Theft Lecture PDF

25/10/2024, 15:10 Property Offences Lecture / Lectures / Criminal Law / Property Offences Print Reference this Property Offences Lecture Share this: 1.0 Theft...

25/10/2024, 15:10 Property Offences Lecture / Lectures / Criminal Law / Property Offences Print Reference this Property Offences Lecture Share this: 1.0 Theft The offence of theft is set out under the s.1 of the Theft Act 1968 which provides: (1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly. 1.1 Actus Reus Appropriation; Of property; Belonging to another. Appropriation Section 3(1) of the Theft Act 1968 defines this as: (1) 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. (2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property. Put simply this means acting in relation to the property as if you are the owner of said property and indeed R v Morris 3 WLR 697 confirmed that an appropriation was not just physically taking the property, but could be achieved for example by doing any act that only the owner has the right to do, for example by selling it. Case in Focus: R v Morris 3 WLR 697 The defendant switched the price labels in supermarkets so that when they reached the checkout they were unknowingly charged a lower price than intended by the shop assistant. The defendant was charged with theft but protested the charge claiming no appropriation took place. The House of Lords held that an appropriation did not require the assumption of all of the rights of the owner, merely an adverse interference with the rights which the defendant had done when switching the labels, an act which reserved by the owner for their exclusive doing. An appropriation will still occur where the defendant has the property with the owner’s permission but then exceeds this permission by assuming the rights of the owner, for example they have been lent a DVD and have it in their possession with the permission of the owner but then exceed the permission by deciding not to give it back or by putting it on eBay! R v Gomez AC 442 confirms that an appropriation can occur even when the owner of the property gives consent. This extends even to situations where the owner gifts the property to the defendant, as was confirmed in R v Hinks UKHL 53. Case in Focus: R v Hinks UKHL 53 The defendant was a young lady who befriended an older man. The man was of low intelligence and very naive. Over the period of their friendship the defendant influenced him and manipulated him into withdrawing large amount of cash amounting to over £50,000 and depositing it into her account. When this was discovered the defendant was convicted of theft and it was held that the fact that she had been given the money by the defendant was no defence to her. Property Section 4 of the Theft Act 1968 defines property in great depth, stating: https://www.lawteacher.net/lectures/criminal-law/property-offences/ 1/15 25/10/2024, 15:10 Property Offences Lecture Property includes money and all other property, real or personal, including things in action and other intangible property. This definition is very wide and most objects will fall within the scope of it. The incorporation of the words ‘things in action’ and ‘intangible objects’ extend the meaning of property to cover rights such as those provided by shares or copyright. There are some quirks in the law regarding what is and is not property and accordingly the remainder of s.4 provides further explanation to cover specific examples. These are now set out as follows. Section 4 (2) states a person cannot steal land, or things forming part of land except in the following cases: He has legal authority to sell or dispose of land belonging to another and he appropriates the land or something forming part of it by dealing with it in breach of the confidence in which the authority was given. He is not in possession of the land but appropriates anything forming part of it by removing it, causing it to be removed or even after it has been removed. In his capacity as a tenant on land he appropriates the whole of part of any fixture or structure let with the land. Section 4 (3) provides: A person who picks mushrooms, flowers, fruit and foliage from a plant growing wild on any land for his own personal, non-commercial use does not steal what he picks. Section 4 (4) provides: Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature or the body of a creature that is not tamed or ordinarily kept in captivity, unless it is in the possession of another person. Case law provides further specific definitions of what is or is not property: Following the ruling in R v Sharp1857 Dears & Bell 160, human body will not be treated as property, unless it has been altered for scientific purposes. This was confirmed in R v Kelly and Lindsay 3 All E.R. 741 Illegal substances will not be prevented from being classed as property meaning that a drug dealer could be a victim of theft if his drugs are taken. This was illustrated in R v Smith 1 Cr App R 30 Information is not property. This was confirmed in Oxford v Moss (1979) 68 Cr App Rep 183 where a student accordingly could not be guilty of theft of the contents of an exam paper. Examination point Make sure that you memorise the case law above as you will be expected to apply it if one of the things discussed has been the subject of a ruling. If you don’t identify it correctly and apply the case, you may misclassify the thing at issue and lose marks. Even where something is obviously property, for example, a wallet, make sure you apply the relevant s4 definition nonetheless. It shows the examiner you are aware of the law and will get you easy marks. Belonging to another Section 5 of the Theft Act 1968 states that another person must have possession or control of the property in order for it to be considered to belong to another. The effect of the requirement of possession or control and not simply ownership means that a defendant could be liable for the theft of his own property! This was demonstrated in R v Turner (No 2) 1 WLR 901where the defendant who had left his car at a garage for repair picked it up without paying for the repairs. As the car was in the possession and control of the garage at the time in question, the defendant was liable for the theft of his car. Section 5(3) of the Act states that where the possession of the property is given to another with instructions to deal with it in a certain way, the ownership in the property is deemed to remain with the giver. If the receiver then deals with the property in a way which is inconsistent with this then this can amount to theft. For example, using the car in the garage from above, had the car which was left in the mechanic’s possession and control for the purposes of repair then been given to one of the mechanic’s employees this would have been inconsistent with the instructions and the