Theft Contract Law

Junaid copies down his father’s card details, Junaid could therefore be guilty of fraud under s.2 of the Fraud Act 2006 which deals with Fraud by false representation. The actus reus of the offence consists of making a representation (conduct) and that representation must be false (circumstance). Junaid is making a false representation by using his father’s credit card to make his online purchases and by that conduct in using his father’s card he is falsely representing that he has the authorisation to use it. By using his fathers credit card details Junaid represents that he is the card holder and this representation is false and it is untrue and misleading. To be guilty of an offence Junaid must also satisfy the mens rea of the offence he must be dishonest and intend by making the representation to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss, and know that the representation is, or might be untrue or misleading. Section 2(2) states that a representation is false if: it is untrue or misleading, and the person making the claim it knows that it is, or might be, untrue or misleading. Junaid knows that he is making an untrue or misleading representation when making purchases on his father’s card. Junaid intends to make a gain which will be the items he purchases online, the laptop and computer games. To be liable Junaid must have been dishonest. To establish dishonestly the Ghosh test can be applied. In the case of R v. Ghosh [1982] QB 1053, the jury were first asked themselves whether what was done was dishonest according to the ordinary standards of reasonable and honest people. If the answer is no, the defendant was not dishonest and therefore not guilty. If the answer was ‘yes’ then he was of course dishonest. The first part of the test is entirely objective. However, the second part of the test is subjective as it involves consideration of what the jury think the defendant thought what honest people would think of his conduct. Junaid therefore will be guilty of false representation under section 2 of the Fraud Act 2006.

Junaid as well as being guilty by false representation under s.2 of the Fraud Act 2006 for ordering the items on the internet he may also be liable to a ‘thing in action’ which amounts to property under section 4(1) of the Theft Act 1968. The main case as authority is R.v Kohn (1979) 69 Cr App R 365, where the defendant was issuing unauthorised cheques he was therefore assuming the owners rights (in this case the company) to deal with the credit in its account. So therefore Junaid is assuming his fathers rights to the card details and he is not authorised to do so, he is therefore guilty under this section.

Junaid then takes a roll of £50 notes in a jar; he peels away three of the notes and gives one to Ali saying “Dad has forgotten to give me my allowance for 5 weeks now- this should about make us square.” Junaid could therefore be guilty of theft under the Theft Act 1968, the offence of theft is defined in s.1(1) of the TA 1968 which states that a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it, and ‘thief’ and ‘steal’ shall be construed according. In order to be liable for theft Junaid must satisfy all five elements of theft these are dishonesty, appropriate, property, belonging to another and intention of permanently depriving the other of it. The actus reus of the offence of theft is appropriation, property and belonging to another. Junaid takes £150 belonging to his father therefore meets the actus reus of the offence. Firstly, appropriation occurs when you assume rights of the owner s.3 (1), Junaid therefore appropriates the money as soon as he picks it up (Rv. Gomez [1993] 1 All ER 1). The money is clearly property of his father under s.4 (1) of the Theft Act 1968 as it is personal property. The actus reus of the offence is therefore clearly present. The mens rea of theft is dishonestly and intention to deprive, Junaid has clearly been dishonest in taking the money from his fathers study and he has the intention to permanently deprive his father of the money as he has no intention of paying it back. Junaid only defence is that he may be able to rely on s.2(1) (a) of the Theft Act 1968 if he honestly believes that he has in law the right to deprive his father of the money. This is based on the fact that Junaid claims that his father owes him 5 weeks allowance money. Junaid may also be able to rely on the Ghosh test. (Would reasonable and honest people think that what he did was honest? If so, did he realise that reasonable and honest persons would regard what he did as dishonest?), this maybe a little difficult to prove as it would seem that Junaids actions are almost certainly dishonest.

