CRIMINAL LAW (LAWS 1012) 2010/11Lecture handout (3): Theft and complicity

LECTURE HOURS 29-36Theft is a core criminal offence with over a million thefts over a year. There is incongruity between lay perceptions of offence and its legal requirements.

Definition in section 1: contrary to section 1. 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.

The offence contains five elements, each of which must be proved by the prosecution. The first five comprise the actus reus: (i) There must be property (i.e. something capable of being stolen)(ii) That property must belong to another(iii) D must appropriate the propertyThe final two elements comprise the mens rea:(iv) D must intend permanently to deprive another person of the property, and(v) D must act dishonestly.

It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit.

The definition cannot be improved. It involves the appropriation of property (property crime – property interest); that property must belong to another. The thief must intend to keep the property either for himself or someone else. Dishonest borrowing is not theft. You must intend to deprive the owner permanently. He must do so dishonestly.

Appropriation is an assumption of the rights of the owner (section 3) i.e. you are not the owner but you are assuming his rights.

Section 3: ‘Appropriates’(1) 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.(2) Where the property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.

The act of appropriation gives you possession, which you intend to maintain.

Theft by way of interpretation by the courts (nothing wrong with the definition): They are very reluctant to let dishonest people go free, and there are even cases where their conduct falls outside definition of theft, there are cases which extend illegitimately the definition of theft and now the key element of theft is not the conduct element; it is a finding of dishonesty, where the essence of theft is the direct deprivation of the proprietary interest of someone else.

The key loosening up of theft happened in the House of Lords on the concept of appropriation. The methodology of theft was appropriation; that was the key conduct element. Appropriation is partially defined under section 3 of the Theft Act.

You can come by a property honestly in the first instance and later appropriate it. You can appropriate it after initial honest taking. An exception to that is: if you pay money for it and you subsequently find out someone else has a better claim to it, and the seller had no right it sell it to you; to keep the property then is not theft. Appropriation = an assumption of the rights of the owner. That was intended to mean something more narrow than merely coming by and receiving property. E.g. if he gives one of us a watch, that should rule out (leaving aside honesty) any finding of assumption of the right of the owner on our part, because you have not assumed anything, you have just taken or received what you were given. In 1968, theft was originally conceived as theft on its face. Notion of assumption involves something unauthorised, which the owner had not consented to.This concept of assumption was argued in the case of R v Morris.

THEFT Theft is defined in s1 of the Theft Act 1968.Further provisions flesh out the general definition. To commit theft D must dishonestly appropriate property belonging to V intending to deprive V of his property permanently. Most instances of theft are straightforward, but some complex issues can arise when ascertaining whether D has stolen V’s property.

The Actus ReusThe actus reus of theft is the appropriation of V’s property by D. Turning first to the concept of appropriation, we can say that V’s property (his car, his briefcase, whatever) will be appropriated by D the instant that D assumes any one of the rights of ownership that V has with respect to his property. The definition of appropriation set out in s3 of the Theft Act 1968 has been given the widest possible interpretation.

*Morris [1984] AC 320

This case involved a common practice in supermarkets of persons taking labels off cheap meat and transposing them over the labels of more expensive meat. They would then put the meat in the trolley to be charged less. This re-labelling involved the assumption of the right of the owner to name his price. Clearly there was an appropriation. The real point (widening of appropriation): when did the theft occur? When was this meat taken for the purposes of the law of theft? The better view (this did not prevail): was that the act of appropriation should be the act whereby the thief deprived the owner of his rights to the goods. On that view, when the store detectives arrested these people prior to presenting the goods at the checkout paying the less amount, the better view was that the prosecution had jumped the gun: they had focussed on preliminary act by way of preparing for theft, but not the theft itself. Because possession with intention to deprive would take place when the meat was handed to shopper at point of payment (sale – clear theft, but not before that) <- that view did not prevail.

It was held that here that D was assuming just one of the rights of the owner, not the entirety of the owner’s rights: here the right to price the goods. It was sufficient to do that provided the D meant/intended at that time to physically acquire the goods by some subsequent act. This is a crucially important decision. The conduct, which on the facts is preliminary to the act of theft – becomes the act of theft in its own right. Restrained the appropriation to true assumptions, but broadened the act to things prior to the act of taking goods themselves. This was the first extension of actus reus.

*Gomez [1993] AC 442D and others enter an electrical goods store owned by V. they obtain valuable goods upon the faces of cheques they know to be fraudulent. They offer checks and they receive the electrical goods by way of stealing. This case was an obvious case of an offence now superseded of obtaining goods by deception. If the individuals had been charged with that we would never have heard the case - getting goods on basis of dodgy checks. For reasons we cannot fathom the prosecution charged the matter under section 1 of theft. He said the goods were stolen. Admittedly it’s a technical objection: when the electrical goods were handed by the manager of the store to D and others, D became the owner. He loaded them onto his lorry. On the face of it, he was merely the recipient of the goods that were handed to him. Once the truth was discovered, the contract could have been rescinded for fraudulent misrepresentation and ownership would have reverted, but until that is done a title voidable for fraud is nonetheless a valid title until the contract is set aside. So what the court should have done is to tell the prosecutor that he brought the wrong offence – this is a case of fraud not theft. The Criminal Law Division did not think important.

How could one assume the rights of the owner in terms of section 3, which requires an assumption of those rights, when V conferred those rights on D? The House of Lords ruled that the term appropriation could cover those circumstances. Nonetheless the House of Lords ruled that the recipient of ownership from another can still assume and appropriate the rights of another. That was not insupportable given that in this case, a less than perfect title is passed?Second difficulty: how could it be that the property belonging to another was appropriated when D became owner at the time he first took possession of it?House of Lords: For the law of theft the property could be regarded as still belonging to V. In circumstances where the transfer of ownership and the acquisition of ownership by D are concurrent (two sides of the same transaction) for the purposes of the law of theft, the ownership is regarded as belonging to V rather than D. D and not V can be regarded as stealing the property. This is another important extension of the law of theft (it obliterates the line between theft and fraud). If you acquire by fraud and if you deceive someone to confer property on you – you will be a thief and fraudster.

There is one limiting feature: the decision is merely hard to defend and not indefensible - this was the fact that a voidable title and not a perfectly valid title for all the time that it was conferred on D. Surely it can never be the case that when a person acquires a completely valid title, he can steal by the very act through which he acquired that ownership – that is a genuine oxymoron: valid owner/and by the same token can steal the property. This was put to the test in Hinks. Lawrence v Metropolitan Police Commissioner [1972] AC 626D, a taxi driver, drove a newly arrived foreign student with little English from Victoria station to an address in London. The student had offered a £1 note for the fare, which D said was not enough before extracting a further £6 from the student’s open wallet. In truth the legally authorised fare for the journey was approximately 50 pence. Although the student had permitted D to take the excess money, the House of Lords upheld D’s conviction for theft. The student’s consent was irrelevant. “That there was appropriation in this case is clear. Section 3(1) state that any assumption by a person of the property rights of an owner amounts to an appropriation. Here there was clearly such an assumption…[an appropriation may occur even though the owner has permitted or consented to the property being taken”.

*Hinks [2001] 2 AC 241 [2000] 4 All ER 833; [2000] 3 WLR 1590V was a friendless man who had come into a reasonable sum of money by way of inheritance and lived in sheltered circumstances where D becomes responsible for part of his care. He has a low IQ (80) but he is in no sense in the category of a learning disability. D befriends V; she starts by persuading V to give small gifts to her and by the time the dependence

deepens she ups the ante. By the end she takes him down to the building society everyday and he is withdrawing money up to the limit he is allowed. She takes him for everything that he has.She was charged with theft, and there is a major obstacle. It was assumed and not challenged and the case is based on this assumption that the gifts of money were perfectly valid. He had the capacity to understand what he was doing and however foolish he was he was aware of all the material circumstances. He had not been deceived or unduly pressurised. This was an exploitation of friendship; a creation of deception.In the course of the argument in the case; it was said if you make this theft then what limits are there on this offence.

