Theft

Question 1

WHAT IS THE DEFINITION OF THEFT SUPPLIED BY S1 THEFT ACT 1968?

Answer 1

A person is guilty of theft if he dishonestly appropriates property belonging to another, with the intention of permanently depriving the other of it; and ‘theft’ and ‘steal’ shall be construed accordingly.

Question 2

WHAT ARE THE ACTUS REUS ELEMENTS OF THEFT?

Answer 2

1. Appropriates
2. Property
3. Belonging to another

Question 3

WHAT IS THE MEANING OF APPROPRIATION?

Answer 3

This is the term used to describe the conduct of the thief and it is defined in s3(1) Theft Act 1968.

Question 4

WHAT IS THE DEFINITION OF THEFT ACCORDING TO S3(1) THEFT ACT 1968?

Answer 4

Any assumption by a person amounts to an appropriation and this includes where he comes by the property without stealing it, any later assumption of a right to it by keeping or dealing with it as owner

Question 5

WHAT IS THE SIGNIFICANCE OF GOMEZ [1993]?

Answer 5

Gomez [1993] held that an honest supermarket shopper appropriates every item they take hold of on the shelf. They will not however be guilty of theft as they are not dishonest (they do not have the mens rea).

Question 6

WHAT DID DARROUX [2018] HIGHLIGHT?

Answer 6

The importance of being able to state precisely how and when the conduct of the defendant amounted to an assumption of rights of an owner.

Question 7

WHAT IS MEANT BY ‘CONSENT’ IN RESPECT OF THEFT?

Answer 7

It has been held that the defendant can ‘assume the rights of the owner’ even though the owner gives them the rights.

For example:
A supermarket gives general invitation for the public to handle their goods.

Question 8

IN RESPECT OF ‘CONSENT’ WHAT DOES THE CASE OF GOMEZ [1993] IMPLY?

Answer 8

1. All dealings with property is an appropriation and only
   the mens rea will distinguish a thief from an honest
   person
2. If one can appropriate property with consent, then it
   can take place as soon as they do anything with
   someone else’s property

Question 9

WHAT WAS THE CONCLUSION IN HINKS [2000]?

Answer 9

Based on the ruling in Gomez [1993], a person can be a thief even though he acquires the property via a transaction or transfer that would be valid in civil law.

For example:
If someone accepts a birthday present from another person, he will be appropriating the property belonging to another on the basis to permanently deprive. The only missing element of liability here for theft is dishonesty - the mens rea.

Question 10

WHAT IS THE MEANING OF PROPERTY UNDER S4 THEFT ACT 1968?

Answer 10

Property includes ‘all money and all other property, real or personal, including things in action and other intangible property’

Question 11

WHAT IS MEANT BY ‘THINGS IN ACTION’?

Answer 11

Things in Action are rights which could be asserted by an action in law.

For example:
In Marshall and Others [1998], the possible theft of London Underground tickets and travel cards was being considered. The tickets/travel cards were not only property as pieces of card, but also representing a thing in action possessed by the buyer - the right to travel.

Question 12

CAN CONFIDENTIAL INFORMATION BE STOLEN?

Answer 12

No - confidential information is not property and therefore cannot be stolen.

The defendant in Oxford v Moss [1978] was not found guilty of stealing information on an exam paper as the ‘secret’ information was not property.

Question 13

IN WHAT CIRCUMSTANCES CAN LAND BE STOLEN?

Answer 13

S4(2) Theft Act 1968 details that land cannot be stolen except in certain circumstances:

1. Under s4(2)(a) land can be stolen where the
   defendant is authorised by a valid power of attorney
   and appropriates land by dealing with it in breach of
   confidence (Gimbert [2018])
2. Under s4(2)(b) land can be stolen by a person not in
   possession of it only if it is first severed by the
   defendant or someone else.

Question 14

IN WHAT CIRCUMSTANCES CAN WILD FLOWERS, FOLIAGE, FRUIT OT MUSHROOMS BE STOLEN?

Answer 14

Where the defendant picks them for reward, sale or other commercial purposes - s4(3) Theft Act 1968

Question 15

IN WHAT CIRCUMSTANCES CAN WILD CREATURES BE STOLEN?

Answer 15

Where another person already has possession of it - s4(4) Theft Act 1968

Question 16

CAN ELECTRICITY BE STOLEN?

Answer 16

Yes.

Although electricity is not property (unlike gas) (confirmed in Low v Blease [1975]) Parliament anticipated this who provided the offence of abstracting electricity in s13 Theft Act 1968.

Question 17

IS A HUMAN CORPSE DEEMED AS PROPERTY FOR THE PURPOSES OF THEFT?

Answer 17

No - unless some work has been expended on it.

Kelly [1998] confirmed that parts of the body and products of the body can be stolen.

Maidstone Crown Court (Ballion) [2002] confirmed that property can be stolen from a dead body.

Question 18

HOW DOES S5 THEFT ACT 1968 DEFINE ‘BELONGING TO ANOTHER’?

Answer 18

S5 Theft Act 1968 defines belonging to another in such a way what it encompasses the owners and those that have a lesser interest in the property, namely, possession or control or any proprietary interest.

Question 19

WHAT HAPPENS WHEN PROPERTY IS ABANDONED?

Answer 19

If property is abandoned, it will no longer belong to another for the purposes of theft.

