1.0INTRODUCTION
Theft is characterized in S1 of the Theft Act 1968 which expresses says that‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the expectation of forever depriving the other of it.’The Act at that point goes ahead in the following five segments to give some assistance with the importance of the words or expressions in the definition.This is done in the request that the words or expressions show up in the definition, making it simple to recall the area numbers They are:
S2 – ‘dishonestly’;
S3 – ‘appropriates’;
S4 – ‘property’;
S5 – ‘belonging to another’;
S6 – ‘with the intention of permanently depriving the other of it’.
1.1The Elements Of Theft
The Actus Reus of theft is comprised of the three components in expression 'appropriates property belonging to another'.So to establish the Actus Reus it must be shown that there was appropriation by the defendant of something which is property inside the meaning of the Act and which, at the season of the appropriation,belonging to another.
Two components which needed to be established under the Mens Rea of theft. These are that appropriation of the property must be done‘dishonestly’,and there must be the expectation or intention of forever possessing its other individual.
2.0APPROPRIATION
In the most usual case of theft include a physical taking,for instance a pickpocket taking a wallet from somebody's pocket. But appropriation is a lot more extensive than this.
Section 3(1)of the Theft Act 1968 states that:
Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner
2.1Assumption of the rights of an owner
The initial segment to be considered is the explanation that ‘any presumption by a man of the authority of a proprietor adds up to appropriation'.The privileges of the proprietor incorporate offering the property or obliterating it and also such things as possessing it, devouring it, utilizing it, lending it or hiring it out
In Pitham v Hehl (1977) D had sold furniture which belongs to someone. This was held to be an appropriation. The offer to sell was a supposition is privileges of a proprietor and the appropriation occurred by then.It didn't make a difference regardless of whether the furniture was expelled from the house or not. Even whether the proprietor was never denied of the property,the defendant had still appropriated it by assuming the rights of the proprietor to offer the furniture available to be purchased.
One question that arise in court whether the presumption must be of the all of the rights or whether it can simply be of any of the rights. This was considered in R v Morris (1984) D had exchanged the value tags of two things on the rack in a general store. He had then put one of the things, which presently had a lower cost on it, into a container given by the store to customers and taken the thing to the counter, yet had not passed through when he was captured. He was indicted for theft. The House of Lords upheld his conviction on the premise that D had appropriated the things when he exchanged the value tags.
Lord Roskill in the House of Lords stated that: “adverse usurpation of the rights of an owner” expressing appropriation must occur without the consent of the proprietor. He also said that in this case, consent issue were merely an obiter. In the explanation in Morris, D has appropriated the product when he switches the value tags regardless of whether he experiences some kind of hysteria., venture and leaves the products with the exchanged tags securely on the rack or even if D re-switched the tags and left the article precisely as he found earlier, that couldn't fix the appropriation that had be done. it is essential to remember that on these certainties, to be blameworthy of theft d must be appeared to have Mens Rea.
2.2Appropriation with Consent
In appropriation with consent there is confusion whether the defendant will appropriate a property when it has been given to them by the proprietor. It’s not addressed in the Theft Act that the appropriation must be without the consent of the proprietor. In this way, what is the position where the proprietor has enabled the defendant to take something in light of the fact that the proprietor believed that the defendant was paying for it with an honest to goodness check? Or where the item was hired as in the case of Atakpu and Abrahams, however obscure to the proprietor the defendant intended to take it forever? This point was explained future in R v Lawrence [1972]
In the case of R v Lawrence, An Italian student, who speaks a less English reached to the Victoria Station and gave address to Lawrence who was a cabbie. The journey should have cost 50p, however Lawrence revealed to him it was costly. The student got out a £1 note and offered it to the driver. Lawrence said it was insufficient thus the student opened his wallet and enabled Lawrence to take another £6. Lawrence set forward that he had not appropriated the cash, as the student had assented to him taking it. Both the Court of Appeal and the House of Lords dismissed this contention and held that there was appropriation in this circumstance. The House of Lord held that the dictum given by Lord Roskill in the case of Morris was wrong, there can be an appropriation even if the defendant act with the consent of the victim as laid in the case of Lawrence. However the judgment in Morris (1983) was obiter, since the exchanging of the value tags was unmistakably an unapproved act. But, the judgment in Morris (1983) caused disarray since it negated Lawrence without the Law Lords saying whether Lawrence (1972) was overruled or merely distinguished.
