Crime CCII-Theft X

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 © 2018 by Dyarne Jessica Ward

Crime CCI-Theft IX

In Hibbert v McKiernan (1948) the defendant collected lost golf balls in a golf course and sold it. 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, and the golf club had sufficient proprietary rights as owners or managers of the golf course. As a trespasser the defendant could not claim ownership of the golf balls.

Copyright © 2018 by Dyarne Jessica Ward

Crime CC-Theft VIII

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 © 2018 by Dyarne Jessica Ward

Crime CLXXXXIX-Theft VII

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 or are removed in accordance with a faculty granted by the court;

(b) The body or remains is or are removed in accordance with the approval of a proposal under the Care of Cathedrals Measure 2011 (No. 1) by the Cathedrals Fabric Commission for England or a fabric advisory committee;

(c) Unless the body or remains is or are interred in land which is subject to the jurisdiction of the court or its or their removal requires or require the approval of a proposal under the Care of Cathedrals Measure 2011, the body or remains is or are removed under a license from the Secretary of State and in accordance with any conditions attached to the license.

(3) A person who removes a body or remains in contravention of subsections (1) and (2) is liable, on summary conviction, to a fine not exceeding level 1 on the standard scale.

(4) In subsection (2) (a) and (c) “court” means the consistory court of the diocese or, in the diocese of Canterbury, the commissary court of that diocese or any other court or body referred to in section 1 (2) or (3) of the Ecclesiastical Jurisdiction Measure 1963 having jurisdiction to determine the matter.

However corpses are not regarded as property and the defendant could not be charged with the theft of a corpse.

Copyright © 2018 by Dyarne Jessica Ward

Crime CLXXXXIII-Theft VI

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 property as his own to dispose of regardless of the other’s rights.

Copyright © 2018 by Dyarne Jessica Ward

Crime CLXXXXII-Theft V

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 restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.

(5) Property of a corporation sole shall be regarded as belonging to the corporation notwithstanding a vacancy in the corporation.

Copyright © 2018 by Dyarne Jessica Ward

Crime CLXXXXI-Theft IV

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 used with the land.

  • For purposes of this subsection “land” does not include incorporeal hereditaments; “tenancy” means a tenancy for years or any less period and includes an agreement for such a tenancy, but a person who after the end of a tenancy remains in possession as statutory tenant or otherwise is to be treated as having possession under the tenancy, and “let” shall be construed accordingly.

(3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose.

  • For purposes of this subsection “mushroom” includes any fungus, and “plant” includes any shrub or tree.

(4) Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcass of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.

Copyright © 2018 by Dyarne Jessica Ward

Crime CLXXXX-Theft III

Section 3 of the Theft Act 1968 reads as follows: –

“Appropriates”

(1) 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) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.

Copyright © 2018 by Dyarne Ward

Crime CLXXXIX-Theft II

The five following sections given in section 1 of the Theft Act 1968 are as follows: –

2. “Dishonestly”

(1) A person’s appropriation of property belonging to another is not to be regarded as dishonest—

(a) If he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or

(b) If he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or

(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

(2) A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.

Copyright © 2018 by Dyarne Ward

Crime CLXXXVIII-Theft I

The definition of theft is given in section 1 of the Theft Act 1968. The section reads as follows:-

1. Basic definition of theft.

(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

(2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit.

(3) The five following sections of this Act shall have effect as regards the interpretation and operation of this section (and, except as otherwise provided by this Act, shall apply only for purposes of this section).

Copyright © 2018 by Dyarne Ward