Problem question theft and duressWatch this thread
Helene ran the finances for Irma’s art gallery and had the authority to sign cheques drawn on Irma’s account. Jamal told her that is she didn’t write out a cheque for £1000 that he believed Irma owed him; he would make sure she never saw her children again. Helene was a timid person was frightened so gave the cheque. Still angry he went and took the bulbs out of Irma’s car and put them in his bin.
Jamal would be criminally liable for the blackmail of Helene under s.21 of the theft act 1968. Thus is defined a as ' with the view to make a gain for himself or another or with the intent to cause Loss to another, he makes an unwarranted demand with menaces.
The actus reus of this offence is making an unwarranted demand with menaces; an unwarranted demand is a demand for something that the defendant is not legally entitled to in this case Jamal is demanding the £1,000 cheque that he was not legally entitled to. A menace is a demand\threat that the reasonable man would be influenced or fearful so that the demand is likely to be met. In this case the menace is the threat of never seeing her children again is enough to amount to a menace.
The men's rea of the offence I the intent to make a demand with menaces, with the view to gain for self or another or cause loss to another, either not believing reasonable ground for the demand. A demand with menaces is a demand which include threats of violence including threats that are detrimental or unpleasant to the person, and can include warnings. In this case the demand was for the money and the threats to her children amounted to a menace.
The second element of the mens rea is the view to gain for himself or make loss to another, in this was fulfilled in this case as he had the view to make the gain of £1,000 which would be a gain for himself and a loss to Irma.
The final element for the mens rea is either not believing reasonable ground for the demand, in this case Jamal believed he had reasonable grounds because he believed Irma owed him, but it wasn’t seen as moral because of his demand this can be seen in the case of Harvey, where he had moral belief but the action he took was not moral.
Jamal would be liable for the blackmail of Helene as he meets all of the elements for both the actus and mens rea, making him guilty of blackmail s.21 of the theft act 1968.
Helene would not be guilty of the theft of the money as she has the defence of duress by threats. The definition of theft is dishonestly appropriating property belonging to another with the intention to permanently deprive the other of it. The actus reus is appropriating property belonging to another which she fulfils by taking on the rights of Irma’s money, which is property and doesn’t belong to her. The mens rea is dishonestly permanently depriving, this is fulfilled as her act of taking the money without consent is dishonest and she had no intention to return it, this is illustrated in the case of velumyl were she took the money, but wasn’t going to return the exact same money. Although Helene has met all the elements of both the actus and the mens rea she has the defence of duress by threats, were the defendant is forced to perform an unlawful act by someone else using threats. The test for this is set out in the case of Graham the first part of the test is, was the defendant impelled to act in the way he did because he feared death or serious injury? in this case Helene feared serious violence by the threat of never seeing her children again. the second part of the test is, did he respond as a sober person of reasonable firmness sharing the characteristics of the defendant would have done? in this case Helene did act how a reasonable person would of done by giving the money. As she passes both parts of the test she would be able to use the defence of duress by threats.
The second offence Jamal would be liable for is basic criminal damage towards Irma’s car, the definition for criminal damage as set out in the criminal damage act 1971 s.1 (1) is intentionally or recklessly destroy or damage property belonging to another. The actus reus of the offence is destroy/damage, property, belonging to another, without lawful excuse. The first element is destroying or damaging, this is not defined in the act, but it must be tangible or affecting performance/ value of the property. In this case removing the bulbs amounts to damaging the car, as it decreases the value of the car, as seen in the case of Morphitis v salmon where it was decided that there is damage that decreases the value in this case it was a scratch which didn’t decrease the value of the scaffold pole.
The second element is property, this is defined in the criminal damage act s.10(1), which is a wider interpretation than the one in the theft act as it includes land but excludes wild plants. In this case the property is the bulbs.
The third element is belonging to another, this is defined in the criminal damage act as requiring custody or control of the property, and in this case he took custody of the bulbs by taking them off the car.
The final element of the actus reus is, without lawful excuse, this is set out in s.5(2) as the defendant honestly believing that they have consent for the property or to protect the property, this is illustrated in the case of jaggard v Dickinson where the defendant honestly believed that they had the consent to enter the house. In this case he had no lawful excuse as there was no genuine belief he had consent or to protect the bulbs.
The mens rea for the offence of basic criminal damage is intentionally or recklessly damaging or destroying the property. In this case he had clear intent to remove the bulbs.
As he meets all the elements for both the actus and mens rea he would be liable for basic criminal damage.
The final offence that he would be liable for is aggravated criminal damage, this is defined in the criminal damage act s.2 (1), as the same as basic criminal damage but with the intention or recklessness to endanger life, since Jamal has already met the elements for basic criminal damage and he was reckless to endanger life, as he was reckless when he removed the bulbs, which could of endangered the drivers life.
In conclusion he was criminally liable for the blackmail of Helene and both basic and aggravated criminal damage towards Irma, Helene would be liable for the offence of theft but had the defence of duress of threats available.
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