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Theft

Previous: Mens rea

In 1968, the law of theft and its related offences was overhauled by the Theft Act 1968. Section 1 contains the basic offence of theft, followed by sections defining elements of that offence. Other offences are then added, using some of the same elements: making off (s 3), robbery (s 8), burglary (s 9) and blackmail (s 21). The offence of fraud is dealt with separately in the sections 1-4 of Fraud Act 2006, as is the offence of obtaining services under s 11 of the 2006 Act. collectively, the offences in this paragraph account for about half of all recorded crime.

Theft

Section 1(1) of the Theft Act 1968 provides:

“A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.”

Under s 1(2), a view to gain is irrelevant.

  • Actus reus: appropriation (s 3) + property (s 4) + belonging to another (s 5)
  • Mens rea: dishonesty (s 2) + intention to permanently deprive (s 6)

According to Gomez [1993], ‘appropriation’ has no mens rea element.

The maximum penalty for a theft conviction is 7 years imprisonment (6 months if tried as a summary offence in the Magistrates’ Court).

Appropriation (s 3)

According to section 3(1), Appropriation is “any assumption…of the rights of an owner…and…any later assumption of a right”. Section 3(2) protects bona fide purchasers from being convicted of theft. R v Briggs [2004] suggests that appropriation is an ‘active’ act, but this has been doubted. There are 3 problems with the above definition of appropriation:

Assumption of what right(s)?

  • R v Morris [1984] – only 1 right was interfered with when labels were swapped on items in a supermarket to make them cheaper. S 3 distinguishes between ‘rights’ and ‘right’. This case found that infringing 1 right was enough to amount to an appropriation, even before the item was (invalidly) paid for
  • Eddy v Niman [1981] – placing items in a supermarket trolley, intended to steal them, then abandoning the trolley (with goods) inside the supermarket was not an appropriation, as no act had been carried out which was inconsistent with the owner of the rights of the supermarket
  • R v Atakpu [1994] – hire cars hired in Germany were driven to England to be sold. They were stolen in Germany and so could not be re-stolen when further rights were appropriated in England
  • R v Gomez [1993] – agreed with the ‘1 right’ deprivation theory, which (opinion) will often seem far short of ‘stealing’ where common sense is applied

Does consent negate appropriation? (no)

  • Lawrence v MPC [1972] – found consent to be irrelevant to appropriation where a taxi driver took too much money out of the wallet of an Italian student who permitted the taxi driver to extract the correct fare from the wallet
  • R v Morris [1984] – Lord Roskill thought it difficult to distinguish between label-swappers and honest customers on the basis of consent
  • R v Gomez [1993] – A cheque was received with consent in return for the handing over of goods. The cheque bounced. It was said that consent is irrelevant to appropriation (Lord Lowry strongly dissented on the basis that ‘treat as own’ suggests consent relevant). It is now the case that any transfer of property is an appropriation.

A criminal transfer valid in civil law

  • R v Hinks [2001] – valid (consensual) gifts (in civil law) were made by a victim to Hinks, totalling £60,000. As this constituted an appropriation, Hinks could still be convicted of theft. Lord Hobhouse suggested that dishonesty would be a better test, but that dishonesty is also not well defined
  • Simester and Sullivan suggest that R v Hinks [2001] deviates from the purpose of criminal law – to protect property rights

JC Smith summarises that an appropriation will be found wherever anyone does anything to the property of another, with or without consent. Shute is equally critical of the definition of appropriation, suggesting that the actus reus of theft has now been eroded to a vanishing point.

Property (s 4)

Property is given a very broad definition, as “money and all other property, real or personal, including things in action and other intangible property.”

  • R v Smith [2011] – illegally possessed items can be stolen (unlike in civil law where ownership is required)
  • R v Kohn (1979) – an accountant could only steal money within his company’s overdraft limit; beyond this limit, money could not be classed as company property
  • Low v Blease [1975] – electricity is not property – use the separate offence of ‘abstracting electricity’
  • Oxford v Moss (1978) – confidential information is not property. Engineering student took exam paper
  • Kelly v Lindsay [1999] – Corpses are not property unless they have been ‘worked on’ forensically
  • Yearworth v North Bristol NHS Trust [2009] – the application of skill can turn a non-property item into property (unlike civil law)

There are a few statutory exceptions under section 4 of the Theft Act 1968 which prevent certain types of property being stolen:

  • s 4(2) – land (real property) cannot be stolen, unless part of land is severed
  • s 4(3) – wild mushrooms, flowers or fruit foliage picked for non-commercial purposes cannot be stolen
  • s 4(4) – wild creatures cannot be stolen unless reduced into possession or in the process of being reduced into possession

Belonging to another (s 5)

Property will be classed as belonging to another if another person has possession, control or a proprietary interest in that property. The person’s identity is irrelevant.

