Criminal Law

Maryam Begum

Registration No. 03167008

Having studied the scenario I would assume that the principle issue arising out of this scenario is theft and other main offences related to theft such as deception. The fundamental Act dealing with this scenario is the Theft Act 1968 and 1978.

This essay evokes a step by step analysis of the key aspects of criminal law with regards to theft and related offences.

I will attempt to break down the situations and analyse it from a criminal law perspective, in the series as they arise in the question. Through this essay I will endeavour to explore the potential criminal liability arising out of this scenario.

There are four different individuals in this scenario and I will discuss their potential criminal liability separately, starting with Vanessa.

Vanessa:

In Criminal law two key elements must be borne in mind in order to establish whether a person is guilty of an offence. These two elements are: actus reus and mens rea. Actus reus being the unlawful act and mens rea is the state of the mind of the accused. In order for the accused to be guilty not only must he/she have committed the unlawful act but also have a guilty mind, as only the blameworthy should be punished for their actions.

To ascertain whether she is potentially criminally liable for any offence I would establish as to whether her actions constituted theft, deception and whether she has any defences.

Under section 1 (1) of the Theft Act 1968, “a person is guilty of theft if he dishonestly appropriates property belonging to another with intention of permanently depriving the other of it.”

The actus reus of theft is, thus, appropriating property belonging to another and the mens rea is dishonesty and an intention to permanently deprive.

I will analyse whether Vanessa has committed the offence of theft under section 1 of the theft Act 1968 and if she is liable for any other offences.

The initial matter that needs to be addressed and whether or not Vanessa appropriates property belonging to another, as these are the three key elements of actus reus in theft.

“Appropriation is a significant aspect in the law of theft,” as illustrated in the case of R v Gomez [1993] AC 4442 (HL). Section3 (1) establishes that:

“Any appropriation 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 an owner.”

Consequently it must be revealed that the act is something that only the owner has the right to do.

“There is an appropriation if the defendant has assumed any of the rights of the owner.”

Section 4 defines what property is;

“Property includes money and all other property, real or personal, including things in action and other intangible property.”

Section 5 of the theft Act 1968 defined what belonging to another is:

“Property shall be regarded as belonging to any person having possession or control of it, or having proprietary right or interest in it.” As illustrated in Turner (no.2) [1971] RTR 396.

Vanessa has borrowed a very expensive coat from where she works. Although she is an employee, she is not the owner of the shop; therefore she does not have the right to take the fur coat out of the shop without the permission of the owner, Kilroy. Hence, it appears she has assumed the right’s of Kilroy by taking the coat home without his acknowledgement and permission, qualified by Morris [1983] Crim LR 813 (HL).

Consequently it appears that she completed appropriation (under section 3) property (under section 4) belonging to another (under section 5)

Thus according to section 1 it would appear she has committed the actus reus of theft. The question arises whether she satisfies the mens rea for theft and falls into the category of theft defined by section 1.

In theft there are two elements of mens rea borne into mind:

Dishonesty
And intention to permanently deprive.

Section 2 provides the exceptions to dishonesty. It would appear that Vanessa does not fall under any of the ...

This is a preview of the whole essay

Consequently it appears that she completed appropriation (under section 3) property (under section 4) belonging to another (under section 5)

In theft there are two elements of mens rea borne into mind:

Dishonesty
And intention to permanently deprive.

Section 2 provides the exceptions to dishonesty. It would appear that Vanessa does not fall under any of the three exceptions to dishonesty outlined under section 2. As illustrated in the case of Feely [1973], where the judge directed the jury that the defendant was dishonest when he borrowed £30 from the till even though he had the intention to repay it.

Furthermore to ascertain whether Vanessa was dishonest you would have to apply the two stage test for dishonesty set out by Ghosh [1982].

The jury must decide if the behaviour of the defendant was dishonest according to the standards of ordinary honest people?
Does the defendant realise that he was being dishonest according to those standards?

It would appear that Vanessa’s behaviour would be dishonest according to the standards of ordinary honest people and would also appear that she realised she was being dishonest according to those standards. She did not tell the owner that she was borrowing his property thus had no consent from the owner. Nonetheless it is up to the jury to decide whether she was dishonest.

