C3: Theft and Criminal Damage Flashcards
Where is the definition of theft?
s1(1) Theft Act 1968 (TA 1968).
What is the definition of theft?
The defendant must:
dishonestly;
appropriate;
property;
belonging to another;
with the intention of permanently depriving the other of it.
Which parts of the definition of theft are the AR and which are the MR?
Dishonestly; - MR
appropriate; - AR
property; - AR
belonging to another; - AR
with the intention of permanently depriving the other of it. - MR
Does the defendant need absolute control over the property at hand in order for their conduct to amount to an appropriation?
No, they don’t need full control. They just need to assume any of the rights of an owner, e.g. possess it, use it, consume it, destroy it, sell it, give it away, lend it, move it and price it.
Which case changed the way courts viewed theft and how much control the defendant needed over the property to amount to appropriation?
Up to 1983, it was assumed that the defendant needed to assume all the control over the property to amount to appropriation. This changed in Morris [1984], the defendant switched labels of shop articles on the supermarket shelf, with the intention of buying the more expensive article for the price of the less expensive article. It was held that the right to label the goods is a right of the owner, and the assumption of this right by the label switching was an appropriation, despite the fact that other rights had not been assumed. The defendant was then arrested before paying the reduced price for goods, as it isn’t necessary to prove that the victim suffered loss before it can be said that they appropriated property.
Should a defendant assume all or a single right of the owner to amount to appropriation?
Only A single right, not all since 1983.
Is it necessary to prove that the victim suffered any loss before it can be said that they appropriated property?
No, it is not necessary.
Why is it easier to prove theft when someone leaves a shop without paying rather than when they pick up the item and move towards the door?
Technically, the AR is there already as the defendant has appropriated the property, but it is hard to prove the MR until they have left the shop.
Can there be an appropriation where the owner consents to the assumption of their rights?
Yes, see Gomez [1993], where the manager was persuaded to sell items to an accomplice for fake cheques. However, this was done by deception, which is not true consent.
Can an appropriation be established if the property in question passess to the defendant in the form of a valid gift?
Yes, appropriation can be established even if the property is given as a gift.
Which case confirmed that appropriation can be established even if property is given as a gift?
Hinks [2000] - defendant persuaded a man of limited intelligence to give her over £60,000.
What was the criticism about allowing appropriation to be established even if there was gift-giving, around civil and criminal law?
In Mazo [1997], the courts held that as the transaction was valid under civil law, it couldn’t have been appropriated under criminal law. However, Hinks [2000] overruled Mazo and in answer to the criticism that the decision would place the civil law and criminal law at odds with each other, Lord Steyn stated that ‘it would be wrong to assume on a priori grounds that the criminal law rather than the civil law is defective’.
What does it mean to say that appropriation is a ‘neutral concept’?
It does not involve any wrongdoing at all. Appropriation is part of the AR of theft and although the appropriation must be ‘dishonest’, that falls within the MR of the offence.
Is appropriation a finite act?
Usually it will be a finite act, but it can be a continuing act provided that the thief is still ‘on the job’. E.g. stealing something is continuing but at the point of where MR forms, the theft will be complete and further dealings might amount to handling stolen goods.
What is the difference between robbery and burglary?
Robbery is theft alongside the use or threat of violence.
Burglary is theft alongside trespassing into a building.
When does keeping stolen property that wasn’t originally stolen, become theft?
It becomes theft when the person has originally gained possession of the property innocently and subsequently realises that they shouldn’t have the property but decides to keep it anyway. That is when the MR of the offence rises. E.g. borrowing a library book and then keeping it when it is overdue.
How does the latter part of s3(1) TA 1968 deal with property that wasn’t originally stolen but then became theft later?
When the defendant realises they shouldn’t have the property but keeps it anyway, the MR is formed. s3(1) allows the court to find a later assumption of the property: the act of keeping or dealing with it as owner.
What is the exception in s3(2) TA 1968 to theft?
Where the defendant buys property innocently and then discovers a defect in their title (because the property had been stolen), if they then keep it or deal with it as owner, they will not be guilty of theft. However, they could be held liable for handling stolen goods or fraud.
