Investigative Skills: Theft and Burglary PDF

INV05 INV05 Police College Investigative Skills Theft Introduction Theft is a so-called ‘volume crime’. Of all the dishonest criminal offences you will deal with, theft will probably be the most common. The primary source of legislation relating to theft is to be found in Section 1-6 of the Theft Act (NI) 1969 (mandatory reading and examinable) which can be found on Classis. The information here is therefore relevant when conducting initial investigations and reporting of crime, according to the national/ local policing plans. You are likely to encounter theft early on in your career as a probationer police officer. Offences of theft include shoplifting and stealing from a friend, stranger or employer, as well as a number of other similar crimes. There are many legal complexities surrounding theft and we will examine the basic principles involved. However, it is worth clarifying at this point two particular examples of theft that occur commonly and are looked at separately in your course. These are: Robbery (theft from a person, accompanied by violence or the threat of violence). Burglary (theft or the intention of theft from a building). Section 1 of the Theft Act (NI) 1969 states, “a person is guilty of theft if he/she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it”. OFFICIAL [SENSITIVE] Page 51 INV05 INV05 Police College A thief is a person who commits a theft or in everyday language, steals something. We will examine each of the five key concepts for theft in turn. Dishonesty Dishonesty is not defined by the Act, but Section 2 (1) of the Theft Act (NI) 1969 defines where a person will not be treated as dishonest. The person is not acting dishonestly if he/she believes that:  He/she had the lawful right to take the item (for example a person mistakenly taking the wrong umbrella from a stand believing it was his or her own);  He/she would have had the owner’s consent if the owner had known the circumstances (for example your neighbour is on holiday and you are looking after their garden, but your strimmer breaks down so you take his from his shed to cut your grass); and  The owner cannot be discovered by taking reasonable steps (for example a person finds a small amount of cash in the street).  Section 2(2) of the Theft Act (NI) 1969 states that a person may be treated as dishonest if property for sale is taken without payment, even if the person would have been willing to pay for it. In the end, a court must decide if a person acted dishonestly or not. Case Law Where Section 2 of the Act does not assist in determining dishonesty, the jury or magistrates until recently were asked to consider the ruling in R v Ghosh. This test considered two questions based on objectivity and subjectivity. Following a ruling held in Ivey v Genting Casinos (UK) Ltd 2017, the Supreme Court concluded that the subjective element of the Ghosh test does not correctly represent the law. Therefore, the test for dishonesty should relate to the decisions reached in Royal Brunei Airlines Sdn v Tan 1995 and Barlow Clowes International v Eurotrust International Ltd 2006. OFFICIAL [SENSITIVE] Page 52 INV05 INV05 Police College This current test for dishonesty requires the magistrates/jury to ascertain the defendant’s genuinely held belief or knowledge as to the facts (this does not have to be a reasonable belief - the question is whether the belief is genuinely held). Once the defendant’s actual state of mind is established, the magistrates/jury will apply the objective standards of ordinary decent people to determine if the defendant’s conduct was dishonest or not. Appropriation With reference to theft, the term appropriation is given the following meaning in the Theft Act (NI) 1969, Section 3 (1):  Assuming the rights of an owner of property by keeping it or controlling its movements (for example, a girl takes a pen from a shop display and secretes it in her pocket); or  Obtaining property innocently and later keeping it and using it as his or her own (for example, hiring a power tool and not returning it). However, when an innocent purchaser pays a fair price to a person who is selling some kind of property which later turns out to be stolen, the innocent purchaser will not have committed theft. For example, if a person buys a second-hand bicycle in good faith and then discovers it is stolen, he/she will not have committed theft (Section3 (2) of the Theft Act (NI) 1969). It will then be a matter for a civil court to decide who the rightful owner is (the person who owned the cycle prior to the theft or the innocent purchaser). OFFICIAL [SENSITIVE] Page 53 INV05 INV05 Police College Property Section 4 Theft Act (NI) 1969: Property includes money, personal property (such as personal effects and domestic animals) and real property (‘real estate’) for example land and things forming part of the land, such as buildings and some plants. But it also includes:  Things in action, for example patents, copyrights, and trademarks;  Plants or fungi growing wild, but only if they are picked for sale, reward, or a commercial purpose (but always consider other legislation that might prohibit such activities).  Wild creatures, but only if they are tamed and have not been lost or abandoned since they were kept in captivity; or they are being, or have been, reduced into property  Tangible - Perceptible by touch.  Intangible - Unable to be touched.  Note however, real property can only be stolen:  By a trustee (someone who has the legal control over the land) for example during its transfer in some kind of a legal process;  By persons who do not own the land, for example by removing turf, top soil, or digging up cultivated trees and shrubs; or  By tenants, for example by removing fixtures and fittings. Electricity is not legally property, so it cannot be stolen. The offence of abstracting electricity is an offence legislated in Section 13 of the Theft Act (NI) 1969 and is not covered in your notes. OFFICIAL [SENSITIVE] Page 54 INV05 INV05 Police College Belonging to another  Property belongs (Section 5 of the Theft Act (NI) 1969) to any person who has:  Proprietary right or interest, for example the owner of a computer that needs repair;  Possession, for example the owner of the computer repair shop that the owner takes the computer to for repair; or  Control, for example the person repairing the computer. The intention to permanently deprive The intention to permanently deprive is shown by a person treating another person’s property as if it were his or her own (Section 6 (1) of the Theft Act (NI) 1969). This could include:  Lending and borrowing over an extended time scale (for example borrowing a DVD from somebody for a weekend, and keeping it for a year);  Pawning an item (for example, going to a pawnbroker’s shop with another person’s property and receiving a loan of money in exchange). The mode of trial and the penalty for theft The offence of theft is triable either way. This is an important consideration when using your PACE powers.  Summarily: six month’s imprisonment and/or a fine;  On indictment: ten year’s imprisonment. OFFICIAL [SENSITIVE] Page 55 INV05 INV05 Police College Notes Now that you have read your notes on theft you will have to formulate the grounds to make an arrest. The most common power of arrest available to police is Article 26 Police and Criminal Evidence (NI) Order 1989 (PACE), as seen in the CJS notes and lessons. Police also have powers to stop and search prior to arrest (Article 3 PACE (NI) Order 1989) and search after arrest Article 20 and 34 PACE (NI) Order 1989 (provided conditions apply). Having found the property you are looking for, PACE gives police powers to seize and retain property for evidence purposes. PACE search / seizure powers module refers. Police powers are far reaching and effect the personal and private life of the individual and other persons involved. Before using powers a police officer should in a position to answer the following questions: 1. Do I have a lawful power? Every action must have a legal basis. 2. Is what I am doing proportionate? Is there a reasonable relationship between the aim to be achieved and the means used? 3. What is my objective? What is the proposed action intended to achieve? Is it relevant and is it necessary? 4. Is there a less intrusive alternative? Consider whether the objective can be achieved with less impact on the rights of the subject and any other person likely to be affected. 5. Do I need to act now? Is the proposed action urgent, or could it wait? 6. Is there a record of my reasoning? Keep a record of your decisions whenever they affect someone’s rights? OFFICIAL [SENSITIVE] Page 56 Police College INV06 INV06 Investigative Skills Burglary Introduction Offences against property and persons are generally regarded as more serious if the criminal entered premises where they had no right to be, in order to commit the crime. You may have to deal with an offence of burglary early in your policing career, so it is therefore essential that you are able to recognise the offence in order that you can effectively take the appropriate action. As you will see the main difference between 9(1)(a) and 9(1)(b) is that 9(1) (a) only requires an intention to commit one of the three listed offences; 9(1) (b) is the actual committing or attempt to commit one of the two listed offences. Definition - Burglary Steal anything in the building or part of the building, or Inflict on any person therein any grievous bodily harm, or Section 9(1) (a) Theft (NI) Act 1969 Having entered any building or part of a building as a trespasser, he Section 9(1)(b) Theft (NI) Act 1969 OFFICIAL [SENSITIVE] Page 58 Police College INV06 INV06 As with theft there are elements within the definition, which need to be proven to establish whether burglary has taken place. Enters This has not been defined by the Act and it is therefore for the courts to decide. However the police should prove an ‘effective’ entry. While the majority of cases will involve the complete entry of the person this does not have to be the case. The person who inserts their hand after breaking the window with the intent of carrying out one of the listed offences has also entered. The entry of an innocent agent or an instrument held in the offender’s hand for the purpose of intimidating any person or stealing or damaging any property therein will also be sufficient to commit the offence. However, if the instrument is only used to make or facilitate entry to the premises the full offence of burglary has not taken place. 