Criminal Law: Property Offences

Final yr


Background to OAProperty

- Mainly codified in statute in Theft Act 1968, Theft Act 1978 and Fraud Act 2006. Theft accounts for 23% of all recorded crime in E+W. Complex but quite clear. Law well settled now. 

- Important element of theft in English law=dishonest appropriation of anothers property (per Criminal Law Revision Committee in 1966. Recommended 10 years max imprisonment, in 1991 reduced to 7 years. In practice, average sentence=4 months!

- Theft definition in Theft Act 1968 s1(1): a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.

- Lawrence: HoL's= defintion involves several elements, all of which must be proved b4 liability.

S2: dishonesty (MR)

S3: appropriation (AR) ANY rights of owner not ALL consent+title=irrelev.

S4: property (AR)

S5: belonging to another (AR)

S6: intention to perm deprive (MR)

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The AR elements of theft: s3

S3: appropriation: 

3(1): assumption of rights of an owner amounts to an appropriation, incl. where he has come by property (innocently or not) w/out stealing it, any later assumption of a right to it by keeping or dealing with it as owner. 

Morris 1984 (HoL's) Lord Roskill: Two D's took goods from shelf in supermarket and removed proper price labels and replaced w/cheaper labels. Pays discounted £ at checkout. One D arrested before and one D after paying. 'Assumption of THE rights=assumption of ALL the rights'. When switched labels, Ds had not assumed ALL rights=no appropriation=no theft. Prosecution argued THE rights=any of the rights=package of rights. When remove from shelf, acts with implied auth of supermarket=not an appropriation. Act of switching labels=not appropriation. Should have been obtaining property by deception really. Switching labels=interferred the right of the owner, intended to appropriate by some subsquent act AND intended to perm deprive by some subsquent act. The appropriation took place when there was an adverse interference with or usurpation of the rights of an owner which was at the point of switching the label, not at the point of taking the goods from the shelfDissent: rubbish not correct, do not have to assume THE rights, doesn't matter if goods in possession of owner at time, provided that the property WILL be deprived. 

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The AR elements of theft: s3

- Appropriation: DPP v Gomez [1993] HoL's, Lord Keith +LBW=majority: D+others buying elec equip from wholesaler, chose goods,put to side, with view of loading on lorry/deliverying to D's house. D had cheques to pay with. D wholly aware was offering worthless cheques so criminal! Acted dishonestly, fraud case clearly for obtaining property by deception but charge brought for theft. Criminal Law Revision Committee argued should be fraud not theft due to lack of appropriation, no assumption of rights of owner has rights inferred on D by V through deception. D's argued no approproriation per Morris (required adverse inference of the rights of an owner), crown argued Morris conflicts with Lawrence (an appropriation can occur notwithstanding the consent of the owner). HoL's majority: despite s3 act (appropriation), said assumption is ANY act done w/ref to item stolen, thus removing the limiting force of appropriation. Gomez followed Lawrence +criticised Lord Roskill in Morris. Lord Keithunnecessary for the decision of the case + as being incorrect, switching of price labels on the article is in itself an assumption of one of the rights of the owner, whether or not it is accompanied by some other act such as removing the article from the shelf and placing it in a basket or trolley. No one but the owner has the right to remove a price label from an article or to place a price label upon it. If anyone else does so, he does an act, as Lord Roskiil puts it, by way of adverse interference with or usurpation of that right. Theft=anything done with ref to goods even with consent of owner!!! R Heaton 2001 'deceiving w/out theiving' argues appropriation didnt occur when goods collected as ownership passed already and no appropriation of property belonging to another!


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The AR elements of theft: s3

- Appropriation: R v Hinks (2001) HoL's 3:2 (Lord Steyn lead judgement and Lord Hobhouse/Lord Hutton dissenting)Miss Hinks was friendly and main carer of 53 year old man, Dolphin= limited intelligence. Dolphin withdrew £60k from a/c into Hinks's a/c, Hinks charged w/theft. Dolphin described as naïve/trusting+ no idea of the value of his assets but capable of making a gift+understood ownership concept+capable of making the decision to divest himself of £, but unlikely that could make decision alone. D's argument=moneys were gift+title had passed to her+no theft. D appealed to the CoA (Rose LJ): she acquired a perfectly valid gift=no appropriation. CoA rejected:valid gift is irrelevant to the Q of appropriation+ gift may be evid. of an appropriation.Lord Steyn: starting point=words of Act as interpreted by Lawrence, Morris & Gomez: "appropriation"= neutral word comprehending "any assumption by a person of the rights of an owner."D argued Lawrence+Gomez reduced AR of theft to "vanishing point". D highlighted the conflict between civil+criminal law that would result from a broad interp. of word "appropriates", along w/"grotesque and absurd" results that would be allowed but Lord Steyn: in a practical world=disharmony between the 2+ disharmony=not necessarily the criminal law that is defective+declined to depart from rulings. Declined to accept:"appropriates" should be interpreted as if the word "unlawfully" preceded it. Lord Hobhouse + Hutton dissents: contrary to common sense that person who receives property as a gift could be said to be acting dishonestly, regardless of the morality. appropriation become wholly colourless+minimal triggering condition for theft, entire emphasis transferred to whether the conduct was dishonest=wholly objective!



