Ray of Light
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Hey guys, can anyone direct me to any criticisms for the Theft Act 68? All I can think of is that it might still be convoluted, like the Larceny Act?

Thanks.
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Maicccccmannnn
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I did Law at A level two years ago, so my memory is somewhat vague. I'll try my best to provide some guidance.

Your criticisms of the Theft Act will mostly come from analysing Section 1-6 of the Act and how these sections have been interpreted by the courts. In particular you should analyse the key terms contained within Section 1(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"

-The Theft Act 1968 does not provide a legal definition of "dishonest". The lack of legislative clarity on this term may result in confusion on how it is to be interpreted in law. This may then lead to an inconsistent application of it, with different cases providing conflicting interpretations. See Ghosh [1982], Feely [1973] and Lightfoot [1993] for how these problems manifest themselves in practice. It will also mean that the interpretation of the word will largely, alongside judges, be left to the discretion of jurors. Legal academics have criticised this, with Sir Brian McKenna saying "it is surely better that these questions should be decided not by juries but by Parliament".

-The Ghost Test formulated in Ghosh [1982] creates an eclectic two-fold test for defining the meaning of "dishonest", containing an objective and subjective test. This is self-contradictory within itself, and potentially confusing for legally-unqualified jurors who are unfamiliar with the complexities of both tests. Law Reform bodies, such as the Law Commission, have also argued that the test should be codified in statute to make the test more transparent and intelligible. Critics have argued that if the Theft Act 1968 had originally explained the meaning of "dishonest"such problems would not have arose.

-It has been argued that the word "appropriates", contained with Section 1(1), is defined too widely. Prior to the 1968 Act, the English Law required the physical taking of property for an appropriation to be constituted. Following the 1968 Act, and resultant case law, this is no longer the position. Section 3(1) states "Any assumption by a person of the rights of an owner amounts to an appropriation". Rights include to take, use, sell, destroy or damage, wear and lend. In effect, a theft, according to the legislative meaning of 'appropriates', may be performed if a person merely wears or uses the property temporarily. This assumption is confirmed by the concluding words in Section 3(1) of the act - "this includes, where he has come by the property...without stealing it". Interpreting a Theft this loosely leads to an absurd legal meaning of what a "theft" is, undoubtedly contradictory to common-sense.

-The case of Hinks [2000] broadened the meaning of "appropriates" even wider, so that it also includes where a person has been given a gift by another person, or what in law is called "the acquisition of an indefeasible title to property". Gomez [1993] and Lawrence [1971] also advocate that an unlawful appropriation may occur even when the person has consent to appropriate by the owner. All three cases have arguably made redundant the logical meaning of "appropriates".

-The criticisms of Section 4 - "Property" - are very limited. Criticisms that have arose have arisen as the result of questionable case-law interpretations of "property", rather than the legislation itself being problematic. See Oxford v Moss [1979] for an example of this.

-Section 6(1) - "Intention of permanently depriving" - allows borrowing or lending to constitute an "intention of permanently depriving" - "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". Clearly, an intention to temporarily borrow or lend is not an equivalent of, or similar to, an intention to temporarily borrow. It is arguably wrong to include borrowing or lending within the section. The later words within this section "in circumstances making it equivalent to an outright taking or disposal" are also somewhat ambiguous. At what point in time, or in what circumstances, does borrowing or lending property amount to an intention to deprive? One hour, one day, one week, one month or one year? Clearly the courts have had a hard time construing this section and applying it in practice as demonstrated in R v Llyod [1985].

-Again, the criticisms of Section 5 - "Belonging to another" are very limited. The section itself actually succeeds in defining it very well - "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)".

-Section 15 of the Theft Act 1968 creates a separate offence of "Obtaining property by deception". This section has been criticised as there is little, if any difference, between dishonestly appropriating property (Section 1(1)) and obtaining property by deception. The Law Commission summarises this point well: "It must be rare that a defendant can admit obtaining a benefit by deception, but claim that it was not a dishonest thing to do". Section 15 thus creates unnecessary bureaucracy and confusion. Indeed, the Fraud Act (2006) went on to repeal Section 15 from the Theft Act.


