Property Offences

The principles of the substantive criminal law:

(a) Fair warning: his entails making sure the language of the law is clear and is relieved
of any ambiguities.
(b) Fair labelling: this requires that the description of the offence should match the
wrong done.
(c) Minimal criminalisation: this principle suggests that the criminal law should prohibit
something only if absolutely necessary.

Property Offences:

- They penalize intended or actual interference with another person’s property

interests.
- Criminal Law distinguishes between property offences and offences against the
person.

- They involve different kinds of harm:

◦ Lost or damaged property can be restored but not true in the case of physical
injury

- Property offences are less concerned with the value of the property affected by the
offence and instead focus on the method used by D to acquire it.
- That is why a distinction is drawn between:

◦ Theft
◦ Burglary
◦ Robbery

Harm to the individual:

- Some property offences also penalize harm to the individual as well.

- But property offences can cause emotional distress to V.
- According to Waldron, ownership and enjoyment of property are an essential
aspect of the expression of human personality
 1.) Theft

The defendant is guilty of theft if he or she:

(1) Appropriates;
(2) Property;
(3) Belonging to another;
(4) Dishonestly;
(5) With the intention permanently to deprive.

Actus Reus: Appropriating property belonging to another

Mens Rea: Dishonesty and an intention permanently to deprive.

- The offence of theft is set out in s.1(1) Theft Act 1968.

- SS 2-6 of the Theft Act 1968 provide definitions of each of the elements of theft.
- S. 7 sets out the maximum penalty for theft of 7 years.

The actus reus of theft is:

 
 Appropriation
 Property
 Belonging to another

1.) Appropriation:

- Appropriation is defined in s.3(1) Theft Act 1968 as including any assumption of the

rights of an owner.
- Appropriation is not limited to taking property, but interference with someone’s
property.
- It also covers later assumption where property has been innocently acquired.

i.) What does it mean to ‘assume’ the rights of an owner?

- For an appropriation to take place, there is no requirement that all the rights of an

owner are assumed, one right is sufficient:

R v Morris [1983]

- Lord Roskill held that it suffices if D assumes one of the rights.

- D was guilty of theft as soon as he switched the labels on the products.
- Something that would have been regarded as a preparatory act to the commission of
theft (e.g. switching the labels, taking the goods off the shelf etc.) now constitutes
the complete actus reus.
 - Expands the scope of the offence.

ii.) Are rights ‘assumed’ if an owner consents?

- Case Law would argue YES.

- It has been argued that Morris represents an inaccurate interpretation of the TA
1968 and that appropriation should only be found where D assumed all of the rights
of the owner.
- This was then confirmed by R v Gomez [1993].
- Gomez confirms that as long as D assumes a right of ownership over V’s property,
there will be an appropriation and V’s consent or non-consent is irrelevant

R v Gomez [1993]

Facts:

- The defendant, Gomez (G) was an assistant shop manager.

- G colluded with two accomplices who were in possession of stolen cheques.
- In the knowledge that the cheques were stolen, G approached the shop manager
and persuaded the shop manager to sell goods on the basis of the cheques.

Issue:

- The crime of “theft” in section 1 of the Theft Act 1968 requires, inter alia, “dishonest

appropriation.”
- Section 3 of the 1968 Act expands the concept of “appropriation” to include “any
assumption by a person of the rights of an owner.” 

Outcome:

- The House of Lords held that the proposition in Morris, if correct in law, applied only
to appropriation in section 3 of the 1968 Act. 
- Whilst appropriation included an act by way of adverse interference with or
usurpation of the owner’s rights, it was not the case that no other act could amount
to an appropriation.
- Following Lawrence, the Court held that there could be an “appropriation” even
where the owner (i.e. the shop manager) consented.
- This case therefore introduces a subjective basis for appropriation and the manifest
criminality required by an adverse assumption of rights is not required for a
“dishonest appropriation.”

Assessing the concept of appropriation:

- As a result of Gomez, any act in relation to property that can be said to assume a
right of the owner constitutes appropriation.
- VERY WIDE CONCEPT – easily satisfied.
 - Consent of the owner is irrelevant
- Appropriation is now somewhat more expansive that the drafters intended it to be.

