Criminal Law Past Year Question Property Offences PDF

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PROPERTY OFFENCES

2018 – ZONE B & A

Question 6 Aftab, finding he has no money for his bus fare, takes £5 from Erina, his housemate’s wallet, leaving a note saying that he will repay it on his return. Erina has told him on a previous occasion not to do this. When he gets on the bus the driver tells him to pay later as the bus is running late. Aftab gets off the bus without paying, reasoning that others would have done the same. Later he spots a basket of apples on the street outside a house. Above the basket is a sign saying. ‘I have too many apples for my own use. Please take some but leave some for others.’ Aftab takes 50 apples leaving only three in the basket. He then goes to a fruit and vegetable shop where he sells the apples to the owner. He then buys some vegetables, using Erina’s £5 note. Next Aftab goes to an ATM cash dispenser where he withdraws £5 to repay Erina, although he knows he has no funds in his bank account to cover the withdrawal. He returns home and puts the £5 back in Erina’s wallet. Erina sees him do this and gets angry. She accuses Aftab of being a thief, to which he replies ‘I’m not a thief. I gave you the money back. That is not theft and anyway it is not dishonest.’ Erina replies ‘Well I think it is, since you knew I wouldn't agree.’ Discuss. DO NOT discuss the law relating to handling stolen goods. General remarks This is a straightforward question on theft, requiring consideration of the various elements of theft. There is an issue also in relation to making off without payment in relation to the bus journey. This is not theft since no property was appropriated. The conversation between Erina and Aftab was important and should have been used to determine whether Aftab is dishonest in the Ivey sense. Common errors Many students did not fully interrogate the question, which leaves it ambiguous as to whether the money returned to the wallet was the same £5 note as that taken out. This is of course crucial to liability because of the case of Velumyl. Velumyl itself was not dealt with by many students. Another common error was to miss the main issue in relation to the apples namely whether because of owner’s consent there was no appropriation.

A good answer to this question would… separate the various items of wrongdoing as follows. Erin’s £5 – The first issue is that of dishonesty. Section 2 is inapplicable and so whether Aftab is dishonest depends upon the new common law test of Feely/Ivey. Your discussion should take into account the conversation between Aftab and Erina, which indicates that there is an issue as to whether Aftab’s conduct is objectively dishonest. The intention to permanently deprive is also at issue but you should have said that the Velumyl principle means that if the £5 returned is a different note from that taken the intention is satisfied but the facts do not make this clear. Bus fare – You should have known that theft was inapplicable due to lack of temporal coincidence of mens rea and actus reus, e.g. Corcoran v Whent. Making off without payment is therefore the offence to charge. There are two issues here. First dishonesty. See discussion above and remember to apply the facts. Also, has he made off from the spot where payment is due? This requires you to consider where this spot is, e.g. Moberley v Alsop. You might also consider, although this was not required, whether a charge of obtaining services dishonestly is chargeable. Again, the question as to whether actus reus and mens rea coincided arises. Taking apples – The offence chargeable is theft. The main issue concerns appropriation and you should make the point that a taking with the owner’s consent does not prevent an appropriation, e.g. Hinks. Guilt therefore depends upon whether the taking was dishonest, which required you to refer to s.2(1)(a) or (b) Theft Act 1968? If not, you should consider dishonesty as per Feely/Ivey. Selling apples – Selling the apples cannot be theft if the apples no longer belong to the previous owner which, given the fact that they were gifted, suggest that they do not, e.g. Williams v Phillips. Note, however, that it could be considered to be a conditional gift, which means the original owner might still retain some rights over the apples. If this is the case, has the condition been satisfied? I did not expect anybody to make this point but if you had you are well on your way to being a top- class lawyer! ATM machine – Theft: the issue regards primarily what property has been appropriated. There are two possibilities: a thing in action (i.e. the debt owed by the bank to Aftab); or the money itself. Here, since Aftab has no funds in his account, the bank does not owe him a debt and therefore the property appropriated is the actual money taken from the machine not a chose in action, e.g. Chodorek v Poland (2017). The only issue is dishonesty. You could also have mentioned fraud by false representation, namely the implied representation made to the machine that he was authorised to use it. See Fraud Act s.2. Poor answers to this question… tended to skate over key issues and not deal with all the possible offences committed.