Property will be deemed as abandoned if the owner is indifferent as to what happens to the property and intends to give up their rights in respect of it - Williams v Phillips [1957]

The is very reluctant to deem property as abandoned

Question 20

CAN A DEFENDANT BE GUILTY OF STEALING THEIR OWN PROPERTY FROM THE VICTIM?

Answer 20

Yes - if the victim has a lesser interest in the property and the defendant dishonestly appropriates it

Question 21

WHAT ARE THE TWO SITUATIONS UNDER S5 THEFT ACT 1968 IN WHICH THE DEFENDANT MAY ALREADY BE OWNER OF THE PROPERTY BUT IT IS DEEMED TO STILL BELONG TO ANOTHER?

Answer 21

1. Property which the defendant receives subject to an
   obligation (s5(3)).If the defendant received property:
   • from the victim; or
   • on account of the victim
   and is under an obligation to retain and deal with the
   property/proceeds in a particular way, the
   property/proceeds are regarded as belonging to
   another - Dubar [1995] is an example.
2. Property which the defendant gets by mistakeIf the defendant receives property by mistake and is
   under a present, legal obligation to make restorations,
   the property belongs to the person entitled to the
   restorations - A-G’s Reference (No 1 of 1983) [1984] is
   an example

Question 22

WHAT IS THE MENS REA OF THEFT?

Answer 22

The mens rea required proof that:

• the defendant was dishonest; and
• they intended to permanently deprive the victim of the
  property.

Question 23

WHAT ARE THE TWO DISTINCT STRANDS OF DISHONESTY?

Answer 23

1. Under s2 Theft Act 1968, there are three situations
   where the defendant is not to be regarded as
   dishonest
2. If none of these apply, then the issue of dishonesty is
   decided by reference to the test for dishonesty from
   Ghosh [1982] as amended by Ivey v Genting Casinos
   [2017].

Question 24

WHAT ARE THE THREE SITUATIONS UNDER S2 THEFT ACT 1968 WHERE THE DEFENDANT WILL NOT BE REGARDED AS DISHONEST?

Answer 24

1. The belief that they have, in law, the right to deprive
   the victim of the property on behalf of themselves or
   a third person.

    -  The defendant cannot claim this belief to justify 
       taking property equivalent to the value rather 
       than the actual property.

2. The belief that they would have the victim’s consent if
   the victim knew of the appropriation.
3. The belief that the person to whom the property
   belonged cannot be discovered by taking reasonable
   steps

     -  Reasonable steps do not have to be taken to find 
        the owner.

Question 25

UNDER S2 THEFT ACT 1968, WHEN CAN A DEFENDANT STILL BE REGARDED AS DISHONEST?

Answer 25

Under s2(2) Theft Act 1968, a defendant can still be regarded as dishonest even if they have a genuine intention to pay/repay.

Question 26

WHAT IS THE TEST FOR DISHONESTY ACCORDING TO GHOSH [1982]?

Answer 26

The Court of Appeal held that the jury should be directed to answer”

1. Was the defendant’s conduct dishonest according to
   the ordinary standards of reasonable and honest
   people?
2. Did the defendant realise that their conduct was
   dishonest according to the ordinary standards of
   reasonable and honest people?

Question 27

WHAT EFFECT DID THE CASE OF IVEY V GENTING CASINOS [2017] HAVE ON THE GHOSH [1982] TEST?

Answer 27

The observations made by the Supreme Court in this case effectively abolished the second limb of the Ghosh [1982] test for dishonesty.

Question 28

WHAT EFFECT DID PATTERSON V DPP [2017] HAVE ON THE GHOSH [1982] TEST?

Answer 28

The Courts in this case held that the new version of the Ghosh [1982] test should now be followed and the second limb of the test has since been removed.

Question 29

WHAT IS THE FIRST WAY IN WHICH ‘INTENTION TO PERMANENTLY DEPRIVE’ CAN BE DEALT WITH?

Answer 29

1. In most cases, the prosecution is simply saying the defendant’s intention was to never give the property back
   - Intention is all that is required

      - The defendant must be charged with theft of 
         specific items. In Easom [1971] nothing was 
         missing from the victim's bag which indicated the 
        defendant had not made up his mind on what to 
        take. This is known as 'conditional intent' and 
        applies where the defendant is looking for 
        anything worth stealing.

Question 30

WHAT IS THE SECOND WAY IN WHICH ‘INTENTION TO PERMANENTLY DEPRIVE’ CAN BE DEALT WITH?

Answer 30

2. In more complicated forms of theft, intention to
   permanently deprive is dealt with by reference to s6
   Theft Act 1968:

     - Under S6(1), a person appropriating property 
       belonging to another without meaning the other 
       to permanently lose the thing itself is still 
       regarded as having the intention to permanently 
       deprive the other of it if 'his intention is to treat the 
       thing as his own to dispose of and a 
       borrowing/lending of it is for a period making it 
       equivalent to an outright taking of the property
   
     - Under s6(2) where the defendant parts with 
       property under a condition as to its return which 
       he may not be able to perform.

Question 31

WHAT WAS THE EFFECT OF LLOYD [1985] IN RESPECT OF ‘INTENTION TO PERMANENTLY DEPRIVE’?

Answer 31

The Court of Appeal held that there would be sufficient intent if the defendant, in the course of the borrowing, changed the state of the property so that all its ‘goodness and virtue’ had gone.