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CRIMINAL LAW THEFT CHAPTER
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THEFT
KEY CONCEPTS
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DEFINING THEFT Theft is defined in s. 1 Theft Act 1968 as the: APPROPRIATION … of … actus reus
PROPERTY
BELONGING TO ANOTHER DISHONESTLY
… with … INTENTION TO PERMANENTLY DEPRIVE
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mens rea
THEFT
The Theft Act 1968 (“TA”) outlines a number of property offences. Theft is discussed below and other property offences are considered in subsequent chapters. THEFT
“A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it” (s. 1 Theft Act 1968).
This is then broken down into AR and MR in the Act and should be tackled in the following order:
THE ACTUS REUS 1:
APPROPRIATION (s. 3):
Section 3(1) defines appropriation in broad terms: “Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.” This means that even where D has only assumed any one right he will have been considered to appropriated the property. In this case, switching the labels on goods which indicated their price was considered to be appropriating.
R v Morris R v Pitham & Hehl
Here, offering someone else’s property for sale was appropriation.
Appropriation can occur irrespective of V’s consent to the appropriation. V’s state of mind is of no importance in determining whether there has been an appropriation. Examine the leading case on the meaning of appropriation R v Gomez below. KEY CASE:
R v Gomez
Facts: A cashier in a store knowingly accepted stolen checks in return for goods. The manager was required to authorize the transaction, which he did on the premise that those cheques were “as good as cash”. When the bank did not honour the cheques, the cashier and others involved were convicted of theft. Held: The cashier appealed under the contention that the manager had consented to the transaction, so there could be no appropriation. This plea was unsuccessful and the convictions were upheld on appeal. Per Lord Keith, “an act may be an appropriation notwithstanding that it is done with the consent of the owner.”
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THEFT
It is possible to appropriate property even where that property is a valid gift under civil law. In R v Hinks, V, who was considered to be of limited intelligence, gave sums of £60,000 to D. The evidence suggested that V did not make the decision to gift the money alone. NOTE: Those who do not know that what they are buying was stolen (innocent purchasers) are never liable for theft under s. 3(2) (R v Adams). LATER APPROPRIATION: Consider at what point all the elements of theft occur simultaneously, i.e. the AR and MR coincide. Under s. 3(1) it is possible to make a later appropriation by keeping the property or dealing with it as owner. This is especially useful where D does not have the requisite MR at the time of the initial appropriation. For example: D sees someone has dropped their watch, picks it up intending to return it to them, but later decides to keep it – it is the later appropriation at which D has both the AR and MR of theft. ISSUES AROUND APPROPRIATION: • Appropriation as an omission:
Broom v Crowther
•
D unknowingly purchased a stolen item. He later found out it was stolen and, while making up his mind as to what to do, left it in his room and did not touch it. He later reported it to the police. It was held that there was no appropriation while he was making up his mind. (s. 3(1) Theft Act 1968)
Multiple appropriations of property: Occurs where jurisdiction is at issue:
Atakpu
D hired a car in Germany, then drove it to England after deciding to steal it. D had appropriated the car at the moment the mens rea of permanent deprivation was present. Once the car was stolen, he did not continue to steal it.
2:
OF PROPERTY (s. 4)
Section 4(1) TA defines property in broad terms: “Property includes money and all other property, real or personal, including things in action and other intangible property”. Consider whether a particular thing is property which is capable of being stolen for the purposes of the TA.
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THEFT
REAL PROPERTY (LAND): Real property cannot be stolen (s. 4(2)), unless it falls within one of the exceptions in s. 4(2)(a-c). Things which are found on land fall into one of two categories. •
Things which are not part of the land (things which are moveable) are “property” for the purpose of theft.
•
Things which are part of the land (things growing or which form a permanent structure) are separated into three categories:
a:
Those who are in possession of the land. It is not an offence for D to take property that forms part of the land where D is the owner of the property.
b:
Those who are not in possession of the land. Where D is a trespasser it is theft to take things which form part of the land.
c:
Tenants in possession. Where the tenant removes something forming part of the land, that will be an offence, unless what is removed is “a fixture or structure”, namely anything which is part of or attached to the land.
