THEFT

Theft

Definition (AO1)

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

• Triable either way offence

• Maximum sentence is 7 years imprisonment

(Theft is not a continuing act, once all elements are present then the offence is complete and committed at that time, even though appropriation can occur multiple times.)

Theft

Source (AO3)

Theft Act 1968 s.1

Theft - AR

Definition (AO1)

• Appropriation

• Property

• Property belonging to another

Appropriation

Source (AO3)

Theft Act 1968 s.3

Appropriation

Definition (AO1)

Any assumption by a person of the rights of an owner, including:

• Where a person has come by property without stealing

• Any later assumption of the rights of an owner by keeping it or dealing with it

Appropriation is not theft without MR (dishonest & intention to permanently deprive)

(Can appropriate more than once)

Exam tip - State every appropriation in scenario

Assumption of rights of owner

Definition (AO1)

1. D need only assume 1 right of owner (not all) e.g. touch, lend, destroy, sell.

2. Does not require any physical contact / possession of the property to constitute appropriation.

3. Later assumption of rights of an owner

4. Appropriation with consent

5. Gift by owner

D need only assume 1 right of owner

Case (AO3)

(R v Morris)

D switched price labels in a supermarket. Then paid lower price than he should have. Seen as appropriation and the point of switching the price labels was where the theft occurred.

Does not require any physical contact / possession

Case (AO3)

(R v Pitham & Hehl)

V in prison, and D sold V’s furniture. - Appropriating right to sell

(Corcoran v Anderton)

D caused V’s handbag to fall to ground - Appropriating right to damage property

Later assumption of rights of an owner

Definition (AO1)

Where D’s initial appropriation of property is not dishonest or he lacks an intention to permanently deprive, there will be no theft at that point

BUT

Where D later assumes rights of owner dishonestly and with IPD this will amount to theft at the later point

Appropriation with consent

Definition (AO1)

Appropriation can be present where there’s consent, if that consent has been obtained with deception

Appropriation with consent

Case (AO3)

(R v Gomez)

D supplied goods with manager’s consent - Fraudulently obtained using stolen cheques.

Resolved conflict between (R v Lawrence) Appropriation with consent & (R v Morris) Appropriation only occurs without consent.

Gift by Owner

Rule (AO1)

Appropriation can occur where D receives a valid gift from O even when there was no deception

But theft only occurs when D is also dishonest

(The amount of money / value of gift does not change AR but may make dishonesty more likely)

Gift by Owner

Case (AO3)

(R v Hinks)

Carer received £60,000 gift from elderly person who was vulnerable. The conviction was upheld as the gift was deemed to have been made without proper understanding, indicating a lack of consent from the elderly person.

Innocent purchasers

Rule (AO1)

Where D sells stolen property to innocent purchaser for value:

• If innocent purchaser subsequently discovers goods are stolen, the keeping or dealing with the property is not an appropriation and so not theft.

Same rule does not apply to someone who did not purchase the stolen property. Decision to keep knowing it has been stolen would amount to appropriation.

Property

Source (AO3)

Theft Act 1968 s.4

Property

Definition (AO1)

P must specify exact property which is subject to theft as charged and only certain property may be stolen

Property which can be stolen

Rule (AO1)

• Money - Coins/notes

• All personal property - possessions

• Real property - Land

• Things in action - Debts

• Other tangible money - Patents

Property - Land

Definition (AO1)

Land generally cannot be stolen. Can only be stolen in limited circumstances stated in s.4(2):

• By person not in possession (non tenant) of land

• By Severing anynthing forming part of land

-By tenant in possession:

• By appropriation of any fixture / structure let to him

Property - Land

Source (AO3)

Theft Act 1968 s.4(2)

Property - Wild plants

Definition (AO1)

Mushrooms, flowers, fruit, foliage, growing wild on land are generally not property and so cannot be stolen.

Unless they are picked for sale / reward, they will amount to property.

Property - Wild animals

Definition (AO1)

Wild creatures (untamed and not kept in captivity) are not property.

Unless they have been reduced to possession by another. i.e. taken from a trap.

(Poaching is not theft but is seen as trespassing)

Property - Wild plants and animals

Source (AO3)

Theft Act 1968 s.4(3)

Property - Things in action

Definition (AO1)

Property that is owed / in transition - A right that can be legally enforced

i.e. money that you deposit in the banked, the bank then owes you that amount of money.

Property - Things in action

Case (AO3)

(R v Kohn)

D was accountant who had to write cheques for a company to pay off its debts. D used cheques for his own personal debts. G of stealing a thing in action

Property - Intangible

Definition (AO1)

Property without physical existence i.e. copyright, trademark, or intellectual property (patents)

Property - Intangible

Case (AO3)

(A-G for Hong Kong v Chan Nai-Keung)

Company had licence to export textiles known as ‘export quota’.

