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Theft

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Theft
1(1) of the
Theft Act 1968

 

Basic definition

"A person is guilty of theft if he

  1. dishonestly

  2. appropriates

  3. property

  4. belonging to another with the

  5. intention of permanently depriving the other of it.

thief and steal shall be construed accordingly"

(2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit.

Maximum 7 years' imprisonment, reduced from 10.

 

Mens rea of theft

Dishonestly

In the Theft Acts it is often said that "dishonesty does all the work".
 

It is the first element of two elements of mens rea in theft - no dishonesty - no theft.

 

Intention to permanently deprive

 

Is the second element of mens rea in stealing.

Actus reus of theft

Five elements

The actus reus of theft is the remaining parts of the Act when the mens rea has been removed.

 

Lawrence [1971] said that theft consists of four elements:

  1. A dishonest

  2. Appropriation

  3. Of property belonging to another

  4. With the intention of permanently depriving the owner of it’

It is best viewed as five elements, because ‘property’ has its own cases to consider, indeed the Act itself divides it into 5 parts.

 

Section 2 Dishonestly

What is not dishonest is ..

Sec 2(1) "A person’s appropriation of property belonging to another is not to be regarded as dishonest

(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or

(b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or

(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. 

(2) A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property."

 

So, the Act does not define "dishonest" but says what would not be dishonest.

  • Where someone appropriates property believing he has the right in law to deprive the other of it.

  • Where the appropriation is done in the belief that they would have the others consent if they knew about the appropriation.

  • If there is genuine belief that the owner of the property cannot be discovered by taking reasonable steps. This never applies to trustees or personal representatives.

The assessment of what is dishonest involves both judge and jury.

 

More about dishonesty

Societies changing view

The Theft Act does not provide us with a definition of what amounts to dishonesty because society's view tends to change.

 

Ghosh (1982)

Involved Section 15 of the 1968 Act - obtaining property by deception.

 

This requires evidence of dishonesty. The main issue of the case was to establish that the evaluation of dishonesty could be on both objective and subjective criteria.

 

Although the 'objective' assessment of someone's dishonesty is practical.

The court must take note of what the defendant also thought. (Subjectively).

 

This is referred to as the two-fold test.

 

The main criticism of which is that it does not eradicate the potential for inconsistency between juries.

There is always a problem to be had where juries are required to apply the "current standards of ordinary decent people".

 

Feely (1973)

In addition, the jury must ascertain that the accused realised that what he was doing was dishonest.

The main problem being if those people's standards did not subscribe to the standards of ordinary people. For example, Robin Hood.

 

A visitor from a country where public transport is free, who did not pay for his ride would not be dishonest - the first time.

 

Lightfoot (1993)

"There is a clear distinction between a person's knowledge of the law and his appreciation that he was doing anything dishonest".

Section 2 Subsection (a) belief in the legal right to deprive a person of property is not regarded as dishonesty; Small (1987)

 

Lloyd (1985)

Removed films from the cinema where he worked which were then copied and the originals returned to the cinema. Here it was argued that no outright 'taking' had occurred.

 

Other cases relevant to Dishonesty

Gilks
Boggeln v Williams [1978]
Greenstein [1976]
 

Section 3 Appropriation

Is the actus reus of theft

Means the assumption of the rights - or just one right - of an owner, whether or not the thief takes possession or uses the property.

 

More about appropriation

 

Property must be appropriated or sometimes simply 'taken'.

 

For example, a lecturer may for all reasonable purposes own the dry-wipe marker he uses in class. He may decide when to use it, when to throw it away, but if he were to sell it that would be wrongful appropriation and a theft.

 

Definition of appropriation is any assumption by a person of the rights - or just one right - of an 'owner'. The rights of an owner are sometimes referred to as a ‘bundle of rights’.

 

Gomez (1993)

 

Consent or no consent is irrelevant

The ordinary natural meaning of the word appropriation, is to take for oneself or to treat as ones own.

