Crimes of dishonesty PDF

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Criminal Law M9111 Week 4: Crimes of Dishonesty   

Ancient- Hume has extensive discussion Theft in history regarded as a serious crime, capital crime Definition: see slides

What can be stolen:  Property must be: (1) Moveable- things that can be physically moved (2) Corporeal- Latin for body, things which have a body, which are solid, can be touched, however it is possible to steal electricity “corporeal”: theft of information, only the memory stick/disk is corporeal, value is information within the stick, not the stick itself, leading case Dewar (Hume I, 75), apprentice, broke into employee office, stole book with trade secrets and copied them out then returned book. Initially crown charged with house breaking but charged with innominate crime, a nameless crime but wasn’t theft, so wasn’t sentenced to death, see Alison quote in slides - HMA V Mackenzie: o Accused husband and wife accused of stealing book of trade recipes with intention of selling them o Copying out recipes with intention to make money is not the crime of theft -

Grant V Allan o Accused took copy of print out o Crown dishonesty of exploiting dishonest information o High court held not a crime known to the law of Scotland o It was not obviously criminal o Not a thing that should become a crime o Should have sued in civil courts

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In the ownership of anotherYou cannot steal your own property Had to be acquired without the consent of the owner If owner agrees to transfer ownership, cant be theft All that is required is the appropriation of the thing, no requirement for benefit from theft

Actus reas of theft: appropriation  Involves getting the thing and intending to take it  Black v Carmichael 1992 - Fee to park here you will be clamped - Convicted of extortion then appealed - High court said it was extortion but also theft

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If a car was clamped, then then owner was deprived of some of the rights they could normally exercise Overlap between actus reas and mens rea Theft is only takes places when both come together Arises in theifs own head, key issue is how can the crown prove it, what intentions did they have? One method of recognising this is if theif sells the item Inference of dishonest Dewar V HMA 1945 o Man stole coffin lids o Moment crime was commited was when the man took the lids off the coffin

Amotio:  Latin for “moving away”  Arises where accused moves the item in such a way you can infer his or her intention to move the item away  If item is in a container (drawer, jewellery box ect) it has to be fully or physically removed from that contained for amotio to be present  Amotio can arise at a self service shop, where person puts item into bag and doesn’t itend to pay for it - Barr v O’Brien 1991 o Theft of computer tapes o Took two tapes off shelf and put them in his pocket o Walked along to the door o He realised he was being watched by store detective o He argued as he hadn’t left the store he hadn’t had the intention to remove the owner of his rights o Court held there was enough evidence for amotio to apply Theft by finding:  If the thing you find is not owned by anyone  Items like wild animals  Generally most things are owned by someone else  McMillian V Lowe 1991 - Accused found no of check books and check cards - Claimed he phoned them in a phone box - 4 hours police investigating him - court held this was enough time for him to plan to keep them  Statutory offence: PART VI of civic government Mens rea:  Intention to deprive owner of property- use exact wording  Mens rea required an intention to deprive owner permanently  Since 1970s broadened, expand mens rea  Kivlin V Milne 1979 - Accused stole car

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- Abandoned car after he was done with using it - High court held that amounted intention to deprive owner permanently - Mens rea didn’t change at this point, but was broadened significantly Milne V Tudhope - Owner of cottage had builing works carried out - Wasn’t happy with work - Asked builders to do remedial works - Builders refused to do any work withut further payment - To back it up they removed certain items from cottage: doors, boiler - Went to police, court held they were holding the items to ransom - Court held this was theft they had intention of deprive temporally - Attached conditions to this mens rea - Accompanied by (1) Clandestine taking (secret) (2) Nefarious purpose (3) “Exceptional circumstances” Kidstone v Annan - Owner answered advert in paper, repair for tv - Accused said he wasn’t going to give tv back for repairs he had already carried out however it was only supposed to be an estimate - Court held this was theft with intention to deprive temporaliy Black v Carmichael: Carmichael v black 1992 - No additional comments Fowler v O’Brien: - Accused asked owner of bycicle if he could borrow it - Owner said no - Accused took the bike anyway - High court said this was theft with intention to deprive indefinitely

Taking and using the property of another clandestinely:  Case of joyriding  High court presented with form of behaviour they thought was harmful ought to be criminalised, crime created  Given expansion of mens rea of theft behaviour now covered by theft  No longer needed yet not formally been abolished Aggravated forms of theft:  If the manage to prove aggravation can move for a longer more serious sentence  Theft by housebreaking - “house” – hume, any building with a roof, building needs to be shut and fast against intruders, breaking into individual rooms eg in hotel, not house breaking - needs to be commited before the theft - be the means in which theft takes place - “breaking” includes any means by which the security of the building is overcome - similarly, if some evidence building was not shut and fast cannot be house breaking

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if theif got through open window, would be house breaking, not normal means of entry they need evidence it was shut and fast on day of theft house breaking is not a criminal offence, exists only as an aggravation of theft if thief gets in, but doesn’t take anything, if they can prove intent to steal it will be enough burns v Allan o accused tried to break in o set of burglar alarm o appealed convition of house breaking with intent to steal o intent to steal was clear, why else would he disarm alarm o only crimes which make house breaking a crime o significance, if accused breaks into property, then house breaking is disgrearded hma v forbes o teeneage girl walking around semi clothes o housebreaking with intent to rape given to accused o high court said ot a crime under scots law o was breach of the peace Cochrane 2006 o Accused charged with conspiracy of breaking into house o High court said house breaking was not a crime

Theft by opening lockfast places:  Crown wants to allege aggravation of opeing lockfast place  Has to show it was done before theft  Most common is a car  Also box, drawer, lockable briefcase Preventive Offences:  2 bespoke offences  both found in civic government Scotland act 1982  preventive offences  sections 57, 58  crown has to find evidence in which is can infer inteion to commit theft, but no mens rea requirements for two offences themselves, for that extent they are strict liability...