Hope this gives you a starting point

Liam.
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Roman95
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Thank you Liam, your insight was very useful.
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cj1997
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Really helpful for my uni presentation!
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nick2491
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Maybe a little late to help you, but the intention to permanently deprive someone can cover the useful life of an item, rather than its physical existence. I'm a serving police officer, I have dealt with a theft (a long time ago!) whereby an Aston Villa season ticket was stolen and used for a number of matches. Although it was eventually returned to the genuine owner, the season had ended by that point, and the CPS successfully argued that even though the owner was not permanently deprived of the physical ticket itself, once the season was over, the ticket had no value and therefore he had been deprived of a functional season ticket, and therefore the theft was complete. They probably worded it better than that, but that was it in a nutshell.

I can't see that we would ever prosecute for something as pedantic as theft of a loaf of bread or a pint of milk, say, but if we're talking principle rather than practice, I suppose if you took your housemates milk or bread into your room an Uni, left them to go mouldy and then replaced them in the kitchen, you could argue that is a theft too.
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seadoc
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(Original post by Ray of Light)
Hey guys, can anyone direct me to any criticisms for the Theft Act 68? All I can think of is that it might still be convoluted, like the Larceny Act?

Thanks.
I found this site by googling "Theft Act 1968" one hit was an incredibly convoluted mind map - that no one's brain could process - the brain doesn't work that way - you need to keep it simple. For instance - s.1(1) of the Theft Act 1968 - states, a person commits theft if he dishonestly appropriates property belonging to another with the intent to permanently deprive the other of it.

A simple statement embodying both the actus reus and mens rea of Theft. Let's pause for a moment and do a quick review of the Criminal Liability Equation:

AR + MR [Intent/direct/indirect/specific/basic - recklessness - strict liability] - Valid Defence = Criminal Liability

Going back to our basic definition of Theft we can pick out the 3 part actus reus and 2 part mens rea:
Actus reus:
  • appropriates s.3(1)
  • property s.4(1)
  • belonging to another s.5(1)
Mens rea:
  • dishonestly s.2 and Ghosh
  • intent to permanently deprive s.6(1)
Possible defences: s.2
  • D has reasonable belief s/he has a legal right to the property
  • D has reasonable belief s/he would have had the owner's permission
  • D has taken reasonable steps to identify the owner and failed
Theft is an examiner favorite - if you're not revising from old law exam questions - you are unnecessarily handicapping yourself. Having said that - let's take a look at a 2011 University of London Criminal Law exam question:
Question 1.
"Sarah visited her local lending library, hoping that she would get the chance to steal some books. While browsing there, she saw a book she had wanted for a long time and decided to steal it. She removed it from the shelf but, when she saw the librarian watching her, she changed her mind and put it back. She left the library.

"On her way home she decided to do some shopping and went into a supermarket. When she got to the checkout with her purchases, she discovered that she had no money in her purse and so she used her credit card to pay for the goods, despite the fact that she had received a letter from the bank that morning telling her not to use the card as she had exceeded her credit limit.

"She then, unsuccessfully, used a foreign coin to try to obtain some chocolate from a vending machine.

"Feeling in need of a rest, she stopped at a cafe and ordered coffee and cake. She ate it, then waited until nobody was looking and ran out of the cafe without having paid.

"Discuss Sarah's criminal liability, if any."

Start with the call of the question - criminal liability. AR + MR - Defence = Criminal Liability

Go back and read the question and you will see that the question deals with the Theft Acts of 1968, 1978, Criminal Attempts Act 1981 and the Fraud Act of 2006 - what are Sarah's liabilities under those Acts?

Sarah visited her local lending library, hoping that she would get the chance to steal some books. While browsing there, she saw a book she had wanted for a long time and decided to steal it. She removed it from the shelf but, when she saw the librarian watching her, she changed her mind and put it back. She left the library.

Always start with the actus reus - s.1(1) of the 1968 act defines theft - a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.

Both the actus reus and mens rea of theft are contained in that short definition:

Actus reus:
  • Appropriates - s.3(1)
  • Property - s.4(1)
  • Belonging to another - s.5(1)

Mens rea:
  • Dishonestly - s.2 and the Ghosh Test
  • Intending to permanently deprive - s.6(1)

NB s.2 doesn't actually define dishonesty but gives 3 examples of conduct that is not considered dishonest:
  • D believes he has a legal right to the property
  • D believes that he would have had the owner's permission to appropriate the property
  • D has made a reasonable effort to find the owner and failed

Having defined theft - we move on to the next section of the TA 1968 - Burglary - defined as s.9(1)(a) if D enters a building or part thereof as a trespasser with the intent to steal, inflict GBH or commit criminal damage - before the SOA 2003 it included rape - and s.9(1)(b) if D steals or attempts to steal any property, inflicts GBH or attempts to inflict GBH or causes or attempts to cause criminal damage.Two key cases here are Gomez and Hinks.

