Theft

Question 1

S1(1) Theft Act

Definition of Theft

Answer 1

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

5 Elements of Theft

Answer 2

AR

• Appropriation (TA 1968, s3)
• Property (TA 1968, s4)
• Belonging to another (TA 1968, s5)

MR

• Dishonesty (TA 1968, s2)
• With the intention to permanently deprive (TA 1968, s6)
• All elements must be proven and all must occur simultaneously.

Question 3

S3(1) Theft Act 1968

Appropriation

Theft

Answer 3

• Any assumption by a person of the rights of an owner amounts to an appropriation…’
• Therefore, no need to take something

Question 4

R v Morris [1983]

Appropriation

Theft

Answer 4

• Switching labels on a leg of pork
  
  • The assumption of any ONE of the rights of an owner amounts to an appropriation
  • D may be guilty of theft although he does not intend by the act of appropriation itself to deprive claimant permanently of the property

Question 5

R v Pitham and Hehl [1976]

Appropriation

Theft

Answer 5

Offering for sale property that isn’t yours is an assumption of owner’s rights.

Owner has right to sell his property – friend assumed position of owner and sold his furniture

Question 6

R v Gomez [1993]

Appropriation and Consent

Theft

Answer 6

• An act expressly or impliedly authorised by the owner of the goods can be appropriation notwithstanding that it was done with owner’s consent.
  
  • Gomez was Assistant Manager of electric goods shop. His friend had stolen 2 building society cheques which were worthless. Gomez agreed to sell goods to the value of the cheques and persuaded his manager that the cheques were valid. Gomez and his friend were charged with theft of the goods. Argued no appropriation as manager had consented.
• Lord Browne-Wilkinson ‘I regard the word ‘appropriation’ in isolation as being an objective description of the act done irrespective of the mental state of either the owner or the accused.’

Question 7

R v Hinks [2000]

Appropriation and Consent

Theft

Answer 7

• Hinks became friendly with a man of limited intelligence called Mr Dolphin (IQ between 70 and 80). Went to his building society and withdrew £300 which he gave to Karen Hinks. Happened day after day until he had transferred £60k. Convicted of theft. Argued could not guilty of theft because valid gift. HoL said:
  
  • appropriation is a neutral act and state of mind of donor is irrelevant to appropriation
  • therefore, appropriation can take place with or without the consent of the owner
  • therefore, a person can be guilty of stealing an inter vivos gift

Question 8

S3(1) Theft Act 1968

A Later Appropriation

Theft

Answer 8

• Any assumption by a person of the rights of an owner amounts to an appropriation and this includes where he has come by the property [innocently or not] without stealing it, any later assumption of a right to it by keeping or dealing with it as owner
• If you decide later on to keep something you shouldn’t or hadn’t intended to, it becomes theft

Question 9

R v Hale [1978]

A Continuing Appropriation

Theft

Answer 9

Act of appropriation need not be instantaneous

Question 10

R v Adams [1993]

A Continuing Appropriation

Theft

Answer 10

• S3(2) exempts a defendant from liability for theft where the defendant purchases goods in good faith and for value, then later discovers that the seller had no title to the property, but decides to keep it.
• Adams bought stolen motorcycle parts in good faith, not knowing they were stolen. When he found out they had been stolen, he couldn’t be guilty of theft by keeping them. Had he sold them, knowing he did not have the legal title, he would have been guilty of fraud.

Question 11

S4(1) Theft Act 1968

Property

What can be stolen?

Theft

Answer 11

• ‘Property includes money and all other property, real or personal including things in action and other intangible property’
• Money and other personal property – anything you can touch. (jewellery, animals, a sheet of paper, body parts)
• Things in action – something a person has a right to bring an action for e.g. money in a bank account
• Other intangible property e.g. a patent.

Question 12

Oxford v Moss [1979]

Property

What cannot be stolen?

Theft

Answer 12

• Confidential information cannot be stolen
  
  • Student got hold of an exam paper, looked at it and put it back. Charged with stealing confidential information. Held not property

Question 13

Low v Blease [1975]

Property

What cannot be stolen?

Theft

Answer 13

• Electricity cannot be stolen
  
  • Burglar made a telephone call and charged with stealing electricity; not property

Question 14

S4(2) Theft Act 1968

Land

Property

Theft

Answer 14

• A person cannot steal land, or things forming part of land and severed from it by him, except in the following cases
• Basic starting point - cannot steal land

Question 15

S4(2))b) Theft Act 1968

Land

Exceptions

Property

Theft

Answer 15

• 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.
  
