Criminal Law - Theft
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- เผยแพร่เมื่อ 9 ก.ค. 2016
- A video for UK law students studying theft.
Theft is defined under s. 1(1) of the Theft Act 1968 as "dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it" and contains five key elements: dishonesty, appropriation, property, belonging to another and intention to permanently deprive.
This lecture looks at all five elements by splitting them up into the actus reus and the mens rea of the crime.
Appropriation means taking and this only needs to be a right; not all of the rights associated with property (Morris [1984]). Appropriation can even take place with consent or with title to the property since Gomez [1993] supported in Hinks [2000]. This is controversial and arguably diminishes the importance of the actus reus in theft.
Theft is also a finite act per Atakpu [1994] so a person can only be convicted on appropriation. However it will not be theft when the defendant is a bona fide purchaser.
Property is defined broadly and can include things in action (Kohn [1979]) and other intangible property (A-G of Hong Kong v Chan Nai-Keung [1987])
Belonging to another is normally obvious to see in a theft case but there are some unusual cases (Marshall [1998] and Turner (No. 2) [1971]) including where property is received for a particular purpose and where property is received by mistake (A-G’s Reference (No. 1 of 1983) [1985]).
Dishonesty is defined in s. 2 but the main test comes from Ivey v Genting Casinos [2017] UKSC 67 and students should see the podcast episode on that subject.
Finally intention to permanently deprive also has been given a broad interpretation by the courts to include a range of scenarios including ransom (Hall [1849]), property in a different form, (Richards [1844]) and pawning (Phetheon [1840]). Section 6(1) also deals with situations where property is taken “for a period…making it equivalent to outright taking”.
Hey guys!
Given that visitors to this video will likely be law students or those with enough of an interest in English law to warrant this comment being worthwhile, I want to take a moment to make something clear about one element of law on theft, in light of recent developments. This element is dishonesty.
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As Marcus notes, dishonesty is key to the offence of theft. For the last 25 years, if juries have needed help from the judge in defining 'dishonest' conduct in criminal trials, they will have been given the Ghosh direction. Forgive me for repeating this right below the video, but I want to be clear, for reasons that will become apparent.
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The Ghosh test has two elements;
1. Was defendant (D)'s conduct dishonest by the standards of reasonable, honest people?
2. Did D subjectively realise that reasonable, honest people would view his conduct as dishonest?
If both of these elements are answered in the affirmative, then it can be said that D's conduct was 'dishonest'.
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As I mentioned, the law in this area has recently come under scrutiny, and it is this scrutiny that I want to try and clarify. In 2017, the case of 'Ivey v Genting Casinos' was heard by the Supreme Court ([2017] UKSC 67). In this case, the criminal definition of theft was discussed at length by the justices, despite the fact that the case concerned matters of civil law. Yet, the second leg of the Ghosh test (.2, in my account above) was criticised at extreme length. In fact, 1/3 of the entire judgment can be attributed to Lord Hughes' criticism of that second leg!
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My concern arises from the fact that I have been researching this area recently, and have come across many comments online which state that the common law definition of 'dishonest' conduct has been changed by 'Ivey'. I must emphasise that this is not the case.
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True, the comments in 'Ivey' (which, to my mind, are pleasingly cogent and deliciously rational) strongly suggest that the second leg of the Ghosh test ought to be discarded. Yet, as Marcus states in his recent, brilliant video on 'Ivey', the main point to come from the case is that we now have a common law definition of 'cheating'. This definition forms the 'ratio decidendi', and is the element that will bind lower courts, because it is central to how the Justices reached their decision. In contrast, Lord Hughes' comments on the criminal definition of dishonesty are 'obiter dicta', as they are did not directly influence how the Justices reached their decision. As such, comments on the criminal definition of 'dishonesty' are not binding on inferior courts.
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Indeed, the comments will likely prove to be highly persuasive precedent, due to their extensive criticism of the test, but presently it would be incorrect to state that the common law definition of dishonesty has changed. For the common law definition to change, we would need the Court of Appeal (which is where Ghosh was heard), or the Supreme Court, to directly rule on dishonesty, in a way that fundamentally changes the outcome of the case. Until that stage, the entire Ghosh test remains valid, however criticised it may be.
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Thanks for your time folks!
J x
Anther update, the case law has recently been changed even further, in the case of R v Barton and Booth. Look it up. Recently, they have agreed that there is no logical or principled basis to have different definitions of dishonesty in civil and criminal proceedings. Meaning, the Ghosh test no longer applies.
Thank you so much
@@zallandkasi7366 any sources for this just doing an assignment now 🙈
Wow! This guy is a genius. Clearly explained. Well done 👍 Keep up the good work.
Hi Marcus,
Thank you for the shout out and for such a fantastic breakdown of theft and also being considerate of both essay and problem type questions. Thank you also for listening to my request. BIG CHEERS! 🤗
Thank you! I’m a first year A level law student, and this was SUPER helpful. Definitely got a new subscriber!
2nd year in a row you've saved me 😂👍🏻 thank you
Wow thank you so much Marcus!! I really needed this help! God bless Xx
Again, Marcus, thank you for such an amazing video! Life saver!
