Theft and related offences Flashcards
Lawrence [1972]
HL
AR:
1) Appropriation (s.3)
2) Of property (s.4)
3) Belonging to another (s.5)
MR:
1) Dishonesty (s.2) tells us what dishonesty isn’t but not what it is.
2) Intention permanently to deprive (s.6)
Applied thinking of 5 elements, approved by HL in Gomez and Hinks. HL
Smith [2011]
CA
property’ means that anything that is property in civil law can prima facie be stolen, even property that it is an offence to possess:
¥ Daring argument that where D took heroin from the victim in a robbery that this could not be an offence because it was illegal for the victim to possess it. CA pointed out that this was not the point, the question is whether heroin is property and it is. Court went further to say if it was not, then there would be public disorder as drug dealers would take drugs from one another. Therefore, as a matter of policy the courts should not depart from this.
Kohn (1979
Things in action/intangible property’ - so eg a debt such as that represented by a bank account or an overdraft facility can be stolen
D was accountant and had control of companies finances but he drew on their account for his personal use, he was convicted of appropriating the companies property. The company had an agreed overdraft, D continued to draw on the account until he was in the overdraft facility, this was capable of being a theft because there was a shows in action).
Low v Blease [1975
Electricity is not property
D made unlawful telephone call on landline, this was held not to be theft, he was convicted for theft because he did this on a house because he was trespassing. Trespassing and theft is burglary. However, electricity is not theft.. (But a specific crime under s13 for dishonestly ‘abstracting’ electrictity, but they do not commit theft (TA 1968 s.13 (‘abstracting’ electricity)).
Oxford v Moss (1978
Confidential information is not property
An engineering student got hold of a proof copy of an exam paper before he was due to take it, he read the questions and put it back. Held: there was no theft, he did not steal the information. Nor did he steal the piece of paper. There might be a clever argument that “you intend to deprive somebody in a situation where you render their property valueless”. J.C Smith argued this is the same as the paper as the value has gone out of it. Although the information is not property, it might have lend to a theft charge if it we changed our approach.
Kelly and Lindsay [1999
No ‘property’ in corpses, body parts and body fluids, other than in exceptional cases (typically where work has been done on the thing
artist and accomplish were convicted of theft from taking body parts from surgeons for him to use in his art projects. All the parts taken had been worked on, so they fell within the section. However, had they taken a fresh corpse, left for medical science, then this would not have been theft, this is quite objectionable. CA recognised that this was an old rule which needed to be changed, but it had to be parliament, not the courts. However, they were concerned because where no work may be essential evidence (an organ intending for transplant etc). Therefore, the civil law moved on this abit.
Cf Yearworth v N Bristol NHS Trust [2010]
Men who had cancer an elected to give sperm samples to be stored in case cancer treatment affected their fertility were said to own those samples against the hospital who destroyed them. CA preferred the view that the men owned the sperms
Uncertainty, do we move with the civil law like in Yearsworth v N Bristol NHS Trust or do we stick with Kelly and lindsay and say that it is for parliament?
Walker
[1984]
If no-one except D has a s.5(1) interest at the time of appropriation D does not steal.
Buyer returned property to dealer for repair, but dealer did nothing and when the buyer sued to get his money back, the dealer sold the recorder, he was charged with theft. Point was made that prosecution needs to prove that someone other than dealer had a protected interest. If buyer rescinded contract to get money back then the dealer was within his rights to sell it. Therefore, prosecution could not prove that the dealer was nothing other than the sole owner of the property. Prosecution had to prove that the party was not allowed to sell the item
NB there are two exceptions to this -see s.5(3) and (4), below
Williams v Phillips (1957)
It is unlikely that any property is ‘abandoned’ under s.5(1).
the refuge collectors sold some items which they picked up and it was held that the collectors had stolen these items against the local authority. They were dishonest because agreement that any items of value collected, the proceeds would be split so selling for their own game made them dishonest.;
Toleikis [2013]
CA
charity cases. Goods left for collection in bags provided by a charity, this was to raise funds for the NSPCC. Bags left out but defendant took them instead, he was charged with stealing the goods from the charity. CA upheld his conviction because statement on bag which said “goods became the property of charity when left out for collection”. However, it would have been a good alternative for prosecution to say while it is on the drive, the original owner had control of the bag, if nothing else. Therefore, a charge could have been reached by stealing the owner
Sullivan [2002]
(money found on corpse, court found did not belong to anyone) must be wrong, for example the deceased’s estate belongs to the state if no other interest can be asserted.
Woodman [1974]
CA
Property can ‘belong’ to someone when they do not know it exists.
D entered onto site belonging to V and took scrap metal from a disused factory site. V, the owner of the site, was unaware that the scrap metal was there, because he sold it all to a third party, but X decided not to take it all so left some behind, which D then took. But sit was protected with an erected a barbed wire fence and notices to discourage trespassers. Even if V no longer had any proprietary interest in the scrap, and X, by leaving it, had abandoned it: even if v does not have ownership of the mental, or the possession because he does not know it is there, he has control of it because the metal Is on the site. X and V are better entitled than D, problem with perhaps X because he said he did not want it anymore.
