6 - Property Offences Flashcards
What is the definition of the offence of theft?
The definition of theft is contained in s 1 of the TA 1968, which provides: “A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.”
Theft is an either-way offence, and therefore may be tried in either the Magistrates or Crown Court.
If convicted, the defendant faces imprisonment of up to 7 years.
What is the actus reus and mens rea for theft?
The actus reus is the appropriation of property belonging to another.
The mens rea is dishonesty coupled with an intention to permanently deprive.
How is appropriation defined in the context of the actus reus of theft?
The physical act required by a defendant to establish the actus reus of theft is known as an ‘appropriation.’ Appropriation is defined as any assumption of the rights of an owner. Only one right needs to be assumed.
This interpretation is extremely broad, so much so that it encompasses various everyday actions.
Appropriation can be:
- By taking
- Later assumption
- By assuming any of the rights of an owner
- With the owner’s consent.
For example:
- A shopper switching a price label on a piece of meat (R v Morris [1984] AC 320)
- Property passing with the consent of the owner (DPP v Gomez [1993] AC 442)
- The receipt of a gift (R v Hinks [2000] UKHL 53)
To be guilty of theft, the prosecution must establish all five elements at the same time, and in many instances, the individual may not be acting dishonestly.
Can you appropriate a valid gift in theft?
In R v Hinks, the HoL found that:
(a) Appropriation is a neutral act and the state of mind of the donor is irrelevant to appropriation;
(b) Therefore appropriation could take place with or without the consent of the owner; and
(c) Therefore a person could be guilty of stealing a valid inter vivos gift.
What does ‘property’ refer to in the context of the actus reus of theft under the Theft Act 1968?
The next requirement for the actus reus of theft is that there must be an appropriation of ‘property,’ which is defined in section 4 of the TA 1968 as money and all other property, real or personal, including things in action and other intangible property.
Property can belong to more than one person. E.g., it can belong to the owner while at the same time belonging to another by virtue.
This includes:
- Money: Currency – notes and coins (cash)
- Real property: Land and items fixed to it, such as a house or garage
- Personal property: Commonly stolen items, like cars, jewellery, and mobile phones
- Things in action: These cannot be physically seen but hold value, such as rights arising under a trust or money in a bank account
- Other intangible property: For example, a patent for a new drug
Under what circumstances can land be stolen according to the Theft Act 1968?
Land can only be stolen in exceptional circumstances:
- By a trustee in breach of trust (e.g., a person misappropriating property they are supposed to manage)
- By a person who is not in possession of the land if they appropriate anything forming part of the land either by severing it or after it has been severed (e.g., chopping down a neighbour’s bush)
- By a tenant who takes something fixed to the land that they are not supposed to take (e.g., taking shelving from a rented house).
What items cannot be stolen under the Theft Act 1968?
Electricity and confidential information, cannot be stolen.
Other items that cannot usually be stolen are:
(a) Mushrooms, flowers, fruit or foliage growing wild on land
A person who picks these items is innocent of theft provided this was not done for reward,
sale or other commercial purposes. Thus, if a person picks a bunch of buttercups growing
by the roadside, the flowers will not be ‘property’ under s 1 of the TA 1968 unless they
intend to sell them.
(b) Wild creatures
Although wild creatures are excluded as property, there are exceptions. If a wild animal
is tamed or ordinarily kept in captivity, for example a lion in a zoo, it may be stolen.
Similarly, a wild creature that has been reduced into possession may be stolen; this would
apply if the owner of land had snared a wild rabbit and someone else then took it.
What does ‘belonging to another’ mean in the context of the actus reus of theft?
For an offence of theft to be committed, the property must belong to another according to section 5(1) of the TA 1968.
Property is regarded as belonging to another where any person has:
- Possession
- Control
- Any proprietary right or interest in the property in question (e.g., in a trust).
For instance:
- If someone steals a mobile phone from a friend who is holding it, both the original owner and the friend have rights to the phone.
- The courts have confirmed that a person can steal their own property if it is lawfully retained by another, as established in R v Turner (No2) [1971] 2 All ER 441.
How is the issue of ownership relevant in cases of theft, in relation to the actus?
Determining ownership in property and when it passes is crucial for establishing theft, particularly with items like food or petrol, which become part of the defendant’s body or vehicle.
In the case of Edwards v Ddin [1976] 1 WLR 942, the court concluded that once petrol entered a vehicle’s tank, it belonged to the driver, and thus the act of driving away without paying could not constitute theft, as one of the essential elements was missing.
What is the obligation to deal with property in a particular way under section 5(3) of the Theft Act?
Under s 5(3), where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other.
Case Example: In R v Wain [1995] 2 Cr App R 660, the defendant raised money for a charity but spent it on himself, violating his obligation to pay it to the charity.
Case Example: In contrast, in R v Hall [1973] 1 QB 126, a travel agent received money for flights that were not booked and was found not to have an obligation to use the money for that specific purpose, as it was not kept in a separate fund.
How is property obtained by another’s mistake treated under section 5(4) of the Theft Act?
Under section 5(4) of the Theft Act 1968, if a person receives property due to someone else’s mistake and is legally obliged to return it (fully or partially), the property is considered to belong to the person entitled to its return, for the purposes of the Act.
In other words, it only applies when a legal obligation to make a restoration exists.
Key points:
- The defendant may have legal title to the property, but for theft purposes, the property is also considered to belong to the person who has the right to restoration.
- If the defendant has an intention not to return the property, this is regarded as an intention to permanently deprive that person of the property.
