Theft

Question 1

What is the definition of theft?

Answer 1

s1 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; and ‘thief’ and ‘steal’ shall be construed accordingly”

Penalty:

• Summarily– 6 months and/ or fine (less than 5k)
• Indictment– 7 years.

Question 2

Low value shoplifting

Answer 2

22A Magistrates’ Court Act 1980

If stolen goods do not exceed £200 = summarily at Magistrates’ Court and 6 months and/ or fine/ FPN.

(4) Several shoplifting offences can be aggregated if charged at the same time.

Question 3

What two questions need to be considered to ascertain whether or not an act was theft?

Answer 3

s2 of the Theft Act 1968

(2) A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.

1. 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.
2. 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’.

Question 4

Acting dishonestly is a crucial part of ‘theft’.

In what circumstances is a person NOT regarded as having been dishonest?

Answer 4

(Section 2 of the Theft Act 1968)

1. 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.
2. 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.
3. The owner CANNOT BE DISCOVERED by taking reasonable steps.
   - An obvious example for this is someone finding money lying in the street.

Question 5

Main Initial Sections of the Theft Act

Answer 5

Defining Theft (Section 1 of the Theft Act 1968)

Dishonesty (Section 2 of the Theft Act 1968)

Appropriate (Section 3 of the Theft Act 1968)

Property (Section 4 of the Theft Act 1968)

Belonging (Section 5 of the Theft Act 1968)

Question 6

Appropriate

When do you “appropriate” property?

Answer 6

(s 3(1) of the Theft Act 1968)

If a person, having come by property, innocently or not, without stealing it, later assume any rights to it by keeping it or treating it as his/her own, then he/she ‘appropriates it’.

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.

Question 7

Appropriate

A person can agree to appropriation, but the consent may be in doubt if the person…

Answer 7

s3 of the Theft Act 1968

• Has been deceived about the nature of the circumstances.
• Is not of sound mind, this includes learning difficulties.
• Cannot understand the language being spoken

Question 8

What does Section 4 of the Theft Act 1968 discuss?

Answer 8

Property

Property has its usual common meaning of a moveable object or being on an individual’s personal property.

However, it also includes things like money, 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

Question 9

Property

Can land itself be stolen?

Answer 9

s4 of the Theft Act 1968

Land itself cannot generally be stolen, e.g if a neighbour moves their fence over onto more land this 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.

Question 10

When does the taking of wild plants, fruit, flowers and fungi amount to theft?
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The taking of wild animals from land can be regarded as theft, but only if:

Answer 10

If they are taken for sale, reward or commercial purpose, or if they are taken in such a way that it cannot grow back.
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- The animal had been tamed and was being kept in captivity such as in a zoo or a home
- The animal had been killed there without the landowners permission, and taken (i.e poaching)

Question 11

Under s4(1) what does ‘things in action’ mean?

Answer 11

Includes patents, company shares and trademarks and other things which can only be enforced by legal action as opposed to physical posession.

Question 12

s4 of the Theft Act 1968

(2) A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that it to say—

Answer 12

(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 part of it by dealing with it in breach of the confidence reposed in him; or
(b) When he is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed; or
(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.

Question 13

Belonging to another

Property shall be regarded as belonging to any person when they have…

Answer 13

s5 of the Theft Act 1968

• A proprietary right or interest, e.g taking a car to the garage, the mechanic has a proprietary right of interest in the car as he has put an investment into it.
• Possession, e.g whoever has the vehicle in his/her possession. Whether this is lawful or not depends on circumstances and timing.
• Control, e.g the mechanic who carries out the repairs on the car.

Question 14

Belonging to another

(3) Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way…

Answer 14

s5 of the Theft Act 1968

…the property or proceeds shall be regarded (as against him) as belonging to the other.

Question 15

Belonging to another

(4)Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then…

Answer 15

s5 of the Theft Act 1968

…to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.

Question 16

In terms of the Theft Act, intent to permanently deprive means what?

Answer 16

(s 6(1) of the Theft Act 1968)

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.

Question 17

6 “With the intention of permanently depriving the other of it”.

Answer 17

(1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
(2) Without prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other’s authority) amounts to treating the property as his own to dispose of regardless of the other’s rights.

