Theft and Fraud Notes

Theft & Fraud

Property Offences

  • Theft

  • Robbery

  • Burglary

  • Aggravated Burglary

  • Criminal Damage

  • Damaging Property

  • Endangering Life

  • Damaging Property with intent to Defraud

  • Arson

Legislation and Definitions

  • Criminal Justice (Theft and Fraud Offences) Act 2001 (CJ(T&F)A 2001)

    • Theft S.4: Dishonestly appropriates property without the consent.

    • Robbery S.14: Theft + use or threat of force.

    • Burglary S.12: Illegal entry of building with intent to or commits an arrestable offence (must be subject to at least 5 years imprisonment).

    • Aggravated Burglary S.13: Burglary + firearm/weapon.

    • Deception S.16: Making Gain or Causing Loss by Deception / Obtaining Services by Deception.

Theft

  • Elements Required for Conviction

    • Dishonestly appropriates property.

    • Without the consent of the owner.

    • Intends to permanently deprive the owner of it.

    • To convict someone of theft, it must be proven that they acted dishonestly and intended to deprive the owner of their property.

Theft Actus Reus and Mens Rea

  • S.4 Theft Actus Reus

    • The actus reus of theft includes the appropriation of property.

  • Mens Rea

    • Intended to deprive the owner of his property.

  • Defenses

    • Accused believed they would have the owner's consent if they knew of the appropriation and circumstances, or they believed the true owner could not be identified by taking reasonable steps.

  • Attorney General’s Reference (No. 1 of 1983) [1985] QB 182

    • Keeping pay overpayment is theft.

    • Where an accused comes into possession of property due to the mistake of another person, they are under an obligation to return it.

Theft: Subjective and Objective Elements

  • S. 4 CJ(T&F)A 2001

    • Subjective but reasonable excuse.

    • MR - dishonestly/ intent to deprive.

    • AR - taking of property without consent.

  • Precedent / Held

    • People (DPP) – v – Morrisey [1982] ILRM 487: Inferences of dishonesty can be drawn by the accused’s conduct.

    • Hibbert v McKiernan [1948] 2 KB 142: Just because you think your property is lost doesn’t mean you relinquish ownership.

    • The People (AG) v. Grey [1944] IR 326: If an honest belief was reasonable that entitled to take item then no theft.

    • DPP v. O’ Loughlin [1979] IR 85: The more unreasonably the honest belief is held, the less likely the Judge or Jury will find the accused acted honestly.

  • S. (4) at trial must consider

    • Had not acted dishonestly, or.

    • Owner of the property concerned had consented or would have consented to its appropriation, or.

    • Owner could not be discovered by taking reasonable steps.

    • Consider reasonable grounds for such a belief in conjunction with any other relevant matters, in considering whether the person so believed.

Robbery

  • Actus Reus

    • Campbell et al note at 754 that to satisfy the actus reus, there must be a theft accompanied by force or threat of force.

    • Force rather than violence perse is required and the threat of force is enough.

    • The use of or threat of force need not be directed at any one person, but must be done for the purpose of committing the offence.

  • Mens Rea

    • Campbell et al note at at 755 that the mens rea for robbery comprises two parts: intent to deprive, as is the case regarding theft, and mens rea in relation to threats or force. In the context of robbery, mens rea—or the 'guilty mind'—has two components. First, there must be an intent to deprive, similar to the intent required for theft. Second, there must be a mens rea related to the use or threat of force.

    • The reckless use of force is unlikely to suffice in terms of the definition of robbery.

Robbery: Key Elements and Case Law

  • S. 14 CJ(T&F)A 2001

  • Precedent / Held

    • R. v. Dawson and James [1976] Crim LR 692: The slightest touch constitutes force (includes mere jostling).

    • R. v. Clouden [1987] Crim LR 56: Not necessary to prove that the alleged victim offered any resistance to the accused’s conduct.

    • DPP v. Mangan Court of Criminal Appeal, unreported, 1995: Force must be used or threatened immediately before or at the time of the theft. Also, force must be used or threatened for the purpose of enabling the accused to steal. Breaking a window of a car will be considered as using force.

  • Excuse

    • MR - dishonestly/ intent to deprive / sought to put person in fear of immediate force.

    • AR theft accompanied by force or threat of force.

Burglary

  • Definition

    • S. 12(1) of the Criminal Justice (T+FO) Act 2001: A person is guilty of burglary if he or she –

      • (a) enters any building or part of a building as a trespasser and with intent to commit an arrestable offence, or

      • (b) having entered any building or part of a building as a trespasser, commits or attempts to commit any such offence therein.

