SOURCE OF THE LAW:
Theft Act 1968 ʹ theft defined in s1 of the Act
Some General Comments on the Act
The late1960s was a period of great reform (abortion Act, the Act that decriminalised homosexuality). The Theft Act was part of that reform. Not as controversial as othersbut made far reaching reforms. Before the theft Act the main offence was one of larceny. This goes back to the medieval period and was an extremely complicated area of law. Criminal reform body looked at it in the 60s and concluded that they should simply scrap the whole thing and start again. That͛s basically what the theft act aimed to do. So for students, you don͛t need to know anything about the law before 1968 besides the fact that it existed and was a mess.
STRUCTURE OF THE ACT;
Definition: s1
S2-6: Group of 5 sections which give explanatory provisions for the elements of theft.
Elements of theft;
Actus Reus
͚Appropriation ͚ (s.3)
͚Property͛ (s.4)
͚Belonging to Another͛ (s.5)
Mens Rea
Dishonesty (s.2)
Intention to permanently deprive the other of the property (s.6)
Maximum penalty for theft is set out in s.7 and is 7 years for stealing. It is of course reserves for the worst cases and a great many thefts aren͛t even likely to result in prison sentences.
The tendency has been to interpret each of the sections widely such that theft has become a very broad crime. This has happened particularly with the element of appropriation.
ELEMENTS OF THEFT: APPROPRIATION New concept introduced by the theft act and didn͛t figure in the old law of larceny which revolved around the notion of taking and carrying away property and was concerned very much with the idea of tangible property.
In technical terms, the old law was a form of trespass and was an offence against someone͛s property.What the criminal law revision committee said the theft law should do is to make it an interference against property rights more generally and particularly against rights of ownership. The CLRC then hit on this notion of appropriation as the word they though would best describe this idea of dishonestly interfering with someone else͛s property.
Definition
S3(1) starts with the proposition; 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.
(I) ANY ASSUMPTION OF [ANY OF] THE RIGHTS OF AN OWNER
We͛re looking at the idea of starting from the rights of the owner. So that leads to the question ʹ what are the rights of the owner?
English law recognises the concept of ownership of property in the form of a bundle of rights over certain things. The owner can do a number of things with his or her property. e.g. you can use it, sell it, hire it out, damage your own property etc͙ And importantly, if someone else has got it, you can take possession back and exclude other people from it.
It then follows that if you do any of the things an owner is entitled to do in relation to his or her property, and it͛s not your property, then you appropriate the property.
A straightforward example would be:
Pitham and Hehl(1977) 65 Cr. App. R. 45
Here a person, M, offered to sell to the 2 defendants furniture belonging to X. X was in prison at the time and didn͛t know about it. The defendants agreed to buy some of the furniture and they later took it away. The defendants were charged with handling stolen goods.
There was no doubt that they handled the furniture as they took possession and took it away. The question for the CA was whether at the time they handled the furniture, it was in fact ͚stolen goods͛. That raised the question whether the theft was complete at the time they handled the furniture. (was the ͚stealing͛ complete so the furniture acquired the status of goods that had been ͚stolen͛)
CA said that when M offered to sell the furniture to the defendants, that in itself amounted to an appropriation. Remember, one of the things an owner can do with his property is to sell it and that includes making an offer to sell it. M had appropriated that right to sell the property. That right belonged to X and therefore, the offer to sell itself amounted to an appropriation. Therefore, the goods were stolen goods. The theft was complete because all the other elements were satisfied. (M was dishonest, intended to permanently deprive X, it was clearly property belonging to another) Therefore, the defendants could handle stolen goods.
That straightforward example shows the width of the ͚new͛ (as it were then) law of theft as you could steal the goods even if you never laid a finger on it. He doesn͛t take the furniture himself. He essentially says X has goods in a certain place, would you like to buy it. It is still however an assumption of X͛s right and therefore theft.
Another right an owner has is to take possession of his property from someone else to exclude another person from it. It therefore follows that if you take possession forsomeone else͛s property, you͛re assuming the right of the owner to do that. This is of course the most common way in which people steal. Of course when you take possession, it͛s quite clear that you͛re preventing the owner from anything to do with the property.
The next question that arises is what happens if you exercise one of the rights of an owner but you don͛t seem to be intending to exclude the owner completely. Can that still be an appropriation?
Morris [1984] AC 320
This was a case which represented a very common form of dishonesty at a time as it involved label switching in a supermarket. (The price used to be stuck on a label on the product. Barcodes weren͛t common then)This is what Morris does but he is spotted by a store defective. He is charged with theft and also with obtaining property be deception.
Side note: the theft Act 1968 created quite a large number of offences related to property. It contained provisions dealing with certain types of fraud. One of the types of fraud was obtaining property by the use of deception. So if you͛ve tricked someone into selling you goods at a fraction of their true value, then by the use of that deception, it constituted a separate offence under s15. What the prosecution had in mind was that he had attempted a deception by attempting to make it seem that the supermarket had labelled the product with the lower price.
At trial, he was convicted of theft under s1, but the jury never returned a verdict on the s15 charge. What D tried to argue on appeal was that there was no appropriation of the goods before he paid for them at the checkout and thus, wasn͛t assuming all the rights as he was recognising the right of the owner to sell the goods to him.
So it raises the question of what happens if you assume one of the rights of the owner (fixing the price the good is to be sold at) but you acknowledge the rights in other respects?
Courts have tended to give appropriation a fairly wide interpretation as they have with other elements of theft. To put it colloquially, if faced with a ͚criminal͛ it is unlikely the courts will quash a conviction and here, he clearly was dishonest. The HL said that all that is necessary for an appropriation is that you assume one of the rights of an owner. You don͛t have to assume all of them in the sense of plainly trying to exclude the owner forever. It͛s sufficient if you try and appropriate one of the rights. Because of this, since all the elements were present, a conviction results.
(II) IT IS NOT NECESSARY THAT THE ACT OF APPROPRIATION SHOULD BE UNAUTHORISED; THE OWNER'S APPARENT CONSENT IS IMMATERIAL IF D APPROPRIATES THE PROPERTY WITH THE INTENTION TO ASSUME THE RIGHTS OF THE OWNER.
