Criminal law - Theft notes: ACTUS REUS

We will see that the elements of theft are still rather difficult to define.The law relating to theft is governed by the Theft Act 1968, Prior to 1968, the law relating to theft was governed by the Larceny Act 1916, a complicated and problematic statute. A new report led to radical reforms to the old law relating to theft and the enactment of the Theft Act 1968. The 1968 Act aimed to simplify t he law on theft by creating a clearer and comprehensive statutory framework. The provisions of the Act have been subject to much judicial analysis and interpretation, resulting in a vast mass of complicated case law which it has been stated is ‘in urgent need of simplification and modernization’.The Theft Act 1968 came into force on 1 January 1969. Theft is an offence which is triable either way and carries a maximum sentence of 7 years’ imprisonment upon conviction in the Crown Court (s.7 of the Act).

The definition of theft is found within s.1(1) of the Theft Act 1968:A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention to permanently deprive the other of it.

There are five elements of the offence of theft:❖ 3 are actus reus:● Appropriation● Of property● Belonging to another

❖ And 2 mens rea:● Dishonesty● Intention to permanently deprive

The prosecution must prove all five elements in order for a conviction of theft to be successful (Lawrence v Metropolitan Police Commissioner 1972).The actus reus elements are very widely defined. In particular, the scope of what constitutes ‘appropriation’ has been increased over the years. As a result, Professor Smith argued that the AR of theft has been ‘reduced to vanishing point’ (Smith, case commentary to R v Gomez 1993) and Ormerod and Williams 2007).

Actus Reus

Appropriation

The prosecution must prove that the defendant appropriated the property. Appropriation is partially defined under s.3(1) of the Theft Act 1968.

S.3 (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 its owner

According to this section, appropriation involves assuming the rights of the owner of the property; i.e.., doing something with the property that the owner has the right to do.It encompasses acts such as taking possession of, using, selling, lending, giving away and destroying the property, as well as omissions such as failing to return or keeping the property. S.1(2) stated that in order to be guilty the defendant does not need to appropriate the property with a view to gain or benefit from it.Although s.3(1) refers to appropriation as an assumption of the rights of the owner, the defendant does not to assume all of the rights of the owner over the property. The element of appropriation will be satisfied if the defendant assumes any single right of the owner property. CASE LAW: Morris (1984): Defendant’s swapped price tags on goods in a supermarket for lower priced labels.This act alone or in conjunction with others was enough to satisfy “appropriation.” They had assumed a right of the supermarket – price setting. Thus the switching of labels was viewed as an appropriation because it was the right of the owner to fix the price of sale.

Appropriation and consent: Whether or not the assumption of the owner’s rights must be unauthorised in order to amount to an appropriation. In the Larceny Act required that the property stolen be taking without consent of the owner. The issue of consent in the case of Lawrence v Metropolitan Police Commissioner 1972. The D was a taxi driver who picked up an italian student who could not speak much English.He said that £1 was not enough and the student showed him his wallet and he took £5. In COA he was convicted of theft but he appealed to the HOL on the ground that there was no appropriation where the student had consented to him taking money from his wallet. HOL held that the absence of consent was not necessary requirement of appropriation and that the element of appropriation may be satisfied where the owner has consented to the property being taken.

This conflict was resolved by the HOL years later in the case of: CASE LAW: DPP v Gomez 1993D, an assistant manager, persuaded his manager to accept two cheques as payment. D was aware at the time that the cheques were worthless as they were stolen. D concealed this from his manager and instead informed him that the cheques were as good as cash.

CA, following Morris, held that there had been no appropriation. HL held that Lawrence (not Morris) recognised the correct viewpoint on the issue of appropriation and consent, and concluded that you could appropriate property even though the owner consented or gave authorisation.Summary: Property may be appropriate, irrespective of whether or not the defendant had the consent of the owner to take (or otherwise so treat) the property: Lawrence and Gomez.

Appropriation and gifts: Whether or not an gift might be appropriated.The first case was Mazo (1997). A maid convicted of theft from her employer.She cashed a sum of money and claimed that it was a gift. But she took advantage of her employer who had lapse of memory and was vulnerable. The COA applied a wider interpretation of the meaning appropriation stating that it is a neutral word to be looked at in isolation from any mens rea concepts, such as dishonesty and fraud.CASE LAW: HinksD befriended a vulnerable adult. D encouraged V to give her £60K and a television set. Convicted of theft. D appealed saying a gift could not be “appropriated.”HOL confirmed that a valid gift can be the subject of an appropriation. Justified this decision stating that it was in the interests of justice and confirming the faith placed in judges and juries to apply the legal principle in Gomez in a way which does not result in injustice. The decision may be defended on the grounds that it serves to protect the vulnerable.

