Theft

Set out in s1 Theft Act 1968:

• s1) a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it

Elements

• s2) dishonestly (MR)
• s3) appropriates (AR)
• s4) property (AR)
• s5) belonging to another (AR)
• s6 w/intention to permanently deprive (MR)

Definition

• s3(1) - any assumption by a person of the rights of an owner amounts to an appropriation

Pitham v Hehel (1977)

• D offered to sell furniture belonging to someone else
• offering to sell = appropriation of owner's rights

Morris   

• D swapped labels on two supermarket items to try and get an item cheaper
• Convicted of theft at trial
• Appealed on meaning of 'the rights': did this mean any or all of owner's rights?
  • Held: assuming ANY rights = appropriation. Conviction upheld

• Theft Act 1968 = silent about whether appropriation can occur w/owner's consent

Lawrence (1972) 

• V = foreign + spoke little english
• D = taxi driver. Gave V a lift + charged him. V did not know how much D needed so opened wallet for D to take appropriate amount
  • D took over £6 when journey should have cost 52p
• Appealed as V appeared to consent
  • Held: appropriation = possible even w/owner's consent

Gomez 

• D = assistant manager at shop
• D's manager consented to sell £16000 worth of goods to D's accomplice, who paid w/ stolen cheque w/out any value
• HL upheld conviction: appropriation had occured + appropriation can occur w/owner's consent/authorisation 

R v Hinks (2000)

• D befriended V (rich man w/low IQ)
• V could understand ownership + make valid gift
• D went w/V to building society, where V withdrew £600000 of own mondy + gave to D's account as a gift
• Held: Gomez upheld + extended:
  • recipient of valid gift may have been held to have appropriated it

• point of appropriation = when D obtains property via deception
• Appropriation can only occur once (if D dishonestly takes an item but later decides to keep item + deal w/it as his own, appropriation = point of taking the item)

Atakpu + Abrahams (1993)  

• Ds hired cars in Germany w/fake licences + passports
• Ds planning to bring cars back to England to sell. Argued that appropriation didn't happen in England
• Held: convictions quashed. Appropriation = when they obtained cars in Germany so theft happened in Germany
  • As the cars had been appropriated once, there couldn't have been subsequent appropriation in England

• s3(1) - appropriation can occur when D acquires property innocently but then discovers + later deals w/it as if it were their own
  • E.g. if D picks up item he thinks belongs to him, not appropriation at this stage
    • if D discovers the mistake but decides to keep the property, this is a subsequent assumption of a right
      • appropriation has occurred at this point

If D buys something in good faith but later discovers it is stolen + decides to keep/deal with it as his own, D is not a thief

s4(1) - property includes money and all other property, real or personal, including things in action and other intangible property

Five types of property:

• Money
• Real property
• Personal property
• Things in action
• Other intangible property

coins + notes of any currency

s4(1) - land can be property...

s4(2) - ...only in limited number of circumstances

These include:

• Being a trustee of land + dealing with it in breach of trust
• Appropriating anything forming part of the land by severing it
  • e.g. shaking apples from someone's apple tree
• As a tenant, appropriating fixtures or fittings or structure of the land

• Most objects (e.g. books, clothes, cars etc)
• Can include dead bodies that have been altered for medical/scientific examination - Kelly and Linsay

Kelly and Linsay (1998) 

• Royal College of Surgeons gave D1 access to draw body parts. He and D2 removed 35 body parts
• Convicted of theft but appeal on grounds that body parts could be property for the purposes of theft
  • Appeal dismissed

Things that have no physical presence but can still be stolen:

• Bank accoutns
• Shares
• Intellectual property rights (e.g. copyrights)

• s4(3) - wild plants - unless picked for reward or sale
• s4(4) - untamed wild cratures or wild creatures that are not ordinarily kept in captivity
• Electricity (Low v Blease)
• Confidential Information - not property - Oxford v Moss

