Foundation of Criminal Law - Essay Example

?FRAUD Article Lord Hanningfield and Expenses Fraud In this article, the legal issue being raised was the series of fraudulent expenses claims by Lord Hanningfield paid for by the government. The case supposedly constituted dishonesty, a fundamental element necessary for the crime of theft under the Theft Act of 1968. As a result, Lord Hanningfield was indicted for six charges of theft by false accounting. The peer claimed innocence citing an averaging out of his expenditures, explaining that he had claimed these within what was allowed by the law. The Chelmsford Crown Court found him guilty. It is interesting to note that in this case, the Fraud Act of 2006 was not the statute used. The prosecutors used the Theft Act of 1968 instead. The crime in this case arose from dishonestly appropriating “property belonging to another with the intention of permanently depriving the other of it.”1 Lord Hanningfield tried to defend himself on the grounds that the appropriation or his claims of expenditures were within the law, clearly trying to dispute the “dishonestly” element of theft as a crime. In Section 2 (1)(a), it was stated that a person’s appropriation is not regarded as dishonest “if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person.”2 The defense also fall within Section 2 (1)(c), wherein there was consent to appropriate the property as the peer spends the money thinking that county would have consented him to appropriate it in the way that he has done, especially that many of his peers also do the same. However, the conditions or elements required by the law were deemed sufficient for the offense and this is not surprising. Lord Hanningfield dishonestly appropriated the “property”, which is, in this case, the money belonging to the Essex County Council, which he represents. There was dishonesty involved according to the standards set by the law because there was a clear and willful misappropriation for personal gain. The averaging out of expenditure was a weak argument in light of several evidences that showed false accounting. The dishonest appropriation occurred when he knowingly and repeatedly deprived his county of its property, which according to Section 4, property includes money. Article 2: Overvaluation Fraud Mary-Jane Rathie, a senior surveyor was accused of five cases of fraud for allegedly overvaluing properties for a certain Joanne Pier, who, for her part, used the dishonestly inflated valuations to secure mortgages from the Bank of Scotland. Five properties were involved, with most of them allegedly valued twice as much as their actual worth. The prosecution cited that out of the ?10 million of loans that Ms. Pier was able to secure, ?9.5 million relied on Rathie’s valuations. The claim was that Mrs. Rathie overvalued Pier’s properties in exchange for gifts such as cars and money. The prosecutors cited the cars Bentley-Continental and Range Rover as well as a total of ?900,000 in cheques and money transfers as evidences for the fraud. The report did not cite the specific type of fraud that Rathie was accused of. It is clear, however, that the case being heard was that of fraud by representation as stated in Section 2 of the Fraud Act of 2006. In Section 2 of the statute, the main element of fraud by false representation is dishonesty committed by false representation in order to gain something for oneself. The perpetrator provides false representation by providing untrue or misleading information in order to make a gain. The testimonies of independent surveyor in regard to the severely inflated amount of properties valued were central to the prosecution’s case for dishonesty. This is further supported by the string of gifts made to Mrs. Rathie within the period by which the valuations and Ms. Pier’s loan were made. Based on the summary of the case, as reported in the article, the elements of fraud under the false representation provision of the Fraud Act of 2006, were satisfied and there is the likelihood that Mrs. Rathie will be found guilty of the charges lodged against her. Besides the relevant statute, one could also refer to the related common law in order to determine dishonesty. For instance, in R V Ghosh, it was stated that “a jury first of all decide whether according to the ordinary standards of reasonable and honest person people what was done was dishonest.”3 As the Rathie case obviously satisfies this test, then, the case cited the next step, which is for the court to “ask whether the defendant realised that he or she had been dishonest by those standards.”4 Whether the court follows legal or ordinary standards of dishonesty, Rathie (according to the facts of the case) appears to be guilty of the offence charged. Article 3: Fraudulent Insurance Claim Anthony McErlean was found guilty of several charges of fraud in his attempt to submit a fraudulent insurance claim in the name of his wife. He was found guilty for: 1) making a fraudulent claim to Ace European insurance firm for ?520,000; 2) passport fraud; and, 3) theft from his father-in-law’s pension amounting to ?67,658. McErlean pleaded guilty, which resulted to his conviction. McErlean’s case is also covered by fraud by false representation. The defendant provided false information by faking his own death in order to gain from the insurance claims that Ace European Insurance was bound to pay. The defendant was dishonest with his death. And this was aggravated by the procurement of false passport. McErlean was also charged with the theft of a specific amount from his father-in-law. The facts for this charge were not sufficiently provided by the article and it is difficult to determine whether the case had merit. Clearly, although it was not cited by the report, the case was also