•
Rules relating to flowers, fruit or plants are covered by s. 4(3) TA: such property is capable of theft where D takes it “for reward or for sale or any other commercial purposes”.
•
Rules relating to wild animals are covered by s. 4(4) TA. Two categories: a:
“Wild creatures, tamed or untamed, shall be regarded as property”; and
b:
“A person cannot steal a wild creature not tamed nor ordinarily kept in captivity”.
PERSONAL PROPERTY •
Confidential information is not property for the purposes of the TA (Oxford v Moss).
•
Electricity is not property for the purposes of the TA (Low v Blease).
3:
BELONGING TO ANOTHER (s. 5)
ASK: at the point at which the property was appropriated (including any later appropriation) did the property belong to another? “Belonging to another” has a very wide definition, as it includes any possession, control, proprietary right, or interest (s. 5(1)).
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THEFT
One’s own property can therefore belong to another, e.g. if a mechanic is repairing your car, it can be said to “belong to” the mechanic for the purposes of the TA because the mechanic has a lien over it, or right to be paid for his work before you can pick the car back up (R v Turner (No.2)). Unless complete civil title to the property has passed to D, property will almost always belong to another – even where property has apparently been discarded. If there is no apparent owner, you must first consider whether the property has been abandoned. The courts are reluctant to find property to be abandoned, e.g. rubbish left out to be collected was not held to have been abandoned in Williams v Phillips. Even if the property is abandoned, it may instead belong to the owner of the land on which it is found. Where property is found on land it will belong to the finder, unless the property owner has previously demonstrated an intention to control things found there, such as through putting up signs or having a lost property area (Parker v BA Board). If the owner has manifested a desire to exclude trespassers, they can own objects found on their land (e.g. a golf club trying to stop a trespasser collecting lost balls in Hibbert v McKiernen), even if unaware of the property's existence (e.g. scrap metal left in a disused factory in R v Woodman). Alternatively: what about where property has been given to D for D to use for a particular purpose? The initial appropriation may have been honest, and at this point ownership has passed under civil law, so the property does not belong to another. NOTE: do not refer to s. 5(1); instead refer to s. 5(3) – the property will only continue to belong to another if the defendant is under a legal obligation to use it for a particular purpose. Refer to the case law for when this arises: R v Hall R v Klineberg Marsden Davidge v Bunnett R v Wain
Money given to a travel agent was not just to be spent on flights. Money given to timeshare agents was expected to be safeguarded because of the defendants’ express assurances. Money given to a flatmate was expected to be spent on the gas bill. Includes money raised in a charity telethon.
What about property given to the defendant by mistake? The property will only belong to another if the defendant is already also under a legal obligation to return it (s. 5(4)). That obligation is not created by the TA; whether it exists is a matter of law. AG’s Ref. (No.1 of 1983) is authority for the point that where someone realises they have received money by mistake, they are at that point under a legal obligation to return it under the law of restitution.
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THEFT
THE MENS REA 4:
DISHONESTY (s. 2)
REMEMBER that the actus reus and mens rea must coincide – so the defendant must be dishonest and intend to permanently deprive at the point that the property belongs to another and is appropriated.
First check whether any of the s. 2(1) exceptions apply: D will not be dishonest if he honestly believes: a) that he had the legal right to deprive the owner of the property (s. 2(1)(a)); b) that the owner would have consented had they known of the circumstances (s. 2(1)(b)); or c) that the owner could not be found by taking reasonable steps (s. 2(1)(c)). Note that he does not have to actually take any steps, just hold the belief that the owner is untraceable.
All that is required here is that D has a subjectively honest belief – it does not have to be reasonable (R v Robinson). Only if none of the s. 2(1) exceptions apply should you instead discuss and apply the common law test for dishonesty as set out by the Supreme Court in Ivey v Genting Casinos.
