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Flashcards in Belonging to another Deck (36)
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1

Where is it defined

Theft Act 1968, section 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).”

2

Does V have to have exclusive possession?

Belonging to another does not necessarily mean that V possessed exclusive ownership of the property appropriated.
Provided V has any of the interests described above the property may ‘belong to’ him for theft purposes – if X borrows Y’s handbag to go to a party and Z is holding it for X when D snatches it, D can be charged with theft from X, Y or Z.

3

What happened in Wacker

D sells to V a video machine which is faulty. V returns it to D for repair, but D did nothing. V took legal action to get the price back. D then sold the recorder and was charged with its theft. The CA held that this was wrong, there could be no theft unless the prosecution could establish that the video belonged to someone else at the point that D resold it. The problem is when V takes legal action to get the price back, he may have rescinded the contract, making D the sole owner. Prosecution must prove this was not the case

4

The property must belong to someone but which case show the breadth of s 5(1) is very wide

Sullivan (money found on corpse did not belong to anyone) must be wrong – the deceased’s estate belongs to the state if no-one else.

5

who will property left to charity belong to?

Property left for collection by the council or a charity is likely to ‘belong’ in law either to the original owner or to the party intended to take it.

6

What if property is truly abandoned

-However, if property is truly abandoned then it cannot belong to anyone, but this is very rare. V must leave the property and be indifferent as to any future appropriation.

7

Can rubbish belong to another

Rubbish left remains your property and you can take it back. As to the collection of is, property passes when it is intended to pass, so when the council collect it, it can be inferred it is now the authority’s possession.

8

Which case showed that rubbish belonged to someone

Williams v Phillips: a dustman sold some of the items he had collected instead of taking them back to the local authority, this was held to be stealing from their employer. Also, they were dishonest as there was an agreement with the local authority that anything of value would be sold and the proceeds shared.

9

Case for belonging to another for bags left for charity

Toleikis: goods were left out in Charity bags outside homes. D took the bags for himself. The prosecution charged him with stealing the bags from the charity as there was a statement on the bag, that goods donated became their property.

10

Another charity bag case

Ricketts, bags had been left outside charity shop when it was closed. D took the bag, this was said to be theft from the original owner. He had no abandoned the ownership, but made an incomplete gift to the charity. The gifts remained in his possession, until the charity took ownership. Could have also argued that charity had possession as had control since on their lands.

11

When we V have possession to control

where she intends to control or possess it, and maintains some degree of control over it.

12

What happened in Turner (No 2)

D took his car to a garage for repair. The car was locked by the repairer and left outside. D, using a spare set of keys, drove the car away, dishonestly intending not to pay the bill. CA held that the garage had sufficient control over the car; it ‘belonged to another’, and D was guilty of stealing his own car.

13

Why is Turner criticised?

Turner (No. 2) is criticised because on the CA’s view of the facts D had the right the car (V may have had rights under a repairer’s lien, but this was not relied upon). Cf Meredith where D was held entitled to take back his impounded car. But it would require a non-literal reading to reverse Turner (2) - what should the courts do? It is unlikely that Parliament could have intended that D could steal his own property in this way. The reasoning in Turner was expressed too widely, indicating that appropriation in all such circumstances would amount to the taking of property belonging to another.
For example, If V’s bag is stole, and V then steals is back. V has every right to take it back. This was recognised in Meredith

14

What happened in Rostron

D and others trespassed onto a golf course at night, with diving apparatus, and took lost golf balls from a lake which was part of the course driving range. D was charged with theft of the balls. The court found them guilty. The balls belonged to the gold course, although the course owners did not intend to collect the balls, they still maintained possession and control over them.

15

What are proprietary rights-

Proprietary rights/interests may be divided between different parties. Property may belong to more than one person in this sense, and follows D that is a co-owner can steal it from someone else who has shared ownership.

16

Which case showed that a co-owner can steal property from the other owner

Bonner

17

Case that a director can steal shares from their own company

AG’s Reference (No 2 of 1982): D kept a pub, he was supposed to sell only the brewery beer, but he sold his own and kept the profit. Question of what kind of interest did the landlord have in the property? Did D hold the profit on trust? CA said no trust. But held that even if there was a trust, still no prosecution for theft as this is an interest which had not been recognised when the act was passed, and a problem of the civil law changing and the person then being guilty of a criminal offence without fair warning.

