1. OBTAINING SERVICES DISHONESTLY, MAKING OFF WITHOUT PAYMENT
LESSON 12
THEFT, BURGLARY , FRAUD
OBTAINING SERVICES DISHONESTLY, MAKING OFF WITHOUT PAYMENT

2. Theft

3. Theft - Actus reus & mens rea
Appropriation
(actus reus)
Property
Belonging to another
Intention to permanently deprive the other
(mens rea)
Dishonestly

4. Actus reus of Theft
Property
appropriation
Belonging to another

5. What is property?

6. Property
Section 4(1) of the Theft Act
property need not have to have physical form
But it must be capable of acquisition
Property includes money and all other property, real or personal , including things in action and other intangible property

7. Real Property Personal property
Land and interests in land such a s a tenancy
Personal property
Material objects which can ( as a rule) be bought and sold
e.g. wristwatches , smart phones and tabs e.tc.

8. intangible property
Usually refers to property that cannot be touched
Thing in action/ chose in action
properly that does not exist physically ( not material objects) but which can be liquidated into money and can be enforced as a right.
e.g. a debt

9. Section 4(2) Qualifies 4(1)
General rule = land is not property for the purposes of the offence of theft.
Why?

10. Exceptions to the rule that land cannot be stolen
Rights over land may be stolen by
a trustee (for example by selling it in a way not authorised by the trust agreement) or
personal representative, or
an authorised by power of attorney, or
a liquidator of a company,
by selling or disposing of land belonging to another, and thereby appropriating the land or anything forming part of it by dealing with it in breach of the confidence reposed in him…

11. Exceptions to the rule that land cannot be stolen
when he is not in possession of the land [he] appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed;
when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the land.

15. Exceptions to the rule that land cannot be stolen
A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant [including shrubs or trees] growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose.
Subject matter= not land but things forming part of land)

16. Giving daffodils plucked from the woods to one’s sweetheart

17. Today’s special wild mushroom soup

19. Exceptions to the rule that land cannot be stolen
Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned…
Subject matter= not land but things forming part of land)

20. It is important to identify the property
If not the charge will fail

21. Bodies and body parts

22. Welsh

23. Appropriation

24. Taking and carrying away is no longer necessay
Section 3 (1)
Any assumption by a person of the rights of the owner… 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 it or dealing with it as owner.
3(2) safeguards bona fide purchasers

25. Assumption of any right however trivial is enough
Pitham and Hehl
asumed his friends ( who was in prison) right to sell his furniture
Morris
Assumed the right of the supermarket to price the goods/put
price tags on
them

26. Appropriation & consent
Lawrence
Can appropriate with consent of owner

27. Appropriation & consent
Fritschy

28. Appropriation & consent
Morris
cant appropriate with consent of owner

29. Appropriation & consent
Gomez
Can appropriate with consent

30. Appropriation & consent
Hinks
Widened the concept that appropriation can take place even with consent

31. Belonging to another
Cant commit theft if the property does not belong to another
Section 5 (1)
property belongs to ‘any person having possession or control of it, or having any
proprietary right or interest’ in it.
( this follows that you can commit theft on your own property son long as it belongs to someone else as well)

32. Owners of the horse Mr Southwell ( owner) Mrs Goodwood, part owner
Ms Lingfield, the owner of the stables where the racehorse is stabled
Mr Aintree, the jockey, when he takes the horse for a gallop
Mr Doncaster, the blacksmith, to whom the horse is delivered for a few hours to be shod
Mrs Wincanton, the owner’s friend, to whom he lends the horse to compete in a race
The Happy Valley Finance Company, who lends Mr Southwell £50,000, using the horse as security.

33. Owner can be convicted for theft
Turner
Meredith

34. Abandoned property- cases
Hibbert
Williams v Philips
Woodman – scrap metal case
( page 146 of the subject guide)

35. Mens rea of Theft Dishonesty
Intention to permanently deprive the other of it

36. Mens rea of Theft dishonesty
reflects the general principle that criminalisation is inappropriate if the defendant has not acted in a socially unacceptable or immoral fashion. Whether or not an appropriation of a person’s property is socially acceptable or not depends to a certain extent on why it was done

37. dishonesty not defined in the Theft Act 1968.
However, s.2 of the act tells us what dishonesty is not.

38. Section 2(1)
states that certain beliefs of the defendant are inconsistent with having a dishonest state of mind. These are:
a.) a 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.) a belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or
c.) a belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

39. R v Freely

40. If section 3 does not apply Gosh test is adopted
1. the jury must consider if the conduct of the accused was dishonest according to the ‘ordinary standards of reasonable and honest people’ (if not, then the prosecution fails).
If it is dishonest according to those standards then the jury must consider whether the accused ‘must have realised that what he was doing was by those standards dishonest’
(Robin Hood defence)

41. Gosh test
Has the defendant been dishonest according to the ordinary standards of reasonable and honest people
Not dishonest NO
YES
Must the defendant have realised that what he was doing was by those standards dishonest
Not dishonest NO
YES
dishonest

42. Mens rea - Intention permanently to deprive
defendant commits theft only if it is their intention for the victim never to recover the property.
If D intends only to borrow property this cannot be theft, however dishonest the taking is.

43. Mens rea - Intention permanently to deprive
this is a mens rea rather than an actus reus element.
Theft does not require the victim to be permanently deprived of their property. It simply requires D to have this intention, and at the precise moment they appropriate the property.

44. Intention includes conditional intention; that is, the intention of someone who appropriates property – say a holdall – conditionally on the contents proving sufficiently valuable to take permanently.
Charge should be properly drafted Easom (1971) by charging D with theft of ‘articles unknown, the contents of a holdall belonging to X’
See also A-G’s Reference (Nos 1 and 2 of 1979) [1979] 3 All ER 143).

45. In the case of fungibles such as money, food, drink and so on, this intention exists even if D intends to return an identical sum, amount of food, drink and so on.
Velumyl [1989] Crim LR 299, in which D had taken money from his employer’s safe and claimed that he intended to pay it back after the weekend. The
Court of Appeal held that D had not intended to return the exact coins and notes, and that therefore he was properly convicted of theft
Is D dishonest here?

46. Subsections 6(1) and 6(2) of the Theft Act 1968 provide two special cases beyond its normal meaning where the intention to take something temporarily counts as an intention permanently to deprive the owner of the property

47. 6(1)
A person is to be treated as having an intention to permanently deprive the owner of his property 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.

48. This provision refers to cases where the appropriation amounts to an outright disposal but the defendant nevertheless shows no particular commitment to depriving V of the property permanently

49. Examples
where D appropriates V’s property, for example his dog or his painting, intending to ransom the property back to V upon payment of a sum of money.
where D intends to exhaust the value of the property before returning it. So if D ‘borrows’ V’s ticket for the Manchester United game against Manchester City intending to return it after the game

50. R v Marshall, Coombes & Eren [1998]
selling on a used but unexpired tube ticket counts,
R v Lavender [1994] Crim LR 297
the defendant removed some doors from a council property that was due for demolition and then installed the doors in his girlfriend’s flat which was also owned by the council

51. R v Lloyd [1985]
D worked as a projectionist at a cinema who allowed B to take the films to make pirate copies and then return them. The Court of Appeal quashed D and B’s convictions on the ground that they lacked the intention permanently to deprive the owner of the films, not having sought to dispose of the films,

52. Section 6 (2)
A is deemed to have the intention to permanently deprive B of B’s property if A parts with property in A’s possession or control under a condition, which A may not be able to perform.
This is intended to cover the kind of case where someone who has property belonging to someone else in their possession or control pawns that property to another.