#3599 - Property Offences - Criminal Law

THEFT

Theft used to be called larceny – taking and carrying away. Abolished in 1968 under the first Theft Act.

• Other offences were built around the offence of larceny and it was generally a mess. The government accepted a new codified law of theft more or less exactly as suggested by the time’s equivalent of the law commission.

• Note: s.3(2) Theft Act establishes that where someone buys property in good faith that turns out to be stolen, they will not be guilty of theft.

Section 1:

• Theft = dishonest appropriation of property belonging to another, with the intention of permanently depriving the other of their property. It is irrelevant if it if with a view to gain or not.

  Actus reus

  ‘Property’

• Defined in section 4. Includes money and all things tangible as well as thing in action and other intangible property.

  • ‘Thing in action’ – something that is not tangible but enforceable in a court e.g. a debt

• You cannot steal land (except in 3 exception cases detailed in the Act). Why? Probably because the law commission didn’t want to be seen to be going too far. The law of larceny was limited to chattels because it is difficult to take and carry away land. It seemed inconceivable that you could ever steal land, but appropriation of land is perfectly plausible.

• Another conservative reaction by the draftsmen was to not have poaching be theft, instead building other provisions in – s.4(4).

• Dishonestly extracting someone’s electricity is also theft, but the courts have been reluctant.

• Information: Not regarded as property for the purposes of theft.

  • Oxford v Moss – Student took an exam paper, copied the questions and then returned it. Prosecuted for theft but it was thrown out on the basis that information could not be stolen. Also difficult to fulfil elements of the offence – how do you permanently deprive someone of something they know?

• Bank accounts count – because it is either a debt of the bank’s or of the account’s owner.

  • Williams – D was a bent building contractor who preyed on vulnerable customers by overcharging them for jobs. They paid by writing him a cheque, which he then cashed, collecting the money from the elderly people’s accounts. The court realised that these were bank accounts to be drawn from, which were choses in action, and thus theft was committed by appropriation of another’s property. You are forcing money to leave their account and acting as owner.

• Corpses and body parts – generally no, but the courts seem unhappy about this. They have ruled that if it has undergone some process of preservation etc. then it can be stolen.

  • Yearworth v North Bristol NHS Trust –Cs who were about to undergo treatment for cancer which would render them sterile had their sperm stored by D for future use. By D’s negligence it was destroyed. They argued that bodily products are not really property, but the CoA disagreed. This seems to dispose of the old common law rule and will probably be applied to body parts the next time a case comes up.

‘appropriation’

• S.3(1) – any assumption by the person of the rights of an owner, which includes where he has come by the property innocently or not, any later assumption of rights of the owner.

• It is an abstract concept, not a concrete one.

• Hidden ambiguity in the verb ‘to assume’. In a narrow sense, assumption is doing something that you don’t have a right to do (‘he checked into the hotel under an assumed name’, ‘assume a right’), but in the wider sense it covers legitimate activities (‘to assume one’s duties’). Over the years, the courts have opted for the broader interpretation.

• Major doubts:

  • Is it limited to acts to which the owner does not consent? Case law suggests no – you can steal with the owner’s consent.

  • Is it limited to cases where there is a valid consent (as opposed to ones where consent is vitiated – by fraud, force, or mistake)?

  • Can it be theft if civil law would not give a remedy? Borderline cases: luring someone’s cat with food with intent of making the cat your own.

    • The answer is yes.

  • What is the effect of the behaviour is to make D the owner, so that the previous owner could not claim it back in civil law?

    • The answer is yes again.

• Lawrence – Italian man arrived in England speaking very little English. A bent taxi driver grotesquely overcharged him for the journey. The man held out his wallet to pay his dues, and the driver took all of the money. He took the number of the taxi and ultimately D was prosecuted for theft. It would have made more sense to charge fraud because he got it by lies. CoA said it’s not theft because the owner consented. HoL confirmed the conviction – and Viscount Dillon questioned whether the point was of generally importance. The matter at hand in this case related to dishonestly, not appropriation: you can have appropriation where the owner consents.

