Theft Offences: The Essentials
PROPERTY OFFENCES
PROPERTY OFFENCES
THEFT
THEFT
Theft
Section1(1)
Theft Act 1968 provides that a person is
guilty of theft if they:
‘dishonestly appropriate property belonging to
another with the intention to permanently deprive the
other of it.’
Sections 2-6
Theft Act 1968 provide further definitions
of each of the above elements of theft.
Section 7
sets out the maximum penalty for theft of 7
years. It is a triable either way offence.
The elements of theft in section 1 can be broken down
into the actus reus and mens rea of the offence.
Actus Reus & Mens Rea
The
Actus Reus
of theft is:
• Appropriation
• Property
• Belonging to another
The
Mens Rea
of theft consists of:
• Dishonesty
• Intention to permanently deprive
Actus reus of Theft
Appropriation
The typical theft involves some physical taking, for
example, the stealing of your handbag, the taking of your
iPad. These incidents are easy to classify as
‘appropriation’. You are taking the object from the owner
and assuming some or all of their rights. The courts have
interpreted this very widely.
‘
Appropriation’ is defined in s.3(1) of the Theft Act 1968
:
‘Any assumption by a person of the rights of an owner
amounts to 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.’
Appropriation includes assuming any rights of the owner,
e.g. touching, moving, selling, destroying etc.
R v Pitham and Hehl (1977)
It also covers later assumption where property has
been innocently acquired. For an appropriation to
take place, there is no requirement that all the
rights of an owner are assumed, one right is
sufficient as decided in the case of
R v Morris
(1983).
Roskill LJ – “It is enough for the prosecution if they
proved…the assumption of any of the rights of the
owner of the goods in question. The concept of
appropriation in my view involves not an act
expressly or impliedly authorised by the owner but
an act by way of adverse interference with or
usurpation of those rights.”
What if the victim consents to
the property being taken?
An appropriation can still take place as in the case of
Lawrence v MPC (1972).
Viscount Dithorne – “Parliament by the omission of these
words (consent) has relieved the prosecution
establishing that the taking was done without the
owner’s consent.” Keith LJ said – “An act may be an
appropriation notwithstanding that it is done with the
consent of the owner.”
In another key case,
DPP v Gomez
(1993), The House of
Lords followed the decision in
Lawrence v Metropolitan
Police Commissioner
(1972) confirming that an
appropriation can take place with the owner’s consent.
R v Hinks (2000): The defendant’s charge of theft was
upheld regardless of it being a gift as the defendant
had ‘appropriated’ the money.
What about a later assumption of a right? E.g. you
borrow a game from Blockbuster and then because
you enjoy it, you decide to keep it. Or, you borrow a
book from the school library and you never return it.
The appropriation takes place when the person
decides to keep it. Section 3(1) is clear on this issue.
The next element is Property
Defined in s.4 of the Theft Act 1968:
“Property includes money and all other property, real or personal,
including things in action and other intangible property.”
What about the human body?
In the case of
R v Kelly and Lindsay (1998
) Kelly was an artist. He
was given permission to draw anatomical specimens held by the
Royal College of Surgeons. The specimens were of various body
parts used for training purposes. During the course of his visits he
met Lindsay who was a junior technician working for the RCS. Kelly
asked Lindsey to remove various body parts over a number of
months. These included three human heads, six arms, ten legs part
of a brain and three torsos. Kelly made casts of the body parts
which were exhibited in an art gallery. Both Kelly and Lyndsey
were convicted of theft and appealed contending the body
parts did not constitute property lawfully in the possession of RCS.
Held: Appeal dismissed. Convictions upheld. The court held that
although a dead body was not normally property, the body parts
in this case could be as their ‘essential character and value has
changed’.
Real Property
This includes buildings and land. S.4(1) says and can
be stolen but only in 3 circumstances.
Things in action and intangible property.
Intangible property means property that does not exist
in a physical sense.
