Property offences william wilson lecture notes PDF

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Property Offences - William Wilson Lecture Notes Criminal Law (Level 5) (Queen Mary)

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Property Offences  Theft o A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. S T Theft Act T968  ACTUS REUS o appropriation of property belonging to another  A. property: o s.4 TA T968 o “Property” includes money and all other property, real or personal, including things in action and other intangible property.’ o Land is real, Personal is things that can be bought and sold and ownership can be transfers o Things in action- something which doesn’t exist in the real world that you can touch but it still exists, e.g. bank owes you the money in your account o Land and things forming part of land cannot be stolen, although there are exceptions. o T. S4(2)(b) Land and things forming part of land can be stolen by trustees or beneficiaries acting in breach of their fiduckary duty o 2. Things forming part of the land can be stolen by trespasser who appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed o 4(3) Wild flora and fauna cannot be stolen although there are exceptions. o Wild flora, including mushrooms, can be stolen if picked for a commercial purpose o 4(4) Wild animals, including their car case cannot be stolen unless in the possession of another or in the course of being reduced into another’s possession. o Body parts o Sharpe (1857) o Kelly (1999) o Welsh (1974) o Parts of a corpse are capable of being property within section 4 of the Theft Act, if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes. o Information is not intangible property o Oxford v Moss (1978) theft of information in exam paper is not property for the purpose of the act o Digital files? Dixon v The Queen (20T1) Supreme Court of New Zealand- rugby player, dancing and flirting with a woman, covered by cctv, downloaded information to sell to British press, had he stolen property? According to Oxford, no. SCNZ said yes, he had stolen digital files which are real things even though they are not tangible. o The actus reus of theft, like other result crimes, cannot be committed by omission in the absence of a duty (to render up the property). Keeping a book on bedside table or placing it on his bookshelf is an example of B exercising possession rather than an example of him assuming (taking on) possession or any other right of ownership. Reading a book would not be appropriation. B must do something to assume A’s rights, for example, selling it, or writing his name in it, or erasing A’s name, or disguising it in some way, or denying that A is the rightful owner, or omitting to do something which he is under a duty to do (keeping it after the loan period has ended).

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o An omission may also be where an account has been credited twice or you have been paid by an employer twice, theft requires more than a decision not to repay the excess since an appropriation requires some act directed at the relevant property. o Despite these objections it is widely thought that a simple decision to keep the property amounts to an appropriation whether or not D does something inconsistent with the owners’ rights. The key words in section 3 are ‘keeping OR dealing with it as owner’ not ‘keeping AND dealing with’. By keeping the property under these circumstances, D is saying I am keeping this book, I don’t care about the owners’ rights, he is assuming for himself the owner’s right to keep it and deal with it as he wills.  Identifying the Property o Cheques o Stolen a thing in action o Chan Man Sin v A-G for Kong Kong (1988) o ATM withdrawals Chodorek v Poland [20T7] ACD 244 (82) QBD. No money in account but ATM still gives money then you are stealing money. o Leaving without paying. D has stolen the food. Appropriated steak and chips etc not the money it was worth.  B. Appropriation: "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." (s.3 (T)) o T. Coming by property innocently and then assuming rights to it. E.g. borrowing something from someone and then later deciding to keep it. Not guilty of theft until you assume rights of ownership over it. E.g. finding money, decided to hand it in and then change your mind and keep it, decision is appropriating the property, assuming rights of ownership over the property. May not be guilty of theft- still have to prove all other elements. o Law of theft doesn’t require any taking. Actus reus of theft is much broader than the case of taking property, refers to any case where the person assumes rights of ownership of the property. o 2. How does a person assume rights of ownership? o No need for a taking. Pitham and Hehl (1976) 65 CrApp R 45. Defendant offered for sale a refrigerator which wasn’t his to sell, it was a friends of his who was in prison, third party called the police, charged with theft of the refrigerator, he argued he stole nothing it’s still in his friend’s house, CA rules its quite clear on basis of section 3 (T) there is no need for a taking, only need to show he assumed rights of ownership over property, namely right to sell. Moment of offering it for sale he was guilty of theft. o What are the rights of ownership? o Possess, sell, use, destroy, pawn, lend, modify, consume, give, hire, alienate o Morris (1984) defendant went into a supermarket and went up to a shelf, found tin of baked beans and removed the price tag, replacing it with a price tag for a lesser amount, called the police, defendant charged with theft of the tin of baked beans, she said she hadn’t even reached the counter yet to pay, everyone has the right to take tins off the shelf, rejected, guilty as had dishonestly appropriated property from another with intention of permanently depriving it, HOL said she didn’t appropriate it simply by taking it off the shelf as that is authorised, by changing the price tag she appropriated it as she was assuming one of the rights of the owner. Essence of appropriation, act adverse to the interests of the owner.

