Theft

Question 1

Theft - definition and statutory reference

Answer 1

s 1(1) Theft Act 1968: ‘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

Theft - actus reus

Answer 2

• Appropriation (s 3 TA 1968)
• Property (s 4 TA 1968)
• Belonging to another (s 5 TA 1968)

Question 3

Theft - mens rea

Answer 3

• Dishonestly (s 2 TA 1968)

- Intention to permanently deprive (s 6 TA 1968)

Question 4

Theft - coincidence

Answer 4

All of the elements must exist simultaneously. Can use continuing act theory.

Question 5

Theft - actus reus: appropriation

Answer 5

s 3(1) TA 1968: ‘Any assumption by a person of the rights of an owner amounts to an appropriation’

R v Morris - Defendant took items from a shelf in a self service shop. He removed the correct price labels and replaced them with labels taken from lower-priced goods, and then at checkout paid this lower price. His appeal against conviction was dismissed. It was the owner’s right to label his goods, so when Morris swapped them, this was appropriation. Important points:

(1) The assumption of any one of the rights of the owner amounts to an appropriation
(2) Even if D does not intend by the act of appropriation to deprive the owner permanently of his property, D may be guilty of theft.

Question 6

Theft - actus reus: Consent and appropriation

Answer 6

R v Gomez - Gomez was the assistant manager at an electrical store, and he allowed his co-accused to purchase electrical goods from the shop using two stolen building society cheques. Gomez argued that he could not be guilty of theft since the shop manager had authorised the transactions. Gomez was convicted - there could still be an appropriation where property has passed with the owner’s consent.

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

Theft - actus reus: appropriation; Theft of gifts

Answer 7

R v Hinks - The defendant became friendly with a 53 year old man of limited intelligence. Every day she took him to his building society and he withdrew the maximum daily amount of £300. She influenced, persuaded or coerced him into giving her this money. She was charged with theft and appealed saying that it was a valid gift.

Appeal dismissed and court held: (a) the state of mind of the donor is irrelevant to appropriation, (b) therefore appropriation could take place with or without the consent of the owner; and (c) therefore a person could be guilty of stealing a valid inter vivos gift.

Question 8

Theft - actus reus: a later appropriation

Answer 8

• All elements of theft must exist simultaneously.
• There are likely to be occasions when the defendant does not have the mens rea when first assuming an owner’s right.
• In such circumstances where the mens rea is formed later, it will be necessary to apply s 3(1) TA 1968:
• ‘Any assumption by a person of the rights of the 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.’

Question 9

Theft - actus reus: appropriation; the innocent purchaser

Answer 9

• s 3(2) TA 1968 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.
• mala fides (bad faith) precludes this protection.
• R v Adams: The defendant purchased goods not knowing they were stolen. The trial court convicted him of theft based on s 3(1) later appropriation as he kept the goods after finding out they were stolen. His conviction was quashed as he had a defence under s 3(2).

Question 10

Theft - actus reus: property

Answer 10

TA 1968, s 4(1): ‘Property’ includes money and all other property, real or personal, including things in action and other intangible property. Generally, all property may be stolen, although there are certain exceptions in relation to land (s 4(2)), things growing wild (s 4(3)) and wild creatures (s 4(4)).

Question 11

Theft - actus reus: property exceptions - Land

Answer 11

In general land cannot be stolen. However, a person can be guilty of theft if:

• s 4(2)(a) - D is authorised to sell land and sells more than they are meant to;
• s 4(2)(b) - D is a trespasser or invited guest and removes something from the land e.g. a fence or plant;
• s 4(2)(c) - D is a tenant and removes or sells without removing, something fixed on the land e.g. a greenhouse

Question 12

Theft - actus reus: property exceptions - Wild plants

Answer 12

s 4(3)

• D will not be guilty of theft if they pick plants growing in the wild: mushrooms, flowers, fruit and/or foliage.
• D can however be guilty of theft if the purpose of picking from the wild plant is a reward, to sell, or for another commercial purpose, or if D uproots or cuts part of the wild plant, or if D picks cultivated plants.
• For the purposes of this subsection “mushroom” includes any fungus, and “plant” includes any shrub or tree.

