How do I……Answer B part

Questions

Yuri and Andrew are flat sharing students. Whilst shopping, Yuri takes some sunglasses from a display and slips them in to his pocket. He sees a shirt priced £50, swaps the price tag for one marked £30 and pays the lower price. Andrew gives Yuri £50 for the gas bill. Yuri uses it to buy lottery tickets but wins nothing. Yuri buys a DVD and pays for it with a £20 note. Yuri realises this once he is outside the shop but keeps the moneyAndrew takes Yuri’s season ticket and returns it 3 months later when there is only one match left. Andrew takes an exam paper from his professor and photocopies it before returning it.Discuss the criminal liability for theft of Yuri and Andrew.

AO1

Explain the actus reus of theft

Define and explain theft – charged under S.1 Theft Act 1968, S.2 – 6 define the elements of the offence and that all must be proved to get a conviction.

Actus Reus

This can be seen in the following;S.3 – appropriation, any assumption of any of the rights of the owner and this can occur with or without consent.McPherson - Placing of the bottles in a shopping bag with an intent to steal, amounted to appropriation within the Theft Act s. 1(1).Lawrence - It was not necessary to establish that the appropriation had taken place without the owner’s consent. Belief or absence of belief that the owner consented to the appropriation may be relevant to the issue of dishonesty but not to the issue of appropriation.

Morris - The true meaning of the word ‘appropriation’ is an adverse usurpation or interference with some (although not all) of the rights of the owner.  The act of switching labels either alone or in conjunction with some other act constituted an appropriation. The taking of articles from the shelf in a self-service supermarket was an act for which the shopper had implied authority. The removal did not, in itself, constitute an appropriation because this was not an act that was adverse to the owner’s rights. The act of switching the labels was not, in itself, an appropriation, but if the defendant went on to, for example attempt to pay the lower price at the checkout it becomes an appropriation. At that point, it has been combined with some other act, which went beyond the implied authority of the owner.

Gomez - There was an appropriation even though he acted with the authority of the shop manager.  Lawrence was the appropriate authority on the issue of appropriation. The consent of the owner was irrelevant in deciding whether an appropriation had taken place.

S.4-Property, this can be tangible or intangible but information is not property for the purposes of theftOxford v Moss – Confidential information held on a piece of paper could not amount to intangible property according to the true interpretation of s 4 of the Theft Act 1968.

Kelly - There was an exception to the traditional common law rule that there was no property in a corpse. Parts of corpses were capable of being property if they had acquired different attributes by virtue of the application of skill, such as dissection and preservation techniques, for exhibition and teaching purposes.

The college had sufficient possession even though they should not have kept them beyond two years before burial stipulated in the Anatomy Act 1832.

S5 – Belonging to another, This can take the form of ownership, possession or control

Turner- D had stolen the car because at the time of the appropriation it was under the possession and control of the garage. The question rightly asked of the jury was: ‘Did the garage in fact have possession or control of the car at the time of the appropriation?’ 

S.5(3) – property given for a specific purpose must be used in a particular wayHall -D, a travel agent, received money from clients for air trips to America. None of the flights materialised and none of the money was refunded.Held: Although D had a contractual obligation to the clients and could be sued in respect of any breach, he could not be guilty of theft because the clients had not made any special arrangement with D putting him 'under an obligation to retain and deal with... in a particular way' within s 5 (3Not guilty

S.5(4) – property received by mistake can be stolen if there is a legal obligation to return itAG Ref no 1 of 1983 - D, a policewoman, received an overpayment of her salary, which the MPD paid by direct transfer to her bank account.

Held: D received property by another’s mistake. By s 5(4) Theft Act 1968 she was not under an obligation to make restoration of the property because the property here was a chose in action, which was not capable of being restored. She was obliged to restore the value of the chose in action, providing the transfer of funds was made under a fundamental mistake.

Not guilty but would be now

Mens rea of theft

Explain the Mens rea of theftS.2 – Dishonesty, there is NO statutory definition in the Theft Act, there is only definitions as to what is a partial and negative definition of what is NOT dishonest (ie exceptions to being dishonest)

S.2(1)(a) – D is not dishonest if they honestly believe they have a legal right to the property;S.2 (1)(b) – D is not dishonest if they honestly believe that the owner would consentHolden – Tyres, The reasonableness of a defendant's belief was irrelevant to the question of dishonesty. The question was whether H had, or might have had, the necessary honest belief, reasonably or not.

