Paper 4 – Revision - PowerPoint Presentation

Paper 4 – Revision

Theft - Actus Reus Appropriation - S.3 Theft Act 1968: “Assumption by a person of the rights of the owner” e.g. possess it, use it, consume it, sell it, lend it, hire it, damage or destroy it, picking something up. Do not need to keep it Morris - Does not need to assume all of the rights – any of the rights will suffice Lawrence - appropriation can still occur even when there has been consent Hinks - appropriation can take place even where there is a voluntary gift Property S.4(1 ) “ Real property” – land and buildings “Personal property” – all moveable items - Kelly - body parts if they have been treated in some way “Things in action ” - E.g. bank account, a cheque, copyright Other Intangible Property - rights which have no physical presence - Oxford v Moss - confidential information not property Exceptions S.4(3 ) - does not include mushrooms and plants growing wild S. 4(4 ) – excludes wild creatures unless they have been tamed or kept in captivity Belonging to Another S.5 - possession or control , or having any proprietary right or interest in it Possession – the physical ability to enjoy the property. Does not have to be lawful. Turner – can be guilty of stealing your own property Woodman – can be in possession or control of property even though you don’t know it is there Proprietary right or interest – property you own but which is not in your physical control S.5(3 ) – when property received from another under an obligation to keep and deal with it in a particular way, possession and control remains with the other person ( Davidge v Bunnett ) Abandoned Property – does not belong to another (only abandoned if owner intended to abandon it) S.5(4 ) - where a person gets property by another’s mistake, is under a legal obligation to give it back

Theft Mens Rea Dishonesty S.2(1 ) situations where a person would NOT BE deemed to be dishonest (all tested subjectively): the belief that he has in law the right to deprive the other of it the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps (do not need to actually take the steps) Ghosh – Where none of the exceptions apply - Ghosh test (answer to both must be yes) : Would D’s behaviour be regarded as dishonest by the standards of reasonable and honest people ? AND Was D aware that his conduct would be regarded as dishonest by reasonable and honest people ? Dishonestly must occur at the same time as the appropriation, otherwise there has been no appropriation until there is dishonesty Intention to Permanently Deprive S.6(1 ) - intention is to treat the thing as his own Only need the intention Lloyd - When borrowing an item – if D takes the “goodness or virtue” of the item, they have an intention to permanently deprive even if they subsequently return it. Easom - conditional intent is insufficient for the MR of theft .

Robbery S.8(1) Theft Act 1968 – D 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 Has a theft taken place Was force used or threatened? Sufficient to be noticeable , but not necessarily to V Threat of future violence not sufficient Dawson and James – the word “force” is given its ordinary meaning B and R v DPP - Doesn’t matter if V is actually put in fear or not Clouden – does not have to be direct force on V . Bentham – threat does not have to be as V imagines Was the force used or threatened immediately before or at the time of the stealing? Hale – concept of continuing appropriation – if theft continuing then force will be at the time Corcoran and Anderton – robbery committed at the point of appropriation even though D fails to steal anything Was the force/threat of force in order to steal?

Blackmail S.21 Theft Act 1968 - with a view to gain for himself or another or with intent to cause loss to another , he makes any unwarranted demand with menaces Demand Express or implied ( Collister and Warhurst ) Treacy v DPP - Demand is made when D has done all he can to communicate his demand . Menaces Thorne v Motor Trade Association – menaces “ to be liberally construed ”. (threats of violence or anything unpleasant or detrimental) Clear – test for menaces is objective – would the reasonable man “of normal stability and courage” give in to the demand? Doesn’t matter if V isn’t influenced by demand Garwood - But, if V is known by D to be particularly timid , then threats that would not affect the reasonable person but do affect V can still be taken as menaces With a view to gain for himself/another or with intent to cause loss to another S.34(2 ) - “gain” and “loss” must be in money or other property Bevans – things of economic value S.21(1) - Exceptions : Person makes the demand in the belief that he has reasonable grounds for making the demand ; and In the belief that the use of the menaces is a proper means of reinforcing the demand Both beliefs must be genuinely held (subjective) Harvey - In deciding whether D believed that his use of menaces was a proper means of reinforcing the demand, have to consider whether D believes that his demand is morally or socially acceptable by the general standards of society.

Burglary S. 9(1) Theft Act 1968 (a and b) Enters Collins – entry needs to be “effective and substantial ” Building or part thereof Fairly permanent structure S.9(3 ) - includes an inhabited vehicle or vessel includes outbuildings and sheds Only necessary to enter part of a building as a trespasser Walkington – part of a building can include a partitioned off area As a Trespasser entering a building or part of a building in the possession of another without permission or a legal right to do so Permission can be given expressly or impliedly Jones and Smith – D’s were trespassing because they had knowingly exceeded their permission Knowledge or Recklessness as to the Trespass Entry must be voluntary – not forced by another or accidental Cunningham recklessness applies S.9(1) (a) - at the time of entry D has the MR of intent to steal, commit GBH or criminal damage but no further AR is needed D does not have to have committed the offence D must form the intention before he entered Can be conditional intent S.9(1) (b) - no need for MR at the time of entry but AR and MR of theft or GBH (or attempted theft or GBH) are needed Requires the full AR and MR of either theft or grievous bodily harm (does not include criminal damage)

