Theft

 

 Theft

Within the Theft Act 1968 S.1 it states – A person is guilty of theft if he dishonestly appropriates, property belonging to another with the intention of permanently depriving them of it.

Within ‘Theft’ there are factors mitigating the offence they are -

The Actus Reus – This involves the Appropriation of property that belongs to another person.

The Mens Rea – This involves the Dishonesty with the regards to taking the property and intentionally depriving the other person of it permanently.

Appropriation

Appropriation includes –

·          Taking property.

·          Destroying it.

·          Using it in an unauthorised way.

·          Selling it.

·          Offering to sell it.

·          Refusing to return it after having come by it legally.

The Theft Act 1968 S.3 states –

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 innocently or not without stealing it, any later assumption of a right to buy it by keeping it or dealing with its owner.

2)      Where property, or 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 believed himself to be acquiring shall, by reason of any defect in the transferors title amount to the theft of property.

Essentially this means that any person that assumes the owners’ rights, can amount to an Appropriation. This can include where the person has god the property innocently or not without stealing it. Any later assumption to buy it and keep it from its assumed owner and where property, or right, or interest in the property is to be transferred for money or value to a person acting in good faith, however if no assumption by the person actin gin good faith to be acquiring stolen goods from the person in relation to the value of the stolen goods or defects in the property/goods to be suspicious and reasonably question the price then they are not guilty.

R v Hinks 2000 –

Hinks, a young mother, befriended a 53 year old man called John Dolphin. He had been left money by his father and was naïve, gullible and of limited intelligence. Over a period of 7 months, the appellant influenced, coerced and encouraged Mr Dolphin to withdraw sums, amounting to £60,000, from his building society account and for them subsequently to be deposited in the appellant's account. She was subsequently convicted of theft and appealed on the ground that the sums given were gifts which were valid in civil law.

Conviction upheld. An appropriation exists even where the victim consents to the appropriation and civil unlawfulness is not a constituent of the offence of theft. Hinks was found Guilty.

R v Briggs - 2004
The appellant had persuaded her great aunt and great uncle (Mr & Mrs Reid) to move closer to her so that she could look after them. They sold their house and the appellant found a house for them to purchase. The appellant wrote a letter of authority instructing the conveyances acting in relation to the sale, to send the proceeds of sale to the conveyances acting in relation to the purchase. The letter of authority was signed by the Reid’s. The new house however, was purchased in the appellant's name against the wishes of the Reid’s. The appellant was convicted of theft and appealed on the grounds that an appropriation had not taken place.

The appeal was allowed. The conviction for theft was substituted with a conviction for deception.

Silber J:

"We are fortified in coming to that view by three further factors. First, no case has been cited to us where it has been held that an "appropriation" occurs where the relevant act is committed by the victim albeit as a result of deception. Second, if Mr. Barry was correct, there would be little need for many deception offences as many acts of deceptive conduct would be covered by theft but it is noteworthy that the Theft Act 1968 (as amended) contains deception offences to deal with the case where a defendant by deception induces a person to take a step which leads to the wrongdoing of gaining property by deception (section 15) or obtaining a money transfer by deception (section 15A) or obtaining a pecuniary advantage (section 16). Third, we have already referred to the explanation of the word "appropriation" in section 3(1) of the Theft Act 1968 and it is a word which connotes a physical act rather than a more remote action triggering the payment which gives rise to the charge. The Oxford English Dictionary defines "appropriation" as "to take possession for one's own, to take to oneself". It is not easy to see why an act of deceiving an owner to do something would fall within the meaning of "appropriation".

Indeed, we consider that in this case the appropriate charge might have been for an offence of deception. Our conclusion is that the conviction on count 1 must be quashed as there was no appropriation by the appellant of £49,950."

 

Property

S.4 gives a very comprehensive definition of property, which means that almost anything can be stolen. It states:

- Money

- Real property – severing a part of land, a tenant fixture, trustee in breach.

- Things in action – Right which can be enforced by another person by action in law for example, depts.

- Other intangible property, for example things that have no physical presence but can be stolen, for example a gas container.

Exceptions include –

-          When the defendant is in certain positions of trust for example a trustee, and appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him or her.

-          When the defendant is not in possession of the land and appropriates anything forming part of their land by severing it or causing it to be served, or after it has been served, for example Knocking down your neighbours brick wall and carrying away the bricks.

