the FA. All that is required is that the defendant intended to make a gain, even if no such gain arose. In fact, this element of mens rea is much wider than that as it is enough that the defendant: * Intends to make a gain for themselves; * Intends to make a gain for someone else; * Intends to cause a loss to another; or * Exposes someone to a risk of loss.

Answer 131

In R v Dziruni [2008] EWCA Crim 3348 a false representation made with a view to getting a job could be regarded as intention to make a gain in terms of money. Reference must be made to s 5 to find the full definition of ‘gain’ and ‘loss’: (2) “Gain” and “loss”— (a) extends only to gain or loss in money or other property; In R v Dziruni [2008] EWCA Crim 3348 a false representation made with a view to getting a job could be regarded as intention to make a gain in terms of money. Reference must be made to s 5 to find the full definition of ‘gain’ and ‘loss’: (2) “Gain” and “loss”— (a) extends only to gain or loss in money or other property;

Answer 132

(b) includes any such gain or loss whether temporary or permanent; and “property” means any property whether real or personal (including things in action and other intangible property). (3) “Gain” includes a gain by keeping what one has, as well as a gain by getting what one does not have. (4) “Loss” includes a loss by not getting what one might get, as well as a loss by parting with what one has

Answer 133

This section considered one of the ways to commit the offence of fraud under s 1. The key elements of fraud by false representation are set out in s 2:

Answer 134

* Express or implied representation * Representation as to fact, law or state of mind * Representation must be untrue or misleading A false representation can arise in certain circumstances of overcharging (Silverman, Jones) and representations include those made to a machine (s 2(5)). Mens rea: * Dishonesty: use the test from Ivey v Genting Casinos * Mens rea for the false statement * Intention to make a gain or cause a loss (see s 5)

Answer 135

This method of committing fraud is set out in s 3: A person is in breach of this section if he— (a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and (b) intends, by failing to disclose the information— (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss. The actus reus of fraud by failure to disclose requires: * Existence of a legal duty; and * Failure to disclose.

Answer 136

The Fraud Act 2006 makes no attempt to define the type of duty to which this section applies. Some guidance can be obtained from the Law Commission’s report that led to the Act. The Commission suggested a number of examples of the type of duty involved, including a duty: (a) Arising from statute (such as the provisions governing company prospectuses); (b) Within a transaction of the utmost good faith (such as a contract of insurance); (c) Contained in the express or implied terms of a contract; (d) Arising from a custom in a particular trade or market; and (e) Arising from a fiduciary relationship (such as that between a principal and agent).

Answer 137

An example of a duty arising from contract. Razoq was a doctor who signed a contract with a locum agency in which he agreed to inform the agency of any disciplinary proceedings against him. When he failed to disclose this information, he was found guilty of s 3 FA on the basis that his legal duty to disclose arose from an express term of a contract.

Answer 138

Mashta was claiming benefits on the grounds of destitution. During this time, he obtained employment. He was held to be under a legal duty to disclose the change in his financial circumstances.

Answer 139

Once the existence of a legal duty has been established, the prosecution must prove that the defendant failed to disclose the information to another person. This will be a matter of fact, and in most instances will be easy to prove.

Answer 140

Two aspects of mens rea are required, which are very similar to the mens rea for fraud by false representation. The first is dishonesty.

Answer 141

The test for dishonesty has always been the same as that applied in theft. This means that Ivey v Genting Casinos is the test which should be applied. Note, however, that the negative definitions of dishonesty contained in s 2(1) Theft Act 1968, apply only to the offence of theft and therefore will not apply to offences under the FA.

Answer 142

Reference must be made to the Fraud Act 2006, s 5 to find the full definition of ‘gain’ and ‘loss’: In R v Dziruni [2008] EWCA Crim 3348 a false representation made with a view to getting a job could be regarded as intention to make a gain in terms of money. This could also apply to fraud by failure to disclose.

Answer 143

This section considered one of the ways to commit the offence of fraud under s 1. The key elements of fraud by failure to disclose are set out in s 3:

Answer 144

* Existence of a legal duty to disclose eg from statute, a transaction of the utmost good faith, contained in the express or implied terms of a contract, arising from a custom in a particular trade or market or arising from a fiduciary relationship. * Failure to disclose information to another person: a matter of fact

Answer 145

* Dishonesty: Use the test from Ivey v Genting Casinos - What was the defendant’s knowledge and belief as to the facts? - Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people? * Intention to make a gain or cause a loss (see s 5).

Answer 146

Details of this form of fraud can be found in s 4 FA 2006: (1) A person is in breach of this section if he— (a) occupies a position in which he is 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 the abuse of that position— (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss. (2) A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.’

Answer 147

The Act does not seek to define the type of position required, except to state that this position must be one requiring the defendant to look after the victim’s financial wellbeing

Answer 148

The necessary relationship will be present between trustee and beneficiary, director and company, professional person and client, agent and principal, employee and employer, or between partners. It may arise otherwise, for example within a family, or in the context of voluntary work, or in any context where the parties are not at arm’s length. In nearly all cases where it arises, it will be recognised by the civil law as importing fiduciary duties, and any relationship that is so recognised will suffice

Answer 149

This does not of course mean that it would be entirely a matter for the fact-finders whether the necessary relationship exists. The question whether the particular facts alleged can properly be described as giving rise to that relationship will be an issue capable of being ruled upon by the judge and, if the case goes to the jury, of being the subject of directions.