Fraud by False Representation S.2 Fraud Act 2006 – dishonestly makes a false representation , k nowing that the representation was or might be untrue or misleading and w ith intent to make a gain for himself/another, to cause loss to another or to expose another to a risk of loss Makes a Representation – What the representation is about: S.2(3) Fraud Act 2006 – a representation can be as to fact , law or state of mind ( intention) Makes a Representation – how the representation is made: S.2(4) Fraud Act 2006 – representation can be express or implied ( by conduct) MPC v Charles – giving a cheque makes the implied representation that D has the authority to use the cheque Lambie – use of a credit card is an implied representation that the user has the authority from the credit company to use the card Representation can be made through a gesture – e.g. nod of head, presence in a restricted area which implies the right to be there, wearing a uniform or an identification badge that implies a certain stature Makes a Representation – who the representation is made to: S.2(5) Fraud Act 2006 – representation can be made to a person or to a machine (e.g. ATM, email, answerphone, text) Representation must be made but does not need to be communicated V does not need to rely on or believe the representation Which is false: S.2 (2) Fraud Act 2006 – a representation is false if it is untrue or misleading DPP v Ray/ R v Rai – representation can be a continuing representation – if a representation was true when made but later becomes false, offence is committed by not telling of the change Mens Rea – S.2 (2) Fraud Act 2006 - Knowing that the Representation was or might be untrue or misleading: Links to the false aspect of Actus Reus - t he representation must actually be untrue or misleading (AR) Continuing representations (as above) Mens Rea – D must make the representation Dishonestly: Ghosh test If dishonesty comes after the representation, must argue a continuing representation under DPP v Ray/ Rai Mens Rea – with Intent to make a gain for himself or another, or cause a loss to another or to expose another to a risk of loss: Mens Rea issue only – no need for D or another to make a gain or for another to suffer a loss or be exposed to a loss S.5(2) Fraud Act 2006 – gain and loss only includes money or other property Gain includes: “getting what one does not have” (e.g. money that one would get from a job) “keeping what one has” (e.g. paying less for something) Loss includes not getting what one may get

Obtaining Services Dishonestly S.11 Fraud Act 2006 S.11(1) Obtains for himself or another R esult crime – services must actually be obtained Services: “services” not defined in the Act E.g. meal, taxi, cleaning, data etc. S.11 (2) - That are “made available on the basis that payment has been made, is being or will be made for or in respect of them”: Must be a charge for the service S.11(1) By a Dishonest Act: Ghosh test Services must be obtained by a dishonest act – D must commit a dishonest act at the time he obtains the services , not at a later point Must be a causal link between the act of dishonesty and the obtaining of services S.11(2) - Mens Rea - Knowing that the services are made available on the basis that payment has been, is being or will be made for or in respect of them: Usually self-evident – awareness that a service necessitates payment Actus Reus and Mens Rea - Avoids or intends to avoid payment in full or in part: D gets the service either by not paying for it or not paying in full Allen – intent not to pay must be intent not to pay permanently

Making off without Payment S.3(1) Theft Act 1978 - a person who knowing that payment on the spot for any goods supplied or service done is required or expected from him, dishonestly makes off without having paid as required and with intent to avoid payment of the amount Goods are Supplied or Services are Done: Goods must actually be supplied or services actually done Troughton - If the service has not been completed there is no liability to pay Makes off: Makes off = Departing D eparture must be dishonest (link to MR) Brooks and Brooks - the manner in which D departs doesn’t matter but whether he does so dishonestly F rom the spot: McDavitt - “making off” refers to a “departure from the spot where payment is required or expected”. “The spot” usually covers the area controlled by the person to whom payment should be made Fails to Pay on the Spot as Required or Expected: Question is whether payment was required or expected - Depends on the normal relationship between D and V Vincent – if an agreement is made and there is no longer an expectation to pay on the spot , doesn’t matter if D had been dishonest in making the agreement Mens Rea – Dishonestly: Dishonesty relates to the making off Ghosh test Mens Rea – Knows that Payment on the Spot is Required or Expected: In many situations it is standard practice to pay on the spot However if D genuinely doesn’t know that payment on the spot was required he will not be guilty Mens Rea – Intention to Avoid Payment Permanently: Allen - Intent must be to never pay the sum involved

Criminal Damage – Basic and Lawful Excuse Basic Criminal Damage - S.1(1) Criminal Damage Act 1971 – without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged Damage/Destroy: Destruction means to make property useless Morphitis v Salmon – there must be some reduction in usefulness or value of an item to amount to criminal damage – look for a reduction in the usefulness of the property if there is no physical damage Roe v Kingerlee – if to repair the damage would cost money, be time-consuming or need effort, there is damage Hardman v Chief Constable of Avon and Somerset – meaning of damage includes temporary damage that will eventually disappear Property: S.10(1) Criminal Damage Act 1971 – money, real, personal, tangible Belonging to Another: S.10 Criminal Damage Act 1971 - custody and control Mens Rea: Intention or recklessness to destroy or damage property belonging to another R v G and another – recklessness is subjective Without Lawful Excuse S.5(2) (a) –a belief in consent from the owner in the circumstances Jaggard v Dickinson – defence of lawful excuse is effective if D honestly believes that he has consent of the owner to carry out the damage Denton – Owner’s dishonesty does not mean that D does not have lawful excuse if owner consents S.5(2) (b) – a belief in the immediate necessity to protect property: D acts in order to protect property belonging to himself or another; AND D believes property is in immediate need of protection: AND D believes the means adopted for that protection are reasonable in the circumstances All subjective tests

