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We will see that the elements of theft are still rather difficult to define.
The law relating to theft is governed by the Theft Act 1968, Prior to 1968, the law
relating to theft was governed by the Larceny Act 1916, a complicated and problematic
statute. A new report led to radical reforms to the old law relating to theft and the
enactment of the Theft Act 1968. The 1968 Act aimed to simplify t he law on theft by
creating a clearer and comprehensive statutory framework. The provisions of the Act
have been subject to much judicial analysis and interpretation, resulting in a vast mass
of complicated case law which it has been stated is in urgent need of simplification and
modernization.
The Theft Act 1968 came into force on 1 January 1969. Theft is an offence which is
triable either way and carries a maximum sentence of 7 years imprisonment upon
conviction in the Crown Court (s.7 of the Act).
The definition of theft is found within s.1(1) of the Theft Act 1968:
A person is guilty of theft if he dishonestly appropriates property belonging to
another with the intention to permanently deprive the other of it.
Actus Reus
Appropriation
The prosecution must prove that the defendant appropriated the property. Appropriation is
partially defined under s.3(1) of the Theft Act 1968.
S.3 (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 it by keeping or dealing with its owner
According to this section, appropriation involves assuming the rights of the owner of the
property; i.e.., doing something with the property that the owner has the right to do.
It encompasses acts such as taking possession of, using, selling, lending, giving away and
destroying the property, as well as omissions such as failing to return or keeping the property.
S.1(2) stated that in order to be guilty the defendant does not need to appropriate the property
with a view to gain or benefit from it.
Although s.3(1) refers to appropriation as an assumption of the rights of the owner, the
defendant does not to assume all of the rights of the owner over the property. The element of
appropriation will be satisfied if the defendant assumes any single right of the owner property.
CASE LAW: Morris (1984): Defendants swapped price tags on goods in a supermarket for
lower priced labels.This act alone or in conjunction with others was enough to satisfy
appropriation. They had assumed a right of the supermarket price setting. Thus the switching
of labels was viewed as an appropriation because it was the right of the owner to fix the price of
sale.
Appropriation and consent: Whether or not the assumption of the owners rights must be
unauthorised in order to amount to an appropriation.
In the Larceny Act required that the property stolen be taking without consent of the owner.
The issue of consent in the case of Lawrence v Metropolitan Police Commissioner 1972.
The D was a taxi driver who picked up an italian student who could not speak much English.He
said that 1 was not enough and the student showed him his wallet and he took 5. In COA he
was convicted of theft but he appealed to the HOL on the ground that there was no
appropriation where the student had consented to him taking money from his wallet. HOL held
that the absence of consent was not necessary requirement of appropriation and that the
element of appropriation may be satisfied where the owner has consented to the property being
taken.
This conflict was resolved by the HOL years later in the case of:
CASE LAW: DPP v Gomez 1993
D, an assistant manager, persuaded his manager to accept two cheques as payment. D was
aware at the time that the cheques were worthless as they were stolen. D concealed this from
his manager and instead informed him that the cheques were as good as cash.
CA, following Morris, held that there had been no appropriation. HL held that Lawrence (not
Morris) recognised the correct viewpoint on the issue of appropriation and consent, and
concluded that you could appropriate property even though the owner consented or gave
authorisation.
Summary: Property may be appropriate, irrespective of whether or not the defendant had the
consent of the owner to take (or otherwise so treat) the property: Lawrence and Gomez.
Appropriation and gifts: Whether or not an gift might be appropriated.
The first case was Mazo (1997). A maid convicted of theft from her employer.She cashed a sum
of money and claimed that it was a gift. But she took advantage of her employer who had lapse
of memory and was vulnerable. The COA applied a wider interpretation of the meaning
appropriation stating that it is a neutral word to be looked at in isolation from any mens rea
concepts, such as dishonesty and fraud.
CASE LAW: Hinks
D befriended a vulnerable adult. D encouraged V to give her 60K and a television set.
Convicted of theft. D appealed saying a gift could not be appropriated.
HOL confirmed that a valid gift can be the subject of an appropriation. Justified this decision
stating that it was in the interests of justice and confirming the faith placed in judges and juries
to apply the legal principle in Gomez in a way which does not result in injustice. The decision
may be defended on the grounds that it serves to protect the vulnerable.