Junaid may also be liable for his assault on Ali, when Junaid pushes Ali to the ground he commits an intention to battery. He clearly applied force to the body of Ali which made him fall back and bang his head on the wall and knocking him unconscious. Junaid may therefore be liable for s18 of the Offences against the Person Act 1861. Depending on whether Junaid left Ali unconscious, if so, this would show intention to cause grievous bodily harm (the actus reus). His liability would depend on whether he intended to cause grievous bodily harm. Junaid therefore appears to have committed the actus reus of an offence under s.18 or 20 of the Offences against the Persons Act 1861 as he caused grievous bodily harm to Ali. Junaid will be guilty of an offence under s.18 if he intended to cause grievous bodily harm. If Junaid lacks the mens rea for an offence under s.18, he is almost certainly guilty of an offence under s.20. The actus reus is established by the infliction of grievous bodily harm. As far as the mens rea is concerned, by pushing Ali and knocking him unconscious, it is almost certain that Junaid foresaw the risk of causing some harm. If this is so, Junaid will be guilty under s.20. If Junaid can persuade a court that he lacked the mens rea for the s.20 offence, e.g. that he only meant to push Ali, he will definitely be guilty of an offence under s.47 of the Offences Against the Persons Act 1861 as he assaulted Ali causing actual bodily harm and he intended to commit an assault or battery against him. For s.47 liability, the defendant need not have intending or foreseen the risk of any harm.

Now turning to Ali’s criminal liability. In order for Ali to satisfy the actus reus requirements of accomplice liability, he must ‘aid, abet, counsel or procure’ in the offence. A person will therefore satisfy the actus reus requirements of accomplice liability if either; (a) he helps to bring about the crime by acting, advising, assisting or encouraging before the crime occurs; or (b) he or she is present at the scene of the crime in order to assist or encourage, or (c) he or she does assist or encourage at the time of the crime. Ali goes along with Junaid’s plan to take down his card details and to purchase the computer games. There are two elements to the mens rea of an accomplice. The first element concerns the intention to do the act; Ali goes along with Junaid’s plan to take down his fathers card details and to use them to purchase the computer games. The second part of the mens rea involves a consideration of the alleged accomplices knowledge or awareness of the principal offence. In the case of R.v Clarkson [1971] 1 WLR, it was confirmed that in order to be guilty as an accomplice to a crime the defendant must be shown to have intended to provide encouragement that they in fact gave to the principal offender.

If it is agreed that Ali entered Junaid’s fathers study as a trespasser he would be found guilty under s9 (1) (a) Theft Act 1968. If however Ali is actually found to be an accomplice to burglary he will be guilty under s.9 (1) (b) of the Theft Act 1968. Ali enters part of a building with intention to commit an offence (theft) and goes onto steal, he entered the study with the intention of stealing (using the debit card to buy online) this would be an offence under s.9 (1) (a) Theft Act 1968, so he will be found guilty of that even if it were decided that he was not party to the theft. He could also be party to the actual theft though as he encouraged it by suggesting the website used and was present throughout. He does not appear to be at duress at this point. Ali has not got a defence here as he didn’t have permission by Junaid’s father to be in his fathers study. Ali therefore is an accomplice to liability for theft/burglary and fraud. For the theft of the money Ali may have a defence, he may be able to claim that Junaid’s theft of the money and then giving Ali £50 he may be able to claim he received a valid gift.

Ali may be able to use the defence of duress, Junaid clearly has a history of violence with breaking another students nose at his school. However, Ali may be unlikely to succeed if he ought to have foreseen the risk of threats of violence being turned on him. Ali may however be able to came that he withdrew from the plan. He did accompany Junaid into his fathers study and did little to stop Junaid taking down his father’s card details and then placing the order. However, Ali only agreed to giving Junaid a name of a reputable computer make under duress. For Ali to effective withdrawal will depend his proven participation, if verbal assistance was given before the crime, verbal communication to the principal of the defendant’s change of heart will suffice. Ali refuses initially to order a laptop for Junaid claiming that Junaid’s father will definitely notice the purchase. Ali only agrees as he is threatening by Junaid. Ali also refuses to go shopping to spend the money that Junaid has taken from his fathers study. However, Ali had participated at the scene of the offence, something more than verbal communication of his change of heart will usually be required in cases where encouragement has been offered, it will not usually be possible to withdraw once the offence has commenced.