  • R v Walker [1984] – Walker sold a faulty video recorder to V, who returned it. When Walker sold it again, he was not guilty of theft as V had rescinded the original contract
  • Williams v Phillips (1957) – refuse collectors can steal property from bins, as it belongs to the refuse management organisation
  • R v Toleikis [2013] – clothes left in clothes aid bags belong to, and can be stolen from, clothes aid
  • R v Sullivan [2002] – this case found that money found on dead drug dealer could not be stolen. Opinion: this case is wrong, as the money belonged to the Crown
  • R v Woodman [1974] – taking metal left by a buyer of all of the metal on a site constituted theft of property belonging to the site owner, who had control of the abandoned metal
  • R v Turner (No 2) [1971] – Turner recovered his car from a repair garage without paying for repairs carried out. A theft conviction was upheld on the basis of the possession and control of the car by the garage. Opinion: the result of this case is correct, but its point that liens should be ignored should be doubted, as in theory, it is now possible to steal from your own bailee at will
  • R v Meredith [1973] – Meredith was entitled to recover his car after it was impounded where the police had no right to do so

A single proprietary right is enough to class property as belonging to another:

  • R v Bonner [1970] – a defendant can steal from his co-owner
  • Attorney General’s Reference No 2 of 1982 – directors can steal from their own company
  • s 5(2) – trust property belongs to its trustee(s)
  • R v Shadrokh-Cigari [1988] – where a bank mistakenly transferred £288,000, rather than £288, the mistaken excess could be stolen

As the civil law broadens the scope of proprietary rights in cases such as FHR European Ventures v Cedar Capital Partners [2014], the scope of theft is also widened (gradually, as not to violate the principle of fair warning).

Generally, a person cannot steal their own property, unless the property is to be dealt with in a certain way or was received by mistake, according to section 5(3) and 5(4) respectively.

  • R v Hall [1972] – a holiday deposit was not stolen by a holiday company where it was under no obligation to deal with the money in a certain way (only a contract law claim was available)
  • Re Kumar [2000] – theft could be charged where there was a clear obligation to buy flights with certain money paid
  • Attorney General’s Reference No 1 of 1983 [1984] – a policewoman was overpaid, and could be charged with theft – however, the criminal law should not be required

Following Corcoran v Whent [1977] and Edwards v Ddin [1976], food consumed at a restaurant and fuel put into a car cannot be stolen under s 1 of the Theft Act 1968. The offence committed instead will be ‘making off’ under s 3, which requires a dishonest intention not to pay for something where payment is required on the spot.

Dishonesty (s 2)

Given the broad scope of ‘appropriation’ (above), many cases involving theft now turn on dishonesty. Unfortunately, dishonesty is poorly defined in the Theft Act 1968, s 2(1), providing only examples of what is not dishonest:

(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or
(b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or
(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. [a fully objective test]

S 2(2) also states that dishonesty can still exist where someone is willing to pay for an item.

Dishonesty was seen as a test of law in R v Feely [1973], reversed on appeal, where Lord Lawton said that dishonesty is a test to be applied by juries using current standards of ordinary and decent people. In Bogglen v Williams [1978], a defendant was not found to be (subjectively) dishonest in reconnecting his electricity supply.

Today’s test of dishonesty comes from R v Ghosh [1982], in which a surgeon claimed fees for operations not performed. A jury are to decide, on the standards of reasonable and honest people whether the defendant was (objectively) dishonest. If not, the jury should acquit the defendant. If the defendant’s standards of dishonesty are claimed to be different to those use by the the jury, the jury must also decide whether the defendant subjectively realised he was acting dishonestly against the jury’s standards.

  • Green [1992] – the Ghosh test’s stages must be put to a jury in the correct order
  • Roberts (1987) – the second (standard discrepancy question) need only be asked of a jury where raised by the defendant
  • Clarke [1996] – a good example of the application of the Ghosh test, where the defendant thought it was acceptable to lie about qualifications in order to get a job

Griew (commentator) has objected to the Ghosh test: claiming that fusing a state of mind with an objective test asks a jury to consider a question of law, leading to longer trials, and that the Ghosh test invalidly assumes that jurors are honest. Both of these claims are rebuttable.

Intention to permanently deprive (s 6)

The final element of theft is an intention to permanently deprive. This is another question for a jury. There are two tests which can be used by a jury: the natural meaning, and the substituted meaning provided by s 6(1). The natural test should be used first.

Natural meaning

The natural test asks a jury to decide, on the natural meaning of the words ‘intention to permanently deprive’, whether the defendant had that state of mind. As such, intended borrowing, if temporary, will not satisfy this state of mind, according to R v Warner (1970). If the defendant changes his mind, the test may be applied at a later time. But it should be noted that in the case of robbery, and R v Vinall [2011], in which an intention to permanently deprive could not be assessed after violence was used to appropriate a bicycle.

