1- Property offences: Theft

Question 1

Define theft and its sections

Answer 1

s1) A person is guilty of theft if he/she
s2) dishonestly
s3) appropriates
s4) property
s5) belonging to another
s6) with the intention of permanently depriving the other of it.

Question 2

Where is theft defined?

Answer 2

Theft Act 1968

Question 3

Which elements constitute the actus reus and mens rea of theft?

Answer 3

Actus reus:

1. Appropriation (s3)
2. Property (s4)
3. Belonging to another (s5)

Mens rea:

1. Dishonestly (s2)
2. With the intention of permanently depriving the other of it.

Question 4

What amounts to appropriation?

Answer 4

Any assumption by a person of the rights of an owner . It can be any of them and can be just one.

The rights of the owner include selling the property, destroying it, possessing it, consuming it or hiring it out.

Question 5

Appropriation: In what case is appropriation seen clearly?

Answer 5

R v Vinall (2011)

see cases

Question 6

Appropriation: Key cases for appropriation in theft:

Answer 6

1. R v Vinall (2011)- abondoned bike
2. R v Pitham and Hehl (1977)- selling furniture
3. R v Morris (1983)- switching price labels
4. Lawrence v Commissioner for Metropolitan Police (1972)
5. R v Gomez (1993)- worthless cheques
6. R v Hinks (2000)- receiving gifts
7. R v Atakpu and Abrahams (1994)

Question 7

Appropriation: In what case is an appropriation by assuming the right to sell seen clearly?

Answer 7

R v Pitham and Hehl (1977)

Question 8

Appropriation: In what case was it made clear that there does not have to be an assumption of all the rights of the owner for it to be considered an appropriation?

Answer 8

R v Morris (1983)

Question 9

Appropriation: Can a D appropriate an item when they have the owner’s consent? Which 2 cases demonstrate this?

Answer 9

In Lawrence v Commissioner for Metropolitan Police (1972) the court stated that an appropriation is an assumption of any rights of the owner, taking place regardless of whether the owner consents.

The point was considered again in R v Gomez (1993), from which it can be seen that any removal of goods from a shelf in a shop is an appropriation.

Point: To have committed an appropriation, D doesn’t need to do anything contrary to the owner’s wishes. The D’s acts are usually not consistent with the victim’s wishes.

Question 10

Appropriation: What was the problem raised in R v Hinks (2000)? What did the court decide?

Answer 10

Whether the decision in R v Gomez (2003) extended to situations where a person has given property to another without any deception being made.

The HoL decided that even though there was a valid gift, there was appropriation

Question 11

Appropriation: When does it take place?

Answer 11

In Gomez (1993) and Vinall (2011) it was viewed as occurring at one specific point in time. 
     - This is important bc there needs to be a coincidence of the actus reus and mens rea in criminal law. 

In R v Atakpu and Abrahams (1994) it can be seen that appropriation occurs the 1st time the person assumes the rights of the owner.

Question 12

Appropriation: What is meant by a ‘later assumption of the rights of the owner’ in the definition of appropriation in s 3?

Answer 12

Appropriation can take place where a person acquires property without stealing it and then decides to keep it or deal with it as an owner. The appropriation takes place at the time of keeping or dealing.

Ex: hiring a car and selling it.

Question 13

What amounts to property?

Answer 13

In s 4 of the Theft Act 1968 it is stated that property ‘includes money and all other property real or personal, including things in action and other intangible property.’

S 4 lists 5 types of items which are included in the definition of ‘property’.

 1. money (coins & bank notes of any currency)
 2. real property (land, buildings)
 3. personal property (all moveable items including books, jewellery, clothes and cars, sheet of paper...)
 4. things in action
 5. other intangible property.

Question 14

Property: What was held in R v Kelly and Lindsay (1998)

Answer 14

Dead bodies and body parts can be personal property for the purposes of theft.

Question 15

Property: Which cases recognised that regenerative body materials can be considered property and are capable of being stolen in certain circumstances?

Answer 15

R v Herbert (1961)- hair

R v Rothery (1976)- blood

R v Welsh (1974)- urine

Question 16

Property: What is meant by ‘real property in s4?

Answer 16

Term for land and buildings.

Under s 4 land can be stolen, but only in 3 particular circumstances:
1. D is a trustee or representative and deals with the
property in breach of trust.
2. D is a tenant and appropriates the whole or part
of any fixture.
3. Someone not in possession of the land severs
anything forming part of the land.

Question 17

Property: What is meant by ‘things in action’ in s 4?

Answer 17

A property right in something intangible or which may be tangible but are not in one’s possession, but enforceable through legal or court action. That right is property.

Ex: Bank account, patents, trademarks

Question 18

Property: What is meant by ‘other intangible property’ in s 4?

Answer 18

Other rights which have no physical presence but can be stolen under the Theft Act.

Ex: Electricity

In Oxford v Moss (1979) the courts held that confidential information cannot be stolen- knowledge of the questions of an examination paper was held not to be property.