The next thing to consider in the first part of this question is the fact that attempting to commit an offence was made a statutory offence by the Criminal Attempts Act of 1981 - defined in s.1(1) as 'If, with intent to commit an offence ..., a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence'.

When comparing these two questions - what - immediately - leaps into your mind?

Today's criminal law questions tend to raise a myriad of issues in a single question - theft - attempts - inchoate offences - fraud - and making off without payment.

As a side note: use of foreign coins to steal from vending machines - is a huge problem in the UK just now - especialy the 2 GBP coin that is mimicked by an Iranian coin.

The take away from the above is to acquire a rock solid working knowledge of the Theft Act 1968 and s.3 of the 1978 Act - along with appropriate case authority.

Okay - having said all of the above - Just for fun - let's answer the question of Sarah's possible criminal liability in the above question.

Before the exam begins you have 15 minutes free reading time to outline all eight questions in order to choose 4 of the 8 when the exam begins - so let's look at the question - important - read the 'call of the question' first - what is the examiner asking you to do?

Then break the question down:

In the library:

Actus reus:
  • Enters library;
  • Sees book;
  • Removes it from shelf;
  • Puts it back; and
  • Leaves the library.
Mens rea:
  • Intends to steal a book;
  • Decides to steal a particular book; and
  • Changes her mind.
In the supermarket:

Actus reus:
  • Enters the market;
  • Discovers she has no money to pay;
  • Uses an invalid credit card to pay; and
  • Receives goods and/or services.
Mens rea:
  • Knows the card is not valid; and
  • Intentionally does not disclose this fact to the cashier.
Vending machine:

Actus reus:
  • Unsuccessfully uses foreign coin in vending machine.
Mens rea:
  • Intending to steal a bar of chocolate.
In the café:

Actus reus:
  • Enters the café;
  • Orders coffee and cake;
  • Drinks the coffee and eats the cake;
  • Waits until she is alone; and
  • Runs out without paying.

Mens rea:
  • Knows payment is demanded or expected on the spot; and
  • Forms intent to permanently avoid payment.
Sarah's Criminal Liability
Sarah is liable for burglary - attempted theft - fraud - and making off without payment.
Issues
The issues are:

Does Sarah's entry into the library - as a trespasser with intent to steal rise to the level of s. 9(1)a and b Burglary, and is she also guilty of attempted theft under s.1(1) of the Criminal Attempts Act 1981?

Does her act of knowingly, presenting an invalid credit card to the supermarket cashier rise to the level of fraud under the Fraud Act 2006?

Does her - albeit - unsuccessful - attempt to obtain a chocolate bar from a vending machine using a foreign coin - constitute the inchoate offence of attempted theft?

Does her leaving the café without paying make her guilty of the s.3 offence of 'making off without payment' under the Theft Act of 1978?

Legal Principles
Anyone who enters a building or any part of a building - as a trespasser - with the intent to steal - inflict GBH - or do unlawful damage is guilty of the s.9(1)a offence of Burglary.

Further, anyone - having entered a building or part thereof - as a trespasser - who steals - attempts to steal - or inflicts or attempts to inflict GBH is guilty of a s.9(1)b Burglary offence.

In this case, Sarah entered the library as a trespasser - defined as - beyond the scope of one's entry licence - and attempted - defined as an act that is beyond 'merely preparatory' - to steal a book - and the fact that she was thwarted by the librarian - has no effect on her guilt for the offences.

Therefore, she is guilty of s.9(1)a and b Burglary, see,Smith and Jones (1976) and s.1(1) of the Criminal Attempts Act 1981. See also, Gullefer (1987).

Section 2 of the Fraud Act 2006 provides - if a person dishonestly makes a false representation intended to gain or cause loss is guilty of an offence and s.3 provides - that when D is under an obligation to disclose information and fails to do so intending to make a gain or loss is guilty of an offence.