If the company did not use all of its quota, it could sell its licence for the remaining amount to another company. D sold it to himself in another company for too low a price and was G of stealing intangible property.

Property - Confidential information

Rule (AO1)

Does not amount to intangible property and cannot be stolen

Property - Confidential information

Case (AO3)

(Oxford v Moss)

D (civil engineering student) read the contents of an examination paper & then returned it before the exam.

NG of theft as did not amount to intangible property and so could not be stolen.

Property - Bodily Fluids

Rule (AO1)

Bodily fluids such as urine are property and so can be stolen

Property - Bodily Fluids

Case (AO3)

(R v Welsh)

D gave urine sample to police. When officer was out the room, D poured the sample down the drain. D was G of theft

Property Belonging to another

Source (AO3)

Theft Act 1968 s.5

Property Belonging to another

Definition (AO1)

Property belongs to any person who:

• Has possession or control of it.

• Has any proprietary right (i.e. is an owner in law of the property)

  OR

• Interest in it (i.e. is a beneficial owner)

The “Another” does not have to be specified, but is usually the owner, however, can be stolen from someone who is borrowing it.

BTA - Possession or control

Definition (AO1)

Generally D will steal property belonging to the legal owner. But theft may still occur if D steals from someone who has possession or control of the property.

(Technically D can steal their own property from another person who has possession or control of it)

Other’s possession need not be lawful i.e. D can appropriate drugs from drug dealer

BTA - Possession or control

Case (AO3)

(R v Turner [No 2])

Theft by D of D’s own car from a garage. Garage had possession has D owed the garage money for repairs.

BTA - Propriety right or interest

Definition (AO1)

Having a right of ownership

BTA - Propriety right or interest

Case (AO3)

(R v Woodman)

Theft by D of remaining scrap metal which O had not taken yet as it was difficult to get to.

BTA - Propriety right or interest

Considerations (AO1)

1. Co-ownership

2. Lost / abandoned property

3. Property received by D under an obligation - for a particular purpose

4. Property received by D as a result of another’s mistake

BTA - Propriety right or interest - Co-ownership

Rule (AO1)

Where property jointly owned by 2 or more people:

• Each co-owner has proprietary right / interest

• Therefore, each co-owner can steal from each other

BTA - Propriety right or interest - Lost / abandoned property

Rule (AO1)

Lost Property - Remains property of O & can be stolen

Abandoned property - Does not belong to anybody and so cannot be stolen.

(Where D honestly but mistakenly believes property has been abandoned, there can be no theft because D will not be dishonest so no MR)

BTA - Propriety right or interest - Lost / abandoned property

Cases (AO3)

(R v Toleikis)

Clothes left outside house for charity collection - not abandoned

BTA - Propriety right or interest - Property Received by D under an obligation

Rule (AO1)

Where D receives property from another AND D is under an obligation to retain / deal with property in a particular way, that property / proceeds are treated as belonging to the other.

BTA - Propriety right or interest - Property Received by D under an obligation

Source (AO3)

Theft Act 1968 s.5(3)

BTA - Propriety right or interest - Property Received by D under an obligation

Case (AO3)

(Davidge v Bennett)

D spent money given by house mates to pay gas bill on his own Christmas presents. Obligation was clear & specified. D was G of theft

(R v Wain)

Charitable donations - D under obligation to transfer proceeds of notes / coins and belonged to another (the donors)

(R v Hall)

D (travel agent) received customer’s deposits in their general banking with no obligation to use it in a particular way. Therefore money paid did not belong to customer and not theft (just a breach of contract).

BTA - Propriety right or interest - Property Received by D as a result of another’s mistake

Rule (AO1)

Where D receives property by another’s mistake and D is under (legal) obligation to restore (return) property. The property is treated as property of person entitled to restoration (i.e the one who made the mistake)

BTA - Propriety right or interest - Property Received by D as a result of another’s mistake

Source (AO3)

Theft Act 1968 s.5(4)

BTA - Propriety right or interest - Property Received by D as a result of another’s mistake

Case (AO3)

(Attorney-General’s Reference [No 1 of 1983])

D mistakenly overpaid salary by employer. Although receipt of salary would normally mean the money belonged to D, the mistake meant that the money belonged to another (the employer)

D’s dishonest failure to repay the money = theft

Theft MR

Definition (AO1)

At time of appropriation D must be:

• Dishonest

  &

• Intend to Permanently deprive the other of the property

P must prove beyond reasonable doubt that D was dishonest.

