Week 7 Criminal Law

Crimes of Dishonesty

Offences; Theft

Theft- “To appropriate moveable, corporeal things belonging to another persom where the accused
knows that those things belong to another and intends to deprive the owner of them or their use
permanently, indefinitely or temporarily”

- Mens Rea of theft?- “Appropriation must be with a felonious purpose; by one who knows
that the belongs to another and who means to deprive him of his property”
- Intention is judged objectively and is normally inferred from the facts and circumstances
- Robbery is a distinct common law offence, broadly defined as theft + assault

Robbery is theft using violence or assault

Appropriation- Hume frames theft principle as taking something and walking away

Also extends to clamping a car parked on private land without permission. Also to manifest a change
in attitude towards something once possessed lawfully and honestly

Mens rea for theft- look at facts of case and draw interpretation. Imagine what they must have been
thinking

Theft by finding?

- Civic Government (Scotland) Act 1982

- Duty of finders
- S.67 (1); “any person taking possession of any property without the authority of the owner
in the circumstances which make it reasonable to infer that the property has been lost or
abandoned (“a finder”) shall take reasonable care of it and shall without unreasonable delay
deliver the property or report the fact he has taken possession of it to a constable”
- S.67(6) any person who fails without reasonable excuse to comply with the provisions of this
section shall be guilty of an offence and liable on summary conviction, to a fine not
exceeding £50

Violation of sepulchers.- common law offence of removing a body from a grave; bodies/ human
remains are not owned- therefore why a different offence created,

“Moveable, corporeal things”

Moveable things?

- You cannot steal land (heritable), but theft charges may be brought in respect of
appropriation of any property which can be physdically possessed and moved from place to
place.
- For example, laptops and wallets, but also larger, mobile objects such as boats or cars- and
pets owned by another person.
- Includes money in sense of bank notes and coins
Week 7 Criminal Law

Corporeal things?

- However, you can only be prosecuted for theft for the appropriation of physical objects. But
the law recognises other forms of property which do not have a physical existence, such as
intellectual property rights, including copyrights, designs, patents.
- The violation of these rights can be prosecuted under various statutory offences. But the
common law charge of theft.

Aggravated thefts

- We encountered aggravations in our discussion of the crime of assault- based on the

weapon used, the injury caused, or the motive of the accused
- The law also regards some thefts as more serious than others
- The principle among these aggravated thefts are
o Theft by opening lockfast places (places other than premises, for example, vehicles,
cash registers, safes)
o Theft by house breaking

Theft by house breaking

- Concept of house covers flats, churches, cellars, hen houses etc.

- “Breaking” will be committed if the security of the building is overcome

Offences; Fraud

Defined very broadly and widely.

Fraud Act 2006- England and wales

- Distinguishes between frauds by;

o False representation
o Failing to disclose information; and
o By abuse of position
- In addition to establishing one of these kinds of fraud, prosecutor must also show either a)
gain by the accused or b) loss or risk of loss to the defrauded person.

Scots law I Fraud

- By contrast, concept of fraud is considerably wider

- Fraud is defined by the common law, informed by earlier judicial decisions and the writings
of influential commentators, like Hume.
- In a nutshell, the common law crime of fraud can be defined as:
o Making a false pretence to the victim, either expressly or impliedly (actus reus)
o Knowing the pretence was false at the time (men’s rea)
o As a result of which, the victim was deceived, and that deception caused them to act
as they diD
- Key case; McKenzie HM Advocate 1988 SCCR 153

If you are reckless in being deceiving towards another, then you are not guilty of fraud. Has to be
intentional
Week 7 Criminal Law

Offence; Perjury.

Witnesses in Scotland take the oath or affirm before giving their evidence. It can amount to
contempt of court for a witness who has been called to refuse to take the oath or affirmation

In Scotland, this is administered by judge, who normally stands to do so. No bible or holy
text is used.

The oath is as follows;

- “I swear by Almighty God that I will tell the truth, the whole truth and nothing but the truth”
- “I, do solemnlt sincerely and truly declare and affirm that I will tell the truth the whole truth
and nothing but the truth”

Perjury is the offence of lying in court, the crown would have to prove the witness gave statement in
court and took the oath, that what they said was false, and the men’s rea aspect of that they knew
what they said was false.

Key case- HM Advocate v Holy Sheridan