Substituted meaning

Where the natural meaning (test) is not satisfied by a defendant, they may not be immediately convicted. They must also pass the substituted meaning test. Under s 6(1), where a defendant appropriates property without the intention to permanently deprive, but treats the property as his own to dispose of for a period of time equivalent to an outright taking or disposal, he will be treated as having an intention to permanently deprive.

  • R v Mitchell [2008] – having bundled woman out of her car, driven it up the rod and abandoned it with its hazard lights flashing, the defendant had not treated the car as his to dispose of, and so had not stolen it (although he was guilty of a separate offence of taking a motor vehicle without authority) – narrow definition
  • R v Scott [1984] – trying to sell curtains back to a shop having stolen them from that same shop constituted an intentional to permanently deprive as the defendant was treating them as his own to dispose of by trying to sell them
  • R v Cahill [1993] – a judge’s omission of ‘disposal’ in his jury direction caused a conviction to be quashed where the defendant had moved a stack of newspapers from a shop
  • R v Marshall [1998] – part used underground tickets were found and sold on by the defendants, constituting an intention to permanently deprive
  • R v Lavender [1994] – moving doors from one council house to another constituted an intention to permanently deprive – wide definition
  • R v Lloyd [1985] – copying films did not constitute an intention to permanently deprive unless the value of the film was diminished 9the film was effectively disposed of)

S 6(2) provides that an intention to permanently will also be found where a property is taken and to be returned under a condition which may not be able to be performed that the defendant. R v Fernandes [1996] confirms that a defendant may not risk the loss of such property (a solicitor took client money temporarily hoping cover his personal debts with it).

Substitution

An intention to substitute will not negate a finding of intention to permanently deprive, as a different (although identical) ‘thing’, not the original ‘thing’ will be returned. In R v Velumyl [1989], the defendant was still guilty of theft even though he intended to replace £1050 ‘borrowed’ from a company safe before anyone else noticed it was missing.

Related offences

Robbery

Robbery, under s 8 of the Theft Act 1968 requires a theft to be accompanied by force or a fear of force at the time of the theft or immediately before it. It carries a maximum sentence of life in prison.

  • R v Robinson [1977] – no robbery where the defenant used force to recover a debt he thought that he had the legal right to recover
  • R v Vinall [2011] – no robbery where theft took place after force applied to to appropriate a bicycle

Burglary

Burglary under s 9 of the theft Act 1968 is often referred to aggravated theft committed whilst trespassing. Burglary is committed where a defendant enters property as a trespasser intending to steal. Burglary carries a maximum sentence of 14 years if the target land is a dwelling, and 10 years if not.

Fraud

The Fraud Act 2006 replaced a mis-mash of old offences with a codified approach. The old offences included obtaining property, obtaining money transfer, obtaining a pecuniary advantage, obtaining services, obtaining an exemption from a liability, procuring the execution of a valuable security, securing the remission of liability and inducing a creditor to wait for or forego payment. Now, s 1 of the Fraud Act 2006 allows a defendant to be found guilty of fraud if he is in breach of section 2, 3 or 4 of that act.

Fraud by false representation

Section 2 provides for the offence of fraud by false representation. Its actus reus is the making of a representation, either expressly or impliedly, which is untrue or misleading and which the defendant knows is or might be untrue or misleading. For example, Omerod suggests that a car salesman who advertises a car as having had one careful owner who was not careful to his knowledge may be guilty if he sells that car on the basis of that statement. In R v Cornelius [2012], a solicitor could not be found guilty of fraud by false representation where is untrue statement turned out to be true.

The mens rea of fraud by false representation is dishonesty coupled with an ulterior intention to gain, cause loss or expose the victim to the risk of loss. Section 5 defines ‘gain’ and ‘loss’ broadly, requiring the CPS to be sensible in preserving good faith negotiations without involving fraud.

Fraud by failure to disclose

Under section 3 of the Fraud Act 2006, a defendant may be guilty of fraud by failure to disclose if he:

(a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and
(b) intends, by failing to disclose the information (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss.

Fraud by abuse of position

Section 5 of the Fraud Act 2006 allows a defendant to be found guilty of fraud by abuse of position if he dishonestly acts against the financial interests of person’s whose financial interests he is under a duty to safeguard, with the intention to gain, cause loss, or expose his victim to the risk of loss. This type of fraud can be committed by omission. In R v Nimbley [2011], a customer of a cinema who filmed a performance using his phone was charged with possession in connection with fraud, and convicted, even though the case did not fit neatly into any of the types of fraud discussed.

Obtaining services

Under s 11 of the Fraud Act 2006, a defendant dishonestly obtains services if he is dishonest and obtains services without paying with the knowledge that payment is or might be required and the intention not to pay.

Next: Criminal incapacity

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