Criminal Liability -Theft and Fraud - Essay Example

Criminal Liability -Theft and Fraud Liability of any offence should be compulsory. Something not to be questioned. Even more if misdemeanour isn't just offence, but even "real" crime. Theft and fraud are still remote from, for instance, murder, but they lead more deep in the world of transgressions. No one is guilty of a criminal offence without fault. In addition, one must be a the person behind, a perpetrator or a participant in the commission of the offence, with the exception of the endeavour to commit, which is an transgression "sui generis". Since a corporation acts through its officials, it may well be that the directing mind of a corporation is always a participant in the offence committed by the latter. The British Criminal Code provides for a number of ways to become involved in the commission of an offence: by actually committing the offence, by aiding and abetting the principal, by engaging oneself with others in a criminal activity with a common intention (Aquinas, 1988) (Ali was participant in Junaid's activity), by counselling another to commit an offence and by being an accessory after the fact. In general, anyone who knowingly encourages or facilitates the commission of an offence or impedes its prevention is a party to the offence (Aquinas, 1988). While one commonly uses the expression "aiding and abetting", the two are different concepts and either of them is ample to engage criminal liability. Whether liability for one's action lies through either concept, it must be accomplished "for the purpose of" aiding or abettingi, which simply means "intentionally" as opposed to by accident. There is no need to show that the accused desire the illegal end to occur. One who is indifferent to the fact that his action aids or abets the perpetrator of an offence is therefore guilty. The fact that the principal cannot be convicted is not a block to a successful prosecution of other parties. One can commit an offence by using an innocent agent. An attempt to commit an offence is also prohibited. The Supreme Court of Canada has decided that one must intend to commit the completed offence. It is immaterial that the offence be in fact committed. Mere acts of preparation are not attempts. They become attempts when they are close to the accomplishment of the offence or when they offer a proximity to the realization of the illegal purpose. The acts do not have to be illegal or morally wrong. "Conspiracy is an inchoate or preliminary crime, dating from the time of EdwardI, but much refined in the Court of Star Chamber in the 17th century. Notwithstanding its antiquity, the law of conspiracy is still uncertain. It can, however, be said that the indictment for conspiracy is a formidable weapon in the armoury of the prosecutor. According to the cases, it permits a vague definition of the offence; broader standards of admissibility of evidence apply; it may provide the solution to prosecutorial problems as to situs and jurisdiction: see Director of Public Prosecutions v. Doot, [1973] A.C. 807." These words capture the reality of the conspiracy offence (Aquinas, 1988). The essence of the crime is the agreement between two or more persons to commit an offence. When the agreement is reached, a conspiracy is complete and one cannot withdraw from it. It is irrelevant that the object of the conspiracy is not achieved. A person may become part of a conspiracy by aiding or abetting the conspirators. The Supreme Court of Canada also decided that a conspiracy may be prosecuted in Canada even if the actual crime is committed in another country, as long as there is some important link with Canada. Essentially, theft is committed when anything is fraudulently and without colour of right taken or converted with target to leave without thereof the owner or person who has a special property or concern in it of the thing or his property or concern in it. The intent may be to deprive the person of the property either temporarily or absolutely, although this is not the only proscribed intent. The requisite intention may exist when there is intent to pledge the property or deposit it as security to part with it under a condition with respect to its return that the person who parts with it may be unable to perform, or to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted. The transgression is complete when, with intent to filch anything, a person moves it or causes it to become movable - thus, alteration of its position. The directors, officers or members of a company can commit theft notwithstanding that what was alleged to have been stolen was stolen from that company. The word "property" in the definition of theft includes even intangible objects that are capable of being converted in some way that deprives the owner of his proprietary interest. This includes certain choices in action, credit in a financial institution