In the case of Joyce v. DPP19 the defendant was prosecuted for theft of a passport because it had been dishonestly obtained. This would also apply in Ria’s case because she has dishonestly retained the manager’s card and Sonia’s card to make use of her PIN number and make purchases. The Courts have held that misappropriating the funds of others would amount to theft20 especially those who are vulnerable in some way, such as the elderly or naïve people who may be exploited by unscrupulous people. 21 The manner in which Ria has entered the manager’s office without his knowledge or permission and taken his card as well as the way in which she has retained Sonia’s card indicate that she has been dishonest and she may also be criminally liable under the Fraud Act of 2006, which has created a new offence of fraud.
Under this Act, Ria could be held guilty of dishonestly abusing her position in appropriating the cards of the manager and Sonia, as well as gaining access to her pin number. 22 In order to establish that an abuse of position has taken place, it is necessary to show that the defendant (a) occupies a position where he or she is expected to safeguard the financial interests of another person but (b) abused that position (c) dishonestly (d) intending to profit from it.
An abuse of position can also occur through an omission. In Ria’s case, she is employed as a sales assistant and is required to exercise responsibility in maintaining the confidentiality of financial information pertaining to the customers. Even if she learned the pin code of the customer’s credit card, she was under an obligation not to misuse such information for her own benefit.
In the case of R v Ghosh23 the Court held that in a case of dishonesty, the jury must first consider whether the action of the defendant was dishonest by the standards of a reasonable person and whether the defendant was aware that he or she was being dishonest. In this instance, Ria’s action in retaining Sonia’s card leads to an inference that she intended to make use of the pin number for her own benefit, but her merely retaining the card even in the long term, would not have constituted theft. 24 Similarly in the case of Easom25, it was held that a conditional intent to deprive another person of his or her property will not constitute theft.
But in Ria’s case, the intent has been followed through with action. In the case of appropriation of Sonia’s card, she has used the pin number to make purchases for herself.
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