W6 - Theft and Fraud Flashcards
s1(1) Theft Act 1968
AR and MR
AR= appropriate; property; belonging to another MR = dishonesty; intention to permanently deprive
Appropriation
= assumption by a person of the rights of an owner (s3(1))
- appropriation is a neutral act => possible to appropriate even when the other party consents (Gomez)
- appropriation may be a valid gift (Hinks)
- there must be at least some contact with the property for it to be an appropriation (Briggs)
- possible to make a later assumption by keeping the property or dealing with it as its owner (s3(1))
- appropriation cannot occur more than one, though it may be continuous (Atakpu)
- those who do not know the property was stolen (innocent purchasers) are not liable for theft under s2(1)
- transfer must be ‘for value’ aka paid for in some way (s2(1))
Property
s4(1) - Includes money, real property, personal property (Smith, Plummer and Haines), things in action (eg money in a bank account - Chan Man-Sin) and other intangible property eg patent
Property -
What cannot be stolen?
- Confidential information is not property (Oxford v Moss)
- electricity is not property (Low v Blease) - though can be charged separately under s13 TA
- picking wild flowers/fruits is not theft, unless picked for reward or sale (s4(3))
- wild animals cannot be stolen unless they are reduced, or being reduced, into possession by another at the time of appropriation (s4(4))
- land cannot be stolen (s4(2)) EXCEPT when a trustee/legal representative, where property has been severed from the land by D, when a tenant
Belonging to another
s5(1) - belonging to any person having possession or control of it, or having in it any proprietary right or interest
- your own property may therefore belong to another - eg having a lien over it (Turner No 2)
- property will not belong to another if it still belongs to the original owner at the time of the dishonest appropriation ie the AR and MR must coincide (Edwards v Ddin)
- when there’s an obligation to deal with property in a certain way (eg money raised for charity -Wain) for a particular purpose - property will only continue to belong to belong to another if D is under a legal obligation to use it for a particular purpose (s5(3))
- property that has been abandoned cannot be stolen as it does not belong to another - must have intended to relinquish interest totally and not give interest to anyone else BUT different if lost and merely given up looking for it- courts reluctant to say property is abandoned eg rubbish left out to be collected was not abandoned (Williams v Phillips), nor was clothing left outside a charity shop (Rickets)
Dishonesty -
Statutory test
s2(1) - D will not be dishonest if he honestly (subjective test - Robinson) believes that:
- he had a legal right to deprive the owner of it (Turner No 2)
- the owner would have consented had he known the circumstances
- the owner cannot be found by taking reasonable steps
BUT if this subsequently changes you may be liable for theft as you appropriate the property (by keeping it)
Paying for something, or being willing to, does not necessarily make D honest (s2(2))
Ultimately a question of fact for the jury (Feeley)
Dishonesty -
Common law test (only applied if statutory exceptions do not apply)
Ivey - D judged on his knowledge or belief as to the facts (subjective) by the standards of ordinary decent people (objective)
vs Ghosh (old law) - dishonest according to standards of ordinary people (objective), did D realise that people would consider this dishonest (subjective)
Intention to permanently deprive
- Words given usual meaning (aka wanting to keep something - Lloyd)
- of that specific thing (fact you intend to replace it is irrelevant to this part - Velumyl)
If not clear that he wanted to keep the property, consider:
- s6(1) - ‘treat the thing as his own to dispose of’ eg pawning off used tickets on the underground (Marshall); stealing items then selling them back to the original owner (Raphael); draining a company’s bank account in the hope that it will be reimbursed by the bank (Chan man-sin)
- borrowing can amount to an intention to permanently deprive if ‘all the goodness, virtue and practical value has gone’ (s6(1)) - Lloyd
- property is pawned, lent or gambled aka parted with property under a condition as to return which he may not be able to perform => counts under s6(2)
Fraud by false representation - s2 Fraud Act 2006
AR= make a representation; which is false MR= awareness that the representation is possibly true or misleading (=> recklessness); dishonesty (Ivey test - s2(1) exceptions do not apply); with intention (to make a gain or cause/expose anyone else to a risk of loss)
Offence committed as soon as false representation made - immaterial as to whether anyone is in fact misled by the representation
Representation
- may be express or implied, by words or conduct (s2(4) - DPP v Ray)
- about a fact, law, or state of mind (s2(3))
- representations can be made to machines and humans (s2(5) - Lambie)
Representation is false
- False = untrue or misleading (s2(2)(a)); Nizzar; Idress v DPP
- matter of fact for the jury
- Home Office = misleading means ‘less than wholly true and capable of an interpretation to the detriment of the victim’
- overcharging situation => if what D charges is unfair/untruthful in relation to work done then the representation is false (O’Leary)
Intention to make a gain/loss
- causal element; BY making the false representation did D intend to make the gain/loss (s5)
- means any property whether real or personal incl things in action etc
- gain includes a gain by keeping what one has, as well as a gain by getting what one does not have
- loss includes a loss by not getting what one might get, as well as a loss by parting with what one has
- fact that gain/loss would only be temporary is immaterial (s5(2)(b))
Making off without payment - s3(1) Theft Act 1978
AR= goods supplied/service done; D must make off from the spot where payment is required; without paying as required or expected MR= dishonest (guidance needed => Ivey); knowledge that payment on the spot was required or expected; intent to avoid payment permanently
Good supplied or service done
s3(3) - this is unless the goods/service are illegal, or payment is not legally enforceable
Making off from the spot where payment is required
- leaving the place at which payment is required (s3(2))- D must have left (no attempts for this offence)
- must leave whole restaurant/area for it to qualify - wide definition (McDavitt)
- vs narrow definition - moving past last till point or point of payment (Brooks) - both authority but ultimately a matter for the jury
- payment is not required if there has been any breach of contract
- incl payment at the time of collecting goods on which work has been done or in respect of which service has been provided - s3(2)
- V agreed to defer payment until later => no payment required when D actually makes off (Christopher James)
