PROPERTY OFFENCES

PROPERTY OFFENCES

THEFT

Theft Act 1968

A person is guilty of theft if he dishonestly appropriates property belonging to

another with the intention of permanently depriving the other of it.

A person guilty of theft shall on conviction on indictment be liable to imprisonment

for a term not exceeding seven years. S.7.

Property Offences is made up of 5 examinable offences. They are:

1. Theft
2. Burglary
3. Fraud
4. Obtaining services dishonestly
5. Making off without payment

PART ONE – THEFT

Theft, and the elements of theft, are defined in sections 1 to 6 of the Theft Act 1968.

 Section 1, 1968
 Theft: “A person is guilty of theft if he dishonestly appropriates property
belonging to another with the intention of permanently depriving the other of
it.
 Prosecution must establish the AR and the MR.

ACTUS REUS for theft consists of three parts: Prosecution must establish ALL
three elements viz must prove beyond reasonable doubt.

1. Appropriate
 2. Property
3. Belonging to another

APPROPRIATE

 S. 3 (1) Any assumption of the rights of the owner.

 The right to possess, use, consume, modify, destroy it, to lend, sell, give,
hire, pawn or otherwise alienate it, keeping it.
 Sell it. CASE: R v Pitham and Hehl 1976, Two defendants bought
furniture from M (to whom it did not belong) and arrived to collect it.
They were convicted of handling stolen goods and appealed. Held that
M assumed the rights of the owner by inviting the defendants to buy
the furniture.
Appropriation was complete on the offer to sell and so the defendants
had handled stolen goods.
 Requires a positive act. CASE:
R v Hilton 1997,
R v Caresana 1996,
R v Briggs 2004
 Appropriation can be a continuing act, but only for as long as the
defendant is acting in the course of the same transaction.
Theft is a finite act; its end is a matter for the jury: CASE: R v Atakpu
1994, the defendants hired vehicles abroad by deception and delivered
them to Dover, intending to ring and sell them in England. They were
convicted with conspiracy to steal (which required proof that the cars
were stolen in England).
 There are three main issues:
 1. Is it appropriation if D assumes only a right of the owner, not all the
rights of that owner? Yes. CASE:
R v Morris 1983, D swapped price labels on supermarket goods.
Ques was asked whether rights of owner applied to just one right. It
was held that it was sufficient to prove assumption of any of the
rights.
DPP v Gomez 1993, The D obtained authority for transactions by
falsely representing that stolen cheques were genuine. His
conviction for theft was upheld in spite of his appeal. D guilty
because appropriation occurred despite consent.
Lawrence v Metropolitan Police Commissioner 1972, Taxi driver
overcharged a pax who spoke little English. He falsely stated thar
the offered fare was insufficient and took further monies from the
wallet the pax held open to him. He was convicted of theft.
2. Can D ‘assume’ rights when the alleged assumption is an act done
with the consent of the owner? Yes. CASE: R v Gomez 1993. And this
is so even where there was not deception. CASE: R v Fritschy 1985
overruled.
3. Can there be an appropriation when the rights to the property were
properly transferred to D (acquisition of an indefeasible title to
property)? Yes. CASE: R v Hinks 2000/2001. The D received
property (in excess of £60,000), from a man of limited intelligence.
She was convicted of theft and appealed that she had been given
the property as a gift. That is immaterial that there was a valid gift
to D. The only question was whether D, the recipient of the gift was
dishonest. Held that she was dishonest.
 S. 3(2): protection for the bona fide purchaser

PROPERTY
  Definition found in s.4 of the Theft Act 1968. S4(1) gives a general
statement to the effect of that property. Includes money, all other
property, real or personal, including things in action and other intangible
property.
 As it relates to land, that falls under civil trespass, not criminal theft.


MENS REA for theft.

1. Intention (to permanently deprive)

2. Dishonestly / Dishonesty

 Can you take an unjustified risk or commit theft RECKLESSLY (an unjustified
risk)? The statutory definition is clear. Dishonesty and intention speaks to the
mental state of the D.
 The dishonesty describes the type.

