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The offence of theft is defined in The Theft Act 1968 Section 1. It is extremely useful to examine the definition as it is possible to identify from it the various elements of the offence that need to be proved in order to secure a conviction.
It is feasible to look at both the actus reus and mens rea of theft in turn – they are defined in Sections 2-6 of the Theft Act 1968.
Let us remind ourselves about what Section 1 says about theft. Theft is stated as follows 'A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving that other of it …....'
We should also remember that theft is not a new offence that came into being for the first time under the Theft Act 1968. The Act was passed as a result of the work of the Criminal Law Revision Committee on this area of the law. Amongst other things the old law was based on the concept of larceny and needed to be brought up to date. The 1968 Act was an attempt to bring together the law of theft in one modern statute. It could be argued that it has been a success, making the law more accessible both to criminal practitioners and the judiciary as well as the public and jurors.
The new law was deliberately drafted in such a way as to be much wider and broader in its application than just dealing with situations covering stealing by taking. This seems reasonable bearing in mind the Criminal Law Revision Committee will have based their work on the court rulings about what amounted to theft and how property ought to be defined under the old law. These rulings and decisions will have been formed over a period of time and the principles of judicial precedent will have come into play. We shall see how this may have influenced the court's approach to the issue of property under the Theft Act 1968.
Property is defined in Section 4. We are helped by being told that property includes money and all other real and personal property including things in action and other intangible property. Rather bizarrely this may include the removal of a urine sample previously provided for analysis by the police (Welsh (1974)).
Money refers to coins and banknotes. Real property refers to land but S4(2) sets out the limitations to when land can be stolen. These limitations mean that only a trustee or personal representative or authorised person disposing of the land in 'breach of the confidence reposed in him' can be accused of theft. Fixtures can be severed from the land and stolen. Personal property refers to any physical item not attached to the land, this will include cars, boats, furniture and jewellery for example.
Property which comes into your possession by mistake, this could be an over payment by a bank or employer, should be returned to the employer or bank. Failure to return the money once made aware of the mistake and if there is an intention to keep the money permanently would mean the person is guilty of theft.
Apparently body parts preserved for scientific examination can also amount to 'property' capable of being stolen as in R V Kelly and Lindsay (1998)- British and Irish Legal Information Institute. Kelly was an artist, he had been given permission to draw anatomical specimens. The specimens were held at the premises of the Royal College of Surgeons. They consisted of various body parts which were used for training surgeons. Whilst visiting the RCS Kelly met Lindsay, a junior technician working for the College. Kelly asked Lindsay to remove some of these body parts including three human heads, six arms, ten legs, part of a brain and three torsos. Casts of the body parts were made by Kelly and they were exhibited in an art gallery.
Kelly and Lindsay were convicted of theft and appealed, arguing that the body parts did not constitute property lawfully in the possession of RCS. The appeal was dismissed and the Convictions were upheld. Parts of a corpse are capable of being property within section 4 of the Theft Act, if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes.
On the subject of intangible property, many law students find the case of Oxford v Moss (1979) of interest in that it concerned a student who acquired the proof or draft of an intended examination paper as part of a plan to cheat. The student's plan did not include an intention to steal the paper as such, only an intention, presumably, to copy it in some way. The court held that information or knowledge of this kind did not amount to property for the purposes of the Theft Act 1968. Interestingly the paper on which the exam was written can be stolen.
Examples of intangible property include such things as patents, copyrights (something which is causing widespread concern and debate in the context of illegal music downloads), shares and interests in insurances and a credit balance in a bank account.
At times there is a similarity or connection between the civil law and criminal law but often the criminal law deals with a situation in a particular way because the consequences for the accused are more serious than in a situation involving a civil claim – in the latter there is no risk of the punishment including a custodial sentence.
The civil law tries to recognise and protect the private and business interests of contracting parties, and this includes proprietary interests in property including intangible property. It is not surprising that the criminal law also recognises similar proprietary interests. The difference may be that whilst the civil law might be capable of scrutinising proprietary property interests, including determining ownership of intangible interests, the criminal law approaches the problem in a more pragmatic way, in the context of theft, by asking the question was the property appropriated the property of another? The criminal law does not have the means for examining issues of ownership but to a large extent relies upon proprietary rights and interests recognised under the civil law.
The civil law recognises that creators of intellectual property such as writers and musicians are entitled to be remunerated for their efforts and have their proprietary interests protected. It would be strange if the criminal law operated in some other way and did not acknowledge such proprietary rights and interests. This is just as well because such film and music interests can have substantial financial value as can technical innovation.