Question 19

Property: Which things cannot be stolen except in specific circumstances?

Answer 19

• Plants (only those growing wild, so possible to steal cultivated plants)
• However, could be considered theft if it was done for sale or reward or other commercial purpose.

Question 20

Property: Show a chart explaining theft of land

Answer 20

LAND cannnot be stolen

BUT

Things attached to the land can be detached form the land and then stolen

HOWEVER

These items may still be exempt from being stolen, such as wild mushrooms

UNLESS

The items are being detached/severed for the purpose of commercial use or are being grown commercially

Question 21

What is meant by property ‘belonging to another’ in the definition of theft?

Answer 21

S 5 of the Act gives a wide definition of what is meant by this. It includes those:
- In possession or control of the property or any
proprietary interest

Question 22

Belonging to another: What is meant by possession or control in s5?

Answer 22

1. Normally the owner of property will have possession and control of it, but there are many situations in which a person can have either possession or control of the property.
   
   • Ex: A person who hires a car will have possession and control of it during the period of hire. If the car is stolen, it has been stolen from the hirer. Equally, as the car-hire firm still owns the car (proprietary right), the thief could be charged with stealing it from them.
2. The possession or control doesn’t have to be lawful.
   
   • Ex: Where B has stolen jewellery from A and C steals it from B, B is in possession or control of that jewellery and C can be charged with stealing it from B.

This is useful where it’s not known who the original owner is.

3. It is possible for someone to be in possession or control of property even though they didn’t know it was there.
   
   • This happened in R v Woodman (1974)- Scrap metal on site
4. Where goods are left for someone, the goods belong to the original owner until the new owner takes possession of them.
   
   • This happened in R (on the application of Ricketts) v Basildon Magistrates’ Court (2010)- items left for collection outside charity shop.

Question 23

Belonging to another: What happened in R v Turner (No.2) (1971)?

Answer 23

The wide definition of ‘belonging to another’ led to the situation in which an owner was convicted of stealing his own car.

Question 24

Belonging to another: What is meant by proprietary interest in s 5?

Answer 24

Where D owns property and is in possession and control of property, they can still be guilty of stealing it if another person has a proprietary interest in it.

This point was the key matter in the case of R v Webster (2006)

S 5 makes clear that in certain situations D can be guilty of theft even though the property might not belong to another. These situations are:
1- Trust property, where a trustee can steal it
2- Property received under an obligation
3- Property received by another’s mistake

Question 25

Property: Key cases for property in theft:

Answer 25

1. R v Kelly and Lindsay (1998)

2. Oxford v Moss (1979)

Question 26

Belonging to another: Key cases for belonging to another in theft:

Answer 26

1. R v Turner (No. 2) (1971)
2. R v Woodman (1974)
3. R (on the application of Ricketts) v Basildon Magistrates’ Court (2010)
4. R v Webster (2006)
5. R v Hall (1972)
6. R v Klineberg and Marsden (1999)
7. Davidge v Bunnett (1984)
8. Attorney-General’s Reference (No. 1 of 1983) (1985)
9. R v Gilks (1972)

Question 27

Belonging to another: What is meant by property received under an obligation in s 5 (3)?

Answer 27

Usually money.

There must be an obligation to retain and deal with the property in a particular way.

Key cases:

1. R v Hall (1972)- not guilty
2. R v Klineberg and Marsden (1999)- guilty
3. Davidge v Bunnett (1984)- paying shared bill

Question 28

Belonging to another: What is meant by property received by mistake in s 5 (4)?

Answer 28

This section of the Act is considered in Attorney-General’s Reference (No. 1 of 1983) (1985)

There must be a legal obligation to restore the property. In some situations there is no legal obligation
- Shown in R v Gilks (1972)

Question 29

What is meant by ‘dishonestly’ in the definition of theft?

Answer 29

1st point to be proved for the mens rea of theft is that when D appropriated property he did so dishonestly.

No definition in the Act. 
S 1 (2) states that it is "immaterial (irrelevant) whether the appropriation is made with a view to gain, or is made for the thief's own benefit."
     - In other words, if all the elements of theft are present, the motive of D is not relevant

The act DOES set out behaviour which is not dishonest, despite the difficulty of proving something through a negative

Question 30

Dishonestly: What behaviour isn’t dishonest?

Answer 30

Theft Act 1968 gives 3 situations in which D’s behaviour isn’t considered dishonest.

Appropriation of property belonging to another isn’t dishonest if D believes that:
1. They had in law the right to deprive the other of it, on behalf of themselves or of a third person.
- ex: employee instructed by boss to collect
goods from a third party. They believe they have
the legal right to do so, even if in reality they
don’t.
- KEY CASE: R v Small (1987)- abandoned car
R v Holden (1991)
R v Robinson (1977)

 2. They would have the other's consent if the other knew of the appropriation and the circumstances of it.
      - ex: borrowing friend's ruler without asking

 3. The person to whom the property belongs cannot be discovered by taking reasonable steps. 
      - ex: finding £1 coin in the street
      - clearly, the more valuable the item, the less 
        likely the owner cannot be found

• All 3 situations depend on D’s belief.
• It doesn’t have to be correct or reasonable.
• If D has a genuine belief in one of these 3, then they are not guilty of theft.

