Theft

Question 1

What is theft?

Answer 1

Theft Act 1968 s1:
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 ‘thief’ and ‘steal’ shall be construed accordingly

Question 2

What is the sentence for theft?

Answer 2

Triable either way
Seven years’ imprisonment on indictment

Question 3

Can D be found guilty of theft if the property belonged to D’s spouse or civil partner?

Answer 3

Where the property in question belonged to D’s spouse or civil partner, a prosecution for theft may only be instituted against D by or with the consent of the DPP (s. 30(4))
This restriction must also apply to charges of robbery or of burglary by stealing etc. but does not apply to other persons charged with committing the offence jointly with D; nor does it apply when the parties are separated by judicial decree or order or under no obligation to cohabit (s. 30(4)(a))

Question 4

What about when the theft is committed against a business?

Answer 4

Theft from businesses (classed as ‘theft from a shop’) involving first-time offenders who are not substance misusers and where the value of the goods stolen is less than £100 can be dealt with by way of fixed penalty notice

Question 5

What is the law on low-value shoplifting?

Answer 5

s176 Anti-social Behaviour, Crime and Policing Act 2014 inserts 22A into Mag Courts Act 1980- provides low-value shoplifting is a summary offence
One exception: where a person accused of shoplifting is 18 or over, they are to be given the opportunity to elect Crown Court trial, and if D so elects, the offence is no longer summary and will be sent to the Crown Court (s. 22A(2))

Question 6

What is the effect of s22A?

Answer 6

Offences of low-value shoplifting cannot be sent to the Crown Court for trial or committed there for sentence
They will attract a max penalty of 12 months’ custody and they will be given the opportunity to plead guilty by post (if it’s a summary offence)

Question 7

Q: What if someone attempts a low-value shoplift?

Answer 7

You usually cannot attempt a summary offence (indictable offences only)
2014 Act amends Criminal Attempts Act to say that it is an offence to attempt to commit low value shoplifting, regardless of whether it is deemed to be summary only.

Question 8

Q: What other powers were added by the 2014 Act?

Answer 8

PACE powers relating to indictable offences, including power of arrest for civilians, powers to enter and search, powers enabling magistrates to authorise search and entry, will apply to low-value shoplifting cases as though they were indictable!!

Question 9

What is the offence of shoplifting?

Answer 9

Shoplifting is not a specific offence as such but constitutes theft under s1 TA 1968
22A(3) defines shoplifting for the purposes of this provision, which applies if the value of the stolen goods does not exceed £200
Value of the goods is determined by the price at which they were offered for sale rather than the intrinsic value and also for the value involved in several shoplifting offences to be aggregated where they are charged at the same time (s22A(4))

Question 10

What are the 5 fingers of theft?

Answer 10

1. Dishonestly
2. Appropriates
3. Property
4. Belonging to another
5. With intention to permanently deprive

Question 11

What does ‘dishonestly’ mean?

Answer 11

Decision as to whether or not D was dishonest is a question of fact for the jury or Mag’s to decide
No statutory definition of dishonesty, s2 sets out specific circumstances where the relevant person will NOT be treated as dishonest and one circumstance where a person may be dishonest

Question 12

What are the 3 circumstances when someone is NOT considered to be dishonest?

Answer 12

S2(1)
D is not dishonest if:
(a) he appropriates property in the belief he has in law the right to deprive the other of it
(b) he appropriates property in the belief he would have the other’s consent
(c) he appropriates property in the belief the person cannot be discovered by taking reasonable steps

1. RIGHT IN LAW
2. CONSENT
3. LOST

Question 13

What are the commonalities between all 3?

Answer 13

It is the person’s genuine subject belief that is important, does not matter if the belief is unreasonable so long as it is honestly held.

Question 14

1. Right in Law- what does this mean?

Answer 14

Belief does not need to be reasonable, only honestly held, and could be based on a ‘mistake’

Question 15

2. Consent- what does this mean?

Answer 15

Person appropriating the property must believe both elements: other person would have consented had he known of the appropriation and the circumstances of it

Question 16

3. Lost/reasonable steps- what does it mean?

Answer 16

The belief has to be in relation to the likelihood of discovering the ‘owner’ by taking reasonable steps
The nature and value of the property, together with the attendant circumstances, will be relevant
It is D’s honest belief at the time of the appropriation not that D went on to take reasonable steps to discover the person
Eg: found 20p on floor at football game. Unreasonable to ask around during a penalty shoot out who it belongs to. Found £5 note on the floor, could post message on social media, ask in all local shops but this is not reasonable!