We observed at the beginning that there is a relationship between the elements which go to make up what amounts to theft. Property is no exception and we find that, having defined property, that property must belong to someone other than the perpetrator.
Like other elements the words 'belonging to another' (Section 5) are broadly interpreted and the words are capable of including persons who have possession or control as well as people having a proprietary right or interest.
This point can be illustrated by the case of R v Turner (No 2) (1971) in which the defendant left his car with a garage for repairs and returned after the work had been done and took the car away without reporting this to the garage or paying the repair bill. The defendant's defence was that he was merely recovering something that was already his, namely his car. He claimed that he owned the car – so he could not be guilty of theft. How can you be guilty of stealing your own property? The defendant's conviction for theft was upheld on appeal on the basis that it was clear that the garage were exercising possession and control over the car in accordance with the wording of the Act.
The case is distinguishable from R v Meredith (1973) where the court ruled that the police were not exercising control in the case of a vehicle impounded for causing an obstruction. Meredith went to the police station yard and removed the Crook-lock from his car and drove the car away. He was charged with theft of the car (and the lock). The police were found only to have a right to enforce a statutory charge in regard to the car and the jury were directed to acquit. In respect of the lock, which he returned to the police after a couple of days, it was considered that he only had it for a short time before returning it and in the circumstances it did not warrant a conviction.
Examples of what amounts to a 'proprietary interest' include 'treasure trove'. Discoveries of treasure must be reported to the local coroner and to the landowner. The coroner must make a decision regarding the fate of the treasure. The finder is entitled to a finder’s fee if the find is ruled to be treasure but ownership passes to the Crown. In R v Hancock (1990) Hancock was charged with theft from the Crown of 16 ancient coins found in an area which appeared to have been the site of a Romano-Celtic temple.
Another example of a 'proprietary interest' is trust property. Sec 5 (2) of the Theft Act states 'Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust' This means that a trustee who has possession and control of trust property can be charged with theft if dishonestly appropriates this property.
Section 5 also deals with property which has been given for a particular purpose, and treats such property as belonging to another if that party deals with it in an unauthorised way. In the case of R v Hall (1972) the point arose where a travel agent took deposits for air flights to America and placed the sums in general trading accounts. The firm went broke and on appeal the court reluctantly found that the firm was not necessarily under an obligation to deal with the customers' money in a particular way. Hall was free to use the money as he pleased, and was therefore not guilty of theft when he could not provide the tickets required.
On the other hand in Davidge v Bennett (1984) a defendant who was given money by fellow flat mates. The money was to be used specifically towards the payment of a communal gas bill, was convicted of theft when she spent the money on Christmas presents.
Finally Section 2 (1) (c) provides that a person will not be dishonest if they honestly believe the owner cannot be found, having taken reasonable steps to do so – if an honest belief is not held then this is theft and often referred to as stealing by finding. The well known case of R v Small (1988) is a good example. In this case the defendant claimed that he found a car that had been abandoned by its owner with the keys in the ignition. The car had a flat tyre and a flat battery and there was no petrol in it. Small assumed it had been abandoned and thought he could take it. His conviction for theft was quashed as he believed the owner could not be found. There is no requirement that the defendant's belief is reasonable so it was immaterial that a reasonable person would have known he could have identified the owner by contacting the DVLA.
This approach seems to be consistent with the line taken over the way ownership is dealt with through the words 'belonging to another.' In effect the law acknowledges on rare occasions it is only right to treat property as being abandoned. This will not happen often so it is possible to argue that the law works most of the time and it is exceptional for this type of issue to arise. It also needs to be recognised that the belief, that the owner cannot be found, only needs to be honestly held – it does not need to be reasonably held. This is consistent with other areas of the criminal law. One may wonder whether the defence leans too far in favour of the defendant, but if the defendant's account is implausible they are free to reject it and find the defendant guilty.
Out of interest someone picking mushrooms, fruit or flowers for their own use is not stealing. It has also been held that wild animals can not be stolen unless they have been tamed or kept in somebody's possession.
(Word count 2116)
This essay looks at the meaning of theft as defined in Section 1 of the Theft Act 1968 and the reasoning behind the Act. It looks in more detail at the definition of property according to the Act and uses notable cases to illustrate these. Cases referred to include:
R v Kelly and Lindsay (1998);
Oxford v Moss (1978);
R v Turner (No 2) (1971);
R v Meredith (1973);
R v Hall (1972);
Davidge v Bennett (1984);
R v Small (1988);
The essay lends itself to further discussion and elaboration using the links provided.
(Word count 2116)
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