criminal law - Property Offences.

theft - actus reus

(i) Actus reus: Appropriation of property belonging to another, without consent

theft - history

Historically, theft was a crime of 'taking and carrying away'. The requirement for a 'taking' of property was what distinguished theft from related offences, such as embezzlement and fraud (see below). Over time, however, 'appropriation' has replaced 'taking' as the core element of the actus reus of theft. 'Appropriation' has not been precisely defined, but it is clear that it can occur even when possession of property is taken lawfully

john smith (1838) 2 Swin 28

theft

• accused charged with stealing a number of theft-by-finding items. 

• court effectively removed requirement of taking away from owners because the accused had not taken anything away and instead found, and appropriated.

george Brown (1839)

theft

• confirmed the change in the law. 

• accused took watches from complainer to repair and did not give them back 

• the possession may happen lawfully, but appropriation creates theft.

*Black v Carmichael 1992 SLT 897

theft

• 2 accused frustrated with parked cars 

• decided to clamp car with ransom note for £45

• charged with theft and extortion

• defence tried to argue that charges were irrelevant and didn't match behaviour accused engaged in. 

• appeal court affirmed the appropriation aspect of the crime to be fundamental.

  • i.e interferring with the property rights

appropriation must be of..

property

In particular, theft traditionally applies only to corporeal, moveable property. The offence thus excludes e.g.:

• Things which cannot be owned, e.g. living humans: 

  • R v Kelly [1999] QB 621;

  • *Dewar v HM Adv 1945 JC 5

    • (note however the crime of 'plagium' – Hamilton v Wilson 1994 SLT 431)

• Non-corporeal property: 

  • HM Adv v Mackenzies 1913 SC (J) 107;

  • *Grant v Allan 1988 SLT 11; Oxford v Moss (1979) 68 Cr App R 183

• Heritable property

Kane v Friel 1997 SLT 1274

theft

• man found copper piping, a sink and other goods and took them to a scrap yard to sell them, 

• charged with theft on the basis that these were not their items to take 

• on appeal court said the prosecution had not proved anything about the circumstances in which the pipes were found, their condition, or their value to justify an inference that the accused knew someone wanted to keep them.

Mackenzie v Maclean 1981 SLT (Sh Ct) 40

theft of abandoned property

• possible to steal abandoned property 

• damaged beer cans that accused had been ordered to dispose of, passers by started taking the cans away and even paid money for them 

• court said to charge someone with theft, they did not have to prove who owned the items. only that it was not the accused’s property

Macleod v Kerr and Another 1965 SC 253

• consent to appropriation

• civil case where court had to determine who owned the car 

• man bought a car from (K) using a stolen cheque which bounced

• by the time this was discovered (K) had sold the car onto a third party in good faith

  • though seller was induced to sell, they had consented to transfer and contract was valid before the third party acquirer

  • (K) was fraudulent not theft

theft - mens rea

intention to deprive

Theft historically required an intention permanently to deprive the owner of their property. Again, however, this requirement has been relaxed considerably over time, such that an intention to deprive temporarily will now suffice.

Milne v Tudhope 1981 SLT (Notes) 42

mens rea of theft

• owner of cottage dissatisfied with repairs done free of charge and asked builders to amend the repairs 

• builders instead took several items form the cottage and held it for ransom until the owner paid for the repairs 

• issue on appeal was whether or not the intention to deprive being only temporarily was enough to constitute theft 

• court affirmed

Kidston v Annan 1984 SLT 279

mens rea

• accused advertised estimates for repairs. and instead of providing an estimate for a tv he had received, he went forward with the repairs and held the tv for ransom until the owner paid for the repairs 

• court agreed this was sufficient

Fowler v O'Brien 1994 SCCR 112

mens rea

court affirms that taking of property indefinitely/ for an unknown period of timeis enough to constitute theft

*Kane v Friel 1997 SLT 1274

suggested that dishonest intention is essential.

Lauder v HM Adv 2016 SCL 459

• intention to deprive

• employee of clothing manufactorer, 

• kept and sold clothes and aimed that this was just a perk of the job 

• sheriff had not told the jury there was a dishonesty requirement and accused was convicted 

• appeal on the mis-direction upheld as it was a live issue and the sheriff shouldve told the jury that dishonesty is required.

