Theft

Question 1

What offence is set out in s1 Theft Act?

Answer 1

Theft

Dishonest appropriation of property belonging to another with the intention of permanently depriving it

Question 2

What is the actus reus of theft?

Answer 2

Appropriation of property belonging to another

Appropriation = any assumption of the owner’s rights
- Owner’s rights could include switching labels, offering for sale, damaging property
- Can appropriate even with consent of the owner (eg. theft of gifts, shopkeeper handing over goods having been paid with fraudulent cheque)
- Includes later assumption of the rights of the owner
- Does not include innocent purchasers

Property = money + real or personal property (incl. things in action, intangible property)
- Land can only be stolen in exceptional circumstances (by trustee in breach of trust; by person not in possession of the land appropriating something from it by severing; by tenant taking something fixed to land not supposed to take)
- Electricity, confidential information, wild foliage with intention to sell, wild creatures not tamed - none of these can be stolen

Belonging to another = person has possession, control, or any proprietary right or interest in the property at the point of the appropriation
- Ownership of property passes when paid for (except petrol & food)
- Can steal own property
- If have received property but are under obligation to deal with it in a particular way, that property still belongs to another
- If property genuinely abandoned, does not belong to another - but must be genuinely abandoned
- If property given by mistake & there is an obligation to restore it to the original owner, will belong to the original owner

Question 3

Which of these actions will count as appropriation?

Taking something from someone

Selling a book belonging to someone else

Eating a meal in a cafe

Switching price labels

Property passing with the consent of the owner

Receipt of a gift

Answer 3

All of them

Question 4

Will an action be an appropriation if it is done with the consent of the owner of the property?

Answer 4

Yes: can appropriate property even with the consent of the owner

eg. Shopkeeper supplying goods in exchange for fraudulent cheques (didn’t know where fraudulent)

–> Can also be guilty of stealing a valid gift (eg. man with limited intelligence withdrawing money for defendant every day)

Question 5

Will it be appropriation if come by the property without stealing it but then later assume the rights of the owner?

Answer 5

Yes - s3(1) Theft Act: appropriation includes where the defendant has come by the property (innocently or not) without stealing it, but later keeps it or deals with it as an owner

eg. Borrow book from library & then decide to keep it permanently

eg. Accidentally pick up friend’s watched - when realise mistake, sell it instead of returning it

Question 6

What is the rule about innocent purchasers with regards to appropriation?

Answer 6

s3(2) Theft Act exempts a defendant from liability where the defendant purchases goods in GOOD FAITH & for VALUe, then later discovers the seller had no title to the property, but decides to keep it

Question 7

If a defendant commits multiple appropriations of the same property (eg. take car from owner’s driveway, change numberplate, register vehicle under own name, sell car to carriage) is it multiple thefts?

Answer 7

No - defendant can only commit theft of the property once

Question 8

What is considered ‘property’?

Answer 8

Money

Real property (land & things attached or fixed to it)

Personal property

Things in action (eg. money in bank account)

Intangible property (eg. patent)

Question 9

When can land be stolen?

Answer 9

Only in exceptional circumstances set out in s4(1)

• By a trustee in breach of trust
• By a person not in possession of the land if they appropriate anything forming part of the land by severing it or after it has been severed (eg. digging up rosebush from someone else’s land)
• By a tenant taking something fixed to the land that they are not supposed to take

Question 10

Can electricity or confidential information be stolen?

Answer 10

No

(But if confidential info were eg. on a piece of paper, would be liable for theft of that paper)

Question 11

Can mushrooms, flowers, fruit or foliage growing wild on land be stolen?

Answer 11

No - unless the person intends to sell them

Question 12

Can wild creatures be stolen?

Answer 12

No unless the animal has been reduced into possession (eg. animal in zoo, snared wild rabbit)

Question 13

What is considered ‘belonging to another’?

