Chapter 20: Offences against property - Theft

Question 1

What is the statute for the topic on offences against property?

What is there to note about the Act?

Answer 1

Theft Act 1968

• Do not use Theft Act 1978 (this is the amended Act)
• The offences are still provided under the 1968 Act

Question 2

What is the statute for Theft?

What are the relevant provisions, and what do they provide for each?

Answer 2

Section 1 of the Theft Act 1968

• Section 1 – definition of theft
• Section 2-6 – definition provision
• Section 7 – charging provision

Question 3

What is the definition for theft? What section provides this?

Answer 3

Section 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.”

Question 4

What are the 5 elements of theft?

Answer 4

AR

1. Appropriation (Section 3)
2. Property (Section 4)
3. Belonging to another (Section 5)

MR
1. Dishonest (Section 2)
2. Intention to permanently deprive (Section 6)

Question 5

What is the definition of appropriation? (Section 3)

What case provides this definition?

Answer 5

“Essence of appropriation is the fact that the act is by way of “adverse interference or usurpation of the owner’s rights.” - Morris (1983)

Question 6

What are the 2 cases for appropriation?

Answer 6

R v Morris [1984]

Chan Man-Sin v A-G for Hong Kong (1988)

Question 7

R v Morris [1984]

What was the principle that was thought?

appropriation

Answer 7

Context

• This case created the common fraud of label-switching in a self-service store

Facts

1. D had switched the price tags of a product in a supermarket
2. Switched to get a lower price for the goods that they wanted
3. D and E appealed against conviction of theft

Held

1. Sufficient appropriation
2. HOL preferred the narrow view that there need not be a assumption of all rights - but sufficient if one right was assumed
3. On grounds that the rights of the owner included the right to determine the price, the right to place the price tag, and even the right to touch the item in order to change the price tags

Note

• Some authors suggest that even touching is sufficient

Takeaway

• Taking the item was not appropriation as it was consented to
• However, switching the price tags were adverse to the owner’s rights
• And there need only be 1 right that is assumed

Question 8

Chan Man-Sin v AG for Hong Kong (1988)

appropriation

Answer 8

Facts

1. D charged with theft of the proceeds of a bank account

Held

• Theft took place as early as presenting the forged or unauthorised cheque
• This is still appropriation even though there was no way it could adversely affect the interest of the account holder
• No property was touched, but still constituted appropriation

Takeaway

• What matters is not necessarily the physical object being taken
• But merely an assumption to appropriate

Question 9

Is there appropriation even when “consented to”?

What are the 4 cases that support this idea?

Answer 9

• Lawrence v MPC [1972]
• Dobson v General Accident (1989)
• R v Gomez [1993]
• R v Hinks [2000]

Question 10

Lawrence v MPC [1972]

consent - appropriation

Answer 10

Facts

1. P was an Italian with little knowledge in English
2. He asked D, a taxi driver to take him to a certain address and tendered £1 which was more than sufficient for his fare
3. D asked for £5
4. P agreed to D taking his money

Issue

• There was no deception through obtaining the money

Held

• Unlawful appropriation/theft
• Consent is irrelevant for appropriation

Takeaway

• Appropriation can occur even when the V consents to the taking

Question 11

R v Gomez [1993]

IMPORTANT - wrongly decided

consent - appropriation

Answer 11

Context

• Approved Lawrence v MPC

Facts

1. G persuaded his manager to agree to sell goods at the value of £17,000 to his accomplice X
2. Also persuading him to accept 2 cheques
3. Cheques were stolen and useless (both D’s knew)

Held

1. Appropriation need not be concerned with the adverse interference or usurpation of the owner’s rights
2. HOL stated that inducing the owner to part his property was appropriation of property
3. Also mentioning that it was irrelevant for there to be consent or authority of the owner. As long as there was dishonest intention to permanently deprive

Takeaway

• Consent is irrelevant
• Only need dishonesty & intention to deprive

Note

• Because of this case, the meaning of “appropriation” has widened within the definition of theft
• Right decision should have been - charged with obtaining property by deception, under
• Section 15 of the Theft Act 1968
  Today - they should have been charged under the Fraud Act 2006, on grounds that the goods were actually the 3rd party’s

Question 12

What if the victim consented?

R v Hinks [2000]

consent - appropration

Answer 12

Issue

• Can there be appropriation where the D has an indefeasible (absolute) right to the property

Facts

1. D befriended the V and encouraged him to give her money from V’s bank account
2. V consted and gave the money
3. There was no evidence of duress or deception while parting with the money
4. D argued that they were gifts from the V and had voluntarily relinquished his rights to it

Held

1. Appropriation & theft
2. Lord Steyn stated that there was appropriation and was guilty of theft for proof of dishonesty
3. On grounds that it didn’t matter if the D gifted money or not, as this was “assuming rights of ownership”
4. Consent was irrelevant

Takeaway

• Appropriation doesn’t matter if owner gave consent or not
• But matters whether there is dishonesty

Question 13

What are the 4 other examples to appropriation?

