Notes Theft Act 1968 - Summary Criminal Law PDF

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Notes: Theft Act 1968TheftS1 Theft Act 1968“... if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it...”Actus reus There must be property The property must belong to another D must “appropriate” the property Property S4 (1) Theft Ac...

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Notes: Theft Act 1968 Theft S1 Theft Act 1968 “… if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it…”

Actus reus 1. There must be property 2. The property must belong to another 3. D must “appropriate” the property Property S4 (1) Theft Act 1968 “Property includes any money and all other property, real or personal, including things in action and other intangible property” Exceptions contained in s4 (2)-(4)     

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Property defined by reference to civil law ‘Things in action’- property rights over but no physical existence and hence can be vindicated only through legal action i.e. shares or a trademark. Does not include information A service is not property i.e. a ride on a train cannot be stolen (Bagley [1923]) Relationship between banker and customer is one of debtor and creditor, debts are choses in action and hence credit balance falls within property (Foley v Hill [1848]) Human body cannot be owned even when deceased ( Williams [1880]). Kelly [1998] a corpse is property just incapable of being owned- and so can be stolen o Yearworth v North Bristol NHS Trust [2009] men continued to have property rights in sperm in a sperm bank Electricity (like other energies) cannot be stolen (Clinton v Cahill [1998])- s13 Theft Act 1968 offence of dishonestly abstracting electricity

Case law Oxford v Moss [1979]  D dishonestly obtained a copy of an examination paper which he read and then returned  Held: confidential information did not fall within property under s4 (1) and so could not be a basis for theft charge; D had not permanently deprived the owner of it Smith, Plummer and Haines [2011]  Ds arranged to buy heroine from V, when V arrived Ds robbed V at knife-point.  Held: property covered all things including drugs, s4 listed things that could not be property

Belonging to another S5 Theft Act 1968 “… belonging to any person having possession or control of it, or having in it any proprietary right or interest…” 

D cannot steal property in which he is the absolute owner i.e. no one else has property rights in

Case law Turner (No 2) [1971]  D took his car to V’s garage for repairs. D later took his car away without paying  Held: sufficient that the person from whom the property was appropriated was at time in possession or control of it Gilks [1972]  D placed a bet and the horse came unplaced, however the bookmaker mistakenly paid D  Held: at the moment of payment the sum paid was ‘belonging to another’ Sullivan [2002]  V was a drug dealer with the proceeds of a group of drug dealers, he died and Ds were accused of stealing the money from the corpse  Held: could not be inferred that someone owned the property at the time it was taken, law of theft would not allow title to be asserted on the basis of illegality Ricketts [2011]  D took bags of clothing and items from collection bins belonging to 2 charity shops  Held: could not be said that charity shops had acquired an interest in the property merely because they were left in close proximity to the shop; items had not been abandoned, they remained the property of the person who gifted them until the charity shop took delivery of them Appropriation S3 (1) Theft Act 1968: “any assumption by a person of the rights of an owner amounts to an appropriations, 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” 

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D need only assume one facet of ownership, interfere with any of the rights ( Morris [1984]swapping labels) o Pitham and Hehl [1976] offering to sell goods assumes rights of owner Appropriation can be effected with the consent of the owner (Gomez [1993]) Appropriation can occur despite an indefeasible acquisition of ownership (which is not recoverable at civil law) (Hinks [2001]) Sufficient for theft that D keeps property lawfully obtained “keeping… it as owner” (s3(1))

Broom v Crowther [1984] D bought a stolen item, after learning it was stolen he left the item in the cupboard- no appropriation for the act. Mere decisions keeping without decision to treat property as own insufficient D appropriates property any time he does anything with it before the full offence is made out Bona fide purchasers of items are protected from liability by s3 (2) o