    • Not necessary for the whole body to enter.

Burglary: Actus Reus and Mens Rea

  • Actus Reus

    • Campbell et al note at 750 actus reus of burglary is the entry of a building, or part thereof, or inhabited vehicle, vessel or structure, as a trespasser, whether the dweller is present or not.

  • Mens Rea

    • The mens rea of burglary is constituted by two parts: mens rea as to one’s status as a trespasser, and mens rea regarding the commission of an offence.

    • Intention to trespass or subjective recklessness as to the fact that permission to enter was not forthcoming will suffice.

    • Must be proven that entry be effected with intent to commit an arrestable offence/has committed an arrestable offence (b) (intention or recklessness).

      The mental state for being a trespasser, you have to know you trespassed, or subjectively reckless to being a trespasser (knowing theres a risk u didnt have permission but went ahead anyway)

Burglary: Key Concepts and Case Law

  • Trespasser

    • You must know you’re trespassing or act recklessly in that knowledge to be a trespasser with the intent of committing an arrestable offence

      • R v Walkington [1979] 2 All ER 716 – went behind counter without permission

      • Barker v. R. (1983) 7 ALJR 426-housesitting for a neighbour but stoles contents of house – no permission

      • R. v. Collins [1973] QB 100 – You must know you are trespassing or have acted recklessly in that knowledge to be a trespasser. Entry must be effective

      • R v. Brown [1985] Crim LR 212: Entry need only be effective – a change from Collins

      • Stevens v Gourley(1859) 7 CBNS 99: a building is a structure of considerable size and intend to be permanent or at least ot endure for a considerable time.

Burglary: Intent and Actions

  • 12(1)(a) - Part (a) is for circumstances where the entrant has been caught before he has committed an arrestable offence like theft or criminal damage etc.

  • 12(1)(b) – (b) deals with attempts to commit or has committed an arrestable offence having entered.

Aggravated Burglary

  • S.13 AGGRAVATED BURGLARY

    • In short, burglary + firearm/weapon = aggravated burglary.

  • Actus Reus

    • Entry – The accused must enter a building or part of a building.

    • Building or Part of a Building – The place entered must be a structure that qualifies as a 'building ' under the law.

    • Trespass – The entry must be as a trespasser, meaning without lawful authority or permission.

    • Weapon - Has with them at the time of the burglary a firearm, weapon, explosive, or other dangerous instrument

  • Mens Rea

    • Intent to Commit an Offence - The accused must enter a building or part as a trespasser with the intention to commit an arrestable offence (such as theft, criminal damage, or assault).

    • Knowledge or Recklessness as to Trespassing - The accused must know that they are entering as a trespasser or be reckless as to whether they are trespassing.

    • Knowledge or recklessness regarding the possession of the weapon with intent to use it during burglary

Aggravated Burglary: Case Law Example 1

  • R. v. Murphy [1972] NI 193

    • Facts: The accused left a firearm in a nearby car while breaking into premises. The issue was whether the firearm was “with” the accused during the burglary.

    • Held: A firearm must be with the offender—meaning they must have immediate access or control over it.

      • If the weapon is left in a remote location (e.g., in a car), it does not qualify as being "with them."

    • In other words: Temporary laying down of the weapon will not absolve the offender of liability if the offender can resume control of it immediately.

Aggravated Burglary: Case Law Example 2

  • R v Stones [1989] 1 WLR 156

    • An accused cannot claim that they had an article with them for a reason other than conducting a burglary.

    • Facts: The accused in this case had carried a kitchen knife with him, which he claimed was for the purpose of self-defence (He said a gang was after him).

    • Held: that this was irrelevant to the offence charged, as, if he were challenged in the course of the burglary, he may be tempted to use it. Therefore, it is possession and not the reason for it that is important to the offence. Almost like strict liability in terms of possession of a weapon.

    • In other words: Not necessary to prove intention to use weapon, once you have a weapon you are liable.

Aggravated Burglary: Case Law Example 3

  • R. v. Bentham [2005] UKHL 18

    • Facts: The defendant used his hand inside a jacket to imitate a firearm during a burglary. He created the impression of being armed but had no actual or imitation weapon.

    • Held: The House of Lords ruled that a person cannot "possess" something that is part of their body (e.g., their hand or fingers). Since the weapon was not real, the charge of possessing an imitation firearm failed.

    • In other words: For aggravated burglary, there must be an actual weapon or imitation firearm— impressions or metaphors (e.g., pretending your hand is a gun) do not suffice.

  • s27A Firearms and Offensive Weapons Act 1990 – resembles a fireman