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Published: Fri, 02 Feb 2018

Theft Ownership Possession | Free Criminal Law Essay

In order to determine Duncan’s liability for the crime of theft, one must examine the events that occurred on the day described, treating each possible incident independently. I will have to inspect the five elements that underpin the crime of theft and determine if they are evident in each incident. These elements are laid down in section 1(1) of the Theft Act (NI) 1969 that states someone will be guilty of theft when he/she ‘dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.’ The three actus reus elements to the crime of theft are i) appropriation ii) property and iii) belonging to another. The two mens rea elements are i) dishonest and ii) intention of permanently depriving the other of the property. On each occasion, all of the five elements must be satisfied for Duncan to be liable for the crime of theft. Allen comments how these elements are “interconnected”. This statement is very compelling, yet one will attempt to deal with the legal issue at hand in each separate incident that arises.

For the purposes of this scenario, I will refer to the relevant legislation, primarily the Theft Act (NI) 1969 and case law. Case law has established some landmark decisions, some of which will be discussed later, whilst some cases have given rise to dubious judgments. For the purposes of each incident I will establish the principle of law to be discussed, apply the relevant section of the statue and legislation and relate case law to the situation illustrated.

At first instance I am drawn to the fact that, although Duncan is capable of his job, he has been noted to be flippant from time to time and has had cause to be in trouble with the authorities. This character reference sets the scene for the incidents which I will now investigate. There are other issues that come to light in this problem but for the purposes of this scenario I will focus solely on the crime of theft. It should be noted that under the Criminal Justice (Evidence) (NI) Order 2004, evidence of bad character could also be brought against Duncan in light of the six incidents which will now be discussed and examined.

Driving away without fulfilling the required payment

The first issue brought to light is that of Duncan filling his tank with fuel and driving away without fulfilling the required payment. The principle of law here is, to whom does the property belong at the time of appropriation?

On entering a self-service filling station, the intention of the proprietor is for ownership and possession of the fuel to pass to the customer. Ownership will have passed by the time Duncan has filled his fuel tank and the relevant act of appropriation has already taken place. Therefore, the petrol is solely Duncan’s property and you are unable to steal one’s own property.

Section 5(1) of the Theft Act describes that the “property shall be regarded as belonging to any person having possession or control of it…” In this respect, at the time of appropriation, the only person having possession and control of the petrol was Duncan. The authority in this area is the 1976 case of Edwards v Ddin. The principle laid down in this case is that when petrol was put in the tank by the defendant, it belongs to him only as no one else has possession, control or a proprietary right or interest in the fuel.

However, section 5(1) of the Theft Act goes on to state that property can belong to a person who has “any proprietary right or interest…” It is known that there is a ‘lien’ in favour of an unpaid seller but this only exists when the seller is in possession of the property and in this case the proprietor of the petrol station is not. Similarly to Edwards v Ddin, it would be impractical for law to impose a lien as the petrol has presumably been mixed with Duncan’s petrol and there would be no possible steps the fuel station would be able to take to acquire the petrol back.

On the issue of intent, Duncan has decided to leave the forecourt without paying for the fuel after appropriation. He cannot be charged for theft as the dishonest intention came after the property was appropriated. There was no dishonest intent at the time of appropriation. This is in contrast to the McHugh case in which the defendant was convicted of theft as he was dishonest at the time when filling his fuel tank.

Duncan has appropriated the property in this instance but it has not been the property of another and he also has not had the dishonest intent at the same time as the appropriation. In conclusion to this issue it should be stated that Duncan is not liable for the crime of theft in this instance but would be guilty of making off without payment. Section 5 of the Theft (Northern Ireland) Order 1978 sets out the law on making off without payment in Northern Ireland. This punishable offence could carry up to two years imprisonment.

The next issue is the incident where Duncan purposely misleads his customer into paying £50.00 rather than the proper £5.00 fare for the taxi journey. This legal issue arising here is that of appropriation and consent. For the purposes of this incident, one must make reference to the Theft Act and the principle in the valued case of Lawrence which was later confirmed in Gomez.

