appropriation Flashcards
Define appropriation
s3 (1) - any assumption by a person of the rights of an owner amounts to an appropriation and this includes where he has come by the property (innocently or not) without stealing it, any later assumption of a right to keeping or dealing with it as an owner
what is appropriation?
the act of taking something and dealing with property as if you own it
give examples of appropriation
destroying property, picking up an item, throwing items away, taking an item, worthless cheques, receiving gifts for others and keeping them
how did the definition of appropriation change
s 3(1) replaced the word of taking with appropriation
this can be any rights of ownership rather than all.
can take a wide definition of the word
R v Vinall (2011)
Legal principle: the D must assume at least one right of ownership
The defendants were seen by 2 cyclists who they subjected to verbal abuse and then punched one on the bike, made threats and chased them. The Ds walked away and picked up a bike and left it as a nearby bus station (problems: intention to perm deprive? robbery?)
act of appropriation:
- the initial taking of the bike
- the act of abandoning the bike
R v Pitham and Hehl (1977)
Legal principle: appropriation can be assuming the right to sell the property even if it is never removed
D ‘sold’ furniture belonging to another person and in that persons house. This was held to be appropriation, the offer to sell was an assumption of the rights of an owner and the appropriation took place ATP. it didn’t matter if it wasn’t removed, even if the owner was never deprived of the property, D had still appropriated it by assuming the rights of the owner to offer the furniture for sale
R v Morris (1983)
Legal principle: it does not have to be ALL rights of ownership that are assumed,
D had switched the price labels of two items on the shelf in a shop, he had then put one of the items (lower price) in to a basket provided by the store for shoppers and taken the item to checkout where he was arrested. Rights to put a price labels on the goods was a right that had been assumed
Lawrence v Commissioner for Metropolitan police (1972)
Legal principle: appropriation can happen even with the owners consent
An Italian student, who spoke little English, arrived at Victoria station and showed an address to Lawrence, (taxi driver) the journey cost 50p but Lawrence told him it was expensive. The student got out £1 for Lawrence but he said it was not enough so the student opened his wallet and allowed Lawrence to take out a further £6.
R v Gomez (1993)
D was a shop assistant, he had persuaded the manager to accept in payment for goods, 2 cheques which he knew were stolen and had no value, the court found this act expressly or impliedly authorised by the owner of goods or consented to by him or her could amount to an appropriation of the goods
R v Hinks (2000)
The defendant (H) was a carer for a man of limited intelligence (D). H persuaded D to make a series of payments to her from his bank account which she contended were gifts. H was charged with theft.
Legal principle: appropriation can still happen if its a valid gift
R v Atakpu and Abrahams (1994)
The defendants hired cars in Germany and Belgium under false driving licences and passports. They were arrested in Dover and charged with theft. The Court of Appeal quashed the convictions because the moment of appropriation under the law in Gomez was when they obtained the cars. So the thefts occurred outside the jurisdiction of the English courts and as the defendants had already stolen the cars in Belgium and Germany, keeping and driving them to England was a new appropriation- a later assumption of the right of an owner or a continuing act.
the appropriation happens the first time a right of ownership is assumed.
A later assumption of a right
s 3(1) states that an appropriation can also happen when a defendant acquires a property without stealing it, but then later decides to keep or deal with it as an owner.
The appropriation happens at the point of ‘keeping’ or ‘dealing’.
This can be borrowing an item and then selling it on.
Being lent something and keeping it.
Intending to give something back and then not.
Selling a hired car
what is property?
s(4) gives a comprehension definition of property
“property includes money and all other property real or personal, including things in action and other intangible property.”
