04-05.5 Section 178 RTA 1988_cd7be8607968acc239bac1c039e9ac59.pdf

OFFICIAL Unit 4 Lesson 5.5...

OFFICIAL Unit 4 Lesson 5.5 Acquisitive Crimes - Section 178 Road Traffic Act 1988 Lesson Aim: The learner will be able to differentiate between different types of acquisitive crime Learning Outcomes: On successful completion of the lesson, Introduction students will be able to:- Section 178 of the Road Traffic Act 1988 known as taking and driving away a motor 1. Explain the difference between the common vehicle, was initially created to cover the law crime of theft of a motor vehicle and the activity commonly referred to as “joy-riding”. offence created under Section 178 of the Road Traffic Act 1988 As you will remember from the lesson ‘Theft’, in order to prove the crime of theft, you must show:- an unauthorised appropriation, and an intent to deprive the owner of their property. Common law theft required that the intention to deprive the owner had to be permanent for the crime of theft to have been committed. However, some accused claimed that they were only taking vehicles for “a shot” and were therefore not intending to deprive the owner permanently. Section 178 of the Road Traffic Act 1988 was created to combat this loophole. 1 th Amended 25 April 2024 v.5 OFFICIAL  OFFICIAL Unit 4 Lesson 5.5 Acquisitive Crimes - Section 178 Road Traffic Act 1988 Section 178(1)(a) of the Road Traffic Act 1988 Section 178(1)(a) of the Road Traffic Act 1988 states that a person who:- takes and drives away a motor vehicle without the consent of the owner, or other lawful authority shall be guilty of an offence. Essential Elements For this crime to be complete you must prove the following essential elements:- A. The motor vehicle has been taken away B. The motor vehicle has been driven C. There was no consent from the owner D. There was no other lawful authority We will look at these essentials in greater detail shortly but first of all you must understand that a motor vehicle is a mechanically propelled vehicle intended or adapted for use on a road. This definition will be looked at in more detail during the Road Policing Unit. 2 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.5 Acquisitive Crimes - Section 178 Road Traffic Act 1988 Activity 1 A1 List below the methods or 'modus operandi' you think might be used to take a motor vehicle. Example Charge EC “On 12th March 2020, at Brookbank Gardens, Brookbank, you CRAIG MARTIN did take and drive away motor vehicle, registered number, YH64JKV without the consent of the owner, or other lawful authority in contravention of Section 178(1)(a) of the Road Traffic Act 1988.” 3 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.5 Acquisitive Crimes - Section 178 Road Traffic Act 1988 Feedback 1 F1 You might have had some of the following on your list. Stolen true key Car unattended, engine running Forced entry/hotwired “Carjacked” A. The Motor Vehicle has been Taken Away It has been held that in these cases the word ‘take’ has the “normal and usual meaning” in as much as the vehicle has come into the possession of someone As you can see there are many ways that vehicles can be "taken" and you should note the details of the modus operandi and seize any physical evidence available in support of this. B. The Motor Vehicle has been Driven Again, you will cover this term in the Road Policing Unit but it is sufficient for this lesson to say that driving is “being in control of the speed and direction of the vehicle”. In one stated case, it was held that two men pushing while a third steered a motor vehicle was sufficient to constitute driving and establish this offence. C. There was No Consent from The Owner It may be obvious that if someone does not ask for any permission to take a vehicle and then subsequently takes it, they do not have the consent of the owner. There are other situations, however, where this consent question will not be as clear cut. In one stated case, a man was asked by the owner of the vehicle to drive it from A to B. The man therefore had consent at that time but en route he picked up his girlfriend and took her for a drive over approximately 10 miles. Here it was held that for this additional journey the man had taken the vehicle without the consent of the owner. 4 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.5 Acquisitive Crimes - Section 178 Road Traffic Act 1988 There are cases where it is subsequently claimed that there was consent of the owner. This can be particularly prevalent where it is the child of the owner who has taken the vehicle. You should remember if there are other charges, such as driving without a driving licence or insurance, then the owner could be liable to charges of causing and permitting these offences. A statement should be noted from the owner in relation to not having given consent as soon as is reasonably practical. Note:- This will be covered further in Unit 9 Road Policing. D. There was No Other Lawful Authority An example of this would include a Police officer driving a vehicle in the course of their duty, e.g., a vehicle seized as a production. Section 178(1)(b) of the Road Traffic Act 1988 Section 178(1)(b) of the Act provides that a person who:- knowing that a motor vehicle has been so taken drives it or allows themselves to be carried in or on it without such consent or authority, shall be guilty of an offence. This covers passengers in taken or stolen vehicles and drivers who have driven the vehicle prior to being traced by police. Essential Elements To substantiate this part of the offence you must prove that the culprit has:- A. Knowledge that the motor vehicle has been taken without the owner’s consent or other lawful authority B. Driven the motor vehicle or allowed themselves to carried in it C. No consent of the owner D. No lawful authority. 