The next question is what happens if the owner does at least consent or appear to consent to the acts being done. I.e. is an absence of consent or authority on the part of the owner necessary for there to be an appropriation?
It͛s in answering this question that the courts have extended appropriation and therefore theft quite markedly and quite controversially. The law is now quite settled but it͛s debatable whether it͛s right in principle. Settled in 2 HL cases (Gomez and Hinks) In order to understand the 2, particularly Gomez, one needs to understand the background and difficulty.
In summary, before Gomez, 2 inconsistent views have been expressed in HL about whether this absence of consent was a necessary part of appropriation. One view was that absence of consent was not necessary and the owner͛s consent or lack of it would be relevant only to the question of dishonesty. That view was mainly represented in a decision of the HL in
Lawrence v. MPC [1972] AC 626
The victim was an Italian student who spoke very little English. He͛d arrived in Victoria station in London and hailed a taxi. Showed the driver an address in Ladbroke Grove (not that far) but when he took him there, the taxi driver told the student it was going to be long and expensive. When the driver took the student there, the student offered him a 1 pound note. Taxi driver said it wasn͛t enough. At that time, the student was holding open his wallet and the taxi driver basically helped himself to another 6 pounds from the wallet.
The student said in evidence (and this came through the translation), that he͛d ͚permitted͛ the driver to take the 6 pounds. The correct fare at the time for the journey would͛ve been around 50p.On the face of it, it seems like a fairly clear case of fraud. Dennis thinks that if Lawrence had been charged with s15, this case would never even have been reported. But what happened is that the prosecution charged Lawrence with the theft of the 6 pounds. The appeal then went to the HL on the basis that since the student had permitted the driver to the 6 pounds, he͛d consented to the driver doing this and therefore, there͛s no appropriation.
That argument got rejected by the HL (very short, terse judgment; partly explained by the fact that it͛s one of the very first cases on the theft Act and the courts were basically starting from a clean slate without any preconceptions about the old law. Under larceny, there had to be an absence of consent. So what the D was trying to do was reintroduce that element or say the law hadn͛t changed on that point and it͛s that idea which the HL is rejecting. On that basis, the court said that clearly by taking the money of the wallet, D took possession of it, which was assuming the rights of the owner, and therefore there was an appropriation.
Morris [1984] AC 320
The other view is represented by a dictum by Lord Roskill in Morris (giving the leading speech)
He said that in his view, appropriation involved an act not expressly or impliedly authorised by the owner but an act which he called ͚adverse interference or usurpation of the owner͛s rights͛. This seems to be in direct conflict with Lawrence. Only dictum as it wasn͛t necessary to the decision as Morris͛ view was clearly not authorised by the store. Nonetheless, that dictum had been followed by the CA in more than one case.
So the conflict had to be resolved
Gomez [1993] 1 AER 1
D was the assistant manager of an electrical goods shop. He was acting in concert with a man called B. Gomez persuaded the manager of the goods shop to sell a quantity of goods to B in exchange for 2 building society cheques. In fact, these cheques are worthless because they͛ve been stolen; which both B and Gomez knew. So B loads the goods into his vans and takes them away. B and Gomez are then charged jointly with theft. (Principal owner and accomplice respectively.)
If we pause and think about the nature of this transaction in civil law, it is a valid contract for sale. It is a voidable for fraud but it͛s not a nullity. The shop can rescind the contract and ask for its goods back as they haven͛t been paid as such but unless they do that, it͛s a valid contract and title in the goods has passed to B when he takes possession of them.
Once again, we find the prosecution charging theft as opposed to obtaining property by deception. Gomez͛s defence is that the manager of the shop authorised B to take the goods. Thus per Lord Roskill in Morris, appropriation is not an act authorised by the owner. The prosecution responded saying that per Lawrence, authorisation doesn͛t matter.
The response the HL gave in a 4-1 majority was that Lawrence was correct and thus repudiated Lord Roskill͛s dictum in Morris. They said that whether there was consent by the owner was immaterial when it came to the question of appropriation. It may affect whether there was dishonesty though.
The effect of this decision in Gomez was to create a very considerable overlap between theft and fraud. Because it means that in a great many cases where D practises a fraud in order to get at someone else͛s property, D will steal it as well. (The converse is not true as a great many thefts are covert. E.g. pickpocketing is a standard example of stealing but won͛t be a fraud as well. It͛s more when you have these bilateral transactions)
This, it is fair to say, is not something that was intended back in 1968. If you look at the CLRC, they clearly intended the kind of act in Gomez to be fraud and not stealing. So it clearly extends parliament͛s intention at the time. So it produces an extremely wide concept of the actus reusin theft. Every time now you go shopping at the supermarket and put something in your basket, you͛re committing the actus reusof theft. The fact that the supermarket is basically inviting you to do it is neither here nor there as far as appropriation is concerned. The only thing stopping people from being guilty of theft is the mens rea. Similarly, if you borrow a library book, or photocopy someone else͛s notes, or generally do all kinds of ordinary things which involve you exercising some kind of right someone has over property, you commit the actus reus of theft. Seems like a very odd state for the law to be in.
The further question Gomez did not resolved was whether you can steal property to which you acquire a perfectly good title. Gomezdealt with a situation where title passed but could be avoided (if the owner managed to rescind the contract) But what happens where D acquires a title which cannot be legally reversed. This raises the question of whether you can steal something which is given to you; i.e. a valid gift.
This arose in Hinks
Hinks [2000] 4 AER 833
Here, D was charged with stealing sums of money amounting to a total of about 60, 000 pounds. And also, a TV set. The victim was a middle-aged man. Who was of ͚limited intelligence͛. Who was ͚naïve and trusting͛ i.e. of limited mental ability and D was one of his carers. He was quite a wealthy man and the evidence was that over a period of several months, he had withdrawn a series of relatively small amounts from his building society account where he was invariably accompanied by D and then D would put the money in his account.