Question 13

Theft - actus reus: property exceptions - Wild animals

Answer 13

s 4(4)

• D will not be guilty of the theft of untamed animals, and/or animals not ordinarily kept in captivity.
• D can be guilty of theft of tamed animals (e.g. pets like a cat/dog), animals kept in captivity (e.g. in a zoo), and/or animals in the course of being reduced into possession (e.g. animals that have been trapped)

Question 14

Theft - actus reus: property, examples of property that CAN be stolen

Answer 14

• Money - notes, coins, including other currencies
• Real property; land in certain circumstances
• Personal property - e.g. a coat/ring/car/water/gas
• Intangible property e.g. things in action (a right to sue/recover), company shares, trademarks, patents, copyright, a debt, a credit in a bank account, forged cheques, cheques drawn on accounts in credit or those drawn on accounts within the agreed overdraft limit
• Unlawful or illegal items e.g. Class A drugs (Smith, Plummer and Haines)

Question 15

Theft - actus reus: property, examples of property that CANNOT be stolen

Answer 15

• Wild plants and animals
• Electricity (Low v Blease)
• Corpses and body parts except those which have been taken into another’s possession or control, e.g. corpses in hospitals, blood given to a blood bank, corpses or body parts kept for scientific or teaching purposes (Kelly and Lindsay)
• Confidential information does not fall within the definition of intangible property (Oxford v Moss)
• Services such as a train journey
• Cheques drawn on accounts over the agreed overdraft limit (as the bank is not obligated to honour the cheque)

Question 16

Theft - actus reus: belonging to another

Answer 16

s 5(1) TA 1968: ‘Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest…’

Question 17

Theft - actus reus: belonging to another - when is property abandoned?

Answer 17

• Property can cease to belong to another if it has been abandoned. However, courts do not readily find that property has been abandoned.
• Williams v Phillips - Householders do not abandon goods that are put in their domestic waste.
• Property will not be abandoned just because the owner has stopped looking for it.
• Hibbert v McKiernan - Lost golf balls had not been abandoned by their owners. Abandonment will depend on whether the owner wants the property or wants it to go to another party, or does not mind what happens to it.

Question 18

Theft - actus reus: belonging to another - Possession or control

Answer 18

Property can belong to persons who have possession or control, not just over the specified property, but over the land upon which it was found. This can be so even if the owner of the land is unaware of its existence.

R v Woodman - Because the factory owners had taken steps to exclude trespassers, there was evidence that they were in control of the factory and therefore had control of scrap metal which had been left inside the factory, even though they did not know about it.

Parker v British Airways - Defendant found a gold bracelet in a BA executive lounge. Question was whether BA had possession/control of it. Court decided it not, because it had not shown an intention to exercise control over the building or the things in it. They could have demonstrated this by putting up a sign.

Question 19

Theft - actus reus: belonging to another - Can you steal your own property?

Answer 19

R v Turner - Defendant took his car to a garage. The defendant took the car using his spare keys without paying the bill. He was convicted of theft and appealed. CoA held that the mechanic at the garage was in possession and control of the car, and therefore, the car did ‘belong to another.’

Question 20

Theft - actus reus: belonging to another - Property given to another for a particular purpose

Answer 20

s 5(3) TA 1968 can be used to cover cases where property is handed over for a particular purpose, and the title in that property passes to the accused before D has formed a dishonest intention to use it for an unauthorised purpose.

‘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.’

This will only operate where the accused is under a legal obligation to use the property for the purpose given. This is a matter of law which will be decided by the judge, having regard to civil law. Very often here there will be a trust which means that under s 5(1) the property will also belong to another, due to their equitable interest.

Question 21

Theft - actus reus: belonging to another - Property given to another for a particular purpose; when will a legal obligation be found?

Answer 21

R v Hall - Defendant, a travel agent, took money for flights. Instead of using the money to buy airline tickets, he put it into the business account and used it to pay off his creditors. s 5(3) did not apply because it was not established that the clients expected him to retain and deal with the money in a particular way, or that an obligation to so was undertaken by him. Although the clients expected tickets in return for their money, they did not expect their money to be kept separately, but to go towards general running of the business.

Davidge v Burnett - Defendant shared a flat with others and they all shared the costs of bills. The defendant was given cheques towards the bills. They cashed the cheques and spent the money on Christmas presents. She was convicted of theft because it was held she had a legal obligation to apply the proceeds of the cheques to the payment of the bills. Obligations can be imposed upon domestic/social arrangements

R v Breaks and Hogan - directors of an insurance brokerage company failed to keep funds given to them by clients separate from their private funds and the company account. The money was used for unauthorised purposes. CoA held s 5(3) had no automatic application. It was for the trial judge to decide on a case to case basis.