2.3The decision in Gomez
The point about whether the appropriation must be without the consent of the proprietor was considered again by the House of Lords in Gomez (1993). In the case of Gomez, Gomez was the assistance manager of a shop. He persuade the manager to sell the electrical product worth over £17,000 to an accomplice and to acknowledge instalment by two cheques, telling the manager that they were tantamount to money. The cheques were stolen and had no esteem. Gomez was charged and indicted for theft of the product.
The Court of Appeal suppressed the conviction, relying on the judgment in Morris (1983) that there must be 'adverse interference' for there to be appropriation. They decide that the manager's agree to and authorisation of the exchange implied there was no appropriation at the moment of taking the products. The case was appealed to the House of Lords with the Court of Appeal certifying. The House of Lords decided ‘yes’ an appropriation had taken place. Lord Keith decision referred back to the case of Lawrence (1972), pointing out the effect of judgment
‘While it is correct to say that appropriation for purposes of section 3(1) includes the latter sort of act it does not necessarily follow that no other act can amount to an appropriation and, in particular, that no act expressly or impliedly authorised by the owner can in any circumstances do so. Indeed Lawrence v Commissioner of Metropolitan Police is a clear decision to the contrary since it laid down unequivocally that an act may be an appropriation notwithstanding that it is done with the consent of the owner..’
This judgment in Gomez (1993) settled the conflict of the prior cases as the judgment in Lawrence was endorsed while the proclamation of Lord Roskill in Morris (1983) was objected. The cases of Skipp (1975) and Fritschy (1985) were overruled
2.4Appropriation indefeasible title to property
After the decision in Gomez (1993), the case of Hinks (2000) highlights problem like whether situations where a person has given property to another without any deception being made.
Hinks was a 38-year-elderly person who had gotten to know a man who had a low IQ and was extremely naive. He was, however, rationally equipped for understanding the idea of possession and of making a substantial valid gift. Over a time of around eight months Hinks went with the man on various events to his building society where he withdraw cash. The aggregate was about £60,000 and this cash was deposited in Hinks's account. The man additionally gave Hinks a TV set. She was indicted for theft of the cash and the TV set. The judge coordinated the jury to think about whether the man was so rationally unfit that the defendant herself understood that customary and average individuals would view it as exploitative to acknowledge the gift from him.
On appeal it was argued that, if the gift was valid, the acceptance of it could not be theft. The Court of Appeal dismissed later In the House of Lords the appeal was dismissed as well. On the facts, the first case is Mazo it was common of a valid gift inter vivos could not be the subject of a conviction for theft. Therefore d’s conviction was quashed. In Hinks case the Court of Appeal confronted the problem directly and held that it was immaterial whether there was a valid gift Mazo was based on mistaken premise the only question raised in Hinks id whether the gift has been received in dishonest and the jury had found that she was. The House of Lords Lord Hutton, in spite of the fact that the majority point of law, dissented on regardless of whether the conduct showed dishonesty.
