Property offences - theft, robbery and fraud PDF

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Detailed summary notes for property offences with relevant quick case notes and statutory provisions...

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CHAPTER 12: PROPERTY OFFENCES

THEFT Theft Act 1968: DEFINITION OF THEFT: S1: a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it S2: dishonestly S3: appropriates S4: property S5: belonging to another S6: intention of permanently depriving -

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Acts for property offences replace old offences of larceny, embezzlement and fraudulent conversion Criminal Law Revision Committee 1959 report on simplifying the law on larceny 1966 report recommended complete replacement of outdated laws which focused on possession of objects, not property rights Attempt to codify the law But theft act 1978 passed due to issues of interpreting and applying 1968 law but 19878 Act now superseded by 2006 Fraud Act

Elements of theft also apply to robbery/ burglary/ fraud Theft max sentence: 10 years Robbery: max life (steal with force/ fear of force) Burglary: max 14 years (steal by trespassing)

ACTUS REUS: Meaning of ‘appropriation’ Appropriation of property belonging to another Prosecution must prove beyond reasonable doubt

Section 3: Appropriation: Assuming the rights of the owner Previously, larceny was the crime of theft of taking away personal property. ‘taking and carrying away’ was necessary. Replaced as a statutory crime by theft in 1968. R v Morris 1983: assuming any one of the owner’s rights is sufficient to amount to appropriation. S3: 

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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 without stealing it, any later assumption of a right to it by keeping or dealing with it as an owner. If he later decides to keep/ steal it/ sell it/ destroy it 3(2): a bona fide purchaser- if someone buys something in good faith later finds out that the goods were stolen will not be guilty of theft

Assumption of any rights offering to sell another’s property: R v Pitham & Hehl 1977: D offered to sell his friends furniture to some people while the friend was in prison. Even though furniture not moved from the house, he assumed the right to sell. Cannot be committed by omission if there is no duty. If he is under a duty to do something, can be committed by omission e.g., by keeping a book loaned to him. Assuming rights of owner with the owner’s permission: Lawrence v Metropolitan Police Commissioner 1972: taxi driver of an Italian student who spoke little English and the journey was 50p but student held out wallet and taxi-driver helped himself to £6. UKHL upheld conviction of theft as the definition did not include the words ‘without owner’s consent.’ It was dishonest also. BUT: R v Morris 1983: for appropriation, act must be inconsistent with rights of the owner. ‘adverse interference or usurpation of the owner’s rights.’ D switched price tags to but item at a cheaper price and was arrested before checkout. UKHL: upheld the conviction as he usurped the owner’s rights and was an appropriation as D was not authorised to swap labels. Don’t have to assume ALL the rights of an owner. Removing goods from shelves was not the appropriation, but changing labels was. Rights of the owner which he assumed:  

Right to determine sale price of articles Right to place price tags on items

Eddy v Niman 1981: shopper place items in basket but intention was to steal. No appropriation because shoppers are authorised to put items in baskets. Must be necessary to do something more than exercise the rights of the shopper. Similar decisions to Morris reached in Meech 1974: Ds guilty of theft also in Skipp 1975 and Fritschy 1985 Fritschy 1985: F was a dealer in gold coins and took possession of krugerrands to resell ins Switzerland. But did not deliver them to H’s bank in Switzerland. Appropriation had not taken place in England as D took possession with H’s consent in England. Taking possession did NOT amount to appropriation. ISSUE form Fritschy: acts designed to usurp owner’s right but owner consents