2017 – ZONE B & A Question 6 a) Explain and discuss the meaning of ‘intention to permanently deprive’ for the purpose of the law of theft. b) Henrik and Sergio are golfing rivals. Sergio has never won a major championship. Henrik wins them all the time. On the eve of the Open Championship, Sergio removes Henrik’s putter (a type of golf club) from Henrik’s bag and hides it. He knows that Henrik will find it difficult to win using a new putter. He is right. Henrik is forced to buy a new putter when he discovers his loss and putts badly throughout the tournament. He comes second and Sergio wins. Sergio then returns the putter as he had always intended. Discuss. General remarks This question was generally done very badly. I was particularly disappointed that so few of you took notice of how, in the last three examiner’s reports, I have told you how crucial it is to base your studies and your revision around the module guide and the corresponding pages in Wilson. If you had done so, you would have seen that, simply by reading the section on intention to permanently deprive, together with doing Activity 12.13, which refers to Wilson 14.2 B.1, you would have everything you needed to answer this question extremely well. Part (a) of the question could have been answered simply by learning the relevant part of the module guide. Part (b) of the question is covered at Case 19 Wilson 14.2 B.1 and is effectively identical. Either you are not using the module guide and your textbook as you should or you are ‘question spotting’ (a very dangerous strategy). Common errors Too many candidates spent their time talking about theft generally in part (a). You would have received little credit for this. The question asks you only about intention. In Part (b), any time spent talking about appropriation, property, belonging to another and dishonesty other than a brief mention that they are not at issue, would have taken time properly spent on the major issue, namely whether s.6 applies or whether this is to be treated like Lloyd (1985). Another common error was for candidates to write out verbatim the words of the statute for which you would get no credit as you have the statute book with you!

A good answer to this question would…

in part (a) explain the general principle, i.e. mere borrowing is not theft however dishonest the taking is, and however valuable the item. This is a mens rea rather than an actus reus element. Intention includes conditional intention; e.g. Easom and A-GReference (Nos 1 and 2 of 1979). Reference should be made to the special case of fungibles such as money, food, drink, e.g. Velumyl. Reference should be made to s.6(1) and 6(2) of the Theft Act and their effect, i.e. ransom and exhaust of value cases, e.g. Coffey, Marshall, Lavender and Lloyd. In part (b) there should be a brief outline of the law and the main issue, namely whether the facts disclose an intention to permanently deprive. Reference should be made to s.6(1) and whether the context renders the taking equivalent to an outright taking. The argument would be that the usefulness is not exhausted as per Lloyd. Moreover, it is not a ransom case as the putter will be returned irrespective of the outcome of the match. On the other hand, given the importance of the Open Championship, it might be argued that there is no point having a favourite putter unless it is there when you need it and so Lloyd is distinguishable. There may be discussion of dishonesty. This is not an important issue but some credit would be given for a brief reference to Ghosh. Poor answers to this question… showed no knowledge or understanding of the meaning and/or relevance of intention to permanently deprive in part (a) and how it was the main, if not sole issue in part (b). Student extract 6(a) ‘Intention to permanently deprive’ is to appropriate the property belonging to someone else without meaning the other permanently to lose the thing. To deprive someone else and treating it as his own and dispose it regardless of what the owner’s rights are to the property. Borrowing and lending are also included in this if they exceed a desirable time… as in the case of Oxford v Moss where he kept the examiner [sic] paper but his intention was not to keep it permanently but to return it. As also for the case of Lloyd where he took the film[s] just to copy them and returned them back to the owner, his intention was not to permanently deprive the owner.

Comments on extract

This is both badly expressed and inadequate as an answer to part (a). It is badly expressed because the first sentence does not explain the core meaning of intention to permanently deprive which is, to put it simply, ‘Borrowing without permission is not theft because the mens rea for theft requires proof that at the time the property was appropriated the appropriator had it in mind that the property would never be returned to the owner’. The second and third sentence refers to s.6, which constitutes a qualification of the core meaning not a definition of it, i.e. sometimes the intention is present although there is no decision to keep or dispose of the property permanently. There should have been discussion of s.6 with reference made to cases such as Lavender (1994), Coffey (1987) and Marshall (1998). The use of Oxford v Moss is unclear in this respect although the use of Lloyd correctly states the law.

