Aftab, finding he has no money for his bus fare, takes £5 from Erina, his

housemate’s wallet, leaving a note saying that he will repay it on his return.
Erina has told him on a previous occasion not to do this. When he gets on the
bus the driver tells him to pay later as the bus is running late. Aftab gets off
the bus without paying, reasoning that others would have done the same.
Later he spots a basket of apples on the street outside a house. Above the
basket is a sign saying. ‘I have too many apples for my own use. Please take
some but leave some for others.’ Aftab takes 50 apples leaving only three in
the basket. He then goes to a fruit and vegetable shop where he sells the
apples to the owner. He then buys some vegetables, using Erina’s £5 note.
Next Aftab goes to an ATM cash dispenser where he withdraws £5 to repay
Erina, although he knows he has no funds in his bank account to cover the
withdrawal. He returns home and puts the £5 back in Erina’s wallet. Erina
sees him do this and gets angry. She accuses Aftab of being a thief, to which
he replies ‘I’m not a thief. I gave you the money back. That is not theft and
anyway it is not dishonest.’ Erina replies ‘Well I think it is, since you knew I
wouldn't agree.’
Discuss. DO NOT discuss the law relating to handling stolen goods.
General remarks
This is a straightforward question on theft, requiring consideration of the various
elements of theft. There is an issue also in relation to making off without payment in
relation to the bus journey. This is not theft since no property was appropriated. The
conversation between Erina and Aftab was important and should have been used to
determine whether Aftab is dishonest in the Ivey sense.
Law cases, reports and other references the examiners would expect you to use.
For key cases, see the section below on good answers.
Common errors
Many students did not fully interrogate the question, which leaves it ambiguous as
to whether the money returned to the wallet was the same £5 note as that taken
out. This is of course crucial to liability because of the case of Velumyl. Velumyl
itself was not dealt with by many students. Another common error was to miss the
main issue in relation to the apples namely whether because of owner’s consent
there was no appropriation.
A good answer to this question would…
separate the various items of wrongdoing as follows.
Erin’s £5 – The first issue is that of dishonesty. Section 2 is inapplicable and so
whether Aftab is dishonest depends upon the new common law test of Feely/Ivey.
Your discussion should take into account the conversation between Aftab and
Erina, which indicates that there is an issue as to whether Aftab’s conduct is
objectively dishonest. The intention to permanently deprive is also at issue but you
should have said that the Velumyl principle means that if the £5 returned is a
different note from that taken the intention is satisfied but the facts do not make this
clear.
Bus fare – You should have known that theft was inapplicable due to lack of
temporal coincidence of mens rea and actus reus, e.g. Corcoran v Whent. Making
off without payment is therefore the offence to charge. There are two issues here.
First dishonesty. See discussion above and remember to apply the facts. Also, has
he made off from the spot where payment is due? This requires you to consider
where this spot is, e.g. Moberley v Alsop. You might also consider, although this
was not required, whether a charge of obtaining services dishonestly is chargeable.
Again, the question as to whether actus reus and mens rea coincided arises.
Taking apples – The offence chargeable is theft. The main issue concerns
appropriation and you should make the point that a taking with the owner’s consent
does not prevent an appropriation, e.g. Hinks. Guilt therefore depends upon
whether the taking was dishonest, which required you to refer to s.2(1)(a) or (b)
Theft Act 1968? If not, you should consider dishonesty as per Feely/Ivey.
Selling apples – Selling the apples cannot be theft if the apples no longer belong to
the previous owner which, given the fact that they were gifted, suggest that they do
not, e.g. Williams v Phillips. Note, however, that it could be considered to be a
conditional gift, which means the original owner might still retain some rights over
the apples. If this is the case, has the condition been satisfied? I did not expect
anybody to make this point but if you had you are well on your way to being a topclass
lawyer!
