The third element is that of dishonesty, which is separate to deception. Whether one has been dishonest is decided by the jury, as in the case of Feely, so that the dishonesty would be judged by the standard of ‘ordinary decent people’. Even so, the jury must be directed to judge dishonesty under the Ghosh test: whether 1) the defendant’s actions were dishonest according to the standards of a reasonable and honest people and 2) did the defendant realise that it was dishonest according to those standards. Regarding this case, it is probable that John would be found to be dishonest. John’s actions were below the standards of reasonable and honest people, since there was a condition of qualification imposed, and John would have been aware that his actions were dishonest according to those standards.
In the similar case of Lewis, it was ruled that whilst the job was obtained by deception, one cannot be guilty of obtaining his salary by deception as the payment is made in regards to the work done. It is clear that John had deceived the headmaster into thinking that he had qualified because John has obtained the job despite not being qualified. Whilst John did deceptively obtain the position, he could claim that he was not dishonest as he intended to give complete value for the salary paid, yet this too is to be decided by the jury, and the fact that John has not been a competent employee by stealing from the petty cash box, it would appear very unlikely that this claim would be upheld. Therefore, John would be likely to be charged and convicted of obtaining a pecuniary advantage by deception as under section 16 (2) (c) of the Theft Act of 1968.
The return and sale of the copies of the video:
This incidence entails John’s task appointed by the school to return on Saturday, the video borrowed on Friday. However, the rental agreement allows for the video to be returned on Monday. Every weekend, John makes ten copies of the video, sells them, and then returns the original back to the store on Monday. The first possible liability could be when John returns the video. The rental agreement is for the video to be borrowed until Monday, however, the agreement between John and the school may be for him to return them on the Saturday. So, there could be a civil liability for breach of contract if it was a term of John’s contract, but no criminal liability.
The other possible liability would arise when John makes copies of the video and sells them. There would possible be a charge of theft. The definition of theft is the dishonest appropriation of property belonging to another with the intention to permanently deprive. Firstly, one must establish the actus reus elements, which are property, belonging to another and appropriation. The property would be the actual film, not the video itself, since that was returned within the rental agreement. The film would have belonged to the films company and by copying the film and selling them, John has assumed the rights as the owners, and so has appropriated the film (as defined in Gomez and Hinks). As to the mens rea, John must have been dishonest and intended to permanently deprive. Section 2 (1) of the 1968 Theft Act dictates that a person who appropriates a property belonging to another will not be dishonest if he falls within the three categories: that the defendant believes he has a claim in right, or that the owner would consent if known about the circumstances or that the property’s owner cannot be discovered by taking reasonable steps. Regarding this case, it appears that John would not have fallen within any of these categories. Therefore, the jury would find him to be dishonest. The final mens rea element is the intention to permanently deprive as under section 6 (1) of the Theft Act, 1968. In this situation, it is quite evident that John did not intend to permanently deprive; the original was returned. In the similar case of Lloyd, the defendant borrowed a film to copy it and returned it. It was held that this was not theft from the company owning the film as there was no intention to permanently deprive (as in Oxford v. Moss) and that the film still had value. Therefore, it could be suggested, since this case and Lloyd are so similar, that it would not be theft in this case either, for the same reasons in Lloyd.
The use of the school’s discount for personal use:
The school are entitled to a 20% discount on all video hire for classroom use, however, John takes out videos for his own personal use, and 20% is also deducted from his bill. There seems to be an element of deception; the discount would not have been given if it was known that John was hiring the videos for his own use. It is possible that he may be charged with obtaining property by deception, however, it is more likely that he will be charged with obtaining services by deception. What John obtained by deception was not the video, but the discount, and that would not constitute as property. As under section 1 of the 1978 Theft Act, there must be dishonesty, deception and a causal link between the deception and the obtaining. There does appear to be a presence of all three elements as the deception (already defined in the first liability case) would be construed as an implied statement, since he knows that the discount is only for the school’s use of video hire, and the service was obtained by inducing the shop assistant to deduct 20% from the whole bill. As to dishonesty, it would be the same test as in Ghosh, and it is very probable that John would be deemed as being dishonest. Also, it is obvious that there is a causal link between the deception and the obtaining, as John deceived the assistant to believe that the videos for him were for the school’s use, and so the 20% discount was given.
The taking of the school’s card and PIN number and withdrawal of £100:
Since John has access to the school’s petty cash box and had no money and wanted some to impress a girlfriend, John took the school’s bank card and PIN number. This is the first incident of liability. It is possible that John could be charged with the theft of the card and the PIN number. In regards to the card, the actus reus elements are present: the card is a tangible thing in action, and thus property, the card belongs to the school and John has used it, assuming the rights of an owner, appropriation. With concern to dishonesty and intention to permanently deprive, it is highly unlikely that John would be found to not be dishonest, since he has no claim of right to the card, there would have been no consent given by the school and it could easily be discovered who the owner of the card was. With the intention to permanently deprive, it would depend on whether John returned the card or not. If he did, there would be no intent, and thus no theft, however, if he was to have kept the card, then he would be charged with the theft of the card.
Concerning the PIN number, the property would be classified as confidential information, and under Oxford v. Moss, this cannot constitute as theft as there is no property element.
The second liability case would be the withdrawal of £100. This would clearly be theft. The property being the money, the belonging to another is really the bank and John has appropriated the money. John’s actions were dishonest and not justified by section 2 (1) of the 1968 Theft Act. However, the element of intention to permanently deprive is again troublesome; John was hoping to find a means to repay it. In the case of Marshall, where unexpired London Underground tickets were resold by ticket touts, the court ruled that there was an intention to permanently deprive, because the touts had the intention to treat the tickets as their own, regardless of the London Underground’s rights. Marshall could be distinguished in this case, because whilst it could be argued by John that there was no IPD, as the money would eventually be returned to the bank, the decision would be the same as Marshall, since John disregarded the bank’s rights for his own and treated the money as his own by spending it. Therefore, it could be strongly argued that there was a case of theft.
In summary, it seems that John would be liable for obtaining a pecuniary advantage by deception (the job), obtaining services by deception (the discount), possible theft of the card depending on whether it was replaced, and also the theft of the £100.
Bibliography
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Ashworth, ‘The Principles of Criminal Law’
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Smith & Hogan, ‘Criminal Law’
Case List
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Feely [1973] QB 530
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Ghosh [1982] QB 1053
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Hinks [2000] 1 Cr App Rep 1
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Lewis (1922) Russell 1186
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Lloyd [1985] QB 829
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Marshall [1998] 2 Cr App Rep 282
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Oxford v. Moss [1979] Crim LR 119,
As in Smith and Hogan, ‘Criminal Law’, p.551
Lewis (1922) Russell 1186
Hinks [2000] 1 Cr App Rep 1.
Oxford v. Moss [1979] Crim LR 119, although this case hinged more on the issue of whether the confidential information from an exam paper, that was stolen, could constitute to property.
Marshall [1998] 2 Cr App Rep 282
