criminal 15,16,17 (parties,theft)

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1.

principals /parties: principal: commits AR with MR parties does not commit AR, but assisted, procured it or encouraged. Joint principals: 2 or more persons commit AR with MR

2. 3.

Innocent Agency:: D causes AR of an offence to be committed.by a person who is innocent due to lack of MR or lack of capacity. Accessories and abettors act 1861: whosoever shall aid, abet, counsel. or procure an indictable offence will be punished as a principal offender (no new offence created) modes of participation: aid: any type of assistance Bryce 2004. Delay between aid and AR does not affect decision. abet/counsel: Nazir (2009) meaning is clear. Calhaem 1985 if principal would have committed act anyway secondary liability still exists. also Giannetto 1997 procuring: AGR 1 1975: note that secondary can be convicted even if principal acquitted.

4.

5.

MR SL Rook [1993] 2 All ER 955 and accepted in Bryce [2004] that the mens rea requirements are the same in all cases of SL: 1. act was done intentionally -secondary party knew it was aiding, abetting, counselling etc. Clarkson (1971) present at scene of rape, not enough to give rise to secondary liability SL (rape in army) 2. secondary party, must see or foresee crime as substantial risk. (not necessary to know specific details. Bainbridge 1960 Dpp v Maxwell 1978

6. 7.

Forseight Rook 1993: foresight not restricted to situations where parties work together (assistance can be before). also Reardon 1999 Foresight and type: Powell and Daniels 1999: it was necessary to prove that act foreseen was same act fatal. In the case stabbing was different from foreseen act. not guilty of murder and manslaughter SL. also Greatrex 1999. shared intention Rahman 2008: D1 and D2 intend to kill V with baseball bats, if D1 uses gun D2 is still guilty of murder. Gilmour 2000 shared intention and fundamentally different acts.: D2 is libale to extent of his MR Day and Day 2001 second convicted only for manslaughter since did not have MR for murder. Anderson ; Morris 1966 joint enterprise: both guilty of results of joint enterprise. even if there are unforeseen consequences. withdrawal before offence committed. O flaherty 2004: question of fact and degree for jury. take into account nature of encouragement/assistance, and how imminent is the infliction of fatal injury and nature of withdrawal.

8. 9.

10. 11.

12.

theft,fraud,obtaining services dishonestly,making off without payment: All statutory: Theft s1 Theft Act 1968 fraud :Fraud s1 Fraud Act 2006 obtaining services dishonestly: s11 Fraud Act making off without payment s1 Theft Act 1978

13.

Theft all compulsory 5 elements AR/MR: AR : appropriation ,property, belonging to another MR: dishonestly, intention permanently to deprive. Theft AR: appropriation, consent: assumption of rights of the owner. consent: HL: Morris, Lawrence, Gomez, Hinks

14.

15.

theft AR: property: all money, property real or personal, includes intangible e.g. debt. NOTE : Land is not included under theft (s4) theft: belonging to another: s 5: belonging to possessor, owner, controller. => owner can steal his own property! see Turner 1971 and Meredith 1973 can they be reconciled?

16.

17.

Woodman 1974 property belonging to you even if you do not know it exists.: company did not know scrap metal was on site, but still owns it. so taking it was theft. Hibbert v Mickiernan golf clubs owns lost golf balls.

18.

s5 person getting property by another's mistake? e.g. extra change returned: assumed to belong to person making mistake so if client knowingly does not return can be guilty of theft.

19.

theft MR dishonesty. s2 3 situations considered honest.: -not guilty of stealing if take something by mistake -s2 1. a. if he believe he has the right to take it 2. if he believes the other would have given consent 3. if he believes cannot be discovered within reason

20.

what is the test for dishonesty if does not fall under 3 situations? Ghosh 1982: by objective standard was it dishonest? if it was , did the D know that it was dishonest by those standards. The approach to evaluate is to first consider 3 conditions in statue if they do not apply than adopt test in Ghosh 1982.

21. 22.

MR permanently deprived s6 (1): if circumstances and period of taking make it equivalent to taking, then it is also considered theft. intention to borrow may be equivalent to taking, e.g. Lavender 1994 Fernandes 1996 LLoyd 1985 Marshall 1998: ...

23.

Fraud act 2006 committed in 3 ways: 1 false representation 2. failing to disclose information 3. abuse of position require proof of dishonesty, intended to make gain or expose another to risk of loss.

24.

false representation characteristics: any representation (note that it is sufficient for it to be misleading, but what about exaggeration in advertisement???): written, email , website -can be implied may be as to intention not needed to prove someone was deceived. Need not be communicated to human mind. (can be communicated to any device). e.g. entering pin number

25.

MR fraud:: D must KNOW that representation or true or misleading must INTEND to gain or cause another to lose money do not need ACTUAL LOSS, intention is sufficient Dishonesty: act must be dishonest

26.

Fraud by failure to disclose information: doest legal duty exist? question of law fiduciary contracts contracts of utmost good faith : e.g. insurance contracts statutes : e.g. Company Acts and company prospectuses D does not need to be aware! even if he is mistaken only denial of dishonesty or lack intent will excuse.

27.

Fraud by abuse of position s4: question of fact: where D makes a secret profit also omission: e,g, not taking up a contract because you intend to obtain the contract yourself. obtaining services dishonestly: NOT an offence of fraud. e.g. climbing over a wall to watch soccer game. s11: -applies to services non-gratuitous. -intention must be to not pay. if D deceives service provider to waive a fee, there is no offence under s11. HOWEVER there is fraud. Note again fraud does not require that an actual gain was made.

28.

29.

Making off without payment. MR: dishonest: D knows that payment is due or expected D intends to avoid payment (permanently Allen 1985)

30.

Robbery and Burglary, Robbery s8 of theft act 1968 AR/MR: aggravated form of theft (use or threats of force). AR: steals, same as theft AND force or threats. force does not need to substantial. force can be directed at anyone if it is related to theft. Dawson and James 1976, Clouden 1987 force must be immediately before or at the time.

31.

Hale 1978 burglary and appropriation. Followed in Lockley 1995: Act of appropriation is continuous. for the jury to decide when appropriate is finished. Not necessarily when the thief has possession of property. in case of Hale can include the time taken to bind V. Robbery MR: Skivington 1968 Robinson 1977: if MR of theft not present, cannot have robbery. i.e. dishonest, intent to permanently deprive. Force or threats must be used IN ORDER TO STEAL. Threat NOTE that it is sufficient that there is intent to make V fear subjection to force.

32.

33.

Burglary s9 2 forms: s9 1a: enters a building or part of building as tresspasser intending theft, GBH or damage s9 1b: steals or attempts to steal, GBH or attempts GBH building includes inhabited vessels and vehicles

34.

Burglary : Entering (Collins 1972) Brown, Ryan: Brown: entering must be substantial Ryan : D gets stuck in window, however was considered sufficient for entering.

35.

Burglary: Trespasser (law of tort): presence on property of another without permission. must be ENTRY as a trespasser. (if person enters without a license which is then revoked, he cannot commit burglary since he did not ENTER as a trespasser.) see Laing 1995

36.

burglary Trespassing and consent by fraud: If consent is obtained by fraud is ineffective, guilty of burglary at moment of entering. even if no fraud has been practised (Jones and Smith 1976) where D had rights to enter, but not rights to enter and steal. Still burglary since if they knew they did not have rights to enter for purposes of theft, it is trespassing. i.e. the scope of their permission was limited.

37.

burglary s91a MR compare to trespass: trespass can be done by negligibly (without knowing) MR for burglary: requires reckless or knew that he did not have consent MR requires that D intended one of 3 offences (theft, GBH,criminal damage Criminal Damage Act). Only need intent, not the completion of the act!

38.

burglary s 9(1)(b): stealing/attempting steal: all elements of theft must be proved. e.g. if D mistakenly appropriates property which he believes to be his own, he cannot be convicted of burglary. Jenkins 1983 infliction of bodily harm does not need to proved, for burglary. controversial decision. What is the better view.: should follow Savage and Parmenter, i.e. P must prove the D foresaw the risk of causing some bodily harm. aggravated burglary: guilty if burglary+firearm, imitation firearm or explosive, weapon of offence. weapon of offence is question for jury. required to be in possession at time of burglary: 9 (1)(a) time of entering 9(1)(b) at time of theft, or GBH

39.

40.

41.

William 1977: 3 types of weapons of offences: 1. made for causing injury 2. adapted to cause injury 3. any object used with intent to cause injury

42.

secondary liability: Accessories and Abettors Act 1861 provides: Whosoever shall aid, abet, counsel or procure the commission of any indictable offence whether the same be an offence at common law or by virtue of any act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender.

43.