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Case law Morris [1984]  Ds swapped the labels on a product, in one case this was detected before he paid in another it was not  Held: sufficient for appropriation to prove the assumption of any of the rights of the owner, involved an adverse interference or usurpation of some of the owner Gomez [1993]  D, a shop worker, convinced his boss to accept stolen bank cheques, he knew to be worthless, in return for goods  Held: actual taking of the goods with or without the consent of the owner that amounted to an appropriation, hence dishonest appropriation could occur when V was induced by fraud, deception or false representation to consent or authorise the taking of goods  Lord Keith: “the assumption of any of the rights of an owner could amount to an appropriation…”  Lord Browne-Wilkinson: “appropriation in isolation as being an objective description of the act done irrespective of the mental state of either the owner or the accused”  Lord Lowry (dissents): “the act of appropriating property is a one-sided act, done without the consent or authority of the owner”, natural meaning of term appropriation implies lack of consent Hinks [2000]  D became friendly with a man of low intelligence, who gave significant gifts to him  Held: the owner can appropriate property despite the fact the other person has made an indefeasible gift of property and retains no property rights or right to recover  Lord Steyn: “in the practical world there will sometimes be disharmony between the two systems”; “in practice the mental requirements of theft are an adequate protection against injustice”  Lord Hutton (dissents): “… should not be regarded as dishonest if the other person actually gives the property to him”; jury must consider whether V had the capacity to consent  Lord Hobhouse (dissents): “the person who accepts a valid gift is merely conforming to the wishes of the owner”; erroneous to treat as belonging to another property which actually belonged to D Briggs [2004]  D assisted V in the sale of a home and purchase of another; D ensured that the home was actually transferred into his name rather than V’s  Held: where V caused a payment to be made in reliance on the deceptive conduct of D there was no appropriation by D; appropriation connotes a physical act rather than a more remote causing of payment

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(Barsby and Ormerod 2004): seems at odds with Gomez and Hinks; idea of no taking would provide no protection for intangible property

Mens rea 1. D must intend to permanently deprive another of the property and; 2. D must act dishonestly Intention to permanently deprive  Generally sufficient that D has an intention to permanently exclude V from exercising his rights to property  D need not gain, owner need only be deprived (s1 (2))  Conditional intent: if D appropriates a bag with the intention of keeping it the contents are worth stealing but then gives it back (Easom [1971]) no theft of the individual items o But: A-G’s Ref (Nos 1 and 2 of 1979) applies only when charge is intent to steal specific item, could still have stolen ‘some or all of the contents’ o Smith and Hogan: assumption of ownership conditional as there is an intention to permanently deprive only in a certain event, is theft Section 6 exemptions S6 (1) Theft Act 1968 “… treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal” 

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Lloyd [1985] D borrowed films and passed them to E who made and sol pirate copies. Held: “borrowing is ex hypothesi not something which is done with intention to permanently deprive… unless the intention is to return the thing in such a changed state that it can truly be said that all its goodness or virtue is gone” S6 (2) if a person parts with possession of property belonging to another subject to a condition he may not be able to fulfil this will amount to theft i.e. pawning o Smith and Hogan: entirely subjective, if he unreasonably believes he will be able to recover property will not be theft

Disposal of property as one’s own  Downes [1983] D gave Inland Revenue vouchers made out in his name to a third partydocument when returned would be in substance a different thing; D intended to treat the vouchers as his own to dispose of regardless of the other’s rights- give s6 natural meaning  Lavender [1994] treated ‘treat as own’ as crucial and downplayed ‘dispose of’; D removed two doors from one council property and put them in another Borrowing or lending  DPP v J [2002] D forcibly took V’s headphones and broke them, returning them- a person who takes something and returns it rendered useless demonstrates intent to treat the property as his own to dispose of

