#19111 - 5 Theft & Fraud - Criminal Law

5. Criminal Law: Theft and Fraud

THEFT: s 1(1) Theft Act (TA) 1968 – where a person dishonestly appropriates property belonging to another with the intention of permanently depriving them (either way offence; max 7 years)

• AR: appropriation of property belonging to another

1. Appropriation: s 3(1) any assumption of the rights of an owner (including where they initially obtained the property innocently then later assumes rights by keeping it or dealing with it as an owner)

• rights of owner include e.g. right to have possession, sell it, destroy it, lend it, not returning it, exchange it, replacing pricing label on something etc

• D only has to assume one of the rights of the owner for an appropriation, not all

• Appropriation can occur even if the property was taken by D with owner’s consent or authorisation (e.g. by keeping it or dealing with it as an owner)

• a gift given to you can be an appropriation if you then assume rights of owner over it

• s 3(2): no appropriation where when they acquired the property:

1. the transfer was for value (i.e. person gave money or exchanged something), and

2. buyer acted in good faith (i.e. no doubts about legality of the transaction, and believed seller was acting properly)

• You cannot appropriate property more than once (i.e. if defendant appropriates an item by stealing it in the first instance, any later assumption of rights of an owner is not appropriation)

• Summary: PRETTY MUCH DOING ANYTHING WHATSOEVER TO PROPERTY NOT BELONGING TO YOU IS APPROPRIATION (except where there is an exchange)

2. Property: s 4 - property includes:

1. Money: cash

2. real property: land and things attached (e.g. house, garage)

• s 4(2) generally, someone can’t steal land, or things attached or severed from it

• Exception: person is

  • Trustee / PR

  • Tenant takes something from the land that they aren’t supposed to (e.g. a fixture e.g. greenhouse)

  • Not in possession of land and appropriates part of it by severing it, or appropriates part of it after it is severed

  • Has power of attorney

  • Company liquidator

  • Appointed for selling land and deals with it in breach of his responsibilities

• s 4(3) picking wild fungus, or flowers, fruit or foliage from a plant growing on the land is not appropriation, UNLESS DONE FOR REWARD OR COMMERCIAL PURPOSES, or if they take a whole plant (213)

• note: if there is a field full of them, may be grown commercially, not wild, so would be property

• s 4(4)

• most wild animals aren’t property, but

• tamed wild animals, animals normally kept in captivity & animals reduced into someone’s possession (or in the process of being reduced into possession) are property

3. personal property: any tangible object that isn’t real property

4. things in action / chose in action: intangible property that can be enforced by legal action (e.g. a copyright, bank account funds, overdraft facilities, rights arising under trust)

• money beyond agreed overdraft is not property

• forged cheques are things in action

5. other intangible property: intangible property which aren’t things in action (e.g. patent)

• Things that aren’t property:

• CONFIDENTIAL INFORMATION

• ELECTRICITY

• SERVICES (e.g. bus ride, tuition)

3. Belonging to another: s 5(1) where someone else has possession or control of it, or has a proprietary right or interest in the property:

• where there is joint ownership of property, one owner can steal it from the other (trustees are part owners of trust property so this may apply)

• if directors take money from company, the property belongs to the another, the company

• you can steal property you own if someone else had possession/control of it at the time (e.g. if you agree to lend someone something but you take it back early, It belonged to another at that time)

• property that is subject to trust belongs to the trustee as well as the beneficiaries who have an interest in the property

• Property must have belonged to another at the time of dishonest appropriation (i.e. if item has already become your property - e.g. if you fill up car with petrol. Then afterwards you decide not to pay and leave. At the time you’re are dishonest (you decide not to pay and leave), you have not appropriated property belonging to another because once you put it in your tank, you are already in possession of the petrol or e.g. if you eat food then decide not to pay afterwards, there is no theft because there was you were already in possession of the food once you dishonestly appropriated)

• s 5(3) where a person receives property from another under an obligation to the person to retain or deal with the property or its proceeds in a certain way, the property belongs to another

• Abandoned property doesn’t belong to another: it is not abandoned if lost > only abandoned if the owner deliberately relinquished their interests in it without giving interests to another person

