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Coursework Header Sheet

175309-78

Course LAW0783: Criminal Law Course School/Level HU/UG


Coursework Criminal Law - Course Work 1 Assessment Weight 20.00%
Tutor CA Withey, E Phillips Submission Deadline 10/01/2011

000544440
LEGAL PROBLEM SOLVING ASSESSMENT CRITERIA FEEDBACK

A. IDENTIFICATION Relevant Irrelevant


1. Identify the relevant legal principles.
5 4 3 2 1

2. Offer sufficient, but not overly detailed, explanation of the Just right Insufficient/irrelevant
law/legal principles so that a reader can understand.
5 4 3 2 1

B. EXPLANATION Well selected Poorly selected


Identify and use factual details that are relevant to the legal argument,
leaving out what is not relevant. 5 4 3 2 1

C. APPLICATION Clear argument Muddled/no argument


1. Apply the legal principles to the relevant facts to develop a
clear argument. 5 4 3 2 1

2. Articulate, where appropriate, any exceptions or critical Well articulated Not mentioned
observations.
5 4 3 2 1

3. Reach a clear and convincing conclusion (as to how to advise Clear & convincing Unclear & unconvincing
the client)?
5 4 3 2 1

D. WRITING AND COMMUNICATION ASSESSMENT CRITERIA FEEDBACK

1. Correctly cite legal materials. Excellent Weak

5 4 3 2 1

2. Use of appropriate legal terminology. Excellent Weak

5 4 3 2 1

3. Concise and effective use of sentences, punctuation and Excellent Weak


paragraphing.
5 4 3 2 1

4. Correct spelling. Excellent Weak

5 4 3 2 1

5. Presentation, layout and word processing. Excellent Weak

5 4 3 2 1

Grade Awarded___________ For Office Use Only__________ Final Grade_________


Moderation required: yes/no Tutor______________________ Date _______________
1
S.3(1)states that:” Any assumption by a person of the rights of the owner amounts to an
appropriation ,and this includes, where he has come by the property (innocently or not)without stealing
it, any later assumption of a right to it by keeping or dealing with it as owner”. Therefore Julia
appropriated the £80 when she accepted the money. By thinking to buy a new dress she assumed the
rights of the owner.
A similar case is Mazo [1997]1 in which a maid was accused of theft because on the course of
two years she cashed cheques made payable for her from her employer, an elderly lady whose mind was
deteriorating. The maid was convicted and on appeal she argued that there wasn’t sufficient proof that
the transfers were not gifts. The Court of Appeal held that the maid was a receiver of a valid gift (under
civil law) and that this could not have been an appropriation. If Mazo [1997] would still represent the
law, Julia could be acquitted on the facts that she was a receiver of a valid gift and therefore she did not
appropriated the money.
Mazo [1997] has now been overruled by Hinks [2000]2.
In Hinks [2000] the defendant was charged with six counts of theft after he withdrew sums
totalling over £60,000 from a friend, a man with limited intelligence. The defendant was convicted and
the House of Lords held that an appropriation can be established even if the £60,000 were given to the
defendant in the form of a valid gift. The decision in Hinks lead to a lot of criticism as appropriation
could now be interpreted as involving no wrong doing at all. There has been a lot of debate on the case
but since the decision in Hinks no other cases have come to court.
In conclusion, Julia could rely on the fact that Mary consented to the assumption of her rights
and that Mary’s consent was not obtained by deception and that there was a true consent given. Julia
could also try to prove that even if Mary was quite elderly she wasn’t necessary in a deteriorated state
of mind. However given the fact that the leading case is Hinks the consent of the owner does not stop it
from being an appropriation.

In the case of Khalid we deal clearly with property because in s.4(1) of Theft Act 1968 it is stated
that “property includes money and all other property ,real or personal, including things in action and
other intangible property”. On the facts given it can also be argued that the property was collected by
Khalid from his friends and he was under an obligation to deal with the money in a particular manner(to
buy a wedding present)therefore under s.5(3) of the Theft Act the property can be regarded as
belonging to another.
The case that deals with a similar situation is Davidge v Bunnett[1984]3 . In this case, the
defendant collected money from his flatmates in order to pay a gas bill. She paid only a part of the bill,
the balance being carried over to the next month. She admitted spending the rest of the money and she

1. 2 Cr App Rep 518, [1996] Crim LR 435


2. All ER (D) 1541
3. Crim LR 297 DC
was convicted on the facts that the money were property belonging to another within the meaning of
the s.5(3) of the Theft Act.
Another similar case is Hassall [1861]4 the defendant started a Christmas club where all the
members had to pay a deposit every week. Members who didn’t pay the weekly deposit were charged
with a small fine. At Christmas time the defendant was supposed to return to each member the money
he paid in, less the amount of his fines if he had any. The defendant was also supposed to deal with the
money in a certain way, by keeping the money in a separate account. When the defendant spend the
money it was held that he appropriated property belonging to another because the money still belonged
to the members.

