5) Theft Flashcards
Definition of Theft s1(1) Theft Act 1968
A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it….
Actus Reus of Theft
- Appropriation (s3 Theft Act)
- Property (s4 Theft Act)
- Belonging to another (s5 Theft Act)
Mens Rea
- Dishonestly (s2 Theft Act)
- With the intention to permanently deprive (s6 Theft Act)
Coincidence in Theft means that….
All of the elements must exist simultaneously.
When does the need for coincidence cause factual problems. ..
- eg chooses to keep it later
- uses gift for reason other than.
eg form dishonest intent after the event.
Can still amount to theft
Actus Reus - Appropriation
Defined as:
“Any assumption by a person of the rights of an owner amounts to an appropriation…”
Theft Act 1968 s 3(1)
R v Morris - FACTS
Appropriation
Change prices at self service act.
Removed and lowered pricing labels.
Arrested and convicted of theft
R v Morris - HELD
Appropriatiom
Only necessary to assume one of the rights of the owner - eg the owner’s right to label his goods.
Assumption of any one of the rights of an owner amounts to appropriation
Examples of assumption of any one of the rights of an owner amounts to appropriation
Selling, hiring, giving it away or destroying it.
Can a defendant appropriate property even with consent of the owner?
Yes
R v Gomez
R v Gomez - FACTS
Appropriation with consent
Assistant manager at an electrical store, allowed purchase of goods with stolen cheques.
Sale went ahead.
Convicted of theft
R v Gomez - HELD
Appropriation with consent
CoA found that if consent has been obtained by false representation
Can be appropriation without adverse interference with owners’ rights.
Lord Browne Wilkinson in R v Gomez
The word appropriation = objective description of the act done irrespective of the mental state of owner or accused.
Theft of gifts case
R v Hinks
R v Hinks
Theft of gifts
Man of limited intelligence was persuaded to give away £60k. Found guilty.
HoL held
1) Appropriation is a neutral act and state of mind of donor is irrelevant
2) Appropriation can take place with or without consent
3) Person can be found guilty of stealing a valid gift
Inter vivos meaning
Gift made between living people.
Later appropriation
Theft Act s 3(1)
Any assumption by a person of the rights of an owner amounts to an appropriation and this includes where he has come by property without stealing it, any later assumption of a right to it by keeping or dealing with it as owner
When does theft take place with later appropriation?
Theft takes place when the defendant forms the mens rea, subject to the remaining elements also being present.
The innocent purchaser
Innocent Purchaser exempted from liability for theft where the defendant purchases goods in good faith and later discovers that the seller had no title to keep the proeprty, but decides to keep it.
Theft Act 1968, s3(2)
Mala Fides
Bad faith the protection afforded by the Theft Act 1968 s 3(2)
R v Adams
Innocent purchaser
Purchased goods not knowing they were stolen.
Conviction of innocent purchaser quashed, under defence of Theft Act 1968, s3(2)
Actus Reus - Property
Property includes money and all other property, real or personal including, including things in action and other intangible property
What are the exceptions to things that can be stolen:
- In relation to land (s4(2))
- Things growing in the wild (s4(3))
- Wild creatures (s4(4))
Can land be stolen….
A person cannot steal land, or things forming part of land and severed from it by him or his directions.
Section 4(2)
When can a person be guilty of theft under s 4(2)
a - D is authorized to sell land and sells more than they are meant to
b - D is a trespasser or invited guest and removes fence or plant
c - D is a tenant and removes or sells without removing
Theft Act 1968, section 4(3)
Not guilty if pick: Mushrooms, Flowers, Fruit and Foliage
When can someone be found guilty of picking wild plant?
- If is to for a reward, to sell or another commercial purpose.
- If uproots or cuts part of the wild plant
- Picks cultivated plants.
Section 4(4) - can a person be guilty of theft of wild animals
Not guilty of theft
* Untamed animals
* Animals not ordinarily kept in captivity.
When can someone be guilty of theft of animals?
- Tamed animals
- Animals kept in captivity
- Animals in course of being reduced into possession (eg trapped).
What types of property can be stolen
Money, real property, personal property, intangible property, unlawful or illegal items.
Intangible property
Things in action (a right to sue/recover) - company shares, trademarks, patents, a debt, credit in bank account, forged cheques.
Can illegal items be stolen?
Unlawful or illegal items such as Class A drugs can be stolen.
Smith, Plummer and Haines
What property cannot be stolen
- Wild plants and animals (s4(4)).
- Electricity (Low v Blease)
- Corpses and body parts
- Services such a train journey
- Cheques drawn on accounts over the agreed overdraft limit
Can electricity be stolen?
