Theft

Question 1

Where is theft defined?

Answer 1

S 1 (1) Theft Act ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’

Question 2

What is the AR of theft

Answer 2

Appropriation (s.3); Of property (S.4); belonging to another (s.5)

Question 3

What is the MR of theft?

Answer 3

Dishonesty (s.2); intention permanently to deprive (s.6).

Question 4

Could appropriation have a mental element?

Answer 4

ppropriation could have been construed as implying a mental as well as a physical element, but the courts prefer the simpler view that appropriation is an objective description of the act done, the fault in which is supplied by the element of dishonesty- ‘dishonest appropriation’ thus distils the essential wrongdoing in a theft case. This has been the case since the first HL decisions in Lawrence 1972, and Gomez 1993 and further supported in Hinks.

Question 5

In which section is property found?

Answer 5

section 4: “(1) ‘Property’ includes money and all other property, real or personal, including things in action and other intangible property.”

Question 6

property: what is the definition founded on

Answer 6

This definition is founded on civil law concepts and the criminal law cannot ‘float free’ of these concepts

Question 7

Property: case where property was widely defined to include illegal property

Answer 7

Smith: D argued that heroin taken from V in a robbery could not be the subject of a charge of Theft, as it was illegal for V to possess it. However, property ‘includes … all… property’, which means that anything that is property in civil law can prima facie be stolen, even property that it is an offence to possess. It would be contrary to public policy and public order to allow otherwise

Question 8

Property: what is real property

Answer 8

A reference to land

Question 9

Property: what is personal property

Answer 9

is a reference to all property that is not land and that includes property that is illegal or prohibited (Smith)

Question 10

Property: what is a thing in action?

Answer 10

Things in action is a reference to a category of intangible property where D has the right to sue another for a particular sum.

Question 11

property; can a bak account be stolen

Answer 11

a bank account can be stolen. Depositing money into a bank creates a form of intangible property and a right to sue the bank for this particular sum.
- D can also steal from an overdraft, however if D has transferred money from an account that V has no right to sue for e.g. where D has transferred money in excess of V’s overdraft.

Question 12

Property: case indicating that you can steal from an overdraft

Answer 12

Kohn: D was an accountant who had control over the company’s finances with access to their account. He drew on the account for his personal use, and in so doing was appropriating the company’s property. He continued drawing against the overdraft, he was stealing that as well, as an agreed overdraft in a thing in action.

Question 13

Property: AG of Hong Kong v Chan Nai-Keung

Answer 13

D, a director of company A and company B, sold export quotas from one company to the other at a gross undervalue, which he was not entitled to sell. Although the export quotas did not represent a thing in action, they were held to constitute other intangible property and therefore were subject to theft.

Question 14

property: what is the issue with cheques

Answer 14

A cheque which is given by V for consideration creates a thing in action. So if V, for example, was tricked into writing a cheque in D’s favour, D has not taken V’s right to sue, instead the thing in action which D has gained is not property which has ever belonged to V and cannot be the subject of theft. The problem is that D does not commit theft until he presents the cheque and causes the transfer. We could say that the cheque is tangible property, but since D does not intent to keep the paper, there is no intention to permanently deprive. The other option is to say that the cheque is valuable security, a piece of property that creates certain financial rights. This approach has been adopted in Australia although never accepted in this jurisdiction. (N.B. the decline of the use of cheques makes this less of an issue, although could apply to paper tickets).

Question 15

Property: is electricity property?

Answer 15

Electricity is not property, but there is a separate offence within the section 13 of the Theft Act of wasting or diverting another’s electricity ‘abstracting’.

Question 16

Property: Law v Please

Answer 16

abstracting’ electricity. D made an unauthorised phone call, this was not theft of any electricity used. But offence under S 13 of abstracting electricity which he could have been charged for.

Question 17

Property: is confidential information property?

Answer 17

No- Oxford v Moss: a student got a proof copy of the exam paper before he was due to take it, read and returned it. It was held that he could not steal the information. Could not steal the paper, as he had not intent to deprive the university of it.

Question 18

Property: what did Professor Smith argue in relation to stolen information

Answer 18

Argues that if an item cease to be of value as a result of D’s conduct and he knows it, it may constitute an intention to permanently deprive e.g. take ticket to football match but gave it back after a game.

Question 19

Property: can services be stolen?

Answer 19

Services acquired cannot be stolen e.g. taxi ride or haircut, but subject to other offences e.g. making off without payment S 3 or S 11 to obtain services dishonestly (Fraud Act).

Question 20

Property: when can bodies be stolen

Answer 20

Bodies, corpses and bodily fluids are not property, other than in exceptional cases, typically where has been done on the thing, e.g. a mummy in a museum, a persevered sample (Kelly and Lindsay)

Question 21

Property: Kelly and Lindsay

Answer 21

D was convicted of theft for taking body parts from the Royal College of Surgeons to use in their art project, all these items had undergone some work by college staff so came within the exception. But if D taken a ‘fresh’ body which had been left to medical science, that would not have been theft. CA recognises this is an odd rule, but it should be for Parliament to change the law.

Question 22

Property: when will bodily fluids amount?

Answer 22

Bodily fluids which are intended to be held of controlled can amount to property. Yearworth v N Brotstol NHS Trust: a facility allowed people to store sperm transplants if cancer treatment left them infertile. There was an application of skill in the storage, so could have been said that the exception applies. However, the court decided on the general principle that the men must own their own sperm which seems sensible. Seems unclear what criminal law would do if such a case put before them today.

Question 23

Property: which s highlights a number of specific exceptions to the definition of property

Answer 23

S 4

Question 24

Property: when can land be stolen

Answer 24

S 4(1) land cannot be stolen unless in exceptional cases in s 4(2)(a)-(c)

Question 25

Property: when will severance be theft

Answer 25

by a person not in possession e.g. D who dismantles and takes his neighbours shed, does not include moving a boundary of a fence

Question 26

Property: can wild plants be stolen?

Answer 26

a person not in possession of land who picks wild mushrooms or flowers from wild plants does not deal unless he picks for sale or reward or other commercial purpose, s 4(3). However, intention at the time of picking remains important. If she picks berries with the intention to make jam for herself, but later decides the sell the jam, she will not be guilty of theft.

Question 27

Property: wild creatures

Answer 27

S 4(4) creates an exception which relates to wild creatures. Although wild creatures will generally not constitute property for the purposes of theft, an animal can be stolen where it has been tamed or kept in captivity, expect where another has reduced it into possession or is in the course of doing so. 
If D kills and removes a wild animal from V’s property, such as a peasant, whilst D may be guilty of a poaching offence, he will not be guilty of theft