Theft

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Actus reus

Back 1

-s.3- Appropriates
-s.4- Property
-s.5-Belonging to another

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Mens Rea

Back 2

- S 2(1)-Dishonestly
-S.6 - with intent to permanently deprive

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Definition of theft

Back 3

S 1(1) of the Theft Act 1968 – A person is guilty of theft if they dishonestly appropriate property belonging to another with the intention to permanently deprive the other of it

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Appropriation

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Appropriation s.3(1) Theft Act 1968 as including any assumption of the rights of an owner.

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R v Morris [1983]

D need only assume any one of the rights of ownership by his actions.

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D took goods from the shelves of supermarket. He replaced existing labels with labels showing a lesser price. He was arrested after buying the goods at the lesser price and was subsequently convicted of theft. HOL HELD: D appropriated goods and committed theft once he switched the labels

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Lawrence v MPC [1972]-

An appropriation may still be present notwithstanding the consent of the owner:

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D, a taxi driver drove a newly arrived foreign student with little English from Victoria Station to an address in London. The student had offered a £1 note for the fare, which D said was not enough before extracting a further £6 from the students open wallet. In truth, legally authorised fair for the journey was 50p. Although the student had permitted d taking excess money his conviction was upheld. The consent was irrelevant in this matter.

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DPP v Gomez [1993]

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D, assistant manager of a shop, had formed a plan with R, a customer to acquire goods in exchange for 2 stolen cheques. Knowing that the cheques were stolen, D deceived the shop manger into authorising the sale of goods to R in exchange for the cheques. Instead of charging him with obtaining him with obtaining property by deception, Prosecution charged D with theft. HOL maintained conviction, saying Lawrence’s construction of appropriation was correct.

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Criticism of Gomez

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-Demolished any distinction between theft and fraud.
- Ambit too broad ( w/o policy suggestions from parliament that this is what they intended)
-Conflicts with Civil law
-Puts onus on element of dishonesty, to reduce scope.

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Property

Back 9

S. 4(1) Theft Act 1968 provides that property includes money and all other property, real or personal, including things in action and other intangible property.

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o R v Velumyl [1989]

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D dishonestly borrowed money from his employer’s safe, without authority and in breach of company rules. D apparently intended to repay the amount borrowed. He was nonetheless convicted of theft. Although D intended to return an equivalent sum of moneys these would not be identical notes and coins that he has taken. Held: D intended to deprive V of the particular notes and coins that he appropriated.

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Real property refers to land and anything fixed to land eg houses and buildings how-ever,

by virtue of s.4(2) Theft Act 1968 land cannot be stolen unless:

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a) D is a trustee, representative or has authorised power of attorney and deals with the property in breach of trust. Or
b) Where D is not in possession of the property but appropriates anything forming part of the land by severing or causing it to be severed. Or
c) Where D is a tenant and appropriates the whole or part of any fixture.

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Things in action

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refers to a personal property right which cannot be asserted physi-cally but can be vindicated by legal action.eg a patent right, a debt, a right arising under a trust, a right to overdraw an account, a cheque etc.

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Personal property refers to property other than land.

Intangible property is property which has no physical existence.

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o R v Smith [2011] Property includes prohibited drugs
o R v Sharp [1857 ] Property does not include corpses
o R v Kelly [1999] Body parts may constitute property:

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Confidential information does not constitute property for the purposes of the Theft Act:
Oxford v Moss (1979)

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Uni student took an examination paper before the examination and copied itbefore reurning the paper to is orignal loccation He was held not to have commited a theft. The Uni had not been deprived of any information.

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- S.4(3) Theft Act 1968

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provides that a person who picks wild mushrooms, flowers, or foliage growing wild on any land will not be liable for theft unless it is for sale or re-ward.
he willl not be liable if he :
i. removes PART of the plant (mushroom can be whole)
ii. The plant is growing wild (not cultivated)
iii. he picks it rather than chops it down
iv. he does so for nor commercial purposes

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S.4(4) Theft Act 1968

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provides that wild creatures cannot be stolen unless they have been reduced into possession by or on behalf of another or are in the process of be-ing reduced into possession
-Bees in a hive are reduced into possesion.

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Belonging to Another

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S.5(1) Theft Act 1968 provides that property will be regarded as belonging to any other person having possession or control of it.
- can be temporary
- apply to several persons
- simultaneous

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Bonner (1970)

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Where more than one owner (e.g. co-owners or partners) can steal jointly owned property(chattell in this case) if all other elements present

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(Attorney General’s Reference (no2 of 1982)

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Company assets in theory can also be stolen even if sole director (or sole shareholder) as company separate legal entity

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Turner (no2) (1971)

person may be liable for theft of their own property

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Owner can steal own car (e.g when in garage undergoing repairs…)

In civil law garage had lien over car (right to keep until repairs paid for)

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Property subject to a trust s5(2)

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Trustees theft from trust
normally covered under s5(1) as beneficiaries have equitable interest (proprietary interest)
‘The persons to whom it belongs shall be regarded as including any person having a right to enforce the trust’

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Property subject to a trust s5(2)

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Where trust does not have any identifiable beneficiaries (e.g. charitable trust) deemed to belong to anyone with right to enforce (e.g. Attorney-General)

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When is property not belonging to another?

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When the proprietary interest in goods has passed…
e.g. when eating in a restaurant (Corcoran v Whent [1977]
or when filling a tank of petrol (Edwards v Ddin [1976]

- Covered by Fraud obtaining by services by deception

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When is property not belonging to another?