Electricity cannot be stolen.
Low v Blease
Can corpses be stolen?
Corpses or body parts which have “acquired different attributes’ for scientiic or teaching purposes” can be stolen
Kelly v Lindsay
Can confidential info be stolen?
Confidential information does not fall within the definition of intangible property
So cannot be stolen.
Oxford v Moss
Theft Act 1968, s 5(1)
Belonging to another
“Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest”
Is the definition of interest a wide or narrow one?
Wide Definition
Extends beyond ownership, to include those having possession or control of it or proprietary interest.
When does a property cease to belong to another?
If it has been abandoned.
But court does not readily find that property has ben abandoned.
Williams v Philips
Abandoned property
Domestic waste = not abandoned property.
Refuse collector can be guilty of theft if appropriate goods from bin with mens rea
Does property become abandoned if lost and stop looking?
No
Hibbert v McKiernan
Abandoned property
Lost golf balls are not abandoned by their owners.
Depends on what owner wants
Theft Act s5(1)
Property belongs to those having possession or control of it.
Can even be if own land with property on it.
R v Woodman
In control of property
Taken steps to exclude trespassers from factory owners.
Evidence that they were in control of factory = knew of scrap metal that had been left inside
Parker v British Airways Board
In control of property
Gold bracelet found in BA lounge.
BA did not have control of property,would need to show intention to exercise control over the building and things in it.
A sign or notice would have been enough.
Bracelet was kept by the passenger.
Can you steal your own property?
Yes in certain cases - R v Turner (No 2)
R v Turner No2
In control of property
Defendant took car to local garage. Didnt pay the bill = theft
Mechanic was in possession and control of the car = did “belong to another”
General rule on transition of title
General rule = title passes at time of intention
Property given for a purpose
s5(3) Theft Act
A person receives property from or on account of another, under an obligation to deal in a particular way, then the property or proceeds shall be regarded as belonging to the other
Section 5(3)
Enables prosecution to prove the property to still belong to another for the purposes of the Act… requires accused to use the property for the purpose given
Who decides when s5(3) operates
Decided by the judge, as a matter of law
Why is it better to use to use 5(3) over 5(1)
Often property will be a trust - property will also belong to another under s5(1) that covers equitable interest.
Better to use 5(3) which allows prosecution to make a case better without resorting technicalities of trusts
R v Hall
Property given for a purpose
- Defendant took money to buy airplane tickets.
- Put it into business account - paid creditors
- Lost money paid.
s5(3) did not apply because it was not est that clients expected him to retain deal with money in a particular way - Money was not expected to be kept seperately.
Davidge v Bunnett
Property given for a purpose
- Defendant shared a flat with others, all split costs of bill.
- Cashed cheques instead of settling bills
- Convicted of theft - legal obligation to apply proceeds to pay bull
Obligations can be imposed upon domestic and social arrangements
R v Breaks and Huggan
Property given for a purpose
- Ds were directors of insurance brokerage company - placed insurance with Lloyds.
- Did not pay money into separate client account - used for unaythorised payments
CoA held that there was no automatic application of s5(3) - for a trial judge to decide on each individual case - Convictions were quashed.
R v Kineberg and Marsden
Property given for a purpose
- Company set up to buy a time share
- Told money would be paid into a stake-holding trust - to be held on trust until development had been completed and was ready for occupation.
- Out of £500k only £223k was paid into trust company. Rest was paid into company account.
- CoA upheld convictions - express assurances of money being safeguarded meant they were under a legal obligation
s5(3) applied - enough that there is an obligation to deal with proceeds from property
R v Wain
Property given for a purpose
Raised money in telethon for charity
moving money into own account = appropriating
Under s5(3) - belonged to another - but no proven dishonesty yet
Property obtained by another’s mistake
section 5(4) - title has passed to the defendant due to anothers mistake and allows property to “belong to another” for the purposes of the Act
Law of restitution
When someone is aware of the mistake they are usually under a legal obligation to restore it.
Attorney-General’s Reference (No1 of 1983)
Property obtained by mistake
Policewoman mistakenly overpaid £74.74 for overtime not work.
CoA held that the moment she was aware = duty to repay.
s5(4) money would be regarded as belonging to Police Authority under the Act
Does s5(4) prevent the recipient of the property being the legal owner?
No, the recipient can still be the legal owner, but for the purposes of the Act the property still belongs to the person entitled to restoration.
What would happen if under s5(4) a person is found to be legal owner, along with belonging to another person entitled to restoration?
Prosecution would have to prove that there was dishonest appropriation and intention to permanently deprive.
