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Criminal Law > Theft > Flashcards

Theft Flashcards

1
Q

Definition of Theft

A

Defined in section 1(1) of the Theft Act 1968 (TA 1968)

A person is guilty of theft if he dishonestly appropriates the property belonging to another with the intention of depriving the other of it

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2
Q

Conduct element

A

Actus reus- any conduct causing the result

Mens rea- voluntary

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3
Q

Circumstance element

A

Actus reus- what is appropriated is property belonging to another
D’s appropriation is dishonest

Mens rea- knowledge

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4
Q

Result element

A

Actus reus- D appropriates V’s property

Mens rea- intention

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5
Q

Ulterior mens rea element

A

Mens rea- intention to permanently deprive V of her property

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6
Q

Appropriation is in which section

A

3

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7
Q

Of property… section??

A

Section 4

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8
Q

Belonging to another .. section??

A

Section 5

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9
Q

With the intention to permanently deprive .. section ??

A

Section 6

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10
Q

Dishonestly .. section??

A

Section 2

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11
Q

So…. Section 6

A

With the intention of permanently depriving

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12
Q

Section 3

A

Appropriation

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13
Q

Section 5

A

Belonging to another

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14
Q

Section 2

A

Dishonestly

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15
Q

Section 4

A

Of property

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16
Q

Appropriation definition

A

Appropriation is defined in s 3 of the Theft act (1968)

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

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17
Q

Assuming the rights of an owner

A 
Section 3 (1) is clear that assuming the rights of an owner will amount to an appropriation 
E.g. Taking v's property and treating it as their own

Morris clarified that an assumption of any one property right will be sufficient

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18
Q

Morris (1984)

A

D switched labels on supermarket goods in order to purchase the more expensive goods at the galea lower price

Crown court- guilty of theft
Court of appeal- upheld conviction
House of Lords- dismissed appeal when D swaps labels D assumed a ‘right of the owner (the right price to the price of goods) and this was sufficient to amount to an appropriation

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19
Q

Gomez

A

Confirms the approach of Morris

If D takes an item from V with the intention of borrowing it and returning it later then she appropriates at the point of taking physical possession.
It is at that point that D assumes rights of possession and control
But if she later decides to keep the item, then this later decision amounts to a further appropriation when she assumes the rights of ownership

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20
Q

What approach should you take when selecting which appropriation method applies

A

Identify which act of appropriation is most likely to lead to liability for theft (i.e. Which act also coincides with the other elements of the offence)

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21
Q

What other ways can appropriation of certain property be committed

A

Can appropriate certain property through omission or through the mental act of deciding to treat v’a property as her own

Where D discovers that she has accidentally taken property D will not be assumed to have appropriated the property if she has not treated it as her own or made a decision to keep it
However is she does so decide, this and any other assumptions of rights will be sufficient to constitute the appropriation element of the actus reus

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22
Q

Gomez (1993)

A

D was the assistant manager of an electrical goods shop
He convinced his manager to allow a customer to buy items using cheques that D knew were stolen and therefore worthless
The manager consented to the sale
D was charged with theft
Crown court- guilty of theft
Court of appeal- appeal allowed. Following Morris the consent of V undermines the element of appropriation
House of Lords: appeal allowed, reaffirming Ds liability and following Lawrence
With lord Lowry dissenting, the lords confirmed that, where D tricks v, appropriation will be found whenever there is an assumption of ownership rights by D regardless of Vs consent

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23
Q

Appropriation with consent

A

‘Any assumption’ of rights will constitute an appropriation

Cases such as Laurence have held that the consent or non consent of V is irrelevant

Confirmed in Gomez
As long as D assumes a right of ownership over V’s property, there will be an appropriation with V’s consent or non consent is irrelevant

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24
Q

Appropriation with full civil title

A

Hinks confirmed that where D assumes ownership rights from V this may be an appropriation even where the property is consensually transferred from V with full title
(Where the transfer is valid and non voidable in civil law)
D may be liable for theft of certain property in criminal law but be entitled to keep that sane property in civil law

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25
Q

Hinks (2000)

A

D befriended V who was a man described by the court as naive, trusting and limited intelligence.
Almost every day she took V to his building society and withdrew the maximum £300 amounting to £60,000 in six months

D was charged with theft
Court of Appeal- upheld conviction
House of Lords- dismissed appeal even though it didn’t amount to a civil wrong, this did not preclude it being a theft

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26
Q

The bona fide purchased exception

A

Section 3(2) of the TA 1968 creates an exception where no appropriation will be found

