Advanced Criminal Law Assignment

Question

Zara desperately wanted to go on holiday. When she checked her personal bank account, she found she had been credited with £2000 from an unknown source. Zara asked her friends what to do and they all said to keep it. Zara’s flatmates gave her £300 a month to pay the rent and other house bills. Zara brought some expensive clothes for her holiday and at the end of the month found that she had not got enough cash in her account to pay the water bill.
To celebrate her good fortune Zara took her friends to Pizza Palace.  After eating the meal and getting the bill she realised that she did not have her purse with her.  She told her friends that she would catch them up outside after she had paid the bill. When the waiter came to the table she said that she was going to the car to get her handbag and would return immediately. Zara walked through the door and then ran off down the road.
Zara used the internet to find the cheapest holiday insurance. She completed an application form online for Sunshine Insurance. One of the questions asked if she had any heart condition. When Zara was born, she had a defective heart valve which was repaired when she was 6 months old. She had annual reviews until she was 14 but at that time was told that no further appointments were necessary unless she had dizzy spells or shortness of breath. Zara is 24 and has not needed to attend the hospital since she was 14. Zara decided that she would not tick that part of the form as she was likely to incur a higher charge for insurance or not be insured at all. Zara submitted the form but when she saw how much Sunshine Insurance were charging she decided not to bother taking out insurance.
Zara knew that her boss Vincent had papers at his home which proved that Zara had been stealing from the company accounts. Zara went to Vincent’s house when she knew he was away for the weekend to destroy the papers. Zara took a hammer to break a window and climbed in. She could not find the papers but did find a silver necklace that she put in her pocket. Vincent’s mother, Verity arrived to water the plants and Zara used the hammer to knock her out. Verity had a fractured skull and was in a coma for a week.
Analyse Zara’s criminal liability from the offences covered during this course.

This is an example of how to answer a question like this:
Debbie will be charged with fraud under section 1 of the Fraud Act 2006. Debbie makes three false representations which fall under section 2. The Actus reus (AR) of section 2 is to make a false representation while the mens rea (MR) is to know it is or might be untrue or misleading, intends to gain, loss or expose loss to oneself or another and to dishonestly make the false representation.
The first false representation is that the dog’s owner has moved abroad. This is a lie which makes it false and is given as fact that the dog’s owner has moved abroad when Penny has not and it is an express representation. The second ‘express’ representation is that Rufus is a ‘rare breed’. This representation must be untrue and misleading. It is untrue that Rufus is a pedigree dog but the implication is that he is. The Criminal Law Revision Committee stated that misleading means “less than wholly true and capable of an interpretation to the detriment of the victim” Debbie made the statement to suggest to someone reading the advert that they would be paying for a rare breed of dog which would be to his/her detriment because they would be paying a lot of money for a mongrel.The third ‘express’ representation is that Debbie is impliedly representing that she is the owner of Rufus. All three statements are capable of being a false representation.
For liability for s2 Debbie must know that a representation isuntrue or misleading. Debbie knows Penny has not gone abroad and she knows that she has no authority to sell him. She would have to know that the statement that Rufus is a rare breed is misleading and the facts would suggest that she does.

Fraud Act 2006, s.1.
Fraud Act 2006, s.2.
Fraud Act 2006, s.2.
Fraud Act 2006, s.2.
Fraud Act 2006, s.2 (2)(a).
Fraud Act 2006, s.2 (3).
Fraud Act 2006, s.2 (4).
Fraud Act 2006, s.2 (3).
S2(2)(a)
Fraud Law Reform: Government Response to Consultation Fraud Act Para. 19.
Fraud Act 2006, s.2 (3).
DPP v Ray [1974] AC 370.

Debbie must also intend by the relevant representations to gain or cause loss or risk loss. Debbie intended for herself to gain £850, the buyer to lose £850 as he/she would not get what they paid for, for Penny to lose a puppy. The money and puppy are considered property by the act. The jury must be sure that Debbie intended to make a gain or cause a loss by making the false representation, it is down to the prosecution to prove this.
It is up to the jury to decide if Debbie is dishonest or not on the evidence. The jury are likely to find that Debbie has made the representations dishonestly, although there may be an issue with the statement that she does not think that people would expect to get a pedigree puppy from an advert. This would make dishonesty a ‘live issue’ and therefore the two-part Ghosh direction would be given to the jury. The jury are likely to think that it would be dishonest to advertise a dog suggesting it is a rare breed when it is not but the second part asks whether Debbie knows that it is dishonest and the facts suggest that she does not think so. Therefore, dishonesty may not be found for implying Rufus is a rare breed. However, the jury are likely to find she is dishonest in selling dog that she does not own by implying she is the owner.
The fact that no one responded to the advert has no importance as for there to be an offence of fraud no one must be defrauded the attempt is another. This means that if the jury finds dishonesty then Debbie is liable for fraud for both representations.

