FCL, T2 FCL 010, MOD 000011
Introduction – Advise Clara on her criminal liability
This problem question will address Clara’s criminal liability under:
- s.9 (1)(b) the Theft Act (TA) 1968 – entering a part of a building as a trespasser with the intention to steal two purses
- s.1(1) TA – theft – meat
- s.2(1) Fraud Act (FA) 2006 – fraud by false representation – saying she is a security guard on a mission.
- ISSUE 1 – Clara took two purses from the pockets of coats which were in a “staff only” area whereas she is not a staff member.
- Rule – Theft Act s.9 (1)(b) says that
- “having entered
- any building or part of a building
- as a trespasser”
- “he steals or attempts to steal anything in the building or that part of it”
– Enter :
- R v Collins – For an entry to occur it must be ‘substantial and effective;
- R v Brown – D was standing outside a shop and had leant in through a window to steal. Even if D has partially entered the premises it amounts to burglary.
- R v Ryan – D was only partially in a building as he had been trapped by a window. Partial entry is sufficient to constitute burglary
– A part of a building is an area where D has no permission to enter although he might have permission to be in other areas, for example behind the till in a shop.
- R v Walkington – D entered the unattended till area in Debenhams and was charged with burglary under s.9(1)(a) TA for entering a part of a building with the intention to steal. Held: The area was restricted for the public therefore he was a trespasser in a part of the building
–As a trespasser – entering without permission,
- R v Collins – D entered as a trespasser and was charged with burglary.
- R v Johnes & Smith – Ds went beyond their permission to enter and therefore, they were trespassers.
– Appropriation – assuming the owner’s rights. The full definition is under s.3(1) TA.
- R v Collins – D must be aware that he is trespassing.
- Statutory exceptions for dishonesty are set out under s.2(1) and they should be excluded.
- R v Holden– subjective test applies – it is down to what D believed he was permitted to do.
- s.9(2) – “Intention to trespass and commit an ulterior offence”
- s.6(1) – “With the intention of permanently depriving the other of it”
- APPLICATION AR
– Enter – The court will find quite easily that Clara did effectively enter the prohibited area departing from the case of Ryan where the court held that it was immaterial that D could not steal anything because he was trapped by the window.
– A part of a building – The staff room is a restricted area and only staff members are authorized to access it. The sign was visible, Clara saw it which means that it applies to our case, Similarly to Walkington where D had permission to be in the supermarket but not in the specific section.
–As a trespasser – At the time of entry, Clara is likely to have had permission to be in the shop but not into the restricted area because the sign says “Staff only“ and she is not a staff. It is clear trespass as in the cases of Collins, and Johnes & Smith. The sign clearly states who was allowed and prohibited, therefore trespass is highly likely.
– Appropriation – Clara went through the pockets of the coats belonging to another – staff members, and took two purses belonging to another – staff members. The purses constitute property belonging to another which Clara has taken without the owner’s consent. Appropriation is “any rights of the owner” so taking them and placing them in her bag is something an owner would do which makes it appropriation.
- APPLICATION – MR
-Did Clara know she was a trespasser? – She saw the sign “Staff only” and she knew she is not staff.
-Did she take the purses dishonestly? – Clara believed she had the right in law to deprive the other of their property without their consent.
-Did she intend to permanently deprive the owners of their purses and their content? – When she was stopped by the security guard about the meat, she did not return the purses nor did she take reasonable steps to find the owners which means that she likely intended to permanently deprive the owners of their purses.
– Did she likely forget to return them? – Unlikely. It appears the only reason she returned the meat is that the security spotted her. Then intention to permanently deprive is highly likely to be satisfied.
- CONCLUSION – All the elements of AR and MR are satisfied, therefore it is likely that Clara will be found liable for theft under s9(1)(b) TA of the two purses. Defences need to be considered but none apply.
- ISSUE 2 – Clara took meat from the store, put it in her bag, and then placed it in the basket to pay.
- Rule – AR and MR for Theft. Not burglary because it is not a restricted area.
- appropriation – s.3(1). See Issue 1 above.
