Theft
Theft is the dishonest appropriation of property belonging to another, with the intention to permanently deprive. The crime in defined in s.1 Theft Act 1968. ss.2-6 Theft Act 1968 define the words involved in the crime in the first section.
Section 2 - dishonesty
Section 3 - appropriates
Section 4 - Property
Section 5 - Belonging to Another
Section 6 - with the intention of permanently deprive the other of it.
The actus reus of the offence is made of three elements; appropriation (s.3), property (s.4), and belonging to another (s.5).
The mens rea of the offence is made of two elements; dishonesty (s.2), with the intention to permanently deprive (s.6).
Theft is the dishonest appropriation of property belonging to another, with the intention to permanently deprive. The crime in defined in s.1 Theft Act 1968. ss.2-6 Theft Act 1968 define the words involved in the crime in the first section.
Section 2 - dishonesty
Section 3 - appropriates
Section 4 - Property
Section 5 - Belonging to Another
Section 6 - with the intention of permanently deprive the other of it.
The actus reus of the offence is made of three elements; appropriation (s.3), property (s.4), and belonging to another (s.5).
The mens rea of the offence is made of two elements; dishonesty (s.2), with the intention to permanently deprive (s.6).
Appropriation
Section 3(1) states that:
'Any assumption by a person of the rights of the 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.'
So an assumption of the rights is important. Picking an object up and holding it is appropriation of property. We see some complications in case law that explain what it means to appropriate in more detail. In Pitham v Hehl (1977), the defendant sold furniture belonging to another person. This was held to be an appropriation. The right to sell property was that of the owner and this was seen to be an appropriation because he had assumed the right of the owner.
In Morris (1983) The defendant had switched the price labels of two items on the shelf in a supermarket. Lord Roskill in the House of Lords stated that: 'It is enough for the prosecution if they have proved... the assumption of any of the rights of the owner of the goods in question.'
There does not have to be an assumption of all the rights. In Corcoran v Anderton (1980) the Court of Appeal expressed the view that the forcible tugging of a handbag, even through the owner of the bag did not let go of it, could amount to an assumption of rights of the owner. This could be concerned a charge of robbery.
Section 3(1) states that:
'Any assumption by a person of the rights of the 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.'
So an assumption of the rights is important. Picking an object up and holding it is appropriation of property. We see some complications in case law that explain what it means to appropriate in more detail. In Pitham v Hehl (1977), the defendant sold furniture belonging to another person. This was held to be an appropriation. The right to sell property was that of the owner and this was seen to be an appropriation because he had assumed the right of the owner.
In Morris (1983) The defendant had switched the price labels of two items on the shelf in a supermarket. Lord Roskill in the House of Lords stated that: 'It is enough for the prosecution if they have proved... the assumption of any of the rights of the owner of the goods in question.'
There does not have to be an assumption of all the rights. In Corcoran v Anderton (1980) the Court of Appeal expressed the view that the forcible tugging of a handbag, even through the owner of the bag did not let go of it, could amount to an assumption of rights of the owner. This could be concerned a charge of robbery.
Consent to the appropriation
The Theft Act does not state that the appropriation has to be without consent to the owner. In Lawrence (1971) an Italian student paid for a taxi drive and the driver said it was not enough. The student held out the money in his wallet and the defendant took £6 when the service should have bee 50p. The defendant argued that it was not appropriation because the defendant consented. The courts rejected this and said that there was appropriation. This developed in Gomez (1993) where Gomez was an assistant manager in a shop. He persuaded the manager to sell electrical goods worth over £17,000 to an accomplice. The cheques he had told the manager to accept were stolen and had no value. Gomez was charged of theft of the goods.The House of Lords heard this case on appeal and were asked.
'When theft is alleged and that which is alleged to be stolen passes to the defendant with the consent of the owner, but that has been obtained by a false representation, has:
(a) an appropriation within the meaning of s.1(1) of the Theft Act 1968 taken place, or
(b) must such a passing of property necessarily involve an element of adverse interference with or usurpation of some right of the owner?'
They pointed out that the decision in Lawrence ruled that an act may be appropriation even if it is done with the consent of the owner.
The Theft Act does not state that the appropriation has to be without consent to the owner. In Lawrence (1971) an Italian student paid for a taxi drive and the driver said it was not enough. The student held out the money in his wallet and the defendant took £6 when the service should have bee 50p. The defendant argued that it was not appropriation because the defendant consented. The courts rejected this and said that there was appropriation. This developed in Gomez (1993) where Gomez was an assistant manager in a shop. He persuaded the manager to sell electrical goods worth over £17,000 to an accomplice. The cheques he had told the manager to accept were stolen and had no value. Gomez was charged of theft of the goods.The House of Lords heard this case on appeal and were asked.
