Property offences - theft

Question 1

Definition of theft (2)

Answer 1

• S.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
• Lawrence
  o All 5 elements must be established

Question 2

Punishment of theft

Answer 2

• 7 years max

Question 3

Actus reus of theft - appropriation (5)

Answer 3

• S3(1) Theft Act 1968
  o Any assumption by a person of the rights of an owner amounts to an appropriation
• Lawrence
  o Tourist driven to destination by taxi driver. Offered taxi driver money and said not enough. Tourist opens wallet up to taxi driver and driver takes more money than needs. Charged with theft. Driver claims tourist consented to driver taking their money.
  o This argument is not accepted – consent is irrelevant to appropriation
  o Appropriation may occur even where owner has consented to property being taken
  o Consent is relevant to issue of dishonesty, not appropriation
• Morris
  o An assumption of ANY rights of the owner was sufficient
  o Appropriation was not an act expressly or impliedly authorised by owner, it was an act by way of adverse interference with or usurpation of owner’s rights
  o For an appropriation to occur the D had to act outside the implied consent of the owner or do some overt act that was inconsistent with the owner’s rights.
• Gomez
  o Brings back to Lawrence – consent is irrelevant to appropriation
  o Confirmed an assumption of ANY of the rights of an owner amounted to an appropriation
  o Confirmed consent is irrelevant to appropriation
  o Creates a conflict between civil and criminal law
  o Appropriation too broad?
• Hinks
  o Can steal a gift that has been given to you – consent is irrelevant
  o D made friends with man of limited intelligence. Went with him to building society where he made withdrawals from his account. Gave about 60,000 to D. Psychiatrist described man as trusting. Man was capable of making decision to give away his property however unlikely he would make decision unaided
  o DISENT – how can you be charged of theft if it does not belong to another anymore?

Question 4

Actus reus of theft - property (10)

Answer 4

• S4(1) Theft Act
  o Property includes money and all other property, real or personal, including things in action and other intangible property
• Oxford v Moss
  o Intellectual property, information or services are excluded
• Low v Blease
  o Electricity cannot be appropriated but would be criminal under s13 Theft Act 1968
• Clinton v Cahill
  o Heat cannot be appropriated
• Kelly and Lindsay
  o There is no property in a corpse and it cannot therefore be stolen
  o However body parts of a corpse can be stolen if they are for teaching purposes, dissection, intended for organ transplant, used for extraction for DNA etc
• Welsh
  o Urine sample could be stolen
• Yearworth v North Bristol NHS Trust
  o Sperm stored in hospital for fertility treatment could be stolen
• R v Kohn
  o An unauthorised cheque for an amount which reduces or eliminates the credit balance amounts to theft of a debt owed by the bank to the account holder.
  o However, there was no theft where the account was in excess of an agreed overdraft as in such a case the bank had no obligation to meet such cheques. There was no chose in action against the bank and therefore nothing for D to steal.
• Hilton
  o Instructed charity account over whom he controlled to transfer money into his own account. Theft of debt belonging to the charity
• Williams (Roy)
  o Builder for elderly customers. Tricked victims into writing cheques for him of excessive amounts. Court decided that when D presented the cheque and then caused the victims bank account to be reduced by that amount, he could be held guilty of theft. He was appropriating the thing that caused the victims credit balance in the bank.

Question 5

Actus reus - belonging to another (13)

