Criminal Liability on Doreen for Taking Vanessas Textbook - Essay Example

Criminal Law Introduction Case This case is about criminal liability on Doreen for taking Vanessa’s textbook without her permission and then hitting her with the book. Doreen can be held liable for theft as she took hold of Vanessa’s book without her knowledge with the intention to deprive her from its use as well as for physical assault for causing physical harm to Vanessa with the intention of causing injury to her. However, the criminal liability on Doreen will be assessed in regard to the definitions and elements of theft and assault. Theft is usually defined as taking someone’s property without permission. However, in criminal law the definition of theft is rather broad covering different categories and several degrees of crimes. Theft is defined in Theft Act 1968 as any person who dishonestly appropriate property belonging to another person with the intention to permanently deprive the other of it. There are two main elements of theft which lie in this definition: taking property that belongs to someone else and the intention to deprive the person from that property permanently. The element of taking property requires the person to seize possession of someone else’s property which may also involve removing the property. The complex element is the intention of the person which is mostly where legal challenges are initiated in theft cases1. The Theft Act 1968 provides definitions for all elements for theft along with references to important cases. The act also sets out that the maximum sentence for theft can be 7 years. The actions in a theft case are appropriation, property, and belonging to someone else; the intentions involved are dishonesty and the intention to permanently deprive the owner from his property. Appropriation is the assumption about the rights of the owner whether the thief possesses or uses the property. Appropriated property is simple the taken property. The second action in theft is the property which explains that any property taken away including money, real property, personal property, or any intangible property. Money includes all kinds of notes and coins. Real property includes land or anything on the land such as houses. Land cannot be stolen tangibly but this section explains that it will be theft when a trustee has taken the authorized power of the property in accordance to a breach of trust, or a tenant appropriates a part of the land or fixture. Personal property includes all other property or belongings of the victim other than land. Intangible property refers to those things that have no physical existence. The third element is the belonging to someone else. The element of belonging means that the property must be in possession or control of the person. Under this definition, a person may also be held liable for the theft of property which is their own but in possession of someone else. The Theft Act also provides that if the property is given to a person with the instructions to control or deal with it in a specific way, the ownership of the property will stay with the giver. However theft may be amounted when the person receiving the instructions acts inconsistently to the instructions provided2. Dishonesty and the intention to permanently deprive are the mens rea of theft which means they account to the guilt mind of the defendant. Dishonesty may have no permanent definition. It is simply regarded as the bad intention which is present while the person is committing the theft for example what Doreen had in this case. She did not intend to deprive Vanessa permanently from the book but her intention was dishonest as she wanted to deprive Vanessa from doing well in her examinations. However, in the Theft Act, there are three situations in which dishonestly will not be present in a person. The first situation is when the person appropriated the property believing that he had the lawful right to do so and deprive the other person from it. The second situation is when the person who appropriates believes that he had or would have the consent of the other person when he gets to know of it. The third situation is when the person appropriates the property believing that the owner of the property is not discoverable. The Theft Act says that if the person has the intention to deprive the other person of the property permanently then he is liable under theft. However, the liability may not be held if the person intends to return the property to the owner after a certain time period. This was seen in the case of R v Lloyd, Bhuee & Ali (1985)3 which also covers the issue of borrowing. In this case, Lloyd was a chief projectionist who worked at the cinema. He used to take films from the cinema and handed them over to Bhuee & Ali who would copy them for distribution after which they returned them to Lloyd and he kept them back in the cinema. The presence of the intention to permanently deprive was not present in this case and thus the appellants appealed that there was no theft; the appeal was allowed. The words of the act say that ‘and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal" requires all the goodness, virtue and practical value to be taken from the goods. In Lloyd’s case, the films were returned to the cinema in the same condition without any loss in its value or goodness. It was copied but its value was not taken away as it subjected to the same number of people coming to the cinema and watching the movie as before. Borrowing can be questionable when the thing is returned in a changed state or when its goodness is all gone. However, in Doreen’s case we can see that she did not borrow the book as it was without permission. She did not have the intention to permanently deprive Vanessa from the book but she showed dishonesty while taking it without her permission and running away with it even after being spotted. The offence Doreen committed was rather a petty theft for which she can be liable for a fine. Doreen can be held liable for criminal activity as she stole the book from Vanessa. The second aspect of this case is assault. Assault or battery does not have any specific statutory definition but it occurs usually when a person physically acts in a way which threatens or injures the other person. In Doreen’s case we will talk about battery because assault cases may not always be involving physical contact. Battery is known as the intentional offence of harming another person by using physical force without their consent. The elements of battery are intentional use of physical contact, the physical contact must cause harm, and no consent from the victim4. A battery offence does not require the defendant to actually have an intention to cause harm to the victim, even though such type of intention is usually present in battery cases. The intention required is only to contact or use physical force against the person’s will. For example any person bumping into someone who may be highly offended would not constitute to an offence in battery. The criminal act of battery requires the battery to be an offensive and harmful use of force. The range of the attack can be anywhere from a kick or throwing a rock to the slightest contact. It is not necessary that the battery actually causes injury to the person for example spitting on a person’s face will not injure him but can be a claim under battery. The use of physical force was defined in the case of Faulkner v Talbot where Lord Lane CJ stated that any touching intentionally of the other person without his consent and without legal excuse is battery. The touching may not necessarily be aggressive or rude. The penalties for a battery offence can vary according to the intensity of the offence