In many ways, the facts in Lawrence are similar to the incident that has occurred with Duncan. The passenger is from a different country and is clearly not competent in the English language. However the issue arising is that the passenger has consented in handing over the money even though it appeared to be an extortionate amount in relation to the real, legal fare. Another point that must be made is that in both these cases, the taxi drivers did (wrongly) inform their passengers that the journey would be expensive and they still consented to pay the fair and resume journey in the taxi. The principle laid down in Lawrence states that consent does not negate appropriation.

It is quite striking that this situation almost seems to be one of deception rather than that of theft. Ashworth comments how the House of Lords could make one of two decisions in Lawrence by either acquitting the conviction of this dishonest person or by ‘reaching a decision which might well destabilise the law of theft…’ They chose the second option in order to convict the defendant of what appeared to be the greater wrong. This was disputed in Morris but Gomez reiterated the law laid down in Lawrence stating that consent was irrelevant to appropriation. However, the court in this case did also accept the authority of Morris in relation to appropriation. The issue arising here was whether the defendant must assume all the rights of an owner in order to appropriate property but it is true that there only has to be an assumption of any one of the owner’s rights. In this case it was established there must be an intention to permanently deprive but actual deprivation does not need to be proven. Section 3(1) of the Theft Act states that “any assumption by a person of the rights of an owner amounts to an appropriation…” This section suggests that the character involved is taking to oneself, rights that he evidently does not have nor has the right to claim. In relation to Morris and this section of the Theft Act, it is true that Duncan has appropriated the property as he has assumed some of the rights of the owner, regardless of his passenger’s consent. It would also be true to say that if the passenger had known he was being over charged, he would not have wanted ownership of the money to pass and therefore the transfer of ownership was not that party’s intention.

Material difference

The material difference between Lawrence and Duncan’s dealings is that in Lawrence, the taxi driver physically took the money out of the victim’s wallet. With Duncan, this did not happen but I would regard this situation as almost irrelevant as the main issue here is the appropriation and consent. The appropriation takes place when Duncan receives the £50. At the moment of appropriation Duncan has the dishonest intention to permanently deprive his customer of the money. The usurpation of the right arises from the deception involved.

When one examines a case that arises such as Duncan’s, it is plausible that the law currently provides to convict those who are dealing in this ludicrous manner. An interesting figure here is that Duncan has overcharged the tourist by 1000%. Property here is obtained by trickery with an intention to permanently deprive the customer of the money, doing so dishonestly.

For Duncan’s defence in this case he would have to argue that the words ‘without the owner’s consent’ be readily implied into Section 1 (1) of the Theft Act as nowhere in act does it mention need for consent. However, one does not have a right to read words into the legislation.

Allen notes how “appropriation is inextricably linked to the concept of dishonesty.” At the time when Duncan dishonestly requested the £50, it was property belonging to another and he had the intention of permanently depriving the customer of it. Viscount Dilhorne states in Lawrence that ‘a person is not to be regarded as acting dishonestly if he appropriates another’s property believing that with full knowledge of the circumstances that other person has in fact agreed to the appropriation’.

Duncan would not have been dishonest if he had known that his customer believed he was being charged an extortionate fare and consented to this taking of the £50. However, one is lead to believe that the tourist merely suspected he was being overcharged but was not in a position to question Duncan about the fare due to his unfortunate knowledge of the English language. Duncan was dishonest in this instance as he did not know that his customer understood that he was being over charged and with the requisite attentiveness, consented in handing over the money.

It is true to say that there is a resounding overlap between deception offences and the crime of theft. This can be seen in the Briggs case. Duncan may attempt to defend himself by saying he was attempting to ‘swindle’ the tip out of the passenger and could attempt to rely on the intentions of the Criminal Law Revision Committee that ‘obtaining by false pretence is ordinarly thought of as different from theft…’ Gomez has led to the effect that almost all cases of deception involving property are cases of the crime of theft.

