A problem question about criminal liabilities across a range of different offences

Question

Liam is about to retire from running the family business, a restaurant at a seaside resort. His children are not interested in carrying on the business so Liam decides to put the restaurant up for sale. He markets the restaurant himself at a price of £100,000.

Jane has just finished a Business and Management degree and wants to buy the restaurant. Liam tells Jane that the restaurant has traded at a profit for the past 3 years. In fact, last year the restaurant made a loss of £1,987 but Liam is worried that Jane will not buy the restaurant if she knows the true facts about its profitability. Jane asks to see the accounts and when Liam tells her he cannot find them, she realises that Liam is lying and decides not to proceed with buying the restaurant.

Whilst he waits for someone to buy the business, Liam carries on working in the restaurant.

On a busy Sunday, he takes an order for Gemma and Danny who are on holiday from abroad. Georgina and Danny have run out of money but are very hungry. They went into Liam's restaurant hoping that they could eat their meal then slip out without paying.

Georgina and Danny order a full English breakfast each with drinks. After they have eaten, Liam brings the bill to their table. He says "Just pay at the till when you're ready." Georgina has enjoyed her meal and is having second thoughts about their plan not to pay. She says to Danny "I think we should pay up - we can use our emergency money - we don't want to end up in an English jail." Danny tells Georgina that they will not be paying and runs out of the restaurant. As she has no money, Georgina walks towards the door of the restaurant to follow Danny but Liam grabs her by the arm and says, "No-one leaves my restaurant without paying. We'll let the police deal with this". Georgina manages to break free from Liam and runs out of the restaurant. When she meets up with Danny, Georgina shows him a large bruise on her arm where Liam grabbed her.

Danny tells Georgina that before he left the restaurant, he dropped his wallet on the floor.

They agree that Danny will have to go back to the restaurant to look for the wallet but Danny says, "How can I do that without that guy remembering I ran off without paying?" Georgina replies "I don't know, you'll have to break in after he closes I suppose."

Danny and Georgina agree that Danny will go back to the restaurant to look for the wallet.

Georgina stays at their hotel but, before he leaves, she tells Danny "See if there is an open window you can climb through - please don't break in unless you have to -you'll just make things worse - and whatever you do, don't hurt anyone." Danny replies "don't be stupid, of course I won't hurt anyone." Reassured, Georgina wave's goodbye to Danny.

When Danny gets to the restaurant he smashes a small pane of glass in the door so that he can reach his hand in to unlock the door. He puts his arm through the broken pane and unlocks the door. Danny goes into the restaurant but cannot find his wallet. Just as he is preparing to give up the search and leave, Liam walks into the café. He recognises Danny and shouts, "What are you doing here?" Danny grabs an ornamental sword which is hanging on the wall of the restaurant and stabs Liam in the arm. Danny drops the sword and runs off. Liam's arm is bleeding heavily after the attack. He goes to the accident and emergency department of the local hospital where his cut is treated and stitched with 8 stitches.

Consider the criminal liability of Liam, Georgina and Danny.

Answer

LIAM

Fraud by false representation

Liam is guilty of fraud by false representation if he dishonestly made a false representation intending to make a gain for himself or another or intended to cause loss to another, in this case Jane, or expose her to a risk of loss. The offence is created by Section 1 subsection 2(a) Fraud Act 2006.

The Crown will need to prove all three elements of the offence for Liam to be criminally liable for fraud by false representation.

The first element is that Liam made a false representation by telling Jane that the restaurant has traded at a profit for the past three years when in fact the last year the restaurant made a loss of £1,987. This element is proven.

The second element is that Liam would need to have acted dishonestly for the offence to be made out. A court must decide what is dishonest according to the ordinary standards of reasonable and honest people, and whether that person knew what they were doing was dishonest by those standards.[1] Liam was dishonest as he knew that the restaurant had traded at a loss the previous year but told Jane that it had been profitable. Liam knew he was being dishonest as he knew that the restaurant traded at a loss the previous year but told Jane that it had been profitable. Liam's dishonesty may be evidenced by the fact that he tells Jane that he cannot find the accounts. Liam may be being truthful and honestly cannot find the accounts. In all the circumstances it is likely that Liam it is more probable that Liam is being dishonest.

The third element is that Liam intended to make a gain for himself, cause loss to Jane or expose her to a risk of loss. Gain and loss extends only to gain and loss in money or other property whether temporary or permanent. [2] It is arguable that Liam is would make a gain by selling the restaurant which may not otherwise sell It can also be argued that Liam is gaining if the restaurant was likely to continue trading at a loss. Therefore in these circumstances the sale of the restaurant at any price would be a gain to Liam. Conversely, it is arguable that Liam intended to cause loss to Jane if she bought an unprofitable restaurant. Further information would be required about the restaurant as it is possible that the last year was a glitch and restaurant is hugely successful and likely to continue to be. However, it will be easier to prove that due to the last year being unprofitable, that Liam at least intended to expose Jane to a risk of loss because there is no certainty about the future of the restaurant.

