Property Offences Summarised Notes for the Criminal Law module, LLB, at City, University of London (achieved a 1st class using these) - can of course be used for other universities as well! Would really recommend the full bundle of notes!
Theft – s.1 of Theft Act 1968 (Maximum sentence 7 years imprisonment)
Theft= dishonestly appropriates property belonging to another with the intention of permanently
depriving the other of it
Actus reus Mens rea
Conduct Any conduct causing result Voluntary
Circumstance -What is appropriated is Knowledge
property Knowledge
-Belonging to another Knowledge
-Ds appropriation is
dishonest
Result D appropriates Vs property Intention
Ulterior mens - Intention to permanently deprive of
rea property
Theft:
Appropriation (s.3); Of property (s.4); Belonging to another (s.5); With the intention of
permanently depriving V (s.6); Dishonesty (s.2)
Appropriation (defined in s.3 TA)
o Whether D must appropriate all the rights of the owner
o Whether consensual appropriation will satisfied this element
o Whether D appropriates where V has given the property as a valid gift in civil law
Rights of the owner
Ownership of property comes with associated rights, e.g. possession, control, legal and equitable
rights. Question is whether D appropriates if assumes one of these rights or the complete bundle –
Morris = one right sufficient
Morris [1984]
D switched labels on supermarket goods to purchase the more expensive good at a lower price. He
went to checkout and paid lower price. D was charged with theft. D assumed a right of the owner,
the right to price the goods, and this was sufficient to amount to an appropriation
-Morris confirmed by HOL in Gomez
-D can appropriate certain property rights by omission or through the mental ‘act’ of deciding to
treat Vs property as their own. If taken accidently, does not count to appropriate unless they keep it
e.g. kid takes toy
-most cases of theft occur at a single or instance event so if D takes and run with a bag,
appropriation starts and finishes moment D touches the bag important when uncertain with
jurisdiction e.g. stolen car abroad
Appropriation with consent
TA 1968 does not limit to only non-consent, ‘any assumption’ of rights will constitute as
appropriation.
But cases like Laurence held consent/non-consent is irrelevant
Inconsistent approach of previous cases eventually addressed in Gomez
1
,Gomez [1993]
D was the assistant manager of an electrical goods shop, he convinced his manager to allow a
customer to buy items using a cheque he knew was stolen and therefore worthless. D charged with
theft. HOL said appropriation will be found where there is an assumption of ownership rights by D,
regardless of consent
Appropriation with full civil title
Hinks provides that where D assumes ownership rights from V, there may be appropriation even
where property is consensually transferred from V with full title. Thus, D may be liable for theft of
certain property in criminal law, but entitled to keep the property in civil law.
Hinks
D befriended V who was a man decribed by the court as naïve, trusting and of limited intelligence.
Over a 6 month period, she took V to his building society almost every day, withdrawing £300 the
maximum withdrawal, totalling over £60k. At the point of arrest, D had taken all of Vs money as well
as his television charged with theft. The transfer of the money may not be a civil wrong, but it is
still appropriation and theft
Distinction between Hinks and Gomez
Hinks involved a full and valid transfer of property in civil law, which in Mazo, COA held a valid gift
could not be subject to a conviction for theft
Theft not used to protect ownership rights, but punishes for gaining valid ownership targets
dishonesty and exploitation
Challenging Gomez
Gomez should have led courts to change definition of appropriation. With its conflict in civil and
criminal law, Gomez undermines role of appropriation in theft by rendering that element of
negligible significance. Any touching of Vs property would suffice actus reus, so focus of theft is
on mens rea makes it a thought crime
The Bonda fide purchaser exception
s.3(2) TA 1968 creates an exception where no appropriation will be found – where D purchases a
property in good faith (bona fide), believing she is gaining full civil title, it then transpires that she
has not been transferred (e.g. due to good were stolen) but D continues to treat the item as her
own. D appears to have assumed the rights of the owner and thus comes under appropriation
s.3(2) prevents this if D paid, not for gifts
Property – s.4 TA 1968
= includes money, all other property, real or personal, including things in action and other
intangible property
Real property= land, Personal= all property that is not land, includes property that is
illegal/prohibited e.g. drugs
Things in action= category of intangible property where D has right to sue another for a specific
sum, mainly with bank accounts. Depositing money creats a form of intangible property, our
rights to sue bank for a sum. So where D dishonestly causes bank to transfer funds to Vs account,
D does not steal any physical money of Vs, but steals a thing in action (i.e. steals Vs rights to sue
Vs bank for a sum of money), including overdrafts
Other intangible things extends to beyond most common things in action – AG of Hong Kong v
Chang-Nai Keung which D, director of company A and B, sold export quotas from one company to
the other at a gross undervalue. Although the export quotas did not represent a thing in action, it
was held to constitute as other intangible property and were subject to theft
Problem of categorisation as emerged with the stealing of cheques. Cheque given by V for
consideration creates a thing in action creates a right to sue Vs bank for the specific sum D
2
, gains brand new right to sue Vs bank can wait for theft to arise when cheque is presented and
causes a bank transfer can seem a bit late.
