Criminal - Theft

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s. 4(1) Criminal Justice (Theft and Fraud Offences) Act 2001 - Theft

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s. 4(1) Criminal Justice (Theft and Fraud Offences) Act 2001: an offence to dishonestly appropriate property without the consent of the owner and with the intention of depriving the owner of it.

Penalty: an indictable offence, maximum 10 years and/or an unlimited fine.

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Actus Reus

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s. 4(5): “appropriate” = usurp or adversely interfere with the property rights of the owner.

s. 2(1): “property” = money, real property, personal property, intangible property.

s. 4(2): “consent” = a belief that the Def has consent from the owner, or a belief that the owner is not identifiable.

s. 2(4): “ownership” = possession; control; proprietary right; enforceability of a trust; bailment; entitlement to restitution; company property. So broadly defined that it is possible from one part-owner to steal from another part-owner.

s. 4(3): provides that a trustee who appropriates all of part of a trust for his own benefit is subject to s. 4(1).

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Mens Rea

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The mens rea for theft is twofold:

i. Intention to deprive the owner permanently or temporarily;

ii. “Dishonestly”, defined by s. 2(1) as “without a claim of right made in good faith”.

The phrase “without a claim of right made in good faith” has been considered by the CCA twice: People (AG) v. Grey (1944), People (DPP) v. O’Loughlin (1979)

NB: a very subject test for honesty.

However, s. 4(4): all parts of the honesty (as to entitlement, consent etc.) shall be considered by the jury in conjunction with the presence or absence of reasonable grounds for the Def’s beliefs when acting.

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People (AG) v. Grey (1944)

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Wartime; Def’s employer was unable to fulfil a contractual obligation to provide Def with gas for domestic purposes; Def took batteries and connectors for light at home without employer’s consent; court held that if the accused honestly believed he was entitled to do so, he should be acquitted.

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People (DPP) v. O’Loughlin (1979)

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Def was owed money by his neighbour; took muck-spreader from his neighbour’s farmyard without consent; he argued that the owed money render his actions a claim of right made in good faith; court highlighted that the law is irrelevant; this provision focuses on the honest belief of the Def.

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Exceptions

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s. 5 sets out five exceptions:

i. Property bought in good faith; regardless of the vendor’s defective title, no theft by the purchaser;

ii. Land cannot be stolen unless (a) a trustee tranfers land to himself in bad faith; (b) a person actually severs land to which he does not have a right; (c) a person with tenancy or licence improperly appropriates a fixture or structure on the land;

iii. mushrooms, fungus, flowers, fruit, foliage on another’s land are not subject to the offence, unless they are picked for commercial purposes;

iv. untamed wild creatures are not subject to the offence, unless possession has been claimed (and not later abandoned) by another.