Question 18

Question: Harold is a retired civil servant and enjoys tending his garden. He regularly used an independent garden centre that deals in high end lawnmowers (used and new). He buys a used ride on mower for a reasonable £1000 (new worth £1400). He has the mower for several months and is informed by the police that the ride on mower was stolen during a burglary the previous year.

If Harold refuses to return it to the original owner, is he liable or theft?

Answer 18

• No, a refusal to give the mower back would not make Harold liable for theft.

However

• This does not simply mean that Harold keeps the mower per se. The chain would have to be examined as to who was ‘out of pocket’ and decisions made.

Question 19

‘Belonging to another’ Case Law

R v Rostron/ R v Collinson (2003)

Answer 19

The two defendants went diving in a lake for lost golf balls with the intention of selling them. They had no permission from the golf club and the owners could not be traced.

The court decided that the golf balls were simply ‘property belonging to another’ and the conviction upheld.

Question 20

Question: Jessica lives by the seaside and one evening after a busy summers day, she finds a pair of Ray Ban sunglasses on her wall. She takes them into her house. The next day she pops a note in her window saying ‘sunglasses found’ but but after watching hundreds of beachgoers walk past and no response, she takes it down after an hour. She forms the belief that it would be impossible to trace the owner and therefore after a week starts wearing them.

Has she committed theft?

Answer 20

• No, she has not.
• This is in relation to the part ‘dishonestly’. The woman holds an honest belief that owing to the amount of people that walk past her house to the beach it would be impossible to trace the owner.
• It is the belief that she will not trace the owner that is important, not the act. You don’t actually have to take reasonable steps.

Question 21

Question: A Spanish student who cannot speak English very well buys an ice cream from a van for £1.50. Unsure of the currency he gives the vendor £1 and a 20p. The vendor complains and the students offer him his coin purse to take the correct amount. The vendor returns the £1.20 and takes £2. The student is unaware that change is required and starts walking off. The vendor sees this and deliberately doesn’t give him his change.

Has he committed theft?

Answer 21

• Yes, he has.
• The fact the vendor has identified the student is unsure of currency and kept the change.
• If the student walked off it was more than reasonable to call after him or to explain he had paid too much.

Question 22

Question: A person drops their car off at a mechanics for two new tyres to be fitted. They agree a price of £200. One tyre is fitted but the owner calls up and says that another garage is now selling and fitting the same tyres for £80. The original garage refuses to change the price but states that they will only fit one tyre and he can collect his car once he has paid the bill. The owner is angry with the garage and that night goes and collects his car leaving no payment.

Has he committed theft?

Answer 22

• Yes, he has.
• Even though the car belongs to him, the garage have a vested interest in it. The tyre is essentially theirs so when he removes the car he is stealing the tyre.

Question 23

Question: An elderly man with dementia is walking around the supermarket with his carer. The old man sees a chocolate bar and places it in his pocket to eat later. He leaves the store forgetting to pay.

Has a theft been committed?

Answer 23

No, the old man has not been dishonest. He has, because of his dementia, forgotten to pay. Theft is not made out.

Question 24

Question: A woman takes an antique vase from a friends house without permission. She pawns it in a local shop and spends the money on wine. The following week she feels guilty and gives the pawn receipt to her friend allowing her to buy back the base in the next 7 days. However the friend cannot raise the money.

Has a theft been committed?

Answer 24

Yes, the woman has stolen the antique vase and as such ‘appropriated it’ as if it was her property. She has sold it to the pawn shop and it is irrelevant if the owner has the money to buy it back or not.

Question 25

Question: A person is collection for charity on a very hot day. After two hours she takes £1 out of the charity pot to buy herself an ice lolly before continuing to collect.

Has a theft been committed?

Answer 25

Yes, money given by members of the public to charity become the property of that charity as soon as it is given over.

Question 26

Question: A man puts a black bag on the top of his drive for the refuse man to take the next day. A dog walker is walking past and takes the umbrella on top of the bag. He knows he shouldn’t really take it but does anyway.

Has a theft been committed?

Answer 26

Yes, refuse remains property of the householder until collected.