Oxford v Moss   

• uni student acquired draft of upcoming exam. Read contents + returned the paper. 
• No intention to permanently deprive but charged w/theft
• D not guilty at trial+ P's appeal also dismissed
  • Confidential information is not property and cannot be stolen

s5(1) - property shall be regarded as belonging to any person having possesion or control of it, or having in it any proprietary right or interest

To be considered as 'belonging to another', another person must:

• Possess it,Control it, Own it, Partly own it

Dyke v Munro (2002) 

• Ds = trustees of 'Hands of Hope Children's cancer fund'
• Charged w/stealing money collected for charity by street collectors
• Charge didn't specify the owner of the property
• Convicted but appealed
• Convictions quashed - money = belonging to charity + this should have been specified
  • property must belong to a person, persons or identifiable body

NO - Powell v McRae (1977) 

• D (turnstile attendant) took £2 bribe instead of a ticket
• D charged w/theft of money from his employer - convicted at first instance
• Conviction quashed: D cannot be liable for the theft of property which he owns, controls + possesses

When there is seperate ownership, possession + control, you can steal your own property

YES - Turner (No. 2)(1971) 

• D left car at garage for repairs. They fixed it + left it on road at night
• W/spare key, D took car overnight to avoid paying
• CA: garage had legal right to keep/sell his property in lieu, so the garage was in possession and/or control

A case similar to Turner had a different result

Meredith (1973) 

• D's car = impounded by police
• D took car w/out paying
• Held: D = not guilty, as police had no righ to keep the car
  • only had the right to pay for its removal

If D jointly owns property w/V, he can steal it from V

Yes

Woodman (1974) 

• Company 1 had scrap metal on land which was sold to property 2
• Company 2 removed most scrap metal but left some behind (unkown to Company 1)
• Company 1 built fence around property w/ keep out signs
• D stole scrap metal + convicted of theft
• Appeal dismissed: C1 demonstrated their possession w/fences + attempts to keep people out
  • being unaware of its existence = irrelevant

D can be found guilty of theft of property he legally owns but is under an obligation to deal with in a particular way

• trust property s5(2
• Property received under an obligation s5(3)
• Property received by another's mistake s5(4)

• Trustees who steal from the trust can be guilty of theft
• Executor stealing from a will can be guilty of theft from the legatees

• If D has acquired legal ownership of property, he can still be guilty of theft if he was under an obligation to deal with that property in a certain way
• Includes when X gives D property for a specific purpose, but D uses that property for a different purpose

Hassall (1861)

• Christmas Club members paid money into fund on condition it would be paid at christmas
• D (as treasurer) became legal owner - not expected to repay exact same notes + coins but was expected to pay back same amount
  • D failed to do this, so was guilty of theft

Hall (1973)

• If someone gives D money but w/out specific conditions on the purpose of that money, there is no theft
  • no obligation to use the property in any particular way

Wain (1995)  

• D raised money for charity + paid it into a seperate account
• W/charity's permission, paid money into personal account
• D spent money + couldn't pay charity
• Conviction upheld: D under obligation to retain, if not actual notes, at least the equivelant sum

A-G Ref (no1 1983)  

• D = PC. Mistakenly overpaid, but failed to pay money back
• Held: Although D became owner of property, she was under obligation to return it

Gilks 

• D betted on horse
• Different horse won + bookies paid D by mistake
• Held: Gambling contracts not enforceable in law - D not obliged to pay money back
  • The obligation to restore property if acquired by mistake must be legal

• Truly ownerless property cannot be stolen
• abandoned property does not necessarily equate to ownerless
• Lost property does not necessarily equate to ownerless

• A person not wanting their property anymore does not make it ownerless

Williams v Philips (1957)  

• Refuse is not ownerless
  • Belongs to council at point of collection
• It is illegal to dishonestly appropriate property that has been thrown out, or left in skips

When is property abandoned?