Money- coins and banknotes of any currency
Real property
Personal property- all moveable items such as books, jewellery, clothes and cars, as well as trivial items
Intangible property- intellectual property
R v Kelly and Lindsay
Kelly was a sculptor who asked Lindsay to take body parts from the Royal College of Surgeons where he worked as a laboratory assistant. Kelly made casts of the parts. They were convicted of theft and appealed on a point of law that the body parts were not property. The Court of Appeal held that, though the dead body was not normally property within the definition of the Theft Act 1968, the body parts were property as they has acquired ‘different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes.’
Regenerative parts (hair) R v Herbert (1961)
Blood R v Rothery (1976)
Urine R v Welsh (1974)
Real property:
Land and buildings
s4(1)- land can be stolen
s4(2)- in these circumstances:
When a trustee takes part of the property without permission
Someone severs anything forming part of the land from the land
When a tenant takes a fixture or fitting from the property
things in action:
This is theoretical property that you have legal right to own.
The money in your bank account
The credit on your credit card
You have the right to go into the bank and ask for all the money you have in physical notes and coins.
A cheque would class as a thing in action and personal property
intangible property:
Items that have no physical presence
There is a separate offence for theft of electricity
The courts have acknowledge that confidential information cannot be stolen.
Oxford v Moss
D was a university student who acquired a proof of an examination paper he was due to sit. It was accepted that D did not intent to permanently deprive the university of the piece of paper on which the questions were printed. But he was charged with theft of confidential information (the knowledge of the questions). He was found not guilty.
Confidential information cannot be stolen
things that cannot be stolen:
ss 4(3) and 4(4)
Wild plants
Blackberries in a hedgerow
Mushrooms
Apples in a wild orchard
There can be no sale, reward or commercial purposes
belonging to another:
s5(1) gives a wide definition of ‘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 (not being an equitable interest arising only from an agreement to transfer or grant an interest).”
This broad definition means the court does not have to prove who the legal owner is in most cases.
Possession or control
In some situations, other people, not just the owner, can have possession and control of an item.
When someone hires a car (the D can be charged with stealing it from the owner or from the hire customer)
The possession does not have to be lawful- this is helpful when it’s not known who the original owner is.
R v Turner
D left his car at a garage for repairs. It was agreed that he would pay for the repairs when he collected the car after the repairs had been completed. When the repairs were almost finished, the garage left the car parked on the roadway outside its premises. D used a spare key to take the car during the night without paying for the repairs. The Court of Appeal held that the garage was in possession or control of the car because, as repairers, it has a right to retain possession of the item being repaired until payment is made (a repairer’s lien).
Unfortunately, it was not the reason given by the Court of Appeal, which relied on the simple words of the statute that property belongs to anyone in possession or control. This implies that an owner of property could be guilty of theft of his or her own property (dishonesty might be an issue, though) even if V had no right to stop him or her taking it back (e.g. if he or she took it back maliciously, leaving V to believe that it had been taken by someone else. On these grounds, the Court of Appeal upheld his conviction.
the person in control may not be the owner
R v Woodman
A company had sold all the scrap metal on its site to another company which arranged for it to be removed. However, a small amount of the scrap had been left on the site. The company was in control of the site itself as it had put a fence round it and had notices warning trespassers to keep out. D took the remaining scrap metal. He was convicted of theft even through the company was unaware there was any scrap left.
Its possible to be in control of property you don’t know exists
R v Basildon Magistrates
In the first offence, Ricketts had taken bags containing items of property from outside a charity shop. He argued that the original owner had abandoned the property and, therefore, it did not belong to another. The court ruled that the goods had not been abandoned - the giver had attempted to deliver them to the charity and delivery would only be complete when the charity took possession. Until then, they were the property of the giver.
In the second offence, Ricketts had taken bags of goods from a bin at the rear of another charity shop. These goods were still in the possession of the charity at the time they were appropriated by Ricketts.
proprietary interest:
If a defendant has possession and control of an item they can still be guilty of theft if someone else has proprietary interest in it.
s5 certain situations can be theft even when the property does not belong to another. These are when the defendant is acting dishonestly and has caused a loss to another or has made a gain.