-          When the defendant is in possession of land under a tenancy appropriates the whole or part of any fixture or structure let to be used with the land, for example if you live in a rented premises and when you leave you remove a fixture or a structure like a toilet or sink.

Under S.4 no offence is committed if a person picks mushrooms which are growing wild, flowers, fruit or foliage provided that this is not done for a commercial purpose.

In addition to this, a person will not commit theft if he captures a wild animal, however he will if a person commits theft on an animal which has been tamed or reduced to captivity e.g. a pet or an animal in a Zoo. The main implication of this section is that poaching does not normally fall within the offence of theft; an example is in the case of:

R v Welsh 1974 - The defendant accused of drunk driving, poured his own urine specimen down a sink when the relevant police officer was out of the room. It was held that, although there is a traditional view that human corpses cannot belong to anyone body fluids can be stolen. Guilty of Perversion of course of justice

However in the case of Oxford v Moss 1978 – A university student obtained a copy of an examination paper read it and then replaced it. It was never his intention to take the paper away or deprive the University of It.  It was held that confidential information held on a piece of paper could not amount to intangible property according to the true interpretation of s 4 of the Theft Act 1968. Not guilty.

Belonging to Another

Section 5 (1) of the Theft Act 1968 states:  “that property is regarded as “Belonging of any person having possession or control of it, or having in it any proprietary right or interest.”

It can therefore belong to more than one person at a time and a person can be guilty of stealing property belonging to him, as well as belonging to another, this means less ownership which includes concepts such as possession or control.

For example in the case of – Williams v Phillips 1957 –

Dustmen (The Defendants) were convicted of stealing goods from dustbins collected in the course of their duties, and selling the goods to dealers and sharing the proceeds. It was held it was the householders' property until it was taken away, when it became the corporation's property; the men knew that they were not allowed to take anything from the refuse and there was abundant evidence on which the justices could convict; therefore, the appeals must be dismissed.

Also where a person receives property from another person and is expected to deal with it in a certain manner, then that property is regarded as belonging to another if they do not deal with it in the required way.

As in the case of – R v Wain 1995 –

The defendant helped raise and collect money for the Telethon Trust charity.  He but put the money in his personal account, with the Trust's permission, but used it for his own purposes, thereby appropriating the money. Cheques to the Trust bounced. It was held under Section 5(3) of the Theft Act 1968 imposed an obligation on the defendant to retain if not the actual notes and coins at least their proceeds. By putting the money in his account, it was still the proceeds of those notes and coins. There was an obligation on the defendant to keep sufficient money to pay the bills therefore he was found guilty.

Similarly, where a person has obtained property by another’s mistake they are under an obligation to restore the property belonging to the person who is entitled to that restoration.

As in the case of R v Gilks 1972 –

The defendant was overpaid winnings by mistake by a bookmaker. He knew that the bookmaker had made a mistake, but he kept the money. The defendant said that "bookmakers are a race apart." It would be dishonest if your grocer gave you too much change and you kept it, but it was not dishonest in the case of a bookmaker. It was held that it was correct to invite the jury to put themselves in the defendant's position and decide whether he thought that he was acting dishonestly or honestly and he was found Guilty.

In Section 5 (3) covers situations where a person receives property under the obligation to deal with it or the proceeds in a particular way. Once again the property will be held to ‘belonging to another’ if he does it unauthorised by the owner of it.

For example in the case of Davidge v Bennett 1984 –

The defendant received cheques from her flat mates which were to pay for the communal gas bill. The defendant spent the money on Christmas presents and left the flat without paying the gas bill. It was held that the defendant was liable for theft, as under s.5(3) TA 1968 the cheques had been given with a clear obligation to apply the money for payment of the gas bill. The defendant was found Guilty.

This can create some confusion to be remedied by Section 5(2) provision for trust and is resolved in R v Wain 1995 where it questions what does it mean by ‘Belonging to another’ as there is some confusion as it lies with the Jury and not a statutory definition, it also questions what is right when dealing with the proceedings and what reasons are justified, this could also lead to a unreasonable conviction by the jury as there is no statutory definition of a reason for mishandling a proceeding and the jury is based on their moral belief.

The Mens Rea of Theft

The Mens Rea of theft is made up on 2 key elements –

1.      Dishonesty.

2.      Appropriation to permanently deprive the owner.

Both elements must be proved for the offence to be committed. It is the Mens Rea of the offence that distinguishes theft from normal transactions. There is no need for the defendant to gain possession from dishonest appropriation.