A ‘thing in action’ (also called a ‘chose in action’) is a
technical term to describe property that does not
physically exist but which gives the owner legal rights
that are enforceable by a court action. E.g. a bank
account in credit (where the bank refuses the
customer their money), investments, shares and
intellectual property such as patents, etc. People have
legal rights over these things but they can’t physically
hold them.
Oxford v Moss (1979)
The courts have decided that some things are not
‘property’ within the definition.
In the case of Oxford v Moss, it was held that theft of
exam questions was not theft at all as they were not
‘property.
The Divisional Court considered whether confidential
information falls within the definition contained in
s4(1) of the Theft Act, and were referred to a number
of authorities dealing with trade secrets and
matrimonial secrets. It was said that although those
cases dealt with confidentiality, the appropriate
remedies for breach had been injunction or
damages rather than criminal penalties. The
conclusion was drawn that the definition of
"intangible property" was not broad enough to
include confidential information, and the prosecutor's
appeal was dismissed.
Intangible Property
s.4(3) A person who picks mushrooms growing wild on any land,
or who picks flowers, fruit or foliage from a plant growing wild
on any land, does not (although not in possession of the land)
steal what he picks, unless he does it for reward or for sale or
other commercial purpose..
For purposes of this subsection “mushroom” includes any
fungus, and “plant” includes any shrub or tree.
s.4(4) Wild creatures, tamed or untamed, shall be regarded as
property; but a person cannot steal a wild creature not tamed
nor ordinarily kept in captivity, or the carcase of any such
creature, unless either it has been reduced into possession by or
on behalf of another person and possession of it has not since
been lost or abandoned, or another person is in course of
reducing it into possession.
So are there any things that
cannot be stolen?
So are there any things that cannot be stolen?
Yes, is the answer to this question. They are set out in section
4(3) and 4(4) Theft Act 1968.
These sections say:
s.4(3) A person who picks mushrooms growing wild on any
land, or who picks flowers, fruit or foliage from a plant growing
wild on any land, does not (although not in possession of the
land) steal what he picks, unless he does it for reward or for sale
or other commercial purpose..
For purposes of this subsection “mushroom” includes any
fungus, and “plant” includes any shrub or tree.
s.4(4) Wild creatures, tamed or untamed, shall be regarded as
property; but a person cannot steal a wild creature not tamed
nor ordinarily kept in captivity, or the carcase of any such
creature, unless either it has been reduced into possession by
or on behalf of another person and possession of it has not
since been lost or abandoned, or another person is in course of
reducing it into possession.
Electricity
Section 11 provides for a separate offence in
relation to electricity.
It is intangible property that cannot be stolen but if
a person (s.11) ‘dishonestly uses electricity without
authority or dishonesty causes it to be waster or
diverted’ then they may be liable for an offence.
The next element is…
‘Belonging to another’
This falls under s.5 Theft Act 1968. The property must
‘belong to another’ but under s.5 this has a wide
meaning. It includes where a person owns the
property but also where they have possession or
control over it or where they have a proprietary right
or interest over it.
The wide test is a benefit for the prosecution as they
do not have to establish who the legal owner is, just
whether the defendant was in possession or control
or had a proprietary interest or rights over it.
So what does this mean in
practice?
Where A has a bag. B steals it. C then steals it from B.
C may now be charged with theft from B because B
was in possession of it. This is demonstrated in the
case of
Turner (No2) (1971).
A defendant can also be liable for stealing property
that the person in possession doesn’t even know is
there.
Woodman (1974).
Proprietary Interest
If another person has a proprietary interest in
property that a defendant owns and is in possession
of then the defendant can be guilty of stealing it!
This was the case in
Webster (2006)
where the Ministry
of Justice had retained a proprietary interest in a
medal the defendant sold on Ebay.
Obligation to Use Property
in a particular way.
Under section 5(3) it states: 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
shall be regarded (as against him) as belonging to the
other.’
E.g. if you gave your teacher a deposit for a class trip
but the teacher spent that money on a coffee machine
then the teacher has not ‘used the money in the right
way’ so it is theft.
In
Hall (1972)
the Court of Appeal said each case
depended on its facts. In this case where was no
obligation to use the deposit money in a particular way
as it was paid into a general account.