Answer 150

The conclusion that can be drawn from the explanation from the Law Commission seems to be that the position required by s 4, will be easy to prove where there is a professional, fiduciary or long-term business relationship. However, the type of fraud outlined in the s 4 is clearly not limited to such relationships.

Answer 151

Court of Appeal has confirmed that this is a matter which will be determined on a case-by-case basis. This case primarily deals with the issue of abuse of this position and will be discussed later in this element.

Answer 152

Marshall was the manager of a residential home for adults with severe learning difficulties. She had control over the residents’ bank accounts. She withdrew money from the bank account of one resident and spent it on herself. She was convicted of s 4.

Answer 153

Valujevs and Mezals were gang masters who controlled a group of Latvian and Lithuanian workers who had come to Cambridgeshire in search of agricultural work. They found work for these workers and took responsibility for paying their wages and finding their accommodation. Valujevs and Mezals had been making deductions from the workers’ wages and had charged the workers inflated rents for their accommodation. The trial judge held that V and M were not in a position in which they were expected to safeguard or not act against the financial interests of the workers.

Answer 154

The decision was overturned by the Court of Appeal. In finding that the defendants occupied a position of trust as required by s 4, the court said it was clear from the wording of the section that Parliament did not intend to restrict the application of s 4 to those who owed a fiduciary duty to the victim. However, if there was no fiduciary duty it was necessary for the prosecution to show an obligation that is akin to a fiduciary duty.

Answer 155

Fulford LJ agreed with the judge that s 4 should not apply in ‘the general commercial area where individuals and businesses compete in markets of one kind or another, including labour markets, and are entitled to and expected to look after their own interests’. So he concluded that the fact that the defendants provided accommodation for the workers did not give rise to the relevant position. What was crucial and put them into the required position was that the defendants assumed responsibility for collecting the workers’ wages.

Answer 156

Although the statute does not provide any assistance on the issue, in our view the “expectation” in section 4 of the 2006 Act is an objective one. It is for the judge to assess whether the position held by the individual is capable of being one “in which he is expected to safeguard, or not to act against, the financial interests of another person.

Answer 157

If it is so capable, it will be for the jury thereafter to determine whether or not they are sure that was the case. It would be untenable to suggest that the expectation should be that of either the potential victim (the test would, in all likelihood, be too low) or the defendant (the test is likely to be set too high). Therefore, this is an objective test based on the position of the reasonable person.

Answer 158

Once the prosecution have shown that the defendant occupied a position requiring D to safeguard the position of the victim of the fraud, they must then prove that the position has been abused. Once again, there is no guidance from the FA as what would amount to an abuse of position.

Answer 159

However, some direction has been provided from the case of R v Pennock & Pennock [2014] EWCA Crim 598. The Court of Appeal adopted the definition suggested in Archbold, namely: ‘uses incorrectly’ or ‘puts to improper use’ the position held in a manner that is contrary to the expectation that arises because of that position. The way in which the Court of Appeal applied this definition against the facts in Pennock provides a useful insight of how this may apply within particular scenarios.

Answer 160

In this case, the defendants, Mr and Mrs Pennock befriended Mrs Pennock’s elderly great uncle, Mr Spann. Mr Spann was residing in New Zealand at the time but, partly for health reasons, he decided to move back to the UK.

Answer 161

Note that s 4(2) provides that this offence can be committed by an omission as well as by an act. An example of how this might occur is when an employee who has a duty to collect payment on behalf of their employer fails to do so.

Answer 162

There are two aspects to the mens rea of fraud by abuse of position: * Dishonesty; and * Intention to make a gain or cause a loss.

Answer 163

Section 4(1)(b): dishonestly abuses that position Note, however, that the negative definitions of dishonesty contained in s 2(1) Theft Act 1968, apply only to the offence of theft and therefore will not apply to offences under the Fraud Act 2006.

Answer 164

The second aspect of the mens rea is intention to make a gain or cause a loss. The requirement of an actual gain or loss is absent from the offences of fraud under the Fraud Act 2006. All that is required is that the defendant intended to make a gain, even if no such gain arose. In fact, this element of mens rea is much wider than that as it is enough that the defendant: intends to make a gain for themselves, intends to make a gain for someone else, intends to cause a loss to another or exposes someone to a risk of loss

Answer 165

Note. Where an employee fails to collect sums owed to their employer, due to laziness (rather than assisting the person who should be paying or punishing their employer), there would be an oblique intention to make a gain for another and cause a loss to their employer. Applying the test in R v Woollin, it would be virtually certain that such a gain and loss would be caused and the defendant would appreciate this to be the case.

Answer 166

This section considered one of the ways to commit the offence of fraud under s 1. To be liable for fraud by abuse of position (s 4) D must: Actus reus: * Occupy a position which requires D to look after V’s financial wellbeing. Determined on a caseby-case basis. Can be a professional, fiduciary or long-term business relationship or even within the family or voluntary work. * Abuse that position: use it incorrectly or put it to improper use (R v Pennock &Pennock).

Answer 167

* Dishonesty: Use the test from Ivey v Genting Casinos: - What was the defendant’s knowledge and belief as to the facts? - Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people? - Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people? * Intention to make a gain or cause a loss (see s 5)

Property offences Flashcards

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