Abandonment  Mitchell [2008] D was involved in a police chase, he took a car and subsequently abandoned it; CA: s6 (1) did not extend to cases where D took even by violence for brief use before abandoning it where it could be easily discovered  “… dishonestly and for his own purpose deals with that property in such a manner that he knows he is risking its loss” per Auld J in Fernandes [1996] Raphael [2008]  Ds assaulted V and taken his car, agreeing to return it but only in exchange for money.  Held: if the taker intended to return goods only on payment then this amounted to intention to permanently deprive; to make return of the property conditional was inconsistent with V’s rights as the property owner Dishonesty General test for dishonesty Question of fact, rather than a question of law. Test laid down in Ghosh [1982]: 1. Was what D did dishonest according to ordinary standards of reasonable and honest people? 2. Did D realise that reasonable and honest people would regard what he did as dishonest? S2 Theft Act 1968 Not to be regarded as dishonest as dishonest: 1. D believes that he has in law the right to deprive the other it, on behalf of himself or of a third person 2. D believes that he would have had the other’s consent if the other knew of appropriation and the circumstance of it 3. D appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps  Honest mistake is sufficient even if unreasonable (Holden [1991])  S2 (1) does not cover cases where D believes they have a moral right to the property Case law Feely [1973]  D stole money from the till at work intending to pay it back and in a situation where his employer owed him more money than he borrowed  Held: should have been left to jury to apply “the common standards of ordinary decent people” Ghosh [1982]  D was charged with s15 obtaining money by deception by claiming an operation was carried out by him when in fact someone else did it. Claimed sums were legitimately payable  Held: tests for dishonesty in s1 (1) could not be entirely objective describes a state of mind which could not be established independently of knowledge and belief of D

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Lord Lane CJ (1) “whether according to the ordinary standards of reasonable and honest people what people what was done was dishonest”, (2) “whether the defendant himself must have realised that what he was doing was by those standards dishonest”

Pattni [2001]  D was charged with a number of offences of cheating the revenue; Ds argued test for dishonesty breached Article 7 for reasonable certainty because it did not allow a person to know what conduct was prescribed  Held: D must know the case he had to meet but the offence if properly particularised was readily understood and any legal advice would have told D was dishonest. Article 7 does not require absolute certainty

Criticism of Theft 

Offence is so broad it is practically inchoate in nature; what role for attempted theft

Harm principle  Feinberg (1984) harm: “those states of set-back of interest that are the consequence of wrongful acts or omissions of others” o “In a liberal society criminalisation is justified only if it serves to prevent harm” (Shute 2002) o Simester and von Hirsch (2011) have argued that a moral wrong is necessary to justify criminalisation. o “A wrong against the polity as a whole, not just against the individual victim” (Duff 2007)  Fair labelling concerns  Primary harm of theft is the interference with the property rights of V, wrong of theft is the dishonest interference with property rights o Shute (2002): also meet when act is a member of a class acts that tend to cause harm- harmless wrongs may be criminalised if it reduces their occurrence and wider occurrence would detract other’s prospects  Decision in Gomez – broadening of theft to allow appropriation with the owners’ consent. Contrary to normal meaning of theft (and appropriation) and no harm o “Consent is emphatically not irrelevant to theft”- goes to concept of dishonesty (Bogg and Stanton-Ife 2003)  Dichotomy between consent and dishonesty- can have consent and still be dishonest. Lack of consent central to the very harm of theft  Decision in Hinks – can appropriate indefeasible gifts of property o Bogg and Stanton-Ife (2003) have welcomed the decision as the law being in a better place to protect the vulnerable o Wrong of Hinks was not interference with property rights but exploitation o Shute and Horder (1993): “whereas the thief makes war on social practice from the outside, the deceiver is the traitor within” o Shute (2002): “opens the door to inappropriate prosecutions”

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“When we exploit friends or lovers we are not forcing them to do anything whatsoever” (Goodwin 2003)