1. Has Hull entered? 2. Hull breaks a window and climbs through and enters the building with his whole body. YES 3. Hull breaks a window and puts his hand in to steal goods in shop window YES 4. Hull pushes coat hanger through a letter box in an attempt to hook clothing on a rail inside the shop YES 5. Hull pushes a coat hanger through small top window to attempt to hook the latch of a lower, larger window in an attempt to open it NO 6. Hull puts his arm through a small window to open a latch on a larger window YES While in the majority of cases of burglary entry will be gained by the whole of the body OFFICIAL [SENSITIVE] Page 59 Police College INV06 INV06 encroaching the building or part of a building, as the case may be, an offence may still be revealed where the physical entry is limited, e.g. the man who inserts his hand into the letterbox of an office intending to steal, or the ‘smash and grab’, offender who puts his arm through the shop window with similar intent. Building Generally, the term building can be easily understood to be a building. The place must have some degree of permanence however; vehicles and vessels in use as dwellings are buildings. When a vehicle or vessel is used for this purpose, it will remain a building even when occupiers are temporarily away. When it is no longer in use as a dwelling burglary cannot be committed in it. Caravans are the main type of portable structure that you will deal with. Uninhabited caravans are not buildings, temporarily uninhabited caravans may be, it depends on the circumstances. The term building never includes a tent, but it can include a portable structure which is intended to be permanent and has the main characteristics of a building except for foundations (i.e. walls and a roof). The view has also been taken that an unfinished house of which the walls, external and internal, has been built, the roof was on, a considerable part of the floor had been laid, etc., was held to be a building. Therefore in dealing with cases on sites where unfinished buildings are at various stages of completion, it will be for the court to decide which constitutes a building for the purposes of burglary. It follows that the prosecution must produce evidence as to the state of completion of such building at the time of the alleged offence. Case Law To illustrate how far the courts will extend the term “building”, the following may assist. The Criminal Law Revision Committee thought a tent was too open a structure to be naturally regarded as the subject of burglary, consider however cases involving freezer containers or other portable buildings. In the case of R v B and S Leathley (1979) goods were stolen from a freezer container in OFFICIAL [SENSITIVE] Page 60 Police College INV06 INV06 a farmyard, the only question for the court was whether such was a building within the terms outlined in the Theft Act. The defence argued that it was a piece of industrial plant, which could be removed at any time; it rested on railway sleepers and was without permanent or purpose – built foundations and therefore not a building. The court however found that it was a building relying on the following points of fact: a. The container was 25 feet long with 7 feet square cross-section, weighed about three tons and had been in position for 2 to 3 years. b. The owner intended to leave it there for the foreseeable future. It was therefore ‘a structure of considerable time’; c. Its doors were equipped with locks to keep trespassers out; and d. It was connected to an outside source of electricity. Part of a building This is included to cover a situation where, in the same building, a person may have a right to be in one place, but not in another. Example An open plan shop with a central, enclosed till area. People have permission to be in the main part of the shop, but anyone entering the till area without permission would be a trespasser. A no-entry sign or a rope could mark off one part of a building from another. R v Walkington (1979). Example A tenant of a block of flats has a pass – key that provides access to a communal foyer of the block of flats. He uses the pass-key to enter the foyer (entering a building and plainly not a trespasser at this stage). Instead of entering his own flat he forces entry to a neighbour’s flat by breaking down the neighbour’s door that can be accessed via the communal foyer (moving from one part of the building to another in the process and certainly a trespasser at this stage). OFFICIAL [SENSITIVE] Page 61 Police College INV06 INV06 Trespasser This means being there without the consent of a person who can give such consent, or without other lawful authority. This is fairly straightforward. However, a possibility which may be new to you is where a person gains consent to enter premises by deception; in other words, there is no true consent then they are a trespasser. For example, where a person gains entry to a house by pretending to be an official wishing to read a meter, but actually intending to steal. In these circumstances the person is a trespasser. Example Bingham enters a shop to make a complaint to the management. There is no one around, so he enters the manager’s office through a door which states “Private Staff Only“. A heated argument develops and Bingham hits the manager breaking his jaw (burglary, as Bingham was a trespasser). If however Bingham had been invited into the office and then struck the manager breaking his jaw (no burglary, as there is no trespass). As already stated, to sustain a charge of burglary there must be an entry, the next element takes this a step further by saying that the entry must be made by a trespasser. For the purposes of burglary such an entry must be accompanied by mens rea (guilty mind). The defendant must know or be reckless as to the facts which make the entry a trespass. A point to note is that a person may be welcome in one part of a building yet for the purposes of burglary not welcome in another part of the building. Section (9)(1)(a) - Intent ‘at time’ of entry With regard to the intent required for Section 9(1)(a), this requires the accused to have an intention as they enter to commit any of the specified offences. The best evidence is to show the accused has actually carried out the offence but where the offence was not completed or could not be completed the prosecution will have to show evidence of the OFFICIAL [SENSITIVE] Page 62 Police College INV06 INV06 intent. The intentions must be as follows: Intent to steal – This means an intention to commit theft under Section 1 of the Theft Act. The property which the defendant intends to steal must be in a building or part of a building. Intent to inflict grievous bodily harm – The offence in question in respect of a burglary under 9(1)(a) is of grievous bodily harm contrary to Section 18 of the Offences against the Persons Act 1861. Causing unlawful damage – This includes damage, not only to the building but to anything in it. Conditional intent – Provided the required intention can be proved, it is immaterial whether or not there is anything ‘worth stealing’ within the building. R v Walkington (1979). The same will be true if the person whom the defendant intends to cause serious harm to is not in the building or part of the building at the time. Section (9)(1)(b) We will now look at Section (9)(1)(b) which states: A person is guilty of burglary if: Having entered any building as a trespasser,  he steals or attempts to steal anything in the building or that part of it or  Inflicts to attempts to inflict on any person therein any grievous harm. The second type of burglary involves a defendant’s behaviour after entering the building or part of a building as a trespasser. The defendant must have entered the building or part of the building as a trespasser; It is not enough that they subsequently became a trespasser by exceeding a condition of entry (e.g. hiding in the public area of a shop during open hours until the shop closes). However, where a person has entered a particular building (such as a shop or pub) lawfully and without trespassing, if they later move to OFFICIAL [SENSITIVE] Page 63 Police College INV06 INV06 another part of the building as a trespasser, this element of the offence will be made out. Unlike (9)(1)(a), there are only two further elements to the offence under Section (9)(1)(b) – the subsequent theft / attempted theft of anything in the building or part of it, and the subsequent inflicting/ attempting to inflict of grievous bodily harm contrary to Sections 18 or 20 of the Offences Against the Persons Act 1861. It has been suggested that if, having entered as a trespasser a building or part of a building, the defendant commits an offence of criminal damage, then this will be an offence under (9) (1)(b) of the Act as to damage or destroy something is also to steal it. This is not the case. If a person enters in such circumstances and causes criminal damage, there is little argument that such an activity would satisfy part of the offence of theft, i.e. appropriating property belonging to another with the intention of permanently depriving the other of it – but where is the dishonesty? In addition, this would clearly be an unwarranted extension of the burglary offence under Section (9)(1)(b) of the Theft Act 1969. If Parliament wanted such activity to be caught by the legislation, they would have included the offence of criminal damage within the definition of burglary under Section (9)(1)(b). Mode of Trial/Penalty A person is guilty of burglary shall on conviction on indictment be liable to imprisonment for a term not