04-05.1 Theft_6dc8b7ab5592135ab6b816b26ea43e13.pdf

OFFICIAL Unit 4 Lesson 5.1...

OFFICIAL Unit 4 Lesson 5.1 Acquisitive Crimes - Theft Lesson Aim: The learner will be able to differentiate between different types of acquisitive crime Learning Outcomes: On successful completion of the lesson, Introduction students will be able to:- Theft is one of the most common crimes that you will deal with. The seven Acquisitive 1. Explain the common law crime of theft and Crime lessons will give a broad summary of associated police powers the law surrounding theft, as well as crimes closely linked to theft. 1 th Amended 25 April 2024 v.6 OFFICIAL  OFFICIAL Unit 4 Lesson 5.1 Acquisitive Crimes - Theft Definition of Theft “A crime at common law, and is the taking or appropriating of property without the consent of the rightful owner or other lawful authority.” The Essential Elements for Theft For a theft to have occurred, it must be established that:- 1. There was appropriation of the property; 2. The taking was felonious; 3. There was intent to deprive the owner; 4. The property belonged to another. 1. Appropriation of Property This element is the action or physical part of the crime of theft. In general, appropriation can be carried out by either:- A. Taking; or B. Finding; or C. Other conduct that deprives the owner of their right to enjoy the property. When proving the appropriation was unauthorised, you must show that the accused had no right to take the property. Normally this will be done by noting a statement from the victim to the effect that they are the rightful owner of the property. A. Taking Property This is the most common method of appropriation and means more than just taking hold of the property. Any removal or movement for the purpose of carrying it away is sufficient to constitute the crime of theft. The crime is complete as soon as the aforementioned actions occurs even if it is just for a moment. Example:- Stealing a jar of coffee from a shop Stealing a bike left unattended outside a family home 2 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.1 Acquisitive Crimes - Theft B. Finding Property The finding and thereafter dishonest appropriation of lost or stolen property is also theft. Example:- David Robertson finds a £5 note in the street and keeps it. A thief running away from a break-in drops a tray of gold rings and other items. Mary Jones comes along, picks up only one ring and keeps it. C. Other Conduct This covers areas of appropriation you may encounter, which don’t fall into traditional methods of “taking” or “finding”. It has developed through case law and covers examples such as refusing to return a television set handed in for a repair estimate, retaining clothing given on loan, and wheel clamping a car. 2. Felonious Intent You must show that the appropriation had felonious intent. Basically, that the thief had no lawful authority to take the property and had taken it without permission. Example:- Someone, who walks into the class, removes a pen from your desk and then puts it in their pocket and leaves the building. THIS PERSON SHOWS FELONIOUS INTENT. They did not ask for permission to take the property and have appropriated it for their own use. 3. Intent to Deprive the Owner This is the guilty intention part. It can be proved through the actions of the accused, or by statements made in the hearing of others, that indicate guilty intention. This intent has to be either:- A. Intention to deprive the owner permanently; or B. Intention to deprive the owner temporarily 3 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.1 Acquisitive Crimes - Theft A. Intention to Deprive Permanently You can show this by proving the keeping, concealment, disposal or sale of the property by the thief (e.g. a car could be kept by the thief, broken up for spares, or sold on to an unsuspecting party). B. Intention to Deprive Temporarily In cases where there is no intention to permanently deprive the owner of their property, it is still theft, provided there is an illegitimate purpose behind the intention. This can be illustrated using some stated cases. The taking of a book, in order to obtain the opportunity to copy its contents for an illegitimate purpose, is theft, although there might be no intention to keep the book. (H.M.A v. Mackenzies, 50 S.L.R 813) Taking is not essential, the physical act necessary to constitute theft is appropriation, by which control and possession of the thing is taken from its owner. Removal of something is not necessary for the crime to be complete if they have control of the item in some other way. Example:- Two accused clamped several cars in a private car park and attached a notice stating that a levy of £45 would be charged for their release. It was held, on appeal, to the High Court, that the purpose and effect of the clamping was to immobilise the vehicle and deprive the owner of possession and use of the car. The physical element of appropriation was present and there was no need for physical removal of the vehicle. The deliberate appropriation, in knowledge of its consequence, was sufficient