Question 27

Question: Terrence goes for a walk in some wild woods. He sees a beautiful sapling tree which he believes would look wonderful in an art project he is doing. He goes home, takes a chainsaw returns to the woods and saws through the trunk of the tree, placing it in his car and driving home.

Has Terrence committed theft?

Answer 27

Yes, his actions are not ‘picking’ and he is guilty of theft.

Another common question set. A person who picks mushrooms, fruit, foliage and flowers growing wild does not commit theft unless the picking is done for commercial reward. Mushrooms are slightly different as if the person removes the whole plant then this is theft, same as sawing through the trunk of a tree.

Question 28

Question: Until Recently courts were asked to consider ‘dishonesty’ under R v Ghosh which involved asking two questions, a subjective question of dishonesty and an objective test of dishonesty. However, a key problem was identified with using R v Ghosh.

What was that key problem?

Answer 28

That the subjective element was difficult as the more ‘skewed’ a defendant’s own standard of dishonesty the more likely they were not be convicted.

Question 29

Daniel, a gardener befriends Ethel. He is aware Ethel has no family and lives on her own in a detached property. Daniel starts spending considerable time with Ethel. Every time he goes round, Daniel asks if he can have £50 or £100 which Ethel gives to him willingly. Ethel’s neighbour then hears Daniel request £5000 for a car payment which Ethel she gives to him. The neighbour contacts the police.

Could Daniel be guilty of theft in these circumstances?

Answer 29

Yes, Daniel could be guilty of theft regardless whether Ethel consents if his actions are dishonest.

R v Hinks, the House of Lords stated that even though a person can consent and give a gift, if the receivers motives or the circumstances are dishonest it can still be theft.

Question 30

Question: Winston is the proud owner of a prop gun from a James Bond movie. Stefan is a huge Bond fan and has made several offers for the gun, which is worth £5000. Winston has considered selling the gun but always changes his mind at the last minute. Winston and Stefan has met and Stefan offers £8000 for the prop gun. Winston turns it down stating “it means a lot to me”. He goes to the toilet and leaves the gun with Stefan. Stefan places an envelope with £10,000 on the table and removes the gun.

Is Stefan guilty of theft?

Answer 30

He may have committed theft.

This is a little bit of a tricky area but actually as the case of Boggeln v Williams 1978 shows you can leave money and even details of where you can be found and still be dishonest. Stefan knows that Winston is 50/50 about selling but has bought the prop anyway, he could be guilty of theft.

Question 31

Mary, John and Matt are all friends. Matt suggests that they all go shoplifting individually, as they have never done it before. Matt has suggested this because he is a secret heroin addict and needs money. Matt steals a DVD player worth £99, Mary steals make up worth £105 and Matt steals hair products worth £150.

Considering first time offenders in relation to ‘low value shoplifting’ who, if any, can be dealt with by way of a fixed penalty notice?

Answer 31

None can receive FPNs

Low-level shoplifting can be dealt with by way of an FPN if they are first time offenders, are not substance abusers and the value of the goods is under £100. No one in this example qualifies.

Question 32

Newman and Sam fancy themselves as modern day body snatchers. They go to the local University aware that often the surgeons bin body parts for incineration after they have used them for teaching purposes. They take an arm that had been amputated and clearly dissected and a preserved foot. Both were bagged up for incineration.

Have Newman and Sam committed theft in these circumstances?

Answer 32

Yes, they have committed theft as they have stolen an arm and foot.

Bodies or body parts cannot be stolen UNLESS something has happened to them which give them a different role. R v Kelly shows this through ‘alteration’. If the body parts have been altered in any way (mummification displays / preserved in bottles for examination / used as a teaching aid) then they become ‘property’. Therefore in this case the foot and arm are property as they have been altered. Something can be stolen that has been thrown out.

Question 33

Keith owns ‘Potters Garden Centre’, he sets up in the middle a large fountain and well as a display to entice customers in. It is a great success and after the first day he realises that customers have been throwing money into fountain. He leaves it until the weekend and after closing goes into the fountain in his wellingtons and collects over £50 in change. Keith spends that £50 on a meal in the local pub.

Has Keith committed ‘theft’ in these circumstances?

Answer 33

No, he has not been dishonest in his actions and is not purporting the fountain to be anything different. It is up to people themselves to throw coins in.