McHugh 1977: motorist filed up petrol, with intent to drive off without paying. The act authorised was the act D used to deprive owner of his property. So CAN appropriate property even if owner consents Dobson v General Accident 1989: EWCA: rogue bought Rolex watch from D using a stolen cheque. D claimed insurance for theft and could only do so if he could show that the rogue stole it and there was appropriation although D had consented to rogue taking it. Conflict of whether appropriation can occur despite consent confirmed in Gomez: Morris and Lawrence conflict resolved in: R v Gomez 1993: D was assistant manager who persuaded the manager to accept stolen cheques from his accomplice. EWCA allowed Ds appeal. UKHL: although the act was authorised, it was an appropriation. It doesn’t have to interfere with the owner’s rights. Consent obtained by fraud so still a dishonest appropriation. Disapproved Morris and overruled Fritschy. Morris overruled. LAW: Appropriation can take place even if the assumption of the owner’s rights takes place with the owner’s consent. Issue: Merely preparatory act in picking up incorrectly priced items can now be appropriation. Due to dishonest intention. Also, Gomez extends the impact of Morris so all cases of obtaining property by deception also counts as theft. Issue of fair labelling in crime. Codifying the law did not increase justice or certainty THEFT OR DECEPTION: In Gomez, deception used. R v Mazo 1996: distinction: where D is considered an outright owner, no theft or only receives a voidable title, there can be appropriation. Gifts: (consent of owner is irrelevant so accepting gift can mean appropriation) No fraud but D induces owner to transfer property. R v Hinks 2000: D befriended a53 year old man of limited intelligence who had inheritance and encouraged him to make gifts of money to her account. He deposited £60,000 in her account. UKHL: Gomez case means that appropriation means any assumption of the rights of the owner. Consent is irrelevant. Although under civil law the gift was valid, she was guilty of theft as she obtained money dishonesty. No evidence of duress or deception but proof of dishonesty found. (appropriation= assuming rights of owner e.g., acquiring a title to goods as in this case) R v Mazo no longer applies BUT: civil law would recognise this gift. Could lead to unjust convictions This protects the vulnerable in society Lord Hobhouse’s dissent in Hinks: Hinks: ISSUE: trial judge only directed jury to consider whether Mrs Hinks was dishonest (by their own standards). S2(1)(b) states that if D believed the giver would consent, then there is consent. Lord Hutton dissented in allowing the appeal SUMMARY OF APPROPRIATION:     

Law is based on Hinks and Gomez Any right of owner can be assumed, doesn’t have to be all An act can be an appropriation if authorised or consented to (even if D did not use this particular act to deprive owner) Acquiring title to property can be appropriation BUT the appropriation must be dishonest

Professor Sir John Smith: (Wilson – Criminal Law, pg 421) Anyone doing anything whatever to property belonging to another, with or without the authority or consent of the owner, appropriates it; and if he does so dishonestly and with intent, by that act or any subsequent act, permanently to deprive, he commits theft.

A bona fide purchaser 3(2): a bona fide purchaser- if someone buys something in good faith later finds out that the goods were stolen will not be guilty of theft    

Only if property transferred for value and he acts in good faith If he decides to keep or sell it: no appropriation Best to keep it. If he sells it: may be guilty of handling stolen goods If it is a gift, should return it

Duration of appropriation: Atakpu 1993: Ds committed theft of motor cars outside the jurisdiction and bought them to England intending to sell them. Theft could not occur again within England Theft occurs when transaction complete/ when leaving the house or shop BUT Gomez suggests that appropriation happens instantly.

ACTUS REUS: Meaning of ‘property’ Section 4: Property: Theft Act 1968: S4: PROPERTY: includes money and all other property, real or personal, including things in action or intangible property. S. 4(2): restricts scope of stealable land to real estate. (e.g.: if neighbour takes over some of your garden, it will be remedied in civil trespass, not criminal theft)   

Real property: land/ interests in land such as tenancy, buildings Personal property: objects that can be bought and sold Things in action: debit/ credit cards, things of value that can be liquidated and sold like a debt, shares in a company, copyright. Value can be secured by means of a legal action

LAND: S4(2)      

S4(2): (a): cannot steal land except: when he is a trustee, personal representative, power of attorney… (also includes an executor of a will who sells land for own benefit instead if transferring to inheritors) (b): stealing something from the land which was part of the land by severing e.g., steals turf/ trees/ shrubs/ fountains/ part of the house e.g., staircase (c): appropriates any part of it let when he is a tenant e.g., tenants who steal fixtures like fountains or stone terraces S4(3): picking mushrooms/ flowers etc on any land growing wild: does NOT steal unless for commercial purposes S4(4): wild creatures ARE property, but cannot steal a wild animal that is not ordinarily tamed/ kept in captivity/ carcass

S4: Money/ cheques/ bank accounts:  

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R v Kohn 1979: C’s right to withdraw on the account is stolen. Money is considered to be stolen from the bank R v Preddy 1996: UKHL: 3 appeals joined together. Ds involved in mortgage frauds giving false info. Mortgage advances paid by lenders to D by cheque etc. debiting a bank account and crediting another’s account was not obtaining property by deception. Initial bank balance in lender’s account was a ‘thing in action’ and was not passed on, but extinguished a a new thing in action created in borrower’s account. Property could not belong to another before belonging to D if it had never existed before D owned it. [FRAUD CASE ALSO] Chan Man-Sin v AG for Hong Kong 1988: theft of proceeds of bank account occurs as soon as D presents the forged/ unauthorised cheque (appropriation found).