Question 17

Q: Does it matter if the person could easily be located/found?

Answer 17

Does not matter whether the owner could or could not be found by taking reasonable steps eg: lost wallet with driving licence in to identify the owner. Concern is whether he believed if the owner could reasonably be found.

Question 18

Q: When may someone be held to have been dishonest?

Answer 18

If a person appropriates another’s property, leaving money or details of where he/she can be contacted to make restitution, this will not of itself negate dishonesty (Boggeln 1978. The wording of s. 2(2) gives latitude to a court where the defendant was willing to pay for the property. The subsection says that such an appropriation may be dishonest, not that it will always be dishonest

Question 19

Q: What if someone is a trustee or personal representative for a deceased persons estate?

Answer 19

They are specifically excluded from any exceptions
It is a trustees responsibility to locate any beneficiaries no matter how much effort is taken to do so- they will not benefit from any exemptions.

Question 20

Q: Dishonesty case law (test for dishonesty)

Answer 20

Barlow Cloud v Ivy and Genting Casinos
COA confirmed Ghosh test for dishonesty no longer applies and set the test for dishonesty in civil and criminal cases.
When dishonesty is in question, magistrates/jury will have to ascertain the actual state of D’s knowledge or belief as to the facts (this does not have to be a reasonable belief—the question is whether the belief is genuinely held). Once his actual state of mind as to knowledge or belief is established, the question of whether his conduct had been honest or dishonest is to be determined by the magistrates/jury by applying the (objective) standards of ordinary decent people. There is no requirement that D had to appreciate that what he/she had done was, by those standards, dishonest.

The test has a role for the state of mind of D (in relation to the facts) but there is no requirement for him/her to appreciate the dishonesty of his/her actions

Question 21

Q: What does appropriates mean?

Answer 21

Owner of property has the right to sell it, give it away, destroy it etc…
Appropriation is assuming the rights of an owner.
There can be appropriation without any criminal liability; appropriation itself does not amount to an offence of theft.
It requires no mental state on the part of the appropriator- it is an objective, physical act

Question 22

Q: s3(1) appropriates

Answer 22

Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner

Question 23

Q: Does D need to gain anything from the appropriation and does the owner need to be deprived of the property?

Answer 23

No! Damaging/destroying property is still appropriation. Owner does not need to gain anything from it.
Not necessary that the property be ‘taken’ in order for there to be an appropriation, neither need the owner be deprived of the property. No need for D to gain anything by appropriation

Question 24

Q: Does appropriation still occur if the owner consents to the appropriation?

Answer 24

Whether or not the owner consented to the appropriation is irrelevant.
Gomez- there are occasions where property can be appropriated even when the owner’s consent or authority has been gained

Question 25

Q: Is swapping price labels an appropriation?

Answer 25

Yes! The right to price goods is one of the owner’s rights.

Question 26

Q: Can property be stolen more than once?

Answer 26

The same property can be appropriated on any number of occasions, but once it has been stolen (dishonestly appropriated with intention to permanently deprive) it cannot be stolen again by the same thief, prior to its restoration into lawful custody.

Question 27

Q: What about the later assumption of the rights of an owner?

Answer 27

If a person, having come by property, innocently or not, without stealing it, later assumes any rights to it by keeping it or treating it as his/her own, then he/she ‘appropriates’ that property (s. 3(1))

Question 28

Q: Is there an exception to the later assumption of the rights of an owner?

Answer 28

s3(2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property
If you are an innocent purchaser, any later assumption by you of an owner’s right does not amount to theft, for value and in good faith.
Eg: Owner of a vehicle is a driving a stolen car. She bought it at auction and has a receipt for her purchase.

Question 29

What about the later assumption of the rights of an owner?

Answer 29

If a person, having come by property, innocently or not, without stealing it, later assumes any rights to it by keeping it or treating it as his/her own, then he/she ‘appropriates’ that property (s. 3(1))

Question 30

Is there an exception to the later assumption of the rights of an owner?