THREE PARTS OF THE ACTUS REUS

 Appropriation found in S3 of the Theft Act of 1968

 Four examinable cases:

CASE: Morris

1. Gomez
2. Lawrence
3. Hinks
 Two examinable points:

THE FIRST ELEMENT OF THE ACTUS REUS - APPROPRIATE

1. Appropriation and the possibility of consent – If I take something

from you, and you are consenting to me taking the thing. Is that going
 to constitute “dishonest appropriation”? Would it amount to dishonest
appropriation? NO
There is a foreign student traveling, the student does not understand
English. The driver told the student $10. He does not understand, he
opens his wallet. The driver takes ALL the money. Is there
appropriation? YES. Was there consent? YES. Is that type of
appropriation dishonest? YES There can be present of consent, but here
it was dishonest.
2. Appropriation and gifts CASE: R and HINKS. You are a nurse and the
patient deposits money into the nurse’s account. Law states –
appropriation can be direct or indirect. Was the nurse being dishonest.
The Law Lords said she took the money. Do you think that was
dishonest appropriation? When you go through the judgement, the
matter did not turn onto Actus Reus, it turned to the Mens Rea. The
nurse was actually being dishonest. It was Fact specific – the patient
had a mental issue, the law felt based on an objective test, taking
$100,000 from the patient was dishonest.

TWO EXAMINABLE PTS:

1. Appropriation and the presence of consent

2. Appropriation and gifts

THE SECOND ELEMENT OF ACTUS REUS – PROPERTY

 Section 4, Theft Act 1968 for the statutory definition

 Tangible and Intangible things

The first examinable point:

1. Dead bodies – if you dig up a dead body, will you be charged with theft?
NO. General rule, A dead body is not considered property. You will NOT be
charged with theft. There is an exception: If the body parts are reduced
 into ownership, there is an ambulance transporting organs from one
hospital to another. The hospital OWNS the body parts. If you still that, you
WILL be charged for theft.
2. Wildflowers and Foliage – if you drive up to Toco and wild hibiscus is
picked. Are you charged for theft? NO, you will not be charged for theft.
But if you pass by someone’s private property and someone has their
foliage in their yard, YOU will be charged for theft.
3. Wild animals – If you go to Toco and you see a wild bird flying and you
take it home. Do you think you will be charged for theft? No, that wild
animal is not amounting to property. However, if you go to Caroni Swamp
and you grab a Scarlet Ibis, you will be charged for theft because that BIRD
IS PROPERTY OF THE CARONI SWAMP.
4. Fixtures – if you are renting somewhere, and you are moving out. You
decide you will rip up some carpet, two tiles and a chandelier, will that
amount to theft? YES. That fixture is a part of the property, it is affixed to
the property. If you remove something that is not a fixture, you go outside
and rip up grass, and taking it. Do you think you will be charged with theft?
NO, the grass is not considered a fixture. There is a distinction here
between foliage and fixtures.

5. LPR – Legal Personal Representatives – An executor or trustee is an LPR,

only holding legal title. Ownership of property is divided into two, legal
and equitable. The Legal title, your name is on the deed or share certificate,
or certified copy. That means you are legally the owner. The Equitable title,
gives you the right to enjoy, called the beneficial interest. If you are LPR,
you ONLY have LEGAL title, you cannot enjoy it or benefit from the
property. If someone such as the executor, moves into a house that is
supposed to be for the beneficiary, does that amount to theft? YES.
6. Property and Information – CASE Oxford v Moss. Do you think
information amounts to property? If there is an exam and you look at the
paper, the answer sheet on the teacher’s desk, and you see the
information. Did you steal the information? NO, according to Oxford v
Moss. The law says, instances like that fall under intellectual property.

THE THIRD ELEMENT – BELONGING TO ANOTHER

Statutory definition of belonging to another – Section 5 of Theft Act 1968.

