Theft s5

Question 1

What does s5(1) State?

Answer 1

S 5(1) provides​

‘Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest…’ ​

This is a wide definition and it means the legal owner does not have to be proven.

Question 2

Define possession or control?

Answer 2

Normally the owner has control, but this is not always the case. ​

For example:​

If you hire a car you have control and possession, but you are not the legal owner(called a propriety right). The car can be stolen from you and from the hire firm.​

Also this does not have to be legal control/possession, as if a person steals items that are already stolen goods – this is still theft (under s5).

Question 3

What happened in Turner (No2) 1971?

Answer 3

D’s car was repaired (new piston rings) at a garage. The mechanic parked the car on the road outside the garage. D surreptitiously took the car away neither telling the garage nor paying for the repairs. He argued he owned the car and therefore it did not belong to another. Meaning he could not be guilty of theft.​

HELD: D had stolen the car because at the time of the appropriation it was under the possession and control of the garage.

Question 4

What is 3 other situations where a person can be guilty of theft even if the property may not belong to another?

Answer 4

This is when a person is acting dishonestly and has made a gain or caused a loss.​

These are:​

When a trustee steals trust property s5 (2)​

When property is received under an obligation s5 (3)​

When property is received by another’s mistake s5 (4)​

​

Question 5

Definition of PROPERTY RECEIVED UNDER AN OBLIGATION S 5 (3)?

Answer 5

It means if something is given for a purpose not using it for that purpose can be theft.

Consider:​

I am collecting money for children in need. I ask students and teachers at school to make a donation for a sponsored walk. I raise £200. I then decide to spend the money on a new handbag instead!

Question 6

What happened in the case of Hall 1972?

Answer 6

D, a travel agent, received money from clients for air trips to America. None of the flights materialised and none of the money was refunded.​
C of A HELD:​

He was under no obligation to deal with the money in a particular way therefore could not be theft.​

NOTE: Could be sued for breach of contract

Question 7

In contrast what happened in KLINEBERG AND MARSDEN 1999?

Answer 7

Ds were involved in a timeshare fraud whereby intending purchasers of timeshares in a development in Lanzarote were relieved of their money but did not acquire any timeshares.​

HELD: As there was a specific understanding regarding the use of the money there was an obligation under s5(3)

Question 8

What happened in Wain 1995?

Answer 8

D helped raise and collect money for the Telethon Trust charity. He put the money in his personal account, with the Trust’s permission, but used it for his own purposes, thereby appropriating the money. ​

HELD: By putting the money in his own account, it was still the proceeds of those notes and coins. There was an obligation on D to keep sufficient money to pay the money to the charity. It did not have to be the actual notes and coins that he took.

Question 9

Less formal agreement: What happened in DAVIDGE V BUNNETT 1984?

Answer 9

Here, the defendant shared a flat with several other people who gave her cheques on the understanding that a communal gas bill would be paid with the proceeds. In fact, the defendant spent the proceeds on Christmas presents and left the flat without giving notice.​

HELD:​

The defendant was under a legal obligation to use the proceeds of the cheques in a particular way therefore there is an intention to create legal relations.

Question 10

Definition of property obtained by mistake?

Answer 10

Essentially it means that if you are given something by mistake, you have an obligation to make restoration.​

​For example:​

If you have an overpayment of wages you are obliged to pay it back, if you keep it, you could be liable for theft.

Question 11

What happened in A-G’s reference (No 1 of 1983) 1985?

Answer 11

D, a policewoman, received an overpayment of her salary, which the MPD paid by direct transfer to her bank account. ​She did not notify.

Held: S5(4) clearly provides for this situation and would be guilty if all other elements were present. ​

NOTE: Here, she was not guilty by a jury trial

Question 12

What happened in R V SHADROKH-CIGARI 1988?

Answer 12

A bank mistakenly credited £268,000 into a child’s account rather than £268. The defendant, the child’s guardian, took money out of the account with bank drafts signed by the child.​
​
Held:​

The defendant was liable for theft as under s.5(1) the bank retained an equitable interest in the drafts and under s.5(4) he was under a legal obligation to return the money received by mistake.

Question 13

What happened in R V GILKS 1972?

