It sounds like a law school question – If you find a banknote on the floor and decide to keep it, are you guilty of theft?
On 28th February 2017 we had our answer. Yes, at least on the facts of that case. But the questions is why?
Nicole Bailey, a 23 year old woman of good character, was in her local newsagent when she found a £20 note on a display unit. It seems that there were no customers around, but despite there being a shopkeeper she could have given it to, she decided to keep it.
The loser had been to a cash point for coming into the shop. After he had left, he realised that he had lost a twenty. He went back to look for it, but couldn’t find it. By that time, Ms Bailey had left.
He asked staff who checked the CCTV and saw Ms Bailey bend down and pick it up. Recognising Ms Bailey as a regular customer, they gave her name to the police who invited her in for a chat.
She initially denied taking the note, but when shown the CCTV accepted that she had (it seems that this was in the police station).
Ms Bailey was charged and pleaded guilty at Court. She was conditionally discharged for six months and ordered to pay £20 compensation, £135 costs and a £20 victim surcharge.
Why is she guilty?
Theft is defined as the dishonest appropriation (taking) of property belonging to another with the intention of permanently depriving the owner oof it (keeping it) – s1(1) Theft Act 1968.
The significance of ‘belonging to another’ is not just that you can’t steal your own property, but you can’t steal property that belongs to nobody.
With some things (a newspaper left on a tube for example) it would be reasonable to think that the original owner had abandoned it, and so it would not belong to anyone. Here, the note clearly belonged to another, and it is unlikely that anyone would deliberately throw away twenty quid.
On that basis, the offence would appear to be made out, subject to the question of dishonesty. Was Ms Bailey being dishonest?
There is a specific defence of belief in abandonment. By virtue of s2(1)(c), someone’s action are deemed not to be dishonest “if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps“.
How does that work here? Certainly with a note that was found outside it would be hard to see what steps could be taken to find the owner (unless they are standing right next to it).
It’s a bit of a greyer area in a shop. It must presumably have been a customers, but if there is nobody in the shop, then how are you going to find out who’s it is?
Maybe on the basis that most shops have CCTV nowadays, you could ask the shopkeeper. That’s obviously the morally correct thing to do, although I suspect many people would do what Ms Bailey did and just take the money and run.
According to the Stoke Sentinel, Ms Bailey’s lawyer said “She didn’t know who the money belonged to. People don’t realise picking up something you have found amounts to a theft. She has been quite naïve in doing so“.
But, by pleading guilty, Ms Bailey has shown a fair degree of honesty with this. She could have argued that she fell within this exception, and had a trial, but obviously decided not to. Looking at the reactions of the readers of the Stoke Sentinel, she would have had a fair run with a jury trial.
Even then, there is a wider question of whether what Ms Bailey did was dishonest. The test applied is called the Ghosh test.
This comes from the case of R v Ghosh  EWCA Crim 2. It decided that the test of dishonesty was both subjective and objective.
To decide if someone is dishonest, “a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails“.
Only then does a jury ask “whether the defendant himself must have realised that what he was doing was by those standards dishonest“.
As Ms Bailey pleaded guilty, she must have decided that a jury would conclude that what she did was dishonest, and she realised that that was the case.
Again, many people would have run a trial on this I suspect, not least because there was a fair chance of a Crown Court Judge expressing an extreme amount of displeasure at spending thousands of pounds and several court days on a case such as this. But it seems that Ms Bailey was, at least, an honest thief.
Should she have been cautioned?
The defence at Court were arguing that the care should not have come to Court, but should have been dealt with by a police caution.
It is clearly not a very serious offence, and would be eminently suitable for a caution. This generally requires an admission at the police station.
If it were the case that Ms Bailey did not see the CCTV until Court, and therefore didn’t accept taking it, then this would explain why she was not cautioned. If not, then it is hard to see why she wasn’t given a caution.
Ironically, had Ms Bailey stolen £20 worth of goods from the shop, then it may be that she would have been dealt with by a Fixed Penalty Notice – not a conviction, but a formal record of this happening. Despite most people thinking that shoplifting is more serious than what happened here, a FPN is (probably) not available for this crime.