AQA Law 2007 Problem Question - Graham (Part (b))

Graham found a bank statement belonging to Harry, which told him that Harry had £1500 in his account.  Graham “appropriated” the information that belonged to Harry when he read the bank statement.  However, since information does not amount to property (Oxford v Moss), Graham could not be charged with the theft of the information.  If he found the bank statement and took it away with him, he could be convicted with the theft of the paper itself if the jury was satisfied that he had the necessary mens rea, although this is de minimis and it is unlikely that he would be prosecuted in practice.

When Graham picked up Harry’s debit card, there was an appropriation of property belonging to another; the card was re-appropriated when Graham used it in the cash machine.  The card belongs to both Harry (the card holder who is in possession and control of it) and the bank, which has a “proprietary right or interest” in it.  However, after using the card to withdraw £500, Graham put the card back where he found it.  The “goodness and virtue” of the card itself remained unchanged, so he had no intention to permanently deprive (Lloyd and Others).

Graham could still be charged with the theft of the £500 from Harry’s account.  He used Harry’s credit card to withdraw the money from the cash machine; there was an appropriation of Harry’s bank account (a thing in action, which would amount to property) when he withdrew the money, as taking money out of an account is one of the rights of the owner.  Graham had an intention to permanently deprive Harry of the money, as he gave it to Earl; he has “treated it as his own to dispose of”.

However, Graham may be able to argue that he is not dishonest.  If he honestly believed that he was legally entitled to take the money, as Harry owed him £1000, or that Harry would have consented, Graham could have a defence under section 2(1)(a) or 2(1)(b).  If it was decided that neither of these applied, the jury would use the Ghosh test.  In Hinks, a woman befriended a man with severe learning difficulties and persuaded him to give her money.  She was charged with theft when she had acquired £60,000 and argued that the man consented, so she was not dishonest.  However, the jury convicted her, probably on the basis that her behaviour was “blameworthy”, and the man was unable to understand that she was taking advantage of him.  The jury may decide to convict Graham because even if he did honestly believe that he was entitled to the £500, he should not have attempted to guess his brother’s PIN, which was an “underhand” way of obtaining the money.

Graham gave a further £200 to Earl; this money was a present from Graham’s father for Graham’s son.  Under section 5(3), if a person receives property on account of another and he is under an obligation to deal with it in a particular way, the property is regarded as belonging to the other.  In this case, Graham’s father “earmarked” the money and specified that it was a present for Graham’s son, so Graham was under an obligation to deal with it in a particular way.  Graham received the money “on account of” (on behalf of) his son, so the money will be regarded as belonging to his son.

Graham appropriated the money when he picked it up; this would amount to property under section 4, and it belonged to Graham’s son under section 5(3), so Graham has the actus reus of theft.  He may have intended to permanently deprive his son of the money, as he gave it to Earl and treated it as his own to dispose of.  Under section 2, none of the three defences apply, so the Ghosh test would be used.  Graham gave away his son’s present; this would be dishonest by the standards of “reasonable and honest people”.  If the jury was satisfied that Graham knew this was the case, he could be convicted of the theft of the £200.