exceeding – a. Where the offence was committed in respect of a building or part of a building which is a dwelling, 14 years. b. In any other case, 10 years. Aggravated Burglary Section 10 (1) Theft Act 1969 A person is guilty of aggravated burglary if he commits any burglary and at the time has with him any firearm, imitation firearm, any weapon of offence or any explosive. The difference between burglary and aggravated burglary is simple. Aggravated burglary OFFICIAL [SENSITIVE] Page 64 Police College INV06 INV06 has exactly the same elements as burglary plus the additional element that at the time of committing the offence, the accused person possessed one or more of the articles listed below: W weapon of offence I imitation firearm F firearm E explosive Weapon of offence - The same as offensive weapon - any article made, adapted or intended for use for causing injury to a person, BUT weapon of offence also includes articles made, adapted or intended for use in incapacitating a person. Imitation firearm - Toy guns, replicas and anything that has the appearance of being a firearm. Firearm - Weapons such as shotguns, airguns, air pistols. This offence does not include references to component parts or accessories. Explosive - Gelignite, grenades, thunder flashes, fireworks etc. and any article for the purpose of producing a practical effect by explosion, or intended by the person having it with him for that purpose. Has with him – ‘Knowingly’ having possession at the time of committing the burglary. If one or two persons commit the burglary and one of them has physical possession of a prohibited article (e.g. a gun) then all who knew of the article are guilty of aggravated burglary. When the article is a ‘weapon of offence’, (e.g. a penknife), which has become such only because the person having it with him intends to use it to cause injury, then his co- defendant must in addition to knowing of the article, also either know of the co-accused’s intentions or have that intention himself. OFFICIAL [SENSITIVE] Page 65 Police College INV06 INV06 Mode of Trial/Penalty On indictment only – life imprisonment. It has now been widely recognised that victims of all crime and in particular burglary, can suffer considerable trauma following an incident in their home. It should be remembered by the investigating officer that victims should be dealt with in a professional and caring manner as most victims of burglary can find great difficulty in adjusting - particularly elderly and vulnerable people who reside alone. OFFICIAL [SENSITIVE] Page 66 Police College INV07 INV07 Investigative Skills Robbery Introduction 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 too put, any person in fear of being then and there subjected to force. Section 8(1) Theft Act (Northern Ireland) 1969 Robbery is a violent form of theft. The term ‘mugging’ is commonly used when people are assaulted and have property stolen from them in the street. There is a great deal of public concern about these incidents, especially if the victims are old or disabled. However, the term ‘mugging’ is a slang expression for the specific offence of robbery. Steals Theft has to be proven. Think of the points to prove for theft. Without a theft there cannot be a robbery. Whether the property is taken away or not is immaterial. Appropriation is enough. Look at the following scenarios and ask yourself if a robbery has occurred. Example 1 Thieves assault a lorry driver in order to gain control of a lorry and its contents but are apprehended before they can drive the lorry away. This is robbery but it must be proved that appropriation had taken place. Immediately before/time of doing so It is necessary for the force to be used there and then at the time of the stealing. Threat of future force is not robbery. OFFICIAL [SENSITIVE] Page 68 Police College INV07 INV07 Example 2 Niblock approaches Robinson and says “Give me your phone or I’ll give you a kicking when you leave the pub tonight”; Robinson hands over the phone. This is not a robbery. The force in this example relates to the future and not then and there. The correct offence would be theft. In order to do so Force must be used or threatened in order to facilitate the theft. The use of force after the appropriation in order to aid an escape would not be robbery. Example 3 Johnston steals Kelly‘s mobile phone then punches Kelly in order to escape. This is not a robbery as the force was used to aid Johnston’s escape and not in appropriating the property. Uses force on any person The force must be directed to the person. Therefore the threat “Give me £100 or I‘ll burn your house down” may not amount to robbery. The force may be directed at a person who is not the victim of the theft. Example 4 Morrison and his wife are confronted by Adams who punches Morrison in order that his wife hands over her jewellery. This is a robbery. Theft has occurred; force has been used on a person. Puts, or seeks to put In a case involving only the threat of force, that intention must be to put a person in fear for themselves not another. An intention to put someone in fear for another person is not sufficient. (R v Taylor 1996) Example 5 Simpson threatens Mo with a knife in order that Mo hands over his wallet. Being in fear, Mo hands over the wallet. This is a robbery. Theft has occurred, and the victim is in fear that force will be used then OFFICIAL [SENSITIVE] Page 69 Police College INV07 INV07 and there. Example 6 Simpson threatens Mo with a knife in order that Mo hands over his wallet. Mo is not frightened by the knife but hands over the wallet any way. This is a robbery. Theft has occurred, even though the victim is not in fear the suspects intention is to put them in fear and that is all that matters. Case Law: R v Clouden Facts The defendant approached the victim from behind whilst she was carrying a shopping basket in her left hand. He wrenched the basket down from her grasp and ran off with it. The defendant was convicted of robbery under section 8(1) Theft Act 1968 and appealed against his conviction claiming the wrenching of the basket did not constitute the use of force on any person and, therefore, the trial judge’s direction to the jury regarding the use of force was deficient. Issues Robbery is an aggravated type of theft and so proof of a theft is necessary together with the use of force on any person immediately before or at the time of the theft under section 8(1) Theft Act 1968. The defendant’s argument that the wrenching of the basket could not amount to the use of force on any person was rejected by the Court of Appeal. There is no distinction to be found between the use of force on a person and the use of force to property which causes force to the person. The question of whether force has been applied is a question of fact for the jury to decide. It was open to the jury to find that the wrenching of a shopping basket from the victim’s hand amounted to the requisite use of force to constitute the offence of robbery. OFFICIAL [SENSITIVE] Page 70 Police College INV07 INV07 Decision / Outcome The defendant’s conviction for robbery was upheld. The wrenching of a basket from a victim’s hand could constitute the requisite use of force under section 8(1) Theft Act 1968. Mode of Trial / Penalty Only triable on indictment – maximum sentence is life imprisonment. Conclusion The victim of a robbery may be injured, shocked or very frightened. Others may have suffered a great financial loss. All victims are now referred to victim support. Most people regard robbery as a serious offence. Throughout your duties you should be trying to help people prevent such crimes taking place. Consider, for example, if it is necessary to carry large amounts of money in public, or why money is collected from a bank at the same time each day. Give advice to people where you can, and if necessary, refer them to your local crime prevention officer. OFFICIAL [SENSITIVE] Page 71 Police College INV08 INV08 Investigative Skills Going Equipped for Stealing Introduction This legislation has been set up as a crime prevention measure. It is aimed at the carrying of implements that a person intends to use to commit specified crimes. The items to which this section applies can be searched for under Article 3-5 of PACE (NI) Order 1989, provided the grounds etc. for the search exist. A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of, or in connection with, any burglary or theft. Section 24(1) Theft Act (NI) 1969 Points to prove and examples ‘if when not at his/her place of abode’: A person’s place of abode is his home. It must be proved that the person was ‘not at his place of abode’; in most cases this will be straightforward. The only difficulty which might occur is in relation to vehicles, guidance in these circumstances is taken from R v Bundy. In 1977 when Dennis Bundy was stopped by police in his car, he had with him some piping, a hammer, a pipe threader and three pieces of stocking. He had been driving around following a woman who was collecting the takings from vending machines in London pubs with the apparent intention of robbing her. He was convicted of going equipped for theft when not at his place of abode. Bundy appealed on the grounds that, since he lived rough in his car, it was his abode. OFFICIAL [SENSITIVE] Page 73 Police College INV08 INV08 But in dismissing the appeal, the court held that his car was his place of abode only when after finding a site he had parked for the night, not when he was in transit. In this case it was decided that were a person drives and lives in the same vehicle it will only be their abode when it is parked at a site where they intend to remain. 