Problem question

The Beddingham University held an annual debating competition open to all final year students. The final of the competition last year was between Dakota, a law student, and Eden, a politics student.

There was a limited range of literature available in the University library on the subject matter of the debate, all of which went missing within hours of the debate question being released.

Eden went to the organiser of the competition, Filip, and complained about the loss of the material. Filip approached Dakota about the loss. Dakota did not respond in any way at all.

Two days later, the debate was held and Dakota won. Dakota received a prize of £3,000 in cash.

Later that day, Dakota was caught by University security staff replacing the material relating to the debate in the library. When asked, Dakota later admitted he had taken it from the library on the day the question was released, but he had always intended to replace it once he had won, and that most of it was available on the Internet anyway.

Consider Dakota’s criminal liability, if any, for the theft of the material under section 1 of the Theft Act 1968, and for fraud under section 1 of the Fraud Act 2006.

Sample answer

Theft

Theft is an offence contrary to s. 1 Theft Act 1968. The actus reus consists of three elements; appropriation, property and belonging to another. It is an appropriation to assume a single right of the owner (Morris) i.e. to take library books, despite the consent of the library (Gomez, Hinks), and certainly where there is an unauthorized taking such as on these facts. The material is of course property under s. 4 and it clearly belongs to another under s. 5.

There are two elements to the mens rea of theft. Section 2 applies where:
(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 of 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 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.

This might apply if D thought he had the right in law to take the material, but that is highly unlikely. He certainly could not say he thought he had consent (presuming he had not checked the material out in the normal way, but if he had, Filip would not have needed to ask him if he had it) or thought the owner could not be found taking reasonable steps.

So to reach a conclusion we have to use the Ghosh test. The test has two elements:

• Was D dishonest according to the ordinary standards of reasonable and honest people?
• Did D realise that what he was doing was by those standards dishonest?

So the question for the jury is whether D knew others would view his conduct as dishonest according to the standards other think?

If a person takes property but intends to return it, there may be no intention permanently to deprive. Section 6 of the Theft Act 1968 provides:

A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

Because the material still had its goodness, Lloyd would say there is no intention. On the other hand, in Fernandes the risk of loss was enough to show D intended to treat the thing as his own to dispose of.

Fraud

Fraud is an offence contrary to s. 1 of the Fraud Act 2006, but only if D has breached s. 2, 3 or 4 but none of the sections apply on these facts because D has not made a false representation, D was not under a legal duty to disclose he had the material and D is not in a position to safeguard the financial interests of E.

Feedback

The answer shows sound knowledge of theft under s. 1 Theft Act 1968 but very sparse detail is given on the Fraud Act 2006. There are examination technique issues too:

• This answer was given in an exam where students could use statute books. The student has reproduced section 2 of the Theft Act 1968 in full, which is not the best use of exam time when the key words have been considered in the paragraph beneath it where s. 2 has been concluded as inapplicable. The student has also reproduced the whole of s. 6 instead of a few of the key words from it (such as “to treat the thing as his own to dispose of regardless of the other's rights”) and this is a tremendous waste of time. Credit cannot be given for copying from material the examiner knows you have.
• There is some very good application of the actus reus elements to the facts of the question (this is quite straightforward, but was done well) but the major issues on the facts are the two mens rea elements. These are recited from the Act (see above for comments on that) and although the Ghosh test is provided, it is not applied. Worse, the answer has failed to mention the Ivey test which has (probably) replaced the Ghosh test. It’s important to show you are up to date with the recent cases.
• Two of the s. 6 cases are mentioned, but again they are not applied. Credit has been lost by this omission.
• What can we surmise about the lack of detail on the Fraud Act 2006? The first possibility is the student simply ran out of time (and reciting ss. 2 and 6 will have wasted some of that). The second is that the student has a weaker grasp of the law governing fraud than theft. Either way, there is a possibility of a conviction under the Fraud Act 2006, so the conclusion is ill-informed. First; if a false representation may be made by silence (the Act is itself silent on that matter), section 2 may be satisfied if D is also Ghosh or Ivey dishonest and his conduct was done with a view to gain (the prize money?). Secondly, s. 4 covers any defendant who occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person (this could be Eden’s interests), and where he dishonestly abuses that position, and intends, by means of the abuse of that position, to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss. However, the Act does not specify whether D would be viewed as being in ‘a position in which he is expected to safeguard’ another’s interests. This sounds like it could apply to a person in a fiduciary relationship with another, or perhaps contractual, but if D is, and has “abused” the position by taking the material, he might have committed a fraud.