Physical act: The case of Briggs is the authority of the principle that appropriation connoted a physical act. The D caused the proceeds of her elderly relatives’ house sale to be transferred into her bank account by deceiving them. Her conviction for theft was quashed by the COA, holding that appropriation requires a physical act rather than a remote act triggering the payment.

● D can be found to appropriate even if he does not take possession of the item (Corcoran v Anderton (1980) 71 Cr App R 104)

● Appropriation can occur by a person in or not in possession of the item (S3(1) and Pitman and Hehl (1976) 65 Cr App R 45).

A later appropriation: S.3(1) Where a person initially comes by property without stealing it, but he later does something (or omits to do) with the property by which he assumes the rights of the owner over that property. E.g. keeping the owner’s property which he initially borrowed innocently. Bona Fide purchasers: s.3(2):Where 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.Where a person purchases a property in good faith but it later transpires that ownership of the property did not pass to the purchaser (for example, if it was stolen property), the purchaser will not have appropriated the property. If the purchaser does something with the property assuming

the rights of the owner (which he believed he was) over the property, there will be no appropriation. So, a bona fide purchaser in good faith cannot be guilty of theft.

PropertyThe prosecution must also proves that the defendant appropriated property, i.e. something capable of being stolen under the Theft Act 1968 is defined under s.4(1).“Property” includes money and all other property, real or personal, including things in action and other intangible property.This definition is extremely wide and covers land and all tangible property. Money is specific mentioned i and refers to coins and banknotes, including foreign currencies.

If D steals a cheque for the value of £100 he has not stolen money. He has stolen a cheque which is merely a piece of paper; he only steals money if it is cashed and he receives coins and notes. The £100 in the bank is not property but a thing to which you have a proprietary interest – it is a debt owed to you by the bank which is a thing in action.

Real property refers to freehold land, although there are a number of exceptions under s.4(2), and personal property refers to leasehold land and chattels (object such as a laptop, iPod, wallet or car).Intangible property (has no physical existence) is also included. A ‘thing in action’ is an example of this kind of property because it has no physical existence but it does entitle the owner to bring an action in law (share in a company, a debt, a copyright, trademark, credit in a bank account, agreed overdraft). Other intangible property also covers patents and export quotas.

● Confidential information: Is not a property and cannot be subject of a charge of theft if dishonestly appropriated. CASE LAW: Oxford v Moss (1979)A student managed to obtain an examination paper, he copied the question and returned the paper. Held that could not be subject of a conviction of theft. It was suggested that he was convicted if he had been charged with theft of the physical piece of paper. (tangible property)

● Electricity: whereas gas and water are property and may be stolen, electricity does not amount to property and cannot be stolen (Low v Blease). Where a person uses another person electricity to charge his phone, it will not amount to theft. Such an act may be covered by a separate offence of abstracting electricity under s.13 of the the Act 1968.

● Corpses and body parts: a corpse and body parts are not property and thus cannot be subject of theft (Sharpe Dears & B). It was confirmed in the case of Kelly and Lindsay (1999). The exception of a corpse or body parts which is preserved for purposes of medical or scientific examination, including educational purposes.Also, where a D cuts of a person’s hair, an offence against the person will have been committed (unless it is consented). Case of DPP v Smith, dishonestly keeping the hair would surely amount to the offence of theft. The hair is tangible.

● Services: for example a bus ride, driving lesson, private tuition do not amount to property under s.4(1), and therefore cannot be stolen. Where a person dishonestly travels on a bus without buying a ticket, he has not appropriated any propery and cannot be guilty of theft. He could be guilty of obtaing services dishonestly under s.11 of the Fraud Act 2006.

❖ Things in Action: Is a right which can be enforced by legal action, and as property under s.4(1) itt may be subject of a charge of theft. If it belongs to another and is dishonestly appropriated with the intention to permanently deprive the other of it, the offence will be made out.Cheques and bank account is a thing in action.

