Criminal law- Theft
Lawrence
a tourist was being driven to their destination by a taxi driver, they offer the taxi driver some money and the taxi driver says that is not enough so the tourist open their wallet and holds it to the driver and the taxi driver helps them selves to extra. they are charged with theft and D said that the tourist consented to him taking the money. lord dilhorne said consent is irrelevant to appropriation
R v Morris
- two different defendants who were switching labels on items in supermarkets, making them cheaper, one was stopped before they went through the checkout and the other was stopped after they had paid the lower price
- lord rascal thought the point in Lawrence about consent being irrelevant to appropriation was a little too wide
Gomez
D tells the manager of the shop he works at that these two particular checks were valid, which enables a friend of his to gain some property.
- Confirmed an assumption of ANY of the rights of an owner amounted to an appropriation
- Confirmed consent is irrelevant to appropriation
Hinks
D made friends with a man of limited intelligence, she regularly went with him to his building society where he made a number of withdrawals from his account, about £60,000 that he gave to the D, a psychologist described D as naïve, but they said that he was capable of making a decision to give his property away. although it was unlikely he would make his decision unaided. D was convicted of theft and she appeals and argues on appeal that the property belonged to her now, however consent is irrelevant to appropriation
Oxford v Moss
student who had copied an exam paper, but he didnt actually take the paper just copied the questions, convicted of theft first time round, then appealed and on appeal the court quashed the conviction, confidential information could not be stolen
Low v Blease
electricity could not be appropriated
Clinton v cahill
heat could not be appropriated
Kelly v Lindsay
Kelly was an artist and Lindsay was a surgeon who worked as a technician for the royal college of surgeons, Lindsay stole body parts so Kelly could draw them.
Welsh
urine sample
Yearworth
recognised a property interest in sperm stored in a hospital for fertility treatment. Court suggested that the traditional approach to ownership of bodies was outdated
R v Kohn
D was actually authorised to write checks on a company bank account, he wrote some checks for unauthorised amounts and it was held that the unauthorised check for the amount that reduced or eliminates a balance… the problem was that the counts were already overdrawn beyond the agreement that was made with the bank and this effectively meant that the bank did not have to honour that debt, therefore there was no thing in action or no chosen action against the bank
Hilton
D instructed a charity's bank over whose accounts he had control to transfer money into his own account, he got the money transferred from the charities account into his own account
Williams (Roy)
the D was a builder who targeted elderly customers, he charged reasonable prices at the start and then they became increasingly excessive but he tricked his victims into then writing checks to him in his favour for those excessive amounts. court decided that when the defendant presented the check and then calls the victims bank account to be reduced by that amount, he could be found guilty of theft. he was appropriating the thing in action that consisted of the victims credits balance in the bank
Turner
D took his car to a garage to be repaired, the repairs were not yet completed but the garage owner placed the car outside on the street when the owner come back and took his car and didn’t pay for the repairs that had been done, it was said that he could be found guilty of the theft of his own car because at that moment in time, the garage had possession and control over it.
Woodman
a person has possession or control over any articles in their house or on their land, even if they had forgotten they were there, or may not have known they were there.
Hibbert v Mckiernan
people going around collecting golf balls that have been left of golf courses, trying to argue that the owners of the golf balls have abandoned them, but in both cases it was found that the golf club retained possession and control of these balls.
R (Ricketts)
D had taken bags of clothing from outside the charity shop and also out of a wheely bin out the back of another charity shop, he argued that the property had been abandoned. the bags left on the street were held that the charity shop did not have these in their possession so no ownership, but the doner had retained ownership, so he could be charged with theft from persons unknown. the bags that were in the bin they were held to be in possession or control of the charity shop
Edwards v Din
a car owner gets a worker at a garage to put 3 gallons of petrol and some oil in their car, then they drive off without paying, the question was whether the garage had ownership over the petrol and oil, it was found that as soon as the petrol and oil go into the car it is then possession of the car owner, was not charged with theft
Wain
D raised money for a telethon and he paid the money, first of all, into a separate account, with permission from the charity he was raising this money for, he moved it into his personal account and then spent all the money, convicted of theft.
