Theft Flashcards
how was theft defined in Ferguson & McDermid
theft is constituted by the appropriation of any item of corporeal, moveable property which is in the ownership of another person, without the owner’s consent and with the intention of depriving the owner of that property permanently, temporarily or indefinitely
what are the four elements of the actus reus of theft
- Appropriation
- Property
- Belonging to another
- Without consent
what is the mens rea of theft
Must either be
- Intention to deprive
- Intention to appropriate
factors surrounding the intention to deprive or to appropriate
- Inferred from facts
- Not necessary for deprivation to be permanent, temporary is sufficient
- A must know that another owns the property
- Don’t need to show any material gain from theft
case facts of Kivlin v Milne 1979
- Took possession of car without authority and left the car in a place where the owner wasn’t able to discover it
- theft
what must the court look at when considering the mens rea
must look for evidence of wickedness or intention to steal
case facts of Mackenzie v Maclean 1981
an absence of dishonesty on part of the accused which is essential for a conviction of theft
case facts of Butler and Fraser v PF 2013
dishonest intention can be inferred from the evidence
what is no defence for committing a theft
An ulterior motive for committing the theft is no defence or justification
case facts of Milne v Tudhope 1981
- Clandestine taking for a ‘nerfarious purpose’ constituted theft
- Goods were taken to force payment under a contract
- Intention to return goods once payment made was no defence
how did Hume define appropriation
the dishonest taking possession of a thing and carrying it away
case facts of John Smith 1838
- Found items and money on the road with the owners name on notebook
- A was charged with theft as he appropriated goods for his own use and purpose
- Thief assumed rights of owner in the property
- He had taken them for his own use and purpose
case facts of George Brown 1839
- Watches given for repair
- Possession freely given over
- But A retained them for his own use so it became a criminal act by the intention to appropriate them for his own use
- Theft was committed when he resolved to appropriate them for his own use
case facts of Black v Carmichael 1992
- On appeal held that in the circumstances the act of wheel clamping a car constituted theft
- Act deprived owner of use of car and so can be described as theft
definition of property
Corporeal moveable property; thing can be stolen if it can be physically possessed and moved from place to place
case facts of Grant v Allen 1988
Charged with theft of information on computer print outs but it was held that the explotiation of such information wasn’t a crime
case facts of R v Kelly 1998 (bodies can’t be owned)
body parts preserved by a college for teaching and research were classified as an ‘exception to the rule’
case facts of Valentine v Kennedy 1985 (wild animals)
- Charge of theft of fish from fish farm
- Fish bred in a farm weren’t wild, and so could be stolen
- Lost or abandoned property
case facts of Butler v Richardson 2013 (unclear who owes property)
- conviction for theft quashed as there was no report of copper wire ‘lost’ or ‘stolen’ made to the police
- Evidence didn’t infer ownership by anyone and suggested goods had been abandoned and unwanted
case facts of Kane v Friel 1997
appropriation of property isn’t conclusive of theft, no evidence the accused knew items belonged to another and so the MR of dishonest intention wasn’t proved
case facts of Hamilton v Wilson 1994 (theft of a child)
- acknowledged father had no rights of access to his child and this was a deliberate taking of a child without consent
- Biological parent was guilty of plagium
factors surrounding ‘belonging to another’
- Crime of theft protects a person’s right to property
- Someone must own the property
- Knowledge of ownership isn’t needed to establish theft
what is the possible defence for ‘belonging to another’
if there’s a belief property belonged to A
factors surrounding lack of consent
- Essential for theft
- Usually obvious from facts
- Act of appropriation must have been done without consent of owner, his authorised agent or representative
case facts of HMA v Mackenzie 1913 (taking away)
- Charged with theft of a book of recipes, intended to copy the contents
- No intention of retaining the book
- Guilty of theft of the book
case facts of Kidston v Annan 1984 (holding things for ransom)
Wouldn’t return TV until repairs paid for Legal Recourse – civil action to recover payment