1. Can you steal your own property? CASE: R v Turner 2. If you drop your
car off to the mechanic, then in the middle of the night, you take it back
without the mechanic’s knowledge. Is that stealing your car? YES. This case
MUST be compared and contrasted with CASE: R v Meredith. The removal
of a vehicle from out of a police station. The other party, like the mechanic
has a lean on the vehicle.

2. Belonging to Another and Abandonment – If you go to the cinema, and

you leave your umbrella. Do you abandon your rights as the owner of the
cinema? Did you dispose your interests? If this is my umbrella, I want it
back…Then it is still yours. If you drag your washing machine out to the
road, you HAVE abandoned your rights. Retain your rights vs Abandon
your rights.

3. Belonging to another and Temporal coincidence – CASE: Corcoran v

Whent 1977. You got to a restaurant, knowing you have no money. Is that
theft if you eat the food. You know you have no money. Then that is theft.
DIFFERENT from, you sit down to eat, your wallet is in your car. The waiter
asks for the money, but your wallet is in the car, are you charged with theft.
MENS REA occurs before you eat in the first instance.
 4. Belonging to another and Mistakes – there are two examinable sections.

1. Section 5 (1)
2. Section 5 (4)

MENS REA

FIRST ELEMENT FOR THEFT

1. Dishonesty – In the 1968 Act, there is no statutory definition for dishonesty.

There are three exceptions.
Section 2 (1)(a),
2 (1) (b),
2 (1) (c) of the Act. –
Section 2 (1) (a) the employer’s mother is having a heart attack. Do you think
the son has consent to move her car? YES. Defence will argue it is not
dishonest appropriation, and he did not intend to permanently take the
vehicle.
Section 2 (1)(b) If you genuinely believe that the property is mine. You and I
both have a purple umbrella. I take yours and you take mine. Is that dishonest
appropriation? NO. I genuinely thought the umbrella was mine.
Section 2 (1)(c) Carnival Monday you find $5.00 on the road. How does 2 (1)(2)
apply. If the D took reasonable steps to find the owner, but it was literally
impossible. Despite the fact that it’s only $5, you should still take it to the
police. Means that the D did NOT dishonestly find the owner. The applicability
is Fact Specific. This was geared towards a very specific situation. The defence
will argue 2(1)(c).

2. Section 2, subsection 2 – An intention to pay. A belated attempt to pay for the

item. You stick two tins of green pigeon peas in your pocket with an intention
 to pay, the security stops you. You then said, don’t make a scene, I will pay,
here is $10. Will you be charged with theft? YES. It amounts to dishonest
appropriation.

3. The GHOSH test. The definition for dishonesty in the common law in the case
R v Ghosh.
There were two elements at one point in time.
1. Subjective
2. Objective

After 2017 – This test was amended in 2017 CASE: Gentine v Casinos now
only an OBJECTIVE test, does the reasonable man think that the D was being
dishonest.

SECOND ELEMENT FOR THEFT:

INTENTION TO PERMANANTLY DEPRIVE THE OTHER OF IT

 Section 6, subsection 1 – definition of intention to permanently deprive the

other of it.
 CASE: Lavender, Marshall, Lloyd
 Peruse the above cases re intention to permanently deprive the other of it.
 You took $5, from a friend without her knowledge but you later brought back
$5 after feeling badly. Your state of mind at the time of appropriation means
you have committed theft.
 If I lend you my book, and you took my book home. At the time are you
dishonestly appropriating the property? NO. At the material time, did you
mean to appropriate the book? NO. BUT, if you keep it for an unreasonable
time, or don’t return within a reasonable time frame, you intend to
permanently keep the book.
 Section 6, subsection 2 – Pawning. It has to do with temporal coincidence. If I
borrow a chain from you, and I go to a pawn shop. I get $1500. Did I intend to
permanently take the chain from you? NO. I thought I was going to give back
$1500 and get the chain back.
BUT if I go to the pawn shop intentionally to pawn the chain, never to get it
back. That is, the intention to permanently deprive via pawning.