Chapter 20: Offences against property - Theft Flashcards
What is the statute for the topic on offences against property?
What is there to note about the Act?
Theft Act 1968
- Do not use Theft Act 1978 (this is the amended Act)
- The offences are still provided under the 1968 Act
What is the statute for Theft?
What are the relevant provisions, and what do they provide for each?
Section 1 of the Theft Act 1968
- Section 1 – definition of theft
- Section 2-6 – definition provision
- Section 7 – charging provision
What is the definition for theft? What section provides this?
Section 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.”
What are the 5 elements of theft?
AR
- Appropriation (Section 3)
- Property (Section 4)
- Belonging to another (Section 5)
MR
1. Dishonest (Section 2)
2. Intention to permanently deprive (Section 6)
What is the definition of appropriation? (Section 3)
What case provides this definition?
“Essence of appropriation is the fact that the act is by way of “adverse interference or usurpation of the owner’s rights.” - Morris (1983)
What are the 2 cases for appropriation?
R v Morris [1984]
Chan Man-Sin v A-G for Hong Kong (1988)
R v Morris [1984]
What was the principle that was thought?
appropriation
Context
- This case created the common fraud of label-switching in a self-service store
Facts
- D had switched the price tags of a product in a supermarket
- Switched to get a lower price for the goods that they wanted
- D and E appealed against conviction of theft
Held
- Sufficient appropriation
- HOL preferred the narrow view that there need not be a assumption of all rights - but sufficient if one right was assumed
- On grounds that the rights of the owner included the right to determine the price, the right to place the price tag, and even the right to touch the item in order to change the price tags
Note
- Some authors suggest that even touching is sufficient
Takeaway
- Taking the item was not appropriation as it was consented to
- However, switching the price tags were adverse to the owner’s rights
- And there need only be 1 right that is assumed
Chan Man-Sin v A-G for Hong Kong (1988)
appropriation
Facts
- D charged with theft of the proceeds of a bank account
Held
- Theft took place as early as presenting the forged or unauthorised cheque
- This is still appropriation even though there was no way it could adversely affect the interest of the account holder
- No property was touched, but still constituted appropriation
Takeaway
- What matters is not necessarily the physical object being taken
- But merely an assumption to appropriate
Is there appropriation even when “consented to”?
What are the 4 cases that support this idea?
- Lawrence v MPC [1972]
- Dobson v General Accident (1989)
- R v Gomex [1993]
- R v Hinks [2000]
Lawrence v MPC [1972]
consent - appropriation
Facts
- P was an Italian with little knowledge in English
- He asked D, a taxi driver to take him to a certain address and tendered £1 which was more than sufficient for his fare
- D asked for £5
- P agreed to D taking his money
Issue
- There was no deception through obtaining the money
Held
- Unlawful appropriation/theft
- Consent is irrelevant for appropriation
Takeaway
- Appropriation can occur even when the V consents to the taking
R v Gomez [1993]
IMPORTANT - wrongly decided
consent - appropriation
Context
- Approved Lawrence v MPC
Facts
- G persuaded his manager to agree to sell goods at the value of £17,000 to his accomplice X
- Also persuading him to accept 2 cheques
- Cheques were stolen and useless (both D’s knew)
Held
- Appropriation need not be concerned with the adverse interference or usurpation of the owner’s rights
- HOL stated that inducing the owner to part his property was appropriation of property
- Also mentioning that it was irrelevant for there to be consent or authority of the owner. As long as there was dishonest intention to permanently deprive
Takeaway
- Consent is irrelevant
- Only need dishonesty & intention to deprive
Note
- Because of this case, the meaning of “appropriation” has widened within the definition of theft
- Right decision should have been - charged with obtaining property by deception, under
-
Section 15 of the Theft Act 1968
Today - they should have been charged under the Fraud Act 2006, on grounds that the goods were actually the 3rd party’s
What if the victim consented?
R v Hinks [2000]
consent - appropration
Issue
- Can there be appropriation where the D has an indefeasible (absolute) right to the property
Facts
- D befriended the V and encouraged him to give her money from V’s bank account
- V consted and gave the money
- There was no evidence of duress or deception while parting with the money
- D argued that they were gifts from the V and had voluntarily relinquished his rights to it
Held
- Appropriation & theft
- Lord Steyn stated that there was appropriation and was guilty of theft for proof of dishonesty
- On grounds that it didn’t matter if the D gifted money or not, as this was “assuming rights of ownership”
- Consent was irrelevant
Takeaway
- Appropriation doesn’t matter if owner gave consent or not
- But matters whether there is dishonesty
What are the 4 other examples to appropriation?
