CRIMINAL LAW (LAWS 1012) 2010/11 Lecture handout (3): Theft and complicity LECTURE HOURS 29-36 Theft is a core criminal

offence with over a million thefts over a year. There is incongruity between lay perceptions of offence and its legal requirements. Definition in section 1: contrary to section 1. A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly. The offence contains five elements, each of which must be proved by the prosecution. The first five comprise the actus reus: (i) There must be property (i.e. something capable of being stolen) (ii) That property must belong to another (iii) D must appropriate the property The final two elements comprise the mens rea: (iv) D must intend permanently to deprive another person of the property, and (v) D must act dishonestly. It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit. The definition cannot be improved. It involves the appropriation of property (property crime – property interest); that property must belong to another. The thief must intend to keep the property either for himself or someone else. Dishonest borrowing is not theft. You must intend to deprive the owner permanently. He must do so dishonestly. Appropriation is an assumption of the rights of the owner (section 3) i.e. you are not the owner but you are assuming his rights. Section 3: ‘Appropriates’ (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 it as owner. (2) Where the 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 transferor’s title, amount to theft of the property.

The act of appropriation gives you possession, which you intend to maintain. Theft by way of interpretation by the courts (nothing wrong with the definition): They are very reluctant to let dishonest people go free, and there are even cases where their conduct falls outside definition of theft, there are cases which extend illegitimately the definition of theft and now the key element of theft is not the conduct element; it is a finding of dishonesty, where the essence of theft is the direct deprivation of the proprietary interest of someone else. The key loosening up of theft happened in the House of Lords on the concept of appropriation. The methodology of theft was appropriation; that was the key conduct element. Appropriation is partially defined under section 3 of the Theft Act. You can come by a property honestly in the first instance and later appropriate it. You can appropriate it after initial honest taking. An exception to that is: if you pay money for it and you subsequently find out someone else has a better claim to it, and the seller had no right it sell it to you; to keep the property then is not theft. Appropriation = an assumption of the rights of the owner. That was intended to mean something more narrow than merely coming by and receiving property. E.g. if he gives one of us a watch, that should rule out (leaving aside honesty) any finding of assumption of the right of the owner on our part, because you have not assumed anything, you have just taken or received what you were given. In 1968, theft was originally conceived as theft on its face. Notion of assumption involves something unauthorised, which the owner had not consented to. This concept of assumption was argued in the case of R v Morris. THEFT Theft is defined in s1 of the Theft Act 1968.Further provisions flesh out the general definition. To commit theft D must dishonestly appropriate property belonging to V intending to deprive V of his property permanently. Most instances of theft are straightforward, but some complex issues can arise when ascertaining whether D has stolen V’s property. The Actus Reus The actus reus of theft is the appropriation of V’s property by D. Turning first to the concept of appropriation, we can say that V’s property (his car, his briefcase, whatever) will be appropriated by D the instant that D assumes any one of the rights of ownership that V has with respect to his property. The definition of appropriation set out in s3 of the Theft Act 1968 has been given the widest possible interpretation. *Morris [1984] AC 320

This case involved a common practice in supermarkets of persons taking labels off cheap meat and transposing them over the labels of more expensive meat. They would then put the meat in the trolley to be charged less. This re-labelling involved the assumption of the right of the owner to name his price. Clearly there was an appropriation. The real point (widening of appropriation): when did the theft occur? When was this meat taken for the purposes of the law of theft? The better view (this did not prevail): was that the act of appropriation should be the act whereby the thief deprived the owner of his rights to the goods. On that view, when the store detectives arrested these people prior to presenting the goods at the checkout paying the less amount, the better view was that the prosecution had jumped the gun: they had focussed on preliminary act by way of preparing for theft, but not the theft itself. Because possession with intention to deprive would take place when the meat was handed to shopper at point of payment (sale – clear theft, but not before that) <- that view did not prevail. It was held that here that D was assuming just one of the rights of the owner, not the entirety of the owner’s rights: here the right to price the goods. It was sufficient to do that provided the D meant/intended at that time to physically acquire the goods by some subsequent act. This is a crucially important decision. The conduct, which on the facts is preliminary to the act of theft – becomes the act of theft in its own right. Restrained the appropriation to true assumptions, but broadened the act to things prior to the act of taking goods themselves. This was the first extension of actus reus. *Gomez [1993] AC 442 D and others enter an electrical goods store owned by V. they obtain valuable goods upon the faces of cheques they know to be fraudulent. They offer checks and they receive the electrical goods by way of stealing. This case was an obvious case of an offence now superseded of obtaining goods by deception. If the individuals had been charged with that we would never have heard the case - getting goods on basis of dodgy checks. For reasons we cannot fathom the prosecution charged the matter under section 1 of theft. He said the goods were stolen. Admittedly it’s a technical objection: when the electrical goods were handed by the manager of the store to D and others, D became the owner. He loaded them onto his lorry. On the face of it, he was merely the recipient of the goods that were handed to him. Once the truth was discovered, the contract could have been rescinded for fraudulent misrepresentation and ownership would have reverted, but until that is done a title voidable for fraud is nonetheless a valid title until the contract is set aside. So what the court should have done is to tell the prosecutor that he brought the wrong offence – this is a case of fraud not theft. The Criminal Law Division did not think important.

Here there was clearly such an assumption…[an appropriation may occur even though the owner has permitted or consented to the property being taken”.How could one assume the rights of the owner in terms of section 3. Lawrence v Metropolitan Police Commissioner [1972] AC 626 D. The student’s consent was irrelevant. Nonetheless the House of Lords ruled that the recipient of ownership from another can still assume and appropriate the rights of another. Although the student had permitted D to take the excess money. “That there was appropriation in this case is clear. drove a newly arrived foreign student with little English from Victoria station to an address in London. This is another important extension of the law of theft (it obliterates the line between theft and fraud). This was put to the test in Hinks. a taxi driver. D befriends V. when V conferred those rights on D? The House of Lords ruled that the term appropriation could cover those circumstances. D and not V can be regarded as stealing the property. which requires an assumption of those rights. In truth the legally authorised fare for the journey was approximately 50 pence. the House of Lords upheld D’s conviction for theft. he can steal by the very act through which he acquired that ownership – that is a genuine oxymoron: valid owner/and by the same token can steal the property. a less than perfect title is passed? Second difficulty: how could it be that the property belonging to another was appropriated when D became owner at the time he first took possession of it? House of Lords: For the law of theft the property could be regarded as still belonging to V. she starts by persuading V to give small gifts to her and by the time the dependence . Surely it can never be the case that when a person acquires a completely valid title. That was not insupportable given that in this case. The student had offered a £1 note for the fare. Section 3(1) state that any assumption by a person of the property rights of an owner amounts to an appropriation. *Hinks [2001] 2 AC 241 [2000] 4 All ER 833. If you acquire by fraud and if you deceive someone to confer property on you – you will be a thief and fraudster. [2000] 3 WLR 1590 V was a friendless man who had come into a reasonable sum of money by way of inheritance and lived in sheltered circumstances where D becomes responsible for part of his care. There is one limiting feature: the decision is merely hard to defend and not indefensible . which D said was not enough before extracting a further £6 from the student’s open wallet. He has a low IQ (80) but he is in no sense in the category of a learning disability. In circumstances where the transfer of ownership and the acquisition of ownership by D are concurrent (two sides of the same transaction) for the purposes of the law of theft.this was the fact that a voidable title and not a perfectly valid title for all the time that it was conferred on D. the ownership is regarded as belonging to V rather than D.