  • E.g. stealing a rose bush - start with s4(2) – can’t steal land, but then exception under s4(2)(b)

Question 16

S4(3)Theft Act 1968

Land

Exceptions

Property

Theft

Answer 16

• A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose.

Question 17

S4(4)Theft Act 1968

Land

Exceptions

Property

Theft

Answer 17

• Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.’
  
  • E.g. If otter lives on x’s land and is being tamed can be stolen, being kept in captivity can be stolen, but otter can’t be stolen from x just because he lives on his land

Question 18

S5(1) Theft Act 1968

Belong to Another

Theft

Answer 18

• Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest’.
• Therefore, can steal from someone who is not the legal owner

Question 19

Williams v Phillips [1957]

Abandoned Property

Belonging to Another

Theft

Answer 19

• Just because original owner has no use for property, does not mean he has abandoned it
  
  • Householder who leaves rubbish in council dustbins has not abandoned it, but has donated it for disposal by the council

Question 20

Hibbert v McKiernan [1948]

Abandoned Property

Belonging to Another

Theft

Answer 20

• Just because people have stopped looking for it, doesn’t mean they have abandoned it
  
  • Golf balls in the rough

Question 21

S5(1) Theft Act 1968

Possession or Control

Belonging to Another

Theft

Answer 21

Property belongs to those having possession or control

Question 22

R v Woodman [1974]

Possession or Control

Belonging to Another

Theft

Answer 22

• Can have control of property even if don’t know it is there
  
  • Woodman took scrap metal, which has been left behind by a company. Company had taken steps to exclude trespassers. Therefore, deld to belong to company even though they didn’t know it was there. Woodman was charged with theft .

Question 23

Parker v British Airways Board [1982]

Possession or Control

Belonging to Another

Theft

Answer 23

• Where area is open to the public, have to demonstrate an intention to exercise control over property left in area

Question 24

R v Turner (no2) [1971]

Stealing One’s Own Property

Belonging to Another

Theft

Answer 24

• Possible to steal your own property
• Turner took car to garage for repairs, checked it was ready to collect, surreptitiously removed car from garage and left.
• CoA held garage had possession of car and so belonged to them
• He had appropriated the car, was dishonest, had intention to permanently deprive – therefore, theft.

Question 25

S5(3) Theft Act 1968

Property Given to Another for a Particular Purpose

Belonging to Another

Theft

Answer 25

• 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, the property or proceeds shall be regarded (as against him) as belonging to the other.
• Legal ownership has passed so doesn’t look like belongs to another
• Allows the prosecution to prove that the property still belongs to another for the purposes of the Act, without the need to use TA 1968, s5(1), which could involve more complex legal issues.
• A legal obligation to deal with property in a particular way is required
• Can apply in both commercial and domestic

Question 26

R v Clowes (No 2) [1994]

Property Given to Another for a Particular Purpose

Belonging to Another

Theft

Answer 26

• Investors gave Barlow Clowes money to buy government stock – money held to belong to original investors. When they invested the money elsewhere, held to be theft.
• Commercial example

Question 27

Davidge v Bunnett [1984]

Property Given to Another for a Particular Purpose

Belonging to Another

Theft

Answer 27

• Davidge shared a flat with 3 others – gave her money to pay the gas bill and she spent it on xmas presents – court held she was under a legal obligation to deal with the property in a certain way – as a result under s5(3) the property belonged to her and her flatmates for the purposes of theft. All other elements of theft were there so convicted.
• Domestic example

Question 28

R v Wain [1995]

Property or Proceeds

Belonging to Another

Theft

Answer 28

• Doesn’t have to be particular property, but can be the proceeds
  
  • Wain took part in a telethon organised by Yorkshire Television – was going to be distributed to certain charities – instructions to pay money into a separate bank account – Wain raised £2.8k – paid the money into his own bank account and then spent it. When he spent it, he committed theft as he was meant to hold the money on trust in a specific way. When he spent the money, it was, therefore, theft as belonged to the Telethon Trust

Question 29

Breaks v Duggan [1998]

When does legal obligation arise?

Belonging to Another

Theft

Answer 29

• s5(3) has no automatic application.
• Up to trial judge to decide, in each individual case, whether accused was under a legal obligation.

Question 30

R v Hall [1972]

Property given to another for a particular purpose

When does legal obligation arise?

Belonging to Another

Theft

Answer 30

• No legal obligation
  
  • Hall ran a travel agency – received money from clients for flights
  • Had not spent the money on flights when company went into administration – used it to pay off creditors
  • Convicted of theft on s5(3)
  • CoA overturned his conviction – concluded Hall was under a contractual obligation to provide flights but not to keep the client’s money separate until he did so
• Each case turned on its facts

Question 31

R v Klineberg and Marsden [1999]

Property given to another for a particular purpose

When does legal obligation arise?