'He/she has with him’: This expression is more restrictive than ‘possesses’, there must be actual possession, or Immediately available. The magistrate or jury will decide if an article is immediately available but a general indicator would be the person’s position in relation to the article - how far away it is and how easily he can get it. ‘Any article for use in the course of’: The article a person can have with him can be anything from a screwdriver to a set of skeleton keys. It must be proved that the article was to be used in the course or connection with the offences listed. There is no need to show their use in a particular offence just an intention to commit an offence in the future. There are three categories of articles: Made (a skeleton key). Adapted (sharpened screwdriver, pin from a fire extinguisher with tape around it). Intended (bolt cutters, jemmy, lighter to heat glass). Where an article is made or adapted the court will look upon this as evidence of the person’s intent. The onus is on the accused to provide the court with an innocent explanation. Where an article is not made or adapted, but only intended for use in the offence, the onus is on the police and prosecution to prove the person’s intent with other evidence. OFFICIAL [SENSITIVE] Page 74 Police College INV08 INV08 The article that the offender has with them must be intended to be used in the course/connection with the specified offences. A person found with an article after the offence is not guilty of this offence unless you can prove it was to be used in another future offence. ‘Any burglary or theft’: See lesson notes on burglary and theft for explanation of these offences. The following offences shall be treated as theft for the purpose of going equipped. Taking a motor vehicle without consent (Article 172 Road Traffic (NI) Order 1981) Taking a conveyance without consent (Section 12 Theft (NI) Act 1969) OFFICIAL [SENSITIVE] Page 75 Police College INV09 INV09 Investigative Skills Making Off Without Payment Introduction This offence is often described by the slang term ‘bilking’. The offence was introduced to close a loophole created by the deception offences in the 1969 Theft Act (NI). Simply, you dishonestly make off knowing you should have paid, there is no deception required when committing this common offence. It covers activities such as leaving a restaurant or hotel without paying, not paying a taxi fare and filling up with petrol and driving off. Article 5 (1) Theft (NI) Order 1978 OFFICIAL [SENSITIVE] Page 77 Police College INV09 INV09 Points to Prove and Examples Knowing (with intent to avoid payment) The prosecution has to prove that: The person knew payment was due. There was an intention to permanently avoid payment. Example 1 Frazer collects 200 copies of his office’s monthly report from the printers on the first Monday of the month, the company is billed quarterly. In December there was a special report which he collected as usual believing it was to be included on the quarterly account, it was in fact pay on collection. Frazer did not knowingly leave without paying. Payment on the spot The term ‘payment on the spot’ includes payment at the time of collecting goods on which work has been done or in respect of which service has been provided. Article 5(2) Theft (NI) Order 1978 OFFICIAL [SENSITIVE] Page 78 Police College INV09 INV09 Goods supplied or service done Paragraph (1) shall not apply where the supply of the goods or the doing of the service is contrary to law, or where the service done is such that payment is not legally enforceable. Article 5 (3) Theft (NI) Order 1978 Dishonestly ‘Dishonestly’ is not defined, however Section 2 of the Theft Act (NI) 1969 states: ‘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” 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’. c. If he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. Example 2 Smith appropriates Green’s umbrella in the mistaken belief he owns it. This is not dishonest, as per 2(a). Example 3 Coates and Murray are next door neighbours. Coates runs out of milk and takes a pint from Murray’s doorstep without his knowledge. Coates believes that Murray would allow the taking with regard to the circumstances. This is not dishonest as per 2(b). Example 4 Ownership of a £1.00 coin found in the street is not likely to be established easily, whereas a credit card is identifiable and ownership would easily be determined, as per 2(c). OFFICIAL [SENSITIVE] Page 79 Police College INV09 INV09 Belief It is for the suspect to prove that their belief in any of the above 4 examples was a genuine belief, no matter how foolish that belief was. The final decision on this point will be made by the court. See dishonesty case law on page 40 for further information. A person’s taking of property belonging to another may be dishonest notwithstanding that he is willing to pay for it. A person who takes a bottle of milk from a doorstep but leaves the money is not necessarily to be regarded as honest. Notice that the Act does not say that it will be dishonest, only that it might be. Makes Off The accused must leave the spot where payment was/is required to be made. If all other elements of the offence are present but the person was stopped before they made off, then it may only be an attempt. (R v Brooks 1983). As Required or Expected As in example 1 the prosecution must prove that the defendant knew that payment was expected or required. (R v Brooks 1983). Practical Point You would need to use your discretion, looking at all the circumstances before deciding whether an offence had been committed. If no offence has been committed, what alternative action can you take and what other advice can you offer? OFFICIAL [SENSITIVE] Page 80 Police College INV09 INV09 Consider the following examples? Example 5 A man, having consumed a meal in a restaurant decides that the service and quality of the food was not good enough and refuses to pay. He is still in the restaurant when you arrive. No offence the person has not made off. Example 6 A man, having consumed a meal in a restaurant decides that the service and quality of the food was not good enough and refuses to pay. After an argument with the staff he leaves his correct name and address for the owner to contact him later, but has left when you arrive. No offence, there is no intent to avoid payment. Example 7 A man, having consumed a meal in a restaurant decides that the service and quality of the food was not good enough and refuses to pay. The owner is furious and phones the police as he does so the man leaves. This may be an offence further enquiries are needed. Example 8 A man, having consumed a meal in a restaurant waits until the staff are distracted and then leaves. This is an offence. Refusing to pay a bill in a restaurant is not in itself a criminal offence; it may as in examples 6, 7 & 8, be the result of a dispute over a meal. One of the parties to the dispute may not be satisfied if you say that no offence has been committed. OFFICIAL [SENSITIVE] Page 81 Police College INV09 INV09 The following agencies may be able to give advice to help to resolve the dispute: Citizens Advice Bureau. Small Claims Court. Trading Standards Officer. Make sure that you record details of the action you have taken and advice given in your notebook, as you may be required to give evidence. Please note that you have to be able to show intent to be able to prove the offence of making off without payment. Typically proving the intent of a suspected ‘drive off’ will usually only be achieved through an admission to avoid payment as rarely will their behaviour observed and/or captured on CCTV or other circumstances be sufficient to prove intent. OFFICIAL [SENSITIVE] Page 82 Police College INV10 INV10 Investigative Skills Fraud Introduction The aim of the Fraud Act 2006 is to simplify deception related offences so that prosecuting those involved in fraud is an easier task. Dishonesty is a key element within the Fraud Act. In addition, the Fraud Act criminalises a number of other acts including the offence of ‘possession or control of articles for use in fraud’ and ‘obtaining services dishonestly’ which will be explored in more detail throughout this chapter. Fraud by False Representation (Section 2, Fraud Act 2006) intending by making the representation to make a gain for himself or another, cause loss or expose another to the risk of loss. Section 2 Fraud Act 2006 OFFICIAL [SENSITIVE] Page 84 Police College INV10 INV10 Dishonestly Until recently, to help determine ‘dishonesty’ in relation to fraud, the court ruling in R v Ghosh has been used. This test considered two questions based on objectivity and subjectivity. Following a ruling held in Ivey v Genting Casinos (UK) Ltd 2017, the Supreme Court concluded that the subjective element of the Ghosh test does not correctly represent the law. Therefore, the test for dishonesty should relate to the decisions reached in Royal Brunei Airlines Sdn v Tan 1995 and Barlow Clowes International v Eurotrust International Ltd 2006. This test requires the magistrates/jury to ascertain the defendant’s genuinely held belief of knowledge with relation to the facts (this does not have to a reasonable belief - the question is whether the belief is genuinely held). Once the defendant’s actual state of mind is established, the magistrates/jury will apply the objective standards of ordinary decent people to determine if the defendant’s conduct was dishonest or not. False Representation A representation is false if it is: 1. Untrue or misleading, and 2. The person making it knows that it is, or might be, untrue or misleading. OFFICIAL [SENSITIVE] Page 85 Police College INV10 INV10 Actus reus (guilty act) / The false representation The actus reus of the offence is the making of the false representation. It is irrelevant whether or not loss or gain have been made from the representation. It is the intention to make or the making of the false representation that is important. An untrue statement made in the honest belief that it is in fact true, would not suffice. The representation may be expressed or implied and can be communicated in words or conduct. There is no limit to how it is expressed so can be spoken, written or put on a website. The representation must be a representation as to fact or law, including a representation as to a person’s state of mind. Example 1 - Implied by Conduct A person dishonestly using a credit card to pay for items, hands the card to a cashier without saying a