Santa Claus: Christmas’ Most Celebrated Criminal?

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Santa Claus: Christmas’ most Celebrated Criminal?

Author: Adam McGlynn

Key Contact: Claire Knowles

When you think about it, Santa is pretty rogue. The epitome of chaotic good, the jolly façade conceals a man who plays by nobody’s rules but his own. He has even gone so far as to build his workshop at the North Pole, outside the jurisdiction of any individual state. But once per year, Santa travels the world delivering presents, including right here in the UK. While within our borders, Santa becomes subject to our laws, and his devil-may-care/ ‘ends justify the means’ attitude could make him the most celebrated criminal never to be caught. What crimes could this alleged festive felon have committed to earn such a title you ask? Well, that is exactly what this article examines, as I review the top 5 criminal allegations against Santa.

As a brief disclaimer, before I am likened to J. Jonah Jameson or whichever real-life scaremongers come to mind, this article is for entertainment value only. As Santa’s solicitor, it is my job to consider any allegations he may be faced with, as I have done with immigration, GDPR, labour, and contract law in the past. Santa in no way constructively admits any guilt or liability through this article, and for those seeking to pursue the allegations discussed below in court… well, I’ll be there with jingle bells on.

Down the chimney St. Nicholas came with a bound

Starting with perhaps Santa’s most questionable activity, his raison d’être, his propensity to enter the homes of those who have been good enough to receive Christmas presents. It should come as no surprise that there are laws in the UK about when people can enter our homes, and what they can do there. Trespass can be either a civil offence in tort and/or a criminal offence, with slightly different approaches.

Tort law deals with wrongful, but not necessarily ‘illegal’ acts that can result in compensation awards in court, rather than criminal sentences. Trespass can be one such tortious act where someone enters a property without the necessary consent from a person in possession of the property, or where their permission to remain on the property is withdrawn. This alone may give rise to a civil claim but is not quite enough to constitute a criminal offence of trespass.

For Santa to be guilty of the criminal offence of trespass, a further act is required. For example, Santa would need to intend on residing at your home, refuse police directions to leave, or, perhaps most befitting of the Arctic anarchist, refuse police directions not to organise a rave. Alternatively, trespass could form part of a different crime, such as burglary. Now Santa doesn’t take much, in fact, there shouldn’t be a scenario where you would suffer a loss from Santa’s visit. However, Santa is usually tempted by some treats for himself and his reindeer.

So, does Santa commit civil or criminal trespass? Not likely. Santa is perhaps the only person who can rely on implied consent to enter your residence at midnight on Christmas Eve. If you would like to build a civil trespass claim against Santa, you would be advised to override the implied consent with signs that expressly communicate that he is not welcome. Just don’t be surprised when you wake up without an actionable claim or that Lego Deathstar you wanted. In criminal terms, Santa is unlikely to commit the required acts for a trespass offence but may do for the offence of burglary. Even so though, criminal offences also require a corresponding ‘mens rea’ or ‘guilty mind’, but Santa would believe that he is permitted to enter the property and that he is welcome to the treats presumably left out for him.

And away they all flew like the down of a thistle

The maximum speed limit in the UK is 70 mph, with most built-up areas reducing this to 30 mph. Some of you, especially those forced to traverse Cardiff at a further reduced 20 mph, will understand the occasional primal urge to exceed that speed limit. Santa, however, has a need for speed unrivalled by most commuters. Stealing some quick maths from the BBC, Santa would need to travel 160,000,000km to visit 800 million children in 200 million homes spread over 3x1013m2 of land. He would have about 10 hours of night, plus an additional 24 hours if he makes the correct turn out of the workshop and uses time zones to his advantage. To be successful, Santa must be travelling in excess of 4,705,882km/h which is not quite light but still probably too fast to get caught on camera.

Here may lie the purpose of Santa’s analogue airship. Most modern traffic legislation like the Road Traffic Act 1988 and the Road Traffic Regulation Act 1967 refer predominantly to ‘motor vehicles’ which are mechanically propelled vehicles, unlike Santa’s reindeer-propelled sleigh. There are other ways the sleigh could be caught by the acts, and their related offences, for example it could be caught as a hovercraft if the reindeer propel the sleigh by expelled air, but I would rather not think about that. Santa will still need to be mindful of more old-fashioned rules of the road though, like section 72 of the Highway Act 1835 which makes it an offence to cause a nuisance by riding animals, carriages, or sledges upon a footpath or causeway.

Beyond, his speed though, Santa somehow manages to complete his merry mission, presumably, absolutely Christmas-crackered. The legal blood/alcohol limit in the UK is 0.8%. Let’s use the figures above: 200 million homes = 200 shots of 18% sherry and 34 hours since his first drink. Let’s also assume Santa is 260lb, as suggested by the North American Aerospace Defense Command (NORAD), an online system that tracks Santa’s progress around the planet. By the end of Santa’s journey, he will stumble back to Mrs Claus with a blood alcohol level of 8,401,843.86% and the oiliest kebab known to man. Perhaps he delivers presents better that way?