What is the status of the transaction? This example was put in an argument. D is an art dealer and visits a country antique store. He sees a painting in dreadful condition. The owner has no idea about the problems of painting. D is an expert and knows that once the painting is cleaned it will be worth thousands of pounds. D says £1000 is a bit steep but secretly he is happy to close deal at £850. He knows that he has the find of a lifetime. What is this a replay of? Smith v Hughes (oats case) provided there is no deception or undue influence and it is not a mistake of kind. The contract is perfectly valid.House of Lords: it would be valid in the civil law but at one and the same time would constitute an act of theft on the part of the purchaser were a jury to find his conduct dishonest. And by the same token, they made a similar finding against Hinks. That even though she became the owner of property through valid gift made by V she under criminal law stole that property if one could make a finding of dishonesty. So long as acquisition of ownership coincides with divestment of ownership; property could belong to D even though V obtains valid title (Gomez). Any acquisition of property can be regarded as theft provided that D intends to keep the property and there is evidence of dishonesty.First part of appropriation is concluded.

Shute, “Appropriation and the Law of Theft” [2002] Crim LR 445

Once the goods are appropriated they cannot be stolen again by the same person. Appropriation is a preliminary act and can continue until it is made complete and constitutes an act of theft. It continues until the act of possession is effected. In Morris it was made complete as soon as label was switched. Once this stage is reached, appropriation is over.

The time-frame of appropriationAtakpu [1993] 4 All ER 215.D and others hire cars in Germany. Their intention was not to keep to the terms of hire but to drive the cars to the UK and once they were here they were going to ring the changes (number-plates etc). The English prosecutor wanted to charge theft in England (he cannot prosecute German thefts). The prosecutors wanted to make the argument that the

whole process started in Germany and did not become effective until the changes were rung in England and those acts could be theft in the jurisdiction of England and Wales. The argument failed on the basis that they were completely stolen at some point in Germany. The process of effective appropriation was complete – they were in complete possession and control of the cars in Germany.

When is the appropriation complete? 2 examples: Hale (1978) 68 Cr App R 415This was a case of robbery, which is a violent theft. To be a robber you have to use force or threaten force at the time of the theft in order to steal. Robbery is not just gratuitous beating up; it is a threat of violence directed to the acquisition of someone’s property. In Hale there is a struggle and it was held that appropriation was complete as soon as D got his hands on the property, and the process of appropriation was still ongoing until D had uncontested possession of the item. Force was used in order to steal even though the initial act of appropriation did not involve force or threat.

Contrast this with:Pitham (1976) 65 Cr App R 45D is looking after V’s flat and its contents. What D does is invite E and others round to the flat and offers to sell all the contents. D points to the wardrobe and says ‘it’s yours for £10’ and E takes the wardrobe after paying £10 and walks out. E is charged with handling stolen goods (a more serious crime than theft – 14 years which is more than theft). E contests this and says appropriation was not complete until the goods out of house. He says he was a joint thief rather than a handler. He was part of the process and paid ten pounds for the privilege to be allowed to steal. The Court of Appeal had none of that and said the matter must be analysed on the different inference of D and E, and as far as D is concerned E drops out of picture after receiving £10. The theft was over, and he was rightly charged with more serious crime. The matter to be stolen is of course property – theft is not a pure economic crime, it is a proprietary crime. There may be some form of fraud. Theft is more circumscribe than the general offence of fraud. It is about the acquisition of property so the benefit on D is that he must receive proprietary gain.

Before we had larceny - theft was of tangible property, which was transportable property. That era is over. Section 4, which defines property that can be stolen makes all forms of property the subject matter of theft that includes forms of intangible property (bank accounts). Land under section 4 can also be subject matter of theft. Land can now be stolen and can only be stolen by someone who is a seller or manager of the property on behalf of someone else. So if a trustee can raise land to a third party in breach of trust, he can steal that land against the beneficiaries of the trust. Also, a person who is not in

lawful possession of the land (not a tenant) and who comes on to the land and severs parts of the land from the property is guilty of theft. Picking mushrooms is exempt from theft, providing it is not done on commercial basis. Wild creatures (poaching) cannot be subject of theft, unless the creatures are rendered to captivity.

PropertyIt can take tangible or intangible forms.

The Theft Act 1968 section 4 brings all forms of property within the purview of theft although there are restrictions imposed on the ambit of theft in relation to land, wild plants and wild creatures. The property appropriated may take an intangible form such as the appropriation by D of the credit balance in V’s bank account. Appropriations of intangible property merit special discussion.

Intangible property

Bank accountsWhat first of all is the property in a bank account? V is a company who has the account in question. As we speak that bank account is in credit to the tune of £10,000. The company does not own any money. “Money in the bank” is a complete misnomer. What the company has when it is reduced to its essence, is the right to sue the bank for the value of £10,000 should the bank rely on its contract to its customers. It is that right to sue the bank that is the intangible property, which can be stolen. The same applies to overdrafts. Lets assume V Ltd is overdrawn by £2000 but has an agreed overdraft to the value of £10,000. V Ltd owns property to £8000 in the form of the right to enforce this overdraft agreement. If V has suffered through the fraudulent machinations of D and ends up as a consequence more indebted to its own bank than would otherwise have been the case, nonetheless there would be no theft against V unless V had a credit balance or the theft diminished his agreed overdraft facility. The logic is clear: if D has drawn check on V’s accounts in a dishonest way, but it simply takes V past his overdraft limit without making the best of a bad job, it would still enforce the debt. To the bank there will have been no theft on the power of D because he would have acquired no property.

Suppose D, a company director of V Ltd, forges a check on V’s account with bank B. D does commit theft. V’s account with B is a chose-in-action that can be stolen and according to the Privy Council in Chan Man-sin, D appropriates that account when he assumes V’s right as owner, to draw cheques on the account.

It may be said that this reasoning is debatable. Prima facie, D obtained by deception; he stole nothing – at least, nothing from V. In particular,

although the bank account was clearly property belonging to V, it is arguable that nothing done by D affected or was even relevant to the account. The forged check was a nullity, nothing more. Although D pretended to deal with V’s account, in law he no more dealt with any of the accounts held by anyone else at the bank. The real wrong was obtained by deception of the proceeds of the cheque – but the victim of that crime was bank B not V. NO property right of V’s was harmed by D. If that is right, why should V be treated as a victim of theft?

On the other hand, and in defence of the current law, it may be argued that by pretending to deal with V’s bank account, D ‘assumed’ the right of an owner over the account and therefore appropriated it within section 3(1). Moreover, V will still normally suffer the disadvantage of a wrongful debit against their account, which will remain in place, and cause an effective loss to V, until the forgery is discovered (if ever). So, although the law on this point is problematic, it is not without justification.

The analysis is different where the check is not a nullity. Chan Man-sin may be contrasted with Kohn where D had the authority to draw cheques. He abused that authority by withdrawing money for personal gain. In that case, the cheques were valid and not mere forgeries, so that the company’s bank account was rightfully debited. Thus D was properly convicted of theft from the company by appropriating its bank account.

Another difficult case, is where D, by dishonest conduct, induces V to debit her bank account in D’s favour. In Williams, as we saw earlier, the Court of Appeal decided this could be appropriation, and so upheld the conviction of D, a dishonest builder, who had presented V with a dishonestly inflated bill, which V had paid by writing a cheque that D presented to V’s bank, which duly debited V’s account in D’s favour.