word. By handing the card to the cashier he is falsely representing that he has authority to use it for that transaction. It is immaterial whether or not the cashier is deceived by the representation as the cashier’s state of mind plays no part in the commission of the offence. When a defendant makes a false representation knowing it to be false, or might be, the offence of fraud is complete. Example 2 A representation can be made by omission, for example, by omitting to mention previous convictions or County Court Judgements on an application form. The false representation must concern a fact or law, so a broken promise is not enough. However a statement may be false if it misrepresents the current intentions or state of mind of the person making it or any other person. Example 3 D visits V’s house and tells V that he needs emergency work carried out on his roof. D states that he is in a position to do the work immediately but only if V pays him £1000 there and then. V gives D the money and D then leaves without carrying out the work; the truth of the matter was that D had never intended to carry out the work. Such a ‘promise’ by D would amount to an offence as it involved a false representation i.e. he never intended to keep the promise. The offence is complete the moment the false representation is made. OFFICIAL [SENSITIVE] Page 86 Police College INV10 INV10 then the false representation will be that he had authority to use the card and that the card issuer would honour the transaction (R v Lambie A.C. 449 HL). If the documents are forged then the false representation would be that the document was genuine and would be honoured. If the representation was made in a letter which was discovered during the search of the suspect’s property, then whether it was sent or not may be irrelevant to the fact that the representation was false, dishonest and intended to be sent. Further Examples of False Representation: Case 1 Adam advertises his car for sale. Eve asks to see it. As the car has a nasty scratch on the side of it Adam asks Eve to come and see it at 9pm when it is dark. She does not notice the scratch and buys the car. Adam does not commit fraud by False Representation as he has made no representation to her, whether expressly, impliedly or by conduct. The false impression she gets of the car is due to the dark rather than anything expressed or implied by Adam. The principle applicable here, to which there are exceptions, is that silence will not generally count as a representation. Case 2 A 16 year old boy tells a publican that he is 18 years old in order to get a beer in a pub. The representation is by words and as to facts, namely that he is 18. This representation is false. This statement amounts to fraud because he makes the statement ‘intending to gain for himself’ (a pint of beer). Note that the fraud is made out although there is no specific financial trickery involved and there is no loss to the bar. OFFICIAL [SENSITIVE] Page 88 Police College INV10 INV10 Case 3 A, who is emigrating to Australia at the end of the month, needs money to pay for his flight. He asks his bank manager for an overdraft, telling him that he intends to pay off the overdraft in the next 6 months. In this case an express representation is made as to A’s state of mind. This refers to his future intentions, namely to pay off the overdraft. He makes another express representation as to his state of mind, namely that he intends to stay in the country. Both these representations are false and they are both made with the intention of making a gain for himself (the overdraft). Fraud by failing to disclose (Section 3, Fraud Act 2006) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and intends, by failing to disclose the information, to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss. Section 3 Fraud Act 2006 OFFICIAL [SENSITIVE] Page 89 Police College INV10 INV10 Points to Prove and Examples The term ‘legal duty’ has not been defined but includes duties under oral contract and written contract. The following are examples of legal duties: 1. Statue law creates a relationship such as between a government tax department and an individual. 2. Where the transaction is one of the utmost good faith - such as a contract of insurance or doctor and patient. 3. Express/implied terms of a contract - a contract between persons involved in business. 4. Custom of a particular trade or market. 5. The existence of a fiduciary relationship between parties - this relates to the responsibility of a person to look after someone else’s money in a correct way e.g. an accountant and client or solicitor and client. The legal duty to disclose will exist if: a. the defendant’s action (failure to disclose) give the victim a cause action for damages, or b. the law gives the victim a right to set aside any change in their legal position to which they may consent as a result of the non-disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with their beneficiary, and by failing to disclose, the beneficiary can be entitled to rescind the contract and reclaim a property transferred under it. This type of fraud occurs when a defendant fails to disclose material facts. To establish this, the prosecution has the burden of proving each of the following elements by clear and convincing evidence:  The defendant failed to disclose one or more material facts about a particular matter;  The defendant had actual knowledge of the fact(s); OFFICIAL [SENSITIVE] Page 90 Police College INV10 INV10  The defendant’s failure to disclose the fact(s) caused the victim to have a false impression;  When the defendant failed to disclose the fact(s), the defendant knew the failure would create a false impression;  When defendant failed to disclose the fact(s), he intended that victim would rely on the resulting false impression. The victim did rely on the false impression and took subsequent action based on the false impression. For example, where a defendant sells a victim a car where the defendant knows the odometer had been rolled back, but the defendant does not mention to the victim that the odometer is not accurate, the defendant knows that it is highly probable that the victim would rely upon the mileage figure from the odometer in making the decision to purchase the car. It is likely that the defendant’s silence under these circumstances would support a subsequent prosecution for failing to disclose. The legal duty is not a civil or moral duty. Fraud by Abuse of Position (Section 4, Fraud Act 2006) People in positions of trust can advance their own interests or damage the interest of others without having to enlist the victim’s co-operation in order to secure the desired result. OFFICIAL [SENSITIVE] Page 91 Police College INV10 INV10 Definition occupies a position in which he is expected to safeguard, or not 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. A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act. Section 4 Fraud Act 2006 Points to Prove and Examples This section applies in situations where the defendant has been put in a privileged position, and by virtue of this position is expected to safeguard another’s financial interests or not act against those interests. The Law Commission explained the meaning of ‘position’ as the necessary/relationship will be present between trustee and beneficiary, director and company, professional person and client, agent and principle, employee and employer or between parties. It may otherwise, for example within a family, or in the context of voluntary work, or in any context where the parties are not at arm’s length. The term ‘abuse’ has not been defined and in addition, the offence can be committed by an omission. The following examples provide details of ‘abuse’ and ‘omission’. OFFICIAL [SENSITIVE] Page 92 Police College INV10 INV10 Examples:  An employee of a software company who uses his position to clone software products with the intention of selling the products on would commit an offence under this section.  Another example covered by this section is where a person who is employed to care for an elderly or disabled person has access to that person’s bank account and abuses his position by transferring funds to invest in a high-risk business venture of his own.  Adam who lives with his mother who suffers from dementia collects her pension weekly and uses it against all household expenses. He also gives £5 of it to charitable causes each week.  David who is Michael’s selling agent for rugby balls also runs a coaching school for young rugby players on the side. He gives preferential credit terms with his discretion as a selling agent on rugby balls to those who sign up for his coaching school.  An estate agent values a house belonging to an elderly person at an artificially low price and then arranges for his brother to buy the house.  A person who is employed to care for a disabled person and has access to that persons bank account, abuses his position by transferring funds to invest in a high risk business venture of his own. Possession or Control of Articles for Use in Fraud (Section 6, Fraud Act 2006) A person is guilty of an offence if he has in his possession or under his control any article for use in the course of or in connection with any fraud. Section 6 Fraud Act 2006 OFFICIAL [SENSITIVE] Page 93 Police College INV10 INV10 Points to Prove Just as with burglary and theft it is also possible for a person to commit an offence if they are ‘going equipped’ to carry out a fraud, rather than actually committing the fraud itself. Possession has three parts: 1. Immediate control over the article e.g. in the pocket of some clothing. 2. Knowledge of the existence of the article. 3. The article can be used in the course of, or in connection with, a fraud or under his/her control. Control has a wider meaning than possession: 1. Physical control over an article but from a distance e.g. in a lock up garage, another room, or in the innocent possession of a person. 