An overview of the Criminal Justice (Theft and Fraud Offences) Act 2001
In this week’s article I’m going to back towards the legal side of the security industry. Im going to give an overview of probably one of the most commonly used and also commonly misrepresented pieces of legislation in Ireland. That is the Criminal Justice (Theft and Fraud Offences) Act 2001. I like this piece of legislation and I’ve used it probably more times than any other law in my career. It covers crimes against property and is most often used in retail security, but I have used it in others areas as well. There is also often some confusion in its application which I hope to cover as well. When can you arrest for theft? The difference between theft and robbery etc. It doesn’t cover all property related crime and there are some like criminal damage and trespass that I’ll cover in a later article but for now this is an overview.
Criminal Justice (Theft and Fraud Offences) Act 2001
The Criminal Justice (Theft and Fraud Offences) Act 2001 covers a wide range of property crimes in Irish law. It contains offences such as theft, obtaining goods by deception, burglary and robbery, and outlines the maximum sentence upon conviction for each offence. Security operatives working in the retail security sector will deal with this legislation regularly when dealing with retail crime.
The areas we will cover in this section are:
- Obtaining goods by deception
- Obtaining services by deception
- Aggravated burglary
- Possession of certain articles
The offence of theft in Irish law is defined in Section 4 of this Act. Theft is defined as follows:
“A person is guilty of theft if he or she takes the property of another person, without the owner’s consent and with the intention of permanently depriving the owner of the property.”
In simpler terms, in order to commit a theft a person must:
- Take property belonging to somebody else
- Without the owner’s permission or consent to take it
- Remove it from the owner’s possession
- Show an intention not to return the property to the owner
- The property must have a value.
To give an example in retail security: Person X walks into a retail store and picks up an item of store property. X then puts the property into their bag and leaves the store with the property and without paying. X has committed a theft because:
- They are aware that the property belongs to the store
- They are aware that in order to take property from the store it must be purchased
- They remove the property from the store, and by walking away they have shown an intention not to return or pay for the item
- The item has a price, therefore it has a value.
A common question that comes up is when has the theft occurred and when can the security operative make an arrest. Some would argue that once the person passes the last point of purchase you can arrest because they can no longer pay for the item. Others would say that you must wait for them to leave the store. I would always advise to wait until a person leaves the store before arrest. Remember the legal phrase is intention to “permanently” deprive. Many Gardaí and others in the security industry (including me will testify that its quite easy to create reasonable doubt in a judges head that there was no intention to permanently deprive if the person was still in the store with the goods.
A person who is found guilty of theft can receive a maximum term of 10 years in prison upon conviction on indictment (although I have never seen this happen or even get near to this). Therefore, it is an arrestable offence. Most theft cases are tried summarily in the District Court.
Obtaining goods or services by deception
The offences of obtaining goods or services using deception are outlined in Section 6 and 7 of the Act, respectively. Commonly these would be called fraud or fraudulent behaviour. The key word in this offence is deception. The offender must be clearly shown to have used deception in carrying out the act for it to constitute an offence. The offences are defined as follows:
“A person who dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another, by any deception induces another to do or refrain from doing an act is guilty of an offence.”
“A person who dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another, by any deception obtains services from another is guilty of an offence.”
Breaking down the offence into simpler terms, a person must:
- Use deception or dishonesty
- To cause a loss to somebody else
- Or make a gain for themselves
- There does not have to be any physical property removed from the owner or area.
An example of an offence under this section is as follows.
Person X walks into a retail store and selects a coat from the shelf. They place the coat into a bag and walk to the till. They then tell the cashier that they bought the coat previously but it’s the incorrect size and they would like to exchange it for a different size. The cashier then takes the coat from X and hands them a new coat to leave the store with. X has obtained goods using deception, as they:
- Deceived the cashier
- Caused a loss to the store
- Made a gain for themselves
- Even though the coat was given to them to take from the store, it was obtained through dishonesty on their part.
The maximum sentence upon indictment for both of these offences is 5 years in prison.
|The offence of burglary is covered under section 12 of the Act. Burglary is deemed by both the Gardaí and the courts as one of the more serious offences against property, largely due to the impact which it can have on the victim. Burglary is defined in the Act as follows: A person is guilty of burglary if he or she:
(a) enters any building or part of a building as a trespasser and with intent to commit an arrestable offence, or
|(b) having entered any building or part of a building as a trespasser, commits or attempts to commit any such offence therein.|
|(2) References in subsection (1) to a building shall apply also to an inhabited vehicle or vessel and to any other inhabited temporary or movable structure, and shall apply to any such vehicle, vessel or structure at times when the person having a habitation in it is not there as well as at times when the person is there.
To break this down into practical terms, a person who commits burglary:
An example would be a person breaking into your home or business and stealing or attempting to steal your property. The person has entered by breaking in, so is therefore a trespasser, and by attempting to commit a crime while on the premises, they commit an offence of burglary.
As we discussed above, the legal system regards the offence of burglary very seriously, and this is illustrated by the fact that the maximum sentence for a person found guilty on indictment for burglary is 14 years in prison.
The even more serious offence of aggravated burglary is discussed in Section 13 of the Act. The definition of the burglary aspect of the offence is the exact same as above, but the addition of the word aggravated makes the offence more serious.