Answer 13

1. Appropriation when already in possession of goods
2. Section 3(1) - “where he has come by the property without stealing it, any later assumption of right to it by keeping or dealing with it as owner.”
3. If D has limited authority to deal with property, and exceeds authority
4. V hands over goods due to intimidation

Question 14

What is the definition of property? What is the section that provides this?

Answer 14

Section 4(1) - “Property” includes money and all other property, real or personal, including things in action and other intangible property.’

Question 16

What are the 4 kinds of properties?

Answer 16

1. Money
2. Intangible property / things in action
3. Real property
4. Corpse

Question 17

What is considered property regarding “Money”

Answer 17

Coins

Bank Notes

Question 18

What are “Intangible property” / ‘things in action’ that are allowed and not allowed?

Answer 18

Allowed

1. Debts - only discharged if forgiven or paid (R v Davenport [1954])
2. Company shares (can’t steal actual paper ‘shares’)
3. Copyright or trademark (intellectual property)
4. Credit balance in bank account
5. Cheque (R v Kohn [1979])

Not allowed

1. Electricity (Low v Blease [1975])
2. Confidential information (e.g. exam question paper) - Oxford v Moss [1978]

Question 19

What are the 3 relevant subsections that provide what “real property” is

Answer 19

1) Section 4(2) - Land or things forming part of the land and served from the land, can’t be stolen unless -

• D is a trustee, personal representative, attorney, liquidator of the company sells or disposes the land
• When not in possession of land, and goes to appropriate something from the land
• When being in possession while under tenancy, appropriates anything from the land

2) Section 4(3)

• Deals with wild flowers, mushrooms, fruit and foliage, which can’t be stolen by picking unless they are picked for commercial purposes for sale

Section 4(4)

• Wild animals tamed or untamed are property. But a person can’t steal a wild creature not tamed or ordinarily kept in captivity, or the carcass of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing into possession

Question 20

Can corpses be considered property? What is the GR & Exception?

What is the case for the exception?

Answer 20

General rule

• Law does not recognise corpse as property, therefore can’t be stolen

Exception

• If the corpse is acquired different attributes by virtue of the application of skill (i.e. dissection or preservation for exhibition or teaching purposes)
• Courts note that in the future, corpses can possibly be property for purposes of Section 4 (where used for transplants, extraction of DNA, or exhibition in trial)

Case

• R v Kelly [1998]

Question 21

What is the provision that provides the definition for ‘belonging to another’?

Answer 21

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.”

Question 22

What are the 5 situations for ‘belonging to another’

Answer 22

1. Person who has possession or control
2. Person who has proprietary rights or interest
3. Section 5(2)
4. Section 5(3)
5. Section 5(4)

Question 23

What is ‘person who has possession or control’?

What is the 2 cases for this?

Belonging to another

Answer 23

Introduction

• Requires both intention to possess and certain degree of dominion (control)

Case

1. R v Woodman [1974]
2. R v Rostron (Terry) [2003]

Question 24

R v Woodman [1974]

belonging to another - posession or control

Answer 24

Facts

1. P sold all scrap metal on certain business premises to Q
2. Q removed most of it but left some as being too inaccessible to be worth expense of removal
3. D entered the premise to take some of the scrap

Held
1. Theft
2. P continued to control the site and his conduct in raising fences and posting notices showed he had intended to exclude others from it

Takeaway

• Ownership comes from who has possession or control over the property

Question 25

What is meant by 'Person who have proprietary rights or interest'? What is there to note about this? What is the case for this?

Answer 25

Introduction * **Ownership** - property is also to be regarded as belonging to any person having **proprietary right/interest** in it Note * Sometimes the owner can steal his **own property** if the property is in custody of another Case * **R v Turner (No.2) [1971]**

Question 26

Can a person steal their own property? - **R v Turner (No.2) [1971]** ## Footnote Belonging to another - proprietary rights/interest

Answer 26

Facts 1. D took his car to garage to be repaired 2. Repairs were almost done and the car was parked outside the road 3. D without telling the garage owner or offering to pay, drove away Held 1. Theft (of his own property) 2. The mere fact that the garage owner had **possession** and **control** was sufficient Takeaway * Even if it was his property, theft is still possible * As **at the time**, the possession and control was under the garage owner

Question 27

What is **Section 5(2)** for belonging to another?

Answer 27

Introduction * where trust property belongs to the **beneficiary** who has **equitable interest** in the property Example * Theft is possible where the trustee appropriates the trust property

Question 28

What is **Section 5(3)** for belonging to another? What are the 2 cases for this?