2016 – ZONE B

Question 1 (NOT THEFT) Asif is a builder who has been engaged by Sami to replace some broken tiles on Sami’s roof. While Asif is on the roof Elspeth spots his ladder and steals it. Not knowing the ladder has been taken, Asif slips off the roof in trying to locate the top rung. He falls to the ground seriously injured. Sami, who is watching his favourite football team on television, sees Asif fall but does nothing until the end of the game 30 minutes later by which time Asif is near to death. Sami calls for an ambulance and Asif is taken immediately to hospital but Asif dies soon after arrival. Medical evidence indicates that if the ambulance had been called promptly Asif would probably not have died. Consider the potential criminal liability of Elspeth and Sami. Would your answer be any different if Elspeth had not stolen the ladder but had removed it as a joke and had left it nearby? General remarks As always, you must start with the harm which has occurred, i.e. death. Then identify the offence which may be involved. Here it is manslaughter (no evidence of mens rea for murder). You shot yourself in the foot if you considered murder since there is no evidence of an intention to harm, let alone seriously harm, Asif. There are two potential defendants to a manslaughter charge, namely Elspeth and Sami. Their respective liability should be dealt with separately. Elspeth’s potential liability is for constructive manslaughter arising from her theft of the ladder. Sami’s will be for gross negligence liability arising out of his failure to help until too late. If there is any overlap, e.g. Elspeth and Sami might both be at risk of prosecution for gross negligence manslaughter, cross refer rather than repeat yourself. Law cases, reports and other references the examiners would expect you to use Key cases on constructive manslaughter include Newbury and Jones (1976), Jennings (1990), Church (1965). Key Cases on gross negligence manslaughter including Adomako (1994), Willoughby (2004); Wacker (2003), Evans (2009). Key cases on duty in cases of omission including Pittwood (1902), Miller (1983) Miller 2002, Evans (2009). Key cases on causation e.g. Roberts, Paget (1983), Smith (1959), White (1910), Lebrun (1992), Church (1965). Common errors Included talking about theft. This was completely unnecessary and a waste of time as you were told Elspeth had committed theft. A good answer to this question would… include the following. Elspeth (constructive manslaughter)

You should define constructive manslaughter and identify the elements. These are the commission of an unlawful and dangerous act which causes death. You should then examine the facts and identify what is at issue in this question. The first issue is whether Elspeth has committed an unlawful act and what that act is. This needs to be specified, e.g. Jennings. It is, of course, theft. The second is whether Elspeth’s unlawful act (theft) was dangerous. You would need to have given the Church definition of ‘dangerous’. (N.B. 7.4.6 of the subject guide and Activity 7.11 tells you to learn this by heart. Did you?) You gained marks for explaining why stealing a ladder in these circumstances might be dangerous. It would only be dangerous if Elspeth had reason to know Asif was on the roof (Watson) because ‘dangerous’ means that reasonable people would recognise that others might suffer harm as a result and they would not recognise this if they had no reason to know Asif was on the roof. (Dawson. See 7.4.6 of the subject guide). The third issue is whether Elspeth has mens rea. She has because the mens rea for constructive manslaughter is the mens rea for the base crime (here theft e.g. Newbury). The fourth and fifth issue concerns causation. Can it be argued, assuming the rest of the elements of manslaughter are present, that Elspeth’s act did not cause Asif’s death, either because it was self-inflicted or because Sami’s omission broke the chain of causation? (Cases such as Blaue (omissions) and Roberts (foreseeable self-inflicted harm) indicate that neither of these are operative. See 4.3.5 and 4.3.6 of the subject guide and Wilson 5.6.A.2). If you conclude that constructive manslaughter might be difficult for some reason (the only realistic reasons would be ‘dangerousness’ following Dawson) then gross negligence manslaughter might be tried. This will also be the only route to a conviction in the alternative scenario because, if the ladder was removed as a joke, there would be no theft and so no unlawful act. GN m/s can be committed by act or omission. There is clearly a duty not to act dangerously (Wacker, Willoughby). Apart from causation (see above) the main issue here would be whether there was gross negligence as to the risk of death (lesser risks are insufficient – Adomako). You might have tried reckless manslaughter but this would require actual foresight of the risk of death/serious injury. Sami Sami has two roles to play in this question. First, was his omission a novus actus interveniens? For discussion, see above. However, he might also be liable for manslaughter in his own right. He could not be guilty of constructive manslaughter which requires an unlawful act. But he could be liable for gross negligence manslaughter but only if he was under a duty. Unlike acts, duties arising from omissions are limited in scope. The main issue then is what would be the source of any duty? There are a number of possibilities. First, the fact that he had engaged Asif under a contract of services. It is not clear whether Pittwood would apply in such a case because, under contracts of services, the householder will expect the contractor to make his own safety arrangements. His ownership of the house might be another source of a duty. There is no authority on this but it is arguable (Wilson 4.5.D.3). Finally, he is responsible for Asif being on the roof in the first place and roofs are dangerous places! It could be argued that by extension