R v Klineberg and Marsden - Defendants sold timeshares to a development under construction in Lanzarote. Their assurances that the money would be safeguarded meant they were under a legal obligation to do so.

R v Wain - Defendant raised money in a telethon for a charity. He paid it into his own bank account rather than to charity. ‘When he took the money credited to that account and moved it over to his own bank account, it was still the proceeds of the notes and coins donated which he proceeded to use for his own purposes, thereby appropriating them.’

Question 22

Theft - actus reus: belonging to another - Property obtained by another’s mistake

Answer 22

• s 5(4) caters for the situation where title has passed to a defendant due to another’s mistake and allows property to belong to another for the purposes of the Act
• s 5(4) only requires the obligation, whether that is the case is a matter of law: ‘Where a person gets property by another’s mistake, and is under an obligation to make restoration…of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded…as belonging to the person entitled to restoration’
• Under the law of restitution, when someone is aware they have acquired property by mistake, they are usually under a legal obligation to restore it. Where money has been given by mistake, restitution is always available.
• AG’s Reference (No 1 of 1983) - The defendant was mistakenly overpaid. CoA held that although ownership of the money had passed to the defendant, from the moment she became aware that the mistake had been made, she was under a legal obligation to restore the money.
• s 5(4) notes that if there is an intention not to make restoration of the money, there is an intention to permanently deprive.

Question 23

Theft - actus reus: belonging to another - Property obtained by another’s mistake; alternative approach

Answer 23

• s 5(1) TA 1968 - property belongs to any person having in it any right or interest; this includes equitable interests.
• Chase Manhattan Bank v Israel-British Bank - a person who gives property by mistake retains an equitable interest in that property.
• R v Shadrockh-Cigari - Defendant was the legal guardian of his nephew. A bank mistakenly credited the child’s account with too much money. The defendant withdrew the majority of the money and was convicted of theft as the bank retained an equitable interest in the property under s 5(1).

Question 24

Theft - mens rea: dishonesty - the negative aspect

Answer 24

• s 2 TA 1968 specifies three situations in which an appropriation of property is not to be regarded as dishonest: If D appropriates property in the belief that:
• s 2(1)(a) - D has a right in law to deprive the other of the property;
• s 2(1)(b) - D would have the other’s consent if the person knew; or
• s 2(1)(c) - The person to whom the property belongs cannot be discovered by taking reasonable steps.
• Regarding s 2(1)(c), it is not necessary for D to take reasonable steps, they just need to believe that taking such steps will not enable the owner to be found.
• R v Robinson - the defendant’s beliefs are not required to be reasonably held, just genuinely held.

Question 25

Theft - mens rea: dishonesty - the positive aspect

Answer 25

For situations not covered by the TA 1968, s 2(1), it is necessary to turn to the Ivey v Genting Casinos common law test:

(i) What was the defendant’s knowledge and belief as to the facts?
(ii) Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people?

Question 26

Theft - mens rea: dishonesty - willingness to pay

Answer 26

• s 2(2) TA 1968 - A person can appropriate property dishonestly, despite being willing to pay for the property.
• This allows people to be convicted of theft when they take property that the owner does not wish to sell, intending to pay for that property.

Question 27

Theft - mens rea: timing of honesty

Answer 27

• The dishonest intent must be formed at the time when the goods belong to another.
• Edwards v Ddin - The general civil rule is that title in property passes at the time at which the parties intend it to pass. Ownership of property usually passes when it is paid for.
• Ownership of food passes when it is eaten (Corcoran v Whent), or possibly before it is eaten, e.g. when food is ordered and cooked in a restaurant.
• Ownership of petrol passes when it is put in a petrol tank.
• In the absence of mens rea from the outset, the appropriate charge for this type of offence would be making off without payment under s 3 TA 1978.
• In other cases where someone forms a dishonest intent after acquiring the property, s 3(1), s 5(3) and s 5(4) TA 1968 and the continuing act theory may help in making the defendant liable.