“Theft requires an intention to deprive the owner permanently.” It would appear that Vanessa did not have the intention to deprive Kilroy if the fur coat permanently as she intended to return it. “Dishonest borrowing is not theft.”

At this point Vanessa is not liable for theft as she intended to return the coat, as illustrated in Warner [1970] 54 Cr App R 93 (CA). “The requirement of intentional deprivation means that borrowing does not normally amount to theft.”

As expressed in the case of Lloyd [1985] 2 ALL ER, the defendant borrowed a film from the school to copy it and returned it. It was held that this did not amount to theft from the company owning the film as he had no intention to permanently deprive and that the film still had value. For that reason, it can be suggested that Vanessa cannot be liable for theft at this point as “the essence of theft is deprivation,” as she intends to return the coat the next day.

I will establish later on if she can still be liable for theft of the fur coat following her subsequent conduct.

Although she is not yet liable for theft, however, later on, she decides to wear it to the casino and is careless as she drinks and uses a credit card which has already exceeded its limit, possibly under the influence of alcohol. Vanessa may be potentially liable for deception which is defined under sec15(4) of the Theft Act 1968:

“For the purpose of this section ‘deception’ means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person.”

When obtaining the gambling chips using her exceeded credit card, with the assumption that this goes against the terms and conditions of use Vanessa can be liable for obtaining the gambling chips by deception from the casino under section 16(1) of the Theft Act 1968. As seen in Lambie [1982] AC 449 (HL) “House of Lords was willing to assume that the victims handed over the property because of the defendants’ implied statements that they were authorized to use the cheques or credit cards.” As the casino may have been reluctant to sell her the gambling chips had they known that she already exceeded the limit on that card, expressed in M.P.C v. Charles [1976.] it would appear that Vanessa had made a false representation that she was authorized to come into contracts on behalf of the credit card company binding the company to honour the payment. “This offence will be committed by Vanessa against her bank or Credit Card Company.

Vanessa can argue that she had no intention to permanently deprive the casino, and appeal on the grounds that the staff at the casino had not relied on her false representation to accept the card in payment for the gambling chips.

However under sec.16(2)(c) of the Theft Act 1968 it is an offence if he is given the opportunity to earn or remuneration or greater remuneration in an office or employment, or to win money by betting. “If a person by deception is able to gamble he is guilty of an offence.”

However, Vanessa may argue that she was dishonest when she obtained the gambling chips as she was under the influence of alcohol. So she does not fulfil the requirements of deception under sec.15. Nevertheless it is up to the jury to come to a decision whether or not she was dishonest.

Vanessa wins £500 at the table and when collecting her winnings she is handed £5000 instead, however, Vanessa does notice the error but decides not to say anything and leaves immediately. Issues such as deception, omission and theft arise from her conduct.

“Silence can be deceptive.”By Vanessa omitting to point out the error to the casino staff and leaving in haste her behaviour can amount to deception as it shows intention to deprive the owner of the property (money) permanently, as exemplified in Firth [1990] Crim LR 326 (CA.) However Vanessa did not deceive anybody to obtain the (property) money and thus doesn’t complete the actus reus for deception in this instance.

However, section 5(4) “deals with the situation where the defendant has received property as a result of another’s mistake and is under an obligation to restore the proceeds or their value.”When Vanessa was overpaid she was under an obligation to return the money once she realised the error and therefore the money belongs to another (the casino). Thus Vanessa leaving with the money she has appropriated property belonging to another. It would appear she is dishonest under the Ghosh test and had the intention to permanently deprive the casino.

Consequently she can be held liable for theft under sec1 of the theft act 1968. As a result she left fur coat for which she can also be held liable for theft under sec.6(1) of the Theft Act 1968:

“ a person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the owner of it if his intention is to treat the thing as his own to dispose of regardless of the other’s right, and a borrowing or lending of it may amount to so treating it if, but only if the borrowing or lending is for a period an in circumstances making it equivalent to an out right taking or disposal.”

She assumed the rights of Kilroy by wearing the coat to the casino and by “disposing”of it as though it were her own by leaving it in the casino.

