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Theft 1(1) ofthe Theft Act 1968 Basic definition

"A person is guilty of theft if he l. 2. 3. +. 5.

dishonestlY aPProPriates ProDertv belonging to anather with the intention of permanentlY deprivina the other of it.

thief and steal shall be construed accordingly" (2) It is immaterial whether the appropriationis made with a view to gain, or is made for the thief's own benefit. Maximum7 years' imprisonment,reducedfrom 10. Mens rea of theft Dishonestly

In the Theft Acts it is often said.that "dishonesty does all the work". It is the first element of two elements of mens rea in theft - no dishonestY- no theft.

Intention to permanently deprive Actus reus of theft Five elements

Is the secondelement of mensrea in stealing.

The actus reus of theft is the remaining parts of the Act when the mens rea has been removed. Lawrence ll9711said that theft consistsof four elements: i. A dishonest ii. Appropriation

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iii. Of property belongingto another iv. With the intention of permanentlydepriving the owner of it' It is best viewed as five elements, because 'property' has its own casesto consider, indeed the Act itself divides it into 5 parts. Section What is not dishonest is .;

Sec 2(1) "A person'sappropriation of property belonging to another is not to be regarded as dishonest (a) if he appropriatesthe property in the belief that he has in law the right to deprive the other of it, on behalfof himself or of a third person; or (b) if he appropriatesthe property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstancesof it; or (c) (except where the property came to him as trustee or Personal representative) if he appropriatesthe proPefi in the belief that the person to whom the property belongs cannot be discovered by taking reasonablesteps. (2) A person'sappropriation of property belongingto another may be dishonest notwithstandingthat he is willing to pay for the property." So, the Act does not define "dishonest" but says what would not be dishonest. o Where someone appropriates property believinghe has the right in law to deprivethe other of it. o Where the appropriationis done in the belief that they would have the others consent if they knew about the appropriation. r If there is genuine belief that the owner of the property cannot be discoveredby taking reasonablesteps. This never applies to trustees or personal representatives. The assessmentof what is dishonest involves both

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judge and jury. More about dishonestv The Theft Act does not provide us with a definition Societies of what amounts to dishonesty becausesociety's changing view view tends to change. Ghosh (1982)

Involved Section 15 of the 1968 Act - obtaining property by deception. This requiresevidenceof dishonesty.The main issue of the case was to establish that the evaluation of dishonesty could be on both objective and subjective criteria. of someone's Althoughthe 'objective'assessment dishonestyis practical. The court must take note of what the defendantalso thought. (Subjectively). This is referred to as the two-fold test. The main criticismof which is that it does not eradicate the potential for inconsistenry between juries. There is alwaysa problemto be had where juries are requiredto apply the "current standardsof ordinarydecentpeople".

Feely (7973)

In addition, the jury must ascertain that the accused realisedthat what'he was doing was dishonest. The main problem being if those people'sstandards did not subscribeto the standards of ordinary people.For example,RobinHood. A visitor from a country where public transport is free, who did not pay for his ride would not be dlshonest- the first tlme.

Liqhtfoot (1993\

"There is a clear distinction between a person's knowledgeof the law and his appreciationthat he was doing anything dishonest". Section2 Subsection(a) belief in the legal right to deprive a person of property is not regarded as dishonesty; Small (1987\

Lloyd (L985\

Removedfilms from the cinema where he worked which were then copiedand the originalsreturned to the cinema. Here it was argued that no outright 'taking' had occurred.

Other cases relevant to Dishonesty

Gilks Boaaeln v Williams lL97B1 GreensteinlL976l

Section 3 Aoorooriation

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Theft

Is the actus neus of theft

Meansthe assumptionof the rights - or just one right - of an owner, whether or not the thief takes possessionor uses the property.

More about appropriation Property must be appropriated or sometimes simply 'taken'. For example, a lecturer may for all reasonable purposesown the dry-wipe marker he uses in class. He may decide when to use it, when to throw it away, but if he were to sell it that would be wrongful appropriationand a theft. Definition of appropriation is any assumption by a persc,nof the rights - or just one right - of an 'owner'.The rights of an owner are sometimes referred to as a'bundle of rights'.