Answer 28

Where D receives property from **another**, and - * Is under an **obligation** to the other; * to **retain and deal** with property or its proceeds; * in any particular way the property shall be regarded as belonging to another Case * R v Huskinson [1988] * **Davidge v Bunnett** 1. D collected contribution from fellow occupants to pay electricity board. Spend all the money on Christmas present 2. Held - Guilty of theft as she was under **legal obligation** (under statute)

Question 29

What is **Section 5(4)** for belonging to another? What are the 2 cases for this? ## Footnote IMPORTANT

Answer 29

Introduction * If property is obtained under **another’s mistake** then there is legal obligation to make **restoration** * To that effect the property is belonging to another * Any intention not to make restoration is regarded as intention to deprive the person of their property Example * This section would arise where D receives money by mistake of V (no fraud/deception involved) * V holds an **equitable interest** (to get the money back Case 1. **Chase Manhattan Bank NA v Israel - British Bank (London) Ltd. [1981]** 2. **AG’s Reference (No.1 of 1983) [1985]**

Question 30

**Chase Manhattan Bank NA v Israel - British Bank (London) Ltd. [1981]** ## Footnote Section 5(4) - belonging to another

Answer 30

Facts 1. X bank by mistake paid $2 million to Y bank for the account of Z bank 2. Z bank liquidated the money afterwards Held * X bank retained an **equitable interest** and was entitled to restore the whole money mistakenly paid out

Question 31

**AG’s Reference (No.1 of 1983) [1985]**

Answer 31

Facts 1. D (employee) received overpayment of wages Held * D was under **obligation** to restore the amount to the employer

Question 32

What is the Section for dishonesty, what is there to note about this section? What is dishonesty element for Theft?

Answer 32

Statute * **Section 2(1)** - “A person’s appropriation of property belonging to another is **not to be regarded** as dishonest.” Note * **Section 2(1)** defines what is **not** being dishonest * The 3 subsections need not be a reasonable belief, as long as the D himself had an honest & genuine belief of such

Question 33

What are the subsections that provide what is not dishonesty for theft? What do they provide?

Answer 33

1) **Section 2(1)(a)** - **Mistake** as to law * D sells and delivers goods to V * V fails to pay for them * D wrongly believes that he has the right in law to take possession of the goods 2) **Section 2(1)(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; * D takes a pencil from V (his friend) * Thinking that he would consent to him taking it * In fact does not 3) **Section 2(1)(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** * What is considered ‘reasonable’ is ultimately as **question of D’s belief**

Question 34

What are the 2 cases for dishonesty for theft?

Answer 34

* **R v Ghosh [1982]** * **Ivey v Genting Casions [2017]**

Question 35

**R v Ghosh [1982]** ## Footnote test for dishonesty

Answer 35

Facts 1. Ghosh was consultant at a hospital 2. Falsely claimed fees for operations that the had not in fact carried out Held 1. COA rejected a purely subjective approach to the test for dishonesty 2. COA also concerned that the objective test would lead to injustice 3. They decided to **combine the tests** Takeaway * Test for dishonesty is - 1. Was what was done dishonest according to the ordinary standard of honest and reasonable people? 2. did D realise that what he was doing was dishonest by that standard?

Question 36

**Ivey v Genting Casinos [2017]** | IMPORTANT ## Footnote test for dishonesty

Answer 36

Context * Court determined that formulation in this case was the correct test to apply when considering dishonesty in criminal law Issue * Court felt the second limb in Ghosh was **unnecessary and problematic** for the subjective element Held * Today, only the first limb/question is considered - **standards of reasonable and honest person** Note (important) * If statute is fulfilled, then settled If statute can’t use statute, then must settle through common law precedent/cases ## Footnote overruled R v Ghosh

Question 37

What is intention to permanently deprive?

Answer 37

Introduction * The words “permanently deprive” relates to “intention” Note * **Not necessary** to show that there was actual permanent deprivation of property (just see intention of D)

Question 38

What is the case that shows actual permanent deprivation is not needed?

Answer 38

**Corcoran v Anderton [1980]**

Question 39

**Corcoran v Anderton [1980]** | No need actual permanent deprivation ## Footnote intention to permanently deprive

Answer 39

Facts 1. D sought to take handbag with force 2. D snatched the bag, but it later fell from D’s hands, he then ran away 3. D argued that this was attempted theft Held 1. Theft is complete when he tried to snatch the bag 2. Courts rejected the appeal since the snatching was an appropriation Note * **Intention can be inferred** (e.g. takes money wallet and spends the contents, intention to permanently deprive) Takeaway * Doesn’t have to actually show permanent physical deprivation

Question 40

What is the statute for the test for intention to permanently deprive?

Answer 40

**Section 6(1)** First limb * Intention to treat the thing **as his own** to dispose of regardless of the other’s rights Second limb * Where a borrowing or lending amounts to an **outright taking**

Question 41

What are the 2 cases for intention to permanently deprive?

Answer 41

**Fernandes [1995]** **Lavender [1994]**

Question 42

Fernandes [1995]

Answer 42

COA held that D intends to treat the thing as his own to dispose of regardless of the other’s rights if he deals, if he deals with the property knowing that there is a **risk of loss**

Question 43

**Lavender [1994]**

Answer 43

Facts 1. D took 2 doors from the council’s property and used them to replace damaged doors at the another council property 2. Charged with theft 3. Argued that he never intended to deprive the council of the doors Held 1. Divisional court decided that the words “to dispose of” should **not be interpreted literally** (to sell or throw away) 2. D treated the doors **as his own** regardless of the council’s rights not to have them taken away from him Note * Intention was found as soon as he took those doors for his own use