- Created by: Nikki
- Created on: 18-04-15 11:23
Pre Theft Act 1968
Problems with Larceny Act 1916 --> many specific categories --> simplified by Theft Act --> smaller number of more general categories
Move away from 'taking and carrying away' due to intangible things which can be stolent
Theft Act 1968
A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it
Appropriation (basic points)
s3(1) --> 'any assumption by a person of the rights of an owner'
- covers cases where D has come by property without stealing it and subsequently assumes 'a right to it by keeping it or dealing with is as owner' --> omission
Act does not include any phrase referring to lack of consent of owner --> consent is irrelevant (resolved in Gomez (1993) but first stated in Lawrence (1972)
Appropriation is a neutral word --> Gomez/Lawrence
Morris (1997) --> assumption of ANY of the rights of an owner
Authority to support view that appropriation continues throughout act, not being exhausted by first act in relation to the property
Act which = appropriation not need to be act which inteneded to deprive owner permanently
Minimum conduct --> Pitham and Hehl (1976) - no physical act necessary --> Briggs (2004) - requires a physical act rather than merely ordering another to transfer credit balance in her favour
Cases involving gifts:
Mazo (1997) --> CA quashed conviction and stated person cannot be guilty of theft of property recieved as a valid gift
Kendrick and Hopkins (1997) --> proporisiotn doubted, convictions upheld
Hinks (2001) --> convcition of theft should be upheld --> does not matter that there was a valid gift of property according to civil law --> if D appropriated property dishonestly, a conviction for theft may follow
s3(2) --> if a person acquires porperty for value in good faith, no later assumption of rights D believed he had acquired can amount to an appropriation, even if D then knows that he has not acquired good title --> applies hwne D keeps goods or gives them away --> but if D sells them and represents expressly or impliedly that he ahs title to do so, he will commit an offence of fraud
Ambit of appropriation = very wide --> any act in relation to property that can be said to assume a right of the owner of the property constitutes appropriation, and the consent of the owner is irrelevant
- definition is not faithful to intention of CLRC or Parliament
- new defintiion vilates principle of fair labelling by lumping together theives and swindlers
- Gomez definition is so broad it exhibits no respect for principle of maximum certainty and, by making ocnduct criminal when it would not even amount to a civil wrong, fails to give fair warning to citizens about the boundaries of the law of theft
- judicial approach severely reduces amount of manifest criminality in the offence of theft --> liability is imposed for conduct that is not manifestly criminal
No absolutely satisfactory line can be drawn between theft and fraud in all instances --> but procedural error of trying wrong crime should be remediable by procedural means either at trial or on appeal, rather than being alllowed to distort the development of the law
s4(1) --> 'property includes money and all other property, real or personal, including things in action and other intangible property'
- no property capable of being stolen in a dead body or its parts
- electricity --> not property but provided for under s13
- no property in confidential information --> problem more pertinent with increases in computer technology
Gold and Schifreen (1988) --> HL refused to extend law of forgery to cover 'hacking' --> development of specific legislation
Generally land cannot be stolen, though theft of title deeds or fraudin relation to them is possible
Bank accounts --> you do not own the money --> banks owes you sum in question, as a debtor --> but propriertary dimension --> right to draw on account = 'chose in action' (intangible property) --> this can be stolen, in law
'valuable security' --> bank notes, cheques etc
Belonging to another (1)
s5 --> belonging 'to any person having possession or control of it, or having in it any proprietary right or interest (not bein gan equitabl einterest arising only from an agreement to transfer or grant an interest)'
'possession and control'
- mere possession normally inadequate
- need a 'lien' (a legal hold) over the item
- means an owner can steal their own belonging from someone who is in possession of it
- can include temporary possession
If property abandoned by previous owner, or previous owner intended to part with entire interest in it --> not theft because property no longer belongs to another
Turner (No 2) 1971 - Hilton (1997) - Marshall (1998) - Floyd v DPP (2000)
Belonging to another (2)
s5(1) --> one part-onwer of property can be convicted of theft from other part-owner
Hilton (1997) - Marshall (1998)
s5(2) --> when property belongs to a trust, those entitled to enforce the trust should be treated as owners of the property
s5(3) --> includes propert received 'from or on account of another' where person receiving it is under oblgiation to other 'to retain and deal with that property its proceeds in a particular way
Floyd v DPP (2000)
s5(4) --> extends definition of 'belonging to another' to cases where D 'gets property by another's mistake and is under an oblgiation to make restoration (in whole or in part)'
e.g. if money credited to D's bank in error
Intention to permanently deprive
'intention to permanently deprive' isn't defined in Act
intention presumably bears same meaning as elsewhere in criminal law
Velumyl --> taking someone's money with intention to repay it --> not exactly
Conditional intention --> most intention in theft are conditional in some respect so it should not matter greatly --> problems associated with attempted theft
- CA in Easom (1971) --> 'a conditional appropriation will not to' --> correct form of indictment in container cases would be to charge D with attempting to steal 'all or any of the contents' of the container --> but still unsatisfactory
Intention to permanently deprive (2)
s6 --> persons are treated as having intention permanently to deprive in certain circumstances
- general principle --> where D's intention is 'to treat teh thing as his own to dispose of regardless of the other's rights'
- s6(1) --> where D borrows or lends V's property --> may amount to D treating it as his own to dispose of 'if, but only if, the borrowing or lending is for a period an din circumstnaces equivalent to an outright taking or disposal'
- s6(2) --> where D parts with V's property under a condition as to it return which D may be unable to fulfil
Fernandes (1996) --> applies to 'a person in possession or control of another's property who, dishonestly and for his own purpose, deals with that property in sucha manner that he knows he is risking its loss'
Raphael (2008) --> D drove off in V's car and offered to return it for a cash payment --> treating car as his own to dispose of
DPP v Lavender (1994) --> broadened s6(1) --> 'dealing with' doors could amount to 'disposing of' them --> D took 2 doors from one council house undergoing repair and had them fitted in another council house to replace damaged doors --> convicted --> unsatisfactory
Lloyd --> '[a] mere borrowing is never enought to constitute the necessary guilty mind unless the intention is to return the 'thing' in such a changed state that it can truly be said that all its goodness or virtue is gone'
No definition in 1968 Act
s2 --> 3 instances where appropriation may not be considered dishonest
- s2(1)(a) --> where D believes he ahs the legal right to deprive V of it
- s2(1)(b) --> where D believes that V would have consented if V had known the circumstances
- s2(1)(c) --> where D believes taht teh owner of the property cannot be discovered by taking reasonable steps
s2(2) --> appropriation may be dishonest even though D is willing to pay for the property
Ghosh test of dishonesty -->
- 1 - objective question --> was D's conduct 'dishonest' by the standards of reasonable and honest people?
- 2 - subjective question --> did D realise that his conduct was dishonest by those standards: the standards of reasonable and honest people?