Theft

Question 1

how was theft defined in Ferguson & McDermid

Answer 1

theft is constituted by the appropriation of any item of corporeal, moveable property which is in the ownership of another person, without the owner’s consent and with the intention of depriving the owner of that property permanently, temporarily or indefinitely

Question 2

what are the four elements of the actus reus of theft

Answer 2

• Appropriation
• Property
• Belonging to another
• Without consent

Question 3

what is the mens rea of theft

Answer 3

Must either be
- Intention to deprive
- Intention to appropriate

Question 4

factors surrounding the intention to deprive or to appropriate

Answer 4

• Inferred from facts
• Not necessary for deprivation to be permanent, temporary is sufficient
• A must know that another owns the property
• Don’t need to show any material gain from theft

Question 5

case facts of Kivlin v Milne 1979

Answer 5

• Took possession of car without authority and left the car in a place where the owner wasn’t able to discover it
• theft

Question 6

what must the court look at when considering the mens rea

Answer 6

must look for evidence of wickedness or intention to steal

Question 7

case facts of Mackenzie v Maclean 1981

Answer 7

an absence of dishonesty on part of the accused which is essential for a conviction of theft

Question 8

case facts of Butler and Fraser v PF 2013

Answer 8

dishonest intention can be inferred from the evidence

Question 9

what is no defence for committing a theft

Answer 9

An ulterior motive for committing the theft is no defence or justification

Question 10

case facts of Milne v Tudhope 1981

Answer 10

• Clandestine taking for a ‘nerfarious purpose’ constituted theft
• Goods were taken to force payment under a contract
• Intention to return goods once payment made was no defence

Question 11

how did Hume define appropriation

Answer 11

the dishonest taking possession of a thing and carrying it away

Question 12

case facts of John Smith 1838

Answer 12

• Found items and money on the road with the owners name on notebook
• A was charged with theft as he appropriated goods for his own use and purpose
• Thief assumed rights of owner in the property
• He had taken them for his own use and purpose

Question 13

case facts of George Brown 1839

Answer 13

• Watches given for repair
• Possession freely given over
• But A retained them for his own use so it became a criminal act by the intention to appropriate them for his own use
• Theft was committed when he resolved to appropriate them for his own use

Question 14

case facts of Black v Carmichael 1992

Answer 14

• On appeal held that in the circumstances the act of wheel clamping a car constituted theft
• Act deprived owner of use of car and so can be described as theft

Question 15

definition of property

Answer 15

Corporeal moveable property; thing can be stolen if it can be physically possessed and moved from place to place

Question 16

case facts of Grant v Allen 1988

Answer 16

Charged with theft of information on computer print outs but it was held that the explotiation of such information wasn’t a crime

Question 17

case facts of R v Kelly 1998 (bodies can’t be owned)

Answer 17

body parts preserved by a college for teaching and research were classified as an ‘exception to the rule’

Question 18

case facts of Valentine v Kennedy 1985 (wild animals)

Answer 18

• Charge of theft of fish from fish farm
• Fish bred in a farm weren’t wild, and so could be stolen
• Lost or abandoned property

Question 19

case facts of Butler v Richardson 2013 (unclear who owes property)

Answer 19

• conviction for theft quashed as there was no report of copper wire ‘lost’ or ‘stolen’ made to the police
• Evidence didn’t infer ownership by anyone and suggested goods had been abandoned and unwanted

Question 20

case facts of Kane v Friel 1997

Answer 20

appropriation of property isn’t conclusive of theft, no evidence the accused knew items belonged to another and so the MR of dishonest intention wasn’t proved

Question 21

case facts of Hamilton v Wilson 1994 (theft of a child)

Answer 21

• acknowledged father had no rights of access to his child and this was a deliberate taking of a child without consent
• Biological parent was guilty of plagium

Question 22

factors surrounding ‘belonging to another’

Answer 22

• Crime of theft protects a person’s right to property
• Someone must own the property
• Knowledge of ownership isn’t needed to establish theft

Question 23

what is the possible defence for ‘belonging to another’

Answer 23

if there’s a belief property belonged to A

Question 24

factors surrounding lack of consent

Answer 24

• Essential for theft
• Usually obvious from facts
• Act of appropriation must have been done without consent of owner, his authorised agent or representative

Question 25

case facts of HMA v Mackenzie 1913 (taking away)

Answer 25

- Charged with theft of a book of recipes, intended to copy the contents - No intention of retaining the book - Guilty of theft of the book

Question 26

case facts of Kidston v Annan 1984 (holding things for ransom)

Answer 26

Wouldn’t return TV until repairs paid for Legal Recourse – civil action to recover payment