Offences Against Property

Aims and Objectives, at the end of this you should be able to: State the definition of theft Explain the actus reus of theft Explain cases that illustrate the actus reus of theft Explain the mens rea for theft Explain cases that illustrate the mens rea of theft Apply the rules to a given scenario

Introduction Before 1968 Offences Against Property were to be found in various statutes and common law precedents. A report from Criminal Law Revision Committee led to passing of Theft Act 1968 Majority of Act worked well but parts proved unworkable – led to Theft Act 1978 Development of new “criminal activities” and some bad HofL decisions led to Theft (Amendment) Act 1996

Theft The offence of theft is laid down in S.1(1) 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….. It is immaterial whether appropriation is made with a view to gain…”

Key Term- Theft: The dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it

Interpretation of Theft A person charged with theft will be charged under S.1(1) of the 1968 Theft Act BUT Parliament has included in the Act interpretation sections to explain the individual elements of theft. These are contained in Ss 2 – 6 of the Theft Act 1968

The elements of theft- must prove these 5 things: S1 Theft Act 1968Actus Reus Appropriation s3 Belonging to another s5 Mens Rea Dishonesty s2 Property s4 Intention to permanently deprive s6

Actus Reus of Theft Appropriating Property Belonging to Another

Appropriation This is defined within S3 Theft Act 1968 Under S.3(1) appropriation can occur in two ways:- 1. By assuming the rights of an owner 2. Coming by property innocently without stealing it but then later assuming some right of the owner

Rights of an Owner? Right to sell Right to keep Right to change/abuse Right to lend Right to destroy

R v Morris (1983) D had switched the price labels of 2 items on the shelf in a supermarket. The cheaper item he placed into a basket and went to the checkout. He had not gone through checkout when he was arrested, but his conviction for theft was upheld as Lord Roskill in the SC said: – “ 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.” – This shows that there does not have to be an assumption of all the rights, which is sensible, as quite often as in this case only one right- the right of possession has been assumed. In Morris the right was the owners right to put a price label on the goods

Can consent to take still be appropriation? If goods come into the possession of the defendant with the consent of the owner can this be appropriate for the purposes of theft? R v Gomez(1993) Test = assumption of owner’s rights = appropriation. How they get property is irrelevant!

R v Lawrence (1971)- appropriation can take place even when property has been handed over with the consent of the owner (taxi fare) R v Gomez (1993)- mere touching of the property is appropriation R v Hopkins & Kendrick (1996) R v Hinks (2000)- an appropriation can take place even where there is a voluntary gift Atakpu (1994)- you cannot steal the same property twice

Property This is defined by S.4 Theft Act ‘Property’ includes money and all other property, real or personal including things in action and other intangible property S.4 divides property into 4 categories Tangible property Intangible property Land Wild animals, plants and flowers

Tangible property – possession that physically exist – books, cars, furniture etc Intangible property – “Things in action” – things which are legally enforceable by do not physically exist – debts, copyright, patent rights etc Marshall the court took into account the value when convicting D’s who had asked for tickets finished with by travellers that still had some value left on them This does not extend to general information or secrets Oxford v Moss (1978) ‘borrowed’ an exam paper he was due to sit but intended to return it and he did not steal the questions as they were not propert y

Things that cannot be stolen Land – common sense dictates that you cannot steal land. But S.4(2) lays down 3 exceptions which can amount to theft: 1- When a trustee or personal representative takes land in breach of their duties, or when someone not in possession of the land severs anything forming part of the land from it ( dig up turf, dismantle a wall), and where a tenant takes a fixture or structure from the land let to him Wild Animals, Plants and Flowers – the Theft Act 1968 lays down some very specific rules relating to wild animals, plants and flowers – see Ss4(3) and 4(4)- a wild creature can only be stolen if someone else already has possession of it

Things which cannot be stolen Wild flowers/fruits etc. unless on private property However if this is done with the intention of selling them then may be considered as theft- e.g. holly to make and sell Christmas wreaths Electricity- another sort of intangible property which cannot be stolen, but there is a separate offence of dishonestly using electricity.

Belonging to Another This is defined by S. 5 Theft Act 1968 This usually causes little problem as it is usually clear that property belongs to another at time of appropriation. BUT it must be noted that the definition is much wider than just ownership – can include possession as well R v Turner (1971)- can be convicted of theft where he steals another persons rights over goods- rights over a car were stolen

Possession or control Obviously the owner of a property usually has this, but there are other circumstances in which a person can have either of these e.g. a hire period, if you lend something to someone- could be guilty of stealing from both parties Also if possession is not lawful e.g. A steals from B and C steals from A C can steal be guilty of theft- this shows a wide definition of ‘belonging to’ and in Turner case lead to a person being convicted of stealing his own car Woodman- it is possible for someone to be in possession or control of property without knowing it is there e.g. scrap metal in a disused factory. Basildon Magistrates Court case questioned the idea of whether property was in anyone's possession.