ATM machine – Theft: the issue regards primarily what property has been
appropriated. There are two possibilities: a thing in action (i.e. the debt owed by the
bank to Aftab); or the money itself. Here, since Aftab has no funds in his account,
the bank does not owe him a debt and therefore the property appropriated is the
actual money taken from the machine not a chose in action, e.g. Chodorek v Poland
(2017). The only issue is dishonesty. You could also have mentioned fraud by false
representation, namely the implied representation made to the machine that he was
authorised to use it. See Fraud Act s.2.

Part A
QUESTION
Read the following paragraphs and answer the questions that follow
ANSWER THE FOLLOWING QUESTIONS
Aftab, finding he has no money for his bus fare, takes £5 from Erina, his housemate’s
wallet, leaving a note saying that he will repay it on his return. Erina has told him on a
previous occasion not to do this.
When he gets on the bus the driver tells him to pay later as the bus is running late.
Aftab gets off the bus without paying, reasoning that others would have done the same.
Later he spots a basket of apples on the street outside a house. Above the basket is a
sign saying. ‘I have too many apples for my own use. Please take some but leave some
for others.’ Aftab takes 50 apples leaving only three in the basket.
He then goes to a fruit and vegetable shop where he sells the apples to the owner. He
then buys some vegetables, using Erina’s £5 note.
Next Aftab goes to an ATM cash dispenser where he withdraws £5 to repay Erina,
although he knows he has no funds in his bank account to cover the withdrawal.
He returns home and puts the £5 back in Erina’s wallet. Erina sees him do this and gets
angry. She accuses Aftab of being a thief, to which he replies ‘I’m not a thief. I gave you
the money back. That is not theft and anyway it is not dishonest.’
Erina replies ‘Well I think it is, since you knew I wouldn't agree.’ Consequently, in
retaliation, Erina tore the jacket of Aftab. She also deleted some movies from Aftab’s
desktop computer.
i. If you were a prosecutor, regarding taking Erin’s £5, what would be your
preferred charge for Aftab as to offences against property? Give reasons for
your choice.
Regarding taking Erin’s £5, as a prosecutor I would preferred to charge Aftab for theft.
Section 3 Theft Act 1968 attempts to provide a definition of the word ‘appropriation’, by
stating that it is: "Any assumption by a person of the rights of the owner... 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 it or dealing with it as owner". The definition
of appropriation is therefore much wider than just "taking" something. So here
appropriation is satisfied.
Section 4(1) of the Theft Act 1968 sets out a definition in the following terms: 'Property'
includes money and all other property, real or personal, including things in action and
other intangible property. Money means identifiable notes and coins, of any currency.
Personal property usually means tangible items, such as jewellery, TVs, vehicles, etc
(and includes water and gas, but not electricity, information, or corpses). Real property
relates to land (but note the exceptions in s 4(2)).Here 5 pounds can be counted as
property.
Property is dishonestly appropriated it must belong to another in order for that
appropriation to amount to theft. Section 5(1) gives a general definition of ‘belonging to
another’, which goes beyond ownership: 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). The property must belong to another when it is appropriated, but it does not
have to be stolen from the legal owner (Smith [2011]). Here the money was belonging to
Erin. Here belonging to another element is also satisfied.
Now mens rea need to be satisfied. Aftab was dishonest here. Dishonesty can be
determined by Ivey test because section 2 of theft act 1968 does not define dishonesty.
However, the supreme court overruled the Ghosh test in 2017 in a case called Ivey v
Genting Casinos. In the case of Ivey v Genting Casinos the Supreme Court held that
there is now a new test we need to use in order to determine whether a D has been
dishonest. The new test is as follows:
“The fact-finding tribunal must ascertain (subjectively) the actual state of the Aftab’s
knowledge or belief as to the facts and then determine whether his conduct was honest
or dishonest by the (objective) standards of ordinary decent people. There is no
requirement that Aftab must appreciate that what he has done is, by those standards,
dishonest.” Dishonesty is also satisfied here.
