Theft

Question 1

What is the actus reus and mens rea for theft in s1(1) Theft Act 1968?

Answer 1

Actus reus - appropriation of property belonging to another

Mens rea - dishonesty with intention to permanently deprive

Question 2

What is the meaning of appropriation according to s3(1) TA 1968?

Answer 2

Any assumption of the rights of the owner

Question 3

Is it necessary that the defendant has assumed all or most of the rights of the owner to appropriate their property?

Answer 3

No, the defendant only needs to assume one right of the owner (per Lord Roskill in R v Morris).

Question 4

Is it necessary to intend to permanently deprive the owner of their property to commit theft?

Answer 4

No, the defendant could assume a right of the owner without intending to permanently deprive the owner of the physical property.

Question 5

Is it possible to appropriate property if the defendant has consent of the owner?

Answer 5

Yes, if the defendant has obtained that consent by false representation. The owner’s mindset is irrelevant as appropriation is a neutral act (R v Gomez and R v Hinks).

Question 6

To commit the offence of theft it is necessary to have all the elements present at the same time. What does s3(1) TA 1968 allow for if the defendant does not have the mens rea at the initial point at which he acquires the victim’s property/right?

Answer 6

Section 3(1) states that D will appropriate the property of V even if he has not stolen it but he later assumes a right by keeping or dealing with the property.

Question 7

What is meant by a continuing appropriation?

Answer 7

A continuing appropriation allows for the prosecution/jury to extend the moment of appropriation to a later point than the moment at which D first assumes the property of V (R v Hale).

Question 8

How does s3(2) protect a purchaser acting in good faith?

Answer 8

If the defendant purchases goods for value in good faith and later realises that the seller had no title to the property the defendant may decide to keep the property without committing theft (applied in R v Adams).

Question 9

What is property under s4 TA 1968?

Answer 9

Any tangible property including money, whether real or personal, and intangible property.

Question 10

What is not property under s4 TA 1968?

Answer 10

Confidential information (Oxford v Moss).

Question 11

According to s4(2) it is not possible to steal land or items unattached, except in which circumstances?

Answer 11

(a) Trustee whose duty to dispose of appropriates it;
(b) A person who does not own the land severs or takes something that has been severed;
(c) A tenant appropriates a fixture or structure.

Question 12

Is it possible to steal wild mushrooms, foliage, fruit etc?

Answer 12

Yes, if D does it for financial reward or commercial purposes (s4(3)).

Question 13

Is it possible to steal wild animals?

Answer 13

Yes, if they have been reduced into possession or are in the course of being reduced into possession (s4(4)).

Question 14

When is property said to be abandoned?

Answer 14

Not often. In Williams v Phillips a householder was said not to have abandoned property in his dustbin. In R v Woodman property on the landowner’s grounds was under their control, but in public grounds the owner should show manifest intention to exercise control (Parker v British Airways Board).

Question 15

Is it possible to steal your own property?

Answer 15

Yes, if it is in the possession and control of another (R v Turner (No2)).

Question 16

How does s5(3) alter the general civil rule that title passes when the parties intend title to pass?

Answer 16

Section 5(3) applies where D has been given the property for a specific purpose. If D uses the property dishonestly for any other purpose he will be guilty (Davidge v Bunnett c/f R v Hall).

The rule does not apply automatically where a person gives D his property, but it is for the trial judge to determine if the property was given for a particular purpose (R v Breaks and Huggan).

If D gives assurances that he will deal in a specific way he should follow that through (R v Klineberg and Marsden).

There is no requirement to deal and retain the actual property, but there is an obligation to deal with the proceeds in a particular way (R v Wain).

Question 17

When may s5(4) apply?

Answer 17

When D has appropriated property belonging to another by mistake and has an obligation to restore it to its owner (applied in A-G’s Ref (No1 of 1983)).

Question 18

To be guilty of theft the defendant must have acted dishonestly. What three situations does s2(1) TA 1968 give in which D is not dishonest?

Answer 18

(a) he believes he has a legal right to the property
(b) he believes V consented or would have consented
(c) he believes he could not find the owner by reasonable steps

Question 19

Is it necessary to actually take steps to find the owner under s2(1)(c) TA 1968?

Answer 19

No, as long as D believes the owner could not be found by taking reasonable steps he has a defence.

Question 20

Will intoxication effect the defence of consent under s2(1)(b)?

Answer 20

No, if D believes that V consented or would have consented, his intoxication is immaterial. D’s belief does not have to be reasonable as long as it is genuine (R v Robinson).

Question 21

In situations where s2(1) does not apply which test do we turn to?

Answer 21

The Ghosh test

Question 22

What is the Ghosh test?

Answer 22

There are two steps:

1. Was D’s actions dishonest according to the standards of the reasonable man?
2. Did D realise their actions were dishonest according to this standard?

Question 23

According to s2(2) when may D be guilty?

Answer 23

When they pay for property that D is not willing to sell as long as they did so dishonestly.

Question 24

Generally, when should D be dishonest? Why was D innocent in Edwards v Ddin?

Answer 24

Before title of the property passes to him. In Edwards v Ddin, D did not intend to not pay for his petrol until after his tank was full of petrol.

Question 25

Normally title passes when an item is paid for, but when does title pass for food?

Answer 25

When it is eaten (Corcoran v Wheat).

Question 26

How is intention to permanently deprive defined?

Answer 26

It is not defined in the Act so it should be given its ordinary meaning.

Question 27

How does s6(1) effect intention to permanently deprive?

Answer 27

It extends the meaning to cover situations where the defendant does not intend the victim to be permanently deprived of the article itself, but the owner has lost rights to the property and the defendant has treated the property as his own to dispose of.

Question 28

What two definitions have been applied to s6(1)?

Answer 28

1. Literal dictionary definition ie ‘To deal with definitely: to get rid of; to get done with, finish. To make over by way of sale or bargain, sell.’ (R v Cahill)
2. Risking its loss (R v Fernandes applied in R v Marshall)

NB. in both situations D must use the property in such a way as to dispose of it. If he believes V will get it back the element is not satisfied (R v Mitchell).

Question 29

What two other ways will constitute treating the property as yours to dispose?

Answer 29

1. Borrowing (s6(1) applied in R v Lloyd)

2. D promises to return the property but may not be able to return it (s6(2))

Question 30

What is the important to ask when applying s6(1) to a case where D has borrowed property? When has D committed theft in such a situation?

Answer 30

‘Was the intention to return [the borrowed property] minus all its goodness, virtue and practical value?’ per Lord Lane CJ in R v Lloyd.

Question 31

If D takes property but intends to replace it with different but equivalent property is he still guilty of theft?

Answer 31

Yes (R v Velumyl)