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The AR elements of theft: s3

The time frame of appropriation:

Atakpu [1993] (Ward J): D as part of plan go to Germany to hire mercedes cars but take cars to England and changed 'rings' to cover up stolen. Theft in Germany, issue for England was whether changing the rings, something only an owner can do, were acts of theft. CoA said no: not theft in Eng, process effective already by time in Germany, technical defence got D off entirely, a huge mistake by the CoA: first act done in Eng could have been acts of appropriation. 

Hale (1978): D possessed necklance from house=thief. Challenged and used violence and left house w/out necklace. Use of violence=lost necklace. Violence as OAP to get away or violence in order to steal and then robbery. Court said dependent on facts but said 'was theft affected at time of violence? Robbery conviction secured as was robbery not to escape. 

Pitham (1976): D's friend in prison so stole furniture from his house whilst looking after his flat. D invited P in. D convicted of burglary as entered building as trespasser and then committed theft contrary to s9(1)(b), P convicted of handling stolen goods, argued handling was in the course of stealing and goods not stolen yet. Acts done in seconds but shows appropriation can happen instantly. D had assumed rights of the owner when he appropriated V's goods to himself. Two P's then took part undoubtedly. 

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S3: appropriation commentary

1. Stephen Shute & Jeremy Horder: 1993: 'Thieving or deceiving: whats the difference?': Gomez brought to head debate over relationship between theft offences + obtaining property by deception, substantial merger of two crimes, flys in the face of the Committee Report+overlooks the fact that a principled+workable disctinction can be drawn. Theft will now cover most instances of obtaining property by deception as consent doesnt negate appropriation. Support for Lawrence on pragmatic rather than moral grounds. Committee thought important to distinguish between theft+obtaining property by deception, helps contrast words appropriation and obtaining: theiving vs. deceiving. BUT, in Lawrence, did not think fit to refer to clear understanding of Committee that consent was key to distinguishing the two. Lord Lowry's dissent in Gomez criticises Lord Keith's decision to state that it would serve no useful purpose to construe the statute in light of the Committee's report given that Lawrence was a clear decision. Shute&Horder argue Lowry was right to make broad distinction between theft+deception. The label thief doesnt carry same moral labelling function as conman=practical significance: i.e. worthiness in cross-exam: conman=far more potent indication of lack of creditworthiness than evidence that accused is convicted thief. Conman=untruthfull as well as dishonest, thief is not untruthful, untruthfulness=far more damming. The nature of wrongdoing in theft has a seprate moral foundation from deception. Theft=appropriation=involuntary transfer=taking. Deception=voluntary=givings= Conceptual basis for distinction expressing moral distinction between the two crimes that has been obliterated by law in Gomez. 

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s3: appropriation commentary part B

2. Glazebrook 1991: thieft or swindler: who cares? Drafting of Theft Act 1968 so seriously defective that a thorough revision is urgently required. It leaves the answers to far too many Q's to be inferred or deduced, when they should be unambigious. Mor ethan 300 reported decisions attempting to interpret its provisions=sufficient evidence to condemn it to an early and unlamented death.

3. Civil law vs criminal lawc(pg 754)

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The AR elements of theft: s4

- Property: s4= v. wide+brings all forms of property within the purview of theft although there are restrictions imposed on the ambit of theft in relation to land, wild plants and wild creatures. The property appropriated may take an intangible form such as the appropriation by D of the credit balance in V‘s bank a/c. Appropriations of intangible property=special discussion. 

Intangible property: Bank accounts (contractual right of property):

Williams [2001]: D pays cheque, £ out from V into D a/c, banking system=form of appropriation?D charged w/theft not fraud, but not appropriated? Court=bank employees=agents of D only. Follow Williams not Briggs, even though Briggs more correct!

Kohn (1979): MD w/cheque book+auth'd sig for interest of comp, abuses auth+draws £=THEFT!

Chan Man-Sin [1998]: forged cheques no auth, bank paid out, prosecuted4theft,diff to Kohn as forgery=nullity? Bank no auth to pay out=D insisted put back in position by bank.

Briggs [2004]: didnt cite Williams, said theory of appropriation=v.artificially devised for conviction!