Trust property- where a trustee can steal it
Property received under obligation
Property received by another’s mistake
R v Webster
D was an army sergeant who had served in Iraq. He had been awarded a medal for his service there. By mistake the Ministry of Defence sent him a second medal. D sold the second medal on eBay. He was convicted of theft of the medal. On appeal his conviction was upheld on the basis that the Ministry of Defence had retained an equitable interest in the medal. In other words, the Ministry still had a proprietary interest in the medal.
Property received under an obligation:
s5 (3) states that there must be an obligation to retain and deal with the property in a particular way. This way it ‘still belongs to another’.
E.g. when a deposit is given there is an obligation to deal with it in a particular way- if the expectation is that it will be paid into a bank account, then if it is used for another expense and the client does not receive their goods there is no theft.
If there is an expectation that it is used to pay for the goods and it is used for something else, then there can be a theft.
R v Hall
D was a travel agent who received deposits from clients for air trips to America. D paid these deposits into the firm’s general account but never organised any tickets and was unable to return the money. He was convicted of theft but on appeal his conviction was quashed because when D received the deposits he was not under an obligation to deal with them in a particular way. The Court of Appeal stressed that each case depended on its facts.
there is only theft if there is an expectation to deal with the deposits in a particular way
R v Klineberg and Marsden
The two defendants operated a company which sold timeshare apartments in Lanzarote to customers in England. Each purchaser paid the purchase price on the understanding that the money would be held by an independent trust company until the apartment was ready for the purchaser to occupy. Over £500,000 was paid to the defendants’ company but only £233 was actually paid into the trust company’s account. The defendants were guilty of theft as it was clear that they were under an obligation to the purchasers ‘to retain and deal with that property or its proceeds in a particular way’ and that they had not done this.
there is a clear obligation to deal with the deposits in a particular way
Davidge v Bunnett
D was given money by her flatmates to pay the gas bill but instead she used it to buy Christmas presents.
There was a legal obligation to deal with the money in a particular way and, as she had not fulfilled that obligation, she was guilty of theft.
obligations can happen in less formal situations
Property received by mistake
s5 covers situations where property has been handed over by mistake.
Without this provision, this property could not be labelled ‘belonging to another’ and there could be no theft.
Attorney-General’s reference (no 1 of 1983) (1985)
D, a police woman, had received an overpayment of wages when her pay went into her bank account. She recognised it was an overpayment. She did not withdraw any part of the money, but did not return it. She was convicted of theft of the property (a thing in action) as she was under an obligation to return it.
R v Gilks
D had placed a bet on a horse race. The bookmaker made a mistake about which horse D had backed (two horses had similar names) and overpaid D. D realised the error and decided not to return the money. The ownership of the money had passed to D, so the only way he could be guilty of theft was if s 5(4) applied. It was held that as betting transactions were not at that time enforceable at law, s 5(4) did not apply and D was not guilty.
there must be a legal obligation to restore the property
evaluation of s5(3) - gilks
s5(3) and s5(4) are often not used as the rulings of Lawrence, Gomez and Hinks have set precedent regarding rights of ownership and consent.
For example, in Gilks, if he knew he was getting an overpayment as he took it, and if he could be regarded as dishonest, he would be guilty of theft and wouldn’t need s5(4).
key legal principles for theft
R v Gilks (1972) There must be a legal obligation to restore the property
Davidge v Bunnett (1984) obligations can happen in less formal situations
R v Hinks (2000) appropriation can still happen if it’s a valid gift
R v Hall (1972) there is only theft if there is an expectation to deal with the deposits in a particular way
R v Vinall (2011) the defendant must ‘assume’ at least one right of ownership
R v Gomez (1993) implying right is ownership can be appropriation
R v Turner (no2) (1971) the person in control may not be the owner
MR of theft:
Dishonesty
Intention to permanently deprive
Dishonestly - defintion
As the definition of appropriation is broad, sometimes a theft charge can be decided on if the appropriation was honest or dishonest (think about gifts from vulnerable people).
