In order for Abel, Barbara and Cindy to be criminally liable by virtue of section 1(1) Theft Act 1968 it must be proved that they had “dishonestly appropriated property belonging to another with the intention of permanently depriving the other of it”.
Property Belonging to Another - The property in question is the metal fence panels which belong to the Local Authority. The fence panels could be construed as forming part of the “land” as the fence was attached to land and was severed from it. Pursuant to s.4(2)(b) of the Theft Act 1968 Abel, Barbara and Cindy can be held to have stolen this “land” as he actually caused the panels to be severed by the use of hacksaws and appropriated the panels.
Appropriation – s.3 Theft Act 1968 – this is the actus reus element of the crime. Abel, Barbara and Cindy have clearly appropriated the panels as only the Local Authority, as owners of the panels, have the right to cut through the metal panels and later sell them for scrap.
Dishonesty – s.2 Theft Act 1968 – this is the mens rea element of the crime; the mental intent to intentionally deprive the other of it.
Abel = We are informed that Abel planned to go to the playground in the middle of the night after reading about the new project. His intention was to go there and take the fence panels and posts and sell them on as scrap metal. He recruited the help of his daughters and told them to keep quiet if questions are asked. It appears that Abel does not fall within the exceptions contained within s.2(1)(a) and (b) to the Theft Act 1968 and therefore his actions point to him being dishonest and intending to permanently depriving the owner of the fencing.
Barbara and Cindy = Barbara and Cindy agree to help their father obtain the fence panels, they do so after agreeing not to tell anyone (including their mother or the police) if questions are asked, and they do this on the promise of a reward. They knew it was wrong but they went ahead anyway.
The facts conclude that Abel has all the elements necessary to convict him under Section 1 of the Theft Act 1968.
Even though Barbara and Cindy are children (aged 12); they can still be found guilty of an offence of theft, as the age of criminal responsibility in the UK is 10 years. This is because children over 10 years are seen to be able to foresee the risk in their actions. Consequently, it would seem they are guilty of theft as long as a defence under s.2(1)(a) or (b) of the Theft Act 1968 was not relied upon.
s.1(1) Criminal Damage Act 1971
The definition of criminal damage is contained within section 1 of the Criminal Damage Act 1971.
In order to be convicted under this section it must be proved that Abel, Barbara and Cindy destroyed or damaged property belonging to another without lawful excuse (actus reus element of the crime). Additionally, they must have intended to do so or at least be reckless as to whether such property would be destroyed or damaged (the mens rea element of the crime).
It is clear that Abel, Barbara and Cindy all carried out the actus reus element. They cut through the panels, which are tangible property, and destroyed what was claimed to be an impenetrable metal fence.
Intent or Recklessness:
Abel = Abel had clear intent to destroy the fence. His intent was to cut the “very sturdy high metal fence which was impenetrable” to profit out of the incident. Barbara and Cindy = They are both of the age where they will know that cutting the fence would mean destroying it. In any event, they were reckless to the fact should they claim that they had no intention (given the guidance given by their father).
I am of the opinion that Abel had no lawful excuse as to why he has destroyed the fence; therefore he is most likely to be found guilty of the offence of criminal damage. Additionally, Barbara and Cindy have no lawful excuse for destroying the fence; they are therefore also guilty of an offence of criminal damage.
Question B
To be found guilty under section 12 of the Theft Act 1968 it has to be shown that Abel took his brother’s vehicle for his own use without having obtained his brother’s consent.
It is clear that Abel committed the offence as he took his brother’s van and drove it to his own lock-up in order to unload the fencing. It matters not that he later returned his brother’s van to the driveway; the offence was committed once he took the van without first obtaining consent to do so.
There is however a defence to this offence. Section 12(6) of the Theft Act 1968 confirms that Abel will not have committed an offence if he has the belief that he has lawful authority to take the van or that he would have his brother’s consent if his brother would have known of him doing it and the circumstances of it.
