Alcohol theft situation

timmywex

So was having a conversation during christmas there with relatives, one was telling a story of being in a large supermarket a good few years back, and getting a big grocery shop, had a bottle of wine with it, went to pay for all and the clerk couldnt serve alcohol as was under 18, asked for an over 18 staff member but one couldnt be found, so she couldnt be served.

So we were saying that had she just left money on the counter and left would that have been alright? ie leaving the money behind and walking out with the wine. Not really theft is it when your trying to pay and leaving money to pay? But then again the shop can always refuse if they want to...?

Suppose the same situation could occur if a person in their 20's or whatever was buying alcohol and didnt have id on them...

Procrastastudy

So if I walk into your house lift some of your jewlery and as long as I leave the money for the weight of it thats not theft no?

A shop has to agree to sell you something before you can make payment.

wmpdd3

True but, i remember reading about a case in a supermarket where a customer walked in went to the fruit and swapped stuff she had bought earlier for newer stuff. She was caught with the new fruit and no receipt. The case was thrown out as the customer believed she was not stealing.

From a store loss prevention stance, there is no concealment, so no scone.

So the case seems to be, yes they are breaking the law, but no the judge might not convict.

Dynamo Roller1

Yup an agreement is made between both parties in the form of exchange of money or credit and the giving of a receipt. without this exchange the the transaction didn't take place it was theft.

Procrastastudy

wmpdd3 wrote: »

True but, i remember reading about a case in a supermarket where a customer walked in went to the fruit and swapped stuff she had bought earlier for newer stuff. She was caught with the new fruit and no receipt. The case was thrown out as the customer believed she was not stealing.

So the case seems to be, yes they are breaking the law, but no the judge might not convict.

There's a requirement for the proc. to prove mens rea. The person was probably very convincing/truthful. The OP seems to indictae there was at least some intention. I don't actually know what standard is required for theft - thats next semester

Dynamo Roller1

wmpdd3 wrote: »

True but, i remember reading about a case in a supermarket where a customer walked in went to the fruit and swapped stuff she had bought earlier for newer stuff. She was caught with the new fruit and no receipt. The case was thrown out as the customer believed she was not stealing.

So the case seems to be, yes they are breaking the law, but no the judge might not convict.

there's not too many people who go around swapping items without telling the seller, it must have been a rare case cos i would have fined them without a receipt. ya can't have people wandering around swapping stuff just because they feel its of equal value.

timmywex

Procrastastudy wrote: »

So if I walk into your house lift some of your jewlery and as long as I leave the money for the weight of it thats not theft no?

A shop has to agree to sell you something before you can make payment.

True true, but your not doing that right in front of me!

Also, a quick quote of theft from the criminal justice act 2001 "a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it."

Its not really dishonest nor really depriving the owner of it!

Interesting one, cant imagine it ever getting anywhere in court IMO, or in fact the DPP going through with it

Zambia

Theft.

4.—(1) Subject to section 5 , a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.

(2) For the purposes of this section a person does not appropriate property without the consent of its owner if—

(a) the person believes that he or she has the owner's consent, or would have the owner's consent if the owner knew of the appropriation of the property and the circumstances in which it was appropriated, or

(b) (except where the property came to the person as trustee or personal representative) he or she appropriates the property in the belief that the owner cannot be discovered by taking reasonable steps,

but consent obtained by deception or intimidation is not consent for those purposes.

(3) (a) This subsection applies to a person who in the course of business holds property in trust for, or on behalf of, more than one owner.

(b) Where a person to whom this subsection applies appropriates some of the property so held to his or her own use or benefit, the person shall, for the purposes of subsection (1) but subject to subsection (2), be deemed to have appropriated the property or, as the case may be, a sum representing it without the consent of its owner or owners.

(c) If in any proceedings against a person to whom this subsection applies for theft of some or all of the property so held by him or her it is proved that—

(i) there is a deficiency in the property or a sum representing it, and

(ii) the person has failed to provide a satisfactory explanation for the whole or any part of the deficiency,

it shall be presumed, until the contrary is proved, for the purposes of subsection (1) but subject to subsection (2), that the person appropriated, without the consent of its owner or owners, the whole or that part of the deficiency.