Aggravated Criminal Damage and Arson Aggravated Criminal Damage: Needs 3 simultaneous elements – must all occur at the same time – basic criminal damage, MR for basic criminal damage, MR for endangering life S.1(2) Criminal Damage Act 1971 - Intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered Steer – risk of danger to life must be caused by the criminal damage itself not the act of causing the damage – always explain this Dudley - Mens Rea issue only – no need to prove that a life was in fact endangered Sangha – doesn’t matter if the act wasn’t really capable of endangering life Arson: S.1(3) Criminal Damage Act 1971 – destroying or damaging property by fire Applies to both basic and aggravated offence – must first be criminal damage under S.1(1) or S.1(2)

Questions on Involuntary Intoxication Voluntary or Involuntary Intoxication? Involuntary V oluntary Did intoxication remove MR? YES = defence of Intoxication - Acquittal NO – no defence of Intoxication Was crime Basic or Specific Intent? Basic Intent (recklessness) – No defence Specific Intent (Intent only) – has intoxication removed intention? YES = defence of Intoxication – but D convicted of lesser basic intent crime (if there is a corresponding offence) NO – no defence of Intoxication

Intoxication Key Cases Involuntary Intoxication: Kingston –Case of disinhibition – taking of the drug lowered D’s ability to resist temptation , so his desires overrode his ability to control them. Intoxicated intent is still intent Allen – not realising the strength of alcohol or drugs will not be classed as involuntary intoxication Basic/Specific Intent: Majewski – voluntary intoxication can only be a defence to crimes of specific intent, not basic intent (as intoxication in itself is reckless) Attorney-General for N. Ireland v Gallagher – if MR is formed before the offence (e.g. Dutch Courage) no defence of intoxication

Duress by Threats Definition - Graham: Was D impelled to act as he did because he feared death or serious physical injury? If so, did he respond as a sober person of reasonable firmness sharing the characteristics of D would have done ? What is the nature of the threat ? Graham - Must be death or serious injury Baker and Wilkins – psychological harm does not amount to serious physical injury Who was the threat made to? Valderrama -Vega – threat of death or serious physical injury can be made to a member of D’s immediate family. Hasan – defence can be used where threats are made with respect to a person for whose safety D would reasonably regard himself as responsible What was the threat to do? Cole - Must be connection between threats made to D and the offence committed in response to the threats Was D reasonable and genuine in his belief of the threat? Hasan – D must reasonably and genuinely believe the threat will be carried outDid D respond as a sober person of reasonable firmness sharing the characteristics of D would have done? Bowen – relevant (age, sex, pregnancy, physical disability, mental illness or psychiatric condition) and irrelevant characteristics (low intelligence, timidity or vulnerability, alcohol, drugs)Was there immediacy of the threat? Was there opportunity to avoid the threat? Hasan – D must believe the threat will be carried out “immediately or almost immediately” Was the duress self-induced? Sharp – where a person voluntarily, and with knowledge of it nature, joins a criminal organisation or gang that he knew might bring pressure on him to commit an offence, and was an active member when he was put under such pressure, can’t use the defence Hasan – where D voluntarily associates with others who engage in criminal activity, defence will fail if D foresaw or ought reasonably to have foreseen, the risk that he might be subjected to any compulsion by threats of violence

Questions on Self-Defence Was there a necessity for the force? In the circumstances as they actually exist? or In the circumstances as they are genuinely believed to be by D? But remember if D is voluntarily intoxicated, he cannot rely on his mistaken belief There can still be necessity even if an attack hasn’t occurred yet provided it was imminent Was the force used by D reasonable in the circumstances as D perceived them? Was the force excessive? Was the threat still present or had it passed? Was the amount of force unreasonable?

Self-Defence Key Authority Necessity: Gladstone Williams – Will still be seen as necessary if D has a mistaken genuine belief about the necessity S.76(5) Criminal Justice and Immigration Act 2008 – D cannot rely on a mistaken belief caused by voluntary intoxication Bird – D does not have to wait for an attack to start but can get in the first blow Reasonableness of Force: Palmer - Must recognise that a person defending themselves “ cannot weigh to a nicety the exact measure of his necessary defensive action ” S.76(6) Criminal Justice and Immigration Act 2008 – the degree of force used by D not to be considered as reasonable in the circumstances as he believed them to be if it was disproportionate in those circumstances S.76(7) Criminal Justice and Immigration Act 2008 – guidance as to whether degree of force used was reasonable in the circumstances: A person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action ; and Evidence of D having only done what he honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable force was taken