2. Knowledge of the existence of the article. Any article for use in the course of or in connection with any fraud: the list is not exhaustive and includes anything that can be used to carry out a fraud, e.g. clothing to imitate company representatives, documents to assume another identity, credit cards, cheque books, shopping bags, till receipts, false identity cards, passports, driving licences, skimming devices and many other objects and articles. It also includes any computer program or any data held in electronic form. These articles also fall into the three categories mentioned above in reference to the three forms of possession. Remember unlike Section 24 Theft (NI) Act 1969 (going equipped) this offence can take place ANYWHERE including when articles are located in the person’s home. OFFICIAL [SENSITIVE] Page 94 Police College INV10 INV10 Making or Supplying Articles for Use in Frauds (Section 7, Fraud Act 2006) knowing that it is designed or adapted for use in the course of or in connection with fraud; or Section 7 Fraud Act 2006 Points to Prove Making an offer to supply would not require the defendant to be in possession of the article. An ‘article’ means any article for use in fraud. It also includes any program held in electronic form such as a computer program that generates credit card numbers or a computer file that contains lists of other people’s credit card details. OFFICIAL [SENSITIVE] Page 95 Police College INV10 INV10 Obtaining Services Dishonestly (Section 11, Fraud Act 2006) A person is guilty of an offence under this section if he obtains services for himself or another by a dishonest act; and The services obtained: he obtains them without any payment having been made for or in respect of them or without payment having been made in full; and when he obtains them, he knows: that they might be, Section 11 Fraud Act 2006 This is a ‘result’ offence and requires the actual obtaining of the service. However, unlike other fraud offences, there does not need to be a fraudulent representation or deception. An example would be a person climbing over the wall of a football ground to watch the match without paying. OFFICIAL [SENSITIVE] Page 96 INV11 Investigative Skills Handling Stolen Goods Introduction The key part of this offence is that a ‘theft’ must be finalised before any consideration can be given to ‘handling stolen goods’. It must be shown that the suspect ‘knew or believed’ the goods to be stolen; mere suspicion is not enough. This offence can be deemed more serious than theft as the maximum sentence for theft is 10 years whereas it is 14 years for handling. Points to Prove Goods must be stolen. Dishonesty. Handling/Receiving/Assisting/Acting for another’s benefit. Arranges to do so. OFFICIAL [SENSITIVE] Page 98 INV11 Key Learning Point In simple terms, the offence can be divided into two parts: The defendant acts for his/ her own benefit – (receiving/ arranging to receive stolen goods) The defendant acts for the benefit of another person (all other elements of the offence) Goods This “includes money and every other description of property except land, and includes things severed from the land by stealing.” Whether goods are stolen or not is a question of fact for a jury or magistrate(s). Stolen Goods Obtained in Northern Ireland:  Goods obtained by fraud and blackmail are included in this definition.  Goods obtained in a foreign country if the offence committed in that country would constitute an offence in Northern Ireland. (Goods obtained in the rest of the UK are also covered) Otherwise than in the Course of Stealing The original ‘thief’ cannot be convicted of ‘handling’ in relation to contact with the goods at the time of the offence of theft. The original ‘thief’ can later become connected to ‘’handling’ if the thief takes part in a separate transaction for the retention, removal, realisation or disposal of the goods provided it is ‘by or for the benefit of another person’. OFFICIAL [SENSITIVE] Page 99 INV11 Receiving Control or possession of stolen goods must be obtained from another to prove receiving. Simply finding goods does not cover the aspects of ‘receiving’. Example Your friend steals a watch and gives it to you. The ‘receiver’ knows that the watch was stolen but decides to wear it. The ‘receiver’ enjoys the benefits of the stolen watch and is guilty of ‘handling’. A person may receive goods knowing or believing them to be stolen and yet not be guilty, if for example, the person intends to return them to the true owner or to Police. Whether there is dishonesty is a question of fact for the jury in each case, as in theft. To receive does not require actual physical reception of goods. Receiving can extend to exercising control over them, e.g. things in action such as bank cards. Example Owen allows Fred to store stolen goods in his warehouse knowing that they are stolen. Owen is ‘receiving’ the goods as he now has exclusive control over the property. Arranging to Receive The goods must actually be ‘stolen’ at the time of the arrangement and the arrangement must be a concluded agreement, e.g. the arrangement has a definite date, time, price, etc. Example Steven has carried out a theft and has the stolen goods in his van. He agrees with Jill to take the goods to her garage where they will be stored. Jill is guilty of ‘arranging to receive the goods’ even if the goods were not subsequently delivered to her garage. OFFICIAL [SENSITIVE] Page 101 INV11 Undertaking for the Benefit of Another There are a number of ways in which the goods may be treated. This involves the actual undertaking of retaining, removing, disposing, or realising the stolen goods for the benefit of someone else. “Undertaking” is intended to refer to one who acts on his own. Example: Emma sells a lorry load of whiskey on behalf of Nigel (the thief). This would be undertaking the realisation of the goods for the benefit of another (Nigel). The same principle would apply to undertaking the goods retention, removal or disposal. In simple terms, ‘realisation’ is the selling of the stolen goods. Assisting for the Benefit of Another This involves the offender giving assistance to another person, e.g.- the thief, who is undertaking the retention, removal, disposal or realisation of stolen goods. The offender has to do something which enables the goods to be retained, etc., whether or not this is successful. There does not have to be physical assistance given; a mere offer to lend a vehicle to move stolen goods will suffice. The person benefitting from the defendant’s action must be ‘another’. If by the defendant’s actions, they are the only ones benefitting, then this would not be handling (R v Kanwar 1982). Examples: Tom assists in the retention of stolen goods by another if he puts Roy (the thief) in touch with the owner of a warehouse. Sam assists in the removal of stolen goods by another if he lends Ricky (the thief) a lorry for their removal. Paul assists in the disposal of stolen goods by another if he advises Trevor (the OFFICIAL [SENSITIVE] Page 102 INV11 thief) how to get rid of the goods. Steven assists in the realisation of stolen goods by another if he puts a buyer in touch with Tim (the thief). Retention/Removal/Disposal/Realisation Examples: Retention: store the stolen goods or keep them. Removal: transport the stolen goods from one location to another. Disposal: get rid of the stolen goods by destroying them (changing number plates on a vehicle). Realisation: to exchange the stolen goods for money or other property. By or for the Benefit of Another The retention, removal, disposal or realisation must be done solely for the benefit of another person. Even if the person undertaking/ assisting in the retention of stolen goods gets paid, it will still be ‘by or for the benefit of another’. When goods cease to be stolen When they have been recovered by Police When they have been recovered by the owner When they pass onto someone who does not know or believe them to be stolen Example Alan sells a computer, which he knows is stolen for £300 to George. George knows the computer is stolen £300 and the computer are stolen (George has received the goods knowing they are stolen and the £300 received by Alan is also stolen goods) Example Alan pays a debt of £150 to Francis who knows how Alan got the money. The £150 that Alan has is still ‘stolen goods’ along with the £150 that Francis now has. Examples OFFICIAL [SENSITIVE] Page 103 INV11 George gives the computer to his nephew John who does not know how George got the computer. The computer in the hands of John is no longer stolen goods. Additional reading There are some additional options and powers open to Police when dealing with this offence. A brief overview is provided but please read the legislation for full details. With regards to proving that a suspect believed or knew the goods to be stolen, in certain circumstances, previous incidents/ convictions for theft or handling can be used. Theft Act (Northern Ireland) Section 26, sub-section 4 Stolen goods can be proved by taking a statement from the owner in which they state the details of the theft. Dishonesty can be proved by showing the handler had no claim of right to the stolen goods or that the owner had not given the accused any authority to handle the stolen goods. Theft Act (Northern Ireland) Section 26, sub-section 5 There is a power of search to look for stolen goods. A warrant can be obtained that grants power to enter and search a premise/s for said items. Theft Act (Northern Ireland) Section 25 OFFICIAL [SENSITIVE] Page 104 INV12 Investigative Skills Criminal Damage Introduction A large number of criminal damage offences are reported to the police every day. On average there are 21,000 reported incidents of criminal damage and arson reported to police in Northern Ireland every year. Statistics indicate that many offences of criminal damage never get reported to the police. Criminal damage is the largest offence committed under the umbrella of what police call “volume crime”. This is a group of offences which include burglary and theft. As police officers it is important that we are able to identify the offence and are familiar with the various elements. The