(4) If at the trial of a person for theft the court or jury, as the case may be has to consider whether the person believed—

(a) that he or she had not acted dishonestly, or

(b) that the owner of the property concerned had consented or would have consented to its appropriation, or

(c) that the owner could not be discovered by taking reasonable steps,

the presence or absence of reasonable grounds for such a belief is a matter to which the court or jury shall have regard, in conjunction with any other relevant matters, in considering whether the person so believed.

(5) In this section—

“appropriates”, in relation to property, means usurps or adversely interferes with the proprietary rights of the owner of the property;

“depriving” means temporarily or permanently depriving.

(6) A person guilty of theft is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.

A conviction would be very hard. Considering the shop would have to argue that they had not intended the person to take the item in exchange for money. Which is the basic premise of the business.

johnnyskeleton

Procrastastudy wrote: »

There's a requirement for the proc. to prove mens rea. The person was probably very convincing/truthful. The OP seems to indictae there was at least some intention. I don't actually know what standard is required for theft - thats next semester

Beyond reasonable doubt.

Procrastastudy

Looking at both Zambia and your post (which sorry I didn't mean to suggest otherwise) it wouldn't be that hard as the shop would have said 'we can't sell you that'.

If however someone just walked out, said nothing and depositied the money then perhaps. In the two scenarios in the OP the shop have refused sale.

Zambia

Procrastastudy wrote: »

Looking at both Zambia and your post (which sorry I didn't mean to suggest otherwise) it wouldn't be that hard as the shop would have said 'we can't sell you that'.

If however someone just walked out, said nothing and depositied the money then perhaps. In the two scenarios in the OP the shop have refused sale.

If the person was under 18 there are clear store markings stating there is no implied sale consent.

If they are over 18 well it's not like they did not pay

Procrastastudy

Zambia wrote: »

If the person was under 18 there are clear store markings stating there is no implied sale consent.

If they are over 18 well it's not like they did not pay

As I said though if I walk into your house and remove property and leave you some cash it's still remove itmes without permission.

chops018

Procrastastudy wrote: »

As I said though if I walk into your house and remove property and leave you some cash it's still remove itmes without permission.

That's burglary not theft

Procrastastudy

chops018 wrote: »

That's burglary not theft

Smart arse :P you know what I mean. It's not as if contractual analysis hasn't been applied in theft cases though. See Guilford v Lockyer (spelling)

chops018

Procrastastudy wrote: »

Smart arse :P you know what I mean. It's not as if contractual analysis hasn't been applied in theft cases though. See Guilford v Lockyer (spelling)

LOL. There's always one and yes I know what you meant.

NoQuarter

Mens Rea. That is all.

Zambia

Procrastastudy wrote: »

As I said though if I walk into your house and remove property and leave you some cash it's still remove itmes without permission.

My house is not a supermarket.

As NoQuarter stated Mens Tea would be impossible to prove.

In that a person intended to steal something by walking up to a checkout trying to pay for items on sale. Then leaving money on the till when the store was unable to find a adult to take for them.

Its appears to me that the person was making every effort not to steal. To get this case to court a Garda would have to lay the charge on them.

I doubt you would find a Garda willing to arrest the customer?

I arrested many a shoplifter and I would not even attempt to stop them.

Procrastastudy

Zambia wrote: »

My house is not a supermarket.

As NoQuarter stated Mens Tea would be impossible to prove.

In that a person intended to steal something by walking up to a checkout trying to pay for items on sale. Then leaving money on the till when the store was unable to find a adult to take for them.

Its appears to me that the person was making every effort not to steal. To get this case to court a Garda would have to lay the charge on them.

I doubt you would find a Garda willing to arrest the customer?

I arrested many a shoplifter and I would not even attempt to stop them.

Mens Rea is exceptionally easy to prove:

Can I buy this?

No.

Walks out chucking some money down. No consent.

A supermarket is a piece of private property with items in it more analagous to a house than not. See Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] EWCA Civ 6 for a contractual analysis of purchasing things in shops.

