4. Offences under the Theft Act

Question 1

Elements of Theft under s.1 of TA 1968

Answer 1

Dishonest appropriation of the property belonging to another with intent to permanently deprive.

Question 2

What is appropriation?

Answer 2

Any assumption of the rights of an owner.
- mere touching suffices
- can occur online (ie. posting someone else’s picture)

Question 3

In a shop, when does appropriation occur?

Answer 3

When the item is picked up, even if no mens rea at that time

Question 4

Can the actus reus and mens rea occur at separate times and still make out the offence of theft?

Answer 4

Yes, as long as there is coincidence of the two at some point.

• Allows for theft to be established in cases of secondary appropriation
  (ie. mistakenly taking someone else’s coat, and deciding to keep it)

Question 5

What is property for the purposes of theft?

Answer 5

Money, and all other property, including intangible property, real property, and personal property

Question 6

Are fruit, foliage, mushrooms, flowers considered ‘property’ under TA?

Answer 6

Only if collected for commercial purposes (ie. selling them at market)

Question 7

Are fruit, foliage, mushrooms, flowers consider ‘property’ under TA?

Answer 7

Only if collected for commercial purposes (ie. selling them at market) (s.4(3) TA)

Question 8

What forms of ‘property’ are excluded under TA, and thus cannot be stolen?

Answer 8

• confidential information
• Electricity
• Wildlife (unless dead)
• Services

Question 9

If a person cuts a branches off their neighbour’s tree to start their fireplace, would the branches be considered ‘property’ under TA?

Answer 9

YES - property includes any fixture in land (ie. cannot be taken out w/out leaving damage)

Question 10

Two-limb Ivey test for dishonesty

Answer 10

1. Subjective limb
   Ascertain facts as D believed them to be, taking into account his knowledge, traits, and circumstances.
2. Objective limb
   Whether ordinary decent people, looking at facts of case through D’s POV, would conclude that D acted dishonestly?

Question 11

For the offence of theft (s.1), is it necessary to show that the defendant actually succeeded in permanently depriving another of their property?

Answer 11

No - what matters is D’s intention to do so.

• borrowing and lending for an extended period of time so as to amount to outright taking amount = suffices (R v Marshal)
• parting way with someone else’s property w/ risk of non-return (ie. pawning someone else’s earning)

Question 12

What are three situations where the defendant will not be deemed to be dishonest?

Answer 12

Where the defendant believes they:

1. Have a right to the property in law;
2. Would have the owner’s consent; or
3. Owner could not be discovered taking reasonable steps

Question 13

Is It possible to commit theft against your own property?

Answer 13

Yes - provided someone else also has a proprietary claim over the property

• Garage’s lien over D’s car for unpaid invoice (R v Turner)

Question 14

Distinction between robbery and regular theft

Answer 14

Theft offence forms part of AR for robbery - simply a form of ‘aggravated theft’ due to violent nature.

Question 15

What are the three ways the element of force is satisfied for robbery?

Answer 15

1. Inflict force
2. Cause apprehension of force
3. Intend to cause apprehension of force

Question 16

Extent of ‘force’ necessary for robbery offence

Answer 16

Need not be substantial or require violence
- Can be applied indirectly (ie. through property), but must directed at a person.
AND
- intend for force to actually be felt force or apprehended by V.

Question 17

Elements for robbery under s.8(1) TA

Answer 17

1) Theft (MR/AR)
2) Using force or apprehension of force against V or another person
AND
3) force occurred immediately before or at the time of theft

Question 18

For robbery, will AR still be met if victim fears force will be inflicted unto another?

Answer 18

Yes

Question 19

If someone who commits a theft and uses a fake gun in order to steal, are they guilty of robbery?

Answer 19

Yes - even if victim knew the gun was fake.

What is relevant is that D intended to cause apprehension of force

Question 20

Mens rea requirement for robbery

Answer 20

No additional requirement, other than full MR of theft.

Although key to not:
Intention to use force must be directly relevant to theft.
- must be the means to an end (enable theft itself)

Question 21

What are the two types of Burglary under section 9?

Answer 21

• Section 9(1)(a): *trespass with intent** to commit ulterior offence(s)
• Section 9(1)(b):
  trespass with actual commission of ulterior offences

Question 22

What is required for entry under both section 9(1)(a) and (b)?

Answer 22

Defendant must knowingly or recklessly enter a building or part of as a trespassor with any part of their body

Question 23

For burglary, if D is apprehended while stuck in fence to building, will this still amount to effective entry?

Answer 23

Yes - only part of D’s body needs to be trespassing
+
for s.9(1)(a) - not necessarily for D to be in position to commit ulterior offence

Question 24

What is the standard required of a building or part of a building for burglary?

Answer 24

Struture with some degree of permanence

Question 25

How can trespass arise from a visitor and the restrictions placed on them?

