The Blip Blop Blog (Team Entity)

The fact that the defendant intended to return the property or the monies that he had taken is not a defense. The fact that it was wrongfully taken in the first-place contrary to section 1 (1) of the Theft Act 1968 was sufficient to convict the defendant. In R v Velumyl (1989) the appellant was a company director who took money out of the company safe. He was convicted for theft and he appealed on the grounds that he intended to return the money. The conviction was upheld. It was sufficient that the appellant wrongfully took the money out of the company safe. The fact that he intended to return the money could not be used as a defense to stay a conviction for theft. Copyright © 2019 by Dyarne Jessica Ward

The decision in A-G Ref (No 1 of 1983) (1985) was reinforced in R v Shadrokh-Cigari (1988) in that withdrawing money that had been mistakenly deposited in a bank account is regarded as appropriation falling within the scope and ambit of section 1(1) of the Theft Act 1968. In R v Shadrokh-Cigari (1988) the bank mistakenly deposited £268,000 into a child’s account when the actual amount of the deposit should have been £268 and the guardian withdrew the money using bank drafts signed by the child. The guardian was charged with theft. It was decided that the actions of the guardian were in breach of section 5 (2) of the Theft Act 1968 with regards to property subject to a trust and section 5 (4) of the Theft Act 1968 with regards to receiving property by mistake and that the defendant had an obligation to return the property to its rightful owner. Copyright © 2019 by Dyarne Jessica Ward

Appropriation of abandoned items may not constitute theft even if the act of appropriation could be considered unreasonable. In R v Small (1987), the defendant was charged with the theft of a car that had been left parked with the keys in it. The defendant argued that he thought the car had been left abandoned and the court accepted his argument. The Court of Appeal ruled that the defendant could not be guilt of theft if at the time of the appropriation he honestly believed that the car had been abandoned and under the circumstances the owner could not have been deprived of it. Copyright © 2019 by Dyarne Jessica Ward

Paying less for an item than what it is worth or than what it retails at could also constitute theft. In R v Morris, Anderton and Burnside (1983) the defendants were arrested for switching the price tags on items in a supermarket and paying a lower price. The defendants were tried, convicted and appealed. The House of Lords upheld the convictions. It was decided that dishonest appropriation of property under s.1(1) of the Theft Act (1968) includes paying a lower price for an item especially if it was induced by fraud. The appropriation took place as soon as the labels were switched and there was an attempt to usurp the rights of the owner. Copyright © 2019 by Dyarne Jessica Ward

With regards to monies received by mistake see Moynes v Cooper (1956), the defendant is under an obligation to return the money as soon as the defendant realises that he or she was overpaid. In A-G Ref (No 1 of 1983) (1985), the defendant a policewoman was overpaid (£74), and she realized the mistake when she checked her bank account. Though she did not take the money, she did not make any attempts to return it either. The trial judge stopped the case from being heard and directed the jury to acquit and the attorney general referred the matter on a point of law. It was decided that there was a legal obligation to return the money as soon as the defendant realized that there was a mistake and a failure to do so could lead to a conviction for theft. Copyright © 2019 by Dyarne Jessica Ward

As per section 5 (3) of the Theft Act (1968) when a person receives funds for a specific purpose from another, he or she is under an obligation to deal with it as it was intended. In Davidge v Bennett (1984), the defendant received money from her three flat mates to pay the gas bill but instead of paying the gas bill she spent the money on Christmas gifts. She was charged and convicted. It was held that the defendant was under an obligation to spend the money in the way it was intended or for the purpose it was intended and to do otherwise would amount to theft. Copyright © 2019 by Dyarne Jessica Ward

The test to determine dishonesty which is a state of mind is both objective and subjective. In R v Ghosh (1982) the defendant was a locum consultant who’d claimed to have done an operation to receive payments from the National Health Service (NHS). He was charged for falsely obtaining monies under s20(2) of the Theft Act (1968) which was subsequently repealed by the provisions of the Fraud Act (2006) and s15(1) of the Theft Act (1968) which was also subsequently repealed by the Fraud Act (2006). He was tried and convicted and while the provisions mentioned above have been repealed and have been supplanted by provisions of the Fraud Act (2006) it is still worth knowing the test that was applied. It was decided that the test for dishonesty was both objective and subjective. The jury must first decide if the defendant was dishonest according to the standards of the reasonable man (objective). If the defendant was adjudged dishonest then the jury would go on to decide if the de

As per section 4 (1) of the Theft Act 1968 what amounts to intangible property or otherwise depends on the facts. In Oxford v Moss (1979) the defendant was an engineering student who obtained a copy of an examination paper and returned it after reading through it. He was charged by the University for obtaining confidential information. The magistrate dismissed the charges as not falling under section 4 (1) of the Theft Act 1968 and on appeal it was decided that while the taking of the examination paper was morally wrong or unbecoming of a student (civil engineer) who was about to enter a professional body it did not amount to theft. Copyright © 2019 by Dyarne Jessica Ward

Whether the actions of the defendant are dishonest or otherwise is a matter for the jury to decide. In R v Feely (1973) the appellant was a manager in a gaming outlet. He took £30 from the till maintaining that he had always intended to put the money back despite not doing so. The defendant was tried and convicted for theft and the defendant appealed. The conviction was quashed. On appeal it was decided that the trial judge should have put the matter before a jury to determine whether the defendant was dishonest or otherwise. Copyright © 2019 by Dyarne Jessica Ward

