Theft and Criminal Damage Flashcards
authority, test
definition of theft
s 1 Theft Act 1968
s 1(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;
- “thief” and “steal” shall be construed accordingly.
s1(2)
- It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit.
s1(3)
- The five following sections of this Act shall have effect as regards the interpretation and operation of this section (and, except as otherwise provided by this Act, shall apply only for purposes of this section).
statutory and common law, test
definition of ‘dishonestly’
statute def: (only provides exceptions for dishonesty)
s 2 Theft Act 1968
S2(1)A person’s appropriation of property belonging to another is not to be regarded as dishonest
- s2(1)(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
- s2(1)(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
- s2(1)(c)(except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
- S2(2)A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.
COMMON LAW TEST FOR DISHONESTY, THEFT in cases not covered by S 2, and Test for dishonesty in fraud.
Ivey v Genting Casinos [2017]
- 1st: decide what individual knew and what the circumstances were
- 2nd: given that knowledge- would ordinary decent member of society say that what was done was dishonest?
If yes, the behaviour does not become honest because the individual in question has different or lower standards.
- use IVEY when the statute does not suffice- in the case D was genuinely convinced that what he had done was not cheating (ie theft); however he had in fact and in law cheated, thus breaching the implied term against cheating in his K with the casino
statute, common law, scope
‘Appropriates’ THEFT
S 3 Theft Act 1968
S3(1)
- 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.
s3(2)
- Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property
SCOPE
R v Hinks:
- Appropriation could only take place where the owner preserved some proprietary interest or other right to take up again or restore a proprietary interest in the relevant property.
- An indefeasible title to property acquired by means of taking a gift from a person who was easily influenced could constitute “appropriation’ under the Act (Theft Act)
- “Appropriation” for purposes of S3(1) Theft Act should not be interpreted too strictly and was an objective term relating to any adoption of an owner’s rights.
- Appropriation is not dependent on consent of the owner (Lawrence)
- Gift of property whereby the owner relinquished entire proprietary interest in the property transferred could constitute theft where the recipient had acted dishonestly (Gomez)
- No requirement for appropriation to be unlawful (requirement for prosecution to show dishonesty and intention to permanently deprive provided adequate protection against injustice) -further narrowing of def of appropriation could lead to acquittal of dishonest persons whose conduct merited conviction.
‘Property’ THEFT
S 4 Theft Act 1968
s 4(1)
- “Property” includes: money and all other property, real or personal, including things in action and other intangible property.
s4(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 is to say—
S 4(2)(a) - trustee, reresentative, authorised autorny selling land belonging to another in breach of confidence.
- 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
s4(2)(b) - severing part of land
- 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
s4(2)(c) - tenant, approporiating structure on land.
- 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.
For purposes of this subsection “land” does not include incorporeal hereditaments; “tenancy” means a tenancy for years or any less period and includes an agreement for such a tenancy, but a person who after the end of a tenancy remains in possession as statutory tenant or otherwise is to be treated as having possession under the tenancy, and “let” shall be construed accordingly.
S 4(3) - plants/wild things
- 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.
- For purposes of this subsection “mushroom” includes any fungus, and “plant” includes any shrub or tree.
S4(4) - animals/wild animals
- 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, unlesseither 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.
‘belonging to another’ THEFT
S 5 Theft Act 1968
s5(1) property belonging = posession, control, proprietary right or interest.
- property is regarded as belonging to any person having possession or control of it, or having any proprietary right or interest.
s5(2) - subject to trust, those owning, managing, enforcing trust,
- intention to defeat trust = intention to deprive
- Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right.
s5(3) - person recieving property with obligation to other to retain and deal with property or proceeds in certain way - **property or proceeds = belong to the other. **
- 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.
s5(4) where property is given by mistake, and is under obligation for restoration of property or proceeds or value, then the restoration owed is owned by person entitled to restoration.
intent not to make restoration = intent to deprive
- 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 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.
s5(5)
Property of a corporation sole shall be regarded as belonging to the corporation notwithstanding a vacancy in the corporation.
statute, test, scope.