S.2(1)(C) – D is not dishonest if they honestly believe that the owner cannot be found, having taken reasonable steps to do so

Small - D saw a car for two weeks parked at an angle on a corner of a road, with the doors unlocked and keys in the ignition. One tyre was flat, as was the battery. The petrol tank was empty and the windscreen wipers did not work. D thought it was abandoned property and so he could take it. Held: The jury should have been directed to consider: • whether according to the standards of the ordinary reasonable and

honest person what D did was dishonest; • and if so, whether D must have realised what he was doing was

dishonest by the standards of ordinary reasonable and honest people.

A belief unreasonably held could be an honest belief, Not guilty

The Jury

• If non of the statutory exceptions apply the jury must apply a common sense view

• If guidance is still needed then the jury must decide if D was dishonest by the standards of the reasonable man and, if so, the D knew they were dishonest by that standard, as seen in Ghosh

GhoshA subjective and objective test;

D, a surgeon acting as a locum at a hospital represented that he was owed for operations that he had carried out. Someone else had carried out the operations under the NHS.

Held: In determining whether D was acting dishonestly, the jury had first to consider whether according to the standards of the ordinary reasonable person what was done was dishonest (the objective test).

If it was, the jury must then consider whether D himself must have realised that what he was doing was dishonest by the standards of the ordinary reasonable person (the subjective test).

Guilty

Comment: This is referred to as the two-fold test. The main criticism of which is that it does not eradicate the potential for inconsistency between juries, who are required to apply the "current standards of ordinary decent people".

S.6 – intention to permanently deprive, this means an intention to take forever or to take for a period which is equivalent to an outright taking, even though the D always intended to return the propertyLloyd - D a projectionist at a cinema secretly borrowed films and lent them to friends who made illegal copies of them. The films were returned after a few hours undamaged to the cinema in time for the performance.

Held: Borrowing property could only amount to "intending to permanently deprive the owner of it" if the intention of the borrower was to return the property in such a changed state that it had lost all its practical value. The cinema could still show the films to the public. Not guilty

AO2In the case of Yuri slipping the sunglasses in to his

pocket

• Clear evidence of an appropriation and the sunglasses are property belonging to the shop

• By hiding the sunglasses Yuri does not fit any of the statutory exceptions in S.2 and a jury is likely to see his behaviour as dishonest

• Yuri appears to have the intention to permanently deprive and so it seems likely that this will constitute theft

In the case of Yuri label swapping to pay a lower price

• Evidence of an appropriation when the labels are swapped

• This is done dishonestly so the theft is complete at that time

• The owner of the shop would not consent to Yuri behaving in this way

• The theft is extra clear when he actually pays the £30 rather than £50

In the case of spending the £50 on the lottery

• The £50 used had been given for a specific purpose

• According to S.5(3), this is theft if accompanied by the other elements

• These elements would appear to be present, although Yuri could argue that he was not dishonest as Andrew would not mind how the £50 was spent as long as the bill was paid, but technically Yuri’s actions will constitute theft

In the case of the excess change

• According to S.5(4) money acquired by an innocent mistake if there is a legal obligation to return the money which is not fulfilled

• Yuri does not realise that he has too much change until he is outside the shop

• At that point it is both practical and possible for him to return it

• Therefore Yuri becomes dishonest and his actions constitute theft

In the case of the season ticket

• According to S.6 an intention to permanently deprive means an intention to take property forever or an intention to take it and use it for such a period of time which is equivalent to an outright taking, even if D returns the property and always intended to return it, but make the argument that an intention to permanently deprive is when all of the goodness and virtue has been used up is also sufficient

• Andrews taking of the ticket, if his intention was to return it when nearly all the value has been taken means his actions are likely to constitute theft

In the case of the exam paper

• According to S.4, information cannot be stolen as it is not property for the purposes of theft

• However, the paper used to make the photocopy can be stolen and electricity is abstracted to make the photocopy

• Even though the original exam paper is not taken the sheet of paper on which the exam is written and the paper onto which it is copied can be stolen and so Andrew’s actions constitute theft