 

Is also the authority for the principle that consent or authorisation by a 'rogue' is irrelevant and theft would be committed.

 

In a 'self service' supermarket removal of goods from shelves is an authorised act (it is he very nature of shopping). It becomes unauthorised dependant on the defendant's intentions.

 

Gomez illustrates that even where consent appears to have been given, the courts look at the dishonesty of the act.

 

Morris (1983)

Concerned the substituting of lower priced price labels on more expensive goods. Even though the lower price was paid at the checkout, it still amounted to theft.

 

Appropriation: Adverse interference with those rights of ownership.

Lawrence v Commissioner of Police (1971)

 

An Italian student offering his wallet to a taxi driver only consents to the correct money being taken for the taxi fare.

 

Pitham & Hehl (1977)

A man knowing his friend to be in prison took others to his friend’s house and sold them furniture it was decided that a theft had taken place.

There had been assumption of the rights of ownership.

 

Atakpu & another (1993)

DD stole vehicles abroad and were stopped at Dover. The theft was complete abroad and the thieves could not steal again in England

 

Professor Glanville Williams in "Appropriation: a single or continuous act?" [1978] Crim LR 69:


"A man steals a watch, and two weeks later sells it. In common sense and ordinary language he is not guilty of a second theft when he sells it. Otherwise it would be possible, in theory, to convict a thief of theft of a silver tea pot every time he uses it to make the tea."

Although Gomez decides differently and implies that there can be no such thing as continuing appropriation; the courts have decided to leave this issue to the "common sense" of the jury.

 

Even innocent appropriation can become theft if there is any later an assumption of the right of owner.

Sec 3(1) "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.

If the property is bought normally he obtains ownership, even if it is stolen

Sec 3(2) "Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property."

Other cases relevant to appropriation.

Monaghan [1979]

Eddy v Niman [1981]

Anderton v Wish [1980]

Gallasso [1993]

Hinks
 

Section 4 Property

What is property

Includes

Money, personal property, rights of action (e.g. copyright and debts).

 

It is theft for a person (not in possession of land, unless a tenant) to sever or cause to be severed things forming part of the land.

 

It’s OK to pick mushrooms, flowers, fruit or foliage from a plant or trees growing wild, provided it is not done for sale or other commercial purposes. (What about supermarket wild mushroom soup?)

 

So, sellers of daffodils or Christmas trees obtained from the wild would be guilty of theft.

 

Limitations to the section include land and things forming part of the land cannot be stolen.

 

However, trustees might sell or dispose of the land therefore if they use the money from the sale of land for themselves then they can be charged with theft of the profit from land.

 

Oxford v Moss (1979)

A university student seeing a proof copy of an exam paper was not guilty of theft because the exam paper was information and 'information' cannot be stolen. Note: The student 'saw' the paper he did not physically remove the paper.

 

Property also includes things in action and other intangible property; ‘things in action’ are also known as ‘choses in action’.

‘Chose in action’ (not actually used in the Theft Act) describes all personal rights of property, which can only be claimed or enforced by action, and not by taking physical possession. The term includes shares in a company.

 

‘Other intangible property’ includes patents, copyright and design right.

 

 "other intangible property"

The Privy Council held in Attorney General of Hong Kong v Nai-Keung [1987] that export quotas for textiles in Hong Kong are a form of ‘other intangible property’, because such quotas may be freely bought and sold.

 

Bank accounts

Cheques

A cheque as a piece of paper, a cheque form, is personal property and may be stolen, regardless of the balance in the account upon which the cheque is drawn Duru [1974].

 

Things in action

Bank accounts in credit

An account held at a bank or a building society is a thing in action.

 

If the account is in credit, a relationship of debtor and creditor exists.

 

The debt cannot be physically handled or possessed, but it can be enforced by action and is therefore a thing in action may be stolen Kohn (1979) Preddy [1996].

 

Overdrawn accounts nothing to be stolen

 

Thus where the account is overdrawn, there is no "thing in action" capable of being stolen Kohn (1979).
 