Gomez(1993\ Consent or no consent is irrelevant

The ordinary natural meaningof the word appropriation, is to take for oneself or to treat as ones own. Is also the authority for the principle that consent or authorisation by a 'rogue' is irrelevant and theft would be committed. In a 'self service' supermarket removal of goods from shelves is an authorised act (it is he very nature of shopping).It becomesunauthorised dependanton the defendant'sintentions. Gomezillustratesthat even where consentappears to have been given, the courts look at the dishonesty of the act.

Morris (1983\

Lawrencev Commissioner of Police(I97L) Pitham & Hehl

fle77)

Atakpu & another

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Concernedthe substituting of lower priced price labels on more expensive goods. Even though the lower price was paid at the checkout, it still amounted to theft. Appropriation: Adverse interference with those riohts of ownershio. An Italian student offering his wallet to a taxi driver only consentsto the correct money being taken for the taxi fare. A man knowing his friend to be in prison took others to his friend's house and sold them furniture it was decidedthat a theft had taken place. There had been assumption of the rights of ownership. DD stole vehicles abroad and were stoppedat Dover. The theft was complete abroad and the thieves could not steal aqain in Enqland rclUzOOBl:llPM

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trust or, in the cttse of a charitable trust. A trustee who appropriatestrust property with the intention of defeating the trust is to be regarded as intending to deprive the person who has the right to enforce the trust of property (Theft Act 1968, s'

s(2)).

See 5f3)

Fronertv

Possession.

'eceived under an obliEation Sec 5(3) "Where a person receives property from or on account of another, and is under an obligationto the other to retain and deal with that property or its proceedsin a particular way, the propefi or proceedsshall be regarded (as against him) as belongingto the other." A person who is in possessionof someone'sproperty may appropriate that property by doing something inconsistentwith the authorisation given by the owner.

Examples

Money collect for a charitable purpose (a whip-round) must be used for that purpose. Money given to make a purchase (as distinct from a deposit) must be used for that purpose.

Money in the bank

A bank account belongsto the customer Kohn (1979).

Writing of a cheque

When a thing in action is createdby the writing of a cheque,the only personto whom it can belong is the payee.Thus he cannot steal a thing in action when a cheque is written in his favour Davies (1s88).

Sec 5(4) Property received by mistake Sec 5(4) "Where a person gets property Overpayments or payments by another'smistake,and is under an obligation to make restoration (in whole received by or in part) of the propefi or its mistake must be proceedsor of the value thereof, then to repaid. the extent of that obligationthe property or proceedsshall be regarded (as against him) as belongingto the person entitled to restoration, and an intention not to make restoration shall be regarded accordinglyas an intention to deprive that person of the property or proceeds."

Property belonging to another:

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When money is paid over on the basis of a mistake, the payer of the money retains an equitable proprietary interest ChaseManhattan Bank NA v

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ProfessorGlanvilleWilliams in "Appropriation:a single or continuousact?" [1978] Crim LR 69: "A man stealsa watch, and two weeks later sellsit. In common senseand ordinary language he is not guilty of a second theft when he sellsit. Otherwise it would be possible, in theory, to convid a thief of theft of a silver tea pot every time he uses ft to make the tea." Afthough Gomezdecidesdifferently and impliesthat there can be no such thing as continuing appropriation;the courts have decidedto leave this issueto the "commonsense"of the jury. Even innocent appropriation can become thefr if there is any later an assumption of the right of owner.

Sec 3(1) "Any assumption by a person of the rights of an owner amountsto 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 dealingwith it as owner."

If the prope*y is bought normally he obtains ownerchip, even if it is stolen

Sec 3(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 believedhimself to be acquiring shall, by reason of any defect in the transferor's title, amount to theft of the property."

Other cases relevant to appropriation.

Monaqhan{19791 Eddv v Niman lt9BL1 Anderton v Wish [19801 Gallasso IL9931 Hinks

Section 4 Property

What is propefi

Includes Money, personalproperty, rights of action (e.9. copyrightand debts). It is theft for a person (not in possessionof land, unless a tenant) to sever or ctruseto be severed things forming part of the land. It's OK to pick mushrooms,flowers, fruit or foliage from a plant or trees growing wild, providedit is not done for sale or other commercial purposes.(What about supermarket wild mushroom soup?) So, sellers of daffodils or Christmas trees obtalned

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from the wild would be guilty of theft. Limitationsto the section includeland and things forming part of the land cannot be stolen. However, trustees might sell or disposeof the land therefore if they use the money from the sale of land for themselves then they can be charged with theft of the profit from land. Oxford v Moss ( 1e 7 9)

A university student seeing a proof copy of an exam paper was not guilty of theft becausethe exam paper was informationand 'information'cannotbe stolen. Note: The student'saw'the paper he did not physicallyremove the paper.