SL cases: AG 1 of 1975 : procuring, no comm needed AG v Able 1984 Bryce 2004 Bourne [1952], principal excused, but still SL. Calhaem [1985] Cogan and Leak [1975]: rape no MR DPP v K and B [1997]: rape under 14 Giannetto [1997 Howe 1987

44.

Bryce 2004: Persons who come within that statutory genus are variously designated 'accomplices', 'accessories' or 'secondary parties'. It seems to us that, in one respect at least, the term 'secondary parties' is preferable because it emphasises that the secondary liability of an accomplice is derivative from the liability of the principal offender. NOTE: sufficient that sufficient that he foresaw it as a 'real or substantial risk' or 'real possibility'.

45.

AG 1 1975 4 modes Howe [1987 reduces to 3 modes: aid, abet, counsel and procure 3 categories: encouraging ,assisting, procuring NOTE: SL only operates when principle offence has been committed.

46.

Aid and SL: if D2 helps D1 to carry out an offence, the fact that D1 would have committed the offence even without assistance does not preclude D2's liability as a secondary party. Nor is it necessary that assistance was sought or that the principal offender was aware of the assistance. If D2, knowing that D1 is planning to shoot V, ensures, without D1's knowledge, that his gun is in good working order, he assists him in carrying out the murder. must be a connection, matter for jury

47.

Bryce [2004] On the instructions of a major drug dealer, D2 had assisted D1, a hit man, to kill a rival dealer, M. D2 had transported D1 and a gun to a caravan near to M's home so that D1 could wait for an opportunity to carry out the killing. D1 killed M more than 12 hours later. D2 appealed against his conviction of murder on the grounds that what he did was insufficient to amount to aiding and abetting the murder as it was too remote in time and place to the killing and was performed at a time when D1 had not yet formed the intent to commit any criminal offence.: delay of 13 hours or so between the assistance relied on and the occurrence of the killing had not in any way negatived causation; and (ii) it had been unnecessary for the Crown to demonstrate that the defendant's acts of assistance had been performed at a time when X had formed the necessary intent for murder. Accordingly, the defendant's conviction for murder was safe.

48.

Calhaem [1985]: Abet or Counsel D2 had paid D1 to murder V who had was having an affair with D2's solicitor, with whom D2 was infatuated. D1, armed with a hammer, a knife, and a shotgun went to V's house but gave evidence that by that point he had no intention of carrying out the plan. However, he claimed, V screamed, as a result of which he went 'berserk' and hit her several times with the hammer, killing her.: D2 was convicted of murder as a secondary party and appealed, arguing that counselling required a substantial causal connection between the acts of a secondary party and the commission of the offence. appeal dismissed: To this extent there must clearly be, first, contact between the parties, and, second, a connection between the counselling and the murder. Equally, the act done must, we think, be done within the scope of the authority or advice,

49.

A-G v Able (1984) in which members of the Voluntary Euthanasia Society faced allegations of assisted suicide following its distribution of 'A Guide to Self-Deliverance'.: It was held by Lord Woolf that there were three requirements for the offence: the accused knew that suicide was contemplated; the accused approved or assented to it; and that the suicide attempt was encouraged. held: if he distributed the booklet with the intention that it should encourage or assist the recipient to commit suicide. If the distributor did not have this intention, then he was not guilty of an offence under s 2(1). In every case the question of his intention was one for the jury. Accordingly, there was no form of declaration which would be appropriate, and no declaration would therefore be made.

50.

Procuring AG 1 1975 & 25 Vict. c., 94), s. 8. D2 had secretly laced D1's drink with alcohol. As a consequence when D1 drove home he committed an offence of driving with an excess of alcohol in his blood.: It was held that D2 had procured the offence. no requirement that the parties have communicated with each other. most relevant in cases where the offence committed is for one of strict liability where D1 has unwittingly been caused to commit an offence as a result of the actions of D2. NOTE: it was said To procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening.

51.

EX Susan paid George to kill Peter. George had never met Peter and so Susan told him where Peter lived. On the way to Peter's house George decided to stop to have a quick drink in a bar. He got into an argument with another customer. George pulled out a knife and killed the customer. Unbeknown to George the customer was Peter. George has been convicted of murder. Is Susan guilty of murder as a secondary party?: Although Susan is guilty of encouraging George to commit murder she is not guilty of murder as a secondary party, as the killing was independent of the counselling. In Calhaem, Parker LJ said: [T]he act done must, we think, be done within the scope of the authority or advice, and not, for example, accidentally when the mind of the final murderer did not go with his actions.

52.

Procuring Cogan and Leak [1975]: Court of Appeal held that a man could be convicted as an accomplice to rape even though the perpetrator was acquitted due to a lack of mens rea. thought she was consenting, but L knew she was NOT consenting=> guilty

53.

DPP v K and B [1997]: a person could be convicted of rape as a procurer, despite the fact that the prosecution was unable to rebut the presumption - that applied at the time - that the alleged perpetrator, being under the age of 14, lacked capacity.

54.

Bourne 1952 The defendant had terrorised his wife into committing buggery with a dog. He was convicted of aiding and abetting his wife to commit buggery with a dog. Lord Goddard CJ stated that if the woman had been charged herself with committing the offence, she could have pleaded duress, which would have shown that she had no mens rea.: principal offender was was excused of an offence on the grounds of duress, it was held that an offence had been committed in respect of which another party could be secondarily liable as a procurer.

55.

SL MR cases: Clarkson 1971: rape in army, presence /non-interference not enough for SL Coney [1882]: encourage<> aid/abet Bryce: D2 must intend to assist or encourage Foresight is the basis of secondary liability. NCB v Gamble (1959) Lynch v DPP for Northern Ireland [1975] Bainbridge [1960] : precise knowledge not needed DPP for Northern Ireland v Maxwell [1978] : reformulates Bainbridge Hyde and others (1991): multiple offenders Chan Wing-Siu v R [1985] .: multiple offenders Powell and Daniels [1999] Reardon [1999] : scope of MR multiple attacks Miah (Aziz) [2009]: precise foresigt not needed (cf P and D) Uddin 1998: type of act cannot be worse Anderson; Morris [1966] act cannot be completely different. English [1997] : Follows Hyde Rahman [2008]: if intent is to kill, method irrelevant O'Flaherty : fundamental different is for jury Mendez [2010]: spontaneous violence, cannot assess exact level Gilmour [2000] : SL to extent of his MR, but according to ACT Roberts, Day and Day [2001] : different intents

56.

Bryce: intention: By deliberately transporting X with his gun to the caravan and being aware that X might with the help he provided kill M, Bryce had intentionally put D1 in a position where he could carry out the offence and thus had intentionally assisted him whether or not he desired to provide assistance.

57.

NCB v Gamble (1959) A lorry driver had filled his lorry with coal at an NCB yard. The weighbridge operator noticed that the lorry was overloaded and informed the driver. The driver said he would take the risk and the operator gave him a weighbridge ticket. The driver was found guilty of using an overloaded lorry on the highway.: NCB (as employers of the operator) were liable as accomplices. The operator knew he had a right to prevent the lorry leaving with the coal. It was enough that a positive act of assistance had been voluntarily done with knowledge of the circumstances constituting the offence. NOTE: comment that if a gun is sold for murdering can still be liable as aid or abettor EVEN if indifferent to 3rd party.

58.

Lynch v DPP for Northern Ireland [1975] CF Rook: e intentional driving of the car was enough to render D2 liable as a secondary party 'even though he regretted the plan or indeed was horrified by it'

59.

Bainbridge [1960] : cf DPP for Northern Ireland v Maxwell [1978] D2 was convicted of being an accessory to an offence of breaking and entering. He had supplied D1 with oxygen cutting equipment which had been used to break into a branch of the Midland Bank in Stoke Newington, London.: CA unnecessary that 'knowledge of the particular crime which was in fact committed should be shown to his knowledge to have been intended'. While recognising that it was not enough to show that a man knows that some illegal venture is intended, he approved of the direction given by Judge Aarvold who had told the jury that it must be proved that D2 knew the type of crime which D1 intended and was in fact committed.

60.

DPP for Northern Ireland v Maxwell [1978] Maxwell was a member of a terrorist organisation in Northern Ireland. He was ordered to drive a vehicle to an inn. He knew that others who were following his car were armed and that they would make some terrorist attack, but he did not know whether the attack was to be by guns, bombs or incendiary devices. In fact the others planted a bomb.: He was held to have been rightly convicted NOTE: The relevant crime must be within the contemplation of the accomplice and only exceptionally would evidence be found to support the allegation that the accomplice had given the principal a completely blank cheque. Scarman expressed his approval of this approach and agreed with Viscount Dilhorne that liability of a secondary party should not depend on whether the offence committed was of the same type as that intended, but whether it was foreseen or contemplated.

61.