- The prosecution still needs to prove dishonest appropriation and intent to permanently deprive.
Example: In AG’s Ref (No 1 of 1983), a policewoman was overpaid and had a legal obligation to return the overpayment once she became aware of the mistake.
How is abandoned property treated under theft law?
Abandoned property does not belong to another, and provided it has been genuinely abandoned, no offence will be committed.
Example: Seamus takes a jumper from a bin bag left next to a charity shop. The courts held that the owner had not abandoned the bag, as the intention was for the charity shop to have the items.
Example: Leon retrieves golf balls from a lake at a golf club and sells them. His claim of abandonment fails, as the balls remain the property of the golf club, despite individual golfers possibly abandoning them.
What is the summary of actus reus in relation to theft?
The actus reus of theft involves the appropriation of property belonging to another.
Key Components:
- Appropriation: Taking or assuming the rights of an owner.
- Property Types: This can include money, real property, personal property, or other intangible property.
- Consent: Appropriation must occur without the owner’s consent.
- Possession: The property must belong to another person, who has possession or control over it, including proprietary rights or interests.
How is dishonesty defined under the Theft Act 1968?
Although the Theft Act 1968 provides no working definition, it does give a partial definition of three circumstances that will not amount to dishonesty:
(a) The defendant believes he has the right in law to the property (s 2(1)(a)).
Example: Musa has lent £10 to Taiwo. Taiwo has not repaid Musa despite constant requests to do so. Musa takes £10 from Taiwo’s wallet without his knowledge, arguing he has the legal right to do so because it was a debt owed to him.
(b) The defendant believes the owner would have consented had they known of the circumstances (s 2(1)(b)).
Example: Suki shares a flat with Dana. She eats some of Dana’s food from the fridge, believing Dana would have consented to this had she known of the circumstances.
(c) The defendant believes the owner cannot be discovered by taking reasonable steps (s 2(1)(c)).
Example: Ari picks up a £20 note found on a busy high street pavement and keeps it, realistically unable to find the owner by taking reasonable steps.
The test is subjective: the question is what this particular defendant genuinley believed and not whether the belief was reasonable or not. However, the more unreasonable the belief, the less likely a jury will accept the defendant did actually believe it.
Can someone willing to pay for property be acting dishonestly under the Theft Act 1968 and who does the burden of proof lie with?
A person may be dishonest even though they were willing to pay for the property (s 2(2)).
Example: Lucy takes her friend Anya’s concert ticket, leaving her an amount of money in excess of the ticket value, knowing Anya would not have agreed to sell it. Lucy is dishonest in this scenario.
The prosecution must disprove any defence raised by the defendant regarding the circumstances that do not amount to dishonesty beyond a reasonable doubt.
How does the Ivey test for dishonesty apply?
The effect of this is that the magistrates or jury must:
(a) Ascertain (subjectively) the actual state of the defendant’s knowledge or belief as to the facts.
(b) Determine whether their conduct was honest or dishonest by the (objective) standards of ordinary, decent people.
To secure a conviction, the prosecution must present the facts of what the accused did and thought, leaving it to the jury to decide whether they believe the actions were dishonest or not.
Example: Alicia takes £10 from the till because she has forgotten her bus fare. She leaves a note for her boss explaining the situation and that she will repay the money the next day.
Factors such as whether Alicia actually intends to repay the money as soon as she can, whether she knows if borrowing from the till is allowed under any circumstances and her relationship with her boss would all be relevant to her (subjective) view of the facts. Having determined this, the question is whether Alicia was (objectively) dishonest, and this will depend upon the jury’s assessment of the situation
What is the relevant order in which the court’s will approach dishonesty?
Clear dishonesty - Yes D is dishonest.
TA 1968, s 2 - Does the statute apply?
- Does D believe he has a right to law in the property? - Not dishonest.
- Does D believe he would have the owners consent? - Not dishonest.
- Does D believe the owner cannot be found by taking reasonable steps? - Not dishonest.
- Is D willing to pay? - D may be dishonest here.
Ivey test: Apply the test in Ivey v Genting Casinos.
- Subjective: What was D’s knowledge or belief as to the facts?
- Objective: Was D’s conduct dishonest by the ordinary standards of decent people?
If yes - D is dishonest.
What is the intention to permanently deprive in theft?
The final element the prosecution must prove is that the accused intended to permanently deprive another of the property in question.
Usually, this will not be an issue, and the ordinary meaning of intention to permanently deprive, as set out in s 1 of the Theft Act 1968, will suffice:
- The Theft Act 1968, s 1(1) requires that the accused must ‘intend to permanently deprive’ the owner of their property. There is no requirement that the owner is actually deprived of their property permanently. The defendant must have the intention to permanently deprive at the time of the appropriation.
Examples: Zac steals a sandwich to eat for lunch, indicating he has no intention of returning it.
How does treating property as one’s own relate to the intention to permanately deprive under the mens rea for theft?
Section 6(1) of the Theft Act 1968 states that an accused will have an intention to permanently deprive if “he treats the property as his own to dispose of regardless of the owner’s rights.”
Despite the wording of the statute, the defendant does not need to dispose of the property to satisfy the test.
A defendant intending to return the property only after use will have an intention to permanently deprive.
Examples: (a) Julia takes a debit card and only returns it after buying a coat, treating the card as her own by using it for the purchase.
(b) Kitty takes a carton of milk belonging to Fiona, itnending to replace it later. She does not intend to return the same carton of milk, so she has an intention to permanently deprive under s 1 Theft Act 1968.