- Appropriation when already in possession of goods
- Section 3(1) - “where he has come by the property without stealing it, any later assumption of right to it by keeping or dealing with it as owner.”
- If D has limited authority to deal with property, and **exceeds authority **
- V hands over goods due to intimidation
What is the definition of appropriation? What is the section that provides this?
Section 4(1) - “Property” includes money and all other property, real or personal, including things in action and other intangible property.’
What are the 4 kinds of properties?
- Money
- Intangible property / things in action
- Real property
- Corpse
What is considered property regarding “Money”
Coins
Bank Notes
What are “Intangible property” / ‘things in action’ that are allowed and not allowed?
Allowed
- Debts - only discharged if forgiven or paid (R v Davenport [1954])
- Company shares (can’t steal actual paper ‘shares’)
- Copyright or trademark (intellectual property)
- Credit balance in bank account
- Cheque (R v Kohn [1979])
Not allowed
- Electricity (Low v Blease [1975])
- Confidential information (e.g. exam question paper) - Oxford v Moss [1978]
What are the 3 relevant subsections that provide what “real property” is
1) Section 4(2) - Land or things forming part of the land and served from the land, can’t be stolen unless -
- D is a trustee, personal representative, attorney, liquidator of the company sells or disposes the land
- When not in possession of land, and goes to appropriate something from the land
- When being in possession while under tenancy, appropriates anything from the land
2) Section 4(3)
- Deals with wild flowers, mushrooms, fruit and foliage, which can’t be stolen by picking unless they are picked for commercial purposes for sale
Section 4(4)
- Wild animals tamed or untamed are property. But a person can’t steal a wild creature not tamed or ordinarily kept in captivity, or the carcass of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing into possession
Can corpses be considered property? What is the GR & Exception?
What is the case for the exception?
General rule
- Law does not recognise corpse as property, therefore can’t be stolen
Exception
- If the corpse is acquired different attributes by virtue of the application of skill (i.e. dissection or preservation for exhibition or teaching purposes)
- Courts note that in the future, corpses can possibly be property for purposes of Section 4 (where used for transplants, extraction of DNA, or exhibition in trial)
Case
- R v Kelly [1998]
What is the provision that provides the definition for ‘belonging to another’?
Section 5(1) - “Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest.”
What are the 5 situations for ‘belonging to another’
- Person who has possession or control
- Person who has proprietary rights or interest
- Section 5(2)
- Section 5(3)
- Section 5(4)
What is ‘person who has possession or control’?
What is the 2 cases for this?
Belonging to another
Introduction
- Requires both intention to possess and certain degree of dominion (control)
Case
- R v Woodman [1974]
- R v Rostron (Terry) [2003]
R v Woodman [1974]
belonging to another - posession or control
Facts
- P sold all scrap metal on certain business premises to Q
- Q removed most of it but left some as being too inaccessible to be worth expense of removal
- D entered the premise to take some of the scrap
Held
1. Theft
2. P continued to control the site and his conduct in raising fences and posting notices showed he had intended to exclude others from it
Takeaway
- Ownership comes from who has possession or control over the property
What is meant by ‘Person who have proprietary rights or interest’?
What is there to note about this?
What is the case for this?
Introduction
- Ownership - property is also to be regarded as belonging to any person having proprietary right/interest in it
Note
- Sometimes the owner can steal his own property if the property is in custody of another
Case
* R v Turner (No.2) [1971]
Can a person steal their own property? - R v Turner (No.2) [1971]
Belonging to another - proprietary rights/interest
Facts
- D took his car to garage to be repaired
- Repairs were almost done and the car was parked outside the road
- D without telling the garage owner or offering to pay, drove away
Held
- Theft (of his own property)
- The mere fact that the garage owner had possession and control was sufficient
Takeaway
- Even if it was his property, theft is still possible
- As at the time, the possession and control was under the garage owner
What is Section 5(2) for belonging to another?
Introduction
- where trust property belongs to the beneficiary who has equitable interest in the property
Example
- Theft is possible where the trustee appropriates the trust property
What is Section 5(3) for belonging to another?
What are the 2 cases for this?
Where D receives property from another, and -
- Is under an obligation to the other;
- to retain and deal with property or its proceeds;
- in any particular way the property shall be regarded as belonging to another
Case
- R v Huskinson [1988]
-
Davidge v Bunnett
1. D collected contribution from fellow occupants to pay electricity board. Spend all the money on Christmas present
2. Held - Guilty of theft as she was under legal obligation (under statute)
What is Section 5(4) for belonging to another?
What are the 2 cases for this?
