Theft Flashcards
What is the definition of theft?
Any person who…
- dishonestly
- appropriates
- property
- belonging to another
- intending to permanently deprive
What is low value shoplifting?
This is theft of goods totalling under £200 (FROM ALL OFFENCES BEING TRIED COMBINED)
- if it is under £200 total then it is a summery offence only
- a person can elect to take the matter to a crown court at which point it is no longer summery only and can be tried on indictment
- the maximums pen tally for a summery conviction is 6 months prison and a fine
- you CAN attempt low value shop lifting
- other indictable only powers are preserved with low value shoplifting such as powers to arrest by citizens and powers of entry
When is someone not acting dishonesty?
When a person…
- has a right in law to deprive someone of their property on behalf of himself or a third party
- has a belief that the owner would consent to the appropriation if they knew of it or the circumstances
- has a belief the owner cannot be found by taking reasonable steps to find them
- leaving payment or details for contact to arrange payment might mitigate any dishonesty for taken property. However, if someone is aware that property is, for example, not for sale by paying market value or above but takes it anyway, leaving such a payment, it would be dishonest because they know they shouldn’t be taking it.
When is someone determined to be acting dishonestly?
When their actions and knowledge at the time is weighed against the standards of ordinary decent people
What is appropriation?
When anyone assumes the right of an owner of property, wether or not they come by it innocently and then decide to take ownership at any point
Ownership includes selling, giving it away or destroying it (making a decision of what to do with it). This includes just making a single decision or right of ownership and DOES NOT mean ALL the rights have to be assumed
- an act of ownership which is consented to expressly or implied by them, can never amount to an appropriation as this is just following the owners will and not a direct assumption of ownership
- for appropriation of take place nothing has to be physically taken, the owner does not need to be deprived or the appropriator gain anything by it
- consent does not expressly negate appropriation; just because you consent to something being taken does not mean everything there in can be taken through that consent (remember the taxi driver who was given a wallet to take a fare in good faith but took much more - the consent to take from the wallet freely does not negate the appropriation of things that the appropriator knows they shouldn’t)
- swapping price labels (and nothing more) is an appropriation because of the assumption of the right to place a price on the property
- stollen property cannot be appropriated by the same thief twice
- gift giving will not negate an act of theft of the person who receives it has manipulated or pressured the person as this will still be viewed as dishonest and consent does not invalidate an action of appropriation
- appropriation is an ongoing event and should, at any point in that appropriation someone make that appropriation dishonest then, regardless of if they took them innocently initially, it can amount to theft (think of the person innocently leaving a store with property they didn’t realise they have but then realising it and still deciding to keep it - theft at the point of dishonesty keeping it)
- there is an exemption where a person is given something for exchange of fair payment and an honest belief the person selling has a right to do so - if this turns out to be stollen goods the purchaser will not attract a liability for them. However, it does not mean they get to keep them and if they discover this and then keep them, they will be liable.
What is property?
It is anything real or personal and intangibles (including money)
You cannot ordinarily steal land unless…
- you are appointed as trustee or guardian of that land and you appropriate it in some way that is in breach of the authority of that trust/guardianship (being appointed to dispose of land by selling it but deciding to sell it at a loss/lower amount than you are instructed amounts to theft)
- when you don’t own the land and sever a part of that land or take a part of it after it has been severed (this includes topsoil, cultivated plants and fixtures but they must be physically severed from the result of the land - pulling up a plant or removing topsoil. Simply moving the boundary of a fence to take ownership of a neighbours garden would not count as the land is still whole)
- where you PICK wild mushrooms, grit or flowers from someone’s land in order to make a GAIN/REWARD from them. The intention for reward MUST BE PRESENT AT THE TIME IF THE PICKING. Forming the intention later will not count. Taking the entire fruit plant or sawing through a whole trees trunk to remove them is theft, not picking (mushrooms are fine to be removed whole as picking)
- wild creatures which are tamed or kept in captivity are property. Wild animals and their carcasses can be property if has been reduced or being reduced to property and not since abandoned
- a lawful tenant who then severs any fixture or structure is stealing. However they CANNOT steal the land of the grounds they are tenant on even if it is severed.
What are “things in action” in regards to property?
Intangible items such as…
- company shares
- trademarks
- software programs
- points on a loyalty card
- the rights of ownership to a purchased ticket
- the balance on a bank account provided it is in balance or the limit of an agreed overdraft (transferring balances from one person to another is theft)
- the contents of an examination paper are not property but if it were written on paper the paper would be property
- the information on a cheque is not but it could be stollen as it is a piece of paper
What is not property?
- a persons identity; their mannerisms or administrative data (NI number)
- confidential information
- whole human bodies - dead or alive
- electricity
- body parts which have been removed by application of skill (surgery / post mortem) ARE property
- body fluids taken as samples (blood/urine) are property even if taken by the person who gave them
What is the concept of belonging to another?
Something belongs to another if…
- they have control of it
- have a right of interest in it (taking your own car from a garage you put it in for work is theft as that garage own has a right of interest in it whilst in this control)
- where a trust is involved it also includes anyone having a right to enforce the trust (and trying to undermine that trust can amount to theft)
- money which is taken under a strict legal obligation (solicitors taking money for mortgages) and that obligation is not upheld (someone puts the money elsewhere to where the instruction was to put it) is theft.