KEY CASE:
Ivey v Genting Casinos
Facts: The claimant was a professional gambler who used a technique called “edge-sorting” to improve his chances of winning. He won £7.7m in a 24-hour period. The casino refused to pay, on the basis that the claimant had cheated. The claimant sued to recover the winnings. Held: The claimant had cheated and was not entitled to payment. The Supreme Court took the opportunity to restate the test for dishonesty in both civil and criminal law, overruling the old test from R v Ghosh. Lord Hughes held:
“
There can be no logical or principled basis for the meaning of dishonesty… to differ according to whether it arises in a civil action or a criminal prosecution… The second leg of the test propounded in Ghosh does not correctly represent the law… When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts… It is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.
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”
THEFT
To ascertain whether the defendant’s conduct was dishonest, using the test set out in Ivey, ASK: a) What was the actual state of the defendant’s knowledge or belief as to the facts? b) Was the defendant’s behaviour objectively dishonest by the “standards of ordinary decent people”, taking into account the defendant’s state of mind and the facts known to him/her? REMEMBER that paying for something, or being prepared to, does not necessarily make D honest (s. 2(2)) – e.g. bullying someone into selling something can be theft. 5:
INTENTION TO PERMANENTLY DEPRIVE (“ITPD”) (s. 6)
Do not solely refer to s. 6. Instead, first consider R v Lloyd, which states that whether or not D has an ITPD will generally be clear on the plain meaning of the words: intention to permanently deprive means wanting to keep something. REMEMBER that if you referred to s. 5(4) above because D obtained the property by mistake, you must use s. 5(4) again here because an intention not to give the property back is also an intention to permanently deprive. Only if it is not clear that D wanted to keep the property should you refer to s. 6(1): “intention to treat the thing as his own to dispose of regardless of the other’s rights.” Case law has given this phrase two different definitions: R v Cahill
R v Fernandes
“To deal with definitely; to get rid of; to get done with, finish. To make over by way of sale or bargain, sell'”; or “dealing with the property in a manner that he knows is risking its loss” such as where D gambles with client funds even though he intends to replace any money lost. NOTE that the important thing is not whether the property is actually in danger of being lost, but whether D believed it would be.
Either definition is acceptable, so choose whichever is most appropriate to the facts of the question you are answering. Is this a borrowing situation? Borrowing can amount to an intention to permanently deprive under s. 6(1), but only if “all the goodness, virtue and practical value has gone”. Consider R v Lloyd.
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THEFT
KEY CASE:
R v Lloyd
Facts: D, who worked in a cinema, borrowed film reels to make pirate copies at home. Held: This was not theft because the reels were returned in time to be shown for each evening’s screening. If the property is pawned, lent, or gambled, then this could amount to an intention to permanently deprive under s. 6(2) as well as under, or instead of, s. 6(1) – pick which you consider most appropriate on the facts of the question. NOTE that D will still have committed theft if they return fungible or equivalent property e.g. borrowing money and returning different notes and coins etc. can still be theft of the original money (R v Velumyl).
DEFENCES The usual defences may be available (see Defences chapter for details): INFANCY
INTOXICATION
SELF-DEFENCE
CONSENT
INSANITY
AUTOMATISM
DURESS
NECESSITY
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THEFT
ANSWERING AN ESSAY QUESTION ON THEFT GENERAL RULE:
Critically discuss the scope and implications of the AR and MR of theft.
STEP 1:
Introduction.
•
Address the Question: give a brief introduction of the topic. Outline your intended line of argument.
•
Route Map: outline key sections of the essay and the argument you intend to put forward. This will keep the discussion clear and succinct, allowing for a better structured essay.
•
Ensure that you refer to the specific question rather than making generalised statements, as it is vital that your answer is guided by the question.
STEP 2:
Explain theft as defined in Theft Act 1968:
Set out the key principles for the offence of theft, including its AR and MR, paying particular attention to the definition and scope of appropriation. Discuss both the meaning and nature of MR elements to the crime: both dishonesty and intention to permanently deprive. STEP 3:
Do you think the broad scope of appropriation means that almost any act is included in the actus reus?
