#15543 - Theft - GDL Criminal Law

Criminal Law : Theft

• S1(1) Theft Act 1968

• Need all elements existing simultaneously.

Intro

• Offence of theft found in s1(1) Theft Act 1968.

• AR = appropriation of property belonging to another.

• MR = dishonestly and with an intention to permanently deprive.

Appropriation

• Any assumption (s3(1)) of any one right (Morris).

• S3(1): ‘any assumption ... of the rights of an owner’.

• R v Morris: Assumption of any one right [re switching price label].

• Eg, offering for sale (Pitham and Hehl).

• Includes damaging/destroying.

• Later appropriation (s3(1))

• Need all elements of theft to exist simultaneously.

• S3(1)—allows for later appropriation, when missing MR at first appropriation.

• [[note alternative, Hale continuing appropriation

• Consent of owner irrelevant (Gomez):

• Morris, obiter: no appropriation if owner consents.

• But current law: D can appropriate even with consent of owner, appropriation is a neutral act (R v Gomez). [re, shop manager had consented to sale of electrical goods using stolen cheques

• Theft of gifts (Hinks): consequence of Gomez can be theft of lifetime gifts (Hinks appropriation, with consent, can count, re Hinks taking money from 53-yr-old man).

• Innocent purchasers: s3(2)

• S3(2): no theft where D purchasers for value in good faith, then later discovers seller had no title to the property, but decides to keep it.

• R v Adams: purchaser stolen goods in good faith; later discovered they were stolen; appeal quashed [[though if he then tried to sell them, implying he had legal title, would be guilty of fraud]].

Property (s4)

• What cannot be stolen:

• Cannot steal confidential information (Oxford v Moss, re a stolen exam paper)—isn’t covered by ‘intangible property’ in s4(1)).

• But s4(1) incudes other ‘intangible’ property—eg copyright, debt, patents, rights under a trust.

• Cannot steal electricity (Low v Blease, burglar made a phone call, didn’t steal electricity).

• Land (s4(2):

  • S4(1) property can be ‘real’.

  • S4(2): cannot steal land/things forming part of land and severed from it, except:

    • NOTE this is the general general rule -- cannot steal land, EXCEPT ...

  • S4(2)(a): trustee/personal representative.

  • S4(2)(b): when not in possession of land, and appropriates by severing or after has been severed.

  • S4(2)(c): under a tenancy

• S4(3): re mushrooms/flowers/fruit/foliage--> not theft unless for sale/commercial purpose.

• S4(4): re wild creatures can steal if reduced into possession.

Belonging to another

• S5(1): includes ‘possession’, ‘control’ and ‘proprietary right or interest’.

• Can steal one’s own property (R v Turner (No 2))/s5(1) own car, garage had possession & control of it.

• Abandoned property

  • Just because original owner has no more use for it, doesn’t mean abandoned (Williams v Phillips, re goods in dustbin, remains owner until passes to council courts don’t like to consider property abandoned.

  • Original owner doesn’t abandon just because stops looking (Smith & Hogan, eg lost engagement ring).

  • Hibbert v McKiernan: lost golf balls not abandoned just because stopped looking.

  • [[might depend on value/state of the property etc]].

• Possession or control

  • Turner: can steal own property.

  • Woodman: can have control of property without knowing you’ve got it. Re a factory, closed off to trespassers in ‘control’ of site, scrap metal belonged to the company even though didn’t know was there.

  • Parker v British Airways Board: gold bracelet in BA lounge; needed to demonstrate intention to exercise control over lost items; semi-public space.

  • Parker: Talks about a spectrum—at one extreme, where free access (eg a park), unlikely to have control, would need to take stringent, express steps to intention to control; CF, other extreme, eg a secure bank vault, or a private house, or a secure bank vault, would have clear implied intention to exercise control over things found. In between these extremes: forecourts of petrol stations; unfenced front gardens; public parts of shops, etc. BA lounge was in middle band.

  • [[NB, property could belong both to original owner and someone having ‘possession/control’ like Turner, re the car in garage]].

• [[SO where someone finds property somewhere, ask: (1) whether abandoned by original owner; (2) whether owners of land where property found exercise ‘possession/control’ over it. If either applies, can be theft, because ‘belongs to another]].

• Property given to another for a particular purpose—s5(3)

  • State the problem: legal ownership of property has passed [[NOTE THIS in exam]]. Can still belong to another under s5(3) TA.

  • Must be a legal obligation for accused to use property in a particular way.