'When theft is alleged and that which is alleged to be stolen passes to the defendant with the consent of the owner, but that has been obtained by a false representation, has:
(a) an appropriation within the meaning of s.1(1) of the Theft Act 1968 taken place, or
(b) must such a passing of property necessarily involve an element of adverse interference with or usurpation of some right of the owner?'
They pointed out that the decision in Lawrence ruled that an act may be appropriation even if it is done with the consent of the owner.
Consent without deception
In Hinks (2000) the defendant was given gifts by a very naive man with a low IQ. He gave her a total of £60,000 and a television set. She had also gone with him to the building society where he had taken money out to give to her. The judges decided even though it was a valid gift, there was still an appropriation. In civil law, the television set and money belonged to the defendant as there was no rules broken. |
A later assumption of a right
Section 3(1) makes it clear that there is appropriation if someone in possession of an object then deals with it later as an owner. So if a defendant is looking after a bike for someone but then decides to sell it later, then this becomes an appropriation. This is because he begins to assume the rights of the owner. The appropriation in this type of situation takes place at the point of 'keeping' or 'dealing'. |
Property
The definition is in s.4(1) 'Property includes money and all other property real or personal, including things in action and other intangible property.' There are five types of items in the section lists with are included in the term property: money, real property (land and buildings), personal property, things in action and other intangible property. It was held in Kelly and Lindsay (1998) that even dead bodies and body parts can be personal property for the purposes of theft.
Real Property
Section 4(4) - '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 carcase of any such creature, unless 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 course of reducing it in possession.'
So basically, if you take things from the land that are growing naturally then there is no theft, but if you take fruits and mushrooms from a gardener's allotment, then it is a different matter if they have been growing them there.
Electricity is another sort of intangible property which cannot be stolen, but there is a separate offence under s.11 Theft Act 1968 of dishonestly using electricity without due authority, or dishonestly causing it to be wasted or diverted.
The definition is in s.4(1) 'Property includes money and all other property real or personal, including things in action and other intangible property.' There are five types of items in the section lists with are included in the term property: money, real property (land and buildings), personal property, things in action and other intangible property. It was held in Kelly and Lindsay (1998) that even dead bodies and body parts can be personal property for the purposes of theft.
Real Property
- This is the legal term for land or property - s.4(1) land can be stolen, but s.4(2) states that this can only be done in three circumstances:-
- a trustee or personal representative takes land in breach of duties as trustee or personal representative
- someone not in possession of the land severs anything from the land
- a tenant takes a fixture or structure from the land let to him
Section 4(4) - '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 carcase of any such creature, unless 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 course of reducing it in possession.'
So basically, if you take things from the land that are growing naturally then there is no theft, but if you take fruits and mushrooms from a gardener's allotment, then it is a different matter if they have been growing them there.
Electricity is another sort of intangible property which cannot be stolen, but there is a separate offence under s.11 Theft Act 1968 of dishonestly using electricity without due authority, or dishonestly causing it to be wasted or diverted.
Belonging to another
In order for there to be a theft, the property needs to belong to another person to that of the defendant. We will see in some cases that you can steal your own property, as it does not need to solely belong to the victim or owner, but as long as the other person owns it or has a claim in property to it.
Possession or control
The owner of the property normally has possession but other situations allow two people to have possession and control. In Turner (No 2) (1971) he left his car at a garage to have some repairs done. When they were almost completed, he took the car back. He argued that it was his property and it did not belong to another. The court held that the garage was in possession or control of the car and that he was guilty of stealing his own car.
In Woodman (1974) a company had sold all the scrap metal on its sit to another company. The company who had bought the metal arranged for it to be collected and there was a little bit left over. D took that scrap metal and it was held that even though the owners did not know that the scrap metal was there, the D was guilty of the offence because it still belonged to them. The evidence was that they had put up barbed wires and tried to stop trespassers getting in. A-G's Reference (No 1 of 1983) (1985) The defendant was paid into her back account by transfer. Her employers overpaid her by £74.74. She was acquitted but the prosecution asked the CoA to rule on the law. The defendant was under an obligation to make restoration' and if there was a dishonest intention not to make restoration, then all the elements of theft were present.