• Rubbish left outside house for local authorities is not abandoned, it is still property of householder until collected by local authority

• Items left outside charity shops are not abandoned bc owner intended the charity to have it

• Golf balls hit into a lake belongs to the golf club, they aren’t abandoned

• MR: dishonesty and intention to permanently to deprive the owner of the property

1. Dishonesty

• Where clear, there is no need to refer to below

• S 2(1) defendant is not dishonest if: (subjective test - what particular defendant believed – doesn’t need to be reasonable belief)

1. They GENUINELY BELIEVE THEY HAVE THE LEGAL RIGHT TO DEPRIVE THE PERSON of the property (on their or another person’s behalf)

• Includes if they were owed a debt (that they believed they were legally entitled to)

• Belief in moral right to deprive not enough

2. They GENUINELY BELIEVE THE PERSON WOULD HAVE CONSENTED to the appropriation if they knew the circumstances

• Belief that person probably or possibly would have consented or ought to have consented isn’t enough

3. They GENUINELY BELIEVE THE PERSON WHO THE PROPERTY BELONGS TO CAN’T BE DISCOVERED BY TAKING REASONABLE STEPS (except where property came to him as trustee or personal representative)

• If it later becomes clear that the owner can be found, they can now be guilty of theft if they keep the property

• s 2(2) appropriation might still be dishonest even if D was willing to pay for property

• question of fact for jury – was defendant was dishonest

• if D knew the owner didn’t want to sell – likely dishonest

• if property of high value - more likely dishonest

• Ivey test: will only use if the sections of Act don’t allow them to make decision

1. ascertain the defendant’s actual knowledge or belief as to the facts (did they think it was dishonest)

2. [objective test] was it dishonest according to the ordinary standards of reasonable and honest people? (if no, not dishonest)

2. intention to permanently deprive

• Usually clear

• Must be intent to permanently deprive of the specific piece of property appropriated i.e. EVEN IF DEFENDANT WAS GOING TO REPLACE IT WITH A NEW ONE, they have permanently deprived the victim of the specific item taken

• If someone TAKES MONEY INTENDING TO REPAY IT, THERE IS INTENTION TO PERMANENTLY DEPRIVE

• can intend to permanently deprive someone with a limited interest in the property (e.g. if book was lent to someone for a week and someone takes it from them and intends to return it to original owner after the week, they intended to permanently deprive the loanee)

• CONDITIONAL APPROPRIATION (D takes something to see if there is anything worth stealing then returns it because there is not) is NOT INTENT TO PERMANENTLY DEPRIVE

• Generally person doesn’t have intent to permanently deprive if they only intend to borrow it

• S 6(1): exceptional circumstances only

• intent to permanently deprive where it was D’s intention to treat the property as their own to dispose of (i.e. they return it only after they used it)

• Chan Man Sin v AG Hong Kong: accountant who forged cheque to transfer money to personal account but he knew the bank would reimburse the company for the money

• intent to permanently deprive where they borrowed the property for a period and in circumstances making it equivalent to outright taking or disposal (i.e. returning it after its value / purpose is gone)

• S 6(2): intent to permanently deprive if D departs with the property under a condition that they will get it back when they perform a condition which they may not be able to perform (e.g. if they pawn the property)

FRAUD ACT 2006: case may fit more than one of the offences (either way offence; max 10 years & unlimited fine)

• Fraud by making a false representation: fraud by dishonestly making a false representation

• AR: making a false representation

• Representation: express or implied

• can be representation by conduct or words (spoken, written, posted online etc)

• representation as to fact, law or state of mind (including concerning state of mind of another person)

• e.g. by using card you represent that you have authority to use the card

• e.g. entering restaurant and eating food - implied representation that you have money and intend to pay

• representation can be made to a machine e.g. cashpoint

• e.g. even if there is false representation by email that was sent, it doesn’t matter if the recipient never reads it

• False: untrue or misleading

• if defendant believes its untrue and it’s actually true = no AR

• Consequences are irrelevant i.e. does not matter if anyone was actually misled by the false representation (offence begins as soon as false representation made)

• MR:

• Dishonesty

• left to court’s common sense to determine based on evidence

• Ivey Test may be...