Due to this being an informal contractual situation involving deception and false representation by Duncan and the passing of £50 as property, Duncan may be convicted of theft contrary to the Theft Act (NI) 1969 and could also be charged under section 15 of the Theft Act of obtaining property by deception. There is clear misguided deception on Duncan’s behalf here and it is encouraging to see that the law currently provides to rectify situations like this.

Thirdly, is the issue of Duncan demanding a 10% tip. The legal issue coming to the fore here is, to whom does the property belong and is a ‘gift’ able to be the subject of appropriation therefore being a valid and lawful transaction.

This is a quite interesting topic and despite the legal repercussions, it should be noted

that a ‘tip’ or ‘tipping’ is a discretionary acknowledgement of service and is by no means payable on demand. It is true here that the oral representations made by Duncan had played a vital part in inducing the tourist to hand over the gratuitous tip.

However, if a donor lacks ‘capacity’ the gift should be declared null and void ensuring that the donee does not become the owner of the property. The tourist does not have a good command of the English language in the present scenario and therefore it could be stated that he lacks capacity and the tip should be declared invalid, preventing Duncan to assume ownership of the money given. One would suggest that the tourist did not fully understand Duncan’s request and was unsure of the transaction he was entering into, evidently a lack of capacity. However, if the court finds that the passenger had relevant capacity then the prosecution must discover that there was a false representation, undue influence or fraudulent behaviour executed by Duncan towards the passenger. One would suggest that Duncan has resorted to fraudulent behaviour, taking advantage of a vulnerable customer therefore the tip would be void.

An interesting issue that arises in a situation like this is, to whom the property belongs at the time of appropriation. On the receipt of a gift, ownership is transferred. However, when does the actual transfer of ownership take place? One would suggest that when Duncan received the money, he obtained ownership and appropriation happens at the same time. In this scenario it would mean that when the tip is given to Duncan, he has ownership and therefore can not be guilty of appropriating property belonging to another. This is the not the main issue to be discussed in this incident, however, as the more pressing issue is the capability of the appropriation of a gift.

The case of Hinks has cast some light on this problematic area. In this case, the House of Lords concluded that the receipt of a gift can amount to appropriation and the liability of theft will be dependent on whether the defendant was dishonest in accepting the gift. Duncan would be guilty if the court finds he was dishonest in accepting the tip. It would be highly likely that this would be the case as Duncan appears to have taken advantage of a vulnerable customer and the two thread question in Ghosh may apply. Therefore, in theory it could be stated that regardless of the transaction of, if Duncan had appropriated the property dishonestly, he will be charged with theft. The issue of consent arises here again as it is very likely that Duncan, in his defence, will comment that the passenger consented in paying the tip. However, Gomez and Hinks have established that consent is irrelevant in regards to appropriation.

Genuine gift

Many commentators have criticised the principle laid down in Hinks as it distorts civil and common law on receipt of a genuine gift. The Lordships in the case appeared to have relied on the principle established in Gomez; that consent is irrelevant to the issue of appropriation and many critics don’t accept this. However, Ashworth presents an extremely plausible argument in that ‘criminal law is protecting the vulnerable against exploitation by penalizing dishonest transactions of this kind…’

Duncan would presumably attempt to defend his actions saying he was trying to swindle the money out of the passenger, claiming that the tourist had a valid belief the tip was necessary rather than thieve from him. However, as previously stated Gomez has led to the result that almost all cases of deception involving property are cases of the crime of theft.

In conclusion to this incident, it would stand that the persuasion by Duncan to acquire the tip is a dishonest acquisition and one would find that he would be guilty of the crime of theft as he has dishonestly appropriated the property.