3
| Section 1(1) of the Theft Act provides:
A person is guilty of theft if he dishonesty appropriates property belonging to another with the
intention to permanently depriving the other of it; and “thief” and “steal “shall be construed accordingly.
In this case the defendant, Greg, borrowed the magazine from his friend therefore under
section 4(1) of the Theft Act there was property and clearly under section 5(1) we deal with property
belonging to another. It can also be argued that Greg was under the obligation to deal with his friend’s
property in a certain way because he only borrowed the magazine and he was supposed to bring it back
in the same state.
Appropriation means, under section 3(1), any assumption by a person of the rights of an owner,
and this includes, where he has come by the property without stealing it, any later assumption of a right
to it by keeping or dealing with it as an owner. It can be said that from the moment he took the
magazine, Greg assumed the rights of an owner. The rights of an owner include the right to posess the
property, use it, consume it, give it away, lend it, move it and price it (Mcpherson[1973]5) . Greg could
try to argue that he did not appropriate the magazine because his friend Pete gave his consent. However
relying on the case of Hinks[2000], were it was held that an appropriation can be established despite
the fact that the victim consented to the appropriation in the form of a gift, we can argue that Greg
appropriated the magazine.
The next problem that arises is whether the appropriation was dishonest. At the moment when
he took the magazine the appropriation was not dishonest but the Mens Rea formed when he ripped
out the page with the Audi review knowing that his friend Pete was considering buying an Audi A1 car
and that he bought the magazine especially for that review. Section 2 of the Theft Act 68 provides:

1) A person ‘s appropriation of property belonging to another is not to be regarded as dishonest-


a) If he appropriates the property in the belief that he has in law the right to deprive the other of
it ,on behalf of himself or a third person ;or
b) If he appropriates the property in the belief that he would have the other’s consent if the other
knew of the appropriation and the circumstances of it ;or
c) (except where the property came to him as a trustee or personal representative)if he
appropriates the property in the belief that the person to whom the property belongs cannot be
discovered by taking reasonable steps.

4
Regina v Hassal (1861)169 ER 1302
5. Regina v Macpherson [1973] Crim L R 191
In his defence, Greg could try to argue under s.2(1)(b) that he was not dishonest because he
honestly believed that Pete would have consented if he knew that he wanted to get as quick as possible
at the showroom as there was a waiting list for the car.
In Gilks [1972]6 it was held that a person is not dishonest if he honestly believes that he is acting
honest. If this case was still the law, Greg could not rely on it as he did not honestly believed that he was
acting honestly because he felt bad about ripping out the page.
The current test for dishonesty is considered to be the case of Ghosh [1982]7. In this case a
surgeon demanded money for operations carried out under National Health Service. The judgement of
this case applies to all cases involving dishonesty as the trial judge held, in regard to it, a test including
two questions. The first part of the test is whether what was done can be considered dishonest
according to the ordinary standards of reasonable and honest people. In the case of Greg it could be
argued that no reasonable person would rip a friend’s property. Also his dishonesty can be proven the
fact that he desperately went to the showroom to put his name on the waiting list perhaps knowing that
his friend hadn’t already done it. Taking into account that the appropriation was objectively dishonest,
the second part of the test must be considered. The second part of the test is whether the defendant
realised that a reasonable and honest person would regard what he did as dishonest. Given the facts,
Greg realised that an honest person wouldn’t deteriorate someone’s property as he felt a bit bad about
ripping out the page. As both parts of the test have been established it can be argued that Greg was
dishonest.
Having established that the appropriation was dishonest the following step that needs to be
taken into consideration is whether there is intention to permanently deprive. In Greg’s case we deal
with borrowing and Section 6(1) of The Theft Act provides in relation with borrowing that:
“...a borrowing or lending of it may amount to so treating it if, but only if, the borrowing and lending is
for a period and in circumstances making it equivalent to an outright taking or disposal” . Greg
borrowed the magazine having no intention to permanently deprive. He only temporarily deprived
which is not stealing.
In Lloyd [1958]8 the defendant borrowed some cinema films and copied them. It was held that
there was no intention to permanently deprive because the borrowing vas not for a period and the films
had the same value. Similar to the case of Lloyd, in Greg’s situation the borrowing was not for a period.
If he returned the magazine to Pete including the page that he ripped off he could argue that the value
of the magazine is still the same as Pete could still be able to read the review. Therefore there was no
intention to permanently deprive and no stealing. However if Greg returned the magazine without the
page, which was the most important page from the magazine as Pete bought that magazine especially to
read the mentioned page, it can be argued that all or substantially all of its value has been consumed.

6.
Regina v Gilks [1972] 3 All ER 280
7
Regina v. Ghosh [1982] Q.B. 1053
8
R v Lloyd [1985] QB 829
Bibliography
- Allen, Michael, ‘Criminal Law’, 10th edition, OUP.
- Card, Cross and Jones, ‘Criminal Law’, 19th edition, OUP.
- Elliott, Catherine and Quinn, Frances, 6th edition, Pearsoned.