Crimes Of Dishonesty

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Theft

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Thefeloniousappropriation of the goods or property of another withoutthe consentof the owner and with the intentto deprive them of that property.

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Hume on Theft

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“The felonious taking and carrying away of the property of another, for lucre[profit]”

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JohnSmith (1838) 2 Swin 28

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Accused found a pocket book on the ground containing a considerable amount of money. Decided to keep the pocket book for himself. Was later found guilty of theft not because he had taken it specifically, but he had 'appropriated' it.

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Mackenzie v Maclean and Macpherson 1981SLT (ShCt) 40

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Two accused were working on a shipyard when cans of beer fell off a lorry and were damaged. Accused called up brewery and asked what they were to do with damaged beer and were told to throw it away. They decided instead to sell the beer to passers by. Tried for theft but not found guilty as it was decided the property had been abandoned.

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Dewar v HM Advocate 1945 JC 5

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Accused was manager of a crematorium who had taken coffin lids to sell before they were burned. He tried to claim on appeal that there was no theft as the property had been abandoned but was not successful as it was decided he had to carry out the duty of burning the coffin lids before they could be called abandoned.

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Black v Carmichael1992 SCCR 709

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Car clamping case. Judge said in judgement that the basis of theft was that "controland possession of the thing is taken from its owner or custodier."

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Amotio

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Latin concept that a crime has been committed even when someone has only begun to commit it. When the crime has moved from preparation to perpetration. Now more likely to be covered by laws of attempt; conspiracy and incitement.

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What property can be stolen?

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Corporeal Moveable Property

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HMAdvocate –v- Mackenzies1913SC (J) 107

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Co-accused's stole a recipe book from their employers so they could copy it's secrets. It was decided they could not have stolen the secrets themselves, so could only be liable for the theft of the book as it was corporeal moveable property. This is now likely to be covered by the Copyright and Trade Secrets act.

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Joint/ common property

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When an item is owned by multiple parties. Can cause problems where one party is denying the right of ownership to the other parties.

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Matrimonial Property

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Property owned by both a husband and a wife. Neither can steal it from the other.

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Company Ownership

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Those in ownership of a company itself actually have no rights of ownership with regards to it's assets. The taking of these assets by shareholders (even majority shareholders) would be theft.

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What are the two aggravations of theft?

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1. Theft by opening lockfast places

2. Theft by housebreaking

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What does s57 of the Civic Government (Scotland) Act 1982 create with regards to theft?

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That any person who is found on another's private property without reasonable excuse of why they were there can be expected to have been intending to commit theft.

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What does s58 of the Civic Government (Scotland) Act 1982 create with regards to theft?

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That any person who, in the last 14 days, has had in their possession an object that it can reasonably be construed was going to be used to commit theft without a reasonable excuse for having it, is guilty of an offence.

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Embezzlement

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“Dishonest appropriation of money, goods or the proceedsthereof, bya person who holds them onbehalf of another person to whom he owes a duty to account, and on whose behalf he is inthe process of carrying out a course of dealing with the money, goods orproceeds.”

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Edgar v Mackay 1926 JC 94

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A solicitor had been instructed to recover a debt for a client and when they had recovered that debt had decided to keep this money for himself. It was decided that this was embezzlement as there had been a breach of contract (or trust) on the part of the solicitor.

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Important quote on embezzlement from CatherineCrossgrove or Bradley (1850) J. Shaw 301

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“I am of the opinion that thecriminal violation of a contract of trust constitutes the offence known by usas a breach of trust or embezzlement, and not that of theft.”

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Important quote on embezzlement from HMAdvocate v Laing (1891) 2 White 572

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"If one receives money merely topass it on to another, his crime, if he feloniously appropriates the money, istheft. If he gets it under an obligation to account for the like amount, thefelonious appropriation would be embezzlement."

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Guild v Lees 1994 SLT 68

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Accused was a secretary of a curling club who decided to use the club's chequebook to pay his own bills. He tried to argue no property had been taken, only debt. However a charge of embezzlement was sustained because he had breached the trust the club had given him by giving him their cheque book.

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Mens rea of embezzlement?

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Dishonesty

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Allenby v HM Advocate 1938 JC 55

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Fish salesman used money he had made from one sale to pay money back to another fisherman. When the fisherman who's money he had used came back he did not have it yet. Argued that it was embezzlement but this did not hold up as there had been no dishonesty and no intent to deprive the owner of the money of that money.

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Robbery

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“takingthe property of another by force, either of violence or intimidation”

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Harrison v Jessop 1991 SCCR329

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The son of a landlord of a shop forced the workers in that shop to pay back rent using threats. He argued this was not robbery as he was taking his own property, however this did not hold up, he was successfully prosecuted with robbery.

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What degree of violence is required for robbery?

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Only violence to the extent that without that violence the item could not have been taken. The item must be taken involuntarily because of the violence or threats.

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O’Neil v HM Advocate 1934 JC 98

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Accused assaulted a woman and knocked her unconscious against a wall. While she was passed out he took her bag. Held as robbery as it was only because of the violence that he was able to take the bag.

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Extortion

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Wherea person obtains an advantage [normally financial] over another by means ofthreats of future harm

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Silverstein v HM Advocate 1949SLT 386

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Managing director of a company charged a potential tenant a 'fee' for allowing him to rent their property. He said the tenant would not get the property if he did not pay this fee. This was held to be extortion.

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HM Advocate v Donoghue andAnother 1971 SLT 2

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Very important case, paining had been stolen and the thief called up the owners saying they would get it back if they payed him a sum. This was tried as extortion but was not successful as the man had never actually threatened to damage or not give back the painting if he did not get the money.

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Fraud

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Theachieving of a definite practical result by means of a false pretence

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Tapsell v Prentice (1910) 6 Adam 354

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Established that an exaggerated sales pitch was not a type of fraud as a reasonable person would not believe it. A gullible person would.

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Adcock v Archibald 1925JC 58

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Miner attached his tags to other miners bags of coal in an attempt to earn more money. He did not qualify for the extra money however this was still successfully tried as fraud as he had obtained the practical advantage of others thinking he was a better miner than he was.

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Uttering

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A type of fraud. Specifically the use of forged official documents as if they were real ones.

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Reset

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Thepossession by one person of goods acquired by another person by means of theft,robbery, fraud, or embezzlement where the possessor intends to retain the goodsand also knows that they have been dishonestly acquired.