Theft of property and fraud by misrepresentation


According to the facts of the case study, it is apparent that the legal issues concerning Kezia's case are in relation to the Theft Act and Fraud, Kazia has been charged with Theft of the death certificate and with Fraud by misrepresentation. What I have to discover are the reasons she has been convicted of the above charges. In order to determine Kezia's position and the legal consequences which she has been charged with we first need to identify and explain the relevant law. First of all I shall determine actus reus of theft, which consist of “property”, “appropriation” and “belonging to another”. Then we shall look at mens rea, intention of permanent deprivation and dishonesty which would be applicable to her charges.

Theft is an offence under s1 of the Theft Act 1968, which says, “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.”

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 right to it by keeping or dealing with it as owner

Kezia's actions formed appropriation at the time when she picked up the certificate of a colleague, at first instance she wants to put it somewhere safe but then decide to put it in her brief case and believes she'll be able to put it back before her colleague returns. There is the mental element of using the property of another to use it, enjoy and abuse it.

The certificate indisputably is a property of her colleagues as accordance to s.4 property includes money and all other property, real or personal, including things in action and other intangible property. S.5 of Theft act gives five situation where property belongs to another but the germane to the Kezia case which would be uncovered by the courts is S5 (1) which says, property shall be regarded as belonging to any person having possession or control of it, or having any proprietary rights. This section illuminates that it is not required that property should be owned by the person whom it is appropriated, mere possession or control is enough. An example would be that A loans a book to B and B showing it to C and D steals it. In this situation D has stolen the book from C who was in control of it, and B who had the possession and A, who had the proprietary interest as to ownership of the book. The courts will determine whether the certificate was owned by the colleague at the time of appropriation as a person cannot steal property that is not owned by another. Property which has at one time been owned may become ownerless by abandonment, but abandonment is not something to be lightly inferred; property is abandoned only when the owner is indifferent to any future appropriation of the property by others. So this mean that property would not be considered abandoned because the owner has lost it and has given up the search for it. The more valuable the property, the less likely it is that the owner has abandoned the hope of ever seeing it again

So in relation to Kezia case, it is most likely that death certificate comes under a valuable property hence her colleagues had the ownership in it. And when Kezia takes the certificate this verify she has possession or either control of it. This further authenticates that, when she has the intention to use the certificate as a proof of evidence to attain extension for her assignment.

Any assumption by a person of the rights of an owner would amount to an appropriation in accordance to s3(1) of the Theft Act 1968, so in relation to Kezia taking the death certificate from her desk would amount to theft, but one could say she took it innocently at first instance as to take care of it, but S3 (1) also states that...where a person has come to by the property (innocently or not) without stealing it, any later assumption of right to it by keeping or dealing with it as an owner would also amount to appropriation. This means that Kezia taking the certificate does amount to theft as she had the intention of using the certificate in bid to get an extension for her assignment under mitigating circumstances. She clarifies her intention further, when she fills in the mitigating form where she writes that she'll send in evidence of documentation to support her mitigation request.

In Gomez (1991) and Hinks (2001) further confirmed that the word appropriation was taken to be neutral word with the meaning any assumption by a person of the rights of an owner given in S3 (1) of Theft Act 1968 would be considered theft. In the case of Morris (1983) it was stated that, there had to be an element of adverse interference with or usurpation of any of the rights of the owner

At this instant we have comprehended that the certificate was property of her colleague and Kezia has appropriated it, the next element must be proved is Mens rea of Theft, dishonesty and intention to permanently to deprive; which would illustrate Kezia's state of mind.

There has been a partial definition of dishonesty in the 1968 Act as there has been left some discretion to the court. The s2 (1) gives three situations where a defendant is not deemed dishonest:

1- 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(S.2 (1)(a)); or

2- 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; (S.2 (1)(b)) or

3- (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 (S.2 (1)(c))

S2 (2) states that a person appropriation of property belonging to another may be dishonest even though he is willing to pay for the property

As the above examples do not fall within Kezia case then the court would look at common law to decide if Keiza has been dishonest. Lord Lane in R V Gosh (1982) said,

“... A jury first of all decide whether according to the ordinary standards of reasonable and honest person people what was done was dishonest.”

And the following test shall be followed if it's “Yes” to the above statement to find out if dishonesty existed;

“The court should then ask whether the defendant realised that he or she had been dishonest by those standards.”