Liam's state of mind at the time would have to be proved and whether he would have intended or foreseen the consequences is to be determined subjectively.[3] The Court would therefore make reference to all the evidence and drawing inferences from the evidence as appears proper.[4] Examples of how intent can be proved are where there is evidence from witnesses and Liam's actions before, during and after the event.[5] The only evidence is that of Jane if she was willing to give the police a section 9[6] statement and give live evidence if the case went to trial. The fact that when Jane asks to see the accounts and Liam tells her he cannot find them is likely to be an inference which would be drawn upon.

Liam would be criminally liable.

Battery or Assault Occasioning Actual Bodily Harm (ABH)

The elements to be proved for an assault is an intentional or reckless act; causing another person; to apprehend immediate and unlawful personal violence and battery is used where there is an actual application of unlawful force.[7] Liam unlawfully assaulted Georgina as he intentionally applied force when he grabbed her arm, which is a battery.[8]

However the offence may be one of Assault Occasioning Actual Bodily Harm[9] due to the nature of Georgina's injuries. CPS guidance gives examples of injuries which could amount to ABH including bruising although it is generally multiple or extensive bruising which amounts to ABH.[10] Any injury that it more than 'transient or trifling' is classified as ABH. So in the absence of this the more appropriate charge is Battery.[11] However, depending on any medical evidence obtained, this may affect the liability of Liam. Yet, in the circumstances it is unlikely that Georgina would provide a section 9 statement[12] in any prosecution against Liam as she was committing a theft when she was assaulted.

In any event, Liam may be able to rely on the defence of self-defence as "A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at arge".[13] Liam grabbed Georgina to apprehend her but she managed to break free and run offwithout paying. A grab would generally considered to be reasonable force in the circumstances and not excessive force, as there was only a single bruise.[14]

DANNY

Theft

Danny is guilty of Theft as he dishonestly appropriated property, food and drink, belonging toLiam with the intention of permanently depriving Liam of the food and drink.[15]

Danny is dishonest under section 2[16] as he did not believe that he had in law the right to deprive Liam of the food and drink or that Liam would consent if he knew of the theft and the circumstances as him and Georgina have money, albeit emergency money to pay for their food. In all the circumstances a court is likely to decide that according to the ordinary standards of reasonable and honest people, that Danny knew what he was doing was dishonest by those standards, especially as he ran off without paying.[17]

An appropriation[18] occurred as Danny assumed the rights of the owner Liam by eating the food.

Property includes food and drink[19] which belongs to another,[20] in this case Liam, and Danny intended to permanently deprive[21] Liam of the food and drink through consuming the property and intending not to pay.

Aggravated/Burglary

A person is guilty of Burglary under section 9(1)(a)[22] if he enters a building as a trespasser. Danny entered the restaurant as a trespasser as he had not been given consent to enter the building after it was closed. Danny therefore exceeded the licence to enter only as a visitor during opening hours.[23] At the point of entry there must be an intent to steal, commit Grievous Bodily Harm (GBH) or criminal damage. Danny had the requisite intention to commit criminal damage at the time of entry as he intentionally smashed the window and is therefore guilty of a s9(1)(a) Burglary.

Unlawful damage was committed as Danny damaged the window belonging to Liam without lawful excuse and he intended to do so.[24] There was no lawful excuse such as protecting life or property or that Liam consented to the damage being caused.[25]

Under s9(1)(b), Danny entered the restaurant as a trespasser and committed GBH when he unlawfully stabbed him Liam the arm with an ornamental sword.[26] Danny's act was unlawful as he had no defence in law. Danny might attempt to argue that he was acting in self-defence on the basis that Liam grabbed Georgina earlier that day causing her bruising. However, Danny's act of stabbing Liam with a weapon would be deemed unnecessary, disproportionate and excessive in all the circumstances therefore any self-defence argument would not be accepted by the court. The circumstances did not require Danny to use such force to defence himself from an attack or threat of attack and the force used was not reasonable in the circumstances.[27]

GBH means 'serious or really serious harm'[28] and this element is proved as Danny was bleeding heavily , attended hospital and required eight stitches as a result of being stabbed. GBH can be caused with or without any instrument or weapon so Danny is guilty of a section 9(1)(b) Burglary. The fact that Danny had a weapon with him at the time of committing the GBH, which is the point when the burglary was committed, makes the offence an Aggravated Burglary.[29]

Whilst Danny is guilty of simple Criminal Damage[30], this offence should not be charged in the alternative to Aggravated Burglary as the charge or indictment would be bad for duplicity. Burglary contrary to section 9(1)(a) or (b) can be charged in the alternative to Aggravated Burglary without being bad for duplicity.[31] For the same reasons, a charge or indictment of GBH should only be charged in the alternative to section 9(1)(b).[32] This is because no single count on an indictment should charge a defendant with two or more separate offences which can be covered in a single offence.[33]

