WEEK 8 property offences- theft only Flashcards
What are the facts and significance in Morris 1984 regarding appropriation via a singular right of the owner?
)Assumption of a right in Morris 1984: any assumption of any right will amount to an appropriation, this extends the scope of the offence because Ds act, which might naturally be regarded as mere preparation or attempts because they involve the assumption of a single right, constitute the AR for the full offence.
Morris 1984= D switched labels on two articles, with the intent of buying the more expensive item under the price of the less expensive item. The right to label goods is one of the owner, so the label-switching amounted to an appropriation and theft. D had appropriated the goods as soon as he switched the labels; however, this would not amount to the full offence without MR and he had to also intend to deprive permanently, as Morris had done.
What does Gomez 1993 and Lawrence say about appropriation with consent?
Appropriation with consent in Gomez 1993: Gomez held that D could be guilty of appropriation if D did so with Vs consent in relation to the property. Gomez followed the decision in Lawrence, in which D was convicted of stealing from V, an Italian with little English. V showed D (taxi driver) a £1 note but D indicated that £1 was not enough and therefore took £1 and a £5 note from Vs open wallet. V had consented to this but lacked the information and language to withdraw consent or protest.
In Gomez 1993, D persuaded his manager to sell goods valued at £17,000 to his accomplice X, and to accept payment by 2 cheques, which were stolen and worthless. They should’ve been convicted of obtaining goods by deception (civil) but were charged with theft (criminal) before being acquitted. Their charges were reinstated by the HL. Lawrence prevailed here with regards to consent, in that the £17,000 worth of goods were appropriated with consent gained in a fraudulent manner.
Can there be theft where title is transferred and the property remains with the defendant ie no restitution available? what are the facts and significance of Hinks 2001 here?
Appropriation of indefeasibly title to property in Hinks 2001: In all other examples given, the proprietary right gained by D was voidable and the owner could get his property back, but this would still suffice for D to be guilty of theft. In contrast, where D gets a non-voidable right to the property, he has the right to retain the property. Seems impossible for a criminal court to hold that a transaction which resulted in D obtaining such a right amounted to a theft of the property by him. In Hinks 2001, D received a substantial gift from V, a person of a vulnerable mental state, over whom D had some influence. In each case, V was in sufficient mental state to give property. In Hinks, where D was dishonest towards a vulnerable person, he was convicted. As a result, a gift recipient may be guilty of theft, provided dishonestly can be proved.
- However, even though there is theft in a case like this, there may be no grounds for restitution and D remains owner under the civil law.
How can there be an appropriation by keeping or dealing, even when no further rights are being assumed by the defendant?
Appropriation by keeping or dealing:
- There can be an appropriation not only by assuming a right of an owner but also by keeping or dealing with property as owner. Dealing is not as broad as keeping, as D cannot be said to be dealing with property where he simply hasn’t used the property or done anything to it.
- Where D borrows Vs bike and then decides not to return it, he is guilty of theft where, after use of it for the week, he then keeps it in his garage hoping V will forget about it. This will of course be subject to his mens rea and an intention to permanently deprive someone of it.
- Can there be appropriation where D induces V to hand over property but has not come into physical contact with it at all?
- Backed up by Briggs
It has been held that appropriation connotes a physical act rather than a mere action triggering another to lose possession of their own property, eg in the case where D tricks V into sending money to another.. This would be a case of fraud instead.
Briggs 2004 facts and significance?
- D had bought a house in her own name on behalf of her family members, against their wishes. The letter of authority was signed by the family members but in the name of Briggs. Where a victim caused a payment to be made by deceptive conduct, there was no theft in accordance with s3(1) of theft act 1968. Appropriation required a physical act by D (open to a conviction of deception and fraud instead)
What does s4 of theft act say about what cannot be stolen property?
- You cannot steal land unless you are a trustee and sell it wrongly, when you appropriate any part of the land through severance, or appropriates under a tenancy.
- Taking wild mushrooms or taking wild creatures is nt theft unless used for a profit (mushrooms) or the animal has reduced it to possession.
What are things action?
