Theft Part 1 - criminal PDF

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Jane. Relevant Case law explained. Unit 8, Jane. Relevant Case law explained. Unit 8, Jane. Relevant Case law explained. Unit 8...

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Criminal

Unit 8

L1

Theft 1 THE DEFINITION OF THEFT Section (1) of the Theft Act 1968 ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’ ELEMENTS OF THE OFFENCE Actus Reus Appropriation s.3 Property s.4 Belonging to another s.5

Mens Rea Dishonesty s.2 Intention to permanently deprive s.6

APPROPRIATION ‘Any assumption by a person of the rights of an owner amounts to an appropriation (eg: assuming the rights of the owner), 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.’ WHAT AMOUNTS TO AN APPROPRIATION? Pitham v Hehl [1977] D sold furniture that didn’t belong to him. Held that appropriation took place as soon as the offer to sell was made. Morris [1984] D switched labels on meat in a super market. Wanted to pay less for the meat. Guilty of theft. At the point he switched the labels, he assumed the rights of the owner (as we don’t have the right to do that). Academic Criticism (Leigh): ‘if X kicks my camel, he surely does not appropriate it. The notion of assumption must surely involve a taking unto oneself or a denial of the owner’s right or title to a thing for the benefit of another. Appropriation is too broad.’ Appropriation can take place even with the consent of the owner. Lawrence v MPC [1972] Italian student and taxi driver. Taxi driver driving student somewhere, and the student didn’t understand the currency. He held his wallet out and the taxi driver took 6 times the taxi fare. The taxi driver tried to argue that he consented and so there wasn’t a theft. However, there was still an appropriation and all other elements were satisfied. Convicted of theft. Rader [1992] Individual transferred £10,000 to another with the promise of a return and a profit. Nothing returned. Still convicted of theft. Strengthens Lawrence case. Gomez [1993]

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D persuaded manager to sell goods to his friends in return for worthless cheques. Manager agreed to transfer goods. However, still a theft. Strengthens Lawrence. RECEIPT OF A GIFT CAN AMOUNT TO AN APPROPRIATION R v Mazo [1997] No successful conviction. A maid was ‘given’ various things, including £37,000 in cheques by her employer, who was mentally incapable. Because she was given it, there was no appropriation. Hopkins and Kedrick [1997] - PRECEDENT Woman in a residential home who was mentally incapable to the point of not being able to manage her own affairs. When she died, the residential home said that she consented to give the money to them, and they did up the house. This was distingusished from Mazo, as the money was appropriated! Convicted of theft. Hinks [2000] – LAW TODAY Followed Hopkins and Kedrick. Someone received gifts from someone that lacked mental capacity (£60,000). She had befriended him. There was a theft as she had appropriated the money. 3 against 2 judges. Very hard decision. A lot of academics disagree with this position. What happens if you genuinely didn’t know you taking goods that didn’t belong to you? Wheeler [1991] D unknowingly bought and sold stolen goods. Not convicted of theft. Adams [1993] Adams received some motorcycle parts which he thought were from a ‘write off’ so didn’t know they were stolen. Not appropriated as they were received in good faith. PROPERTY Section 4(1) provides that: “property’ includes money and all other property, real or personal, including things in action and other intangible property” ‘things in action’ You cant steal nothing!!! Chan Man-Sin v Attorny General of Hong Kong [1988] D had tried to draw money from company accounts using fake cheques. This created a debt, and he had technically ‘stolen it’. A debt can be stolen. Kohn [1979] A bank account is a thing in action and can be stolen. AG of Hong Kong v Chan Nai-Keung [1987]

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Appropriation of textile quotas at a gross undervalue (someone offered to sell textile quotas). This is intangible property as you cant touch it. PROPERTY: EXCEPTIONS Oxford v Moss [1979] Student took an exam paper. Intention to photocopy to have the exam questions, and then replace. Was it theft if he was intending to replace it? He couldn’t steal confidential information as it is not property. The paper was never actually stolen, just a photocopy. Low v Blease [1975] You can’t steal electricity. It must be abstracting instead. Sharpe [1857] You cant steal a corpse as it is isn’t property. Grave robbing is covered under something else. R v Kelly [1999] Royal college of surgeons have body parts. Kelly was an artist and wanted to draw them, and he ended up stealing them. Convicted of theft as they had a purpose. The Human Tissue Act 2004 – This act created a new offence of DNA theft. Cant steal:   

Land Things growing wild (mushrooms, cauliflower etc) could be theft if using it for commercial purposes. Wild Creatures (unless they’re in a wildlife park or zoo)

BELONGING TO ANOTHER Section 5(1) provides that: “property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest” Turner (No.2) [1971] Garage was fixing his car. Although he owned the car, he wasn’t in possession or control of it. Car was technically stolen as he took it without paying for the work. Dyke and Munro [2002] Who did the property belong to? Money was put into a charity box in the street, so you wouldn’t be able to pinpoint who put what in. Charity box was stolen, and defendant tried to argue that it was stolen from ‘persons unknown’. Wasn’t charged with theft even though questions should have been raised whether the money now belonged to the charity. R v Rostron and Collinson [2003]

