Deception offences, theft, duress and the inchoate offence of incitement
R's attempt to gain a loan while misrepresenting his poor credit history with the bank is committing an offence contrary to section 1 of the Theft Act (TA) 1968 which states that "any person who by any deception dishonestly obtains services from another shall be guilty of an offence." His success in obtaining this advantage by dishonesty is suggested by the "provisional agreement" although the terms of this would need clarification. Section 4 of the Theft Amendment Act 1996 provides that it is an offence dishonestly to obtain a money transfer by deception, such as a bank loan, which is to be paid for by interest. Hence, R's actions would fall within the ambit of the TA 1968.
R's decision to have lunch for which he cannot pay he commits a further act of deception. The prosecution would be able to rely on the decision in DPP v. Ray in which the defendant ordered a meal intending pay. His deception arose from his representation as implied by ordering the meal that he had the "means and intention of paying for it." On the facts as given, it appears that R provided the appropriate representations. MPC v Charles is good law for the proposition that presenting a credit card in excess of your authority is deception. The case study informs us that the card was rejected which seems to confirm that attempts at using it were made.
There is some factual overlap with Lambie in which the defendant continued to use a Barclaycard having agreed to return it. She was charged with an offence under s. 16(1) of the TA 1968 of obtaining a pecuniary advantage.
It would be important to have more information regarding the circumstances in which R joins the dog stealing gang, however on the available facts it seems that he joined the gang voluntarily before being "forced" into stealing dogs. R would no doubt attempt to use duress as a defence, however this won't be possible if he put himself into a position where it is likely that he would be subjected to threats of violence, by becoming involved in criminal activity for example . This seems a likely counter-argument for the prosecution in the instant case. Shepherd suggests that the defence will be available where the group's propensity for violence is not known. Accordingly, we would need to know what information was available to R. Further, this defence would not succeed if he had a "safe avenue of escape" from this threat, following Gill , which is not clear from the case study.
R might have believed that he was acting out of necessity with respect to the welfare of the dog that he chose to steal, however in Shayler it was made clear that the evil to be avoided must be directed at the defendant or another person. It is not clear that a dog would count for the purposes of this test. By stealing the dog, R is committing theft contrary to the TA 1968 since it is unarguable that the dog is wild for the purposes of s. 4(4). For the purposes of the TA 1968 it seems that R was appropriating the property of another with the intention permanently to deprive, however it is not clear that he was dishonest in doing so.
In all deception offences, the deception must be deliberate or reckless and the obtaining must be dishonest, according to the Ghosh test by which the jury would question whether an action is dishonest according to the ordinary standards of reasonable and honest people and whether the defendant realised that the act was dishonest. When considering the theft of the dog, it would have to be demonstrated both that stealing the dog was dishonest by the standards of reasonable and honest people and that R realised it was dishonest. This would be decided on the facts and whether the jury considered that the dog was being treated with cruelty.
J's threat to harm R's wife would have to fulfil certain conditions before it would provide R with any defence which would excuse his theft of the cat. In Valderama-Vega it was accepted that a threat might operate against the family of the defendant, as here. According to the test in Abdul-Hussain and others , the threat must be one of death or serious injury which must be operating on the defendant's mind at the time he committed the otherwise criminal act. This is a question for the jury to determine. Based on the facts as given it is not clear whether R would be able to use this excuse, however R v. Safi and Others demands that the jury must judge the defendant on his reasonable belief, so R's reasonable belief in an operating threat ought to be enough to provide this defence to theft.
Following Graham , R's response to J's threat must be that of a sober person of reasonable firmness sharing his relevant characteristics. This is an objective test and R would be unable to appeal to any emotional instability or vulnerability following decisions in Hegarty , since this would conflict with the requirement for "reasonable firmness".
J could be charged with the inchoate offence of incitement to commit theft given his initial action in inducing R to steal the cat. An inciter is one who reaches and seeks to influence the mind of another and persuasion or inducement would fulfil this criterion. Following the decision in DPP v. Armstrong it would be important for the prosecution to prove that J knew, or was wilfully blind to, the consequences of his incitement and that the person incited would act with the appropriate mens rea of the crime in question. Given that R had previously committed theft in similar circumstances after similar requests, it would be difficult for J to argue that he was blind to the consequences of his actions.
Bibliography
Herring, J., Criminal Law, Oxford University Press, Oxford, 2004
Douglas, G. et. al., Criminal Law, 4th ed., Oxford University Press, Oxford, 2004
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