Theft
Section 1(1) of the Theft Act 1968 (TA 1968) creates the offence of theft. It states: “A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.”
Sections 2-6 provide complete or partial definitions of the elements of theft. The actus reus of theft consists of (1) the appropriation of (2) property (3) belonging to another. The mens rea consists of the defendant acting (1) dishonestly, and (2) with the intention of permanently depriving the other of it.
Appropriation
The definition of “appropriation” is provided by s3(1) which states: “Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as an owner.”
A case example is: R v Pitham & Hehl.
Some protection is offered to the bona fide (in good faith) purchaser by s3(2) which provides: “Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.” Thus, if a person buys stolen property from the defendant, unaware that it is stolen, s/he will not be guilty of theft if s/he later discovers the truth and decides to keep the property. Nor will s/he be liable for handling stolen goods.
The House of Lords have also made it plain that an assumption of any right of an owner will be an appropriation. See: R v Morris; Anderton v Burnside (the label-switching cases).
A temporary appropriation can amount to theft: see Corcoran v Anderton (a case of Robbery).
Accepting a gift is an appropriation. See R v Hinks.
The House of Lords have held that a person can appropriate property even where the owner consents to the taking of property. See:
Lawrence v MPC; and
R v Gomez, where the defendant, an assistant manager of an electrical goods shop, lied to the manager of the store that two cheques presented by a friend were valid, with the result that £16,000 worth of goods were supplied to a rogue. The defendant and the rogue were convicted of theft. Lord Keith stated that a person could be guilty of theft by dishonestly appropriating goods belonging to another if the owner of the goods was induced by fraud, deception or a false representation to consent to or authorise the taking of the goods. Lawrence makes it clear that consent to or authorisation by the owner of the taking by the rogue is irrelevant. It was also held that it was irrelevant that the taking of the goods in such circumstances could also constitute the offence of obtaining property by deception under s15. (Note: However, this was the more appropriate charge.)
Property
Section 4(1) provides a general definition of property for the purposes of theft, where it states: “Property” includes money and all other property, real or personal, including things in action and other intangible property.
Things in action are rights which can only be enforced by taking legal action, as they have no physical existence. For example, a debt (which can be enforced by taking legal action), copyrights, trademarks and patents. However, confidential information has been held to fall outside the definition of property: Oxford v Moss.
Section 4(2) provides that land cannot be stolen except in three
particular circumstances:
(a)
Where a person is dealing with land in a special capacity, for
example as a trustee (and makes a dishonest appropriation).
(b) Where a person not in possession of the land severs something from
it, for example crops or turf.
(c) Where a person in possession of the land as tenant appropriates a
fixture or structure let with the land, for example by selling an
outbuilding.
Section s4(3) states: “A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose. For purposes of this subsection “mushroom” includes any fungus, and “plant” includes any shrub or tree.” Simply stated, it is not theft to take mushrooms or flowers, fruit or foliage from a wild plant. It would however, be theft to take the whole plant, or to take anything for a commercial purpose. Thus it would be theft if mushrooms were picked in order to sell them later.
Section 4(4) provides: “Wild creatures, tamed or untamed, shall be regarded as property, but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcass of any such creature unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in the course of reducing it into possession.” Thus, animals in zoos, safari parks and domestic pets can all be stolen, even if they are appropriated having escaped from captivity. A wild animal, whether live or dead, cannot be stolen unless it has already been taken into possession by somebody else. Note however, that there are other statutes which create specific criminal offences for poachers.
Belonging to Another
Section 5(1) provides an extended meaning for the phrase “belonging to another” where it states: “property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest …”
Therefore, it is not required that property should be owned by the person from whom it is appropriated; mere possession or control is enough. For a case example, see: R v Woodman.
Provided he has the necessary mens rea, a person can steal his own property from someone with a lesser interest: R v Turner (No 2), where the defendant removed his car from outside the garage at which it had been repaired, intending to avoid having to pay for the repair. The Court of Appeal held that the car could be regarded as ‘property belonging to another’ as against the owner, since it was in the possession and control of the repairer. (Note: were the same to happen today, a charge of making off without payment contrary to s3 TA 1978 would be more appropriate.)
Section 5(3) provides that it is theft if a person receives property under an obligation to deal with it in a certain way but instead uses it for his own purposes. It states: “Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other.”
The defendant must be under a legal obligation to retain property or its proceeds in a separate fund in order for s5(3) to apply. Compare:
- R v Hall – The defendant was a travel agent who had taken money for securing airline tickets for customers and not booked them. The Court of Appeal however, held that he was not under an obligation under s5(3); with
- Davidge v Bunnett – The defendant shared a flat with several other people who gave her cheques on the understanding that a communal gas bill would be paid with the proceeds. In fact, the defendant spent the proceeds on Christmas presents and left the flat without giving notice. The Divisional Court held that the defendant was under a legal obligation to use the proceeds of the cheques in a particular way (for the payment of the gas bill) and therefore they were property belonging to another by virtue of s5(3). This was therefore theft.
Where a person receives money or property for onward transmission to another there is clearly an obligation to retain and deal with it or its proceeds in a particular way: R v Wain, who had raised money for a company which distributed money among charities. He then dishonestly used the credit in his account.
If a person is given property by mistake it will still be treated as belonging to the person who gave it (subject to some complex civil law rules as to whether there is a civil obligation to return the property or not). Section 5(4) states: “Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded as an intention to deprive that person of the property or proceeds.”
