Aftab, finding he has no money for his bus fare, takes £5 from Erina, his housemate’s wallet, leaving a

note saying that he will repay it on his return. Erina has told him on a previous occasion not to do this.
When he gets on the bus the driver tells him to pay later as the bus is running late. Aftab gets off the bus
without paying, reasoning that others would have done the same. Later he spots a basket of apples on the
street outside a house. Above the basket is a sign saying. ‘I have too many apples for my own use. Please
take some but leave some for others.’ Aftab takes 50 apples leaving only three in the basket. He then goes
to a fruit and vegetable shop where he sells the apples to the owner. He then buys some vegetables, using
Erina’s £5 note. Next Aftab goes to an ATM cash dispenser where he withdraws £5 to repay Erina,
although he knows he has no funds in his bank account to cover the withdrawal. He returns home and
puts the £5 back in Erina’s wallet. Erina sees him do this and gets angry. She accuses Aftab of being a
thief, to which he replies “I’m not a thief. I gave you the money back. That is not theft and anyway it is
not dishonest.’ Erina replies “Well I think it is, since you knew I wouldn't agree.”
Discuss. DO NOT discuss the law relating to handling stolen goods.
a) If you were the prosecutor what would be your preferred charge of property offenses theft,
burglary or fraud in relation to Afthab taking the five pounds from Arina’s wallet
b) Give reasons for your choice in a) above
c) If you were Afthab’s defense council what would be the argument you would raise in favor of
Afthab
d) If you were the prosecuting counsel how would you respond to the defense councils argument in
c) above
e) If you were a prosecutor what would be your preferred charges be when Afthab gets off the bus
without paying
f) Give reasons for your choice in e) above
g) If you were Afthab’s defense council what would be the argument that you would raise in favor
of Afthab
h) If you were a prosecutor what would be your preferred charges when Afthab takes the apple and
sells them
i) Give reasons for your choice in h) above
j) If you were the defense council what would be your argument in favor of Afthab
k) As the prosecutor what would be your counter argument for j) above
l) If you were a prosecutor what would be your charge against Afthab when he withdraws five
pounds from the ATM
m) Give reasons for your choice in l) above
n) If you were the defense council what would be your argument in favor of Afthab.

a) The preferred charge against Afthab for the offence of taking the five pounds from Arina’s wallet
would be theft. A person is guilty of theft if he dishonestly appropriates property belonging to
another with the intention of permanently depriving the other of it as per S 1 of the Theft Act
1968.

b) The Actus reus (AR) elements of theft is appropriation of property belonging to another. Looking
at these elements in detail, the first that needs to be discussed is property. This sis defined in
section 4 of the Theft Act 1968 where a general statement is provided and includes money, and
all other property, real or personal including things in action and other intangible property. In
relation to the facts of the case it could be said that the five pounds taken by Afthab from Arina’s
wallet is classified as money and therefore satisfies the property element as mentioned in the
Theft Act 1968.
The next element that needs to be illustrated is appropriation, which is defined by section 3 (1) of
the Theft Act 1968 as any assumptions made by a person of rights of ownership over the property
for example by selling it, lending it to someone else or deciding to keep it. In relation to the facts
it could be seen that Afthab took the five pounds from Arina’s wallet and assumed rights of
ownership by keeping the money and buying some vegetables using the money he took from
Arina’s wallet this amounts to appropriation. This was seen in the case of Pitham and Hehl (1977)
where the defendant invited two people and offered to sell the furniture in his friend’s house
while the friend was in prison. It was held that this amounted to appropriation because the rights
of ownership had been assumed-the right to sell.

Belonging to another element of AR of theft is defined by section 5 (1) of the Theft Act 1968.
Where it states that property belonging to ‘any person having possession or control of it or having
in it any proprietary right or interest’. With regard to the facts of the case it is clearly pointed that
the money belongs to Arina as it is in her possession (her wallet) and therefore when Afthab takes
it from her wallet he is taking property belonging to another.

With regard to the Mens Rea (MR) elements involved in the offence of Theft it is necessary to
have the element of dishonesty involved. Although there is no precise definition mentioned in the
Act, a test has been laid down by the case of Ivey v Genting Casinos (2017) which states that
whether according to the standards of reasonable and honest people what was done was
dishonest. This was then confirmed in the case of Barton and Booth in (2020). In relation to the
facts of the case it could be stated that Afthab dishonestly appropriates the money from Arina’s
wallet as he knows that Arina would not consent for him taking the money therefore this would
go onto disagree with the statement provided by Afthab where he states that his actions do not
amount to theft as what he did was not dishonest and go onto being in agreement of Arinaa’s
statement of stating that there is dishonesty involved because he knew that she wouldn’t agree to
it.

Furthermore, the MR element of having the intention of permanently depriving needs to be

highlighted. A person would be said to have committed theft if it is in their intention for the
victim never to recover the property. So if D intends to only

l) the offence that would be charged against Afthab would be theft.

m) The property must belong to another at the time of appropriation Choodorek v Poland (2017).
It was held that a person who uses a debit card at an ATM to withdraw cash commits theft if he
has no overdraw facility and knows he does not have the funds to cover the amount withdrawn.
All the elements of the offence are present, namely a dishonest appropriation of property
belonging o another with the intention of permanently depriving the other of it. The property
appropriated in this case is money (personal property) and aat the time of the appropriation the
moneey belonged to the bank issuing and not him as he was not in credit.
Afthab was not honest he did not have the intention of permanently depriving Erin of it because
he returned the money.

Erin has clearly stated not to take from her and she clearly states that she thinks there is theft
because he knew she would not consent to it. state the case of walley where coins are not returned
in the same manner.

There is no coincidence of AR and MR therefore no theft, then consider whether making off
without payment and obtaining services. If he has moved from the place he was then he has made
off without payment, if there is then he has obtained services dishonestly.
The defence is that there is no coincidence of AR and MR .

If it was dishonestly encouraged, case of Hinks, also the case of Laurence- just because there is
consent does not mean you can do anything you want. Issue on appropriation- look at the case of
feely.
The prosecutors argument- Could be a conditional gift which would mean that the original owner
retains some rights over the gift.
The issue is if you take excess or beyond the conditions

Appropriation- taking of the apple then for the selling. If you take in exceess this amounts to
dishonesty and if you sell, if its your own gift then that’s fine but if it’s a conditional gift then its
not okay.

Defence- asked to take however much you want, therefore is a gift so then can do whatever you
want.

Argument- it is a conditional gift, if it was to sell then the owner himself would have done this.

S2 of fraud act- fraud by false representation- can overlap with theft with dishonesty.

Argument to be raised- could have argued that his credit was good and therefore this is also a five
pound situation.

Take as much as you can consume you cant consume 50 apples. Take a reasonable amount and
leave for the others as well.