This arises where D purchases property in good faith (bona fide), believing that she is gaining full civil title
It then transpires that full title has not be transferred (e.g. Because the goods were stolen) but D continues to treat the item as her own
In such a case D has assumed the rights of the owner but this section stops it being the result in the law

This only applies to property acquired by D for value so it does not apply for gifts received by D

Potentially liable for handling stolen property and/ or fraud is she presents herself as the owner
E.g. To sell the property to another

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27
Q

Definition of Property

A

Section 4 of the Theft Act provides a definition of property

Property includes money and all other property, real or personal, including things in action and other intangible property

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28
Q

Real property

A

Reference to land making the defendant liable for theft of certain land rights

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29
Q

Personal property

A

Reference to all property that is not land and that includes property that is illegal or prohibited i.e. Drugs

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30
Q

Things in action

A

Intangible property where D has the right to sue another for a particular sum
I.e. Bank accounts
Where D dishonestly causes the bank to transfer funds from V’s account, D does not steal any physical money belonging to V she steals a thing in action
I.e. She steals part of V’s right to sue V’s bank for a sum of money
Same is true if D transfers money from V’s overdraft

Only exception is where V had no thing in action

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31
Q

Other intangible property

A

Allows the definition of intangible property to extend beyond the most common things in action

AG of Hong Kong v Chan Nai-Keung
Transfer of quotas from one company to another at a gross undervalue

They constituted other intangible property and were therefore subject to theft

32
Q

Exceptions

A

Section 4

Land 
Wild mushrooms and flowers 
Wild creatures 
Electricity 
Confidential information
Services 
Bodies
33
Q

Land

A 
Section 4(2) 
Where D takes some of V's land without severing it as, for example, where D moves her garden fence a few inches into V's garden, she may have appropriated the property in civil law, but this will not constitute property for the purposes of theft

Only certain specified land rights will amount to property within the offence of theft

34
Q

Section 4 (2) (A)

A

Allows for theft of land by a trustee of property

A- when he is a trustee or personal representative, or is authorised by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming party of it by dealing with it in breach of confidence reposed in him

This where D is the trustee of property and disposed of that property dishonestly for her own advantage, she may commit theft

35
Q

Section 4 (2) (b)

A

Allows for theft of land by someone whose interest in the land is not that of ownership who severs part of the land

B- when he is not in possession of the land and appropriates anything anything forming part of the land by severing it or causing it to be servered or after it has been servered

Moving fence does not apply because D was not removing the part of V’s land that she appropriated

Would apply for example if D takes some of V’s topsoil, her plants, garden shed

36
Q

Section 4 (2) (C)

A

Allows for theft of land by a tenant who appropriates a fixture or structure from the land

C- when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the land

A tenant will not commit theft where she removes minor fixtures such as top soil
But the removal of a fixture, bath, or a of a structure, garden shed, would amount to a theft

Only appropriation is required

37
Q

Wild mushrooms and flowers

A 
S 4 (3) 
 Includes all fungi, any plant or tree

3- A person who picks mushrooms growing wild on any land, or who picks flowers fruit or foilage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose

Cannot dig up the whole plant
It all depends on D’s intentions at the time he appropriates the property

38
Q

Wild creatures

A

Section 4 (4)

4- wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcass of any such creature, unless either it has been reduced into possession by or an behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession

Although wild creatures will generally not constitute property for the purposes of theft, the provision makes clear that this will not be the case with tamed creatures, or wild creatures that have been killed or trapped them

E.g. If D kills and removes a wild animal from V’s property ,such as a pheasant, whilst making the Defendant guilting of a poaching offence she will not be guilty of theft
To keep a creature in ‘captivity’ thus making it property for the purposes of the TA 1968 requires more than the regular feeding of a wild creature, even if the eventual aim is to trap/kill the creature

39
Q

Common law exclusions

Electricity

A

Electricity is not property for the purposes of theft but there is a separate offence within section 13 of the TA 1968 of wasting or diverting another’s electricity

40
Q

Confidential information

A

Information does not amount to property

Oxford v Moss

41
Q

Services

A

Manicure, taxi journey, a theatre performance is not property within section 4 and so failure to pay is not theft

Likely to be obtaining services dishonestly under section 11 of the Fraud Act (2006)

42
Q

Bodies

A

Traditionally human bodies are not viewed as property
However this view is changing in a number of areas

I.e. bodily products can now amount to property if they are intended to be held or controlled