When would s3(2) TA 1968 not apply?
s3(2) TA 1968 does not cover a defendant who acquires property in good faith but not for value, for example, where they are given a stolen car as a gift. If the car is not returned, the defendant is guilty of theft.
Is there appropriation here? Maggie went into a sweet shop. Maggie picked up a ‘pick and mix’ bag and filled it with sweets. Maggie intended to slip out of the store unnoticed without paying. Maggie then lost confidence and left the sweets in the bag on the sweet tray.
Yes, because Maggie has assumed a right of an owner (move it or possess it) and no loss of the owner is required. However, the AR is proven but it would be very difficult to prove the MR, so this claim would probably fail.
Is there appropriation here? Geraldine fell in her kitchen and broke her leg. Geraldine’s neighbour Gurur kindly cut her lawn for her the whole summer. Geraldine gave Gurur £50. Geraldine’s son alleged that Gurur stole the money.
Yes, because Gurur has received it as a gift and even a gift can be appropriated. However, it is unlikely that the MR can be established.
Where in the TA 1968 can the definition of ‘property’ be found?
s4(1) TA 1968.
How does s4(1) TA 1968 define ‘property’?
Property includes money and all other property, real or personal, including things in action and other intangible property. The definition is very wide due to ‘includes’ and ‘all other property’.
What counts as ‘money’ and what does not?
Coins and banknotes = money
Cheques = not money, but a ‘thing in action’.
What is a ‘thing in action’?
Something that can only be enforced by taking legal action, but not physically handled or possessed, e.g. a cheque.
Why is it difficult to show appropriation for a ‘thing in action’?
Because it can only be enforced by taking legal action, it isn’t physical property and cannot be possessed.
What do courts advise prosecutors to do if a ‘thing in action’ e.g. a cheque is stolen?
In such cases, the Court of Appeal advised that prosecutors should use charges other than theft. The most obvious example of an alternative charge would be fraud by false representation under s2 FA 2006, where there would be no need to prove that the defendant appropriated property belonging to another.
Why is a bank account not classed as property?
Because the person who holds the bank account does not possess that money, the only person who has money in the bank is the banker. The person who holds the account actually owns a debt which they can sue the bank for, including the agreed overdraft. The property owned by the person is the debt, which is a ‘thing in action’
What are examples about ‘things in action’?
Cheques
Debt of a bank account
Rights under a trust
Copyright/Trademarks.
In Marshall [1998], the defendants obtained part-expired tickets from customers on the London Underground who had finished their journeys. The defendants then sold them to passengers about to embark on their journeys, thereby depriving London Underground Limited of potential revenue. What was the property/thing in action that the defendant appropriated?
The property, or ‘thing in action’, that the defendant appropriated was the right that London Underground had to sell the tickets.
What is ‘real property’?
Land and buildings.
What are the exceptions outlined in s4(2) a, b and c?
s4(2)(a) means that a trustee, who is the legal owner of land, will be guilty of theft if they dishonestly sell land that was subject to a trust.
s4(2)(b) covers cases when the defendant is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed. This means they were not a tenant but they appropriated something like a tree or roof tiles.
Finally, s4(2)(c) deals with situations when, being in possession of the land under a tenancy, the defendant appropriates the whole or part or any fixture or structure let to be used with the land. This provision deals, for example, with instances where the defendant was a tenant and appropriated something like a fireplace or a garden shed.
What is ‘personal property’?
‘Personal property’ – This is the most commonly stolen form of property and includes tangible items such as bags, mobile phones, etc.
Does ‘confidential information’ count as property?
Although confidential information has value and can be sold, it is not property. E.g. Oxford v Moss [1978] when a student unlawfully acquired an exam paper, read it and then returned it, it did not count as theft as it was the paper that was the property, not its contents. The student was not guilty of theft.
Which part of TA 1968 applies to ‘belonging to another’?
s5(1) TA 1968.
What is the definition of ‘belonging to another’ in s5 TA 1968?
‘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)’.
