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what are the points ro prove for theft and criminal damage?


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#1 N1kki

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Posted 21 June 2009 - 05:17 PM

can anyone elaborate on these points?i know there are certain points to prove the act has taken place on both,i am just wondering can anyone give me a little more info i am into my first weekend of training and a little confused. :(

Edited by N1kki, 21 June 2009 - 05:18 PM.


#2 daveywavey36

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Posted 21 June 2009 - 05:38 PM

I know my reply applies to Scots Common and Statute Law but methinks the points to prove are very much the same:

THEFT

Is a crime at common law and is the taking and appropriating of property without the consent of the rightful owner or other lawful authority.

Essentials of theft

- appropriation of property (taking, finding or other action to deprive)
- taking was felonious (no lawful authority to take)
- intent to deprive rightful owner (permanently or temporarily unauthorised)
- property belonged to another

What can be stolen

- belonging to someone else and
- be a physical thing and
- be able to be moved

Police Powers & related charges – Caution/charge accused with crime of theft (arrest prior to C&C may be appropriate dependant on value/severity and if any aggravations are applicable when custody may also apply).


VANDALISM & MALICIOUS MISCHIEF (Criminal Damage)

Vandalism - Section 52 of Criminal Law (Consolidation) (Scotland) Act 1995
a) wilfully or recklessly
b) destroy or damage
c) the property of another
d) without reasonable excuse

Essential elements
- intent to damage property
- there must be damage
- damage/destruction to property not belonging to accused

Police powers – silent, arrest if in the interests of justice to do so

Malicious Mischief

Is a crime at common law - wilful
- wanton
- malicious destruction of/or
- damage to
- the property of another

Essential element – there must be malice, whether intentional or inferred

Police powers – Caution/charge accused with crime of malicious mischief (arrest prior to C&C may be appropriate dependant on value/severity and if any aggravations are applicable then custody may also apply).

Obviously the police powers bit will be different, but hey ho.

#3 Sam Vimes

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Posted 21 June 2009 - 05:55 PM

Further to the above;

Theft (section 1 Theft Act 1968)

It is an offence for a person to:-
:: Dishonestly
:: appropriate
:: property
:: belonging to another
:: with the intention of permanently depriving the other of it.

Dishonestly - it is not dishonest if a person has a genuine belief (the belief is a subjective test, i.e. did that person know it was dishonest) that:-
:: he had a legal right to the property, whether legal right exists or not is not the issue, or
:: the other person would consent if he knew of the taking the circumstances of it, or
:: the owner could not be traced by taking reasonable steps, (a matter for a court to decide)

Appropriate - assumption of the right of the owner, an objective test, except where he gives value for the property and acts in good faith. (i.e. treating the property as if you were the owner)

Property
Property means property of a tangible nature including :
:: money
:: wild creatures which have been tamed or kept in captivity
:: wild creatures or their carcasses if they have been reduced or are in the course of being reduced into possession which has not been lost of abandoned.
It does not include mushrooms, fungi, flowers, fruit or foliage from plants growing wild on any land
Property includes money and all other property, real or personal, including thing in action (such as a cheque) and intangible items such as stocks and shares. A person cannot however steal the following:
:: land or things forming part of the land (unless where a person in in lawful possession of the land and authorised to sell or dispose on behalf of another)
:: mushrooms or other fungi gorwing wild unless picked for finanical gain or commercial purposes
:: flowers, fruit, foliage etc growning wild unless picked for financial gain or commercial purposes (i.e. you cant pick berry's growing wild on someone's land if you intend the sell them for profit)
:: untamed wild creatures not normally kept in captivity.

Property belongs to another if they have possession/custody, control or a propriatary right or interest. A joint owners can damage or steal property belonging to himself and another.


Criminal Damage (section 1(1) Criminal Damage Act 1971

It is an offence for a person
:: without lawful excuse
:: to destroy or damage
:: 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.

Lawful excuse, property, belonging to another are all as per theft.

Destroy or damage is pretty self explanatory, but the damage need not be permanent.

Hope that helps a little.

#4 Kevinl03

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Posted 21 June 2009 - 05:57 PM

Theft,

-dishonestly appropriates
-property
-belonging to another
-with intent to permanently deprive the other of it

Criminal damage,

-without lawful excuse
-damages or destroys
-property belonging to another
-INTENDING to damage or destroy the property OR
-being RECKLESS as to whether the property would be damaged or destroyed

From memory, think it's pretty much all there

EDIT: beaten to it by Gizzer, glad to see I got it right though!

Edited by Kevinl03, 21 June 2009 - 05:58 PM.


#5 Special Munky

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Posted 24 June 2009 - 11:50 AM

Police powers – silent, arrest if in the interests of justice to do so


Sorry Davey, but can you explain what 'silent' means in this context?

#6 daveywavey36

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Posted 24 June 2009 - 02:22 PM

Sorry Davey, but can you explain what 'silent' means in this context?


Silent power of arrest is a nice wee quirk of Scots Law and here is a better description:

Silent in relation to power of arrest
Where legislation does not give guidance on the matter, you can revert to your common law powers of arrest i.e. a person found urinating in public and refuses to give name/address can be arrested using common law powers.

Here's the rest:

Power of arrest for common law crimes

C - you see COMMITTING a common law crime
A - who is ACCUSED by an apparently credible witness of having shortly before committed a
common law crime
R - whom you see RUNNING away from the scene of crime pursued by others
L - threatening danger to the LIEGES (the public)
O - who is OFFENSIVE to public decency

Apprehending for minor common law crimes

R - prevent REPETITION or REFUSAL to desist
A - no fixed ABODE
I - INTERESTS of offender and/or public for offender to be restrained for a time
S - not SATISFIED with name and address (cannot be confirmed, possibly false)
E - prevent EVADING justice (run away etc)

Statutory Arrest - as it says on the tin so to speak, in accordance with statute.

Basic premis is we don't use the word 'arrest' for everything, depending on offence and circumstances, simple reporting for summons/fiscal fine etc (i.e. urinating in public and offender is compliant).

Always knew keeping a summary of my college notes would come in handy, helps me remember in my advancing years. If you would like a copy, they will give you a flavour of the similarities and differences based on the fact a great deal of our offences are commited contrary to common law. The usual ASB etc.

Dave

Edited by daveywavey36, 24 June 2009 - 02:34 PM.





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