So stealing blood from the blood bank can amount to a theft

43
Q

Belonging to another

A

Theft protects the ownership rights of others
Must demonstrate that the property appropriated belonging to another at the point of appropriation

Section 5 (1) of the Theft Act (1968)

1- Property shall be regarded as belonging to any person having possession or control of it l, or having in it any proprietary right or interest (nor being an equitable interest arising only from an agreement to transfer or grant an interest

V only is required to have one relevant ownership right at the time of appropriation

What matters is that there is someone who has some proprietary right or interest in the property other than D

44
Q

Possession or control

A

V has possession or control of property where she intends to control or possess it, and maintains some degree of control over it in fact

Ie owners of a vending machine, landowners possess items within their property

Case of Rostron demonstrates whether V has a sufficient claim of possession

45
Q

Rostron

A

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 the theft of balls
Crown court- guilty of theft
Court of appeal: conviction upheld on appeal the jury were entitled to find that the balls belonged to the golf course
Although the course owners did not intend to collect the calls themselves, they still maintained possession and control over them

46
Q

If V holds a proprietary interest in D’s property then D’s taking of the property may amount to a theft

A

Shown in Turner (No 2) (1971)

D had his car repaired by V at a garage
On collecting his car, D used a spare set of keys to take his car without paying the bill
Crown court- guilty of theft
Court of Appeal- conviction upheld on appeal
The garage was in possession and control of the car and so although D owned the property, he was still talking property belonging to another (the garage)

Too wide= if someone stole your bag (took control) and you took it back that would technically be a theft

Corrected in Meredith

47
Q

Proprietary interest

A

These are determined in reference to civil law rules of ownership

Marshall (1998)

D obtained part-used tickets from Underground users and resold them
London Underground Ltd (V) claimed ownership of the part used tickets, making D’s reselling an appropriation of property
D was charged with theft
Court of appeal upheld conviction
Back of the ticket clause of V’s continued was seen as sufficiently clear to buyers

48
Q

Marshall consequences

A

Decisions in this area will often turn on the subtle rules of civil ownership
E.g. Property may be found to belong to the Crown if it comes within the rules of “treasure” property may belong (in equity) to beneficiaries of a trust, property ownership may pass on contract despite V never receiving the scrutiny of civil rules, once such an interest is identified, it will always satisfy this element of theft
This will be the case even where D also has a proprietary interest in the property, as where one business partner takes all of the value out of corporate partnership

49
Q

Specific examples within s5

A

Potentially problematic examples

A) Section 5 (2) where D , a trustee, dishonestly appropriates from that trust, she takes property of another. This is true where the trust has individual beneficiaries (overlapping with s5 (1) as well as purpose trusts (e.g. Charitable trusts) where others have the ability to enforce the trust

B) Section 5 (3) this subsection deals with property given to D for a particular purpose, for example, where V provides D (her cleaner) with money to buy cleaning products.
In such cases, even though, the property is passed to D, if she deals with it in an improper manner by keeping it for herself, this will constitute taking the property of another

50
Q

In order to come under subsection 5

A

D must be under a legal as opposed to merely moral duty to deal with the property in a particular way
In the context of money the question is often whether D was expected to use that specific money for a specific purpose (s5(3) applies)
Or whether the payment was a general payment to D in exchange for future conduct that may be paid from other funds (s5 (3) does not apply then)

Would apply if money was for charity

Wouldn’t within a travel agents- they would have broken a civil/ contractual obligation

51
Q

Section 5(4)

A

Where D receives property by mistake and is under an obligation to return it or its value
A good example is where D receives an overpayment of wages
In such cases where D appropriates the property and refuses tonnage restoration, she takes the property of another

Shown in Gresham case

52
Q

Gresham case (2001)

A

D’s mother died and yet D, who had power of attorney, did not inform her pension provider (V) who continued to make payments for 10 years
D used this money on his own
D was charged with theft
Court of Appeal upheld conviction D had a duty under section 5 (4) to return the money to V and so his use of it amounted to the taking of another’s property

Where V mistakenly transfers property to D, this will also often result in V retaining some equitable proprietary ownership. In such cases, section 5 (4) and (1) will apply

53
Q

Section 5 (5)

A

This clarifies that a legal person (corporation) can own property
Therefore, for example, of directors of a company dishonesty appropriate company property, they are taking the property of another (the company)