In order for there to be a theft, the property needs to belong to another person to that of the defendant. We will see in some cases that you can steal your own property, as it does not need to solely belong to the victim or owner, but as long as the other person owns it or has a claim in property to it.
Possession or control
The owner of the property normally has possession but other situations allow two people to have possession and control. In Turner (No 2) (1971) he left his car at a garage to have some repairs done. When they were almost completed, he took the car back. He argued that it was his property and it did not belong to another. The court held that the garage was in possession or control of the car and that he was guilty of stealing his own car.
In Woodman (1974) a company had sold all the scrap metal on its sit to another company. The company who had bought the metal arranged for it to be collected and there was a little bit left over. D took that scrap metal and it was held that even though the owners did not know that the scrap metal was there, the D was guilty of the offence because it still belonged to them. The evidence was that they had put up barbed wires and tried to stop trespassers getting in. A-G's Reference (No 1 of 1983) (1985) The defendant was paid into her back account by transfer. Her employers overpaid her by £74.74. She was acquitted but the prosecution asked the CoA to rule on the law. The defendant was under an obligation to make restoration' and if there was a dishonest intention not to make restoration, then all the elements of theft were present.
Dishonestly
There is no definition of what dishonestly means in the section. The case of Ghosh (1982) established what honesty meant and is used in all cases where the issue of dishonesty comes up. This case is very important as dishonesty in other charges in property offences all use this principle as well.
There is no definition of what dishonestly means in the section. The case of Ghosh (1982) established what honesty meant and is used in all cases where the issue of dishonesty comes up. This case is very important as dishonesty in other charges in property offences all use this principle as well.
Behaviour which is not dishonest
In s.2 Theft Act 1968, there are three situations where behaviour will NOT be dishonest: (a) he has in law the right to deprive the other of it, on behalf of himself or of a third person; or (b) he would have the other's consent if the other knew of the appropriation and the circumstances of it; or (c) the person to whom the property belongs cannot be discovered by taking reasonable steps These all depend on the defendant's belief. It has to be a genuine belief, no matter if it is illogical - as long as the jury is satisfied that at the time that defendant believed it, there will be no dishonesty. In Robinson (1977) D ran a clothing club and was owed £7 by the V. There was a struggle and the V dropped £5 which the D took. D's belief that he had a right to the money mean that he was no dishonest under s.2(1)(a). Another example of not being dishonest is finding a £5 note in the woods and deciding to keep it; if there is no reasonable way to discover the owner, then there would be no dishonesty under s.2(1)(c). |
Willing to pay
A defendant's conduct is still dishonest, even if he offers to pay. This is under s.2(2), and states that even though an offer to pay is made then conduct will still be dishonest. So if you jump in a car and leave money behind for it equal to its value, this is theft. There needs to be an agreement and a trading, otherwise you are stealing property and enforcing a party to take part in a contract they may not want to be a part of. |
The Ghosh test
In Feely (1973) the court gave a standard for the jury in terms of what dishonesty meant. The defendant was the manager of a branch of bookmakers. He 'borrowed' £30 from the till, which he had done lots of times before, but now been told to stop doing. The conviction was quashed because the question of whether what he had done was dishonest should have been left to the jury. It was an objective standard that meant the jurors should apply the current standards of ordinary decent people. It was not clear whether the test should be applied obejctively only or whether it should be subjective as to whether the defendant realised what he was doing was below that set standard.
Afterwards, the Ghosh test takes this case one step further and establishes the legal principle which we use now. Ghosh was a doctor. He was a consultant and he claimed fees for an operation he had not carried out. He stated that he was not dishonest as he was owed the same amount for consultation fees. The CoA stated that the test for dishonesty had an objective and subjective element to it:
So the court asks the jury to decide on two points; is this action dishonest in our society and what ordinary people in social events would warrant as dishonest, and then asks did the defendant in question also realise that? If the D did realise that his action was dishonest, then he would be dishonest in his conduct. The defendant is judged by what he realised ordinary standards to be.
In Feely (1973) the court gave a standard for the jury in terms of what dishonesty meant. The defendant was the manager of a branch of bookmakers. He 'borrowed' £30 from the till, which he had done lots of times before, but now been told to stop doing. The conviction was quashed because the question of whether what he had done was dishonest should have been left to the jury. It was an objective standard that meant the jurors should apply the current standards of ordinary decent people. It was not clear whether the test should be applied obejctively only or whether it should be subjective as to whether the defendant realised what he was doing was below that set standard.