or other types of money credit. However, it's deeply questionable under what circumstances confidential information, including copyrighted information and information of commercial value, falls within this meaning. While a document containing confidential information can be stolen (Junaid father's authentication data), the obtaining of this information without the authorisation, by duplication or otherwise, does not amount to theft by meanings of many legal systems. Just like that, dishonesty is an important and unavoidable element of any theft, robbery, abstracting electricity, false accounting, procuring the execution of a valuable security and handling stolen goods; in most cases of burglary; in all cases of obtaining property, services or a pecuniary advantage by deception, of evasion of liability by deception and of making off without payment; and whenever an intent or agreement to defraud is alleged (Griew, 1985). Dishonesty, as primary moral element, can only be defined with reference to the fact-finders' judgement. Richard Tur argues that "what may constitute a just excuse is so context-dependent that exhaustive definition must necessarily limit the range of circumstances which might excuse". Therefore, if an exhaustive definition of "just excuse" or "dishonesty" were incorporated into the law, there would inevitably be examples of behaviour which were legally dishonest, but which the fact-finders would characterise as morally blameless (Aquinas, 1988). When dishonesty is a live issue, although the fact-finders are not given a definition, they are required to consider it in a structured way. The Court of Appeal in Ghosh (Griew, 1985) laid down a two-stage test. The first question is whether the defendant's behaviour was dishonest by the ordinary standards of reasonable and honest people. If the answer is no, that is the end of the matter and the prosecution fails. If the answer is yes, then the second question is whether the defendant was sentient that his or her demeanour would be regarded as dishonest by reasonable, honest people. While this approach provides structure, and prevents defendants from running "Robin Hood" defences (Aquinas, 1988), where the defendant acknowledges that his or her accomplish would be regarded as dishonest by reasonable honest people, it still engages the jury drawing the line between what is and what is not dishonest. It is not, however, merely what the jury regards as the appropriate moral standard, by reference to their view of the ordinary standards of reasonable and honest people, which counts. In addition, the jury is required to find that the defendant recognised that his or her conduct was outside the norms of what society regards as honest (Aquinas, 1988). The Supreme Court has held that confidential information is neither property for the purposes of the Criminal Code nor is it capable of being taken or converted in a manner that results in the deprivation of the victim, except in very rare and highly unusual circumstances (Allen M.J. & Cooper S., 2006.). In Stewart v. The Queen (2002), an attempt was made to obtain surreptitiously the names, addresses, telephone numbers and other confidential information of employees whom a union was attempting to organise. Neither the offence of theft nor fraud had been made out. This information was not intended to have been dealt with in a commercial way. The only loss from the appropriation of the information was its confidentiality (2002). However, had the information been in the nature of a trade secret or copyrighted material having commercial value intended to be exploited, then the ensuing risk of economic prejudice would amount to deprivation and the act would constitute fraud. In R. v. Hinks (Wood-borough, 2000), the word "appropriates" in the Theft Act 1968. was questioned. Its interpretation by their Lordships was that that the acquisition of an indefeasible title to property is capable of amounting to an appropriation of property belonging to another for the purposes of the Theft Act 1968 Similar thing occurred in McVey v. United States of America (2001) where the design and software information of a supercomputer was dishonestly usurped. This action caused disadvantage to the economic interest of the victim. The use of the secretly obtained information could facilitate the development of such a computer by a foreign opponent, thereby creating a threat to the victim in the world souk (intended, possible and predictable threat). Theft is not limited to situations where there is an unlawful taking of the possessions. As the definition includes "intention", theft can be committed even in cases where the accused was initially in lawful possession of the property. Intention requires a manifest act inconsistent with the conditions or the terms of the initial lawful possession. Passive possession is insufficient (Shute, 2002). Intention is generally defined in terms