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Diving into a lake on a golf course to steal golf balls. Who owned the balls? It was considered that as soon as those balls got lost they were then the golf courses property… Convicted of theft. What about property that is subject to a trust? Clowes [1994] This case concerned the theft of investors money. Property held under an obligation. Investors had invested, and it was meant to be used for a particular purpose. The funds were misused and it was held that the original investor still owned the money. Hall [1973] Travel agent took customers money, but didn’t book their holidays. There wasn’t sufficient evidence to prove that the money was meant to be used for the holidays. The courts therefore couldn’t find theft. Mainwaring and Madders [1982] Whether or not an obligation arises is a matter of law… but a legal obligation arises only in certain circumstances, and in many cases the circumstances cannot be known until the facts have been established. It is for the jury, not the judge, to establish the facts, if they are in dispute. Klineberg and Marsden [1999] Where a party had contracted on the basis that his money would be protected be a trusteeship, there was a legal obligation under 5(3) of the act to deal with the money of proceeds in a particular way and, accordingly it was deemed ‘property belonging to another’ for the purposes of s.1. What about property obtained by another’s mistake? Moynes v Cooper [1956] D was overpaid by £7. Can he be found guilty of theft? Could be found guilty of theft as youre meant to return it. AG’s Ref [No 1 of 1983] [1985] Didn’t know about the money, didn’t withdraw the money, but they could still be found guilty of theft. Police officer paid for overtime which had not be worked. These two cases weren’t convicted of theft, but they lay out the principles. MENS REA DISHONESTY Section 2(1) provides examples of when conduct is NOT to be considered dishonest. According to s.2(1)(a), conduct is NOT to be considered dishonest:

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“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”. Robinson [1977] D used knife to threaten someone because that person owed him money. Couldn’t argue that he had been dishonest, as he lacked mens rea, as he believed the money was owed to him. Kell [1985] and Wootton [1990] D honestly thought that they had a right in law to take the property. Taking property when not been paid properly. S. 2(1)(b) states: 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 Flynn [1970] The manager of a cinema took £6 as an advance on his salary, in the honest belief that he would have had the consent of the owner. S.2(1)(c) states: if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps Section 2(1) can apply even if the defendant does not have reasonable grounds for his belief Small [1987] Small took a car which he believed was abandoned – the doors were unlocked, the keys were in the ignition, and the battery was flat. His conviction for theft was quashed as there was evidence to substantiate Small’s claim that he believed that the car had been abandoned. S.2(2) states: “A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.” Even if the accused falls outside of s. 2(1), he may still be found to be NOT DISHONEST for the purposes of the Theft Act Feely [1973] The accused took money from his employer, which he intended to repay. The Court of Appeal stated that outside s. 2(1), the question of dishonesty was one for the jury: “Jurors should … apply the current standards of ordinary decent people” Ghosh [1982] 1) Was the act one that an ordinary decent person would consider to be dishonest? If so: 2) Would the accused have realised that what he was doing was, by those standards, dishonest?

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INTENTION TO PERMANENTLY DEPRIVE S.6(1) provides that: A person appropriating property belonging to another is ... to be regarded as having the intention of permanently depriving the other of it if his intention is to 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.

INTENT AND ABSENT-MINDEDNESS R v Clarke [1972] 1 All ER 219 The defendant was charged with theft of items in a supermarket. She was diabetic. She said that she had no intent to steal, and must have put the items in her bag in a moment of absent-mindedness. The trial judge was convinced that the defence of insanity was available to her. BUT…..the Court of Appeal held that the M'Naghten Rules did not apply to those who retain the power of reasoning but who in moments of absent-mindedness fail to use it to the full. Corcoran v Wheat [1977] Treating the thing as your own to dispose of regardless of the owner’s rights. D went into the hotel and ate the food, believed it was paid for but it wasn’t. 1st D didn’t know that the food wasn’t paid for, but the 2nd did. It was held that the 1st D couldn’t have the intention to permanently deprive after it has been eaten as he didn’t know. Not found guilty of theft. Cahill [1993] The court held that ‘to dispose of’ in the wording of s. 6 didn’t simply mean ‘to use’; rather, that it meant: “To deal with definitely: to get rid of; to get done with, finish”. DPP v Lavender [1994] The defendant removed doors from a council house and used them to replace doors on another council house where his girlfriend lived. Still considered to be an intention to permanently deprive. What about borrowing or lending? Lloyd [1985] The defendant was a projectionist at a cinema. He secretly borrowed films and lent them to friends who made illegal copies of them. The films were returned after a few hours undamaged to the cinema in time for the performance. R v Velumyl [1989] The defendant, a company manager, borrowed £1050 from safe at work without authority and contrary to company rules and leant it to a friend. He intended to return the money on the following Monday.

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