Answer 13

Having possession or control or any proprietary right or interest of the property at the moment of appropriation

Question 14

Can an owner steal their own property?

Answer 14

Yes - because property can belong to more than one person at once

(eg. stealing own car from garage)

(eg. where property given to owner by mistake & there is a legal obligation to restore it to the original owner)

Question 15

Can you steal abandoned property?

Answer 15

If property has been genuinely abandoned, it belongs to no one, ie. cannot be stolen

But courts will often be reluctant to find that it has been abandoned

• Just because original owner has stopped looking or has no use, does not mean it has been abandoned (eg. rubbish left out in bins not abandoned bc intend to pass property into ownership of council)
• Property could also belong to the person having possession or control of it (eg. lost bracelet in private BA lounge, where had demonstrated intention to exercise control)

Question 16

If property has been given to a person for a particular purpose, can they steal that property given that they now own it?

Answer 16

Yes - if there is a legal obligation to retain the property & deal with it in a particular way

• eg. Money given to investors to invest in government stock, but invested in money elsewhere
• eg. Flatmates give money to pay gas bill, but use money on Xmas presents

(but not eg. travel agency receiving money to book flights & using to pay off creditors bc found were under contractual obligation to provide flights, but not under obligation to keep money separate until did so)

This includes property given by mistake
(eg. given too much money by mistake + obligation to restore, which arises from the moment discovered overpayment)

Question 17

When does the obligation to make restoration of overpayment arise?

Answer 17

From the moment discover overpayment

Question 18

When does the ownership of property pass?

Answer 18

When paid for

Exception: petrol - ownership passes when put in buyer’s tank

Exception: food - ownership passes when eaten

Question 19

When does the ownership of food pass?

Answer 19

When it is eaten

Question 20

When does the ownership of petrol pass?

Answer 20

When it is put in the buyer’s tank

If decide won’t pay BEFORE filling up, will be theft

If decide won’t pay AFTER filling up, NO theft - because petrol doesn’t belong to another at the point of forming the full MR

Question 21

What is the mens rea of theft?

Answer 21

Dishonestly + intention to permanently deprive

Dishonesty = s2 Theft Act or Ivey v Genting
- s2: Not dishonest if D believes has a right in law to the property / would have the owner’s consent / owner cannot be found by taking reasonable steps
- Can appropriate dishonestly even if willing to pay
- Ivey: What was defendant’s knowledge & belief as to the facts? Given that knowledge & those beliefs, was the defendant dishonest by the standards of ordinary decent people?

Intention to permanently deprive = ordinary meaning (meaning the owner to permanently lose the item)
- Extended where D does not intend the owner to lose their property permanently: includes intention to treat the item as the defendant’s own to dispose of regardless of the owner’s rights - eg.
a. Selling it
b. Rendering it useless
c. Dealing with it in a manner which risks its loss
d. Borrowing or lending for period or in circumstances equivalent to outright disposal
e. Bargaining with it where the condition is one which is not easily fulfilled in near future
f. Pawning someone else’s goods
Nb. Not enough to just deal with it

Question 22

When will a defendant be ‘dishonest’ for s1 Theft Act?

Answer 22

Clear dishonesty

s2 - May be dishonest if the defendant does NOT believe:
- Has right in law to the property
- Would have the owner’s consent
- Owner cannot be found by taking reasonable steps
(Regardless of whether willing to pay)

Ivey v Genting common law test:
1. What was the defendant’s knowledge or belief as to the facts? (subjective)
2. Given that knowledge & belief, was the defendant dishonest by the standards of ordinary decent people?

Question 23

What are the three examples in s2 Theft Act where an appropriation of property belonging to another will NOT be regarded as dishonest?

Answer 23

(a) If defendant genuinely believes they have a right in law to deprive the other person of the property

(b) If defendant genuinely believes they would have had the owner’s consent

(c) If defendant genuinely believes that the person to whom the property belongs cannot be discovered by taking reasonable steps

Question 24

If the defendant is willing to pay, can they be dishonest?