property could belong to D even though V obtains valid title (Gomez). He knows that he has the find of a lifetime. appropriation is over. In Morris it was made complete as soon as label was switched. they made a similar finding against Hinks. Any acquisition of property can be regarded as theft provided that D intends to keep the property and there is evidence of dishonesty. She was charged with theft. “Appropriation and the Law of Theft” [2002] Crim LR 445 Once the goods are appropriated they cannot be stolen again by the same person. D and others hire cars in Germany. He had the capacity to understand what he was doing and however foolish he was he was aware of all the material circumstances. D is an expert and knows that once the painting is cleaned it will be worth thousands of pounds. He had not been deceived or unduly pressurised. The time-frame of appropriation Atakpu [1993] 4 All ER 215. What is the status of the transaction? This example was put in an argument. D is an art dealer and visits a country antique store. The contract is perfectly valid.deepens she ups the ante. The prosecutors wanted to make the argument that the . a creation of deception. D says £1000 is a bit steep but secretly he is happy to close deal at £850. So long as acquisition of ownership coincides with divestment of ownership. First part of appropriation is concluded. Their intention was not to keep to the terms of hire but to drive the cars to the UK and once they were here they were going to ring the changes (number-plates etc). In the course of the argument in the case. It was assumed and not challenged and the case is based on this assumption that the gifts of money were perfectly valid. By the end she takes him down to the building society everyday and he is withdrawing money up to the limit he is allowed. Shute. That even though she became the owner of property through valid gift made by V she under criminal law stole that property if one could make a finding of dishonesty. and there is a major obstacle. The English prosecutor wanted to charge theft in England (he cannot prosecute German thefts). And by the same token. He sees a painting in dreadful condition. What is this a replay of? Smith v Hughes (oats case) provided there is no deception or undue influence and it is not a mistake of kind. Once this stage is reached. It continues until the act of possession is effected. She takes him for everything that he has. The owner has no idea about the problems of painting. House of Lords: it would be valid in the civil law but at one and the same time would constitute an act of theft on the part of the purchaser were a jury to find his conduct dishonest. it was said if you make this theft then what limits are there on this offence. This was an exploitation of friendship. Appropriation is a preliminary act and can continue until it is made complete and constitutes an act of theft.

theft was of tangible property. Before we had larceny . a person who is not in . He was part of the process and paid ten pounds for the privilege to be allowed to steal. In Hale there is a struggle and it was held that appropriation was complete as soon as D got his hands on the property. Theft is more circumscribe than the general offence of fraud. What D does is invite E and others round to the flat and offers to sell all the contents. Land can now be stolen and can only be stolen by someone who is a seller or manager of the property on behalf of someone else. Land under section 4 can also be subject matter of theft. He says he was a joint thief rather than a handler. and as far as D is concerned E drops out of picture after receiving £10. The Court of Appeal had none of that and said the matter must be analysed on the different inference of D and E. and he was rightly charged with more serious crime. which was transportable property. That era is over. When is the appropriation complete? 2 examples: Hale (1978) 68 Cr App R 415 This was a case of robbery. Force was used in order to steal even though the initial act of appropriation did not involve force or threat. Section 4. To be a robber you have to use force or threaten force at the time of the theft in order to steal. The argument failed on the basis that they were completely stolen at some point in Germany. Contrast this with: Pitham (1976) 65 Cr App R 45 D is looking after V’s flat and its contents. The process of effective appropriation was complete – they were in complete possession and control of the cars in Germany. which is a violent theft. There may be some form of fraud. It is about the acquisition of property so the benefit on D is that he must receive proprietary gain. it is a proprietary crime.whole process started in Germany and did not become effective until the changes were rung in England and those acts could be theft in the jurisdiction of England and Wales. and the process of appropriation was still ongoing until D had uncontested possession of the item. E is charged with handling stolen goods (a more serious crime than theft – 14 years which is more than theft). he can steal that land against the beneficiaries of the trust. Also. So if a trustee can raise land to a third party in breach of trust. which defines property that can be stolen makes all forms of property the subject matter of theft that includes forms of intangible property (bank accounts). The theft was over. it is a threat of violence directed to the acquisition of someone’s property. The matter to be stolen is of course property – theft is not a pure economic crime. Robbery is not just gratuitous beating up. D points to the wardrobe and says ‘it’s yours for £10’ and E takes the wardrobe after paying £10 and walks out. E contests this and says appropriation was not complete until the goods out of house.

but it simply takes V past his overdraft limit without making the best of a bad job. Prima facie. a company director of V Ltd. it would still enforce the debt.000 should the bank rely on its contract to its customers. D does commit theft. wild plants and wild creatures. As we speak that bank account is in credit to the tune of £10.000. Intangible property Bank accounts What first of all is the property in a bank account? V is a company who has the account in question. Lets assume V Ltd is overdrawn by £2000 but has an agreed overdraft to the value of £10. D obtained by deception. V’s account with B is a chose-in-action that can be stolen and according to the Privy Council in Chan Man-sin. In particular. The logic is clear: if D has drawn check on V’s accounts in a dishonest way. Suppose D. “Money in the bank” is a complete misnomer. Picking mushrooms is exempt from theft. It may be said that this reasoning is debatable. It is that right to sue the bank that is the intangible property. V Ltd owns property to £8000 in the form of the right to enforce this overdraft agreement. Appropriations of intangible property merit special discussion. The same applies to overdrafts. to draw cheques on the account. unless the creatures are rendered to captivity. is the right to sue the bank for the value of £10. What the company has when it is reduced to its essence.lawful possession of the land (not a tenant) and who comes on to the land and severs parts of the land from the property is guilty of theft. Property It can take tangible or intangible forms. nonetheless there would be no theft against V unless V had a credit balance or the theft diminished his agreed overdraft facility. providing it is not done on commercial basis. forges a check on V’s account with bank B. Wild creatures (poaching) cannot be subject of theft. which can be stolen. The Theft Act 1968 section 4 brings all forms of property within the purview of theft although there are restrictions imposed on the ambit of theft in relation to land. he stole nothing – at least. The property appropriated may take an intangible form such as the appropriation by D of the credit balance in V’s bank account. D appropriates that account when he assumes V’s right as owner. . If V has suffered through the fraudulent machinations of D and ends up as a consequence more indebted to its own bank than would otherwise have been the case. To the bank there will have been no theft on the power of D because he would have acquired no property. nothing from V.000. The company does not own any money.

Bentons. Chan Man-sin may be contrasted with Kohn where D had the authority to draw cheques. it is possible to distinguish the facts of this case from those of Williams. a dishonest builder. The Court of Appeal quashed D’s conviction for theft on the ground that D’s conduct did not amount to an appropriation of the fund belonging to the Vs. a predatory great-niece of V1 and V2. and against the wishes of the Vs. in the later case of Briggs the Court of Appeal though otherwise: D. NO property right of V’s was harmed by D. although the law on this point is problematic.although the bank account was clearly property belonging to V. and in defence of the current law. it is arguable that nothing done by D affected or was even relevant to the account. which V had paid by writing a cheque that D presented to V’s bank. The analysis is different where the check is not a nullity. Thus D was properly convicted of theft from the company by appropriating its bank account. The big house was sold. it . If that is right. The real wrong was obtained by deception of the proceeds of the cheque – but the victim of that crime was bank B not V. it is not without justification. and so upheld the conviction of D. which duly debited V’s account in D’s favour. but as the judgment in Briggs was given unreserved. by dishonest conduct. The forged check was a nullity. in law he no more dealt with any of the accounts held by anyone else at the bank. who had presented V with a dishonestly inflated bill. Moreover. induces V to debit her bank account in D’s favour. as we saw earlier. In that case. so that the company’s bank account was rightfully debited. is where D. the Court of Appeal decided this could be appropriation. why should V be treated as a victim of theft? On the other hand. In Williams. and cause an effective loss to V. and the proceeds of sale held by a firm of conveyancers. nothing more. and without reference to Williams (or indeed to Gomez or to Hinks). Another difficult case. which will remain in place. However. ‘helped’ the V’s to sell their big house and buy a little one more suited to their current needs. He abused that authority by withdrawing money for personal gain. and currently in the hands of Bentons. it may be argued that by pretending to deal with V’s bank account. Although D pretended to deal with V’s account. With ingenuity. until the forgery is discovered (if ever). D then arranged for the victims to get Bentons to transfer the necessary slice of the proceeds to the vendors of the little house. So. the cheques were valid and not mere forgeries. induced the vendors of the little house to convey it to D instead of to the Vs. V will still normally suffer the disadvantage of a wrongful debit against their account. D ‘assumed’ the right of an owner over the account and therefore appropriated it within section 3(1).