•
"Appropriation" as defined in s.3 Theft Act 1968 occurs whenever a defendant assumes any rights of the owner. One line of argument you could take is that this a broad definition: there is the potential for it to criminalise a large range of potentially innocent acts. It is much easier to satisfy the actus reus of this offence. For example: R v Morris, where appropriation existed where D simply switched the labels on goods. Clearly this exemplifies the broad nature of appropriation and facilitates greater prosecutions.
•
Consider the point at which appropriation occurs and how this may affect the reliance on the defendant’s state of mind.
STEP 4:
Critique the mens rea – consider the extent to which theft depends on the defendant’s state of mind.
Consider the issue of consent in assessing whether the offence relies too heavily on mens rea. One line of argument you could take, following the case of R v Hinks, is that consent is not relevant given that a seemingly innocent gift can be appropriated. Not only does this indicate heavy reliance on the defendant’s state of mind, it also highlights a conflict between civil and criminal principles.
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THEFT
STEP 5: •
Discuss the arguments for / against your line of argument in the previous step, and the implications it has on the criminal liability of potential defendants.
Historical: In order to fully assess the problems brought about by relying too heavily on a defendant’s state of mind, it is necessary to consider the definition given to the concept of dishonesty and the impact this has. Contained in s. 2 Theft Act 1968, dishonesty effectively has a negative definition as it covers all situations where D is not honest. This could lead to confusion as there is no conclusive list of situations in which D will be considered to have acted dishonestly. It is therefore left to a number of common law tests to determine whether D has acted dishonestly. A discussion of the historic interpretations and the current approach will allow you to highlight the problems which have arisen from over-reliance on the meaning of dishonesty. For example, the case of Gilks first emphasised a subjective approach, where great weight was given to D’s belief in his honesty. Arguably, one flaw with the subjective approach in this case is the reliance placed on the standards and beliefs of D, meaning that D could unfairly escape liability where he had differing or lower standards of honesty in comparison to ordinary society.
Having considered the subjective approach employed in cases such as Gilks, go on to consider the objective standard used in cases such as Feely. This latter case was the first introduction of an objective standard, where dishonesty was measured against the "reasonable man". Arguably, this approach also has difficulties in its application as it may be said to hold the defendant to a higher standard of morals or beliefs than he himself employs. One line of argument is that, by relying too heavily on the mental state of the defendant for the concept of dishonesty, the law surrounding theft clearly become too uncertain. The court in R v Ghosh attempted to create a compromise by introducing a test containing both subjective and objective elements. This approach was criticised in Ivey, not least because the tests for dishonesty differed between civil and criminal law. •
Current: Ivey returned to a purely objective test for dishonesty, but one in which the jury is able to take into account the facts known to the defendant.
STEP 6:
Incorporate relevant academic opinion to support your argument.
See further reading box at the end of this chapter. This should be supplemented with reading on the new test established in Ivey.
STEP 7:
Conclude.
Weigh up the arguments you have made and make a strong and decisive conclusion which directly references the question. Use this part of the essay as a summary of the arguments already made. Try to avoid making new points without giving them further elaboration.
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THEFT
ANSWERING A PROBLEM QUESTION ON THEFT: STEP 1:
Introduce your answer by identifying the defendant: R v Defendant.
STEP 2:
State what the defendant’s potentially criminal behaviour is by outlining the facts: e.g. taking V’s phone.
STEP 3:
State the potential offence: theft contrary to s. 1(1) Theft Act 1968 (“TA”)
STEP 4:
Work through the actus reus of theft and consider each term in detail.
STEP 5:
State that D has committed the actus reus of theft. Now work through the mens rea.
STEP 6:
State that D has the requisite mens rea for theft. Do any defences apply?
STEP 7:
Conclude: is the defendant liable for theft?
FURTHER READING Griew, E., 1985. Dishonesty: the objections to Feely and Ghosh. Criminal Law Review, June, pp.341-354. Melissaris, E., 2007. The concept of appropriation and the offence of theft. Modern Law Review, 70(40), pp.581-597. Stephen, S., 2002. Appropriation and the Law of Theft. Criminal Law Review, pp.445-458.
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