5 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.5 Acquisitive Crimes - Section 178 Road Traffic Act 1988 A. Knowledge that the Motor Vehicle has been Taken Without the Owner’s Consent or Other Lawful Authority This does not mean that the subsequent driver or passenger must have been present at the time of the original taking of the vehicle but they may have been. All it means is that they knew it had previously been "unlawfully" taken. This could be proved by various things including:- Broken windows or damaged door locks; Unusual method to start vehicle (screwdriver, ignition wires hanging down); Behaviour (e.g. running away) when you stop the vehicle. In one stated case relating to passengers in a stolen car, it was held that the police cannot infer guilty knowledge on the part of a passengers from the conduct of the driver (who failed to stop for a police signal and drove through red traffic lights) as there may be other reasons for this behaviour, their silence or from their failure to disassociate themselves from the theft. It was however held in a subsequent case where a stolen car was stopped by the police that, if the police then have to chase the passengers and stop and apprehend them, then that is sufficient to prove their guilty knowledge. B. Driven the Motor Vehicle or Allowed Themselves to Carried in it It has been held that if someone learns that a car has been stolen during a journey and has no chance to get out, then they are not allowing themselves to be carried. Here you are looking to ensure that the passengers are not being carried against their will. One indication of this could be you observing them trying to get out of a vehicle during a pursuit. On the other hand, however, this could be them merely trying to evade arrest. C. No Consent of the Owner Per the Section 178(1)(a) offence. D. No Lawful Authority Per the Section 178(1)(a) offence. 6 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.5 Acquisitive Crimes - Section 178 Road Traffic Act 1988 Statutory Defence Section 178(2) of the Road Traffic Act 1988 provides that a person accused of the offences at Section 178(1)(a) and (b) cannot be convicted if the defence can prove that either the accused had acted with the reasonable belief that:- 1. they had lawful authority; or 2. the owner would have granted permission had they been asked for it. Note:- You should remember that a statutory defence does not stop you from charging or arresting somebody. A statutory defence is evidence that the individual should present in Court. Power of Arrest All of the Section 178(1) offences dealt with above are punishable by imprisonment, therefore may be arrested under Section 1 of the Criminal Justice (Scotland) Act 2016. Theft or Section 178? Are you dealing with a theft or a contravention of Section 178 of the Road Traffic Act 1988? If the car has been taken temporarily and then merely abandoned, the most relevant charge is a contravention of Section 178 of the Road Traffic Act 1988. If, however there is some indication that there is an intent to deprive the owner permanently, e.g., burning out the vehicle when abandoning it, “ringing" the vehicle (selling the vehicle on to an unsuspecting buyer), breaking the vehicle for spares, etc., then the relevant charge would be theft. 7 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.5 Acquisitive Crimes - Section 178 Road Traffic Act 1988 Attempts If you catch the culprit in the act before they have driven the vehicle away, e.g., trying to start the vehicle, dismantling the steering column, etc., or subsequently identify them as the culprit who tried to take the vehicle, the charge would be either an attempted Section 178(1)(a) offence or attempted theft depending on the circumstances. Vehicle Pursuits It is common for a culprit to make off on attracting the attention of the Police. The failure of a driver to stop when signalled to do so may raise suspicion that the occupant(s) have committed a Section 178 offence but remember, there are many others reasons why drivers fail to stop for the Police. If a vehicle does make off, this may result in a vehicle pursuit. If this happens, you should immediately make Control Room aware that a vehicle has made off from you. Direction will then be provided by the Control Room on what actions you should take. This is likely to be for you to follow the vehicle to keep it in sight. Health and Safety HS Pursuits can result in road crashes involving members of the public, the occupants of the other vehicle or yourself and your colleagues. You therefore have, at all times, to be aware of road safety considerations. If possible, alternative methods of surveillance such as helicopters can be utilised to trace any vehicle being followed. If instructed by your area control room to stand down, do so immediately. 