Powell and Daniels [1999] approves Hyde went with X to the house of a drug dealer to buy some drugs. The drug dealer was shot. The prosecution was unable to prove which of the three men fired the gun but contended that, if the third man fired the gun, Powell and Daniels were guilty of murder because they knew that X was armed with a gun and realised that he might kill or cause grievous bodily harm.: convicted of murder and appealed. The House of Lords dismissed their appeals, holding that it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the perpetrator might kill with intent to do so or with intent to cause grievous bodily harm. Note that D2 must foresee that D1 will act with the requisite mens rea. Where two parties embark on a joint enterprise to commit a crime, and one party foresees that in the course of the enterprise the other party may carry out, with the requisite mens rea, an act constituting another crime, the former is liable for that crime if committed by the latter in the course of the enterprise. The secondary party is subject to criminal liability if he contemplated the act causing the death as a possible incident of the joint venture, unless the risk was so remote that the jury take the view that the secondary party genuinely dismissed it as altogether negligible.

62.

Chan Wing-Siu v R [1985] The appellants were members of a gang who had gone to the victim's house to commit a robbery, arming themselves with knives. During the robbery the victim was stabbed to death by a member of the gang and the defendants were convicted as accomplices to the murder.: The Privy Council dismissed their appeals. It was held that for an accomplice to be guilty of murder it was sufficient for the prosecution to establish that he foresaw death or grievous bodily harm as a possible incident of the common design being carried out. On the other hand, if it was not even contemplated by the accomplice that serious bodily harm would be intentionally inflicted, he is not a party to murder.

63.

Rook [1993]: held that the principle applies generally - not only where the parties take part in a joint criminal enterprise but also where a secondary party lends assistance or encouragement before the commission of the crime Reardon [1999] 1 had shot two men in a pub. Along with a number of others, D2 (the appellant) carried the unconscious and wounded men out to the pub's garden. They returned to the pub while D1 stayed with the dying men. He then went back into the pub, told D2 that one of the men was still alive and asked him to lend him his knife. D2 did so. D1 then went outside and fatally stabbed both men. D2 convicted of both.: actions of D2 were within the scope of the appellant's contemplation when he handed the knife over, and the fact that D2 used the knife in the foreseen manner twice as opposed to once is, in our view, immaterial.

64.

65.

Miah (Aziz) [2009]: D2 was liable for the murder of V by D1 on the basis that he had foreseen the infliction of grievous bodily harm by weapons although he had not foreseen the precise manner in which the weapons came to hand. The fatal injury had been inflicted using a knife which had originally come into the possession of the victim as he was pursued through a restaurant kitchen

66.

MR of SL conditions: 1. The act of assistance, encouragement or procuring was done intentionally and D2 knew it to be an act capable of assisting, encouraging or procuring the offence. 2. At the time of the act of assistance or encouragement or procuring D2 foresaw the commission of the offence by D1. a. foresight is the basis of secondary liability. Thus, it is not necessary to prove that the secondary party intended the crime to be committed b. level of foresight required: P and D c . Foresight of an act of the type committed by D1 d. Whether the act is fundamentally different is a question of fact for the jury e. D2 is not a party to killing if the acts of D1 are fundamentally different from those foreseen f. Where D1 performs an act foreseen by D2 but with a more serious intent g. Liability for unforeseen consequences h. The secondary party may be liable for a more serious offence than the perpetrator

67.

The level of foresight required: P and D The secondary party is subject to criminal liability if he contemplated the act causing the death as a possible incident of the joint venture, unless the risk was so remote that the jury take the view that the secondary party genuinely dismissed it as altogether negligible, note Miah which extends test and Chan Wing-siu v R

68.

Uddin [1998]: In cases involving homicide the use by D1 of a weapon is a significant factor in deciding whether the fatal acts were of a different type. If the character of the weapon used by the perpetrator was different from any weapon used or contemplated by the other parties - most importantly if it had a greater 'lethal propensity' - the others attract no responsibility for the death unless it is proved that they knew or foresaw the likelihood of the use of such a weapon

69.

Anderson and Morris (1966) M had a fight on the street with W (the victim) because W had just tried to strangle Mrs A. When A arrived and learnt what had happened, he went with M in a car to find W. When W was found, there was a fight in the street. A was seen punching W, with M standing behind A, apparently not taking any definite part in the fight. A then stabbed W to death. M denied knowing that A had a knife. M was convicted of manslaughter and appealed.: It was held by the Court of Appeal that where two persons embark on a joint enterprise, each is liable criminally for acts done in pursuance of the joint enterprise, including unusual consequences; but if one of them goes beyond what has been tacitly agreed as part of the joint enterprise, the other is not liable for the consequence of the unauthorised act. M's conviction was quashed. Note: The use of the knife was not agreed upon. However, if W had died from a punch thrown by A, M would have been an accomplice to manslaughter.

70.

English [1997] follows Hyde the purpose of the joint enterprise in which he and another man, Weddle, took part was to attack and cause injury with wooden posts to a police officer, Sergeant Forth. In the course of the attack Weddle produced a knife with which he stabbed Sergeant Forth to death.: The appellant submitted that to be guilty under the principle stated in Hyde the secondary party must foresee an act of the type which the principal party committed, and that in the present case the use of a knife was fundamentally different to the use of a wooden post. The House of Lords allowed the appeal. On the evidence, the jury could have found that English did not know that Weddle had a knife. The fact that both D1 and D2 had the intention to inflict serious harm on the victim was insufficient to make D2 responsible for the death of the victim caused by the use of a lethal weapon used by D1 with the same or shared intention

71.

Greatrex [1999 he appellant was one of a group of youths involved in an attack on a victim who died as a result of a blow from a bar or spanner. He admitted kicking the deceased, but the fatal blow was administered by another youth, Bates. Greatrex appealed against his conviction of murder.: Court of Appeal held that the judge should have directed the jury to consider whether Greatrex foresaw as a possibility the use by Bates of the bar or an equally dangerous weapon. Lord Justice Beldam stated: In deciding whether the actions of one participant are so fundamentally different the jury will have regard to all the circumstances and of course where one participant unknown to the others is carrying a lethal weapon such as a knife or revolver and uses it in a way which indicates that his actions go entirely beyond actions which were foreseen by the others, that is cogent evidence that what was done was substantially different from actions within the common purpose. intention GBH<>intention to to kill NOTE P and D: [I]f B intends or foresees that A may act with intent to kill, it seems immaterial that he does it by one means rather than another. Unlike GBH, there are no degrees of death

72.

Rahman [2008]: If D1 and D2 agree to kill V by beating him to death with baseball bats, but, in the course of the attack, D1 pulls out a gun and shoots V, B2 must still be guilty of murder. Whether the act is fundamentally different is a question of fact for the jury O'Flaherty Mendez [2010]: O'Flaherty: types of weapons should not be seen as reflecting principles of law as opposed to questions of evidence, knife==claw hammer??? Mendez cases of spontaneous violence it is unlikely that the parties thought carefully about the exact level of violence intended or foreseen.

73.

74.

D2 is not a party to killing if the acts of D1 are fundamentally different from those foreseen: Uddin [1998], Anderson and Morris [1966]

75.

f. Where D1 performs an act foreseen by D2 but with a more serious intent Gilmour [2000] D2 drove three men to a housing estate, knowing that a petrol bomb was to be thrown at a property. Three children died as a result of carbon monoxide poisoning from the resulting fire.: D2 submitted that it had been his belief that the petrol bomb had been intended to frighten the occupants of the house and that accordingly he had been unaware that the actual intention of those throwing the petrol bomb had been to kill or cause grievous bodily harm. The Court of Appeal of Northern Ireland held that he was guilty of manslaughter. Guilty of MS because ACT is what was contemplated!!! even though result was not

76.

Roberts, Day and Day [2001] Court of Appeal considered a situation where the participants in a joint enterprise all foresaw the same kind of physical violence being inflicted on their victim but differed in their intent. Two of them intended to inflict really serious injury by means of such violence. The third - Marc Day - intended or foresaw only that some harm might be done. One of the two who intended to do grievous bodily harm punched and kicked the victim, who fell, suffered a brain haemorrhage and died. He was, of course, guilty of murder. So also was the secondary party who, like him, intended or contemplated the infliction of the serious injury. But what of the third participant, Marc Day?: counsel submits he must escape altogether because he did not foresee a murderous state of mind would be harboured by his fellows... It does not seem to us that that can be right. In such a case there was a joint enterprise at least to inflict some harm, and that is not negated by the larger intentions of the other two adventurers. In our judgment in such a case there is no reason why the participants should not be convicted and sentenced appropriately as their several states of mind dictate.

77.

g. Liability for unforeseen consequences Anderson; Morris [1966]: where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but (and this is the crux of the matter) that if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorised act

78.

