Property Offences PDF

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CRIMINAL LAWPROPERTY OFFENCESTopics Criminal damage Theft Fraud Burglary Robbery Other offences Taking a motor vehicle without authority Blackmail Handling stolen goods Going equipped Making off without payment Appendix Criminal Damage Act 1971, ss. 1, 2, 3, 5, 10 Theft Act 1968, ss. 1-6, 8, 9, 11*,...

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CRIMINAL LAW PROPERTY OFFENCES Topics 1. Criminal damage 2. Theft 3. Fraud 4. Burglary 5. Robbery 6. Other offences Taking a motor vehicle without authority Blackmail Handling stolen goods Going equipped Making off without payment

Appendix Criminal Damage Act 1971, ss. 1, 2, 3, 5, 10 Theft Act 1968, ss. 1-6, 8, 9, 11*, 12, 13*, 21, 22, 25 Fraud Act 2006, ss. 1, 2, 3, 4, 5, 6*, 8* Theft Act1968 ss.15*, 15A* (repealed) Malicious Damage Act 1861* (repealed) – outline of offences INTRODUCTION How many property offences do we need? o The principle of fair labelling Ashworth’s Principles of Criminal Law 7th ed (2013 – not the current edition) at 77: [the concern of fair labelling] is to see that widely felt distinctions between kinds of offences and degrees of wrongdoing are respected and signalled by the law, and that offences are subdivided and labelled so as to represent fairly the nature and magnitude of the law-breaking. (i)

Proportionality Fairness demands that offenders be labelled and punished in proportion to their wrongdoing. The label has an educative function and reinforces social standards. See the Sexual Offence Act 2003

(ii)

Where people generally regard two types of conduct as different, the law should try to reflect that difference. Stealing and swindling are different forms of wrongdoing and the law should not obscure this.

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Office for National Statistics Crime Severity scores October 2017 https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/datasets/crimeseverityscoree xperimentalstatistics The Crime Severity Score is designed to reflect the relative harm of offending, rather than how many crimes there are in a particular police area. The weighting for each offence is calculated by analysing sentencing data - the tougher the sentence imposed for a particular crime; the greater the weight for that offence. Sentencing is passed in line with legislation and sentencing guidelines. Offence Homicide

Weigh t 7,973

Attempted Murder Rape Inflicting GBH with intent

4,654 3,254 2,035

Assault without injury

14

Criminal damage

5

Arson Arson endangering life Threat to commit criminal damage

442 826 61

Theft from the person Shoplifting Theft by an employee

80 12 49

Offence

Weight

Theft or unauthorised taking of motor vehicle Robbery of personal property Burglary in a dwelling Burglary in a building other than a dwelling

128 800 465 123

Fraud by false representation; cheque, plastic card & online bank accounts Fraud by false representation: other frauds Fraud by failing to disclose information Fraud by abuse of position

86

24 256

Blackmail Handling stolen goods Going equipped for stealing Making off without payment

786 55 31 7

266

What is property? o

The concept of property is found in the civil law. The Criminal Damage Act and the Theft Act contain provisions which list the sorts of property they cover, thus modifying the civil law to a greater or lesser extent.

o

The Theft Act covers not only chattels/choses in possession, but extends to some forms of intangible property – eg debts (eg a bank account in credit), shares in a company

In a post-manufacturing age, intangible property has become increasingly important and valuable and is protected by the law on patents, copyright, trade marks, trade secrets etc. The owner still retains Information if it is shared with a third party. Oxford v Moss (1978) 68 Cr App R 183 Lloyd [1985] Q.B. 829 Scott v MPC [1975] AC 819 (common law conspiracy to defraud) o

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Interfering with a computer program (or wiping it) has been dealt with via the Computer Misuse Act (1990). Cf Criminal Damage Act s.10(5).

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Body parts and products have a physical existence and are increasingly regulated by legislation. It is likely that the criminal law will advance into this field.

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Where should we draw the boundary of property offences?

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Should the criminal law be subservient to the civil law, especially its rules of ownership?