Dishonesty

Dishonesty is a matter of fact to be determined by the jury, they are expected to apply their own contemporary standards of morality. The Theft Act Section 2 does not define dishonesty, as it was intended to have no other meaning than its normal every day, natural meaning. The Act did however specify 3 key situations where a defendant would not be considered to be ‘Dishonest’.

The Theft Act Section 2 states –

A)     If he appropriates 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 owner’s consent if the other knew the appropriation and he circumstances of it.

OR

C)     If he appropriates the property in the belief that the person whom the property belongs to cannot be discovered by taking reasonable steps of discovery.

Where these exceptions do not apply the courts have developed a test to establish whether the defendant was acting dishonestly or not in the case of R v Feely 1973 – The appellant was the manager in a betting shop. He borrowed £30 from the till and maintained that he intended to replace it within a few days. The trial judge held that his actions were clearly dishonest and his intention to replace the money was irrelevant, and it was held: His conviction was quashed. The trial judge should have put the issue of dishonesty to the jury.

The test comes from the case of R v Ghosh 1982.

R v Ghosh 1982 -

The appellant was a surgeon who claimed money in respect of operations which he had not carried out. He argued his actions were not dishonest as the same sums were legitimately due to him for consultancy fees.

His conviction was upheld. The test for determining dishonesty:

Lord Lane CJ devised  two part test -

1. Determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.


2. Also if it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.

 

An example of case guilty of dishonesty is –

Lawrence v MPC 1972 -

An Italian man who spoke little English, arrived at Victoria Station on his first visit to this country. He got a taxi and gave the driver a piece of paper on which an address was written. The taxi driver told him it was a long way and would be expensive. On arrival at the destination the Italian, took one pound out of his wallet and gave it to the driver. The driver intimated that it was not enough and reached into his wallet and took a further six pounds out of it. The correct lawful fare for the journey was in the region of 10s. 6d.The driver was convicted of theft and appealed contending that the Italian man had consented to the appropriation of the six pounds and his conviction could not therefore stand.

His conviction for theft was upheld. An appropriation can take place notwithstanding the consent of the owner. Therefore he was guilty due to Dishonesty.

Intention to Permanently Deprive

The second element of the Mens Rea of theft is an ulterior intention permanently to deprive the rightful owner of the property taken; this is specific intent and mere recklessness is not enough.

As a general rule, merely borrowing something does not form an intention to permanently deprive. However every thief would always raise this as a defenced there would be very few convictions for theft once the accused said “I would have given it back as soon as I realised I had it…” the offence of theft can be said to begin when the intention to permanently deprive is formed. In most cases intention can be inferred from the surrounding circumstances of the case.

The Theft Act 1968 S.6 states:

(1) 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.

(2) 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.

This means that there are two aspects to ‘intention to permanently deprive’

1.      Disposing the property regardless of the others rights.

2.      Borrowing or lending making it equivalent to outright taking or disposal.

Contained in S.6 (1) Can an offender be classed as permanently depriving the other of goods and be guilty of attempted theft weather he was trying to assess whether there is anything worth stealing?

As in the case of R v Easom 1971 -

The defendant in a cinema picked up a handbag and sorted through the contents. He left the handbag with its contents intact in front of the seat which he had vacated. The handbag had been attached by cotton to a police sergeant's wrist.it was held that If the defendant merely had it in mind to deprive the owner of such of his property as, proved worth taking but actually took nothing, he would not have stolen it.

 The defendant's state of mind is important.

Furthermore there could be no valid conviction of attempted theft unless it were established that he was animated by the same intention to permanently to deprive as would be necessary to establish the full offence. Not Guilty

A guilty Case would be R v Marshall 1998 –

The defendant’s obtained London Underground tickets from passengers leaving the system and sold them to other potential customers. It was held that on issuing an Underground ticket a contract was created between London Underground and the purchaser, under which both parties had rights and obligations which could be enforced. Each party to the contract had obtained a chose in action, represented on the purchaser’s side by the right to travel on the Underground and on London Underground’s side by the right to insist that the ticket was used by no-one other than the purchaser.

 It was this right that was disregarded when the appellants acquired the tickets and sold them on. The charge of theft related to the tickets themselves, which were not choses in action. The fact that the tickets might return to the possession of London Underground was irrelevant. The Theft Act 1968 s 6(1) applied. The appellants had admitted dishonesty. They were found Guilty.