Electricity; wild creatures; bodies

Electricity

Is never "property" under the Theft Act and cannot be stolen, this includes electricity used in telephones.

 

Wild Creatures

 

Reduced into possession means the process of capturing them or killing them.

Wild creatures are property, but where a wild creature is not either tamed or ordinarily kept in captivity or is the carcass of such a creature, it can be stolen only if it has either

(a) been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or

(b) another person is in the course of reducing it into possession.

 

Human bodies cannot be stolen

The traditional view is that human corpses cannot belong to anyone, cannot therefore be stolen.

 

Body fluids can be stolen; in Welsh [1974] a driver was guilty of theft for removing his own urine specimen.

It may also be possible to steal parts of the body upon which work, e.g., of preservation, has been done as with Egyptian mummies.

 

The Human Tissue Bill 2003 - prompted by the Alder Hey organ-stripping scandal - proposes a regulating authority to make sure that consent is obtained before organs and tissues are kept by hospitals.

Thousands of hearts, brains and other body parts had been retained without permission.

 

A new criminal offences of "trafficking" in body parts, or keeping tissues without consent will be created.

Section 5 Belonging to another

The identity of the ‘other’ is generally irrelevant. All that is required is that the property belongs to someone other than the accused.

 

Section 5 (1) Property belongs to any person having possession or control

It is possible to steal your own property in some circumstances

Sec 5(1) "Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest)."

Occasionally the property 'stolen' actually ‘belongs’ to the defendant at the time of the appropriation.

 

Turner (1971)

Turner had taken his car to a garage to be repaired. The job was finished and the car was parked outside overnight awaiting collection. Turner used his spare set of keys to remove the car without paying.

 

The jury found Turner guilty of stealing his own car. The reason was that the garage proprietor had temporary possession and control of Turners car until the bill had been settled.

 

Meredith (1973)

Is a similar case but here the removal was from a police pound where the car had been placed because it was causing an obstruction.

 

Meredith did not steal his own car presumably because of the lack of any police 'right' over it. This right is called a ‘lien’. If the police had incurred costs that could be passed on to Meredith, this might have altered the case.

 

Greenberg (1972) and Edwards V Ddin (1976).

Both cases, it involved the filling of petrol tanks of cars and then the owners driving away without paying.

 

The courts held that at the time of appropriation the driving away the petrol was deemed to have belonged to the defendant.

 

The charge should not be for theft but for dishonestly obtaining property by deception.

 

Abandoned Property.

If property is genuinely and honestly abandoned then it cannot be theft because it belongs to no one.

 

Note should be made that rubbish deposited in council refuse bins, becomes the property of the council. The issue of control is quite important here. Seemingly, abandoned property in a 'derelict' condition can still be appropriated if someone is in 'control of the site'. For example by the erection of fences to exclude trespassers, see Woodman (1974).

 

The Crown

The Crown has a prerogative right in royal fish (that is, whale and sturgeon caught within territorial waters) and wild swans, which right was preserved by the Wild Creatures and Forest Laws Act 1971.

 

Under the Treasure Act 1996, when treasure is found, it vests, subject to prior interests and rights, in the Crown.

 

Sec 5(2) Trust property

Trust property ‘belongs’ to the trustee AND…

Sec 5(2) "Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right."

 

Trust property ‘belongs’ to the trustee who has legal title to it and also to ‘any person having a right to enforce the trust’, that is, any beneficiary of the trust or, in the case of a charitable trust.

 

A trustee who appropriates trust property with the intention of defeating the trust is to be regarded as intending to deprive the person who has the right to enforce the trust of property (Theft Act 1968, s. 5(2)).

 

Sec 5(3) Property received under an obligation

Possession.

Sec 5(3) "Where a person receives 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 or proceeds shall be regarded (as against him) as belonging to the other.

A person who is in possession of someone's property may appropriate that property by doing something inconsistent with the authorisation given by the owner.

