PROPERTY OFFENCES ENGLAND V BELGIUM

Common Law English development Doctrine of precedent Use of statutes Flexibility, speed and efficiency Judicial made law – however undemocratic law making Political independence – separation of powers EXAMPLES Royal succession Murder - The unlawful killing of a reasonable person in being under the King (or Queen's) peace with malice aforethought express or implied.

Civil Law More predominant than common law systems – 150/80 Draw on Roman Law Comprehensive legal systems – use of codes and statutes Consistent – but limited flexibility Judicial limited power to interpret Many countries draw on a mixture of these methods such as South Africa and Cyprus

ENGLAND V BELGIUM

ENGLAND In England property offences are divided into two categories STOLEN PROPERTY Theft Burglary Robbery DAMAGED PROPERTY Arson Vandalism

Theft Protection of property ‘Thou art a theif, for thou hast stolen my dung’ – Carver v Pierce This case demonstrates class representation or interests LARCENY First form of theft recognised by the common law – later replaced as a statutory crime in the Theft Act 1968 Taking property of the victim With the intention to permanently deprive them of that property With no claim of right

Theft Act 1968 S.1(1) Theft Act 1968 – A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it The moral element of dishonesty in the Theft Act is a modern addition Actus reus – 3 elements Mens rea – 2 elements Although all five elements of theft are defined in statue, it is heavily supported by case law

Actus Reus The actus reus is the GUILTY ACT S.3(1) Theft Act 1968 – Appropriation This definition was extended to include ‘any assumption by a person of the rights of the owner’ BROAD DEFINITON Morris – swapping price labels Lawrence – consent A shoplifter – at what point is a shopper a shoplifter?

R v Morris, Anderton v Burnside Conjoined appeals both involving the switching of price labels in supermarkets. Morris was arrested after paying a lower sum for certain items Burnside was arrested before paying for the goods. The question for the Lords to decide was whether an appropriation required the assumption of all rights of an owner and also if there was an appropriation at what point in time did this occur.

Lawrence v MPC An Italian man who spoke little English, arrived at Victoria Station on his first visit to this country. He got a taxi and gave the driver a piece of paper on which an address was written. The taxi driver told him it was a long way and would be expensive. On arrival at the destination the Italian, took one pound out of his wallet and gave it to the driver. The driver intimated that it was not enough and reached into his wallet and took a further six pounds out of it. The correct lawful fare for the journey was in the region of 10s. 6d. The driver was convicted of theft and appealed contending that the Italian man had consented to the appropriation of the six pounds and his conviction could not therefore stand. 

DPP v Gomez Gomez, was an assistant manager at an electrical goods shop. He along with other co-workers were asked by an acquaintance to supply goods from the shop in return for payment by two stolen building society cheques. Gomez prepared a list of goods to the value of the cheques which he submitted to the manager asking him to authorise the supply of the goods in return for a building society cheque in that sum. The manager instructed Gomez to confirm with the bank that the cheque was acceptable, and he told him that he had done so and that such a cheque was "as good as cash." The manager then authorised the transaction and the goods were delivered. The cheques were then dishonoured by the bank and the involvement of Gomez and the other employees was discovered. They were convicted of theft and appealed contending that as the manager had authorised the transaction there was no appropriation following R v Morris which required an adverse interference of the rights of an owner. It was contended on behalf of the Crown that this was in conflict with the House of Lords decision in Lawrence which held that an appropriation can occur notwithstanding the consent of the owner of the property.

Actus Reus S.4 Theft Act 1968 – Property Property includes ‘money and all other property, real or personal including things in action and other intangible property.’ Wide definition – however guidance is given in the act S.4(3) – wild flowers or foliage cannot be stolen unless for commercial use S.4(4) - wild animals cannot be stolen, but taking one from a poacher is theft NOTE: there is no criminal law definition attached to property. Civil definition is referred to Oxford v Moss – confidential information cannot be stolen

Actus Reus S.5(1) Theft Act 1968 – Belonging to another Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest Turner – possession of property

Mens Rea The mens rea is the GUILTY ACT S.2(1) Theft Act 1968 – Dishonestly Parliament has provided no definition of dishonesty, only three examples where the defendant is not dishonest S.2(1)(a) – believing they have a legal right to the property S.2(1)(b) – belief that there would have been consent S.2(1)(c) – belief that the owner cannot be found by taking reasonable steps Thus, the definition of dishonestly has been developed through case law – also know as the common law

Mens Rea Feely – jurors should adopt the current standards of ordinary people This was an unsatisfactory test by the Court of Appeal as there was confusion between its subjectiveness and objectiveness Gosh Was D dishonest by the standards of reasonable honest people? – objective test If so, did D realise that what s/he has done was dishonest by those standards? – subjective test

Mens Rea S.6 Theft Act 1968 – Intention to permanently deprive This covers two situations Treating the property as ones own to discard of Borrowing which is equilivant to an outright taking DPP V J

Making Off Without Payment Shoplifting This is not to be confused. This is the offence of making off without payment under S.3 Theft Act 1978 A person who, knowing that payment on the spot for any goods supplied or service done is required or expected from him, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount shall be guilty of an offence.