Criticisms of appropriation:

- Too wide, too easily satisfied.

- Lord Steyn argued that having such a wide approach to appropriation would not
cause injustice, as dishonesty still had to be proven.
- The mens rea is what further decides theft.
-
Deception:

- Can there be appropriation with consent where there is no deception?

- E.g.) The defendant has gained a full and proper title to the claimant’s property.

R v Hinks [2001]:

Facts:

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

Issue:

- The key issue for the House of Lords to consider was whether there was an
“appropriation” in terms of section 1 of the Theft Act 1968 where H accepted a gift
of property from the D in circumstances where the D was not entitled, as a matter of
civil law, to have the gift set aside or the value returned.
- H argued that she had acquired a valid gift and, accordingly, there was no
appropriation as appropriation requires the victim to retain some proprietary interest
or right to resume or recover some proprietary interest in the property (R v
Morris [1984] AC 320).

Outcome:

- Conviction upheld.
- An appropriation exists even where the victim consents to the appropriation and civil
unlawfulness is not a constituent of the offence of theft.
- The indefeasible title to property acquired by means of taking/accepting a gift
from someone who was easily influenced could constitute an appropriation.
Criticism of Hinks:

- Creates a conflict between the criminal and the civil law.

- Overextends the scope of the offence. (overcriminalisation)
- Places too much reliance on dishonesty
- Creates an overlap between theft and obtaining property by deception.

How long does appropriation last?

- Atakpu [1993]

Ratio of Atakpu

(1) Goods once stolen cannot be stolen again.

(2) Where a defendant steals objects abroad and bring it for dishonest gain, it
was still not a crime committed in England.
(3) Appropriation is not a continuous act. (the moment they brought the cars
over, there was no appropriation, no theft in England)

2.) Property:

- S. 4(1) Theft Act 1968 provides that property includes money  and all other

property,  real  or  personal, including  things in action  and other  intangible
property.
- Money includes notes and coins

(a) Real Property

- Real property refers to land and anything fixed to land e.g.) houses and buildings
however, by virtue of s.4(2) Theft Act 1968 land cannot be stolen unless:
 
(a) D is a trustee, representative or has authorised power of
attorney and deals with the property in breach of trust. Or

(b) where D is not in possession of the property but appropriates

anything forming part of the land by severing or causing it to
be severed. Or

(c) where D is a tenant and appropriates the whole or part of any

fixture.

(b) Personal Property

- Personal property refers to property other than land.

 - Property includes prohibited drugs:

R v Smith [2011]

(c) Things in action

- Refers to a personal property right which can be legally enforced

- e.g.) a patent right, a debt, a right arising under a trust, a right to overdraw an
account, a cheque etc.

(d) Intangible property

- This is property which has no physical existence.

- However, it has been held that confidential information does not constitute property
for the purposes of the Theft Act: (Oxford v Moss [1978] 68 Cr App r 183)

Statutory Exceptions to property:

(a) Land
(b) Wild mushrooms
(c) Wild Creatures

Common law exceptions to property:

(a) Electricity
(b) Confidential Information (Oxford v Moss [1978] 68 Cr App r 183)
(c) Services
(d) Bodies (R v Sharp 1857)

Is it possible to be charged of theft of your own property?

Turner (No 2) [1971]

Facts:

- The Defendant (T) took his car to a garage for repairs.

- The repairs were completed by the garage and the car was left outside the garage on
the road.
- T called the garage and told the proprietor that he would return the following day,
pay him and take the car: instead, he took the car away from the roadside several
hours later without paying for the repairs.

Issue:
 - T was charged with theft of the car contrary to section 1 of the Theft Act 1968. 
- He submitted that, in terms of section 5(1) of the 1968 Act, the car did not “belong”
to the proprietor of the garage and the appropriation of the car by him was not
dishonest within the meaning of section 2(1)(a) of the 1968 Act.

Outcome:

- The Court of Appeal dismissed T’s appeal.