So it is a case where D is manipulating someone vulnerable to hand over their wealth to the carer (himself). There have been a number of cases of this type. He also bought the TV set which D then acquired. Prosecution said that this amounted to theft. Her defence was that all the transactions were gifts (though in one case she said it was a loan). Basically that he chose to give them, that they were valid gifts and she argued that in law, she couldn͛t steal a valid gift.
The HL sided by a majority of 3-2 (provoked quite a sharp division in the HL in this case) that a person can appropriate property even when the owner is making the defendant an absolute owner of it. So even if the owner is giving you an indefeasible title to the property, you can still appropriate it and then steal it.
The court followed Lawrence and Gomez and it͛s probably fair to say that what they͛ve done is taken those 2 previous HL decisions and carry them through to their logical extreme. If consent of transferor is immaterial, it͛s not easy to see why logically it shouldn͛t be immaterial in a case like Hinksas well. That broadly is the view the majority take.
Comments on Hinks(a particularly controversial decision)
1. Relates to dishonesty; this is a case where the jury convicted Hinks, so they must͛ve thought that she was dishonest. It may well be that in other cases; a jury may find D was not dishonest, if D genuinely believed that he or she had a right to take the property. This idea of believing you have a right to take the property will mean you aren͛t dishonest. 2. This case is controversial as critics (there are quite a few; Simister and Sullivan, smith and Hogan) allege that this conflicts with civil law. They argue that in civil law if you have a right to keep the property because you have an indefeasible title and a valid gift, how can the criminal law allege that it͛s theft? The argument is that the criminal law protects interests in rights so it necessarily presupposes rights in the civil law. So it͛s the civil law that assigns the right and the job of the criminal law is to protect those interests. So it seems inconsistent that the criminal law can say you steal something which civil law alleges you have a right to. 3. Contrary argument put in legal studies by Bogg and Stanton(read for tutorial); their argument is that the decision in Hinks is not objectionable as if you ask whether V has suffered harm, it͛s not hard to come up with the conclusion that V has suffered harm (60k + TV) and if we ask whether D is culpable, the answer is plainly yes (in the jury͛s view at least). The authors argue that if we have harm on the one hand and culpability on the other, there͛s clearly criminal liability. (thought to be the 2 basic building blocks of criminal liability)
(III) SOME OTHER ISSUES:
Appropriating a bank account;
If you have a credit in your bank account, the legal relationship b/w you and your bank is simply a debtor-creditor relationship and what you have is a right to call upon the bank to pay its debt to you. The credit in a bank account is an item of property (a ͚thing in action͛ i.e it can only be enforced through an action). As an item of property, it is capable of being stolen. The question is how can you appropriate someone else͛s bank credit? It͛s not like tangible property which you can physically lay your hands on and take away.
What can be done with bank credit? Draw on it, take money out of it, pay cheques etc... So it follows that if you do those things in relationship to someone else͛s bank credit, you͛ll be appropriating it. Assuming the rights of the owner to draw on the relative credit balance for instance. Cases show this can be done in a number of ways.
Kohn (1979) 69 Cr App R 395
Here, D was a company director of a company, C. C had an account with a bank, B and D was the authorised signatory of the company͛s account. What he did was to draw a number of cheques for his own personal benefit. So he was basically using the company͛s account to divert funds to his own purposes. He was charged with and convicted of theft by the amount C͛s account was debited. (The amount he diverted to his own use). Quite a straightforward case.
One little point to highlight here is that the decision here presupposes that there is a bank credit in existence (that account is in credit) or that you have an agreed overdraft facility (here, V has a right to payments up to that limit and thus this represents a ͚thing in action͛). I.e. you have something on which you can validly draw for there to be property that can be stolen. It therefore follows that if you have no money in your account so there is no credit and no overdraft agreement and you then sign a cheque which the bank subsequently honours (and if you͛re backing it with a cheque card, bank is obliged to honour) then, you won͛t be charged with theft as there͛s no property to assume ownership over. You͛re just creating a larger debt. It may be another offence, but not theft.
Chan Man-Sin v R [1988] 1 AER 1
D here is an accountant to 2 companies. He was not an authorised signatory on the company͛s account unlike Kohn. What he did in this case was to forge signatures on cheques made out to himself which he used to withdraw millions of HKD from the company͛s bank account.
Again, it seems quite straightforward. There͛s an account in credit, no specific property is being appropriated, but a specific ͚thing in action͛ is. Just a point to note, it is the case that in civil law, if the bank pays out on a forged cheque, it has a legal obligation to restore that amount to the customer͛s account. So the companies in a case like Chan Man Sin will not lose anything provided they discover that they͛ve been a victim of a forgery. It͛ll be the bank which is ultimately the loser. But it͛s clear from the cases that it͛s immaterial. It makes no difference that the supposed victim of the theft will suffer no loss at all.
Williams [2001] 1 CAR 362
Here, we have another case where a straightforward fraud gets charged as theft. Here, D was a builder who͛d done some work for one of his customers and he then presented her with an inflated bill for the work done. She writes a cheque for the amount he͛s asked for and he then presents that for payment and the cheque is duly honoured. So her account has been debited by a larger amount then she technically owed. He͛s charged with stealing that bank credit that belonged to her. Following Lawrence and Gomez, the CA held it was an appropriation. The fact she gave him the cheque and thus clearly consented to him presenting it was immaterial.
Again, the fact that this is a perfectly straightforward fraud is immaterial as far as the court is concerned in considering the theft charge. Note that with stealing cheques, there are two things being stolen. One is the piece of paper itself which the HL in Perry said cannot be stolen (upheld more recently by CA in Clark). The other is ͚a thing in action͛.