What if Property given to Defendant for a Specific Purpose? If property is given to a person for a specific purposes and the property is then used for a different purpose if this theft? Davidge v Bunnett (1984)- where money or cheques are given for a particular propose, they must be used for that purpose R v Wain (1996)- where money is held in trust for someone, the money is belonging to another R v Hall (1972)- Prosecution must prove that there was an obligation to retain and deal with deposits of money in a particular way.

What if Defendant is given the property by Mistake? If a person is given property by mistake who does it belong to the recipient or the original owner? The original owner Therefore duty to return AG Reference (No1 of 1983) (1984)- D’s salary was paid into her bank account, employees made an overpayment and she was charged with theft but acquitted by the jury. But the CA decided that the law was clear- a person was under an obligation to return money and if dishonest intention not to return money than all elements of theft were present.

If mistake was so fundamental it prevented ownership of goods from passing to D If the D knows abut the mistake at time of transfer of ownership by V, this prevents ownership from passing.

There must be a legal obligation to restore money There must be a legal obligation to restore the property, however the case of Gilks 1972 shows that in some situations there is no legal obligation to restore money- betting transactions not enforceable at law.

Operates where there have been overpayments made A-G’s Reference (No. 1 of 1983)

It operates only to vest a notional ownership in V It does not supply any of the other elements required for theft such as appropriation and dishonesty

Self test Questions Which section of which Act defines theft? What are the points which need to be proven for AR of theft? What are the main points for MR of theft? Give 2 difference cases or examples of appropriation Can a defendant appropriate property when the owner has consented? Give the name and facts of a case where the effect of consent of the owner was considered Can a D be guilty of theft when the owner of the property has consented to the appropriation and that consent was not obtained by any deception?

Mens Rea of Theft 1. Dishonesty 2. Intention to permanently deprive

Dishonesty This is defined by S.2 Theft Act 1968 Well, sort of!!!! There has to be dishonesty And the intention to permanently deprive Parliament has not defined what they mean by dishonesty but have given 3 examples of what is not considered dishonest.

If act of defendant does not fit one of these 3 situations then jury must decide if they think the defendant acted dishonestly. This is a difficult question for a jury and after some uncertainty the Courts in R v Ghosh laid down a two part test for dishonesty.

R v Ghosh (1982)- 2 part test Would the accused's conduct be viewed as dishonest by ordinary people?- if no the person is NG as not dishonest (objective) If yes, then did the accused realise that their conduct was contrary to the standards of honest and reasonable people? (subjective)

3 statutory beliefs: If D holds any one of these, he is not dishonest Genuine belief is enough- it does not have to be reasonable 1-if he appropriates the property in the belief he has the right in law to deprive the other person of it (himself or a third party) 2-if he appropriates the property in the belief that he would have the other persons consent if they knew of the appropriation and the circumstances of it 3-If he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

Intention to Permanently Deprive This is defined by S.6 Theft Act 1968 The owner does not have to be permanently deprived of the goods for it to be theft. Can apply to hirer's if intention is to deprive for duration of lease If a D has not made up his mind to permanently deprive then he cannot be guilty of theft no matter what he does to the property When the D takes money in form of notes and coins, he intends permanent deprivation unless he returns the very same notes and coins The prosecution only has to prove that was the defendant’s intention

Cases Easom conditional intention, where the D examines property first to see whether it is worth stealing. If returned as decided not worth stealing there is no theft. The act is ‘permanently’ not ‘temporary’ Lloyd ‘lent’ a film from cinema to make a copy- conviction for theft was quashed because the film was returned in it original state and there was no intention to permanently deprive

“Borrowing” Borrowing is not theft Unless The intention of the borrower is such as:- “to treat the thing as his own to dispose of regardless of the other’s rights”

The circumstances of each individual case needs to be considered to decide the true intentions of the defendant R v Velumyl (1989)-even if the D intends to replace money if they spend the actual money it is permanent deprivation. A company manager took £1050 from the office safe. He said he was owed the money by a friend and he would replace it when friend repaid him. CA upheld his conviction for theft as he had the intention of permanently depriving the company of the banknotes taken from the safe, even if he intended replacing them.

See also: Chan Man-sin v AG for Hong Kong (1988) DPP v Lavender Marshall and others