WS 6 - Theft

Question 1

STEP 2: State OFFENCE that D may have committed on the facts:

Answer 1

1) THEFT s.1(1) Theft Act 1968 (7 years)
2) FRAUD s.2 Fraud Act 2006 (10 years and unlimited fine)
3) MAKING OFF WITHOUT PAYMENT s.3(1) Theft Act 1978 (2 years)

Question 2

Actus reus of Theft?

Answer 2

1) Appropriation
2) Of Property
3) Belonging to another

Question 3

Mens rea of Theft?

Answer 3

1) Dishonest

2) Intention to Permanently Deprive

Question 4

Define appropriation

Answer 4

S.3(1) TA 1968: an assumption of the rights of an owner – including where a person acquires property without stealing it, but then later assumes the rights of an owner

Question 5

R v Morris

Answer 5

(Man switches price tags in supermarket - HoL said appropriation = unauthorised act + assuming any one right of owner)

Question 6

Lawrence v Met Police

Answer 6

(Taxi driver mugs off foreign student - HoL said consent irrelevant)

Question 7

Which case resolved conflict between Morris and Lawrence on authorisation in appropriation?

Answer 7

Conflict between Morris and Lawrence in DPP v Gomez: Shop assistant knows cheque from customer is fake but asks manager to authorise anyway. HoL decided:
• Agreed with Morris that only have to assume one right of owner
• Said consent of owner is irrelevant, and comments about consent in Morris were obiter
• THIS DECISION HAS ENORMOUS PRACTICAL EFFECT – ALMOST ANYTHING IS APPROPRIATION

Question 8

R v Hinks

Answer 8

HoL: acquisition of an indefeasible title to property is capable of amounting to an appropriation. D befriended a a man who was of limited intelligence. Man transferred £60k to D over some months. D charged with theft. Upheld. Decision criticised, how could he have appropriated when he was already the owner? Because had assumed one of the rights of an owner (DPP v Gomez)

Question 9

Under what circumstances is it not appropriation?

Answer 9

e) S.3(2) TA 1968: Not appropriation if you PURCHASE the goods (protects people who purchase goods they don’t know are stolen):
i) For value
ii) Acting in good faith

Question 10

R v Briggs

Answer 10

Appropriation must involve some contact with property (not sufficient for D to merely cause V to use property in a manner beneficial to D)

Question 11

R v Atakpu

Answer 11

Cannot steal property more than once (although appropriation can be continuous – whether it is instantaneous or continuous is a question of fact for the jury to decide)

Question 12

Initial definition of property and statutory provision?

Answer 12

a. s.4(1) TA 1968: money, real property personal property, thing in action

Question 13

R v Smith, Plummer and Haines 2011

Answer 13

list is virtually endless – R v Smith, Plummer and Haines 2011 – prohibited drugs unlawfully in the complainant’s possession

Question 14

When can you steal land?

Answer 14

i. Circumstances in which you can steal land are limited due to s.4(2). Only in following:
• Trustee appropriating land
• Severing land
• Tenant taking something fixed to land

Question 15

b. s.4(3) TA 1968

Answer 15

wild plants if picked for commercial purposes

Question 16

c. s.4(4) TA 1968

Answer 16

wild animals if tamed/ordinarily kept in captivity

Question 17

How did R v Chan-Man-Sin define things in action?

Answer 17

things in action = intangible property capable of being enforced legal action (e.g. IP, bank accounts, overdrafts)

Question 18

Facts of Chan-Man-Sin

Answer 18

Facts: D was a company accountant who forged company cheques which were used to take money out of company accounts and monies were paid into other accounts controlled by D. Convicted of theft. Said he hadn’t appropriated property. Privy Council: bank owed a debt to the company (credit balance of account) and this was a thing in action. Drawing cheques, had assumed rights of owner

Question 19

• R v Navvabi [1986]

Answer 19

do not commit theft from a bank if you overdraw on your own account without authority. BUT – would now be prosecuted under Fraud Act, and bank could take civil action

Question 20

What is NOT property?

Answer 20

e. Confidential information (Oxford v Moss [1979] – Goes into exam office and reads paper. The confidential information was not property for the purposes of TA 1968)
f. Electricity (Low Blease)

Question 21

Define belonging to another

Answer 21

a. s.5(1) TA 1968: Having possession of/control of/proprietary interest in the property

Question 22

Can the property be your own?

Answer 22

b. The property may in fact be your own (R v Turner [No. 2])

Question 23

What about where one person parts with property on understanding that the other person will deal with it in a particular way?