In this case, Sarah, knew that the credit card was not valid but tendered it anyway - accordingly, she is guilty of committing an offence under ss. 2 and 3 of the Act per Gilmartin (1983) see also Ghosh (1962).

Since the presumption - based on the facts as given - is that she actually obtained the goods - she is likewise - guilty of a s.11 offence under the 2006 Act. See, Sofreoniov (2003).

Attempting to commit an offence was made a statutory offence by the enactment of the Criminal Attempts Act 1981.

Section 1(1) defines attempt as beyond merely preparatory to the commission of the offence. In this case, Sarah - knowingly inserted a foreign coin into a vending machine to retrieve a chocolate bar - the fact that she was unsuccessful - has no effect on her guilt of attempted theft from a vending machine. See, Shivpuri (1987). ("Even if completion of the offence is impossible - there can still be an attempt.")

Section 3(1) of the Theft Act 1978 - makes it an offence for any person, who knowing that payment for any goods and services is expected - and payable - on the spot, dishonestly makes off without payment as required with intent to avoid payment is guilty of an offence.

In the instant case - Sarah - ordered - and drank the coffee - and ate the cake - knowing that payment 'on the spot' was expected and demanded - then waiting until no one was around to prevent her leaving the café - ran out of the café without paying - thereby - incurring criminal liability for the s.3(1) offence of 'making off without payment' under the Theft Act of 1978. See, McDarvitt (1981), Allen (1985),Vincent (2001) and Ghosh (1982).

Remember - a perfect law school exam answer - is like the Unicorn - a Myth.

Revise by answering past exam questions - trust me - the day of the exam - is NOT the first time you want to see an exam question.

Study smarter - not harder.

Jim Gilliam - 1L UoL
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seadoc
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(Original post by nick2491)
Maybe a little late to help you, but the intention to permanently deprive someone can cover the useful life of an item, rather than its physical existence. I'm a serving police officer, I have dealt with a theft (a long time ago!) whereby an Aston Villa season ticket was stolen and used for a number of matches. Although it was eventually returned to the genuine owner, the season had ended by that point, and the CPS successfully argued that even though the owner was not permanently deprived of the physical ticket itself, once the season was over, the ticket had no value and therefore he had been deprived of a functional season ticket, and therefore the theft was complete. They probably worded it better than that, but that was it in a nutshell.

I can't see that we would ever prosecute for something as pedantic as theft of a loaf of bread or a pint of milk, say, but if we're talking principle rather than practice, I suppose if you took your housemates milk or bread into your room an Uni, left them to go mouldy and then replaced them in the kitchen, you could argue that is a theft too.
On the theft of bread or milk - here's the latest guidance from the CPS:

Section 172 of the Anti-Social Behaviour, Crime and Policing Act 2014 came into effect on 13 May 2014.

Section 176 of the above Act introduces changes to low level shoplifting.

The changes areubsection (3) of the Act inserts new section 22A into the Magistrates' Courts Act 1980, which provides that low-value shoplifting is a summary offence (new section 22A(1)).

This is subject to one exemption; an adult defendant is to be given the opportunity to elect Crown Court trial; and if the defendant so elects; the offence is no longer summary and will be sent to the Crown Court (new section 22A(2)).

Otherwise, the effect of new section 22A is that offences of low-value shoplifting cannot be sent to the Crown Court for trial or committed there for sentence; they will attract a maximum penalty of six months' custody; and they will be brought within the procedure in section 12 of the Magistrates' Courts Act 1980 that enables defendants in summary cases to be given the opportunity to plead guilty by post.

Shoplifting is not a specific offence as such but constitutes theft under section 1 of the Theft Act 1968; accordingly new section 22A(3) defines shoplifting for the purposes of this provision, which applies if the value of the stolen goods is £200 or less.

Section22A(4) provides that for these purposes the value of the goods is to be determined by the price at which they were offered for sale rather than the intrinsic value, and also for the value involved in several shoplifting offences to be aggregated where they are charged at the same time. So, for example, where a person is charged with three counts of shoplifting, having allegedly taken £80 worth of goods from three separate shops, the new procedure would not apply in that case as the aggregate sum exceeds the £200 threshold.

Section 22A(5) provides that for offences of low-value shoplifting tried summarily (as they must be unless the defendant elects), the maximum penalty is six months' imprisonment or a fine.