2.5Appropriation of credit balances
The courts is deciding when appropriation takes place where the object of the theft is a credit balance in a bank or building society account. In such cases like Tomsett (1985) the Court of Appeal accepted, without hearing any argument on the point,that the theft could only occur where the property was. This meant that D was not guilty of theft under English law, as the theft was either in New York or Geneva and the money had never been in an account in England. This creates unsatisfactory decision, and in fact it was not followed by the Divisional Court in Governor of Pentonville Prison, ex parte Osman (1989). If Tomsett (1985) had been followed, then the theft would have been deemed to have occurred in New York. However, the Divisional Court held that the sending of the telex was itself the appropriation, and so the theft took place in Hong Kong. judges Lloyd LJ and French J decided the case of Tomsett (1985)were refused to follow their own decision. In the judgment in Osman (1989) the court had mentioned presenting a cheque as one of the rights of an owner and it should be noted that in Osman (1989) the court had also stated that appropriation took place when the defendant dishonestly issued a cheque.
2.6Protection of innocent purchasers
is segment was incorporated by the Criminal Law Revision Committee in light of the fact that without it a buyer who purchased product for the market esteem not realizing they were stolen, but rather who later found they were stolen, would be blameworthy of theft in the event that he, chose to keep the products. The CLRC believed that, while there may be a case for making such direct criminal, 'all in all we can't help thinking that, whatever see is taken of the purchaser's moral obligation, the law would be excessively strict on the off chance that if it made him blameworthy of theft'. Under s 3(2), not exclusively is the first obtaining not theft, but rather likewise any later managing in the property by the honest buyer can't be theft. This was outlined in Wheeler (1990)
3.0PROPERTY
For there to be theft, the defendant more likely to have appropriated 'property'. Section 4 gives an exceptionally far reaching meaning of property which implies that nearly anything can be stolen. The definition is in s 4(1) of the Theft Act 1968: “Property” includes money and all other property real or personal, including things in action and other intangible property.’This section lists five types of items which are included in the definition of ‘property’.
These are:
money
real property
personal property
things in action
other intangible property
4.0BELONGING TO ANOTHER
For the reasons for theft, the property must have a place with another. Be that as it may, S5 (1) of The Theft Act 1968 gives a wide meaning of what is implied by 'having a place with another'.
'5(1) Property will be viewed as having a place with any individual having ownership or control of it, or having in it any proprietary right or interest (not being an equitable interest arising
From this it very well may be seen that ownership or control of the property or any restrictive enthusiasm for it is adequate. One reason for making it wide is so that the prosecution does not have to prove who the legal proprietor is.
5.0DISHONESTY
There are two element which need to be satisfied for the Mens Rea of theft. These are:
dishonesty
intention permanently to deprive
The 1968 Theft Act does not define ‘dishonesty’, though it does give three situations in which D’s behaviour is not considered dishonest. These are in s 2 of the 1968 Act.
'2(1) man's appropriation of property having a place with another isn't to be viewed as untrustworthy –
in the event that he appropriates the property in the conviction that he has in law the privilege to deny the other of it,for himself or of a third individual;or
in the event that he appropriates the property in the conviction that he would have the other's consent in the event that the other knew about the appropriation and its circumstances;or
With the exception of where the property came to him as trustee or individual agent if he appropriates the property in the conviction that the individual to whom the property belongs can't be found by making sensible steps.
5.2The Ghosh test
It doesn't make a general standard or any definition about dishonesty.In its Eighth Report, the Criminal Law Revision Committee expressed that it had utilized the word'dishonesty’in inclination to the word'falsely'
It gives the idea that,since they took the view that untruthfulness was something laymen could perceive,there was no requirement for a definition. Of course,the early cases on the theft Act took the view that whether the defendant's perspective was exploitative was a matter for the jury to choose. In Brutus v Cozens[1972]the House of Another feedback is that it is excessively objective.It doesn't consider whether the defendant trusted he was being straightforward. This was at last settled in Ghosh 1982,which is currently the driving case on the issue.In the case of R v Ghosh,.The trial judge directed the jury that they must apply their own standards to decide if what he did was dishonest.He was convicted and appealed against the conviction.So this implies the jury need to begin with an objective test. Was what was done unscrupulous by the common models of sensible and fair individuals? On the off chance that it was not the defendant isn't liable.