The fourth incident of the day occurs when Duncan is given a £20 note by mistake instead of a £10. The legal principle arising here is that of property ‘got’ by another’s mistake, who does the property belong to and also that of dishonesty. Section 5(4) of the Theft Act provides for the situation where the ‘a person gets property by another’s mistake, and is under an obligation to make restoration of the property or its proceeds or of the value thereof…’

It is evident that the passenger did not intend Duncan to receive £20 as he stated, “Here is ten pounds; you can keep the change!” Therefore as the fare was £9, the customer was allowing Duncan to keep the £1 remaining. However Duncan notices that the note is of the value of £20 but does not say anything. In this situation Duncan got the remaining £10 by his customer’s mistake and under section 5(4) would appear to be under an obligation to make restoration under the civil law of restitution.

Section 5(4) essentially extends the meaning of property ‘belonging to another’. However it was made clear in Gilks that under certain situations no such obligation to restore property arises. In this case,the mistake was made by a bookmaker and the defendant was not under a legal obligation to restore the money as gaming affairs are not recognised as ‘legally enforceable’ .

In Moynes v Cooper it was seen that a clerk discovered a mistake in his wages but decided to keep the money. In this instance he was acquitted but since that date section 5(4) has been put in place in order to cover this loop-hole in the law. Now the defendant in Moynes v Cooper would be under a legal obligation to make a restoration. In the case at hand, the passenger has transferred property to Duncan and on discovering this mistake, Duncan has decided to keep the money. Although he has posession of the money, section 5(4) now suggests that the customer would retain a proprietary interest in the property. It is true that on the principle laid down in ‘Middleton’ and ‘Gilks’ can apply here also. They both state that although property had been transferred under a mistake, complete ownership does not pass. However, one must be cautious as the facts are different in each case and Middleton has been questioned as to it’s authority. Duncan is under a legal obligation to make restoration and must take certain steps to satisfy this requirement.

Another issue arising here is that of dishonesty. Under section 2 (1)(c) of the Theft Act it is stated that a person’s appropriation will not be dishonest if he ‘appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps…‘ If it is ruled that Duncan has appropriated the property of another, he would have to take reasonable steps to return the property to the rightful owner. In this case one must determine if the passenger was already in the airport or just outside the taxi when Duncan noticed he had the incorrect amount. If the customer was just outside the car Duncan could have easily attempted to return the money to the rightful owner but if the passenger had proceeded to the building it would have been impractical and quite difficult for Duncan to find a passenger in a crowded airport. In Smith’s Law of Theft the commentators give a hypothetical situation in which the defendant knows who the victim is yet does not think there is any reasonable method that can be taken to trace him so therefore sells his furniture and is not guilty of theft. This could almost be a similar situation for Duncan as he does know who the owner is, but if he is in the crowded airport he would not be able to find him. However, I would suggest that Duncan realised the incorrect amount was handed over while his customer was in the proximity of his taxi and could have made a reasonable attempt to restore the £10.

In conclusion, Duncan has appropriated the property and acknowledged that he was given too much money. He also has the dishonest intent to permanently deprive as he realises the mistake but decides to say nothing. The case authority in this area is Shadrokh-Cigari in which it was established that if property passes by mistake the original owner clearly maintains an equitable proprietary interest.

I would rule that Duncan was under a legal obligation to make a restoration to his customer and therefore as he did not do so, is guilty of the crime of theft.

The fifth incident which gives rise to the need for investigation is the finding of the handbag in Duncan’s taxi. The principle of law arising in this incident is the intention of permanently depriving a passenger of their handbag. A person may only be liable of theft if he has the requisite mens rea elements of the dishonest intent of permanent deprivation.

In reference to the Theft Act (NI) 1969, there is no prerequisite expressed that Duncan should have permanently deprived the victim of the property but he must have intended to do so. In the situation described, does Duncan have the intention of permanently depriving the customer of the handbag or it’s contents? One would argue that he has not. He has conditional intent, meaning that he would only deprive the customer of their property if he had found something of benefit that he could take.