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CRIMINAL DAMAGE The rationale of criminal damage o The violation of property rights o Attacks the object, not simply the owner’s rights o Can overlap with theft, but usually lacks the stigma of dishonesty Cabbage (1815) Russ & Ry 292; 168 ER 809 o Why not enact a generic offence of criminal interference with property? Simester & Sullivan have argued that criminal damage is different from theft and other offences involving property offences: (i) The manner of deprivation is characteristically different and may cause public alarm or distress to bystanders (ii) Frequently has an expressive dimension, communicating a contempt for society, and the victim Context The Criminal Damage Act 1971 repealed the Malicious Damage Act 1861 and is essentially an updating and simplification exercise. It is based on Law Commission Report No. 29, Report on Offences of Damage to Property (1970): [5] the offences and penaIties under the 1861 Act are extremely complicated and require revision, and … there are many unsatisfactory aspects of the law as it now stands, the main being: (a) the multiplicity of offences and the variety of penalties ; (b) an overlapping of offences both within the principal Act and with offences created by other enactments, and (c) a complicated mental element, characterised by the use of technical words. [13] the essence of offences of criminal damage should be the destruction of or damage to the property of another. Distinctions based upon the nature of the property or its situation, or upon the means used to destroy or damage it, or upon the circumstances in which it is destroyed or damaged should not affect the basic nature of the offence. This is the philosophy underlying the Theft Act and we are convinced that it is right. [32] we recommend that there should be no specific offence of damaging property by burning but that where a person destroys or damages property belonging to another by fire he should be liable to a sentence of life imprisonment. (Early Law Commission reports can be found via http://www.bailii.org)

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Criminal Damage Act 1971 o

The statutory offence of destroying or damaging property is found in s. 1(1) of the Criminal Damage Act 1971. Punishable by imprisonment for a maximum of 10 years – s.4(2).

o

However committing the offence by fire is charged as arson – s.1(3) and the maximum penalty is life imprisonment – s.4(1).

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Aggravated criminal damage – s.1(2) also has a maximum penalty of life imprisonment – s.4(1).

Criminal Damage is a prevalent offence In the year ending March 2018, the police recorded 590,299 offences of criminal damage and arson – Office of National Statistics https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/crimeinenglandand wales/yearendingmarch2018#latest-figures

CRIMINAL DAMAGE – s.1(1) o

Actus reus – destroys - property - belonging to another

o

Mens rea – intention or recklessness - lack of lawful excuse

What is damage? o

Destruction of property is self-explanatory. Damage undefined in the Act, and the courts have construed the term liberally:

Samuels v Stubbs [1972] 4 SASR 200 (“temporary functional derangement” of a police officer’s cap) Hardman [1986] Crim LR 330 (water soluble paint used to draw graffiti) Gayford v Chouler [1898] 1 QB 316 (walking across grass and thereby flattening it) o Not all the cases can be reconciled, but: Criminal damage is not confined to permanent damage. A factor is whether the property is rendered less valuable or less usable. Another is whether the owner is put to trouble or expense to return the property to its original state. Property - s.10(1) In this Act “property” means of a tangible nature, whether real or personal, including money… o land and things attached to it (eg houses) can be the subject of criminal damage but cannot usually be stolen. o while it is possible to steal intangible property, it is not possible to commit criminal damage to it. o although it is theft to pick, for commercial purposes, fruit, mushrooms etc. growing wild, it is not criminal damage o domestic animals are property

Belonging to another- s.10(2)

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possession or control OR a proprietary right or interest

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not required for aggravated criminal damage (D can destroy or damage his own property with the intention of endangering another person’s life)

o

if D genuinely believes that the property belongs to him, he cannot be guilty even if he intentionally caused the damage - Smith [1974] QB 354 (a mistake of law as to ownership of the property)

Mens rea o

An objective definition of recklessness was formulated by Lord Diplock in Caldwell [1982] AC 341:

(i) He does an act which in fact creates an obvious risk that property would be destroyed or damaged and (ii) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognized that there was some risk involved and has nonetheless gone on to do it. NB: Caldwell was effectively overruled by the House of Lords in G [2004] 1 AC 1034 Lord Bingham: [41] A person acts recklessly within the meaning of section 1 of the Criminal Damage Act with respect to( i) a circumstance when he was aware of the risk, that it existed or would exist; (ii) a result when he is aware of the risk that it will occur, and it is in the circumstances known to him, unreasonable to take the risk. o

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Here Lord Bingham adopts a 1989 definition found in the Law Comm’s draft criminal code:. A person acts recklessly “with respect to (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk”.

