Criminal Law - Theft

Question 1

Theft Steps

Answer 1

• Title
• State D’s criminal behavior
• Define the potential offence:
  
  • Theft contrary to s 1(1) TA: ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’
• Work through the AR
• Work through the MR
• Defences
• Conclude

Question 2

Theft - AR

Answer 2

• Appropriation (s.3)
• Of property (s.4)
• Belonging to another (s.5)

Question 3

Theft – AR – Appropriation

Answer 3

• s. 3(1) defines appropriation as “any assumption by a person of the rights of an owner.”
• This means any one right (R v Morris), e.g. offering for sale (R v Pitham & Hehl).
• Appropriation is a neutral act, so possible to appropriate even where the owner consents (R v Gomez), or where the property is a valid gift (R v Hinks).
• Those who do not know that what they are buying was stolen (innocent purchasers) are never liable for theft under s. 3(2)(R v Adams).
• Consider at what point all the elements of theft occur simultaneously i.e. the AR and MR coincide. According to s. 3(1) it is possible to make a later appropriation by keeping the property or dealing with it as owner. This is especially useful where D does not have the requisite MR at the time of the initial appropriation e.g. D sees someone has dropped their watch, picks it up intending to return it to them, but later decides to keep it.

Question 4

Theft – AR – Of property

Answer 4

• ASK: is this property which is capable of being stolen? s. 4(1) defines ‘property for the purposes of the act. It includes money, personal property, realty (land), things in action (e.g. money in a bank account, including money withdrawn from a bank where the person making the withdrawal knows that he has no money in the account and no overdraft facility Chodorek v Poland) and other intangibles such as patents.
  
  • Confidential information is not property for the purposes of TA (Oxford v Moss).
  • Electricity is not property for the purposes of TA (Low v Blease) (NOTE: Under s. 13 TA there is a separate offence of abstraction of electricity.)
  • Land cannot be stolen (s. 4(2)), unless it falls within one of the exceptions in s. 4(2)(a-c). Note especially s. 4(2)(b), where the property has been severed from the land by D (e.g. a tree).
  • Picking wild flowers or fruit is not theft, unless picked for reward or sale (s. 4(3)).
  • Wild animals cannot be stolen unless they are reduced, or being reduced, into possession by another at the time of appropriation (s. 4(4)).

Question 5

Theft – AR – Belonging to another

Answer 5

• ASK: at the point at which the property was appropriated (including any later appropriation) did the property belong to another? This has a very wide definition, as it includes any possession, control, proprietary right, or interest (s. 5(1)).
• Your own property can therefore belong to another, e.g. a mechanic repairing your car (R v Turner (No.2)).
• You should generally assume that property has an owner. If there is no apparent owner, you must first consider whether the property has been abandoned. The courts are reluctant to find property to be abandoned, e.g. rubbish left out to be collected was not abandoned in Williams v Phillips.
• Even if property is abandoned, it may belong to the owner of the land where it is located. When property is found on land it will belong to the finder, unless the property owner has previously demonstrated an intention to control things found there (e.g. putting up signs or having a lost property area in Parker v BA Board). If the owner has manifested a desire to exclude trespassers, this may allow a successful claim to ownership of objects found on the land (e.g. a golf club trying to stop a trespasser collecting lost balls in Hibbert v Mckiernen). This may apply even if they are unaware of the property’s existence (e.g. scrap metal left in a disused factory in R v Woodman).
• Alternatively: what about where property has been given to the defendant for the defendant to use it for a particular purpose? The initial appropriation may have been honest, and at this point ownership has passed in civil law, so the property does not belong to another. Do not refer to s. 5(1); instead refer to s. 5(3) - the property will only continue to belong to another if the defendant is under a legal obligation to use it for a particular purpose. Refer to the case law for when this arises:
  
  • R v Hall: money given to a travel agent was not just to be spent on flights.
  • R v Klineberg Marsden: money given to timeshare agents was expected to be safeguarded because of the defendants’ express assurances.
  • Davidge v Bunnett: money given to a flatmate was meant to be spent on the gas bill.
  • R v Wain: includes the proceeds of an enterprise, e.g. money raised in a charity telethon.
• What about property given to the defendant by mistake? The property will only belong to another if the defendant is already also under a legal obligation to return it (s. 5(4)). That obligation is not created by the Theft Act; whether it exists is a matter of law. AG’s Ref. (No.1 of 1983) states that where someone realises they have received money by mistake, they are at that point under a legal obligation to return it _under t_he law of restitution.