Answer 23

c. S.5(3) TA 1968 – where owner parts with his property to X on the understanding that X must deal with that property in a particular way, ownership of the property will remain with the person who hands it over

Question 24

DPP v Huskinson

Answer 24

Re s.5(3). must be under a legal obligation to deal in particular way. Housing benefit to LL case

Question 25

R v Hall

Answer 25

Travel agent receives money from clients paid into general business account. Did not book anything for them and no refund. D was under a contractual duty to buy tickets, but not obliged to use the money specifically given to him or its proceeds for that purpose. S.5(3) did not apply. Lord Edmund Davies said that would apply where there was a specific holiday fund and Treasurer misapplies fund or proceeds. OBLIGATION MUST RELATE TO THE SPECIFIC PROPERTY OR PROCEEDS

Question 26

Edwards v Ddin

Answer 26

Property must belong to another AT THE TIME of the dishonest appropriation

Question 27

Significance of Edwards v Ddin?

Answer 27

• With petrol and food, property passes at time when filled up/eaten. Property becomes irretrievably mixed with tank/stomach contents. Divisional Court in Edwards v Ddin held that the property had already passed when dishonest intention was formed and AR of belonging to another did not co-exist with MR element of theft

Question 28

Is abandoned property belong to another for the purposes of s.1(1) Theft?

Answer 28

Abandoned property does not ‘belong to another’ (unless they are still searching for it)

Question 29

When is the D not dishonest?

Answer 29

a. s.2(1) TA 1968: D is NOT dishonest if he believes (in each case subjective test):
i. had the LEGAL RIGHT to deprive the other; or
ii. the other would have CONSENTED; or
iii. the other could NOT BE REASONABLY FOUND (does not apply when property came to him as trustee or PR)

Question 30

Stages of assessing dishonesty?

Answer 30

1) Look at exclusions within s.2(1).

If D falls within these, he is not dishonest. If not, then

2) look at Ghosh test (objective and subjective)

Question 31

To whom does s.2(1)(c) not apply?

Answer 31

• s.2(1)(c) does not apply when property came to you as a PR or Trustee

Question 32

What if you subsequently realise owner can be found?

Answer 32

• If you subsequently realise the owner can be found, then you are guilty of theft

Question 33

R v Ghosh?

Answer 33

i. Was D’s behaviour dishonest by ordinary standards of reasonable and honest people? (objective)
ii. If so, did the D realise that his actions were dishonest according to those standards? (subjective)

Question 34

Ghosh test not always used. When should it not be used?

Answer 34

NB – IF DISHONESTY IS APPARENT ON THE FACTS, NO NEED TO USE THE GHOSH TEST!!

Question 35

Does a willingness to pay for property show D is not dishonest?

Answer 35

b. s.2(2) TA 1968: a willingness to pay for property is NOT an automatic defence to theft – question of fact for the jury to decide

Question 36

How would the jury normally define ‘intention to permanently deprive?’

Answer 36

(normally words given ordinary meaning [confirmed in R v Lloyd])

Question 37

Can there be an intention to permanently deprive where V only has a limited interest?

Answer 37

a. Where V has only a limited interest in the property (e.g. V is borrowing the property himself and someone takes intending to eventually give back to original owner)

Question 38

The D intends to replace the item appropriated. Does this mean he does not intend to permanently deprive?

Answer 38

Where D intends to replace item, even where replacement is identical (therefore applies to cash too, so if you take money from an employer intending to replace it, there is an intention to permanently deprive – R v Velumyl)

Question 39

What of the situation where someone takes a season ticket intending to use it then give it back at the end?

Answer 39

S.6(1) TA 1968: If D does NOT intend to permanently deprive, he may still be deemed to, if he treats item as his own to dispose of, regardless of the owner’s rights.

Question 40

Examples of cases where s.6(1) applies

Answer 40

i. R v Marshall: selling used but unexpired underground tickets
ii. Chan Man-sin v R: D’s argument was that he lacked intention to permanently deprive company of the balance of its account, believing bank would reimburse the company. Argument rejected under s.6(1) TA 1968
iii. R v Raphael: where D took items and then offered them back to the owner for the owner to buy

Question 41

where D took items and then offered them back to the owner for the owner to buy

Answer 41

R v Raphael

Question 42

Does s.6(1) TA 1968 include borrowing or lending the property?

Answer 42

i. For a period/in circumstances EQUIVALENT TO AN OUTRIGHT TAKING (i.e.) and,
ii. “Only if the goodness and virtue is gone” – R v Lloyd [1985]

Question 43

Facts of R v Lloyd

Answer 43

Facts: D was projectionist at cinema taking films for pirate copies and taking back to cinema. Court of Appeal held “a mere borrowing is never enough to constitute the necessary guilty mind unless the intention is to return the thing in such a changed state that it can be truly said that all its goodness and virtue is gone”

Question 44

S.6(2) TA 1968

Answer 44

Where someone parts with an item under condition as to its return which D may not be able to perform (e.g. pawning with intention to redeem in due course – see. P. 312)