The secondary party may be liable for a more serious offence than the perpetrator: if D2 assists or encourages D1, who suffers from an abnormality of mind, to kill V, D1's liability will be reduced to manslaughter on grounds of diminished responsibility, but D2 will be guilty of murder (see s.2(4) of the Homicide Act 1957).

79.

Howe [1987]: Howe and Bannister, participated with others in torturing a man who was then strangled to death by one of the others. These events were repeated on a second occasion but this time it was Howe and Bannister who themselves strangled the victim to death. They claimed that they had acted under duress at the orders of and through fear of Murray who, through acts of actual violence or threats of violence, had gained control of each of the defendants. The House of Lords dismissed their appeals against conviction.

80.

Withdrawal : conditions Grundy [1977] O'Flaherty [2004] Mitchell and King (1998); Rafferty [2007] Rafferty; see also Campbell [2009]: can escape secondary liability but liable until escape. 1.usually be some act and not merely a mere mental change of intention, for jury ((nature of withdrawl acts O'Flaherty [2004]) 2. communication of withdrawal to the principal offender unless it is not practicable or reasonable to communicate it. else leave

81.

Rafferty [2007]: Rafferty [2007] CA held that a secondary party would not be guilty of murder where he intended or foresaw that the primary party would or might act with intent to cause grievous bodily harm, but the lethal act carried out by the primary party was fundamentally different. D, together with his coDs had waylaid V on beach whereupon the co-Ds, had beaten and kicked the V. D then took away the victim's credit card to try to use it to withdraw money. While he was away, the co-Ds had dragged the victim across the beach, stripped him naked, taken him out to sea and left him to drown. The jury had to ask themselves what acts D had realised that the co-Ds might do to cause the deceased harm and ask themselves whether they were sure that those acts were not of a fundamentally different nature to the deliberate drowning. In this case no jury could have properly concluded that the drowning of the deceased by the two co-Ds was other than a new and intervening act in the chain of events NOTE: still guilty of Robbery! up to his liability

82.

THEFT : Appropriation s3: Any assumption by a person of the rights of the owner... 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 it or dealing with it as owner. NOTE, no initial dishonesty in 2nd part

83.

Morris [1983] "rights of owner" confirmed in Gomez 1993 D switched the labels on two items on a supermarket shelf, intending to buy the more expensive item at the price of the cheaper one. He was apprehended before he had paid for the goods at the supermarket checkout.: D had assumed the rights of the owner to label the goods at a particular price. This was just one of the owner's rights. As D had not paid for the goods and left the supermarket he had not assumed all of the rights of the owner (including the right to use, sell or dispose of the goods). HL confirms apropriation is committed at the point where D has assumed any, if not all, of the rights of the owner. also states obiter 'adverse usurpation of the rights of an owner'

84.

Lawrence [1972] a taxi driver (D) gave a lift to an Italian student (V) who did not speak English very well. V offered D his open wallet so that D could take the right amount of money for the fare. The actual fare was 50p but D took 6 from the wallet. Regardless of D's dishonesty, the money was offered to D with V's consent: HL declared that V's consent, whilst relevant to the issue of dishonesty, was not relevant in determining whether an appropriation had taken place.

85.

Gomez [1993] Gomez was the assistant manager of a shop. His friend asked him to supply goods from the shop in exchange for stolen cheques. D told his manager that the goods were for a genuine order and that the bank had said the cheque was OK. D handed the goods over in exchange for the cheques, which were not accepted by the bank. charged with theft: The owner of the goods (for the purposes of this charge) was the shop manager who authorised the handing over of the goods, so he did consent to the appropriation. Lord Keith said that 'it was erroneous and unnecessary to indicate that an act expressly or impliedly authorised by the owner could never amount to an appropriation'. Lord Keith approved and confirmed the decision in Lawrence as the statement regarding authorised appropriation was part of the ratio of that decision. On the other hand, Lord Keith rejected the comments on authorised appropriation in Morris. Lawrence was held to be the 'authoritative and correct' authority. consent is IRRELEVENT for appropriation

86.

theft cases: Morris [1983] "rights of owner" Lawrence [1972]: dishonest taxi, partial consent Gomez [1993]: approves Lawrence, consent is IRRELEVENT for appropriation Pitham and Hehl (1976): appropriation without contact with goods. Hinks [2000] : appropriation, follows Gomez, deception of old man Wheatley v Commissioner of Police for the British Virgin Islands: receiving bribe=theft Oxford v Moss (1978): info can't be stolen Kelly [1998] : property

87.

Pitham and Hehl (1976): D purported to sell the furniture in the house of his friend (who was in prison at the time) it was held that this amounted to theft, the right to sell it. Theft (and indeed an appropriation) need not involve the owner losing their rights or the property itself; any interference with those rights will suffice

88.

Gomez: obtaining property by deception under s.15 he had deceived the shop manager into parting with the goods. Offences involving 'obtaining by deception' are, by definition, committed with the consent of the owner although that consent has been given under the deception. esult of Gomez being convicted of theft on these facts means that the offences of theft and obtaining property by deception overlap considerably.

89.

Hinks [2000] : (appropriation by omission) D befriended V, an elderly man of limited intelligence. Over a period of time V, accompanied by D, withdrew substantial sums of money from his bank account and gave them to D. D was charged with theft but claimed that the sums of money had been gifts and that V had voluntarily relinquished his rights to them.: held that, after Gomez, V's consent to the appropriation was irrelevant and therefore the receipt of the money could amount to an appropriation. Provided D was dishonest, this could also amount to a theft. (D was convicted so presumably the jury had decided that she was dishonest.) no deception, the property was freely given as a gift and D acquired an indefeasible right to the property (that is, the transaction was valid under civil law, unlike in Gomez where the contract of sale would have been voidable in contract law because of misrepresentation). This case serves to demonstrate that appropriation is now virtually meaningless as the consent of the owner is irrelevant and the manner by which the property is appropriated is irrelevant

90.

Wheatley v Commissioner of Police for the British Virgin Islands [2006] D was a government official who had awarded a lucrative contract to X and received a payment from V for doing so - a straightforward case of corruption. D was charged under the BVI equivalent to the Theft Act s.1 and was convicted. On appeal to the PC his conviction was upheld:: In this case, as in Hinks the property freely handed over as a gift (or bribe). What is different about this case is that the victim of the theft not only did not suffer any loss as a result of the theft but actually stood to gain financially from it. However, this did not prevent the actions of D being an appropriation for the purposes of theft.

91.

Property: Section 4(1) of the Theft Act 1968 sets out a definition in the following terms. 'Property' includes money and all other property, real or personal, including things in action and other intangible property. Section 4(3) deals with wild flowers, mushrooms, fruit and foliage, which cannot be stolen by picking unless they are picked for commercial purposes or for sale. Section 4(4) suggests that wild animals are property but cannot be stolen unless they have been kept in captivity

92.

examples of intangible property: debt, credit, cheque land: Section 4(2) expressly states that land is not property for the purposes of the offence of theft. This general rule is, however, subject to the exceptions set out in s.4(2). Rights over land may be stolen by a trustee (for example by selling it in a way not authorised by the trust agreement) - s.4(2)(a). The tangible parts of land (such as topsoil or sand) can be stolen by someone 'not in possession' - that is someone other than an owner, tenant or trustee - s.4(2)(b). Finally, a tenant cannot steal the property he leases but he can steal fixtures which form part of that property, such as fixed cupboards, shelves or appliances (s.4(2)(c)). NOTE :Air is tangible property which can be stolen (but it must belong to another - see s.16.1.3). So letting air out of a car tyre, for example, might be theft.

93.

Oxford v Moss (1978) : information cannot be stolen: a student who illicitly read an examination paper but returned the paper to its rightful place was held not to be guilty of theft of the information on the paper. Kelly [1998]: Human body parts or a human corpse are not property unless they are used for exhibition or teaching purposes. So a human skeleton used by a medical student would be property which can be stolen. theft: AR Belonging to another: Section 5(1) gives a general definition of 'belonging to another' which goes beyond ownership: Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).

94.

95.

96.

possession or control legal consequences: may belong to more than 1. e.g loaf of bread in market taken off shelf can belong to you even though you don't know that it exists.(Woodman[1974] ) possible to steal something that you own! In Turner (No. 2) [1971] cf Meredith [1973] car theft Wills [1991], Dubar [1995]

97.

Woodman [1974]: ECC, owned a disused factory. sold a quantity of scrap metal to another company who collected most though not all of it. D entered the property and took some of the remaining scrap metal. D was convicted of theft because the scrap metal was in the possession and control of ECC even though they did not know that it existed and even though they had sold it to another.

98.

Turner (No. 2) [1971]: D had left his car for repair in a garage. D secretly removed the car from the garage, intending to avoid paying the bill for the repairs. D was convicted of theft as the garage had possession and control of the car at the time that D appropriated it.

