Problem Question: Criminal Law, No.16

Problem Question

Victoria and Albert are neighbours who have become friends. Victoria is an art collector and one day she invites Albert round to show him her many artworks. Victoria shows Albert a small sculpture that looks like an ancient Egyptian figurine. Victoria tells Albert that she thinks that it’s a fake, but that it has been expertly done. Albert admires Victoria’s many artworks, and Victoria says to Albert that he can come and look at them any time. Victoria tells Albert where there is a hidden key if Victoria is out. Albert tells his friend Wallace about Victoria’s collection and Wallace asks if he could see it. They go to Victoria’s house a few days later but she is out and so Albert lets them both in with the hidden key. Once inside, Albert shows Wallace the figurine and tells him what Victoria has said about it. Wallace tells Albert that they could take the figurine and try to sell it as genuine. Albert refuses and picks the figurine up to prevent Wallace from taking it. Wallace grabs the figurine but fails to pull it free from Albert’s tight grip. Wallace leaves. After Wallace leaves, Albert is overcome by temptation and takes the sculpture home. He does a little research on the internet and finds that a genuine Egyptian sculpture of this type, even with minor damage, could be worth £100,000. He takes the sculpture to Burlington, a dealer in antiquities. Albert tells Burlington it is an Egyptian figurine and says he will sell it for £80,000. The dealer is an expert and sees that the piece is genuine, but also guesses that Albert is not really very knowledgeable. Burlington tells Albert that it is a fake, but a very high quality one, probably done by a well-known faker of antiquities, and he offers Albert £500 for it. Albert says he doesn’t believe him and leaves the shop with the figurine. Discuss the criminal liability of Albert, Wallace, and Burlington.

Analysis

Albert

1. Theft of the Sculpture

• Dishonestly:

◦ S.2 Theft Act 1968: Albert’s belief about the rights of the owner and consent. Albert knew Victoria did not consent to his taking the sculpture, and he knew it did not belong to him. Under Ivey v Genting Casinos [2017], the test for dishonesty is objective. Albert’s actions in taking the sculpture would be considered dishonest by the standard of a reasonable person.

• Appropriation:

◦ S.3 Theft Act 1968: Appropriation involves any assumption of the rights of the owner. Albert’s act of taking the sculpture and later trying to sell it constitutes appropriation.

• Property Belonging to Another:

◦ The sculpture clearly belongs to Victoria, satisfying this criterion.

• Intention to Permanently Deprive:

◦ S.6 Theft Act 1968: Albert’s intention to sell the sculpture demonstrates an intention to permanently deprive Victoria of her property. The act of willingness to sell fulfils this criterion.

Conclusion: Albert is liable for theft of the sculpture. He acted dishonestly by taking and attempting to sell property that did not belong to him, with the intention to permanently deprive Victoria of it.

Wallace

1. Burglary

• Entry as a Trespasser:

◦ Wallace entered Victoria’s house without her consent. Although Albert had the key and permission, Wallace did not have consent to enter or to use the key. This entry constitutes trespass.

• Intention to Commit an Offence:

◦ Wallace had the intention to steal the figurine. Even though he was unsuccessful, his intention to commit theft fulfils the requirement for burglary.

Conclusion: Wallace is liable for burglary. He entered the property as a trespasser with the intention to steal, satisfying the elements of burglary.

Burlington

1. Fraud

• Dishonesty:

◦ S.2 Fraud Act 2006: Burlington’s statement that the figurine was a fake when it was genuine. Under Ivey v Genting Casinos [2017], Burlington’s statement must be assessed objectively. Burlington’s action was dishonest as it was misleading.

• False Representation:

◦ Burlington made a representation that the sculpture was a fake, even though he knew it was genuine. This constitutes a false representation.

• Gain or Loss:

◦ Burlington’s offer of £500, while rejected, exposed Albert to the risk of loss. Burlington’s action was intended to benefit himself by acquiring a valuable item at a significantly reduced price, and this would expose the actual owner, Victoria, to potential loss if the sale had gone through.

Conclusion: Burlington could be liable for fraud. By misrepresenting the sculpture’s value and condition, he engaged in fraudulent conduct that exposed Albert to a risk of financial loss, even though the offer was not accepted.

Summary

• Albert: Liable for theft of the sculpture. He acted dishonestly by taking property without consent and intending to permanently deprive the owner of it.

• Wallace: Liable for burglary. He entered the property as a trespasser with the intention to commit theft, meeting the criteria for burglary.

• Burlington: Potentially liable for fraud. His false representation about the sculpture being a fake, when it was genuine, exposed Albert to the risk of loss and was dishonest.