law on this subject is contained in the Criminal Damage (NI) Order 1977. A person who without lawful excuse, destroys or damages any property belonging to another intending to destroy or damage any such property, or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. Article 3(1) Criminal Damage (NI) Order 1977 Without lawful excuse Damage becomes an offence when committed without lawful excuse. A person is deemed to have lawful excuse if: (a) if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances; or OFFICIAL [SENSITIVE] Page 106 INV12 (b) if he destroyed or damaged or threatened to destroy or damage the property in question or, in the case of a charge of an offence under Article 5, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed— (i) that the property, right or interest was in immediate need of protection; and (ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances. Article 7 Criminal Damage (NI) Order 1977 The two key elements of the lawful excuse are Permission and Protection. Permission – An example would be a police officer being asked to help a motorist into his / her car who has locked their keys inside. Whilst doing this you damage the rubber surround at the window. The defence for you being: You gained consent from a person whom you believed to be entitled to consent to that damage. The circumstances under which it was caused. Protection – This is basically causing damage to property in order to protect other property. The key features here are: The immediacy of the need to protect the property. The reasonableness of the means of protection adopted. OFFICIAL [SENSITIVE] Page 107 INV12 Belief It is immaterial whether a belief was justified as long as it was honestly held!! An example of this is the case of a woman who broke a window to get into a house. Being intoxicated at the time she had got the wrong house. The court held that her belief at the time had been honestly held and it was irrelevant whether the belief held was brought about by intoxication, stupidity, forgetfulness or inattention (Jaggard vs Dickinson 1981). It will be for the court to decide. Remember if you caught someone in a house who was a prolific criminal with previous convictions for similar offences, would the defence be relevant? Owned There is no offence if the person acts in the honest though mistaken belief that the property is their own. R v Smith 1974. Destroys The court would state that the property would be rendered “useless” It can also mean:  pull down/demolish structures  lay waste to crops  break up machines  deprive animals of life Damages To ‘damage’ property has a much wider meaning. It can mean that the property has been harmed, made less useful, made less valuable, made unworkable, or just defaced such as by graffiti. The damage does not have to be permanent in fact it can be temporarily damaged, however it must render the property: imperfect inoperative less valuable OFFICIAL [SENSITIVE] Page 108 INV12 Property The damage must be to something ‘real’; that is, something that you can touch i.e. ‘property of a tangible nature’. It can be land (‘real estate’) or personal items including money (e.g. a wad of bank notes). It includes wild animals kept in captivity (but not wild flowers). Criminal damage also includes destroying an item (i.e. the property is no longer any use and cannot be repaired). The cost of such ‘damage’ would be the cost of replacing the item. It is possible for a person to criminally damage their own property but only if it also belongs to somebody else (e.g. if the property is jointly owned). Example: Land and things attached to it are property that can be damaged, such as trampling flowerbeds, digging up cricket pitches and chopping down trees in a private garden. Belonging to Another Property will be treated as belonging to any person:  having the custody or control of it,  having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or  having a charge of it. Proprietary Right or Interest This could cater for jointly owned property, therefore a joint owner whether in marriage or otherwise could be convicted of destroying or damaging partnership property. Intending In this context, intentional means deliberately meaning to destroy or damage the property of another. If the object is to damage another’s property, it does not matter if that particular person’s property is actually damaged, as long as it is another’s property. OFFICIAL [SENSITIVE] Page 109 INV12 Arson Arson is destroying or damaging property by fire. For a person to be found guilty of this offence at least some of the damage must have been caused by fire (excluding smoke damage). For the offence to be proven there must be intent or an element of recklessness in relation to the use of fire. If the offence of arson is tried summarily the maximum penalty is six months imprisonment and/or a fine. If tried on indictment the penalty can be life imprisonment. Possession of Articles A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it: to destroy or damage any property belonging to some other person; or to destroy or damage his own or the user’s property in a way which he knows is likely to endanger the life of some other person, shall be guilty of an offence. Article 5 Criminal Damage (NI) Order 1977 The key element here is intention. This time the required intention is that the article is to be used to cause criminal damage to another’s property or the defendants own property in a way which he / she knows is likely to endanger the life of another. Lawful Excuse The lawful excuses outlined earlier in the notes are applicable to this offence but only if the offence was one which did not involve endangering the life of some other person. OFFICIAL [SENSITIVE] Page 111 INV12 Power of Search Article 3-5 PACE (NI) Order 1989 provides a power of stop, search and seizure for offences under the Criminal Damage (NI) Order 1977. Power of Arrest Article 26 PACE (NI) Order 1989, Arrest without warrant -subject to necessity criteria Offence/penalty/mode of trial - Summary: 2 years. On indictment: 14 years. Triable either way. A Person who without lawful excuse makes to another a threat, intending that the other would fear it would be carried out: To destroy or damage any property belonging to that other, or a third person Or To destroy or damage his own property, in a way which he knows is likely to endanger the life of that other, or a third person, shall be guilty of an offence. Article 4 Criminal Damage (NI) Order 1977 OFFICIAL [SENSITIVE] Page 112 INV12 Threats to Destroy or Damage Property Therefore, you can commit an offence of ‘threats to damage property’ even though you are threatening to damage your own property. Again ‘likely to endanger the life’ is an important element in that case. It does not matter how the threat is received; a letter, a telephone call, a verbal threat or any other means of conveying a message from one to another will suffice. It is interesting to note that the victim of the threat does not have to believe the threat would be carried out. It is sufficient for the person threatening to intend that the victim would fear it would be carried out. OFFICIAL [SENSITIVE] Page 113 Police College INV15 INV13 Investigative Skills Misuse of Drugs and Psychoactive Substances Introduction The misuse of drugs is a problem of modern society and is often the root cause of other crimes. There are many reasons why people take drugs, ranging from the wish to be rebellious or shock, to belong to a group, to escape problems, or simply because it seems like fun. In addition to the potential damage to the individual’s health, there are wider social and criminal dangers resulting from drug-influenced behaviour or crimes such as burglary and prostitution which are undertaken to finance a drug habit. Drug abuse is widespread throughout Northern Ireland and is not confined to any particular geographical area or to individuals in any particular section of society. The main legislation dealing with drugs is the Misuse of Drugs Act 1971. There are numerous drugs that are controlled by the Act, and may be added to when necessary by issuing new regulations. The police are not expected to have an in depth knowledge of the range of drugs on the market but should be aware of the common drugs. This Act creates many offences in relation to illegal manufacturing, importing, supplying and possession of ‘controlled drugs’. However, during the course of your duties you are most likely to encounter offences concerned with the possession of controlled drugs and these notes will concentrate on that particular aspect. Recognition It is extremely difficult to differentiate between ‘controlled drugs’, ‘non-controlled drugs’, and other ‘harmless substances’. Accompanying circumstances, such as apparent drunkenness without any smell of intoxicants, may create a reasonable suspicion that controlled drugs are being abused. Always bear in mind that a person may be suffering from some illness that causes similar symptoms. An essential part of the evidence in any drug offence is to prove that the substance is a OFFICIAL [SENSITIVE] Page 115 Police College INV15 INV13 controlled drug, or contains a controlled drug. Consequently, substances, which are suspected of being a controlled drug, must be analysed by forensic scientists, who certify their findings for the court. Never try to make your own identification by tasting a suspect substance; it is of no evidential value and is dangerous. The controlled drugs are listed in the Misuse of Drugs Act 1971, and regulations made there under. However, the list can be altered when necessary by the issuing of new regulations. Classes of Drugs Controlled drugs are classified as Class ‘A’, ‘B’ or ‘C’, according to their toxicity. Many of these drugs are known by their slang names but these differ from area to area and change frequently, officers should therefore make themselves aware of local slang terminology. Class A Narcotics: (sleep inducing) Includes opium, morphine, and heroin. Heroin: A white powder that can be sniffed, smoked or melted and injected. It is an