Criminal Law Assignment
The following essay will discuss the criminal liability of Gordon and Ken.
Firstly, Gordon’s liability will be discussed with reference to the Theft Act 1968, s. 1, the Criminal Attempts Act 1981, and the Criminal Justice Act 1988, s. 39.
Secondly, Ken’s liability will be discussed with reference to the Theft Act 1968, s. 21.
GORDON’S LIABILITY - The Dictaphone
Under s. 1 of the Theft Act 1968, a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. Five elements require proving.
Property (actus reus)
"Property" includes money and all other property, real or personal, including things in action and other intangible property . The dictaphone that Gordon has taken is clearly property.
Appropriates (actus reus)
Any assumption by a person of any of the rights of an owner amounts to an appropriation (emphasis added). By taking the dictaphone, Gordon is assuming the rights of the owner.
Belonging to another (actus reus)
Property is regarded as belonging to any person having possession or control of it, or having any proprietary right or interest in it . Things which have been abandoned are not capable of being stolen . If property had not been abandoned, but the defendant believed that it had, he cannot be convicted of theft, whether his belief was reasonable or unreasonable, as he would not be acting dishonestly . In the scenario before us, Gordon does not believe that the dictaphone, albeit broken and awaiting disposal, has been abandoned .
Dishonesty
Dishonesty is a specific ingredient of the offence. The leading authority is R. v. Ghosh. Lord Lane stated that there were two aspects to dishonesty, the objective and the subjective . However, it is unnecessary for a Ghosh direction unless the defendant claims that he did not know that anybody would regard what he did as dishonest . Gordon cannot realistically claim this.
With the intention of permanently depriving the other of it
The defendant does not need to permanently deprive the victim of the property. The question is whether the defendant had the intention to deprive permanently. This issue is simply left to the jury. Elaboration on intention is only required when the defendant claims he had an intention to return the property . Gordon clearly intends to permanently deprive the company.
It appears that all the elements required to secure Gordon’s criminal liability for theft are present.
GORDON’S LIABILITY - The Handbag
Under Section 1(1) of the Criminal Attempts Act 1981, if, with intent, a person does an act which is more than merely preparatory to the commission of the offence, they are guilty of attempting to commit that offence . The question to ask is whether the defendant had actually tried to commit the act or whether he had simply got ready, or put himself in a position, or equipped himself to do so . As Rose LJ stated;"Attempt begins at the moment when the defendant embarks upon the crime proper, as opposed to taking steps rightly regarded as merely preparatory".
By snatching Harriet’s handbag, Gordon has clearly done an act which is more than preparatory, and is thus guilty of attempted theft.
GORDON’S LIABILITY - Slamming the toilet door onto a person
The term "assault" is often used to include both an assault and a battery. This can lead to confusion between the two offences . Technically, assault and battery are independent offences . An assault is any act which a person intentionally or recklessly causes another to apprehend immediate unlawful violence . Gordon has not done this.The word "assault" is often used to mean a battery. This simply means an act by which a person intentionally or recklessly applies unlawful force to the complainant . The offence can be committed however slight the force may be. Gordon has recklessly applied unlawful force, contrary to s. 39 of the Criminal Justice Act 1988.
KEN’S LIABILITY
Under s. 21 of the Theft Act 1968 a person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces .
Therefore, has Ken made (a) a demand (b) with menaces (c) that was unwarranted; and (d) at the time of making the demand Ken made it with a view to gain for himself or with intent to cause loss to Gordon?
(a) A demand
A demand can be made by speech or in writing . The demand need not necessarily be explicit. If the demand was such that "the demeanour of the accused and the circumstances of the case were such that an ordinary reasonable man would understand that a demand was being made of him’ then that will suffice .
Furthermore, the demand does not have to be communicated to the person for whom it is made. In the scenario before us, Ken has made a demand.
(b) With menaces
Although the Theft Act 1968 does not define ‘menaces’, Lord Wright thought that; “the word "menace" is to be liberally construed and not as limited to threats of violence but as including threats of any action detrimental to or unpleasant to the person addressed. It may also include a warning that in certain events such action is intended" By insinuating that he will inform their employer should Gordon apply for the position, Ken has employed menaces .
(c )Unwarranted demand
A demand is unwarranted unless the defendant can bring himself within both paragraphs (a) and (b) of section 21(1) . Therefore, the basis of the offence is that the accused demands with menaces when he believes he is not entitled to the thing demanded or when he believes the use of menaces is improper. Section 21(1)(a) does not impose an objective test, but rather what the defendant thinks is reasonable and proper. Satisfying section 21(1)(b) is difficult. The standard by which the defendant is judged is gauged by the defendant’s understanding of what is morally and socially acceptable .
Ken has no reasonable grounds for making his demand and cannot believe his threatened defamatory disclosure is proper .
(d) With a view to gain for himself or another or with intent to cause loss to another
The demand must be accompanied by either a view to gain or an intention to cause loss. Furthermore, ‘gain’ and ‘loss’ are to be construed as extending only to money or other property . A potential position within the company cannot be deemed as money or property. Therefore, for the purposes of this scenario, Ken has not committed an offence contrary to section 21 of the Theft Act 1968.
Bibliography
- Allen. M. J. (2005) Textbook on Criminal Law, 8th Ed, OUP, Oxford.
- Blackstone’s Criminal Practice (2005) 15th Ed, OUP, Oxford.
- C.M.V. Clarkson (2005) Understanding Criminal Law, 4th Ed, Sweet & Maxwell, London.
- Herring. J (2004) Text, Cases, and Materials, OUP, Oxford.
- Molan. M. (2004) Criminal Law, 150 Leading Cases, Old Bailey Press, London.
Please note: The above essays and dissertations were written by students and then submitted to us to display and help others. Thanks to all the students who have submitted their work to us.
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