R v Hall
travel agent who took deposits and payments for air trips to the states, the trips never materialised and the money that had been paid to the travel agents was never returned to them. court said although they may have been in breach of their contractual obligations there was no e evidence of any special arrangement imposing an obligation on them to deal with that money in a particular way
AGs Ref
a police officer was overpaid her salary by the police force, an over payment by mistake, and it was said that she was under an obligation to return it once she was aware of the over payment and that the money was considered to be belonging to her employer
Gresham
D continued to collect his dead mothers pension for 10 years after her death, this was a mistake made by the pensions, this over payment was deemed to belong to the pension fund.
R v Small
D was charged with stealing a car, he said he thought it was abandoned because it had been parked for some days unmoved with a flat tire, flat battery and no petrol. a belief in abandonment which was unreasonably held, could not be an honest belief, on appeal this was found to be a misdirection, all they are looking for is an honest and genuine belief.
Forrester
D broke into a house where he had formally been a tenant, the land lord had kept his deposit and D thought this was unfair so he took items from the house which he thought was equivalent to the money owed to him, they thought they had a moral right to do this, this is not what the law requires it is belief in a legal right.
Holden
D was charged with stealing tires from his employer and D believed he had permission to take these tires. they held the belief in consent had to be honest and genuine, did not have to be reasonable
R v feely
should apply common sense standards to whether it is dishonest or not. it was said that a judge should not try to define dishonest
R v Ghosh
- not a purely objective test – dishonesty is something in the mind of the accused. If the mind of the accused is honest, it cannot be deemed dishonest merely because members of the jury would regard it as dishonest to embark on that course of conduct
- D was a consultant in a hospital, he claimed fees for an operation which he did not perform, he claimed he was not being dishonest as he was owed the same amount of money for consultancy he had done
Ivey v Genting Casinos
D wins 7.7 mill, D has done a technique called edge sorting, or cheating, D did not think this was being dishonest, he thought this was a good use of skills and memory. the question was whether the dishonesty had to be proven.
R v Velumyl
An intention to permanently deprive is established if D does not intend to return the specific property
R v Lloyd
- D removed films from a cinema and copied them and returned them, the court held the value of the films had not diminished, and the borrowing time was so short it did not constitute taking.
- a mere borrowing is never enough to constitute the necessary guilty mind unless the intention is to return the thing in such a changed state that it can truly be said that all its goodness or virtue has gone.
- only refer to section 6 when specific facts of case make it necessary
Cahill
‘To deal with definitely; to get rid of; to get done with, finish. To make over by way of sale or bargain, sell’
R v Lavender
D was living in a council property and the doors on his property were broken, he went to an empty council house and removed the doors and put them on his own, he is not intending to permenantly deprive the council of them, as the doors were still on one of their houses. however they held that he is treating them as his own to dispose of
R v Coffey
D is in a dispute with another person, at the time he had machinery that belonged to the other person, so he decides to keep the machinery while trying to persuade or force the other person to resolve this dispute. the courts said you have to look at whether they are keeping this machinery for a period of time or an outright taking, on the fact he didnt out right take it
R v Marshall and others
Three Ds who were getting london underground tickets from customers who had finished using them and then selling them on and they were convicted of theft of the tickets, they argued they had no intention to permanently deprive as they were returning the tickets to london under ground, through a third party, this was rejected. london underground had the exclusive right to sell the tickets. by selling them on they were treating these tickets as their own to sell and dispose of
Raphael
V was robbed of his car by two Ds, Ds then offered to give it back to him for £5000, and then they later abandoned the car once police became involved. they tried to argue they were intending to give him it back, but the court said they were treating the car as their own to dispose of.
DPP v J
Ds here snatched the victims head phones and broke them in half before returning them immediately, they treat them as their own to dispose of.
R v Easom
D picked up a bag in the cinema and looked through it and decided there was nothing in it worth taking, he was charged with theft of everything in the bag, he was acquitted as they couldn’t prove he intended to permanently deprave V of any of the things, conditional intent is not enough
what is the definition of theft
- s.1 Theft Act 1968
- A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of with the intention of permanently depriving the other of it.
