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Essay – Law of Theft

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    Theft Theft is the main non-fraudulent property offence. The most important offence of the Theft Act 1968 is theft itself. According to the sec. 1 (1) of the Theft Act 1968: “A person is guilty of theft if he dishonestly appropriates property belongings to another with the intention of permanently depriving the other of it’’ There are five elements in s. 1 (1) of Theft Act 1968. All the five elements are necessary in order to convict a person under s. 1 (1) of the Theft Act 1968. The five elements are- 01. Property 02. Appropriation 03. Belongings to another 04. Intention to permanently deprive

    05. Dishonesty Among the five elements there are three elements, which are Actus Reus – 01. Property (s. 4 of Theft Act 1968) 02. Appropriation (s. 3 of Theft Act 1968) 03. Belongings to another (s. 5 of Theft Act 1968) Among the five elements there are two elements, which are Mens Rea 04. Intention to permanently deprive (s. 6 of Theft Act 1968) 05. Dishonesty (s. 2 of Theft Act 1968) Sentence: The maximum sentence for theft is 7 years imprisonment. (s. 7 of Theft Act 1968) Actus Reus of Theft PROPERTY For there to be theft, the defendant must have appropriated ‘property’.

    s. 4(1) of Theft Act 1968 defines- ‘Property includes money and all other property, real or personal, including things in action and other intangible property. ’ Property includes money referring to coins and banknotes (Davis). Personal property is also straightforward as it covers all movable items. For example- Books, cloths, cars etc. ‘Property’ has a very wide meaning which includes thing in action such as debts and cheques Example of things in action – debt, money in credit card, copyright, credit balance in bank account/ shares, cheques etc.

    Intangible property means property that does not exist in a physical sense, for example- goodwill of a business. The followings do not constitute property— Information: Information cannot be stolen. In Oxford v Moss (1978), a student had seen a copy of an exam paper he has to sit but had not taken the paper itself. The court held that the student was not guilty of theft of the information on the paper because information is not property and cannot therefore be stolen. Electricity: Electricity is not property. It cannot be stolen according to law: Low v Blease (1975) .

    A human corpse / Human body: At common law there is no property in a human corpse and cannot be stolen. But in R v Sharp (1987), the human body will only be treated as property if it has been altered for the medical and scientific examination and thereby acquired financial value. In R v Kelly and Lindsay (1998) , the defendant was aided by the second defendant, a junior technician at the college, he had removed approximately 35 human body parts from the Royal College of Surgeons. They were convicted of theft. Real property: s. 4(2) of the Theft Act 1968 states that –

    “A person cannot steal land or things forming part or land and served from it by him or by his directions, except in the following cases, that is to say- (a) when he is a trustee or personal representative, or is authorized by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriated the land or any thing forming part of it by dealing with it in breach of the confidence reposed in him: or (b) when he is not in possession of the land and appropriates anything forming part of the land by serving it or causing it to be served; or

    (c) when, being in possession of the land under a tenancy, he appropriates the whole or any part of any fixture or structure let to be used with the land. ” So there is only one category of person who can be charged with stealing any land itself. These are trustees ete. who act in breach of confidence. The s. 4(2)(c) applies only to tenants of land, who can be guilty of theft if they appropriate fixtures or structures from the land. As tenants they are in possession of the land and so can not be guilty under s. 4(2)(b). However, if a tenant appropriates an item such as a door handle, fixing mirror, or a washbasin, then this can be theft.

    Things growing wild / wild plants: Section 4(3) of Theft Act 1968 provides – “a person who picks mushrooms growing wild on any land, or who picks flowers, fruits or foliage from a plant growing wild on any land, does not ( although not in possession of the land) steal when he picks, unless he does it for reward or for sale or for other commercial purpose. For the purpose of this subsection ‘mushroom’ includes any fungus, and ‘plant’ includes any shurb or tree. ” Similarly, picking roses from someone’s garden would be theft, but picking wild flowers in a field would not (unless for sale or reward).