Edit: I just know any assignment I do next semester is going to have your Tea typo in it somewhere

Zambia

Procrastastudy wrote: »

Mens Rea is exceptionally easy to prove:

Can I buy this?

No.

Walks out chucking some money down. No consent.

A supermarket is a piece of private property with items in it more analagous to a house than not. See Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] EWCA Civ 6 for a contractual analysis of purchasing things in shops.

Edit: I just know any assignment I do next semester is going to have your Tea typo in it somewhere

Excellent case to quote but it you have to admit the Mens Rea is still not there.

There is no suggestion that the shop refused to sell the items to the customer. The customer would also not have been under the impression that they are not allowed to buy the goods. Simply that the shop was staffed by imbeciles that could not run a checkout.

Unless the staff member said
"We refuse to sell you these goods"

In the case here you would have to prove the customer intendedto beyond all reasonable doubt to steal the items. Like I said you would find it hard to even get a case to court.

Procrastastudy

On the court and guards element - absolutely no argument.

However Felthouse v Brindley (spelling) establishes that silence does not establish consent - absent "We will sell you this" there is no consent to remove the goods and therefore the Mens Rea for theft. IMHO of course.

Zambia

Procrastastudy wrote: »

On the court and guards element - absolutely no argument.

However Felthouse v Brindley (spelling) establishes that silence does not establish consent - absent "We will sell you this" there is no consent to remove the goods and therefore the Mens Rea for theft. IMHO of course.

http://en.wikipedia.org/wiki/Felthouse_v_Bindley

Once again the case above, someone assumed a sale and a price and due to not being told otherwise took possession.

In lets say Tesco the price is on display the method of payment set. The customer has followed that agreement to the best of their ability.

NoQuarter

Procrastastudy wrote: »

Mens Rea is exceptionally easy to prove:

You must know something the rest of the Criminal Practitioners dont?

Especially with an offence like theft where there seems to me to be two Actus Reus and 2 corresponding Mens Rea to prove along with the circumstance of lack of consent. I can see this case falling down at at least 2 of those 4 hurdles.

Procrastastudy wrote: »

On the court and guards element - absolutely no argument.

However Felthouse v Brindley (spelling) establishes that silence does not establish consent - absent "We will sell you this" there is no consent to remove the goods and therefore the Mens Rea for theft. IMHO of course.

With respect, perhaps it might be wise to actually study all of Criminal Law before commenting. Throwing every first-year law contract case under the sun at it just doesnt cut it.

All you have to do in criminal law is prove the elements of the offence. Making any analysis of a supermarket to a house and otherwise is useless unless you are trying to spin jury's heads in which case you cant even quote your Boots case or else you can say goodbye to that jury!

trad

I find it very hard to believe that in a large supermarket not one member of staff over 18 could be found.

Procrastastudy

NoQuarter wrote: »

You must know something the rest of the Criminal Practitioners dont?

With respect, perhaps it might be wise to actually study all of Criminal Law before commenting. Throwing every first-year law contract case under the sun at it just doesnt cut it.

All you have to do in criminal law is prove the elements of the offence. Making any analysis of a supermarket to a house and otherwise is useless unless you are trying to spin jury's heads in which case you cant even quote your Boots case or else you can say goodbye to that jury!

To be fair this was a frivolous thread to start with. I don't think there is any harm having a bit of a punt on it. I'm still not convinced, neither has anyone demonstrated that it's not theft.

Contractural analysis was introduced in Guildford v Lockyer to appeal/defend theft - I suspect the guy in that case was glad of a bit of punting on his behalf.

Procrastastudy

Zambia wrote: »

http://en.wikipedia.org/wiki/Felthouse_v_Bindley

Once again the case above, someone assumed a sale and a price and due to not being told otherwise took possession.

In lets say Tesco the price is on display the method of payment set. The customer has followed that agreement to the best of their ability.

The point I am making by 'throwing these first year contract cases' is there is no consent. You either have consent ot you don't. I don't believe the fact that it was a shop makes any difference.