Answer 5

• S5(1) Theft Act 1968
  o Property shall be regarded as belonging o any person having possession or control of it, or having in it any proprietary right or interest, whether it be a right of ownership, possession or equitable right
• Turner
  o The owner of property can be convicted of its theft if someone else had possession or control of it at the time
  o D took car to garage to be repaired. Repairs not yet completed but owner placed car outside on street and then Turner took car away and did not pay for any work that had been done. Could be found guilty of theft of his car as at that time the garage had control and possession of his car.
• Woodman
  o Person has possession/control over any articles in possession on their land even if they have forgotten or did not know they were there.
• Hibbert v McKiernan
  o Collecting golf balls left on golf courses. D argued that owners of golf balls have abandoned them. Found that the golf club have possession of the golf balls so would be stealing from club
• R (Ricketts) v Basildon Magistrates Court
  o D has taken bags of clothing from outside charity shop and from wheelie bin at back of different charity shop. Argued the property had been abandoned so he could take it. The bags left on street – charity shop did not have them in possession so had no ownership rights but the person who had left them there had retained ownership so cold be charged with theft from persons unknown. For the bags in bin at back were deemed to be in possession/control of the charity
• Edwards v Ddin
  o Owner of garage did not retain a proprietary right or interest
  o Car owner gets worker at garage to put petrol put in the cart and then drive off without paying. Did the garage owner retain any ownership in the petrol/oil to charge Edwards with theft. Found that as soon as petrol/oil goes into the car, it belongs to the car owner and garage owner does not retain any rights in the oil. Could not be charged with theft. However could be charged with making off without payment
• S5(2) Theft Act
  o Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right
• S5(3) Theft Act
  o Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other
• Wain
  o D raised money for charity. Paid money into separate account and then moved money into his own account and spent all the money. Convicted of theft. Because he had been paid money for charitable purpose he was under obligation to retain the proceeds for charitable purpose.
• R v Hall
  o Travel agent took deposits and payments from clients for trips to America. Trips never materialised and money was never returned to clients. Although they may have breached their contractual obligations there was no obligation imposed on them to deal with the money in a particular way – not guilty of theft – have to show an obligation
• Section 5(4)
  o Where a person gets property by another’s mistake … the property or its proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds
• AG’s Reference (No.1 of 1983)
  o Police officer overpaid her salary by police force by mistake. She was under obligation to return money once she was aware of the overpayment. This overpayment was considered to belong to her employer.
• Gresham
  o D continued to collect dead mothers pension for 10 years after her death. Mistake made by pension people. Overpayment belonged to pension organisation.

Question 6

Mens rea for theft - dishonesty (9)

Answer 6

• S2(1) Theft Act
  o D is NOT dishonest if D has
  a) Belief in legal right
  b) Belief in owner’s consent
  c) Belief that owner cannot be found by taking reasonable steps
• R v Small
  o Belief in a right
  o D charged with stealing a car. Said he thought it was abandoned as had been parked for days unmoved with flat tire, flat battery and no petrol. Judge said belief in abandonment that was unreasonably held could not be honest belief. On appeal was found to be a misdirection – all we are looking for is an honest and genuinely held belief in legal right. Reasonableness should be taken into account but test is for honesty
• Forrester
  o Belief in a right
  o D broke into house where had formally been a tenant. Landlord had kept his deposit and so took items from house that were equivalent to money owed to him. Felt he had a moral right to do this. Court said this is not what the law requires – must have belief in a legal right not a moral right
• Holden
  o Belief in consent
  o D charged with stealing tyres from owner. Believed he had permission to take tyres. Court said belief in consent had to be honestly and genuinely held, did not have to be reasonable
• Feely
  o Dishonesty is a question of fact for the jury
  o Criticisms of Feely question (Griew)
   Inconsistent decisions – different juries have different views
   Fiction of community norms – shared sense of community norm for dishonesty
   Dishonesty in specialised cases – jury would need help to decide dishonesty in specialised cases as there would be no community norm for this
   Vague and uncertain
• Ghosh
  o D was consultant in hospital who claimed fees for an operation in which he did not perform. He argued he was not being dishonest as he was owed the same amount of money for consultation work he had done
  o Test for dishonesty:
  1. Was what was done dishonest according to the standards of reasonable and honest people.
  If answer is no then that’s end of matter. If yes must ask
  2. Did the D realise that what he was doing was dishonest by those standards?
  If no, then he is not dishonest; If yes, then he is dishonest
  o Second part of test introduces subjective element – a tourist in a new country would not realise they are being dishonest so other considerations should be taken into account
  o Criticisms of Ghosh question (Griew)
   Leads to more, longer difficult trials
   Permits the possibility of the Robin Hood defence – defence for a man to say he knew what he was doing was dishonest but does not regard it as dishonest themselves so would not be guilty
   Inept correction of error - if the jury knew that the tourist believed public transport was free, they would say that according to ordinary standards he had not behaved dishonestly. No need therefore to ask if he knew it was dishonest according to those standards – no need for 2nd question
   Law Commission No. 155:
  Juries should not be asked to set a moral standard on which criminal liability essentially depends. As a general rule the law should say what is forbidden, and that should be informed by insight. A jury should then be asked to apply the law by coming to factual conclusions, not moral ones
   Allen –
  Why should being out of touch with normal standards of honesty generally held in the community avail D
• Ivey v Genting Casino
  o Civil case - D wins 7.7 million pounds at Casino. D has done technique called edge sorting to help cheat – D did not think this was dishonest and was instead a good skill. Did dishonesty have to be proven for the Casino to not be able to pay out the money? Supreme Court decision considers Ghosh – 2nd part of Ghosh test has serious problems
   Ghosh test has unintended effect that the more warped the D’s standards of dishonesty are, the less likely it is that he will be convicted of dishonest behaviour;
   Ghosh sets a test which jurors find puzzling and difficult to apply
   Ghosh has led to an unprincipled divergence between the test for dishonesty in criminal proceedings and that in civil
  o Ivey test for dishonesty:
  1. Determine the defendant’s actual state of mind
  2. Consider whether by the standards of ordinary people the behaviour of D should be regarded as dishonest
• DPP v Patterson
  o It is difficult to imagine the Court of Appeal preferring Ghosh to Ivey in the future
• R v Booth (Rosemary)
  o The test for dishonesty in all criminal cases is that established in Ivey
  o Objective standard of ordinary person is applied to subjective standard of his or her belief of dishonesty