It is artificial but acceptable. Chan Man-Sin is likely to be followed. But here the forgery is successful – D effects these forgeries which make him out to be an authorised signatory for V’s account for the banks and the account is debited. Ignore the piece of paper. In legal terms a forgery is a complete nullity and does not affect the interest of any party. He was an authorised signatory for the company so he could draw checks on the company’s account for the legitimate purposes of the company. Once the forgery is discovered. This case was taken further in: Chan Man-Sin [1998] 1 All ER 1 The difference here is that D was not an authorised signatory but made forgeries (forged checks) indicative of authorisation. That is an argument that seeks to prove too much and it is perfectly possible that forgery will not be discovered and Vs account will not be replenished. He is siphoning off funds from the company’s account to others. The difference being that as Kohn was an authorised probably better seen as an aberration. The difference with a forgery is that a forgery lacks any authority to debit the account. The courts were right not to draw distinction between abuse of authority and forgery if D gets access to V’s credit balance. Applying Kohn and other cases this can be seen as a straightforward case of theft. Williams [2001] 1 Cr App R 362 (see above) Kohn (1979) 69 Cr App R 395 D was a director of V ltd. V had to grin and bear it. the debits of V’s were legally valid. whereby through medium of forgery D could get access to V’s trade and account. Situation: D is acting dishonestly and obtains a check made out in his favour by V. . If such a case were to arise today. He had ‘direct access’ to V’s credit balance and he stole that balance or part thereof the moment that the cheque that he drew caused a debit of V’s account. but says he wants some money upfront so V makes a check and hands it to him. He draws the checks in favour of other companies in which he has a personal interest. Given D is dishonest when can we say there is act of theft perpetrated by him against V? In Williams: Court of Appeal: when the check is paid in and processed by the bank and causes a debit in V’s account – at that point in time D has stolen V’s property. D promises to do work at some future point in time for V. This is a tad artificial on behalf of the Court of Appeal for the purposes of appropriation: D could not say he has appropriated anything at that point in time and the appropriation is physically done by the bank employees they are regarded as the instrumentality in carrying out the theft on behalf of D. D would be guilty of fraud under the Fraud Act 2006. acting within apparent authority. Legal purists: this was an incorrect application of Kohn. V’s account will be fully restored.

Most of the cheques had been when C’s account was in credit or within the authorised overdraft limit. Outside patents. The decision in Briggs is incompatible with Williams. If an account is overdrawn beyond its agreed limit.Court of Appeal in Briggs: Briggs [2004] 1 Cr App R 34 This case involves obtaining a check by dishonest means and then paying it in. You have to choose Williams in terms of policy as it is a better policy decision. . In these cases D appropriated C’s chose in action. and in Briggs there is no reference to Williams (counsel for the prosecution’s fault) so the Williams decision is authority for checks dishonestly obtained and then paid into an account. the cheque was drawn when the overdraft was beyond its authorised limit. There is the paper. In this case. He has a shrewd idea of where the engineering exam draft paper might be. The Court of Appeal held that in the last situation. Navvabi [1986] 3 All ER 102 D was not convicted of theft in respect of every cheque. Diversion: though he put the paper back (not focussing on the information) and in essence borrowed it. He breaks into the faculty office and finds it. however. the bank has no legal obligation to meet the cheque. copyrights and trademarks and confidential information of economic value acquired by person in position of trust. did he have an intent to deprive the university permanently in terms of section 6 of Theft Act 1968? If the prosecution instead of going to information theft had focussed on the artefact and said it was the equivalent to taking it outright – section 6 should be looked at. the criminal law has rightly refuse any invitation to regard unauthorised accessing of information (computer hacking offences etc) by hackers as acquisition of property. Confidential information When does information become property? Effectively only when it can be patented or if it falls under a copyright or it is information of a kind that be trained (?). There is an important strand of equitable authority that has extended the legal conception of proprietary information to cover information received by a trustee or person in the position of a trustee where that information has economic value – industrial espionage. The Court of Appeal refused to find theft. This was not argued. on the basis that there had been no appropriation on the part of D. an engineering student. He photocopies the paper and puts it back where he found it. This would be easy case of theft had he simply taken the paper and went home with it. Hence C had no chose-inaction against the bank and there was nothing for D to steal. Example: case involved a draft-exam case below: Oxford v Moss (1978) 68 CAR 183 D is a student of Liverpool University. there was no theft.

those rights. This subsection shows how it extends property to legal and equitable property. or just trade secrets? When is information sufficiently confidential? What if the information is a matter of public interest? Hammond “Theft of Information” (1984) 100 LQR 252 BELONGING TO ANOTHER The property must belong to another. Thieves even have a current right to possession (it is an illicit right but still a right). Policy argument: extending the law of theft to include appropriation of information raises difficult questions concerning the property scope of protection. 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). (see Turner) (Theft by an owner under section 5(1)) Bonner [1970] 2 All ER 97 . the information should be regarded as a species of property belonging to the university. In some circumstances even an owner can steal his own property. There was no extrapolation of theft in this delicate area of access to information. Should all confidential information be protected. Section 5(1): Property shall be regarded as belonging to any person having possession or control of it. Property belongs to you in terms of section 5(1) not merely if you are the owner of the property but it also extends to rights of possession and control i. The Theft Act 1968 s5 (1) provides that any particular item of property belongs to any person who has possession or control of it and/or has any proprietary right or interest in the property. The divisional court dismissed the prosecution’s case and stated that it is not property stolen under the Theft Act. Paradoxical but true: Sometimes the very owner can steal his own property if for the time being someone has a superior right to possess or control that property. To be the subject of theft. which may be enjoyed by persons who are not the owner of the property. Significance: mere information. Civil law should be given that area and not criminal law.What was argued: given the nature of this confidential information and the fact that it was compiled for a specific purpose which was undermined by D’s conduct. even a trade secret does not qualify for protection as intangible property.e. the property appropriated must belong to another.

