theft

introduction

introduction

• defined in S1 Theft Act 1968

• a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it

actus reus

appropriating property belonging to another

mens rea

dishonesty, with intention of permanently depriving the other of it

Theft Act 1968

• a person charged with theft is always charged with stealing ‘contrary to S1 of the Theft Act’

• S2 to S6 - definition sections explaining S1 = don’t create an offence themselves

• all elements of actus reus and mens rea must be satisfied to prove theft

actus reus of theft

• S3 - appropriation

• S4 - property

• S5 - belonging to another

Actus Reus of Theft: S3 -

Appropriation

• any assumption by a person of the rights of another

  = taking on the rights of the owner!

Appropriation - rights of the owner

• sell property

• change property

• consume property

• use property

• give property away

• destroy property

• hire property out

Appropriation - R v Atakpu and Abrahams

Appropriation occurs the first time a person assumes the rights of an owner

• hired cars in Germany/Belgium

• fake licenses and passports

• COA quashed convictions - appropriating was the obtaining of cars, outside of UK jurisdiction

Appropriation - R v Vinall

Does not have to be an appropriation of all rights of the owner, even one is enough

• two cyclists verbally abused - one punched and threats made

• defendant picked up bike and abandoned it

• either act could be deemed as appropriation

Appropriation - R v Pitham and Hehl

Selling items belonging to another can be deemed as appropriation

• sold furniture belonging to another in their house

• held to be appropriation despite never being deprived

Appropriation - R v Morris

Switching price labels in a supermarket appropriates the rights of the owner

• switched price labels in supermarket to make cheaper

• arrested before paying

• conviction upheld - assumed owners rights

Appropriation - R v Gomez

Removing items from supermarket shelves is appropriation - only theft if mens rea is present

• defendant was shop assistant - asked to supply goods for stolen cheques

• told manager cheque was approved

• bank blocked cheque & defendant arrested

• had owners consent and acted dishonestly

Appropriation - Corcoran v Anderton

Tugging on a bag is an appropriation of the rights of the owner

• two defendants knocked woman to ground and grabbed handbag

• appropriation had occurred with dishonest intent

Appropriation - Lawrence v Commissioner for Metropolitan Police

Lords held that appropriation can occur, even with intent from the owner

• student in taxi

• spoke limited English

• only 50p journey - driver claimed £1 not enough

• student opened wallet & driver took £6

• appropriation - had accepted dishonestly

Appropriation - R v Hinks

Lords held that appropriation can occur, even with intent from the owner

• defendants friend had limited intelligence - acting as main carer

• understood ownership and valid gifting

• withdrew £60,000 from building society account into D’s + TV set

• constant max. withdrawals - lost all savings

• still an appropriation

Appropriation - borrowed property

• can be appropriated if someone assumes the rights of the owner

• only theft if it is equivalent to outright taking/disposal of the property

• R v Lloyd - keeping the property until ‘the goodness, the virtue, the practice value…has gone out of the article’

Appropriation - S3(1) Theft Act 1968

• can also be appropriation where defendant acquires property without stealing it - but later decides to keep/deal with as the owner

• appropriation takes place at the point of ‘keeping’ or ‘dealing’

• e.g. hiring something, to then keep and sell it

Actus Reus of Theft: S4 -

Property

• property outlined in S4 Theft Act 1968 - ‘includes money and all other property including things in action and other intangible property’

Property - Money

• includes notes and coins

• unless someone gives back exact same notes and coins they have intention to permanently deprive a person of those particular ones

Property - Real Property

refers to anything fixed to land e.g. houses and buildings

• S4(1) - land can be stolen

• S4(2) - three particular circumstances

  • D is trustee/rep/authorised power of attorney with breach of trust

  • D does not possess property but appropriates any part by severing/causing it to be severed

  • tenant who appropriates whole/part of fixture

Property - Personal Property

• property other than land

• books, jewellery, clothes, cars, papers etc

includes - prohibited drugs = R v Smith (2011)

may include -

• body parts = R v Kelly and Lindsay (1998)

• hair = R v Herbert (1961)

• blood = R v Rothery (1976)

• urine = R v Welsh (1974)

• won’t include - corpses = R v Sharp (1857)

Personal Property - R v Smith

• Smith and others met drug dealer

• violent attack

• stole £50 of heroin

• possession of illegal property still qualifies as property

Personal Property - R v Sharp

• accused of entering burial grounds

• removed his mother

• claims this was done for funeral

• acted wrongfully

Personal Property - R v Kelly and Lindsay

• first defendant had access to Royal College of Surgeons

• used for drawings

• second defendant worked there

• removed body parts to use and buried them

• body parts had use so conviction upheld

Personal Property - R v Herbert

• accused of stealing woman’s lock of hair without consent

• hair became property once severed from body

Personal Property - R v Rothery

• supplied blood sample

• removed from police station

• samples deemed as property

Personal Property - R v Welsh

• accused of drink driving

• poured urine sample down the sink

• bodily fluids can be stolen

Property - Things in Action

personal property right which can be legally enforced…..

• patent right

• debt

• right arising under a trust

• right to overdraw an account

• a cheque

Property - Intangible Property

• no physical existence

• fish quota

• videogame data

• stocks and shares

Oxford v Moss (1979) - confidential information cannot be stolen

Intangible Property - Oxford v Moss

• borrowed copy of exam paper

• copied questions and returned

• no evidence of attempts to permanently deprive

Things that cannot be stolen - S4(3) and S4(4) Theft Act 1968

S4(3) - wild plants

• can steal cultivated plants e.g. from farmers orchards

• wild plants will not be theft unless for sale/profit/commercial purposes

S4(4) - wild animals

• cannot be stolen unless in captivity

• once animal/carcass is in someone’s possession = can be stolen

• + being shot/collected by hunter

also - offence to pick, uproot, or destroy certain wild plants - Wild and Countryside Act 1981

Property - Electricity (not on spec.)

