Theft Flashcards
What are the requirements for theft?
Actus reus:
- Appropriation (s 3 TA)
- Property (s 4 TA)
- Belonging to another (s 5 TA)
Mens rea:
- Dishonestly (s 2 TA)
- With the intention to permanently deprive (s 6 TA)
What amounts to appropriation?
Two important points emerge from this case:
(a) The assumption of any one of the rights of an owner amounts to an appropriation for example selling it, hiring it, giving it away or destroying it.
(b) Even if D does not intend by the act of appropriation itself to deprive the owner permanently of the property, D may be guilty of theft.
The majority of the House answered that there could still be an appropriation where property has passed with the owner’s consent, as there was no need for an adverse interference with the owner’s rights.
(a) Appropriation is a neutral act and the state of mind of the donor is irrelevant to
appropriation;
(b) Therefore appropriation could take place with or without the consent of the owner; and
(c) Therefore a person could be guilty of stealing a valid inter vivos gift.
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.
Section 3(2) exempts a defendant from liability for theft where the defendant purchases goods in good faith and for value, then later discovers that the seller had no title to the property, but
decides to keep it. Note that mala fides (bad faith) precludes the protection afforded by s 3(2).
What amounts to property?
‘Property’ includes money and all other property, real or personal, including things in action and other intangible property.
In general land cannot be stolen. However, a person can be guilty of theft if, for example:
* Section 4(2)(a): D is authorised to sell land and sells more than they are meant to;
* Section 4(2)(b): D is a trespasser or invited guest and removes a fence or a lavender plant;
* Section 4(2)(c): D is a tenant and removes or sells without removing, a fixed greenhouse.
D will not be guilty of theft if they pick any of the following from plants growing in the wild:
* Mushrooms;
* Flowers;
* Fruit; and/or
* Foliage.
D can however be guilty of theft if:
* The purpose of picking from the wild plant is:
- A reward;
- To sell; or
- For another commercial purpose.
* D uproots or cuts parts of the wild plant.
* D picks cultivated plants.
D will not be guilty of the theft of:
* Untamed animals; and/or
* Animals not ordinarily kept in captivity.
D can be guilty of theft of:
* Tamed animals (for example, pets such as a cat or dog);
* Animals kept in captivity (for example, in a zoo); and/or
* Animals in the course of being reduced into possession (for example, have been trapped).
What property can be stolen?
Money: Notes, coins including other currencies
* Real property: Land in certain circumstances discussed already
* Personal property, for example a coat, a ring, a car, water, gas
* Intangible property such as things in action (a right to sue/recover): Company shares, trademarks, patents, copyright, a debt, a credit in a bank account, forged cheques, cheques drawn on accounts in credit or those drawn on accounts within the agreed overdraft limit (as the bank is obligated to honour the cheque)
* Unlawful or illegal items such as Class A drugs (Smith, Plummer and Haines[2011] EWCA Crim 66)
What property cannot be stolen?
Wild plants and animals, except in certain circumstances discussed already
* Electricity (Low v Blease[1975] Crim LR 513)
* Corpses and body parts except those which have been taken into another’s possession or control such as:
- Corpses in hospitals
- Blood given to a blood bank
- Corpses or body parts which have ‘acquired different attributes’ for scientific or teaching purposes (Kelly and Lindsay[1999] QB 621)
* Confidential information does not fall within the definition of intangible property (Oxford v Moss(1978) 68 Cr App R 183)
* Services such as a train journey
* Cheques drawn on accounts over the agreed overdraft limit (as the bank is not obligated to honour the cheque)
What does belonging to another constitute?
Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest […]
This is a wide definition, which extends beyond ownership to include those having possession or control of it or a proprietary interest in it at the moment of appropriation.
When is property abandoned?
Property can cease to belong to another if it has been abandoned. However, the courts do not readily find that property has been abandoned.
It was held that householders do not abandon goods that are put in their domestic waste. The householder intends the goods to be collected by the local authority, so a refuse collector could be guilty of theft if appropriating goods from a bin with the relevant mens rea.
Property is not abandoned just because the owner has stopped looking for it. Smith, Hogan and Ormerod’s Criminal Law notes that a husband who has lost his wedding ring and has long since given up looking for it, will not have abandoned it.