The breach of a contractual obligation does not fall within the scope of the Theft Act 1968. In R v Hall (1973) the defendant was a travel agent who took monies from clients to book flights to the United States. The business subsequently collapsed prior to the defendant booking the flight and the monies that were deposited into the agency’s account were lost. The defendant was subsequently charged and convicted of theft and the defendant appealed on the grounds that there was no appropriation of funds belonging to another as per the Theft Act (1968). The conviction was quashed and it was decided that the matter did not fall within the scope of the Theft Act (1968) and while the agent could be liable for a breach of contract, he was not liable for theft. Copyright © 2019 by Dyarne Jessica Ward

Appropriation as per section 3 of the Theft Act 1968 can also occur when there is consent especially if the consent has been obtained fraudulently. In Lawrence v MPC (1972) an Italian tourist got into a cab at Victoria Station and asked the cab driver to take him to his destination. Upon arrival, the tourist gave the driver £1 and the driver said that it was not enough. The tourist then took out his wallet and the driver took an additional £6 from it. The correct fare was 10s and 6d. The driver was charged and convicted of theft and he appealed on the grounds that the tourist had consented to the appropriation. The conviction was upheld and the court decided that an appropriation can take place even if there was consent. Copyright © 2019 by Dyarne Jessica Ward

As per section 5 (4) of the Theft Act 1968 when a person receives property by mistake, he is under a duty or an obligation to return the property to the rightful owner. In the banking industry for example, tellers and clerks do make mistakes albeit rarely and do deposit money into wrong accounts. The owner of the account or the wrongful recipient is under a duty to return those funds. R v Gilks (1972) the appellant placed a bet on a horse which had a similar name or a name very close to the winning horse. He presented the betting slip at the counter and was given his winnings, and the appellant knew the whole time that a mistake had been made. When the gaming outlet realized the mistake they tried to recover the winnings but the appellant refused to return it. He was charged and convicted and appealed on the grounds that he had a moral duty to return the winnings but he did not have a legal duty to do so. The conviction was upheld. The appellant should have returned the win

As per section 5 of the theft act ownership of property can be temporarily vested in another. In R v Turner (No 2) (1971) the defendant took his car to a garage for repairs. The repairs were completed, and the car was left by the roadside and the owner called the garage to let them know that he will pay for the repairs later. He took possession of the car and drove away without paying for the repairs. The defendant was charged with theft and convicted, and the defendant appealed on the grounds that he could not steal what belonged to him and as per section 5 (1) because it was not property that belonged to another. The appeal was dismissed and at the time of the theft the garage had ownership of the property or a vested interest in the property until such time as the debt to the garage was settled or the payment for the repairs were made. Copyright © 2019 by Dyarne Jessica Ward

When the defendant mistakenly receives money for honest work and then later decides to keep it, the defendant’s act of appropriating the funds would not amount to theft. In Moynes v Cooper (1956), the defendant mistakenly received an additional £7 in his pay-packet and after taking the pay-packet home he realized that he’d been given an extra £7 and made up his mind to keep it. It was decided that the defendant’s actions did not amount to theft because he’d honestly taken his wages and was not dishonest or had no intentions of being dishonest at the time he received his pay-packet or his wages. Copyright © 2019 by Dyarne Jessica Ward

In Hibbert v McKiernan (1948) the defendant collected lost golf balls in a golf course and sold them. Representatives of the golf club had caught him on numerous occasions and had warned him but the defendant persisted and was eventually arrested, tried and convicted. He appealed on the grounds that the balls were actually lost and therefore he could legally appropriate them. The conviction was upheld. The golf club had sufficient proprietary rights as owners or managers of the golf course and as a trespasser the defendant could not claim ownership of the golf balls. Copyright © 2019 by Dyarne Jessica Ward

With regards to Section 4 and Section 5 of the Theft Act 1968, property belonging to another not only includes property that is above the land or on the surface but also anything that is found beneath the land or below the surface. In Elwes v Brigg Gas Company (1886) a tenant on a property discovered an ancient boat of some value some 6 feet below the ground and sought to make it his. The owner brought an action in court and it was held that the boat belonged to the owner i.e. the owner of the land had proprietorship of the boat and not the lessee. Copyright © 2019 by Dyarne Jessica Ward

With reference to Section 4 of the Theft Act 1968, corpses are not classified or regarded as property. In R v Sharp (1857) the defendant was charged with breaking into a burial ground and exhuming his mother’s remains which he wanted to take to another burial ground and have buried beside his father. The defendant was charged with trespass. He had misled the guard and obtained a license to enter the burial ground and the defendant was convicted accordingly. The defendant contended that he had done so on filial piety and religious duty. The conviction was upheld. Graves were protected under section 25 of the Burial Act (1857) which reads as follows: - S. 25 Offence of removal of body from burial ground (1) It is an offence for a body or any human remains which have been interred in a place of burial to be removed unless one of the conditions listed in subsection (2) is complied with. (2) The conditions referred to in subsection (1) are— (a) The body or remains is

Section 6 of the Theft Act 1968 reads as follows: - “With the intention of permanently depriving the other of it” (1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. (2) Without prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other’s authority) amounts to treating the prop

Section 5 of the Theft Act 1968 reads as follows: - “Belonging to another” (1) Property shall be 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). (2) 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, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right. (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. (4) Where a person gets property by another’s mistake, and is under an obligation to make restor

Section 4 of the Theft Act 1968 reads as follows: - “Property” (1) “Property” includes money and all other property, real or personal, including things in action and other intangible property. (2) A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that it to say— (a) when he is a trustee or personal representative, or is authorized by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him; or (b) when he is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed; or (c) when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be us