Obligation to use Property
in a particular way
However, the case of
R v Klineberg and Marsden
(1999)
was distinguished from Hall. In this case, there
was a clear obligation to deal with the money in a
particular way.
This can even be true in less formal situations (e.g.
flatmate given money by other flatmate to pay a bill
but she spent it on presents
Davidge v Bunnett
(1984
)).
Property acquired by
mistake
Under section 5(4) there is a duty to make restoration
(give it back). If this doesn’t happen there may (but
not in all cases) be a theft.
In the case of
AG Ref (No 1 of 1983) (1985)
the court
held that if there was not an honest attempt to make
restoration (i.e. she took a conscious decision not to
repay the overpaid salary) then there could be a
theft. However the jury acquitted.
In the case of
R v Gilks (1972)
– betting transactions
are not legally enforceable and so s.5(4) did not
apply.
Mens Rea of Theft
There are two elements to the Mens Rea:
- Dishonesty
AND
- Intention to permanently deprive
Dishonesty – Section 2
(1)A person’s appropriation of property belonging to another
is not to be regarded as dishonest—
(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
(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
(c)(except where the property came to him as trustee or
personal representative) if he appropriates the property in the
belief that the person to whom the property belongs cannot
be discovered by taking reasonable steps.
(2)A person’s appropriation of property belonging to another
may be dishonest notwithstanding that he is willing to pay for
the property.
R v Ghosh (1982)
R v Ghosh (1982) provides the test for the jury on
what is to be regarded as dishonestly.
1. Has the defendant been dishonest by the
standards of the ordinary, honest and reasonable
person?
2. If the answer is yes, then did the defendant
realise that they were dishonest by those
standards?
If the answer is yes to both questions then the
defendant can be legally dishonest.
Intention to permanently
deprive
This is obvious in some cases – e.g. the
defendant has spent the stolen cash or sold the
car that was stolen but not so obvious in other
cases.
What if the defendant has stolen cash but
intends to replace it? This was the case in
R v
Velumyl
(1989). In this case he was still guilty of
theft as he had the intention of permanently
depriving the company of the banknotes he
had taken.
s.6(1) “With the intention of
permanently depriving the
other of it”.
A person appropriating property belonging to another
without meaning the other permanently to lose the
thing itself is nevertheless 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.
s.6(2) “With the intention of
permanently depriving the
other of it”.
Without prejudice to the generality of subsection
(1) above, 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 (if done for purposes of his own and
without the other’s authority) amounts to treating
the property as his own to dispose of regardless of
the other’s rights.
Borrowing something…
This is not normally a theft because there is no
intention to permanently deprive. But, in the case
of
Lloyd (1985)
the court held that borrowing
could fall within the ambit of section 6 if the
property was borrowed ‘until the goodness, the
virtue, the practical value …has gone out of the
article.
The Theft Act 1968 defines theft, elaborating on appropriation, dishonesty, and intention to permanently deprive. Key cases like R v Pitham and Hehl provide insights on appropriation. Consent does not negate appropriation, as shown in Lawrence v MPC and DPP v Gomez.
Download Presentation
Please find below an Image/Link to download the presentation.
The content on the website is provided AS IS for your information and personal use only. It may not be sold, licensed, or shared on other websites without obtaining consent from the author.If you encounter any issues during the download, it is possible that the publisher has removed the file from their server.
You are allowed to download the files provided on this website for personal or commercial use, subject to the condition that they are used lawfully. All files are the property of their respective owners.
The content on the website is provided AS IS for your information and personal use only. It may not be sold, licensed, or shared on other websites without obtaining consent from the author.
E N D
Presentation Transcript
PROPERTY OFFENCES THEFT
Theft Section1(1) Theft Act 1968 provides that a person is guilty of theft if they: dishonestly appropriate property belonging to another with the intention to permanently deprive the other of it. Sections 2-6 Theft Act 1968 provide further definitions of each of the above elements of theft. Section 7 sets out the maximum penalty for theft of 7 years. It is a triable either way offence. The elements of theft in section 1 can be broken down into the actus reus and mens rea of the offence.
