DISCLAIMER: all information in these module reviews is taken from our own notes and research so please do not cite this in your work.
Welcome to the fifth instalment of our Module Reviews!
Our current focus now turns to Criminal law, with this Review covering theft. This is a brief summary intended to give a basic overview of the topic for those beginning their journey into Criminal law. Throughout this Review, I have cited criminal cases as authority for much of the information given, which you can find italicised throughout.
Introduction
Theft, s.1 Theft Act 1968 = the dishonest appropriation of property belonging to another with the intention to permanently deprive.
As seen above, the main legislation relating to theft is the Theft Act 1968, laying out each separate element of the offence.
The actus reus of theft has three elements: (i) appropriation, (ii) property, and (iii) belonging to another.
The mens rea, on the other hand, has two elements: (i) dishonesty, and (ii) intention to permanently deprive.
We will look each of these elements in turn.
Appropriation – s.3
Under s.3, appropriation can be summarised as an assumption of any of the rights of an owner. This is an extremely broad provision and covers a range of acts that we carry out in our everyday lives, such as picking up an item from a shop shelf or borrowing a friend’s pen – whilst these acts alone may not constitute theft, it is in combination with the other elements that appropriation can become an offence.
In Lawrence, a foreign student got into a taxi and, when it came time to pay his taxi fare, offered the taxi driver his wallet to take the appropriate amount. The taxi driver took far more from the student’s wallet than the fare was worth and the question arose as to whether this could be seen as appropriation, given that the student had, in a sense, consented to the driver taking the money. It was held that, whilst the issue of consent may be relevant to the element of dishonesty (which we will cover later), it is not relevant to the question of appropriation, meaning that the taxi driver had in fact appropriated the student’s property – this just illustrates the breadth of appropriation!
Property – s.4
Section 4 of the Theft Act lays out five categories of property for the purposes of the offence:
(i) Money.
(ii) Real property.
(iii) Personal property.
(iv) Things in action.
(v) Intangible property.
This list is rather broad, thus the case law in this area has provided further clarity on what might be considered property.
In Kelly and Lindsay for example, it was found that corpses cannot be considered property and therefore cannot be stolen, but body parts acquired by virtue of the application of skill (such as dissection) are in fact capable of being property. More examples of ‘property’ relating to the human body include urine samples (Welsh) and even sperm stored in a hospital for fertility treatment (Yearworth).
Belonging to another – s.5
Under section 5, property will be seen as belonging to a person who has possession or control of it or has any proprietary right/interest in it. This is a relatively straightforward provision, however there are some contentious areas that have been covered in the case law.
In Turner, the defendant left his car in a garage for repair. In the middle of the night, after the repairs had been carried out, he collected his car to evade paying the repair costs. Even though the car did belong to defendant, this was still theft – the garage had possession and control of the car at the time, thus it belonged to them for the purposes of theft.
Under s.5(3), where a person receives property and is under an obligation to retain and deal with that property in a particular way, the property will be regarded as belonging to another. This was exactly the issue in Hall – a travel agent received deposits for holidays, which were put into a general current account for the business. When the travel agency collapsed, the deposits were lost, and the question arose as to whether the travel agent was under an obligation under s.5(3) to deal with the deposits in a particular way, namely to put them towards the holidays. It was held that there was no agreement when the funds were taken to deal with them in a certain manner, thus they did not belong to another for the purposes of the offence.
Dishonesty – s.2
Whilst the Theft Act does not give a definition for dishonesty, it outlines three types of behaviour that will not be considered dishonest:
(i) Belief in a legal right – if the defendant believes they have a legal right in the property, they will not be deemed dishonest (see Forrester).
(ii) Belief in the owner’s consent – appropriation will not be dishonest where the defendant believes that they would have the owner’s consent to do so (Holden).
(iii) Belief that the owner cannot be found by taking reasonable steps – for example, finding money on the pavement.
Whilst dishonesty is typically a straightforward question of fact that is left to the jury (Feely), in less clear-cut situations the common law has devised a test to decipher whether a defendant’s conduct can be said to be dishonest.
The original test for dishonesty was laid out in Ghosh and comprised of two stages:
(i) Was what was done dishonest according to the standards of reasonable and honest people? – this is an objective test.
(ii) Did the defendant realise that what he was doing was dishonest by those standards? – this element is subjective, based on the defendant’s beliefs.
However, there has been significant criticism of the Ghosh test, a primary criticism being that it endorses a ‘Robin Hood’ defence – the more warped a defendant’s view of his own conduct is for the purposes of the second stage of the test, the more likely they are to be acquitted. This culminated in Ivey v Genting Casinos replacing the test for dishonesty – whilst the Supreme Court’s disregard of Ghosh in this case was purely obiter dicta and therefore non-binding, the Court of Appeal in Barton has subsequently confirmed that the test in Ivey represents the law today. The test is as follows:
(i) One must first determine the defendant’s conduct and facts.
(ii) Then, one must determine what the defendant’s belief as to his conduct and the facts were (subjective element).
(iii) Question of whether the conduct, in light of the defendant’s subjective beliefs, is dishonest according to the standards of ordinary decent people.
Whilst there is clearly an element of subjectivity here, we can see that this is primarily an objective test – whether the defendant believes their conduct was dishonest no longer poses a barrier to a conviction for theft.
Key debate: which test for dishonesty is most preferable?
Intention to Permanently Deprive – s.6
Similarly to dishonesty, there is no definition of intention to permanently deprive under the Theft Act. However s.6(1) gives two examples of where the defendant will be said to have the required intention:
(i) An intention to treat the thing as his own to dispose of.
(ii) A borrowing/lending for a period or in circumstances that amounts to outright taking or disposal.
In Cahill, it was highlighted that ‘dispose of’ is to be taken as more than just using, meaning to deal with definitely, to get rid of, to get done with, finish. This has been widened further still in the case of Lavender, in which s.6 was treated as meaning ‘dealing with’.
When it comes to borrowing and lending, an intention to permanently deprive will arise where there is an intention to return the thing in such a changed state that all of its goodness or virtue is gone – in Lloyd, the defendant made copies of films from the cinema before returning them. This is clearly not an intention to deprive as the items were returned retaining their original goodness and virtue.
Thank you for reading our Criminal Law Module Review Series! We would love to provide further Module Reviews – please let us know what topics you would like us to cover in future.
Comentarios