Theft

Question 1

Definition

Answer 1

Theft Act 1968 = dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it
AR = appropriation of property belonging to another
MR = dishonestly with the intention to permanently deprive
+ The elements must occur at the same time = R v Vinall

Question 2

Appropriation - rights

Answer 2

• s.3(1) TA 1968 = ‘any assumption of the right of an owner’ + keeping and dealing amounts to appropriation
• Lawrence v Metropolitan Police Commissioner = consent doesn’t negate an offence as Parliament purposefully chose to omit anything on consent
• Morris v DPP = assumption on one right – D swapped labels of items - appropriation as assuming the right to choose the price
• Upheld in Gomez v DPP = electrical store with a dodgy cheque + upheld that consent is irrelevant
• Gresham = appropriation must be active

Question 3

Appropriation [rights related to property]

Answer 3

• You can have theft where you have a civil right to a property = R v Hinks: career dishonest in keeping it as he was ill, doesn’t have to be a civil wrong to be theft, it can be a gift or a donation – rather than acquit D, the judges have widened the defence of theft, should have instead been charged with fraud
• Borrowing and keeping dealt with in s.3(1) = R v Atakpu: appropriation is for as long as the thief can be regarded as in the act of stealing
• Vs. exception to this rule in s.3(2) where if you come by the property without stealing it, it is not theft due to later actions, such as buying a good then finding out it is stolen

Question 4

Property

Answer 4

• s.4(1) = property includes money, real or personal property, things in action, and other intangible property
• Things in action = property rights that cannot be touched but can be enforced by law, such as bank credits
• R v Kohn = CFO writes checks to himself, still theft, even if he had control over the account
• R v Hilton = paid expenses to himself, access to the account, still theft, so confirms Kohn
• R v Darroux = did not have control over the account, false claims for overtime, which were approved, they then instruct the bank to pay, not theft, as it should have been charged as fraud, so served as a warning to prosecutors, but there may be cases where a deceptive representation could amount to appropriation

Question 5

Not property

Answer 5

• R v Preddy = paper slips for a cheque do not amount to property, but the thing in action does, although celebrity cheques or paper of high value could
• NOT … land [s.4(2)], wildflowers unless for commercial purpose [s.4(3)], wild creatures [s.4(4)], confidential information [Oxford v Moss]
• Confidential information = Oxford v Moss: copies exam answers but puts the paper back, not theft of information
• vs. Lloyd = pirates movies then returns them is theft
• Corpses = Kelly: work was done to the body parts as they were preserved, so they were valuable as it took time and effort, so constituted property, so it was theft – this was confirmed in Yearworth v North Bristol NHS trust = sperm not kept under right conditions, death constituted as property
• Electricity = Low v Blease + s.13 criminalises ‘abstracting electricity’

Question 6

Belonging to another
Definition and caselaw

Answer 6

• s.5(1) = having possession or control of it, or having in it any proprietary right or interest
• If you have the only exclusive proprietary right over the property, then you can’t steal it from yourself, but this only if no one has any other interest
• R v Woodman = V was not aware of the theft, [scrap metal], still theft
• R v Turner = the garage had a property interest in the car so could keep it until the owner paid as they had invested money, time, and labour into it
• R (Ricketts) v Basildon Magistrates’ Court = abandoned property left outside a charity shop was stolen, not abandoned as left with the intention that it be collected by the charity shop, so it was theft
  = intention is the key

Question 7

Property
Statute

Answer 7

PQ = What is the property, who has a proprietary interest, if this is someone other than D, s.5(1) should apply
- s.5(2) = covers when beneficiaries steal from their own trust, so that they can still be charged
- s.5(3) = if D holds property under an obligation for V, D is not treated as the outright owner – such as the legal obligation to deal in Hall in a specific way + specific duty on D in Wain
- s.5(4) = if there is an obligation to restore, then the property will belong to the person entitled to the restoration = where there is a legal obligation to restore in R v Shadrokh-Cigari, where the bank accidentally overpaid [bank retain an equitable interest in the money]

Question 8

Dishonesty
What doesn’t count - statute

Answer 8

• s.2(1) = exceptions: (a) D believes they have the right to deprive, (b) in the belief that they would have the consent of the other if they knew of the circumstances, (c) if the owner cannot be discovered taking reasonable steps [finders’ keepers]
• Section 2(2) a thief’s willingness to pay does not negate the dishonesty
• Section 1(2) provides that it is immaterial whether the appropriation is for the thief’s own benefit.

Question 9

Different tests for dishonesty

Answer 9

• Gills = subjective
• Freeley = left to the jury as ‘reasonable ordinary people’
• Ghosh = a) was the defendant’s conduct dishonest by the ordinary standards of reasonable people [objective test] + b) D must have realised that what he was doing was dishonest according to these standards
• Ivey test [in civil law] confirmed in the criminal law case Barton v Booth = a) what was the defendant’s actual state of knowledge or belief as to the facts [subjective] + was his conduct dishonest by the standards of ordinary decent people
  = Ghosh was a trump card, whilst Barton and Booth is overinclusive

Question 10

Dishonesty
Lord Hughes criticisms of Ghosh

Answer 10

1. The more warped D’s standard, the more likely they are to be acquitted [vs. Not D’s own beliefs but of what others would view as dishonest]
2. Ghosh disagreed with the civil law [vs. they can ‘float free’ of each other (Hinks)]
3. Jurors were confused by Ghosh [vs. Rarely given in directions as jurors used the ordinary meaning of the term dishonest and there was no evidence of this claim]

Question 11

Dishonesty
Griew’s criticisms of Ghosh

Answer 11

1. It leaves the law to the jury as ‘ordinary and decent people’
2. Leads to more and longer trials as you don’t know what the jury will decide so can run the risk of going to trial
3. It assumes that the jurors are honest
4. Unsuitable in cases of complex fraud where ‘ordinary’ people may not understand

[vs. The jury are not applying their own standards but social norms on morality]

Question 12

Dishonesty
I + B&B cases

Answer 12

• Ivey = professional gambler was edge sorting, dishonesty considered in obiter dicta, the court set out the Ivey test
• Barton and Booth = vulnerable people in care homes were exploited for their money = Ivey was to be followed – so, the CoA overturned decades of law based on obiter dicta comments in the SC in a civil law case
• This has a far-reaching impact as theft is commonly charged and dishonesty is used in a wide range of offences

Question 13

Intention to permenantly deprive

Answer 13

• Don’t have to acting permanently deprive, just intend to
• s.6 = this covers when you pawn the property for money, but intend for the owner to get it back as you deal with it as the owner and there is the risk that they may not be able to pay to get it back
• It is also theft if you use the value of the property, or if you give them a similar item
• The judge must direct on the intention to permanently deprive even if obvious [R v Zerei]

Question 14

Essay Questions
Advanatges and Disadvanatges of theft

Answer 14

• Ivey has widened the MR
• far-reaching impact =
• wide AR, so main focus on MR [wide as can appropriate any rights, only one right]
• judges would ratehr widen AR than acquit as should have been charged with fraud [vs. warning in Darroux]
• Ivey overinclusive but Ghosh test was also controversial