Criminal Law

Criminal Law Coursework

In order for Mike to be found guilty of theft, it is necessary for the prosecution to prove without reasonable doubt, all the necessary elements of the offence under s.1 of the TA 1968 and TA 1978. The first element is the actus reus, which is the appropriation of property belonging to another, and the second are the mens rea elements which are dishonesty, and the intention to permanently deprive.

Overpayment

Mike has received an overpayment from his former employer and decided to keep the money and fly to Australia to visit his son. The issue that arises is whether this constitutes theft. "Property includes money" within the terms of s.4 (1) and that it belongs to another (former employer) under s.5 (1). Now it needs to be considered whether there has been an appropriation. There is a limited definition of "appropriation" in s.3. This makes clear that the D may appropriated property if there is an "assumption" of the rights of the owner and that this may occur "without stealing" if the property is later kept or dealt with. On the facts of this case the D alleges that the money has been sent to his account. Under s.5 (4), since the money has been paid to his account by mistake, Mike is under the obligation to make restoration of the money or its equivalent value. His omission to do so indicates that the actus reus elements are satisfied.

The prosecution must prove a dishonest intention to permanently deprive. It is clear that Mike has an intention to permanently deprive under s.6 (1) as he intends to treat the money as his own and there is no intention to return it, he would be unable to return it because he is currently unemployed. As for "dishonesty," the problem is that there is no definition of "dishonesty" in the Act. Instead, s.2 provides for situations where the D's appropriation is not to be considered dishonest. It is unlikely that Mike could rely on either s.2 (1) (a), (b) or (c). Nonetheless, it is evidence that the jury may consider. If Mike cannot be brought within the terms of s.2 (1), this does not mean that he is to be regarded as dishonest. The prosecution must still prove it. Feely has held that this is a question of fact for the jury to decide, it is not a question of law to be determined by the judge. The operative test is now contained in the landmark decision in Gosh. A two-part test was laid down as follows:

(a) Was it dishonest according to the ordinary standards of reasonable honest people? If not the matter ends there and the prosecution's case fails (this is an objective criteria)

(b) If so, did the D realise that what he was doing would be considered dishonest according to the ordinary standards of reasonable honest people? If he did not realise this, then however irrational his state of mind, his appropriation will not have been dishonest (this is a subjective criteria)

As far as the first part of the test is concerned, the facts are that Mike kept the money even if he knew that it was paid by mistake. It is likely that a jury would decide that Mike's conduct was dishonest according to the standards of reasonable honest people. If the jury decides that this is the case, then they must consider whether, at that time, Mike realised that his actions would be considered by ordinary reasonable people to be dishonest. Even though he wanted to see his son and was in a sensible and emotional state of mind. Under the terms of s.8 of the Criminal Justice Act 1967, this is an interference that may be drawn. However, it is important to note that this is a question of fact, depending on the evidence, to be decided by the jury.

As to "dishonesty" the cases have held that this is the most crucial element in the definition of the basic offence under s.1 (1). The critics about "dishonesty" are that it's not a question of fact, it's a question of law and also problems can arise with the jury. One jury might think about dishonesty different than the other. Also the D must know in advance whether he is dishonest or not.

Travelling without a ticket

In R v Marshall [1998] 2 Cr App R 282 it was held that "although the tickets had passed into the possession and control of the customers, London Underground retained a propriety right or interest in the tickets which were to be regarded therefore as the property of London Underground pursuant to s5 (1)". Therefore the right to travel "belongs to another". The appropriation of this right of travel, a right that only the London Underground is authorized to sell is. When Mike gets on the train he "appropriates" this right of travel. Therefore the actus reus exists. As far as intention to permanently deprive is concerned it is "an outright taking" of Ј12 within the terms of s.6 (1), which he takes from the London Underground by not buying a valid ticket. Applying the Gosh test (above), it is likely that ordinary reasonable people would regard the travelling