Class notes
Property Offences (Theft & Fraud)
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Lecture notes on Theft with summaries of relevant case law, covering problems with the dishonesty test in Ghosh outlined in Ivey.
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=== LECTURE ELEVEN & TWELVE ===PROPERTY OFFENCES
1. THEFT
1.1. Source/Relevant Provisions
Definition
S. 1(1), Theft Act 1968
A person is guilty of theft if he dishonestly appropriates property
belonging to another with the intention of permanently depriving
the other of it; and “thief” and “steal” shall be construed
accordingly.
o Elements of Theft
(i) AR: Appropriation of property belonging to
another
o Appropriation [s3]
o Property [s4]
o Belonging to another [s5]
(ii) MR: dishonestly and intent to permanently
deprive
Dishonestly [s2]
Intent to permanently deprive [s6]
Sentence
s. 7, Theft Act 1968
A person guilty of theft shall on conviction on indictment be liable
to imprisonment for a term not exceeding seven years.
maximum dicta: 7 years
1.2. Elements
1.2.1. Actus Reus
[A] Appropriation
Definition
s. 3(1), Theft Act 1968
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.
, Not necessarily be physically removed or kept away from the
owner.
Can omission amount to an appropriation?
There can be multiple appropriations (?)
Rights of an owner: right to sell, hire out, give away, lend,
mortgage, damage, destroy, throw away, etc.
Case Law
Q: What/How many rights of the owner to be deprived in order to
amount to appropriation?
Morris [1984] AC 320 (HL)
D removed a price label from a joint of pork in a supermarket and
attached it to another more expensive joint.
Ratio: There was an appropriation when D switched the labels,
because D had adversely interfered with or usurped the rights of
owners of the goods to ensure that they were paid for the proper
price.
Principle: Assuming any one of the owner’s rights amounts to
appropriation.
Lawrence v MPC [1972] AC 626 (HL)
An Italian man who spoke little English, arrived at Victoria Station
on his first visit to this country. He got a taxi and gave the driver a
piece of paper on which an address was written. The taxi driver
told him it was a long way and would be expensive. On arrival at
the destination the Italian, took one pound out of his wallet and
gave it to the driver. The driver intimated that it was not enough
and reached into his wallet and took a further six pounds out of it.
The correct lawful fare for the journey was in the region of 10s.
6d. The driver was convicted of theft and appealed contending
that the Italian man had consented to the appropriation of the six
pounds and his conviction could not therefore stand.
Ratio: His conviction for theft was upheld. An appropriation can
take place notwithstanding the consent of the owner.
Q: What if V allows D to assume that right?
DPP v Gomez [1992] AC 442 (HL)
A store assistant manager knowingly accepted stolen cheques
from a building society, in return for “white goods”. When the
manager requested him to confirm with bank whether the cheque
was acceptable, he asserted that the cheques were ‘as good as
cash’. The manager then authorised the transaction but the
, cheque was subsequently dishonoured.
Ratio: Morris partially overruled, Lawrence followed and
convictions of theft upheld.
Principle: An appropriation does not require absence of consent. In
other words, even consent was given, it would still amount to
appropriation. Proof that the owner consented to the appropriation
will not suffice to show that there was no dishonesty if the owner's
consent was given without full knowledge of the circumstances.
Note: Held that the ruling in Morris that the act of ‘assuming rights
of owners with permission does not amount to appropriation’ is an
obiter dicta – i.e. not good law
Q: What if V gives D the property? Gift or Theft?
R v Hinks [2000] 2 AC 241 (HL) **Criticism
V, who had learning difficulties, had withdrew and handed
£60,000 to D, his main carer, who later deposited the amount to
her own bank account. Psychiatric evidence that it was unlikely
that V had made decision to hand over money on his own. D was
convicted of theft. Appealed on ground that judge should have
directed jury that there could not be theft where constituted valid
gift.
Ratio: Conviction upheld. The principle in Gomez applied to the
acquisition of a gift.
Principle: An appropriation exists even where the victim consents
to the appropriation and civil unlawfulness is not a constituent of
the offence of theft.
Note:
- Criticism by Professor Sir John Smith in ‘R v Hinks, Case
Commentary’ [2001] Crim LR 162 – ‘It is absurd that a
person should be guilty if stealing property, which is his and
in which no one else has any legal interest whatever’.
- Rebutted by S Shutte in ‘Appropriation and the law of theft’
[2003] Crim LR 445.
- Dissenting from Lord Hutton: if there was a valid gift D could
not be found to be dishonest no matter how much they
thought her conduct morally reprehensible.
- Implications:
Broad definition and Low threshold to prove
appropriation; undermining the necessity of the element
“any rights of an owner” any act done towards to
property will suffice
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