Confidential information:

Oxford v Moss: D=uni student, broke into office+photocopied exam paper=not theft, info not prop

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The AR elements of theft: s5

Belonging to another:

- (v.wide definition of this): belongs to persons other than owner: D2 can steal from D1! Common owner=person w/proprietary interest. Owner can steal own property! Inc. equitable/legal. 

Turner (No 2) [1971]: D took car to garage to be repaired, repairs nearly complete and car parked on road, D w/out telling garage or offering to pay drove away. Convicted of theft. Repair comp had proprietary interest, civil law=repair comp have lien until paid, judge didnt want to hear civil law, left to jury to decide if dishonest and ignore lien, but no prop dishonestly taken? its his! Wrong decision by trial and CoA. No justification for this case! 

Hinks [2000]: D owner of property,aware of facts that made her true owner in civil law! Guilty!

Wheatley v Commissioner of BVI [2006]: commended Hinks decision to disting civil and crim!

Bonner [1970]: 2 person partnership (D+V) , assets held in common, D=hishonest+drips funds from partnership, CoA affirmed can steal own property.

Woodman [1974]: scrap metal on prop, take off land+all scrap intended to use but abandons rest, notices telling not keep out, D gets access+collects useless scrap, convicted of theft, property belonged to V as had excluded people in notices even though no use for it himself!

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The AR elements of theft: s5

Parker v BA [1982]: bracelet picked up by D in lounge at Heathrow. Civil case w/crim implications. D hands to BA, try to find owner unsucces, D hears nothing+finders keepers=not theft!

Clowes (No 2) [1994] (Lord Goff): fraud, clowes brought gov bonds, Clowes=financial wiz +£ flows in, Clowes holds bonds, V's get returns on how well bonds doing. Withdraw investment=notice+3 months. Clowes company=offshore, ponzi scheme, rates of return paid out of receipts from investors+totally illegal. Clowes disappears. Charged w/theft. Contract/legal (not guilty of theft) or equitable (guilty of theft)? Held: equitable interest+Clowes guilty and long sentence!

AG Ref (No 1)1985: employee/pub manager sold own food for profit and took profits earned. Charged w/theft, £ earned was his and no theft. Be decided diff today per Reid below.

AG for Hong Kong v Reid [1994]: land held on trust for Hong Kong government

Hall [1972]: when £ given from V to D. If £ not returned=theft but, as in Hall, if £ given to be dealt with a certain way: V organised trip for group to USA, V goes to travel agent (D) who books tickets. V pays bill to D, knew going bust, £ gone but still criminal, D charged w/theft, does s.5(3) apply? Is £ earmarked4specific purpose? £ for tickets in2 general a/c+not within s.5(3) (not earmarked). Contrast w/Wain 1995: ran off w/charity £, is this s.5(3) theft? Proceeds into bank a/c+write cheque own a/c 2pay direct2charity, Hall not followed, 5(3) app.Pub pol decision?

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The AR elements of theft: s5

Property obtained by mistake: s.5(4): obligation to make restoration:

Moynes v Cooper [1956]: D overpaid salary but keeps excess, charged w/theft, acquitted on appeal as £ on transfer became his, dishonesty,but not stolen property belonging to another. 

AG Ref (No 1 of 1983) [1985]: similar to Moynes, policewoman D mistakenly paid for sick day, doesnt say anything, no theft as liability for omission, AG appealed+won, was s.5(4)theft, duty to make restitution, even though penalising an omission. 

Chase Manhattan Bank v Israel-British Bank 1981: person who pays £ under mistake retains equitable interest in the money and req for £ to belong to another per 5(1) and 5(4)=unnecessary. 

Gilks [1972]: D goes to bookies, 2 horses 'fighting taffy and fighting scott', bet on taffy but winner=scott. £ out mistakenly to D, walks out charged w/theft s5(4), CoA quashed conviction, bets are unenforceable under contract law, s5(4) only concerned w/legal not moral obligations to make restitution. Civil law changed now, s5(4) would now reverse this case as matter of restitutuion as V remains the owner of the property/£. 

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The MR elements of theft: s2

- Requirement of dishonesty introduced as mechanism by which moral judgements can be made+blame attributed. Dishonesty=now a crucial element of law+it has been argued that theft is heavily dependent on just the dishonesty element+AR is now hollow. MR of dishonesty=emphasis. Whole of Hinks case rested on dishonesty (D thought owner with consent of V yet still found to be dishonest!). Dishonesty in s.2 Theft Act 1968 gives scenarios when someone is NOT to be found dishonest,but not a comprehensive list. Subjective test. Dishonesty is a Q of fact for jury under the leading case of Ghosh to be read to the jury aka Ghosh direction, which is complex+should only be used if absolutely necessary i.e. dishonesty questionable i.e. take £ from till with IOU but not auth'd, D desperate. NB: a view of gain is immaterial per s.1(2). 