• When owner is indifferent as to any future appropriation of the property by others
  • Small

• Undefined in Theft Act 1968 but s2(1) gives three examples where D's behaviour is not dishonest
  • Based on genuine belief. No need for belief to be reasonable or correct
    • Belief in a legal right to deprive
    • Belief in owner's consent
    • Belif that the owner cannot be discovered
• Dishonesty = a question for the jury to decide

• If D genuinely thinks he has legal right to appropriate proerty, this is not dishonest

Holden (1991)  

• D charged w/theft of tyres from garage where he worked
• D claimed others had taken them w/supervisor's consent
  • Manager said that taking tyres is offence worthy of firing employee
• Held: Conviction quashed
  • D not dishonest if he believes he had a legal right

e.g. if D is baby-sitting + makes a sandwich w/owner's food believing that (if owner knew) he would consent

• If D genuinely thinks he cannot find the owner by taking what he believes to be reasonable steps, then there is no dishonesty in keeping the property

Small (1988)  

• D thought that a car was abandoned. Always parked in the same place, in an angle on a corner for weeks
• On inspection, keys were in car + car was in 'forlorn' state
• D took the car under genuine belief it was abandoned
• Held: Conviction quashed. D not dishonest.

CA created a two part test (objective + subjective) for anyone who does not fit into any of the three examples outlined in the Act - the Ghosh Test

Ghosh (1982) 

• D = surgeon who had charged for procedure he failed to carry out
• D claimed he was not dishonest, as he was owed the same amount for consultation fees
• Held - The Ghosh Test
  • CA created test for dishonesty w/both objective + subjective elements
    • 1) OBJECTIVE - Was what was done dishonest according to the ordinary standards of reasonable and honest people?
    • 2) SUBJECTIVE - Did the D realise that what he was doing was dishonest by those standards

If the answer to both parts of that test is 'yes', then D satisfies the element of dishonestly

• Theft Act 1968 s2(2):
  • 'a person's appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property'
    • This means that whatever is taken has to have been taken dishonestly and it doesn't matter if D is willing to pay for it later

• D must only have intention to permanently deprive at time of appropriation
• If D actually does permanently deprive property but does not intend to, this is not theft
• Destroying property satisfies an intention to permanently deprive

Velumyl (1989)  

• D took money from safe where he worked
• D lent money to a friend + said he would return the equivalent sum when friend repaid him
• Conviction upheld - this amounted to an intention to permanently deprive
  • Replacing an equivalent sum, rather than the actual notes, does amount to an intention to permanently deprive
    • Depriving workplace of those actual notes

• Theft Act 1968 s6 - 
  • 'a person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be to be regarded as having the intention of permanently depriving the other if he has the intention to treat the thing as his own to dispose of regardless of the other's rights'

Cahill (1993)

• interpretted phrase 'to dispose of' by using dictionary definition of 'to get rid of'
  • D escaped liability

DPP v Lavender (1994) 

• D took doors from council property + used them to replace damaged doors on another council property - although doors remained in council's possession, htey had been moved w/out permission
• Held: extended 'dispose of' to mean 'dealing with property regardless of the owner's rights, so as to treat it as D's own'.
  • D had done this, so he did have the intention to permanently deprive

s6(1) states that borrowing property can amount to treating property as D's own but only if the property is borrowed 'for a period and in circumstances that is equivalent to outright taking or disposal'

LLoyd and Others (1985)

• D borrowed film from cinema projectionist to make illegal copies
• Conviction quashed: D returned film in original state, making it impossible to prove an intetnion to permanently deprive

Easom (1971)

• D picked up handbag, rummaged through + put it down w/out taking anything
• Conviction quashed: no evidence that D intended to steal the items/permanently deprive the owner of its contents

A-G's Ref (nos1&2)(1979)

• If D had conditional intent (ie D intended to steal if there was anything worth stealing), D could be charged with attempt to steal some or all of contents

• If D has the intention to treat the property as his own to dispose of, regardless of the rights of others, this amounts to an intention to permanently deprive

Raphael and Another (2008)  

• Ds took V's car w/force + demanded payment for its return
• Held: an intention to treat the thing as his own to dispose of, regardless of the other's rights' included where D makes an offer to return the owner's property but subject to a condition which is inconsistent with the owner's right to possession of his property