You have to baer in mind this wasn't some socks - it is a restricted product with legislation regarding it's sale. I think it's pretty clear that consent is being withheld until someone competant can make a decsion on whether the product should be sold.

Predalien

Procrastastudy wrote: »

The point I am making by 'throwing these first year contract cases' is there is no consent. You either have consent ot you don't. I don't believe the fact that it was a shop makes any difference.

I think the point others are making is that the consent/contract elements of a shop are of no relevance when discussing mens rea of theft. The actus reus is easy to establish, but the mens rea element must also be proven and is very difficult to do so when in the mind of the person taking the item they are not stealing, instead they believe they are carrying out a fair transaction.

Procrastastudy

Predalien wrote: »

I think the point others are making is that the consent/contract elements of a shop are of no relevance when discussing mens rea of theft. The actus reus is easy to establish, but the mens rea element must also be proven and is very difficult to do so when in the mind of the person taking the item they are not stealing, instead they believe they are carrying out a fair transaction.

I take your point, and of course the point that I'm usually more wrong than a weekend with Jimmy Saville, but I would still argue you know you're doing something wrong when you act in the way described in the OP. If it was acceptable there'd never be any queues - we'd just leave the money down and walk out.

What adds weight to this position is the guy intially went to a till and waited to be served. He only walked out after he got fed up waiting. If he was so sure it was okay why did he wait?

drkpower

Predalien wrote: »

I think the point others are making is that the consent/contract elements of a shop are of no relevance when discussing mens rea of theft. The actus reus is easy to establish, but the mens rea element must also be proven and is very difficult to do so when in the mind of the person taking the item they are not stealing, instead they believe they are carrying out a fair transaction.

But is that a reasonable belief? If a member of staff says' we cannot sell you this product until and unless a qualified staff member is present to verify your age', can the ' purchaser' genuinely say they believed the purchase was either with consent or lawful? I doubt it.

However, whether the dpp would believe these circumstances would warrant a prosecution is another question.

Predalien

Procrastastudy wrote: »

I take your point, and of course the point that I'm usually more wrong than a weekend with Jimmy Saville, but I would still argue you know you're doing something wrong when you act in the way described in the OP. If it was acceptable there'd never be any queues - we'd just leave the money down and walk out.

What adds weight to this position is the guy intially went to a till and waited to be served. He only walked out after he got fed up waiting. If he was so sure it was okay why did he wait?

That's a matter for evidence, if there is evidence that a person knew what they were doing could be stealing then that could possibly satisfy the mens rea requirement, however if they have a genuinely held belief that they are carrying out a legitimate transaction then there is no intention to deprive someone of their property and so it is not theft (in terms of an offence, the actus reus is established by taking the item).

In fairness the act explains it well

http://www.irishstatutebook.ie/2001/en/act/pub/0050/print.html#sec4

Predalien

drkpower wrote: »

But is that a reasonable belief?

The point is it could be a reasonable belief, depending on the person in question, I suppose we're going down the subjective/objective argument now.

drkpower

Predalien wrote: »

The point is it could be a reasonable belief, depending on the person in question,

Could it be? Where the 'purchaser' has been explicitly instructed by the staff member that the product cannot be sold without a qualified member of staff? What reason can the 'purchaser' give for being in any reasonable doubt as to the position?

Predalien

drkpower wrote: »

Could it be? Where the 'purchaser' has been explicitly instructed by the staff member that the product cannot be sold without a qualified member of staff? What reason can the 'purchaser' give for being in any reasonable doubt as to the position?

Yes it could, it's as simple as that really. I'm not saying it's likely or that believeable but it is certainly possible. An argument that is easily made is that they left the money, that could demonstrate a lack of intention to steal the product and a belief that it was a fair way of carrying out a transaction.

drkpower

Predalien wrote: »

Yes it could, it's as simple as that really. I'm not saying it's likely or that believeable but it is certainly possible. An argument that is easily made is that they left the money, that could demonstrate a lack of intention to steal the product and a belief that it was a fair way of carrying out a transaction.

Well i suppose everything is possible if you wish hard enough!

