Theft evaluation essay Flashcards
where is theft defined? What’s the definition? Sentence?
what’s an immediate criticism?
Why is it considered effective?
What did the Law commission say?
S.1 Theft act 1968.
Theft = ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’.
triable either way offence, carrying a maximum sentence of 7 years imprisonment.
Act does not sufficiently distinguish between minor and serious forms of theft, leading to disproportionate punishments in some cases. This definition encompasses the actus reus and mens rea elements of the offence. The Theft Act 1968 is considered an effective piece of legal drafting in the post-war era, still intact after 50 years, that simplified many offences from various statutes.
Law Commission report 2002 and Professor Griew’s article, ‘Dishonesty’ 1985 contain many of the arguments surrounding this area of law, including the fact that it is a technical law as it is contained in an Act of Parliament, whereby judges must interpret wording that is very specific, thereby questioning the fairness and consistency of its application.
what the first element of actus reus? defined?
case?
What does section 3(1) cover?
where can an appropriation also take place? case? evaluate - another case?
appropriation, defined in s.3(1) Theft Act 1968 as ‘any assumption by a person of the rights of an owner, assuming some of all their rights at one point in time.
R V Morris, the appropriation of one right is sufficient, criticised widely as going beyond what Parliament intended by the word.
covers situations where someone does not steal property but then assumes the rights of the owner by refusing to return it.
can take place even if the victim consents to the property being taken, as in Lawrence V MPC, where a taxi driver took money from a student’s wallet, although the student consented to the money being taken.
ludicrous that there can be appropriation with consent, however this arguably protects the vulnerable. This principle was established by Viscount Dithorne, followed in R V Gomez.
What does it offer? case?
Contrast?
what did Lord Hobhouse state?
what does this create?
offer sufficient protection of vulnerable individuals, as seen in R V Hinks, where D took advantage of a man of low intelligence by convincing him to gift her £300 a day, as a gift.
Contrastingly, the theft of gifts is difficult to understand and conflicts with civil law. Lord Hobhouse stated in Hinks that it was impossible for a gift to be an appropriation as in civil law, as soon as the owner transfers the gift to the donee, it becomes the property of the donee. Under this principle, the D would not be appropriating the property, creating confusion here.
How did Janet loveless criticise the law?
What did Professor smith suggest?
What is it essential to consider?
‘One point in time?’ case?
What’s been argued about the definition of appropriation? ruled in..?
Janet Loveless criticised the law, stating ‘appropriation has more or less vanished from sight’, meaning this aspect of the law has ceased to be relevant.
Professor Smith supported this by suggesting that the application of this wide definition creates easy convictions and thereby poses unfair rulings.
essential to consider that all elements of theft must be proved to convict, thereby undermining this criticism, as appropriation is the first of various elements of theft.
‘one point in time’ has created inconsistency and confusion in the law, as seen in R v Atakpu. It has been argued that the definition of appropriation should be the same as in robbery where theft is a continuing act, ruled in Hale and Lockley.
what’s the second element of actus reus - definition?
Further to establish what?
What departs from civil law - case example?
property, defined under s.4(1) to include ‘money and all other property, real or personal, including things in action and other intangible property’
further to establish ‘things that can be stolen’
money is a named item, followed by personal property, involving all moveable items such as jewellery, clothes and cars, even dead body parts, as established in R V Kelly and Lindsay. departs from civil law, it is arguably required to secure conviction and address the immorality of selling body parts.
What’s intangible property?
What’s things in action?
Can knowledge be stolen - case?
What does s.4(3) and s.4(4) establish?
what’s a criticism of this?
Intangible property, that does not exist in a physical sense such as copyrights and patents, can be stolen.
A ‘thing in action’ is a technical term used to describe property that does not exist in a physical sense but provides owner with legally enforceable rights, including investments, shares, and patents. However, the courts decided in Oxford V Moss that information cannot be stolen, whereby stolen exam question were not deemed ‘property’; this rarely evokes problems as such actions are covered in offences such as copyright laws.
S.4(3) and (4) establishes things that cannot be stolen, covering situations where a person picks mushrooms, flowers, fruit, or foliage growing wild on land. This is not to be treated as theft unless it is done so for reward, sale, or other commercial purposes.
act itself sets out detailed rules on when land, animals and plants can and cannot be stolen. For example, picking holly or mistletoe for home decoration is not theft, yet picking such items for reward or sale may be theft, thus evoking confusion in its application, a possible criticism of this element.
What’s the final element of actus reus, what does it include?
can you steal own property - cases?
s.5, is ‘belonging to another’, including where a person owns the property and where they have possession or control over it or where they have a propriety right or interest. It includes property belonging to someone under civil law and covers possession without rights of ownership.
person can be liable for stealing their own property, established in R V Turner (No.2) where D drove his car away from a garage without paying, at which point the garage was ‘in possession’ of the car. Whilst this initially seems unfair, this case offers a possible justification and requirement for this rule. R V Marshall, Coombes and Eren.
what does s.5(3) say? case?