S2 (1)- it is immaterial whether the appropriation is made with a view of gain, or is made for the thief’s own benefit
Although this doesn’t clearly define ‘dishonest’ it suggests that theft can occur regardless of the D’s motivation- this can include incidents of modern day ‘Robin Hood’ stealing.
Behaviour which is not dishonest:
S2(1)- a person’s appropriation of property belonging to another is not to be regarded as dishonest if he/she appropriates the property with the belief that:
He/she has in law the right to deprive the other of it, on behalf of themselves or a third party (s2(1)(a))
He/she would have the other’s consent if the other had known of the appropriation and the circumstances of it (s2(1)(b))
The person to whom the property belongs cannot be discovered by taking reasonable steps (s2(1)(c))
Subjective test
These situations depend on what the D believed at the time.
It doesn’t matter if what they believed was untrue.
Does the D have an honest believe that they have permission to take the item?- subjective test
Does the D honestly believe that the owner would allow them to borrow the item?- subjective test
Does the D believe that they could not reasonably find the owner of the property? – subjective test
R v Small
The defendant noticed a car that had the key in the ignition, there was no petrol in it and had parts taken from it. The battery and tyres were flat. The car had been in the same place for two weeks
He believed that the car had been dumped so he decided to get it going and to drive it. He put petrol in it and drove it away.
He was stopped by the police, he panicked and run away.
He said it was not until he saw the police that he thought the car might have been stolen.
He was convicted of theft.
The conviction was quashed as the D believed that the owner could not be found.
: if the jury decides that D genuinely believes that they are being honest (however unreasonable) then they must find them not guilty.
R v Holden
D was charged with the theft of scrap types from the Kwik Fit where he worked. He claimed that other people had taken tyres with the permission of the supervisor. However, taking the tyres was a sackable offence. The court of appeal quashed the conviction. As the test is subjective, a person was not dishonest if he or she believed, reasonably or not, that he or she has a legal right to the property, providing that the belief was genuinely held.
a person will not be considered dishonest if they believe they have the right to deprive the other of property
R v Robinson
D was owed £7 by the victim’s wife. When the D went to collect the money, a fight developed between D and the husband, during which a £5 note dropped out of the husband’s pocket. D kept the £5 note. His conviction for robbery was quashed by the court of appeal as there was no theft (an underlying part of robbery) because the has an honest belief that he was entitled to the money.
Willing to pay
In some situations, the D may say he is willing to pay on taking the property or leave money to pay for it.
This does not prevent the D’s conduct from being dishonest.
s2(2) a person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.
This stops a person taking whatever they want regardless of the owners wishes.
R v Ghosh
D was a doctor acting as a locum consultant in a hospital. He claimed fees for an operation he had not carried out. He said that he was not dishonest as he was owed the same amount for consultant fees.
The court of appeal decided that the test for dishonesty has both an objective and a subjective element to it:
Was what was done dishonest according to the ordinary standards of reasonable and honest people?- objective
Did the defendant realise that what he or she was doing was dishonest by those standards?- subjective
The ghosh test for dishonesty:
The jury is required to consider whether what was done was dishonest according to the ordinary standards of reasonable and honest people- so if the jury think its not dishonest then the defendant is not guilty (even if the D thought they were being dishonest).
The second part requires the defendant to say what they thought ordinary standards were. This prevents the D from saying that they thought the ordinary standards didn’t apply to them.
A judge can direct the jury to use the ‘Ghosh’ test if dishonest is being debated.