So this is the approach that the court will preferably use in Kezia's case, was she dishonest in accordance to ordinary standard and if yes did she realised that she has been dishonest by those standards. But in a situation where Kezia believe that she is not dishonest, and has legal right to appropriate her colleagues property, the court had quashed the original conviction and in the case of Holden (1991):

“A person was not dishonest if he believed, reasonably or not that he had a legal right to do what he had done'.

The rationality of the above belief would fall where:

(S.2 (1)(b)) where consent is requires to use the property e.g. Kezia's takes the certificate genuinely thinking that her colleague would have consented her to use it.

(S.2 (1)(c)) where reasonable steps where taken to find the person whom property belongs , who could not be discovered. In R V Small (1988) it was held that the defendant cannot be guilty of theft as there was evidence that the property was abandoned which being an honest belief can be as a defence.

So it shall be left upon the Judges to decide that, but I would like to mention that her dishonesty can be seen due to the fact she did not have any intention to protest against her loss of job, it could be in the view of, that she recognize what she had done was wrong and her actions where dishonest in accordance to a normal persons observation? Germane

Moving on we need to identify was Kezia's intention to permanent deprive her colleague of the death certificate.

Intention to permanent deprive is when appropriating the property and not intending to give it back, however In the case of R V Fernandes (1996) this significant concept in S.6 was observed. There are some exceptions where mere borrowing will be enough to amount to a theft. S6 (1) says that,

“ 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 others rights…”

S6 (1) in relation to Kezia case shows that Kezia taking the certificate, although of having the intention to return it, she has intended to “borrow it” and “use it” for her “own purpose”. Having said that she could appeal that she had the intention to return it, which akin to R V Lloyd (1985) where defendant removed films from a cinema for few hours, made illegal copies and returned them. He argued that he intended to return them from initial hence had no intention to permanently deprive; not had he borrowed the film in circumstances making the borrowing equivalent to an outright taking or disposal and it was held that he was not liable for theft.

Lord Lane CJ felt that to fall within this area of s6(1) there should be intention ‘to return the “thing” in such a changed state that it can truly be said all its goodness or virtue is gone'

If going on the above notion Kezia would not have been charged but as she did take it and wanted to use it for her own purpose, and when returning the certificate there was a red ink mark on it, which took the goodness or virtue of it somewhat, all these aspects have enhanced the intention of permanently to deprive which is the rationalization of her being charged with Theft.

Moving on we need to deal with the Fraud aspect which Kezia has been charged with.

The Fraud Act 2006 gives 3 circumstances where fraud is perpetrated, by false representation by failing to disclose information and abuse of position. Section 2 is in relation to Kezia case, which makes it an offence to commit Fraud by False representation. S2 (1)(a) clarifies that the representation must be made dishonestly, which does applies in Kezia Case as she knew she is making a dishonest application for mitigating circumstances. The same two stage test which was recognized in R V Gosh would be applied by the courts to establish fraud via attesting dishonesty. The maximum sentence is 10 years imprisonment if found guilty.

Fraud by false representation is committed when D

  • Dishonestly makes a false representation: and
  • Intends, by making the representation
  • to make a gain for himself or another or
  • to cause loss to another or to expose another to the risk of loss.

The above acts pertain to Kezia case as she dishonestly made a false representation in order to gain herself extension for her assignment.

S2 (2) defines the meaning of “false” in this context and S2 (3) defines the meaning of “representation”. A representation is defined as false if it is untrue or misleading and the person making it knows that it is, or might be, untrue or misleading.

Kezia when making the false representation that she knew it is untrue as a) the death certificate did not belong to her or any of her relatives in her case her brothers, b) what she stated was untrue, and c) she wanted to make a gain out of it.

A representation can be expressed or implied, which means that it could either be stated or communicated by demeanour. S2 (4) states that there no limitation on the way which the representation must be expressed, so it could be written or spoken or posted

Kezia representation comes under expressed, when she said she been suffering from panic attacks, but the administrator had seen her in town where she seemed in good spirits, which again proves Kezia deceitfulness as to false representation.

Kezia can construct an argument that she withdrawn her application and did not go ahead with it, nevertheless s2(5) states that, there is no requirement that V is deceived by the representation. In Connotation of this and in relation to S5 (2)(b) Kezia had the impermanent objective to utilize the certificate regardless of the fact she was successful or not, a mere attempt of it is sufficient of full offence. This denotes that it is not required that Kezia was successful to attain the mitigation certificate or deceive the university, her attempt suffices her culpability hence on these basis Kezia has been charged with Fraud


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