    However it should be noted that it is an offence to pick, uproot or destroy certain wild plants under the Wildlife and Countryside Act 1981. Where picking fungi, flowers, fruit or foliage is done with the intention of selling them or for reward or any commercial purpose, then they are considered property which can be stolen. Wild Animals/ Creatures: s. 4(4) of the Theft Act 1968 suggests that wild animals are property but cannot be stolen unless they have been kept in captivity (For example in Zoo). The wild animal can be ‘poached’, but this offence exists separately from the offence of Theft.

    APPROPRIATION Appropriation is defined in s. 3 (1) of Theft Act 1968 – “Any assumption by the person of 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. ” In Corcoran v Anderton (1980), two youths tried to pull a woman’s handbag from her grasp, causing it to fall to the floor. The seizing of the handbag was enough for an appropriation, even though they did not take the bag away.

    The second part of the definition, deals with a situation where there is no initial dishonesty when the property was acquired but the later decision to assume the rights of the owner is dishonest. This covers the situations where the defendant has else’s umbrella, thinking that it was his own. On getting home the defendant then realizes that it is not his. If he then decides to keep the property this is a later assumption of a right and it is a appropriation for the purpose of the Theft Act 1968. Appropriate with consent: The question may arise; can a defendant appropriate an item when the owner has given it to them?

    The answer is YES. In Lawrence V MPC (1972), the House of Lords held that taking with consent can amount to an appropriation. The proper fair for the journey should have been 50 p. The student (The Italian student who Spoke little English) offered a pound note; The D took this and indicated that more was required. He then took a further 6-pound from the student’s wallet, which was held open for him. Lawrence was convicted of theft. The point as to whether the appropriation had to be without the consent of the owner was considered again by the House of Lords in Gomez. In Gomez (1993) case, Gomez was the assistant manager of the shop.

    He persuade the manager to sell electric goods worth over 17,000 to an accomplice payment by two cheques, telling the manager they were as good as cash. The cheques were stolen and had no value. Gomez was charged and convicted of theft of the goods. Appropriation as an unauthorized act: There could only be an appropriation where the acts of D were unauthorized; in other words where the owner had not consented to the defendant’s act. In R v Morris (1983), the situation was that Morris took goods from the selves of a super market, and switched their price labels with those of cheaper products.

    He then took them to the checkout and charged the lower price on the new labels, which he paid. The House of Lords held that it was not actually necessary to assume all the rights of an owner. It is enough that he should assume any of the owner’s right. Morris was liable for theft. Need to touch the property ? There is no need to touch property for an appropriation. In Pitham v Hehl (1976) it was held that an offer to sell property was appropriation of the rights of owner. Consent without fraud/deception: The law extend to the situations where a person has given property to another without any deception being made.

    In Hinks (2000), Hinks was a 38-year-old woman who had befriended a man who had a low IQ. He was however, mentally capable of understanding the concept of ownership and of making a valid gift. The man deposited the total 60,000-pound money in Hinks’ account. The man also gave Hinks a television set. Hinks was convicted of theft of the money and the TV set. The Judge directed the jury to consider whether the man was so mentally incapable that the defendant herself realized that ordinary and decent people would regard it as dishonest to accept a gift from him.

    Appropriation of funds held in bank accounts: Credit balance in a bank or building society account may be the object of the theft. In R V Khon (1979), a company director was authorized to sign cheques on behalf of the company. In fact he signed some cheques for his own benefit and the signing of the of the cheques amounted to an appropriation. In Osman (1999), the court stated that appropriation took place when the defendant dishonestly issued a cheques. Telex instructions to issue a cheque – appropriation at place and point of sending telex.

