In previous blogs we have looked at getting a good grasp of topical legal issues and analysing cases, however one of the most crucial skills for a law student is the ability to dissect and answer legal problem questions. It is a skill assessed throughout your degree and most likely will be assessed during interview. It is also something that will come up again and again in your LNAT and Cambridge Law Test.
The key to answering a problem question well is good structure and precise referencing to the statute with which you will have been provided. Also try to start at the most basic point and work up. This should ensure that you don’t miss anything.
Things to remember:
Practice makes perfect – so let’s do one together.
I have chosen a very simple one to get us started – but don’t worry – they do get more complicated!
David is 30 years old, and the single parent of two small children, and has recently been made redundant. He is worried that his benefits payment won’t be come through for a few more weeks, and has already used up his savings. He has no previous convictions for any offence. He decides to shoplift £50 worth of food and clothing from his local Tesco for his children, hoping that he will be able to leave a £50 note at Tesco to compensate in a few weeks once his benefits payment comes through. He is caught on CCTV and arrested.
Is David guilty of theft?
Theft Act 1968 section 1:
(1)A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.
(2)It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit.
(1) A person’s appropriation of property belonging to another is not to be regarded as dishonest—
(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or
(b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or
(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
(2) A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.
(1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.
(2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.
(1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
(2) Without prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other’s authority) amounts to treating the property as his own to dispose of regardless of the other’s rights.
For David to be guilty of theft he has to satisfy the definition of theft in S1 of the Theft Act 1968. This consists of 5 components.
4) Belonging to another
5) With the intention of permanently depriving.
In this instance it is clear that David has dishonestly appropriated the property.
He does not believe himself to have in law a right to the property (S2. A) – he knows that he should pay the £50 for the food and clothing and that he does not have the right to take it from Tesco.
He also does not have the belief that Tesco would have consented to him taking the food and clothing – otherwise he probably would have asked for their permission. He therefore does not satisfy the exception in S2(b).
He has not come across property which doesn’t have an owner – clearly the property does belong to Tesco and therefore does not satisfy S2(c).
Even though David is willing to pay for the property at a later date once his benefit payments come through – this still does not stop his conduct from being dishonest – as outlined in S2(d). At the time of taking the property from Tesco he intends to take it without paying. Even though his benefit payments are coming in the future – plenty of things may happen before then (his payments could get stopped) and it is therefore not a certainty that he is able to pay.
Finally, as stated in S1(2) it does not matter that he has taken the property not for his gain but for his two small children. Appropriating property is still dishonest, even if the thief himself does not desire to use the property himself.
It is clear that David has appropriated the property.
As stated in S3(1) he has assumed the rights of an owner- on the facts of the question by taking the property outside of the shop and in all likelihood the food being consumed by his children and the clothes being worn – he has acted like the owner.
S3(2) does not apply in this instance because no property has been transferred to David in good faith. He has not received the property from someone without realising it was stolen.
In this instance there is clear property. The £50 pounds worth of food and clothing from Tesco.
This is satisfied as the property clearly belongs to Tesco.
David has clearly taken the property with the intention of permanently depriving it.
He has not intended to return the property. The food and clothes were selected for consumption and use.
Due to the fact that David has satisfied the 5 conditions of S1 of the Theft Act 1968, he is guilty of theft. Although this may seem quite ‘strict’ in the sense that he was only trying to feed his family as a single parent- it is likely that since he has no previous convictions – he would receive a conditional discharge or Community Sentence.
David would not have been found guilty if he had only come into borrow a coat since it was raining outside and he wished to shelter his daughter. He could have returned the coat in the same condition and therefore would not have satisfied the 5th requirement concerning the intention of permanently depriving Tesco.