He merely exercised proprietary rights to which he was entitled (albeit in order to evade a debt). being a man of resource was not minded to pay for repairs. it has been ruled that a partner may be convicted of theft of property belonging to the partnership as was the case in this case. He checks the car is ready and breaks into the garage and drives away his car. vis-à-vis T. If D and V are co-owners of a chattel and D dishonestly sells the chattel. D. by excluding form section 5(1) any proprietary interests inferior to those of the defendant. The gist f theft is interference with someone else’s property rights. He is charged with theft of his own car. (Theft by an absolute owner) In principle. the car belonged to D and D alone. D then recovered his car from the police station. there should be one absolute exception to the general proposition that property may be stolen from anyone having a proprietary interest therein. Do is guilty of theft. According to the Court of Appeal. Turner (No 2) provides appellate authority to the contrary. which is not working. If one had focussed on the lien/right to possession then this was an easy case of theft because . repairers have a lien (a right to possession of an object until you are paid). By contrast. A case which illustrates this exception is Meredith: D’s car had been impounded by the police and removed to a police station.g. convicted. Turner (No 2) [1971] 2 All ER 441 D owns a car. ‘there is no ground for qualifying the words ‘possession or control’ in any way” i.e. He takes it to a garage for repair and agrees a price. D was acquitted of theft. reasoning that even as a mere bailee at will. D (the owner) surely cannot steal the television by retaking it from V. Without consent. the garage had a possessory interest in the car (maintainable against everyone except D) sufficient to qualify for section 5(1). hence T can steal it from V and D. He leaves the garage without his car. The decision is absurd. If no lien existed.Another standard way in which an owner can commit a theft is where there is more than one owner. Similarly. the television belongs to both D and V. upheld on appeal. This is because V has no property right in the television maintainable against D. Vis-à-vis D. the television belongs to no-one else. Consequently the Court of Appeal was oblige to consider D’s appeal on the footing that there was no lien. Exception: E. The trial judge directed the jury to disregard the lien. Although this may seem obvious. D did no such thing. after the trial judge ruled that the police had no right to retain possession of the car against the owner. The Court nonetheless upheld the conviction. It should have been a straightforward case because under the civil law.

Harm and Theft” (2003) 23 Legal Studies 402. It is the facts of Turner that should govern it. which reconfirms its retention cannot be regarded as an act of theft. Possession. “Stealing One’s Own Property” (1999) 115 LQR 372. Hinks [2000] 2 AC 241 The House of Lords decided that D stole from V even though the gift that V gave to D (the object of the theft) was a valid gift and in civil law D became the owner of the property as soon as he took possession (the gift is perfected). This may be done physically. Problem is that the Court of Appeal confirms the conviction by approving the trial judges’ refusal to look at the civil law – ‘I’m not going to look at whether the repairer had a right to possession against owner. clearly the repairer had the right to possession against the owner until he was paid. there are three types of cases in which the occupier acquires a better title than a finder. LOST AND ABANDONED PROPERTY (who does it belong to?) Has the owner relinquished all his interests in it? However dishonest the person is. ownership of items vests in the first person to take possession of them. Once abandoned. Beatson and Simester. that if you have come by property honestly and you are the owner then any subsequent dishonesty in relation to property. In general. if he picks up a piece of property. Divestment and acquisition were part of the same contemporaneous act – and from that point of view you can curtail Hinks. To try and curtail the effects of Hinks. the occupier will often acquire possession even before the chattel is found. In textbooks. This is slipshod judging. I will say V was in possession and D acted dishonestly and that is good enough’. This can be seen in Woodman. It must still be the case. There was no proprietary interest to take from the repairer. which no longer has an owner.the owner had no right to possession and car belonged to the garage owner at that point in time. it is straightforward on the facts. it is agreed that if you set aside the lien. in turn. Where chattels are abandoned on occupied land. Hinks gives rise to concept that you can steal property that belongs to you. it is said that D achieved ownership at the very point at which V lost ownership. however. The Court of Appeal agreed with that and confirmed the conviction of theft. . he can no longer steal. is normally taken by intentionally exercising control over the items. Bogg and Stanton-Ife “Protecting the Vulnerable: Legality. then the repairer had no legal right to possession as against the owner.

X comes onto the land to take away the scrap-metal. subsequently abandoned – by their former owners. the golf club as occupier of the land. or where the land is open to public access) by (b) manifesting an intention to exercise control over the land and the things thereon. The Court of Appeal upheld D’s conviction. Obviously if the item is found by a visitor inside D’s private home. V sells to X all the scrap-metal on the land. D has a superior title since the public does not have general access to the home. it belongs to the occupier or owner of the land regardless of who finds it. In Hibbert v McKiernan D trespassed on a private golf course and dishonestly took eight golf balls. no longer had any use for it. it was found. D is charged with theft of the scrap metal and he makes the point that V the owner of the land.1. Even if the balls had truly been abandoned (doubtful). Where the item is found loose on the ground. D was a trespasser whose presence on the course was excluded. 2. ownership would have reverted to D as occupier of the land. Even if ownership of the remaining scrap had been abandoned by B. In Parker v British Airways Board [1982] the Court of Appeal held that Parker’s rights as finder could be displaced only if British Airways could show as occupiers an obvious intention to exercise such control over the lounge and things in it that the bracelet . 3. in priority to the the employee-finder. Answer: The scrap metal was still the property of V and the test to be used was did V intend to exclude a person like D from taking that property. the employer ahs a superior right to possession of that thing. ring-fence the land and land lies fallow. Woodman [1974] QB 754 The owner (a company) sold all the scrap-metal on his land. if something is found loose by an employee on the employer’s property. Afterwards. if the thing found is embedded in. where the premises are open to the public. the occupier can acquire a prior title either by (a) restricting public access to the land upon which items lie. D and the owner. the occupier’s position is weaker and she gains prior title only if she has (b) manifested an intention to exercise control over the things that are or might be on the premises. They don’t want trespassers. Less straightforward cases of (a) are found in Woodman and Hibbert v McKiernan. It is not a case where someone like D was allowed free access to take it – there was an intention to exclude him from the land and from taking property. under or otherwise attached to the land. since D had manifested an intention to exclude trespassers by fencing off the site. On the other had. The Divisional court held that D was rightly convicted of theft from the golf club. had a better possessory title than D. What D did is to come onto the land and take away the rest of the scrap-metal that X could not be bothered with. and once that intention is established the property still belongs to V whether he has any use for the property or not. which had been lost – and.

Was he guilty of theft when he absconded with the money? House of Lord: when the investors gave in money. Parker v British Airways Board [1982] QB 1004 Legal and equitable interests are can be the subject of theft. There may be circumstances where V transfers money or property to D and the effect of that transfer is to make D the legal owner of the land. Clowes the defendant guaranteed that only a limited range of investments would be purchased and he guaranteed the minimum rates of return on the investment. On the other hand. D makes himself by agreement with the others. Falling onto either side of the line can be a close call. civil courts expand the boundaries of what interests may be considered equitable property.was in their possession before the claimant found it. He said: ‘if you invest with me you will do better than 10% and I guarantee . thereby expanding the range of things that can be stolen. A simple example would be a trust fund set up for a particular purpose. but in the circumstance where V retains an equitable proprietary interest in the fund. but when we come to theft he may not be guilty of theft if the effect of the transaction was to make D the full owner of the cash paid into his account. Whether D has committed theft on those circumstances will depends on whether D was not only the legal but also the full beneficial owner of the money in the account. He claimed to be running an investment fund promising high returns. and it did not carry out searches for lost articles. is to make D the legal owner of the money – it is his bank account (informal arrangement – no trustee. because those paying into it retain an equitable proprietary interest in the money.the illicit use of funds to create the appearance of a thriving investment fund. Equitable Interests The proprietary rights and interests in property referenced in s5(1) include equitable as well as legal entitlements. it will be theft if the effect of the transaction is that D (legal holder of the money) is holding the money on trust. How this miracle was created was that he was using deposits from investors as the means for paying dividends . the airline’s instruction to staff for dealing with lost articles were not published to users of the lounge. Clowes (No 2) [1994] 2 All ER 316 (dishonest appropriation – diverting funds for their own use) He was running a Ponsby fund. If there is a trust. then D will steal with the money. On occasion. executor of the fund. an interest-bearing bank account). D bails on his friends and clears out his bank account and disappears. just paid into bank account D has opened. Monthly payments are made to D and D pays them into bank account. He might still be in trouble of fraud offences. On the evidence there was no manifestation of such an intention as would give the defendants a right superior to that of the claimant. It may be the effect of that. See Clowes.

