PO: Theft s5 Flashcards
What does s5(1) State?
A
S 5(1) provides
‘Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest…’
This is a wide definition and it means the legal owner does not have to be proven.
Define possession or control?
Normally the owner has control, but this is not always the case.
For example:
If you hire a car you have control and possession, but you are not the legal owner(called a propriety right). The car can be stolen from you and from the hire firm.
Also this does not have to be legal control/possession, as if a person steals items that are already stolen goods – this is still theft (under s5).
What is 3 other situations where a person can be guilty of theft even if the property may not belong to another?
This is when a person is acting dishonestly and has made a gain or caused a loss.
These are:
When a trustee steals trust property s5 (2)
When property is received under an obligation s5 (3)
When property is received by another’s mistake s5 (4)
What happened in Turner (No2) 1971?
D’s car was repaired (new piston rings) at a garage. The mechanic parked the car on the road outside the garage. D surreptitiously took the car away neither telling the garage nor paying for the repairs. He argued he owned the car and therefore it did not belong to another. Meaning he could not be guilty of theft.
HELD: D had stolen the car because at the time of the appropriation it was under the possession and control of the garage.
Definition of PROPERTY RECEIVED UNDER AN OBLIGATION S 5 (3)?
It means if something is given for a purpose not using it for that purpose can be theft.
Consider:
I am collecting money for children in need. I ask students and teachers at school to make a donation for a sponsored walk. I raise £200. I then decide to spend the money on a new handbag instead!
What happened in the case of Hall 1972?
D, a travel agent, received money from clients for air trips to America. None of the flights materialised and none of the money was refunded.
C of A HELD:
He was under no obligation to deal with the money in a particular way therefore could not be theft.
NOTE: Could be sued for breach of contract
In contrast what happened in KLINEBERG AND MARSDEN 1999?
Ds were involved in a timeshare fraud whereby intending purchasers of timeshares in a development in Lanzarote were relieved of their money but did not acquire any timeshares.
HELD: As there was a specific understanding regarding the use of the money there was an obligation under s5(3)
What happened in Wain 1995?
D helped raise and collect money for the Telethon Trust charity. He put the money in his personal account, with the Trust’s permission, but used it for his own purposes, thereby appropriating the money.
HELD: By putting the money in his own account, it was still the proceeds of those notes and coins. There was an obligation on D to keep sufficient money to pay the money to the charity. It did not have to be the actual notes and coins that he took.
Less formal agreement: What happened in DAVIDGE V BUNNETT 1984?
Here, the defendant shared a flat with several other people who gave her cheques on the understanding that a communal gas bill would be paid with the proceeds. In fact, the defendant spent the proceeds on Christmas presents and left the flat without giving notice.
HELD:
The defendant was under a legal obligation to use the proceeds of the cheques in a particular way therefore there is an intention to create legal relations.
Definition of property obtained by mistake?
Essentially it means that if you are given something by mistake, you have an obligation to make restoration.
For example:
If you have an overpayment of wages you are obliged to pay it back, if you keep it, you could be liable for theft.
What happened in A-G’s reference (No 1 of 1983) 1985?
D, a policewoman, received an overpayment of her salary, which the MPD paid by direct transfer to her bank account. She did not notify.
Held: S5(4) clearly provides for this situation and would be guilty if all other elements were present.
NOTE: Here, she was not guilty by a jury trial
What happened in R V SHADROKH-CIGARI 1988?
A bank mistakenly credited £268,000 into a child’s account rather than £268. The defendant, the child’s guardian, took money out of the account with bank drafts signed by the child.
Held:
The defendant was liable for theft as under s.5(1) the bank retained an equitable interest in the drafts and under s.5(4) he was under a legal obligation to return the money received by mistake.
What happened in R V GILKS 1972?
D had placed a bet on a horse and the bookmaker made a mistake and put it on the wrong horse. He then paid the D more then he should have. When D realised he decided to keep the money.
As D was now in possession of the money he could only be guilty if s5(4) applied.
Held: The bet was not a legal obligation so he did not have to restore the mistake. Only legally enforceable mistakes had to be returned.
In contrast: What happened in Moynes v Cooper 1956?
The Appellant workman received £7 in his pay packet more than was due to him. He did not open his pay packet until sometime later. He then kept the £7.
Held: This was held not to be theft because he was not dishonest at the time of the receiving the money.
Abandonment: What happened in cketts v Basildon Magistrates [2010]?
Here the D took his case to a judicial review. He said the at the Magistrate had incorrectly applied s5 and that the property did not “belong to another” as it had been abandoned.
In this case it hadn’t been abandoned but if it had been it would no belong to another under s5.