However, in the later case of Briggs the Court of Appeal though otherwise:D, a predatory great-niece of V1 and V2, ‘helped’ the V’s to sell their big house and buy a little one more suited to their current needs. The big house was sold, and the proceeds of sale held by a firm of conveyancers, Bentons. D then arranged for the victims to get Bentons to transfer the necessary slice of the proceeds to the vendors of the little house, and against the wishes of the Vs, induced the vendors of the little house to convey it to D instead of to the Vs. The Court of Appeal quashed D’s conviction for theft on the ground that D’s conduct did not amount to an appropriation of the fund belonging to the Vs, and currently in the hands of Bentons.

With ingenuity, it is possible to distinguish the facts of this case from those of Williams, but as the judgment in Briggs was given unreserved, and without reference to Williams (or indeed to Gomez or to Hinks), it

is probably better seen as an aberration. If such a case were to arise today, D would be guilty of fraud under the Fraud Act 2006.

Williams [2001] 1 Cr App R 362(see above)

Kohn (1979) 69 Cr App R 395D was a director of V ltd. He was an authorised signatory for the company so he could draw checks on the company’s account for the legitimate purposes of the company. He draws the checks in favour of other companies in which he has a personal interest. He is siphoning off funds from the company’s account to others. He had ‘direct access’ to V’s credit balance and he stole that balance or part thereof the moment that the cheque that he drew caused a debit of V’s account.

This case was taken further in:Chan Man-Sin [1998] 1 All ER 1The difference here is that D was not an authorised signatory but made forgeries (forged checks) indicative of authorisation. In legal terms a forgery is a complete nullity and does not affect the interest of any party. But here the forgery is successful – D effects these forgeries which make him out to be an authorised signatory for V’s account for the banks and the account is debited. Applying Kohn and other cases this can be seen as a straightforward case of theft, whereby through medium of forgery D could get access to V’s trade and account. Legal purists: this was an incorrect application of Kohn. The difference being that as Kohn was an authorised signatory, acting within apparent authority, the debits of V’s were legally valid. V had to grin and bear it. The difference with a forgery is that a forgery lacks any authority to debit the account. Once the forgery is discovered, V’s account will be fully restored. That is an argument that seeks to prove too much and it is perfectly possible that forgery will not be discovered and Vs account will not be replenished. The courts were right not to draw distinction between abuse of authority and forgery if D gets access to V’s credit balance. Chan Man-Sin is likely to be followed. Situation: D is acting dishonestly and obtains a check made out in his favour by V. D promises to do work at some future point in time for V, but says he wants some money upfront so V makes a check and hands it to him. Ignore the piece of paper. Given D is dishonest when can we say there is act of theft perpetrated by him against V? In Williams: Court of Appeal: when the check is paid in and processed by the bank and causes a debit in V’s account – at that point in time D has stolen V’s property. This is a tad artificial on behalf of the Court of Appeal for the purposes of appropriation: D could not say he has appropriated anything at that point in time and the appropriation is physically done by the bank employees - they are regarded as the instrumentality in carrying out the theft on behalf of D. It is artificial but acceptable.

Court of Appeal in Briggs:Briggs [2004] 1 Cr App R 34This case involves obtaining a check by dishonest means and then paying it in. The Court of Appeal refused to find theft, on the basis that there had been no appropriation on the part of D. The decision in Briggs is incompatible with Williams. You have to choose Williams in terms of policy as it is a better policy decision, and in Briggs there is no reference to Williams (counsel for the prosecution’s fault) so the Williams decision is authority for checks dishonestly obtained and then paid into an account.

Navvabi [1986] 3 All ER 102D was not convicted of theft in respect of every cheque. Most of the cheques had been when C’s account was in credit or within the authorised overdraft limit. In these cases D appropriated C’s chose in action. In this case, however, the cheque was drawn when the overdraft was beyond its authorised limit. The Court of Appeal held that in the last situation, there was no theft. If an account is overdrawn beyond its agreed limit, the bank has no legal obligation to meet the cheque. Hence C had no chose-in-action against the bank and there was nothing for D to steal.

Confidential informationWhen does information become property? Effectively only when it can be patented or if it falls under a copyright or it is information of a kind that be trained (?). There is an important strand of equitable authority that has extended the legal conception of proprietary information to cover information received by a trustee or person in the position of a trustee where that information has economic value – industrial espionage.Outside patents, copyrights and trademarks and confidential information of economic value acquired by person in position of trust, the criminal law has rightly refuse any invitation to regard unauthorised accessing of information (computer hacking offences etc) by hackers as acquisition of property.

Example: case involved a draft-exam case below:Oxford v Moss (1978) 68 CAR 183D is a student of Liverpool University, an engineering student. He has a shrewd idea of where the engineering exam draft paper might be. He breaks into the faculty office and finds it. There is the paper. He photocopies the paper and puts it back where he found it. This would be easy case of theft had he simply taken the paper and went home with it. Diversion: though he put the paper back (not focussing on the information) and in essence borrowed it, did he have an intent to deprive the university permanently in terms of section 6 of Theft Act 1968? If the prosecution instead of going to information theft had focussed on the artefact and said it was the equivalent to taking it outright – section 6 should be looked at. This was not argued.

What was argued: given the nature of this confidential information and the fact that it was compiled for a specific purpose which was undermined by D’s conduct, the information should be regarded as a species of property belonging to the university.

The divisional court dismissed the prosecution’s case and stated that it is not property stolen under the Theft Act. There was no extrapolation of theft in this delicate area of access to information. Civil law should be given that area and not criminal law.

Significance: mere information, even a trade secret does not qualify for protection as intangible property. Policy argument: extending the law of theft to include appropriation of information raises difficult questions concerning the property scope of protection. Should all confidential information be protected, or just trade secrets? When is information sufficiently confidential? What if the information is a matter of public interest?

Hammond “Theft of Information” (1984) 100 LQR 252

BELONGING TO ANOTHER

The property must belong to another.

Section 5(1): 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 an interest).

This subsection shows how it extends property to legal and equitable property.

Property belongs to you in terms of section 5(1) not merely if you are the owner of the property but it also extends to rights of possession and control i.e. those rights, which may be enjoyed by persons who are not the owner of the property.

To be the subject of theft, the property appropriated must belong to another. The Theft Act 1968 s5 (1) provides that any particular item of property belongs to any person who has possession or control of it and/or has any proprietary right or interest in the property. In some circumstances even an owner can steal his own property. Thieves even have a current right to possession (it is an illicit right but still a right). Paradoxical but true: Sometimes the very owner can steal his own property if for the time being someone has a superior right to possess or control that property. (see Turner)

(Theft by an owner under section 5(1))Bonner [1970] 2 All ER 97

Another standard way in which an owner can commit a theft is where there is more than one owner. If D and V are co-owners of a chattel and D dishonestly sells the chattel, Do is guilty of theft. Similarly, it has been ruled that a partner may be convicted of theft of property belonging to the partnership as was the case in this case.

(Theft by an absolute owner)In principle, there should be one absolute exception to the general proposition that property may be stolen from anyone having a proprietary interest therein.Exception: E.g. D (the owner) surely cannot steal the television by retaking it from V. This is because V has no property right in the television maintainable against D. Vis-à-vis D, the television belongs to no-one else. By contrast, vis-à-vis T, the television belongs to both D and V; hence T can steal it from V and D.

A case which illustrates this exception is Meredith: D’s car had been impounded by the police and removed to a police station. Without consent, D then recovered his car from the police station. D was acquitted of theft, after the trial judge ruled that the police had no right to retain possession of the car against the owner.

