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Theft - Coggle Diagram

- - - - Appropriation with consent:
        
        Lawrence v MPC
        
        Theft can be found even where the victim consented to the appropriation
        
        Italian student unable to speak English handed her wallet to taxi driver
        
        D took out money in excess of cab fare
        
        D convicted under s.1 TA 1968
        
        Held: D rightly convicted under s.1
        
        Viscount Dilhorne: Appropriation may occur even though the owner has permitted or consented to the property being taken
        
        Definition of theft doesn't include requirement that what is done is done with consent
        
        How does the Law resolve this conflict between two different judgements?
        - Gomez [1993]:
        
        D assistant manager in electrical shop
        
        Convinced manager to allow customer to buy items using cheques that D knew were stolen, so worthless
        
        The manager consented to sale
        
        D charged with theft
        
        CA held that appeal allowed following Morris, the consent of V undermines the element of appropriation
        
        However, HoL Held: reaffirming D's liability and following Lawrence
        
        Lord Lowry confirmed that V's consent was irrelevant: D appropriated where he tricked V and assumed ownership rights
        
        Appropriation can be found despite a lack of deception: Hinks [2000]
        
        D befriended V who was naive and had limited intelligence
        
        Over 6 months she took V to his building society where he withdrew and gave her money totalling £60,000
        
        D charged with theft
        
        Held: guilty of theft—although the transfer of money may not have amounted to a civil wrong, this doesn't preclude it being an appropriation and a theft
        
        Lord Steyn (majority opinion): "It is immaterial whether the act was done with the owner's consent/authority."
        
        Dissenting critique:
        
        Prosecution could have argued that D lacked capacity- but did not. Gifts valid
        
        Hinks could not be dishonest if she believed D was gifting her the money (s.2(1)(b)- fl Lord Hutton
        
        Decision treats lawful conduct (in civil law) as a crime because judged immoral
        
        Law must distinguish criminality and immorality—Lord Hobhouse
        
        Simester and Beatson [1999]
        
        H was a thief but at same time obtained valid (indefeasible) title to money
        
        Any transaction passing property actus reus of theft
        
        Theft wholly depends upon subjective jury decision about dishonesty
        
        Undermines certainty in civil transactions
        
        Civil rule contrary to principle that person should not benefit by wrongdoing
        
        The Bona Fide Purchaser:
        
        Section 3(2) of the TA 1968 creates an exception where no appropriation will be found
        
        This arises where D purchases property in good faith (bona fide), believing that she is gaining full civil title; it then transpires that full title has not been transferred (e.g. because the goods were stolen), but D continues to treat the item as her own
        
        Adams [1993] Crim LR 72:
        
        Bought pile of spares in good faith
        
        Later police arrested him because they were stolen
        
        He did admit when he inspected the spares that number plates were filed
        
        Initially charged as guilty
        
        CA: trial judge was wrong and should have pointed out to the jury if Adam was a bona fide purchaser, if he found out they were stolen after purchase, he shouldn't be liable for theft
        
        Adam's charge overturned
- - - - Common law def of dishonesty: Ghosh [1982]
        
        Established the two-limbed test for dishonesty that was later overturned in Ivey
        
        D surgeon, claimed fee for operations where he shouldn’t be paid
        
        D guilty of theft
        
        Lord Jane CJ introduced a two-limb test
        
        Ghosh [1982] 2 All E.R. 689 (C.A.):
        
        Suggested a two-stage test for dishonesty:
        
        Was it dishonest by ordinary standards?
        
        If so, did D realise that what they were doing would be judged dishonest by reasonable people?
        
        1) Objective test- Standards of reasonable honest people
        
        2) Subjective test- Did D himself realise that what he was doing would be considered dishonest
        
        Time frame- when he appropriated the property (not retrospectively)
        
        Application of modern social standard by jury- not strict legal test
        
        Criticised for uncertainty and inconsistency
        
        Second Limb: allows defence if D misunderstands current standards. Not generally a defence that D misunderstands legal standards
        
        Dishonesty Reconsidered: Ivey v. Genting Casinos [2017]:
        
        D, professional gambler made civil claim against X, casino, for withheld winnings
        
        D won £7.7 million and admitted edge-sorting technique but denied cheating
        
        Casino refused to pay and D brought an action for breach of contract
        
        Held: rejecting D’s claim—Lord Hughes: D’s conduct was cheating and dishonest in civil law. Obiter dicta that civil and criminal definitions of dishonesty should be interpreted consistently
        
        Ghosh didn’t apply in civil law and was wrong with second limb
        
        The new test—Ivey and Genting:
        1) Jury should determine the actual state of the accused's knowledge and belief as to the facts
        2) "Once this actual state of mind has been determined, the question whether his conduct was honest or dishonest should be determined by the fact-finder (jury) by applying the objective standard of ordinary decent people" (Lord Hughes)
        
        R v Barton [2020]- Confirmed that Ivey test would apply in relation dishonesty in Criminal Law (although obiter dicta)
    - - When appropriating the property of another, D did so with an intention permanently to deprive V of it
        
        The requirement of an intention permanently to deprive is an ulterior mens rea element: whether D permanently deprives V in fact is irrelevant; the prosecution only need to demonstrate an intention
        
