In the 5th situation we do not have enough information to prove that Agnes has committed any crime. It states that she has removed the money from the safe; however, it does not say she has taken it. In certain cases, you can be committed with theft by removing an object from a container6; however, Agnes has not committed a crime because it states, "Agnes is in sole charge of the firm", and under the definition of theft: you cannot steal what is yours.
Although it can be argued that she was stealing from the company, where the company is regarded as a separate entity, it does not say she has taken the money, it states she "removed" the money, and being a partner of the company, she has every right to move the money as desired. In situation 4, Harold may be charged with reset. For Harold to be charged with reset he has to be in possession of stolen goods, which he knows were stolen. I believe that there is not enough evidence to prove that Harold is guilty of reset. When Harold and Agnes arrived back at the office, Agnes was driving, and Harold was not in control.
This could be interpreted that he did not have possession of the car, thus he could not be charged with reset. This may be argued that Harold is guilty of having a third party possessing7, yet it is doubtful. Even if this is the case, it states that the accused has to have knowledge that the goods were stolen. Harold may not have known that Agnes gave a false name when she was going for a test drive. When they got in the car, he may not have known that she was trying to steal the car – in Harold's defence, he could argue that he believed Agnes knew the owner of the garage and had been given permission to test drive the car for the day.
This is all hypothetical, as we do not have enough information to efficiently assess the situation, and even if Harold was aware that she was trying to steal the car, once she had started driving, it is arguable that he could not just jump from the moving car, as Agnes was driving at high speeds. As mentioned, there is just not enough information, but on the details given, Harold would not be charged with reset. In s. 57 of the Civil Government (Scotland) Act, it states that "any person, without lawful authority to be there, . . . it may be reasonably be inferred that he intended to commit a theft there shall be guilty of an offence".
With respect to situation 6, we are told that Agnes is on the fifth floor. It does not state that she has no authority to be there; she works in an office on the first floor and unless each floor is rented out, she is on common ground and has lawful authority to be there. It can be argued that she had the intention to commit theft, due to the manual and the keys, however, if it is the case that Agnes is allowed on the fifth floor, then the Act would not be applicability to section 6.
(b) Sheriff Gordon's comments to Scott v Friel8 were extremely short and to the point. However, he is questioning s.579 in respect to compatibility to the European Convention on Human Rights (ECHR). He fails to mention what area of the ECHR which he believes there may be a contrast. When observing the ECHR, I found only two areas in which the Sheriff may have been referring to, these are as follows. The first is Article 5, where it states that every person has the right to Liberty. The only problem with this is under the subsection of Article 5 it states that there is exemption to this if the there is country law which differs from this. This is true in Scotland's case; under s. 57, a person does not have complete Liberty.
The second Article, which the Sheriff may have been talking about, is 7. This once again seems unlikely, as it states that no one shall be guilty of a crime which when committed was not a crime under National, or International law. As previously stated, it is doubtful that the Sheriff was talking about this article, because it was in relation to Scottish law. The reason why I question these Articles, despite believing that they have little or no relation to s. 57, is because I do not think that Sheriff Gordon was correct in what he said, however, I thought I had better examine areas in which he may have been referring to.
(c) I do not think that the European Convention on Human Rights (ECHR) will have a substantial effect on Scottish criminal law. I believe that the ECHR is based highly on Scottish, English, French and German law, and does not differ in many ways. There is, however, two main areas which the ECHR may have some impact. The first is the right to bail. Currently under Scottish law, a person charged with murder may not be granted with bail, unless granted by the Lord Advocate, however, the ECHR opposes this with the belief that everyone is entitled to bail. The second area is Scotland's Breach of the Peace.
The ECHR will require that the definition of this crime be high lightened, and defined better. Also, another area which the ECHR may oppose under the Breach of the Peace is that another person can be charged because they acted in a way which may result in someone else committing breach of the peace. As stated, these are only two areas in which the ECHR may have an impact, but over all there will not be a major impact.
Scots Criminal Law (2nd ed. ) McColl, Smith and Sheldon Criminal Law Jones and Christie Criminal Law (2nd ed. ) Gordon A Practical Treatise on the Criminal Law of Scotland