#3095 - Theft - GDL Criminal Law

- s1(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.

- AR: appropriation of property belonging to another

- MR: dishonesty + intention to permanently deprive.

Actus Reus: appropriation of property belonging to another.

- Appropriation – s3 TA 1968.

• s3(1) TA 1968: any assumption of the rights of an owner.

  • inc. where he has come by the property without stealing it any later assumption by keeping/dealing with it.

• any 1 of owner’s rights (R v Morris: d. switched labels in shop; R v Pitham & Hehl: d. posed as house owner).

• consent irrelevant: appropriation neutral (R v Gomez, [Ld B-W]: objective description of act done).

• theft of gift possible (R v Hinks: d. tricked man into giving money).

• later appropriation: still appropriation (s3(1)) if initial assumption not theft, theft can occur when d. forms MR.

  • + appropriation can be continuing act (R v Hale).

• innocent purchaser (good faith, for value) of stolen property not liable (s3(2); R v Adams).

- Property – s4 TA 1968.

• s4(1) TA 1968: money + all other property, real or personal, inc. things in action + intangible property.

• property which may NOT be stolen:

  • s4(2): land or part of land (UNLESS: (a): in breach of trust; (b): not in possession + severs anything forming part of land; (c): tenant taking fixtures).

  • s4(3): wild growing things (UNLESS: for reward or sale or commercial purpose).

  • s4(4): wild creatures/carcass not tamed or kept in captivity (UNLESS: reduced into possession by other).

  • confidential information (Oxford v Moss: student looked at exam paper before set not guilty).

  • electricity (Low v Blease: burglar made telephone call not guilty).

- Belonging to another – s5 TA 1968.

• s5(1) TA 1968: property shall be regarded as belonging to person having possession or control of it, or having in it any proprietary right or interest (but not equitable interest arising from agreement to transfer/grant).

• inc. own property in possession/control of another (R v Turner (No 2): d. removed car from garage).

• NOT abandoned property: but courts unwilling to find (Williams v Phillips).

  • [Ormerod]: wedding ring not abandoned just because owner stops looking for it.

  • Williams v Phillips: goods in dustbin not abandoned (intended collection by LA).

  • (if apparently abandoned consider whether belongs to party with possession/control).

• possession/control of land on which found – if sufficient steps to exercise control.

  • R v Woodman: scrap metal left in factory factory owners in control (had taken steps to secure factory).

  • Parker v BAB: d. found bracelet in BA lounge BA not in control (insufficient steps: notice, checks, policy).

• obligation to deal with property/proceeds in particular way: can BTA if legal obligation (s5(3)).

  • ownership passes to d. at civil law: property can just BTA for purposes of TA.

  • R v Hall: d. travel agent took money for flights, used to pay creditors no obligation.

  • Davidge v Bunnett: d. given cheques by flatmates to pay bill obligation.

  • R v Clowes (No 2): d. given money to invest in govt. stock obligation.

  • not automatic: dep. on facts (R v Breaks & Huggan: ins. brokers did not segregate funds no obligation).

  • obligation can be to deal with proceeds (R v Klineberg & Marsden: ds. took money from timeshare purchasers to pay trust co. until completion; R v Wain: d. raised money for telethon obligation to retain).

  • ALTERNATIVE interpretation: Quistclose trust – donor retains equitable interest owner under s5(1).

• property given by mistake + obligation to make restoration: BTA (+ intention not to restore = ITPD) (s5(4)).

  • ownership passes at civil law (Moynes v Cooper: previous problem – d. could not be guilty).

  • N.B. if property given by ACCIDENT s5(1) applies: ownership does not pass.

  • only if legal obligation to make restoration: point of law – det. by judge.

    • A-G’s Ref (No 1 of 1983): d. policewoman mistakenly overpaid legal obligation from time aware.

  • ALTERNATIVE: mistaken party retains equitable interest owner under s5(1) (R v Shadrokh-Cigari, applying Chase Manhattan Bank v Israeli-British Bank) – but criticised: consider s5(4) first.

MR: dishonesty + intention to permanently deprive

- Dishonesty – s2 TA 1968.

• not defined in Act.

• s2(1): appropriation NOT dishonest if d. appropriates property in belief –

  • (a): that he has in law the right to deprive the other of it, on behalf of himself or of a 3rd person.

  • (b): that he would have the other’s consent if the other knew of the appropriation and the circs. of it.

  • (c): that the person to whom the property belongs cannot be discovered by taking reasonable steps.

  • subjective test: belief must be honest, not necc. reasonable – R v Robinson [1977].

• CL test for situations not covered in s2(1) – R v Ghosh: [Ld Lane]:

  • 1. objective: was d’s behaviour dishonest by ordinary standards of reasonable + honest people?

  • 2. subjective: did d. realise (or must he have realised) that what he was doing was dishonest by those standards? (dishonest even if believes morally justified).

• willingness to pay irrelevant (s2(2)): covers situations where d. takes property owner does not wish to sell.

• coincidence of AR+ MR: dishonest intent must be before ownership passes to d..

  • generally: when property paid for.

  • petrol: when put into buyer’s tank (Edwards v Ddin).

  • food: when buyer starts eating (Corcoran v Whent) – but restaurant: maybe sooner.

  • (if not: might be making off without payment – s3 TA 1978).

- Intention to Permanently Deprive – s6 TA 1968.

• not defined in Act should be given ordinary meaning (R v Lloyd, [Ld Lane]): do not refer to s6 when clear ITPD.

• property not interchangeable: intent to replace equivalent property irrelevant (R v Velumyl: money from safe).

• s6(1): inc. treating thing as own to dispose of regardless of owner’s rights (consider where no obvious ITPD).

  • treating thing as own (R v Scott: d. stole curtains intending to return guilty; R v Holloway: d. employed to dress sking took already dressed skins from warehouse not guilty: always acknowledged ownership).

  • to dispose of regardless of other’s rights:

    • 1. trad. dictionary def: deal with definitely: get rid of; get done with, finish; sell (R v Lloyd; R v Cahill: ds. deposited bag of newspapers from newsagent outside friends’ house not guilty).

      • inc. rendering useless (DPP v J: d. snapped v’s headphones).

      • inc. ‘ransom’ cases (R v Lloyd, [Ld Lane] obiter; R v Raphael: ransom to return car).

    • 2. risking loss (R v Fernandes: d. (solicitor) invested client money in risky business guilty).

    • 3. dealing with property: but dubious.

      • earlier cases: maybe enough (Chan Man-sin v AG Hong Kong: d. used forged cheques to withdraw money, but bank would reimburse guilty; DPP v Lavender: d. removed doors from council property to replace damaged doors in gf’s house guilty).

      • but dubious (R v Mitchell: gang left carjacked car where easily found not guilty (no intention to dispose; R v Vinall: DPP v Lavender ignored in survey of case law).

• s6(1): inc. borrowing/lending for period +...