- Punishment -7 years max.
what is appropriation
section 3(1) Theft Act 1968
- 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.
what are the rules around consent and appropriation
consent is irrelevant to appropriation- Gomez
other key cases- lawrence, morris
what is the rules around gifts?
indefeasible means that the person retains no proprietary interest or any right to resume or recover any proprietary interest in the property- Hinks.
can appropriate a valid gift, the jruy should not concern themselves with the law of gifts.
what is property?
4(1) Property includes money and all other property, real or personal, including things in action and other intangible property.
what are some examples of property?
intellectual property, information and services cannot be excluded- Oxford v Moss.
electricity cannot be appropriated- Low v blease
heat cannot be appropriated- clinton v cahill
corpse can be if it has been acquired for the application of skills, preservation techiniques, for exhibition or teaching purposes.- Kelly and lindsay
urine smaple and sperm can be appropriated- welsh, Yearworth v noth bristol NHS trust.
Bank accounts can be appropriated however if there is an overdraft then there is nothing for D to steal?- R v Koh, Hilton, Williams (roy)
what does beloning to another mean?
- Section 5(1) of the Theft Act 1968
- Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest, whether it be a right of ownership, possession or equitable right.
the owner of property can be convicted of its theft if someone else has possesssion or control of it at the time- Turner
what are the rules around abandonment?
a person has possession or control over any articles in their house or on their land, even if they had forgotten they were there, or may not have known they were there.- woodman, Hibbert v Mckiernan, R (ricketts) v Basildon Magistrates court
trust property
- Section 5(2) Theft Act 1968
- Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right
what does belonging to another mean?
- Section 5(3) Theft Act 1968
- 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
- Section 5(3) - An obligation to deal with property in a particular way
- Wain [1995] 2 Cr App R 660- By virtue of section 5(3), the appellant was plainly under an obligation to retain, if not the actual bank notes and coins, at least their proceeds.
- R v Hall [1973] 1 QB 126 – what was not here established was that that these clients expected them ‘to retain and deal with that property or its proceeds in a particular way’
what about mistakes?
- Section 5(4) – Mistake
- 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 its 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
AGs ref no 1 of 1983, Gresham
what is dishonesty
- The Theft Act 1968 does not define dishonesty but it outlines 3 situations in which a person’s appropriation of property belonging to another is not regarded as dishonest - Section 2(1) – Not dishonest if D has
1. Belief in legal right
2. Belief in owner’s consent
3. Belief that owner cannot be found by taking reasonable steps
belief in right
- Section 2(1)a – belief in right
- R v Small
- Forrester
belief in consent
- Section 2(1)(b) – belief in consent
- Holden
- Section 2(2): ‘A person's appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property’
what is the meaning of dishonesty?
freely- is a question of fact for the jury- and should apply common sense.
what is the ghosh test?
1. Was what was done dishonest according to the standards of reasonable and honest people.
- If answer is no then that’s end of matter. If yes must ask
2. Did the D realise that what he was doing was dishonest by those standards?
- If no, then he is not dishonest; If yes, then he is dishonest.
what is the ivey test?
1. determine the defendant’s actual state of mind
2. consider whether by the standards of ordinary people the behaviour of D should be regarded as dishonest
this is the test we should use- R v Barton (david); R v Booth (rosemary)
what is an intention to permanently deprive?
it does not need to be an actual permanent deprivation.
velumyll
- No definition of this element but section 6(1) provides two examples of when D will be said to have the required intention if he has:
1. An intention to treat the thing as his own to dispose of
2. A borrowing or lending for a period or in circumstances that amounts to an outright taking or disposal
what does dispose of mean?
To deal with definitely; to get rid of; to get done with, finish. To make over by way of sale or bargain, sell’- Cahill
other cases- Lavender, coffey, marshall and others, raphael, DDP v JOnes
what is the rule around borrowing?
a mere borrowing is never enough to constitute the necessary guilty mind unless the intention is to return the thing in such a changed state that it can truly be said that all its goodness or virtue has gone.- R v LLoyd
what is the rules around risking the loss of someones property
- Section 6(2) – risking the loss of someone’s property
- Section 6(2) of the Theft Act 1968 provides that 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 others authority) amounts to treating the property as his own to dispose of regardless of the other's rights.
what is conditional intent?
R v Easom