Alternatively, cheque as a piece of paper is tanngible, but is intended to go to bank not
permanently deprived
Exceptions – s.4 highlights exception to definition of property
Land (s.4(2): where D takes Vs land without splitting it it as, e.g., where D moves garden fence a
few inches into Vs garden, may have appropriated property within civil law, but this will not
constitute property for theft
o S.4(2)(a): says where a trustee (like a representative, or someone with power of attorney etc)
disposes that property dishonestly for their own advantage, they may commit theft
o S.4(2)(b): allows theft where D not in possession of land, but appropriates something forming
part of the land by severing (splitting) it. E.g. moves fence but takes the plants etc
Wild mushrooms and flowers (s.4(3): no theft for these, and includes fungi. Intention is vital for
liability
Wild creatures (s.4(4): if untamed or not kept in captivity, does not count as theft. E.g. if D kills
and removes a wild animal from Vs property, e.g. a pheasant may be guilty of a poaching
offence, not theft
Electricity: not a property for theft, separate offences in s.13 of TA of wasting or diverting
another’s electricity
Confidential information: not a property for theft – Oxford v Moss
Services: e.g. a taxi ride is not a property, so failure to pay is not theft, but likely an offence of
obtaining services dishonestly under s.11 of Fraud Act 2006
Bodies: human bodies/ parts not classed as property under s.4. but recently held bodily products
intended to be held or controlled can amount to property e.g. urine samples, sperm deposits,
blood from blood bank etc
Oxford v Moss
A university student unlawfully acquired an examination paper, read and returned it, could not be
liable for theft, but there could be an offence under the Computer Misuse Act (1990), where info is
taken from a computer
Belonging to another
Theft to protect ownership rights of others, not prevent other dishonestly assuming property
rights
Possession or control: property is intended to be controlled or possessed. E.g. vending machine
owners possess coins inside even if they do not know the quantity – need to see sufficient claim
of possession – Rostron
Rostron [2003]
D and other trespassed onto a golf course at night, and took lost golf balls from a lake which was
part of the course. D charged with theft of the balls. Course owners did not intend to collect balls
themselves, they still maintained possession and control over them
Where D is the owner, and takes it from another who has possession or control – Turner
Turner (no.2) [1971]
D had his car repaired by V at a garage. On collecting his car, D used a spare set of keys to take his
car without paying. D charged with theft. Garage was in possession and control of car, so guilty
Proprietary interest: civil law rules of ownership, but not always straightforward – Marshall
[1998]
3
, Marshall [1998]
D obtained part-used tickets from underground users and resold them. TFL claimed ownership of the
part-used tickets, making Ds reselling an appropriation of their property. D charged with theft. The
question was whether a clause on the back of the ticket stating Vs continued ownership of the ticket
was sufficiently clear to the buyer. If yes, it remained Vs property in civil law – court found clause
was sufficiently clear
Specific examples within s.5
Along with definition of ‘belonging to another’ in s.5(1), rest of section clarifies potential problematic
situations
s.5(2): where D, a trustee, dishonestly appropriates from that trust, she takes property from
another.
s.5(3): deals with property given to D for a purpose e.g. money to cleaner for cleaning products. If
the property that is passed on is dealt with in an improper manner, it will constitute as taking
property from another
o a question is whether D is expected to use specific money for a specific purpose e.g. travel
agent receives deposit for trips, but no expectation they will do with the money provided (can
do with other money) if they fail to provide a trip or refund= contract matter, no theft
s.5(4): applies where D receives property by mistake and is under an obligation to return it e.g.
overpayment of wages. D appropriates where refuses to make restoration – Gresham [2003]
s.5(5): clarifies that a legal person (a corporation) can own property. Thus e.g. if a director
appropriates company property, they are taking property of another
Gresham [2003]
Ds mother died and yet D, who had power of attorney, did not inform her pension provider (v) who
continued to make payments for 10 years. D used this money as his own. D charged with theft. D
was under s.5(4) under a duty to return the money, so his use of it amounted to taking of property
from another
Abandonment
Where abandoned, cannot be capable of theft, but very rare e.g. if throw property in bin, and taken
by D, not an authorised collector, it is not abandoned and appropriates it
Intention to permanently deprive
When appropriating the property of another, D does so with intention to permanently deprive V
of it
s.1(2) of TA shows theft does not need to be for Ds benefits e.g. D gives away Vs property still
theft
intention to permanently deprive is an ulterior mens rea element, no corresponding actus reus,
concerns Ds intention at time of appropriation e.g. D takes a watch intending to return, but loses
or changes mind no theft
Extensions (TA 1968, s.6(1)
sets out what it means to intend to permanently deprive
Ransoming or selling property back to V: D appropriates property with intention to sell it back,
or ransom it D does not intend to permanently deprive V of it. But courts have treated this as
treating property as their own
Replacing with identical property: D takes property intending to replace it with identical one.
More troublesome with money, as if it is not same notes will satisfy s.6(1) – Velumyl
Removing value from the property: D intends to take property and return with all value
removed intention to permanently deprive e.g. car after setting it on fire. But Lloyd gives
uncertainty when some value is removed
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