Theft Flashcards
The definition of theft is:
Section 1 of the Theft Act 1968
“A person is guilty of theft if he/she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it”
As you can imagine dishonesty is hard to define, so instead the act defines situations where the taking will NOT be regarded as dishonest.
The person will NOT be regarded as being dishonest if:
- He/she believes that he/she has a lawful right to take the item
- You see someone leaving a restaurant with what you believe to be your bag so you take it back from them. However, it turns out not to be yours. This wouldn’t amount to dishonestly taking the bag. - He/she believes that he/she would have had the owner’s consent if the owner had known of the taking of the property and the circumstances around it.
- An example of this would be taking £2 of loose change lying on a friends table to pay a parking meter outside their house to stop you receiving a large fine. It is clear that the friend who owns the money would consent to this in order to avoid their friend receiving a large fine. - The owner cannot be discovered by taking reasonable steps.
- An obvious example for this is someone finding money lying in the street.
What two questions need to be considered to ascertain whether or not an act was theft?
- Was the act “dishonest” according to the ordinary standards of an honest and reasonable person? (This is often called the reasonable person test/ objective test.)
- If the act wasn’t dishonest then this part of the offence isn’t made out and so there is no theft. - If it was dishonest, then did the defendant themselves realise that it was dishonest according to those standards?
- It is enough to prove that they knew others would think their behaviour was dishonest, or that they thought that what they were doing was ‘wrong’.
Dishonesty (Section 2 of the Theft Act 1968)
In relation to dishonesty there are 2 main stated cases that you need to be aware of:
- R v Ghosh involving Dr Ghosh and dates back to 1982.
2. Ivey v Genting Casinos (Uk) Ltd which amended the initial ruling.
Dishonesty (Section 2 of the Theft Act 1968)
R v Ghosh
What happened?
Dates back to 1982.
Dr Ghosh was a surgeon who charged for work that either other surgeons/ NHS did.
He claimed that he was owed money anyway for the consultation work he had done.
Found guilty but appealed on the basis that the trial judge had told the jury to use their common sense to determine whether the accused’s conduct had been dishonest or not.
Ghosh argued that the judge should have instructed the jury that dishonesty was about the accused’s state of mind (a subjective test) rather than the jury’s point of view (an objective test).
Dishonesty (Section 2 of the Theft Act 1968)
Ivey v Genting Casinos (Uk) Ltd
What happened?
This amended the initial ruling.
Ivey used a ploy to allow him to increase the odds of him winning in a card game.
This resulted in him winning around £7.7 million in one night.
The casino worked out what he had been doing and so withheld the winnings saying he had been dishonest.
Mr Ivey launched civil claim. Court questioned whether he had “cheated”…
- Yes = breached the implied term of the contract between himself and the casino, and so have forfeited his winnings.
- No = no breach of contract and the money was his. Ivey argued that “cheating” involved dishonesty, and that since he had not acted dishonestly according to the second limb of the Ghosh test, he had not cheated.
Judge ruled that the second limb of the Ghosh did not represent the true position in law = cheating.
The Court ruled that the second limb of the test was unnecessary and meant that the more “warped” a defendant’s standards of honesty were, the more likely they were to be acquitted. To remedy this problem the Court imported the civil definition of dishonesty into English law (in effect abolishing the second limb of Ghosh).
To put this simply it removed the personal element. Up until now many factors such as people’s culture or warped beliefs allowed them to raise a defence in relation to dishonesty. Claiming they honestly believed their action was not dishonest. This new case removes that element and solely relies on the reasonable person to decide if the action was dishonest.
Appropriate (Section 3 of the Theft Act 1968)
When do you “appropriate” property?
(s 3(1) of the Theft Act 1968)
If you assume the rights of the owner of property by keeping it or controlling its movements.
An example of this is where someone changes the price on an item in a shop so they end up paying a lower amount. By doing this they have assumed the rights of the owner, as they are setting the price for the item.
Appropriate (Section 3 of the Theft Act 1968)
A person can agree to appropriation, but the consent may be in doubt if the person…
has been deceived about the nature of the circumstances.
Is not of sound mind, this includes learning difficulties.
Cannot understand the language being spoken
Belonging to Another (Section 3 of the Theft Act 1968)
What can incur some confusion over stealing when considering section 3?
For property to be stolen it obviously must belong to someone, other than the person stealing it. People can either have possession or control of the property for it to be stolen.
This means, if you put you car in the garage and go and get it from their car park at night with your spare key… could technically be stealing your own car as the garage still have an interest in Jim as the debt hasn’t been settled, meaning your possession and control could be unlawful.
In terms of the Theft Act, intent to permanently deprive means what?
This is complete when someone treats the property as their own. This could include lending and borrowing over an extended timescale and pawning another person’s item.
e.g You borrow someone’s laptop and then decide to lend it to one of your friends. It’s at this point that you intend to permanently deprive them of it as you are treating it as if it is yours to lend.
I have committed the offence of bilking when I leave a restaurant after eating a meal and forget to pay and later realise but then do not go back and pay.
True
John notices an old bike in the street outside his block of flats. It hasn’t moved in a few weeks and John thinks it might have been stolen and then dumped there. Instead of trying to find the owner John thinks he should keep the bike for himself and takes it up to his flat. He files off the frame number and paints it a different colour so that if the original owner saw him on it they wouldn’t recognise it.
In fact, the owner had actually bought a new bike and had dumped his old one that John now has outside the block of flats because he didn’t want it any more.
At what stage, if at all, does John commit theft contrary to Section 1 of the Theft Act 1968?
At no stage
What are the 5 key concepts relating to the definition of theft?
Dishonesty
Appropriation
Property
Belonging
The intention to permanently deprive
What does Section 4 of the Theft Act 1968 discuss?
Property (section 4):
Property has its usual common meaning of a moveable object or being an individuals personal property.
However, it also includes things like ideas, intangible items e.g air in an oxygen tank, space in a skip, and trademark logos.
Additionally, things in action, such as rights e.g right to sue.
NOT electricity
Property (Section 4 of the Theft Act 1968)
Can land itself be stolen?
Land itself cannot generally be stolen, e.g if a neighbour moves their fence over onto more land this would would not be regarded as theft.
However, if a trustee in charge of an estate or a person with a power of attorney chose to sell another’s land for profit, this could amount to theft.
Additionally, turf, top soil and cultivated trees and shrubs = property so could amount to theft.