of foresight of particular consequences (Merriam-Webster, 1996) and a desire to act or fail to act so that those consequences occur. It is distinguished from recklessness because, on a subjective basis, there is foresight but no desire to produce the consequences. But the perennial problem has always been the extent to which the court can impute sufficient desire to convert recklessness into intention. The original rule was objective (Aquinas, 1988). Given that Criminal Justice Act 1967 now entitles a jury to draw reasonable inferences from all the evidence, Wien J. said in R v Belfon (1976) that: Foresight and recklessness are evidence from which intent may be inferred but they cannot be equated...with intent. (Allen M.J. & Cooper S., 2006.) Thus, when as in R v Moloney (1985) the defendant gets into an argument with his stepfather about who could load a shotgun and fire quickest, in the argument the stepfather was shot dead and Moloney was charged with murder. Lord Bridge held there was no rule that foresight of probable consequences was equivalent to, or alternative to, the necessary intention for a crime of specific intent (1985). Rather, the question of foresight of consequences ("Ali refuses saying that Junaid's father will definitely notice such a purchase") was a part of the law of evidence. Lord Bridge gives the example of a man boarding a plane which he knows to be bound for Manchester. He "conclusively demonstrates" his intention to go there (1985). It is not merely evidence from which such intention may be inferred. In the rare case where it may be necessary to direct a jury by reference to foresight of consequences, two questions arise: A. was death or very serious injury a natural consequence of the defendant's voluntary act B. could the defendant foresee such an outcome as being a natural consequence of his act If the answer to both questions was yes, an inference could be drawn that the defendant had intended that consequence. What was a "expected" consequence Examples of theft containing intention (Junaid's intention to buy video games) abound in the jurisprudence. After Lord Steyn's judgment in R v Woollin (1998) 4 All ER 103 (HL) (affirmed in R v Matthews & Alleyne [2004]) (Allen M.J. & Cooper S., 2006.)it is clear that, based on R v Moloney, foresight as a mere probability is insufficient. This confirms R v Nedrick (1986) subject to the substitution of "infer" for "find". It is unambiguous that Lord Steyn (1998) intended that a virtual or moral certainty test should necessarily lead to a finding of intention (Aquinas, 1988). But by phrasing the guidelines in terms of what the jury are not entitled to do, the clarity of the direction is compromised. He may have felt that the jury are entitled to indirectly infer but not directly find intention. Nevertheless, it seems that "a result foreseen as virtually certain is an intended result", It is not clear that Lord Steyn intended the above meaning. Parliament require that the jury not be directed to find intention, and Lord Steyn cannot have intended to contravene Parliament's wishes. Where the jury are sure that the defendant foresaw the required level of harm to be a virtual certainty this is evidence which the jury may consider in consideration of whether the defendant personally intended this harm. In the context of above stated, story of Junaid and Ali clearly demonstrates liability of crime, even though it was perpetrated by minors. Aim is that crime, no question who it involves, requires sanctioning. It was Ali's to tell what Junaid intended to do. We saw Teft Act's position towards theft of debit card and roll of money from the jar, as both are tangibles. Again, we saw Act's position towards theft of identity (intangible property), and again towards theft of data from the debit card - (fraudulent deed rather than theft itself). At this moment predicted punishments for both, theft and fraud should be compared.7 against 10 years of imprisonment could be explained by the "quantity" of dishonesty that tags both transgressions. Quantity of dishonesty is subjective category, so individual judgements are avoided by such definition in the Law (Aquinas, 1988). Ali's guilt isn't lesser because he wasn't real perpetrator, but was merely accepting Junaid's deeds. Not reacting on Junaid's actions makes Ali aware of crime. His non reacting on stealth can be interpreted as approval- thus makes him accomplisher. Accepting of money from Junaid makes him even guiltier. as he didn't only eluded the theft and thus missed a chance to merely inconclusively exculpate but he tacitly accepted money that Junaid gave him, what transformed him from observer to accomplisher. Junaid's guilt lies not just in buying video games and stealing money from can, but on consideration of buying lap top as well as, according to Theft Act, merely intention of transgression is transgression itself(Aquinas, 1988). Read More