Criminal Law - Theft. PDF

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TheftKey Dishonesty Offences: •Theft (Theft Act 1968, s) •Robbery (Theft Act 1968, s) •Burglary (Theft Act 1968, s – may involve theft/intent to steal) •Handling Stolen Goods (Theft Act 1968, s) •Making Off without Payment (Theft Act 1978, s) •Fraud (Fraud Act 2006, s-4) •Obtaining Services (Fraud A...

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Theft Key Dishonesty Offences: •Theft (Theft Act 1968, s.1) •Robbery (Theft Act 1968, s.8) •Burglary (Theft Act 1968, s.9 – may involve theft/intent to steal) •Handling Stolen Goods (Theft Act 1968, s.22) •Making Off without Payment (Theft Act 1978, s.3) •Fraud (Fraud Act 2006, s.1-4) •Obtaining Services (Fraud Act 2006, s.11) (cf also Blackmail, Theft Act 1968 s.21- not a dishonesty offence, but shares other characteristics with main Fraud offences)  Jury are very involved in deciding what dishonesty is so we encounter similar problems to manslaughter in that they are very often deciding what's criminal and what isn't according to their preferences. Frequency and penalty: 

Theft and fraud-related offences account for well over 50% of recorded crime

Penalty: 7years on indictment.  This is deceptive as many offences are relatively trivial and are dealt with summarily in the magistrates court and have lesser sentences.

Definition: Theft Act 1968, section 1: (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. (2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit. There are situations that might be covered by the Theft act by virtue of s1(2) - eg D, angry that her boyfriend has left her, cuts up his best suit – that could equally be dealt with under criminal damage. In such an instance up to prosecutor. The essential elements: AR: •Appropriation (s.3)  Regarded as an objective description of what is done – fault comes from element of dishonesty •Of property (s.4) •Belonging to another (s.5) MR: •Dishonesty (s.2) •Intention permanently to deprive (s.6) Also should be: •Voluntariness •Knowledge

‘Property’ Theft Act 1968, section 4:

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“(1) ‘Property’ includes money and all other property, real or personal, including things in action and other intangible property.” ‘All.. property’ (criminal law) = anything that = property in civil law which can prima facie be stolen.  This even includes property that it is an offence to possess o Smith [2011] Crim LR 719 (CA) – D convicted of stealing heroin illegally possessed by V.

‘Things in action/intangible property’ –  Refers to intangible things where D has the right to sue for a particular sum – most commonly affects bank accounts etc.  Where D dishonestly causes the bank to transfer funds from V’s action, D doesn’t steal a tangible thing, instead she steals a thing in action Under this provision a debt such as that represented by a bank account or an overdraft facility can be stolen: Kohn (1979) 69 Cr App R 395 – o D had access to the company’s finances and misappropriated some of their assets for his personal gain 

Extended interpretation: AG of Hong Kong v Chan Nai Keung o This case extended ‘property’ to include not only ‘things in action’ but also other intangible property – things of value which could be brought and sold o This case involved a director who sold export quotas at a gross undervalue from one company, of which he was the director, to another.

Not ‘property’ in civil law: •Electricity: o Note: there is another section for ‘abstracting electricity’ •Services: e.g a haircut •Confidential information: o Oxford v Moss (1978) 68 Cr App R 183 – o An engineering student at Liverpool university got hold of a proof copy of an exam paper he was about to take and read the questions before putting it back, held he didn't steal the information simply because the information isn't itself property. o Note: potential argument for having stolen the paper on the basis that you can take the value of an item without actually taking the item and it will sometimes amount to theft.

Cannot be owned: •No ‘property’ in corpses, body parts and body fluids, other than in exceptional cases.  However, there is an exception if work has been done on a thing – e.g. a museum may own a mummy, and a forensics lab a sample: Kelly and Lindsay [1999] QB 621 – o It amounted to theft when an artist took specimens from the Royal College of Surgeons, which had undergone work, to use in a project.  If they had taken a fresh corpse then wouldn't have been able to be theft, questionable? Needs to be re-evaluated. Does a man own his own sperm? Cf Yearworth v N Bristol NHS Trust [2010] 2 QB 1

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Men had given samples of sperm following cancer treatment were said to own their sperm as against the hospital, there was argument that there had been some application of skill in the storing of sperm. CA said they must own their own samples and that common law is illogical. Thus if such a case would come up would have option to stick to common law or follow Yearworth.