At [13] Lord Bingham quotes a slightly different definition of recklessness found in Law Commission working paper No 31 (General Principles: The Mental Element in Crime), published a month before on its report on Damage to property. [16] “'reckless' only requires foresight of possible consequences coupled with an unreasonable willingness to risk them" (quoting Archbold) [32] “knowing disregard of an appreciated and unacceptable risk of causing an injurious result” Cf Lord Steyn in R v G at [46] who relies upon Cunningham [1957] 2 QB 396 at 399: the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it o

As two Law Lords agreed with Lord Bingham, his formulation of recklessness must be taken to be represent the mens rea of criminal damage, rather than Cunningham (historically accurate, given the date of the Act). Lord Bingham’s definition distinguishes between circumstances and results. It also has implications for the mens rea of the offence of aggravated criminal damage AND the mens rea of attempted aggravated criminal damage.

Aggravated criminal damage Aggravated criminal damage is either: Destroying or damaging property intending that life is thereby endangered. Destroying or damaging property being reckless as to whether life is thereby endangered. o

S.1(2) contains a separate, more serious offence. Maximum life sentence - s.4(1) (as for arson).

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o o o o o

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Actus reus – the destruction or damage of property - no requirement that the property belong to someone other than the defendant. S.5 on “lawful excuse” is inapplicable The aggravating factor, is that D, by damaging property intends or is reckless as to whether life would be thereby endangered Unnecessary for life in fact to have been endangered: Parker [1993] Crim LR 856 However, when Caldwell recklessness prevailed, it had to be proved that ‘an ordinary prudent bystander would have perceived an obvious risk that property would be damaged and that life would thereby be endangered’ – Sangha [1988] 2 All ER 385. Caldwell was overruled in R v G, but as the test of recklessness advocated by Lord Bingham is the taking of an unjustifiable risk, it implicitly requires that the risk to life is objectively present. it must be (there)by the damage or destruction of property that D intends or is reckless as to whether life is endangered - a ‘dismal distinction’ Steer [1988] AC 111

What is the mens rea of attempted s.1(2)? In Attorney-General’s Reference (No.3 of 1992) [1994] 1 W.LR. 409 D threw petrol bombs at a car in which V and others were passengers. The bombs missed the car and smashed into a wall. D was charged with attempted arson being reckless as to whether life was endangered (s.1(2)). The CA applied the “missing (physical) element test” from Khan [1990] 1 W.L.R. 813. Only for the missing elements of the substantive offence was intention required. On this approach the only element missing from the commission of the full offence was damage to property, so this was the only element of the crime that D had to intend. The CA in Pace [2014] EWCA Crim 186 (not a criminal damage case) did not like the missing element test, but did not expressly overrule Khan. At [62] the CA purports to rely on the language of s.1(1) of the Criminal Attempts Act and says, “we consider that, as a matter of ordinary language and in accordance with principle, an “intent to commit an offence” connotes an intent to commit all the elements of the offence. We can see no sufficient basis, whether linguistic or purposive, for construing it otherwise.”

o

Two problems with subjective recklessness:

(i) The angry or excitable defendant Parker [1977] 1 W.L.R. 600 Booth v CPS [2006] EWHC 192 (Admin) at [23]: the appellant was aware … of the risks associated with running into the road, namely the risk of a collision and the damage to property. Aware of those risks, he then deliberately put them out of his mind and, for reasons of his own, ran out into the path of a car. (ii) Self-induced intoxication R v G [2004] 1 AC 1034 per Lord Bingham at [32]: ‘But it is not clearly blameworthy to do something involving a risk of injury to another if (for reasons other than self-induced intoxication: Majewski [1977] A.C. 443) one genuinely does not perceive the risk. Basic or specific intent? Caldwell [1982] AC 341 D pleaded guilty to s.1(1) and claimed he was so intoxicated he did not foresee that life might be endangered for s.1(2). o Per Lord Diplock at 355: The speech of Lord Elwyn-Jones L.C. in Majewski is authority that self-induced intoxication is no defence to a crime in which recklessness is enough to constitute the necessary mens rea… the fact that the respondent was unaware of the risk of endangering lives of residents in the hotel owing to his self-induced intoxication, would be no defence if that risk would have been obvious to him had he been sober. o