Answer 24

Yes - s2(2) Theft Act: a person’s appropriation of property belonging to another may be dishonest notwithstanding that they are willing to pay for the property

Question 25

What is the common law test for dishonesty?

Answer 25

Ivey v Genting

1. What was the defendant’s knowledge & belief as to the facts? (subj)
2. Given that knowledge & belief, was the defendant dishonest by the standards of ordinary decent people? (obj)

Question 26

What is an intention to permanently deprive?

Answer 26

Ordinary meaning, ie. wanting the owner permanently to lose the item

Question 27

If a defendant takes money but intends to repay it, can they have an intention to permanently deprive?

Answer 27

Yes - must return exact same property & defendant does not intend to replace the exact same notes & coins

Question 28

What is an intention to permanently deprive when the defendant does not intend for the owner to permanently lose their property?

Answer 28

Treating the item as the defendant’s own to dispose of regardless of the owner’s rights

Dispose = dealing with it definitely, getting rid of it, selling it, rendering it useless, treated in a manner which risked its loss

Includes:
- Selling or bargaining with the other’s property
- Rendering the property useless
- Dealing with the property in a manner which risks its loss
- Borrowing it for a period & in circumstances equivalent to an outright taking or disposal
- Pawning someone else’s goods

Question 29

If appropriate another’s property as a bargaining chip (ie. give conditions for its return), can there be an intention to permanently deprive?

Answer 29

Yes (unless condition can be easily fulfilled & may be fulfilled in near future, in which case may not be IPD)

Question 30

Can you have an intention to permanently deprive if just borrowing?

Answer 30

IPD when the borrowing or lending is for a period & in circumstances making it equivalent to an outright taking or disposal

–> When all the goodness, virtue & practical value has gone from the goods

Question 31

What is the test for when borrowing/lending is for a period & in circumstances making it equivalent to an outright taking or disposal?

Answer 31

When all the goodness, virtue & practical value has gone from the goods (R v Lloyd - projectionist pirating films not IPD)

Question 32

What is the meaning of ‘dispose’ in relation to an intention to treat the thing as his own to dispose of?

Answer 32

Dispose = dealing with it definitely, getting rid of it, selling it, rendering it useless, treated in a manner which risked its loss

Nb. Must be more than just ‘dealing with’
eg. Smashed windows of car, dragged driver out, drove off & abandoned car with lights on = no intention to permanently deprive because no intention to avoid owner getting it back
- Had not been sold
- Had not been treated in a manner which risked its loss - left with hazard lights & doors open, ie. to draw attention

Question 33

What offence is s8 Theft Act?

Answer 33

Robbery

Theft + force used or threatened against the victim or another immediately before or at the time of the theft in order to steal

Question 34

What are the three extra elements necessary for a theft to also be a robbery?

Answer 34

i. Defendant used force or threatened to use force against a person
- Violence not required - force need not be substantial
- Can be against the victim or another person
- Force can be directed against property

ii. Immediately before or at the time of the theft

iii. In order to steal
- Force used or threatened must be in order to steal and for no other reason

Question 35

To be guilty of robbery, against whom must force be used or threatened?

Answer 35

Against the victim or another person or used against property

So long as immediately before or at the time of the theft, and done in order to steal

Nb. ‘Force’ doesn’t have to be substantial

Question 36

What offence is set out in s9 Theft Act?

Answer 36

Burglary

Two separate provisions:
s9(1)(a)
s9(1)(b)

Question 37

What offence is set out in s9(1)(a)?

Answer 37

Burglary with intent to steal / inflict GBH / cause criminal damage

Question 38

What are the elements of a s9(1)(a) burglary?

Answer 38

Actus reus:
- Effective entry
- Into a building or part of a building
- As a trespasser

Mens rea:
- Knowledge/recklessness as to trespass
- At the time of entry, intention to commit: theft / GBH / criminal damage

Question 39

What offence is set out in s9(1)(b)?

