Theft Flashcards
Definition of Theft
Defined in section 1(1) of the Theft Act 1968 (TA 1968)
A person is guilty of theft if he dishonestly appropriates the property belonging to another with the intention of depriving the other of it
Conduct element
Actus reus- any conduct causing the result
Mens rea- voluntary
Circumstance element
Actus reus- what is appropriated is property belonging to another
D’s appropriation is dishonest
Mens rea- knowledge
Result element
Actus reus- D appropriates V’s property
Mens rea- intention
Ulterior mens rea element
Mens rea- intention to permanently deprive V of her property
Appropriation is in which section
3
Of property… section??
Section 4
Belonging to another .. section??
Section 5
With the intention to permanently deprive .. section ??
Section 6
Dishonestly .. section??
Section 2
So…. Section 6
With the intention of permanently depriving
Section 3
Appropriation
Section 5
Belonging to another
Section 2
Dishonestly
Section 4
Of property
Appropriation definition
Appropriation is defined in s 3 of the Theft act (1968)
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
Assuming the rights of an owner
Section 3 (1) is clear that assuming the rights of an owner will amount to an appropriation E.g. Taking v's property and treating it as their own
Morris clarified that an assumption of any one property right will be sufficient
Morris (1984)
D switched labels on supermarket goods in order to purchase the more expensive goods at the galea lower price
Crown court- guilty of theft
Court of appeal- upheld conviction
House of Lords- dismissed appeal when D swaps labels D assumed a ‘right of the owner (the right price to the price of goods) and this was sufficient to amount to an appropriation
Gomez
Confirms the approach of Morris
If D takes an item from V with the intention of borrowing it and returning it later then she appropriates at the point of taking physical possession.
It is at that point that D assumes rights of possession and control
But if she later decides to keep the item, then this later decision amounts to a further appropriation when she assumes the rights of ownership
What approach should you take when selecting which appropriation method applies
Identify which act of appropriation is most likely to lead to liability for theft (i.e. Which act also coincides with the other elements of the offence)
What other ways can appropriation of certain property be committed
Can appropriate certain property through omission or through the mental act of deciding to treat v’a property as her own
Where D discovers that she has accidentally taken property D will not be assumed to have appropriated the property if she has not treated it as her own or made a decision to keep it
However is she does so decide, this and any other assumptions of rights will be sufficient to constitute the appropriation element of the actus reus
Gomez (1993)
D was the assistant manager of an electrical goods shop
He convinced his manager to allow a customer to buy items using cheques that D knew were stolen and therefore worthless
The manager consented to the sale
D was charged with theft
Crown court- guilty of theft
Court of appeal- appeal allowed. Following Morris the consent of V undermines the element of appropriation
House of Lords: appeal allowed, reaffirming Ds liability and following Lawrence
With lord Lowry dissenting, the lords confirmed that, where D tricks v, appropriation will be found whenever there is an assumption of ownership rights by D regardless of Vs consent
Appropriation with consent
‘Any assumption’ of rights will constitute an appropriation
Cases such as Laurence have held that the consent or non consent of V is irrelevant
Confirmed in Gomez
As long as D assumes a right of ownership over V’s property, there will be an appropriation with V’s consent or non consent is irrelevant
Appropriation with full civil title
Hinks confirmed that where D assumes ownership rights from V this may be an appropriation even where the property is consensually transferred from V with full title
(Where the transfer is valid and non voidable in civil law)
D may be liable for theft of certain property in criminal law but be entitled to keep that sane property in civil law
Hinks (2000)
D befriended V who was a man described by the court as naive, trusting and limited intelligence.