Feely [1973]: old leading case, honesty=subjective i.e. as long as D believed conduct=honest (or at least not dishonest). Mistake, cant allow citizens to set own standards+contrary to rule of law. 

Ghosh [1982]: (Lord Lane) CoA: D locum in hosp+falsely claimed fees for op not carried out, claimed didnt think dishonest by his standards as same amount of £ payable to him for consult fees Two fold purely objective test: 1. jury applying own standards must judge D's actions and beliefs and decide whether honest or dishonest. 2. If jury find according to their standards dishonest, must estb. whether D knew that ordinary people would regard such conduct dishonest. V. criticised case. See commentary next...

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Ghosh and dishonesty commentary

1. Griew: Dishonestly – the objections to Feely and Ghosh[1985]: the result is remarkable and Robin Hood must be a thief even if he thinks the whole of the right thinking world is on his side! It is not acceptable (Ghosh). 

2. Halpin: The test for dishonesty: CLR 1996:not a stable compromise but a continuing tension between the subjective and objective approaches. Poses a new approach: a legal definition of dishonesty to set legal borders around what states of mind will be recognised as not dishonest.

3. Glanville Williams 1983: Textbook of Criminal Law: the practice of leaving the whole matter to the jury might be workable if society were culturally homogeneous with known and shared values, as it once was! We have now disrespected property rights. Any position dependent of current social values would be better than Ghosh! 

4. Law Comm Consult Paper no 155, fraud and deception 1999: not aware of any other area of the criminal law that recognises an open-ended defence that the conduct in question is morally blameless. In breach of Art 7 ECHR as punishing those who arent aware of dishonesty by their own standards!

5. Ghosh just a device for an ends to a means w/out any practical thought!

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The MR elements of theft: s6

S6: Intention to permanently deprive: borrowing property, however unauth'd+ dishonest=not theft. D must intend permanently deprived of property. Only needs an intention, incohoate nature?2 limbs to s.6 (intention to treat as own+certain borrowings that may amount to treating it as own)

Easom [1971]: whether D had intent to steal. D in cinema, next seat plain clothed policewoman and placed handbag on empty seat intentionally, D picks up, opens and sees usual contents so puts back, charged w/theft of contents of bag, if cash would have taken, conviction quashed as charge of stealing contents unable to prove attempt to perm deprive contents=gap in law! 

Husseyn (1977): white van left parked w/door open, sees large bag and takes, 200 yards later sees bag w/diving equip, left bag and walks off, charged w/theft of stealing some or all of contents, conviction quashed, no proof of intent to perm deprive contents of bag! Concerning!

AG Ref (Nos 1 and 2 of 1979) [1980]: CoA, burglarly D acquitted, burglarly under s.9, theft: charge of attempting to steal, left out contents to ensure conviction, draft charge correctly/generally!

Lloyd [1985]: (Lord Lane) intention to deprive V permanently of a particular object even if intends to restore the object to V. S.6=ample scope for interpret. Films removed from cinema,copies made, orginals returned, borrowing=temp,not enough to constitute guilt of mind, value of films not lost, all the virture of goodness not gone=not theft! 

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Burglary and Robbery brief (not in exam)

-Robbery: (1) A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.  (2) A person guilty of robbery, or of an assault with intent to rob, shall on conviction on indictment be liable to imprisonment for life. 

-Burglary and Aggravated Burglary Smith and Hogan, chapter 26: Burglary can be committed in two ways. D can enter a building or part of a building as a trespasser, intending at the point of entry to steal or to inflict grievous bodily harm or to do unlawful damage in the building. The offence is complete on entry with one or more of those intents. Alternatively D may enter a building or part of a building as a trespasser but with no criminal intent-he may, for example be a homeless person looking for somewhere to sleep. But if, while present in the building or part of the building as a trespasser, he steals or attempts to steal or inflicts or attempts to inflict grievous bodily harm on any person, at that point he will commit burglary (in addition to the offence he commits or attempts).If the building is a dwelling house the maximum penalty is 14 years imprisonment, otherwise 10 years. 

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Potential theft exam q's & structure:


1. Introduction: potential criminal liability

2. Section 2: dishonesty (if not then use common law)

3. Section 3: appropriates

4. Section 4: property

5. Section 5: belonging to another

6. Section 6: intention to deprive permanently

7. Conclusion: likely guilt?

A. The decision of the House of Lords in Gomez (1993) AC 442 makes the law relating to appropriation under the Theft Act 1968 unworkable. Discuss.

B. Is the law relating to appropriation satisfactory after the decisions of Gomez and Hinks?

C. Problem Q!

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