Criminal Damages
S 1 Criminal Damages Act - Destroying or damaging property
TEST:
S1(1)
- A person who
- without lawful excuse
- destroys or damages
- any property
- belonging to another
- intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged
- shall be guilty of an offence.
S1(2) AGGRAVATED CRIMINAL DAMAGE (life of another in risk as effect of damage)
- A person who without lawful excuse destroys or damages any property, whether belonging to himself or another—
S1(2)(a)
- intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and
S1(2)(b)
- intendingby the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered;
shall be guilty of an offence.
S1(3) (arson)
- An offence committed under this section by destroying or damaging property by fire shall be charged as arson.
Threat to destroy or damage property
S2 Criminal Damage Act - Threat to destroy or damage property.
S2
- person
- without lawful excuse
- makes to another a threat
- intending that the other would fear it would be** carried out** -
2(a) to destroy or damage property belonging to that person or third person
2(b) destroy/damage his own property which he knows would endanger life of that or third person.
guilty of offence.
possessing anything with intent to destroy or damage property
S 3 Criminal Damage Act
S3
- person who has anything in custody or under their control with intention (without lawful excuse) to use or cause or permit another to use -
s3(a)
- to destroy/damage property belonging to some other person; OR
s3(b)
- destroy/damage his own or other user’s property in way which knowinlgy is likely to endanger life of another.
Punishment (CRIMINAL DAMAGE)
S 4 Criminal Damages Act
s4(1)
for arson (S1(3), or aggravated criminal damage S1(2) = liable to life imprisonment
s4(2)
any other offence liable to prison not exceeding 10 years.
‘Without lawful excuse’ (CRIMINAL DAMAGE)
S 5 Criminal Damages Act 1971
S5(1)
- applies to S (1) - s(3) but not aggraveted in any (either actual, threat, or posession)
S5(2)
- will have lawful excuse if:
S5(2)(a) (believed consent)
- at time of act believed that persons he believed to be entitled to consent did so consent, or would have consented to damage/destruction of property in circumstances.
s5(2)(b) (in need of protection)
- if destroy/damage (actual, threat or possession) in order to protect property belonging to him or another or right of interest in property which he believed to be vested in him or another AND
- at time of act believed
- (i) property, right or interest was in immediate need of protection AND
- (ii) means of protection adopted or proposed were reasonable in circumstances.
S5(3)
- immaterial wheter belief is justified if honestly helf.
s5(4)
- right of interest includes any right or privilege in or over land (grant, license or otherwise)
s5(5)
- section cannot cast doubt on any recognised defence of criminal charges.
INTERPRETATION OF CRIMINAL DAMAGES ACT 1971
S 10 Criminal Damages Act 1971
S10(1)
- property = tangible nature (real or personal) including money and
- (a) wild creatures tamed or ordinarily kept in captivity or in course of being reduced BUT
- (b) not mushrooms growing wild on any land or flowers.
S10(2)
- ‘belonging to any person’ =
- (a) having custody or control of it
- (b) having right or interest
- (c) having charge on it
S10(3)
- trust: owner treated as including person having right to enforce trust
S10(4)
- property of corporation sole treated as belonging to corporation even if vacancy in corp.
S10(5) COMPUTER
- modification of contents of CPU is NOT regarded as damaging CPU or storage medium UNLESS effect on CPU or storage impairs physical condition.
Making off without payment
S3 Theft Act 1978
making off without payment
S3(1)
- subject to (3) below,
- person who knowing that payment on the spot for goods/service is required/expected,
- dishonestly makes off w/out having paid as required/expected and
- with intent to avoid payment of amount due = guilty.
S3(2)
‘payment on spot’ includes payment at time of collecting goods/service
S3(3) EXCEPTION
does not apply where supply of goods or service in contrary to law, or not legally enforceable.
