Theft 1.pdf

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Property Offences
Criminal Law (University of Kent)
StuDocu is not sponsored or endorsed by any college or university
Property Offences
Criminal Law (University of Kent)
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Criminal Law Notes Property Offences
Theft
s. 1 of the Theft Act 1968 defines theft in its entirety.
There are five elements of theft and a person is guilty of it if they: appropriate, property, belonging to another, dishonestly,
with an intention to permanently deprive.
Property:
s.4(1) of the Theft Act defines property.
Land:
There can not be theft of land. However:
a. Where a defendant is acting as a trustee or personal representative, there can be theft of land. If the defendant has
been authorised to sell the land and sells more than he is allowed, he can be convicted of theft.
b. Where there is a thing on the land that does not form as part of the land such as furniture, there can be property
theft.
c. When a person picks something growing on the land, it can not be regarded as theft unless he is buying it to sell it
and it is done for commercial reasons.
Wild Creatures:
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s.4 of the Theft Act 1968 gives details to this.
Pets can be stolen, animals in the zoo too can be stolen however wild animals out in the open can not be stolen.
Information
Information can not be stolen.
Oxford v. Moss [1979]:
The Defendant, a student of engineering, took an exam paper with the intention of returning the paper having used the
information gained in order to cheat in his exam.
Held: The confidential information contained in the paper did not amount to intangible property for the purposes of the
Theft Act 1968. It may be an offence however in the Computer Misuse Act 1990 which deals with people having access to
confidential information.
Bodies
Bodies, parts of the body, corpses, etc are not property. In the purposes of the law of theft however it can be regarded as
property in three instances:
a. If a corpse is reduced to another person’s possession of it it becomes property. If it is in the hospital morgue, it is
regarded as property.
b. Bodily products become property if they are taken into someone’s control. An example is, blood stored at a blood
bank.
c. If someone has exercised special skills in relation to the corpse then it may be transformed to property.
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R v. Kelly [1999]:
Kelly was an artist. He was given permission to draw anatomical specimens held by the Royal College of Surgeons. The
specimens were of various body parts used for training purposes. During the course of his visits he met Lindsay who was
a junior technician working for the RCS. Kelly asked Lindsey to remove various body parts over a number of months.
These included three human heads, six arms, ten legs part of a brain and three torsos. Kelly made casts of the body parts
which were exhibited in an art gallery. Both Kelly and Lyndsey were convicted of theft and appealed contending the body
parts did not constitute property lawfully in the possession of RCS.
Held: Appeal dismissed. Convictions upheld. Parts of a corpse are capable of being property within section 4 of the Theft
Act, if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation
techniques, for exhibition or teaching purposes.
Belonging to Another:
s.5(1-4) makes clear what belonging to another means.
A defendant can be guilty of theft of their own item.
R v. Turner [1971]:
The defendant took his car into a service station for repairs. When he went to pick it up he saw that the car was left
outside with the key in. He took the car without paying for the repairs. He was liable for theft of his own car since the car
was regarded as belonging to the service station as they were in possession and control of it.
If the defendant is given property and is under an obligation to deal with it in a particular way, although under civil law it is
the defendant’s property, if there is an obligation to deal with it in a particular way then the property is treated as belonging
to the victim.
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R v. Gilks [1972]:
The Appellant placed a bet on a horse called 'Fighting Scott'. The race was won by a horse called 'Fighting Taffy'. The
manager of the betting shop mistakenly believed the Appellant had won the bet and paid out £106.63. The Appellant knew
that the manager was mistaken but accepted the money. He was convicted of theft and appealed on the grounds that
since there was no legal obligation to repay the money following the decision in Morgan v. Ashcroft, 1938 1 Kings Bench,
the money was simply a gift and therefore in law belonged to him. He argued that s.5(4) Theft Act 1968 relating to money
received by mistake required a legal obligation, moral obligation was not sufficient.
Held: His conviction was upheld because there was no need to invoke s.5(4) of the Theft Act 1968 since the property in
the £106.63 never passed to the Appellant and therefore the property belonged to another. However, if s.5 (4) had
applied, a moral obligation would not be sufficient to constitute criminal liability.
Cairns LJ: "Where a person's criminal liability is made dependent or his having an obligation, it would be quite wrong to
construe that word so as to cover a moral or social obligation as distinct from a legal one."
R v. Hall [1973]:
A travel agent received money from clients for deposits for their holidays. He paid these monies into the general current
account for the business. The business collapsed before he paid the money to book the holidays and the clients lost their
deposit.
The travel agent was not liable for theft as there was no obligation to deal with the money in a particular way under s.5(3)
Theft Act 1968.
In the case where the defendant receives something by mistake they are obliged to give it back and in the case they do
not then they can be found liable of theft.