Answer 30

s3(2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property

Question 31

What does property mean? s4

Answer 31

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

Question 32

Q: What is money?

Answer 32

Coins and banknotes are property.
‘Money’ does not include cheques or credit balances held in banks and building societies.
It includes foreign currency.
Old coins and notes no longer in circulation are not money- they would come under personal property

Question 33

Q: What is personal property?

Answer 33

Personal property includes tangible personal property which might be described as ‘things in possession’ that you can touch. The TV in your house, the settee you sit on etc. are all examples of ‘personal’ property
They are moveable chattels.

Question 34

Q: What are things in action and other intangible property?

Answer 34

s4(1) ‘things in action’ would include patents, trademarks etc… which can only be enforced by legal action as opposed to physical possession
Other intangible property is property with no physical existence- you can’t touch it, but they do have a legal value eg: intellectual property, enforceable contracts, software programs and credits on store loyalty cards
Confidential info eg: exam paper

Question 35

What are the cheques and credit balances?

Answer 35

Cheques are personal property as they are pieces of paper
Contents of bank/building society accounts are things in action that can be stolen, provided the account is in credit or within the limits of an agreed overdraft facility.

Question 36

Q: What is real property?

Answer 36

Land and things forming part of the land and rights in land.

Question 37

Q: Can land be stolen? What are the 3 circumstances when land can be stolen?

Answer 37

S4(2)
A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that is to say—
(a) when he is a trustee or personal representative or someone in a position of trust to dispose of land belonging to another, can be guilty of stealing it if, in such circumstances, they dishonestly dispose of it
(b) when he is not in possession of the land and appropriates anything forming part of the land by severing it or
(c) as a tenant, he appropriates the whole or part of any fixture or structure let to be used with the land

Question 38

Q: Summary of when land can be stolen

Answer 38

(a) Trustee breach- people who are trusted to deal with land in a certain way but they appropriate land when they abuse that trust eg: sells trustee land when not allowed to do so
(b) Strangers sever- this is when someone is not in legal possession of land and appropriates anything forming part of the land by severing (ripping the thing up from the rest of the land)
(c) Tenant’s have a legal right to possess the land during their tenancy, they are not strangers. Whilst people are tenants, the can sever what they like from the land and they do not steal unless what they sever is a fixture or a structure. Structures include sheds.

Question 39

Q: What are things forming part of the land?

Answer 39

Fixtures- are part of the land and are permanently fixed to buildings to improve them. Once fixed they become part of the land eg: sinks, radiators, baths etc…
Fittings- are not land. They are only temporarily fitted to the property like lights, curtains, pictures etc…

Question 40

Q: What are things growing wild?

Answer 40

S4(3)
A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks unless he does it for reward or for sale or other commercial purpose.

Question 41

Q: What does this mean?

Answer 41

Things growing wild on any land are property and could be stolen by a person not in possession of land if he severed and appropriated them
Person who picks mushrooms, flowers, fruit and foliage growing wild on any land will not commit theft unless the picking is done for reward, sale or other commercial purpose
If the whole plant is removed, this is theft as it is not ‘picking’

Question 42

Q: What are the 4 F’s?

Answer 42

Fungi
Flowers
Fruits
Foliage
Foraging for wild plants is allowed!! This is not appropriation!! But it must be on WILD land, not something planted by someone. It cannot have been cultivated by a human, it must be growing wild/naturally eg: wild berries, mistletoe etc..
Picking wild berries to make jams to sell at a fayre is theft!! This is a commercial purpose.

Question 43

Q: What if you do not pick for a commercial purpose but it later turns into a commercial purpose?

Answer 43

It is about the intent at the time of the picking. If the picking was for personal use then it is allowed.
Eg: pick wild berries for Sunday lunch then have lots leftover so make a jam to sell next month. This is ok! The commercial intention came after.

Question 44

Q: What if a tenant wants uproots a plant on the land which he is tenant of?

Answer 44

This is not theft! Can only commit theft if fixtures and structures are removed.
Tenant can uproot a tree or dig up flowers that landlord has grown and sell them for commercial use and will not be guilty of theft. Commercial motive is irrelevant.
Tenant is in possession of the land so is not a stranger.

Question 45

Q: What action can you do with the 4 F’s and what actions are excluded?

Answer 45

You can pick and pluck
You cannot uproot, chop down, dig up etc…

Question 46

Q: What are wild creatures?