GEORGINA

Theft

Georgina is as a guilty as Danny of committing Theft as she dishonestly appropriated property, food and drink, from Liam with the intention of permanently depriving Liam of the food and drink.[34] The fact that she changed her mind and wanted to pay was circumvented by the fact that she ultimately ran off. She cannot rely on the fact that she was grabbed by Danny his actions were lawful to stop her s she was about to commit a theft by leaving without paying. There is no evidence that he intended to use any further force as he simply said that "No-one leaves my restaurant without paying. We'll let the police deal with this". Georgina is dishonest[35] as she did not believe that she had in law the right to deprive Liam of the food and drink or that Liam would consent if he knew of the theft and the circumstances as her and Danny had have money, albeit emergency money to pay for their food. In all the circumstances a court is likely to decide that according to the ordinary standards of reasonable and honest people that Georgina knew she was being dishonest despite changing her mind and wanting to pay as she knew she hadn't paid when she ran out of the restaurant.[36] If Danny acted under a false misapprehension that Georgina intended not to pay when she actually did, and then he assaulted her, Georgina may have a defence that she only left without paying in order to protect herself. Her intention was always to pay. However the case here is quite clear that Georgina ran off so she didn't have to pay, not because she was protecting herself.

As with Danny there was an appropriation[37] and property includes food and drink[38] which belongs to another,[39] in this case Liam, and Georgina intended to permanently deprive[40] Liam of the food and drink. Even though she changed her mind, the permanent intention to deprive was formed again at the point that she left the restaurant. In any event, taking property belonging to another may be dishonest even if the perpetrator is willing to pay for it.[41] Georgina is criminally liable for Theft.

Criminal Damage/Burglary/Aggravated Burglary

Georgina only commits the offence of Criminal Damage, Burglary or Aggravated Burglary if she does an act capable of encouraging or assisting the commission of an offence and intended to encourage or assists its commission.[42] Georgina committed an 'act' by agreeing with Danny that he should go back to the restaurant to look for his wallet. However, she explicitly did not encourage or assist the commission[43] of the offence by telling Danny not to break in unless he had to and not to hurt anyone and she was reassured by Danny that he would not. Whilst Georgina said that Danny would have to break in, she said this was only if he had to. Georgina did not threaten Danny to break in by causing unlawful damage, enter as a trespasser or injure anyone and in no way did she put pressure on him to do so.[44]

Footnotes

[1] R v Ghosh [1982] 2 All ER 689, QBD.

[2] Fraud Act 2006, s 5.

[3] Criminal Justice Act 1967, s8.

[4] Ibid (n 3) s8(b).

[5] Police National Legal Database, Police Operational Handbook 2014 Law (8th edn, OUP 2014) 142.

[6] Ibid (n 3) s9.

[7] Fagan v Metropolitan Police Commissioner[1969] 1 QB 439

[8] Criminal Justice Act 1988, s39.

[9] Offences against the Person Act 1861, s47..

[10] Ibid (n 5) 32.

[11] CPS, 'Offences against the person incorporating the Charging Standard' (CPS, January 2013) Click here to read the full article accessed 26 June 2015

[12] Ibid (n 3) s9.

[13] Criminal Law Act 1967, s3.

[14] Ibid (n 12) s3.

[15] Theft Act 1968, s1(1).

[16] Ibid (n 15) s2

[17] Ibid (n 1).

[18] Ibid (n 15) s3.

[19] Ibid (n 15) s4.

[20] Ibid (n 15) s5.

[21] Ibid (n 15) s6.

[22] Ibid (n15) s9(1)(a).

[23] R v Jones&Smith[1976]1 WLR 672

[24] Criminal Damage Act 1971, s1(1).

[25] Ibid (n 24) s5.

[26] Ibid (n 9) s20

[27] DPP v Armstrong-Braun (1999) 163 JP 271, CA.

[28] R v Saunders [1985] Crim LR 230, CA.

[29] Ibid (n 22) s10.

[30] Criminal Damage Act 1971, s1(1).

[31] CPS, 'Drafting the Indictment' (CPS, January 2013) Click here to read the full article access 25 June 2015.

[32] Ibid (n 15) s9(1)(b)..

[33] CPS, 'Drafting the Indictment' (CPS, January 2013) Click here to read the full article access 25 June 2015.

[34] Ibid (n 15) s1(1).

[35] Ibid (n 15) s2; Ibid (n 1).

[36] Ibid (n 1).

[37] Ibid (n 15) s3.

[38] Ibid (n 15) s4.

[39] Ibid (n 15) s5.

[40] Ibid (n 15) s6.

[41] Ibid (n 5) 88.

[42] Serious Crime Act 2007, s44(1).

[43] Ibid (n 50) s65.

[44] Ibid (n 50) s65.