Property

Question 1

Where is property defined

Answer 1

Theft Act, section 4: “(1) ‘Property’ includes money and all other property, real or personal, including things in action and other intangible property.”

Question 2

Where is the definition of property founded from?

Answer 2

civil law concepts and the criminal law cannot ‘float free’ of these concepts.

Question 3

Case showing the property is widely defined

Answer 3

Smith: D argued that heroin taken from V in a robbery could not be the subject of a charge of Theft, as it was illegal for V to possess it. However, property ‘includes … all… property’, which means that anything that is property in civil law can prima facie be stolen, even property that it is an offence to possess. It would be contrary to public policy and public order to allow otherwise.

Question 4

What is real property?

Answer 4

A reference to land

Question 5

What is person property

Answer 5

is a reference to all property that is not land and that includes property that is illegal or prohibited (Smith)

Question 6

What is a thing in action

Answer 6

A category of intangible property where D has the right to sue another for a particular sum.

Question 7

Can a bank account be stolen>

Answer 7

a bank account can be stolen. Depositing money into a bank creates a form of intangible property and a right to sue the bank for this particular sum.

Question 8

Can an over draft be stolen

Answer 8

D can also steal from an overdraft, however if D has transferred money from an account that V has no right to sue for e.g. where D has transferred money in excess of V’s overdraft.

Question 9

Case for stealing an overdraft

Answer 9

Kohn: D was an accountant who had control over the company’s finances with access to their account. He drew on the account for his personal use, and in so doing was appropriating the company’s property. He continued drawing against the overdraft, he was stealing that as well, as an agreed overdraft in a thing in action.

Question 10

What happened in AG of HK v Than Nai-Keung

Answer 10

D, a director of company A and company B, sold export quotas from one company to the other at a gross undervalue, which he was not entitled to sell. Although the export quotas did not represent a thing in action, they were held to constitute other intangible property and therefore were subject to theft.

Question 11

What is the problem in regard to stealing cheques

Answer 11

A cheque which is given by V for consideration creates a thing in action. So if V, for example, was tricked into writing a cheque in D’s favour, D has not taken V’s right to sue, instead the thing in action which D has gained is not property which has ever belonged to V and cannot be the subject of theft. The problem is that D does not commit theft until he presents the cheque and causes the transfer. We could say that the cheque is tangible property, but since D does not intent to keep the paper, there is no intention to permanently deprive. The other option is to say that the cheque is valuable security, a piece of property that creates certain financial rights.

Question 12

which approach to cheques will probably be the favoured one?

Answer 12

The other option is to say that the cheque is valuable security, a piece of property that creates certain financial rights. This approach has been adopted in Australia although never accepted in this jurisdiction. (N.B. the decline of the use of cheques makes this less of an issue, although could apply to paper tickets).

Question 13

Is electricity property?

Answer 13

Electricity is not property, but there is a separate offence within the section 13 of the Theft Act of wasting or diverting another’s electricity ‘abstracting’

Question 14

Case for abstracting electricity

Answer 14

Low v Blease: ‘abstracting’ electricity. D made an unauthorised phone call, this was not theft of any electricity used. But offence under S 13 of abstracting electricity which he could have been charged for

Question 15

Can confidential information be stolen?

Answer 15

No, Confidential information is not property.
Oxford v Moss: a student got a proof copy of the exam paper before he was due to take it, read and returned it. It was held that he could not steal the information. Could not steal the paper, as he had not intent to deprive the university of it.

Question 16

What does Professor Smith argue i

Answer 16

Professor Smith argues that if an item cease to be of value as a result of D’s conduct and he knows it, it may constitute an intention to permanently deprive e.g. take ticket to football match but gave it back after a game.

Question 17

Can services be stolen?

Answer 17

Services acquired cannot be stolen e.g. taxi ride or haircut, but subject to other offences e.g. making off without payment S 3 or S 11 to obtain services dishonestly (Fraud Act).

Question 18

Can bodies, corpses, bodily fluids be stolen?

Answer 18

No, apart from in exceptional cases typically where has been done on the thing, e.g. a mummy in a museum, a persevered sample (Kelly and Lindsay)

Question 19

Case where taken body parts

Answer 19

Kelly and Lindsay: D was convicted of theft for taking body parts from the Royal College of Surgeons to use in their art project, all these items had undergone some work by college staff so came within the exception. But if D taken a ‘fresh’ body which had been left to medical science, that would not have been theft. CA recognises this is an odd rule, but it should be for Parliament to change the law.

Question 20

When will bodily fluids amount to property

Answer 20

Bodily fluids which are intended to be held of controlled can amount to property.

Question 21

Case for bodily fluids

Answer 21

Yearworth v N Brotstol NHS Trust: a facility allowed people to store sperm transplants if cancer treatment left them infertile. There was an application of skill in the storage, so could have been said that the exception applies. However, the court decided on the general principle that the men must own their own sperm which seems sensible. Seems unclear what criminal law would do if such a case put before them today.

Question 22

Where are the exceptions to the definition of property?

Answer 22

S 4 highlights a number of specific exceptions to the definition of property.

Question 23

What is s 4(1)

Answer 23

a person cannot steal land

Question 24

What is s 4(2)

Answer 24

s 4(2) provides that a person cannot steal land, or things that are part of land and are severed from it, other than the exceptional cases in s 4(2)(a)-(c).

Question 25

What are the exceptions to being able to steal land?

Answer 25

Exceptions include severance (s 4(2)(b)) by a person not in possession e.g. D who dismantles and takes his neighbours shed; a trustee dealing with land in breach of trust (s 4(2)(a)); and a tenant who appropriates a fixture let with the property e.g. a greenhouse.

Question 26

Can wild plants be stolen?

Answer 26

A person not in possession of land who picks wild mushrooms or flowers from wild plants does not deal unless he picks for sale or reward or other commercial purpose, s 4(3). However, intention at the time of picking remains important. If she picks berries with the intention to make jam for herself, but later decides the sell the jam, she will not be guilty of theft.

Question 27

Can wild animals be stolen?

Answer 27

S 4(4) will generally not be property for the purposes of theft, an animal can be stolen where it has been tamed or kept in captivity, expect where another has reduced it into possession or is in the course of doing so.

Question 28

What if S kills and removes a wild animal

Answer 28

• If D kills and removes a wild animal from V’s property, such as a peasant, whilst D may be guilty of a poaching offence, he will not be guilty of theft.