Answer 46

S4(4) states that all wild creatures are ‘property’ whether they are tamed (your dog or cat) or untamed but ordinarily kept in captivity (a lion in a zoo). Wild creatures that are not tamed or ordinarily kept in captivity are not classed as property unless they have been reduced into possession or are in the process of being so reduced

Question 47

Q: What creates can be stolen?

Answer 47

Creatures that are tamed or ordinarily kept in captivity
- Domestic pets, farmers livestock, fish in garden ponds etc…
- Zoo animals (doesn’t matter if they have escaped or not)

Question 48

Q: Examples of wild creatures that cannot be stolen and are being reduced into possession

Answer 48

• Fish on hooks that have been caught
• Rabbits in snares

Question 49

Q: What is the exception to this rule?

Answer 49

If the possession has been lost or abandoned then it no longer belongs to that person.
Eg: pheasant shooter cannot find one of his dead pheasants and stops looking for them. Someone else finds them on their land. Not theft, as the search was abandoned.

Question 50

Q: What are the 4 different categories of property that cannot be stolen under the Theft Act?

Answer 50

1. Human Bodies (dead or alive)- body parts CAN be stolen though!!!
   - Body can be stolen if a special skill has been applied to it eg: mummification or body parts maintained for teaching purposes
2. Confidential info
   - Piece of paper cannot be stolen, but the contents of it can!!
3. Identity theft
4. Electricity

Question 51

Q: Are fluids taken from a living body property?

Answer 51

Fluids taken from a living body are property, so a motorist has been convicted of stealing a specimen of his own urine provided by him for analysis.
The same rule would clearly apply to a blood sample

Question 52

Q: What does belonging to another mean?

Answer 52

s5
(1) Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).
(2) 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

Question 53

Q: Who can property be stolen from?

Answer 53

Property can be ‘stolen’ from any person who has possession, control or a proprietary right or interest in that property
This can be someone else, as well as the owner!!
eg: take your car to the garage- he also possesses and controls it

Question 54

Q: Can D be guilty of stealing his own property?

Answer 54

Turner 1971- D recovered his own recently repaired car from a street outside the garage where the repairs had taken place, he was convicted of stealing the car which at the time ‘belonged to’ the garage proprietor who had possession of it.

Question 55

Q: Does possession have to be infinite or can it be finite? Case?

Answer 55

R v Kelly [1999] - it can be finite (ie for a given number of hours, days, etc…) as well as infinite.

Question 56

Q: Do you have to find the owner of the property? Case?

Answer 56

Not necessary to show who owns the property only that it belongs to someone other than D
D’s went diving for lost balls in a lake on a golf course, which it was believe they were going to sell. This was carried out without the permission of the golf club course owner. D’s argued the balls had been abandoned by their owners, yet the Crown had shown that they were ‘property belonging to another’ (the golf club) and therefore the convictions were safe

Question 57

What if money is given to charity collectors?

Answer 57

Where money is given to charity collectors, it becomes the property of the relevant charitable trustees at the moment it goes into the collecting tin

Question 58

What if a cheque is written?

Answer 58

When a cheque is written, it creates a ‘thing in action’. That thing in action belongs only to the payee (the ‘payee’ is the person to whom the cheque is made payable). Therefore a payee of a cheque cannot ‘steal’ the thing in action which it creates

Question 59

Q: When must you show that the property belonged to another?

Answer 59

You must show that the property belonged to another at the time of the appropriation.
If ownership of the property had passed to D before he appropriated it then this element of theft would not be made out and an alternative charge should be considered

Question 60

Q: What is the legal obligation regarding another’s property?

Answer 60

Theft Act 1968 s5
(3) 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

Question 61

Q: What does obligation mean?

Answer 61

‘Obligation’ means a legal obligation not a moral one. Whether or not such an obligation exists is a matter of law for a trial judge to decide

Question 62

Example of an instance under s5(3)

Answer 62

Instances under s. 5(3) most commonly involve receiving money from others to retain and use in a certain way (e.g. travel agents taking deposits, solicitors holding funds for mortgagees or pension fund managers collecting contributions

Question 63

Q: What is another effect of s5(3)?