Question 31

Dishonestly: What happens if the 3 exceptions to dishonesty don’t apply?

Answer 31

Courts have developed a test for what amounts to dishonesty.
Usually a little argument about whether an act is dishonest- ex: shoplifting is obviously dishonest.

Called the Ghosh test for dishonesty

Question 32

Dishonestly: What is an unreasonable belief?

Answer 32

Held in R v Small (1987) that the fact that a belief was unreasonable does not prevent D from relying on these sections.
- If jury decides that D had a genuine belief, even if it
was unreasonable, he must be found not guilty.

Question 33

Dishonestly: What happens if D is willing to pay for the property they have appropriated?

Answer 33

Doesn’t matter if D says they are willing to pay or leave money when taking property, it does not prevent D’s conduct from being dishonest.

This prevents D from taking what they like, regardless of the owner’s wishes.

Question 34

Dishonestly: What is the Ghosh test for dishonesty?

Answer 34

Case of R v Ghosh (1982) is leading case on what is meant by ‘dishonestly’.

• CofA set out tests to be used:
  1. 1st stage of Ghosh test requires jury to consider whether what was done was dishonest according to the ordinary standards of reasonable and honest people. This means that if jury decided it isn’t dishonest, D will be not guilty, even if D thought it was dishonest.

      2. 2nd stage not totally subjective as D is judged by what they realised ordinary standards were. This prevents D from saying that, although they would regard their actions as dishonest, they didn't think that those standards applied to them. 

In a trial, judge will use Ghosh test to direct the jury only where there is an issue about dishonesty.

However, 2nd stage of test is now in doubt after unanimous decision of the Supreme Court in the civil case of Ivey v Genting Casinos Ltd t/a Crockfords (2017)

Question 35

Dishonestly: Which case has an impact on the Ghosh test for dishonesty and why?

Answer 35

Civil Supreme Court case: Ivey v Genting Casinos Ltd t/a Crockfords (2017)

The Lords argued that the 2nd stage of the test does not correctly represent law.
- The question whether the conduct was dishonest is to be determined by applying the standards of ordinary decent people. There is no requirement that D must appreciate that what was done was dishonest.

As it’s a civil case, decision is only obiter dicta for criminal law, although it is likely that it will eventually become a criminal law precedent.

Question 36

Dishonestly: Which case shows the problems with using the Ghosh test?

Answer 36

DPP v Gohill (2007)- Case shows that even magistrates and judges cannot agree on what is dishonest, so it is even more likely that juries will have very different views on what is dishonest.

Question 37

What is meant by ‘intention of permanently depriving’ in the definition of theft?

Answer 37

In some cases it’s clear that D had the intention, like destroying property, selling it, or taking cash and spending it. This last example is true even if D intends to replace the money later, as seen in R v Velumyl (1989)

In some situations it is not so clear. S 6 provides that, even though a person appropriating property belonging to another does not mean to permanently deprive the other from it, they can be regarded as having the intention to do so if their intention is to treat the thing as their own to dispose of, regardless of the other’s rights.

Question 38

Intention of permanently depriving: What was ruled in DPP v Lavender (1994) in relation to the term ‘dispose of’?

Answer 38

Court ruled that the definition of ‘dispose of’ was too narrow, as a disposal could include ‘dealing with property. ‘

Question 39

Intention of permanently depriving: What does s 6 state on borrowing or lending?

Answer 39

It states that borrowing is not theft unless it is for a period and in circumstances making it equivalent to an outright taking or disposal.

In R v Lloyd (1985) it was held that the wording of section 6(1) “and a borrowing or lending may amount to…” requires all the goodness, virtue and practical value to be taken from the goods.
- The films were returned in much the same
condition as when they were taken and thus did
not fall within the definition.

Question 40

Intention of permanently depriving: What is meant by conditional intent?

Answer 40

Where D examines property to see if there’s anything worth stealing. What is the position if they decided it isn’t worth stealing and returns it?
- KEY CASE: R v Easom (1971)

Question 41

Intention of permanently depriving: What happens when there is an intention to permanently deprive and throw things away? KEY CASE

Answer 41

This can be seen in R v Vinall (2011)
- The intention to permanently deprived could have been formed when the bike was 1st taken or at the time of the subsequent abandonment.

Question 42

Dishonestly: Key cases for dishonestly in theft:

Answer 42

1. R v Small (1987)
2. R v Holden (1991)
3. R v Robinson (1977)
4. R v Ghosh (1982)
5. DPP v Gohill (2007)

Question 43

Intention to permanently deprive: Key cases for intention to permanently deprive in theft:

Answer 43

1. R v Velumyl (1989)
2. DPP v Lavender (1994)
3. R v Lloyd (1985)
4. R v Easom (1971)