your rights are personal and not proprietary against the managers of the fund. a bribe or commission paid for the misuse of his position will hold the money on constructive trust for his principal. The possibility that a secret profit made by an employee can be stolen was doubted by the Court of Appeal in Att-Gen’s Ref (No 1 of 1985) [1986] QB 491. the question was whether he was also a constructive trustee of the money received. and. In AG for Hong Kong v Reid [1994]. What emerges from that case is that a fiduciary who receives. Where the employee is sufficiently senior to be regarded as a fiduciary. That receipt falls within section 5(1) and can therefore be stolen. The Court thought that such circumstances would not give rise to a trust. I. The defendant was manager of a public house and an employee of the brewers to whom the house was tied. If certain fact are proved then… The normal civil law approach. It was common ground that D was a fiduciary. that it would not be such a trust as falls within the ambit of section 5(1). J C Smith at (1994) 110 LQR 180 . However. sought to sell beer purchased privately from a wholesaler to supplement his profits. for himself. it appears that any bribes she takes will be subject to a constructive trust. That was mentioned the case below. D had accepted bribes in order to obstruct prosecutions while serving as a senior Crown prosecutor in the Colony of Hong the 10%’.e. where there can be a sudden change in the law which makes certain interests proprietary and equitable interests. The House of Lords decided that because of the restricted nature of the investments and the guaranteed return. even if it did. You have a contractual right to dividends and a contractual right to withdraw your investment. What constitutes equitable property is always in development in civil law. Typically when you invest in a fund. Clowes – the case should never be resolved against the accused unless the civil law is absolutely clear on the point. the question whether an employment situation will necessarily give rise to a fiduciary relationship was not considered. At issue was whether the Hong Kong government held a proprietary interest in bribes received by D. that sort of thinking should not occur in criminal courts. in contravention of the terms of his employment. since it was conceded that Reid was a fiduciary. They should never rehearse and examine the civil law on the way to development and enlargement of it. AG for Hong Kong v Reid [1994] 1 AC 324. this then has the features of a trust fund and consequently it was found that the investors retained an equity in this fund which had the convenient result of finding Clowes guilty of theft form investors because they had a proprietary interest in the fund. they just receive the civil law.

the civil court could then resolve it even if it would enlarge notion of equitable property. This is the right way the civil law should approach it. The Court of Appeal: though there are civil law arguments that suggest that these profits were held on trust for the employer. the difference between bribe and secret profits are not strong enough and both belong to employer. because there is an affinity between taking a bribe and making a secret profit? It may be in civil law. overturning many cases to the contrary and as Reid is a Privy Council opinion then after that decision it is okay for bribe takers to also be prosecuted for theft. they are taking the approach that was decided. That would throw open Att-Gen’s Ref (No 1 of 1985) [1986] QB 491– does a secret profit belong to the employer. we will resolve it in favour of the D. there were arguments the other way and that it would anticipate in a civil court. it saves work and is straightforward. Section 5(3): Where a person receives property from or on account of another. without going into the substance of the argument. A common situation governed analogous to equitable interest but distinct by statute is where money is handed over to persons for a defined particular purpose (section 5(3)).To take a bribe is not merely the offence of bribery but the bribe belongs in equity to D’s employer and that was decided in AG HK v Reid. When section 5(3) is clearly on point. courts following Reid. ________________________________________________________ Property received on account. . D is obliged to use the money in a particular way. and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way. If that is the case. section 5(3). On the terms of their employment they could only sell the food of their employers. They are not ignoring the civil law. Bribes belong to the employer is not the position. Court of Appeal: we will resolve the civil law in favour of the D. Example of the approach civil law should take in AG for Hong Kong v Reid [1994] 1 AC 324. *Att-Gen’s Ref (No 1 of 1985) [1986] QB 491 This case is about pub managers selling their own food on the licensed premises that were managing. In the words of the Act. the property or proceeds shall be regarded (as against him) as belonging to another. relieves recourse to any analysis to civil law and simply states categorically for the purposes of theft law that the money handed over for a particular purpose is deemed still to belong to D and can be stolen by him. D takes money and the money is designated for a particular purpose. Was this theft? They made this money on the side and did not account for it to the employer. J C Smith at (1994) 110 LQR 180. A criminal court should wait for the civil court to decide the mater and not enlarge the civil law themselves.

It was held in Hall that this creates a creditordebtor relationship. and a sequence of payments are made. if s5 (3) applies the money can still be stolen by D. D is charged with theft of the money he received and under section 5(3) the question was whether this money was received for a particular purpose. collecting boxes typically taking coins and sometimes notes. Even if the effect of the transfer of money from V to D is to make D the legal and equitable owner of the money at civil law. he then failed to supply the tickets to the clients. in the absence of special arrangements imposing on him an obligation to deal with clients’ money in a particular way. *Hall [1972] 2 All ER 1009 D was a travel agent and V is the organiser of Club America where he was trying to organise and get discounts on group travel to America. So he goes to the travel agents again and a schedule of payments is agreed and the date for the travel is agreed. The money was simply received as forms of graduated pre-payment and as paid into a general business account it merely established a debt between D and V. There was a series of cases of how people who used that modus operandi had not received the money for a particular purpose and so they were not guilty for theft when they used the money for their own purposes (Wain). He received money as full legal and equitable owner and section 5(3) did not apply as it was not particular. and the answer from Hall was negative. The effect of Hall had a disturbing effect on charity funds. and may use the money received from customers as he chooses. The trip never materialises. In that case. Wain [1995] 2 Cr App R 660 .This gave rise to difficulty in Hall. he had no duty to account and therefore did not commit theft. Although his conduct was ‘condemned as scandalous’. The fund was not ear-marked. A travel agent generally receives money from customers in return for an obligation to provide the ticket. The Theft Act 1968 s5 (3) provides for situations where D receives money (or other valuables) from V under an obligation to V to deal with the money in a particular way. D still keeps taking these payments when he realises that his company is in a very bad way and it is unlikely that he will be able to make the payment to the carrier in time for the trip. What the travel agent then does when he receives the money. is that he pays that money into the firm’s general account. D had received deposits for air tickets and paid the money into a general trading account. If the money had been paid into a special bank account and separated from the general cash-flow of businesses then the outcome would have been different and section 5(3) would have applied. Some people pay a cheque and send it off to a charity.

In Wain. So section 5(3) applies. hence under section 5(3). D may have no entitlement to the money V has paid to him because V has mistaken him for someone else. or he may miscalculate what he owes D and gives him an excessive amount. The charitable proceeds were indelibly earmarked with a charitable purpose and even though they change their form.One standard application of section 5(3) is to charity collectors. D is not entitled to it at all or entitled to less: the position under section 5(4) is that ‘to the extent D must restore the value of the excess to that extent the money or property transferred is deemed still to belong to V). the money belonged to the charity for the purposes of theft. they cannot be used for any other purpose. Facts: There was differentiated payment to a business in a general account and there was payment to a charity and it was said that even though the method of payment need not involve the coins and notes collected. Illustration of case that section 5(4) reverses: Moynes v Cooper [1956] 1 QB 43 Property obtained by mistake V may transfer money or property to D under the influence of some mistake of fact or law. 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. the result of a mistake on a contract or transfer can vary and be different. Subsequently. For instance. Situations where a payment is made by mistake V pays over a sum of money to D because he has got D’s identity wrong. Section 5(4): 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. and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds. At civil law the impact of . D raised money from the public by conducting charitable discotheques and other events. he failed to hand the money over. Or it may be that that D is the right person yet he receives an excessive amount from V because V has miscalculated. Under the civil law. To short circuit those problems s 5(4) provides that money will belong to another if it was paid to D by mistake by V. so he spent it. the process would always involve acknowledgement that the notes and coins were collected for charity and could never be used for any other purpose. D’s conviction was upheld by the Court of Appeal on the basis that he was obliged to retain the proceeds of his fundraising for the benefit of the charity.