Dan, Abel’s brother, was on holiday in the Far East at the time that the van was used by Abel. Abel therefore did not receive prior consent to the use of the vehicle. Additionally, we are not told that Abel has used Dan’s vehicle in the past; it is therefore unlikely that he has ever received prior consent.
When questioned, Abel admitted that his brother would have been most unlikely to agree to him using the van in the circumstances (given that he was moving stolen goods and his brother was “a straight sort of guy”). It is therefore arguable that Abel is guilty of the office and does not have a defence.
What is necessary to prove is Abel’s mens rea at the time of the offence? Did Abel have the belief that his brother would give consent to the use of the vehicle in the circumstances? Arguably no given his statement referred to above (even though Dan did give him permission on return from holiday; that is with hindsight and therefore the email and verbal statement after the incident is irrelevant).
Given that the offence was carried out and the defence criteria contained in s.12(6) Theft Act 1968 is not fulfilled I am of the opinion that the mens rea element was present and Abel took the vehicle without consent or thought of possible consent. Abel is therefore guilty of this offence.
Question C
In order to be guilty of handling stolen goods under 22(1) of the Theft Act 1968 it must be shown that Eddie dishonestly receives, or arranges to receive, goods that he knows or believes to be stolen.
Eddie has carried out the actus reus element of this crime as he arranged to collect the stolen goods (i.e. the fencing) from Abel. It matters not that he later changes his mind and does not physically take possession of the goods; the mere arranging to receive the goods from Abel is sufficient.
From the facts it appears that Eddie was aware that the goods were stolen. Eddie says to Abel that he would pay “a fair proportion of what it would have been worth if it were legitimate”. As Eddie uses the word “legitimate” and takes note that the value would be higher if the scrap metal wasn’t obtained through dishonest means I am of the opinion that Eddie has been dishonest himself in his conduct at the point in time that he arranges to take the panels. He has therefore the necessary mens rea element.
The fact he changed his mind is irrelevant Eddie is still guilty of handling stolen goods.
Question D
s.1(1) Theft Act 1968
Actus Reus: He takes the pipes out of the skip and loads them into his van.
Mens Rea: He takes the pipes possibly with the knowledge that it was wrong to do so, as the pipes were in a companies skip.
At this point it may be hard to prove the Mens Rea element, Abel could claim that as he saw no one guarding the skip or anyone in the area that it was free for anyone to take, he may not have done this dishonestly. This would be up to the prosecution to try and prove his guilt beyond reasonable doubt in the offence of theft.
However while Abel is in the act of removing the pipes and loading them into his van Frances who is working on site comes out of the factory disturbing Abel. She confronts him asking what he is doing, he then attacks her. After hitting her over the head with a copper pipe (a forceful act which is certain to cause injury) he drives off with part of the haul of copper pipes.
s.8(1) Theft Act 1968
Actus Reus: whilst in the middle of acquiring the pipes he uses force against Frances when confronted.
Mens Rea: At this point he would know that if Frances is confronting him he is doing wrong and in the process of this he attacks her with a pipe and drives off with some of the pipes.
The earlier liability under s.1(1) Theft Act 1968 section would no longer apply as the more serious offence of robbery under s.8 Theft Act 1968 would come into force. Abel subjected Frances to force during the time of him stealing the pipes.
In this incident Abel has caused Frances injury, she received severe bruising to the head but also has sustained a broken hip, which resulted from falling over after the hit over the head.
s.20 Offences Against the Persons Act 1861
Actus Reus: He hit Frances on the head with a copper pipe.
Mens Rea: Knowing that injury could occur he proceeded to hit her with the pipe
It now has to seen if Abel has committed an offence under the s.20: wounding and inflicting grievous bodily harm. As there is no cut to Frances i.e. a laceration to the two layers of skin wounding does not apply, however grievous bodily harm may. The bruising may not be seen as a serious enough injury by a jury but the broken hip would.
Abel could claim that he did not know what he was doing due to being intoxicated (he had several glasses of vodka before the incident) however this would not stand as he can be considered as reckless therefore completing the Mens Rea element and being found guilty.