Almost every day she took V to his building society and withdrew the maximum £300 amounting to £60,000 in six months
D was charged with theft
Court of Appeal- upheld conviction
House of Lords- dismissed appeal even though it didn’t amount to a civil wrong, this did not preclude it being a theft
The bona fide purchased exception
Section 3(2) of the TA 1968 creates an exception where no appropriation will be found
This arises where D purchases property in good faith (bona fide), believing that she is gaining full civil title
It then transpires that full title has not be transferred (e.g. Because the goods were stolen) but D continues to treat the item as her own
In such a case D has assumed the rights of the owner but this section stops it being the result in the law
This only applies to property acquired by D for value so it does not apply for gifts received by D
Potentially liable for handling stolen property and/ or fraud is she presents herself as the owner
E.g. To sell the property to another
Definition of Property
Section 4 of the Theft Act provides a definition of property
Property includes money and all other property, real or personal, including things in action and other intangible property
Real property
Reference to land making the defendant liable for theft of certain land rights
Personal property
Reference to all property that is not land and that includes property that is illegal or prohibited i.e. Drugs
Things in action
Intangible property where D has the right to sue another for a particular sum
I.e. Bank accounts
Where D dishonestly causes the bank to transfer funds from V’s account, D does not steal any physical money belonging to V she steals a thing in action
I.e. She steals part of V’s right to sue V’s bank for a sum of money
Same is true if D transfers money from V’s overdraft
Only exception is where V had no thing in action
Other intangible property
Allows the definition of intangible property to extend beyond the most common things in action
AG of Hong Kong v Chan Nai-Keung
Transfer of quotas from one company to another at a gross undervalue
They constituted other intangible property and were therefore subject to theft
Exceptions
Section 4
Land Wild mushrooms and flowers Wild creatures Electricity Confidential information Services Bodies
Land
Section 4(2) Where D takes some of V's land without severing it as, for example, where D moves her garden fence a few inches into V's garden, she may have appropriated the property in civil law, but this will not constitute property for the purposes of theft
Only certain specified land rights will amount to property within the offence of theft
Section 4 (2) (A)
Allows for theft of land by a trustee of property
A- when he is a trustee or personal representative, or is authorised by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming party of it by dealing with it in breach of confidence reposed in him
This where D is the trustee of property and disposed of that property dishonestly for her own advantage, she may commit theft
Section 4 (2) (b)
Allows for theft of land by someone whose interest in the land is not that of ownership who severs part of the land
B- when he is not in possession of the land and appropriates anything anything forming part of the land by severing it or causing it to be servered or after it has been servered
Moving fence does not apply because D was not removing the part of V’s land that she appropriated
Would apply for example if D takes some of V’s topsoil, her plants, garden shed
Section 4 (2) (C)
Allows for theft of land by a tenant who appropriates a fixture or structure from the land
C- when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the land
A tenant will not commit theft where she removes minor fixtures such as top soil
But the removal of a fixture, bath, or a of a structure, garden shed, would amount to a theft
Only appropriation is required
Wild mushrooms and flowers
S 4 (3) Includes all fungi, any plant or tree
3- A person who picks mushrooms growing wild on any land, or who picks flowers fruit or foilage 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
Cannot dig up the whole plant
It all depends on D’s intentions at the time he appropriates the property
Wild creatures
Section 4 (4)
4- wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcass of any such creature, unless either it has been reduced into possession by or an behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession
Although wild creatures will generally not constitute property for the purposes of theft, the provision makes clear that this will not be the case with tamed creatures, or wild creatures that have been killed or trapped them
E.g. If D kills and removes a wild animal from V’s property ,such as a pheasant, whilst making the Defendant guilting of a poaching offence she will not be guilty of theft
To keep a creature in ‘captivity’ thus making it property for the purposes of the TA 1968 requires more than the regular feeding of a wild creature, even if the eventual aim is to trap/kill the creature
Common law exclusions
Electricity
Electricity is not property for the purposes of theft but there is a separate offence within section 13 of the TA 1968 of wasting or diverting another’s electricity
Confidential information
Information does not amount to property
Oxford v Moss
Services
Manicure, taxi journey, a theatre performance is not property within section 4 and so failure to pay is not theft