The following are property as defined by s.4(1) but are excepted from theft: i) Land or things forming part of land: s.4(2)  Moving a boundary fence to enclose part of a neighbour’s garden is not stealing. Exceptions stated in s.4(2)(a)-(c): S4(2)a: allows for the theft of land by a trustee of property, where D is the trustee of property and disposes of that property dishonestly for her own advantage, she may commit theft. S4(2)b: allows for theft of land by someone whose interest in the land is not that of ownership, but who severs part of the land  E.g. if D steals a bit of the topsoil, plants or a garden shed, this will amount to property for the purposes of theft. S4(2)c: allows for theft by a tenant who appropriates a fixture or structure of the land  Unlike D who has no rights at all in the land, a tenant, will not commit theft where she removes minor fixtures. But will if appropriating a fixture or a structure (greenhouse). In such cases appropriation is all that is required, there is no additional requirement for severance. ii) Wild mushrooms or flowers/fruit/foliage picked from wild plants, unless for commercial gain: section 4(3).  

The wording of this section does include certain exceptions. For example, although D may pick flowers fruit or foliage, this is provided that he doesn’t dig up the whole tree. It is their intention at the time of picking which is important

iii) A wild creature not tamed or ordinarily kept in captivity, except where another has reduced it into possession or is in course of doing so: section 4(4).  

E.g. if D shoots and kills a wild pheasant on V’s land, she may be liable of poaching, but for the purposes of theft, won’t be liable. Moreover, for the purposes of Theft, ‘captivity’ as to amount to property requires more than the regular feeding of a wild creature.

‘Belonging to’ Extended interpretation of Theft under Theft Act 1968, section 5(1): “Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).” If D has possession/control/a proprietary right or interest then the property may ‘belong to him’  E.g. even if V is only holding X’s handbag when D snatches it, D can be charged with theft from steals from V (as well as X) regardless of the fact they only had very temporary control. Note: If no-one except D has such an interest at the time of appropriation D does not steal it :

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Consider A leaves an umbrella in B's room as a gift but B doesn't know it is a gift and merely wants it for themself - can't commit theft as has been gifted.

cf Walker [1984] Crim LR 112) o D sells V a video recorder, it was faulty and V returned it, when nothing had happened V took legal steps to get his money back. D then sold the machine and was charged with theft. o CA rightly pointed out that prosecution needed first to establish that the recorder still belonged to someone other than D. Problem being that by taking legal steps to get money back might have rescinded the contract. 

There are two exceptions to this -see s.5(3) and (4)

Property left for collection by the council or a charity is likely to ‘belong’ either to the original owner or to the party intended to take it: Williams v Phillips (1957) 41 Cr App R 5; o If V throws property into a bin, intending it to be collected by an authorised authority, if D then takes the property from the bin he is liable of appropriating that goodness. Toleikis [2013] EWCA Crim 600; o Bags intended to raise money for charity were stolen by D, because bags stipulated the bags belonged to the charity they could establish theft. Note: the above two cases involve clear indications that the property was meant for the charity and thus could belong to them. Perhaps a bit of uncertainty as to how they can be reconciled with Ricketts – but probably doesn’t matter as outcome is the same. Theft. Ricketts v Basildon Mags Ct [2010] EWHC 2358 (Admin). o Donor left the bags at door of charity shop and D took it, held to be theft from original owner because the gift was incomplete as property hadn't passed until it was taken over. Sullivan [2002] Crim LR 758 o Money found on corpse did not belong to anyone.  This must be wrong – the deceased’s estate belongs to the state if no other interest can be asserted.

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The inclusion of ‘control’ in s.5(1) means that property can ‘belong’ to someone having no proprietary interest and who may not even know he has it.

