Theft is defined in s. 1 of the Theft Act 1968: ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it . . .’

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Actus reus

 

The actus reus of theft has three elements: ‘property’, ‘appropriation’ and ‘belonging to another’.

 

Property

 

Section 4 of the 1968 Act states: ‘Property includes money and all other property, real or personal, including things in action and other intangible property.’ Section 4(2) of the Act states that property does not normally include land or things forming part of the land, and severed from it, such as harvested crops of picked flowers. However, in certain circumstances property can be stolen:

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1. Where D was in a position of trust and appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him or her;

2. when the defendant is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed;

3. when a defendant in possession of land under a tenancy appropriates the whole or part of any fixture or structure let to be used with the land.

 

Following the decision in Oxford v Moss (1979) 68 Cr. App. R. 183, information cannot fall within the definition of intangible property contained in s4(1).

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Appropriation

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Section 3(1) defines appropriation: ‘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 owner.’

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The consent of the owner is irrelevant (DPP v Gomez [1993] AC 442). In R v Hinks [2000] UKHL 53 it was held that an appropriation occurs even where the victim consents to the appropriation and that civil unlawfulness is not a requirement of theft.

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Section 5 lays down that: ‘Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest . . .’

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In R v Turner (No 2) [1971] 1 WLR 901 the defendant’s car was being repaired at the garage. The mechanic parked the car outside the garage. The defendant surreptitiously took the car without paying for the repairs. At trial he argued that he owned the care and therefore it did not belong to another. However, at the time of the appropriation the car was under the possession and control of the garage. Although they may have a lien over the car, this was irrelevant. The question was, therefore, ‘Did the garage in fact have possession or control of the car at the time of the appropriation?’ The answer to this question was yes. 

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According to s. 5(3), where property is handed over to another, but that other has a legal obligation to deal with the property in a particular way, the property is treated as still belonging to the original owner. In Davidge v Bennett [1984] Crim LR 297 the defendant was given cheques from her flat mat in order to pay for a gas bill. However, the defendant dissipated the money on Christmas presents and proceeded to leave the flat without paying for the gas bill. Accordingly, under s.5(3) of the 1968 Act, the defendant was guilty as the cheques has been given with an obligation to use the money for payment of the gas bill. 

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Under s. 5(4) if a person receives property by mistake and has a legal obligation to give it back, then for the purposes of the 1968 Act it will be treated as belonging to the original person who handed it over by mistake. In Attorney General’s Reference (No.1 of 1983) [1985] QB 187, the defendant, a police woman, received an overpayment of her salary, paid direct by the MPD by direct transfer to her bank. She did not spend or withdraw any of the money from her account. At trial, the judge directed the jury to acquit. On appeal to the Court of Appeal, however, it was held that a conviction for theft may arise where the defendant had not withdrawn the money as there was a legal obligation to return the money received by mistake–so that failure to hand it back will count as appropriation. This must, however, be contrasted with the judgment in Moynes v Cooper [1956] 1 KB 439 wherein it was held, that a defendant who was unaware of the overpayment is not liable as there is no dishonest on part of D at the time of the receiving of the money.

 

Abandoned Property

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Where a person has unequivocally abandoned his or her title of the property and such property cannot be credited to a person, anyone who proceeds to take it will not be liable for theft. However, there has been much disquiet over whether or not property is truly abandoned. In Ricketts v Basildon Magistrates [2011] 1 Cr. App. Rep 15, the appellant took bags of clothes out of a charity bin and other bags outside the doors of another charity. The case was committed to the Crown Court on the basis that he had stolen property. The appellant brought an application for judicial review on the basis that the donor had relinquished his or title to the items when they were placed in the bins and outside of the shop. However, it was held that the property had not been abandoned as the donor intended the items to be a gift and thus they were there for a specific reason. The gift would have been constituted upon possession of the items, however, as there had been an attempted delivery the donor still held title of the goods until the store took possession of them.

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Lost Property

 

Contrary to popular belief, although an item is lost, a person who finds it does not get to keep it; the item is still regarded as belonging to the party has lost it. However, at the point where the finder has undertaken reasonable steps in attempting to locate the owner of the property, the finder has better title to the items than the owner of land on which the items are found. In Hannah v Peel (1945) 1 KB 509 the claimant found a brooch on the window frame in the house in which he had been stationed. He took the property to the police station. The police contacted the defendant who stated that he did not own the item. After 12 months elapsed, the police informed the defendant that he could collect the item, which he did and proceeded to sell it. The claimant brought an action to recover the proceeds of sale, arguing that he had better title than the land owner. The court, in applying Bridges v Hawkesworth (1851) 21 LJ QB 75, held that as the brooch was not attached to nor beneath the surface of land, coupled with the fact that the land owner had no knowledge of the brooch, that the claimant did acquire good title.

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Mens Rea

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The mens rea of theft has two elements: an intention permanently to deprive, and dishonesty.

 

Intention to permanently deprive

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The defendant must have the intention to permanently deprive the other of property; the victim need not be deprived permanently of the property, providing that the prosecution can demonstrate that the defendant intended permanent deprivation. 

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Although borrowing does not constitute theft, section 6 of the 1968 Act states that there are certain exceptions to the rule. In R. v. Fernandes [1996] 1 Cr App R 175 the Court of Appeal held that the question is ‘whether D intended to treat the thing as his own to dispose of regardless of the other’s rights’.

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Section 6(1) TA 1968 provides:

 

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.

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In Chan Man-sin v A-G of Hong Kong (or R) [1988] 1 All ER 1, the defendant, a company accountant, drew a forged cheque on the company’s account knowing that the company would not be permanently deprived of their money because the bank would have a legal obligation to reimburse them. D argued that he lacked any intention to permanently deprive. However, the Privy Council held that s.6(1) applied: he intended to treat the company’s property as his own to dispose of regardless of the company’s rights.

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In R v Raphael [2008] EWCA Crim 1014, two defendants assaulted the victim and drove away with his car. A short time later, the telephoned him to say that they would return his car on the condition that they paid them £500. They were charged for conspiracy to rob. The Court of Appeal upheld their conviction on the basis that section 6 applied as the defendants had an intention to treat the car as their own to dispose of regardless of the owner’s rights.

Dishonesty

 

The 1968 Act does not provide a full definition of dishonesty, though under s.2(1) three examples in which a defendant should not be deemed dishonest are provided. These are:

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1. If he appropriates 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;

2. 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

3. If he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
    

The three provisions are to be assessed subjectively, on the basis of what a particular defendant believed in the circumstances. In R v Holden [1991] Crim LR 478, the appellant, a worker at Kwikfit, took some used tyres. He was convicted of theft but appealed on the basis that he was not dishonest since other workers did the same and he reasonably believed that he too was entitled. However, a provision in his employment contract prohibited the taking of used items. The Court of Appeal, in quashing the appeal, held that the question of dishonesty is subjective – it is the defendant’s belief; not what he was prohibited from doing.

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In R v Feely (1973) QB 530 it was held, on appeal, that the question of dishonesty should be left to the jury.

Where the facts of a case do not fall within the above examples, the court have adopted a common law test in order to decide whether or not the defendant was dishonest.

 

In R v Ghosh [1982] 3 WLR 110 it held that the common law test was first whether or not the defendant had been dishonest by the ordinary standards of reasonable and honest people. Where the answer is yes, the court should ask whether the defendant realised that he or she had been dishonest by those standards. If the answer to this question is also yes, then there is dishonest.

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Sentence

 

The maximum sentence for theft is seven years’ imprisonment.