What are proprietary rights?
Proprietary rights, also termed property rights, are the rights that accompany legal ownership of tangible or intangible property; rights over or in respect of property.
Can somebody own property that was illegally obtained?
No, they cannot.
What is meant by equitable interests?
The interests that are held for a third party. e.g . a turnstile operator appropriates money for themselves, which was meant for the employer. They are holding the money on constructive trust for the employer - legal interest is operator, equitable interest is the employer.
Does possession require physical possession? What does it mean?
No, it means the person who has been entrusted with property under a contract or bailment, lease or hire purchase contract.
What is bailment? Give a case example.
Bailment is an act of delivering goods to a bailee for a particular purpose, without transfer of ownership. E.g. An example of bailment is Marshall [1998], where the ticket purchasers were bailees of the tickets. A person who enjoys a right in property can be convicted of stealing it from another.
What right is the right to ‘control’ property?
This is generally the right in property someone has when goods are in their hands. However, a person may control property even though they do not physically hold it or know of its existence.
What is required for the offence of theft?
In order for the defendant to be convicted of theft, they must have dishonestly appropriated the property at hand with an intention to permanently deprive the other of it.
Where in the TA 1968 does it provide a defence to theft through ‘not being dishonest’?
In s2(1) TA 1968. It states that appropriation is not dishonest when:
a) they believe they have the right in law to deprive the other of it, for him or for a third party.
b) they believe they would have the other’s consent if they knew the circumstances.
c) they believe the original owner cannot be discovered by taking reasonable steps.
Is it equally weighted on how expensive the property is for the defence of ‘not being dishonest’ in s2(1)(c) TA 1968?
No, for example, if the defendant finds a highly valuable and famous work of art, then it will be far harder to show that they honestly believed that the owner could not be traced than if they found a £10 note lying on the pavement.
If a jogger took milk off a doorstep to quench their thirst, but left the price of the milk, can it be assumed that this was honest?
No, it cannot be assumed that this was honest. s2(2) TA 1968 states: A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property’ It simply tells us that some property is either simply not for sale, or is only for sale at a certain price.
What steps would you take to decide whether appropriation is honest or dishonest?
First, you would check that none of the defences provided in s2(1) apply. If not, you would use the common law honesty test.
Which case started the pre-Ivey approach?
The pre-Ivey approach is a two-limb test formulated by CoA in Ghosh [1982]. Here a hospital consultant falsely claimed that money was owed to him for an operation.
What are the two limbs of the pre-Ivey approach to finding out whether an appropriation is dishonest?
The objective limb - is it dishonest according to the standards of the reasonable honest person? If so, continue to the second limb.
The subjective limb - did the defendant realise that this was not done at the standard of the reasonable honest person?
What is the current test, following Ivey [2017]?
Only the objective test, not the subjective one. So asking both:
- did the defendant have an honest belief on the issue?
- was the defendant’s conduct honest?
Who decides whether the defendant is honest or not?
The jury (or magistrates).
With the ‘intention to permanently deprive’, does the defendant need to be successful in permanently depriving the original owner of their property?
No, they can still be convicted if the defendant has the intention to permanently deprive, and was not successful. E.g. stealing a bike, then getting bored and leaving it on the street. Still guilty.
What are the two ways of interpreting the ‘intention to permanently deprive’ the other of their property?
The original meaning, as is easily found through the facts (e.g. running from shop with stolen goods)
The meaning referred to in s6 TA 1968: where the defendant does not mean for the victim to be permanently deprived of the property, e.g. they intend to return some property.
What is the effect that s6(1) TA 1968 gives?
The effect is that an intention permanently to deprive can be inferred where the defendant intends either to treat the property as their own to dispose of regardless of the victim’s rights or borrows/lends property belonging to another.
What are the two parts to s6(1) TA 1968?
- Where the defendant intends to treat the property as their own to dispose of
- Or borrows/lends property belonging to another.
What is the buy-back principle?
Where the defendant returns the property after getting the owner to agree to pay for it in some way.
What is the ransom principle?