Belonging to Another

Theft

Answer 31

• Legal obligation
  
  • Defendants marketing a time share firm in Lanzarote
  • Contracted with the purchasers that their money would be held in a special stakeholding trust company until apartments were ready
  • Paid into own bank account
  • Contract showed they were under legal obligation to deal with money in particular way so were guilty

Question 32

S5(4) Theft Act 1968

Property Obtained by Another’s Mistake

Theft

Answer 32

Property given by a mistake

+

An obligation to make restoration

=

S5(4) operates so the property is regarded as belonging to the person entitled to restoration.

Question 33

Moynes v Cooper [1956]

Property Obtained by Another’s Mistake

Theft

Answer 33

S5(4) was enacted to deal with problem in Moynes v Cooper

• Moynes was a labourer working for a contractor at an RAF station – requested an advance on pay which he was given
• Wages clerk paid him the full amount by mistake
• Decided to keep the money – charged with theft
• Court decided money belonged to him – clerk meant to give the money Moynes received and so he was the legal owner.
• Now he would be guilty under s5(4)

Question 34

A-G’s Ref (No 1 of 1983) [1985[

Property Obtained by Another’s Mistake

Theft

Answer 34

• Policewoman mistakenly listed as doing overtime for marriage of Prince/princess of Wales. In fact she had not worked, but decided to say nothing
• CoA held she was under legal obligation to restore money from the moment she realised she had been overpaid

Question 35

R v Shadrockh –Cigari [1988]

Property Obtained by Another’s Mistake

Alternative Method

Theft

Answer 35

• If a person gives property by mistake, they retain an equitable interest in that property
• Applied the civil case of:
• Chase Manhattan Bank v Israel-British Bank (London) Ltd [1981] Ch 105

Question 36

S2(1) Theft Act 1968

When a person is not dishonest

Dishonesty

Mens Rea

Theft

Answer 36

• A person’s appropriation of property belonging to another is not to be regarded as dishonest
• (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or ((e.g. if x picks up an umbrella he believes to be his, if he believes in ‘finders keepers’, if x takes y’s property because he owes money to z)
• (b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or (e.g. x cuts his finger and believes his flatmate would consent to him taking a plaster, x believing hotel would consent to him taking toiletries/towels)
• (c) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.) (e.g. x finds a £10 note on floor of club, may believe that no chance of returning to rightful owner)

Question 37

R v Robinson [1977]

When a person is not dishonest

Dishonesty

Mens Rea

Theft

Answer 37

the test for dishonesty is subjective

Question 38

Ivey v Genting Casinos [2017]

Test for Dishonesty

Dishonesty

Mens Rea

Theft

Answer 38

• 1. What was the defendant’s knowledge and belief as to the facts?
• 2. Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people?
• R v Pabon [2018] EWCA Crim 420 – “Gosh no longer representing the law in the light of Ivey”

Question 39

S2(2) Theft Act 1968

Willingness to Pay

Dishonesty

Mens Rea

Theft

Answer 39

• A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.
  
  • E.g. if someone can’t be bothered to go to the shop, takes milk of neighbor’s doorstop and leaves money, still dishonest.

Question 40

Edwards v Ddin [1976]

Willingness to Pay

Exceptions to Rule that ownership of property passes when it is paid for

Dishonesty

Mens Rea

Theft

Answer 40

• Ownership of petrol passes when it enters the client’s petrol bank
  
  • Therefore, if woman decides she is not going to pay for the petrol BEFORE she puts it in the tank, it is THEFT
  • If she decides later, it is not theft as the property no longer belongs to another

Question 41

Corcoran v Whent [1977]

Willingness to Pay

Exceptions to Rule that ownership of property passes when it is paid for

Dishonesty

Mens Rea

Theft

Answer 41

• Ownership of food passes when it is eaten. At that point the food ceases to be property.
• Therefore, if a decision not to pay is taken before eating it, will be theft
• If a decision not to pay it taken after eating, it is not theft

Question 42

R v Velumyl [1989]

Intention to Permanently Deprive

Mens Rea

Theft

Answer 42

• Defendant will permanently deprive x of their property if don’t return the particular property stolen (fungible items)
  
  • Defendant took over £1000 from petty cash box at work. Said no intention to permanently deprive as he intended to replace it.
  • Court held there was an intention to permanently deprive as had no intention to replace the exact notes and coins that he had taken

Question 43

R v Lloyd [1985]

Intention to Permanently Deprive

Mens Rea

Theft

Answer 43

• s6 should not be referred to where it is clear that defendant does intend the owner to lose his property permanently.