However, some people may consider this is theft but conditional intent does not satisfy the require the element of the intention to permanently deprive. Duncan’s liability of theft would only have been proved if he had assumed the passenger’s handbag to search through it to steal something worthwhile to him. However upon not finding anything of value, he leaves the handbag back to the depot. Here Duncan had no intention to deprive the passenger permanently of the handbag and/or it’s contents as what he was looking for did not exist. One would also argue that there is no dishonesty in this incident as Duncan has taken reasonable steps to find the owner by returning the handbag to the taxi depot.

The case law establishing authority for one’s claim is‘Easom’. In this case, the defendant attempted to steal several objects from a handbag in a cinema. He looked through the handbag and on observing that nothing was of value to him, returned it. The conviction was quashed as the Court of Appeal felt it was unfeasible to show an intention to permanently deprive. Section 6 covers constructive intent, in which one many be found guilty even when they do not intend the plantiff to permanently lose their property. According to the Court of Appeal in Easom, section 6 does not apply to conditional intent but the reasoning is not made clear. One would suggest the reasoning for this is that the defendant does not assume a right as an owner to dispose of the property. This would also be the case for Duncan and therefore would not be liable for the crime of theft.

In conclusion to this issue, one would argue that Duncan would not be liable for the crime of theft. In Easom, it was ruled that the defendant would not be charged for attempted theft either. Commentators backed this decision arguing that it is nonsensical to charge an individual for something that wasn’t even there for them to steal. However, this situation has now changed with the implimentation of the Criminal Attempts and Conspiracy (NI) Order 1983 in which a person can now be found guilty of attempting to steal. Therefore, one would suggest that Duncan could be charged for attempted theft of his customer’s property.

The sixth and final incident of the day takes place when Duncan finds £500 and decides to keep it. The main principle of law in question here is that of dishonesty. There has been a case of innocent acquisition here and one must examine if Duncan was dishonest in keeping the money. One would imagine that Duncan will attempt to argue that he was not dishonest in light of section 2(1) of the Theft Act. One will examine this possibility and if Duncan can not rely on this provision, I must then turn to the Ghosh test which is based on the standards of an ordinary decent person.

Honest belief

Section 2(1) describes when a person will not be regarded as dishonest. This section refers to categories of the honest belief of the defendant. The belief does not have to be ‘reasonable’ but the more obsurd the belief, the less likely the courts will believe it. Nowhere in the Theft Act does is state what is dishonest. This principle of what is dishonest is laid down in Ghosh which will be examined later. Under section 2 (1) (a) I would rule that Duncan has not any right to deprive his customer of the money left in his cab so this will not be accepted. This must be a legal right not a mere moral right. Under part (b) of the provision, one would find it quite hard to believe that Duncan would have believed that the customer would have consented in him taking the money. On the examination of section 2 (1) (c) one is drawn to the fact that Duncan believes it would be too much bother to trace the owner. The wording of this section states that the person’s belief was that the person to whom the property belongs ‘cannot be discovered by taking reasonable steps.’ Duncan will have no argument here as he thought it would be too much bother to him not that the person could not be found by taking reasonable steps. Arguably he would just have to present the money to officials at the taxi depot. The taxi firm could then take further reasonable steps to find the owner of the money by posting up a notice. It is also very common now that taxi firms have a record on their computer system of who their drivers have chauffered in the past twenty-four hours. I would argue that Duncan would not be able to rely on this provision as he could take reasonable steps to find the owner but has failed to do so.

With the element of dishonesty not being satisfied by section 2(1), one will now turn to the relevant authoritative case law of Ghosh. In this case a test is laid down as to the standards of a reasonable person. The two questions laid down in this case must be answered ‘yes’ if a conviction of theft is to take place. The first question is, where the defendant’s actions dishonest by the current standards of ordinary decent people? One would argue that the court would find Duncan was dishonest by the standards stipulated. Duncan would simply have resolved this matter by returning the money to the taxi depot. I put it to you, that ordinary decent person would either return the money to the depot or inform the police, particularly in relation to such a large sum of money. Now that is question has been answered one must answer the second question which is, did the defendant realise that his actions were, by those standards, dishonest? The issue at hand here appears to be one of a sensitive nature. We are drawn to the fact that Duncan believes that all of his colleagues at the depot are “on the fiddle” and therefore does not realise that by the standards of ordinary decent people he was being dishonest. The issue here is for the court to decide if Duncan was being dishonest. One would also need to take into consideration what standards the court will apply. Duncan would also need to be questioned as to his belief of being dishonest. If he admits that by the standards of ordinary decent people he was being dishonest, he will be convicted of theft.

