Notional theft

Dylan123

Hi there can someone explain to me the theory behind notional theft. (Stolen property)

Smith and Hogan give an example about 4 people and a stolen car and i cant get my head around it.
I always thought if you bought a stolen car and had no knowledge of it being stolen - that would be tough, you lose your money if caught. (no mens rea)?? if you swop a car that is stolen for another car and that owner knows its stolen...what then... and then if that car is sold for cash ...and the cash buyer doesnt know it was swopped with a stolen car

s 20(3) property ceases to be stolen after it has been restored to the person from whom it was stolen or to other lawful possession or custody.............

So what is deemed lawful possession?

dermot_sheehan

I think s. 20(3) provides for, among other things, the common law "market overt" defence.

If property is stolen, and I purchase it, I am guilty of the offence of handling if I knew or was reckless as to whether the property was stolen.

Furthermore I do not have good title to the property, and the true owner can sue me for detinue and get an order for possession it it.

If property is stolen, and put on certain markets between sunrise and sunset, title to it could not be questioned.

http://en.wikipedia.org/wiki/March%C3%A9_ouvert

The rule was an ancient medieval rule to allow markets to function, they could not function if title to the property being sold could be questioned. In such a situation the owners right to restitution would terminate and s. 20(3) would kick in to make it no longer stolen property.

Dylan123

Thanks for your detailed response.
It makes sense now... except in this scenario:

- I buy product x form a market between sunrise and sunset
- I am not reckless as to it being dodgey (pay a good second hand price)
- The real owner sees me in possession of it
- The seller has vanished (he left the market)

There are now two parties present as the third party (the seller has gone). First is the purchaser of stolen good and next is the one who had goods stolen... seems like catch 22 here what happens?

Does the law/ Judge
- Return stolen property to original owner (purchaser loses money)
- Allow purchaser to keep stolen good (but original owner loses out)

Why would the law favor the purchaser opposed to the original owner under s 20(3)? Would it be the same reason as Duress cant be used for Murder.... because if your unlucky enough to be the 1st party in the situation... u must take it on the chin???

dermot_sheehan

Law would favour the purchaser,

it's an ancient rule that harms the victim of the crime in the interests of certainty in ownership of property

Reloc8

Section 20 of the 2001 Act has no application in respect of who is entitled to the property. All it does is qualify when something is considered to be stolen and when it is not.

Basically once the condition in S. 20(3) is met, the property is no longer stolen and you couldn't be convicted for being in actual possession of them or for handling them at that point in time (even if for instance you in fact believed that they were stolen goods, they are as a matter of legal fact not stolen goods).

A Bona Fide purchaser (often called a BFP) who has made all proper enquiries will frequently have a defence to a claim by the former beneficial owner of the property. He/She can not come within the parameter's of 'Equity's Darling' however unless he/she has no notice, actual or constructive, of the seller's dodgy title to the property. In other words, you can't turn a blind eye to something which you should have checked out (title to land, car registration papers, purchase price being far less than value, circumstances of the sale generally etc.). If you read up on Equity's Darling you should find the applicable law (Doctrine of Tracing will also be relevant).

Finally just to note the Sale of Goods Act 1893 implies a condition that a seller of goods has title to sell, leaving a person who loses out against a claim by the former beneficial owner with an action in damages against the seller. If you check out the Sale of Goods Act 1893 Section 21 states that where goods are sold by a person who is not the owner the buyer acquires no better title than the seller has unless the owner is precluded by his conduct from denying the sellers right to sell (perhaps the owner gave implied authority to the seller to sell or something).

'Market Overt' referred to by Gawain is in fact provided for by Section 22 of the Sale of Goods Act 1893 which provides that where goods are sold in market overt according to the useage of the market the buyer acquires good title provided he buys with good faith and without notice of a defect in or want of title.

Section 24 of the Sale of Goods Act 1893 provides that where goods are stolen 'and the offender convicted' the property revests in the owner notwithstanding any intermediate dealings whether by market overt or otherwise. Section 24(2) provides however that where goods are obtained by fraud or other wrongful means falling short of larceny the property does not revest in the owner. Your hypothetical depends therefore on whether the property was stolen and any person is convicted of stealing them. If not then Section 22 applies in the buyer's favour.

Again, the Criminal Justice Act 2001 Act is applicable only to the question of guilt or innocence in criminal terms of the person dealing with the property, not to the question of whether the law will restore property which has been stolen to the person from whom it has been stolen.

edit : I am just a little unsure on whether the 1893 Act has been repealed/substituted but there's a starting point for you.