Question 44

S6(1) Theft Act 1968

Intention to Permanently Deprive

Mens Rea

Theft

Answer 44

• Extends the meaning to permanently deprive to cover certain circumstances when the defendant does not intend the owner to lose his property itself.

Question 45

R v Scott [1987]

Treat as Own

Intention to Permanently Deprive

Mens Rea

Theft

Answer 45

• S6(1) states that if the defendant has an intention to treat the property as his own, this will amount to an intention to permanently deprive.
• Scott took curtains from a department store and plan was to return the following day, say she didn’t like the colour and ask for a refund
  
  • Alleged no intention to permanently deprive, but court said covered by s6(1).
  • She had treated them as her own and her intention to sell to the shop was an intention to dispose of them regardless of the other’s rights.

Question 46

R v Cahill [1993]

To Dispose of regardless of other’s rights

Intention to Permanently Deprive

Mens Rea

Theft

Answer 46

• Use the OED definition of Disposal
• ‘To deal with definitely: to get rid of; to get done with, finish. To make over by way of sale or bargain, sell.’

Question 47

DPP v J [2002]

To Dispose of regardless of other’s rights

Intention to Permanently Deprive

Mens Rea

Theft

Answer 47

• Defendants accosted 14yr old boy on way from school; snatched his headphones and snapped them in 2
  
  • Judge said had to infer defendants intentions – by snapping headphones in two, had displayed an intention to treat the property as their own, regardless of the other’s rights.
  • Once headphones were snapped, could be said to be dealt with definitely, got rid of; finished
  • If something rendered useless, can be said to be disposed of

Question 48

R v Lloyd [1985]

Ransom Cases

To Dispose of regardless of other’s rights

Intention to Permanently Deprive

Mens Rea

Theft

Answer 48

• Dictionary definition of disposal applies to ransom cases - Returning property to owner by way of a fee – making over by way of bargain

Question 49

R v Raphael [2008]

Ransom Cases

To Dispose of regardless of other’s rights

Intention to Permanently Deprive

Mens Rea

Theft

Answer 49

• Defendants had taken victims cars by forced and telephoned them to say they could only have their cars back if they paid a sum of money. Covered by s6(1)

Question 50

R v Waters [2015]

Ransom Cases

To Dispose of regardless of other’s rights

Intention to Permanently Deprive

Mens Rea

Theft

Answer 50

• If the condition can easily be fulfilled and fulfilled in the near future, possible for jury to conclude no intention to permanently deprive
  
  • Teenagers in park. W took victims mobile unless persuaded a boy called Dale to come over and talk to them.

Question 51

R v Fernandes [1996]

Intending to treat in a manner which risks its loss

To Dispose of regardless of other’s rights

Intention to Permanently Deprive

Mens Rea

Theft

Answer 51

• “dealing with it in a manner that he knows is risking its loss’ is considered treating as his own to dispose of regardless of other’s rights
  
  • F was a solicitor who transferred money out of client’s accounts and invested in a risky money business.
  • Claimed no intention to permanently deprive as was looking to increase profits. Court disagreed

Question 52

R v Mitchell [2008]

More than Dealing

To Dispose of regardless of other’s rights

Intention to Permanently Deprive

Mens Rea

Theft

Answer 52

• More than ‘dealing with’ the property as your own is required
  
  • Mitchell had been convicted of robbery. In a gang in a Subaru car which crashed, and then stole a BMW, which they left with its hazard lights on not too far away. Mitchell’s blood found in BMW which is why he was the only one charged.
  • Considered whether had been an intention to permanently deprive the owner of the car.
  • No intention to dispose of the car and so no intention to permanently deprive so no theft and so no robbery.

Question 53

R v Lloyd

Borrowing

Intention to Permanently Deprive

Mens Rea

Theft

Answer 53

• Borrowing is equivalent to an outright taking or disposal if ALL the goodness, virtue and practical value has gone
  
  • Lloyd was chief projectionist in Odeon Cinema in Barking. Giving them to his friends who made pirate copies and then returned the films.
  • Films had lost SOME of their goodness, virtue and practical value, but could still be shown in cinema.

Borrowing so all the goodness virtue and practical value has gone =

Borrowing in circumstances making it equivalent to an outright taking or disposal (R v Lloyd) =

treating it as your own to dispose of regardless of the others rights (s6(1) =

having an intention to permanently deprive (s6(1))

Question 54

S6(2) Theft Act 1968

Pawning

Intention to Permanently Deprive

Mens Rea

Theft

Answer 54

• 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.
• Pawning can amount to permanently depriving another of their property