Fraud Act 2006, s.5 (2)(a).
R v Gilbert [2012] EWCA Crim 2392.
R v Ghosh [1982] 3 WLR 110

Debbie will be charged with blackmail under section 21 of the Theft Act. The AR is the making of the demand and with menaces; the MR is intend to demand, unwarranted and a view to gain for oneself or cause loss to another.
Debbie has made a demand by email not to be put on the redundancy list but It does not matter that she did not get what she demanded. The demand was implicit in the wording but this still counts. The demand was made by sending the email and even through Jason did not read it, Treacy holds that the demand was made at the time of sending.
Menaces is a common-sense word which the jury decide using the test in Clear which is would “an ordinary person of normal stability and courage might be influenced or made apprehensive to accede unwillingly to the demand”. The jury are likely to find that a person of normal fortitude would accede to a threat about exposure of an affair. It does not matter that Jason was not affected as it is a question for the jury as to whether an ordinary person of normal stability and courage would be affected.
The prosecution needs to prove that Debbie intended to make the demand with menaces and it can be proven because she is asking for something whilst making a threat.
A demand is unwarranted if Debbie honestly believes “that she has reasonable grounds for making the demand; and that the use of the menaces is a proper means of reinforcing the demand”. If raised the prosecution must negate either of these beliefs. On the facts, there is no evidence that Debbie believes that she has reasonable grounds to make the demand although it is not illegal to expose an affair. However, it is unlikely that the jury would believe that Debbie believes that a threat of exposure is the proper way to ask avoid redundancy.

Theft Act 1968, s.21.
Theft Act 1968, s.21 (1).
R v Studer [1915] 85 LJ KB 1017.
R v Collister & Warhurst [1955] 39 Cr App R 100.
Treacy v DPP [1971] AC 537.
R v Clear [1968] 1 QB 670.
R v Garwood [1987] 1 All ER 1032.
Theft Act 1968, s.21 (1).

Debbie intends to gain two things first she wishes to gain by keeping her job and then wishes to gain by collecting the redundancy pay. In this case she would be keeping her salary which is ‘keeping what she has’.
In conclusion, Debbie would be liable for blackmail if the jury decides the demand is made with menace, it is unwarranted and made intending keep property that she has.
Debbie will be charged with robbery under section 8 of the Theft Act 1968. The AR for theft is the appropriation, of property, which belongs to another; the MR of theft is dishonesty and intention of permanently depriving. The AR for robbery is the AR for thefts plus uses force or seek to put any person in fear of being then and there subjected to force and immediately before or at the time of stealing. The MR of robbery is the MR for theft plus use of force to steal.
Debbie appropriates the bike when she touches it. As now she has taken assumption of any of the rights of the owner such as the right to move it. The bike is personal property which belongs to Sally who is the owner.
It is up to the jury to decide if Debbie is dishonest or not. Debbie might use the defence of section 2(1)(a) to say that she thought that she had a legal right to get the bike as it looked like her sister’s that was stolen which must be an honest belief and Debbie would be honest no matter how unfounded that belief is.

Theft Act 1968, s.34 (2)(a)(i).
Theft Act 1968, s.34 (2)(a)(i).
Theft Act 1968, s.8.
Theft Act 1968, s.1 (1).
Theft Act 1968, s.8 (1).
Theft Act 1968, s.8 (1).
R v Morris [1984] A.C. 320.
Theft Act 1968, s.4 (1).
Theft Act 1968, s.5 (1).
Theft Act 1968, s.2 (1)(a).
R v Holden [1991] Crim. L.R. 478.

The jury must also decide if Debbie plans on permanently depriving Sally of her bike at the time of appropriation. If they cannot find intentionof permanently depriving then section 6(1) could be applied. This is when someone who appropriates property but intends to return it, is then regarded as having the intention of permanently depriving if he treats the thing as his own to dispose of regardless of the other’s rights. Debbie does treat the bike as her own to dispose of as she dumps it at the end of the street. Vinall tells us that the jury can use section 6(1) for a case like this to find intention “it could … establish that the defendant exercised such a dominion over the property that it could be inferred that at the time of the taking he intended to treat the property as his own to dispose of regardless of the owner’s rights”. The jury to decide if Debbie has the intention to permanently deprive they can use section 6(1) and Vinall to find intention should it be needed.
Debbie seeks to put Sally in fear of being subjected to force as she threatens to smack her round the head. This will be a question for the jury as force is an ordinary word but it is likely that they will find that Debbie does want to put Sally in fear. However, Debbie makes the threat after she has appropriated the bike therefore the jury must consider if the appropriation continued. The jury would have to decide whether Debbie is ‘still on the job’ which is likely.
The facts suggest that Debbie uses force to steal which would mean that the MR for robbery is complete.
In conclusion, Debbie would be liable for robbery unless the jury believe that she honestly believed that she had a right to take the bike on behalf of her sister or do not believe that ‘she is still on the job’.