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o In what ways can rights be assumed? o Chan Man Sin v A-G for Kong Kong (1988) o Morris was a problem as another HOL case said appropriation can occur even where the owner fully consents to what you are doing. o The relevance of the Owner's Consent or Authority? Lawrence v MPC M1972] AC 626 HL; R v Morris (1984) AC 320; taxi driver took an Italian on a long route to get to his destination, took £1 from Italians wallet, more than the fare was worth, charged with theft, he said he hadn’t appropriated the property as he had consented to the handing over, rights of ownership assumed as soon as he took it from the wallet, can appropriate property even if owner consents. o Who was right and who was wrong? o Issue decided in Gomez. An appropriation can occur even where the victim consents or authorises the taking, R v Gomez [T993] AC 442 defendant bought a refrigerator and one of his friends was working in shop, he was to bring in a bad check, he was to buy it with the bad cheque, the mate was going to help this along, charged with theft of refrigerator, cannot be as owner consented, HOL following Lawrence, owners consent is irrelevant to whether an appropriation of property has occurred, by becoming owner he had assuming rights of ownership over it. Disapproved Morris. o Gomez can be explained on the ground that the shop retained rights over the refrigerator due to the transferees fraud. o In Gomez D obtained consent by fraud. This means that property rights were retained by the owner which could be assumed. o By becoming owner, assumes rights of ownership over it. o You can appropriate property during a transaction, doesn’t mean he will meet other theft requirements. o But what if no rights are retained by the transferor? Does the recipient of an outright gift appropriate that gift? o Yes, assuming right of ownership over it by accepting. o Hinks (2000) HL says yes but D is only guilty of theft if she is dishonest. Most people think is wrongly decided. Hinks befriended a man, he wasn’t a very intelligent man, very gullible but had mental capacity to make transactions, Hinks encouraged him to give her money, he gave her 80 grand over time, she helped him transfer money into her account, his relatives told police, charged with theft, had she appropriated this property? She said no this is a gift not appropriated, rejected, HOL said Hinks had appropriated property even though transfer was made with his full consent (no duress or undue influence). HOL said she was guilty of theft provided she was acting dishonestly, which they concluded that she was. Were her actions in fact dishonest? o This creates a legal problem. The civil law recognises the gift but the criminal law does not. o Does a person to whom property is transferred under a contract of sale appropriate that property? Yes, committing actus reus of theft whenever dealing with a transaction, buying something, accepting a gift, even though no wrongdoing. Crime in which actus reus doesn’t involve any wrongdoing, all you need to show is a appropriation of property belonging to another. Against criminal law theory? Must be wrongdoing and fault. Criminal law is out of sync with civil law. Civil law Hinks transactions perfectly valid, as if he sued for recovery of money the court would have said no, you gave it to her, perfectly valid. Criminal law says it is not a valid transaction.

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o IS that person guilty of theft? NO, section 2 a and b, Hinks not guilty of theft. She thought he consented because he did consent and believed she had legal right to it because people can give gifts. o s. 3 [2] provides a defence to a bona fide purchaser of goods who decides to keep them when he later discovers them to be stolen.  Property belonging to another o The property must belong to another o There can be no theft if at the time of dishonestly appropriating the property the property does not belong to another person. o Corcoran v Whent (T977). D consumed food and drink at a hotel with a companion intending that it was going to be paid for, left being told by companion that he hadn’t paid, he left and didn’t go back to pay, charged with theft of the food and drink and convicted. On appeal convicition quashed on basis of an absence of actus reus and mens rea, at the time of appropriation of meal no mens rea, when he formed mens rea there was no actus reus. Property appropriated must belong to someone else at time of actus reus and mens rea. Civil matter not criminal matter. o Who does property belong to? o S. 1(T) 'any person having possession or control of it, or having any proprietary right or interest': o Property may belong to more than one owner o E.g. partners, trustees, bailees, repairers, pawnbrokers, mortgagors o Two major problem cases: o T. Where the property seems to belong to no-one. o Even lost property usually belongs to someone. Hibbert v Mckiernan (T948) defendant went onto the golf course and collected golf balls, arrested and charged with theft, balls did not belong to anyone as had been abandoned, CA held that although they had been abandoned they still belonged to someone, in this case the golf club as had possession of golf balls and had right to exclude trespassers. Member of golf club wouldn’t be theft as no right to exclude them from golf course. o Williams v Phillips (T917) Defendant was caught searching through a dustbin outside someone’s house, took property from the bin, charged with theft, argued that he wasn’t guilty as the articles had been abandoned by the owner so didn’t have an owner, rejected ‘This property was not abandoned. If I put refuse in my dustbin… Therefore, there is no ground for saying that this is abandoned property’ Lord Goddard CJ o Ricketts o Woodman [T974]Q.B. o 2. Where the property appropriated seems to belong to the appropriator. o R v Turner (No 2) [T97T] o R v Meredith defendant had his car impounded by the police, he went and drove it away, charged with theft of car, appeal, police had no right to keep car against him, only right was to require him to pay money because of fine but not keep to ensure he paid, entitled to drive his car away. Inconsistent case law. Better decision? o Shadrokh-Cigari (T988) o s. 1 (3) A special case: 'Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other.’