It was held that lost golf balls had not been abandoned by their owners. However, this does not mean that property cannot be abandoned. It will depend on whether the owner wants the property or wants it to go to another party, or whether the owner does not mind what happens to it.
What does possession or control constitute?
Section 5(1) states that property belongs to those having possession or control of it. The courts have found that property can belong to persons who have possession or control, not just of the specified property, but over the land upon which it was found. This can be so even if the owner of the land is unaware of its existence.
Key case: R v Woodman [1974] 2 All ER 955
The Court of Appeal held that, because the factory owners had taken steps to exclude
trespassers, there was evidence that they were in control of the factory and thereby had control of the scrap metal, which unknown to them, had been left inside the factory.
Key case: Parker v British Airways Board [1982] 1 All ER 834
Facts: The defendant was an airline passenger who found a gold bracelet in a British Airways executive lounge. The court considered whether British Airways had possession or control of the bracelet.
Held: The court decided that the company did not, but stated that if it had shown an intention to exercise control over the building and things in it, the company could have secured possession of the bracelet before the defendant found it. The court held that British Airways could have
demonstrated this intention either expressly, for example by putting up a notice, or impliedly. However, in this case it had shown no such intention. When the original owner did not come forward to claim the bracelet it could be kept by the passenger.
Can you steal your own property?
The defendant took his car to a local garage. He later contacted the mechanic to check if the car was ready and was told that it was. The defendant took the car using his spare keys without paying the bill. He was convicted of theft and appealed.
Held: The Court of Appeal held that the mechanic was in possession and control of the car and, therefore, the car did ‘belong to another’.
What about when property is given to another for a particular purpose?
Sometimes defendants will not form the necessary mens rea until after their initial appropriation of the property. Section 5(3) sets out the rules for when title of the property has passed to the defendant by the time D has formed the dishonest intent.
The general civil rule is that title in property passes at the time that the parties intend it to pass.
Section 5(3) can be used to cover cases where property is handed over for a particular purpose, and the title in that property passes to the accused before D has formed a dishonest intention to use it for an unauthorised purpose.
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.
Section 5(3) enables the prosecution to prove that the property still belongs to another for the purposes of the Act, without the need to use s 5(1), which could involve much more complex legal issues.
However, s 5(3) will only operate where the accused is under a legal obligation to use the property for the purpose given. This is a matter of law which will be decided by the judge, having regard to civil law. Very often there will be a trust which means that the property will also belong to another under s 5(1) which covers equitable interests.
The Court of Appeal held that s 5(3) did not apply because it was not established that his clients expected him to retain and deal with the money in a particular way, or that an obligation to do so was undertaken by him. Although the clients expected tickets in return for their money, they did not expect their money to be kept separately, but rather to go towards the general running of the business.
The defendant shared a flat with others. They all shared the costs of bills. On receipt of a gas bill for the sum of £159.75, the defendant was given cheques to the value of £109.75 towards the cost of the bill to which she was expected to add the outstanding £50.00. The defendant cashed the cheques and spent the money on Christmas presents. She was convicted of theft. The Queen’s Bench Division held that she was under a legal obligation to apply the proceeds of the cheques to the payment of the gas bill.
The defendants (B and H) were the directors of an insurance brokerage company, which placed insurance on behalf of clients with Lloyds of London, through Lloyds’ brokers. They failed to keep funds given to them by clients separate from their private funds and the company’s account. They did not pay the money into a separate client account. The money was used for
unauthorised purposes and the defendants were charged with theft. The prosecution alleged that while the money was in the defendants’ account, they were under a legal obligation to forward this money on to the insurance brokers. Accordingly, under s 5(3), the money still belonged to the clients and the defendants were guilty of stealing it when they dishonestly used it for an unauthorised purpose.
The Court of Appeal dismissed the appeal in part and upheld six of the ten convictions. They stated that K and M’s express assurances that the money would be safeguarded by payment to a stake-holding trust company meant that they were under a legal obligation to do just that. The prosecution had proved that on six counts that the defendants were under an obligation to deal with the money in a particular way. Accordingly, under s 5(3) the money would be deemed to belong to the purchasers. The legal obligation need not require the defendant to retain and deal
with the actual property concerned. It is enough that there is an obligation to deal with the proceeds of the property.