But of course the law doesnt work on the vague possibility that someone believed something. It works on the basis that such a belief was reasonable in the circumstances. And i dont think the given circumstances would support such a position.

Our man in Havana

trad wrote: »

I find it very hard to believe that in a large supermarket not one member of staff over 18 could be found.

In most supervalu type setups there can be difficulty finding someone to sell booze. It would not be uncommon for the store to be staff completely with school kids with just one adult supervising them.

Victor

Whatever about a theft offence, is there also the possibility of a licencing offence?

NoQuarter

Right lets try put the nail in the coffin on this one.

s4 : "a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it."

Actus Reus 1 - Appropriates property

(5) In this section—


“appropriates”, in relation to property, means usurps or adversely interferes with the proprietary rights of the owner of the property;

usurp: to seize and hold (a position, office, power, etc.) by force or without legal right

adversely: opposing one's interests

appropriate: To take possession of or make use of exclusively for oneself, often without permission

So we cant say the wine was usurped, we might be succesful on the appropriate definition.

BUT..

For the purposes of this section a person does not appropriate property without the consent of its owner if—


(a) the person believes that he or she has the owner's consent, or would have the owner's consent if the owner knew of the appropriation of the property and the circumstances in which it was appropriated

So the Actus of appropriating the property would have been there but for this part which says that if the person thought it was ok and that the owner would be ok with taking that property in the circumstances (ie, paying and because there was no +18 staff) then there is no appropriation... thus Actus Reus 1 fails.

but lets go on for the craic....


Actus Reus 2 - Depriving the owner of it.

“depriving” means temporarily or permanently depriving.

There's no other guidance in the section relating to deprivation so it would come down to whether you can be deprived of something if you pay for it. Lets just say you can be, so prosecution can prove Actus Reus 2.



Mens Rea 1 - Dishonesty

(4) If at the trial of a person for theft the court or jury, as the case may be has to consider whether the person believed—


(a) that he or she had not acted dishonestly, or


(b) that the owner of the property concerned had consented or would have consented to its appropriation...

the presence or absence of reasonable grounds for such a belief is a matter to which the court or jury shall have regard, in conjunction with any other relevant matters, in considering whether the person so believed.

• Behaving or prone to behave in an untrustworthy or fraudulent way.
• Intended to mislead or cheat.

So, as section 4 says, its going to be a factual argument to the jury. There is no indication whether the corresponding mens rea is solely intent for Actus Reus 1 or whether recklessness is enough (There might be more guidance in case law - im not arsed looking).


Even if it is the lower threshhold of "recklessness" - giving rise to the fact that they left the money on the counter BECAUSE there was nobody there to serve them - they still paid - would that amount to dishonesty!? I wouldnt think so.



So surely we can say Mens Rea 1 fails.



Mens Rea 2 - Intending to deprive the owner

Obviously recklessness wont be enough here as the legislation tells us the standard of mens rea is intent. On a factual argument the prosecution should be able to show that the person intended to take the wine. So lets say Mens Rea 2 passes and the prosecution can prove it.



So, to be successful in criminal law, the prosecution must prove...beyond any reasonable doubt... that EVERY element of the above offence can be satisfied. I reckon there is a certain failure on 2 of them anyway.

So tell me, what would you do now with the 1953 contract law, english Boots case ... the 1975 english case of Guildford (where he left without paying anyway) or (my favourite) the 1863 english contract law case of Felthouse to suddenly make the fact that you cant prove at least 2 elements of the 2001 Irish legislation an arguable point to gain a conviction here.

:pac:

Procrastastudy

Be as informatively cranky as you like but the cases sighted can be used to show that actua rea 1 is satisfied. Okay mens rea is very dubious and I take the point that this was the first thing you raised. I still think it's arguable.

drkpower

These seem to be the two central points of your argument.

NoQuarter wrote: »

BUT..

For the purposes of this section a person does not appropriate property without the consent of its owner if—


(a) the person believes that he or she has the owner's consent, or would have the owner's consent if the owner knew of the appropriation of the property and the circumstances in which it was appropriated

So the Actus of appropriating the property would have been there but for this part which says that if the person thought it was ok and that the owner would be ok with taking that property in the circumstances (ie, paying and because there was no +18 staff) then there is no appropriation... thus Actus Reus 1 fails.