He could also claim that he did not know that his actions would cause such a bad injury. In this instance the Jury will have to establish whether there is the Mens Rea element. They would have to decide if Abel could have known his actions would cause the extent of injury it did. This could go either way; he could say he did not know she would break her hip, and that he never intended that to happen.
Hitting someone over the head with a pipe seems to be very forceful and could be obvious that some sort of serious injury could result. With this in mind he could still be seen as reckless and therefore guilty of an offence under s.20 as he unlawfully and with malice inflicted injury on her. It is probable that the jury would find him guilty beyond reasonable doubt of grievous bodily harm.
Question E
Abel
Abel will be found guilty of an offence under Section 1 of the Bribery Act 2010 if certain criteria are established. Section 1 is split into two “cases” and I now take each in turn and apply to Abel’s scenario.
Case 1 is contained within s1(2) of the Bribery Act 2010. Abel is guilty under this section as he offered (and promised) to give a financial advantage to Greg to induce and/or reward Greg for the improper performance of his duties at Al Kemmie Ltd. The improper performance of his duties is the authorising of the purchase by Al Kemmie Ltd of Abel’s entire stock of scrap metal without asking any awkward questions about where it came from. As Abel specifically asked for Greg not to ask any awkward questions he was fully aware that this was an illegal transaction. As regards, the definition of “improper performance of a relevant function and/or activity”; please see below under the paragraph labelled Greg.
Case 2 is contained within s.1(3) of the Bribery Act 2010. It is debatable as to whether Abel is guilty under this section of the Act. In order to be guilty, Abel must have offered (or promised) to give a financial advantage to Greg and have known or believed that the acceptance of the advantage would itself constitute the improper performance of a relevant function or activity of Greg.
We are aware that Abel offered 20% commission to Greg for the completion of the transaction which fulfils the first criteria.
However as it was Greg who asked for a commission of 40% it is not clear whether Abel was aware that the commission was for him personally. If it could be suggested that Abel was aware that the commission was for Greg in his personal capacity (and not monies to be placed into the company as part of the deal) then Abel would be guilty of an offence under this Act,
Greg
Case 3 is contained within s.2(2) Bribery Act 2010. Case 3 covers the scenario where an individual, in this case Greg, requests, agrees to receive or accepts a financial or other advantage intending that a function or activity will be performed improperly. There are two elements that have to be fulfilled here and they are as follows:
1. Function or activity to which the bribe relates:
Section 3 of the Bribery Act 2010 confirms that if the activity is connected with a business (s.3(2)(b) Bribery Act 2010) and/ or the activity is performed in the course of a person’s employment (S.3(2)(c) Bribery Act 2010) and the person performing the function or activity is expected to perform it in good faith (section 3(3) Bribery Act 2010). then the function or activity is a relevant function.
Consequently, Greg, in setting up the deal to buy the scrap metal was performing a relevant function to which bribery relates.
2. Improper performance to which the bribe relates:
Section 4 of the Bribery Act 2010 confirms that a relevant function or activity is performed improperly if it is performed in breach of a relevant expectation.
On being appointed as a director of Al Kemmie Ltd, Greg was told to take every precaution to ensure all metal bought through Al Kemmie Ltd is legitimate. He was also provided with a handbook on directors duties to read through. The handbook specifically referred to the issue of secret profits and the fact that this is a civil offence. Given the training Greg had received he was fully aware that receiving commission of any kind was not acceptable to Al Kemmie Ltd and was a civil offence.
Regardless of his training, Greg requested a commission of 40% in order to buy the metal from Abel. Additionally, Greg made the offer to Abel even after being told by Abel to ask no questions about the origin of the metal. So it would seem that Greg knew it was not legitimate and consequently the purchase of the scrap metal would classify as performing a function or activity improperly. My conclusion is that, even though Greg has not agreed to anything yet he has still made a request for 40% commission for personal gain. Even though Abel then set a counter offer of 20% and Greg decided to think about it he is still guilty of an offence pursuant to section 2 of the Bribery Act 2010.