Answer 25

If a visitor exceeds the permission given to them, they become a trespasser and liable for burglary

Question 26

For burglary under s.9(1)(a), what are the ulterior offences D must intend to commit?

Answer 26

1. Theft
2. Inflict GBH on anyone in the building
3. Cause criminal damage

Question 27

For burglary under s.9(1)(a), what are ulterior offences must D actually commit?

Answer 27

1. Theft or attempted theft
2. Inflict or attempt to inflict GBH on any person in the building

Question 28

What ulterior offence relevant to s.9(1)(a) does not apply to s.9(1)(b) burglary?

Answer 28

Criminal damage

Question 29

Does conditional intent suffice under s.9(1)(a)?

Answer 29

Yes - so long as intention was held by D at point of entry

Question 30

Key differences between s.9(1)(a) and s.9(1)(b)

Answer 30

1. Intent vs. actual or attempt to commit
2. Ulterior offences - criminal damage vs no crim damage
3. Timing of MR - entry vs. point of committing ulterior offence

Question 31

What is the baseline mens rea for both types of burglary?

Answer 31

The defendant must know or be reckless as to the fact they are a trespasser

Question 32

What are the additional mens rea requirements for section 9(1)(a) and (b) respectively?

Answer 32

• Section 9(1)(a): Intent to commit the underlying offence at time of entry
• Section 9(1)(b): Mens rea for underlying offence required

Question 33

Additional requirement for burglary charge to turn into aggravated burglary

Answer 33

D is found with WIFE
- Weapon of offence
- Imitation gun
- Firearm
- Explosive

Question 34

Weapon of offence

Answer 34

Any item made or adapted to cause injury or intended by defendant to be used as such (ie. screwdriver, hammer)

Question 35

Explosive

Answer 35

Any item manufactured to create an explosion or intended by the defendant to explode

Question 36

Is land included in the definition of property under TA?

Answer 36

Only be appropriate in specific circumstances (ie. trustee or PR via misappropriation).

Question 37

If D knocks victim unconscious and then decided to stay V’s wallet, is D guilty of robbery?

Answer 37

No - theft as an afterthought to use of force does not amount to robbery.

Question 38

Under what circumstances will burglary become an indictable only offence?

Answer 38

• Commission or an intention to commit an indictable-only offence.
• Burglary of a dwelling if any person in the dwelling was subjected to violence or the threat of violence.
• Three strikes rule = 2 previous conviction for burglary of a dwelling, and this is now D’s 3rd time.

Question 39

If a homeowner leaves trash at the front of his home, does it still belong to him?

Answer 39

Yes, up until the point council collected it.
- case law indicated that the court do not readily find property abandoned.

Question 40

For the purposes of theft, can property ‘belong’ to someone even if they were themselves unaware of it?

Answer 40

Yes -
- property found on owner’s land can belong to them, provided an intention to exercise control over items found is clearly displayed via notice or implied (Parker v British Airways)

Question 41

Is an intention to render property useless sufficient to establish an ‘intention to permanently deprive’?

Answer 41

Yes (DPP v J)

Question 42

Circumstances where an intention to permanently deprive’ will be made out

Answer 42

• Intention to render property useless (DPP v J)
• Intending to treat another‘s property in a manner which risks its loss (R v Fernandes)
• Borrowing or lending where D intends to return it minus all its goodness, virtue and practical value (R v Lloyd)
• Parting with property under a condition as to its return, which they may be unable to perform (s.6(2))
• Using another’s property for bargaining (ransom cases) (R v Raphael)
• Attempting to sell an owner their own property (R v Scott)

Question 43

If D steals money from the cash register, and then returns the equivalent sum the next day, is D still guilty of theft?

Answer 43

Yes - theft with an intention of returning notes and coins of equivalent value is insufficient to defeat an ‘intention to permanently deprive’ (R v Velumyl)
- still guilty!

Question 44

Can D still be guilty of theft for appropriating property with the owner’s consent?

Answer 44

Yes - appropriation is an objective description of the act done.

• operates independently from its owner’s or D’s mental state (R v Hinks)

Question 45

For theft, where property is given to D by mistake, does legal title to the property remain with its original owner or pass to D?

Answer 45

Both D and original owner has legal title.
- reasoning = legal title still passes even where property is acquired by a mistake
BUT
- also seen as belonging to its OG owner since D is under legal duty to restore it once finds out mistake. (s.5(4) of TA)

Question 46

For robbery, does indirect contact with the victim suffice to satisfy the requirement of ‘force’?

Answer 46

No, will simply be guilty of theft.

• require more than indirect/minimal contact with victim.
• Note whether sufficient force is used is a jury question

ie. P v DPP - D was not guilty of robbery for merely snatching a cigarette from V’s hands.
- snatching was w/out direct physical contact does not constitute the use of “force” under s.8.
- simply guilty of theft.

Question 47

Does the victim actually need to fear force for a defendant to be guilty of robbery?

Answer 47

No - a mere intent to put the victim in fear that force would be used suffices.