R v Ghosh has since a long time ago got a differing and blended gathering and the Courts alike.It is therefore obvious that its obiter dicta treatment in the 2017 instance of Ivey v Genting Casinos has inspired much attention,with some announcing that the R v Ghosh test has viably been overruled. Be that as it may,as a general rule,the effect of Ivey v Genting Casinos is fundamentally more nuanced. By thinking about the substance of the choice, the way of its passing and the progressions it makes,it will be presented that Ivey v Genting Casinos speaks to a late and attractive change to the criminal law.
5.3Problems with the Ghosh test
Main problems with the Ghosh test,that is that different people may have different standards of dishonesty.The main criticism is that it leaves too much to the jury (or lay magistrates as in Gohill), so that there is a risk on inconsistent decisions with different juries coming to different decisions in similar situations.It has been argued that it would be better for the judge to rule on whether there was dishonesty as a point of law rather than leave it as a matter of fact for the jury.Another criticism of the test is that it places too much emphasis on objective views of what is dishonest rather than the defendant’s intentions.
Professor Griew in an article he wrote in 1985 ‘Dishonesty: the objections to Feely and Ghosh’(1985).He put forward several problems with the definition of theft following the decision in Ghosh.As well as the points above he also pointed out:
The Ghosh test leads to longer and more difficult trials.
The idea of standards of ordinary reasonable and honest people is a fiction.
The Ghosh test is unsuitable in specialised cases.
It allows for a‘Robin Hood’defence.
6.0With intention to permanently deprive
The last component which must be demonstrated for theft is that the defendant had the aim to forever deny the other of the property.By and large there is no uncertainty that the defendant had such an aim. For instance,where a thing is taken and sold to someone else,or where money is taken and spent by the defendant.This last model is genuine notwithstanding when D expects to supplant the cash later,as was appeared in Velumyl [1989] where D,a company manager,took £1,050 from the workplace safe.He said that he was owed cash by a companion and he would supplant the cash when that companion reimbursed him.The Court of Appeal upheld his conviction for theft as he had the goal of for all time denying the organization of the banknotes which he had taken from the protected,regardless of whether he proposed to supplant them with different banknotes to a similar esteem later.Another circumstance here there is a reasonable expectation to for all time deny is the place the respondent decimates property having a place with another.This can be charged as theft,in spite of the fact that it is likewise criminal harm. There are,be that as it may,circumstances where it isn't so clear and to help in these S6 of the Theft Act 1968 clarifies and extends the importance of the phase
‘6(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 to permanently deprive 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.’Example of case laid under this is DPP v Lavender(1994).
7.0 References
Google Docs. (2018). Ivey v Genting Casino.pdf. [online] Available at: https://drive.google.com/file/d/1fJa2PHcWvZeNsKdi8o_rler-PQHL_LrP/view[Accessed 25 Nov. 2018].
Google Docs. (2018). R v Hinks.pdf. [online] Available at: https://drive.google.com/file/d/1BuIK_IH-gPKxsAU1Dp_6T2rzSucqDcGk/view [Accessed 25 Nov. 2018].
Google Docs. (2018). Ivey v Genting Casino.pdf. [online] Available at: https://drive.google.com/file/d/1fJa2PHcWvZeNsKdi8o_rler-PQHL_LrP/view [Accessed 25 Nov. 2018].
Google Docs. (2018). DIshonesty Article.pdf. [online] Available at: https://drive.google.com/file/d/1kCWNZsoJCJuu0lhaDlNEmm1bbbU8abZ-/view [Accessed 25 Nov. 2018].
Supremecourt.uk. (2018). [online] Available at: https://www.supremecourt.uk/cases/docs/uksc-2016-0213-judgment.pdf [Accessed 25 Nov. 2018].
Ormerod, D., Laird, K., Smith, J. and Hogan, B. (2014). Smith and Hogan's criminal law.