Housebreaking and opening lockfast places

Housebreaking and opening lockfast places are not crimes in themselves. Rather, they have two functions. First, they are aggravations of theft. Second, they are criminal when committed with intent to steal

HM Adv v Forbes 1994 JC 71

housereaking with an intent to commit any other crime except for theft is not housebreaking and opening of lockfast places

Mason v Jessop 1990 SCCR 387

HB&OLP - intention to steal as essential

• accused breaking windows of a church and seen drinking on grounds 

• convicted of attempting to break in with intent to steal and appealed on the basis that this intention had not been established nor that it existed and the conviction was quashed

what building(s) does housebreakig apply to

 applies to any building. It consists in overcoming the security of a building: walking into a house with an unlocked door is not housebreaking 

Burns v Allan 1987 SCCR 449

overcoming security

• accused had disconnected an external alarm 

• this was clearly an attempt to overcome the security

Heywood v Reid 1996 SLT 378

overcoming security

accused smashed security lights and court said this behaviour also consituted housebreaking with intent to steal

embezzlement

• difficult to define,

• through case law, seems to consist of the failure to account satisfactorily for property that has been entrusted to one.

• the accused must be dealing with the property on the owners behalf, prior to appropriating it to his or her own purpose.

Edgar v Mackay 1926 JC 94

• embezzlement

• accused was a lawyer given instruction from client to recover money 

• accused didn't get in touch with the clients for a number of months and so the clients instructed him to stop working for them 

• during these months, the lawyer had collected several sums of money and had not told the client about it 

• court said that the length of time that this lawyer had been silent and had no honest explanation for the delay were important factors in deciding that this was a case of embezzlement.

Allenby v HM Adv 1938 JC 55

• what isnt embezzlement

• case which clearly outlines dishonest intention to appropriate the property 

• appeal against a conviction for embezzlement

• accused was a fish salesman and engaged in unusual accounting practises 

  • such as collecting the money he received and putting it into a single fund and then use of that fund to make advances to various trawler owners. 

• at trial, the judge failed to mention to the jury that there was a requirement for dishonest intention and this amounted to a misdirection held by the appeal court.

• important as though it was unusual behaviour, it wasnt completely out of step with others in the industry.

Kent v HM Adv 1950 JC 38

• what isn’t embezzlement

• accused given apple puree to deliver to another company, on delivery company rejected the goods on the bais that they werent good enough quality 

• accused kept the puree, sold it, and pocketed the money 

• nothing to suggest accused was authorised to dispose of the property that way 

• the court held this was not embezzlement, as it requires the accused to be entrusted to do something with the property for a specific purpose. and then instead appriopriating or failure to account for it.

Moore v HM Adv 2010 SCCR 451

embezzlement

• more recent example 

• company director and estranged wife were equal owners

• director (accused) withdrew from the company bank account and used it to gamble and make speculative stock market dealings 

• key factor is his actions suggested that he was trying to deplete the company assets so that his wife wouldnt receive as much on their divorce settlement 

• this equated to dishonesty and upheld as embezzlement

McCraw v Murphy 2016 SCL 383

mens rea of embezzlement

• dishonesty can be inferred from acts that are deliberate or reckless

• involved the accused’s use of the company credit card - noted as ‘extravagant’

• accused didn't provide an acceptable explanation 

• actions thought to be only erratic and reckless, this combined with no explanation was enough to constitute dishonesty for embezzlement.

robbery

• essentially: theft + violence/intimidation = robbery

• therefore, elements of theft are also needed

• however it’s important to be aware that this is a seperate offence from theft, not an aggravated form

O'Neill v HM Adv 1934 JC 98

robbery

• charged with assault and robbery but not convicted of assualt 

• appeal against the conviction - conviction upheld as even though there wasnt enough violence to consitute an assault. the accused’s act (snatching handbag so hard it snapped) was enough to be viewed as violent, or caused an elevated amount of fear and alarm (more than what would be for theft alone)

Flynn v HM Adv 1995 SLT 1267

robbery

• charged with assault and robbery 

  • violent act in the course of the robbery was the grabbing of the victim's throat causing them to fall 

• jury convicted the accused for robbery but subject to the deletion of the throat seizing - effectively convicting the accused of robbery despite deleting the accont of the violence that had taken place

• appeal to the high court held that it is not necessary for a robbery charge to be specific in terms of labelling the violence being used though, in this case, the jury had deliberately erased the reference to the violence meant that it didn't make sense to call it a robbery anymore. 