Although this may seem obvious, Turner (No 2) provides appellate authority to the contrary. The trial judge directed the jury to disregard the lien. Consequently the Court of Appeal was oblige to consider D’s appeal on the footing that there was no lien. The Court nonetheless upheld the conviction, reasoning that even as a mere bailee at will, the garage had a possessory interest in the car (maintainable against everyone except D) sufficient to qualify for section 5(1). According to the Court of Appeal, ‘there is no ground for qualifying the words ‘possession or control’ in any way” i.e. by excluding form section 5(1) any proprietary interests inferior to those of the defendant. The decision is absurd. If no lien existed, the car belonged to D and D alone. The gist f theft is interference with someone else’s property rights. D did no such thing. He merely exercised proprietary rights to which he was entitled (albeit in order to evade a debt).

Turner (No 2) [1971] 2 All ER 441D owns a car, which is not working. He takes it to a garage for repair and agrees a price. He leaves the garage without his car. D, being a man of resource was not minded to pay for repairs. He checks the car is ready and breaks into the garage and drives away his car. He is charged with theft of his own car, convicted, upheld on appeal. It should have been a straightforward case because under the civil law, repairers have a lien (a right to possession of an object until you are paid). If one had focussed on the lien/right to possession then this was an easy case of theft because

the owner had no right to possession and car belonged to the garage owner at that point in time. Problem is that the Court of Appeal confirms the conviction by approving the trial judges’ refusal to look at the civil law – ‘I’m not going to look at whether the repairer had a right to possession against owner. I will say V was in possession and D acted dishonestly and that is good enough’. The Court of Appeal agreed with that and confirmed the conviction of theft.In textbooks, it is agreed that if you set aside the lien, then the repairer had no legal right to possession as against the owner. There was no proprietary interest to take from the repairer.This is slipshod judging. It is the facts of Turner that should govern it, it is straightforward on the facts; clearly the repairer had the right to possession against the owner until he was paid.

Hinks [2000] 2 AC 241The House of Lords decided that D stole from V even though the gift that V gave to D (the object of the theft) was a valid gift and in civil law D became the owner of the property as soon as he took possession (the gift is perfected). Hinks gives rise to concept that you can steal property that belongs to you. To try and curtail the effects of Hinks, it is said that D achieved ownership at the very point at which V lost ownership. Divestment and acquisition were part of the same contemporaneous act – and from that point of view you can curtail Hinks.

It must still be the case, that if you have come by property honestly and you are the owner then any subsequent dishonesty in relation to property, which reconfirms its retention cannot be regarded as an act of theft.

LOST AND ABANDONED PROPERTY (who does it belong to?)Has the owner relinquished all his interests in it?However dishonest the person is, if he picks up a piece of property, which no longer has an owner, he can no longer steal. This can be seen in Woodman.

Beatson and Simester, “Stealing One’s Own Property” (1999) 115 LQR 372; Bogg and Stanton-Ife “Protecting the Vulnerable: Legality, Harm and Theft” (2003) 23 Legal Studies 402.

Once abandoned, ownership of items vests in the first person to take possession of them. Possession, in turn, is normally taken by intentionally exercising control over the items. This may be done physically. Where chattels are abandoned on occupied land, however, the occupier will often acquire possession even before the chattel is found. In general, there are three types of cases in which the occupier acquires a better title than a finder.

1. if the thing found is embedded in, under or otherwise attached to the land, it belongs to the occupier or owner of the land regardless of who finds it. 2. if something is found loose by an employee on the employer’s property, the employer ahs a superior right to possession of that thing, in priority to the the employee-finder. 3. Where the item is found loose on the ground, the occupier can acquire a prior title either by (a) restricting public access to the land upon which items lie; or where the land is open to public access) by (b) manifesting an intention to exercise control over the land and the things thereon.Obviously if the item is found by a visitor inside D’s private home, D has a superior title since the public does not have general access to the home. Less straightforward cases of (a) are found in Woodman and Hibbert v McKiernan.Woodman [1974] QB 754The owner (a company) sold all the scrap-metal on his land. V sells to X all the scrap-metal on the land. X comes onto the land to take away the scrap-metal. Afterwards, D and the owner, ring-fence the land and land lies fallow. They don’t want trespassers. What D did is to come onto the land and take away the rest of the scrap-metal that X could not be bothered with. D is charged with theft of the scrap metal and he makes the point that V the owner of the land, no longer had any use for it. Answer: The scrap metal was still the property of V and the test to be used was did V intend to exclude a person like D from taking that property. It is not a case where someone like D was allowed free access to take it – there was an intention to exclude him from the land and from taking property, and once that intention is established the property still belongs to V whether he has any use for the property or not.The Court of Appeal upheld D’s conviction. Even if ownership of the remaining scrap had been abandoned by B, ownership would have reverted to D as occupier of the land, since D had manifested an intention to exclude trespassers by fencing off the site.

In Hibbert v McKiernan D trespassed on a private golf course and dishonestly took eight golf balls, which had been lost – and, it was found, subsequently abandoned – by their former owners. The Divisional court held that D was rightly convicted of theft from the golf club. Even if the balls had truly been abandoned (doubtful), the golf club as occupier of the land, had a better possessory title than D. D was a trespasser whose presence on the course was excluded.

On the other had, where the premises are open to the public, the occupier’s position is weaker and she gains prior title only if she has (b) manifested an intention to exercise control over the things that are or might be on the premises. In Parker v British Airways Board [1982] the Court of Appeal held that Parker’s rights as finder could be displaced only if British Airways could show as occupiers an obvious intention to exercise such control over the lounge and things in it that the bracelet

was in their possession before the claimant found it. On the evidence there was no manifestation of such an intention as would give the defendants a right superior to that of the claimant; the airline’s instruction to staff for dealing with lost articles were not published to users of the lounge, and it did not carry out searches for lost articles.

Parker v British Airways Board [1982] QB 1004Legal and equitable interests are can be the subject of theft. There may be circumstances where V transfers money or property to D and the effect of that transfer is to make D the legal owner of the land, but in the circumstance where V retains an equitable proprietary interest in the fund. A simple example would be a trust fund set up for a particular purpose. D makes himself by agreement with the others, executor of the fund. Monthly payments are made to D and D pays them into bank account. It may be the effect of that, is to make D the legal owner of the money – it is his bank account (informal arrangement – no trustee, just paid into bank account D has opened; an interest-bearing bank account). D bails on his friends and clears out his bank account and disappears. Whether D has committed theft on those circumstances will depends on whether D was not only the legal but also the full beneficial owner of the money in the account. He might still be in trouble of fraud offences, but when we come to theft he may not be guilty of theft if the effect of the transaction was to make D the full owner of the cash paid into his account. On the other hand, it will be theft if the effect of the transaction is that D (legal holder of the money) is holding the money on trust. If there is a trust, then D will steal with the money, because those paying into it retain an equitable proprietary interest in the money. Falling onto either side of the line can be a close call. See Clowes.

Equitable Interests

The proprietary rights and interests in property referenced in s5(1) include equitable as well as legal entitlements. On occasion, civil courts expand the boundaries of what interests may be considered equitable property, thereby expanding the range of things that can be stolen.

Clowes (No 2) [1994] 2 All ER 316(dishonest appropriation – diverting funds for their own use)

He was running a Ponsby fund. He claimed to be running an investment fund promising high returns. How this miracle was created was that he was using deposits from investors as the means for paying dividends - the illicit use of funds to create the appearance of a thriving investment fund. Was he guilty of theft when he absconded with the money? House of Lord: when the investors gave in money, Clowes the defendant guaranteed that only a limited range of investments would be purchased and he guaranteed the minimum rates of return on the investment. He said: ‘if you invest with me you will do better than 10% and I guarantee

you the 10%’. Typically when you invest in a fund, your rights are personal and not proprietary against the managers of the fund. You have a contractual right to dividends and a contractual right to withdraw your investment. The House of Lords decided that because of the restricted nature of the investments and the guaranteed return, this then has the features of a trust fund and consequently it was found that the investors retained an equity in this fund which had the convenient result of finding Clowes guilty of theft form investors because they had a proprietary interest in the fund.

