Problem Question: Criminal Law, No.4

Problem Question:

Casey works in an on-train bar for the train company Slowtrain. His job involves selling Slowtrain sandwiches. However, because he believes that these sandwiches are poor value for money, he has been making and selling his own, much better, sandwiches to customers at the same price, keeping the proceeds of sale. One customer, Jones, who knows what is going on, says to Casey that Casey should sell his own coffee too, but Casey has already decided to do this, and later starts doing so.

Bond visits a casino and starts to gamble, rapidly losing a large sum. He decides to stay in the game, to try to recover his money, even if that means using an unauthorised overdraft. The casino manager asks if he has sufficient credit to keep going, and Bond says, ‘Who knows? But I will win my money back shortly anyway’. The manager allows Bond to continue gambling. Bond loses much more money before stopping, believing that he must now be well overdrawn beyond his limit. It turns out that, the previous day and unknown to Bond, the bank mistakenly paid £100,000 to Bond’s account that was meant to be placed in another person’s account. When he checks the account balance, a very surprised Bond decides to keep quiet about the remaining £70,000 in the account.

Discuss the criminal liability of Casey, Jones, Bond, and the Casino Manager.

Casey's Criminal Liability

Fraud

Casey could be liable for fraud under the Fraud Act 2006, specifically for false representation and abuse of position.

• Dishonesty: Casey justifies his actions by believing that Slowtrain sandwiches are poor value for money. However, under the Ivey v Genting Casinos test, his conduct would likely be considered dishonest by the standards of ordinary decent people. The fact that he is keeping the proceeds for himself further solidifies the dishonesty.

• False Representation: Casey's act of selling his own sandwiches while presenting them as products sold by Slowtrain is a false representation. He misleads customers into believing they are purchasing items from the company he works for.

• Failure to Disclose Information: Casey fails to inform Slowtrain or the customers that the sandwiches are his own and not the company’s, which is a critical piece of information affecting the transaction.

• Abuse of Position (s.4): Casey holds a position of trust as an employee of Slowtrain and is expected to act in the company’s best interests. By selling his own sandwiches and pocketing the money, Casey abuses his position. This situation is similar to Cooke (1986), where the defendant’s actions amounted to fraud under the old law, and the current law under the Fraud Act 2006 would likely lead to the same conclusion.

Theft

Casey may also be liable for theft under the Theft Act 1968.

• Appropriation: Casey appropriates money that he has no right to receive by selling his own sandwiches and keeping the proceeds.

• Property Belonging to Another: The money he receives from customers should rightfully belong to Slowtrain, as it is earned during his employment.

• Dishonesty: Despite his belief that the sandwiches are poor value, Casey’s actions would likely be seen as dishonest, especially since he kept the proceeds for himself.

Jones' Criminal Liability

Accomplice Liability

Jones could be liable as an accomplice to Casey’s fraudulent activities.

• Intention to Assist/Encourage: Jones knows what Casey is doing and suggests that he should sell his own coffee as well, which indicates an intention to assist or encourage the fraudulent behaviour.

• Fault Element Required for Fraud: By encouraging Casey to expand his fraudulent activities, Jones demonstrates the requisite fault element for aiding and abetting fraud.

• Conviction for Aiding and Abetting Fraud: Under Jogee (2016), an accomplice must intend to assist or encourage the crime. Jones’s suggestion and awareness of the ongoing fraud likely satisfy this requirement. Moreover, aiding or abetting can be successful even if the assistance is minimal, as indicated in Armstrong (2000).

Bond's Criminal Liability

Theft of Money

Bond’s liability arises from the unauthorised overdraft and the mistaken payment into his account.

• Unauthorised Overdraft: Bond’s decision to gamble with the knowledge that he may not have sufficient credit could raise issues under the Theft Act 1968, specifically referencing R v Navvabi (1986). However, the focus would likely shift to the mistaken payment.

• Theft of £100,000: When Bond discovered that £100,000 was mistakenly paid into his account, he became aware that the money was not his. Under s.5(4) of the Theft Act 1968, receiving money by mistake creates an obligation to return it.

• Dishonesty: Bond’s decision to keep quiet about the remaining £70,000 after losing some of the money constitutes dishonesty, especially since he knew the money was not rightfully his.

Casino Manager's Criminal Liability

Aiding and Abetting

The casino manager could be liable for aiding and abetting Bond’s unauthorised gambling.

• Allowing Bond to Continue Gambling: The manager allowed Bond to continue gambling despite knowing that Bond might not have sufficient credit. This could be seen as aiding and abetting theft if the unauthorised overdraft or the misuse of the mistaken payment is considered theft.

• Omission as Aiding and Abetting: Aiding and abetting can be committed through an omission, and the manager’s failure to stop Bond from gambling when he had doubts about Bond's credit could be interpreted as assisting in the criminal activity.

Conclusion:

• Casey: Likely liable for fraud and theft due to his dishonest actions in selling his own products and keeping the proceeds.

• Jones: Likely liable as an accomplice for encouraging and assisting Casey’s fraudulent activities.

• Bond: Likely liable for theft concerning the mistaken payment, as his actions were dishonest once he discovered the error and chose to keep the money.

• Casino Manager: Potentially liable for aiding and abetting theft by allowing Bond to continue gambling despite concerns about his credit, which could be seen as an omission leading to criminal liability.