The second part of the mens rea for theft is an intention to permanently deprive the
owner of the property. Intention is presumed to bear the same meaning as for other
criminal offences and so direct or oblique intent would suffice. Section 6 of the Theft Act
1968 gives further explanation of this phrase. Aftab intention was to permanently
deprive here.

ii. if prosecution prefers to charge Aftab for a theft as a defence Counsel for
Aftab what would be your arguments?
As a defence counsel I would argue that Aftab is not dishonest here. As Aftab has taken
the money in honest belief and he has intention to return the money. Indeed he has
return the money. S.2 THEFT ACT 1968: The situations in which D would not be
regarded as dishonest under s.2 are:
1. 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 a third party. Aftab rely on this
2. 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. Aftab has taken money
in this belief.
iii. If you are CPS Counsel what would be your counter arguments re ii?
Aftab was dishonest here as Erina has told her before not to take money from her. So
here Erina does not have any consent and also if Erina knows about it she would never
had given consent. Here Aftab has to return the same note if he wants to prove that he
has no intention to permanently deprive. In R v Velumyl [1989] the defendant had taken
money from his employer’s safe and claimed that he intended to pay it back after the
weekend. The Court of Appeal held that he had not intended to return the exact coins
and notes, and that therefore he was properly convicted of theft. (Note: in such cases it
would be far better for the defendant to contend that he was not dishonest given his
intention to replace the money with an equivalent fund. So Aftab might be liable foe
theft.
iv. Regarding Bus fare, what would be your preferred charge for Aftab? Give
reasons for your choice.
As a prosecution my prefer would be making of without payment as Aftab has ride on
the bus and has taken the service from bus but he did not paid money. Making off
without payment is an offence contrary to Theft Act 1978 s3. If a person knows that
payment on the spot is required or expected for goods or services, he commits an
offence If he dishonestly makes off without paying, intending to avoid payment. Here all
the actus reus can be satisfies such as Making off means departing or disappearing
(Brooks and Brooks (1983), On the spot, Without having paid as required or expected,
For goods supplied or services done.
Mens rea: Aftab must Act dishonestly (Ivey (2017]) at the time of making off, he was
dishonest in this circumstances. Aftab Knows that payment on the spot is required or
expected of him (Brooks and Brooks 1983), and Aftab Intend to avoid payment of the
amount due (Allen (1984)). D must intend never to pay. If he intends to pay at a later
date, Aftab does not satisfy the mens rea.
A Person who, knowing that a payment on the spot for any goods supplied or service
done is required or expected from him, dishonestly makes off without having paid as
required or expected and with intention to avoid payment of the amount due shall be
guilty of making off without payment.
v. if prosecution prefers to charge Aftab for making off without payment as a
defence Counsel for Aftab what would be your argument?
As a defence counsel my argument is that Aftab would not be liable from making of
without payment. Because he thought that other would not have been paid in his
situation. So he honesty believed that payment on the payment was not require. The
mens rea for section 3 includes knowledge that payment on the spot is required of
expected, and must coincide in time with the making-off. So, there is no offence under
section 3 if the defendant absent-mindedly walks out of a restaurant, even A he
remembers sometime later that he forgot to pay, but does not return to the restaurant.
At the time, he made off he was not aware that payment was required or expected.
vi. If you are CPS Counsel what would be your counter arguments re v?
Here Aftab might be liable for making of without payment because defence argument is
very weak. Aftab knew very well that he has to pay the bus fare because getting off from
the bus he thought other would have done the same. It means that he has remember.
Here according to Ivey test Aftab would be found dishonest. Also Aftab has no intention
to pay latter.
vii. If you are CPS Counsel what would be an alternative charge Aftab re Bus
fare?
My alternative charge for Aftab would be Obtaining services dishonestly. As this
offence, contained in s.11 of the Act.