Torkington v Magee [1902] 2 KB 427 defines thing in action as something which someone owns which they can only claim by legal action and not by physical possession.Credit balance in bank account/ Cheque – thing in action – debt owed to you by the bank – where you write a cheque the debt belongs to the payee of the cheque not the drawer so by them stealing your cheque they are stealing your right to enforce that cheque.Davenport – Cheque and bank account are things in action –Lord Goddard says ‘The relationship between banker and customer is that of debtor and creditor…When the bank is paying out, whether in cash or over the counter or whether by crediting the bank account of someone else, he is paying out his own money, not my money, but he is debiting my account with him. I have a [thing in action] that is to say a right to expect the banker to honour my cheque.’Kohn – credit account and arranged overdraft are things in action but unarranged overdrafts are not.

Preddy – Facts not relevant but importance of case is that HL recognise that the taking of a cheque does not amount to an appropriation, you only appropriate the thing in action when you present it at the bank or try to use it in a shop etc. It is at that point it is cashed that you are stealing the debt owed by the bank to V.Williams – D ran a building business and targeted vulnerable elderly householders. D charged a modest sum for initial work to gain C’s trust and then charged exorbitant sums for any subsequent work. D charged with theft by inciting large cheques to be drawn in his favour and then presenting them for payment CA recognised an appropriation occurred when he tried to use the cheque i.e. draw the debt owed by the bank – the debt was destroyed when D appropriated it.

➔ Statutory Exceptions: Land, animals and plants➔ Land: Land amounts to property under s.4(1) of the Act 1968 but it imposes limitations

on when land can be stolen. A person cannot steal land or things forming part of land

and severed from it by him or by his directions unless one of the situations in s.4(2)(a) to © exists. *Under s.4(2)(a) where a trustee or personal representative or someone otherwise authorised to sell or dispose of land, deals with the land in breach of confidence, he may be guilty of theft.*Under s.4(2)(b), a person not in possession of land may be guilty of theft of that land if he appropriates something which forms part of the land by severing it or causing it to be severed, or if it has already been severed. This would cover a defendant who enters another’s land and removes a birdbath which has been fixed to the land.*Under s.4(2)(c), a tenant in possession of land will be guilty of theft where he appropriates a fixture or structure on the land. For example, a tenant who removes a garden shed which is fixed to the land, or even sells the garden shed without severing it, will be guilty of theft.

➔ Wild Plant: S.4(3) imposes limitations on when things growing wild on land can be stolen. A defendant is not guilty of theft if he picks wild mushrooms, or flowers, fruit or foliage from a plant growing wild. However, he will be guilty of theft if he picks these in order to sell them, or if he completely uproots a whole plant (other than a mushroom).

➔ Wild Animals: S.4(4) imposes limitations on when wild animals can be stolen. Tamed animals (such as dogs or a cat) or animals ordinarily kept in captivity (such as animals kept at London Zoo) are property and can be stolen. Untamed animals or animals not ordinarily kept in captivity cannot be stolen, unless the animal has been, or is in the course of being, reduced into possession of a person.

Belonging to another

Must be proven by the prosecution that at the time of appropriation, the property belonged to another. Not necessary to prove to whom the property belonged. Under s.5(1) of the Act 1968, is a wild definition.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).It is clear from this section that property not only belongs to its owner, but it also belongs to any person who has possession or control of it, or a proprietary interest in it.

Can you steal your own property? It is not possible to steal property from yourself. If you are the sole person with any proprietary interest in a piece of property, you cannot be guilty of stealing it. However, it is possible to steal property you own if somebody else has possession or control of it or a proprietary or interest in it at the moment of appropriation.CASE LAW: Turner (No.2). Although he was the owner of the vehicle, the garage had

possession or control over the car at the time of appropriation. The idea that you can be guilty of stealing your own property from somebody who is merely in possession of it seems very strange.

Case: Meredith (1973).car removed by police and place in a compound. D, secretly took the car back without payment – liable for theft? Court said No as Police had no interest in the property.