Theft Act 1968, s.6 (1).
Theft Act 1968, s.6 (1).
R v Vinall [2012] 1Cr. App. R. 29.
Theft Act 1968, s.6 (1).
R v Vinall [2012] 1Cr. App. R. 29.
Theft Act 1968, s.6 (1).
R v Vinall [2012] 1Cr. App. R. 29.
R v Hale [1979] Crim. L.R. 596.
R v Atakpu QB 69
Theft Act 1968, s.9 (1)(a).

Debbie will be charged with burglary. There are two charges of burglary which are 9(1)(a) and (b) . Furthermore, any burglary committed with a firearm or imitation firearm, any weapon of offence, or any explosive is aggravated burglary contrary to section 10(1).
For 9(1)(a) burglary a defendant must “enter any building or part of a building as a trespasser and with intent to commit any such offence”. The AR is enters, as a trespasser and building or part of a building. The MR is MR needed for being a trespasser and intent to commit theft, criminal damage or GBH.
Debbie enters Brendon’s house there is no issue here. When Debbie enters the house, she is doing so as a trespasser. Even though she is invited, she is more than permission as she was not invited in to steal Brendon’s camera so is a trespasser. Brendon’s house is a building. This is the AR for A 9(1)(a) offence. The MR for being a trespasser is to know or to be reckless about being a trespasser. Debbie would know she is a trespasser. Because she would know Brendon would not invite her in if he knew she would steal from him, if she did not know this then she was being reckless about it. Debbie does intend to commit theft before she enters Brendon’s house. The AR and MR for s9(1)(a) could be proved.
A 9(1)(b) burglary is “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 or inflicts or attempts to inflict on any person therein any grievous bodily harm.” The AR is entered, as a trespasser and building or part of a building. The MR is MR needed for being a trespasser and attempt to commit theft or GBH.

Theft Act 1968, s.9 (1)(b).
Theft Act 1968, s.10 (1).
Theft Act 1968, s.9 (1)(a).
Theft Act 1968, s.9(1)(a).
R v Jones & Smith[1976]1 WLR 672.
Theft Act 1968, s.9 (1)(a).
R v Collins[1973] 3 WLR 243.
Theft Act 1968, s.9 (1)(b).
Theft Act 1968, s.9 (1)(b).

Debbie has entered Brendon’s house. As stated above Debbie is a trespasser. Also, as stated above Brendon’s house is a building. As already stated Debbie would know or would be reckless to being a trespasser. Debbie does go on to steal Brendon’s camera, and all the elements for theft is there. You have the appropriation of the camera when Debbie puts it in her bag and the camera is personal property and belongs to Brendon. This is the AR for theft. The jury would find Debbie dishonest as stole the camera, they would also find intent to permanently deprive as Debbie does not intend to return it. Therefore, theft can be made. Debbie would be liable for 9(1)(b) as she entered a building as a trespasser and went on to steal a camera.
Both offences would be aggravated under section 10. 9(1)(a) would be aggravated because Debbie at the time of entry had a knife with her, Debbie also knows that she has the knife as she picks it up. A kitchen knife is not being a weapon per se, therefore the prosecution would have to prove Debbie had it with her to use as a weapon of offence which she the facts indicate that she does. 9(1)(b) would be aggravated because Debbie had the knife on her when she stole the camera, she also as stated above knows she had it. As stated above while not being a weapon per se a kitchen knife would, in this case, be a weapon of offence as she intends to use it if she is stopped. This means she would be liable for both section 9(1)(a) and 9(1)(b) burglary as well as both being aggravated under section 10 .

Theft Act 1968, s.9 (1)(b).
Theft Act 1968, s.10.
Theft Act 1968, s.9(1)(a).
Theft Act 1968, s.9 (1)(b).
Theft Act 1968, s.9(1)(a).
Theft Act 1968, s.9 (1)(b).
Theft Act 1968, s.10.