Actus Reus & Mens Rea The Actus Reus of theft is: Appropriation Property Belonging to another The Mens Rea of theft consists of: Dishonesty Intention to permanently deprive
Actus reus of Theft Appropriation The typical theft involves some physical taking, for example, the stealing of your handbag, the taking of your iPad. These incidents are easy to classify as appropriation . You are taking the object from the owner and assuming some or all of their rights. The courts have interpreted this very widely. Appropriation is defined in s.3(1) of the Theft Act 1968: Any assumption by a person of the rights of an owner amounts to 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. Appropriation includes assuming any rights of the owner, e.g. touching, moving, selling, destroying etc.
R v Pitham and Hehl (1977) It also covers later assumption where property has been innocently acquired. For an appropriation to take place, there is no requirement that all the rights of an owner are assumed, one right is sufficient as decided in the case of R v Morris (1983). Roskill LJ It is enough for the prosecution if they proved the assumption of any of the rights of the owner of the goods in question. The concept of appropriation in my view involves not an act expressly or impliedly authorised by the owner but an act by way of adverse interference with or usurpation of those rights.
What if the victim consents to the property being taken? An appropriation can still take place as in the case of Lawrence v MPC (1972). Viscount Dithorne Parliament by the omission of these words (consent) has relieved the prosecution establishing that the taking was done without the owner s consent. Keith LJ said An act may be an appropriation notwithstanding that it is done with the consent of the owner. In another key case, DPP v Gomez (1993), The House of Lords followed the decision in Lawrence v Metropolitan Police Commissioner (1972) confirming that an appropriation can take place with the owner s consent.
R v Hinks (2000): The defendants charge of theft was upheld regardless of it being a gift as the defendant had appropriated the money. What about a later assumption of a right? E.g. you borrow a game from Blockbuster and then because you enjoy it, you decide to keep it. Or, you borrow a book from the school library and you never return it. The appropriation takes place when the person decides to keep it. Section 3(1) is clear on this issue.
The next element is Property Defined in s.4 of the Theft Act 1968: Property includes money and all other property, real or personal, including things in action and other intangible property. What about the human body? In the case of R v Kelly and Lindsay (1998) Kelly was an artist. He was given permission to draw anatomical specimens held by the Royal College of Surgeons. The specimens were of various body parts used for training purposes. During the course of his visits he met Lindsay who was a junior technician working for the RCS. Kelly asked Lindsey to remove various body parts over a number of months. These included three human heads, six arms, ten legs part of a brain and three torsos. Kelly made casts of the body parts which were exhibited in an art gallery. Both Kelly and Lyndsey were convicted of theft and appealed contending the body parts did not constitute property lawfully in the possession of RCS. Held: Appeal dismissed. Convictions upheld. The court held that although a dead body was not normally property, the body parts in this case could be as their essential character and value has changed .
Real Property This includes buildings and land. S.4(1) says and can be stolen but only in 3 circumstances. Things in action and intangible property. Intangible property means property that does not exist in a physical sense. A thing in action (also called a chose in action ) is a technical term to describe property that does not physically exist but which gives the owner legal rights that are enforceable by a court action. E.g. a bank account in credit (where the bank refuses the customer their money), investments, shares and intellectual property such as patents, etc. People have legal rights over these things but they can t physically hold them.
Oxford v Moss (1979) The courts have decided that some things are not property within the definition. In the case of Oxford v Moss, it was held that theft of exam questions was not theft at all as they were not property. The Divisional Court considered whether confidential information falls within the definition contained in s4(1) of the Theft Act, and were referred to a number of authorities dealing with trade secrets and matrimonial secrets. It was said that although those cases dealt with confidentiality, the appropriate remedies for breach had been injunction or damages rather than criminal penalties. The conclusion was drawn that the definition of "intangible property" was not broad enough to include confidential information, and the prosecutor's appeal was dismissed.
Intangible Property s.4(3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose.. For purposes of this subsection mushroom includes any fungus, and plant includes any shrub or tree. s.4(4) Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.
