Wednesday, June 15, 2011

Criminal breach of trust

Halsbury's Laws of England: Vol.55
By Yasser Latif Hamdani
The history of criminal breach of trust is found in common law in offences against property. As such a breach of trust is a breach by a person in fiduciary capacity and when the intent to defraud the owner or beneficiary of such property is established the breach of trust becomes a criminal breach of trust. In such an event, a trustee or a person in such fiduciary capacity becomes criminally liable for offences as under:
1.       Larceny i.e. non-violent theft of property an offence under common law.
2.       Extortion by colour of office or franchise
3.       False accounting by public officials
4.       Offences relating to public revenue
(See Page 673 – Para 1261 – of Volume 11 of the Halsbury’s Laws of England Fourth Edition)
There have been penal statutory enactments for offences against property dating back to 1275.  However in more recent times, larceny was codified in law as Larceny Act 1861 which was replaced with Larceny Act 1916. Ultimately all these enactments were repealed and replaced with The Theft Act 1968 which broadly includes larceny under theft. (Ibid)
Theft is dishonest appropriation of property belonging to another with the intention of permanently depriving that other of the aforesaid property. Any assumption by a person of the rights of an owner amounts to an appropriation and this includes where he has come by property without stealing it. (See Page 674 – Para 1262 – of Volume 11 of the Halsbury’s Laws of England Fourth Edition)
(Land) When a person is a trustee or personal representative or is authorized by a power of attorney or as a liquidator of a company or otherwise to sell or dispose of Land of another and he appropriates this property by dealing with it in breach of confidence reposed in him (Theft Act 1968 S. 4(2)(a) as quoted on Page 678 – Para 1266 – of Volume 11 of the Halsbury’s Laws of England Fourth Edition), it becomes a breach of trust and when the intent to defraud the other of this property is established this becomes criminal breach of trust.
Where property is subject to trust, the persons to whom it belongs are regarded as including any person having a right to enforce the trust, and an intention to defeat the trust is regarded accordingly as an intention to deprive of the property any person having that right (Theft Act 1968 S. 5(2) as quoted on on Page 679 – Para 1269 – of Volume 11 of the Halsbury’s Laws of England Fourth Edition).
It is an indictable offence at common law for a person to practise a fraud on the public revenue (on Page 691 – Para 1286 – of Volume 11 of the Halsbury’s Laws of England Fourth Edition.)
From the Lucinda Maer’s note on Misconduct in Public Office at Common Law for the Library of the House of Commons accessed at :
“Misconduct in public office is a common law offence. The offence is said to date back to the case of R v Bembridge in 1783. The defendant in this case was an accountant in the office of the Receiver and Paymaster General of the Forces. He was accused of corruptly concealing from his superior his knowledge that certain sums of money had been omitted in the final accounts. The judge in the case, Lord Mansfield QC, stated:
“The duty of the defendant is obvious; he was a trustee of the public and the Paymaster, for making every charge and every allowance he knew of… if the defendant knew of the omission… and if he concealed it, his motive must have been corrupt. That he did know was fully proved, and he was guilty, therefore, not of an omission or neglect, but of a gross deceit. The object could only have been to defraud the public of the whole, or part of the interest…a man accepting an office of trust, concerning the public, especially if attended which profit, is answerable criminally to the King for misbehaviour in his office; this is true by whomever and in whatever way the officer is appointed.”

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