What constitutes equitable property is always in development in civil law. Clowes – the case should never be resolved against the accused unless the civil law is absolutely clear on the point. I.e. If certain fact are proved then… The normal civil law approach, where there can be a sudden change in the law which makes certain interests proprietary and equitable interests; that sort of thinking should not occur in criminal courts. They should never rehearse and examine the civil law on the way to development and enlargement of it; they just receive the civil law. That was mentioned the case below.

Where the employee is sufficiently senior to be regarded as a fiduciary, it appears that any bribes she takes will be subject to a constructive trust. In AG for Hong Kong v Reid [1994], D had accepted bribes in order to obstruct prosecutions while serving as a senior Crown prosecutor in the Colony of Hong Kong. At issue was whether the Hong Kong government held a proprietary interest in bribes received by D. It was common ground that D was a fiduciary, the question was whether he was also a constructive trustee of the money received. What emerges from that case is that a fiduciary who receives, for himself, a bribe or commission paid for the misuse of his position will hold the money on constructive trust for his principal. That receipt falls within section 5(1) and can therefore be stolen. However, since it was conceded that Reid was a fiduciary, the question whether an employment situation will necessarily give rise to a fiduciary relationship was not considered.

The possibility that a secret profit made by an employee can be stolen was doubted by the Court of Appeal in Att-Gen’s Ref (No 1 of 1985) [1986] QB 491. The defendant was manager of a public house and an employee of the brewers to whom the house was tied, in contravention of the terms of his employment, sought to sell beer purchased privately from a wholesaler to supplement his profits. The Court thought that such circumstances would not give rise to a trust, and, even if it did, that it would not be such a trust as falls within the ambit of section 5(1).

AG for Hong Kong v Reid [1994] 1 AC 324; J C Smith at (1994) 110 LQR 180

To take a bribe is not merely the offence of bribery but the bribe belongs in equity to D’s employer and that was decided in AG HK v Reid, overturning many cases to the contrary and as Reid is a Privy Council opinion then after that decision it is okay for bribe takers to also be prosecuted for theft. Bribes belong to the employer is not the position. That would throw open Att-Gen’s Ref (No 1 of 1985) [1986] QB 491– does a secret profit belong to the employer, because there is an affinity between taking a bribe and making a secret profit? It may be in civil law, courts following Reid, the difference between bribe and secret profits are not strong enough and both belong to employer. A criminal court should wait for the civil court to decide the mater and not enlarge the civil law themselves.

*Att-Gen’s Ref (No 1 of 1985) [1986] QB 491This case is about pub managers selling their own food on the licensed premises that were managing. On the terms of their employment they could only sell the food of their employers. Was this theft? They made this money on the side and did not account for it to the employer. The Court of Appeal: though there are civil law arguments that suggest that these profits were held on trust for the employer; there were arguments the other way and that it would anticipate in a civil court, the civil court could then resolve it even if it would enlarge notion of equitable property. Court of Appeal: we will resolve the civil law in favour of the D, without going into the substance of the argument, we will resolve it in favour of the D. They are not ignoring the civil law, they are taking the approach that was decided. This is the right way the civil law should approach it. Example of the approach civil law should take in AG for Hong Kong v Reid [1994] 1 AC 324; J C Smith at (1994) 110 LQR 180. ________________________________________________________

Property received on account.A common situation governed analogous to equitable interest but distinct by statute is where money is handed over to persons for a defined particular purpose (section 5(3)). D takes money and the money is designated for a particular purpose. In the words of the Act, D is obliged to use the money in a particular way. If that is the case, section 5(3), relieves recourse to any analysis to civil law and simply states categorically for the purposes of theft law that the money handed over for a particular purpose is deemed still to belong to D and can be stolen by him. When section 5(3) is clearly on point, it saves work and is straightforward.

Section 5(3): Where a person receives property from or on account of 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 another.

This gave rise to difficulty in Hall.

The Theft Act 1968 s5 (3) provides for situations where D receives money (or other valuables) from V under an obligation to V to deal with the money in a particular way. Even if the effect of the transfer of money from V to D is to make D the legal and equitable owner of the money at civil law, if s5 (3) applies the money can still be stolen by D.

*Hall [1972] 2 All ER 1009D was a travel agent and V is the organiser of Club America where he was trying to organise and get discounts on group travel to America. So he goes to the travel agents again and a schedule of payments is agreed and the date for the travel is agreed, and a sequence of payments are made. What the travel agent then does when he receives the money; is that he pays that money into the firm’s general account. D still keeps taking these payments when he realises that his company is in a very bad way and it is unlikely that he will be able to make the payment to the carrier in time for the trip. The trip never materialises. D is charged with theft of the money he received and under section 5(3) the question was whether this money was received for a particular purpose, and the answer from Hall was negative.The money was simply received as forms of graduated pre-payment and as paid into a general business account it merely established a debt between D and V. He received money as full legal and equitable owner and section 5(3) did not apply as it was not particular. The fund was not ear-marked. If the money had been paid into a special bank account and separated from the general cash-flow of businesses then the outcome would have been different and section 5(3) would have applied. The effect of Hall had a disturbing effect on charity funds, collecting boxes typically taking coins and sometimes notes. Some people pay a cheque and send it off to a charity. There was a series of cases of how people who used that modus operandi had not received the money for a particular purpose and so they were not guilty for theft when they used the money for their own purposes (Wain). A travel agent generally receives money from customers in return for an obligation to provide the ticket, and may use the money received from customers as he chooses. It was held in Hall that this creates a creditor-debtor relationship. In that case, D had received deposits for air tickets and paid the money into a general trading account; he then failed to supply the tickets to the clients. Although his conduct was ‘condemned as scandalous’, in the absence of special arrangements imposing on him an obligation to deal with clients’ money in a particular way, he had no duty to account and therefore did not commit theft.

Wain [1995] 2 Cr App R 660

One standard application of section 5(3) is to charity collectors. In Wain , D raised money from the public by conducting charitable discotheques and other events. Subsequently, he failed to hand the money over, so he spent it. D’s conviction was upheld by the Court of Appeal on the basis that he was obliged to retain the proceeds of his fundraising for the benefit of the charity; hence under section 5(3), the money belonged to the charity for the purposes of theft.

Facts: There was differentiated payment to a business in a general account and there was payment to a charity and it was said that even though the method of payment need not involve the coins and notes collected, the process would always involve acknowledgement that the notes and coins were collected for charity and could never be used for any other purpose. The charitable proceeds were indelibly earmarked with a charitable purpose and even though they change their form, they cannot be used for any other purpose. So section 5(3) applies.

Situations where a payment is made by mistakeV pays over a sum of money to D because he has got D’s identity wrong, or he may miscalculate what he owes D and gives him an excessive amount. Under the civil law, the result of a mistake on a contract or transfer can vary and be different. To short circuit those problems s 5(4) provides that money will belong to another if it was paid to D by mistake by V. D is not entitled to it at all or entitled to less: the position under section 5(4) is that ‘to the extent D must restore the value of the excess to that extent the money or property transferred is deemed still to belong to V).

Section 5(4): 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 or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.