• however, there were other references to violent acts in the course of the trial which allowed the crime to be lablled as a robbery

Morrison v HM Adv 2010 JC 174

robbery (not)

• similar to flynn. 

• conviction for robbery where jury ddeleted the sections in relation to the violence 

• argument on appeal on the basi sthat no violence = cannot be labelled as robbery 

• court said in this case that in addition to the deletion of the reference of violence, there was also no evidence in the course of the trial that the accused had inflicted any violence. so it could not be robbery.

extortion

• simply defined

  • involved making demands of another, backed by threats.

  • not restricted to making economic/financial demands

  • nor is it restricted to threats of violence (blackmail)

• it is no defence to an extortion charge that the accused was merely demanding something to which they were legally entitled,

Marion Macdonald (1879) 4 Coup 268

extortion - old case

• threats to reveal the complainers immoral conduct to friends and family unless he paid over money

• not a crime to simpy claim that you will reveal immoral behaviour but combining the threat with a demand for money which the accused wasnt owed amounted to extorsion

Silverstein v HM Adv 1949 JC 160

extortion

• appellant was a managing director of a landlord company and approach the manager of the tenant companies and told him that unless he paid the appellant money that he owed him. the managerwould tell all the landlords to dispossess the tenants of the company 

• convicted, and appeal upheld a the court said that when threats are used to put pressure on a person to try to secure some advantage, this will be extortion.

fraud

• historically, an economical crime, though today, it is not so limited

• it is fraud to induce a person, by false pretences, to do something (probably anything) that he or she would otherwise have not done.

fraud - realm of future intentions

someone may say that they’re going to do something and have the best intentions to do that thing. but circumstances overtake them and they cannot fulfil what they said they would do

fraud - actus reus

must involve the use of false pretences

Tapsell v Prentice (1910) 6 Adam 354

fraud - neccessity for materiality

• misrepresentation must be material 

  • accused adopted a false identity and pretended to be a part of a group of travellers to encourage the complainer to buy a rug from them  

  • considered to be collateral and not material

Strathern v Fogal 1922 JC 73

fraud - where failure to disclose

• failure to disclose money that they received from tenants 

• by failing to reveal this money to the relevant authorities, defrauded the tax authorities of a certain amount of taxes

• held to be a form of statutory fraud but also relevant to charge at common law as fraud even though it involved failure to disclose rather than active misrepresentation 

• misrepresentation has to be material, not collateral.

Richards v HM Adv 1971 JC 29

fraud

• accused induced owner of a mansion to sell by telling his nominee to lie and assert that he wanted to live in the house and keep it in its present state which was important to the seller. 

• in reality, accused wanted the house for his own means and nominee had no intention of living there and keeping it in its condition. 

• court held that this was a material factor, essential in the sale and so could be constituted as fraud.

Dewar v HM Adv 1945 JC 5

not theft

manager of crematorium accused of taking 2 coffins and coffin lids for future cremations and hung onto various objects.

HM Adv v Mackenzies 1913 SC (J) 107

not theft - incorporeal property

charged with stealing recipe book with intent to make copies. and theft charge only extended to the stealing of the book but not making copies of the formulae

Whyte v HM Adv 2017 JC 262

It must be borne in mind that the initiating point of the offence of fraud is a dishonest misrepresentation of facts, which is designed to bring about the practical result which eventuates there must be a definite practical result which is causally connected to the pretence. These components of the definition of fraud are important safeguards against the criminalisation of innocent behaviour or mere lies. In our view, there's no need to convene a larger court to reconsider. Adcock.

McKenzie v HM Adv 1988 SLT 487

fraud

• charged with attempted fraud in a scheme to get money from a fishery by pretending to be employed by a fishin company at a lawyers office in order to raise a civil action against the fishery. 

