Theft

Theft- 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'

Actus Reus:

-Appropriates

-Property

-Belonging to another

Mens Rea:

-Dishonestly

-Intention of permanently depriving the other of it

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Appropriation

s 3(1)- 'Any assumption by a person of the rights of an owner amounts to appropriaton'

Pitham and Hehl (1977)- This includes right to sell property

Moris (1983)- 'It is enough for the prosecution if they have proved.. the assumption of any of the rights of the owner of the goods in question'

Consent to appropriation

Lawrence (1971)- HoL and CoA found appropriation cannot be consented to (taxi driver)

Gomez (1993)- Confirmed judgement in Lawrence- test: 'When theft is alledged and that which is alleged to be stollen passes to D with the consent of the owner, but that  has been obtained by a false representation, has: a) an appropriation within the meaning of s 1(1) of the Theft Act 1968 taken place, or b) much such a passing of property necessarily involve an element of adverse interference with or usurpation of some right of the owner?'

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Appropriation cont.

Consent without deception

Hinks (2000)An appropriation exists even where the victim consents to the appropriation and civil unlawfulness is not a constituent of the offence of theft

A later assumption of a right

s 3(1) makes it clear that there can also be an appropriation where D acquires property without stealing it, but then later decides to keep or deal with the property as an owner

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Property

s 4(1)- ''Property' includes money and all other propery real or perconal, including things in action and other intangible property'

Money- coins and banknotes of any currency

Personal property- all moveable items, Kelly and Lindsay (1998)- bodies and body parts can be personal property for the purposes of theft

Real property- legal term for land and buildings

s 4(1)- Land can be stolen, but s 4(2) states that this can be done in three circumstances:

-a trustee or personal representative takes land in breach of his duties as a trustee or personal representative

-someone not in possession of the land severs anything forming part of the land from the land

-a tenant takes a fixture or structure from the land let to him

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Property cont.

Things in action- a right which can be enforced against another person by an action in law. The right itself is property under the definition in s 4 E.g. a bank account (a right to the payment of the bank account). So if D causes the bank to credit another person's account, he had appropriated a thing in action. Other tangible property- other rights that have no physical presence but can be stolen under Theft Act 1968, A-G of Hong Kong v Chan Nai- Keung. There are some types of intangible property which are held not to be property within the act, (e.g. exam answers) Oxford v Mo** (1979) Things which cannot be stolen- These are set out in ** 4(3) and 4(4) Theft Act 1968. First of these concerns plants and fungi growing wild: 4(3) 'A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in po**e**ion of the land) steal what he picks, unle** he does it for reward or sale or other commercial purpose'. 'Mushroom' includes any fungus, 'plant' includes and shrub or tree. It is an offence to pick, unroot or destroy certain wild plants under the Wildlife and Countryside Act 1981.

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Property cont.

The other exception of personal property which is not 'property' concerns wild creatures.

s 4(4) 'Wlid creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarilty kept in captivity, or the carcase of any such creature, unless it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession'.

Electricty- another sort of intangible property which cannot be stolen, but there is a seperate offence under s 11 Theft Act 1968 of dishonestly using elctricity without due authority, or dishoneslty causing it to be wasted or diverted.

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Belonging to another

In order for theft to occur, the property must 'belong to another'.

s 5(1)- 'Property shall be regarded as belonging to any person having possession or control of it, or having in it any propriety right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest)'. From this, it can be seen that possession or control of or any proprietry interest in the property is sufficient. Defintion is so wide so that presecution does not have to prove who is legal owner.

Possession or control- does not have to be lawful.

Turner (No 2) (1971)- D can steal his own property

Woodman (1974)- Someone can be in possession or control of property even though they do not know it is there

Section 5 makes it clear that there are certain situations in which D can be guilty of theft even though property may not belong to another. These are situations in which D is acting dishonestly and has caused a loss to another and has made a gain. These are: trust property (where a trustee can steal it), property recieved under obligation or property recieved by another persons mistake.

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Belonging to another cont.

Property recieved under obligation- many situations in which property is handed over to D on the basis that he will keep it for the owner or will deal with it in a particular way. As the property has been handed over to D, he has become the owner, so subsection 5(3) tries to make sure that such property is still considered as 'belonging to the other' for the purposes of the law of theft. It states:

'Where a person recieves property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property shall be regarded (as against him) as belonging to the other'

Hall (1972)- If the person paying the deposit only expects it to be paid into the bank account of a business, then if this happens there cannnot be theft, even if the client does not recieve the goods or services

Klineberg and Marsden (1999)- D's found guilty of theft as it was clear that they were under an obligation to the purchasers 'to retain and deal with that property or its proceeds in a particular way', and that they had not done this

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Belonging to another cont.

Wain (1995)- CoA decided that under s 5(3), that D is clearly under an obligation to retain the same amount as the money given in sponsorship. It did not matter whether he kept the actual notes or coins or their proceeds, but he still under an obligation.

Davidge v Bunnett (1984)- There can be an obligation in less formal situations

Property obtained by mistake- s5 also provides for situations where property has been handed over to the D by another's mistake and so has become his property.If there were no special provision in the Act then this could not be 'property belonging to another' for the purposes of the law of theft. Sunsection 5(4) states:

'Where a person gets property by another's mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.'

Attorney Generals Ref (No1 1983) 1985- CoA, D is under 'obligation to make restoration', and if there was a dishonest intention not to make restoration, then all the elements of theft were present.

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Dishonestly

It is clearly not defined in the act, however s 1(2) does suggest that motive does not need to be there or clear to show intent.

'It is immaterial whether the appropriation is made with a view to gain or is made for thief's own benefit'

Ghosh- defines dishonestly, test:

'Was what was done dishonest according to the ordinary standards of reasonable and honest people?'

'Did the defendant realise that what he was doing was dishonest by those standards?'

Behaviour which is not dishonest- 

s 2(1)a- If he has a right in law to deprive another of it for himself or for a third party

s 2(1)b- If he would have the consent of the other if the other knew of the appropriation

s 2(1)c- If the person to whom the property belongs cannot be determined through reasonable steps

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Dishonestly cont

All of these situations depend on D's genuine belief in one of these three things

Robinson- D belived he had a right in law to take the property

Willing to pay- D's conduct is not prevented from being dishonest if he was willing, or left money to, pay for the property. s 2(2) states that 'a person's appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property'

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Intention of permanently depriving

Must be shown that D had intention to permanently deprive other of property. This is clear in many situations:

Velumyl (1989)- D stole money, and was convicted even though he intended to replace it, as it was shown that he had intention to permanently deprive company of banknotes

Clear intention to deprive is also shown when D destroys property belonging to another- s 6 explains that even though a person appropriating property belonging to another does not mean the other to permanently lose the thing itself, he can be regarded as having the intention to deprive the other of it permanently if his intention is to treat the thing as his own to dispose of, regardless of the other's rights

Borrowing- In these instances the courts will ask what state and value the property was returned in

Lloyd (1985)- conviction quashed as property had been returned in the same state so there had been no permanent deprivation

Intention to treat the thing as his own- This shows intention and includes unusual situations

Raphael and another (2008)- D tried to sell V's property back to him

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