to prove the crime of theft. (Carmichael v. Black and Penrice, (1992) S.C.C.R. 709) 4 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.1 Acquisitive Crimes - Theft 4. The Property Belonged to Another This is straightforward. You must prove that the property belonged to someone else. You cannot steal something that belongs to yourself. Example:- Someone living in rented furnished accommodation decides to sell the furniture to a dealer. They are not the owners of the property and have no authority, or right, to sell the furniture. Owners of property will be able to give you a description and value of the property stolen. In some cases, they may well have serial numbers, or photographs and be able to provide distinguishing marks such as scratches, or dents, or if the property is post coded. They may even be able to produce receipts for the property. Example Charge - Theft EC “On 18th November 2020, at Brookbank High Street, Brookbank, you ROSS SMITH did steal a bicycle.” What Can Be Stolen? In order for something to be stolen it must:- 1. Belong to someone else, and 2. Be a physical thing, and 3. Be able to be moved. The property stolen must belong to someone other than the thief. This means that a thief cannot be convicted of stealing their own property. 5 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.1 Acquisitive Crimes - Theft Something that has never had an owner cannot be stolen. This would include wild animals still in the wild, air in the atmosphere and water in rivers and the sea. These items can however be owned (and therefore stolen) if they have in some way already been caught, confined or enclosed by somebody else e.g. wild animals if they have already been caught in a net or a pen. Air if it has been placed in a container (air cylinder) and water if it has been bottled, or put in a garden pond. Consider This... A reservoir, which had no outlet or inlet to allow the passage of fish, was privately stocked with trout. It was held that the reservoir was a “stank” within the meaning of a Scots Statute of 1607 and that the unauthorised taking of trout therefrom was, in respect of the terms of the said Act, a theft. (Pollok v. McCabe, 47 S.L.R. 245). In respect of the previous, should a Constable find someone fishing a "stank" as it is described, enquiry should be carried out to establish legal right or permission to fish. Where the individual has not caught any fish, any person who without legal right, or without permission from a person having such right, fishes in a proper stank or loch shall be guilty of an offence under the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003. As above, there are many occasions where statutes exist to protect property and to prevent the act of theft. These will be explored later in the theft lessons. Whilst libelling a charge of 'Attempted Theft' may have seemed a good option in the example above, preference should always be given to libelling a statutory charge where available. 6 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.1 Acquisitive Crimes - Theft Activity 1 A1 Look at the following list of scenarios and complete the answer grid to help you decide if a theft has occurred. If there is a tick in each box for a particular scenario then there is a theft. Scenario 1 A woman walks into a shop and conceals a bottle of perfume within her handbag before exiting the shop. She makes no attempt to pay for the perfume. Scenario 2 A teenager is given a loan of her brother's digital camera with their permission in order to take some pictures for a school project. While the camera is in her possession, it is accidentally lost. Scenario 3 A husband takes his wife's jewellery that she was given by her late aunt, down to a car boot sale and sells it without her permission. He thereafter takes the money and loses it all at the bookmakers. Scenario 4 When walking along the road, a male sees an open door to a house, and a purse lying on the hall table within. He enters the house, and places the purse in his pocket before returning to his own home. Scenario 5 A pickpocket at a football match puts their hand into the jacket pocket of a man sitting next to them. As he takes hold of the wallet within, the man stands up and walks away, the pickpocket, however, manages to remove the wallet. 7 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.1 Acquisitive Crimes - Theft Activity 1 continued A1 Scenario 6 A youth approaches a motorcar parked in a railway station carpark, forces open the driver's door, before "hotwiring" the ignition and starting the car. He thereafter takes the car for a spin before burning it out on waste ground that evening. Scenario 7 An office junior takes two packs of paper home from their office to use on their computer. They do not ask for permission, and conceal the paper in a sports bag. Scenario 8 A motorist arrives at a petrol station, fills their tank with petrol and leaves at speed without paying. On checking the CCTV tape, it is obvious they are concealing their face. Scenario 9 An airline cleaner keeps a personal stereo they find while cleaning an aircraft. Scenario 10 A police officer attends a report of a newsagent being broken into. On arrival, they find the shop has been ransacked and the stock is all over the floor. Being a smoker, they remove a packet of cigarettes from the floor, and start smoking one before putting the remainder in their pocket. See Appendix A for feedback. 