  • Question of law for judge, Need Intention to create legal relations (ICLR).

  • Eg, commercial situation, R v Clowes (No 2) obligation to invest money in government stock, s5(3) applied, money ‘belonged’ to original investors.

  • Can be imposed in domestic situations, Davidge v Bunnett, flat-mates, money for paying gas bills.

  • R v Breaks and Huggan: directors of company, failed to keep clients and funds separate. CA held: s5(3) not automatic application—trial judge to decide in each case whether legal obligation under civil law.

  • R v Hall, re travel agent, s5(3) didn’t operate, no legal obligation, no contractual obligation to keep client’s money separate until he provided flights.

  • CF R v Klineberg & Marsden: found legal obligation, customers told money was held on trust re developing a timeshare development; most paid into company’s bank account and lost; found legal obligation to deal with money in a particular way, distinguished Hall, because contract gave express assurances that money was to be safeguarded in a stake-holding trust company.

  • Also applies to using proceeds in a particular way (R v Wain)-> raised money in a telethon for charity; legal obligation to use the proceeds of the notes & coins donated to him to give to the charity.

  • So s5(3) operates where there is a legal obligation to deal in a particular way.

  • State the effect of s5(3): it does not prevent D having legal ownership/change the legal ownership, the property still belongs to D; instead, the effect is: the property is regarded, for purposes of TA, as also belonging to another.

  • [[Note, often, re particular purpose, could also be a trust, quistclose, covered by s5(1)]] (includes ‘proprietary right/interest’, so covers equitable interest under Quistclose trust. Eg in Clowes and Klineberg & Marsden. But better to use s5(3), easier for prosecution to make case (Smith & Hogan).

• Property obtained by another’s mistake—s5(4)

  • S5(4) addresses the problem in Moynes v Cooper: RAF labourer; paid too much by clerk; ownership had passed; no theft found.

  • S5(4) only applies where the party intended to give the property to another (if not intended, eg extra 10 gets stuck to a wad, then property doesn’t pass, payer is still legal owner, s5(1) applies instead).

  • Start by noting problem: legal ownership of the property has passed to D. legal title passes in civil law because the parties intend it (Moynes v Cooper).

  • For s5(4) to operate: (1) property given by mistake + (2) a legal obligation to make restoration exists.

  • Do NOT SAY: ‘s5(4) puts D under an obligation to give money back’—wrong. S5(4) applies where there is already a legal obligation, then it applies to make the property ‘belong to another’ for purpose of TA.

  • Must be a legal obligation to restore: is only automatic for money under law of restitution; in other situations, judge must decide if legal obligation.

  • Legal obligation to restore money arises when becomes aware of overpayment/mistake (AG Ref (No 1 of 1983)).

  • Effect of s5(4): the property is treated as ‘belonging to another’ (the person entitled to restoration) for purposes of TA.

  • If using s5(4) (money given by mistake) ITPD is automatic

  • Note alternative argument, re property given by mistake creates equitable interest: R v Shadrockh-Cigari (applying civil case of Chase Manhattan Bank v Israel-British Bank)- where property is given by mistake, payee obtains an equitable interest in that property, so s5(1) operates.

• So note property can belong to more than 1 person:

  • Turner: car, original owner + possession/control of garage.

  • Woodman: scrap metal belonged to the person who had bought it; and to the factory owner.

  • Where s5(3) operates: property belongs to legal owner; and to the person who gave it for a particular purpose.

  • Where s5(4) operates: property belongs to legal owner; and to person entitled to restoration.

• Time at which ownership passes [[see also ‘dishonesty’—must be dishonest intention before ownership of property passes]]:

  • Civil rule: title in property passes at time which parties intend it to pass; generally this is when the property is paid for.

  • Ownership of petrol: passes when it is put into buyer’s tank, i.e. when it mixes with the other petrol in tank--[[so if only later decides not to pay for petrol, after filling up, not theft, because at that point the property no longer ‘belongs to another’ Edwards v Ddin]].

  • Ownership of food (cannot form MR after eating) : passes when buyer starts eating it, at which point it also ceases to be property (Corcoran v Whent)—or possible earlier, when food is ordered & cooked. Cannot steal food in stomach. So if only later decides not to pay, no theft, no longer is ‘property belonging to another’.

  • Hence offence of ‘making off without payment’—for situations when MR for theft formed only after ownership has passed.

Dishonestly

• Negative aspect of dishonesty (s2(1)); and positive aspect of dishonesty (Ghosh).

• S2(1) 3 situations where not dishonest:

• (a)...