- The Court held that property belonged to a person if at the time of the appropriation
that person was in fact in possession or control of it.
- The words “possession or control” in section 5(1) of the 1968 Act did not require to
be qualified in any way i.e. the person from whom the property is taken must, in
fact, be in possession or control and any question of legal possession or control, for
instance through a hire purchase agreement, was irrelevant.
- Secondly, the Court of Appeal confirmed that the trial jury had been properly
directed that it was essential for the prosecution to show that T had acted
dishonestly and his ill-founded belief that he had a lawful claim of right to take the
car in the circumstances was immaterial.

The mens rea of theft consists of:

 
 
 Intention to permanently deprive
 Dishonesty

1.) Intention to permanently deprive

- An intention to permanently deprive means that borrowing does not normally

amount to theft.
- Section 1(2) explicitly clarifies that theft need not be for D’s benefit.
- A person is treated as having the necessary intention if they treat the property as
their own regardless of the owners rights. 
- The requirement of an intention permanently to deprive is an ulterior mens rea
element.
- This basically means there is no corresponding actus reas element.
- D’s conduct after the appropriation, whether she returns it or not, is only relevant in
so far as it provides us with evidence of D’s intention at the moment of
appropriation.

(a) Intention to remove value from the property

- If D’s intention is to take property and return it to V with all of its value removed
there is an intention to permanently deprive.
- But, as illustrated in Lloyd [1985], difficult questions of degree emerge where D
intends only to take some of the value from V’s property.
Lloyd [1985]:

Facts:

- Lloyd worked as a chief projectionist at a cinema.

- Over a period of some months Lloyd took films from his place of work, gave them to
Bhuee & Ali who copied them for distribution and gave them back to Lloyd who
returned them to the cinema.
- The judge left the issue of intention to permanently to deprive for the jury to decide.
- They were all convicted with conspiracy to steal contrary to s.1 Criminal Law Act
1977 (liability requires proof of theft under the Theft Act 1968).

Issue:

- They appealed contending that as a matter of law the issue of intention to

permanently deprive could not arise in the circumstances so the judge was wrong to
put it to the jury.

Outcome:

- The appeal was allowed.

- The wording of section 6(1) "and a borrowing or lending of it may amount to so
treating it if, but only if, the borrowing or lending is for a period and in circumstances
making it equivalent to an outright taking or disposal" requires all the goodness,
virtue and practical value to be taken from the goods. 
- The films were returned in much the same condition as when they were taken and
thus did not fall within the definition.
- D’s intention was merely to remove some of the value from the films, and was not
sufficient to be equivalent to an outright taking.

2.) Dishonesty

- There is no statutory definition of dishonesty, although, s.2(1) Theft Act 1968 gives

three instances of when a person is not to be regarded as dishonest:
 
(a) If D believes that he has the rights to deprive the other of the property.

- As long as D honestly believed he had a legal (and not merely moral) right to the
property, he will not be dishonest. (D’s belief does not have to be reasonable, and it
does not have to be based on an accurate understanding of the law.)
- E.g.): D takes the wrong umbrella when leaving a restaurant

(b) If D believes that the owner would consent to the appropriation.

 - As long as D honestly believed at the time of appropriation that V would have
consented, her conduct is not dishonest.
- Again, D’s belief need not be accurate or reasonable
- E.g.) family/friends using each other’s property in the belief that the other would
consent

(c) If D believes the owner could not be discovered by taking reasonable steps.

- D is not dishonest if she appropriates that property, as long as she honestly believes
that the owner could not be found using reasonable steps.

If the case comes within one of the circumstances then the discussion stops there because
there is no dishonesty and therefore no theft.

Common Law definition of Dishonesty:

- The Court of Appeal formulated a ‘test’ for dishonesty in Ghosh [1982]

- It is a compromise between a subjective versus an objective test.
- There were to limbs to the Gosh test:

1. was what D did dishonest according to the standards of reasonable and

honest people? (objective) AND;

2. did D realise that reasonable and honest people regard what he did as
dishonest? (subjective)

Criticism to the Ghosh test:

(a) confuses the state of mind with the concept of dishonesty;

(b) leaves a question of law to the jury;
(c) leads to more trials;
(d) assumes the existence of a community norm;
(e) unsuitable in specialized cases

Ivey [2017]

Facts:

- A professional gambler appealed against a decision that the respondent casino had
been entitled to refuse to pay him winnings of £7.7 million on the basis that he had
cheated.
- In a card game of chance, the gambler had used the technique of "edge-sorting",
which relied on noting tiny physical differences in the edges of the cards.
 - By claiming to be superstitious, he persuaded the croupier to use the same pack of
cards and to turn "lucky" cards around, enabling him to use the technique.
- That increased his odds of winning.
- The gambler believed edge-sorting was an honest technique.
- He sued for his winnings.