Burglary Species of theft Defined in the Theft Act 1968 amended by SOA 2003 It concens the trespass into a building and either/both Theft Damage or hurt to occupants/GBH All elements of theft must be proved first

Burglary Burglary comprises two offences, s9(1)(a) and s9(1)(b) Theft Act 1968 (1) A person is guilty of burglary if – (a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in sub-section (2) below; or (b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any GBH.

Actus Reus – Burglary Entry – not defined in S.9 Theft Act 1968 Brown – effective but not substantial Ryan – head trapped in window Courts have held that entry need not be by a person – sending a child, hook etc Trespass – S.9 – civil law Jones & Smith Building – not defined in s.9 Theft Act 1968 Includes part of a building

Mens Rea – Burglary Trespass - D must intentionally or recklessly trespass If charged under S.9(1)(a) there must also be an intent to commit the ulterior offence that is of Theft GBH to persons Damage to the building or its contents.

Robbery S.8(1) Theft Act 1968 defines Robbery as; A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force. Robbery is aggravated theft As set out, a theft must be satisfied according to S.1 Theft Act 1968

Robbery Actus Reus Steals – R v Robinson, Corcoran v Anderton Immediately before or at the time of stealing – R v Hale, R v Lockley Use of force or threat of force – R v Dawson and James, Clouden Use/threat of force in order to steal Mens Rea Mens rea of theft – Gosh Test

Belgium Penal Code is the source of Property offence in Belgium Theft can be found in Book II, Title IX, Articles 461-488 Theft and extortion  article 461-462 Theft without violence or threat  article 463 -467 Theft with violence, threat or extortion  article 468-476

Theft and extortion Article 461 – Main article of theft ‘He who is a matter that does not belong to him, deceitful takes away is guilty of theft. (With theft is treated as the fraudulent removal of someone else’s good for a short term use)

Theft without violence or threat Art 463 – 467 Art 463 – Diefstallen not specified in this section shall be punished with imprisonment from one month to five years and a fine of twenty six to five hundred euro The minimum penalty is three months imprisonment and fifty euro fine when the theft was committed to the detriment of a person who is particularly vulnerable state due to age, pregnancy, illness or a physical or mental defect or inferiority it was unclear whether the perpetrator was known Art 466 – Attempt to one of the robberies, mentioned in the previous articles, is punished with imprisonment from eight days to three years and a fine of twenty six to three hundred euro

Art 467 – theft is punished with imprisonment from five to ten years – if it is committed By means of forcible entry, rock climbing or false keys By a public official through his ministry If any of them take the title or the badges of a public official or invoke a false order of official authority COMPARISON Case law defines entry for burglary in English Law There is no mention of the acts of public officials in English law

Theft with violence, threat or extortion Art 468 – 476 Art 468 – Who commits a robbery by force or threat, shall be punished with imprisonment from five to ten years Art 469 – with theft committed by means of violence or threat shall be treated as a case where the theif is caught red-handed and used violence or threats either to remain in the possession of the removed items, or to ensure his flight COMPARISON Immediately before or at the time of stealing – using force to escape is not sufficient in English Law

Art 471 – punishment is between ten to fifteen years if; The crime is committed by means of forcible entry, rockclibing or false keys The crime is committed by a public official through his ministry If the guilty adopt one of them, title or marking of a public official or invoke a false order of the public authority If the crime was committed at night If the crime is committed by two or more persons If the guilty, in order to facilitate the crime or to ensure flight, using a vehicle or any other or without motor-driven vehicle

Also in Art 471 it is mentioned again; If the offence is committed to the detriment of a person whose fragile condition due to age, pregnancy, illness or a physical or mental defect of inferiority COMPARISON Special consideration is not given to certain classes of people in English law – this may only be an aggravating factor

Art 472 – In the articles 468, 469 and 470 is the criminal imprisonment of fifteen to twenty years. If the offence is committed in two of the circumstances mentioned in article 471; If weapons or used weapons like objects or displayed, or if the culprit does believe he is armed If the guilty person to commit or to ensure his escape from the crime uses defenslessness making or toxic substances If the guilty, in order to facilitate the crime or to ensure its flight, using a vehicle or any other or without a motor driven vehicle which was obtained by a crime Art 473 – the imprisonment of fifteen to twenty years if violence or threat of an incurable disease or an incapacity to perform personal labour of more than four months or the complete loss of the use of an organ or a serious mutilation has caused

Art 474 – if the violence or the threat perpetrated without intent to kill, yet the death causes, the guilty be sentenced to imprisonment of twenty to thirty years Art 475 – homicide committed to facilitate theft or extortion, or to ensure their impunity is punished by life imprisonment Art 476 – the penalties mentioned (art 474-475) first established are then applied even if the completion of the theft or extortion is prevented by circumstances beyond the control of the guilty COMPARISON There is a clear definition between homicide and property offences in English Law

Belgium Penal Code Judges can take into account legal writers interpretation of an article but this is not binding However the Court of Cassation (highest court) decisions are binding COMPARISON Although the Supreme Court (highest court in England) has binding decisions, other lower courts can make decisions that bind all lower courts – for example the Crown Court can bind the Magistrates court