99.

Meredith [1973] eft his car parked illegally in a street while he attended a football match. The police removed the car to a police station. After the match, D went to the police station and drove the car away without the permission of the police. D was charged with theft, but was acquitted: l. The essential difference between these two cases is that in Turner (No. 2) the garage had an equitable interest in the car called a 'lien' which entitled them to hold on to the car until their bill had been paid. The police in Meredith did not have a lien over the car and were not entitled to withhold possession of the car from D.

100.

EX After a hard week's work you collect your wages in a sealed envelope. At home, when you open the envelope, you discover that the envelope contains 50 too much. Does the 50 belong to you?: Although you have possession and control of it, the extra 50 has been obtained by you by mistake. Section 5(4) states that where this happens, and there is an obligation to restore the money to its owner, the money is to be treated as belonging to the person entitled to restoration of the money. You would have a legal obligation to restore the money under civil law and therefore the money is treated as belonging to your employer.

101.

EX D decides to organise a trip to London for his friends. Six of his friends each give him a cheque for 50 which he pays into his bank account. Before their trip to London, D's telephone bill arrives and he uses all the money in his account to pay the bill, so that he is unable to pay for the trip to London. Has D stolen the money given to him by his friends?: hen D puts the cheques in his bank account, ownership of the money transfers to him. However, under either s.5(1) or s.5(3) the money may be treated for the purposes of theft as belonging to another. D may be said to have received the money on trust so that his friends have a 'beneficial interest' in it under s.5(1). It may therefore belong to both D and his friends at the same time. Alternatively, under s.5(3) it may be said that D has an obligation to deal with the money in a particular way (that is, to pay for the trip to London) and so the money continues to belong to his friends while it is in his account. Wills [1991] However, the obligation to deal with the property in a particular way must be a legal one and not a moral one - see Dubar [1995]. This will be a question of fact for the jury, which is more complex where there is no written agreement as to what D is obliged to do with the money. Failure to use the money to pay for the trip therefore may constitute appropriation of property belonging to another, if there is an implied or express legal obligation on him to use the money in that way. If D also has the relevant mens rea of dishonesty and intention to permanently deprive his friends of the money, then he may be guilty of theft.

102.

Martin, an investment banker, received money from his clients 'to be invested as the bank sees fit'. Martin in fact used the money to fund his extravagant lifestyle. Has Martin committed theft?: Martin has appropriated the money, but the question is whether the money still belonged to his clients or to the bank. These facts are similar to those of Clowes (No. 2) [1994]. In that case it was held that the ownership of the money did not pass to the bank, but a trust had been created under which Martin (or the bank) held the money on trust to be invested on behalf of the clients. Therefore the beneficial interest in the money belonged to the clients. Under s.5(2) Martin as a trustee has 'defeated' the trust and, provided he has the requisite mens rea, he can be guilty of theft of the money. Alternatively it may be argued that the clients retain a beneficial interest in the property under s.5(1) and although Martin has possession or control of the money, the money also belongs to the clients.

103.

theft MR: dishonesty important since appropriation is almost irrelevant.given in s.2 of the Theft Act 1968, but For a definition of dishonesty we need to look to common law. In approaching a question on theft or robbery, however, you should start with s.2. If one of the situations in s.2 applies, D will not be regarded as dishonest and there is no need to consider the common law definition of dishonesty. If s.2 does not apply, or if you are answering a question involving a different offence, go straight to the common law definition. intention to permanently deprive

104.

The situations in which D would not be regarded as dishonest under s.2 are:: if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or a third party if he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. provided they are honestly held by D. The belief does not have to be reasonable. the more extraordinary or unreasonable the belief, the more likely the jury are to decide that the belief is not honestly held!

105.

MR cases: Feely 1973 test for dishonesty Landy 1981 test for dishonesty R v Ghosh [1982] test for dishonesty refined

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Feely 1973: when deciding whether an appropriation was dishonest can be reasonably expected to, and should, apply the current standards of ordinary decent people.' This is wholly objective and ignores D's actual state of mind. Lord Lane suggests that to ignore D's state of mind entirely would be inappropriate as morally a D who genuinely believes their conduct to be honest by anyone's standards should not be convicted.

107.

Landy 1981: The Court of Appeal in Landy set out a model direction to the jury in the following terms: An assertion by the defendant that he acted honestly does not have to be accepted but has to be weighed like any other piece of evidence. If that was the defendant's state of mind, or may have been, he is entitled to be acquitted...What a jury must not do is to say to themselves, 'if we had been in his place we would have known we were acting dishonestly, so he must have known he was'. This is a subjective test which focuses on D's state of mind and not the standards of the ordinary reasonable person. Lord Lane, in the concluding part of his judgment, suggests that a wholly subjective test 'abandons all standards but that of the accused himself' - in other words any defendant could raise as a defence that he thought he was acting honestly even if by other people's standards his actions were manifestly dishonest

108.

R v Ghosh [1982]: Lord Lane's alternative approach was to combine subjective and objective elements in a two-part test: In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. The first part of the test is entirely objective - the conduct is judged by the standards of the ordinary reasonable person. If the conduct is objectively dishonest then the second part of the test, which is both subjective and objective, must be applied. Did D himself realise that his conduct was dishonest by the standards of the ordinary reasonable person?

109.

D comes from a country where public transport is free. On his first day in England he travels on a bus. He gets off without paying. He never had any intention of paying. Is D dishonest according to the Ghosh test?: This example was used by Lord Lane to illustrate his dissatisfaction with a purely objective test. D would argue in this case that his actions were objectively honest, because where he comes from nobody pays to ride on a bus. However, if we apply the Ghosh test we must first ask - would ordinary decent people regard this conduct as dishonest? The answer must be 'yes' - no-one is likely to consider that deliberately not paying on public transport is honest. Therefore we need to consider the second part of the test - did D realise that ordinary decent people would regard his conduct as dishonest? In this case D could argue 'no' - as a stranger to our customs he would not. He would therefore escape liability, as Lord Lane suggested would be appropriate in this case.

110.

Robin Hood intentionally fails to pay his taxes in order to donate the money to a charity for the homeless. Is Robin dishonest according to the Ghosh test?: This example was used by Lord Lane to illustrate his dissatisfaction with a purely subjective test. Robin Hood would argue that he believed his actions were honest because of his honourable motive for failing to pay his taxes. However, if we apply the Ghosh test - would ordinary decent people regard this as dishonest? Yes - deliberately failing to pay tax is, by anyone's standards, dishonest. If you then ask Robin Hood whether he realised that ordinary decent people would regard his conduct as dishonest, he would have to say yes. He may disagree with them but he knows that it is objectively dishonest to deliberately fail to pay taxes. He would therefore be dishonest for the purposes of the Theft Act 1968. (Remember that motive is irrelevant to criminal liability.)

111.

Dave lives near to Ian, who has a conviction for possession of child pornography. One day Dave notices that Ian's car is unlocked, and that there is a valuable camera lying on the front seat. Dave removes the camera from the car, but is seen by a police officer, who arrests him. Dave says: 'I was only taking the camera to stop him taking any more of his filthy pictures. Anyone would want to do the same.' Is Dave dishonest?: Would a jury find the act of intentionally taking a camera that does not belong to D from V's unlocked car dishonest? If so, you then need to ask, would Dave realise that the jury would consider his actions to be dishonest? His statement to the police may indicate that he did not.

112.

Jane takes some paper and coloured pens from the stationery cupboard at work to give to her small children to draw pictures with. When caught by her boss she tells him that everyone takes things from the stationery cupboard as they consider it to be a 'perk' of the job. Is Jane dishonest? Lavender [1994] Fernandes [1996] Marshall [1998]: Would a jury consider that intentionally taking stationery from the stationery cupboard for purposes other than work is dishonest? This is an open question, as some may consider this to be normal conduct in a workplace and would agree with Jane that it is a perk of the job. The Ghosh test may therefore fail at this point. If the jury agreed that it was dishonest, they would then have to consider whether Jane realised that the jury would find her actions dishonest. Again, her response to her boss suggests not.

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intention to permanently deprive Section 6 of the Theft Act 1968 gives further explanation of this phrase NOTE: Act states that this may amount to a permanent deprivation if D's intention is to treat the thing as his own to dispose of regardless of the other's rights, or the borrowing is for an extended period of time and/or if the property, when returned, is worthless. The cases provide examples of borrowings that amount to an 'outright taking'.: A person appropriating property belonging to another without meaning the other to permanently lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if it is his intention to treat the thing as his own to dispose of regardless of the other's rights; and a borrowing or lending of it may amount to so treating it, if the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking.

114.