Things in action= Must be property which can be appropriated, intangible property may be appropriated by assuming rights of an owner over it and is best illustrated in the case of bank accounts. The property A has when he has money in a bank is one in action, as there is no dedicated pile of money for which he could claim to be his, and yet he still has control over a set amount of money. D can appropriate Vs bank account by exercising any right which V has over it, such as making purchases.
Can electricity be stolen?
Electricity= The dishonest use, wasting or diverting electricity was a separate offence which was preserved by s13 of the Theft act 1968, and is separated owing to its nature. It therefore is not capable of appropriation, but someone can be convicted of wasting or diverting it, even if there is no benefit to be gained to themselves by doing so. The use of electricity therefore need not be enjoyed by D himself, just that it is consumed in a way which it would not have been consumed without the acts of D. The MR is dishonesty.
Oxford v Moss 1978 facts and significance (confidential information)
Oxford v moss 1978- student had obtained his upcoming exam paper, and meant to return the paper itself, but obviously he retained the intellectual property. He was convicted but this was eventually quashed because it was held that it could be dealt with under the civil law and through damages and injunctions, rather than the criminal law. Therefore confidential information was not to be considered as property.
Kelly 1999 body parts
Kelly was instructed to remove human body parts from her college, K took them home and used them to make casts. The judges found her guilty of theft and distinguished the common law idea that human body parts or corpses were not property- where they were of medical or scientific use, there were rights over the property. Appeal dismissed, body parts had lawful skill applied to them, and therefore they were of important use and could rightly be treated as property.
Smith 2011 stolen drugs
S was convicted for theft after stealing £50 worth of stolen heroin from a drug dealer. They appealed on the basis that s4 did not make an express provision that stolen property could be subject to theft. It was held that a lack of mention did not make such tangible property incapable of being stolen, and the conviction was upheld. The appropriation of these drugs was therefore sufficient.
What does s5 of theft act talk about?
Property belonging to another defined as ‘belonging to any persons having permission or control of it, or having in it any proprietary rights or interest.
How can possession and ownership be different?
Can an owner steal their own property?
- Ordinarily someone owns and possesses solely and simultaneously, but it could be that two partners own a business and one of them makes of with it in some way, he has still stolen from the other partner as he has excluded him from exercising his own rights to the property.
- There can be a theft of a possession, control and proprietary interest (ownership) simultaneously eg where V gives X a book to show Y, and D snatches it from Xs hand.
- Even an owner may steal his own property eg where D steals the book from V which he has lent to him (given possession to). D has a better proprietary claim than the victim but is still guilty of theft. (subject to dishonesty and MR). Turner illustrates this, as his car was security for the garage that was fixing it, until D returned and paid for the repairs. Instead he took the car back with the spare key
What case is authoritative for saying that your own property can be stolen?
- Turner (No 2)- D had left his car with V for repair, promising to pay for the repairs when he returned. D returned a few hours later and took the car with the spare key. Although he claimed he was entitled to do so, he was acting dishonestly and his conviction for stealing the car was affirmed. It is a hard case to justify because D can still be guilty of theft of his own property when he has the power to terminate Vs proprietary interest in his property. This case ignored the lien that D owed to V, in that V should remain in possession until D paid off the debt for his repairs.
How does treasure trove operate?
Treasure trove- The finder of treasure, D, who takes it for himself commits the AR of theft; he has appropriated property belonging to the crown. To prove theft from the crown, in addition to the usual mens rea, it has to be shown that D knew the crown was or might be the owner. May be easier to charged D with theft from the property owner where the property was found, as his dishonesty and knowledge regarding the land-owner may be easier to prove. Where property is found attached to land, the land-owner has a better claim than the finder, and when it is unattached the land owner has a better claim where he manifests intention to control the land and anything found on it.
What is the purpose of s5(3) of theft act regarding Ds obligation to retain property for a particular purpose?