Rostron [2003] All ER 269 o D and some pals broke into a golf course and stole the balls from the course lake. o Convicted of theft, although the course owners had no intention of collecting the balls themselves, they still maintained possession and control over them.  This indicates how the law is more concerned with punishing wrong doers than protecting ‘victim’s’ interests In Woodman [1974] QB 754 CA o D took scrap metal from a disused factory site. V, the owner of the site, was unaware that the scrap metal was even there.. However, as V had control of the site and thus control of everything on the site thus could be theft. o A person has possession of any articles or property on his land even if he is not aware that that property exists or had forgotten that it exists. By having control of the site he has control of the property within (s 5(1)).

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On a literal reading D (despite being the owner) can steal from V who merely has control. In Turner (No. 2) [1971] 2 All ER 441 CA o D took his car to a garage for repair. The car was locked by the repairer and left outside. D, using a spare set of keys, drove the car away intending not to pay the bill. It was held that the garage had sufficient control over the car to come within the phrase ‘belonging to another’ and D was convicted of stealing his own car.  Criticism of Turner: The reasoning in Turner was expressed too widely indicating that in all such circumstances appropriation would amount to the taking of property belonging to another. Cf Meredith [1973] Crim LR 253 (Crown Ct) o Where D was held entitled to take back his impounded car and could not be convicted of stealing his own car – said the police had no rights in relation to his car.

Proprietary rights/interests may be divided, thus: •A co-owner of property can steal shared property from the other owner as they also have such an interest: Bonner [1970] 2 All ER 97 •Directors can steal from their own company: AG’s Reference (No 2 of 1982) [1984] QB 624 o A company is a legal entity separate from the defendants, albeit that they were its sole shareholders and directors •Section 5(2) of the Theft Act 1968 allows trust property to ‘belong to’ anyone with a right to enforce a trust; i.e., the beneficiaries or the Attorney General in the case of charitable trusts. •Where D defrauds V of funds or profits to which V could lay claim, the question whether the property D appropriates ‘belongs to’ V may raise complex questions about constructive trusts: A-G’s Ref (No 1 of 1985) [1986] QB 491; o Pub owner had made a secret profit by selling his own goods (beer) on his employer’s premises even though he was only supposed to sell the brewery’s beer, thereby breaking the terms of his contract of employment. Held: The profits made were not subject to a constructive trust, and that if they were, that constructive trust did not give the employer a proprietary right or interest in the secret profit within the ambit of section 5(1). 

If the prosecution where right and in each case of secret profit a trust arises which falls within section 5, then a host of activities which no layman would think were stealing will be brought within the Theft Act 1968 . .  There is a clear and important difference between on the one hand a person misappropriating specific property with which he has been entrusted, and on the other hand a person in a fiduciary position who uses that position to make a secret profit for which he will be held accountable.

Re Holmes [2005]1All ER 490). Distinguished AG's reference. o In this case it was found that an automatic transfer of funds induced by the fraud of D could be considered held on constructive trust and belong to the victim for purposes of s5(2) o Influencing factor was that the court believed any ordinary person would regard this as theft and thus they were not worried about the development of a new kind of theft

•Property transferred by mistake: the Chase Mahattan principle:  A person who pays money (or, presumably. delivers any property) to another under a mistake of fact retains an equitable interest in the money.

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Used in: Shadrokh-Cigari [1988] Crim LR 465; o A deposited a far greater amount of money than intended to into a child's account, guardian of child transferred most of these funds to their own account, however, as bank could be found to hold an equitable proprietary interest the guardian could be said to have stolen. o Now s5(4) covers money transferred by mistake - thus all the Chase Manhattan principles gives is option to prosecute over s5(1) or use the s5(4) exception Webster [2006] EWCA Crim 2894; o Soldier mistakenly supplied with two medals instead of one, he passed one to D who sold it on the Internet, D was convicted of stealing the medal from the Secretary of State who still had an equitable proprietary interest.