How could the 'purchaser' reasonably 'think it was ok' to take the property where the staff member specifically directed him that he could not sell the property without a qualified member of staff being present to verify his age?

NoQuarter wrote: »

Mens Rea 1 - Dishonesty
So, as section 4 says, its going to be a factual argument to the jury. There is no indication whether the corresponding mens rea is solely intent for Actus Reus 1 or whether recklessness is enough (There might be more guidance in case law - im not arsed looking).


Even if it is the lower threshhold of "recklessness" - giving rise to the fact that they left the money on the counter BECAUSE there was nobody there to serve them - they still paid - would that amount to dishonesty!? I wouldnt think so.

So surely we can say Mens Rea 1 fails.

Where a staff member specifically directed the 'purchaser' that he could not sell the property without a qualified member of staff being present to verify his age, of course it is dishonest for the 'purchaser' to then take the product (regardless of whether money is left).

NoQuarter

drkpower wrote: »

These seem to be the two central points of your argument.



How could the 'purchaser' reasonably 'think it was ok' to take the property where the staff member specifically directed him that he could not sell the property without a qualified member of staff being present to verify his age?

Well, the actual wording is that the person believes they would have the owners consent if the owner knew of them taking the property and the circumstances around taking the property.

So, the under 18 server told the person they couldnt serve the wine, the person then said ok well ill leave the money here on the counter and when the over 18 manager comes back, tell him I have taken a bottle of wine and to ring it up on the till.

Is it reasonable, subjectively - because thats what the test here is, that any person, maybe not you or I but some person, would think that that scenario is ok? If I saw that happen I certainly wouldnt think it was dishonest. Maybe inconsiderate to the under 18 server that they might not be able to do that for store policy reasons or whatever, but not dishonest and certainly not to the point where it could be proven beyond a reasonable doubt.

Also, remember where the burden of proof lies here.

Where a staff member specifically directed the 'purchaser' that he could not sell the property without a qualified member of staff being present to verify his age, of course it is dishonest for the 'purchaser' to then take the product (regardless of whether money is left).

See above scenario. If I dont think it is dishonest, then I'm sure there are others who wont think its dishonest. So how are you going to get a conviction when the defence part of the section is a subjective test?!

Procrastastudy

NoQuarter wrote: »

Well, the actual wording is that the person believes they would have the owners consent if the owner knew of them taking the property and the circumstances around taking the property.

So, the under 18 server told the person they couldnt serve the wine, the person then said ok well ill leave the money here on the counter and when the over 18 manager comes back, tell him I have taken a bottle of wine and to ring it up on the till.

Is it reasonable, subjectively - because thats what the test here is, that any person, maybe not you or I but some person, would think that that scenario is ok? If I saw that happen I certainly wouldnt think it was dishonest. Maybe inconsiderate to the under 18 server that they might not be able to do that for store policy reasons or whatever, but not dishonest and certainly not to the point where it could be proven beyond a reasonable doubt.

Also, remember where the burden of proof lies here.




See above scenario. If I dont think it is dishonest, then I'm sure there are others who wont think its dishonest. So how are you going to get a conviction when the defence part of the section is a subjective test?!

Okay I have to admit that's the whole ball of wax. It falls at Mens reas 1 or have I misunderstood the Actus Reus and the dishonesty thing makes it fall there?

Predalien

Procrastastudy wrote: »

Okay I have to admit that's the whole ball of wax. It falls at Mens reas 1 or have I misunderstood the Actus Reus and the dishonesty thing makes it fall there?

In my opinion the actus reus is simply appropriating the property without consent so I think you are understanding the actus reus okay, the belief that there is or would be consent relates more, I think, to the mens rea, so it falls there.

If there is a belief that there is, or would be consent, then there is no intention to steal.

NoQuarter

Procrastastudy wrote: »

Okay I have to admit that's the whole ball of wax. It falls at Mens reas 1 or have I misunderstood the Actus Reus and the dishonesty thing makes it fall there?