- of property – s.4(1). Like this for the burglary offence above
- belonging to another – s.5(1) See the burglary offence above.
- Dishonesty – see Issue 1 above.
- Intention – s. 6(1) – “With the intention of permanently depriving the other of it”
- APPLICATION – AR
– Appropriation – Clara put a joint of expensive meat into her bag. Eventually, she paid for it but this still constitutes theft – theft occurred within the short space of time when she put the meat in her bag. Moreover, she had the intention to permanently deprive, although she didn’t actually do it. Clara can also be liable for attempted low-value shoplifting under s.176(5)(b) since it appears she paid for the meat only because the security guard saw her. Therefore, appropriation occurred.
– Of property – s.4(1) – The meat is tangible property.
– Belonging to another – s.5(1) – The meat belongs to the shop and the owner has not given Clara its consent to have it for free. She said she was a security, which seems to be untrue and it does not appear that she had an agreement to take the item, so it belonged to another.
- APPLICATION – MR
–Dishonesty – Clara’s action to put the meat into her basket after being seen indicates that there was knowledge of dishonesty.
–Intention – The intention is seen by the fact that she initially put the meat in her bag, and then took it out when she was seen.
- CONCLUSION – The elements of AR are satisfied for theft under s.1 or attempted low-value shoplifting of the meat under s.176(5)(b). MR is fully satisfied. Defences are available but not applicable.
- ISSUE 3 – It appears Clara untruthfully presented herself as a guard sent by the Manager of this supermarket to test the security.
- AR – Fraud by false representation:
- making a representation – s.2 FA. The representation can be expressed by words or by conduct – s.2 (4).
- which is false – s. 2(2)(a) FA – the representation is “untrue or misleading”
- Dishonesty – s. 2(1)(a) FA. Also the objective-subjective Ghosh test
- Intention – s. 2(1)(b) FA
- Knowledge – D knows that he is not truthful and intended to make a gain – s.5(2) FA
- APPLICATION – AR
– Making a representation – Clara made a verbal representation that she is a security guard instructed by this security guard’s manager to check his efficiency. It appears to be misleading and untrue because Clara knows that she is not a security guard.
AR is satisfied if it is an untrue statement which was represented by Clara. The burden of proof lies with the Claimant and seems easy to prove by contacting the security firm to confirm.
- APPLICATION – MR
-Dishonesty –Ghosh test should satisfy both parts:
- Would a reasonable person think that Clara was dishonest? Yes.
- Did Clara realise she was dishonest according to the reasonable person? Yes, the fact that she put the meat in the basket means she was aware that she was a wrong-doer and then she covered that wrong with a lie.
-Intention – At any point in the course of events she intended to take the meat and deprive the owner of it.
-Knowledge – Clara intended to make a gain for herself and a loss to the supermarket by placing the meat in her bag. Clara “knows” that the representation is false because she told the lie after the security was looking at her. The scenario does not mention that Clara looked to see where the security was before she stole which sounds like something she would do if the security is being tested.
- CONCLUSION – The elements of AR and MR for fraud by false representations are satisfied and Clara is likely to be charged with fraud by false representation, s.2 FA.
Table of Cases
R v Brown  Crim LR 212 CA
R v Collins  3 WLR 243
R v Ghosh  3 WLR 110
R v Holden  Crim LR 478 CA
R v Jones & Smith 1 WLR 672
R v Ryan  Crim LR 320
R v Walkington  1WLR 1169
Table of legislation
Anti-social Behaviour, Crime and Policing Act 2014 s.176(5)(b)
Fraud Act 2006 s.2
Fraud Act 2006 s.2(1)(a)
Fraud Act 2006 s.2(1)(b)
Fraud Act 2006 s.2(2)(a)
Fraud Act 2006 s.5(2)
Theft Act 1968 s.1
Theft Act 1968 s.2(1)
Theft Act 1968 s.3(1)
Theft Act 1968 s.4(1)
Theft Act 1968 s.5(1)
Theft Act 1968 s.9(1)(b)
Theft Act 1968, s.9(2)