theft

Question 1

theft equation

Answer 1

theft = (appropriation of the property of another without consent) + (intention to deprive the owner of their property + dishonesty)

Question 2

appropriation

Answer 2

Black v Carmichael 1992 SLT 897 THE LAW IN SCOTLAND TODAY
Facts: 2 people who had become frustrated with people parking their cars on their private property. They got really annoyed and attached wheel clamps with a note, saying that they would be taken off if the complainer paid £45.
Legal issue: Does this meet the definition of theft?
Held: Yes
Significance: The essential element of theft, ie appropriation, had been met, because the complainer had been deprived of their right to use the vehicle. An interference with some of the property rights

Question 3

capable of being stolen

Answer 3

Dewar v HM Adv 1945 JC 5
Facts: Accused was the owner of a crematorium, and he was reusing coffins, essentially.
Held: Once a body has been buried, it can’t be stolen, but up until that point it can be stolen. (it is obviously still a crime, just not theft; violation of sepulchre)
Significance: It must be capable of being stolen

Question 4

corporeal property

Answer 4

HM Adv v Mackenzies (1913) 7 Adam 189
Facts: Accused stole a book of formulas and used these to try and profit.
Held: The charge of theft is relevant in so far as the book, however, the copying of the book isn’t theft, because it was non-corporeal property.

Question 5

belonging to another

Answer 5

Mackenzie v Maclean 1981 SLT (Sh Ct) 40
Significance: The prosecution didn’t have to prove who owned the goods, just that the accused didn’t own them.

Question 6

not yet owned

Answer 6

Valentine v Kennedy 1985 SCCR 89
Facts: Fish had been placed into an enclosure, and so they could be stolen.
Significance: You cannot steal property that is not yet owned.

Question 7

desired by someone

Answer 7

Kane v Friel 1997 JC 69
Facts: Two brothers were found carrying a sink and a holdall full of copper piping, and they explained that they had found the items, and were taking them off to a scrap yard so they could sell them.
Held: The prosecution hadn’t proven anything about where they were found, how much they were worth, etc. Nothing about these items that the prosecution had shown that signaled that they might be desired by someone.

Question 8

without consent

Answer 8

Macleod v Kerr and Another 1965 SC 253
Facts: Mr Galloway bought a car from Kerr using a bad cheque. The cheque bounced and didn’t transfer the funds. Galloway had already gone on to sell this to Gibson who was in good faith. Even though Kerr had been induced to pass the car over to Galloway on the basis of false representation, in the eyes of the law this constituted voluntary transfer of ownership, and so the contract was valid.
This meant that the transfer of ownership was valid, and Galloway could not have been guilty of theft. He could have been guilty of fraud, perhaps, but not theft.

Question 9

intention to deprive temporarily

Answer 9

Milne v Tudhope 1981 SLT (Notes) 42
Facts: The onwer of a cottage was unhappy with repairs that had been carried out by builders, and asked them to carry out amendments free of charge. Instead of doing this, the builders removed boilers, doors, etc from the property, and was holding them ransome until the owner paid for repairs.
Legal issue: Convicted of theft, however on appeal, the court considered that their intention was only to deprive the owner temporarily. Was this enough to convict him of theft?
Held: In some circumstances, if the taking is clandestine (ie secret) and if the purpose is nefarious (ie wicked) then the intention to deprive the owner of their property temporarily is enough.

Question 10

intention to deprive for an indefinite period

Answer 10

Fowler v O’Brien 1994 SCCR 112
Facts: Someone took a bike from someone else, without the owner’s consent. The owner eventually found it, but there was no attempt to return it to him, and no indication of when he would get it back.
Held: The intention to hold a person’s property for an indefinite period (ie no clear end) was sufficient for the mens rea of theft.

Question 11

dishonest intention

Answer 11

Lauder v HM Adv 2016 SCL 459)
Facts: An employee of a clothing manufacturer had been taking items from the company for a number of years, and selling them on eBay, making a lot of money from them.
Legal issue: The accused claimed that this was just a perk of the job, and that the majority shareholders knew that he was doing it. It was kind of like an overtime payment, he said.
Held: At the trial, the sheriff did not direct the jury that there was a dishonesty requirement, only mentioning the intention to deprive property. The accused appealed, saying that the sheriff should have directed the jury in relation to dishonesty.
Significance: Part of the mens rea for theft is that the accused knew that they did not have the consent of the owner to take the property, or appropriate them.