Theft — SQE1 practice question

A man returns to where he parked to find that his van has been towed away and taken to a compound run by a private company, which releases vehicles only on payment of a £250 fee. He accepts that the towing was lawful. That night he climbs the compound fence, finds the keys hanging in the unlocked office and drives the van out, leaving no payment and no note. Charged with theft of the van, he answers that a man cannot steal what already belongs to him.

On what basis, if any, can the van be property belonging to another?

Option A. Correct answer. The compound had possession and control of the van, and that is enough in itself.Correct
Option B. Incorrect answer. The compound had become the legal owner of the van at the moment it was towed away.
Option C. Incorrect answer. The van belonged to another only from the point at which the release fee fell due.
Option D. Incorrect answer. It cannot: a person is incapable in law of stealing property which he himself owns.
Option E. Incorrect answer. The van belonged to another only if the compound held an enforceable lien over it.

Why

The correct answer is A. Section 5(1) Theft Act 1968 provides that property is to be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest. Possession or control is enough on its own, so property can belong to someone other than its owner — and, as R v Turner (No 2) [1971] decides, an owner can steal his own property from the person in possession of it. In Turner the defendant took his car from a garage without paying for the repairs; the car belonged to the garage because the garage had possession and control. The compound is in exactly that position.

B is incorrect because towing a vehicle transfers no ownership; the section works precisely because it does not depend on ownership. C is incorrect because possession and control existed from the moment the van arrived, whatever the position on the fee. D is incorrect because it states the argument the section is designed to defeat, and it would leave every bailee without protection. E is incorrect because no lien is needed. The jury in Turner were directed to disregard any question of lien, so bare possession sufficed — although this is the aspect of the decision that has attracted most criticism.