mistakes of the latter variety are covered by section 5(4) and Moynes would now be guilty of theft. Sometimes the mistake nullifies the transaction and V remains the owner of the property he has transferred to D. Hence title in the whole amount paid passed to D. She had rung in sick but had been paid the full amount. He was obliged to return the excess (it was a debt) and to that extent the money was deemed to belong to the employer. The employer had no proprietary claim to the money in D’s hands. since the passing of the Theft Act 1968. Reservation: the obligation to make restoration has to be a legal one. The prosecution against D failed because the effect of the over-payment was merely to create D and the employer V. This was once a leading case of larceny and now it is one of theft. merely a personal claim in restitution against D for the money had and received. Because of section 5(4) this is theft. At other times the impact of the mistake may be less drastic and D will become the owner of the property he has received despite the mistake made by V. the property is regarded as belonging to V. for the purposes of the law of theft. She would have committed theft when her bank account was credited with payment. and D could not be convicted of larceny. if she never intends to make restoration at that point of time. Although the employee was thus overpaid. Whenever the effect of the mistake is to place an obligation on D to make restoration to V in whole or in part of the property or its proceeds or the value thereof. This is spelt out in terms in section 5(4). He collects his wage packet and the wage clerk hands over the notes packet and D realises that they have forgotten the sum (advance) and paid him the full pages. The object of s5 (4) is to avoid some of these complications. notwithstanding that he in no way infringed his employer’s property rights. It did not affect the fact that D became owner of the excess money. The section is putting an obligation on you to alert to the mistake that has been made.mistakes on the validity of transactions varies. the clerk intended to pay the amount of money actually paid. This argument was made in Gilks. However. Modern variant: A-G’s Reference (No 1 of 1983) [1985] QB 182 A-G’s Reference (No 1 of 1983) [1985] QB 182 A policewoman looks at her payslip informing her of payment into her bank account and sees that they have paid her for a shift that she did not work. . payment is made into her account and she does nothing. (Theft of an interest protected by section 5(4): where there is an obligation to make restitution) Moynes v Cooper [1956] 1 QB 439 D had asked for a sum (advance) of his wages. Facts: a wages clerk miscalculated the amount due to D. To apply section 5(4) to the facts you have a straightforward conviction of theft for excess. The policewoman was guilty of theft by omission.

dishonestly. By virtue of section 5(4). Moreover. it did not survive appeal. .The effect of section 5(4) can be seen in A-G’s Reference (No 1 of 1983). because it was a gaming transaction. The defendant in Moynes is a mere debtor. This is not a case where D has done anything wrong to induce V’s blunder. section 5(4) effectively makes personal liability the stuff of debt. but it was held that an unequivocal moral appeal to make restoration would suffice. V mistakenly gives D an unjustified windfall. but it does not necessarily follow that the criminal law should be available here as a creditors’ device. it is debatable whether the defendant’s behaviour should be criminalised under any other description either. which loses. The money was still deemed to belong to the bookmaker. He pocketed the money and was prosecuted under section 5(4). If. no legal obligation to make repayment arose in Gilks because the overpayment was in virtue of a wager. A punter. Whilst the mistake in this case was of the same type as that in Moynes v Coopper. Sometimes such circumstances warrant a civil law remedy. *Gilks [1972] 3 All ER 280 The obligation must be a legal one and not a moral obligation to make repayment/restoration. prima facie his proper remedy is a civil law claim in money had an received. This surely. It is not obvious that the criminal law should wade to his rescue. that sum was deemed for the purposes of theft to belong to the employer and so could be stolen. there was a legal obligation upon D to repay to her employer a sum equivalent to the overpayment once she discovered the mistake. By mistake. Taking studious advantage of another’s unilateral mistake is not normally the stuff of legal intervention. there was no indebtedness created by the overpayment by mistake and as a consequence D could not steal his own money. The conviction is quashed on the ground that the obligation in question was merely moral. Thus Gilks would not fall within the ambit of section 5(4). she was overpaid on one occasion. had her salary paid by direct debit. Notwithstanding that she owned outright the content of her bank account. through V’s own error. a police constable. D. Although the decision in Moynes was much criticised at the time. the Court of Appeal ruled that she would be guilty of theft. On the assumption that she subsequently decided. It is not spelt out in section 5(4) but the argument was made in Gilks. its undoing by section 5(4) seems something of an overreaction. D puts a bet on a horse called Fighting Taffy. is the misuse of the concept of theft. not to repay the sum. and was entitled to draw upon it as she wished. but in the same race there was another horse called Fighting Scott and the bookie pays out to D as a win confusing the two fighting horses. which the courts will not enforce.

the plaintiff bank paid $2 million by mistake into another bank for the account of the defendant. The View to gain immaterial Theft Act 1968 s1(2): it is immaterial whether the appropriation was made with a view to gain. Since the drafts had been drawn by the bank in error. Applying Chase Manhattan Bank NA v Israel-British Bank (London) Ltd. prior to the payment to the recipient bank. Dishonesty This is only partially defined in the act. By error a child’s bank account was credited with £286. the bank retained an equitable interest in them. If such an analysis is valid. holding that a person who pays money to another under a mistake of fact retains an equitable proprietary right or interest in the money. section 5(1) would appear to be applicable. Goulding J ruled in favour of the plaintiff. Often a willingness to pay precludes dishonesty. . intending to deprive someone of their property right. there was no existing equitable interest. Hence for the purposes of section 5(1) they belonged to the bank. the Court of Appeal held that D stole the drafts from the bank. you can still be guilty of theft. In Westdeautsche Bank v Islington LBC. This is a controversial civil law development. the child’s guardian. The willingness to pay is immaterial. is enough to make you a trustee of the property on behalf of the person who made the mistake. which then went bankrupt. which makes D a trustee of the excess to V. The plaintiff sought to recover the overpayment.There are two civil cases in terms of section 5(4). procured the child to authorise the issue of four banker’s drafts in D’s favour. The Mens Rea Acting/appropriating. dishonestly. or is made for the thief’s own benefit. Both of these cases are of doubtful authority. until it is clear that the civil law is resolved and settled on that point. If that is correct the Gilks decision may now be regarded as wrong because they are saying an affected conscience which Gilks would have had. Chase Manhattan Bank NA v Israel-British Bank (London) Ltd [1981] Ch 105 Whenever a mistake is made and the recipient is aware of the mistake (this case involved overpayment into a bank account) that affects his conscience and as a result a constructive trust arises.000. D. This was the conclusion of the court in Shadrokh-Cigari [1988] Crim LR 465. as opposed to a purely personal right. In Chase Manhattan Bank NA v Israel-British Bank (London) Ltd. Lord Browne Wilkinson stated that Goulding J’s decision was ‘based on a concept of retaining an equitable property in money where. but sometimes it does not. Criminal courts should not follow that line.