S.5(4)? cases?
what’s a major criticism?
under s.5(3), even if property is legally obtained, there is still an obligation to use it in a particular way, although each case will depend upon its facts (Hall)
s.5(4) provides that property which is passed to the D by mistake is to be treated as ‘belonging to’ the original owner and, therefore, once the D realises the mistake and refuses to return the property, there is a theft. The failure to return the property, on realising the mistake, must be deliberate (AG’s Ref (No 1 of 1983)). This seems justifiable, however, the ruling in R V Gilks appears inconsistent due to a gap in the law regarding gambling contracts, where the D was not required to pay back money that he mistakenly obtained; thereby posing the issue that this rule is inconsistently applied and may prove unfair
ambiguities and challenges in determining ownership, as seen in R V Dyke and Munro, where the Ds were released on a technicality as to whom collection money belonged to, whereby the Court of Appeal disagreed with the courts declaration that it is suitable to convict if the property belonged to persons unknown.
first element of mens rea?
What may fall under this?
what’s sufficient?
s.6, is the intention to permanently deprive, regardless of whether the other is deprived of the property. This requires the D to intend ‘to treat the thing as his own’.
borrowing may fall within scope if the borrowing ‘is for a period and in the circumstances making it equivalent to an outright taking or disposal’.
borrowing without permission without intention to permanently deprive is not theft, although there are other offences for such circumstances, including ‘taking without consent’.
conditional intent’ is sufficient, where the D examines property to see whether it is worth stealing, if he then returns this, it is not theft (Easom).
What should permanent be replaced with? case?
What does this further amend? resolved in what case? evaluate.
‘permanent’ in the definition should be replaced with ‘temporary’ to ensure situations such as the case of Easom amount to theft; this would ensure consistency with the law on burglary where the courts have ruled that conditional intent to steal is sufficient under s.9(1)(a).
further amends the criticism regarding conflicts with other legal principles, by improving this consistency, the coherence and effectiveness of the legal system is enforced. This was resolved in AG’s Ref, indicating that conditional intent can amount to attempted theft, where nothing is physically taken. This appears to improve fairness, whilst it may be argued unfair that a D can be punished when nothing has been taken.
why is s.6(1) controversial? case?
What did the velmuyl case result in?
What have critics said about intent to permanently deprive?
What are the rulings in these cases viewed as?
Section 6(1) is controversial in covering temporary borrowing situations, as seen in the Lloyd case where temporary deprivation did not constitute theft if the borrowed property was returned before ‘the goodness, virtue, practical value … has gone out the article’.
Velumyl case resulted in a conviction for temporarily borrowing money, raising questions about the necessity of including this element in the offence.
intent to permanently deprive is irrelevant, and there is redundancy considering other offenses like ‘taking vehicles without consent.’ The rulings in both cases are viewed as technicalities, prompting debate on whether this element is excessive.
What’s the second element of mens rea?
what does s.2(2) state?
What are these tests? case?
Dishonesty, a widely debated element, that is not defined within the Act, yet s.2(1) gives examples of what cannot amount to dishonesty including where a D believes he: has the right to deprive the other of it, would have the other’s consent, would be unable to discover the other by taking reasonable steps.
S.2(2) goes further to state that an appropriation may be dishonest notwithstanding that the D is willing to pay for the property.
Such tests are subjective, although if they do not apply, the jury would be directed to the common law test under Ivey V Genting Casinos (UK) Ltd (2017).
What was theft prior to the theft act?
What was difficult for juror to understand - it was replaced with what?
theft was a common law offence partially codified in the Larceny Act 1916 which made it an offence to ‘steal without the consent of the owner, fraudulently’, meaning intentionally and deliberately, without mistake (Williams).
Believing that ‘fraudulently’ was difficult for jurors to understand, the Criminal law Revision Committee replaced this with ‘dishonestly’. This has clearly led to many problems.
What’s the test for dishonesty?
What did the law commission comment? What was it supported by?
test for dishonesty had come from the case of R v Ghosh (1982), a two-part test combining objective and subjective standards: 1) Was the defendant’s behaviour dishonest by the standards of the honest reasonable person? and 2) Did they realise that their behaviour was dishonest by this standard? This proved problematic for juries to consider and has meant that if D could show they did not believe their actions to be dishonest then mens rea could not be satisfied.
2002 Law Commission commented ‘There is some evidence that people’s moral standards are surprisingly varied’ supported in DPP v Gohill where the ‘ordinary, reasonable person’ was stated to be a mythical concept.
why was the gosh test questioned?
where did an opportunity arise?
why can the case that confirmed this be criticised?
Why article may be breached?
originally explained the meaning of “dishonest” such problems would not have arisen. In 2017 this test was questioned in the civil law case of Ivey v Genting, favouring an objective test. These comments, however, were only obiter and therefore, the law was left uncertain, waiting for confirmation of a binding precedent. This opportunity arose in the case of R v Barton & Booth (2020), confirming the obiter comments in Ivey v Genting Casinos, with the relevant question being whether an ordinary and reasonable person, believing the same facts as the defendant, would consider them to be dishonest. However, the current test confirmed in Barton & Booth can be criticised for being a circular test, while assuming a moral consistency among jurors when juries. This risks inconsistency and unpredictably as it will likely reflect a diversity of moral outlooks and experience.
risks being convicted of a crime for behaviour which they did not believe to be dishonest, which is unfair and may potentially breach Article 7 ECHR, thereby posing the argument that this area of law is flawed and requires reform due to risks of injustice and inconsistency.
