Analyzing Theft and Making Off Without Payment

Two alleged offenses in the scenario are theft and making off without payment. The law relevant in this case is Theft Act 1968 and Theft Act 1978.

A person is guilty of offence of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property. In order to find Archibold guilty of theft, actus reus and mens rea must be established. Mens rea comprises dishonesty and permanently depriving the other of property. Actus reus comprises appropriation, of property, and property belonging to other. These five elements must be proved theft. If you are studying criminology and require assistance with your dissertation, then you can consider seeking expert criminology dissertation help so that you can ensure that your work meets academic standards and addresses all the complex theoretical frameworks effectively.

Property includes ‘money and all other property, real or personal, including things in action and other intangible property’. Appropriation occurs when a person assumes rights of the owner, which may include when he has, innocently or not, come by the property without stealing the property and when he assumes a right to the property later by keeping or dealing with it as the owner. Appropriation occurs even if the act was consented to or authorised, or if a person does anything to other’s property.

For theft, the property must belong to another at the time of appropriation. The word ‘belong’ means rights of ownership and other interests. This is supported by Turner. In this case, D gave his car to a garage for repair. D dishonestly removes the car from the garage without paying. This amounts to theft. It must be established that D acted dishonestly, irrespective of D’s belief that D had a claim of right to the car, which had no legal basis. The term “belonging” also means possession, having control, or proprietary rights or interests. The owner has control of any property on her land even if she does not know the property is there. This is supported by the case of Woodman.

In the current care, the property in question is Archibald’s car. The car being parked at the forecourt of the garage established that the property in the car still belongs to Ronald. Ronald has the possession and the control and interests in the care. Archibald assumed rights of Ronald when he took away the car. He does not have any legal basis for any claim of right to the car. Whether this appropriation leads to theft or not, the mens rea and actus reus elements have to be determined.

In order to find Archibold guilty of theft, it is necessary to establish Archibold was dishonest and intended to permanently deprive Ronald of the property. The appropriation will not be treated dishonest if he had the belief that he had legal right to do so. This usually involves a mistake of law. Archibald’s liability will depend on the presence or absence of actual belief. It will not be dishonest if Archibald appropriated the car in the belief that he would have Ronald’s consent if Ronald knew of the appropriation and the circumstances of it. According to Feely, whether an act is honest or dishonest will be determined by applying current standards of ordinary decent people. However, leaving these responsibilities on fact-finders might be arguably problematic. Common standards of honesty could be assumed to be in existence, and it seems problematic to expect the jury, who are from different background of age, class, culture, etc., or the magistrates to come to a consistent and just standard decision. Sometimes, the conduct may be considered reprehensible, or may be treated dishonest, or maybe views on honesty might differ.

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1. The Theft Act 1968, s1(1) .
2. Michael Allen, Textbook on Criminal Law (Oxford University Press 2013) 443.
3. Lawrence v Metropolitan Police Commissioner [1972] AC 626.
4. The Theft Act 1968, s4(1).
5. Ibid, s 3(1).
6. R v Gomez [1993] AC 442; Lawrence v MPC [1972] AC 626.
7. R v Hinks [2000] UKHL.
8. Michael Allen, Textbook on Criminal Law (Oxford University Press 2013) 449.
9. R v Turner (No 2) [1971] 1 WLR 901.
10. Ibid.
11. Ibid.
12. The Theft Act 1968, s5(1).
13. Michael Allen, Textbook on Criminal Law (Oxford University Press 2013) 451
14. R v Woodman [1974] QB 758.

However, the simple test in Feely manages to consider the variety of circumstance that might have arose to determine dishonesty, such as the period for which it is taken; D’s likelihood of payment, or the amount of money. In the current case, it has to be determined of whether Archibold had the belief that he had legal right to take away the car and that Ronald would have consented. Given the facts of the case, where he took away the car without even waiting for the response from the mechanic to his demand of a test drive and the fact that Ronald had to call him up for payment, it is highly plausible that there might be a dishonest appropriation of the car. Further, given that the contract was for him to pay Ronald on collection of the car, Archibold’s conduct does not show the existence of the belief that he had legal right to take the car.

The jury has to decide the defendant’s state of mind and determine whether that state of mind can be termed dishonest. Arguably, there are questions about whose standards the jury is to consider, whether that of the jury, the parties in the suit, or the State. This may open up problems about individual standards being developed or applied in relevant cases. The case of Ivey, removes the requirement of dishonesty. The subjective test is whether D genuinely held that belief. The objective question is whether the D was dishonest according to the standards of ordinary decent people. This is the area that the defense could argue the absence of dishonestly on the part of Archibald.

Archibold will be held to have intended to permanently deprive Ronald the car, it if he intended to treat the property as his own to dispose of regardless of Ronald’s rights. Also, he would be held treating the property as his own if he borrows or lends the property for a period and in available circumstances making his conduct equivalent to an outright taking or disposal. This is supported by the case of Velumyl. Section 2(2) stipulates that appropriation may be dishonest irrespective of the fact that the defendant is willing to pay for the property. This is supported by the case of Morris. In the current case, as per Section 3(1), it is shown earlier that Archibold assumed the right of Ronald when he took the car. The fact that he drove off the car and that Ronald had to call him for payment demonstrates that he intended to dispose of Ronald’s right. His conduct of taking the car for a test drive and the duration he kept the car to take it to the Toyota Company for inspection all conforms to a period and circumstances making his conduct equivalent to an outright taking or disposal.