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R (on application of Ricketts) v Basildon MC[2011]
1. Not abandoned as gift to charity being delivered to charity shop
2. Now belonged to or in possession of charity

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Lost property

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Lost property is still regarded as belonging to the loser. However, where the owner cannot be found by taking reasonable steps, the finder of the property has better title to the items than the owner of land on which the items are found:
o Bridges v Hawkesworth (1851)
- Unless they are a trespasser:
o Hibbert v McKiernan [1948]
- However, where the items are found under the surface of land, the land owner has a better title than the finder:
o Waverly Borough Council v Fletcher [1995]

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Where property received from or on account of another (s5(3))

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S. 5 (3) Theft Act 1968 provides that where the property in question is given to a person with instructions to deal with it in a certain way, the ownership in the property is deemed to remain with the giver.

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(Hall [1973]

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A travel agent received money from clients for deposits for their holidays. He paid these monies into the general trading account for the business. The business collapsed before he paid the money to book the holidays and the clients lost their deposit.
Held:The travel agent was not liable for theft as there was no obligation to deal with the money in a particular way under s.5(3) Theft Act 1968.

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Wain (1995)

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D raised money frompublic by conductiing charity events. Subseqeuntly, he failed to hand the money ovoer and instead spent it. D's conviction was upheld by CA on the baiss that he was obliged to retain the proceeds of his fundraising for the benfit of the charity; hence under 5(3), the moeny belonged to the charity for the purposes of theft.

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Receipt of Property by Mistake (s5(4))

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provides that where a person receives property by mistake and is under an obligation to return the property a failure to restore the property will amount to theft.

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o R v Shadrokh-Cigari [1988]

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A bank mistakenly credited £268,000 into a child's account rather than £268. The defendant, the child's guardian, took money out of the account with bank drafts signed by the child.
Held:The defendant was liable for theft as under s.5(1) the bank retained an equitable interest in the drafts and under s.5(4) he was under a legal obligation to return the money received by mistake.

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o R v Gilks [1972]
- There must exist a legal obligation to return the money as oppose to a moral obligation:

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Manager of the betting shop mistakenly believed the Appellant had won bet & paid more than deserved. Appellant knew of manager's mistake but accepted the money. He was convicted of theft. Appealed on the grounds that since there was no legal obligation to repay the money. the money was simply a gift and therefore in law belonged to him. He argued that s.5(4) Theft Act 1968 relating to money received by mistake required a legal obligation, moral obligation was not sufficient.
Held:His conviction was upheld because there was no need to invoke s.5(4) of the Theft Act 1968 money paid by mistake does not pass to the Appellant.

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Property of a Corporation Sole s5(5)

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Corporation sole is a position (normally ecclesiastical or titular) which carries with it temporal/secular property ownership (e.g. archbishop of Canterbury; bishop of Exeter; Lord Mayor of London) and is a legal entity in itself.
Whatever property belongs to that position can be stolen even if it is unoccupied (vacant)

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Dishonesty

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There is no statutory definition of dishonesty, although, s.2(1) Theft Act 1968 gives three instances of when a person is not to be regarded as dishonest:

a)if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or
b)if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or
c)if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

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Preliminary points

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Imports notions of motive and excuse to situation and circumstances
Involves consideration of morality and personal beliefs of accused

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Holden [1991]

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Test is a subjective one: D’s honest belief
But belief does not require ‘reasonable grounds

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S2(2)

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‘A person’s appropriation of property may be dishonest notwithstanding that he is willing to pay for the property’ (i.e. irrespective of having money in wallet)

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The question of dishonesty must be left for the jury to decide- R v Feely (1973)

In situations not covered by s.2, where the defendant claims that he is not dishonest, the Ghosh test applies:

Back 37

Ghosh [1982]
1. Was what was done dishonest according to the ordinary standards of reasonable and honest people?
2. Did the defendant reaalise that reasonable and honest people would reard what he did as dishonest?

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Criticism of Ghosh

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-Is difficult to explain to a jury and controversial in its application by them
-Assumes juries are heterogenous and have consistent values‘absence of moral consensus within modern society over dishonesty’
-some practices seen as ‘perks’ of the job or employers ‘turn a blind eye’ to behaviour
-validity of ‘Robin Hood’ defence?

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Justification of Ghosh

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Entirely subjective test would lead to the values that the law would have us act upon bieng displaced in each case, by those of the Particular defendant.

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Valid defence

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But may be defence for D who thinks ‘reasonable and honest people’ would not regard conduct as dishonest
(e.g. anti-vivisectionists, wealth redistribution)

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Problems in Law

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-Dishonesty cannot be given clear, shared ordinary meaning
-Broad interpretation and inconsistencies in application brings uncertainty to law
-Possible Human Rights Law challenges?

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s6 intending permanent deprivation

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‘A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights…’

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- S.6(1)

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also covers borrowing in circumstances making it equivalent to an outright taking. The courts have taken a strict line on what amounts to being equivalent to an outright taking:

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Conduct & Circumstance

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Calill [1993]- Treats the thing as his own to dispose of regardless of others’ rights (e.g. damages, sells, ‘deals with’, ‘gets rid of’)
Fernandes [1996]- Parts with it under conditions he may not be able to perform (e.g. pawning or gambling it)

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Is ‘borrowing’ a crime?

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Temporary deprivation even if dishonest not theft…must be permanent
Borrowing or lending may become theft if carries on for too long (i.e. outright taking)
Depends upon intention (and evidence of this in words or conduct or circumstances of the taking)

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How long is the period of deprivation?

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In circumstances where person uses and returns item taken…
Depends on physical condition
Has the ‘virtue’ in the property been extinguished? (Lloyd [1985]; Bagshaw [1988]

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Conditional Theft

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If D intends permanent deprivation has requisite MR equivalent to ‘outright taking’ even if finds item (e.g. handbag or wallet) is empty or nothing or value inside (Attorney General’s References (Nos 1 and 2 of 1979) [1979] 3 All ER 143)

-Charged as attempted theft.