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A-G Ref (No 1 of 1983) [1985]:
The defendant, a police woman, received an overpayment in her wages by mistake. She had noticed that she had
received more than she was entitled to but did not say anything to her employer. She did not withdraw any of the money
from her bank account. The trial judge directed the jury to acquit. The Attorney General referred a question to the Court of
Appeal.
Held: It was possible for a theft conviction to arise where the defendant had not withdrawn the money. There was a legal
obligation to return the money received by mistake.
Appropriation
This is highlighted in s.3 of the Theft Act. Appropriation occurs when:
The defendant has assumed rights of the owner.
The defendant doing something only an owner has the right to do.
R v Morris, Anderton v Burnside [1983]:
Conjoined appeals both involving the switching of price labels in supermarkets. Morris was arrested after paying a lower
sum for certain items, Burnside was arrested before paying for the goods. The question for the Lords to decide was
whether an appropriation required the assumption of all rights of an owner and also if there was an appropriation at what
point in time did this occur.
Held: There need not be an appropriation of all the rights of an owner. The appropriation took place when there was an
adverse interference with or usurpation of the rights of an owner which was at the point of switching the label, not at the
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point of taking the goods from the shelf.
Lord Roskill: "If one postulates an honest customer taking goods from a shelf to put in his or her trolley to take to the
checkpoint there to pay the proper price, I am unable to see that any of these actions involves any assumption by the
shopper of the rights of the supermarket...The concept of appropriation in my view involves not an act expressly or
impliedly authorised by the owner but an act by way of adverse interference with or usurpation of those rights. "
The Act of Appropriation does not have to be one that was not consented to.
Touching another person’s property is an appropriation whether the victim consented, requested or objected the act.
The victim’s state of mind at the time is irrelevant.
R v. Hinks [1998]:
Hinks, a young mother, befriended a 53 year old man called John Dolphin. He had been left money by his father and was
naive, gullible and of limited intelligence. Over a period of 7 months, the appellant influenced, coerced and encouraged Mr
Dolphin to withdraw sums, amounting to £60,000, from his building society account and for them subsequently to be
deposited in the appellant's account. She was subsequently convicted of theft and appealed on the ground that the sums
given were gifts which were valid in civil law.
Held: Conviction upheld. An appropriation exists even where the victim consents to the appropriation and civil
unlawfulness is not a constituent of the offence of theft.
R v. Gomez [1993]:
Gomez, was an assistant manager at an electrical goods shop. He along with other co-workers were asked by an
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acquaintance to supply goods from the shop in return for payment by two stolen building society cheques. Gomez
prepared a list of goods to the value of the cheques which he submitted to the manager asking him to authorise the supply
of the goods in return for a building society cheque in that sum. The manager instructed Gomez to confirm with the bank
that the cheque was acceptable, and he told him that he had done so and that such a cheque was "as good as cash." The
manager then authorised the transaction and the goods were delivered. The cheques were then dishonoured by the bank
and the involvement of Gomez and the other employees was discovered. They were convicted of theft and appealed
contending that as the manager had authorised the transaction there was no appropriation following R v Morris which
required an adverse interference of the rights of an owner. It was contended on behalf of the Crown that this was in
conflict with the House of Lords decision in Lawrence which held that an appropriation can occur notwithstanding the
consent of the owner of the property.
Held: The House of Lords followed Lawrence and upheld the convictions. An appropriation does not require absence of
consent. The Lords were critical of Lord Roskill's analysis of appropriation in R v Morris.
Lord Keith of Kinkel: "In my opinion Lord Roskill was undoubtedly right when he said in the course of the passage quoted
that the assumption by the defendant of any of the rights of an owner could amount to an appropriation within the meaning
of section 3(1), and that the removal of an article from the shelf and the changing of the price label on it constituted the
assumption of one of the rights of the owner and hence an appropriation within the meaning of the subsection. But there
are observations in the passage which, with the greatest possible respect to my noble and learned friend Lord Roskill, I
must regard as unnecessary for the decision of the case and as being incorrect. In the first place, it seems to me that the
switching of price labels on the article is in itself an assumption of one of the rights of the owner, whether or not it is
accompanied by some other act such as removing the article from the shelf and placing it in a basket or trolley. No one
but the owner has the right to remove a price label from an article or to place a price label upon it. If anyone else does so,
he does an act, as Lord Roskiil puts it, by way of adverse interference with or usurpation of that right. This is no less so in
the case of the practical joker figured by Lord Roskill than in the case of one who makes the switch with dishonest intent.