For me it falls on "dishonestly appropriates property". Which has the Mens rea of dishonesty and the Actus Reus of appropriation. Mens rea 1 and Actus Reus 1 in my post above.

It would ordinarily pass on the "appropriation" Actus but for section 4(2)(a) which is like a mini defence or subjective belief to the Actus 1. Similar to the "honest belief" defence to rape ie, sex and no consent, but an honest belief which in rapes case, doesnt wipe out the sex but wipes out the intent while in the theft case, it wipes out the actus of appropriation (because the section says so).

I think the consent is more the "circumstance" rather than a part of an actus or a mens.

drkpower

NoQuarter wrote: »

Well, the actual wording is that the person believes they would have the owners consent if the owner knew of them taking the property and the circumstances around taking the property.

So, the under 18 server told the person they couldnt serve the wine, the person then said ok well ill leave the money here on the counter and when the over 18 manager comes back, tell him I have taken a bottle of wine and to ring it up on the till.

Well that is somewhat different to the factual scenario suggested by the OP or taken up by myself. There are a couple of possible hypotheticals here:

1. The 'purchaser' is specifically directed (by the under 18 staff member) that a sale cannot take place unless and until a qualified staff member is present, and no such staff member was available; yet the 'purchaser' leaves the money and takes the product (this is the factual scenario suggested by me, and by the OP (at least my intepretation of it))

Where they have been specifically directed 'Do not do X' and they 'do X' there is no factual basis for their claim that they reasonably believd they had consent to do X.

2. That the under 18 staff member told the 'purchaser' that they could not serve the 'purchaser' but that they would return with a staff member who could; yet the 'purchaser' leaves the money and takes the product. (this is the factual scnerario presented by yourself)

There is a difference here which could impact upon the reasonableness of the 'purchasers' belief. In this scenario, the 'purchaser' has not been explicitly instructed that a sale cannot take place. In such a case, the question of the reasonableness of the 'purchasers' belief that he was not acting dishonestly is certainly arguable. But that area of doubt does not arise in my (and the OPs) factual scenario. In my scenario, there is no room for doubt. The 'purchaser' was told 'we cannot sell you X' and the purchaser disregarded that instruction.

NoQuarter wrote: »

Is it reasonable, subjectively - because thats what the test here is, that any person, maybe not you or I but some person, would think that that scenario is ok?

Well, that isnt the test actually. It is a mixed subjective/objective test. The first question is objective (would a reasonable man know the action was dishonest?); if the answer is yes, we move to question 2, which is mixed subjective/objective (did the actual purchaser realise that a reasonable man would regard what he did as dishonest?).

So there is always an element of objectivity remaining in the test.

But subjective or objective, in my factual scenario, there is no room whatsoever for doubt. The purchaser was told 'dont do X' and he did X. In your sceenario, there is more grey. I grant you.

Jimminy Mc Fukhead

What's going to happen to the twenty euro note sitting by the till?
When it's noticed at the end of the day. That's if another shopper doesn't just pick it up and take it before then. There's no note left with it.

It won't be added to the till because when do up the register and the cash amount matches the receipt roll the till won't be short.

They'll have to find out did a staff member lose money. Will a customer come back at some point in time to check was a twenty found that they dropped.
For the moment the money will be put aside. It matches no sale. Eventually perhaps given to charity.

Meanwhile stock is short an item with a sale value of twenty. The shop has basically lost the bottle of wine no different to a straightforward shoplift.
Now while all of this might not have run through the customers head when they dropped the money down they did know they were taking the booze without permission. Would a reasonable person not have waited. Or come to the conclusion they could not take the bottle and have to get one somewhere else. I think you'd have to say yes.

NoQuarter

Unsurprisingly I disagree with you on a few points.

I think you misinterpreted my scenario. First, when I said the manager returns, I meant whether that be today or tomorrow or whatever. Not that he was out the back having a smoke.

So you then said;

Where they have been specifically directed 'Do not do X' and they 'do X' there is no factual basis for their claim that they reasonably believd they had consent to do X.

