Theft II

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  • Theft cont.
    • appropriate - do not need to do anything substantial - trivial acts suffice (writing name in book)
      • Morris [1983] switching price tag in supermarket to a lower price = appropriation even though was not an act of deprivation
        • did not even have to take it to the till - theft was complete as soon as act was done - mens rea was assuming the right of the shopkeeper to determine the price; to place tags on the article; right to touch the article for purpose of changing price tag
        • consistent with Eddy v Niman [1981] - D puts item in basket with intent to steal - found not to be appropriation as exercising rights of a shopper (to take items off shelf)
          • McHugh [1977] - motorist filled petrol tank at self-service station having formed intention to not pay - what he did was in right as consumer (act of filling his tank) - but this act was the way he wished to deprive = theft (treating petrol as his own
            • McHugh - D can appropriate property even by an act authorised by owner
              • Dobson [1989] CA - rogue, Rolex bought from D using worthless cheque, D claimed theft under insurance policy. Company would only pay out if D proved it was appropriated. Court held was an appropriation  and it was not prevented from being one by the fact the transaction was authorised by D
                • HL confirmed this in Gomez [1993]
                  • disproved Morris, overruled Fritschy, Skipp and Meech
                  • Gomez: assistant manager of electrical store, arrangement with rogue, tendered worthless cheque for goods, told manager 'as good as cash' + M authorised sale. D charged with theft
                    • HL held majority that by inducing owner to part with property D appropriated the property (cf. Griew (1995))
                      • extends scope of Morris so that almost all appropriation by deception = theft
                        • Prof Wilson - not good law - stops fair labelling (should have been fraud for Gomez)
                • followed precedent set by HL in Lawrence v MPC - cab driver who dishonestly took money from student had unlawfully appropriated money - HL ruled an appropriation can occur even where V consents to the taking
      • theft of proceeds of bank account takes place as early as presenting forged note even though presentation not legally/could not adversely affect account holder's interests (Chan Man-sin v AG for HK
      • as long as it shows D is assuming rights of owner
        • Fritschy [1985] - D took possession of krugerrants on understanding he would take to Switzerland for resale, held he did not appropriate them by taking possession with intention of keeping them for himself
          • Skipp [1975] - one does not commit the actus reus of theft unless one has done wrong
    • Property
      • corpses - buried corpse not property (Sharpe (1857) - body snatcher, conviction quashed
        • human body part can be property when a person has done work or skill on it - giving it attributes which differentiate it from a mere corpse (Doodeward v Spence [ 1908]) - mummified body
          • Kelly (1998) - dead body which is form of artefact or subjected to specialised process is subject of ownership (artist + Royal College of Surgeons even though given to him)
          • Welsh [1974] - body products, urine and blood, semen (Yearworth v North Bristol NHS Trust [2009] - chemo left sperm at hospital who negligently destroyed it) CA held donor retains property interest in sperm and probably DNA, can also widen to products left - i.e. blood/sperm bank
            • human hair - cutting off is assault (growing it does not = owned) BUT where hair falls off V's head or converted to wig then can be property (Hibbert v McKiernan [1948]
  • Ghosh test
    • 1982 test for dishonesty
      • consultant at hospital falsely claimed fees for operations he had not carried out
        • test represents current law (Cornelius [2012]) Feely + Ghosh both CA
          • reform? very subjective + disagreement about what a reasonable person is and what is dishonest by people's standards - everyone has their own standards for this
            • Sir John Smith recommends reform:    dishonesty as ‘knowing that the appropriation will or maybe detrimental to the interests of the owner in a significant practical way’ – entitle the acquittal of those who take a short-term loan from the till believing they can repay it without risk to the owner/difficulty
              • this would leave those who appropriate by good motive vulnerable to conviction
                • better proposal: Elliott - dispense with dishonesty except as provided by s.2(1) and state that o   : ‘no appropriation of property belonging to another which is not detrimental to the interests of the other in a significant practical way shall amount to theft of the property.’
                  • would suggest theft is not on D's state of mind but on the state of affairs
      • 2 part test
        • (1) is conduct of accused dishonest according to 'ordinary standards of reasonable and honest people' (Feely 1973) [if not then prosecution fails
        • (2) if dishonest by standards in (1) did the accused realise that what he was doing by those standards was dishonest? (Ghosh)
          • part 2 normally not given to jury unless evidence that D did not realise that others would see his conduct as dishonest (Price 1990)

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