Physical act: The case of Briggs is the authority of the principle that appropriation connoted a
physical act. The D caused the proceeds of her elderly relatives house sale to be transferred
into her bank account by deceiving them. Her conviction for theft was quashed by the COA,
holding that appropriation requires a physical act rather than a remote act triggering the
payment.
D can be found to appropriate even if he does not take possession of the item (Corcoran v
Anderton (1980) 71 Cr App R 104)
Appropriation can occur by a person in or not in possession of the item (S3(1) and Pitman and
Hehl (1976) 65 Cr App R 45).
A later appropriation: S.3(1) Where a person initially comes by property without stealing it, but
he later does something (or omits to do) with the property by which he assumes the rights of the
owner over that property. E.g. keeping the owners property which he initially borrowed
innocently.
Bona Fide purchasers: s.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 believed
himself to be acquiring shall, by reason of any defect in the transferors title, amount to
theft of the property.
Where a person purchases a property in good faith but it later transpires that ownership of the
property did not pass to the purchaser (for example, if it was stolen property), the purchaser will
not have appropriated the property. If the purchaser does something with the property assuming
the rights of the owner (which he believed he was) over the property, there will be no
appropriation. So, a bona fide purchaser in good faith cannot be guilty of theft.
Property
The prosecution must also proves that the defendant appropriated property, i.e. something
capable of being stolen under the Theft Act 1968 is defined under s.4(1).
Property includes money and all other property, real or personal, including things in
action and other intangible property.
This definition is extremely wide and covers land and all tangible property. Money is specific
mentioned i and refers to coins and banknotes, including foreign currencies.
If D steals a cheque for the value of 100 he has not stolen money. He has
stolen a cheque which is merely a piece of paper; he only steals money if it is
cashed and he receives coins and notes. The 100 in the bank is not
property but a thing to which you have a proprietary interest it is a debt
owed to you by the bank which is a thing in action.
Real property refers to freehold land, although there are a number of exceptions under s.4(2),
and personal property refers to leasehold land and chattels (object such as a laptop, iPod,
wallet or car).
Intangible property (has no physical existence) is also included. A thing in action is an example
of this kind of property because it has no physical existence but it does entitle the owner to bring
an action in law (share in a company, a debt, a copyright, trademark, credit in a bank account,
agreed overdraft). Other intangible property also covers patents and export quotas.
Electricity: whereas gas and water are property and may be stolen, electricity does not amount
to property and cannot be stolen (Low v Blease). Where a person uses another person
electricity to charge his phone, it will not amount to theft. Such an act may be covered by a
separate offence of abstracting electricity under s.13 of the the Act 1968.
Corpses and body parts: a corpse and body parts are not property and thus cannot be subject
of theft (Sharpe Dears & B). It was confirmed in the case of Kelly and Lindsay (1999). The
exception of a corpse or body parts which is preserved for purposes of medical or scientific
examination, including educational purposes.
Also, where a D cuts of a persons hair, an offence against the person will have been committed
(unless it is consented). Case of DPP v Smith, dishonestly keeping the hair would surely
amount to the offence of theft. The hair is tangible.
Services: for example a bus ride, driving lesson, private tuition do not amount to property under
s.4(1), and therefore cannot be stolen. Where a person dishonestly travels on a bus without
buying a ticket, he has not appropriated any propery and cannot be guilty of theft. He could be
guilty of obtaing services dishonestly under s.11 of the Fraud Act 2006.
Things in Action: Is a right which can be enforced by legal action, and as property under s.4(1)
itt may be subject of a charge of theft. If it belongs to another and is dishonestly appropriated
with the intention to permanently deprive the other of it, the offence will be made out.
Cheques and bank account is a thing in action.
Belonging to another
Must be proven by the prosecution that at the time of appropriation, the property belonged to
another. Not necessary to prove to whom the property belonged. Under s.5(1) of the Act 1968,
is a wild definition.
Property shall be regarded as belonging to any person having possession or control of
it, or having in it any proprietary right or interest (not being an equitable interest arising only
from an agreement to transfer or grant an interest).