Question 6

Theft - MR - Dishonestly

Answer 6

• Remember that the actus reus and mens rea must coincide - so the defendant must be dishonest and intend to permanently deprive at the point that the property belongs to another and is appropriated.
• First check whether any of the s. 2(1) exceptions apply: D will not be dishonest if he honestly believes:
  
  • i) that he had the legal right to deprive the owner of the property (s. 2(1)(a)); or
  • ii) that the owner would have consented had they known of the circumstances (s. 2(1)(b)); or
  • iii) that the owner could not be found by taking reasonable steps (s. 2(1)(c)). Note that he does not have to actually take any steps, just hold the belief that the owner is untraceable.
• All that is required for a s. 2(1) exception is that D has a subjectively honest belief - it does not have to be reasonable (R v Robins**on).**
• Only if none of the s. 2(1) exceptions apply should you instead discuss and apply the common law test established by the Supreme Court in Ivey v Genting Casinos. To ascertain whether the defendant’s conduct was dishonest, ask:
  
  • i) What was the actual state of the defendant’s knowledge or belief as to the facts?
  • ii) Was the defendant’s behaviour objectively dishonest by the “standards of ordinary decent people“, taking into account the defendant’s state of mind and the facts known to him/her?
• In Ivey, the claimant was a professional gambler who used a technique called “edge sorting” to improve his chances of winning. He won £7.7m in a 24-hour period. The casino refused to pay, on the basis that the claimant had cheated. He sued to recover the winnings because he believed the technique was a valid tactic and not a form of cheating. The Supreme Court held that he had cheated and was not entitled to payment, and so took the opportunity to restate the test for dishonesty in both civil and criminal law, overruling the old test from R v Ghosh. Lord Hughes held:
  
  • “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… It is not an additional requirement that his belief must be reasonable; the question is whe_ther_ it is gen_uinely held. When once his actual state of mind as to knowledge or belief as to _facts is estab_lished, the question whether his conduct was honest or dishonest is to be _determined by th_e_ fact-finder by applying the objective) standards of ordinary dece_nt_ _people._ There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”
• Remember that paying for something, or being prepared to, does not necessarily make D honest (s. 2(2)) - e.g. bullying someone into selling something can be theft.

Question 7

Theft – MR – Intention to Permanently Deprive (“ITPD”)

Answer 7

• Do not automatically refer to s. 6! R v Lloyd states that whether or not D has an ITPD will generally be clear on the plain meaning of the words: intention to permanently deprive = wanting to keep something. Reference Lloyd instead for this.
• REMEMBER that if you referred to s. 5(4) above because D obtained the property by mistake, you must use s. 5(4) again here because an intention not to give the property back = an intention to permanently deprive.
• Only if it is not clear that D wanted to keep the property should you refer to s. 6(1): “intention t_o_ treat the th_ing as his own to d_ispose of regardless of the other’s rights.”
• Case law has given this phrase two different definitions:
  
  • 1) R v Cahill: “to deal with definitely, to get rid of, finish, make over by way of sale or bargain”; or
  • 2) R v Fernandes: “dealing with the property in a manner that he knows is risking its loss” e.g. D gambling with client funds even though he intended to replace the money. Note that the important thing is not whether the property is actually in danger of bei_ng_ lost, but whether D believed it would be. Consider comparing with R v Raphael: intention permanently to deprive can arise in a ransom situation.
• Choose whichever is most appropriate to the facts of the question.
• Is this a borrowing situation? Borrowing can amount to an intention to permanently deprive under s. 6(1), but only if “all the goodness, virtue and practical value has gone” (R v Lloyd, in which borrowing film reels to make pirate copies was not theft because the reels were returned in time to be shown that evening). (R v Mitchell).
• If the property i_s_ _pawned, len_t, or gambled__, then this could amount to an intention to permanently deprive under s. 6(2) as well or instead - pick which you consider most appropriate on the facts of the question.
• NOTE that D will still have committed theft if they return fungible or equivalent property e.g. borrowing money and returning different notes, coins, etc. (R v Velumyl).