Question 28

Theft - mens rea: intention to permanently deprive

Answer 28

• no definition in TA 1968, shoult be given ordinary everyday meaning
• s 6(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 is 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.’
• s 6(1) should not be referred to where it is clear that the defendant does not intend the owner to lose their property permanently (R v Lloyd)

Question 29

Theft - mens rea: s 6(1) - intention to treat the thing as their own to dispose of regardless of the other’s rights

Answer 29

Ways in which this requirement can be satisfied:

• (1) The dictionary definition of ‘to dispose of’ - attempting to sell the owner their own property, using the owner’s property for bargaining (ransom cases), rendering the property useless
• (2) Intending to treat it in a manner which risks its loss
• (3) More than ‘dealing with’ is required
• R v Cahill - Dictionary definition of ‘to dispose of’ means ‘To deal with definitely: to get rid of, to get done with, finish. To make over by way of sale or bargain, to sell.’

Question 30

Theft - mens rea: s 6(1) - D attempts to sell the owner their own property

Answer 30

R v Scott - Scott stole a pair of curtains from a store intending to return them the following day, alleging that she had purchased them and claiming a refund. Conviction for theft upheld since she had treated the thing as her own to dispose of regardless of the other’s rights.

Question 31

Theft - mens rea: s 6(1) - ransom cases

Answer 31

R v Raphael - The defendants had taken the victims’ cars by force, demanding money in exchange for their return. This was covered by s 6(1).

R v Waters - W took a mobile phone from V and said he would not return it until she persuaded someone to come and talk to them. CoA said that if the condition as to an item’s return can be readily fulfilled in the near future, the jury may well conclude that an intention to permanently deprive was not present.

Question 32

Theft - mens rea: s 6(1) - rendering the property useless

Answer 32

DPP v J - Defendants had accosted a boy on his way home, one of them snatched the boy’s headphones and another snapped them in two. Once the headphones had been snapped, they were useless, and so the defendant had demonstrated an intention to treat the headphones as his own to dispose of them regardless of the owner’s rights.

Question 33

Theft - mens rea: s 6(1) Intending to treat it in a manner which risks loss

Answer 33

R v Fernandes - A solicitor transferred money out of his clients’ accounts and invested it in a risky money lending business. The money was lost. He claimed he did not have intention to permanently deprive as he intended to return the money. CoA: ‘We consider that section 6 may apply to a person in possession or control of another’s property who, dishonestly and for his own purpose, deals with that property in such a manner than he knows is risking its loss.’

Question 34

Theft - mens rea: s 6(1) more than ‘dealing with’ is required

Answer 34

R v Mitchell - The defendant was believed to be part of a gang who took a car by force in order to escape from the police. The car was found abandoned a short while later. CoA stated it is not enough to merely deal with the property as your own. On the facts, the court did not feel the car had been ‘got rid of, sold or bargained with’. Nor did the judges feel that the defendant had dealt with the car in a manner knowing that he was risking its loss.

R v Vinall - ‘What section 6(1) requires is a state of mind in the defendant which Parliament regards as the equivalent to an intention to permanently deprive, namely “his intention to treat the thing as his own to dispose of regardless of the other’s rights.”’. ‘it is, in our view, for the jury to decide upon the circumstances proved whether the defendant harboured the statutory intention.’

Question 35

Theft - mens rea: s 6(1) Borrowing

Answer 35

• Borrowing or lending of property can amount to intending to treat it as their own to dispose of regardless of the other’s rights. This is the case if the borrowing/lending is for a period and in circumstances making it equivalent to an outright taking/disposal.

R v Lloyd: Lloyd was a projectionist in a cinema. He borrowed films from the cinema, copied them on videotape, sold the videotapes, and then returned the original films. Convictions quashed: ‘a mere borrowing is never enough to constitute the necessary guilty mind, unless the intention is to return the “thing” in such a changed state that it can truly be said that all its goodness or virtue has gone’

Question 36

Intention to permanently deprive and TA 1968, s 6(2)

Answer 36

s 6(2) states that a person who parts with property under a condition as to its return, which they may not be able to perform, is deemed to be treating the property as their own to dispose of regardless of the other’s rights.

This covers cases where D pledges P’s property as security for a loan. At the time D may intend to redeem the loan and return the property to P, but P has parted with the property under a condition as to its return which D may not be able to fulfil.

Question 37

Intention to permanently deprive - Interchangeable property

Answer 37

R v Velumyl - The defendant had borrowed money from his employer’s safe. He said he intended to repay it on the following day after a debt had been repaid to him. CoA held that intending to return notes and coins of an equivalent value is not the same as intending to return the identical ones that were taken. Although such an intention may be relevant to the issue of dishonesty, it does not negate the intention to permanently deprive.