Outcome:

- The judge held that although the gambler was genuinely convinced that what he had
done was not cheating, he had in fact and law cheated, thus breaching the implied
term against cheating in his contract with the casino.
- The gambler argued that the test of what was cheating was the same for the implied
term as for the criminal offence of cheating at gambling in the Gambling Act 2005
s.42 and that cheating necessarily involved dishonesty, which had not been
demonstrated in his case.
- The Supreme Court has ruled that Ghosh (the leading authority on the concept of
dishonesty in law) was wrong and ought no longer to be followed.

Consequences of Ivey:

(a) Dishonesty become a more objective test;

(b) There may be little impact in practice – few cases turned on the second case anyway;

(c) There may be challenges beyond theft. Eg, in relation to fraud, Parliament enacted
the Fraud Act 2006 on the basis of the of Ghosh. Although it must have known that
the common law can shift even though the test had been in place since 1982

(d) Impact will be felt on conspiracy to defraud

Modern rule of dishonest:

- We no longer use the subjective part of the Gosh test, only use first objective part:

1. was what D did dishonest according to the standards of reasonable and

honest people? (objective) AND;

- This was backed up in R v Pabon [2018] in which the CA held that the concept of
dishonesty in Ivey now represented the law.
 2.) Robbery

Is an AGGRAVATED FORM OF THEFT

- A person is guilty of robbery if he steals, and immediately before or at the time of

doing so, and in order to do so, uses force on any person or puts or seeks to put any
person in fear of subjection to force.
- Set out by Section 8(1) of the Theft Act 1968
- Can have a maximum life sentence.

FORCE OR THE
THEFT THREAT OF FORCE ROBBERY

- Robbery can be committed in three ways:

(1) Where D uses force (doesn’t have to be against the victim himself)

(2) Where D ‘puts’ any person in ‘fear’ of being there and then
subjected to force.

(3) Where D seeks to put V in fear of force.

- Robbery is a very broad offecence.

- Can class armed robbery with a weapon or someone pushing you over while
stealing your phone.

Actus Reus

 Steals, and;
 Immediately before or at the time of stealing and in order to steal;
 Uses or threatens force;
 Against any person

The process of Robbery:

1.) Stealing

- First you must make sure that the actus reus and mens rea for theft are present.

2.) Force

- Force is an ordinary word for the jury to determine.

 - Dawson and James [1976]
- P v DPP [2012]
- There must be a casual link between the use of force and the theft.

3.) Immediately before or at the time of stealing

- The elements must coincide, the theft and use of force must be done before or
during.
- If force is used then the D comes back after to steal, then this is two separate
offences.
- The courts adopt a pragmatic approach on timing. Hale (1978)

Hale (1978)

Facts:

- Two defendants entered the victim’s house and stole her jewellery box from her
bedroom.
- After having taken the box they tied her up.
- They were convicted of robbery and appealed against their convictions on the basis
that the offence of theft was complete when they took possession of the jewellery
box and they, therefore, did not use force immediately before or at the time of
stealing.
Issue:

- A defendant commits the offence of robbery contrary to section 8(1) Theft Act
1968 if he commits a theft, and immediately before or at the time of the theft, uses
force on any person.
- The submission that the theft was complete when the jewellery box was
appropriated and that force was, therefore, not used upon the victim until after the
theft had taken place was rejected as being contrary to common sense. 
Outcome:

- The defendants’ convictions for robbery were upheld.

- The whole course of conduct is considered as stealing, and appropriation does not
immediately finish when the defendant’s conduct meets the minimum essential
requirements for appropriation.
- The theft should be viewed in its entirety which comes to an end when the jury
decides it does.