• though no money was given to the accused, the fact they were able to get the lawyer to raise an action against the company was a sufficient practical result to be completed fraud

G v HM Adv 2016 SLT 282

an actual insane case that is hard to keep track of

• 2 people tricking another man into thinking he wasn’t the father of his child 

• co-accused no. 1 fell pregnant with the complainers child and then lied to officials that she had terminated the pregnancy 

• went on to have the child and made a fake facebook account of a woman who they pretended was a surrogate for accused no.2 who gave birth to the child that was actually birthed by accused no. 1 

• acc no. 1 had the baby and registered no. 2’s name as the father of the child meaning he had obtained prr’s and was the legal father of the baby

• court held that along with these behaviours, AND that this had mean the campaigner was deprived of seeing his child for 4 years (the material practical loss) was sufficient for fraud and theft.

  • although i thought we couldn’t steal humans

Mather v HM Adv (1914) 7 Adam 525

• fraud

• false pretences must be the means of brining about the practical result

• bad check used to purchase cattle 

• on appeal court said that the acused definitely lied, however, this lie was not the means by which the accused received delivery of the cattle. the goods were received prior to the check being handed over and was not fraud

fraud - mens rea

The mens rea of fraud is knowledge of the falsity of the representation, and intention to bring about the practical result

 Mackenzie v Skeen 1971 JC 43

fraud - mens rea

• incorrectly weighed animal parts to be sold but was no intentionally deceiving them on the matter, 

• cannot be proved recklessly

reset

• involves taking or retaining possession of stolen goods, knowing them to be stolen, or being privy to the retention by a third party of stolen goods.

• this is mutually exclusive with theft, cannot be convicted of both for the same articles. (druce)

HM Adv v Browne (1903) 6 F (J) 24

reset - actus reus

court affirms that someone could be guilty of reset by conniving to make sure that the person who stole the goods could keep a hold of them or keeps them in a safe place

Criminal Law (Consolidation)(Scotland) Act 1995 s 51

reset

• stolen property is not limited to property acquired through theft or robbery, also includes property acquired through breach of trust and embezzlement

  • falsehood, fraud, and wilful imposition

reset - mens rea

knowledge that the goods were stolen: mere suspicion will not suffice. However, this demanding requirement is mitigated by the rules concerning how such knowledge may be established

Latta v Herron (1967) SCCR Supp 18

reset - wilful blindness

• accused was a lawyer and weapons collector, who bought 2 guns from his client for half of their value late at night

• court said that is the solicitor really didn't know that the guns were stolen then that could only be due to his willful blindness from reality 

• i.e the circumstances were obviously objectionable and questionable.

Forbes v HM Adv 1995 SLT 627

fraud - criminative circumstances

• accused claims he didn't know that  the large parcel which contained a valuable painting was in fact, in his car 

• evidence is enough to infer that the accused knew about the stolen goods

malicious mischeif

intentionally or recklessly damaging or destroying another's corporeal property.

MM - actus reus

This definition was somewhat complicated, however, by the decision in *HM Adv v Wilson 1984 SLT 117. In this case, the High Court held that malicious mischief includes interfering with property so as to cause patrimonial (i.e. economic) loss

HM Adv v Wilson 1984 SLT 117

MM - actus reus

• accused pressed emergancy stop button resulting in the station losing £147K in economic loss 

• court said that this was an example of malicious mischief despite no physical breaking of property

Ward v Robertson 1938 JC 32

MM - Mens rea: intention or recklessness

• not essential for the accused to carry a wicked intention to damage someone else’s property. 

• enough to be indifferent as to the owners rights of their property

Clark v Syme 1957 JC 1

MM - Mens rea: intention or recklessness

• acts showed a deliberate disregard for the rights of the complainer. 

• accused had shot a sheep that went onto his land and was acquitted at first due to his argument that he had misunderstood his legal rights.

Criminal Law (Consolidation) (Scotland) Act 1995 s52

vandalism

• created originally by s 78 of the Criminal Justice (Scotland) Act 1980. It is committed by "any person who, without reasonable excuse,wilfully or recklessly destroys or damages any property belonging to another"

vandalism v MM

Possible ways of distinguishing vandalism include:

• The form of recklessness required (Black v Allan, above)

• The availability of a 'reasonable excuse' defence (see e.g. MacDougall v Ho 1985 SCCR 199; John v Donnelly 1999 SCCR 802; PF Peterhead v Elrick (No. 2) 2017 SCL 1072)

• Application to patrimonial loss