Milne v Tudhope
| Jurisdiction | Scotland |
| Judgment Date | 13 November 1980 |
| Docket Number | No. 9. |
| Date | 13 November 1980 |
| Court | High Court of Justiciary |
JC
L.J.-C. Wheatley, Lords Kissen, Murray.
Crime—Theft—Mens rea—Whether an intention to deprive an owner temporarily of his property will suffice to constitute the necessary mens rea for the crime of theft.
In the summer of 1978 the owner of a cottage entered into a fixed price contract with the appellant, who carried on business as a builder, whereby the appellant undertook to carry out certain building, renovation and modernisation work at the cottage. When the work was nearing completion, a dispute arose about the quality of the work. On 18th December 1978, by which time the contract price had been paid, a list of defects which required to be remedied was delivered to the appellant. The appellant refused to carry out the remedial work required unless he received additional remuneration. The owner declined to agree to make such additional payment. On the morning of 19th December 1978 the appellant and three other accused detached and removed from the cottage a number of doors, radiators, a boiler, a ladder, window frames and panes of glass, without the consent or knowledge of the owner. Most of the articles were taken to the home of the second and third accused and stored there.
The appellant subsequently advised the owner that all the articles would be returned if he were allowed to complete the contract and receive additional remuneration. The owner rejected that proposal and the whole matter was subsequently reported to the Procurator-fiscal. The appellant and the other accused were charged with theft.
The Sheriff, finding the appellant guilty as libelled, held inter alia that a clandestine taking, aimed at achieving a nefarious purpose, constituted theft even although the taker intended all along to return the thing taken when his purpose had been achieved.
Held, dismissing the appeal, (1) that the Sheriff was entitled to find that mens rea was present in respect that the facts disclosed that the appellant was trying to achieve something by a scheme which he must have known was unlawful.
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(2) That the taking of the various articles was "clandestine" as it was done secretly so far as the owner was concerned, and without his authority.
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(3) That in certain exceptional cases, of which this case was one, an intention to deprive an owner temporarily of the article taken will suffice to constitute the necessarymens rea for the crime of theft.
Herron v. Best 1976 S.L.T. (Sh.Ct.) 80disapproved.
Alistair Thomas Milne, Alistair Thomas Milne (Junior), William Cuzen, Senior, and William Cuzen, Junior, were charged in the Sheriff Court at Hamilton on a complaint at the instance of James Mackenzie Tudhope, Procurator-fiscal. The charge against them set forth that:—"you did on 19 December 1978 at the house at 513 High Street, Newarthill, District of Motherwell, occupied by William Miller MacPhail steal 10 radiators, a ladder, 24 doors, 11 windows, a boiler, a quantity of tiles, 10 panes of glass and a quantity of glass and other joinery incidentals the exact quantity and nature whereof being to the Complainer unknown."
Each accused pled not guilty and after trial the first and second accused were on 28th January 1981 found guilty as libelled and fined £250 and £150 respectively; the third accused was found guilty of reset and fined £100. The charge against the fourth accused was found not proven. The first, second, and third accused each requested the Sheriff to state a case for the opinion of the High Court of Justiciary.
The case set forth that the following...
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Black and Another v Carmichael
...by the accused. An intention to deprive an owner permanently of his property was not essential to the crime: see Miln v TudhopeSC (1981 JC 53). The act of depriving the motorist of the use of his motor car by detaining it against his will could accurately be described as stealing something ......
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Grant v Allan
...theft, although it is a punishable act. (As the law has developed, temporary appropriation may be sufficient for theft—Milne v. TudhopeSC 1981 J.C. 53.) In the footnote, Burnett states that the jury found: "that the prisoner, by unlawful means, got possession of the pocket-book, and receipt......
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Should the Law of Theft Extend to Information?
...‘Theft of Information Revisited’ (1997) Journal of Business Law 187 at190 (March).31 It was held in the earlier case of Milne vTudhope 1981 JC 53 that in certainexceptional cases an intention to deprive temporarily will suffice. Milne vTudhopewas later followed in Kidston vAnnan 1984 SLT 2......