Crime CCVXIX-Theft XXII

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 © 2018 by Dyarne Jessica Ward

Crime CCVXIII-Theft XXI

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 © 2018 by Dyarne Jessica Ward

Crime CCVXII-Theft XX

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 © 2018 by Dyarne Jessica Ward

Crime CCVXI-Theft XIX

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 © 2018 by Dyarne Jessica Ward

Crime CCVX-Theft XVIII

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 © 2018 by Dyarne Jessica Ward

Crime CCVIX-Theft XVII

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 defendant realized he was being dishonest (subjective).

Copyright © 2018 by Dyarne Jessica Ward

Crime CCVIII-Theft XVI

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 © 2018 by Dyarne Jessica Ward

Crime CCVII-Theft XV

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 © 2018 by Dyarne Jessica Ward

Crime CCVI-Theft XIV

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 no liable for theft.

Copyright © 2018 by Dyarne Jessica Ward

Crime CCV-Theft XIII

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 © 2018 by Dyarne Jessica Ward