An intention not to make restoration of the money =
An intention to permanently deprive
What is an alternative approach to the theft of property given by mistake?
Equitable interest retained.
Chase Manhattan Bank v Israel-British bank
Held that a person who gives property by mistake retains an equitable interest in that property.
R v Shadrokh-Cigari
CoA upheld a conviction for theft of property given by mistake without recourse to s5(4)
Facts of R v Shadrokh-Cigari
Defendant was the legal guardian of his nephew.
Bank mistakenly credit £286k instead of £286.
Defendant withdrew majority of money - convicted of theft
Held in R v Shadrokh-Cigari
CoA upheld that the conviction on the ground that although legal title may have passed the bnk retained an equitable interest in the property that was stolen
Theft Act s5(1)
Mens rea of Theft requires
- Dishonesty
- Intention to permanently deprive.
Does the Theft Act define the term “dishonesty”
No - it is for the jury to decide whether an appropriation is honest.
When is appropriation of property not to be regarded as dishonest?
Under s2 Theft Act, if:
* (1)(a) - D had a right in law to deprive the other of the property.
* (1)(b) - D would have consent if the other person knew
* (1)(c) - person to whom the property belongs cannot be discovered by taking reasonable steps
s2(1)(c)
The person to whom the property belongs cannot be discovered by taking reasonable steps. No need to take reasonable steps … just to believe that taking such steps will be fruitless.
If the owner becomes known to the accused after s2(1)(c) relied upon, then…
keeping the property at this stage could be dishonest and therefore theft under s3(1) = later appropriation
Does the Theft Act require the defendant’s belief to be reasonably held?
No - so long as it is not dishonest
R v Robinson
Common law approach for dishonest
Ivey
Ivey v Genting Casinos - FACTS
Ivey was a professional gambler, court had to consider whether what he was doing while gambling amounted to cheating
Ivey v Genting Casinos - HELD
Did amount to cheating
Test for dishonesty should be the same as civil law case of Royal Brunei Airlines v Tan
1) What was the defendants knowledge and belief as to the facts?
2) Given that knowledge and those beliefs was the defendant dishonest by standards of ordinary decent people
Test for dishonesty
1) What was the defendants knowledge and belief as to the facts?
2) Given that knowledge and those beliefs was the defendant dishonest by standards of ordinary decent people = OBJECTIVE
Iver v Genting Casinos
Willingness to pay
Person can appropriate property dishonestly despite being willing to pay for the property.
Theft Act s2(2)
Timing of dishonesty
Must be formed at a time when the goods belong to another.
Cannot be convicted of theft if dishonest intent forms after ownership of porperty has passed.
eg Edwards v Ddin
General civil rule is that title in property passes
At the time it intended to pass.
When does ownership of food pass
When it is eaten Concoran v Whent
Possibly before - when it is cooked
When does petrol ownerhsip pass?
When petrol is put in the tank.
In the absence of mens rea
Appropriate charge for this type of offence would be - making off without payment under s3 Theft Act.
Forms of dishonest intent after acquiring the property …
s3(1), s5(3) and s(4) may assist in making defendant liable
Intention to permanently deprive
- Given ordinary meaning
- If not clear - then refer to s6 intention to treat the thing as their own to dispose of regardless of other’s rights
Section 6
intention to treat the thing as their own to dispose of regardless of other’s rights
Cahill
Intention to permanently deprive
- Newspapers on doorstep
- No direction of to dispose of - to get rid of, get done with… bargain, sell etc section 6
Attempts to sell the owner their own property
- Eg curtains to return for refund
- Treated thing as own to dispose of = stole
Ransom cases
- Stole car and then ransomed it
- = s6(1) treated as own to dispose of
Ransom case - fulfilment of a condition
- Condition for return in the near future that can readily be fulfilled is not intention to permanently deprive
Rendering the property useless
- Eg broke headphones
- Got rid of, finished = to dispose of = stolen
Risking loss of property
- Investing property not belonging to you eg from client account in solicitors
- = treating property as your own.
What is meant of to dispose of?
- More than dealing with….
- R v Mitchell, stole car and abandoned it so owners got it back = not disposing off
When does borrowing amount to disposal?
- If returned without all its goodness, virtue and practical value
- Then = disposal under 6(1)
g R v Lloyd and the cinema tapes
What does s6(2) cover
- Pledging for a loan
- Giving property away, on condition as to its return, which may not be able to fulfil
- = disposing of under s6(2)
Interchangeable property
- Actual notes and coins taken from the safe, not replaced = intention to permanently deprive
R v Velumyl
