Criminal Law I Essay 2000.

In my opinion, however, I do not believe Agnes would be charged with either fraud or theft, and that it would be more likely that she would be taken to court as a result of breach of contract.

In the second situation, Agnes would almost undoubtedly be charged with theft.  The question is whether it is theft by use or theft by finding?  As previously mentioned, the actus reus of theft is the taking of someone’s property without their consent.  In this situation it has to be deciphered who’s property the fridge is.  It states that the fridge was addressed to E Ltd., the neighbouring company, however the question does not state if she noticed that it was addressed to E Ltd.  If she did not notice the address then the fridge is classed as being abandoned; this as a result falls to the crown and is therefore owned.  By law she should turn the fridge into the police/local authorities; however, as she planned to return the fridge to where it was found, it would result in Agnes being charged with theft by finding.  

If Agnes had noticed the address, then I believe she would be charged for theft by taking and using.  As mentioned, previously the mens rea of theft was to permanently deprive the owner of their property.  In this situation, Agnes would not be charged if she could prove that she intended to return the fridge.  However, law created by the High Court to deal with joy riding means that taking someone’s property, using it and intending to return it, is a crime.   Although she intends to return the fridge, when she actually removed the fridge, and she could not prove she was going to return it, then Agnes could also be charged with theft by taking.

In situation 3 with the credit card, Agnes may be charged.  Although the courts have previously opposed this opinion, it could be argued that Agnes was aware that she was not to use the Credit Card and her credit had been withdrawn, and hence, when she was using the card she knew it was against the banks wish.  She used the card to defraud the Agency, by leading them to believe that she had credit support from the bank, when actually she did not, and this led to a practical result in which she paid for a holiday. Agnes had both the mens rea and the actus reus when defrauding the company and should be held accountable.

In the 5th situation we do not have enough information to prove that Agnes has committed any crime.  It states that she has removed the money from the safe; however, it does not say she has taken it.  In certain cases, you can be committed with theft by removing an object from a container; however, Agnes has not committed a crime because it states, “Agnes is in sole charge of the firm”, and under the definition of theft: you cannot steal what is yours.  Although it can be argued that she was stealing from the company, where the company is regarded as a separate entity, it does not say she has taken the money, it states she “removed” the money, and being a partner of the company, she has every right to move the money as desired.

In situation 4, Harold may be charged with reset.  For Harold to be charged with reset he has to be in possession of stolen goods, which he knows were stolen.  I believe that there is not enough evidence to prove that Harold is guilty of reset.  When Harold and Agnes arrived back at the office, Agnes was driving, and Harold was not in control.  This could be interpreted that he did not have possession of the car, thus he could not be charged with reset.  This may be argued that Harold is guilty of having a third party possessing, yet it is doubtful.  Even if this is the case, it states that the accused has to have knowledge that the goods were stolen.  Harold may not have known that Agnes gave a false name when she was going for a test drive.  When they got in the car, he may not have known that she was trying to steal the car – in Harold’s defence, he could argue that he believed Agnes knew the owner of the garage and had been given permission to test drive the car for the day.  This is all hypothetical, as we do not have enough information to efficiently assess the situation, and even if Harold was aware that she was trying to steal the car, once she had started driving, it is arguable that he could not just jump from the moving car, as Agnes was driving at high speeds.  As mentioned, there is just not enough information, but on the details given, Harold would not be charged with reset.

In s.57 of the Civil Government (Scotland) Act, it states that

“any person, without lawful authority to be there, . . . it may be reasonably be inferred that he intended to commit a theft there shall be guilty of an offence”.  

With respect to situation 6, we are told that Agnes is on the fifth floor.  It does not state that she has no authority to be there; she works in an office on the first floor and unless each floor is rented out, she is on common ground and has lawful authority to be there.  It can be argued that she had the intention to commit theft, due to the manual and the keys, however, if it is the case that Agnes is allowed on the fifth floor, then the Act would not be applicability to section 6.

(b)

Sheriff Gordon’s comments to Scott v Friel were extremely short and to the point. However, he is questioning s.57 in respect to compatibility to the European Convention on Human Rights (ECHR).  He fails to mention what area of the ECHR which he believes there may be a contrast.  When observing the ECHR, I found only two areas in which the Sheriff may have been referring to, these are as follows.  The first is Article 5, where it states that every person has the right to Liberty.  The only problem with this is under the subsection of Article 5 it states that there is exemption to this if the there is country law which differs from this.  This is true in Scotland’s case; under s.57, a person does not have complete Liberty.  The second Article, which the Sheriff may have been talking about, is 7.  This once again seems unlikely, as it states that no one shall be guilty of a crime which when committed was not a crime under National, or International law.  As previously stated, it is doubtful that the Sheriff was talking about this article, because it was in relation to Scottish law.  The reason why I question these Articles, despite believing that they have little or no relation to s.57, is because I do not think that Sheriff Gordon was correct in what he said, however, I thought I had better examine areas in which he may have been referring to.

(c)

I do not think that the European Convention on Human Rights (ECHR) will have a substantial effect on Scottish criminal law.  I believe that the ECHR is based highly on Scottish, English, French and German law, and does not differ in many ways.  There is, however, two main areas which the ECHR may have some impact.  The first is the right to bail.  Currently under Scottish law, a person charged with murder may not be granted with bail, unless granted by the Lord Advocate, however, the ECHR opposes this with the belief that everyone is entitled to bail. The second area is Scotland’s Breach of the Peace.  The ECHR will require that the definition of this crime be high lightened, and defined better.  Also, another area which the ECHR may oppose under the Breach of the Peace is that another person can be charged because they acted in a way which may result in someone else committing breach of the peace.  As stated, these are only two areas in which the ECHR may have an impact, but over all there will not be a major impact.

Bibliography

Scots Criminal Law (2nd ed.)

McColl, Smith and Sheldon

Criminal Law

Jones and Christie

Criminal Law (2nd ed.)

Gordon

A Practical Treatise on the Criminal Law of Scotland

MacDonald

Web Sites Visited

http://www.hri.org/docs/ECHR50.html

---