Intangible property:   

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Not just any interest like making a will Marketability AG for Hong Kong v Chan Nai-Keung: director of company sold a valuable right owned by his company to export fabrics out of Hong Kong without authority to sell it. The quota was capable of being bought and sold so was ‘intangible property’ The rights which something represents can be bought and sold

Bodies/ body parts: Sharpe 1857: cannot steal body parts Dead bodies which have become some form of artefact/ specialised process e.g., mummified can be property: R v Kelly and Lindsay 1999: body parts can count as property as Lindsay a lab assistant stole body parts from the Royal College of Surgeons and D made casts of the parts for exhibition. EWCA: Usually body parts are not property but for education and exhibition purposes they are (acquired different attributes). Body products are property capable of being stolen: R v Welsh (1974): guilty of theft for removing his own urine sample from Yearworth v North Bristol NHS trust 2009: semen. EWCA: a donor retains a property interest in sperm

Information cannot be stolen:    

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Oxford v Moss 1978: student who stole exam paper not guilty of theft. He borrowed it with intent to return it. He could’ve been guilty for theft of the paper if all other elements of offence present Trade secrets and confidential information cannot make one guilty of theft (other laws to cover this) Unfair labelling if info could make one liable for theft & difficult to keep in check New Zealand case R v Dixon 2015: nightclub bouncer downloaded video files onto USB attempted to sell to British press SC: the files were property. File’s materiality and capable of being sold pg 426 wilson Gas is property

Land:   

Cannot steal land Unless as mentioned in s4(2) S4(3): fauna and flora

ACTUS REUS: Meaning of ‘belonging to another’ Section 5: Belonging to another   

Wide scope of s5(1) S5(1): any person having possession or control of it, or having in it any proprietary right or interest Can steal your own property, if it also belongs to another

Can steal your own property, if it also belongs to another An owner can steal something from a part-owner. E.g., part-owner of racehorse taking it for his own exclusive use/ business partner selling jointly owned property etc. ‘any person having possession or control of it’ Hendricks 2003: D dishonestly withdraws money from the bank due to fraud/ with a stolen cheque is guilty. Money belongs to the bank Meredith 1973: D took his own car from police park without paying fine where it had been impounded. Jury directed to acquit him because they had the right to enforce a charge for the car but no right to retain the car against him. Car in garage for repair: It belongs to the owner AND the garage: R v Turner 1971: took car to garage to be repaired and after repairs done, car was on street so he took it without paying for repairs. Liable for stealing as garage had possession of the car at that time. Marshall 1998: tickets belonged to London Underground as they had proprietary interest Abandoned property: Cannot usually be stolen unless it may belong to someone else. Lost property can be stolen but abandoned property is not usually stolen Williams v Philips 1957: refuse workers helping themselves to refuse would be guilty of theft as property belongs to someone else. Putting property in a bin shows that the owner wished for the refuse collectors to take it (unless put in skip) R (Rickett) v Basildon Magistrates Court 2010: Rickett took charity bags from outside charity shop and charity bins Hibbert v McKiernan 1948: D trespassed land owned by golf club and was charged with theft for stealing abandoned golf balls. KB: balls no longer belonged to previous owners (golf players) but did belong to the club. Club had control of balls for purpose of s.5. (but if he was not a trespasser but a golf player on the course, he would not be guilty). The occupier has rights as against the appropriator R v Rostron 2003: D collected golf balls from golf course at night with course owner’s permission EWCA: question of fact for jury whether golf balls were lost or abandoned. Conviction upheld Woodman 1974: a company sold off scrap metal and didn’t know they had left some in the yard. D trespassed and took it. Convicted Hancock 1990: theft of treasure trove. Jury must consider whether it was deposited there as the property of someone else intended for it and hence property of the Crown or not.