mechanic would be guilty of theft. Case in Focus: Davidge v Bennett Crim LR 297 https://www.lawteacher.net/lectures/criminal-law/property-offences/ 2/15 25/10/2024, 15:10 Property Offences Lecture The defendant was given money by her flat mates in order for her to pay their shared gas bill. Rather than paying the gas bill the defendant went shopping and vacated the flat leaving the bill unpaid. The Court held that she was liable for theft as the money had been given to her on the basis of a specific instruction and she had acted inconsistently with that and not fulfilled her obligation to pay the bill. Section 5(4)of the Act further provides that where a person receives property by mistake they have an obligation to return the property and it will remain deemed to be belonging to another. A failure to return the property in this instance will amount to theft. For example, in A-G Ref (No 1 of 1983) QB 182 an employee received an overpayment of their wages from their employer. The realised this mistake and said nothing, which amounted to theft as the money rightly belonged to the employer. Where property is abandoned it is deemed in law to have no owner and thus cannot be held to belong to another. R v Rostron All ER (D) 269 held that whether property is abandoned is a question of fact for the jury to decide and property that seems abandoned may not be where the owner still retains some legal right to it. Case in Focus: Ricketts v Basildon Magistrates EWHC 2358 The defendant took six plastic bags containing used clothing from outside a charity shop. The defendant contested his conviction for theft argued that the items had been abandoned by their owners and had not been claimed by anyone. The Court held that although possession or interest could be taken to arise in favour of anyone in relation to the bags it did not mean that they had been abandoned. The donor intended the items as a gift to the charity and until the charity took possession and effectuated the gift the items still belonged to the donor. Where property has been lost it will still be regarded as belonging to the owner unless the owner cannot be located by taking reasonable steps. What is reasonable will depend on the facts of each case. For example, if the defendant found a £1 coin in the street it might be reasonable for him to ask the people around if they have dropped it and nothing more, if on the other hand they found £50,000 it would be reasonable to take it to the police station even if that meant going some distance out of their way. In any such instances the finder of the property has better title than the owner of the land, that is if the owner could for any reason not be located the £50,000 would belong to the finder, even where the money was found on land belonging to someone else. 1.2 Mens Rea Dishonesty With the intention to permanently deprive Dishonesty Section 2 of the Theft Act 1968 provides a negative definition of what constitutes dishonesty by setting out three situations where a defendant will not be deemed dishonest: (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or (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; or (c) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. It is important to note that these are all judged subjectively and there is no requirement that the defendant’s beliefs were reasonably held. In addition to the above guidance, s.2(2) provides that a willingness to pay for the property will not negative any dishonesty. For example, taking a mug from a colleague’s desk and leaving a £5 note to account for it would not remove the dishonesty of taking the mug. Outside of the specific situations provided for by the Act, the courts apply a common law test set out by Lord Lane in R v Ghosh EWCA Crim 2. The test provides a two stage assessment in determining dishonesty: 1. Was the defendant dishonest by the ordinary standards of reasonable and honest people? 2. Did the defendant realise that he had been dishonest by those standards? Examination Point https://www.lawteacher.net/lectures/criminal-law/property-offences/ 3/15 25/10/2024, 15:10 Property Offences Lecture For the most part you will usually have a statue book with you in exams and can apply the law accordingly but it is absolutely vital that you commit the Ghosh test to memory and are confident in applying it. This test will come up in relation to a number of property offences and it will become invaluable to you- it is well worth taking the time now to get it locked in! For extra marks you could provide some critique of the test by discussing the issues with a standard of a ordinary honest person as this is very much a subjective concept and most people have different ideas of what is honest. This leaves a lot of uncertainty in convictions as there is no set rule on what any given jury will decide. With the intention to permanently deprive The victim need not actually be permanently deprived of their property, so long as the defendant held the intention of permanently depriving them of it. In accordance with the wording of this element of the mens rea borrowing, even without permission, will not amount to such intention as if the defendant intended to give it back then he clearly does not intend to permanently deprive. Section 6 of the Theft Act 1968 provides two caveats to this. (1) A person appropriating property without intended to permanently deprive the other of it will be treated as having such intention if he treats the property as his own to dispose of. A borrowing or lending of it may amount to so treating it as such if the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. This covers situations such as taking a football ticket, going to the match and then returning it to the owner at a point in time that it has lost all value. (2) Where a person takes the property without intention to permanently deprive then parts with the property under a condition as to its return which he may not be able to perform, this will be treated as an intention to permanently deprive. This covers situations such as putting it up as collateral in a bet or taking it in to a pawnbrokers. 1.3 Charging and Sentencing Theft is a triable either way offence and upon conviction the defendant is liable to 7 years imprisonment. Criminal Law - Property Offences 01:56 2.0 Burglary The offence of burglary is set out in s.9 of the Theft Act 1968. There are two offences of burglary set out under s.9. Burglary under s.9(1) (a) and burglary under s.(9)(1)(b), and a third offence of aggravated burglary set out under s.10 of the Theft Act 1968. 2.1 Section 9(1)(a) A defendant commits burglary under this section if they enter into a building, or any part of a building, as a trespasser, with intent to either: steal anything in the building; or https://www.lawteacher.net/lectures/criminal-law/property-offences/ 4/15