- Created by: Holly
- Created on: 11-06-14 13:07
- S3(1) - Any assumption by a person of the rights of the owner amounts to an appropriation.
- Includes selling, destroying, possessing, consuming, using, lending, hiring. Selling was seen in Pitham v Hehl.
- Does the assumption have to be all the rights or any of the rights. This was considered in Morris. it was held to be any of the rights.
- In lawrence the issue of consent was considered - it was held that just because there was consent this does not mean there has not been an appropriation. In gomez it was held that picking up items from a shop is an appropriation, but is not completed theft.
- Hinks - accepting gifts can be an appropriation
- Approriation is viewed as occuring at one point in time - Atakpu and Abrahams.
- There can be an appropriation where the d acquires property without stealing it but then later decides to deal with the property as their own
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Problems with appropriation
- Width - A wide variety of acts can be seen as appropriation. By interpreting the phrase as 'any' of the rights of the owner have they gone beyond parliment intention? Does not differentiate blameworthiness.
- Appropriation is considered to occur at one point in time so it is subject to jurisdiction, and may produce unfair results as in Atakpu and Abrahams. This is contrary to the decisions in Hale and Lcokey, so is out of touch with Robbery
- There can be an appropriation even though the owner of the goods has consented to it. This can seem odd in relation to shops. It does prevent the use of false statements to be acquitted of theft but it may be more appropriate to convict them of fraud.
- Case of Hinks - accepting a gift is appropriation? Civil and Criminal law in conflict, under civil law ownership of the money and property would have transferred to the defendant.
- Dishonesty is used most often to distinguish between an honest appropriation and theft, but it has many of its own issues.
- Social stigma of theft
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- Property includes money and all other property real or personal, including things in action and other intangible property. In Kelly and Lindsay it has been held that dead bodies and body parts can be personal property for the purposes of theft.
- Real property is the legal term for land and buildings. Land can be stolen where a trustee breaches their duties, someone not in po**e**ion of the land severs anything forming part of the land from the land, and a tenant taking a fixture or structure from the land leant to him.
- A 'thing in action' is a right which can be enforced against another person by an action in law, it includes things such as a bank account and cheques.
- Other intangible property can include quotas and patents as seen in AG for HK vs Chan Nai-Keung. In Oxford v Mo** it was held that knowledge was not property.
- Things which cannot be stolen are under ** 4(3+4). These include wild fruit, mushrooms and plants, although they can suffice if they are taken for commercial purpose. It is an offence under the Wildlife and Countrside Act to pick/uproot/destroy certain wild plants. Wild creatures not tamed and not ordinarily kept in captivity cannot be stolen. Electricity can also not be stolen.
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Belonging to Another
- S5 (1) - Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest. The prosecution does not have to prove who is the legal owner.
- The possession/control of the property does not have to be lawful.
- In Turner (No2) a person was convicted of stealing their own car.
- A person can be in 'possession + control' of property even though they do not know it is there as in the case of Woodman.
- R (Ricketts) v Basildon
- Where the d owns a property and is in possession/control of it, he can still be guilty of stealing it as in the case of Webster.
- Sometimes property will be given to the d 'under obligation' to deal with it in a certain way. Such property shall be considered to 'belong to the other'. This occured in Hall, Klineberg and Marsden &Davidge v Bunnet. It must be a legal obligation.
- Where property has been given to d by mistake and the d is under a legal obligation to make a resortation, it is held to be 'belonging to the other' as in AG's ref (1 of 1983)(1985). In Gillks there was not a legal obligation to make a restoration.
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Problems with property belonging to another
- 'Property' has not caused any real problems.
- Wide defintion can mean it is difficult to prove.
- Suprising outcome of Turner
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- Motive is not relevant
- The act provides for 3 circumstances where the d is not dishonest
- 2(1)a - He has in law the right to deprive the other of the property
- 2(1)b - He would have the others consent if he knew of the appropriation + circumstances
- 2(1)c - The person to whom the property belongs cannot be discovered by taking reasonable steps.
- If the defendan genuinely believes one of these then they are not dishonest. Unreasonable belief does not prevent the d from relying on these sections as in Small and Holden
- s2(2) states that a where a person is willing to pay for the property this does not prevent the conduct from being dishonest. It prevents d from taking what he likes regardless of the owners wishes.
- Ghosh is the leading case on dishonesty and set out the tests to be used. 1) Was what was done dishonest according to the ordinary standards of reasonable people 2) Did the d realise he was dishonest by those standards?. It starts with an objective test.
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Problems with Dishonesty
- Leaves too much to the jury
- Judges should rule on points of law
- Too much emphasis on objective test. Even where a defendant intends to be dishonest, if it is not dishonest in the standards of the reasonable person then they are held to not be dishonest.
- Longer trials - more defendants might try to plead ng.
- Difficulty in determining the 'reasonable person' as seen in Gohill.
- Unsuitable in specialised cases.
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Intention to Permanently deprive
- Even if d intends to replace the property this is still an intention to permanently deprive as in the case of Velumyl.
- A person can be regarded as having intention to permanently deprive the other of it if he treats the property as his own to dispose of regardless of the others rights. Dispose of = to deal with definitely, to get rid of, to get done with, finish.
- In DPP v Lavender 'dispose of' was also held to be 'dealing with' property.
- Normally borrowing would not be an intention to permanently deprive. Borrowing is not theft unless it is for a period and in circumstances making it equivilent to an outright taking or disposal
- Lloyd held that this meant borrowing the property and keeping it until the 'goodness, virtue and practical value had gone out of the article', although this may be difficult to determine.
- Conditional intention to deprive is not enough to satisfy theft.
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Problems with Intention to permanently deprive
- Is it necessary to include it as part of the law on theft? Abolition of 'permantently' would have allowed a convcition in Lloyd
- Had to create a seperate offence of taking vehicles without consent.
- Removal of 'permanent' may allow for the use of conditional intent, this would also bring it into line with burglary.
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