Thank you for taking the time to comment!
Another awesome video! You help me understand the topics so much better! Could you do a video on the different types of dispute resolutions? Thank you...
Couldn't find the pattni case you spoke of, but the Ghosh test was pretty decisively deconstructed in Ivey v Genting Casinos [2017] and applied to theft by DPP v Patterson barely a week later. The new standard isn't obvious to a first year law student beyond "objective"
Do you need AR and MR (together) in order for someone to be found guilty? and how many elements for each? Thank you!
Does anyone know of a case one could use to talk about relating to a lost and found item? The scenario is that D found a wallet with some money inside of it, opened the wallet, took the money out of the wallet, and placed the wallet back where the wallet was found (the shop floor). I haven't been able to find a relevant case just yet. I can prove the theft purporting to the money but I am struggling to find a case for the appropriation of the wallet (as he couldn't be charged for theft of the wallet). Thank you!
Hi, on the last point s. 6(1) the manager or whoever was still convicted of theft even though he returned the money on the Monday morning. You added a reasoning to this as a used ticket, which is completely different. The ticket would have expired rendering it useless, however the money, unless it became obsolete over the week end, would still have been valid. Unless serial numbers were taken on the Friday and checked on the Monday, how can it be theft?
Hey Marcus - Top job with the delivery of the information. If you find the time can you post a vid on 'facts and facts in issue'?
i am watching this vedio in 2020 and still advance then what my teachers taught me
Amazing lecture keep it up 👍
Hi Marcus have you done a lecture for OAPA 1861 things like assault, assault and battery, bodily harm, grevious bodily harm, grevious bodily harm with intent, manslaughter, 2nd degree murder, murder, cheers
this was helpul. Thankyou so much
Thank you for placing notes to the bottom of your video. I was trying to type as you speak but later realized it was all there. thank you very much. I have exams tomorrow and I am trying to cram. (not good, i know)
My neighbour has permanently deprived me of my online purchases, by pawning to items to a pawnshop, can I ask for compensation or tell them they are going to jail for 6 years.
Hi Marcus. Could you please explain how exactly the Ivey case has changed the application of the Ghosh test? Am I correct in that only the first limb is now applied?
Thank you for all of your videos. You are a godsend for us law students! :)
Helen
+satsumalover You are exactly right. The subjective element is no longer applicable. The quote from Ivey is: "There is no requirement that the defendant must appreciate that what he has done is, by those [objective] standards, dishonest."
marcuscleaver many thanks!!
thank you sir for your hard work means a lot
Fantastic work, thank you!
Perhaps consider changing the test from Ghosh to Ivey?
Good point. In the meantime I have just changed the description and added a promotion of Ivey v Genting when Ghsoh comes up. Hopefully people will also see these pinned comments!!
Thanks so much
Hi! will you do a video on murder? ) your channel is saving my life!
+Hannie Lui oh man I really ought to.
What about the Ivey test?
This video was made before the test for dishonesty in Ivey was confirmed as the proper law in Booth (2020).
Thanks marc
Excellent stuff bro
please make more videos
Hi, may i know about the Phetheon case concerning the pawning? Couldn't find the case online :(
+Viv xx The citation is (1840) 9 C & P 552. You might struggle if you don't have access to WestLaw etc
Oh okay accessed it already, thank you!
Thanks!
Hi!! Can you also breakdown Fraud and Burglary please? :)
+Sunnie Fraud would be cool. Definitely want to do more criminal!
You're amazing! You explain everything a million times better than our lecturers!! They complicate everything, all I do is log on here and let you explain it in your way and I actually understand it!! Criminal law is my hardest subject at the moment (don't worry I will have more hideous subjects to come next year :) ) you have just helped me so much by making this video!! I was going to choose the topics of murder, fraud and burglary. I might swap burglary for theft as I need to get revising fast. Well done keep up the good work :)
Can you do a video on sexual offences
hi Marcus. was wondering if you had any more criticisms or good cases to look at regarding the human rights point/ ghosh?
also was hoping you could do some more commercial law explanations in the future
p.s .... as always great vids man -, very informative and well structured. keep it up
+The Man There aren't many other cases apart from Pattni [2001] but there a couple of Law Commission reports you could look at. One in 1999 said Ghosh was incompatible with Art 7 but they changed their mind in a separate report in 2002.
Thanks for the reply... any chance you could tell me what happened in Pattni, can not find any reports or judgement on the web or the text book i have.
it only feels right that in the first criminal video you are wearing a spurs top
Marcus, the test for dishonesty is now the case of Ivey
its actually now Barton and Booth v R (2020) I believe, I could be wrong however? could someone shed some light?
@@bethanielong6644 Yes you are correct, Booth and Barton confirmed the test in Ivey is the right test to apply.
Yido!
wow
Thank you Sir
Learned a lot from your vids, but lost all respect for you soon as i seen the tottenham shirt lol
+Si S hahaha! Come on you Spurs 😁
hi ningg:)))))
Hi could you do burglary and Public order section 5 4a 4 and 3 please mate
+Oltian Fetahi Yeah can have a look! :)
London Is BLUE !!