Property ‘belongs to’ D: Two exceptional cases Normal rule is that D commits no theft if no other person has a s.5(1) or (2) interest. 2 special cases: 1. s.5(3) – covers the case of a transfer of property which places D under a legal obligation to deal with it or its proceeds in a particular way is regarded as continuing to belong to the person who transferred it regardless of what civil law says. 

e.g. if a cleaner is given money for detergent and deals with it inappropriately by keeping it for herself.

For the purposes of s5(3) D must be under a legal as opposed to merely a moral duty to deal with the property in a particular way (question for the judge) R v Hall [1972] 2 All ER 1009; o In this case, when a travel agent, who had been transferred money which he had put into his general trading account, failed to provide the expected holidays, it was held not to be covered by s5(3) – court said there was no specific obligation for D to use that particular money towards the holidays. Wain [1995] 2 Cr App R 260; o Money being held on behalf of a charity, charity allowed him to put money in his own account and he would pay by cheque, but unable to do so when ran out of money. Held that there was an agreement that he would hold onto a specific amount of money which was earmarked for charity. S5(3) applies. 

The distinction between these last two cases seems to be whether there is specific money for a very specific purpose – however, distinction might seem a little artificial

2. s.5(4) – property received by another’s mistake where D is under legal obligation to make restoration is regarded as continuing to belong to the other. Rectifying Moynes v Coopper [1956] 1 QB 439; o This case had existed before theft act and was inconsistent. o D had got pay pack from employer and he had been overpaid. As under old law the property had been passed to him it was impossible for him to steal it. To deal with this s5(4) covers this to make restoration possible. This can be a harsh rule in practice. A-G’s Ref (No 1 of 1983) [1984] 3 All ER 369; example of harshness of rule. o D was policewoman who was overpaid by small sum of money into her bank account. CA said if she deliberately and dishonestly kept such an overpayment it could be theft.

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Dislike this rule as it puts an obligation on you to rectify a mistake which isn't your fault hope for the courts to find your behaviour not to be dishonest.

Gresham o D’s mother dies but D did not inform her pension provider (V) who continued to make payments under the pension. D used money as his own and was convicted and upheld for theft. Duty under s5(4) to return the money. Property ‘belongs to’ D: Applying the general rule, there is no recourse under s.1 Theft Act in these cases as V has no remaining interest under s.5: •D eats a meal in V’s restaurant and then decides to leave without paying Corcoran v Whent [1977 Crim LR 52; o Said he thought his friend had paid for the meal and only found out afterwards that he hadn't. Court said this can't be theft as at the time he becomes aware and potentially dishonest the food is his as he has ownership, possession and control of it. •D fills car with petrol at V’s filling station and then decides to drive off without paying: Edwards v Ddin [1976] 1 WLR 942; In both cases, D has acquired all the relevant interests in the property by operation of civil law before he becomes dishonest.

As a result the following offence was established: Theft Act 1978, section 3(1): Making off without payment: (1)Subject to subsection (3) below, a person who, knowing that payment on the spot for any goods or service done is required or expected from him, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount due shall be guilty of an offence.”

Abandonment:  Possible for property to be abandoned and thus ownerless and no longer capable of theft.  This is rare, however, and V must leave the property and be indifferent as to any future appropriation.

‘Appropriation' 

The treating of something which belongs to another as though it belongs to you is the essence of appropriation.

Definition: Theft Act 1968, Section 3: (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. The wording suggests that D must do something in relation to the property. Briggs [2004] 1 Cr App R 451; o Suggests you can't have appropriation by omissions.  See Morris later on o D, by deception, induced elderly relatives to transfer to her proceeds of her house sale.

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CA quashed conviction of theft – said that ‘appropriation’ connoted a physical act rather than a more remote action triggering the payment that gave rise to the charge.

Exception: may have theft in relation to the notion of ‘theft by keeping’. (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.  Introduces a good faith element

Problem 1: assumption of what right(s)? Morris [1984] AC 320 (HL) Two appeals of similar facts. o D took items from a supermarket shelf, removed the price tags and replaced with labels from cheaper goods. The incorrectly priced goods were ...