Rule of law concerns  Principle of maximum certainty, respect for human dignity and autonomy o Dishonesty criteria central problem o Raz (1979) “conformity to the rule of law is a matter of degree” o Bogg and Stanton-Ife (2003) “evidence of arbitrariness is assumed to exist rather than established by argument” Divergence between property rights and law of property offences  Hinks severs link between property rights and property offences  Gardner (1998) has defended this arguing that civil law focuses on respecting property rights, while the criminal law focuses on penalising unacceptable manners of acquisition of property o Gardner (1998): “relevant rules of the civil and criminal law are not aimed at the same thing, so there is no conflict between validity under the one and liability under the other”  Simester and Sullivan: “to put the cart before the horse” o Beatson and Simester (1999): “risks seriously distorting the law of property”property offences are designed to protect property rights so the civil-law cannot bend to the criminal  Smith (1997): “intolerable conflict between the criminal and the civil law”  Majority in Hinks specifically reject the argument of conflict with civil law  Shute (2002): “no threat to the underlying rationale of property offences”- can protect property rights even if no property right is actually breached Dishonesty Criticism of dishonesty  Increase length and complexity of trials (Griew 1985)- leads to complex direction being given to jury  “Fiction of community norms” (Griew 1985) - ignores variations in views due to age, class, cultural background. “Naïve to suppose” that there is such a thing as the standards of ordinary decent people  Not appropriate in complex theft cases (Griew 1985)- who can jury be expected to understand what is dishonest in this context  Lack of certainty: permits “anarchic verdicts which are not technically perverse” (Elliot 1982)allows juries to import own evaluations; contrary to rule of law  Subjective limb- “allows something like a mistake of law to be a defence” (Smith 1982) o “Robin Hood defence” of thinking your conduct is justified (Griew 1985) o Halpin (1996) leads to the perverse situation whereby the enforcement of property hinges on the views of those who have sought to interfere with them  Halpin (1996): proposed definition for dishonesty: belief that the other would consent if he knew all of the circumstances, person believes the law permits that treatment, person

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believes the person to whom the property belongs is unlikely to be discovered by reasonable steps” No clear definition- definition is circular in relying on concept of honesty itself o Cf. complex definition of recklessness given in G, both mens rea requirements

Defence of dishonesty  Moral values do differ but this does not preclude the existence of a core of moral values to which the majority ascribe o Robin Hood was wrong!

Robbery S8 Theft Act 1968 

S8 (2) offence of ‘assault with intent to rob’ punishable with same sentence

Actus reus 1. 2. 3. 4.

Theft Accompanied by the use or threat of force on any person Which occurs immediately before or at the time of the theft The force was used or threatened in order to commit the offence

Use or threat of force  V need not feel scared or threatened by D (B and R [2007])  Force must be significant but need not be substantial i.e. Dawson [1976] D1 jostled V giving D2 the opportunity to steal his wallet; CA: sufficient force  Degree of force necessary against V’s body or property (P and Others v DPP [2012]- suggests force would have been painful if V has resisted- Ormerod (2013): no force required) o P and Others v DPP [2012] snatching a cigarette from between V’s fingers was not robbery Immediately before or at the time of the event 1. Creates problem with Gomez decision- offence may be made out before any force is used or threatened- see as “a continuing act” (Hale [1978]) o Atakpu and Abrahams [1994] was D “still on the job”

Mens rea MR: D used force for the purpose of enabling theft and same MR as theft- (constructive liability)

Burglary S9 Theft Act 1968 Two ways offence can be committed S9 (1) a (at entry) AR

1. Entry by D into a building or part of a building 2. As a trespasser MR 1. Knowing or being reckless as to whether you are trespasser (Collins [1973]) 2. Intent to commit: theft, grievous bodily harm or unlawful damage S9 (1) b (while in building) AR: 1. Entry by D into a building or part of a building 2. As a trespasser 3. While in the building D commits: theft or attempted theft; inflicts grievous bodily harm or attempts to inflict grievous bodily harm MR: 1. Knowing or being reckless as to whether you are a trespasser (Collins [1973]) Entry  “Effective…” (Collins [1973] per Edmund-Davies LJ and Brown [1995] rejected ‘substantial’ limb)  Example: sufficient to grasp the inner sill of the window (Parkin [1950]); only heads and arms in building before D became stuck (Ryan [1995]) Trespasser  Matter of civil law: whether D had received consent from someone authorised to give consent or lawful entry  Any member of household may give authority, but may be revoked by owner (Robson [1967])  Cannot exceed license to enter (Jones and Smith [1976] D had general license to enter father’s house and used this to steal; CA: license to enter did not extend to permitting entry for unlawful purposes) o Applied vigorously would make anyone who enters to commit a crime a trespasser o Possible conflict with Collins on MR for trespass element Building or part of a building  “A structure of considerable size and intended to be permanent or at least endure for a considerable time” per Byles J in Stevens [1859]  Example: large freezing container which could be moved was a building (B and S [1979])  S9 (4) extends building: inhabited vehicle or vessel including when person inhabiting was not there  ‘Part of a building’ covers w...