8 Scots Criminal Law: Introduction and Investigation OFFICIAL  Is the property capable of being stolen? Was there Was there intent to Is it:- unauthorised deprive the owner? Scenario No. appropriation? (permanent/ Object Moveable Belong to another (taking/finding/other conduct) temporary) 1 2 3 4 9 OFFICIAL 5 6 OFFICIAL Scots Criminal Law: Introduction and Investigation 7 8 9 10 Acquisitive Crimes - Theft Lesson 5.1 Unit 4  OFFICIAL Unit 4 Lesson 5.1 Acquisitive Crimes - Theft Power to Search In terms of Section 60 of the Civic Government (Scotland) Act 1982, where a Constable has reasonable grounds to suspect that a person is in possession of any stolen property, a Constable may, without warrant: Search that person or anything in their possession and detain them for as long as is necessary for the purpose of search Enter and search any vehicle or vessel where the Constable suspects that the stolen property may be found and for that purpose require the person in control of that vehicle or vessel to stop it and keep it stopped Enter and search any premises occupied by a second hand dealer or a metal dealer for the purpose of their business Seize and detain anything found in the course of such search which appears to be stolen or be evidence to the commission of theft Note:- A Constable not in uniform must show identification. Power to Seize Productions You have a common law power to seize productions involved in the theft. (i.e. items used in the course of the theft or items that were actually stolen). There is further information regarding powers of arrest, dealing with suspects, witnesses and productions in lesson notes in Unit 3. Power of Arrest Theft is a crime at common law and as with all common law crimes it is punishable by imprisonment. Section 1 of the Criminal Justice (Scotland) Act 2016 gives you the power of arrest. Although consideration should be given in relation to a Recorded Police Warning if appropriate (See Direct Measures lesson in Unit 3). The cost of the property stolen, the effect on the victim, the vulnerability of both the victim and offender, the recovery of the property and the locus are all factors that can impact your decision, so you must ensure that your actions are proportionate and can be justified. 10 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.1 Acquisitive Crimes - Theft Human Rights HR It is important to remember the protection that is given to an individual's liberty. You should always remember that you must only resort to your powers of arrest and detention in accordance with the ECHR if it is in the interests of justice to do so. Doctrine of Recent Possession There may be circumstances where you find it difficult to satisfy the essential elements of theft, but where the facts are such that it is easy for you to infer that a suspect has committed the crime of theft shortly before. The doctrine of recent possession allows you to deal with these circumstances. In the limited circumstances outlined below, theft may be proved against the accused by showing that:- 1. the property was stolen, and 2. shortly thereafter it was traced to the physical or constructive possession of the accused, and 3. there is no reasonable explanation of such possession given 4. there are other incriminating circumstances. Intelligence I SID (Scottish Intelligence Database) is an extremely important platform for Police Scotland to manage and assess intelligence related to various aspects linked to Acquisitive Crimes. This is also used to inform future Police action. It is imperative that any relevant intelligence opportunities are explored and submitted to SID 11 Scots Criminal Law: Introduction and Investigation OFFICIAL  Unit 4 Lesson 5.1 Acquisitive Crimes - Theft Is the property capable of being stolen? Was there Was there intent to unauthorised deprive the owner? Scenario No. Is it:- appropriation? (permanent/ Object Moveable Belong to another (taking/finding/other conduct) temporary) Appendix A 1 Y Y Y Y Y 2 Y Y Y N N OFFICIAL 3 Y Y Y Y Y 4 Y Y Y Y Y 12 OFFICIAL 5 Y Y Y Y Y 6 Y Y Y Y Y Scots Criminal Law: Introduction and Investigation 7 Y Y Y Y Y 8 Y Y Y Y Y 9 Y Y Y Y Y 10 Y Y Y Y Y  OFFICIAL Unit 4 Lesson 5.1 Acquisitive Crimes - Theft For further information, use the resources shown below:- Legal Database:- Criminal Law - Crimes Against Property - Theft Review: You can explain the common law crime of theft and associated police powers Learning Log: How will what you have learned in this module impact your day-to- day role? Are there any skills or knowledge you would like to develop further following this module? End of Module 13 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.1 Acquisitive Crimes - Theft 14 Scots Criminal Law: Introduction and Investigation OFFICIAL