Theft of money received by mistake (Theft Act 1968, s.5(4))
Zainab Hassan's employer, a retailer in Nottingham, mistakenly pays her £1,800 more than her monthly salary by bank transfer. She notices the next day and knows it is a mistake that she should repay. She decides to keep the money and spends it on a holiday. The jury are sure that she was dishonest. She is charged with theft of the £1,800 credit balance.
Which of the following best describes whether the property 'belonged to another' for the purposes of theft?
Choose one answer to see the reasoning.
Worked answer
Correct answer E: It did, because she got the property by the employer's mistake and was obliged to restore it, so it is treated as belonging to the employer.
THE RULE TO REMEMBER
Property got by another's mistake, which the recipient is obliged to restore, is treated as belonging to the person entitled to restoration, and an intention not to restore counts as intention permanently to deprive.
Theft of money received by mistake (Theft Act 1968, s.5(4))
Section 5(4) of the Theft Act 1968 provides that where a person gets property by another's mistake and is under an obligation to make restoration of the property, its proceeds or its value, then to the extent of that obligation the property or proceeds are regarded, as against her, as belonging to the person entitled to restoration. An intention not to make restoration is treated as an intention to deprive that person of the property. Zainab received the extra £1,800 credit, which is a thing in action and so property, through her employer's mistake. She was legally obliged to repay it. To the extent of £1,800 the credit is therefore treated as belonging to the employer. Her decision to keep and spend it is an appropriation, her intention not to repay counts as intention permanently to deprive, and the jury are sure she was dishonest.
Why A is wrong: Section 5(4) treats property got by mistake as belonging to the person entitled to restoration, even though it is in D's own account.
Why B is wrong: Appropriation occurs when she assumes the owner's rights by deciding to keep and spend the money; s.5(4) supplies the 'belonging to another' element.
Why C is wrong: The obligation to restore is exactly what s.5(4) relies on to treat the property as the employer's.
Why D is wrong: Section 5(4) applies whenever property is got by another's mistake; no deception is required.
A little more practice done.
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A GOOD HABIT, DELIVERED
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