Lavender [1994] D took two doors from a council property and used them to replace damaged doors at another council property. Charged with theft, D argued that he had never intended to deprive the council of the doors.: However, the Divisional Court decided that the words 'to dispose of' should not be interpreted literally as meaning to sell or throw away. D in this case had treated the doors as his own regardless of the council's right not to have them taken away from where D found them. He was therefore convicted of the theft of the doors.

115.

Fernandes [1996]: it was held that s.6 may 'apply to 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 Marshall [1998] D had obtained unexpired London Underground tickets and re-sold them to other passengers. D argued that when the tickets were re-used by those who had bought them, they would eventually be returned to London Underground.: Court of Appeal held that he has disregarded or usurped the sole right of London Underground to sell tickets on their transport system. also followed the dicta in Fernandes and held that D had risked the loss of the tickets. D had therefore intended to treat the tickets as his own to dispose of regardless of London Underground's rights. D, by selling the tickets, had effectively abandoned them, not caring what happened to them

116.

117.

Borrowing Lloyd [1985] D, a film projectionist, borrowed films from a cinema to copy them (in breach of copyright) but then returned them to the cinema in time for them to be shown. This was held not to amount to theft as an intention to borrow was not sufficient for s.6 unless the intention was to return the thing in such a state that 'all its goodness or virtue has gone'.: may also be equivalent to an outright taking where the borrowing was extended for a period of time or was returned as worthless. Court of Appeal held that s.6 should only be referred to in exceptional circumstances. In this case all the goodness had not gone out of the films - they could still be projected to paying audiences.

118.

D is in the supermarket with his friend V. At the checkout he realises that he has left his wallet at home and asks V to lend him a 10 note. V does so and D hands the note to the cashier. The next day, D gives V a 10 note that he has just withdrawn from the bank. Did D have an intention to permanently deprive V of the 10 note?: This scenario is similar to the facts of Velumyl [1989] Crim LR 299. In that case, D borrowed 1,050 from a safe at work to lend to a friend, intending to repay the money the following Monday morning. D was held to have intended to permanently deprive his employers of the money, as he had not intended to repay the same notes and coins that he had borrowed. His intention was to replace the money with different notes and coins. In this scenario, as D hands the actual borrowed 10 note to the cashier, he cannot have intended to return the same 10 note to V and therefore has an intention to permanently deprive V of the note. Of course, for a charge of theft, D would need to be found to be dishonest and in this case that is unlikely.

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fraud offences: First, you need to be clear about the three ways in which the single offence of fraud can be committed, listed in s.1(2): fraud by false representation (s.2 of the Fraud Act 2006) fraud by failing to disclose information (s.3 of the Fraud Act 2006) fraud by abuse of position (s.4 of the Fraud Act 2006). obtaining services dishonestly (s.11 of the Fraud Act 2006) making off without payment (s.3 of the Theft Act 1978) - this offence is an anomaly as it does not require any deception but is usually discussed alongside the deception offences. Unlike the other deception offences it was not repealed by the Fraud Act 2006 and remains in force.

120.

Fraud by false representation: Section 2 of the Fraud Act 2006 creates a new, broad offence of fraud by false representation. This is designed to be a general offence, thus negating the need to identify precisely what is obtained and how it is obtained (common problems with the old law). The essence of the new offence is that the defendant makes a false representation. s.2(2) states specifically that a representation is deemed to be 'false' if it is: 'untrue or misleading'.

121.

'false' if it is: 'untrue or misleading'.: Misleading statements may be partially true but subject to misinterpretation by the victim. The explanatory notes on the Act suggest that a misleading statement is one that is 'less than wholly true and capable of an interpretation to the detriment of the victim'. Far from clarifying the law, this aspect of s.2 is vague and the parameters of falsehood are unclear here.

122.

EX: Mary, aged 75, asks Harry, a local builder, for an estimate to decorate a room in her flat. Harry provides a written estimate which sets out the cost of the paint to complete the job at 300, the cost of three days' labour charges at 100 per day and a further charge of 100 for 'professional cleaning' after the job is finished. The estimate is provided on headed business paper, which states 'Harry Jones, Building Contractor, in business for 25 years'. Harry is entitled to a discount on the paint at the wholesalers and it only costs him 200. Harry finishes the job after 2 days, and uses Mary's own vacuum cleaner to clean up the dust. This is Harry's first job in his new business venture, having been made redundant from the firm he previously worked for. Has Harry made any false representations under s.2 of the Fraud Act 2006?: This scenario demonstrates the obscurity of the notions of falsehood and truth under the Act. The crucial distinction to be made is whether exaggerated claims about the cost of the materials and the labour amount to a falsehood which should be criminalised or whether these are legitimate, if rather 'sharp', business practices through which Harry is attempting to maximise his profits. Harry's claim that the paint costs 300 is clearly false as it only costs him 200. Similarly his claim to offer professional cleaning, when in fact he merely uses a domestic vacuum cleaner may also be false. Both may cause detriment to the victim. However, Harry's claim to have been in business for 25 years is not wholly true. Yet does this cause any detriment to Mary? Harry's liability my hinge on the mens rea elements of knowing the statements are misleading, intent to cause loss and dishonesty which will be discussed below. Yet David Ormerod criticises the Act's use of the word 'misleading' for potentially criminalising businesses which make exaggerated or less than wholly true statements about their products and services in defining the actus reus of the offence.

123.

False representation as to fact or law or state of mind: The false (or misleading) representation may be as to fact or as to law or as to the defendant's or any other person's state of mind (e.g. enters a restaurant and orders a meal, but has no money) False representation may be express or implied: by words (that is, expressly), or by words or by omission (that is, by implication) omission: D may, by his behaviour, imply something which the victim assumes to be true but which is, in fact, false. By saying nothing, if the defendant allows the victim to believe the falsehood, this amounts to an implied false representation (assuming, of course, D has the requisite MR.

124.

125.

DPP v Ray [1973]: D and his friends entered a restaurant and ordered a meal. After eating the meal D changed his mind about paying and agreed with his friends that they would leave without paying. D waited for the waiter to go into the kitchen and then ran out of the restaurant without paying the bill. D had, by his conduct in entering the restaurant and ordering a meal, made a representation that he could and would pay for it. A point of contention in this case was whether D's deception was committed by his conduct in entering the restaurant and ordering a meal or was it committed by changing his mind about paying and saying nothing? Lord MacDermott argued that when D entered the restaurant he had the intention to pay and thought he had enough money. So his representation as to his present intentions were at that point true and therefore there was initially no deception. After the meal D formed a new intention not to pay, which was at that time false. At that point there was a deception by conduct as D, through failing to communicate the change in his intentions, implied to the waiter for a short period that he was an honest customer, when he was not. A false representation here may be seen as a continuing act, which began as a true representation but became false. Effectively D is 'failing to undeceive' the victim or committing a false representation by omission. Under the new law it would not matter whether the false representation was made by his initial conduct or his later silence, since both are clearly covered by s.2.

126.

Charles [1977] AC 177: In Charles D was granted an overdraft of 100 by his bank and was given a cheque book and a banker's card, on which was printed a statement that the bank would honour any cheque tendered up to the value of 30 where the cheque card was used. D used the card to guarantee 25 cheques to the value of 30 each, having already exceeded his overdraft and contrary to the express instructions of his bank manager. The House of Lords held that in tendering a cheque D made a representation to the payee that he had the authority to enter, on behalf of the bank, into the contract expressed on the card that the bank would honour the cheque. If D knows that the bank had withdrawn that authority then the representation would be false and could amount to a deception.

127.

Gilmartin (1983): In Gilmartin D tendered four post-dated cheques at a time when his bank account was heavily overdrawn. All four cheques were dishonoured. D had used the cheques to buy goods which he sold in return for cheques made out for cash and claimed that he intended to buy back the post-dated cheques with the cheques for cash. The Court of Appeal held that in tendering a post-dated cheque D impliedly represents to the payee that on the date the cheque was tendered it would be honoured by the bank on or after the date specified on the cheque. On the date that D hands over the cheque he must be certain that there will be funds in the account on the day that the cheque is presented for payment otherwise he is making a false representation which can amount to deception.

128.

Lambie [1982]: In Lambie D used a credit card in a shop to pay for goods knowing that she was well over her credit limit and that she had no authorisation to use the card according to the terms and conditions of use. The House of Lords held that in tendering a credit card D makes a representation that she is authorised to enter into contracts on behalf of the credit card company, binding the company to honour payment to the shop. If D knows this to be false this is a false representation which can amount to a deception.

129.