Property also includes things in action and other intangible property; 'things in action'are also known as'choses in action'.

'lhose in action' (not actually used in the fheft Act) describesall personal rights of property, which can only be claimed or enforced by action, and not by taking physical possession.The term includes shares in a company.

"other intangible property"

Bank accounts Cheques

Things in action Bank accounts in credit

'Other intangible property' includes patents, copyrightand design right. The Privy Councif hefd in Attorney Generat of HoAg Kong v Nai-Keunq l79871that export quotas for textiles in Hong Kong are a form of .other intangible property', becausesuch quotas may be freely bought and sold.

A cheque as a piece of paper, a cheque form, is personal property and may be stolen, regardlessof the balancein the accountupon which the chequeis drawn Duru 1t9747 An accountheld at a bank or a buildingsociety is a thing in action. If the account is in credit, a relationship of debtor and creditor exisG. The debt cannot be physically handled or possessed, but it can be enforced by action and is therefore a lhing in action may be stolen Kohn (1979) preddv l1e96l.

Overdrawn accounts nothing to be stolen

Thus where the account is overdrawn, there is no "thing in action" capableof being stolen Kohn (1979).

Electricitv; wild cfe atures; bodies

Electricity

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Is never "property"underthe Theft Act and eannot be stolen,this includeselectricityusedin telephones.

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Wild Greatures Reduced into possession means the process of capturing them or killing them. Human bodies cannot be stolen

Wild creatures are property, but where a wild creature is not either tamed or ordinarily kept in captivity or is the @rcassof such a creature, it can be stolen only if it has either (a) been reduced into possessionby or on behalf of another person and possessionof it has not since been lost or abandoned,or (b) another person is in the course of reducing it into possession. The traditionalview is that human corpsescannot belong to anyone, cannot therefore be stolen. Body ffuids can be stolen; in Welsh179741adriver was guilty of theft for removing his own urine specimen. It may also be possibleto steal parts of the body upon which work, e.9., of preservation,has been done as with Egyptianmummies. The Human Tissue Bill 2003 - prompted by the Alder Hey organ-stripping scandal - proposesa regulating authority to make sure that consentis obtained before organs and tissues are kept by hospitals. Thousandsof hearts, brains and other body parts had been retained without permission. A new criminal offences of "trafficking" in body parts, or keeping tissues without consent will be

5 Belo The identity of the'other' is generally irrelevant. All that is required is that the propefi belongs to someone other than the accused. section 5 (1) Property belongs to any person having possession or control It is possible to Sec 5(1) "Propefi shall be regarded as steal your own belongingto any personhaving property in some possessionor control of it, or having in it circumstances any proprietary right or Interest (not being an equitableinterest arising only from an agreementto transfer or grant an interest)." Occasionallythe property'stolen' actually .belongs, to the defendant at the time of the appropriation. Turner (L97t\

Turner had taken his car to a garageto be repaired. The job was finished and the car was parked outside overnight awaiting collection.Turner used his spare set of keys to remove the car without paying. The jury found Turner guilty of stealing his own car. The reason was that the garage proprietor had

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temporary possessionand control of Turners car until the bill had been settled. Meredith (1973)

Is a similar case but here the removal was from a police pound where the car had been placed because it was causing an obstruction. Meredith did not steal his own car presumably becauseof the lack of any police'right' over it. This right is calleda'lien'. If the policehad incurredcosts that could be passedon to Meredith, this might have altered the case.

Greenberq (L972) and Edwards V Ddin ( 1 9 7 6 ).

Both cases, it involved the filling of petrol tanks of cars and then the owners driving away without paying. The courts held that at the time of appropriationthe driving away the petrol was deemed to have belongedto the defendant. The charge should not be for theft but for dishonestly obtaining property by deception.

Abandoned Propefi.