The practical joker, of course, is not guilty of theft because he has not acted dishonestly and does not intend to deprive
the owner permanently of the article. So the label switching in itself constitutes an appropriation and so to have held would
have been sufficient for the dismissal of both appeals. On the facts of the two cases it was unnecessary to decide
whether, as argued by Mr. Jeffreys, the mere taking of the article from the shelf and putting it in a trolley or other
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receptacle amounted to the assumption of one of the rights of the owner, and hence an appropriation. There was much to
be said in favour of the view that it did, in respect that doing so gave the shopper control of the article and the capacity to
exclude any other shopper from taking it. However, Lord Roskill expressed the opinion that it did not, on the ground that
the concept of appropriation in the context of section 3(1) "involves not an act expressly or impliedly authorised by the
owner but an act by way of adverse interference with or usurpation of those rights." While it is correct to say that
appropriation for purposes of section 3(1) includes the latter sort of act, it does not necessarily follow that no other act can
amount to an appropriation and in particular that no act expressly or impliedly authorised by the owner can in any
circumstances do so. Indeed, Lawrence v. Commissioner of Metropolitan Police is a clear decision to the contrary since it
laid down unequivocally that an act may be an appropriation notwithstanding that it is done with the consent of the owner."
Intention Permanently to Deprive:
Intention & Deprivation:
The defendant must intend to deprive the victim of the item. It also needs to be shown that the defendant intended to
deprive.
Even if the defendant takes someone else’s property and plans on returning it at a later time, it is still considered as theft.
R v. Velumyl [1989]:
The appellant was a company director. He took money from the company's safe and claimed that he intended to return it
after the weekend.
Held: His conviction was upheld. Unless he intended to pay back the exact notes and coins he had the intention to
permanently deprive the company of the money taken.
Moving the defendant’s property can amount to theft.
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R v. Lavender [1994]:
The defendant removed some doors from a council property that was due for demolition. He installed the doors in his
girlfriend's flat which was also owned by the council.
Held: He did have the intention to permanently deprive under s.6(1) as he treated the doors as his own to dispose of
regardless of the owner's rights.
If property of an individual is returned in an impoverished state, the defendants can be charged with theft since they are
not returning the actual thing they borrowed.
DPP v SJ, PI, RC [2002]:
The defendants took the victim's headphones, snapped them, and returned them. It was held that this could amount to
theft under returning the property in an impoverished state.
If the defendant gambles the victim’s property or involves it in a risky investment the defendant will be treated as intending
to deprive.
R v Marshall [1998]:
Three appellants asked members of the public leaving Victoria underground station for their travel cards or underground
tickets. They then resold the tickets on to other customers at a cheap price. They were convicted of theft of the tickets.
They appealed on the basis that it could not be said that they intended to permanently deprive London underground of the
tickets. Their appeals were dismissed.
Dishonesty:
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s.2 of the Theft Act 1968 sets out dishonesty in its entirety.
The common law test for dishonesty is set out in this case:
R v. Ghosh [1982]:
D was a surgeon. He was convicted of four offences under the Theft Act 1968 sections 20(2) and 15(1). During his work
as a locum surgeon he obtained money by claiming fees for work that others had carried out, or that had been carried out
under England's National Health Service. The jury found him guilty and he appealed on the basis that the trial judge had
told the jury to use their common sense to determine whether the accused's conduct had been dishonest or not. D argued
that the judge should have instructed the jury that dishonesty was about the accused's state of mind (a subjective test)
rather than the jury's point of view (an objective test). His appeal was dismissed.
Following this case, the law considers two questions to see if the defendant is dishonest or not:
1) Was the defendant dishonest according to the reasonable standards of honest people ?
2) Would the defendant realise that reasonable people would regard what he did as dishonest ?
If the answer to both is yes then the defendant has been dishonest, if otherwise then the defendant is not dishonest.
The Ghosh direction is not used if the dishonesty is clear.
The jury are expected to apply the contemporary standards of dishonesty and not rely on the judge for a direction.
R v. Feely [1973]:
Defendant was a branch manager of a firm of bookmakers. The firm sent around a notice to all branch managers that the
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practice of borrowing from the tills was no longer allowed. Regardless of the notice, defendant took money from the
branch safe. Defendant was then transferred to another branch and the cash shortage was discovered. Defendant gave
the successor branch manager an IOU for the amount. Defendant told the firm’s security staff that he borrowed the money
because he was short on cash and he intended to pay it back. Furthermore, defendant’s employers owed him some
money. The trial judge directed the jury that it was no defense for defendant to say he intended to repay the money and
that his employers owned him more than enough to cover what he had taken. Defendant was convicted of theft.
Was it proper for the judge to instruct the jury it cannot be a defense for a man charged with theft to say that when he took
the money he intended to repay it and had reasonable grounds for believing he would be able to?
A jury should determine whether or not an individual who takes money from his employer without permission acted
dishonestly and is therefore guilty of theft, or should be allowed a defense that he intended to repay the money.
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