IMPORTANT
Introduction
- If property is obtained under another’s mistake then there is legal obligation to make restoration
- To that effect the property is belonging to another
- Any intention not to make restoration is regarded as intention to deprive the person of their property
Example
- This section would arise where D receives money by mistake of V (no fraud/deception involved)
- V holds an equitable interest (to get the money back
Case
- Chase Manhattan Bank NA v Israel - British Bank (London) Ltd. [1981]
- AG’s Reference (No.1 of 1983) [1985]
Chase Manhattan Bank NA v Israel - British Bank (London) Ltd. [1981]
Section 5(4) - belonging to another
Facts
- X bank by mistake paid $2 million to Y bank for the account of Z bank
- Z bank liquidated the money afterwards
Held
- X bank retained an equitable interest and was entitled to restore the whole money mistakenly paid out
AG’s Reference (No.1 of 1983) [1985]
Facts
- D (employee) received overpayment of wages
Held
- D was under obligation to restore the amount to the employer
What is the Section for dishonesty, what is there to note about this section?
What is dishonesty element for Theft?
Statute
- Section 2(1) - “A person’s appropriation of property belonging to another is not to be regarded as dishonest.”
Note
- Section 2(1) defines what is not being dishonest
- The 3 subsections need not be a reasonable belief, as long as the D himself had an honest & genuine belief of such
What are the subsections that provide what is not dishonesty for theft?
What do they provide?
1) Section 2(1)(a) - Mistake as to law
- D sells and delivers goods to V
- V fails to pay for them
- D wrongly believes that he has the right in law to take possession of the goods
2) Section 2(1)(b) - If he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it;
- D takes a pencil from V (his friend)
- Thinking that he would consent to him taking it
- In fact does not
3) Section 2(1)(c) - Except where the property came to him as trustee or personal representative, if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps
- What is considered ‘reasonable’ is ultimately as question of D’s belief
What are the 2 cases for dishonesty for theft?
- R v Ghosh [1982]
- Ivey v Genting Casions [2017]
R v Ghosh [1982]
test for dishonesty
Facts
- Ghosh was consultant at a hospital
- Falsely claimed fees for operations that the had not in fact carried out
Held
- COA rejected a purely subjective approach to the test for dishonesty
- COA also concerned that the objective test would lead to injustice
- They decided to combine the tests
Takeaway
- Test for dishonesty is -
1. Was what was done dishonest according to the ordinary standard of honest and reasonable people?
2. did D realise that what he was doing was dishonest by that standard?
Ivey v Genting Casinos [2017]
IMPORTANT
test for dishonesty
Context
- Court determined that formulation in this case was the correct test to apply when considering dishonesty in criminal law
Issue
- Court felt the second limb in Ghosh was unnecessary and problematic for the subjective element
Held
- Today, only the first limb/question is considered - standards of reasonable and honest person
Note (important)
- If statute is fulfilled, then settled
If statute can’t use statute, then must settle through common law precedent/cases
overruled R v Ghosh
What is intention to permanently deprive?
Introduction
- The words “permanently deprive” relates to “intention”
Note
- Not necessary to show that there was actual permanent deprivation of property (just see intention of D)
What is the case that shows actual permanent deprivation is not needed?
Corcoran v Anderton [1980]
Corcoran v Anderton [1980]
No need actual permanent deprivation
intention to permanently deprive
Facts
- D sought to take handbag with force
- D snatched the bag, but it later fell from D’s hands, he then ran away
- D argued that this was attempted theft
Held
- Theft is complete when he tried to snatch the bag
- Courts rejected the appeal since the snatching was an appropriation
Note
- Intention can be inferred (e.g. takes money wallet and spends the contents, intention to permanently deprive)
Takeaway
- Doesn’t have to actually show permanent physical deprivation
What is the statute for the test for intention to permanently deprive?
Section 6(1)
First limb
- Intention to treat the thing as his own to dispose of regardless of the other’s rights
Second limb
- Where a borrowing or lending amounts to an outright taking
What are the 2 cases for intention to permanently deprive?
Fernandes [1995]
Lavender [1994]
Fernandes [1995]
COA held that D intends to treat the thing as his own to dispose of regardless of the other’s rights if he deals, if he deals with the property knowing that there is a risk of loss
Lavender [1994]
Facts
- D took 2 doors from the council’s property and used them to replace damaged doors at the another council property
- Charged with theft
- Argued that he never intended to deprive the council of the doors
Held
- Divisional court decided that the words “to dispose of” should not be interpreted literally (to sell or throw away)
- D treated the doors as his own regardless of the council’s rights not to have them taken away from him
Note
- Intention was found as soon as he took those doors for his own use