18

What is S 5(2) TA

Section 5(2) of the Theft Act 1968 allows trust property to ‘belong to’ anyone with a right to enforce a trust; i.e., the beneficiaries or the Attorney General in the case of charitable trusts

19

Case for constructive trusts

Holmes, the proceeds of an automated transfer of funds between banks, which was brought about by D’s fraud regarded as held on constrictive trust by him and therefore belong to the V under S 5.

20

What happens if property is transferred by mistake?

Where property is transferred by mistake (the Chade Mahattan principle) property will be regarded as belonging to the person who transferred it by mistake.

21

Cases for mistaken transfer

Shadrokh-Cigari: £286 was intended to be deposited, but mistakenly £2860 was deposited, then D transferred most of the funds to his own account. It was held the bank had an equitable proprietary interest, so the guardian could steal, even though not recognised when the TA was enacted.
Webster, a solider, X, mistakenly issued with 2 medals, he passed the other to D. D who sold it on the internet and convicted of stealing from the SS, who retained equitable proprietary interest under S 5(1).

22

D commits no theft if no other person he has a s.5(1) or (2) interest when he appropriates. Except in the 2 exceptions:

S 5(3) and s 5(4)

23

What is s 5(3)

D receives property from/on account of another and D is under a (legal) obligation to retain and deal with it or its proceeds in a particular way. It is regarded as continuing to belong to the other.

24

What must D be to come under S 5(3)

D must be under a legal, opposed to a moral, duty to deal with the property in a particular way. This is a question of law.

25

Cases for S 5(3)

R v Hall and Walin

26

What happened in R v Hall

travel agent takes deposits but does not provide the holiday. Although there is an expectation that the trip will be organised, there is no expectation that they will do so on the particular money provided. Therefore, even where the company dishonestly fails to organise the trip there is no theft, although there will be a breach of a civil/contractual obligation

27

What happened in R v Walin

D organised events for a charity but spent the proceeds on himself. CA held there was a clear obligation, if not to keep the notes and coins, but at least retain their proceeds, that sum he had received was earmarked for them.

28

What is S 5(4)

D gets property by another’s mistake and D is under a (legal) obligation to make restoration of it, its proceeds or its value. It is regarded as belonging to the person entitled.

29

Cases for s 5(4)

Moynes v Cooper and Ag Reg (No 1)

30

What happened in Moynes

D was payed more than he what he was entitled to, which he then kept. It was held there was no theft as the property had been transferred to him. To reverse this decision s.5(4) held it is deemed to continue to belong to the V in criminal law, even if civil law it doesn’t.

31

What happened in Ag Ref No 1

- Ag Ref (no 1): police woman was over paid by her employer, discovered the money and did nothing about it, at trial acquitted of theft. CA on reference by AG said it could be theft, it fell under s.5(4), she had a legal obligation to restore the property.

32

What if V has no remaining interest in the property?

Applying the general rule, there is no recourse under s.1 Theft Act example - D eats a meal in V’s restaurant and only then decides to leave without paying. Problem, if MR is only formed after he has consumed the meal, at that point, who does the food belong to, the D. No real point in V reserving proprietary rights, as the meal as passed to the D and he cannot steal it.

33

What happened in Corcoran v When

D believed that a friend had payed for the meal, and only found out later that the meal had not been paid for. The court held it would be ridiculous to regarded his failure to pay as theft of the meal he had already consumed it. The same would be true if D ate the meal, then decided to run off, this would be more dishonest than the D in Corcoran, but property will still have passed before D became dishonest.

34

What happened in Edwards v Ddin

The defendant went to a petrol station and filled up with petrol. He then asked the attendant to put oil and water in the car. Whilst the attendant washed his hands the defendant drove off without paying. His actions did not amount to theft as in contract law the property in the petrol passed to the defendant when it was put into his petrol tank. At the time of forming the intention not to pay for the petrol, it already belonged to him.

35

Similarities between Edwards and Corcoran

In both cases, D has acquired all the relevant interests in the property by operation of civil law before he becomes dishonest.

36

What is the alternative offence in s 3 TA

Making off without payment but only applies where only applies where D is expected to pay ‘on the spot’, includes payment due at time of collecting goods on which work done/service provided (s.3(2)). (Would not cover Corcoran situation).