        D's conduct after the appropriation, whether she returns the property and/or how she deals with it, is only relevant far as it provides evidence of D's intention at the moment of appropriation
        
        Mitchell [2008]: D and three others forcibly took V's car, having crashed their own, whilst attempting to escape from the police
        
        The car, largely undamaged, was later abandoned on the road with it hazard lights on
        
        D was charged with robbery, which requires D to have committed theft
        
        Held: appeal allowed—the circumstances of the intended abandonment made it likely that the car would be returned to V and thus didn't indicate an intention to permanently deprive
        
        The question in each case will focus on how D intended to abandon the property at the moment of appropriation
        
        Deemed intent to permanently deprive, s.6:
        
        Cases where temporary deprivation would be just as harmful as permanenet?
        
        "a person appropriating property belonging to another without meaning the other to permanently lose the thing itself is nevertheless to be regarded as having the intention or permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the others' rights."
        
        Even if they don't mean to permanently deprive, they can be deemed to have the intention if they intend to treat the property as their own to dispose of in a way that is regardless of the others' rights
        
        Court can deem an intention to permanently deprive, where temporary deprivation intended would be just as harmful and costly as permanent deprivation
        
        Marshall [1998]:
        
        M obtained a sold un-expired London Tube tickets, belonging to Company
        
        Held: Treating tickets as his own to dispose of, regardless of owner's rights
        
        Borrowing and lending under s.6(1):
        
        6(1) (continued) "and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal."
        
        e.g. take a battery and return it when electricity is drained
        
        Lloyd [1985]:
        
        Fim reels removed from cinema and copied for commercial showing and sale
        
        Fim then returned
        
        Held: Commercial exploitation BUT NOT equivalent to an outright taking or disposal, because films still have value
        
        Critiques of Lloyd:
        
        6 more items...
- - - - Land: Generally excluded from theft
        
        s.4(1) includes real property (land and things attached to land)
        
        Theft of Cleckheaton Railway Station [1972]: railway closed, D began dismantling brick by brick, arrested and charged by severing land
        
        Property belonging to another:
        
        S.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)"
        
        Proprietary interest -= owning it
        
        Rostron [2003]:
        
        D and others trespassed onto golf course and took lost golf balls from a lake
        
        D charged with theft of the balls
        
        Held: guilty of theft
        
        The jury were entitled to find that the balls belonged to the golf course; the course owners maintained possession and control over them
        
        Car taken from repairer: Turner (No. 2) [1971]:
        
        D had car repaired by V at garage
        
        D used spare set of keys to take car without paying
        
        D charged with theft of car
        
        Held: guilty of theft—the garage was in possession and control of the car, although D was legal owner, taking property that belonged to another (the garage)
        
        Reasoning in Turner (No. 2) was expressed too widely, indicating that appropriation in all such circumstances would amount to the taking of property belonging to another. This cannot be right
        
        Turner (No. 2) does provide a useful illustration, however, of theft in circumstances where D does not have the right to demand his car be returned in civil law (until he pays the bill)
        
        Hall [1973]:
        
        Money from client doesn't fully belong to the client unless there is a special agreement to deal with the money
        
        D received money from clients for flights, which he used for business expenses
        
        D's businsess collapsed, no refund made
        
        D convicted of theft
        
        CA held: Appeal allowed
        
        Edmund- Davies LJ: When HAll received particular money he was entitled to use the money as he liked, although he had no obligation to provide holidays for customers under contract law but not under obligation to receive money, conserve it, and spend it on one particular thing
        
        Contrast with Floyd v DPP [2000]:
        
        MOney received from customers for Xmas hampers
        
        Contractual obligation to pay it to the hamper compnay
        
        S.5 (3) applied
        
        Guilty of theft
        
        On basis of examining contract between Floyd and customers
        
        He promised if he received the money, he would take it to the company so they can buy hampers
        
        This wasn't a free discretion—he was meant to converse it and spend it on the particular thing
        
        Property obtained by mistake—s 5 (4)
        
        D receives property by mistake and is under an obligation to return it or its value
        
        Where D appropriates such property and refuses to make restoration, they take property of another
        
        Gresham [2003]:
        
        D's mother died and yet D who had power of attorney didn't inform her pension provider (V), who continued to make payments for 10 years
        
        D used this money as his own
        
        D charged with theft
        
        Held: guilty of theft—D had duty under s5(4) to return the money to B and so his use of it amounted to taking another's property
        
        S 5 (4)- The issues
        1) Did D obtain property as a result of another's mistake?
        2) IS there an obligation to restore the property (or proceeds)
        3) IF he does not make a restoration, the property is treated as belonging to the other
        4) So, dealing with it as owner, could be appropriation of property belonging to another
        5) Intention not to restore = intent to permanently deprive
        
        A-G's Ref (No.1 of 1983)
        1) Police officer overpaid by mistake by the Payroll ofÏce.
        
        Did not mention it or offer to repay.
        
        Although she became owner of the money when paid (civil law).
        
        She was under obligation to repay the money back.
        
        So under 5(4), the money was treated as property belonging to another (Police Force).
        
        CoA upheld her conviction for theft but she should have been convicted of theft