Were D dishonestly induced V to write a cheque and attempted to cash it, it would only be a charge under s15 of the 1968 Act (or since 2007, a charge under the Fraud Act 2006). At the point D presents the cheque to be credited to his own account, he is guilty of appropriating a different thing in action not belonging to V, namely V͛s credit balance or, if available, right to overdraft. (Highlighted by Williams)
So those 3 cases give clear examples where courts will say you appropriated someone͛s credit
- Authorised signatory; simply divert funds for own purposes - Forge signature - Get victim to present a cheque which you present for payment
Briggs [2004] 1 Cr App R 34 Slightly more complicated. What happened here was that D was a niece of elderly relatives, P, and she helped them to sell the large house they had and buy a smaller one. (Some echoes of Hinks; Someone else manipulating older people) She arranged for P to instruct the firm of conveyancers holding the proceeds of sale from the larger house to transfer it to the sellers of the smaller house. I.e. to carry out a perfectly valid convincing transaction. The point of the scam she was working was to induce the sellers of the smaller house was to convey the house into her name rather than those of her relatives.
The prosecution alleged that the credit balance was appropriated by the appellant when she caused the money to be transferred for her own purposes, namely, the purchase of the property, in her own name.
(͞The word 'appropriation' connoted a physical act rather than a more remote act triggering the payment giving rise to the charge on the indictment.͟)
The CA said D was not guilty of theft as she͛d done nothing in relationship to that credit balance which amounted to appropriation. One could say that she didn͛t sign any cheques herself not did she persuade anyone to give her a cheque (Williams) so if that͛s what CA meant you can see what they͛re getting at.
What she did was more indirect. Basically using P to give instructions to give her the money. It was those instructions which caused the credit balance to be debited. Outcome was the same as Williams where they lost money from their account and didn͛t get what they were entitled to. And it can be argued that what D did in Briggs was to use P as her ͚innocent agents͛. They didn͛t know what she was up to and they became her innocent agents in their own loss. If the court had been minded, they could say it͛s similar to what was done in Williams.
So Dennis is not sure that the decision in Briggs was necessary as a limit on appropriation and could be extended by analogy to Williams.
Simister and Sullivan have a little footnote in relationship to this which shows she was convicted amongst other things of a social security fraud but that was an entirely different matter.
Where and when is an appropriation complete?
Where
First of all, question of where it takes place can be relevant to jurisdictional issues. Main jurisdiction of English law is territorial. Broadly speaking, courts here have jurisdiction over crimes that take place in England and Wales.
Atakpu and Abrahams [1993] 4 AER 215
D͛swent over to Germany and Belgium and hired some cars. What they were intending to do was to ship the cars back to England, alter their identities, and then sell them to unsuspecting buyers. They got as far as Dover, when the customs officers became suspicions and they were arrested and the scam was discovered.
The CPS came up with a charge of conspiracy to steal the cars in England. We need to ask what the conspiracy does. If it͛s a conspiracy to steal the cars, where does the theft take place? Here you see the downside of Gomez and Hinks. Following those, as soon as they take possession of the cars in Belgium with their dishonest intent, they appropriate them and theft is committed at that point.
So what they had done was basically steal the cars when they picked them up and if there was a conspiracy to steal, it was committed abroad. On that basis, the CA said a conspiracy to steal in England failed as the cars were already stolen abroad and the defendants couldn͛t steal in England again what they stole abroad.
Q, what might they be charged with had the prosecution been more alert? When they planned to sell the cars in England, would that have amounted to any offence other than stealing? It could well be a fraud because, if you sell a car, you make the representation to the buyer that you are in a position to transfer a good title to the car as well. So it͛d be a straightforward deception to any purchaser and therefore a conspiracy to commit a fraud in England. Further, there is the possibility they could͛ve been charged with handling stolen goods.
In a way, many of these cases can be seen as one of prosecution lacking imagination and wanting to take the easy way out by charging theft instead of fraud as it may be easier to prove.
When
When is an appropriation complete? Is it an instantaneous act? Or can it be a continuing act? If it is, how long can it last for? The reason we need to know it as the different contexts in the theft act may require an answer.
E.g. with robbery; it͛s an aggravated form of theft and consists of using force in order to steal. It͛s a crossover b/w offence to property and person.
D may be guilty of robbery if he uses force during the theft but that͛s not the case if the theft is over. if you are stealing from a warehouse and you encounter a guard on the way out and use force to overcome, is that using force in order to steal. Or if you͛ve gotten away and stopped down the road by a cop and use force. Same q
Another question is handling stolen goods. When do goods become stolen? Thatin turn will raise the q of when an appropriation is complete.
Per Ward J in Atakpuat 223͟
͞Endeavouring to summarise it would seem that (1) theft can occur in an instant by a single appropriation but it can also involve a course of dealing with property lasting longer and involving several appropriations before the transaction is complete; (2) theft is a finite act - it has a beginning and it has an end; (3) at what point the transaction is complete is a matter for the jury to decide upon the facts of each case; (4) though there may be several appropriations in the course of a single theft or several appropriations of different goods each constituting a separate theft as in R v Skipp [1975], no case suggests that there can be successive thefts of the same property (assuming of course that possession is constant and not lost or abandoned, later to be assumed again)." (Note that an appropriation of a certain right can be a theft and an appropriation of a different right at a later date, e.g. to sell the property, can be a separate theft)
So with a fairly normal theft as in Atakpu, it does seem that for the most part, the appropriation is complete once the thief is done. The CA seems to be falling back on common sense and indeed in the case they say ͞We would prefer to leave it for the common sense of the jury to decide that the appropriation can continue for so long as the thief can sensibly be regarded as in the act of stealing or, in more understandable words, so long as he is "on the job"͟
So Dennis suspects that, once you͛ve left the hire-car ͚as a premises͛, your act is complete at that point.
As regards robbery, it would seem that a common sense interpretation would suffice and indeed in Hale, the CA decided that was the case with regards to robbery and the jury would basically decide when the stealing was complete. And the court thought that if the D used force at any time in removing goods from the premises, on any common sense view, that͛d be using force in order to steal.
On this view, once D left the premises, common sense answer is that any force used is not in order to steal. May be for other purposes but not for robbery.
With regards to handling of stolen goods;
Pitham and Hehl (above)
Shows that appropriation can be an almost instantaneous.act. The offer to sell was sufficient for appropriation.