Section 22A(6) prevents appeals from being brought on the basis of disputed decisions as to whether the offence was low-value shoplifting.

Section 22A(7) provides that an offence of shoplifting includes secondary offences such as aiding and abetting.Subsection (4) amends section 143 of the Magistrates' Courts Act 1980 to enable the £200 threshold to be uprated in line with inflation.

An order made under section 143 is subject to the negative resolution procedure.Subsection (5) amends section 1 of the Criminal Attempts Act 1981 to provide that it is an offence to attempt to commit low-value shoplifting. That section otherwise only applies to attempts to commit offences which are indictable offences.

Subsection (6) provides that certain powers conferred by the Police and Criminal Evidence Act 1984 ("PACE") on the police and others in respect of indictable offences remain available in respect of low-value shoplifting, notwithstanding that it is reclassified as summary-only. The powers concerned include a power of arrest exercisable by a person other than a constable (for example, a store detective), powers enabling police officers to enter and search premises and vehicles in various circumstances for the purposes of searching for evidence in connection with an investigation or arresting individuals suspected of committing offences, and powers enabling a magistrate to authorise such entry and search.
Subsection (7) is a further consequential which makes a parallel amendment to the provisions which correspond to PACE for Service law.Subsection (8) provides that the amendments do not apply to cases in which proceedings have been instituted before the date of commencements.

Source: http://www.cps.gov.uk/legal/s_to_u/t...offences/#a10a

The significant effect of the Anti-social Crime and Policing Act of 2014 is that it reduced the prosecution's burden of proof from 'beyond reasonable doubt' (criminal) to 'balance of probabilities' (civil), which I would imagine - makes your job easier.

Section 3(1) of the 1968 Act defines 'appropriation' as -

3“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.“Appropriates”.So, in your examples above - ANY usurpation of the legitimate owner's property rights is an illegal appropriation. This includes using someone else's sports event tickets - after the season is over the value of the tickets is nil and the owner has been permanently deprived of their value - same thing applies if you sell someone else's tickets without the ticket owner's permission and pocket the proceeds.

Have a happy Holiday!
Jim Gilliam 1L UoL
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daanny_
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Brilliant Analysis. Where can I get past questions? I have an exam coming up soon actually
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Mimir
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(Original post by daanny_)
Brilliant Analysis. Where can I get past questions? I have an exam coming up soon actually
This was a 2011 thread. So the common law position has changed since then (only slightly however).

Your university will provide you with past paper resources. If it's simply for Theft, then any problem question will need application of the exact wording of the Theft Act, application of the case law too.

Remember: Facts. Actus Reus. Mens Rea. Defences. ALL the elements must be made out.

Theft usually fails on dishonesty (Ghosh test) so do that last. The Defendant must do so dishonestly at the time he appropriates the property belonging to another with the intention to permanently deprive the other of it.

If you're asked to consider car jacking, maybe TWOC is appropriate (depending on whether you even know what that is!)
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agaata5
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(Original post by daanny_)
Brilliant Analysis. Where can I get past questions? I have an exam coming up soon actually
Q&A books
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swagyolo420
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Ghosh test is ********, and you can talk about this for 5-6 pages, you're welcome


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maryam767
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can someone please help me with at least 5 advantages explained for the theft act
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agaata5
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- Wider and broader in scope in its application than just dealing with situations covering stealing by taking (look at the definition of appropriation in the statute or in the case law)
- The lack of definition of dishonesty allows for the test to be openly applied throughout various scenarios
- The subjectivity element allows to quash convictions, where the defendant was not acting dishonest (e.g. s. 2(1)(c) - someone will not be convicted of stealing, where he takes reasonable steps to find the owner, but is unable to do so)
- The law can be seen as easier to understand and more accessible
- The aim of the Act was to avoid technicality and in many cases, detailed guidance will not be needed
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hey guys I m struggling with my unit 24 assignment can someone please help me with 5 advantages and disadvantages of having corporate manslaughter as a crime
thanks in advance
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(Original post by maryam767)
hey guys I m struggling with my unit 24 assignment can someone please help me with 5 advantages and disadvantages of having corporate manslaughter as a crime
thanks in advance


Why are you posting in Theft?

Perhaps you could show us what you have come up with so far, nobody is inclined to help otherwise.
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This is 8 years old and there has been changes to dishonesty, Ivey v Gent Casinos, R v Pabon
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