Lord Edmund-Davies (dissenting with Lord Wilberforce) at 359:

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the very layout of section 1 makes clear that a state of mind over and beyond that essential for a conviction under section 1 (1) has to be established before the graver crime created by section 1 (2) can be brought home. .. a state of mind "ulterior" to the "basic" intent or recklessness which is sufficient for section 1 (1) at 361: Majewski supplies no support for the proposition that, in relation to crimes of specific intent (such as s.1 (2)(b) of the Act of 1971) incapacity to appreciate the degree and nature of the risk created by his action which is attributable to the defendant's self-intoxication is an irrelevance….. I regret…that, however grave the crime charged, if recklessness can constitute its mens rea the fact that it was committed in drink can afford no defence. It is a very long time since we had so harsh a law in this country. o

Heard [2007] EWCA Crim 125 (not a criminal damage case, so technically obiter dicta) – ulterior mens rea crimes are crimes of specific intent.

o

But more recently, in Coley, McGhee,Harris [2013] EWCA Crim 223 at [57] per Hughes LJ (also obiter):

There remains some room for doubt as to whether the aggravated offence of reckless arson… is governed by [the principle in R v Stephenson] or should be regarded as an offence of specific intent – see for example the (dissenting) opinion of Lord Edmund-Davies in Caldwell and the passing obiter reference in R v Heard. We see some force in the argument that voluntary intoxication ought not to be a defence to an offence involving recklessness, even subjective recklessness… Lawful excuse – s.5(2) o

Although s. 1(1) begins “a person who without lawful excuse destroys or damages property belonging to another” the offence is not one of destroying property without the consent of the owner – Cairns [2013] EWCA Crim 172

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The onus is therefore on the defence to produce some evidence of a lawful excuse. One this issue is raised, the burden is on the Crown to disprove it beyond reasonable doubt.

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Section 5(2), is a broad defence as under s.5(3), the belief only has to be genuine, not reasonable. Jaggard v Dickinson [1981] QB 527 extends this to mistakes which are unreasonable because D was intoxicated.

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Is this the limit of the defences available to a charge of criminal damage? Cf self-defence, necessity and duress.

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THEFT Context The 1968 Theft Act was enacted as the result of recommendations made by the Criminal Law Revision Committee (the precursor to the Law Commission) in its Eighth Report: Theft and Related Offences (1966) Cmnd. 2977. A fresh start: concepts such as asportation, larceny, breaking bulk, trespassory caption etc. were abolished and replaced by unified theft offence. Does a unified theft offence reflect morally salient distinctions in the way in which property rights can be violated? See S. P. Green, 13 Ways to Steal a Bicycle Theft Section 1 provides the ‘basic definition of theft’. Five elements need to be proved: o appropriation; o of property; o belonging to another; o with an intention permanently to deprive; o dishonesty. Property – s.4 Personal property includes tangible personal property. Physical things – chattels or “choses in possession” eg cars, televisions etc. Intangible property “choses in action” include debts, shares in a company, contractual rights – eg a season ticket for a train, export quotas - A-G of Hong Kong v Chan Nai-Keung [1987] 1 WLR 1339. Despite the reference to “real property”, land cannot generally be stolen. There are some exceptions eg : o a trustee who is authorised to sell or dispose of property belonging to another appropriates the land by dealing with it in breach of the confidence reposed in him. o Commercial picking mushrooms, flowers etc. growing wild on any land. The Women’s Institute has been described as ‘Britain’s biggest organised crime group’ because their members picked wild berries in the public hedgerows to sell at fetes, and make a profit: http://www.telegraph.co.uk/news/2016/07/11/womens-institute-is-the-biggest-organised-crimegroup-police-ser/ Electricity – there is a separate offence in s. 13 of abstracting electricity (see Appendix.) Not on the Mods syllabus. Low v Blease [1975] Crim LR 513 Gas is personal property and a householder who bypasses the meter commits theft of the gas. - R v White (1855) 3 Car. & K 363. Water in a pipe or container is property – Ferrens v O’Brien (1883) 11 QBD 21. Percolating water is ownerless, so any landowner may abstract as much as she likes. o i. ii. iii. iv.

S. P. Green in 13 Ways to Steal a Bicyc...