Answer 63

COA held that one effect is that property can be regarded as belonging to another even where it does not ‘belong’ to that person on a strict interpretation of civil law.
D’s collected money from customers in their timeshare business and told customers their deposits would be placed with an independent trustee. Instead, D’s paid sums into their company account- breaching s5(3)

Question 64

Q: What is the legal obligation to restore another’s property?

Answer 64

Theft Act 1968, s5
(4) Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or 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

Question 65

Case- mistakenly credited

Answer 65

Where extra money is mistakenly credited into an employee’s bank account, the employee will be liable for stealing the extra money if he/she dishonestly keeps it- where a police officer’s account was credited with money representing overtime which she had not actually worked)

Question 66

Q: Does s5(4) apply to the defendant or someone other than the defendant?

Answer 66

Section 5(4) only applies where someone other than the defendant has made a mistake. Such a mistake can be a mistake as to a material fact; whether or not a mistake as to law would be covered is unclear

Question 67

Q: Is the obligation to make restoration legal or moral under s5(4)?

Answer 67

The obligation to make restoration is a legal one and an unenforceable or moral obligation will not be covered by s. 5(4)

Question 68

Q: Case- moral obligation

Answer 68

R v Gilks [1972]- relief manager at a betting shop mistakenly paid out winnings against the wrong horse. COA held D did not owe a legal obligation to return the money because the bookmaker could not have sued on a gaming transaction and therefore s5(4) did not apply- obligation to return the money was a moral one as in 1972 gambling debts were not legally enforceable (Gambling Act 2005)

Question 69

What if you have an obligation to deal with property in a certain way and do not fulfil this obligation?

Answer 69

This constitutes theft eg: you give travel agent money to pay for your flights and they spent the money on shopping etc…

Question 70

Q: What is intention of permanently depriving?

Answer 70

Theft Act 1968, s6
(1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal

Question 71

Q: What if you cannot prove an intention to permanently deprive?

Answer 71

If you cannot prove an intention permanently to deprive, you cannot prove theft

Question 72

Q: Does it change the charge if the property is given back later on?

Answer 72

If there is such an intention at the time of the appropriation, giving the property back later will not alter the fact and the charge will be made out
Eg: season ticket holder lends his ticket to a friend, then instead of returning it after the game he decides to keep it and watch the next match too. The period and circumstances of him keeping the ticket made the borrowing an outright taking. Went beyond what was consented to and the experience could not be regained.

Question 73

Q: What is the key feature of s6(1)?

Answer 73

The key feature of s. 6(1) is the intention to treat ‘the thing’ as one’s own to dispose of regardless of the other’s rights and if the property is returned.

Question 74

Case- property held to ransom

Answer 74

R v Coffey [1987]- If X kidnaps a dog belonging to Y and tells Y that the dog will be returned in exchange for £500, the conclusion to be drawn is that if the ransom is not paid, the dog will not be returned, i.e. there is an intention to permanently deprive

Question 75

Case- borrowing or lending of another’s property

Answer 75

If a person takes property from his/her employer (e.g. carpet tiles) and uses it in a way which makes restoration unlikely or impossible (e.g. by laying them in his/her living room), s. 6(1) will apply (R v Velumyl [1989])

Question 76

Q: What is the law on having possession of property and retuning it in a different state?

Answer 76

Theft Act 1968 s6
(2) Without prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other’s authority) amounts to treating the property as his own to dispose of regardless of the other’s rights

Question 77

Q: Case- s6(2)

Answer 77

D took V’s personal headphones, broke them in 2 before returning them to him.
Held that a person who took something and dealt with it for the purpose of rendering it useless in this way demonstrated the intention of treating that article as his/her own to dispose of. The court did not accept the argument that the property had to be totally exhausted before s. 6 applied and held that the magistrates had been wrong to accept the submission of no case to answer on this point. Therefore, the deliberate breaking of an item of property will amount to the ‘intention to permanently deprive’; however, unless this action is accompanied by the other theft elements, it will be criminal damage

Question 78

Q: What does s6(2) Theft Act 1968 deal with?

Answer 78

Section 6(2) deals with occasions such as pawning another’s property. In pawning the property, the defendant parts with the property on the basis that he/she might be able to recover it (there could never be certainty of recovery). So, there is a possibility that the defendant may not be able to do so, i.e. that he/she will be unable to meet the conditions under which he/she parted with another person’s property