Vanessa can try to argue voluntary intoxication as her defence as theft is a specific intent crime. “Where a defendant is voluntarily intoxicated, s/he may have a defence to a crime of specific intent:” DPP -v- Majewski [1976] 2 All ER 142 H/L. she can argue that her intention to steal the money or leave the coat or dispose of the coat was absent due to her voluntary intoxication.

On the contrary it maybe argued that Vanessa may still be liable for theft of the oat as “ a person in possession or control of another’s property who, dishonestly and for his own purpose, deals with that property in such a manner that he knows he is risking its loss,” shown in Fernadez [1996].

Trisha:

I’m going t establish whether her actions of taking the coat home constituted theft.

She satisfies the actus reus of theft as she appropriates property belonging to another as explained above. Although she has found the coat and that abandoned goods are ownerless, the coat maybe lost rather than abandoned, therefore cannot claim ownership over it.

“If an employee finds something loose on the employer’s property, the employer has superior right over possession.” Hence she should have followed the rules and regulations and handed it into lost property instead of taking it home.

However, it would appear that under sec.2 of the theft act Trisha may not have been dishonest and thus has no mens rea for theft. Sec(1)(c) summarizes the finders defence. If this is successful then Trisha is not liable for theft or any other offence. As Trisha takes reasonable steps to see if the owner had enquired for after it and if anyone had come forward for the coat.. However the jury may decide under the Ghosh test that she was dishonest as she took it home and reassured Jo that it was ok to “borrow” it for a day or two, when she most probably knows that she is not allowed to take it home.

It is not clear whether or not she intends to return it. It would appear as though she did because she tries to find out if anyone had asked after it at the lost property department thus under sec.1 she does not complete mens rea for theft. As she can argue that she had no intention of permanently depriving the owner and dishonest borrowing does not amount to theft.

Jo:

It does not appear that Jo is liable for any offence as to his belief he believes that it is ok for Trisha to borrow the coat. It would appear that he does not no know that she has no right to borrow the fur coat.

Esther:

Esther may potentially be liable for theft and criminal damage.

Esther satisfies both the actus reus and mens rea for theft. As she appropriates property which she believes belongs to Trisha with the intention to deprive them permanently as she burns the coat in the incinerator.

Esther may argue that she was not dishonest in her action as she acted in way she thought was moral because she has a moral objection against fur, therefore cannot satisfy the mens rea. On the contrary it can be argued that “the majority of ordinary honest people would not be enlightened enough to see the goodness in her actions and would regard them as dishonest.” Therefore it would appear she was dishonest under the Ghosh test as I have explained above. Consequently fulfilling all the requirements for theft under sec.1 of the Theft Act 1968.

Moreover she may also be liable for criminal damage under the Criminal Damage Act 1971.

The actus reus consists of destroying or damaging property belonging to another. The mens rea for criminal damage is intention or Caldwell recklessness.

It would appear that Esther has the actus reus by burning the coat which does not belong to her with the necessary mens rea, as she intended to destroy the coat. Under sec.5(2) of the Act a defence of lawful excuse for burning the coat would have been accessible to her if:

‘The defendant honestly thought he had the consent of the relevant person, or would have if that person had known the circumstances or’
‘He acted as he did in order to protect property he thought in immediate need of protection, and he believed the means used were reasonable.’

It would appear that Esther dose not satisfy any of the above requirements as she did not have consent from as Trisha, as Esther believed it belonged to her. Neither did she destroy the property to protect it as illustrated in Johnson v. D.P.P [1994].

In conclusion it would appear that Vanessa may be liable for two counts of theft and deception.

It appears that Trisha and Jo may not be liable for any criminal offence.

Esther may be potentially liable for theft and criminal damage.

I have attempted to illustrate above how these individuals can be potentially liable for their offences with their relevant defence that they can potentially argue. Ultimately it is up to the jury to find these people guilty or not guilty.

Bibliography:

Allen, M, Textbook on Criminal Law, 8th Edition, Oxford University Press, 2005
Dobson, P, Criminal Law, fifth edition, Sweet and Maxwell, London, 1999
Herring, Jonathan, Criminal Law, Oxford university Press, 2004
Simester, AP, Sullivan, GR, Criminal Law, Theory and Doctrine, Hart publishing, 1999

Websites

www.lawteacher.net

www.wmin.ac.uk