Likely to be obtaining services dishonestly under section 11 of the Fraud Act (2006)
Bodies
Traditionally human bodies are not viewed as property
However this view is changing in a number of areas
I.e. bodily products can now amount to property if they are intended to be held or controlled
So stealing blood from the blood bank can amount to a theft
Belonging to another
Theft protects the ownership rights of others
Must demonstrate that the property appropriated belonging to another at the point of appropriation
Section 5 (1) of the Theft Act (1968)
1- Property shall be regarded as belonging to any person having possession or control of it l, or having in it any proprietary right or interest (nor being an equitable interest arising only from an agreement to transfer or grant an interest
V only is required to have one relevant ownership right at the time of appropriation
What matters is that there is someone who has some proprietary right or interest in the property other than D
Possession or control
V has possession or control of property where she intends to control or possess it, and maintains some degree of control over it in fact
Ie owners of a vending machine, landowners possess items within their property
Case of Rostron demonstrates whether V has a sufficient claim of possession
Rostron
D and others trespassed onto a golf course at night, with diving apparatus, and took lost golf balls from a lake which was part of the course driving range
D was charged with the theft of balls
Crown court- guilty of theft
Court of appeal: conviction upheld on appeal the jury were entitled to find that the balls belonged to the golf course
Although the course owners did not intend to collect the calls themselves, they still maintained possession and control over them
If V holds a proprietary interest in D’s property then D’s taking of the property may amount to a theft
Shown in Turner (No 2) (1971)
D had his car repaired by V at a garage
On collecting his car, D used a spare set of keys to take his car without paying the bill
Crown court- guilty of theft
Court of Appeal- conviction upheld on appeal
The garage was in possession and control of the car and so although D owned the property, he was still talking property belonging to another (the garage)
Too wide= if someone stole your bag (took control) and you took it back that would technically be a theft
Corrected in Meredith
Proprietary interest
These are determined in reference to civil law rules of ownership
Marshall (1998)
D obtained part-used tickets from Underground users and resold them
London Underground Ltd (V) claimed ownership of the part used tickets, making D’s reselling an appropriation of property
D was charged with theft
Court of appeal upheld conviction
Back of the ticket clause of V’s continued was seen as sufficiently clear to buyers
Marshall consequences
Decisions in this area will often turn on the subtle rules of civil ownership
E.g. Property may be found to belong to the Crown if it comes within the rules of “treasure” property may belong (in equity) to beneficiaries of a trust, property ownership may pass on contract despite V never receiving the scrutiny of civil rules, once such an interest is identified, it will always satisfy this element of theft
This will be the case even where D also has a proprietary interest in the property, as where one business partner takes all of the value out of corporate partnership
Specific examples within s5
Potentially problematic examples
A) Section 5 (2) where D , a trustee, dishonestly appropriates from that trust, she takes property of another. This is true where the trust has individual beneficiaries (overlapping with s5 (1) as well as purpose trusts (e.g. Charitable trusts) where others have the ability to enforce the trust
B) Section 5 (3) this subsection deals with property given to D for a particular purpose, for example, where V provides D (her cleaner) with money to buy cleaning products.
In such cases, even though, the property is passed to D, if she deals with it in an improper manner by keeping it for herself, this will constitute taking the property of another
In order to come under subsection 5
D must be under a legal as opposed to merely moral duty to deal with the property in a particular way
In the context of money the question is often whether D was expected to use that specific money for a specific purpose (s5(3) applies)
Or whether the payment was a general payment to D in exchange for future conduct that may be paid from other funds (s5 (3) does not apply then)
Would apply if money was for charity
Wouldn’t within a travel agents- they would have broken a civil/ contractual obligation
Section 5(4)
Where D receives property by mistake and is under an obligation to return it or its value
A good example is where D receives an overpayment of wages
In such cases where D appropriates the property and refuses tonnage restoration, she takes the property of another
Shown in Gresham case
Gresham case (2001)
D’s mother died and yet D, who had power of attorney, did not inform her pension provider (V) who continued to make payments for 10 years
D used this money on his own
D was charged with theft
Court of Appeal upheld conviction D had a duty under section 5 (4) to return the money to V and so his use of it amounted to the taking of another’s property
Where V mistakenly transfers property to D, this will also often result in V retaining some equitable proprietary ownership. In such cases, section 5 (4) and (1) will apply