(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. . Hinks. When asked to evaluate fact. This is belief in consent. because presumably she did not apply her mind to the matter and just took the money. had the consent of V. If you pick up a piece of property.2 of the Theft Act 1968 but cases not covered by that provision may need to be resolved. Apart from those statutory contributions. but if you believe that you have a claim of right. the judge is entitled to guide the jury as to any considerations they may have to the facts. This makes Hinks even harder to follow: Hinks had a right to the property in civil law. which makes the decision stranger. If D believes that V would consent to the taking had he been aware of it. Maybe your belief is wrong and you have no right. on behalf of himself. A large range of perfectly normal things that D may do with V’s property may constitute theft provided D is acting dishonestly and intends to deprive V of his property. ill founded. Dishonesty is the heart of the modern law of theft. The concept is partially defined by s. and she believed him/her. If a claim by the defence falls outside section 2 then it is a question of fact for the jury. If you take reasonable steps to make sure the owner cannot be traced – it is not dishonest. with judicial guidance. [Feely] As a consequence of judicial interpretations. If she had a positive belief that she was entitled to it she could not be found dishonest for the law of theft. then taking it is not theft. Finally.A person’s appropriation of property belonging to another is not to be regarded as dishonest Section 2 deals with three situations where a person is not to be found dishonest: (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it. (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. by the jury. what comprises dishonesty is a matter for jury. if she had gone to a lawyer to see where she stands and had been told that she could keep. the belief that the owner cannot be found. and it is unlikely the owner could be traced and you will be aware of that. or on behalf of another person If he or she has a belief in their right to take the property and that means the term is entirely subjective. it was not theft. He did hand over his money with consent. however. the actus reus of theft could hardly be wider.

what is to be done about the idiosyncratic defendant whose values differ from those of ‘ordinary decent people’. he puts an IOU and he doesn’t ask for permission and knows because he knew it would not be granted. This laissez-faire approach has since been circumscribed. if she is aware of the variance between her standards and those of the general community then she is dishonest and thus guilty of theft. *Ghosh [1982] QB 1053 D took without permission money in advance. This is the Robin Hood defence. If the money were not repaid there would be no economic disadvantage to V and so I am not dishonest’ and consequently under the Feely test she would have a defence. The Feely test is a completely subjective approach taken to the question: If D believed his conduct to be honest then no finding of dishonesty could be made against him. The Ghosh test has been criticised. An entirely objective evaluation for the jury against the facts of the case. This was corrected in Ghosh. the guidance in Ghosh was in two parts. Whether the defendant was dishonest is a question of fact for the jury to decide. Was D aware that her conduct contravened the ordinary community standards? That is even though D may think that her own conduct is honest and she would be okay under the Feely test (which no longer applies). If they find that the conduct was dishonest by the standards of ordinary people. if his belief was genuine. but helps with Article 7 compliance. dishonesty falls to be resolved under the general test. 1. the case falls then and you do not get to the second stage. It is unclear under the Feely approach. and it was it was countered in Ghosh. for good reason. the next question is… 2. .Feely [1973] QB 530 Upheld in court of appeal(?) Assuming that the defendant cannot avail herself of the defences contained in section 2(1). They asked themselves: ‘was this conduct dishonest according to normal community standards? Would ordinary members of the community (not saints/sinners) do the same?’ … If they come to the conclusion that it was not dishonest. according to the judges’ guidance. In Feely. In his mind he thinks: ‘I know I will be able to repay this money by the end of the month. it was said that the courts should offer them little guidance and that they should ‘apply the current standards of ordinary decent people’. The Feely test would not last (it wreaked havoc).

D and V are in the cinema and they do not know each other. hoping that it contains something of value. so he has his rummage and puts the handbag back and is then promptly arrested by policewoman and charged with theft. but look at the example of Easom. It is not theft even if D realises he will not be able to return the item. borrowing someone’s property. Was there an intention to deprive permanently of the property in that case? It was held that there was no intention to deprive at this point. A seat is unoccupied between them. Halpin. Conditional intention Easom [1971] 2 QB 315 Question was whether there was intention to deprive. he intended to keep that object. D picks up V’s bag believing that it contains a diamond ring. D must intend that V should be permanently deprived of the property that D is charged with stealing from him. There was no money or a credit card. On the unoccupied seat is a handbag belonging to V who is a policewoman and the handbag is attached by a cord to her little finger. any object but only if objects found have sufficient value. That sounds straightforward to prove. opens the handbag and has a rummage through it and it did not contain anything that D wanted. He . He puts back the bag where he found it on discovering that it does not contain a diamond ring. “Dishonestly – the objections to Feely and Ghosh” [1985] Crim LR 341. Before section 6. Sure enough D picks up the handbag. The courts have made heavy weather of resolving whether D had an intention permanently to deprive V of property in these circumstances. Subject to s6 of the Theft Act 1968. To be a thief. Elliot “Dishonestly in theft: A dispensable concept” [1982] Crim LR 395. however unauthorised and dishonest. Difficulties arise when D has resolved to steal from V but only a particular object or. The intention has not coalesced around an object that he wants to keep.Ghosh test has advantages in terms of compliance with Article 7 that a person will only be convicted of theft in a contested case. either by that act of appropriation or by (Morris case) some future act. He puts down the bag on finding that the contents consist of tissues and a comb. we need to prove that at the time D appropriated the object. At the time of the appropriation there must have been a decision on his part to keep the property. Intention permanently to deprive Dishonest borrowing is not theft: Dishonest borrowing is not theft no matter how much inconvenience it causes the owner. Griew. alternatively. if she is on notice that her conduct is dishonest. For instance. Or D picks up V’s bag. “The Test for Dishonesty” [1996] Crim LR 283. as there is appropriation. is not theft.

The definition of burglary is entering property as a trespasser with the intention to steal. at no time did D intend to deprive the owner of such things. but only in terms of the precise charge of stealing ‘the purse. Many burglars go into property to see if there is anything worth stealing. A different type of case is where D intends to steal valuable contents. the appropriator has not stolen’. notebook etc. The general view is that the defendant could have been convicted if eth charge had been carefully drafted. He does not know what is inside but takes it. There was a replay of the same issue. he does not appropriate them since they do not exist. It would have many effects if this were the case. this charge had to fail. and the conviction was quashed. But if it was something he wanted he would have kept it. D walks past a van and sees that the van doors are open and sees a holdall. He turns around the corner and looks at the find. Husseyn did not have that hobby and had no use for it and dumps it and walks off. What he intended was to permanently deprive the owner of whatever he found of value. proves worth taking and then. because there is no actus reus. but has not made up his mind to steal a particular object at this point. Is it attempted theft? No. However. His actions show you he did not intend to deprive of the sub-aqua equipment. Husseyn (1977) 67 Cr App R 131 This case followed Easom. the specific thing he was stealing. Although in such a case.has theft on his mind. That is a case of attempted theft. The decision is probably right. He sees that it is sub-aqua equipment. on examination. D has a conditional intent to steal the contents. because he lacked an intent to deprive permanently. He was looking for something else. He is charged with theft of the sub-aqua equipment. finding that the booty is valueless to the appropriator leaves it ready to hand to be repossessed by the owner. The Court of Appeal quashed his conviction ruling that: ‘if the appropriator has it in mind merely to deprive the owner of such of his property as. D certainly appropriated those items. To avoid any possible difficulties an attempted theft charge may be best in cases of this kind. if any. On the facts of Easom: there was no intent to deprive. because you could not prove an intention to deprive permanently.. If had been charged with theft of the contents of the handbag he could have been convicted on the basis that he intended to deprive the victim of the contents (if he found them valuable). it cannot be abstract. . was that a burglar does not have the intention to steal. One of the seeming ramifications of Easom.inside the handbag’ that was brought.. from a handbag which he has no intent to take but puts the handbag back because it is empty. Following Easom. that does not work either because you need a particular object. Maybe Easom was purely exploratory.