ELEMENTS OF THEFT: PROPERTY
Definition: s4(1)
͚͞Property´ includes money and all other property, real or personal, including things in action and other intangible property͛
(I) `PROPERTY' INCLUDES ͚THINGS IN ACTION͛ AND OTHER INTANGIBLE PROPERTY BUT NOT TRADE SECRETS OR OTHER CONFIDENTIAL INFORMATION
First of all, note it͛s a very wide definition of property. Personal property doesn͛t need much of a definition.
Real property; s4(2) explains that land cannot generally be the property of theft. Bit of a hangover from the law of larceny which was basically limited to stealing movable property and that͛s been carried over to the new law
It is possible to steal things which are part of the land by severing them from the land.
Intangible property; can clearly include things like shares and various types of intellectual property like copyrights and patents. Note however, that the limits of intangible property for theft are shown in the following case. Particularly, this suggests that property does not include trade secrets or other confidential information:
Oxford v. Moss (1978) 68 CrimApp R 183
Student who got access to an exam paper, noted the contents of it, but didn͛t in any way interfere or remove the paper itself. The question is whether that amounted to stealing the paper or the information in it. The original court held it wasn͛t theft of the actual paper on which the paper was hidden and the court held that the information within the paper itself was not property for the purposes of theft.
(ii) ON THEFT OF BANK ACCOUNTS SEE THE CASES REFERRED TO ABOVE AND ALSO
Finally, just a word about money. In this context, it͛s taken to mean actual cash. I.e. coins and bank notes. For this purposes, it does not include a credit in a bank account. The reason for that is this; we discussed the circumstances last week when someone could appropriate someone͛s credit. The relationship b/w banker and customer is that between debtor and creditor. If you have a credit in your account, you have a right to call upon the bank to pay you the amount of that credit. It͛s a contractual debt the bank owes you. You have no proprietary interest in any particular notes and coins the bank might have.
That contractual right the bank owes you is what the law calls a thing in action (old term ʹ shows in action) so that͛s the reference in s4(1) to things in actions. It͛s thinks like contractual debts which can only be enforced by rights in action.
Navvabi [1986] 1 WLR 1311
͞allowing the appeal and quashing the conviction, that by drawing a cheque on a bank account with inadequate funds, using a guarantee card to guarantee payment of the cheque and delivering the cheque to the payee, the drawer was not assuming the rights of the bank to an identifiable part of the bank's funds which corresponded to the sum specified in the cheque, and he therefore did not appropriate the bank's property within the meaning of sections 1(1) and 3(1) of the Theft Act 1968 either when the cheque was delivered to the payee or when the bank honoured the cheque; and that, accordingly, the defendant was not guilty of theft from the banks͟
ELEMENTS OF THEFT: BELONGING TO ANOTHER
The theft act was drawn up as an offence against ownership (in mind). Appropriation mirrors this concept. Note however that theft can take place from a person who has an interest of less than ownership in property. So it͛s not solely an offence against the owner. If we look at s5(1), the act itself makes that clear.
Definition: s5(1) ͞Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).͟
Again, quite a broad definition.
(i) S. 5(1): "POSSESSION OR CONTROL. . . OR . . . ANY PROPRIETARY RIGHT OR INTEREST"
It͛s possible therefore to steal the same item of property from more than once person. E.g. if someone steals a library book from you, the library has a proprietary right in it and you, where you have possession in it so they͛d be stealing from both of you. It doesn͛t normally matter who͛s specified as the victim when someone is charged with theft but it could matter for evidential purposes.
There͛s one interesting consequence from this idea that you can steal property from someone who has an interest less than ownership; namely, that it is possible for someone to steal their own property from someone who has a lesser interest in it at the time.
Turner (No. 2) [1971] 2 AER 441
(one of the early cases under the act. Seems to be a forerunner for the broader approach later cases took to the act)
Here, D had left his car at a garage to be repaired. When the garage told him the work had been done, he said fine, I͛ll come back tomorrow to pick it up and pay. He went back to the garage that evening after it closed. The car was in the forecourt. Having the spare keys, he got in and drove away. He͛s then charged with stealing his own car. He͛s certainly appropriated it. The car is undoubtedly a piece of property. Does it belong to another though?
The trial judge told the jury they simply had to consider whether the repairer had possession or control of the car when the defendant took it away. The trial judge said it͛s a question of fact and the answer was pretty clearly yes. The garage had at least physical control of the car and presumably they intended to hang on to it until they got paid. They jury must͛ve thought Turner was dishonest because they convicted him and the CA upheld the conviction.
Some comments about this case.
Firstly, we͛ll see later that dishonesty is a somewhat complicated issue in that it͛s a partly a definition of law (some things in s2 where a person isn͛t dishonest) and partly a question of fact. One situation where you aren͛t dishonest is where you take property believing you͛ve got a legal right to do so. In the case of owner͛s taking their own property, they may in many cases believe they have a legal right to do it. This is sometimes known as the claim of right. Turner does not appear to have tried to argue that he had a legal right to remove his own car without paying the garage but nonetheless, it might arise in other contexts. It will then be an issue for the jury whether it͛s a genuine belief or not. Secondly, the case is decided on the basis that it did not involve the question of whether the garage had a lien. (Denotes a right to retain possession of someone else͛s property for a certain purpose.) Normally, if someone does work on your property say a garage repairing your car, the person doing the work normally has a legal right to retain possession of your property until you͛ve paid. That͛s a question of civil law whether such a lien exists. Almost certainly, the garage in turner did have such a lien as a matter of civil law but the trial judge clearly it seems didn͛t want to get into debates about whether a lien existed and therefore just asked the jury whether the garage had control of the car in fact and bypassed issues of whether they had a legal right to hang on to the car till they got paid.
In terms of criminal court behaviour, it͛s quite understandable that in relatively straightforward cases, trial judges don͛t want to get into questions of civil law.