8 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.5 Acquisitive Crimes - Section 178 Road Traffic Act 1988 PNC Often your suspicion that a vehicle has either been taken without the owner’s consent or that it has been stolen will result from a PNC check. You must remember however, that the PNC may indicate ‘no trace’ when the vehicle is in fact outstanding. This may be due to the PNC not being fully updated yet or the owner may not have even discovered the vehicle is missing. Additionally, previously stolen but recovered vehicles may still be shown as "stolen" on the PNC again due to a delay in updating. For reasons in addition to officer and public safety, you should exercise great care when dealing with potentially stolen vehicles. The PNC can provide you with details of the registered keeper and it is advantageous to obtain this information before stopping the vehicle and speaking with the occupants. Driver and Passenger Questioning Once you have stopped a vehicle, you should attempt to identify the driver and any passengers present. You should ask to see any documentation the driver may have in relation to the vehicle and their identity. Road Traffic law empowers you to do this. However, if any of the people in the vehicle are suspected of a Section 178 offence, your scope to question them is limited prior to them having the opportunity to consult with a solicitor. You should consider very carefully what you ask and not exceed questions designed to determine if a crime has been committed and if there are reasonable grounds to suspect that the individual is the offender. Replies to extensive questioning are likely to be deemed inadmissible. If any incriminating remarks are made in response to questions asked out with a police station, then these questions should be repeated in a police station interview after access to a solicitor has been offered, etc. It is advantageous to separate the driver and any passenger(s) so that the details provided can be independently verified. 9 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.5 Acquisitive Crimes - Section 178 Road Traffic Act 1988 Driver and Passenger Behaviour A reluctance to answer questions, undue nervousness or an inability to explain their driving actions may give you cause for further suspicion. You have to remember however that this could be caused by many factors, including drink or drugs, guilt of other unrelated criminal conduct or merely that this is the first time that the drivers have been stopped by the police. Examination of the Vehicle A check of the vehicle should be made as this may reveal a number of factors which would assist you. Have any windows been broken? Have the door locks been forced? Has the ignition been 'hot-wired'? Any of the above would be good indicators that the vehicle has been taken without the owner’s consent. Abandoned Vehicles Often, through your own observations or through calls from the public, your attention may be drawn to an apparently abandoned vehicle. You should always bear in mind that it may have been unlawfully taken. A check to see if the engine is still warm may indicate that the vehicle has only recently been abandoned and that the culprits may still be in the area. In these circumstances, consideration should be given to request a dog handler attend in the area to conduct a search for the occupants of the abandoned vehicle. Additional information can often be obtained by local enquiry and asking local householders in the vicinity if they have any knowledge of the vehicle. If enquiry confirms that the vehicle was unlawfully taken, the vehicle should be ‘preserved’ for forensic examination. You should also consider the possibility that the vehicle may have been used in the commission of other crimes, or the possibility that the vehicle may have been abandoned by culprits who have subsequently taken another vehicle from nearby. As always, remember to be forensically aware! 10 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.5 Acquisitive Crimes - Section 178 Road Traffic Act 1988 For further information, use the resources shown below:- Legal Database:- Road Traffic Law - Road Traffic Legislation - Road Traffic Act 1988 - Part VII - Miscellaneous & General - Offences in Scotland - S.178 Review: You can explain the difference between the common law crime of theft of a motor vehicle and the offence created under Section 178 of the Road Traffic Act 1988 Learning Log: How will what you have learned in this module impact your day-to- day role? Are there any skills or knowledge you would like to develop further following this module? End of Module 11 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.5 Acquisitive Crimes - Section 178 Road Traffic Act 1988 12 Scots Criminal Law: Introduction and Investigation OFFICIAL