covered the Theft Act of 1968, which involved misappropriation of property with the intent to gain.5 The difference, however, of this case in comparison with the other cases in the previous articles is that the defendant owned to his guilt. INSANITY/AUTOMATISM Article 1: Burton and Automatism The Leeds Crown Court exonerated Arnold Burton from criminal liability after his car hit the automobile being driven by Neil Milne and his wife Ada, who were killed in the incident. Mr. Burton claimed that he was in a state of automatism during the crash. The judgment of the court pointed to the possible lack of blood to his brain, prompting psychiatrists to suggest that Mr. Burton may not have been aware of what he was doing when his car crashed causing two deaths. The ruling recognized that people are blameless for criminal acts committed involuntarily. Article 2: The Case of Brian Thomas In the Article written by Luke Salkeld for the Daily Mirror, it was reported that Brian Thomas was cleared by the Swansea Crown Court for the charge of murdering his wife. Thomas claimed that he was asleep when he strangled his wife to death in a visit to West Wales. The defense was that Thomas has suffered from chronic sleepwalking and sleep-disorder behaviors in the past and during the strangling episode, he was supposedly dreaming about intruders breaking in to their camper van. Thomas claimed that he was convinced that a fight erupted but ended killing his wife instead. The court cleared Thomas on account of testimonies from experts about his sleep disorder, which eventually explained why the killing was an involuntary act, as well as testimonies by witnesses close to the couple. Article 3: Sleepwalking and Sexual Assault Claiming that he was asleep when the criminal act was perpetuated, Edward Leung was found innocent of sexual assault charge as reported in The Telegraph. The 46-year-old businessman was charged with the assault after he pulled down the female complainant’s underwear at her home. Earlier, Leung and the complainant were drinking together with the latter’s long-term partner. The defense claimed that Leung was suffering from a brief automatism, which made the criminal act involuntary. These three criminal cases, although involving different acts, have one fundamental commonality. Each of the criminal acts were claimed to have been done while asleep. Their defenses disputed criminal liability because the acts leading to the offenses they were charged with were done involuntarily: the car crash leading to two deaths; the sexual assault; and, the killing of another. All of these cases, as reported in their respective articles had successful defenses. The accused were able to prove the defense of automatism. Central to the outcomes were the accounts of psychiatrists that established automatism or the deprivation of all awareness. The legal position in the UK on the issue of automatism is anchored on how it addresses this defense as a type of mental irresponsibility. In an article of the British Medical Journal, which also distinguished automatism from insanity, this was explained: If disease was not the cause, if there was some temporary loss of consciousness arising accidentally, it was reasonable to hope that it would not be repeated and that it was safe to let the acquitted man go free. If disease was the cause, the same thing might happen again, and so, although the accused was not criminally responsible, the special verdict of insanity followed by indefinite detention in [an]… asylum was the law’s solution.6 Non-insane automatism as a defense has been quite effective in the United Kingdom, completely absolving a defendant of all criminal liability provided there is solid expert evidence attesting to the claim. All the cases cited here involved non-insane automatism, which means that the involuntary acts committed were driven by some external factor: Mr. Burton had a temporary lack of blood to the brain; Mr. Thomas had a previous altercation with intruders; Mr. Leung was intoxicated during the incident. In a previous ruling by the Court of Appeals (3 WLR 982), it was stated that the defence of automatism requires that there was a total destruction of voluntary control on the defendant’s part.”7 Based on what were written in the articles, the process involved not only the analyses of the defendants’ behaviors but also their behavioral and medical profiles. In each of the cases cited, psychiatrists were able to prove total and not merely impaired or reduced control of faculties. Complete loss of consciousness has been successfully used to exonerate offenders in previous cases. For example, R V Quick (1973) was found innocent after the defendant harmed another because he was proven to have been in an unconscious state during the attack due to hypoglycemia.8 There was also the case of R V T (1990) where the defendant was exonerated from charges of robbery after she was proven to have been in a dream-like state, with medical evidences showing she was suffering from trauma after being raped herself.9 Conclusion All in all, the cases, as had been reported by the press, involving fraud and automatism were particularly chosen because of their news value. This is because of the interesting nature of these cases and, in the case of automatism, the incidents were actually quite rare. So it is understandable that the reports tried to focus on specific and shocking aspects of the cited cases often leaving out important legal issues and often vague if not entirely inaccurate reports. Bibliography "Automatism as a Defence" (1958). The British Medical Journal, vol. 1 (5062), 110. Fraud Act of 2006. A-G Ref (No. 2 of 1992) [1993] 3 WLR 982 R v Ghosh [1982] 3 WLR 110 R v Quick [1973] QB 910 R v T [1990] Crim LR 256 Theft Act of 1968. Read More