IT WAS IMPORTANT THAT THERE WAS AN ERECTION OF A FENCE AND NOTICES AGAINST TRESPASSING - showed that they were in control of the site.
Turner (No. 2) [1971]
CA
D took his car to a garage for repair. The car was locked by the repairer and left outside. D dishonestly because he intended not to pay for repairs., using a spare set of keys, drove the car away intending not to pay the bill. He was convicted for theft of his own car because it was under control of the garage when D appropriated it, therefore it belong to another for theft purposes.
However, this has been heavily criticised.
Judge told jury to disregard possibility that repairer had a lien on the car. If there had been a lien this would have meant that V had a proprietary right in the car, namely to keep the car until debt is paid.
Meredith [1973]
where D was held entitled to take back his impounded car. Inconsistent case. If Turner is right then because Meredith took the car from the police car when they had control over it, this also must have been theft if he did it dishonestly so Meredith cannot stand against Turner. But Turner is a surprising decision which sets the criminal law against the civil law.
Bonner [1970]
A co-owner of property can steal shared property from another owner
AG’s Reference (No 2 of 1982) [1984]
Directors can steal from their own company
A-G’s Ref (No 1 of 1985)
D kept a pub upon which he was only suppose to sell the brewery’s beer. However, he sold his own beer as well and kept the profit from these sales. CA recognised that there had been a secret profit by the defendant, but that even if he held that profit on trust, it should not be theft from the brewery. This seems problematic because if he held it on trust then it belonged to the beneficial. Therefore, there was a proprietary interest. However, this interest was one which was not recognised when the original theft act was past. Therefore, they were worried that something became criminal because the civil law had moved on and discovered proprietary interests. They were worried that things should not become criminal by process of civil law development. However, this is the inevitable result. The only people who are caught by it are people skating on thin ice, D must of known that he cannot sell his own bear. Held: not regarded as theft
Re Holmes [2005]
later than A-G ref (No 1 of 1985)
) proceeds of an automatic transfer of funds which occurred between banks as a result of D’s fraud was regarded as held by him on trust for the victim of fraud and therefore, belonging to the victim under s5(2).
A-G’s Ref (No 1 of 1985)
vs
Re Holmes [2005]
?
We cannot distinguish these two cases, apart from in Holmes it is easier to identify a specific sum that the defendant stole. But this probably is not good enough as a distinction. CA in Holmes said that D’s conduct was the type that any ordinary person would regard as theft. This might deal with the fair warning argument.
s.4 Fraud Act 2006 offence
There might be alternative charges which are easier to prove, this you do not have to prove that property belongs to another.
Chase Mahattan principle
property transferred by mistake, the principle behind Chase Mahattan was that the person did not mean to transfer the property so maintains an equitable interest in the property,
Shadrokh-Cigari [1988]
an American bank, intended to deposit the sum of £286 in an account of a child resident in England. They mistakenly deposited £286,000 instead. The child’s guardian took advantage of the error and moved the funds to his account. Court held: bank retained an equitable interest so the guardian could steal it as against the bank, even though this was new property law
Webster [2006]
CA
Solider, X was mistakenly given two campaign medals instead of one, he gave the duplicate to D who sold it onto the internet for profit, D was convicted of stealing the medal from the secretary of state whose office mistakenly sent out a medal. Under this principle the secretary of state retained an equitable propriety interest in the medal.
R v Hall [1972]
D commits no theft if no other person has a s.5(1) or (2) interest when he appropriates. 2 exceptions:
1) s.5(3) –cases where D receives property from/on account of another, V and D is under a (legal) obligation to retain and deal with it or its proceeds in a particular way.
travel agent, took deposits from customers which he paid into his general trading account, he failed to provide holidays, but prosecution for theft of deposits failed because there was no understanding that this money would be used in a specific way, it was just an advance.
Wain [1995]
D commits no theft if no other person has a s.5(1) or (2) interest when he appropriates. 2 exceptions:
1) s.5(3) –cases where D receives property from/on account of another, V and D is under a (legal) obligation to retain and deal with it or its proceeds in a particular way.
where D fundraised for a particular charity but he banked the money he raised and later spent the proceeds on himself. The CA in Wain said that there was a clear expectation that D was under an obligation to retain, if not the actual notes or coins he collected at least the proceeds, an earmarked fund of what he made for the charity. Even though the charity allowed him to put their money into his account, the sum given to the charity would still in law be the proceeds and still belong to the charity as against V.
A-G’s Ref (No 1 of 1983) [1984]
s.5(4) – laws attempt to deal with Chase Manhattan cases, if D gets property by another’s mistake and D is under a (legal) obligation to make restoration of it, its proceeds or its value. It is regarded as belonging to the person entitled.
Reversing Moynes v Coopper
policewoman who was paid by employer directly into her account, they paid £74 too much in respect of overtime, she did nothing although she had noticed that she had been paid too much. She was prosecuted for theft, she was not convicted. But CA considered that under s5(4) the intentional keeping of an overpayment could be theft provided that all the elements of theft were there (dishonesty, intent to deprive etc). But this puts you under a duty, you cannot ignore it. B s5(4) there is a duty on the innocent to do something about it. You might get a jury who sympathises with you or you might not: too broad a duty?