• intangible property that cannot be stolen

• S11 Theft Act 1968 - dishonestly using electricity without authority or causing waste/diversion

Property - received by mistake

Attorney General’s Reference (No.1 of 1983)(1985)

• police woman overpaid

• didn’t notify employer but didn’t withdraw from account

• AG referred to COA - legal obligation to return

Actus Reus of Theft: S5 -

Belonging to Another

• outlined in S5 - belongs to any person have possession or control, or with proprietary rights/interest

• situations where person can have either possession or control

• e.g. car hires = possession and control during period of hire

  • car stolen in this time - thief charged with stealing car from hirer and hire company

  • can steal own property without legal possession of it

Belonging to Another - R v Turner

• took car back from garage

• no knowledge or permission for this

• garage had possession - technically belonged to them

Belonging to Another - abandoned property

• will not be guilty of theft if he/she can show that at time of appropriation property no longer belonged to anyone

Belonging to Another

Abandoned Property - R v Woodman

• site owners cleared ground

• fenced off

• defendant took scrap metal

• whether the owners had knowledge of thing irrelevant - still belonged to the owners

Belonging to Another

Abandoned Property - R v Rickets

• arrested for taking bags from outside charity shops

• intending to make gift to shop - donors retained ownership until received

Belonging to Another - where property does not belong to another

• property under an obligation - S5(3)

  • where defendant received property and is under obligation to retain/deal with certain way

• property received by mistake - S5(4)

  • money or property given by mistake and recipient realises, must return it

Property does not Belong to Another - Davidge v Bunnett

• flat share

• cheques given for bill payments

• cashed cheques for presents

• guilty of theft under obligation

Property does not Belong to Another - R v Webster

• army officer eligible for medal

• mistakenly sent two - gave one away

• sold on the internet

• as sending extra was a mistake = belonged to the Secretary of State

Mens Rea of Theft

Dishonesty, with the intention to permanently deprive the other of it

• S2 - dishonesty

• S6 - intention to permanently deprive

Mens Rea of Theft: S2 -

Dishonestly

• no actual definition of dishonesty, S2(1) states that it is immaterial whether the appropriation is made with a view to fain, or is made for the thief’s own benefit

• if all other elements are met - motive is irrelevant

• Theft Act does not define ‘dishonestly’, COA provides definition in R v Ghosh

• complicated and no universal definition - subjective test

Dishonesty - Ivey v Gentings (Civil)

• claimant won £7.7million in a casino - casino refused to pay

• used technique

• SC considered whether cheating implicitly caused dishonesty

• new test stating that only thing to be considered was whether the act itself was objectively dishonest according to standards of reasonable and honest people (obiter dicta)

• confirmed use in R v Barton and Booth

Dishonesty - R v Barton and Booth

• defendants ran nursing home

• accused of dishonestly exploiting residents

• included in wills, large cash gifts, excessive fees

• Held - courts should consider whether the act itself could be considered objectively dishonest by ordinary standards of reasonable + honest people

current dishonesty test

would the act be considered dishonest according to ordinary standards of reasonable and honest people?

S2(1) Theft Act 1968

• provides three situations where the defendant’s behaviour will not be considered dishonest

S2(1)(a)

• belief that there is the legal right to deprive the other of it

R v Robinson:

• owed £7 by woman and fight ensued

• dropped £5 which D took

• conviction quashed - honest belief that he was entitled to it

S2(1)(b)

• would have the others consent if the other was aware and knew the circumstances

Lawrence v MPC:

• victim spoke little English

• paying for taxi - D took more than entitled to

• conviction upheld - would not have consented with awareness of the appropriation of the circumstances

S2(1)(c)

• person whom property belongs to cannot be discovered with reasonable steps

R v Small:

• took car

• believed to be abandoned

• conviction quashed - reasonable person would not have known necessary steps

Dishonesty - S2(2)

• essentially provides that if the defendant is willing to pay for the property or leaves money to pay - can be deemed dishonest if this is not an honest amount!

Mens Rea of Theft: S6 -

With the Intention to Permanently Deprive

• intention usually simple matter for prosecution to prove

• S6 Theft Act 1968 - borrowing is not theft

  • unless for period & in circumstances making it equivalent to outright taking or disposal

Intention to Permanently Deprive - R v Lloyd

• cinema projectionist

• secretly borrowed to friend to make illegal copies

• conviction quashed - had not lost all practical value

Intention to Permanently Deprive - R v Velumyl

if intending to replace money after spending it - will be theft if this is not the exact notes

• borrowed from employers safe without permission

• claimed he always intended to repay

• convicted - permanently deprived owner of original notes

Intention to Permanently Deprive - further

• some situations unclear - S6 Theft Act 1968 tries to expand on the meaning

• COA ‘dispose of’ - ‘to deal with definitely….’

the following constitute intention to permanently deprive:

• taking cash & spending

• taking item & selling

• taking item & destroying it

Intention to Permanently Deprive - DPP v Lavender

ruled definition of ‘dispose of’ was too narrow - could include dealing with property

• defendant removed doors from council property

• installed doors in girlfriends council owned property

• intention to permanently deprive - treated doors as his own

Intention to Permanently Deprive - Conditional Intent

• examined to see if there is anything worth stealing - decides nothing is worth stealing and returns

  • conditional intent not enough to be guilty of theft

Conditional Intent - R v Easom

• picked up handbag

• searched contents and returned

• Held - no evidence of intention to permanently deprive = conditional intent is not enough