Dishonesty - Statutory test

Definition (AO1)

No statutory definition but Act does set out circumstances where D will not be dishonest:

(a) D believes he has a legal right to deprive the other of it

(b) D believes the other would have consented to the appropriation

(c) D believes that the other cannot be discovered by taking reasonable steps.

(This is a subjective assessment - belief must be honest but need not be reasonable)

Dishonesty - Belief must be honest but need not be reasonable

Case (AO3)

(R v Small)

D took car which he believed to be abandoned. Car was left for 2 weeks with key in ignition. Conviction was quashed as entirely subjective.

Dishonesty - Statutory test

Source (AO3)

Theft Act 1968 s.2

(1)

(a) legal right

(b) consented

(c) cannot be discovered

Dishonesty - D believes he has a legal right to deprive s.2(1)(a)

Rule (AO1)

• Where D appropriates property

  AND

• Honestly believes he has the legal right to deprive other

• Either on behalf of himself or another

• D is not dishonest

E.g. ‘Finders keepers’ - D honestly but incorrectly believes he has the right to keep.

Dishonesty - D believes he would have O’s consent to appropriation if O knew of the circumstances s.2 (1)(b)

Rule (AO1)

• Where D appropriates property

  AND

• D honestly believes that he would have O’s consent to the appropriation if O had known of circumstances

• D is not dishonest

Dishonesty - D believes O cannot be located s.2(1)(c)

Rule (AO1)

• Where D appropriates the property in the (honest) belief that O cannot be discovered by taking reasonable steps:

• Appropriation is not dishonest

If D later discovers O, then continuing appropriation by D is dishonest - Theft Act 1968 s.3 (1)

Dishonesty - Willingness to pay

Rule (AO1)

• Where D appropriates property belonging to O

• D may be dishonest even if he offers to pay for property

Willingness to pay is not an automatic defence

Dishonesty - Willingness to pay

Source (AO3)

Theft Act s.2(2)

Dishonesty - Common Law test

Definition (AO1)

Where Statutory Test Fails (D is not acting honestly under Act) then Common Law is required. Common Law is not required if statute can be applied first.

Dishonesty - Common Law test

Case (AO3)

(Ivey v Genting Casinos Ltd)

Civil case where D (Ivey) won £7.7million at a casino. Prize money was withheld as accused of cheating through a technique called edge sorting, which the casino claimed was dishonest. D was found guilty and resulted in the “Ivey Test”

Dishonesty - Ivey Test (Common Law)

Rules (AO1)

1. What did D honestly believe were the facts surrounding the appropriation

2. Was D’s conduct (based on his belief as to the facts):

   • Honest or Dishonest

   • According to the standards of ordinary / decent people

OBJECTIVE TEST - Whether D considered himself honest / dishonest is now irrelevant.

First Criminal Case using Ivey Test

Case (AO3)

(R v Barton & Booth)

Nursing Home case where the D’s groomed elderly and wealthy residents while the had capacity to make decisions about their affairs. Found Guilty

Intention to Permanently Deprive

Definition (AO1)

P must prove (at time of dishonest appropriation by D) that D intended to permanently deprive O of property.

(Generally, D will intend O to permanently lose the thing itself)

Intention to Permanently Deprive

Case (AO3)

(R v Velumyl)

D took money from company safe and claimed that he would return it in a week. Conviction Upheld as D was not going to return the exact notes and coins.

IPD - Where D does not intend to keep thing for himself
Definition (AO1)

Where D without meaning the other to permanently lose the thing itself, D is regarded as having IPD where:

1. D intends to treat the property as his own to dispose (deal with) of regardless of O’s rights

2. There is a borrowing / lending by D which amounts to outright taking or disposal. - “Must return still with virtue (value)” (Consider period and circumstances)

Prevents D relying on “technical defences”

IPD - D intends to treat the property as his own to dispose

Case (AO3)

(DPP v Lavender)

D removed council doors and moved to another council flat. Held that D had IPD has he treated the doors as his own

IPD - Borrowing/lending by D which amounts to outright taking or disposal.

Case (AO3)

(R v Lloyd)

D borrowed and copied a film before returning it. No IPD

IPD - Where D does not intend to keep thing for himself
Source (AO3)

Theft Act 1968 s.6(1)

IPD - Parting with property under conditions

Definition (AO1)

Where D parts with property under a condition for its return which he may not be able to perform (no guarantee of getting it back)

e.g. pawning another’s property

IPD - Parting with property under conditions

Source (AO3)

Theft Act s.6(2)

IPD - Conditional Intent

Definition (AO1)

Where D examines O’s property, only to see if there is anything worth stealing would not amount to an intention to permanently deprive of it

IPD - Conditional Intent

Case (AO3)

(R v Easom)

D rummaged through contents but nothing was taken as had no value. not G

Would be G of attempted theft today though.