If property has been abandoned, it belongs to no one and cannot be stolen. When is property abandoned? Property is only abandoned if the owner is completely indifferent as to what happens to it and intends to give up his proprietary rights and interests in the property without conferring an interest on another person.Bin bags left for collection are not abandoned. Where property is no longer wanted by the owner and is left out as refuse for the local authority to collect, it is not abandoned and does belong to another. CASE LAW: Williams v Phillips (1957) and confirmed in Rickets v. Basildon Mag. Court (2011)

Control and possession: property belongs to the person in possession or control of it, irrespective of whether or not they are also the owner. In the case of Woodman (1974)

Possession – physical control in certain cases but physical control not necessary e.g. householder possesses goods when he is away from his house – at the time of the appropriation he does not have physical control.Control – control of goods even though you are not aware that they are there e.g. item on land which you don’t know are there e.g. golf balls lost on your land.Woodman – P sold all his scrap metal to Q. P had no knowledge that Q had left scrap metal on his land and P erected a barbed fence to exclude trespassers from the site. D removed some of the scrap metal and was convicted of theft. Court held that P was in control of the scrap and it was unnecessary to determine whether he was also in possession.A thief can steal from another thief – no need to read lawful possession or control into s5(1) – Kelly.

Lost property: property which is merely lost is not abandoned, even if the owner gives up the search of it.CASE LAW: Hibbert v McKiernanCASE LAW: Rostron (2003) -> Convicted of theft of golf balls after he retrieved them from a lake. D argued balls had been abandoned. Held: Sufficient evidence that they belonged to the golf club.

Property of the deceased: where a property is stolen from a corpse, proving that the property ‘belonged to another’ is problematic. The prosecution must prove that the property belonged to someone who was alive. CASE LAW: Sullivan and Ballion (2002): 2 D’s removed £50000 from the dead body of a drug

dealer. The CC ruled the property did not belong to another at the time of the acr of appropriation and acquitted the charge of theft. Who did the money belong to? The judge suggested that the money might belong to the Crown as bona vacantia (doctrine: ownerless passes to the Crown). It is submitted that this alternative is the most appropriate alternative if the property did not belong to the ‘employer’ of the deceased or his estate.

Property received for a particular purpose: Where title to the property passes to the defendant before the dishonest appropriation of the property, the property does not belong to another and the can be no conviction for theft.S.5(3) and 5(4) deals with 2 situations where the property is deemed to belong to another.

s.5(3) where a person receives property from an account of another, and is under an obligation to the other to retain and del with that property or its proceed in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other.There must be an obligation on the defendant to deal with the property in a particular way(

case: Hall) Obligation e.g. D employs C to paint his home, D gives C £50 to buy paint, C obtains possession and ownership of the £50 but if he spends it differently then he can be guilty of theft = imposing of legal obligation means D retains control of the property. No requirement no theft.

Hall – D, a travel agent received deposits and payments from clients who had booked air trips to America. D paid the money into the firms account but never arranged the trips and was unable to repay the money. His conviction quashed as it was not proved that he was under an obligation to use the money in a particular way. It would have been different if D had been under an obligation to preserve the money in a separate fund. The clients did not retain any interest in the money.Can be contrasted with case of Hassall – treasurer – took money each week to be returned at Xmas – need to look for a clear understanding of what the transaction was and the clients retained an interest.Hallam and Blackburn – D, financial advisers – similar factual case - they paid investors cheques into their own accounts or in company account but did not invest them on their client’s behalf – money was given to be invested – specified purpose which did not occurCA upheld their convictions arguing that the clients (writers of the cheques) retained an equitable interest in the cheques drew in their favour and in the proceeds or account balance – irrelevant at which stage appropriation occurred.Covers situations where someone receives money on account of another – Wain - organised event to raise money for charity and then removed the money from the charitable account to his own account when he withdrew money from his charitable account he was charged with theft. Did not have to keep actual notes but the sum of the collection in a place the charitable givers would expect – had to do with it as they intended it to be used for.

Whether a person is a trustee is something for the courts to determine – matter of law for a judgeWhether or not an obligation arises is a matter for the judge to determine – Accused though must have knowledge of the obligations and its extent; and it must be a legal obligation (Gilks).

The obligation to deal with the property in a particular way must be a legal obligation. A moral or social obligation is not enough. Legal Obligation examples:•Davidge v Bunnett (1984) D given money by flatmate to pay the gas bill.•Wain (1995) D given money to pass on to charity but he didn’t. Held he was under a legal obligation to deal with the property in a particular way.

S.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.CASE LAW: Attorney General’s Reference (No.1 of 1983):If the D does not resolve the mistake and repay the money, for example, the property will be deemed as “belonging to another.”It also be held that where property is transferred to another person under a mistake of fact, the transferor retains an equitable interest in the property (Shadrokh-Cigari).There must be a legal obligation to restore the money under civil law. In Gilks, there was no such legal obligation. As the transaction was a wager, there was no legal obligation on the defendant to return this money in civil law.