    (Osman) Presenting a cheque- appropriation at place and point of presentation ( Nagan ) Computer instruction – appropriation at place and point of receipt of instruction. (Levin) Protection of innocent purchasers (bona-fide purchaser): s. 3(2) of the Theft Act 1968 which states – “ Where property or a right or interest in a property or purports to be transferred for value to a person acting in good faith, no later assumption by him of the rights which he believed himself to be acquiring shall, by reason of any defect in the transferor, a little amount to theft of the property ’’

    The aim of this section is to prevent defendant being liable if he purchases goods in good faith and for value and subsequently finds out that the person who sold him the goods did not have the title to them so that the goods still belong to someone else. Example – Rahim’s car is stolen by Karim who then sells it to Jamir who buys the car in good faith. Jamir is not guilty of theft if he keeps the car. PROPERTY BELONGING to Another The property appropriated must belong to another at the time of the appropriation. Section. 5(1) of Theft Act 1968 states that –

    “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 a n interest)”. Thus it does not just include the owner, but any one having possession and control of it. Additionally, property must also belong to another at the time defendant appropriates it. Ownership, possession and control: If someone takes a book you have borrowed from the library. It can be said to appropriate property belonging to you, even though you do not actually own the book.

    The owner can in some cases be liable for stealing their own goods. The point is illustrated in below: In Turner (No 2) (1971) ; Turner left his car at a garage for repairs. When the repair were almost finished the garage left the car parked on the roadway outside their premises. Turner used a spare key to take the car during the night without paying for the repairs. Turner was liable for stealing his own can because the garage had possession of the car and in lawful control at the time he took it and all the other elements of theft existed.

    In R v Marshall (1998), the defendant appealed against conviction for theft of underground tickets obtained from passenger and sold at a reduce rate to other passengers. The court stated that it will amount theft as tickets still belonged to London Underground because they retained a proprietary right or interest in them. In South Staffordshire Water Co vs Sharman (1896), Two gold rings were found in the mud in the Minister Pool in Lichfield by one of a member of Laborers employed to clean in out. It was held that, the owner of the pool had a better right than the finder. Trust Property:

    Where the property is a trust property, it is possible to steal this trust property. s. 5(2) of the Theft Act provides – “ Where property is subject to a trust, the person to whom it belongs shall be regarded as any person having a right to enforce the trust and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right. ” Property received under an obligation: There are many situations bin which property ( usually money) is handed over to defendant on the basis that defendant will keep it for the owner or will deal with it in a particular way.

    Section 5(3) tries to make sure that such property is still considered as ‘belonging to the other’ for the purposes of the law of theft. Section 5(3) of the Theft Act 1968 states that – “Where a person receives property from or on account from 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”. Property got by a mistake: Where property has been handed over to defendant by another’s mistake, this property still belong to another and if defendant keeps it willingly then it will be theft.

    Section 5(4) of the Theft Act 1968 states that – “ Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property …….. and intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds. ” In A-G Reference (No 1 of 1983) (1984), a police officer received an extra 74 pound in her salary due to an accounting error by her employer and failed to give it back. The court held that the extra money was clearly belong to the employer and by kept it she amounts a theft.

    It was held that s. 5 (4) applied because he was under an obligation to make restoration of the money. MENS ReA of Theft There are two points, which need to prove for the mens rea of theft. These are- Dishonesty Intention to permanently deprive Dishonesty The Theft Act 1968 does give three situations in which defendant’s behavior is not considered dishonest. Section 2 of the Theft Act 1968 provides that – A person’s appropriation of property belonging to another is not to be regarded as dishonest –

    He has a legal right to deprive another of t he property (s 2 (1) (a) of TA 1968) He would have the other’s consent if the other knew of the appropriation and the circumstance of it (s 2 (1) (b) of Theft Act 1968) The person to whom the property belongs can not be d is covered by taking reasonable steps (s 2 (1) (c) of Theft Act 1968) In R v Small (1987), Defendant took a car. He said he believed it was abandoned. It had been parked in the same place without being moved for two weeks. Also it appeared abandoned because the doors were unlocked and there was no petrol in the tank.

