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.
