Theft Flashcards
Theft occurs:
Occurs whenever someone wrongfully appropriates the property of another with the intention permanently to deprive the other of possession.
What is appropriation?
the application of another’s property to the appropriator’s own use. The crime can be committed as soon as the intention to appropriate was formed - eg:
George Brown case - watchmaker entrusted with 9 watches to repair. He did not “take” them. “It is of no consequence of what character the original possession of the property is. The moment the intention of appropriating the property of another is formed, the theft is committed”
Herron v Diak & Newlands - funeral directors were to use a very grand steel coffin entrusted to them. They placed him in a chipboard container instead but there were problems withthe burial and they did in the end use it. Theft - irrelevant that had been quite properly in possession of hte casket and even though the casket was eventually used for the intended purpose. The original lawful possession of the coffin became theftuous when the decision was made to appropriate it to their own use. Crime was committed when they decided to appropriate it to their own use and it could not be “undone” by their eventual decision to use the original casket.
Where there is initial lawful posession of the goods, you will need to look at the conduct to show that theftuous intent was present.
What property can be stolen
1.Corporeal property - ie a physical or tangible object. Incorporeal property - eg information or a legal right cannot form the subject of a theft charge in Scotland. - so can be charged with stealing a file but not the informaiton itself. Making copies of print outs from an employers computer and offering to sell the information to rivals is not a crime (Grant v Allan) - no crime of dishonest exploitation of confidential information- although a breach of obligations ot employer- Similarly no criime to memorise secret informaiton etc.
If theft of a document or a book which is valueless, in itself, the value may come from the information in it and that would be taken into account in sentencing.
Can steal electricity, water, oxygen etc.
- Moveable - ie capable of being moved.
- Another’s property - can’t steal your own, or ownerless property. Abandoned property belongs to the Crown and is not ownerless. Wild animals are res nullius and ownership acquired by the first person to capture or confine them. Once captured/confined, they can be stolen - eg removing salmon from a net. (poaching is a seperate offence but poacher owns the game once captures it). Plagium is theft of a child under the age of puberty (deemed ownership of parents)- “the deliberate taking of a child from the custody of a parent or other person who has for the time being the parental right of custody in terms of the statute…or under an order made by the court”, …consent of the child is irrelevant….[if a child cannot give a valid consent -is it appropriate to bring a charge of abduction as opposed to one of plagium.
but:
In Orr v K 2003 GWD 8-196, the charge was brought against a mother who failed to return a child ,after agreed contact, to the father with the residence order. The sheriff dismissed the complaint, holding that the abolition of “custody” as a concept in the 1995 Act together with that act’s maintaining the rights and responsibilities of the natural mother removed the basis of the pre-existing law, as illustrated by the case of Hamilton v Wilson 1994 SLT 431, and gave jurisdiction in such matters to civil rather than criminal courts. It is to say the least uncommon to find a common law crime abolished by a side wind in the shape of a civil statute dealing with something else.
Theft by taking
There needs to be amotio or asportantio (taking away or removal of a thing from its place such as indicates an intention to steal that object.
There doesn’t have to be amotio in the sense of physically moving or taking away. eg Black and Penrice v Carmichael - car clamped - the physical act necessary to constitute theft was the appropriation by which control and possession of the car was taken away from its owner/custodier by the clamping of it. - note in this case though no one argued that by parking it in an area where the signs warned of clamping the owner was consenting to it (although generally it is only consent to the transfer or ownership which is a defence) nor that there was no intention to permanently deprive.
Theft by appropriation
“appropriation of goods by the person to whom they have been entrusted for a limited and specified purpose constitutes theft” O’Brien v Sthrathern
eg of appropriation Herron v Diak & Newlands above or Dewar v HM Advocate
Manager of aberdeen crem charged with theft of 600+coffin lids - he said that coffins are abandoned by their owners and completely under his jurisdiction for disposal. Held that coffins were sen to him for the sole purpose of destruction, and that by preserving and re-using the coffins, he was appropriating them to his own use - therefore guilty.
theft by finding
A person can retain goods for a reasonable time but thereafter it may be presumed that the finder has appropriated the goods to his own use, and at that point, theft has occured.