(check) something about stealing your property even if you have an immediate right to take possession of it. Because if the garage doesn͛t have a legal right to hold it, it follows that D must be entitled to take possession of it from someone who simply has factual possession. The case is criticised in legal textbooks on this ground. However, if you read this together with Gomez and Hinks, it͛s another example of courts refusing to allow civil law to intrude upon these straightforward questions of honesty. The best explanation of the case is probably that the garage had a lien but that͛s not the way the case is decided.
One of two points about ͚belonging to another͛;
It͛s possible for you to have control of property even if you don͛t͛ know you have it in your control. E.g. if you͛re on land with certain bits of property and you intend to exclude others with a fence for e.g. those who come on and take it will steal
Woodman [1974] QB 754
D was charged with theft of scrap metal from a disused site which had been fenced to exclude trespassers. The occupier had no knowledge of the existence of the scrap. The recorder allowed the case to go to the jury despite Ds submission that the scrap did not belong to another within the meaning of the Theft Act 1968 s.5(1). D was convicted.
Next phrase ͚any proprietary right on interest͛
While this obviously covers owners, it͛s possible also to have multiple owners (co-owners). It follows therefore that one partner in a partnership can steal partnership property from the others.
If we͛re talking about proprietary rights and interests, we need to bear in mind that one can have equitable interests which are proprietary. That takes us into the area of trusts. It follows therefore that a trustee of property who has the legal title can steal trust property form the beneficiaries.
How the courts operate it; First of all, they may find that on the facts of the case, an express trust has been created. That͛ll obviously give the beneficiary the appropriate proprietary interest. The courts have sometimes been able to do this with elaborate commercial frauds.
Clowes (No. 2) [1994] 2 AER 316
Involved a man controlling a no of companies who invited members of the public to invest sums of money on the basis that these investments were going to carry large rates of interest.These investments funded a champagne lifestyle for him. His fraud was successful while it lasted. He got millions of pounds. He͛s charged with stealing the sums of money invested in these companies.
Remember, the investors send Clowes money to invest, so they clearly intend to make him the owner of the money they send him and he does indeed become the legal owner of it. So when he diverts funds, he͛s diverting funds which belong to him. So to say he͛s stealing it from someone else, we need to find some kind of proprietary interest the investors retained.
That led the CA to look carefully at the terms of the offers Clowes was making in the contractual documents. The court held that on the wording of the prospectuses, a trust relationship had been created. It was finding an express trust on the wording of the documents on the strength of which the investments had been made.
It is a question of interpreting the particular legal documents in question rather than saying there͛ll be a trust in every case like this. E.g. here statement on brochure saying all moneys received are held in a designated client account and all clients are beneficial owners of property purchased on their behalf.
That͛s an example of an express trust. Brings us to the example of constructive trusts.Can CT͛s operate in the law of theft? Sometimes. The cases seem to go either way.
First of all, the situation of money paid under a mistake of fact. The case here is;
Shadrokh - Cigari [1988] Crim LR 465
Here, D was the guardian of a boy; R. R had a bank account at P͛s bank. Due to an error, USD 286, 000 was transferred to the credit of R in his account from an American bank (instead of USD 286). D on finding this out, then persuaded R to authorise the bank to issue banker͛s draft in favour of the defendant for most of this sum. He͛s charged with stealing the drafts.
Again, this is a situation where the bank intends the drafts to go to D and where the bank intends that D should become the owner of the drafts and therefor the money it represents. No question of any kind of express trust relationship created on the facts of the case, but the bank was making a mistake.
So the bank had paid out the draft on mistake basically. Banking law holds that a banker who pays out under a mistake of fact does retain an interest in money (or the equivalent) under a constructive trust. So money in this case was held to be on a CT in the favour of the bank. So when he appropriated the proceeds, he appropriated property belonging to another. So that͛s money paid under a mistake of fact. The civil law then supported this liability.
You can contrast this with another case which raises a different kind of problem about where the civil law creates a CT in these circumstances.
Att.-Gen's Reference (No. 1 of 1985) [1986] 2 All ER 219
This case concerns secret profits. It has to do with the manager of a pub which was a ͚tied pub͛; meaning, it is owned by a particular brewery who put in a manager who has a contract with the brewery basically to buy beer only from the brewery and is tied in that sense. The manager acquired beer from other sources which he then sold in the pub and kept the proceeds for himself. So he͛s made secret profits using his employer͛s premises in order to make the profits himself and is clearly in breach of his contract. The brewery decides to bring criminal charges and the manager is charged with theft of the proceeds from the sale of the beer he͛s bought on his own account.
He͛s clearly appropriated the proceeds. They are property. Let͛s assume he͛s dishonest (jury might disagree). He clearly intends to permanently deprive. Do the proceeds belong to another? Customers have paid for the beer. When they hand it over, they certainly intend the manager should become the owner of it. There͛s no express trust here, can it be said the law imposes a CT on the basis that the manager holds the proceeds on trust for the brewery.
The CA said there is no CT arising in these circumstances therefore, D did not steal the proceeds. Just to comment, in civil law terms, the defendant manager was an agent of the brewery in running the pub on their behalf and as such, is in a fiduciary position. This raises the question in civil law; if a fiduciary makes a secret profit, does he hold it on CT for the principal?
(There is a case called lister v stubbs) which suggests that a fiduciary who receives a bribe or makes a secret profit is not a CT for the amount of the bribe or the profit for the principal. CA relied on lister(older civil case) in making their decision. Agent is liable for proceeds but no proprietary interest for principal. Lister is a controversial decision and was not followed by PC in
A/G for Hong Kong v. Reid [1994] IAC 324
There, the PC took the view that a fiduciary who accepts a bribe in breach of duty does hold it on CT for a principal. There hasn͛t been a decision since but it looks open for debate at the level of the SC whether the beer case was rightly decided.
2 further points about s5 and the notion of belonging to another.