Where the defendant imposes on the owner a condition to be fulfilled in order to regain the property.
Which case outlines both the buy-back and the ransom principle?
An example is Raphael and Johnson [2008]. The defendants posed as the potential buyers of cars. On one occasion they assaulted the victim owner in order to take his car and then offered to get it back for him in exchange for money. At trial, the defendants submitted that they had not conspired to rob because they did not have an intention permanently to deprive the victim of his car given that the car would be returned. The defendants were convicted and appealed on this ground. The Court of Appeal held that although the victim was offered the opportunity to buy back his car, this did not prevent the jury from concluding that an intention permanently to deprive could be inferred under s6. This case provides an example of both the ‘buy-back’ and ‘ransom’ principles.
When would there be an outright taking or disposal of property?
When the property has lost its virtue, meaning all or nearly all of the value has been consumed. E.g. money, if the defendant can’t return the actual bank notes and coins, then he has no intention to return the OBJECTS they have taken.
What is an example of property being substantially consumed?
If a season ticket is taken and returned with only a few matches left, this could be substantially consumed and could count as theft. However, a film projectionist copying films was not stealing because the borrowing was not for a period and in circumstances that amounted to an outright disposal.
What counts as borrowing or lending?
If the defendant treats the thing as their own to dispose of, if the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
In circumstances of conditional intention, can there be theft?
No, because there wouldn’t be appropriation. There could be attempted theft however, as in that there is no need for appropriation.
What are the steps to finding out whether an offence qualifies as THEFT?
Was there an appropriation? (s3 TA 1968)
Was what was appropriated ‘property’? (s4 TA 1968)
Did the property at hand belong to another? (s5 TA 1968)
Was the appropriation dishonest? (honest defences in s2(1) TA 1968)
Was the defendant’s intention to permanently debris the other of their property? (borrowing s6 TA 1968)
Can the defendant raise one of the general (and complete) defences?
What is the legislation for criminal damage?
Criminal Damage Act 1971 (CDA 1971)
Where is the basic offence of criminal damage found?
s1(1) Criminal Damage Act 1971 (CDA 1971)
What is included in s1(2) and s1(3) CDA 1971?
An aggravated form of the offence is provided by s1(2).
By s1(3) if the destruction or damage is caused by fire, the offence is charged as arson.
According to s1(1) CDA 1971, what is the definition of the basic offence of criminal damage?
A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence’.
What are the elements of the offence of criminal damage under CDA 1971?
there is property;
that belongs to another;
the defendant’s conduct destroys or damages the property;
the defendant does not have a lawful excuse; and
the defendant intends or is reckless to destroying or damaging the property.
What is the usual sentencing for criminal damage?
Under £5,000 = summary only
Over £5,000 = either-way offence, with imprisonment up to 10 years.
What is the AR for criminal damage?
The AR is that the defendant destroys or damages property belonging to another.
Without lawful excuse comes at the end.
What is the meaning of property in CDA 1971 and how does it differ from the definition of property in TA 1968?
s10(1) CDA 1971 and is similar, but not identical, to the definition of property for theft contained in s4 TA 1968. Property for criminal damage includes property of a tangible nature, whether real or personal. Land cannot be stolen, but can be criminally damaged.
What are the rules around ‘wild creatures’ and criminal damage?
Wild creatures that have been tamed or are ordinarily kept in captivity, and creatures where they have been reduced into possession, can be the subject of a charge. E.g. Cresswell v DPP [2006], where badgers were assumed not to be property until they had entered into a trap and become ‘reduced into possession’.
What does ‘reduced into possession’ mean in regard to wild animals and criminal damage?
‘Reduced into possession’ means captured. The creature can be either living or dead when reduced into possession. See Cresswell v DPP [2006], where badgers were assumed not to be property until they had entered into a trap and become ‘reduced into possession’. The defendants damaged the badger traps in order to protect property (the badgers).
What does property not include in regards to criminal damage?
Note that property does not include:
- mushrooms and fungi growing wild on any land;
- flowers, fruit, foliage, plants, shrubs or trees growing wild on any land; or
- intangible property such as easements, patents and copyrights (although these can be stolen).