Table of Statutes
Fraud Act 2006
Theft Acct 1968

Please answer the question just like this with the example i gave you above with my assignment and do the layout and everything the same.

Assignment question help and guidelines to how to answer it properly:
Do not put arguments in footnotes
Mens Rea and Actus Reus do not need capitals

Grammer and good style
Do read over to see if what you have read makes sense.
Use full stops
Use sentences (when new topic or area – good ideas to use for each of the AR/MR parts of an offence)
Check use of capital letter (There are three actus reus (AR) and two mens rea (MR) elements in theft.
Best not to use rhetorical question e.g. So has D appropriated the handbag? D has appropriated the handbag if he has used any of the rights of an owner (Morris in fn). D has run off with the handbag so he has taken the right of having the property with him.
Do not use NOTE FORM (methodologies are in note form for advice) AR is entry or AR = entry. For s9(1)(a) D must enter the property intending one of three possible things. Brown says that the entry must be effective (FN case). In this case D has gone into the building and the entry requirement is fulfilled.

Remember that need all AR and MR elements to prove liability

Must explain CLEARLY relevance of principles TO THE QUESTION

Appropriation
Must be able to explain what an appropriation is and to state when the appropriation takes place
Rights of an owner
Does it involve the consent issue? – If so explain this and apply it.
Does it involve a gift?
Does it involve s5(3) or s5(4)?

At the end need to be able to state whether appropriation has been proved BRD

Property
s4 deals with property

Do not go on about things that are not relevant – animals or electricity or dead bodies SHOULD NOT BE REFERENCED IF NOT PART OF THE QUESTION

At the end establish what type of property has been stolen – e.g. a handbag is personal property

Property has to belong to another
Do not discuss parts of s5 that are not relevant to the question
Identify the relevant part (money on account or money by mistake)
Use relevant case law
By end establish whether the money belongs to another.
Point is that if get money on account or by mistake then the property is still regarded as belonging to the original owner (or possessor) – failure to return in s5(4) is an intention to permanently deprive

Dishonesty
Are any of the s2 exceptions to dishonesty relevant?
Only need to discuss the one that is relevant (if there is one)
Know that subjective test is used for s2 exceptions – genuine honest belief – look at the question – does D believe that one of these exceptions apply?
Only use Ghosh if it is a ‘live issue’
Give test accurately
Apply – there is a question that you must state and apply which the jury decide.

Always need to prove it.

conclude
Do not forget to conclude whether you have proved theft BRD
Do proof read
Check spelling of cases/names in Q
Check referencing done accurately – do full citation of cases and do not use textbook to reference cases or statutes
Check word count – put it in the work

More than one offence

Have to be very succinct in covering all offences

take each offence and complete before moving on to the next one but do summarise whether offence proved BRD

Structure each offence (look at methodologies) – best to approach through establishing AR and MR for specific offence

BLACKMAIL SECTION 21
AR
(1) make demand (request; implicit or explicit) – must establish that it is made
(2) with menaces – ordinary word Clear test will need to be applied; menacing pressure R v Lewis Lambert (2009); Does the question require a special direction Garwood – jury decision

MR
(3) intend to make demand – should be easy but must apply
(4) unwarranted – honest belief that reasonable grounds and proper way to make demand – (Harvey – unlawful not proper) – what does prosc. have to do? – negate one or other
(5) view to gain etc. (intent) (economic gain/loss)

Section 5 fraud act 2006
S5 – provides more on gain/loss and risk

Only money or property s5(2)(a) – temporary or permanent s5(2)(b)

Gives meaning property – real; personal (including things in action and other intangible things s(5)(2) – keep to the relevant issues

Gain includes keeping what one has as well as not getting what one does not have – s5(3)

Loss includes – not getting what one might get as well as a loss by parting with what one has s5(4)

Make sure the following
Look at all the AR and MR elements and explain them

Need to apply to facts of Q

Do not just set the question and answer yes or no (same for all of the problem questions)

Obtaining services by dishonest act – s11 FA 2006 – Actus Reus (4)
(1) Dishonest act not omission (AR) s11(1)(a) (AR)

(2) Services obtained – act obtains – causation s11(1) (AR)

(3) Check services have been made available on the basis of payment (AR) s11(2)(a)

(4) Payment not made or not made in full (AR) s11(2)(b)

obtaining services 3 mens rea element
(1) Does D know that payment is the basis on which services are provided or might be? s11(2)(c)(i) & (ii) MR

(2) Does D intend not to pay or pay in full? s11(2) MR

(3) Is D dishonest? Dishonest act s11(1)(a) MR

Write in full sentences not note form/do proof check

Try explaining the principles to non lawyers

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