Marshall [1998] 2 CAR 282
(II) S. 5(3): OBLIGATIONS TO DEAL WITH PROPERTY IN A PARTICULAR WAY
Creating a special rule for one kind of debtor If you simply have a non-proprietary obligation to someone to pay them money, that will not grant a sufficient proprietary interest for the purposes of theft. S5(3) has a particular provision:
Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other.´
So this creates a kind of fictitious obligation in someone else where if they receive it they have to deal with it in a certain way. e.g. a charity collector at a flag day. When you put money into the box, you intend the charity to become the owner of the money and you expect that the person collecting it is going to hand it over. As far as the charity is concerned, the collector is under an obligation to them to deal with that money they receive in a certain way. So they͛d expect the person to hand over the exact notes/coins in that box or at least the equivalent.
So s5(3) will have the effect of saying that with regards to the law of theft, the charity will be regarded as having a proprietary right in that money. It͛s not a situation of an express trust or a CT, it͛s creating a certain fictitious property right for the law of theft. The question of whether such an obligation exists will be dependent on the facts of the case. One needs to be careful about giving s5(3) too wide a scope as it won͛t generally apply in the commercial context. It is basically going to be a special rule for things like charity collections and analogous kinds of private arrangements.
Authority that it won͛t apply financial sector; Hall [1973] 1 QB 496
Travel agent who collected deposits for flights to the US which he was going to arrange in the normal course of business. Paid the deposits into his firms general trading account but then he didn͛t arrange the flights and was unable to repay the money. Was he guilty of theft of the deposits he received?
Again, depositors intend the agent to become the owner of the money they transfer to him. There͛s no express trust as in Clowes type of case. Straightforward commercial transaction. No CT. Is he under an obligation to customers to retain the money and deal with it in a particular way? CA thought no. Expectation is the agent will arrange the flights in the normal course of business but customer wouldn͛t expect agent to maintain a particular fund/account for each of the deposits he took. It all went into the general trading account, and the flights came out of that account.
So s5(3) is basically going to work for one-off private arrangements or things like charity collections.
(III) S. 5(4): PROPERTY GOT BY MISTAKE
³Where 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, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.´ The best way to understand is to look at the old law and a particular problem this section was designed to deal with.
Moynes v. Coopper [1956] 1 QB 439
Problem arose in this case. Here, a wages clerk making up wages for employees didn͛t realise that D had been given an advance on his week͛s pay and the clerk made up the wages packet without deducting the amount of the advance. Straightforward case of overpayment. D opened the wage packet sometime after receiving it, discovered the mistake, and kept the overpayment. He͛s charged with larceny and it was held that he was not guilty. He͛d become the owner of the money upon delivery. He͛d not himself practiced any kind of deception and was simply the beneficiary of a mistake by the clerk.
This was thought to be a result that was wrong in principle therefore, s5(4) was put in to deal with that kind of problem.
So s5(4) says that if there is an obligation to make restoration of the amount of the overpayment, then that amount of overpayment is regarded as belonging to another for the purposes of theft. So in Moynes, the argument goes that when he opens and sees he͛s overpaid, he͛s under a civil law obligation to repay at that point and if he keeps it, that͛s theft. (Assuming he͛s dishonest)
Some points about 5(4)
Firstly, it͛s not 5(4) itself which creates the obligation to make restoration. The question of whether an obligation exists is a question of law and a question of civil law as the wording here presupposes and obligation at civil law. Again, the civil law is a complex matter but broadly speaking, the civil law position is that if money is paid under a mistake of fact, there is generally an obligation to repay that amount under the law of restitution. This is a question of a legal obligation. The requirement of a legal obligation to make restoration as confirmed in the CA in Gilks [1972] 3 All ER 280.
Now, we can think about the situation of people who are given excess change. If you keep the overpayment, do you steal? The analysis for this simple-everyday question turns out to be quite complex. Basically, it comes down to a question of dishonesty. If you realise the moment the money has been handed over that you͛re being paid too much and you don͛t say anything and take the money, under the principle in Gomez and Hinks, you certainly appropriate property belonging to another. So if you͛re dishonest at the moment of actual receipt, it͛s appropriation and theft.
If you don͛t realise at the time the money is given to you, but you only realise later such as in a Moynessituation, then at that stage, the title in the money has passed to you. If you decide to keep it, you appropriate it as keeping as owner (covered by s3), it belongs to another by s5(4), so again it comes down to a question of honesty. So either way, whether you realise at the time or subsequently, it satisfies the actus reus of theft.
ELEMENTS OF THEFT: DISHONESTY
Partly a question of law and partly of fact Not really defined but Theft Act 1968 s2 sets out 3 situations where a person͛s appropriation of property is not to be regarded as dishonest.
(1) A person¶s appropriation of property belonging to another is not to be regarded as dishonest² (a)if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or (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; or (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.
- Claim of right o Appropriate believing you have the right in law to deprive the other o E.g. if someone has your pen, you want it back, and simply take it - Belief in consent o If you appropriate believing the other would consent knowing the circumstances o E.g. someone who helps themselves to a pint of milk from their neighbours doorstep - If you appropriate in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. (has to do with theft by finding) o So it͛s a q of what you believe at the time you decide to keep it. o With a found coin for instance this will clearly succeed. With a wallet full of money and credit cards for instance it͛ll be more unlikely for D to be believed. But it͛s subjective not objective.
So that͛s 3 particular situations s2 deals with. What happens to situations outside that? According to the authorities, it then becomes a question of fact and the test the jury has to apply is set out in Ghosh.
Ghosh [1982] QB 1053
[facts not that helpful] CA laid down a test which has become the standard theft of dishonesty and it͛s a test which has 2 stages.
Firstly, the jury have to look at what D did and the state of mind with which he did it and they have to ask themselves ʹ ͚is what the defendant did dishonest by the current standards or ordinary, decent people?͛ If the answer to that question is ͚no͛, and ordinary decent people would regard D͛s conduct as honest, then there͛s no theft. So that is applying an objective test to what D did. If the jury or the magistrates decide it would be dishonest by the current standards of ordinary decent people, they then have to ask a second question; ͚did the defendant himself realise that what he was doing was dishonest by those standards͛
So that͛s a subjective question. It asks about D͛s perception of the current ordinary standards of honesty. It͛s not the same as asking whether D thought what he was doing was honest or dishonest by his own standards.
