Property received on behalf of another
Section 5(3) provides:
‘Where a person receives property from or on account of
another and is under an obligation to the other to retain
and deal with that property or its proceeds in a particu-
lar way, the property or proceeds shall be regarded (as
against him) as belonging to the other.’
Examples under s 5(3) most commonly involve re-
ceiving money from others to retain and use in a certain
way, e.g. travel agents taking deposits for holidays, solici-
tors holding funds for mortgages, or managers of pen-
sion funds collecting pension contributions. However,
it is essential that a particular obligation be imposed and
this obligation must have been known to the accused.
The following cases provide contrasting examples.
The provision applies only where the ownership of
the property has passed to the defendant so that it will
not apply in a contractual mistake as to identity where
the contract is void and no ownership passes (see fur-
ther, Chapter 7 ). An illustration is provided by the
following case.Part 3Business transactions
370
Davidgev Bunnett(1984)The defendant had been given money by her flatmates
through the medium of cheques in order that the
proceeds would be used to pay gas bills. She spent the
proceeds on other things and was found guilty of theft.
A specific obligation had been imposed on her as to the
use of the money.Rv Hall (1972)The defendant was a travel agent who had received
money from clients and did not arrange trips and could
not repay the money. He was not guilty of theft since the
money was handed over as part of a contractual obliga-
tion and not specifically for use in a particular way.
Comment. The decision seems to be rather a technical
one. Perhaps the court should have construed a con-
structive trust in the agent to use the money for holiday
purposes. However, although the law often construes
such a trust in order to allow recovery of property at civil
law, it has never been prepared to do so for the pur-
poses of criminal liability.Receiving property under a mistake
Section 5(4) provides:
‘Where a person gets property by another’s mistake and
is under an obligation to make restoration (in whole or
in part) of the property or its proceeds or of the value
thereof then as to the extent of that obligation the prop-
erty or proceeds shall be regarded (as against him) as
belonging to the person entitled to restoration...’A-G’s Reference (No 1 of 1983) (1984)A woman police constable was paid a sum of £74.74
by crediting her bank account. It was said to be a pay-
ment for overtime which she had not, in fact, worked.
She realised she had been overpaid but did nothing. The
Court of Appeal decided that there had been an appro-
priation and that the necessary ingredients for theft were
present.The obligation to make restoration is a legal one so
that where a betting shop paid out winnings against the
wrong horse, there was no recovery of it by the book-
maker in civil law, and the recipient was not under an
obligation to return it in terms of the Theft Act 1968 and
had committed no offence by retaining it (see Rv Gilks
(1972) and Chapter 7 ).Mens rea
The mens reaof theft has two branches:
■dishonesty; and
■an intention permanently to deprive another of his
property.
Dishonesty
Section 2(1) sets out situations in which as a matter of
law an individual is not dishonest. They are:
■where the defendant believes he has a legal right to
deprive the owner of the property;
■where the defendant believes that the victim would
have consented if the victim had known of the
circumstances;
■where the defendant finds property when the owner
cannot be found by taking reasonable steps.
Examples are to be found in Rv Wootton(1990)
where the defendant took some of his employer’s
pottery in lieu of wages due. Further, in Rv Flynn(1970)
a cinema manager took £6 as an advance on his wages
in the belief that his employer would have consented.
It should be noted that as regards finding, there may be
an appropriation for the purposes of theft if the finder