Illustration of case that section 5(4) reverses: Moynes v Cooper [1956] 1 QB 43

Property obtained by mistake

V may transfer money or property to D under the influence of some mistake of fact or law. For instance, D may have no entitlement to the money V has paid to him because V has mistaken him for someone else. Or it may be that that D is the right person yet he receives an excessive amount from V because V has miscalculated. At civil law the impact of

mistakes on the validity of transactions varies. Sometimes the mistake nullifies the transaction and V remains the owner of the property he has transferred to D. At other times the impact of the mistake may be less drastic and D will become the owner of the property he has received despite the mistake made by V. The object of s5 (4) is to avoid some of these complications. Whenever the effect of the mistake is to place an obligation on D to make restoration to V in whole or in part of the property or its proceeds or the value thereof, for the purposes of the law of theft, the property is regarded as belonging to V.

(Theft of an interest protected by section 5(4): where there is an obligation to make restitution)Moynes v Cooper [1956] 1 QB 439D had asked for a sum (advance) of his wages. He collects his wage packet and the wage clerk hands over the notes packet and D realises that they have forgotten the sum (advance) and paid him the full pages. This was once a leading case of larceny and now it is one of theft. The prosecution against D failed because the effect of the over-payment was merely to create D and the employer V. It did not affect the fact that D became owner of the excess money. To apply section 5(4) to the facts you have a straightforward conviction of theft for excess. He was obliged to return the excess (it was a debt) and to that extent the money was deemed to belong to the employer.

Facts: a wages clerk miscalculated the amount due to D. Although the employee was thus overpaid, the clerk intended to pay the amount of money actually paid. Hence title in the whole amount paid passed to D, and D could not be convicted of larceny. The employer had no proprietary claim to the money in D’s hands, merely a personal claim in restitution against D for the money had and received. However, since the passing of the Theft Act 1968, mistakes of the latter variety are covered by section 5(4) and Moynes would now be guilty of theft, notwithstanding that he in no way infringed his employer’s property rights.

Modern variant: A-G’s Reference (No 1 of 1983) [1985] QB 182

A-G’s Reference (No 1 of 1983) [1985] QB 182A policewoman looks at her payslip informing her of payment into her bank account and sees that they have paid her for a shift that she did not work. She had rung in sick but had been paid the full amount. Because of section 5(4) this is theft. The policewoman was guilty of theft by omission, payment is made into her account and she does nothing. The section is putting an obligation on you to alert to the mistake that has been made. She would have committed theft when her bank account was credited with payment, if she never intends to make restoration at that point of time.Reservation: the obligation to make restoration has to be a legal one. This is spelt out in terms in section 5(4). This argument was made in Gilks.

The effect of section 5(4) can be seen in A-G’s Reference (No 1 of 1983). D, a police constable, had her salary paid by direct debit. By mistake, she was overpaid on one occasion. On the assumption that she subsequently decided, dishonestly, not to repay the sum, the Court of Appeal ruled that she would be guilty of theft. Notwithstanding that she owned outright the content of her bank account, and was entitled to draw upon it as she wished, there was a legal obligation upon D to repay to her employer a sum equivalent to the overpayment once she discovered the mistake. By virtue of section 5(4), that sum was deemed for the purposes of theft to belong to the employer and so could be stolen.

*Gilks [1972] 3 All ER 280The obligation must be a legal one and not a moral obligation to make repayment/restoration. It is not spelt out in section 5(4) but the argument was made in Gilks; it did not survive appeal, but it was held that an unequivocal moral appeal to make restoration would suffice. A punter, D puts a bet on a horse called Fighting Taffy, which loses, but in the same race there was another horse called Fighting Scott and the bookie pays out to D as a win confusing the two fighting horses. He pocketed the money and was prosecuted under section 5(4). The money was still deemed to belong to the bookmaker. The conviction is quashed on the ground that the obligation in question was merely moral, because it was a gaming transaction, which the courts will not enforce, there was no indebtedness created by the overpayment by mistake and as a consequence D could not steal his own money.

Whilst the mistake in this case was of the same type as that in Moynes v Coopper, no legal obligation to make repayment arose in Gilks because the overpayment was in virtue of a wager. Thus Gilks would not fall within the ambit of section 5(4).

Although the decision in Moynes was much criticised at the time, its undoing by section 5(4) seems something of an overreaction. The defendant in Moynes is a mere debtor, section 5(4) effectively makes personal liability the stuff of debt. This surely, is the misuse of the concept of theft.

Moreover, it is debatable whether the defendant’s behaviour should be criminalised under any other description either. If, through V’s own error, V mistakenly gives D an unjustified windfall, prima facie his proper remedy is a civil law claim in money had an received. It is not obvious that the criminal law should wade to his rescue. This is not a case where D has done anything wrong to induce V’s blunder. Taking studious advantage of another’s unilateral mistake is not normally the stuff of legal intervention. Sometimes such circumstances warrant a civil law remedy; but it does not necessarily follow that the criminal law should be available here as a creditors’ device.

There are two civil cases in terms of section 5(4). Chase Manhattan Bank NA v Israel-British Bank (London) Ltd [1981] Ch 105Whenever a mistake is made and the recipient is aware of the mistake (this case involved overpayment into a bank account) that affects his conscience and as a result a constructive trust arises, which makes D a trustee of the excess to V. If that is correct the Gilks decision may now be regarded as wrong because they are saying an affected conscience which Gilks would have had, is enough to make you a trustee of the property on behalf of the person who made the mistake. This is a controversial civil law development. Criminal courts should not follow that line, until it is clear that the civil law is resolved and settled on that point.

In Chase Manhattan Bank NA v Israel-British Bank (London) Ltd, the plaintiff bank paid $2 million by mistake into another bank for the account of the defendant, which then went bankrupt. The plaintiff sought to recover the overpayment. Goulding J ruled in favour of the plaintiff, holding that a person who pays money to another under a mistake of fact retains an equitable proprietary right or interest in the money, as opposed to a purely personal right. If such an analysis is valid, section 5(1) would appear to be applicable. This was the conclusion of the court in Shadrokh-Cigari [1988] Crim LR 465. By error a child’s bank account was credited with £286,000. D, the child’s guardian, procured the child to authorise the issue of four banker’s drafts in D’s favour. Applying Chase Manhattan Bank NA v Israel-British Bank (London) Ltd, the Court of Appeal held that D stole the drafts from the bank. Since the drafts had been drawn by the bank in error, the bank retained an equitable interest in them. Hence for the purposes of section 5(1) they belonged to the bank.

Both of these cases are of doubtful authority. In Westdeautsche Bank v Islington LBC, Lord Browne Wilkinson stated that Goulding J’s decision was ‘based on a concept of retaining an equitable property in money where, prior to the payment to the recipient bank, there was no existing equitable interest.

The Mens ReaActing/appropriating, dishonestly, intending to deprive someone of their property right. The View to gain immaterialTheft Act 1968 s1(2): it is immaterial whether the appropriation was made with a view to gain, or is made for the thief’s own benefit.

DishonestyThis is only partially defined in the act. The willingness to pay is immaterial, you can still be guilty of theft. Often a willingness to pay precludes dishonesty, but sometimes it does not.

A person’s appropriation of property belonging to another is not to be regarded as dishonest -Section 2 deals with three situations where a person is not to be found dishonest: (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself, or on behalf of another personIf he or she has a belief in their right to take the property and that means the term is entirely subjective. Maybe your belief is wrong and you have no right, but if you believe that you have a claim of right, then taking it is not theft. This makes Hinks even harder to follow: Hinks had a right to the property in civil law, if she had gone to a lawyer to see where she stands and had been told that she could keep, and she believed him/her, it was not theft. If she had a positive belief that she was entitled to it she could not be found dishonest for the law of theft.

(b) If he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it. If D believes that V would consent to the taking had he been aware of it. This is belief in consent, however, ill founded. Hinks, had the consent of V. He did hand over his money with consent, which makes the decision stranger, because presumably she did not apply her mind to the matter and just took the money.