Subject to quite a lot of critical comment but in practice, it hasn͛t given rise to much difficulty as there are very few cases which are actually decided on the dishonesty point and given how long ago it was, there are very few questions that have raised questions about it.
So despite the academic criticism levelled at it, it does seem to be working in practice.
One of the standard criticisms is that it presupposes some sort of social consensus on standards of honesty. So the question is whether those standards are actually agreed? Might there not be considerable variation depending on different communities. Indeed even different juries may not agree.
Think again about this example of keeping excess change. Would ordinary, decent people think that͛s dishonest to keep the excess change? That͛s debatable.
A second line of criticism sometimes being made has to do with the situations of D who hold very strong moral positions on the matters to do with property and claim that right-minded people should think like them. An example here, largely hypothetical, would be say animal rights groups who go about taking or releasing laboratory animals, if they͛re charged with theft, could they actually claim that they͛re not dishonest as ordinary decent people ought to take the view they do ʹ they they͛re saving the animals from an unpleasant fate and that͛s praiseworthy even.
Final point about dishonesty Is to highlights its importance in theft bearing in mind the width of the actus reus. A lot of everyday transactions constitute the actus reusof theft and basically, a lot of liability in theft not revolves around that concept of dishonesty. Given that the Ghoshtest is quite indeterminate, one might ask as a matter of principle whether this is a good state for the law to be in.
( see tutorial notes regarding Feely [1973] 1 QB 530 and other criticisms of the test)
ELEMENTS OF THEFT: INTENTION OF PERMANENT DEPRIVATION
This is the one element of stealing which is the same as under the old law of larceny. English law has never made dishonest borrowing of other people͛s property a crime. The CLRC thought that rule ought to apply in the new law of theft as well and this requirement was retained. So generally speaking, it͛s not an offence to take someone else͛s property intending to restore it to the owner at some stage.
There are 2 exceptions to the rule in the act. Exception under s 11 called removing articles from places in the public. Passed to deal with a specific incident a few years ago when a person went to the national gallery, and deciding he liked a particular portrait a lot, took it away and had it hanging on his wall for four years. Held that he was not guilty as he intended to restore it at some stage of his own choosing.
Rather understandably, it was held that such situations should not reoccur and hence this special section
S12 is the offence of taking a motor vehicle or other conveyance without authority. It is the offence of basically criminalising joyriding. This has been a major problem over the number of years hence the special provision in s12 dealing with it.
When the theft bill was going through parliament in the 60s, there was some concern expressed about one or 2 fringe cases to do with this intention. The government tried to meet that concern by putting an extra provision in the bill to try and ͚buy off͛ the opposition as it were and that led to the introduction of s6. It͛s fair to say s6 is a bit of a disaster. It͛s a complex provision (worse than 5(4) even)
Definition: Theft Act 1968 s6(1)
͞A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other¶s rights; 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.͟
On the face of it, it looks like it͛s watering down the intention to permanently deprive. E.g. on the basis that you͛re treating the thing as yours to dispose of, we͛ll treat it as if you are intending to permanently
But courts have insisted that that is neither the purpose nor intention of s6
Lloyd [1985] QB 829
Lord Layne (LCJ) said s6 was not to be taken as watering down or modifying the intention to permanently deprive. Went on to add that in a great majority of cases it shouldn͛t be referred to at all
So it seems s6 is intended to only refer to one or two really unusual types of cases doesn͛t cover 2 cases in particular which might be thought to be relatively common. (͚short-term͛ dishonest borrowings * ͚conditional apprpriations͛)
One of them is illustrated by Lloyd itself.
Lloyd involved employees of cinema owners which ͚borrowed͛ films which were going to be shown in the cinemas and made illegal copies of them. A form of ͚piracy͛ essentially. The cinema owners were not losing anything in a sense as they put them back. Were they stealing the films? Assuming all other 4 factors, do they intent to permanently deprive? Given those words in the ordinary meaning, the answer is no. CA said s6 doesn͛t ͚bite͛ on this type of case. It wasn͛t intended to convert a short term dishonest borrowing into theft. (at the time, this wasn͛t an uncommon practice)
The other type of case is what is sometimes called a conditional appropriation; illustrated by Easom [1971] 2 QB 315
Here, D was sitting in a cinema. Got a bit bored and decided to pick up the handbag of the person sitting in front of him. He picked it up, had a look through it, and put it back. What he didn͛t know was that the handbag belonged to a policewoman and she had it attached to her wrist by a cotton thread and this was a set-up. There͛d been a number of thefts of handbags from that particular cinema and it was basically a form of entrapment.
He͛s charged with theft of the bag and its contents (the wording of the charge is important) he͛s satisfied the actus reus and dishonesty. Does he intend to permanently deprive of the bag or the contents? His argument was when he picked up the bag he had not decided to steal it or anything in it. He was having a look to see if there was anything worth stealing. Court said that it wasn͛t an intent to deprive and again, s6 doesn͛t have any impact on the situation: ͞what may be loosely described as a conditional appropriation will not do͟
So Eason was acquitted of theft.
This is a case you need to treat with care as the wording of the charge here is important. The way now to convict someone like Easom is not to charge them with stealing the bag and its contents but to charge them with an attempted theft from the bag. That charge will be good in law and someone like Eason will be convicted quite straightforwardly. The point about the change of the wording of the charge; we can probably all agree that when Easom picks up the bag, he͛s made up his mind to steal something valuable. (trying to decide if there is anything valuable) so in that sense, he has an intention to permanently deprive. So he͛s trying to steal from the bag and the fact there may be nothing in the bag he wants to steal is immaterial. Under the law of attempt, it͛s quite legally viable to do the impossible. E.g. you can try to steal from a pocket that is in fact empty.
Types of cases which are covered by s6
These examples are largely hypothetical; very few cases on s6. Commentators generally agree this would cover situations where;
- D takes someone͛s property in order to ransom it. - You basically appropriate the value or the virtue of something without intending the owner to lose the thing itself o E.g. if someone takes a season ticket, intending to use it for the period of its validity, and then returning the ticket to the owner, that͛d be a section 6 case.