[B]y virtue of section 5(3), the appellant was plainly under an obligation to retain, if not the actual notes and coins, at least their proceeds, that is to say the money credited in the bank account which he opened for the trust with the actual property. When he took the money credited to that account and moved it over to his own bank account, it was still the proceeds of the notes and coins donated which he proceeded to use for his own purposes, thereby appropriating them.
Section 5(3) does not prevent the defendant having legal ownership, but it provides that, for the purposes of the Act, the property also belongs to another. Under these circumstances, the prosecution would still have to prove that there was a dishonest appropriation, and that a defendant intended to permanently deprive. Section 5(3) only deals with one element of theft – ‘belonging to another’.
What about when the property was obtained by mistake?
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.
The defendant, a policewoman, was mistakenly overpaid £74.74 for overtime that she had not worked and the money was credited to her bank account. At the original trial, the judge misdirected the jury to acquit the defendant, therefore the prosecution appealed to the Court of
Appeal on a point of law.
Held: The Court of Appeal held that although ownership of the money had passed to the defendant, from the moment she became aware that the mistake had been made, she was under a legal obligation to restore the money she had received by mistake. Consequently, by virtue of s 5(4) for the purposes of the TA, the money would be regarded as belonging to the police authority.
Section 5(4) does not prevent the recipient of the property being the legal owner. It provides that, for the purposes of the Act, the property also belongs to the person entitled to restoration.
Under these circumstances, the prosecution would still have to prove that there was a dishonest appropriation, and that a defendant intended to permanently deprive. Section 5(4) notes that if there is an intention not to make restoration of the money, there is an intention to permanently deprive.
What is an alternative approach to theft given by mistake?
Section 5(1) states that property belongs to any person having in it any right or interest. This includes equitable interests.
In Chase Manhattan Bank v Israel-British Bank [1981] Ch 105 it was held that a person who gives property by a mistake retains an equitable interest in that property. This civil case was applied in
R v Shadrokh-Cigari, where the Court of Appeal upheld a conviction for theft of property given by mistake without recourse to s 5(4).
Key case: R v Shadrokh-Cigari [1988] Crim LR 465
Facts: The defendant was the legal guardian of his nephew. A bank mistakenly credited the child’s account with £286,000 instead of £286. At the defendant’s request, the child signed an authority for the issue of four separate banker’s drafts. The defendant withdrew the majority of the money and he was subsequently convicted of theft.
Held: The Court of Appeal upheld the conviction on the ground that, although legal title in the money may have passed to the accused on delivery, the bank retained an equitable interest in the property that the accused had stolen under s 5(1).
What is dishonesty?
The Theft Act 1968 does not define the term ‘dishonesty’.
It is for a jury to decide whether an appropriation is dishonest.
(a) What was the defendant’s knowledge and belief as to the facts?
(b) Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people?
What is NOT dishonesty?
Section 2 specifies three situations, in which an appropriation of property is not to be regarded as
dishonest. If D appropriates property in the belief that:
* Section 2(1)(a): D has a right in law to deprive the other of the property;
* Section 2(1)(b): D would have the other’s consent if the other person knew; or
* Section 2(1)(c): The person to whom the property belongs cannot be discovered by taking reasonable steps.
Regarding s 2(1)(c), there is no need for D to take reasonable steps; it is only necessary for D to believe that taking such steps will not enable the owner to be found. Although s 2(1)(c) may apply to the original finding, if the owner becomes known to the accused later, then with the application of s 3(1) (later appropriation), keeping the property at this later stage could be dishonest and
therefore theft.
The Theft Act 1968 does not require the defendant’s belief to be reasonably held. As long as it is genuinely held D will not be dishonest. This has been confirmed by the courts in R v Robinson [1977] Crim LR 173.
What about where someone is willing to pay?
Section 2(2) provides that a person can appropriate property dishonestly, despite being willing to pay for the property.
This allows people to be convicted of theft when they take property that the owner does not wish to sell, intending to pay for that property.
