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The Law of Theft
 
 
 
 
 
 
 
 
The offence of theft is set out in s.1(1) Theft Act 1968 which provides that a person is guilty of theft if they dishonestly appropriate property belonging to another with the intention to permanently deprive the other of it. Ss 2-6 of the Theft Act 1968 provide definitions of each of the elements of theft. S. 7 sets out the maximum penalty for theft of 7 years.
 
 
 
The actus reus of theft is:
 
  • Appropriation
  • Property
  • Belonging to another

 

 
 
The mens rea of theft consists of:
 
 
  • Dishonesty
  • Intention to permanently deprive
 
 
Actus reus of theft
 
 
 
 
 
 Appropriation

 

Appropriation is defined in s.3(1) Theft Act 1968 as including any assumption of the rights of an owner. It also covers later assumption where property has been innocently acquired. For an appropriation to take place, there is no requirement that all the rights of an owner are assumed, one right is sufficient:



R v Morris [1983] 3 WLR 697  Case summary
 
 
 
An appropriation may still be present notwithstanding the consent of the owner:
 
 
Lawrence v MPC [1972] AC 626     Case summary


 DPP v Gomez [1993] AC 442   Case summary

 
 
This creates an overlap with the offence of fraud (previously deception offences). However, an appropriation requires an action by the defendant, a deception which causes a victim to transfer money will not amount to an appropriation and therefore no liability for theft:
 
 
R v Briggs [2004] Crim LR 495  Case summary
 
 
 
Property
 
 
 
S. 4(1) Theft Act 1968 provides that property includes money and all other property, real or personal, including things in action and other intangible property.
 
Money includes notes and coins - unless a person intends to give back the exact same notes and coins they have the intention to permanently deprive a person of those particular notes and coins.
 
 
 
 
R v Velumyl [1989] Crim LR 299 Case summary
 
 
 
 
Real property refers to land and anything fixed to land eg houses and buildings however, by virtue of s.4(2) Theft Act 1968 land cannot be stolen unless:
 
a).D is a trustee, representative or has authorised power of attorney and deals with the property in breach of trust. Or
 
b). where D is not in possession of the property but appropriates anything forming part of the land by severing or causing it to be severed. Or
 
c).where D is a tenant and appropriates the whole or part of any fixture.
 
 
 
Personal property refers to property other than land.
 
Property includes prohibited drugs:
 
 
R v Smith [2011] EWCA 66 Case summary
 
 
Property does not include corpses:
 
 
R v Sharp 1857 Dears & Bell 160
 
 
Body parts may constitute property:
 
R v Kelly [1999] 2 WLR 384  Case summary
 
 
 
 
Things in action refers to a personal property right which can be legally enforced eg a patent right, a debt, a right arising under a trust, a right to overdraw an account, a cheque etc.
 
 
 
Intangible property is property which has no physical existence. However, it has been held that confidential information does not constitute property for the purposes of the Theft Act 
 
 
 
Oxford v Moss (1979) 68 Cr App Rep 183  Case summary
 
 
 
 
S.4(3) Theft Act 1968 provides that a person who picks wild mushrooms, flowers, or foliage growing wild on any land will not be liable for theft unless it is for sale or reward.
 
 
 
S.4(4) Theft Act 1968  provides that wild creatures cannot be stolen unless they have been reduced into possession by or on behalf of another or are in the process of being reduced into possession.
 
 
 
 
Belonging to another
 
 
 
S.5(1) Theft Act 1968 provides that property will be regarded as belonging to any other person having possession or control of it. This can mean that a person may be liable for theft of their own property if it is deemed in the possession or control of another:
 
 
 
 
R v Turner (No 2) [1971] 1 WLR 901  Case summary
 
 
 
S. 5 (3) Theft Act 1968 provides that where the property in question is given to a person with instructions to deal with it in a certain way, the ownership in the property is deemed to remain with the giver. Therefore if a person receiving the property deals with it in a way which is inconsistent with the instructions this can amount to theft. The central question is whether there was a clear obligation to deal with the property in a particular manner:
 
 
 
Davidge v Bennett [1984] Crim LR 297  Case summary
 
 
 
R v Hall [1973] 1 QB 496   Case summary


S. 5(4) provides that where a person receives property by mistake and is under an obligation to return the property a failure to restore the property will amount to theft.
 
 
 
A-G Ref (No 1 of 1983) [1985] QB 182  Case summary 
 
 
 
R v Shadrokh-Cigari [1988] Crim LR 465  Case summary
 

If the defendant is unaware of the over payment, however, there is no dishonesty:

 
Moynes v Cooper 1956 1 KB 439 Case summary
 
 
 
There must exist a legal obligation to return the money as oppose to a moral obligation:
 
 
 
R v Gilks [1972] 1 WLR 1341 Case summary
 
 
 
Abandoned property
 
If property is truly abandoned it has no owner and anyone who takes it will not be liable for theft. Difficulty may arise in deciding whether property is abandoned.
 
 
 
 
Lost property
 
Lost property is still regarded as belonging to the loser. However, where the owner can not be found by taking reasonable steps, the finder of the property has better title to the items than the owner of land on which the items are found:

 

Bridges v Hawkesworth (1851) 21 LJ QB 75   Case summary
 
 
Hannah v Peel 1KB 509   Case summary
 
 
Unless they are a trespasser:
 
 
Hibbert v McKiernan [1948] 2 KB 142   Case summary 
 
 
 
 
However, where the items are found under the surface of land, the land owner has a better title than the finder:
 
 
Waverly Borough Council v Fletcher [1995] 4 All ER 756     Case summary
 
 
Elwes v Brigg Gas Company (1886) 33 Ch D 562    Case summary
 
 
Mens rea of theft
 
 
 
 
Dishonesty

 

There is no statutory definition of dishonesty, although, s.2(1) Theft Act 1968 gives three instances of when a person is not to be regarded as 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) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
 
 
 
These three exceptions are judged entirely subjectively. There is no requirement that the defendant's belief is reasonably held:
 
 
 
R v Holden [1991] Crim LR 478  Case summary
 
 
 
 
R v Small [1987] Crim LR 777  Case summary
 
 
 
 
S.2(2) Theft Act 1968 states that a person may be dishonest notwithstanding a willingness to pay. This is perhaps a little unhelpful in determining honesty since it does not state whether a person will be honest or not but simply 'may'.  
 
 
The question of dishonesty must be left for the jury to decide:
 
 
 
R v Feely (1973) QB 530  Case summary
 
 
 
 
In situations not covered by s.2, where the defendant claims that he is not dishonest, the Ghosh test applies: 
 
 


R v Ghosh [1982] 3 WLR 110  Case summary




 
 
Intention to permanently deprive

 

Under S.6 (1) Theft Act 1968 a person is treated as having the necessary intention if they treat the property as their own regardless of the owners rights. This covers situations where the defendant intends to return the property to its owner eg the stealing of a store gift voucher and using it in the store to pay for goods. The operation of this provision can be seen in:
 
 
 
 
R v Lavender [1994] Crim LR 297   Case summary
 
 
 
 
 
 
 
 
S.6(1) also covers borrowing in circumstances making it equivalent to an outright taking. The courts have taken a strict line on what amounts to being equivalent to an outright taking:

 
R v Lloyd, Bhuee & Ali [1985] QB 829    Case summary
 
 
 
The Law of theft