committed. Defendants can be imposed heavy fines or imprisonment which depends on the offence as well as the criminal history of the defendant. First time offenders are rather given leniency while individuals with criminal records are given stricter penalties. The causation in battery offences states that the criminal act of the defendant must be the legal and factual cause of the harm caused. Causation is proved by establishing that the injury caused to the plaintiff would not have occurred ‘but for’ the action of the defendant5. In Doreen’s case, it can be seen that a battery offence was conducted twice when Doreen pushed Vanessa aside to run away and when she hit her with the book which caused her a serious injury. However, the intensity of the harm caused to Vanessa because of her childhood injury was not foreseeable but the intention to harm Vanessa was present. Moreover, causation fails to prove that the criminal act of Doreen was actually the reason for Vanessa’s death. Vanessa died because she exerted herself and did not take rest on her own will. Doreen would be criminally liable for the offence she committed which was throwing the book but the harm that would have been caused to Vanessa was not reasonably foreseeable. Case 2 The Theft Act of 1968 was applied due to the complicated, technical, and confusing previous statutes and laws. There were many traditional terminologies used which had to be replaced by words that were simple to codify and interpret in criminal law. Eventually the changes in the Theft Act according to the Criminal Law Revision Committee did not go as anticipated and rather the consequence was that the courts had to interpret and find out what the exact law was. Thus, the concept of appropriation has been interpreted so widely that it has become a virtually meaningless concept; both practically and theoretically. The element of appropriation has seen many disputes because of which lawyers and academics are still under conflict on the relevance of consent when an individual appropriates property. The definition of theft was not redefined and the revision committee stated that we hope the concept of appropriation would be understood easily without any further definition. There was no further definition and this demonstrated the difficulties in interpretation of appropriation which became a legal challenge even in straightforward circumstances. In the case of Lawrence v Commissioner of Police of the Metropolis (1972)6 an Italian student was not familiar with the currency so he opened his wallet in front of the taxi driver to take his fare. The taxi driver took his money more than the actual fare was. Later the driver argued that this was appropriation because the student had allowed him to take his money and thus consent was present. This argument was dismissed and held irrelevant by the House of Lords. It was held that appropriation occurs when the victim consents to hand over their property to the defendant. Lawrence’s case also meant that deception may be identical to theft because consent in both is irrelevant. However, there is no doubt that both these crimes hold different positions in reality and are to be treated differently in law as well. The outcome of Lawrence seemed to question the practicality of Theft Act. In the case of R v Morris (1984)7 it was held that the defendant should have done something criminal in order for appropriation to occur. The case was about the defendant exchanging labels on the supermarket goods so that he could pay lesser for each item. He was caught before he paid and was held for theft. The defendant argued that the item was not appropriated because he handled it with the implied consent or permission of the owner. In accordance to Lawrence, the court must have convicted the defendant but instead it was opposed. It was held that appropriation involves not an act impliedly or expressly authorized by the owner but an act of adverse interference with those rights. Thus, it was believed that theft would not be a consensual acquirement of property as the appropriation element is absent. In DPP v Gomez (1993)8 the defendant was an employee at an electrical goods store who convinced his manager to supply goods to an acquaintance and accept the payment through cheque. Gomez told the manager that the cheques were as good as cash despite being aware that they were stolen. He was thus trialled in court for theft and appealed in the Court of Appeal. It was clear that any person who sales goods in return for payment through cheque and knows that the cheques will be dishonoured will be charged for theft. Lord Lane also held that there was no appropriation when the goods are taken in possession because that was as per the terms of the contract. It was expressed that the conduct of Gomez should not come under the Theft Act practically because it covers a wide area and to create a new theft offence which is difficult for the ordinary people to regard as theft would not be right. If consent was made irrelevant then it would be a conflict between civil and criminal law thus on Gomez’s appeal the house clarified that whether consent was relevant and whether appropriation was involved in this case. The decision was made in favour of Lawrence and Morris was opposed. It was held that consent is irrelevant to appropriation. If this decision is determined in a practical situation, it would mean that any individual could be arrested theoretically if he is seen touching the items in a shop and the officer suspects that he is planning to steal them. However, in practice, it is an absurd concept which shows the enormous powers that the law authorities have. Thus, the law says that theft will occur when a reasonable person believes and identifies that a theft has occurred9. If the consent element was omitted for appropriation it would mean that the necessary action requirement for the conviction would be vanished. In some cases consent can also distinguish between the honest and dishonest conduct of the defendant. If we dismiss the necessity of consent, the law will be relying on the element of mens rea only. The dissenting judgement in Gomez suggested that appropriate meant take possession of without authority. During the 1990s as well this debate carried on and again the consent was questioned. In R v Hinks (2000)10 this issue was resolved when it was held that dishonestly taking over property would be appropriation and stealing. The decision of Hinks also meant that there is no distinction between theft and fraud. In reflection to the judgments and the academic commentary it can be concluded that adverse interference must be present in the element of appropriation. There may also be an undeserved acquittal caused but this would be better than the innocent individuals being convicted. Including adverse interference in the element of appropriation will make the law more practical. Today the adverse interference element is omitted due to which the criminal thoughts and ideas are acceptable; this would be dangerous and completely unsound. Thus these interpretations of the element of appropriation have created legal challenges making the concept a virtually meaningless element. References DPP v Gomez [1993] AC 442 House of Lords Hall, D. (2011). Criminal Law and Procedure. Cengage Learning Halpin, A. (2004). Definition in the Criminal Law. Hart Publishing Monaghan, N. (2012). Criminal Law Directions. Oxford University Press R v Hinks [2000] 3 WLR1590 R v Lawrence) [1972] AC 626 R v Lloyd, Bhuee & Ali [1985] QB 829 R v Morris, Anderton v Burnside [1983] 3 WLR 697 House of Lords Scheb, J. (2008). Criminal Law. Cengage Learning Weaver, R. (2008). Inside Criminal Law: What Matters and why. Aspen Publishers Online Read More