MacMillan v Lowe - found chque book and card in telephone box - name and bank on them. Retained them for at least 4 hours without making any attempt to return them to the owner. Attempted to conceal them from the police too - enough evidence for theft.
A person who finds any article is obliged by the Civic Government (Scotland) Act 1982 to take reasonable care of it aand within a reasonable time to deliver it or report its finding to a police officer or the owner or occupier of the premises on which the article is found. Failure to do so constitutes an offence itself and might well demonstrate an intention to appropriate the article such as to form the basis of a theft charge.
Mens Rea of theft
to permanently deprive can also be
to temporarily deprive -
Temporary depriving owner
Milne v Tudhope (builder returned and removed windows doors radiators until allowed to finish contract and get paid for work done) 1981 the court held that in exceptional circumstances, an intention to deprive the owner of the property on a temporary basis might suffice….a clandestine taking, aimed at achieving a nefarious purpose, constitutes theft, even if the taker intends all along to return the thing taken when his purposes has been achieved”.
HM Advocate v Mackenzie 1913 - “although there is no intention to retain the article, may be theft, is clear. The article is taken from its owner for the serious purposes of obtaining something of value through the posession of it…In this case…if [the prosecutor] can make out by his evidence that hte book was taken, and taken for a nefarious purpose, he may be able to obtain a direction in law that what was done constituted a theft of the book…”
Black v Carmichael 1992(wheel clamping) ..”to deprive another of the posession and use of his property can only be described as theft if there is appropriation - whether by taking it away or doing something else to it to this effect - and this is done deliberately - thus the deliverate nature of the acto fo appropriation [clamping] in knowledge of its consequences is sufficient in this case to justify the inference of mens rea.
Probably general position is that you need intention to permanently deprive But may be theft in an exceptional case where there is a temporary taking, if the intention is to permanently deprive unless some condition is fulfilled. This would cover all the cases
.
Authorised borrowing
Not theft & it is always a defence to a charge of theft to argue that one genuienly believed that the owner was consenting to the removal of the property or that he would have consented had he been aware of the circumstances.
But circumstances can cahnge - eg borrow book from library - it is overdue - forget to return it - no theft no mens rea - but if they send a reminder and a fine and you decide not to return it - theft.
Unauthorised borrowing
Not theft provided it was taken with the intention to return it to the owner in due course and was not done in furtherance of a nefarious purpose
Intention to deprive indefinitely
Fowler v O’Brien 1994 - took bicycle and then dumped it without telling owner when or on what conditions it would be returned- no need for exceptional circumstances, nefarious purpose or clandestine taking….but it may just be linguistics…surely fact that dumped it implied an intention to permanently deprive anyway?
If you borrow and use up it usefulness - is it theft?
Yes - eg borrow an opera ticket for a season, use it up and then return it. Similarly may be theft to use borrowed consumable goods up and to replace them with goods of equivalent value or take money from petty cash to return money to same value once been to cash point.
Theft - taking and using
taker of property may be guilty of the crime of “clandestinely taking possession and using” even if intends to return the property when his purpose has been accomplished.
Strathern v Seaforth (this was joyriding case)
Murray v Robertson
eg of the taking and using offence - conviction was quashed because it oculdnt be shown that the boxes had been taken clandestinely. (using fish boxes to transport fish to glasgow)
Error
If believe taking own property (in error) not theft
If believe that you have owners consent (in error) not theft
Mistaken belief must be an “honest and reasonable [one] based on colourable grounds” before it could be accepted as a defence.(Dewar v HM Advocate) but Meek v HM Advocate (rape case) said an an unreasonable but honest belief in the consent to intercourse is a defence to rape. Since lack of consent is essential in theft too - maybe an honest but unreasonable belieft in the consent of the owner is a defence to a theft charge.