If property is genuinely and honestly abandoned then it cannot be theft becauseit belongsto no one. Note should be made that rubbish depositedin council refuse bins, becomesthe property of the council. The issue of control is quite important here. Seemingly,abandonedproperty in a'derelict' conditioncan still be appropriatedif someoneis in 'control of the site'. For example by the erection of fences to excfude trespassers,see Woodman(1974\.

The Crown

The Crown has a prerogative right in royal fish (that is, whale and sturgeoncaught within territorial waters) and wild swans, whieh right was preserved by the Wild Creatures and Forest Laws Act L97L. Under the TreasureAct 1996. when treasure is found, it vests, subject to prior interests and rights, in the Crown.

Sec 5(2) Trust oroperW Sec 5(2) "Where property is subject to a trust, the Trust property personsto whom it belongsshall be regarded as 'belongs'to the includingany personhaving a right to enforcethe trustee AND... trust, and an intention to defeat the trust shall be regarded accordinglyas an intention to deprive of the propefi any person having that right." Trust property'belongs'to the trustee who has legal title to it and also to'any personhaving a right to enforce the trust', that is, any beneficiary of the

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equitabl€ interests

Israel-British Bank (London) Ltd lL9BL1 and Shadrokh -Ciaari I L9BB1. Consequently,the money belongsto another as againstthe recipientof that money.

Sec 5(5) Companies can their members llay be a corporation such as a compaily

be the owners of property independent of Sec 5(5) "Property of a corporation sole shall be regardedas belongingto the corporation notwithstanding a vacancy in the corporation."

The other to whom the property belongs need not be an individual,but may be a corporationsuch as a company incorporated by registration under the Companies Act 1985. Such a company is a legal entity separate from its members(shareholders)and directors.It can own money, things in aetionand other property which may be stolen from it by personswho are in total control of it by r€ason of shareholdingand directorship Attornev-General'sReference(No. 2 of 1982) ll994land Philippou(L989).

Partners

Banner l!97O1 A partner, who has a proprietary interest in partnership property, may steal it, since his co-partnersalso have such an interest.

Other cases of relevance to Section 5

Kaur lL9Btl Turner lt977l

cllks-U9lA Ldtls v Cashmarts [1969] Lawrence Hale lL979J

Section 6 fntention permanentlv to deprive Mens rea ThiS i5 the $econdelement of mens rea necessary for tllehr $Cc U1f) "A personappropriating bhUpbrtybelongingto another without ftiptrtidg the other permanently to lose th'e tning itself is neverthelessto be lb$ardedas having the intention of p$trhdhently depriving the other of it if |\iS irrWrttion is to treat the thing as his own to drtpose of regardless of the

otherbrishts; borrowing or 3i1"*^..n1 rn cn treatiflo

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This means borrowing is not theft. But, if having borrowed property it, and later decide to keep it, this would be theft. Same as permanently depriving.

Sec 6(2) Without prejudiceto the generalityof sub-s (1) above, where a person, having possessionor control (lawfully or not) of property belongingto another, parts with the property under a conditionas to its return which he may not be able to perform, this (if done for purposesof his own and without the other's authority) amounts to treating the property as his own to disposeof regardlessof the other's rights. To take a ticket and return it to.the'owner at the end of the concert. To take someone'sproperty and sell it back to him by pretendingto be the owner. In these casesthe true owners were not permanently deprived, but they were casesof theft, becausethere was an intention by the borrowers ts treat the property as their own, and to deprive the owners of their rights to the property.

Attorney General's Reference(Nos.7 and 2 af 1979) CA

D must intend to permanentlydeprive the other of property,and'a chargeof theft will fail if the indictmentis wort'ed,in'away that suggeststhat D would steal anything 6f,value he were to find.

Equivalent to an outright disposal

ln R v Coffev (ffi87], tAe,owner need not be deprivedof his'Piopertyf6rever if the appropriation amountedto an'outright disposal. So, the "borioy+ng" of a theatre ticket until the render the ticket useless,this is following dqy;r4ypuld equivalentto an outright disposalalthough it is retainedfof"only a day becauseit meansthe owner has been permanentlydeprivedof it.

Conditional Intention. If proper$ is taken with the intent to decide at a Walkinqton(1979) later stage whether to keep the articles, this conditionalintention is acceptablefor a chargeof lsr attempt and for the full offence of theft. Other cases relevant to intention to denrive-

Easom lL97Ll Morris Hussein lL9781 A-G's References(nos. 7 & 2 of 1979)

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