from Miller and Evans he has contributed to the creation of dangerous situations and so is under a duty to ensure that any problem is addressed, if he was under a duty. Poor answers to this question… ignored the main issues preferring to concentrate on the first thing that came into the candidate’s head, for example, talking at length about theft, because the question mentions theft, or murder because Asif has died. You should never start writing until you are clear what offence(s) the question involves. To make things simple why would the police be investigating this case? Because of the theft of a ladder? Hardly! Would they be seeking a prosecution of either defendant for murder? Again, hardly!

Question 4 Consider and discuss the potential liability for theft in EACH of the following situations: A) Gibbons, a stamp collector, spots a rare stamp on Orlando’s stamp stall at a car boot sale. Orlando, who is 12, is selling all his stamps to raise money for charity. Gibbons offers Orlando £5 for the stamp although he knows it is worth nearer £50,000. Orlando accepts and the deal is done. b) Alan takes a cheque for £100 drawn by Cherry and made payable to Barbara. Cherry has £100 in her bank account. Alan opens an account in the name of Barbara and pays the cheque into the account causing a transfer of funds from Cherry’s to Alan’s account. c) Jobs, a software developer, is in the process of developing a new application (App). Berners, his assistant, downloads a file containing a prototype of the application from Jobs’s computer onto a USB memory stick intending to sell the prototype to a rival organization. General remarks These are three very straightforward theft scenarios. To get good marks you would need to answer each of them well. You should avoid multi-part questions if possible if there is one or more you are unsure of. Law cases, reports and other references the examiners would expect you to use See below and Morris (1984), Pitham and Heyl (1977), Broome and Crowther (1984), s.2 Theft Act 1968, Ghosh (1982), Marshall (1998), Oxford v Moss, Dixon v R (2015), Chan-Man Sin v AG for Hong Kong (1988), Hinks (2000).

Common errors

Few students seemed to have studied the subject guide and done the activities. Instead, there was a tendency simply to talk about stealing £100 (b) or what the stamp was worth (a). A disappointing number of students failed to consider whether an ‘app’ was property and if so what kind (Wilson 12.2.2.9b). A good answer to this question would… have included the following. Part (a) You should have considered generally the elements of theft -– once only was necessary. There was no need to duplicate discussion in the other sections. The first question is largely concerned with appropriation and the relevance of Orlando’s consent in the light of Hinks and Gomez. Liability would depend upon a finding of dishonesty in the light of s.2(1)(a) and (b) and Ghosh. Part (b) This was a very straightforward question which, if you had read the subject guide and done the associated Activities 12.1 and 12.2 which is covered in the accompanying text in Wilson (14.2.A 2.), would have been very easy. The question requires you to identify the nature of the property appropriated that is the cheque form and the thing in action represented by the bank funds. It requires you also to analyse what the respective appropriation comprise, i.e. taking the cheque form and paying in the cheque e.g. Kohn; Chan Man Sin. Part (c) You should have considered whether the prototype app is property within the meaning of s.4. If so, what type? Is it tangible property, intangible property, or not property? Relevant cases include Oxford v Moss. Although not mentioned in the subject guide, t...