Even though it matters to D. Statutory extension of intending to deprive permanently . Not yet knowing what they were. that they are valuable). Again. the mens rea requirement is also satisfied – by a conditional intention. instead land a fish and charge him with theft of some or all the contents of a bag. Thus the actus reus element of theft is satisfied. the persons entering property with intent to steal anything inside worth stealing were guilty of burglary for the purposes of the law of burglary. D’s conduct can no longer be regarded as merely preparatory. It was this case that resolved the issue: it was stated in terms that.The Court of Appeal: reluctantly quashed the conviction of theft on the basis of Easom. Thus it is submitted. This is a problem needs to be fixed… This was a worry in the case of a burglary in A-G’s Ref (Nos 1 and 2 of 1979) [1980]. subject only to a condition outside his control (i. The actus reus of theft has already occurred. If D had been charged with stealing the ‘contents’ of the handbag he should have been convicted of theft. he executes the plan. That way they do not charge him with theft of a specific item he did not want. Given his moral culpability. from the point of view of the law the difference between a ring and credit cards per se is an immaterial variation. The fact that he subsequently returned the bag and its contents is irrelevant. This time. D planned to steal the contents. Certainly. This case suggested that as the law stands it would be better if D were convicted of theft of the contents. The charge should have been intending to steal some or all of the contents of a bag. Does that solve the Easom problem? See A-G’s Ref (Nos 1 and 2 of 1979) [1980] There is a technical problem: they deserve conviction. D ought to be convicted of theft. a conditional intent would suffice. D intended to steal any of the ‘contents’ of the handbag should they prove desirable. however. Since conditional intention is treated in law as intention. he appropriated the contents with intent (conditionally) to deprive the owner of them.e. but theft cannot exist in the abstract and must be focused on specific items of property that D intends to keep. he appropriates the contents. it should be recalled that the theft Act criminalises theft of ‘any property belonging to another’. that looks like theft. Although the description of theft of the contents sounds vague. he certainly appropriated the contents.

you are treating the thing as your own to dispose of regardless of another’s rights. who made and sold pirate copies of the films. You have effectively deprived it of any value. and give them back after that is not theft. This is not made out correctly in case of Lloyd. Mitchell [2008] EWCA Crim 850 . Often a thief has no particular agenda regarding the fate of the property he steals. Section 6(1) – This is a general provision. he may not intend that the original owner be permanently deprived. borrowed films and passed them onto E. which deals with the taking of the property with an intention to restore the thing itself. prior to the point of physical restoration. sometimes it may be quite likely that the owner will recover the property. a film projectionist. The Court of Appeal ruled that this was not theft. Parliament enacted section 6. If D means to pawn the stolen goods. In reaching this decision the court referred to pre-1968 case law. Section 6 makes some provision for borrowings. but are the circumstances equivalent to an outright taking? The better view of this section (there are two schools of thought – it is an unresolved issue): the taking must in substance deprive the item of its value. Although section 6 makes it clear that some ‘borrowings’ do involve an intention permanently to deprive. if you steal notes during the exam period. but at some point he intends to restore it to the original owner. In order to make it explicitly that the act extends to such cases. D. The Theft Act 1968 s6 provides that in certain circumstances D will in law have an intention to deprive V permanently of a particular object even if he intends at some point to restore the object to V or anticipates that it will be restored by some other means. There are appellate decisions. that is the equivalent to taking the property. The terms of s6 allow ample scope for interpretation. and (in essence) took the position that section 6 merely confirmed it. or to use them before discarding them. But according to that rule. which are the equivalent in the words of the section to an outright disposal of the property.If you take an item and pawn it or subject it to any other condition you might not be able to fulfil.Dishonest borrowing – D takes the artefact and is going to use it. Lloyd [1985] QB 829 This is one of the earlier decisions on section 6. the court said: ‘mere borrowing is never enough to constitute the necessary guilty mind’. Section 6(2). More recently a similar approach was taken in Mitchell. This is useful and straightforward. which read s6 narrowly but other decisions take a wider approach. Only then. Default: dishonest borrowing is not theft.

They took a literal view of the section. the Court of Appeal quashed D’s robbery conviction on the ground that there was no underlying theft. it can also be read in a wide sense. and his intention to take it temporarily could not be converted into an intention permanently to deprive by invoking section 6(1). . With respect. They hold that the moment you treat the thing as your own i. eventually abandoning it a few miles away on the road with its hazard lights flashing. There was no disposal of the doors in the narrow sense – they were not thrown out. And there are cases where the courts have taken it in the wider sense. violently hijacked V’s BMW. having crashed their getaway car. For this. Contrast this with the wider view has been taken in Chan Man-Sin. he was just redistributing it. Lavender and Marshall. They were merely moved and there was not suggestion by his conduct that D intended to treat them as his own. owned by the council. inter alia. as meaning to ‘get rid of for once and for all’. intend to deprive permanently. Although the council had not in fact been deprived of the doors. since they continued o be affixed to council property. Having referred to Lloyd. this result seems odd. Although the word ‘dispose of’ can read in a narrow sense. The Divisional Court ruled that D had committed theft. you by law under terms of section 6. the Council was still the owner and he was not disputing the ownership of the Council. destroyed or sold. Compared with the narrow reading in Mitchell section 6(1) does say. This was the right way to construe section 6. to mean ‘to deal with’. He is convicted of theft and he makes the telling points that in either case whether the door was on the new house or his house. thereby converting into theft acts by defendants who did not really mean for the owner to lose his property rights at all. He had been talking to the Council repeatedly about the need for a new door and then he lost patience and dishonestly removed a new door from a council house under construction and replaced his old door. Court of Appeal: He had treated the door as his own. make use of it peculiar to the owner.e. One such case is DPP v Lavender [1994] Crim LR 297 Lavender lived in social housing. D was convicted of robbery (theft aggravated by violence). to dispose of regardless of another’s rights. that a defendant is ‘to be regarded as having the intention of permanently depriving the other of it if his intention is to trat the thins as his own to dispose of regardless of the other’s rights’. In this case. D did not intend V to lose her car permanently.Here D was one of a gang of thieves who. On an appropriate reading of section 6 the court said that the car owner had not been deprived of the car. D had nonetheless ‘disposed’ of them within the meaning of section 6(1).

this is the law: the intent to make and apparent to pretended disposal is sufficient for section 6(1). and returned them to V. D merely tricked the bank into crediting D’s own account (and purporting to debit V’s account). But a definitive answer to the question of how much other ground(if any) the section covers is obscure. in which the defendants forcibly took V’s headphones. At law nothing done by D in any way affected the relationship between the company and the bank. Nonetheless. which had issued them. he had no intention permanently to deprive. The Privy Council ruled that D had dealt with the company’s property (i. On appeal. then arguably D did not disposed of this account at all. For this D was convicted of theft of the tickets from London transport.e. as things stand. discussed earlier. Rejecting the narrow construction that was put on section 6 in Lloyd. where D’s conviction for theft was affirmed where he had taken V’s car away from him by force and then attempted to sell it back to him. What can be said with some degree of certainty is that section 6(1) covers both the ‘ransom principle’ and the ‘essential quality’ principle. he sought to argue that. But if unauthorised drawings of this sort are a nullity. On appeal. And an example of the second is DPP v J.Another case to take this line was Marshall [1998] 2 Cr App R 28. In Chan Man-Sin [1988]. the Court of Appeal upheld the conviction. The decision is debatable. The Privy Council seems to have equated ‘purporting or pretending’ to dispose of the thing as one’s own with ‘disposing of the thing as one’s own’. . The Courts have also taken a broad view of section 6 when dealing with those who have improperly interfered with other people’s bank accounts. its chose-in-action against the bank) as if it were his to dispose of without regard of the company’s rights. An example of the first is Raphael. as he knew the tickets would eventually find their way back to London Transport at the end of the day. it was held that the magistrates had been wrong to accept a submission of no case to answer: a person who took something and dealt with it for the purpose of rendering it useless demonstrated the intention of treating that article as his own to dispose of. by which the courts extended the concept of intention to permanently deprive before 1968. D had been making money in the London underground by begging unexpired day tickets from passengers who had completed their last journeys of the day and reselling them to other passengers. D dishonestly drew cheques on his employer’s bank account. and destined to remain so until the day –if it comes – that the matter is finally resolved by the Supreme Court. snapped them. In this case.