Property must belong to another at time of appropriation: Chodorek v Poland 2017: using debit card at ATM and he has no overdraft facility and no funds to cover amount: theft

Corcorant v Wheat 1977: D not liable for theft when he eat a meal and afterwards decided not to pay. Mens rea and actus reus did not coincide. Property no longer belonged to another person Turner 1971: owner of car removed car from road outside garage after it was repaired. It is enough that another is in possession, doesn’t have to have an enforceable right. But courts will in future hesitate before applying Turner

S5(3) Passing ownership for a particular purpose S5(3) of Theft Act 1968: …under an obligation Fundholders who misappropriate money entrusted to them for a particular purpose R v Dyke and Munro 2001: charity collections Property must be transferred in legally enforceable way R v Hall 1972: client paid travel agent a deposit for holiday. Money paid into company’s general account… not stolen as money belonged to them. No legal obligation to spend it in a particular way Davidge v Bunnett 1984: legal obligation to pay gas bill with the cheques or proceeds of the cheques. Flatmates gave her money but she spent it on Xmas shopping. BUT DPP v Huskinson 1988: NOT theft to use housing benefit for purposes other than paying rent. No duty for recipient to use it for specified purposes It will depend on the facts- jury will have to answer whether transferee was under obligation to deal with it in a specific way S5(3) Employees making illegitimate profit: Lister v Stubbs 1890: under civil law, such profit was treated as belonging to the employee Powell v McRae 1977: D operated turnstile at Wembley stadium and charged £2 for anyone without ticket Change in law: AG for Hong Kong v Reid 1993: if a person makes illegal profit, it belongs to employer Wain 1995: charity collectors

Paid under Mistake: Subsection 5(4): Mistake so fundamental as to render the transaction void: property still belongs to the transferor according to s5(1) Middleton 1873: A believes B to be C and in Ashwell 1885: settles a bill for a £20 with a £50 note S5(4): intention not to make restoration shall be regarded as Mistaken belief that money is due Moynes v Cooper 1956: payee acquitted. D had already received wages but clerk didn’t know so paid him again. D realised this and kept the excess. Acquitted of larceny (no taking and carrying away) NOW he would be guilty under s5(4) Shadrokh-Cigari 1988: where a transferor transfers money under a mistake of fact still has an equitable interest in the money transferred. Can mostly rely on s5(1) anyways S5(4) only applies where payee has legal obligation to make restoration & this obligation arises when money paid from mistake of fact Dip Kaur v CC for Hampshire 1981: D in shoe shop . Gomez has dealt with Kaur issues. Kaur would be decided differently today

MENS REA of theft: meaning of ‘dishonestly’ Section 2: Dishonesty: No definition of dishonesty but s.2(1): examples of what is not dishonest: where one of these 3 states of mind found, the jury must acquit: Appropriates property in belief that in law he has the right to deprive the other on behalf of himself or of a third person (e.g., believes an umbrella in the stand is his and takes it) b) Belief he would have the other’s consent (e.g., flatmates borrow each other’ milk) c) In belief that person to whom property belongs cannot be discovered by taking reasonable steps (e.g., A finds property & decides to keep it. Depends on circumstances for jury to consider e.g., value of item etc. if D later finds out identity of owner: guilty by S3)

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(consent is irrelevant- belief that consent would be given if V knew of the appropriation and circumstances for it) Holden 1991: unreasonable belief that owner will consent can be evidence of dishonest belief Jury will decide whether D has this belief. Not limited to these scenarios. Feely 1973: immorality. D was cahsier, took some money from till, intending to repay it. EWCA: Lawton LJ: whether a person was dishonest is question of fact for jury to decide, not Q of law Robinson 1977: s2(1)(a): belief in law that he had right to deprive as V owed him money. D took sum as V owes them that sum Subsequent decision to keep it: R v Thruborn 1849 Hinks: she was dishonest in inducing old man to make gift MEANING OF DISHONESTY: Development of the law: Gilks: EWCA: whether accused thought that what he was doing was dishonest Feely 1973: dishonesty became a jury question. D borrowed money from employer’s till leaving an IOU. Trial judge: told jury to convict if D knew he would not have owner’s consent. EWCA: quashed conviction as jury can understand meaning of dishonest: whether conduct of accused fell below standards of honesty of ordinary people as represented by themselves TEST FOR DISHONESTY: Ghosh 1982: consultant at hospital claimed fees for operation he had not carried out. EWCA: dismissed the appeal. Lord Lane CJ: ordinary standards of reasonable and honest people that what was done was dishonest… If it was dishonest, jury mu...