Afterwards, the Ghosh test takes this case one step further and establishes the legal principle which we use now. Ghosh was a doctor. He was a consultant and he claimed fees for an operation he had not carried out. He stated that he was not dishonest as he was owed the same amount for consultation fees. The CoA stated that the test for dishonesty had an objective and subjective element to it:
- Was the action dishonest according to the ordinary standards of reasonable and honest people?
- Did the defendant realise that what he was doing was dishonest by those standards?
So the court asks the jury to decide on two points; is this action dishonest in our society and what ordinary people in social events would warrant as dishonest, and then asks did the defendant in question also realise that? If the D did realise that his action was dishonest, then he would be dishonest in his conduct. The defendant is judged by what he realised ordinary standards to be.
With intention of permanently depriving
The last element from s.6 Theft Act 1968 completes the mens rea. It means the defendant needs to have the intention to keep the object away from the owner forever. They do not need to have possession of it still, so if it is destroyed or 'used' then the victim is still permanently deprived. An example given is that where the item is taken or sold to another person. In Velumyl (1989), the defendant borrowed £1,050 out of the safe at his office. He spent the money but then put the same amount back. The court held that he had permanently deprived because the physical notes taken had been removed and moved on and those notes with the specific serial code have gone. Even if he had intended to replace the money, he had the intention to permanently deprive of those notes.
s.6 also provides more of an explanation. The CoA stated that the meaning of 'dispose of' should be given the Short Oxford Dictionary definition. This is 'to deal with definitely: to get rid of; to get done with, finish. To make over by way of sale or bargain to sell.' In DPP v Lavender (1994) the defendant took doors of from one council house and put them on another council house. The doors were still in possession of the council but had been transferred without permission from the council. The Divisional Court held that the question was whether he intended to treat the doors as his own, regardless of the rights of the council. The answer to this was yes and he was guilty of theft.
The last element from s.6 Theft Act 1968 completes the mens rea. It means the defendant needs to have the intention to keep the object away from the owner forever. They do not need to have possession of it still, so if it is destroyed or 'used' then the victim is still permanently deprived. An example given is that where the item is taken or sold to another person. In Velumyl (1989), the defendant borrowed £1,050 out of the safe at his office. He spent the money but then put the same amount back. The court held that he had permanently deprived because the physical notes taken had been removed and moved on and those notes with the specific serial code have gone. Even if he had intended to replace the money, he had the intention to permanently deprive of those notes.
s.6 also provides more of an explanation. The CoA stated that the meaning of 'dispose of' should be given the Short Oxford Dictionary definition. This is 'to deal with definitely: to get rid of; to get done with, finish. To make over by way of sale or bargain to sell.' In DPP v Lavender (1994) the defendant took doors of from one council house and put them on another council house. The doors were still in possession of the council but had been transferred without permission from the council. The Divisional Court held that the question was whether he intended to treat the doors as his own, regardless of the rights of the council. The answer to this was yes and he was guilty of theft.
Borrowing or lending
Usually borrowing property is not going to prove intention to permanently deprive. If however an item is borrowed and kept until it is no use then it will be theft as there will be intention to permanently deprive. If you borrow a football season ticket and give it back after the season, then this ticket will be useless and all the use and goodness has been taken away or used. The same for having theatre tickets; if the date goes and the ticket is now useless, then this will satisfy intention to permanently deprive the victim of it. Lloyd (1985) is important because it held that borrowing is not theft unless borrowing the property means 'the goodness, the virtue, the practical value has gone out of the article.' A film had been taken and copied and this was not theft. As the goodness of the videos had not been taken then there was no intention to permanently deprive. In Easom (1971) the defendant rummaged through a handbag. He then replaced the handbag without taking anything. The Court of Appal quashed the conviction as there may have been a conditional intention to deprive permanently but this was not enough to satisfy. In Attorney-General's Reference (Nos and 2 of 1979) the Court of Appeal decided that if D had the conditional intent, he could be charged with attempted theft. Easom would now be charged with the attempt to steal some or all of the items. |
Intention to treat the things as his own
If the defendant treats the object as his own and destroys or discards the item, then there is an intention to permanently deprive. In Raphael and another (2008) the defendant offered to sell his own property back to him. It was held that s.6(1), 'an intention to treat the thing as his own to dispose of, regardless of the other's rights', included this scenario. There was a theft and the defendant were guilty of robbery. |