Answer 39

Burglary & committing or attempting to commit theft / GBH

Question 40

What are the elements of a s9(1)(b) burglary?

Answer 40

Actus reus:
- Effective entry
- Into a building or part of a building
- As a trespasser
- AR of committing or attempting to commit theft or GBH

Mens rea:
- Knowledge or recklessness as to being a trespasser
- MR of committing or attempting to commit theft or GBH

Nb. For GBH, will be satisfied for either s18 or s20 OAPA

Question 41

If a person leans through a shop window & searches through the shelves inside, but their lower body stays outside the shop, will this be considered ‘entry’ for the purposes of a s9 burglary?

Answer 41

Yes - entry need only be ‘effective’

Question 42

If an individual pushes their fingertips through the door of a house, which is slightly ajar, will this be considered ‘entry’ for the purposes of a s9 burglary?

Answer 42

No - if only the fingertips are inserted, entry would not be ‘effective’

Question 43

If an individual inserts a wire hanger through a letter box & hooks the keys hanging near the door, will that be considered entry for the purposes of a s9 burglary?

Answer 43

Maybe - if an instrument is used to commit an offence (eg. theft of keys), it may be treated as an extension of the defendant’s body

Question 44

What is the definition of a ‘building’ for the purposes of a s9 burglary?

Answer 44

Structures of considerable size with some degree of permanence (eg. house, greenhouse, factory)

+

Inhabited vehicles or vessels (eg. houseboat, caravan - but must be inhabited!)

BUT NOT temporary structures (eg. tent, marquee)

Question 45

If a defendant enters a building lawfully but who then moves to another part where they do not have authority to go, would this constitute entry into a building as a trespasser under s9?

Answer 45

Yes - entry can be into building or part of a building

Question 46

What is meant by trespass for the purposes of s9?

Answer 46

Defendant enters building (or part of a building) without consent or permission

Nb. Includes where obtained permission by deceiving owner or where going beyond permission to steal

Question 47

If an individual enters a supermarket intending to steal bottles of alcohol, will they be considered a trespasser under s9?

Answer 47

Yes - although they have permission of the shop owners to enter, this is only to browse the products on display & purchase items legally. Will have gone beyond this permission when enter in order to steal.

Question 48

For both s9(1)(a) burglary & s9(1)(b) burglary, defendant must have either knowledge or recklessness as to being a trespasser - when must they have this awareness?

Answer 48

At the time of entry

Can be established either by admission or by evidence eg. building locked, area roped off, signs excluding entry

Question 49

What is meant by recklessness as to being a trespasser?

Answer 49

The defendant foresees a risk that they do not have permission to enter and go on, without justification, to take that risk

Question 50

What offence is set out in s10 Theft Act?

Answer 50

Aggravated burglary

(Burglary with a firearm / imitation firearm / weapon of choice / explosive)

Question 51

What are the elements of aggravated burglary (s10 Theft Act)?

Answer 51

Burglary under s9(1)(a) or s9(1)(b)

+

At the time

D has a firearm, imitation firearm, weapon of offence or explosive

Question 52

What is deemed a weapon under the theft act?

Answer 52

Firearms (imitation or real)

‘Weapon of offence’ (any article made or adapted for use for causing injury to or incapacitating a person, or intended for such use)

Explosives

Question 53

What is a ‘weapon of offence’ under s10 Theft Act?

Answer 53

Any article made or adapted for use for causing injury to or incapacitating a person, or intended for such use

(eg. machete, broken bottle, rope, handcuffs)

Question 54

For s10 aggravated burglary, the defendant must have the weapon with them ‘at the time’ of committing the burglary - when is this?

Answer 54

s9(1)(a) burglary: At the time of ENTRY

s9(1)(b) burglary: when the ULTERIOR OFFENCE (theft, attempted theft, GBH, attempted GBH) is committed