• Morris – woman had swapped the labels in the supermarket to get a reduced price. Swapping labels is theft because the act of swapping the labels is an appropriation of the property and the theft occurs at the point of label switching. The HoL, however, said that in principle her guilt derives from dishonestly swapping the labels without consent – there could be no appropriation with consent.

• Gomez – D obtained electrical equipment by writing a cheque which he knew not to be good – it bounced. He got it by a deception. He could have been prosecuted for an offence of fraud, but the prosecutor chose to charge theft. The consent of exchanging the property for the cheque was vitiated on the basis of the fraud. HoL decided that he was guilty of theft and that you could be guilty of theft when there was consent. Court tried much harder this time, making up for the arrogance in the previous decisions.

• Hinks – V was a man of limited intellect who could only just function in the world. He inherited a great deal of money from his father. He got a girlfriend, who took him into his building society and had him withdraw 300 each day. D had managed to make away with 60,000. She was prosecuted and convicted. It went to the HoL on the basis of whether it could be an appropriation where the transaction is legally valid. HoL answered yes – conviction affirmed. Interestingly, the transaction was not necessarily valid…sometimes undue influence will vitiate consent and perhaps it should have done in this instance! If the transaction could be undone by taking the money from D, that is probably what should have been done. The decision has been much criticised –

  • People taking advantage of the vulnerable is a social problem and they wanted the law of theft to be interpreted in a manner to protect. Perhaps this isn’t such a bad thing after all!

  • Although this was a legally valid transfer of ownership, it was still theft.

• In Smith, it was established that you can still steal something that someone cannot legally own e.g. drugs.

• These are not a good line of cases for the judiciary. These defy the legal maxim that where there is doubt the decision should be in favour of the defendant. They have given wide meanings when such meanings were not necessary to prosecute those that ought to be prosecuted.

• Wheatley v Cmr of Police of British Virgin Islands – D was prohibited from putting himself in a position where his financial interests collided with the interests of his employer. He convinced his employer to make a contract with a company which he was the sole director of. He was charged with fraud and also theft, because causing the employer to pay money over like that could be theft.

• Briggs – D was the great niece of V2, and helped the Vs to sell a big house and buy a smaller one. The proceeds of the sale of the big house were temporarily held by a firm of conveyances. D then arranged with the Vs to have the company transfer a slice of the money to the vendors of the little house. She then had them convey title to the house to her, not the Vs. She was convicted of theft, consisting of an appropriation of some of the money. CoA said this was not an appropriation – but it is impossible to reconcile these with Hinks and Gomez. The case is per incuriam, having failed to cite any of the HoL cases. This is probably the fault of counsel.

Appropriation as a continuing act:

• Atakpu (1994) – a single act. D planned to steal expensive cars abroad by hiring them and sell them in England. There was no jurisdiction of the court for crimes committed in other countries, so the prosecution tried to argue that the appropriation was a continuing act which carried into the UK.

‘belonging to another’

• Ricketts v Basildon – D took bags from outside a charity shop that were meant as donations. He argued that the bags were re nullius because they had been abandoned. The court ruled that the original owner would retain ownership until delivery was taken by the charity shop.

• It is difficult for property to not belong to someone!

• If you are an owner, it is still possible for you to steal from a possessor who has a right to possess it against you:

  • Turner (No 2) – D took his car from a garage forecourt where it had been repaired without paying for the work. The garage owner had a liens to hold the property until the work was paid for. He was convicted of theft. Spencer fears judicial overkill in this case.

• Directors of companies can steal from the company, even if the company is just a corporate alter ego of the person who owns it.

• You can steal from anyone who has any sort of proprietary right/interest.

• What happens when someone retains a proprietary interest in property/money when someone else gets their...