False representation using a system or device Under the old legislation, partly because the deception had to be 'operative', it was held that it was impossible to deceive a machine examples of how fraud may be committed by effectively deceiving a machine. once a false representation is made and communicated, the offence is complete and there can be no attempted fraud. In his sense David Ormerod may be right in criticising the Act for creating what appears to be an 'inchoate offence'.: D uses some foreign coins in a vending machine to obtain a bar of chocolate. D dishonestly uses his mother's credit card to buy a CD in a shop and enters her CHIP and PIN number in the machine. D buys a car insurance policy on the internet and enters his age as 35 on the form, when in fact D is 19. D sends an email to V claiming to be a member of staff at V's bank, asking V to confirm her name, address and credit card PIN number for a security check.

130.

D creates a website on which he advertises for sale signed photographs of Jonny Brown, a famous movie actor. He also claims that all the proceeds of any sales of these photographs will be donated to charity. In fact D downloaded the photographs from the internet and signed them himself, but he does intend to donate the proceeds of the sales to charity. Which of the following would amount to a false representation for the purposes of s.2 of the Fraud Act 2006? a. Carol reads the website and, being an avid fan of Jonny Brown, wants his autograph and buys a photograph.: D has made an express representation that the photographs for sale are signed. This is true. However, his representation may be deemed to be misleading, because a potential buyer may assume from his words that the photographs are signed by Jonny Brown, when in fact they are not. D knows that his representation is, or may be, misleading. In (a) Carol is induced to buy the photograph by the false representation, so this would be covered by the new law and would have been covered by the old law, since the representation is 'operative'.

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b. Emma reads the website but knows that Jonny Brown is a renowned as a recluse and never signs autographs. Nevertheless she finds him attractive and decides to buy a photograph anyway.: Emma, in (b), does not believe the representation, but buys a photograph anyway, but under the new law the actus reus is complete once the false representation is made.

132.

c. Flora reads the website and does not know who Jonny Brown is. However, she is a firm supporter of the charity that D intends to donate the proceeds to so she buys a photograph as a way of making a donation to the charity.: In (c) Flora is an even more stark and controversial example since she is completely unaware that she is being deceived and is not interested in the false representation.

133.

Causation : A major change in the new law on fraud is the abandonment of the requirement that any false representation made by D is 'operative' on the victim, or that it causes V to part with their property, services etc. Whilst D must intend to make a gain for himself or another or cause the victim a loss, this is a mens rea requirement (which will be discussed below).: In terms of the actus reus of the offence, D does not actually have to cause any loss or make any gain. The intent to do so will suffice. Further, whether or not V loses or D gains, there is no requirement that the gain or loss is in any way linked to the false representation. In effect fraud has become a 'conduct crime' and has ceased to be a 'result crime' because the actus reus now consists entirely of the conduct of making the false representation and there is no need to prove any particular consequence (or result) of the conduct.

134.

Fraud: Mens rea imperative that the mens rea requirements are rather more strict in order to protect defendants from unjust or unnecessary criminalisation.: that D knows that his representation is or might be false or misleading that D intends to make a gain for himself or another or intends to cause loss to V that D is acting dishonestly.

135.

D knows that his representation is or might be false or misleading: covers both deliberate deceptions, where D knows that his representation is false, and 'careless' deceptions, where D is aware of a risk that his representation might be untrue. There may be some difficulty, however, in proving that D knew, or was aware of a risk that, his representation may be misleading since this may require that D was aware of the state of mind of any recipient of the representation. may overlap with the question of whether D was dishonest, which involves asking a different but related question about whether D was aware that his actions may have been dishonest in the minds of others.

136.

D intends to make a gain or cause a loss: consequence does not need to occur. Intention bears its normal meaning in criminal law, that is D's purpose was to gain or cause loss or he foresaw such gain or loss as a virtually certain consequence of his actions, in which case the jury are entitled to find intent (Woollin). Section 5 of the Fraud Act 2006 gives further guidance : money or other property if D makes a false representation, for example, intending to embarrass V or with intent to make V late for dinner, then no offence is made out D may gain for himself or another s5 gain and loss may be potential or real.

137.

FRAUD MR D is acting dishonestly: dishonesty bears the same meaning as for theft s.2 of the Theft Act 1968 does not apply to the deception offences and the meaning of dishonesty must be assessed using the test set out in Ghosh. NOTE: s2 Making a false representation may by definition be dishonest, since it involves lying, or, in common parlance, 'being dishonest'. There may be unusual circumstances where D can convince a jury that lying would not be considered to be dishonest by the standards of the ordinary reasonable person, but these are likely to be rare.

138.

Fraud by failure to disclose information s.3 of the Fraud Act 200 NOTE MR: dishonesty and intent to make a gain or cause loss as in s2: Under this offence D has committed an offence if he dishonestly fails to disclose information which he is under a legal duty to disclose, with intent to gain for himself or another or cause loss to another. narrower than s.2, because s.3 only applies where there is a legal duty to disclose the information.

139.

Legal duty to disclose: such a duty may derive from statute...from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as those of an agent and principal).' (Law Commission Report No 276 (2002) para 7.28) duty will arise under s.3 where there is a duty to disclose under civil law and in this way the criminal and the civil law are expected to coincide. .

140.

Fraud by abuse of position MR same as s2: D commits this offence if he occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, and dishonestly abuses that position, intending to make a gain for himself or another or to cause loss to another.

141.

FRAUD by abuse of position Position to safeguard, or not to act against, the financial interests of another: 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.

142.

Bruno, a member of cabin crew for EasyAir Ltd, sells passengers sandwiches that he made at home, pocketing the proceeds. He allows the passengers to believe that the sandwiches are made by EasyAir catering staff.: It seems clear that anyone who secretly profits by abusing their position as an employee of a company will be covered by this section. Bruno may be said to be in a position to safeguard (or at least not to act against) the financial interests of his employer. Through his actions, he intends to make a gain for himself and thereby cause a loss to his employer. His liability would depend on his acts being deemed to be dishonest under the Ghosh test.

143.

For a joke, James advises his neighbour, Len, that a horse running in the 2.30 race at Camptown Park racecourse that afternoon is a 'dead cert' to win at good odds. James knows that the horse has come last in the last three races that it has run. Len places a bet on the horse but it falls at the first fence.: This is a rather more difficult example. There may be evidence of dishonesty here and James clearly intends to cause Len a loss, or at least expose him to the risk of loss, but the question is, is James in a position to safeguard his neighbour's financial interests? It depends on the nature of their relationship and whether this falls into the category of relationships which the Law Commission described as 'at arm's length'.

144.

Doris works as a volunteer in a local charity shop. Someone has donated an old pair of shoes to the shop. She likes the shoes so much that she does not put them on sale, but instead wears them home.: Doris is an employee and may be deemed to be in a similar position to Bruno in example (a), that is, she is secretly profiting from her position as employee of the charity shop. The fact that she works voluntarily is unlikely to affect the position of trust in which she is placed in the shop.

145.

Harriet's father died recently and her uncle George is administering her father's will. Harriet has been left 100,000 to pay for her university education when she reaches the age of 18. However, George believes that Harriet will be more committed to her studies if she has to work for a scholarship to go to university, so he hands the 100,000 to a charity on her behalf.: George is the trustee of a trust of which Harriet is the beneficiary. He is therefore clearly in a position in which he is expected to safeguard her financial interests and he abuses this position with intent to cause her loss.

146.

Fraud abuse of position: Jury must then be satisfied that D did an act or committed an omission (s.4(2)) which abused that position. Again this term is undefined in the Act and is left deliberately vague and wide to cover all manner of potential circumstances. D must in some way act (or fail to act where he is under a duty to do so through his position) in a way which threatens the financial interests of the other party in the relationship. Note that D need not necessarily intend that the loss be suffered by that other party. He may intend to cause a loss to another party, or for another to make a gain through his acts.

147.

Obtaining services dishonestly s11: replaces the old offence of obtaining services by deception. The rewriting of this offence was aimed at updating the law so that it covered wholly automated or electronic services. D commits this offence if he dishonestly obtains a service for himself or another and that service has been, is being or will be paid for, but the defendant does not pay for it, either in part or in full. In other words free services are not covered by the offence. The mens rea requirements are that D obtains these services by dishonesty (so a causal link must be established between the obtaining of services and D's dishonesty) and D knows that the services are not meant to be free. D obtains the benefit of the service for free (or a reduced price), but he does not obtain the money that the service is worth. Any form of dishonesty will suffice. as in s2

148.

Making off without payment s.3 of the Theft Act 1978 close a loophole in the law discovered in DPP v Ray [1973]: A person who, knowing that payment on the spot for any goods supplied or service done is required or expected of him, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount due shall be guilty of an offence.

149.

make off Brooks and Brooks (1982): makes it clear that this need not be done by stealth. These words should bear their ordinary meaning - that is some form of departure from the spot where payment is required or expected. In this case D boldly stood up and walked out of a restaurant without paying.

150.