Question 7

Mens rea for theft - intention to permanently deprive (10)

Answer 7

• Need not be an actual permanent deprivation
• An unauthorised borrowing or intention to return it at some point does not normally constitute an intention to permanently deprive
• An intention to permanently deprive is established if D does not intend to return the specific property (Velumyl)
• S6(1) Theft Act
  o D will have the required intention if he has:
  1. An intention to treat the thing as his own to dispose of
  2. A borrowing or lending for a period or in circumstances that amounts to an outright taking or disposal
• R v Lloyd
  o If facts of case make it necessary, refer to s6
• Cahill
  o ‘Dispose of’ means more than just using the property
• Lavender
  o D was living in council property. Doors on property were broken. Went to empty council flat, removed the doors from that flat and put them on his own. Argued not intending to deprive council permanently of their property as the doors are still on one of their properties. Court found that D is treating the doors as his own to dispose of which would be equivalent to intention to permanently deprive
• R v Coffey
  o D in dispute with another person. D has machinery in possession belonging to other person. Keeps the machinery as a ransom to persuade the other person to agree in dispute.
  o Court says have to look if keeping machinery for period of time or in such circumstances that it would amount to an outright taking – this did not amount to an outright taking
• Marshall and Others
  o 3 Ds getting London underground tickets from customers who had finished using them and selling on to other customers. Convicted of theft of the tickets
  o Argued had no intention to permanently deprive as were returning the tickets to the underground through a third party.
  o Argument rejected as underground had exclusive right to sell the tickets. By acquiring tickets and selling on the Ds were viewing tickets as theirs to dispose of
• Raphael
  o Robbed of car by Ds. Ds offered to give it back for 5,000 pounds. Later dumped the car when police involved. Claimed had no intention to permanently deprive owner of car.
  o Court said D was treating car as theirs to dispose of.
• DPP v J
  o Ds snatched victims headphones, broke them in half then returned them immediately. Court said had treated headphones as their own to dispose of.
• R v Lloyd
  o a mere borrowing is never enough to constitute the necessary guilty mind unless the intention is to return the thing in such a changed state that it can truly be said that all its goodness or virtue has gone.
  o Have to look at state item is returned in
• R v Easom
  o CONDITIONAL INTENT
  o D picked up handbag in cinema, looked through it but decided nothing worth stealing so out it back down. Charged with theft of 1 handbag and named contents of the bag. Was acquitted as could not prove he intended to permanently deprive victim of any of the specific items. Conditional intention to steal was not sufficient. – should he have been charged with attempted theft instead?