Property Flashcards
Where is property defined
Theft Act, section 4: “(1) ‘Property’ includes money and all other property, real or personal, including things in action and other intangible property.”
Where is the definition of property founded from?
civil law concepts and the criminal law cannot ‘float free’ of these concepts.
Case showing the property is widely defined
Smith: D argued that heroin taken from V in a robbery could not be the subject of a charge of Theft, as it was illegal for V to possess it. However, property ‘includes … all… property’, which means that anything that is property in civil law can prima facie be stolen, even property that it is an offence to possess. It would be contrary to public policy and public order to allow otherwise.
What is real property?
A reference to land
What is person property
is a reference to all property that is not land and that includes property that is illegal or prohibited (Smith)
What is a thing in action
A category of intangible property where D has the right to sue another for a particular sum.
Can a bank account be stolen>
a bank account can be stolen. Depositing money into a bank creates a form of intangible property and a right to sue the bank for this particular sum.
Can an over draft be stolen
D can also steal from an overdraft, however if D has transferred money from an account that V has no right to sue for e.g. where D has transferred money in excess of V’s overdraft.
Case for stealing an overdraft
Kohn: D was an accountant who had control over the company’s finances with access to their account. He drew on the account for his personal use, and in so doing was appropriating the company’s property. He continued drawing against the overdraft, he was stealing that as well, as an agreed overdraft in a thing in action.
What happened in AG of HK v Than Nai-Keung
D, a director of company A and company B, sold export quotas from one company to the other at a gross undervalue, which he was not entitled to sell. Although the export quotas did not represent a thing in action, they were held to constitute other intangible property and therefore were subject to theft.
What is the problem in regard to stealing cheques
A cheque which is given by V for consideration creates a thing in action. So if V, for example, was tricked into writing a cheque in D’s favour, D has not taken V’s right to sue, instead the thing in action which D has gained is not property which has ever belonged to V and cannot be the subject of theft. The problem is that D does not commit theft until he presents the cheque and causes the transfer. We could say that the cheque is tangible property, but since D does not intent to keep the paper, there is no intention to permanently deprive. The other option is to say that the cheque is valuable security, a piece of property that creates certain financial rights.
which approach to cheques will probably be the favoured one?
The other option is to say that the cheque is valuable security, a piece of property that creates certain financial rights. This approach has been adopted in Australia although never accepted in this jurisdiction. (N.B. the decline of the use of cheques makes this less of an issue, although could apply to paper tickets).
Is electricity property?
Electricity is not property, but there is a separate offence within the section 13 of the Theft Act of wasting or diverting another’s electricity ‘abstracting’
Case for abstracting electricity
Low v Blease: ‘abstracting’ electricity. D made an unauthorised phone call, this was not theft of any electricity used. But offence under S 13 of abstracting electricity which he could have been charged for
Can confidential information be stolen?
No, Confidential information is not property.
Oxford v Moss: a student got a proof copy of the exam paper before he was due to take it, read and returned it. It was held that he could not steal the information. Could not steal the paper, as he had not intent to deprive the university of it.
What does Professor Smith argue i
Professor Smith argues that if an item cease to be of value as a result of D’s conduct and he knows it, it may constitute an intention to permanently deprive e.g. take ticket to football match but gave it back after a game.
Can services be stolen?
Services acquired cannot be stolen e.g. taxi ride or haircut, but subject to other offences e.g. making off without payment S 3 or S 11 to obtain services dishonestly (Fraud Act).
Can bodies, corpses, bodily fluids be stolen?
No, apart from in exceptional cases typically where has been done on the thing, e.g. a mummy in a museum, a persevered sample (Kelly and Lindsay)
Case where taken body parts
Kelly and Lindsay: D was convicted of theft for taking body parts from the Royal College of Surgeons to use in their art project, all these items had undergone some work by college staff so came within the exception. But if D taken a ‘fresh’ body which had been left to medical science, that would not have been theft. CA recognises this is an odd rule, but it should be for Parliament to change the law.
When will bodily fluids amount to property
Bodily fluids which are intended to be held of controlled can amount to property.
Case for bodily fluids
Yearworth v N Brotstol NHS Trust: a facility allowed people to store sperm transplants if cancer treatment left them infertile. There was an application of skill in the storage, so could have been said that the exception applies. However, the court decided on the general principle that the men must own their own sperm which seems sensible. Seems unclear what criminal law would do if such a case put before them today.
Where are the exceptions to the definition of property?
S 4 highlights a number of specific exceptions to the definition of property.
What is s 4(1)
a person cannot steal land
What is s 4(2)
s 4(2) provides that a person cannot steal land, or things that are part of land and are severed from it, other than the exceptional cases in s 4(2)(a)-(c).