 

Examples

Money collect for a charitable purpose (a whip-round) must be used for that purpose.  Money given to make a purchase (as distinct from a deposit) must be used for that purpose.

 

Money in the bank

A bank account belongs to the customer Kohn (1979).

 

Writing of a cheque

When a thing in action is created by the writing of a cheque, the only person to whom it can belong is the payee. Thus he cannot steal a thing in action when a cheque is written in his favour Davies (1988).

 

Sec 5(4) Property received by mistake

Overpayments or payments received by mistake must be repaid.

Sec 5(4) "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."

 

Property belonging to another: equitable interests

When money is paid over on the basis of a mistake, the payer of the money retains an equitable proprietary interest Chase Manhattan Bank NA v Israel-British Bank (London) Ltd [1981] and Shadrokh-Cigari [1988].

 

Consequently, the money belongs to another as against the recipient of that money.

 

Sec 5(5) Companies can be the owners of property independent of their members

May be a corporation such as a company

Sec 5(5) "Property of a corporation sole shall be regarded as belonging to the corporation notwithstanding a vacancy in the corporation."

The other to whom the property belongs need not be an individual, but may be a corporation such as a company incorporated by registration under the Companies Act 1985.

 

Such a company is a legal entity separate from its members (shareholders) and directors. It can own money, things in action and other property which may be stolen from it by persons who are in total control of it by reason of shareholding and directorships Attorney-General’s Reference (No. 2 of 1982) [1984] and Philippou (1989).

 

Partners

Bonner [1970] A partner, who has a proprietary interest in partnership property, may steal it, since his co-partners also have such an interest.

 

Other cases of relevance to Section 5

Kaur [1981]
Turner [1971]
Gilks [1972]
Lacis v Cashmarts [1969]
Lawrence
Hale [1979]
 

Section 6 Intention permanently to deprive

Mens rea

This is the second element of mens rea necessary for theft.

 

Borrowing

Sec 6(1) "A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal."

This means borrowing is not theft.

 

But, if having borrowed property it, and later decide to keep it, this would be theft.

 

Same as permanently depriving.

Sec 6(2) Without prejudice to the generality of sub-s (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other’s authority) amounts to treating the property as his own to dispose of regardless of the other’s rights.

 

To take a ticket and return it to the owner at the end of the concert.

 

To take someone’s property and sell it back to him by pretending to be the owner.

 

In these cases the true owners were not permanently deprived, but they were cases of theft, because there was an intention by the borrowers to treat the property as their own, and to deprive the owners of their rights to the property.

 

Attorney General's Reference (Nos.1 and 2 of 1979) CA

D must intend to permanently deprive the other of property, and a charge of theft will fail if the indictment is worded in a way that suggests that D would steal anything of value he were to find.

 

Equivalent to an outright disposal

In R v Coffey (1987) the owner need not be deprived of his property forever if the appropriation amounted to an outright disposal.

 

So, the "borrowing" of a theatre ticket until the following day would render the ticket useless, this is equivalent to an outright disposal although it is retained for only a day because it means the owner has been permanently deprived of it.

 

Conditional Intention.

Walkington (1979)

If property is taken with the intent to decide at a later stage whether to keep the articles, this conditional intention is acceptable for a charge of attempt and for the full offence of theft.

 

Other cases relevant to intention to deprive.

Easom [1971]
Morris 
Hussein [1978]
A-G's References (nos. 1 & 2 of 1979)

Treasure trove is treasure hidden (say by an ancient Briton) with the intention of recovering it when the danger that drove him to hide it had past.

There are problems with treasure trove

Where individuals have detected metal objects on private land. The courts have tended to give the landowner rights to the property if they think the property had been hidden. If it is lost it will be given to the finder.

 

Waverley BC v Fletcher (1995)

The detection and removal of a medieval brooch from parkland was held to be a trespass. The council had better title to the brooch.

 

Reform

Criminal Law Revision Committee.

The Theft Act 1968 was an attempt to make the law of theft more intelligible.

 

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