Understanding Theft: Definition and Actus Reus Analyzed

1. Theft 1 • In this lecture, we will consider the definition and actus reus of theft.

2. Offence under s.1 Theft Act 1968 Definition – dishonest appropriation of property belonging to another with the intention to permanently deprive. Actus Reus

3. Appropriation • See s.3: • "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.”

4. All that is required is any assumption of any of the rights of an owner, not all of the owner’s rights (Morris (1983)).

5. D can appropriate without taking possession or control of property, see e.g. Pitham & Hehl (1976).

6. Appropriation and innocent acquisition of property • See wording of the latter part of s.3(1)

7. Section 3(2) • S.3(2) provides: • “Where property or a right or interest in property 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.”

8. Aim - to prevent D being liable for theft if he purchases goods from X in good faith and for value and subsequently finds out that X did not have title to them so that the goods still belong to someone else.

9. Examples • P’s car is stolen by D who then sells it to V and V buys the car in good faith (gf). • a) V is not guilty of theft as bfpfv. • b) V then finds out that it was stolen and then sells it on to Y who buys in gf. V and Y are not liable for theft and Y is still not liable if he subsequently discovers the theft and keeps the car.

10. C.f. • V makes a gift of car to Y. Y later discovers the theft but decides to keep the car. V is not liable for theft but Y is liable for theft when he decides to keep the car as he is then dishonest and he is not a transferee for value.

11. Can a person guilty of more than one count of theft merely by continuing to exercise rights over property they have stolen? • No, see Atakpu (1993)

12. Appropriation, consent and unauthorised acts • The issue of whether D can appropriate property where he has the consent of the owner to the taking was for many years a vexed question. • Relevant caselaw: • Morris - the Ds had appropriated the goods when they switched the price labels (as this was unauthorised) and not when they took the goods down from the shelves as they were allowed to do this. • NB no difficulty would have arisen in Morris if the Ds had been charged with obtaining, or attempting to obtain, property by deception.

13. For a contrary view, see Lawrence (1972)

14. Gomez (1992) HL resolved the matter: • Appropriation does not necessarily involve an element of adverse interference with or usurpation of some right of the owner. Thus, there can be an appropriation even where the owner has consented to the taking of his property. • Difficulty - this creates an overlap with s.15, obtaining property by deception.

15. Application of Gomez to the self-service store • D appropriates the goods when he takes them down from the shelves as he is assuming a right of the owner to possess the goods. (Only theft if mens rea present.) • It would not be until D did something he was not authorised to do e.g. put the goods in his pocket or switched the labels that it would be possible to prove theft. (This is the stage at which Morris stated that the appropriation had taken place).

16. Appropriation and gifts • Hinks (2000) – HL stated that Gomez held that it is unnecessary to prove that the taking was without the owner’s consent. Thus, a person could appropriate property belonging to another where the other person made him what would be regarded in civil law as an indefeasible gift of property.

17. Is appropriation an instantaneous or continuing act? • Relevant caselaw: • Hale (1978) - appropriation can be continuous. • Gomez - it should be left to the “common sense” of the jury to decide that the appropriation can continue for as long as the thief “can sensibly be regarded as in the act of stealing, or is “on the job.” • Also see Lockley (1995)

18. Property • Defined in s.4 • There are some statutory exceptions relating to land, wild growth and wild creatures. • There are also some common law exceptions, for example: • Confidential info – excluded from the scope of theft in Oxford v Moss (1978); • Electricity (Low & Blease (1975))

19. Belonging to another • See s.5: • "Property shall 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.)"

20. For the effect of s.5, see: • Turner (1971); • Woodman (1974)

21. Abandonment • If property is merely lost, it still belongs to the owner so it can be stolen. • Where, however, the owner abandons his property, e.g. by throwing it away, it no longer belongs to anyone and cannot be stolen. • Abandonment will not readily be inferred by the courts. It occurs where the owner is indifferent as to what becomes of the property, see, for example, Williams v Phillips (1957).

22. Property received for a particular purpose • See s.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 the other.”

23. Hall (1973) - D was not liable for theft as he was under an obligation to provide tickets etc but not under an obligation to deal with the money in a particular way, to use it for that particular holiday. • Also see Davidge v Bunnett (1984)

24. Property got by another's mistake • S.5 (4) provides that: •  “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.”

25. The obligation to return the property must be a legal one not a moral or social one, see Gilks (1971) in which a mistake which led to overpayment on a gambling win was held not to fall within s.5(4) as gambling debts are legally unenforceable. • The court relied on s.5(4) in AG’s Ref (no1 of 1993)

26. Equitable proprietary interest • It is not always necessary to rely on s.5(4) as there is a common law rule that where money or other property is transferred under a mistake of fact, the person who transfers it retains an equitable proprietary interest in it or its proceeds, see Shadrokh-Cigari (1988)