- money going into a collection tin belongs to the charity the moment it goes into the tin (and in turn belongs to the attorney general). Removing it from the tin, even immediately after it goes in is theft
- a cheque is owned by the person it is made out to and thus cannot be stollen by them
- for theft to happen the goods have to belong to someone else AT THE TIME of the appropriation. If you go to a restaurant and have a meal and decide not to pay after eating, the meal is given to you already and the appropriation happens after it is given so it does not belling you the person you are taking from when you decide not to pay. The same goes with filling a car with petroleum and then not paying. This is MOWP not theft.
What is the moral vs legal obligation to restore property?
Where property is given mistakenly, the person who receives should restore this property if there is a legal obligation; if your employer mistakenly over pays you, the moment you dishonestly keep it is the moment you steal it as you should restore it. A mistake does not override that legal obligation.
However, if the obligation is not legally enforceable (a betting shop manager mistakenly paying out on the wrong horse) they cannot legally enforce the return of the winnings so it is more of a moral issue than a legal one.
What is the concept of intention to permanently deprive?
Any person who assumes a total ownership of something regardless of the rights of another, to dispose of it as they please.
This is not limited to just taking something away from someone permanently. It includes making the decision to dispose of something against another wishes by breaking it, rendering it valueless or depriving the person of some part of it. (Taking a football season ticket under the premises of using it for one game but then keeping it for one more game than agreed, thereby depriving another of that chance to use it for that game that they paid for)
The intention to Perkins rly deprive does not need to be the ONLY outcome but just AN outcome you intend could happen (blackmailing someone that if they don’t pay they will lose something permanently). Pawning someone else’s property is also covered here due, at the time you assume that right of ownership and give it away, you have a real outcome that you cannot recover that periphery and therefore could intentionally permanently deprive the owner of it.
A theft can have taken place, even where a person has had their property returned to them at a later time. As long as it was appropriated and returned with it have been rendered useless, valueless or at some loss to the person.
What is the offence of robbery?
Any person who…
- steals
- Immediately before hand or at the time of doing so
- uses force on ANY PERSON
- puts or seeks to put ANY PERSON
- in fear of being then and there subject to force
- For there to be robbery there must be theft. So if there is no dishonesty in taking the property there will be no robbery, even if the person knew that it was not lawful to use for e to get the property
- remember that force has to be used to steal as if the theft occurs immediately after as a consequence of opportunity created by the force (knocking someone out in a fight and then deciding to take what they have) it is not a robbery
- the amount of force used can be any amount and even a nudge can suffice. If the force is accidental or consequential to the stealing it will not count
- the force can be used against anyone in the process of the robbery (attacking an guard to get into the premises he is guarding to steal)
- the force need not be used DIRECTLY on the person but can be used against their clothing or effects to transfer the force into them (pulling a bag free from their hand). However pulling a cigarette free from someone’s fingers is not sufficient
- the fear of force must be to cause THE PERSON being threatened to fear for THEMSELVES. Causing someone to fear FOR ANOTHER is not enough. So if you threaten one person, that you will hurt another person, and that person does not know about the threat or does not fear force being used on them, it is not robbery. If the third person does fear for their safety, even if they are giving nothing up, it is a robbery.
What is the offence of blackmail?
Any person who…
- with A VIEW to making a gain for themselves or another or
- with intent to cause another loss
- makes an unwarranted demand
- with menace
- it is a defence if the person has reasonable grounds for making the demand and the use of menace is appropriate for reinforcing the demand
- it is immaterial what the nature of the act is and wether the demand involves something the person will do or another
- gain means not only to acquire something but also to prevent the loss of something you already have
- loss means to take something from someone but also to prevent them acquiring something
- gain and loss can both be temporary
- the gain and loss must be property; sexual favours do not count
- the act is complete when the demand is made and it does not matter if it brings about any result. If it involves sending a letter; when the letter is posted the offence is complete
- menaces means something of significant impact to the victim that they would be induced to do as asked. Their personal vulnerabilities will be a factor. However, it does not matter if the person is actually effected by the menace, just that it is significant enough to pass the threshold
- in the question of the use of menaces being “proper” it can never be held that serious threats of violence and harm could be proper, even if the defendant believes they are
What is the offence of a 9(1a) burglary?
Any person who…
- enters a building of part of a building
- as a trespasser
- with intent to
- steal
- commit GBH
- commit criminal damage
- entry must be “effective” in that it allows you to commit the offence and any amount of your body or an instrument (a hook to steal with or sticking a gun through a letter box) will suffice. However, using a hook to get keys purely to gain entry will not be enough as you are not taking the keys to steal, you are taking them to gain entry. Also, entry must be deliberate NOT ACCIDENTAL. So falling through a door by accident and deciding to steal then is not burglary.
- if you enter with an express or implied permission to do something or with an understanding of what the permission is based on; if you enter instead to commit a relevant offence, you invalidate that consent and become a trespasser
- a building is a dwelling with a degree of permanence, even if it is a temporary structure (a shipping container when lived in and wired to the main electricity with sufficient size and weight qualifies as would an unfinished house). A tent or a marquee will never be a building for burglary. Vehicles and vessels which are being lived in are buildings.
- when moving from a part of a building you are entitled to be in to a part you are not can determine if you are trespassing or not. Something as simple as moving behind a sales counter from the shop floor (you are allowed open access to ) to the part only for the staff can make you a trespasser and a burglar. A rope or a sign can denote one “part” of a building from another
What is the offence of a 9(1b) burglary?
Any person who…
- having entered as a trespasser
- any building or part of a building
- steals or attempts to steal
- inflicts GBH or attempts to inflict GBH
- it is not enough to become a trespasser after entering somewhere lawfully; you MUST HAVE ENTERED as a trespasser to commit a 9(1b) offence