(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. Finally, the belief that the owner cannot be found. If you pick up a piece of property, and it is unlikely the owner could be traced and you will be aware of that. If you take reasonable steps to make sure the owner cannot be traced – it is not dishonest.

Apart from those statutory contributions, what comprises dishonesty is a matter for jury. If a claim by the defence falls outside section 2 then it is a question of fact for the jury. When asked to evaluate fact, the judge is entitled to guide the jury as to any considerations they may have to the facts. [Feely]

As a consequence of judicial interpretations, the actus reus of theft could hardly be wider. A large range of perfectly normal things that D may do with V’s property may constitute theft provided D is acting dishonestly and intends to deprive V of his property. Dishonesty is the heart of the modern law of theft. The concept is partially defined by s.2 of the Theft Act 1968 but cases not covered by that provision may need to be resolved, with judicial guidance, by the jury.

Feely [1973] QB 530Upheld in court of appeal(?) Assuming that the defendant cannot avail herself of the defences contained in section 2(1), dishonesty falls to be resolved under the general test. Whether the defendant was dishonest is a question of fact for the jury to decide. In Feely, it was said that the courts should offer them little guidance and that they should ‘apply the current standards of ordinary decent people’.This laissez-faire approach has since been circumscribed, for good reason. It is unclear under the Feely approach, what is to be done about the idiosyncratic defendant whose values differ from those of ‘ordinary decent people’.

The Feely test is a completely subjective approach taken to the question: If D believed his conduct to be honest then no finding of dishonesty could be made against him, according to the judges’ guidance, if his belief was genuine. This is the Robin Hood defence. The Feely test would not last (it wreaked havoc), and it was it was countered in Ghosh.

*Ghosh [1982] QB 1053D took without permission money in advance, he puts an IOU and he doesn’t ask for permission and knows because he knew it would not be granted. In his mind he thinks: ‘I know I will be able to repay this money by the end of the month. If the money were not repaid there would be no economic disadvantage to V and so I am not dishonest’ and consequently under the Feely test she would have a defence.

This was corrected in Ghosh; the guidance in Ghosh was in two parts. 1. An entirely objective evaluation for the jury against the facts of the case. They asked themselves: ‘was this conduct dishonest according to normal community standards? Would ordinary members of the community (not saints/sinners) do the same?’… If they come to the conclusion that it was not dishonest, the case falls then and you do not get to the second stage. If they find that the conduct was dishonest by the standards of ordinary people, the next question is…

2. Was D aware that her conduct contravened the ordinary community standards? That is even though D may think that her own conduct is honest and she would be okay under the Feely test (which no longer applies), if she is aware of the variance between her standards and those of the general community then she is dishonest and thus guilty of theft.

The Ghosh test has been criticised, but helps with Article 7 compliance.

Ghosh test has advantages in terms of compliance with Article 7 that a person will only be convicted of theft in a contested case, if she is on notice that her conduct is dishonest. Griew, “Dishonestly – the objections to Feely and Ghosh” [1985] Crim LR 341; Elliot “Dishonestly in theft: A dispensable concept” [1982] Crim LR 395; Halpin, “The Test for Dishonesty” [1996] Crim LR 283.

Intention permanently to deprive

Dishonest borrowing is not theft: Dishonest borrowing is not theft no matter how much inconvenience it causes the owner. It is not theft even if D realises he will not be able to return the item.

Before section 6, we need to prove that at the time D appropriated the object, he intended to keep that object, either by that act of appropriation or by (Morris case) some future act. At the time of the appropriation there must have been a decision on his part to keep the property. That sounds straightforward to prove, but look at the example of Easom.

Subject to s6 of the Theft Act 1968, borrowing someone’s property, however unauthorised and dishonest, is not theft. To be a thief, D must intend that V should be permanently deprived of the property that D is charged with stealing from him. Difficulties arise when D has resolved to steal from V but only a particular object or, alternatively, any object but only if objects found have sufficient value. For instance, D picks up V’s bag believing that it contains a diamond ring. He puts back the bag where he found it on discovering that it does not contain a diamond ring. Or D picks up V’s bag, hoping that it contains something of value. He puts down the bag on finding that the contents consist of tissues and a comb. The courts have made heavy weather of resolving whether D had an intention permanently to deprive V of property in these circumstances.

Conditional intentionEasom [1971] 2 QB 315Question was whether there was intention to deprive, as there is appropriation. D and V are in the cinema and they do not know each other. A seat is unoccupied between them. On the unoccupied seat is a handbag belonging to V who is a policewoman and the handbag is attached by a cord to her little finger. Sure enough D picks up the handbag, opens the handbag and has a rummage through it and it did not contain anything that D wanted. There was no money or a credit card, so he has his rummage and puts the handbag back and is then promptly arrested by policewoman and charged with theft.Was there an intention to deprive permanently of the property in that case?It was held that there was no intention to deprive at this point. The intention has not coalesced around an object that he wants to keep. He

has theft on his mind, but has not made up his mind to steal a particular object at this point. Is it attempted theft? No, that does not work either because you need a particular object; it cannot be abstract. Many burglars go into property to see if there is anything worth stealing. The definition of burglary is entering property as a trespasser with the intention to steal. One of the seeming ramifications of Easom, was that a burglar does not have the intention to steal, because he lacked an intent to deprive permanently. It would have many effects if this were the case.

On the facts of Easom: there was no intent to deprive, and the conviction was quashed. The Court of Appeal quashed his conviction ruling that: ‘if the appropriator has it in mind merely to deprive the owner of such of his property as, on examination, proves worth taking and then, finding that the booty is valueless to the appropriator leaves it ready to hand to be repossessed by the owner, the appropriator has not stolen’.

The decision is probably right, but only in terms of the precise charge of stealing ‘the purse, notebook etc...inside the handbag’ that was brought. D certainly appropriated those items. However, at no time did D intend to deprive the owner of such things. He was looking for something else. What he intended was to permanently deprive the owner of whatever he found of value. The general view is that the defendant could have been convicted if eth charge had been carefully drafted. If had been charged with theft of the contents of the handbag he could have been convicted on the basis that he intended to deprive the victim of the contents (if he found them valuable). To avoid any possible difficulties an attempted theft charge may be best in cases of this kind.

A different type of case is where D intends to steal valuable contents, if any, from a handbag which he has no intent to take but puts the handbag back because it is empty. That is a case of attempted theft, because there is no actus reus. Although in such a case, D has a conditional intent to steal the contents, he does not appropriate them since they do not exist.

Husseyn (1977) 67 Cr App R 131This case followed Easom. There was a replay of the same issue. D walks past a van and sees that the van doors are open and sees a holdall. He does not know what is inside but takes it. He turns around the corner and looks at the find. He sees that it is sub-aqua equipment. Husseyn did not have that hobby and had no use for it and dumps it and walks off. He is charged with theft of the sub-aqua equipment. Following Easom, this charge had to fail, because you could not prove an intention to deprive permanently, the specific thing he was stealing. His actions show you he did not intend to deprive of the sub-aqua equipment. But if it was something he wanted he would have kept it. Maybe Easom was purely exploratory.

The Court of Appeal: reluctantly quashed the conviction of theft on the basis of Easom.

The charge should have been intending to steal some or all of the contents of a bag. That way they do not charge him with theft of a specific item he did not want, instead land a fish and charge him with theft of some or all the contents of a bag. Does that solve the Easom problem? See A-G’s Ref (Nos 1 and 2 of 1979) [1980]

There is a technical problem: they deserve conviction, but theft cannot exist in the abstract and must be focused on specific items of property that D intends to keep. This is a problem needs to be fixed…

This was a worry in the case of a burglary in A-G’s Ref (Nos 1 and 2 of 1979) [1980]. It was this case that resolved the issue: it was stated in terms that, the persons entering property with intent to steal anything inside worth stealing were guilty of burglary for the purposes of the law of burglary, a conditional intent would suffice. This case suggested that as the law stands it would be better if D were convicted of theft of the contents.