Now dash away! dash away! dash away all!

You know Dasher and Dancer and Prancer and Vixen, Comet and Cupid and Donner and Blitzen. But do you recall… the Animal Welfare Act 2006? Santa’s reindeer go through some highly treacherous conditions to ensure Santa visits everyone on his list in one night. While in the UK, Santa will need to consider our welfare laws, which prohibit acts of cruelty and impose a duty of care over the animals in his care.

Santa may be challenged on whether he has ensured the needs of the reindeer are sufficiently met, including their need to exhibit normal behaviour patterns and their need for a suitable diet. As far as I am aware, these are the only reindeer that circumvent the globe in one night, dragging a sleigh full of presents through the air. That’s a lot of effort, which also requires a lot of energy. We do not know what tasty treats Santa may give his reindeer behind workshop doors, but we know that they are eating a considerable number of carrots on Christmas Eve. The catch… carrots aren’t part of a reindeer’s natural diet, and, in fact, they struggle to digest them because they don’t have any incisor teeth on their top jaw. Beyond that, a 2021 article by the Naked Scientist estimated the reindeer would need to consume at least 204 tons of carrots, equalling 40,080,000 carrots, to have the energy for the trip. That’s a lot of poorly digested veg, even for Christmas.

Santa will also need to consider if he is taking reasonable steps to ensure the reindeer do not endure any unnecessary suffering. It is entirely unknown whether the reindeer face any suffering at all, however, to the extent that jumping from rooftop to rooftop with carrot-induced IBS does cause any suffering, Santa would look to argue such suffering isn’t ‘unnecessary’. The act sets out relevant considerations for determining this including, for example: (1) Was there a legitimate purpose to ride reindeer around the world? – The act focuses on benefiting the animal or protecting a person, property, or another animal, but perhaps Parliament will include bringing joy to the world in the next version; (2) Was the suffering proportionate? – Weighing the reindeers’ suffering against Santa’s objective, it is possible this is proportionate, especially if they get to relax for 364 nights of the year; and (3) Would a reasonably competent and humane person feel the suffering is unnecessary? – Since, as a society, we continue to welcome Santa’s reindeer with cheer and carrots each year, I suspect public consensus is on Santa’s side here and we may need to take the carrot out of our own eye before pointing fingers.

With the sleigh full of toys, and St. Nicholas too

Santa has a lot to get done on Christmas Eve. Half of the world would be a little disappointed if Santa had to check-in 2 hours ahead of a few hundred cancelled flights each year. But I’m not talking about him dodging UK Visas and Immigration again, oh no. This time my eye is on the bag. I’m thinking about the sleigh full of goods that Santa arguably smuggles into the UK each Christmas, completely circumventing customs and excise. Santa could find himself liable for a substantial backlog of duty. But what does this mean now that we have the goods?

If the presents that Santa gifts each year have been smuggled in, they could arguably fall within the remit of the Proceeds of Crime Act 2002. Since tax would have been evaded, there is a benefit of the value of that tax achieved through criminal activity and the Criminal Prosecution Service or Serious Fraud Office could seek to recover the value of that benefit. Since the presents are then given to UK residents, it begs the question whether these authorities could recover the benefit from gift recipients through ‘confiscation orders’. Since the public would not have smuggled the gifts themselves, no gift receiver would be guilty of ‘particular criminal conduct’. However, the authorities would also consider if the gift receiver has a ‘criminal lifestyle’ and, if so, can assume that all property acquired by them, including the present, was the proceeds of crime. Perhaps Santa distinguishes between ‘naughty’ and ‘nice’ using a definition similar to ‘criminal lifestyle’, and naughty people do not receive presents because their value can simply be confiscated anyway.

And giving a nod, up the chimney he rose

Though the source and nature of his powers are unknown, accounts agree that Santa’s wields what can only be described as ‘Christmas magic’. The relevance? Witchcraft was criminalised in the UK under the Witchcraft Act 1541, also known by its long title: An Act against Conjurations, Witchcrafts, Sorcery and Inchantments, and its successors. It was illegal to practice these mystic arts in Great Britain until the Witchcraft Act 1735 which replaced these offences with offences of pretending to have such powers for financial gain. Northern Ireland took a little longer but now consumers across the UK can feel protected from fraudulent claims of mystical powers thanks to the Consumer Protection from Unfair Trading Regulations 2008. Fortunately for Santa, he is unlikely to be guilty of any such offences though as (1) he isn’t acting to gain or cause loss; and (2) he is actually magical. While seemingly safe in the UK, Santa will still need to exercise caution elsewhere in the world though as several countries still outlaw the actual practice of magic.

In conclusion, if you are in doubt about whether something is legal, remember to do as Santa says and not as Santa does.

Happy Christmas to all, and to all a good night!

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