Problem Question: Criminal Law, No.8

Problem Question

Andrew is a sports agent negotiating the sale of his client, Ballinho, to Houghton FC. While Andrew provides Brazilian newspaper reports suggesting Ballinho is a top talent, he fails to disclose that Ballinho has acute knee tendonitis, which will keep him out of action for several months. Craig, the chairman of Houghton FC, learns of the injury from another source and decides not to sign Ballinho. Andrew subsequently posts a misleading profile of Ballinho on his website, which crashes and deletes the content before it is seen. Ballinho, during a visit to Andrew's office, sees a list of Andrew's clients and their salaries and photocopies it. He also picks up and later takes a bar of chocolate from Andrew's desk. Analyse the criminal liability of Andrew and Ballinho in this scenario.

Analysis

Andrew’s Criminal Liability

1. Fraud by Misrepresentation

Andrew's actions can be analysed under the offence of fraud by misrepresentation:

• Dishonesty (Ivey Test): The Ivey test requires assessing whether the behaviour would be considered dishonest by the standards of a reasonable person. Andrew's act of showing Brazilian newspaper reports without disclosing Ballinho's injury, which would affect the player’s value, can be seen as dishonest.

• False Representation: Andrew did not explicitly lie but failed to disclose critical information. Under section 2(2) of the Fraud Act 2006, this failure to disclose is considered a false representation if there is a legal duty to disclose.

• Failure to Disclose Information: The case of Daley [2010] established that failing to disclose information where there is a legal duty can constitute fraud. In this case, Andrew’s omission regarding Ballinho's injury might be seen as a failure to disclose material information that could influence Craig’s decision.

Andrew’s behaviour can be characterised as fraud by failure to disclose because he did not provide information crucial to the transaction.

2. Fraudulent Misrepresentation on the Website

Andrew’s attempt to post a misleading profile of Ballinho with the intention of portraying him as a top talent could be seen as fraudulent:

• Intention to Make a Gain or Cause a Loss: The intention was to enhance Ballinho’s appeal, thereby potentially facilitating a deal or negotiation. Even though the website crashed, the intention to deceive was present.

• False Representation and Failure to Disclose Information: Posting misleading information, even though it was deleted, suggests an attempt to deceive, which can still constitute fraudulent behaviour under the Fraud Act 2006.

Ballinho’s Criminal Liability

1. Theft of Information

Ballinho’s photocopying of the list of clients and their salaries can be analysed in terms of theft:

• Oxford v Moss: Information itself is not considered property under theft laws. However, if Ballinho intended to take physical copies (the paper) rather than abstract information, this might be theft of property. In this case, Ballinho’s act of photocopying does not constitute theft since the information itself is not property, but the physical paper is not the focus here.

2. Theft of the Chocolate Bar

Ballinho’s actions regarding the chocolate bar can be scrutinised under theft laws:

• Dishonesty: Ballinho’s act of taking the chocolate bar can be evaluated for dishonesty. He initially intended to eat it, which could be seen as an intention to permanently deprive Andrew of the bar.

• Appropriation and Belonging to Another: Ballinho’s act of picking up the chocolate and placing it in his pocket constitutes appropriation of property belonging to Andrew.

• Intention to Permanently Deprive: Even though Ballinho’s intention to eat the chocolate suggests a temporary deprivation, the act of taking it without Andrew’s consent constitutes an intention to permanently deprive Andrew of it.

Thus, Ballinho’s act of taking the chocolate bar can be considered theft, as he appropriated it with the intention to permanently deprive Andrew of it.

Conclusion

Andrew’s criminal liability primarily involves fraud by failure to disclose crucial information about Ballinho’s injury and potential fraudulent misrepresentation through his website. Ballinho’s liability includes theft of the chocolate bar due to his intention to permanently deprive Andrew of it. The photocopying of the client list, while an invasion of privacy, does not constitute theft under current laws as information itself is not property.