What are the rules about property belonging to another person in CDA 1971?
s10(2) provides that property belongs to another person if that person:
- has custody or control of it;
- has in it any proprietary right or interest (such as a lessee but not an equitable right); or
- has a charge on it.
According to s10(3) CDA 1971, who does trust property belong to? Who can destroy it?
By s10(3) trust property belongs to anyone who has a right to enforce the trust. Note that the defendant does not commit a s1 offence where they destroy or damage their own property, unless it is jointly owned.
Does the conduct that results in criminal damage need to be a positive act? Give a case example.
No, it does not. See Miller [1983], where the D accidentally started a fire and did not put it out. He was under a duty to act to put out the fire.
In criminal damage, what does ‘destroy’ mean? How broad is it?
Destroy – This does not contemplate half measures; a building is destroyed if completely pulled down. It is more likely that ‘damage’ will be established.
In criminal damage, what does ‘damage’ mean’?
Damage:
- Usually physical
- Unfit for its purpose
- Value is reduced
What does physical damage depend on in criminal damage cases? Give an example of both what is and isn’t physical damage.
It depends on the nature of the property.
Grass being trampled down = is physical damage.
Scaffolding being scratched = not physical damage (it is something to be expected)
Is physical damage only permanent?
No, it can be either permanent or temporary, e.g. smearing Wellington boot mud on a prison cell is temporary criminal damage - it required a £7 cleaning fee.
Is something that has to be removed via cleaning (albeit temporary) still criminal damage?
Yes, see Wellington boot mud case and pavement drawings in water-soluble paint case.
What does it mean for property to be ‘rendered unfit for purpose’ in regards to criminal damage?
There must be some interference with the property, as opposed to a mere denial of use, e.g. stealing car keys.
Is a car rendered unfit for purpose if fitted with a wheel clamp?
No, even though this may be classed as interference.
Would cutting a brake cable of a car be rendering the property unfit for purpose?
Yes, it would.
Would tampering with the property so it will not work render it unfit for purpose?
Yes, it would.
Would running the property in an improper fashion so that impairment will render it unfit for purpose?
Yes, it would.
Would dumping rubbish on another’s land so that the land cannot be used render it unfit for purpose?
Yes, it would.
What does ‘value impaired’ mean in terms of criminal damage?
It means the value of the property takes a hit.
Can property be ‘value impaired’ even though it is still fit for purpose and not rendered useless?
Yes, e.g. where water is added to beer.
Can damage to property through physical damage, being unfit for purpose or value impairment be permanent or temporary?
All can be either permanent or temporary.
In order for the MR of criminal damage be established, what must the defendant do?
They must:
- intend to destroy or damage property, or be reckless to this; and
- know or be reckless to the fact that the damage or destruction is to property belonging to another.
Why is it important to find out whether it was the defendant’s intention to destroy or damage the property?
Because someone who intended to cause damage is likely to receive a more severe sentence than one who is merely reckless as to the possibility of doing so.
What are the two types of intention? Describe each.
Direct intention: It was the defendant’s purpose to damage or destroy the property.
Oblique intention: Barring any unforeseen circumstances, it was virtually certain that the defendant’s conduct would destroy or damage property where the defendant was aware of this.
Is the fact that the defendant has a good motive relevant when it comes to intention?
No, it is irrelevant. E.g. D believe their actions improve the property.
What is the only form of recklessness?
Subjective recklessness, also known as Cunningham recklessness.
What does Cunningham recklessness mean?
Cunningham recklessness means that the defendant will only be convicted of reckless criminal damage if they realised the risk that their conduct may damage/destroy property, but still unreasonably decided to take that risk.
Marianna drops a brick from a window down onto a busy street and the brick smashes a car windscreen. Marianna realises the risk that property might be damaged/destroyed. Would she satisfy the test for recklessly damaging property? What if she had a low IQ?
She would satisfy the test for Cunningham recklessness. If, however, Marianna has a low IQ that makes her unable to realise the risk she is taking, Marianna will not be subjectively reckless and not liable for the offence.