However, one would argue that the issue surrounding the handbag highlights Duncan’s dishonesty in this case. He had the knowledge to return the handbag and to avoid conviction he should have done the same with the £500. He obviously felt the £500 would be of benefit to him and therefore it could be argued to the court that Duncan did realise he was being dishonest in keeping the £500.

One must also take into account, the possibility of abandonment by the original owner. If the customer has abandoned the money and is “indifferent as to what becomes of it” then Duncan may not be liable for theft as the property does not belong to another. However, it should be noted that this is a very unlikely situation and the courts are not at ease in applying the issue of abandonment. Duncan may also try and argue that he would repay the money if contacted by the owner. This would not suffice as a defence as it is doubtful that Duncan would plan to replace the exact same notes and coins that he kept.

The ommission to return the £500 or reporting the findings to the taxi depot constitutes Duncan’s appropriation of the money. This reformation of the old law has been described as a ‘dramatic demonstration of how far the law has retreated from the requirement of ‘taking and carrying away’ Also, in his writings Ashworth suggests that regarding this law of ommission, do citizens have a required knowledge of this law? However it should be construed that due to Duncan returning the bag found in the taxi he should have taken the same steps with the money. One is assuming that the two items found are independent of each other, but it may be the case that the money was originally in the handbag. Another point could be that Duncan is also depriving the owner of on any interest that might come from the £500.

In conclusion to this incident, one would argue that in keeping the money, Duncan was dishonest and that he was fully aware of what he was doing. I would find Duncan guilty of the crime of theft in this instance as he appears to be acting against the standards of ordinary decent people and has an implied knowledge that his are dishonest in regard to these standards.

One’s attention is drawn to Duncan’s remarks made at the close of business that day. He says that “All of us down at the depot are on the fiddle…so why should I be any different?” In light of this remark one would have to question as to Duncan’s belief that he has done anything wrong. Does this statement constitute a belief of a right? However it is stipulated in Section 2(1) of the Act that it must be a claim of legal right and not one of moral right. Arguably here, Duncan’s claim is one of moral right and therefore would have no weight as a defence. As Edgar Watson Howe wrote, “A thief believes everybody steals.” Therefore, the ordinary decent person does not steal but the defendant may think that they do.

The main element of theft is dishonesty and the test for dishonesty appears to be both subjective and objective- some would argue that it is perhaps too wide. However, the second question in the Ghosh test is there to allow relief for a defendant who had the honest belief by current standards that he/she was doing nothing wrong. This would be relevant in the case of tourists, who for example, comes from a location where public transport is free, he gets on the bus without paying and is subsequently convicted of theft. The second question in the Ghosh test renders the defendant an honest person. However, in Duncan’s case, one would argue he is taking advantage of this system and is fully aware that what he is doing is dishonest by the current standards of an ordinary decent person. Allen comments how theft, “protects not just ownership but also lesser interests such as possession and control” This is true and is an evidently excellent way to convict an individual of being misleading and dishonest.

It can be concluded that Duncan will be liable for the crime of theft on four counts. Those counts arising when 1) he overcharges the foreign passenger; 2) when demanding a tip; 3) when under an obligation, he did not return the £10 change to his customer and 4) the dishonest retention of £500. Duncan could also be charged of 1) making off without payment in the petrol incident and 2) Attempted theft in the issue surrounding the handbag.

What are the repercussions of Duncan’s crime? The issue of theft could be dealt with through the civil court but it could also be argued that the amount concerned may be too little to justify the time and expense of legal pro

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