D commits this offence if he dishonestly obtains a service for himself or another and that
service has been, is being or will be paid for, but the defendant does not pay for it,
either in part or in full. In other words free services are not covered by the offence. The
mens rea requirements are that D obtains these services by dishonesty (so a causal link
must be established between the obtaining of services and D's dishonesty) and D
knows that the services are not meant to be free.

viii. Re taking apples, what would be your preferred charge for Aftab? Please give
reasons thereof.
As prosecution the offence chargeable is theft. The main issue concerns appropriation
and the point that a taking with the owner’s consent does not prevent an appropriation,
as in Hinks. Lord Roskill in Morris [1983] stated that an appropriation was an ‘adverse
usurpation of the rights of an owner’, suggesting that an appropriation must take place
without the consent of the owner. This conflicted with an earlier case, Lawrence [1972].
Gomez [1993] - the effect of the judgment in Gomez is significant as it has substantially
widened the meaning of ‘appropriation’ within the definition of theft. Appropriation now
bears such a wide meaning, rendering this aspect of the actus reus relatively easy to
prove. The concept of appropriation was widened still further by the case of Hinks
[2000].
ix. Is there any probable counter arguments for Aftab?
As a defence counsel my argument is that guilt therefore depends upon whether the
taking was dishonest, which given s.2 (1) (a) or (b) Theft Act 1968. Aftab appropriates
the property in the belief that he has in law the right to deprive the other of it, on behalf
of himself or a third party. Aftab 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. Here Aftab would not be liable for theft.
x. For selling apples would there be any charge against Aftab? What is the main
contentious issue here?
For selling apple Aftab might be liable for theft that it could be considered to be a
conditional gift, which means the original owner might still retain some rights over the
apples. If this is the case, has the condition been satisfied. Another argument could be
selling the apples cannot be theft if the apples no longer belong to the previous owner
which, given the fact that they were gifted, suggest that they do not.( Williams v
Phillips). The main contentious issue here is intention to permanently deprive.
xi. Regarding ATM machine, what would be your preferred charge for Aftab?
Give reasons for your choice. Be focused on the most contentious issue.
Aftab might be liable for Theft. The issue regards primarily what property has been
appropriated. There are two possibilities: a thing in action (i.e. the debt owed by the
bank to Aftab); or the money itself. Here, since Aftab has no funds in his account, the
bank does not owe him a debt and therefore the property appropriated is the actual
money taken from the machine not a chose in action,( Chodorek v Poland 2017). The
only issue is dishonesty. Dishonesty also can be satisfied by Ivey and Barton test.
Alternatively Aftab may be liable for fraud by false representation, namely the implied
representation made to the machine that he was authorised to use it. See Fraud Act s.2.
Section 2 explains what fraud by false representation means. It is the broadest form of
the fraud offence and the actus reus requires only that a person made a false
representation, and the mens rea is satisfied by proof that he knew the representation
was or might be false, and that he acted dishonestly, with intent to gain or cause loss.
xii. For Jacket tearing what would be the best charge for Erina? Describe briefly.
Erina might be liable for Simple criminal damage. Section 1(1) of the Criminal Damage
Act 1971 states:
Erina without lawful excuse destroys or damages jacket belonging to Aftab intending to
destroy or damage any such property or being reckless as to whether any such property
would be destroyed or damaged shall be guilty of an offence.
xiii. For deleting movies would there be any charge against Erina under the
Criminal Damage Act 1971? If not, what is the reason?
For deleting movies there would be no charge against Erina under the Criminal Damage
Act 1971. Because according to section 10 of Criminal Damage Act 1971 property is
defined in a similar way to property for the purpose of theft. However, it does not include
things in action or intangible property as these are immaterial and so cannot suffer
damage. Here movie is an intangible property.
xiv. Re deleting movies would there be any alternative charge for Erina? Please
focus on the main issue.
For deleting movie an alternative charge could be theft. As the movie can counted as
property. When Erina delete it she has dishonest and her intention was to permanently
deprive Aftab from the movies.