LAW of THEFT Theft Act 1968 Theft Defined in S1 of the Act Some

LECTURES 10-11: LAW OF THEFT 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.

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