Is the defendant guilty if they destroy or damage property of another under the mistaken belief (or fact or law) that it is their own?
No, they are not. The AR is made out, but the MR is not. E.g. D ripping out cables (causing damage to property) in a house that he thought was his own, not guilty.
What are the offence-specific defences for criminal damage?
s5(2) CDA 1971: Someone with a lawful excuse:
s5(2)(a) = D thought they would have had consent from the owner
s5(2)(b) = D believed they had to cause the damage to defend other property from immediate threat.
Are the defences to criminal damage s5(2)(a) and (b) CDA 1971 subjective or objective tests?
Subjective, as they are what the defendant believed at the time.
What must the defendant have believed in order to use s5(2)(a) CDA 1971 defence of consent?
The defendant must have honestly believed that a certain person(s) could have consented and must have honestly believed that they had or would have consented.
What are the three ways in which a defendant can use the consent defence for criminal damage?
They mistakenly but honestly believed that:
- X was the person who could give consent to the destruction or damage of the property;
- the person who could consent, or who they honestly believed could consent, had told them to destroy or damage the property.
- the person who could consent, or who they honestly believed could consent, would have agreed to the destruction or damage of the property by them, if they had known of the circumstances.
Why was the defendant in Appleyard [1985] not able to use the consent defence for criminal damage under s5(2)(a)?
A company director who fraudulently set fire to his own company’s property could not claim that he honestly believed that he had his own consent to start the fire.
However the D in Denton [1982] was able to use the defence when he destroyed the employer’s mill in order to claim on an insurance policy, when his employer had encouraged him to do so. It was not his own property.
The point of s5(2)(a) was to deal with cases where the defendant is not the person entitled to give consent.
If the D broke into what she thought was X’s house but was later found not to be, but honestly believed X would have been okay with D breaking in when drunk, would she be able to use the s5(2)(a) defence of consent to criminal damage?
Yes, because she honestly believed her friend, X, would have given her consent to enter her property. Jaggard v Dickinson [1980]
What must the defendant have believed in order to use s5(2)(b) CDA 1971 defence of protection?
The defendant must have an honest belief that some property is in immediate need of protection.
When will the protection defence from s5(2)(b) CDA 1971 be most successful?
When the threat has already materialised. The jury will not conclude D’s belief was honestly held where there is no evidence that the property was in immediate need of protection.
What are the three requirements for when a defendant can use the protection defence for criminal damage?
(1) The defendant believed that property was in need of protection
(2) The defendant damaged or destroyed (other) property in order to protect property
(3) The defendant believed that the means used were reasonable
How does s5(2)(b) have a subjective test that rests on an objective consideration for the belief that property was in need of protection?
The jury will not conclude that the defendant’s belief was honestly held where there is no evidence that the property was in immediate need of protection, which will be an objective decision. The more unreasonable the belief that the defendant claims to hold, the less likely it is that they honestly held it. E.g. Hill and Hall [1988], intent to damage a US naval base because D was defending their property from an imminent Soviet nuclear attack. (Unreasonable belief)
How does s5(2)(b) have a subjective test that rests on an objective consideration for the fact that D damaged or destroyed (other) property in order to protect property?
The jury will look at whether a reasonable person would have thought that the defendant acted in order to protect property. E.g. setting fire to bedding to show that there is a defective fire alarm system, it is not how a reasonable person would have shown this.
What will the juries judge if the defendant’s act is incapable of protecting property?
The fact that the defendant’s act is incapable of protecting property is evidence that the defendant did not act with the purpose of protecting property. In Blake v DPP [1993], the defendant vicar protested outside Parliament against the use of force by the allies in Iraq. The defendant wrote a biblical quotation on a concrete pillar. The defendant’s submission that he had acted in order to protect property was rejected because the damage could not have protected property in the Gulf States.
What is the real subjective test for the protection defence for criminal damage?
The fact that D believed that the means used were reasonable. This is hard to prove if the means adopted were objectively unreasonable, e.g. where excessive and unnecessary damage was caused.