Mens Rea

- The defendant must possess the mens rea for the qualifying offence of theft, that is
a dishonest intention to permanently deprive another of property.
3.) Burglary

- Contrary to popular belief, burglary is not just stealing from someone elses house.
- It contains many criminal acts done within a home and also the intention to do so.
- The offence can be split into two separate offences, 9(1)a and 9(1)b

9(1)a
- A defendant commits burglary under this section if they enter a building, or any part
of a building, as a trespasser, with intent to either:

(1) steal

(2) inflict grievous bodily harm

(3) do unlawful damage

9(1)b
- Having entered the building or part of a building as a trespasser, committing either

(1) Theft (or attempted theft)

(2) Infliction of GBH (attempted GBH).

- The key difference between the two offences is the time at which the crime is
committed:

(1) Section 9(1)a is committed when the defendant enters the building.
(2) Section 9(1)b is committed when, once inside, the defendant commits one of the listed
crimes.

Actus reus

- Enters
- A building or part of a building
- As a trespasser

The process of Burglary:

1.) Enters

- It was considered that entry must be substantial and effective, however the
evolvement of case law suggests this is no longer necessary.

- Collins [1973] QB 100 – entry must be effective and substantial

 - Brown [1985] Crim LR 212 – entry does not have to be substantial, but must be
effective.

2.) A building or part of a building

Building

- The Theft Act 1968 provides no statutory definition of building.

- Section 9(4) does provide that an inhabited vehicles or vessels will be classed as a
building.
- A building must involve a permanent structure.

Part of a Building

- Entering part of a building covers situations where there is permission to be in the

building, but only certain areas.
- R v Walkington [1979]

3.) As a trespasser

- This carries the same definition as for civil law trespass.

- If the owner provides permission to be in the building or part of it then no trespass
will occur.
- Jones and Smith [1976] 3 ALL ER 54 – D had general permission to enter his fathers
house, but entered with intent to steal, this makes him a trespasser by exceeding the
bounds of his permission.

NOTE… 9(1)b has the same actus reus except it requires the attempt or the successful
completion of one of these two qualifying offences.

Mens Rea – 9(1)a

- Entry with intention to commit theft, GBH or criminal damage.

- Knowledge or subjective recklessness that D is a trespasser

Mens Rea – 9(1)b

- Entry and D committed or attempted to commit theft or GBH.

- Knowledge or subjective recklessness that D is a trespasser
3.) Fraud

- Fraud is a broad term that refers to a variety of offenses involving dishonesty or

"fraudulent acts".
- In essence, fraud is the intentional deception of a person or entity by another made
for monetary or personal gain.
- The Fraud Act 2006 provides one general offence of fraud, which can be committed
in three different ways:

(1) False representation (s.2)

(2) Failure to disclose information (s.3)
(3) Abuse of position (s.4)

Mens Rea:
(1) Dishonesty
(2) Intends to gain or cause loss

1.) False representation:

- False representation is discussed in s.2 of the Fraud Act 2006.

- Due to the dicter in Ivy, we no longer use the Ghosh test, we use only the objective
limb of the test for dishonesty
- A person is in breach of section 2 if they:

(b) Dishonestly make a false representation, and

(c) Intends, by making the representation (i) to make a gain for himself, (ii) to
cause loss to another or to expose another to risk of loss.

- Under S.2 there is no need to prove:

(1) A result of any kind

(2) That the alleged believed any representation
(3) That any person acted on a representation
(4) That D succeeded in making a gain/causing a loss by the
representation.

- The shift from result-based to conduct-based offence means that the offence is
easier to prove , and there is little doubt that in most cases this objective will be
achieved.

Actus reus of Section 2:

 1.) The representation must be false:

- Section 2(2) defines a representation as ‘false’ if:

(a) It is untrue or misleading, and
(b) If the person making it knows that it is, or might be, untrue or
misleading.

2.) It must be shown that D made a representation:

- A representation may be expressed or implied - Hill v Gray (1816)

- Three important aspects of a ‘representation’ are required to class it as such:

(1) The subject of the representation

- S2(3) includes representation as to the state of mind of the person making the
representation or any other person.
- Matters of opinion: under the current law, matters of opinion should be treated as
representations of D’s belief as to facts.
- The focus shifts, in such cases, to whether that opinion was honestly held.