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o R v Wain [T991] 2 Cr App Rep 660 – money collected for charity. If you give money away you lose possession and control of it and it doesn’t belong to you anymore. o R v Hall (T973) – travel agent deposit o DPP v Huskisson (T988) – housing benefit o (Property) belonging to another (con) o Davidge v Burnett (T984) – gas bill. Flat mates gave their money by cheque over to one of their flatmates to pay the gas bill. Instead, D paid for Christmas shopping with the money. Who did the property belong to? Flatmates had given it over, all his money, in his bank account. Was he guilty of theft? S. 1(3) ensured the money still belonged to flat mates as he was under a duty to pay gas bill. o s. 1(3) only applies where D is under an obligation to the other to retain and deal with that property or its proceeds in a particular way o Who decides? o It is for the jury to decide whether the obligation to deal with the property in a particular way exists. It will decide this question having regard to the express or implied intentions of the parties. Hall M1973] Q.B. 126 o S.1(4) “Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.” o Refers to cases such as Moynes v Cooper, o Shadrokh-Cigari [T988]. The property also belongs to the original owner under s. 1(T) so s.1(4) is now redundant.  Mens Rea o Intention Permanently to Deprive the Owner of his Property - this is a mens rea element not an actus reus element. Don’t have to prove they actually deprived them off property, just at the time of appropriation it was their intention to permanently deprive them of their property. Theft cannot be committed by borrowing- however dishonest that borrowing is. o A borrowing will not be theft, however dishonest and however inconvenient, since a person who borrows property lacks the intention to permanently deprive the owner of it. o What if D borrows property intending to return different property but which is qualitatively identical? The case of fungibles. o Velumyl (T989) intention requirement satisfied. Defendant took money from a till intending to return it, they did return it, put money back in till. Charged with theft of money, argued intended to put it back and did so. Property appropriated different from property put back so did have intention to permanently deprive them of the property. o S6 provides 2 special cases where a person is treated as having an intention to permanently deprive the owner of the property, despite appearances to the contrary. o Two situations where without intention, it is treated as if that intention is present. o By section 6(T) 'A person is to be treated as having an intention to permanently deprive the owner of his property if his intention is to 'treat the thing as his own to dispose of regardless of the others 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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o This applies when: o A) D’s intention is to ransom the property back to the owner- section 6 treats as intention permanently to deprive o B) intends the owner to receive back the property only when its value is exhausted o R v Lloyd, M1985] QB 829 Court of Appeal, defendant took from a cinema, with cinema projectionist’s consent a film for the purpose of copying it to make pirate copies, took it back, charged with theft of the film, argued he didn’t have intention to permanently deprive, treated it as own to dispose of regardless of owners right, rejected. Section 6 not applicable and not found guilty of theft. o R v Marshall section 6 did apply, treat ticket as own to dispose of regardless of tube stations rights. o Coombes & Eren M1998] 2 Cr App R 282 Court of Appeal o R v Lavender M1994] Crim LR 297 o Section 6(2) o One specific example covered by section 6(T) is referred to in s.6 (2). Where a person 'having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this... amounts to treating the property as his own to dispose of regardless of the other's rights.'  Dishonesty o This is not defined in the Act. However, section 2 states that certain beliefs are inconsistent with having a dishonest state of mind. o (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or o (b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or o (c) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. o Robinson- asked for money she owed him, when he got in a fight broke out between him and woman’s husband, £1 fell from husbands pocket he picked it up and left, wasn’t dishonest as believed entitled to it, quashed believed he had a right to it and so wasn’t dishonest. o Section 2 is not exhaustive. Honestly is wider than section 2, may be honest if take property without any of the 3 beliefs. A person may still be acting honestly although he has none of the beliefs in section 2. o Section 2 apply? Yes, then not dishonest. Hinks section did apply and HOL said it didn’t. o Gilks- went into betting office, put money on horse, horse lost, at the end of his betting, he went up to cash desk to claim winnings, handed over money to him on basis of his horse winning and other horse with a similar name who did win, made a mistake, discovered later on, charged with theft of money he made on losing horse, all elements present, issue of whether he was dishonest, section 2 didn’t apply, accepted argument that he was honest man and betting office different environment, subjective test of dishonestly. o Feely [T973] TQB 130 CA; overruled Gilks, betting office case, betting office had given instructions to employees never to borrow money from the till, Feely took £T0 from till, put an IOU in till, on Monday, put £T0 back police were there and arrested him, charged with theft, was he acting dishonestly? Put an IOU, section 2 didn’t apply, knew he didn’t have owners consent, court has to have a belief he is dishonest,

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