Criminal Law Theft - Essay Example

Ria’s criminal liability Ria will be liable under the Theft Act of 19681 wherein a person is held to be guilty of theft if he or she “dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.2 To establish criminal liability in theft, it is necessary to prove two aspects (a) actus reus comprising (a) appropriation of (b) property and (c) belonging to another. The mens rea would consist of the defendant acting dishonestly with the intent to deprive another person of his or her property. Ria may also be liable for fraud under the Fraud Act of 2006 An appropriation of property would occur when a person assumes “the rights of an owner”3 and resorts to “keeping or dealing with it as an owner.”4 In Ria’s case the actus reus may be established, because (a) the property in question are the cards, because property would include “money and all other property, real or personal…”5 (b) they belong to the manger and Sonia respectively, because they facilitate drawing on credit accounts in their respective names and are regulated by the Consumer Credit Act of 19746 (c) Ria has appropriated the cards and used them as if they belonged to her. It may not even be necessary to establish that the taking occurred without the consent of the owners.7 Even a temporary appropriation of property8 or accepting another’s property as a gift can amount to appropriation.9 Where the manager’s card is concerned, Ria cannot argue that because she is also a staff member, she has a right to use the card and is thereby not guilty of theft.10 Ria could try and use the defense of consent, i.e that the manager would have granted consent to use of the card11, but a taking, even with consent, still amounts to an appropriation12 especially if such consent was obtained through fraudulent means.13 In the case of R v Morris14 theft was established when price labels on the products were changed to allow the defendant to purchase the product at a lower price. In this case, Lord Roskill stated that the concept of appropriation also includes “an act by way of adverse interference with or usurpation” of the owner’s rights.15 This was later disapproved in the case of R v Gomez16 where the House of Lords stated that appropriation can occur even in a case where the owner has consented to allow possession of the property by another, if such consent has been obtained through false representation17. Ria would be criminally liable because it is not only actus reus but also the mens rea which can be established in this case, since she has acted dishonestly18 in making use of the cards. In the case of Joyce v. DPP19 the defendant was prosecuted for theft of a passport because it had been dishonestly obtained. This would also apply in Ria’s case because she has dishonestly retained the manager’s card and Sonia’s card to make use of her PIN number and make purchases. The Courts have held that misappropriating the funds of others would amount to theft20 especially those who are vulnerable in some way, such as the elderly or naïve people who may be exploited by unscrupulous people.21 The manner in which Ria has entered the manager’s office without his knowledge or permission and taken his card as well as the way in which she has retained Sonia’s card indicate that she has been dishonest and she may also be criminally liable under the Fraud Act of 2006, which has created a new offence of fraud. Under this Act, Ria could be held guilty of dishonestly abusing her position in appropriating the cards of the manager and Sonia, as well as gaining access to her pin number.22 In order to establish that an abuse of position has taken place, it is necessary to show that the defendant (a) occupies a position where he or she is expected to safeguard the financial interests of another person but (b) abused that position (c) dishonestly (d) intending to profit from it. An abuse of position can also occur through an omission. In Ria’s case, she is employed as a sales assistant and is required to exercise responsibility in maintaining the confidentiality of financial information pertaining to the customers. Even if she learned the pin code of the customer’s credit card, she was under an obligation not to misuse such information for her own benefit. In the case of R v Ghosh23 the Court held that in a case of dishonesty, the jury must first consider whether the action of the defendant was dishonest by the standards of a reasonable person and whether the defendant was aware that he or she was being dishonest. In this instance, Ria’s action in retaining Sonia’s card leads to an inference that she intended to make use of the pin number for her own benefit, but her merely retaining the card even in the long term, would not have constituted theft.24 Similarly in the case of Easom25, it was held that a conditional intent to deprive another person of his or her property will not constitute theft. But in Ria’s case, the intent has been followed through with action. In the case of appropriation of Sonia’s card, she has used the pin number to make purchases for herself. This is also the case with the manager’s card which she has also used for her own benefit. Moreover, when confronted with her action, she has issued threats and forced the manager to part with an additional 1000 pounds. The Theft Act holds that a person may be guilty of robbery if he “uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.”26 Ria has subjected the manager to the threat of force and appropriated 1000 pounds, but even if she had issued the threat and not managed the theft, she could still be convicted of assault with the intent to rob.27 But in Ria’s case it appears that a conviction on robbery can also be established, because the threat of use of force was associated with the act of theft.28 These actions clearly establish Ria’s intent to abuse her position in order to benefit financially; through such abuse “to make a gain/cause a loss.”29 This would make her liable under the Fraud Act, as well as under the Theft Act. There is also the question of theft of identity which must be considered in this situation and the Fraud Act has been passed specifically to take punitive measures in such circumstances. Hence Ria would be liable to a conviction and additional payment of fines for her actions. Bibliography * Stokes, Paul, 2005. “Consumer liability for credit card fraud”, 155 New law Journal 1342 * Toczek, Lawrence, 2000. “To appropriate or not to appropriate, that is the question”, New Law Journal, 150.6964(1857) * Theft Act of 1986 * Fraud Act of 2006 Cases cited: Corcoran v Anderton (1980) 71 Cr App R 104 DPP v. Lavender [1994] Crim LR 297, DC Easom [1971] 2 All ER 945 Hallam [1995] Crim LR 323. Hinks v R (2000) UKHL 53 Joyce v. DPP [1946] AC 347 Kendrick and Hopkins (1997) 2 Cr App R 524 C/A Kohn (1979) 69 Cr App R 395 R v. Clotworthy [1981] RTR 477 R v Ghosh (1982) EWCA Crim 2 R v Gallasso (1994) 98 Cr App Rep 284 R v Gomez (1992) A.C. 626 R v Hale (1979) 1 Crim LR 596 R v Lawrence (1992) AC 626 R v Lockley 1995 CA R v Mazo (1996) Crim LR 435 C/A R v Morris (1984) AC at 322D R v Pitham and Hehl (1976) 65 Cr App Rep 45 R v Warner (1970) 55 Cr App R 93. Skipp (1975) Crim LR 114 C/A Read More