Answer 13

D had placed a bet on a horse and the bookmaker made a mistake and put it on the wrong horse. He then paid the D more then he should have. When D realised he decided to keep the money.​

As D was now in possession of the money he could only be guilty if s5(4) applied.​

​Held: The bet was not a legal obligation so he did not have to restore the mistake. Only legally enforceable mistakes had to be returned.

Question 14

In contrast: What happened in Moynes v Cooper 1956?

Answer 14

The Appellant workman received £7 in his pay packet more than was due to him. He did not open his pay packet until sometime later. He then kept the £7.​

​Held: This was held not to be theft because he was not dishonest at the time of the receiving the money.

Question 15

Abandonment: What happened in cketts v Basildon Magistrates [2010]?

Answer 15

Here the D took his case to a judicial review. He said the at the Magistrate had incorrectly applied s5 and that the property did not “belong to another” as it had been abandoned. ​

​In this case it hadn’t been abandoned but if it had been it would no belong to another under s5.

Question 16

Lost Property: What happened in Bridges v Hawkesworth 1851?

Answer 16

The claimant found package dropped in D shop. He handed it to D who opened it. Discovered it contained bank notes. The claimant left it with the D to return to the true owner if they returned to collect it. After 3 years no one claimed the money, the defendant couldn’t trace true owner. Claimant asked D to return money to him. The D refused so the claimant brought an action seeking the return of the money.

Held:

The claimant was entitled to the return of the money.

Question 17

Lost Property: What happened in Hannah v Peel?

Answer 17

The claimant- soldier-broach
Defendant- Not his
Claimant- police
12 months police phoned for D to claim it
D sold it
Claimant brought action against D for proceeds of sale since he was the one who found it.

The claimant was successful following Bridges v Hawkesworth. The brooch was not attached to nor beneath the surface of the land. The land owner was not aware of the existence of the brooch until it was brought to his attention by the police.

Question 18

Tresspasser s5 defintion?

Answer 18

If they are a trespasser on the land then the owner of the land is more entitled

Question 19

What happened in the case of Hibbert v McKiernan 1948?

Answer 19

Hibbert v McKiernan [1948] 2 KB 142

The defendant collected lost balls on a golf course owned by a golf club. He then sold the balls to golfers coming on to the ground. He did not have permission to be on the golf course or to collect the balls. The golf club had warned him on previous occasions not to do this and had made efforts to prevent his activities with the erection of high fences and informing the police of his activities. The police patrolled the area and caught him in the act. He was convicted of theft and appealed contending that the balls were abandoned and as a finder of the balls he had a better right to the balls than the golf club as landowner, since the balls were on the surface of the ground rather than underneath.

Held:
His conviction for theft was upheld. The golf club had exercised sufficient control demonstrating both an intention to control for possession and an intention to exclude others. As a trespasser, the defendant could not demonstrate a better right to the balls.

Question 20

What happened in the case of Rostron & Collinson, R v CA 2003?

Answer 20

The defendants (R and C) was charged and convicted with stealing golf balls from a stretch of water at a golf course.

Question 21

Unknown Property: What happened in woodman 1974?

Answer 21

A sold all the scrap metal on certain disused business premises to B, who removed most of it but left some as being too inaccessible to be worth the expense of removal. The defendant then entered the premises to take some of this scrap and was held to have been rightly convicted of its theft. A continued to control the site and his conduct in erecting fences and posting notices showed that he intended to exclude others from it.

Question 22

Items found underground: What happened in Waverly Borough Council v Fletcher [1995]?

Answer 22

Ian Fletcher, a metal detector enthusiast, went to Farnham Park owned by Waverly Borough Council to use his metal detector to see if he could find any items of interest. The park was open to the public for leisure and recreational use and Mr Fletcher was a lawful visitor to the park. He found a medieval gold brooch which was nine inches below the surface. He reported his findings and a coroners inquiry was set up to determine if the item was treasure trove. The item was found not to be treasure trove and returned to Mr Fletcher. The Council then brought an action against Mr Fletcher claiming ownership of the brooch.

Held:
The brooch belonged to the Council as owners of the land in which it was found.

Question 23

Items found underground: What happened in Elwes v Brigg Gas Company (1886) ?

Answer 23

A prehistoric boat was found by a tenant six feet below the surface of the land. The court held that the boat belonged to the land owner.