(2) The recipient

- V must not always be aware of the representation for it to be complete.

- It is likely that the courts will interpret ‘representation’ broadly to be satisfied even
where V remains oblivious.
- This is supported by a similarly broad interpretation given to ‘communication’ in
other areas of the law – Collins [2006] UKHL 40
- Section 2(5): this subsection allows for fraud by false representation where there is
no intended human recipient (eg machines).

(1) The method

- Section 2 can apply regardless of how D chooses to communicate with V, whether

orally; in writing; by gestures etc.
- D may even make representation via an agent: Idrees v DPP [2001]

When is a representation made?

- Potential difficulties of time may arise. I

- t could be argued that the representation is made:

a) As soon as D articulates it;

b) Only if it is also addressed to something; or

 c) only when it us actually received by such a person (when it is communicated)

- The Act uses ‘representation’ rather than communication.

WHICH IS UNTRUE
A REPRESENTSTION OR MISLEADING ACTUS REUS

Mens rea of Section 2:

- Made up of 3 core elements

1.) D must at least foresee a risk that her representation is false;

- This element is satisfied where D either

(a) knows her representation is false or misleading; or

(b) Foresees that it might be (s2(2)(b))

2.) She must act dishonestly; and

- The Ivey test for dishonesty is used.

3.) She must intend to make a gain or cause a loss

- Section 2 dos not require D to make a gain, or to cause or risk a loss to another in
fact
- However, D must act with the intention to achieve at least one of these ends.
- The definition of gain or loss Is set out in s5 of the FA 2006.
- D’s intention must be causal – Gilbert [2012].

2.) Failure to disclose information:

FAILURE TO WHICH HE IS
DISCLOSE UNDER A DUTY TO ACTUS REUS
INFORMATION DISCLOSE
 - Similar to section 2, section 3 a conduct crime.

◦ D must dishonestly fail to disclose information where there is a legal duty to

do so
◦ D must intend thereby to make a gain or cause a loss or risk of loss to another
◦ But no such gain or loss needs to be demonstrated in fact

Actus reus of Section 3:

- Requires a failure to disclose information where D has a legal duty to do so.

(1) Identifying a legal duty to disclose information

- Para 7.29 of the Law Commission Report makes it clear that a legal duty to disclose
will arise whenever D’s failure to disclose information would render a contract, or
relevant part of a contract, voidable.

(2) When does D fail to disclose

- A failure to disclose information is satisfied not only where D discloses nothing at all,
but also where D fails to disclose sufficient information in a manner that renders
relevant parts of a contract voidable.
- Therefore, even partial disclosure may still satisfy the actus reus of this offence

Mens rea of Section 3:

- The mens rea of section 3 requires D to have: (same as section 2)

(1) acted dishonestly and

(2) to have intended by her failure to disclose to make a gain or to cause a loss or
risk of loss to another

3.) Abuse of position

- The final route of liability under section 1 is fraud by abuse of position.

- Section 4 is also a conduct crime.

Actus Reus:

- The actus reus of s4 requires D, by act or omission, to abuse a position in which she
is expected to safeguard the financial interests of another.
 (1) Identifying the relevant position

- This requires D to occupy a position in which she is expected to safeguard the

financial interests of another.
- This core element is not defined in the statute.
- An example of the interpretation of the required ‘position’: where D owes a
‘fiduciary duty’ – Marshall [2009].
- This offence is not limited to abuse of fiduciary duty.

Valujevs [2014]

- The courts furthered the question of relevant position in this case.

- They found that the duty to safeguard the financial interests of another is an
objective question for the courts to decide.

(2) When does D abuse this position

- Once it is established to the satisfaction of the judge that the position D occupies
qualifies in law, it is then a question of fact for the jury whether she abused this
position.
- This term is not defined under the FA 2006, but section 4 states omissions can be
abuses of position.

Occupies a The expectation Abuse of that ACTUS REUS

position that financial position
interests will be
safeguarded

Mens Rea:

- Requires D to have

(a) Acted Dishonestly

(b) Intended by her abuse of position to make a gain or cause a loss