- If D is under no legal obligation to retain and deal with THAT PARTICULAR property which has been delivered to him (eg a particular sum of money- those exact notes and coins), he can lawfully do what he likes with it, and it is incapable of being stolen, as are its proceeds. This is ordinarily the position where money is lent; it is not always easy to determine whether D was under an obligation to retain and deal or at liberty to dispose of the property entirely as he wished.
Property received for a particular purpose: If there is no legal obligation on D to retain and deal with the property in a particular way, it is his to do as he likes with, and it cannot be theft for him to do what he entitled to do, because he has been delivered or gifted the property. But where there is such an obligation, it seems right that the property should be capable being stolen by D. eg where D agrees to do certain work for £100 and fails to do the work or return the money, there is a breach of contract under the civil. But where there is no contract eg D is given money to buy materials, not returning the money or the materials would constitute theft.
What is the case of Hall authoritative for?
Hall 1973- D, a partner in a firm of travel agents, had received money from V and others as deposits for flights to the USA. The flights never happened and the deposits, paid into companies general trading account, were never returned. CA held that he had acted dishonestly in spending the deposits but quashed conviction for theft on the ground that D had not received the money to be spent in a particular way under obligation. This shows if D owes money to V and dishonestly disposes of his assets when the time comes for payment to V he had no funds from which to meet his debts, he will not be under an obligation for the purposes of s5(3). The crucial issue for similar cases is whether D was given money for use in a particular circumstance
What is the position of property got by mistake and which case is authoritative for this?
s5(4) of theft act
- D steals the excess of his wages if he dishonestly appropriates it, if there is a mistake which D and V are both unaware of, D cant be taken to have committed theft until he gets mens rea (dishonesty and intention to permanently deprive).
- A-Gs reference no 1 of 1983- Ds salary was paid into her bank account by direct debit and she was mistakenly overpaid by £74.74. The ‘money in the bank’ was hers to spend as she pleased but she was under an obligation to repay the equivalent value to her employers. Subject to her dishonesty, she was guilty of theft if she failed to return it.
- there must be legal obligation to return the property.
Ownerless property, property it is unlawful to possess, property of the deceased:
- A person cannot be guilty of taking property not owned by someone else at the time of appropriation.
- There is nothing to stop a theft charge where the property was held by V, someone who had no lawful right to it. A thief can steal from a thief (smith 2011). Equally, it does not matter whether the property is of a type that V was not lawfully permitted to possess.
- If someone takes from the deceased, they may be guilty of theft if they knew that it did or may belong to someone else, eg an heir or the crown. But if they honestly believed it was open to be taken by first recipient, then they may escape liability for theft.
Under what circumstances, as prescribed in s2 of theft act, is Ds appropriation not dishonest?
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 another person or 2)if he appropriates the property in the belief that he would have the others consent if the other knew of the appropriation and the circumstances of it, or 3) (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 to cannot be discovered by taking reasonable steps.
Is the test for dishonesty where D believes he has a legal right to appropriate another’s property subjective or objective?
- D IS NOT DISHONEST, WHETHER REASONABLY OR NOT, WHEN HE BELIEVES THAT HE HAS THE LEGAL RIGHT TO DO THE ACT WHICH IS ALLEGED TO CONSTITUTE AN APPROPRIATION OF THE PROPERTY OF ANOTHER. The prosecution must disprove any belief raised by the defence. It is now a jury question whether a moral belief will suffice for the defence, as the act only makes reference to a belief that he has a legal right to appropriate as he does
What is the test for D being dishonest as to his suspected consent of V?
-Subjective test
It is sufficient that Ds belief is mistaken as to property owner consenting to his appropriation, numerous appropriations of this type will arise daily, following Hinks, the issue of mistaken belief will be of particular importance where D claims he was acting with the owners consent.
What is the position where D is willing to appropriate and leave payment?
- Doubts have arisen whether it is dishonest to pay for something which the owner has not consented to selling. It may be that this suffices as evidence for a genuine (not necessarily reasonable) belief that the owner would have consented to it, and therefore would not be theft, but leaving money in place of the property does not negate Ds liability by default. There may be dishonesty or no dishonesty depending on the other circumstances ie the relationship between D and V and Vs perception of D and what had happened.
