THEFT AND FRAUD

Question 1

What are the 5 elements of the Theft Act 1968? Separate them into the actus resus and the mens rea.

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; and ‘theft’ and ‘steal’ shall be construed accordingly.

AR: appropriation, property and belonging to another
MR: dishonesty and intention to permanently deprive

Question 2

What does s3(1) of the Theft Act 1968 define appropriation as?

Answer 2

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.

An appropriation under the TA 1968 therefore is any assumption of the rights of an owner.

Question 3

R v Morris

Answer 3

• can’t switch the labels on two things in a supermarket

They ruled that:

• an act which adversely interferes with or usurps ‘any right of an owner’. It is an act which
  is unauthorised;
  (b) an assumption of any one right of an owner. In other words, to appropriate the defendant
  had to usurp only one of the many rights of an owner, not all of them.

Question 4

What is the conflict between Morris and Lawrence and which case resolved this conflict?

Answer 4

• Morris stated that an appropriation had to be an ‘unauthorised act’, thus something to which the owner had not consented.
• However, in Lawrence, the House of Lords said that the issue of whether or not the owner had consented was irrelevant - hence the taxi driver had appropriated the £6 even though the student had consented to it (or authorised it)
• DPP v Gomez solved this by saying that appropriation occurred even if the property passed with the consent or authorisation of the owner.

Question 5

R v Hinks

Answer 5

• the question here was whether a person can appropriate property belonging to another where the other person makes them a gift of property from
• a gift could be appropriation where the grantee had acted dishonestly.
• furthermore, the Court held that an act does not require to be unlawful under the general law to constitute an “appropriation.”
• there was conflict between what civil law and criminal law here
• in civil law if you are gifted something, it is yours

Question 6

What does ‘later assumptions of the rights of an owner’ mean under appropriation?

Answer 6

• someone who comes into possession of property legitimately but later does something which assumes the rights of an owner.
• e,g Himesh is given some beer to deliver to a local business. When he arrives, Himesh realises that he has been given too much and decides to drink the excess. Drinking the excess beer would be an appropriation

Question 7

Can you steal property more than once?

Answer 7

• no, once D has stolen property and appropriated it with full mens rea, a later assumption of rights by D will not amount to a another theft
• see R v Atakpu
• textbook e.g Joy picks up a necklace in a jewellers’ shop. Her intention is to take it without paying for it. All elements of theft seem to be established when she picks the necklace up. What happens if Billy walks into the shop and restrains the shopkeeper letting Joy makes her escape. Is Billy an accomplice to the theft, or is the theft already complete by then so that he cannot be charged?
• it will be a question of fact for the jury to decide as to when the appropriation is complete.

Question 8

What conditions must be met for genuine purchasers who act in goo faith but have unknowingly bought stolen goods?

Answer 8

Section 3(2) of TA 1968

a) the transfer must be ‘for value’, so payment must have been made. This need not necessarily be money, for example the person could have exchanged other goods for the property;

b) the purchaser must have acted ‘in good faith’ so they had no doubts or concerns about the transaction and its legality, and believed that the seller was acting entirely properly.
- e.g if a person bought the item for a price which they knew was
considerably less than its true value, in circumstances that raised doubts in their mind, it is certainly arguable they were not acting in ‘good faith’ when they bought it.

Question 9

The second part of the actus reus of theft is that there mut be an appropriation of PROPERTY.

Define property and give examples.

Answer 9

The definition of ‘property’ is found in s 4(1) of the 1968 Act:

• ‘property’ includes money and all other property, real or personal, including things in action and other intangible property.
• e.g includes
  1) money

2) real property
- land and things attached to it
- house
- garage

3) personal property
- any tangible object
- books
- car
- tv
- clothes/jewellery
- even prohibited drugs (R v Smith)

4) things in action
-e.g suing for breach of copyright
- an overdraft (if the
bank has given you an overdraft facility of £500, that is your property as you have a contractual right to enforce it. The bank is contractually obliged to give you that £500 or honour payments up to that amount)
- the credit balance of another’s account

5) other intangible property
- patent

Question 10

What does s4(2) TA 1968 say about stealing land?

Answer 10

• generally cannot be stolen
• exceptions include:
• 4(2)(a) one joint owner of property who then forges the other owner’s signature in order to sell the land they owned jointly.
• another would be the executor of an estate, where the person who had died had left their house to a named beneficiary. The executor holds the land on trust until such time as it is formally transferred to the beneficiary. If they transferred the property into their own
  name by forging documentation, they could be liable for theft of the land
• 4(2)(b) is where someone goes onto the land and chops down a tree or bush
• 4(2)(c) where a tenant takes a structure (greenhouse) or a fixture (shelving)

Question 11

What does s4(3) of the TA 1968 say about wild plants and flowers being stolen?

Answer 11

• 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
• ‘mushroom’ includes any fungus, and ‘plant’ includes
  any shrub or tree

Question 12

What does s4(4) of TA 1968 say about wild creatures being property?

Answer 12

-wild creatures, tamed or untamed, will be considered property
- but a person cannot steal an untamed wild creature not ordinarily kept under captivity or the carcass of any creature unless it has been reduced into possession by another person

Question 13

Oxford v Moss

Answer 13

• confidential information cannot be property and therefrom cannot be stolen

Question 14

The final part of the actus reus of theft is ‘belonging to another’.
What does this mean under s5(1) of the TA 1968?

Answer 14

• property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest)

Question 15

Companies

Question 16

Can you steal your own property?

Answer 16

• yes
• R v Turner
• took his car to B’s garage for repairs. B did the work and T then removed his car from the garage without paying for the repairs. T argued that he could not be guilty as he had appropriated his own property and so the actus reus of theft was not satisfied. Despite this, T was convicted

Question 17

When must the property belong to another for the peson to be guilty of theft?

