embezzlement

Question 1

embezzlement definition

Answer 1

the failure to account satisfactorily for property that has been entrusted to one

Question 2

embezzlement definition case

Answer 2

Kent v HM Adv 1950 JC 38
Significance: Embezzlement is property that is entrusted to be administered by the person to whom it is entrusted, which is appropriated by this person without consent.

Question 3

what constitutes embezzlement?

Answer 3

Edgar v MacKay 1926 JC 94
Facts: A solicitor got instructions from their client to recover payment for a sum of money, but the solicitor didn’t get in touch with his clients for a number of months. They instructed him to stop working for them.
Legal issue: During this period of silence, the accused had been collecting a number of sums of money on his clients’ behalf, not telling the client about it. They found out, and wrote to him, demanding the money back. He refused, and was convicted of embezzlement.
Held: Even though it wasn’t possible to point to a precise moment where the appropriation happened, this wasn’t a problem.
Significance: The duty to account for the property and the failure to do so was enough to constitute embezzlement.

Question 4

mens rea requirement for embezzlement

Answer 4

Allenby v HM Adv 1938 JC 55
Facts: A convicted person appealing against his conviction of embezzlement. He had been acting as a salesman for a number of fish trawlers, and he engaged in some unusual practices, such as collecting all the money he received and putting it into a common fund, and using this to make advances to various trawler owners.
Legal issue: He had been charged with embezzlement, but at the trial, the sheriff hadn’t mentioned to the jury that there was any requirement for dishonest intention; the jury was simply told that acting in this way was enough to constitute embezzlement.
Held: the appeal court found that this had been a misdirection. These practices weren’t great, however they were pretty common in the industry. Also, this guy had kept really good records, and there was no indication that he was trying to hide anything.
Significance: Dishonesty is required.

Question 5

an example of dishonest intention

Answer 5

Moore v HM Adv 2010 SCCR 451
Facts: The accused using the company credit card recklessly, without being able to provide any good reason.
Legal issue: Was the erratic use and inability to provide a good reason for the spending enough to establish the dishonest intention to appropriate the money?
Held: Yes.

Question 6

reasons to retain the offence of embezzlement

Answer 6

You can’t steal your own property, but you can embezzle it.

Guild v Lees 1995 SLT 68
Facts: In this case, the accused was a secretary of a sports club, and he used the club chequebook to pay his own electricity bills.
Legal issue: The accused argued that transferring these funds was transferring incorporeal property, and he therefore couldn’t be convicted of embezzlement.
Held: He could be convicted of embezzlement.
Significance: incorporeal property can be the subject of an embezzlement charge, but it cannot be the subject of a theft charge in scots law.