If D had been charged with stealing the ‘contents’ of the handbag he should have been convicted of theft. Again, he certainly appropriated the contents. Thus the actus reus element of theft is satisfied. This time, however, the mens rea requirement is also satisfied – by a conditional intention. Not yet knowing what they were, D intended to steal any of the ‘contents’ of the handbag should they prove desirable. Thus it is submitted, he appropriated the contents with intent (conditionally) to deprive the owner of them. Since conditional intention is treated in law as intention, that looks like theft. The fact that he subsequently returned the bag and its contents is irrelevant. D planned to steal the contents, subject only to a condition outside his control (i.e. that they are valuable); he executes the plan; he appropriates the contents. The actus reus of theft has already occurred. Certainly, D’s conduct can no longer be regarded as merely preparatory. Given his moral culpability, D ought to be convicted of theft.

Although the description of theft of the contents sounds vague, it should be recalled that the theft Act criminalises theft of ‘any property belonging to another’. Even though it matters to D, from the point of view of the law the difference between a ring and credit cards per se is an immaterial variation.

Statutory extension of intending to deprive permanently

Dishonest borrowing – D takes the artefact and is going to use it, but at some point he intends to restore it to the original owner. Default: dishonest borrowing is not theft. But according to that rule, if you steal notes during the exam period, and give them back after that is not theft.

Often a thief has no particular agenda regarding the fate of the property he steals. If D means to pawn the stolen goods, or to use them before discarding them, he may not intend that the original owner be permanently deprived, sometimes it may be quite likely that the owner will recover the property. In order to make it explicitly that the act extends to such cases, Parliament enacted section 6.

Section 6 makes some provision for borrowings, which are the equivalent in the words of the section to an outright disposal of the property.Section 6(2)- If you take an item and pawn it or subject it to any other condition you might not be able to fulfil, that is the equivalent to taking the property. This is useful and straightforward.Section 6(1) – This is a general provision, which deals with the taking of the property with an intention to restore the thing itself, but are the circumstances equivalent to an outright taking?

The better view of this section (there are two schools of thought – it is an unresolved issue): the taking must in substance deprive the item of its value, prior to the point of physical restoration. Only then, you are treating the thing as your own to dispose of regardless of another’s rights. You have effectively deprived it of any value. This is not made out correctly in case of Lloyd.

The Theft Act 1968 s6 provides that in certain circumstances D will in law have an intention to deprive V permanently of a particular object even if he intends at some point to restore the object to V or anticipates that it will be restored by some other means. The terms of s6 allow ample scope for interpretation. There are appellate decisions, which read s6 narrowly but other decisions take a wider approach.

Lloyd [1985] QB 829This is one of the earlier decisions on section 6. D, a film projectionist, borrowed films and passed them onto E, who made and sold pirate copies of the films. The Court of Appeal ruled that this was not theft. In reaching this decision the court referred to pre-1968 case law, and (in essence) took the position that section 6 merely confirmed it. Although section 6 makes it clear that some ‘borrowings’ do involve an intention permanently to deprive, the court said: ‘mere borrowing is never enough to constitute the necessary guilty mind’. More recently a similar approach was taken in Mitchell.

Mitchell [2008] EWCA Crim 850

Here D was one of a gang of thieves who, having crashed their getaway car, violently hijacked V’s BMW, eventually abandoning it a few miles away on the road with its hazard lights flashing. For this, D was convicted of robbery (theft aggravated by violence). Having referred to Lloyd, the Court of Appeal quashed D’s robbery conviction on the ground that there was no underlying theft. In this case, D did not intend V to lose her car permanently, and his intention to take it temporarily could not be converted into an intention permanently to deprive by invoking section 6(1). On an appropriate reading of section 6 the court said that the car owner had not been deprived of the car. This was the right way to construe section 6.

Contrast this with the wider view has been taken in Chan Man-Sin, Lavender and Marshall. They hold that the moment you treat the thing as your own i.e. make use of it peculiar to the owner, you by law under terms of section 6, intend to deprive permanently.

Compared with the narrow reading in Mitchell section 6(1) does say, inter alia, that a defendant is ‘to be regarded as having the intention of permanently depriving the other of it if his intention is to trat the thins as his own to dispose of regardless of the other’s rights’. Although the word ‘dispose of’ can read in a narrow sense, as meaning to ‘get rid of for once and for all’, it can also be read in a wide sense, to mean ‘to deal with’. And there are cases where the courts have taken it in the wider sense, thereby converting into theft acts by defendants who did not really mean for the owner to lose his property rights at all.

One such case is DPP v Lavender [1994] Crim LR 297Lavender lived in social housing, owned by the council. He had been talking to the Council repeatedly about the need for a new door and then he lost patience and dishonestly removed a new door from a council house under construction and replaced his old door. He is convicted of theft and he makes the telling points that in either case whether the door was on the new house or his house, the Council was still the owner and he was not disputing the ownership of the Council, he was just redistributing it.Court of Appeal: He had treated the door as his own, to dispose of regardless of another’s rights. They took a literal view of the section.

The Divisional Court ruled that D had committed theft. Although the council had not in fact been deprived of the doors, D had nonetheless ‘disposed’ of them within the meaning of section 6(1). With respect, this result seems odd. There was no disposal of the doors in the narrow sense – they were not thrown out, destroyed or sold. They were merely moved and there was not suggestion by his conduct that D intended to treat them as his own, since they continued o be affixed to council property.

Another case to take this line was Marshall [1998] 2 Cr App R 28. In this case, D had been making money in the London underground by begging unexpired day tickets from passengers who had completed their last journeys of the day and reselling them to other passengers. For this D was convicted of theft of the tickets from London transport, which had issued them. On appeal, he sought to argue that, as he knew the tickets would eventually find their way back to London Transport at the end of the day, he had no intention permanently to deprive. Rejecting the narrow construction that was put on section 6 in Lloyd, the Court of Appeal upheld the conviction.

The Courts have also taken a broad view of section 6 when dealing with those who have improperly interfered with other people’s bank accounts. In Chan Man-Sin [1988], discussed earlier, D dishonestly drew cheques on his employer’s bank account. The Privy Council ruled that D had dealt with the company’s property (i.e. its chose-in-action against the bank) as if it were his to dispose of without regard of the company’s rights. But if unauthorised drawings of this sort are a nullity, then arguably D did not disposed of this account at all. At law nothing done by D in any way affected the relationship between the company and the bank. D merely tricked the bank into crediting D’s own account (and purporting to debit V’s account). The Privy Council seems to have equated ‘purporting or pretending’ to dispose of the thing as one’s own with ‘disposing of the thing as one’s own’. The decision is debatable. Nonetheless, as things stand, this is the law: the intent to make and apparent to pretended disposal is sufficient for section 6(1).

What can be said with some degree of certainty is that section 6(1) covers both the ‘ransom principle’ and the ‘essential quality’ principle, by which the courts extended the concept of intention to permanently deprive before 1968. An example of the first is Raphael, where D’s conviction for theft was affirmed where he had taken V’s car away from him by force and then attempted to sell it back to him. And an example of the second is DPP v J, in which the defendants forcibly took V’s headphones, snapped them, and returned them to V. On appeal, it was held that the magistrates had been wrong to accept a submission of no case to answer: a person who took something and dealt with it for the purpose of rendering it useless demonstrated the intention of treating that article as his own to dispose of. But a definitive answer to the question of how much other ground(if any) the section covers is obscure, and destined to remain so until the day –if it comes – that the matter is finally resolved by the Supreme Court.