This was discussed in: Attorney-General’s Reference (No 1 of 1983) – The defendant, a policewoman, was overpaid. The money was credited to her bank account as a result of an error by her employer. The evidence suggested that having discovered the overpayment, the defendant simply allowed the money to remain in the account. She was charged with theft of the sum overpaid but the trial judge directed the jury to acquit. The question of whether a charge of theft was possible in such a situation was referred to the Court of Appeal. It was decided that provided there was sufficient evidence of mens rea, a charge of theft could succeed in such a situation. The defendant had got property (the excess payment) by another’s mistake and was under an obligation to restore the debt (a chose in action) to her employer. Further, Lord Lane CJ suggested that s5(4) only started to operate from the moment the defendant became aware of the overpayment.
There must be a legal obligation to restore property in order for s5(4) to apply. See: Gilks, where the Court of Appeal held that as the case involved a gaming debt, there was no “legal” obligation to make restoration and so s5(4) did not apply.
Dishonesty
Section 2(1) sets out the situations where as a matter of law a person is not dishonest:
A person’s appropriation of property belonging to another 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.
If there is evidence of a belief which is covered by s2(1), the judge must tell the jury that as a matter of law they must acquit the accused unless the prosecution disproves his alleged belief beyond reasonable doubt. Case examples for ss2(1)(a) and (c) include:
- Holden – The defendant took some scrap tyres from a garage where he sometimes worked. He said he had seen other workers doing the same, and that he had the supervisor’s permission but the manager said employees were forbidden to take tyres. The Court of Appeal quashed his conviction stating that it did not matter whether his belief (that he had a right to take the tyres) was reasonable; if he honestly believed that, then his taking would not be dishonest.
- Small – The defendant was charged with theft of a car. He claimed that he thought that it had been abandoned by the owner because it had been left for over a week with the keys in it. The Court of Appeal ruled that he could not be guilty of theft if he had an honest belief to that effect, as if the car had been abandoned, the owner would not be ‘deprived’ of it.
Two further subsections touch on the question of dishonesty:
- A defendant can be dishonest where he does not act with a view to making a gain for himself or another. It is sufficient that he acts with a view to causing loss to the owner, this being the effect of s1(2): "It is immaterial whether the appropriation is made with a view to gain or is made for the thief’s own benefit."
- Section 2(2) states: "A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property." This subsection meets a possible argument that an appropriation cannot amount to theft because the defendant is willing to pay for the property.
In cases where the defendant cannot use s2(1), but there is nevertheless some debate as to whether or not his actions were dishonest, the matter should be left to the jury (or magistrates) who should apply the test created by the Court of Appeal in R v Ghosh (a case involving s15 TA 1968):
(1) A
jury (or magistrates) must 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.
(2) If
it was dishonest by those standards, then the jury (or magistrates)
must consider whether the defendant himself must have realised that
what he was doing was by those standards dishonest. It is
dishonest for the defendant to act in a way which he knows ordinary
people would consider to be dishonest.
In R v Roberts, the Court of Appeal ruled that this second point need only be put to the jury in those cases where the defendant raised the special plea that he did not think he was being dishonest by his own standards.
Intention to Permanently Deprive
The defendant must have taken the property “with the intention of permanently depriving the other of it”, although the owner does not actually have to be permanently deprived of his property. In most situations this should be evident from the facts (the history of what the defendant did with the goods).
Long-term or indefinite borrowing will not amount to theft: R v Warner – The defendant took a tool-box to annoy the owner but panicked and hid it when the police were called. He claimed that he intended to replace it as soon as he could do so undetected, but the judge directed the jury that an intention to keep property indefinitely could amount to theft. The Court of Appeal quashed the conviction.
A conditional intent to deprive will not amount to theft: Easom – The defendant picked up a handbag in a cinema, rummaged through its contents and then put it back without having taken anything. The Court of Appeal held that he was not guilty of theft of the handbag and its contents as a conditional intent to deprive was not enough. Note that he would be guilty of attempted theft.
It is not a defence to claim that money that has been taken would have been repaid: R v Velumyl.
Section 6 provides that in certain circumstances, where a person disposes of or borrows property, that person is to be regarded as having had the intention of permanently depriving the other of it. Section 6 states:
(1) A
person appropriating property belonging to another without meaning
the other permanently to lose the thing itself is nevertheless to be
regarded as having the intention of permanently depriving the other
of it if his intention is to treat the thing as his own to dispose
of regardless of the other’s rights, and a borrowing or lending of
it may amount to so treating it if, but only if, the borrowing or
lending is for a period and in circumstances making it equivalent to
an outright taking or disposal.
(2) …
where a person, having possession or control (lawfully or not) of
property belonging to another, parts with the property under a
condition as to its return which he may not be able to perform, this
(if done for the purposes of his own and without the other’s
authority) amounts to treating the property as his own to dispose of
regardless of the other’s rights.
Section 6(1) deals with two separate situations where a defendant is deemed to intend to deprive the other permanently of the property:
- If his intention is to treat the thing as his own to dispose of regardless of the other’s rights. See: Lavender.
- Borrowing or lending for a period and in circumstances making it equivalent to an outright taking or disposal. For example, the use of a season ticket followed by its return to the owner at the end of the season. See: R v Lloyd.
Under s6(2) a person is to be treated as having an intention to permanently deprive the owner of his property if he parts with the property under a condition which he may not be able to perform. This is meant to provide for the case where a person takes another’s property and pledges it with a pawnbroker without the owner’s permission. Such a defendant will be deemed to have an intention to permanently deprive as it may be uncertain whether the defendant will be able to redeem the goods – the very fact that he has pawned them tends to show that he lacks money.