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15. The Theft Act 1968, s2(1)(a).
16. Robinson [1977] Crim LR 173.
17. The Theft Act 1968, s2(1)(b).
18. Feely [1973] QB 530.
19. Michael Allen and Ian Edwards, Criminal Law (Oxford University Press 2019) 534.
20. Sinclair v Neighbour [1966] 2 QB 279.
21. Michael Allen and Ian Edwards, Criminal Law (Oxford University Press 2019) 534.
22. Ibid
23. Feely [1973] QB 530.
24. Russell Heaton and Claire de Than, Criminal Law (Oxford University Press 2011) 358.
25. Ivey v Genting Casinos [2017] UKSC 67.
26. Ibid

However, issue may arise in establishing intention to permanently to deprive the other of the property at the time D appropriated the property. Factors such as whether D abandoned it after appropriating or whether D disposed off the property will be relevant. Determining mens rea would have been easier if instead of using intention to steal (or in this matter intention to permanently deprive) language such as the state of mind, including the general intention to break the law, which prohibits the act in question. The element of mens rea was subjected to another criticism where it states that this doctrine has no place as a key element of crime. The crime is an act and not act plus intent.

Archibold will be liable for making off without payment if it is shown, according to Section 3(1), that he knew that he was required or expected to pay the amount due on the spot for any goods supplied to or service done for him, in this case the repair and service of the car at Ronald, and he dishonestly makes off without paying with the intent to avoid payment. Payment on the spot is also payment at the time the goods on which the work or the service is executed are collected. The actus reus requires D to make off from the spot without paying when it was expected or required. The mens rea requires her to have the knowledge that the payment is expected or required from her, to be dishonest, and to have the intent to avoid payment. In Brooks, it was held that “to make off” means “to depart”. The spot is the spot where payment is required. The court held that "dishonestly makes off" should be given the ordinary natural meaning. It is for the jury to relate those words to the facts of the case. In order to be liable for failure to pay as required or expected, the defendant should have the intent to permanently avoid payment of the amount due. The mens rea for section 3 includes D’s knowledge that payment on the spot is required or expected, and this must coincide in time with her making-off. In the current case, Archibold went to the garage, which is the garage, to pay his bill. This is as per the agreed terms with Ronald to collect the car on payment. This shows that he had the knowledge that the payment is expected or required from him. However, Archibald had no intention of having the car inspected and he did not pay the bill. This shows that his intent to permanently avoid payment of the amount due.

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27. The Theft Act 1968, s6(1).
28. Velumyl [1989] Crim LR 299.
29. Morris [1984] AC 320.
30. Mike Molan, Criminal Law 2014 and 2015 (Oxford University Press 2014) 137.
31. Mohamed Elewa Badar, The Concept of Mens Rea in International Criminal Law: The Case for a Unified Approach (Hart Publishing 2013) 28.
32. The Theft Act 1978, s3.
33. Nicola Monaghan, Criminal Law Directions (Oxford University Press 2020).
34. Brooks and Brooks [1983] Crim LR 188.
35. Ibid.
36. 1985
37. Jonathan Herring, Criminal Law (Palgrave Macmillan 2011) 229.

In the current case, the only area that the prosecution may find it challenging is to establish the objective question is whether Archibald was dishonest according to the standards of ordinary decent people. The defense may argue that the jury might develop their own individual standard to conform to the “standards of ordinary decent people” However, what would favour the prosecution is the duration that Archibald had the car, the circumstance in which he was holding the car, his intention not to take it for inspection and non-payment of bill.

Take a deeper dive into Analyzing Criminal Liability with our additional resources.

Legislation

The Theft Act 1968

The Theft Act 1978

Cases

Brooks and Brooks [1983] Crim LR 188.

Feely [1973] QB 530.

Ivey v Genting Casinos [2017] UKSC 67

Lawrence v Metropolitan Police Commissioner [1972] AC 626

Morris [1984] AC 320.

R v Allen [1985] AC 1029 (HL).

R v Gomez [1993] AC 442; Lawrence v MPC [1972] AC 626

R v Hinks [2000] UKHL.

R v Turner (No 2) [1971] 1 WLR 901.

R v Woodman [1974] QB 758.

Robinson [1977] Crim LR 173.

Sinclair v Neighbour [1966] 2 QB 279.

Velumyl [1989] Crim LR 299.

Books

Allen M, Textbook on Criminal Law (Oxford University Press 2013)

Badar ME, The Concept of Mens Rea in International Criminal Law: The Case for a Unified Approach (Hart Publishing 2013)

Heaton R and Claire de Than, Criminal Law (Oxford University Press 2011)

Herring J, Criminal Law (Palgrave Macmillan 2011)

Molan M, Criminal Law 2014 and 2015 (Oxford University Press 2014)

Monaghan N, Criminal Law Directions (Oxford University Press 2020)