However, the second part of the test is now under debate following the ruling in the civil case of Ivey v Genting Casino Ltd t/a Crockfords (2017)
Ivey v Genting Casinos
There are convincing grounds for holding that the second leg of the test propounded in GHOSH does not correctly represent the law and that directions based upon it ought no longer to be given. The test of dishonesty is as set out by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan and by Lord Hoffmann in Barlow Clowes …..When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, then the question as to whether his conduct is honest or dishonest is to be determined by the fact-finder by applying the (objectively) standards of ordinary decent people. There is no requirement that the defendant must appreciate that when he has done is, by those standards, dishonest.”
This is a civil case so the ruling is only obiter with respect to criminal law. However, it is likely to become criminal law precedent.
The Supreme court did away with the second arm of the Ghosh test, making what the defendant thought about how others would regard his actions irrelevant.
DPP v Gohill
The defendants were manager and assistant manager of an outlet hiring plant and equipment to customers. They had allowed some customers to borrow equipment for periods of less than two hours without charge.
These hirings were recorded by the defendants on the computer. However, when the customers returned the items within two hours, the defendants had either recorded that it had been returned as faulty or incorrectly chosen (for which no charge was made under the company rules) or, in some cases, they altered the computer records to show the items had only been reserved and not borrowed.
The defendants stated that they regarded this as good customer service which kept the customers who frequently hired happy. It was not done for personal gain and they did not ask for any money for doing this. Sometimes the customers would tip them £5 or £10 but at other times they were not given any money by customers.
The magistrates acquitted the defendants of theft and false accounting on the basis stating that they ‘were not satisfied beyond all reasonable doubt that by the ordinary standards of reasonable and honest people (they) had acted dishonestly.
The divisional court allowed the prosecution’s appeal against the acquittal. The court held that the behaviour of the defendants was dishonest by the ordinary standards of reasonable and honest people and sent the case back for retrial by a new bench of magistrates.
even mags may not agree on what is honest and dishonest
Intention to permanently deprive:
Some situations have clear intention for example:
Throwing something away
Eating it
Destroying it
Spending it
R v Velumyl
D, a company manager, took £1050 from the office safe. He said that he was owed the money by a friend and he was going to replace when the friend repaid him. The Court of Appeal upheld the conviction for theft as he had intention of permanently depriving the company of the banknotes which he had taken from the safe, even if he intended replacing them with other banknotes of the same value later.
when taking cash, there is still intention to permanently deprive, even if you intend to replace the notes later.
Destroying property:
This is clear intention to permanently deprive (and also possibly criminal damage) in most cases.
However, if there is uncertainty s6 expands the meaning of the phrase ‘permanently deprive’ - if the D treats the things as his/hers to dispose of.
However, the court does not like the narrow meaning of ‘dispose of’ as this could also include ‘dealing with’ property- DPP v Lavender (1994)
DPP v Lavender
D took two doors from the council property which was being repaired and used them to replace damaged doors in his girlfriend’s council flat.
The doors were still in possession of the council but had been transferred without permission from one council property to another. Here D was dealing with the doors as his own by moving them from one property to another without permission.
Borrowing or lending:
Normally borrowing would not be theft as there is no intention to permanently deprive.
S6 states that it is not theft unless it is for a period and in circumstances making it equivalent to outright taking or disposal.
This was debated in R v Lloyd (1985)
R v Lloyd
The projectionist at a local cinema gave D a film that was showing at the cinema so D could make an illegal copy. D returned the film in time for the next screening at the cinema. His conviction for theft was quashed because, by returning the film in its original state, it was not possible to prove an intention to permanently deprive. ‘The goodness, the virtue, the practical value’ of the films to the owners has not gone out of them.
: borrowing becomes theft when ‘the goodness, the virtue, the practical value’ has been taken out of the property.
R v Easom
D picked up a handbag in the cinema, rummaged through the contents and then replaced the handbag without taking anything. His conviction of theft of the handbag and its contents was quashed.
There was no evidence that the defendant had intended to permanently deprive the owner of the bag of items in it so he could not be guilty of theft.
if no property is taken there is no theft, despite d s intention