    Defendant put petrol in the tank and managed to start it. He was convicted for theft. But the Court of Appeal quashed the conviction because the question was whether defendant had an honest belief that the owner could not be found and there was evidence that he might have believe the car was abandoned. The current test for dishonesty was put forward in R v Ghosh (1982). In Ghosh case, D was a doctor acting as a locum consultant at a hospital. He claimed fees for an operation he had not carried out but maintained that he was not dishonest because he was owned that amount in consultation fees.

    The court of Appeal dismissed his appeal against his conviction. The court laid down a two-tier test in order to find dishonesty- 1. Was the defendant dishonest according to the standards of ordinary decent people? (Objective Test ) 2. Did the defendant realize that what he was doing was dishonest by these standards ? (Subjective Test ) Thus the court should first ask whether the defendant had been dishonest by the ordinary standards of reasonable and honest people. If the answer is ‘Yes’, the court should then ask whether the defendant relaise that he or she had been dishonest by those standards.

    If the answer to this second question is also ‘Yes’, there was dishonesty. Section 2(2) of the Act provides- “A person appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property. ” Example – Defendnat takes a newspaper from Jack’s doorstep but leaves money there to cover the full cost of the newspaper. This may amount theft. Intention to permanently Deprive The final element which has to proved for theft is that the defendant had the intention to permanently deprive the other of the property.

    Section 6 (1) of Theft Act 1968 provides that – “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 leading 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. ”

    In R vs Lloyd (1985) In this case a film had been taken for a short time and copied, then the film replaced undamaged. This was not sufficient for an intention to permanently deprive. the court held that – a mere borrowing was never enough to constitute the necessary guilty of mind unless the intention was to return the thing in such a changed state that all its goodness or virtue was gone. It was held in Marshall (1998) case that the acquisition of X’s unexpired travel ticket and subsequently sale to a third party could constitute a theft. It does not matter whether the defendant intends to replace the money or property later.

    In R v Velumy (1989), defendant was a company manager. He took 1,050 pound from the office safe. He said that he was owned money by his friend and he was going to replace the money when that friend repaid him. The Court of Appeal upheld his conviction for theft as he had the intention of permanently depriving the company of the banknotes which he has taken from the safe, even if he intended replacing them with other banknote to the same value later. Sec 6 (2) of Theft Act 1968 provides- “where person having possession or control of property belonging to

    another, parts with the property under a condition as to its return which he may not be able to perform, this amounts to treating the property as his own to dispose of regardless of the other’s rights. ” Md Mahfuzur Rahman (Milon) LLM ( Int. Commercial Law ) Barrister-at-Law Advocate, Supreme Court of Bangladesh ____________________________­___________________ Note: Please always try to follow the main textbooks and Subject Guide. Don’t concentrate only on my handout. Conditional intent to Theft Another issue is whether a conditional intent suffices for theft?

    In R vs Easom (1971) The Defendant was in a cinema, where the victim had placed her handbag on the floor. He picked up the bag intending to steal money or any worth keeping. In fact there were only a few tissues and aspirins inside, so he put the bag back. The Defendant was charged with theft, but his conviction was quashed on the ground that he had no intention to permanently deprive of those things. A defendant must form a definite intention to permanently deprive the owner of the particular property alleged to be stolen and the defendant had not formed any such intention in relation to the handbag or its contents.

    [But it should be pointed that the defendant could have been liable for attempted theft of money as attempt can be conditional and impossibility is not a defence for being liable under attempt ] Md Mahfuzur Rahman (Milon) LLM ( Int. Commercial Law ) Barrister-at-Law Advocate, Supreme Court of Bangladesh ____________________________ Chamber: The Legal Solutions 185 Elephant Road (Hatirpool) Room # 706 (6th Floor), Dhaka. Email: mahfuzur. [email protected] com Note: Please always try to follow the main textbooks and Subject Guide. Don’t concentrate only on my handout.

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