opium-based painkiller, mentally and physically addictive; it gives feeling of contentment and invincibility, but can cause nausea and overdosing can be fatal. Cocaine: Is available as a white powder, which is usually sniffed, or crack, a crystal form that can be smoked. Both are very expensive and the effects short-lived. It gives a feeling of confidence and energy and can be both mentally and physically addictive. It is not sleep inducing. Hallucinogens: (LSD, Ecstasy, Liberty Cap Mushrooms) LSD: A psychedelic drug that causes hallucinogenic trips that can be wonderful or terrible. It is taken in minute quantities by a pill or tab of impregnated blotting paper. Not a drug we see a lot of. OFFICIAL [SENSITIVE] Page 116 Police College INV15 INV13 Ecstasy: Tablets or capsules containing methylenedioxy methylamphetamine (MDMA), and is often mixed with other substances. Effects include euphoria, benevolence and heightened perceptions, but it can cause nausea, dehydration and anxiety. Liberty Cap Mushrooms: (magic mushrooms). These contain hallucinogenic drug psilocybin; tablets made from this drug are classified. Not a widely used drug, just possession is an offence. Effects depend on the quantities eaten, but range from happiness to hallucinations. Class B Amphetamines: These drugs stimulate the activity of the central nervous system and raise energy levels but are followed by lethargy and depression. Can be psychologically addictive. They are widely used and not difficult to obtain. The stimulant is sniffed or injected in powder form or ingested as a pill. If it is made in the form of an injection it becomes a Class A drug. Barbiturates: Used as sleeping tablets, anaesthetics, anti-convulsants and for migraine relief. They depress the central nervous system but can vary extensively in effect, duration and toxicity. Far fewer are now prescribed, because of dependence problems. Abusers feel relieved of fears, tension and anxiety. Note: Phenobarbitone is widely used in the treatment of epilepsy and the National Society for Epilepsy recommend that people with epilepsy using this for treatment should carry a statement to that effect. However a person not carrying such documentation may be epileptic. Particular care therefore must be taken to ensure that no action is taken which might result in a person with epilepsy being deprived of their medication. Cannabis: Resin or herbal. The brown resin is usually smoked when mixed with tobacco in reefers or joints, or cooked in food. The flowering heads and leaf are also smoked. Effects include relaxation, a sense of well-being, heightened perceptions and paranoia. Cannabis is not physically addictive, but users can become psychologically dependent. OFFICIAL [SENSITIVE] Page 117 Police College INV15 INV13 As can be seen there are really 3 offences within Section 4(3). In order to establish any of these offences the elements highlighted have to be proven. Aggravation of Supplying If the transaction occurs in or near a school when being used by children or young people or within 1 hour of any such time OR The person causes or permits a child or young person under 18 years to deliver a controlled drug to a third party Points to Prove Before a person can be convicted of an offence under 4(3) (b) or (c) the prosecution must prove the following: The supply or offer to supply. The participation of the accused in the above. The accused had knowledge of the enterprise Meaning of Terms Supply ‘Supply’ in its ordinary natural meaning, conveys the idea of furnishing or providing to another something which is wanted or required in order to meet the wants or requirements of that other. Clearly there is a problem where a person who owns the drugs hands them over to another for that person to do as they wish. There is no requirement for proof of payment or reward. This is an offence. Offer to supply An offer may be by words or conduct, and it is clear that the offence is complete when an OFFICIAL [SENSITIVE] Page 119 Police College INV15 INV13 offer is made irrespective of whether or not the offer could or would be carried out. Controlled drug In all cases where there is a substance alleged to be a controlled drug a statement will be required from an forensic analyst to prove it is a controlled drug. The class of drug is important in court as the penalty imposed varies depending on the class. Another This is simple, there must be evidence that the supply or offer to supply was made to some other person. It is an offence for a person: to supply or offer to supply a controlled drug to another, or to be concerned in the supplying of such a drug to another, or to be concerned in the making to another an offer to supply such a drug; Section 4(3) Misuse of Drugs Act 1971 Examples Example 1 Greene gives out controlled drugs at his 18th birthday. This is a straight forward supply. Example 2 Hanna is asked to look after controlled drugs by a friend for a couple of hours and then return them, this he does. Hanna had control of the drugs and supplied his friend. Example 3 Jones offers to sell Patton a quantity of heroin, unknown to Jones it is in fact cocaine. The type of drug is irrelevant the offence is in the offer to supply. OFFICIAL [SENSITIVE] Page 120 Police College INV15 INV13 Example 4 Jones offers to sell Patton a quantity of cocaine. Unknown to Jones, it is in fact plain flour. The type of substance is irrelevant. The offence is in the offer to supply. Example 5 Jones texts Patton offering a quantity of cocaine. Unknown to Patton, Jones has no intention of carrying out the offer and in fact has no means of doing so. The intention of Jones is irrelevant. The offence is in the offer to supply. This offer can be in the form of words or writing. i.e. text, email or social media etc. Unlawful Possession Section 5 of the Act creates two offences: It is an offence for a person to have a controlled drug in his possession. Section 5(2) Misuse of Drugs Act 1971 It is an offence for a person to have a controlled drug in his possession, whether lawfully or not, with intent to supply it to another. Section 5(3) Misuse of Drugs Act 1971 Points to Prove Possession For the purposes of this Act the things which a person has in his possession shall be taken to include anything subject to his control which is in the custody of another. Section 37(3) Misuse of Drugs Act 1971 Stated Cases There are many stated cases on the interpretation of the word possession. Clearly if you find someone with controlled drugs physically on them or stashed nearby then they have possession. Proving that the person had possession of the substance could be OFFICIAL [SENSITIVE] Page 121 Police College INV15 INV13 established in many ways such as by admission and handing it to you; by your finding it in a search of clothing or possessions, or by questioning and observation. Evasive answers to questions, carrying tablets loose in a pocket or in a twist of paper will all help you to draw the inference that the person is not in lawful possession. Where a person possesses a container and he knows he possesses the container then it must be assumed that he possesses what is in the container. With joint possession you require evidence that the person(s) without physical possession was aware of the existence of the drug and could exercise the same control over it. ‘Mere knowledge of the presence of a drug in the hands of a confederate is not enough’. Court of Appeal (Searle) Intent to supply The Court of Appeal in Greenfield made it clear that ‘intent to supply’ means ‘an intent on the part of the possessor of the drugs to supply’. Prove possession, then intent by way of: Interview Quantity Witness Defence General defence In any proceedings for an offence under Section 5(2) where it is proved that a person had possession of a controlled drug it shall be a defence if they prove to the court: a. that, knowing or suspecting it to be a controlled drug, he took possession of it for the purpose of preventing another from committing or continuing to commit an offence in connection with that drug and that as soon as possible after taking possession of it he took all such steps as were reasonably open to him to destroy the drug or to deliver it into the custody of a person lawfully entitled to take custody of it; or OFFICIAL [SENSITIVE] Page 122 Police College INV15 INV13 b. that, knowing or suspecting it to be a controlled drug, he took possession of it for the purpose of delivering it into the custody of a person lawfully entitled to take custody of it and that as soon as possible after taking possession of it he took all such steps as were reasonably open to him to deliver it into the custody of such a person. Examples Section 5(4) Misuse of Drugs Act 1971 A father finds his son in possession of a controlled drug and takes it from him. He then immediately throws the drug into the fire. A school teacher comes into possession of some cannabis abandoned by a pupil in panic, during a spot check by staff. The teacher then contacts the neighbourhood police officer and hands over the drugs. General Defence Section 28 creates several defences that can be availed of by persons charged with offences under the Misuse of Drugs Act including Section 4(3) and Section 5(2) and 5(3). Section 28(2) The first defence is based upon a person’s lack of knowledge of a fact, which the prosecution must prove to secure a conviction. Example Smith and Weston are walking together in the street when a police constable approaches them. Smith is carrying a small packet of cannabis and, to avoid being found in possession of it, he slips the packet into Weston’s pocket without her knowledge. ‘Knowledge’, in this case, is a fact the prosecution has to prove for an offence of unlawful possession. OFFICIAL [SENSITIVE] Page 123 Police College INV15 INV13 Weston may avail of the defence if she can prove 3 things: She did not know about the drug. She had no suspicion she had the drug. She had no reason to suspect s

Investigative Skills: Theft and Burglary PDF

Document Details

Tags

Related

Summary

Full Transcript

Upgrade to continue