54
Q

Abandonment

A

Property may be stolen and then abandoned making it ownerless and no longer capable of theft
V must leave the property and be indifferent as to any future appropriation
Therefore where V throws property into the bin, intending it to be collected and disposed of by authorised collectors, it is not abandoned and if D, who is not an authorised collector, takes it from V’s bin then D appropriates it
Same is true for charity collections or lost jewellery

55
Q

The hinks problem

A

In hinks property was assumed to belong to V at the moment of transfer
This is a useful indication that when appropriation and the passing of property ownership or simultaneous, the courts will take a permissive approach to potential problems of coincidence

56
Q

Intention to permanently deprive

A 
When appropriating the property of another D does so with the intention to permanently deprive V of it 
Section 1 (2) of the TA 1968 explicitly clarifies that Theft need not to be for D's benefit so it is enough that D gives away V's property

The requirement of an intention to permanently deprive is an ulterior mens rea element
Has to be intention AT THE MOMENT of appropriation

57
Q

Section 6 (1) of the TA 1968

A

Sets out a definition of what it means to permanently deprive

1- A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless tonne regarded as having the intention of permanently depriving the other of it of his intention is to treat the thing as his own to dispose of regardless of the others rights and a borrowing or lending of it may amount to treating it, if the borrowing or lending of it may amount to so treating it if the borrowing of lending is for a period and in circumstances making it equivalent to an outright taking of disposal

58
Q

Ransoming or selling property back to V

A

Where D appropriates V’s property with the intention of selling it back, or ransoming it to V, it is arguable that D does not intend to permanently deprive V of it.
However, not surprisingly, the courts have consistently held this to come within section 6(1)
D intends to treat the property as her own, and this is equivalent to the intention of an outright taking

59
Q

Replacing with identical property

A

A problem emerges where D takes

60
Q

Velumyl (1989)

A

D an employee, took money from the company safe, intending to return it after the weekend

D was charged with theft

Crown court- guilty of theft

Court of appeal- conviction upheld on appeal
D did not intend to return the exact notes or coins taken, so he must have intended to permanently deprive his employees of them

61
Q

Removing value from the property

A

I’d D’s intention is to take property

62
Q

Lloyd

A

D who worked as a cinema projectionist, appropriated films with the intention of making illegal copies to sell elsewhere, but to return the originals

D was charged with theft

COA- appeal allowed.
D’s intention was merely to remove some of the value from the films and was not sufficient to be equivalent to an outright taking

63
Q

Absconding the property

A

There will be clear cases

64
Q

Mitchell (2008)

A

D and three others forcibly took V’s car, having crashed their own, whilst attempting to escape from the police. The car (largely undamaged) was later abandoned on the road with its hazards lights on. D was charged with robbery, which requires D to have committed theft
Crown court: guilt of robbery
Court of Appeal: appeal allowed. The circumstances of the intended abandonment made it likely that the car would be returned to V and thus did not amount to an intention to permanently deprive

65
Q

Conditional intentions

A

Where d appropriates

66
Q

AG’s References (Nos 1 and 2 of 1979) 1980

A

Combined cases involving D’s who weee arrested whilst trying to break into buildings. Both were charged with burglary, requiring an intention to steal.
Crown court- not guilty of burglary, a conditional intention to steal (if there was anything worth taking) I’d insufficient
COA- the crown court was wrong. Both D’s had an intention to steal, even if they had no specific property in mind. The court explicitly extended its judgement to standard theft cases

67
Q

TA (1968) s 6 (2) intention to risk the property

A

(2) Without prejudice to the generality

68
Q

Dishonesty

A

D must appropriate property belonging to another, with the intention to permanently deprive and that the appropriation must be dishonest

69
Q

Statutory examples of no dishonesty

A

A

70
Q

Statutory examples of no dishonesty

A

B

71
Q

Statutory examples of no dishonesty

A

C

72
Q

Common law definition of dishonesty

A

In the absence of a statutory definition

73
Q

Ghosh

A

D who was a working as a surgeon , claimed fees for carrying out certain operations where this was not appropriate. D was charged with obtaining property by deception (since repealed by an offence under TA (1968) (s15) an offence where D must act dishonestly

Crown court- guilty of section 15 offence

COA- conviction upheld on appeal D acts dishonestly where:

A D’s conduct is dishonest according to the standards of reasonable and honest people and B D realised (at that point( that the conduct would be seen as dishonest according to those standards

74
Q

Step 1

A

Is D’s conduct dishonest according to the standards of honest people

75
Q

Step 2 Ghosh

A

Does D realise that her conduct would be considered dishonest by the standards of honest and reasonable people

Criminal Law (10 decks)

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