So are there any things that cannot be stolen? So are there any things that cannot be stolen? Yes, is the answer to this question. They are set out in section 4(3) and 4(4) Theft Act 1968. These sections say: s.4(3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose.. For purposes of this subsection mushroom includes any fungus, and plant includes any shrub or tree. s.4(4) Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.
Electricity Section 11 provides for a separate offence in relation to electricity. It is intangible property that cannot be stolen but if a person (s.11) dishonestly uses electricity without authority or dishonesty causes it to be waster or diverted then they may be liable for an offence.
The next element is Belonging to another This falls under s.5 Theft Act 1968. The property must belong to another but under s.5 this has a wide meaning. It includes where a person owns the property but also where they have possession or control over it or where they have a proprietary right or interest over it. The wide test is a benefit for the prosecution as they do not have to establish who the legal owner is, just whether the defendant was in possession or control or had a proprietary interest or rights over it.
So what does this mean in practice? Where A has a bag. B steals it. C then steals it from B. C may now be charged with theft from B because B was in possession of it. This is demonstrated in the case of Turner (No2) (1971). A defendant can also be liable for stealing property that the person in possession doesn t even know is there. Woodman (1974).
Proprietary Interest If another person has a proprietary interest in property that a defendant owns and is in possession of then the defendant can be guilty of stealing it! This was the case in Webster (2006) where the Ministry of Justice had retained a proprietary interest in a medal the defendant sold on Ebay.
Obligation to Use Property in a particular way. Under section 5(3) it states: 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 shall be regarded (as against him) as belonging to the other. E.g. if you gave your teacher a deposit for a class trip but the teacher spent that money on a coffee machine then the teacher has not used the money in the right way so it is theft. In Hall (1972) the Court of Appeal said each case depended on its facts. In this case where was no obligation to use the deposit money in a particular way as it was paid into a general account.
Obligation to use Property in a particular way However, the case of R v Klineberg and Marsden (1999) was distinguished from Hall. In this case, there was a clear obligation to deal with the money in a particular way. This can even be true in less formal situations (e.g. flatmate given money by other flatmate to pay a bill but she spent it on presents Davidge v Bunnett (1984)).
Property acquired by mistake Under section 5(4) there is a duty to make restoration (give it back). If this doesn t happen there may (but not in all cases) be a theft. In the case of AG Ref (No 1 of 1983) (1985) the court held that if there was not an honest attempt to make restoration (i.e. she took a conscious decision not to repay the overpaid salary) then there could be a theft. However the jury acquitted. In the case of R v Gilks (1972) betting transactions are not legally enforceable and so s.5(4) did not apply.
Mens Rea of Theft There are two elements to the Mens Rea: - Dishonesty AND - Intention to permanently deprive
Dishonesty Section 2 (1)A person s appropriation of property belonging to another is not to be regarded as dishonest (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 (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 (c)(except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. (2)A person s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.
R v Ghosh (1982) R v Ghosh (1982) provides the test for the jury on what is to be regarded as dishonestly. 1. Has the defendant been dishonest by the standards of the ordinary, honest and reasonable person? 2. If the answer is yes, then did the defendant realise that they were dishonest by those standards? If the answer is yes to both questions then the defendant can be legally dishonest.
Intention to permanently deprive This is obvious in some cases e.g. the defendant has spent the stolen cash or sold the car that was stolen but not so obvious in other cases. What if the defendant has stolen cash but intends to replace it? This was the case in R v Velumyl (1989). In this case he was still guilty of theft as he had the intention of permanently depriving the company of the banknotes he had taken.
s.6(1) With the intention of permanently depriving the other of it . A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless 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.
s.6(2) With the intention of permanently depriving the other of it . Without prejudice to the generality of subsection (1) above, 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 (if done for purposes of his own and without the other s authority) amounts to treating the property as his own to dispose of regardless of the other s rights.
Borrowing something This is not normally a theft because there is no intention to permanently deprive. But, in the case of Lloyd (1985) the court held that borrowing could fall within the ambit of section 6 if the property was borrowed until the goodness, the virtue, the practical value has gone out of the article.
