Criminal Law - Theft (5)

Question 1

What is theft?

Answer 1

Theft: Dishonest appropriation of property belonging to another with intention to permanently deprive (s1(1) TA 1968).

(1) Coincidence of MR and AR: AR and MR can occur at separate times so long as they coincide at some point.
>If making off without payment, this is not s1 theft but s3, because property does not belong to another when dishonestly appropriated.

Question 2

What is the actus reus of theft?

Answer 2

Actus Reus: Appropriation of property belonging to another.

Appropriation
Appropriation: Assumption of rights over the property of the original owner, incidentally or otherwise (s3(1)). It is a continuing act.

(1) Consent: Consent is irrelevant for appropriation (DPP v Gomez).

(2) Gifts: Appropriating a gift of indefeasible title can amount to appropriation (R v Hinks).

(3) Delayed Appropriation: Giving away property and then continuing to use it may be appropriation.

(4) Multiple Appropriations: A defendant cannot appropriate the same property more than once, unless it has been reclaimed in between (R v Atakpu).

(5) Compelling Disappropriation: Compelling a victim to disappropriate themselves of a good for your benefit is not necessarily appropriation, but may be fraud (R v Briggs).

(6) Shop: Appropriation occurs from a shop as soon as the item is picked up.

Of Property
Of Property: This is all money and property, whether real, personal, a thing in action, or intangible (s4(1)).

(1) Money: Coins, notes, domestic or foreign.

(2) Real Property: Land and things attached to it, subject to exceptions.
Land: May be stolen by a trustee or PR in breach of office. Tenants may steal on vacation.
Wild Flora: Wild flora cannot be appropriated unless for commercial gain or reward.
Wild Fauna: Wild fauna cannot be stolen, nor their carcasses, unless in the possession of someone or in the course of being taken into possession, such as a hunter’s recently shot trophy.

(3) Personal Property: Any non-real property, such as books and cars.
Illegal Drugs: Illegal drugs can be stolen (R v Smith).

(4) Things in Action: Bank accounts, copyright etc.
Bank Account: Reducing a bank account is appropriation (Chan Man-Sin v R). If from one’s own account, this is fraud, not theft (R v Navvabi).

(5) Intangible Property: Other intangible property which is not ‘in action’, such as patents. Exceptions:
Confidential Information: Confidential information cannot be stolen (Oxford v Moss).
Electricity: Electricity cannot be stolen as theft, but under a separate offence (Low v Blease).

Belonging to Another
Belonging to Another: The property must belong to another person, but not necessarily wholly.

(1) Belonging: Property belongs to another if they have possession or control of it, or a proprietary right or interest in it. This can include tenants and beneficiaries.
Co-Ownership: Jointly owned property can be stolen by one tenant from the other, including partners, directors and property left on trust.
Own Property: One’s own property can be stolen, for example stealing your own car from a garage before paying for the repairs (R v Turner).

(2) Another: Another means another legal entity, including corporations.
Companies: Companies may be stolen from, even by sole shareholders.

(3) Legal Obligations: If a person is under a legal duty to receive and deal with property belonging to another, this is that other person’s property. This does not suffice for moral obligations (DPP v Huskinson).

(4) Abandoned Property: Abandoned property does not belong to anyone, so cannot be stolen. This is narrow, requiring the property rights to have been relinquished.
Lost Property: Lost property is not abandoned.
Rubbish: Rubbish is left for collection, so is not abandoned (Williams v Phillips).
Donations: Donations left for charity are not abandoned (Ricketts v Basildon).

Question 3

What is the mens rea of theft?

Answer 3

Mens Rea: Dishonesty with intention to permanently deprive.

Dishonesty
Dishonesty: Dishonesty is generally given its ordinary definition. There are three examples of non-dishonest behaviour:

(1) Mistake: A mistaken belief in the legal right to take property is not dishonest.
Example: The person believed the property was theirs, but not that they ‘deserved’ it.

(2) Consent: A belief that the owner would consent to appropriation if they were aware of the circumstances.
Threshold: They would consent, not they might consent.
Leaving Payment: Leaving payment is still dishonest if there is no belief in consent.
Example: Person believed property was left for them, or that they would be okay with them taking it.

(3) Missing Owner: A belief that the owner was missing and could not be found with reasonable steps.
	Honest Belief: Must be an honest belief, as determined by jury.
	Later Discovery: If owner is later discovered, and property is retained, this could amount to theft.
	PRs and Trustees: PRs and Trustees cannot rely on this, i.e. retain missing beneficiary’s property.

(4) Ivey Test: If this cannot be determined, use the Ivey Test (Ivey v Genting).
	Subjective: What was the defendant’s knowledge or belief?
	Objective: Was this knowledge or belief dishonest by reasonable standards? 

Intention Permanently to Deprive
Intention Permanently to Deprive: Defendant must have intended to permanently deprive the victim.

(1) Limited Interest: If something is of limited interest, such as a train ticket or rented property, it is theft to steal it for the duration of that interest even if they return the physical object after.

(2) Replacements: Replacing property is intent permanently to deprive if not a homogenous replacement, including physical cash (R v Velumyl).

(3) Borrowing: Borrowing is not intention to permanently deprive, subject to some limited exceptions.
Extortion: Borrowing property and demanding ransom for it is theft (R v Raphael).
Bank Balance: Withdrawing a bank balance, even if insured, is theft (Chan Man-Sin v R).
Risk Borrowing: If property is borrowed in a way that jeopardises its ability to be returned, such as pawning, it is theft, provided there is a chance it cannot be returned in its original state.

(4) Piracy: Making copies of a physical film and returning it is not theft of that physical film, but is a crime under other provisions (R v Lloyd).