They didnt have to believe they had consent. That is only the first limb of s.4(2)(a). The second limb and the limb I think makes the actus reus of appropration fall is where is says "would have the owner's consent if the owner knew of the appropriation of the property and the circumstances in which it was appropriated"

I think there is a factual basis for this and I gave my scenario of how that might be possible above. Me as the "purchaser", I would think it is reasonable that the owner would let me take the wine if the owner knew that there was nobody over 18 in the shop at the time that could serve me. I think they would be ok with me taking the wine and leaving the money. Otherwise, are you telling me that a supermarket closes down its alcohol sales every time they dont have an over 18 person working in the store? They wold lose some mount of money. You might not agree, but it is "reasonable" that others might agree and hence, enough to invoke s.4(2)(a).



The scenario you say I presented, that wasnt what I was presenting at all. The scenario I presented was the same as the OP's first scenario, I just added in some script to sho how that situation might go. I'm assuming anyone who was told they cant be served until someone over 18 is here and it turns out that there is nobody over 18 there, they wouldnt just walk out and would at least say that they are leaving the money.


on a re-read of the section, I agree with you that its a mixed test, when I said it was subjective, I hadnt read s4(4). You've mixed up the order however. The first question is subjective, s4(2)(a). It isnt actually a question at all on a second look, it is only an option that can be raised. IF it is raised, then s.4(4)(b) kicks in and that is where the objective question is raised but you are right in that there is objectivity there. s.4(4)(b) and the objective question doesnt come into play if s4(2) isnt raised by the defence.

Again, just to summarise, I think there is room for doubt in your (and mine becuase its the same scenario) scenario but only through the second limb of 4(2) and not the first as you point out.

NoQuarter

Jimminy Mc Fukhead wrote: »

What's going to happen to the twenty euro note sitting by the till?
When it's noticed at the end of the day. That's if another shopper doesn't just pick it up and take it before then. There's no note left with it.

Surely OP would be leaving the money on the counter with the clerk they had just been speaking to?

Our man in Havana

I don't think it could happen as in most shops spirits are security tagged. If a person tried to exit with said bottle they would be apprehended.

Jimminy Mc Fukhead

NoQuarter wrote: »

Surely OP would be leaving the money on the counter with the clerk they had just been speaking to?

Then this scenario makes no sense. The staff member would explicitly tell the person trying to walk off that they can't do that and can't have the wine - before alerting store security and phoning the gardai.

NoQuarter

Jimminy Mc Fukhead wrote: »

Then this scenario makes no sense. The staff member would explicitly tell the person trying to walk off that they can't do that and can't have the wine - before alerting store security and phoning the gardai.

It makes more sense to think that an over 18s person was at lunch or something. If an under 18 cant sell alcohol, what kind of idiotic shop would only have under 18s working in it whilst the store loses all its alcohol sales!? Where would the sense in that?

If the store sells alcohol, there has to be someone over 18 somewhere, if one wasnt found at the time of purchase, I dont think its a criminal offence to say to the clerk, well here im leavin the money for it here and the manager can sort it out when they are back.

Jimminy Mc Fukhead

NoQuarter wrote: »

I dont think its a criminal offence to say to the clerk, well here im leavin the money for it here and the manager can sort it out when they are back.

The guy on the till who is the agent acting on behalf of the shop told the customer that they were not selling them the bottle. Furthermore they explained that it would be illegal to sell them the bottle. A minor offense under licensing law. The shop cannot process an illegal transaction and they have no obligation to do so. It is not enough for someone to bring an item to the cashier for the sale to happen. There is no contract. The customer has been told 'we're not selling you this'. I don't see any issue here with mens rea.

Zambia

This is ridiculous you will never get a conviction here.

Mens rea is proved by the actions of the accused. If anything the store are trying to prevent them doing the right thing. If the store want to utilise cheap labour well then they have to run the risk of people doing these things.

Imagine being the manager/security of the store in the witness box trying to justify the fact that they arrested this person for theft.

A good/average barrister would have you bent over on the stand.

I still have not seen any of the Garda that lurk around here wanting the case either.