Section 5 (5)
This clarifies that a legal person (corporation) can own property
Therefore, for example, of directors of a company dishonesty appropriate company property, they are taking the property of another (the company)
Abandonment
Property may be stolen and then abandoned making it ownerless and no longer capable of theft
V must leave the property and be indifferent as to any future appropriation
Therefore where V throws property into the bin, intending it to be collected and disposed of by authorised collectors, it is not abandoned and if D, who is not an authorised collector, takes it from V’s bin then D appropriates it
Same is true for charity collections or lost jewellery
The hinks problem
In hinks property was assumed to belong to V at the moment of transfer
This is a useful indication that when appropriation and the passing of property ownership or simultaneous, the courts will take a permissive approach to potential problems of coincidence
Intention to permanently deprive
When appropriating the property of another D does so with the intention to permanently deprive V of it Section 1 (2) of the TA 1968 explicitly clarifies that Theft need not to be for D's benefit so it is enough that D gives away V's property
The requirement of an intention to permanently deprive is an ulterior mens rea element
Has to be intention AT THE MOMENT of appropriation
Section 6 (1) of the TA 1968
Sets out a definition of what it means to permanently deprive
1- A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless tonne regarded as having the intention of permanently depriving the other of it of his intention is to treat the thing as his own to dispose of regardless of the others rights and a borrowing or lending of it may amount to treating it, if the borrowing or lending of it may amount to so treating it if the borrowing of lending is for a period and in circumstances making it equivalent to an outright taking of disposal
Ransoming or selling property back to V
Where D appropriates V’s property with the intention of selling it back, or ransoming it to V, it is arguable that D does not intend to permanently deprive V of it.
However, not surprisingly, the courts have consistently held this to come within section 6(1)
D intends to treat the property as her own, and this is equivalent to the intention of an outright taking
Replacing with identical property
A problem emerges where D takes
Velumyl (1989)
D an employee, took money from the company safe, intending to return it after the weekend
D was charged with theft
Crown court- guilty of theft
Court of appeal- conviction upheld on appeal
D did not intend to return the exact notes or coins taken, so he must have intended to permanently deprive his employees of them
Removing value from the property
I’d D’s intention is to take property
Lloyd
D who worked as a cinema projectionist, appropriated films with the intention of making illegal copies to sell elsewhere, but to return the originals
D was charged with theft
COA- appeal allowed.
D’s intention was merely to remove some of the value from the films and was not sufficient to be equivalent to an outright taking
Absconding the property
There will be clear cases
Mitchell (2008)
D and three others forcibly took V’s car, having crashed their own, whilst attempting to escape from the police. The car (largely undamaged) was later abandoned on the road with its hazards lights on. D was charged with robbery, which requires D to have committed theft
Crown court: guilt of robbery
Court of Appeal: appeal allowed. The circumstances of the intended abandonment made it likely that the car would be returned to V and thus did not amount to an intention to permanently deprive
Conditional intentions
Where d appropriates
AG’s References (Nos 1 and 2 of 1979) 1980
Combined cases involving D’s who weee arrested whilst trying to break into buildings. Both were charged with burglary, requiring an intention to steal.
Crown court- not guilty of burglary, a conditional intention to steal (if there was anything worth taking) I’d insufficient
COA- the crown court was wrong. Both D’s had an intention to steal, even if they had no specific property in mind. The court explicitly extended its judgement to standard theft cases
TA (1968) s 6 (2) intention to risk the property
(2) Without prejudice to the generality
Dishonesty
D must appropriate property belonging to another, with the intention to permanently deprive and that the appropriation must be dishonest
Statutory examples of no dishonesty
A
Statutory examples of no dishonesty
B
Statutory examples of no dishonesty
C
Common law definition of dishonesty
In the absence of a statutory definition
Ghosh
D who was a working as a surgeon , claimed fees for carrying out certain operations where this was not appropriate. D was charged with obtaining property by deception (since repealed by an offence under TA (1968) (s15) an offence where D must act dishonestly
Crown court- guilty of section 15 offence
COA- conviction upheld on appeal D acts dishonestly where:
A D’s conduct is dishonest according to the standards of reasonable and honest people and B D realised (at that point( that the conduct would be seen as dishonest according to those standards
Step 1
Is D’s conduct dishonest according to the standards of honest people
Step 2 Ghosh
Does D realise that her conduct would be considered dishonest by the standards of honest and reasonable people