Aziz [1993] D asked a taxi driver to take him to a club 13 miles away. On arrival at the club D refused to pay the driver, so the driver drove to the nearest police station. On arrival at the police station D ran out of the taxi but was caught.: D claimed he had not made off from the 'spot' where payment was required as that 'spot' was the final destination of the journey. The court rejected this argument and held that in this case the 'spot' where payment was required was while D was sitting in the taxi, at any destination where payment was requested. It is the 'spot' at which payment is requested, such as within a restaurant (as opposed to sitting at the table) for example. Second, payment 'on the spot' may not be required or expected where D has made an arrangement to pay later, even though payment would usually be required on the spot.

151.

Vincent [2001] pellant stayed in two hotels. He left both claiming to be suffering from financial difficulties and made arrangements to pay at a later date. He was later charged with making off without payment when no payment materialised.: His conviction was quashed. Since the appellant had entered an agreement to postpone payment, payment was not required or expected on the spot and therefore the actus reus of the offence was absent.

152.

Allen [1985]: D must intend to avoid payment. it was affirmed that this means D must have an intention never to pay, rather than an intention to pay later.

153.

robbery is set out in s.8 of the Theft Act 1968 maximum penalty of life imprisonment.: A person is guilty of robbery if he steals and, immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.

154.

Stealing: The first pre-requisite of this offence, therefore, is that D 'steals', so all the elements of theft must be proved. In Corcoran v Anderton (1980). D snatched V's handbag and ran away but dropped the handbag as he was running and made off without it. However, D was found guilty of robbery since by the time he dropped the handbag the offence of theft was complete and force had been used in order to steal.

155.

Force a very minimal amount of force is necessary and that this need not amount to violence or 'force' in the ordinary sense of the word. must be used in order to steal. before or at the time of stealing (but Hale (1978)): Dawson and James (1976) :D stole a mans wallet after he had lost his balance because he was nudged by others. Whether force had been used or not is a matter to be left to the jury. The jury were entitled to conclude that pulling a bag down amounted to force. The old distinction between force on the actual person and force on property causing force on the person had gone. Clouden [1987] :D wrenched a woman's shopping basket down and out of her grasp and ran off with it. D argued that snatching a bag could not amount to force. the defendants were convicted of robbery.

156.

Hale (1978) two defendants entered V's house and while D1 went upstairs to steal the contents of V's jewellery box, D2 was downstairs tying V up.: force, which may have been used moments after the theft was complete, was held that the theft could be regarded as a continuing act so that the force was applied at the time of stealing.

157.

ROBBERY Mens rea: mens rea of theft , the fact that the force or threat of force must be used in order to steal suggests that there must be intent to use or threaten force, and that force used or threatened accidentally will not suffice.

158.

Burglary ss.9 and 10 of the Theft Act 1968. A person is guilty of burglary if: NOTE: need not involve any unlawful acquisition of property by D and may, in fact, involve trespass in order to commit an offence against the person. 3 types with same AR D enters a building or a part of a building as a trespasser.: he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or b. having entered any building or part of a building as a trespasser, he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm. MAX 14 years choose, 10 years commercial Collins, pretends to be BF Brown, Ryan B and S v Leathley [1979] (Royal Exchange Theatre Trust v The Commissioners [1978]

159.

Collins [1972] : ENTERS a building NOTE: entry does not have to be forced: . D, who was naked (except for his socks) climbed up a ladder and onto the windowsill of V's bedroom, intending to have sexual intercourse with V (with or without her consent). V, thinking D was her boyfriend, invited him into her bedroom where D and V had sexual intercourse. Only after this did V realise that D was not her boyfriend and D was accused of burglary under s.9(1)(a) of the Theft Act 1978.

160.

Collins [1972] a. Why did the court have to consider whether D had entered a building in this case?: Although D eventually entered the building in order to have sex with V, in order to be guilty of burglary he had to have entered as a trespasser. It was not clear from the evidence in this case whether V had invited D in while he was on the outer windowsill of the bedroom or whether he had climbed onto the inner windowsill. The court therefore had to consider whether, when he was on the outer windowsill, he had 'entered' the building.

161.

Collins [1972] What did the Court of Appeal say was required for an entry? Had D entered the building at the relevant time?: The Court of Appeal stated that full entry of D's entire body was not necessary. What was required was a 'substantial and effective entry'. The jury had not been properly directed to consider this and so D's conviction was quashed. The implication made by the Court of Appeal was that had D still been on the outer windowsill at the time that V invited him in, then he would not have made a substantial and effective entry at the time that he was a trespasser.

162.

Brown [1985] leaned through a broken shop window and was found rummaging around for goods.: Court of Appeal in Brown said that the word 'substantial' was of no assistance and that the test is whether the entry is 'effective'. In this case, D had made an effective entry for the purposes of burglary even though only the top part of his body had entered the shop and his feet remained on the ground outside.

163.

Ryan [1996] D leaned inside a window, but became trapped with only his head and right arm inside the window.: Ryan was held to have made an 'effective' entry even though he was not able to steal anything as only his head and right arm were inside the window and both were trapped. The decision in Ryan does not rest easily alongside the decision in Brown as it is difficult to see how Ryan's entry was in any way effective for the purposes of burglary. The courts have provided a test for entry: it must be 'effective', but it is still not clear what the word 'effective' means here and what the entry needs to be effective for.

164.

B and S v Leathley [1979]: a freezer container that had been placed in a farmyard for goods storage, with locked doors, which had been resting on sleepers for two or three years, connected to mains electricity, was held to be a building (Manning and Rogers [1871]: Almost complete building is sufficient: A building does not have to be a finished structure. The building was a house which was very nearly complete the walls were built and finished, the roof put on and finished, a considerable part of the flooring laid, and the internal walls and ceilings prepared ready for plastering:, but the court was satisfied that structures not as complete could also be 'buildings'. Held: It was a building within the meaning of the section (in the Malicious Damage Act). Lush LJ "...it is sufficient that it should be connect and entire structure. I do not think four walls erected a foot high would be a building"

165.

166.

(Royal Exchange Theatre Trust v The Commissioners [1978]: The structure needs to be relatively permanent BURGLARY entering 'part of a building' Walkington [1979]: D was in a shop and went behind a moveable counter in the shop to put his hands in the till. He was permitted to enter the shop and so, in order to be guilty of burglary he would have had to enter a part of the building as a trespasser. In this case D was held to have done so as he entered a part of the building (behind a moveable counter) from which D knew the public were excluded.

167.

168.

as a trespasser cf Collins Jones and Smith [1976]: Trespass is not a criminal offence but a tort (a civil wrong) and the word bears its civil law meaning in the Theft Act 1968. Under civil law a trespass is committed where D intentionally, recklessly or negligently enters the property without the owner or occupier's consent. D must not have consent of the occupier or owner at the time that he enters.

169.

Jones and Smith [1976] D entered his father's house, with his father's permission. Once inside D and his friend stole two televisions.: D was convicted of burglary on the grounds that he had exceeded his father's permission to enter the house, because at the time that he entered, he intended to steal. The father's permission to enter the house did not extend to permission to enter a house to steal something. D had therefore intentionally entered as a trespasser as he knew that his father did not consent to his entry to the house for this purpose. This has substantially widened the actus reus of burglary, as any defendant who enters a building intending to commit an offence, even with permission, is likely to know that that permission will be exceeded by the commission of the offence. cf Collins entered with ented for sex

170.

ways in which burglary can be committed: 1 INTENT theft inflicting GBH criminal damage. As intent to commit one of the ulterior offences is required, burglary is a specific intent crime. This may be important where D is intoxicated and pleads the defence of intoxication 2 ACTUALLY COMMIT theft or attempted theft infliction or attempted infliction of GBH. criminal damage is not a subsidiary offence

171.

Trespass with intent to commit a sexual offence: if D had entered a building as a trespasser with intent to rape, as in the case of Collins, he may have been guilty of rape. SOA 2003 rape was removed from s.9(1)(a) of the Theft Act 1968 and replaced with a new and separate offence of trespass with intent to commit a sexual offence. he is a trespasser on any premises he intends to commit a relevant sexual act (i.e. one contained in Part I SOA 2003) he knows that, or is reckless as to whether, he is a trespasser. significantly wider than burglary, since it covers any of the new sexual offences (including, but not limited to rape) created in Part I of the 2003 Act does not require an entry into a building or part of a building, but merely that D is knowingly or recklessly trespassing in 'premises' which may include a building but is much wider and may also include non-temporary structures or simply just land. The ulterior sexual offence need not be committed, but D must have the intent to commit the offence at the time that he is trespassing.

172.

Aggravated burglary s.10 of the Theft Act 1968. The actus reus and mens rea elements of this offence are identical to those of the standard burglary offence in s.9, with an additional actus reus element that D, at the time of committing the burglary, has with him: a firearm or imitation firearm a weapon of offence an explosive.