It is clear from this section that property not only belongs to its owner, but it also belongs to any
person who has possession or control of it, or a proprietary interest in it.
Can you steal your own property? It is not possible to steal property from yourself. If you are the
sole person with any proprietary interest in a piece of property, you cannot be guilty of stealing
it. However, it is possible to steal property you own if somebody else has possession or control
of it or a proprietary or interest in it at the moment of appropriation.
CASE LAW: Turner (No.2). Although he was the owner of the vehicle, the garage had
possession or control over the car at the time of appropriation. The idea that you can be guilty of
stealing your own property from somebody who is merely in possession of it seems very
strange.
Case: Meredith (1973).car removed by police and place in a compound. D,
secretly took the car back without payment liable for theft? Court said No
as Police had no interest in the property.
If property has been abandoned, it belongs to no one and cannot be stolen. When is property
abandoned? Property is only abandoned if the owner is completely indifferent as to what
happens to it and intends to give up his proprietary rights and interests in the property without
conferring an interest on another person.
Bin bags left for collection are not abandoned. Where property is no longer wanted by the owner
and is left out as refuse for the local authority to collect, it is not abandoned and does belong to
another.
CASE LAW: Williams v Phillips (1957) and confirmed in Rickets v. Basildon Mag. Court (2011)
Control and possession: property belongs to the person in possession or control of it,
irrespective of whether or not they are also the owner. In the case of Woodman (1974)
lake. D argued balls had been abandoned. Held: Sufficient evidence that they belonged to the
golf club.
Property of the deceased: where a property is stolen from a corpse, proving that the property
belonged to another is problematic. The prosecution must prove that the property belonged to
someone who was alive.
CASE LAW: Sullivan and Ballion (2002): 2 Ds removed 50000 from the dead body of a drug
dealer. The CC ruled the property did not belong to another at the time of the acr of
appropriation and acquitted the charge of theft.
Who did the money belong to? The judge suggested that the money might belong to the Crown
as bona vacantia (doctrine: ownerless passes to the Crown). It is submitted that this alternative
is the most appropriate alternative if the property did not belong to the employer of the
deceased or his estate.
Property received for a particular purpose: Where title to the property passes to the defendant
before the dishonest appropriation of the property, the property does not belong to another and
the can be no conviction for theft.
S.5(3) and 5(4) deals with 2 situations where the property is deemed to belong to another.
s.5(3) where a person receives property from an account of another, and is under an obligation
to the other to retain and del with that property or its proceed in a particular way, the property or
proceeds shall be regarded (as against him) as belonging to the other.
There must be an obligation on the defendant to deal with the property in a particular way(
case: Hall) Obligation e.g. D employs C to paint his home, D gives C 50 to
CA upheld their convictions arguing that the clients (writers of the cheques)
retained an equitable interest in the cheques drew in their favour and in the
proceeds or account balance irrelevant at which stage appropriation
occurred.
Covers situations where someone receives money on account of another
Wain - organised event to raise money for charity and then removed the
money from the charitable account to his own account when he withdrew
money from his charitable account he was charged with theft. Did not have
to keep actual notes but the sum of the collection in a place the charitable
givers would expect had to do with it as they intended it to be used for.
Whether a person is a trustee is something for the courts to determine
matter of law for a judge
Whether or not an obligation arises is a matter for the judge to determine
Accused though must have knowledge of the obligations and its extent; and
it must be a legal obligation (Gilks).
The obligation to deal with the property in a particular way must be a legal obligation. A moral or
social obligation is not enough. Legal Obligation examples:
Davidge v Bunnett (1984) D given money by flatmate to pay the gas bill.
Wain (1995) D given money to pass on to charity but he didnt. Held he was under a legal
obligation to deal with the property in a particular way.
S.5(4): Where a person gets property by anothers 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 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.
CASE LAW: Attorney Generals Reference (No.1 of 1983):If the D does not resolve the
mistake and repay the money, for example, the property will be deemed as belonging to
another.
It also be held that where property is transferred to another person under a mistake of fact, the
transferor retains an equitable interest in the property (Shadrokh-Cigari).
There must be a legal obligation to restore the money under civil law. In Gilks, there was no
such legal obligation. As the transaction was a wager, there was no legal obligation on the
defendant to return this money in civil law.