Answer 17

• the moment D dishonestly appropriates the property.
• the fact that the property belonged to another one minute before the dishonest appropriation does not give rise to liability.
• if ownership, possession and control of the property had already passed to the defendant at the time of their dishonest appropriation, they are not guilty of theft
• Edwards v Ddin
• concluded that at the time the defendant was dishonest, when he decided not to pay, the property had already passed to him.
• the actus reus element of belonging to another did not co- exist with the mens rea elements of theft and so the defendant was not guilty of theft.

Question 18

s 5(3) of the TA 1968 was introduced to cover a situation where the owner (A) parts with their property to X on the understanding that X must deal with that property in a particular way.

State three authorities where s5(3) was applied.

Answer 18

2) R v Hall

3) R v Wain

Question 19

Can abandoned property that doesn’t belong to anybody be stolen?

Answer 19

• this depends entirely on whether it has actually been abandoned or the owner still has interest in the property
• note whether it has been abandoned or lost
• Williams v Phillips
• considered whether rubbish left outside a house for a local authority to collect could be regarded as abandoned property
• the court held that, where it was left outside for a specific purpose, here for the local authority to collect, it remained property belonging to the householder. Moreover, once the rubbish was placed into a local authority waste vehicle, it then became the property of the local authority.
• R (Ricketts) v Basildon Magistrates’ Court
• the claimant was caught on CCTV, in the early hours of the morning, taking clothing that had been left outside two charity shops. It was held that the property either still belonged to the unknown donors of the clothing or, alternatively, it would be inferred that in one of the cases the charity shop had taken possession of the clothing when it had been placed in its bin outside the shop.
• in both cases, it was agreed that the property had not been abandoned.

Question 20

What are the two parts of the mens rea of theft?

Answer 20

• D was dishonest
• they had intention to permanently deprive the owner of property

Question 21

Although there is no definition of dishonesty in the TA 1968, there are three conditions which prove that D was not dishonest. What are they?

Answer 21

(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

(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

(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.

• this test is wholly subjective
• the question is whether the individual D believe that one of these situations existed

Question 22

What does s2(2) state about willingness to pay in terms of dishonesty?

Answer 22

• a willingness to pay is not automatic proof of lack of dishonesty
• e.g Petra owns a valuable vase valued at £15,000. Hannah wants to buy it, but Petra refuses to sell it. Knowing Petra’s views, Hannah takes the vase, leaving £15,000 in payment
• this will likely be dishonest due to value of vase and her knowledge that Petra didn’t want to sell

Question 23

Why and how is the Ivey Test applied?

Answer 23

• this is used when s2(1) of the TA 1968 doesn’t help in distinguishing dishonesty
• the jury were first to ask themselves whether what was done was dishonest according to the ordinary standards of reasonable and honest people
• ## if the answer was no, the defendant was not guilty.

Question 24

Draw a flowchart showing how dishonesty is established.

Answer 24

Question 25

R v Velumyl

Answer 25

• if a person takes money from someone intending to repay it, there is an intention permanently to deprive

Question 26

What does s6 (1) of the TA 1968 say about intention to permanently deprive?

Answer 26

• 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.

Question 27

R v Marshall

Answer 27

• guilty of theft
• by acquiring and selling unexpired tickets, he intended to treat them as his own

Question 28

Can s6(1) apply to borrowing scenarios?

Answer 28

• a borrowing which is not equivalent to an outright taking cannot be theft, whatever economic losses flow to the victim.
• however, if all the virtue and goodness of the property had gone then it could be seen as intention to permanently deprive

Question 29

Draw a flowchart summarising intention permanently to deprive

Answer 29

Question 30

Draw a flowchart summarising theft.

Answer 30

Question 31

How does s1 of the Offences under the Fraud Act 2006 say fraud can be committed?

Answer 31

a) by making a false representation (s2)
b) by failing to disclose information (s3)
c) by abuse of position (s4)

Question 32

What are AR and MR of fraud by false representation

Answer 32

• AR consists of making a representation (conduct), and that representation must be false (circumstance)
• MR:
  1. be dishonest; and
  2. intend, by making the representation, to make a gain for themself or another, or to cause loss to another or to expose another to a risk of loss.
  3. falsity of the representation

Question 33

How do you determine if a representation is false?

Answer 33

Section 2(2) of the Act states that a representation is false if:
(a) it is untrue or misleading; and
(b) the person making it knows that it is, or might be, untrue or misleading.

Question 34

Give some authorities where there was a false representation.

Answer 34

• Idrees v DPP
• R v Nizzar
• R v O’Leary

Question 35

What does s2 (3) and (4) state about what ‘representation’ means?

Answer 35

any representation as to fact or law, including a representation as to the state of mind of—
(a) the person making the representation, or
(b) any other person

S2(4) says that representation can be expressed or implied

Question 36

DPP v Ray

Question 37

False representations and machines

Question 38

For the mens rea elements of the offence, it must be established that the defendant intends, by making the representation, to make a gain for themself or another, or to cause loss to another or to expose another to a risk of loss

What is the meaning of gain and loss under the Fraud Act?

Answer 38

Question 39

When is the offence of fraud by false representation committed?

Answer 39

• as soon as the false representation is made
• no need for any consequence to follow from representation
• nobody needs to be misled

Question 40

What is the AR and MR of fraud by failing to disclose information?

Answer 40

Question 41

What do the Explanatory Notes say about the definition of a ‘legal duty’?

Answer 41

• duties under oral contracts as well as written ones

E.g
- statute