Theft

Theft

The offence of theft is set out in section 1(1) of the Theft Act 1968, which 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…”

Appropriation

Section 3 (1) of the Theft Act 1968:

“Any assumption by a person of the rights of an owner amounts to an appropriation…”

• A defendant can appropriate property belonging to another even when the owner consents to the appropriation - R V Gomez [1993] AC 442

• D can appropriate property belonging to another even when the original owner gives the property to the defendant as a gift and disposes of any legal rights of their own property- R v Hinks [2000] UKHL 53

• R v Morris…

Property

Section 4(1) of the Theft Act 1968 states:

“‘Property’ includes money and all other property, real or personal, including things in action and other intangible property…”

This is evidently a very wide definition, and one that is broad enough to include property that is unlawfully owned (e.g. illegal drugs/pornography) R v Smith [2011] EWCA Crim 66

Real property= property consisting of land, buildings, or parts of buildings (e.g. doors, window frames, fences etc.)

Personal property= other assets that can be owned (e.g. food, clothes, electrical goods, vehicles, furniture, animals)

Things in action and other intangible property= things that can be owned but do not exist in physical form (e.g. bank accounts and shipping quotas). A-G of Hong Kong v Chan Nai-Keung [1987] 1 WLR 1339

What is NOT PROPERTY?

• Wild mushrooms, flowers, fruit or foliage – Section 4(3) Theft Act 1968

• Wild animals – Section 4(4) Theft Act 1968

• Electricity – Low v Blease [1975] Crim LR 513

• Confidential information – Oxford v Moss [1979] Crim LR 119

• Human corpses/body parts (other than medical samples)– R v Kelly [1998] 3 All ER 741

• Services (although obtaining services dishonestly is an offence under the Fraud Act 2006)

Belonging to another

Section 5(1) of the Theft Act 1968 provides:

“Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest…”

Property will “belong to another” if another person either has possession or control over the property, or they have a proprietary right or interest in the property (i.e. they own the property). 

This broad definition may even be used as a basis for convicting a defendant of theft of property of which they themselves are the legal owner – R v Turner (No 2) [1971] 2 All ER 441

Property that is unlawful to possess

A defendant can be guilty of theft even when the property they appropriate is illegally held by the victim (i.e. the victim is breaking the law by possessing the property in the first place).

This principle applies equally to property that the law prohibits people from owning (e.g. guns, knives, other weapons, controlled substances, extreme pornography, illegal animals etc.) 

R v Smith [2011] EWCA 66

The defendant was convicted of robbery (a type of aggravated theft) after appropriating a supply of heroin (i.e. an illegal class A drug) from the victim.

The defendant argued that there could be no theft because there could be no appropriation of the rights of the owner in situations where the “owner” of the property could not legally own or possess the property in the first place.

The Court of Appeal rejected this argument, and held that even illegally owned/possessed property (e.g. illegal drugs, guns, pornography etc.) could “belong to another” for the purposes of the offence.

Abandoned property

A defendant cannot be convicted of theft if the property they appropriate is “abandoned”.

This is because property that has been abandoned, and is not owned or in the control/possession of anyone, will not “belong to another”.

However, very rarely will the courts accept that property has been genuinely “abandoned”.

In order for an owner of property to “abandon” their property, they must discard the property in a way that shows an indifference to any future appropriation of the property by others. It is not enough to show that the owner had no further use or interest in the property. Edwards and Stacey (1877) 36 LT 30

The courts have also established the following general principles:

• Property left in bins is not “abandoned”. It will remain the property of the original owner until it is collected, at which point ownership will transfer to the collector (usually a local authority). At no point is the property “ownerless” – Williams v Phillips (1957) 41 Cr App R 5

• Property that has been left in close proximity to a charity shop (i.e. as an obvious donation) will not count as “abandoned”. The property will be taken to “belong” to the charity shop – R (on the application of Ricketts) v Basildon Magistrates’ Court [2010] EWHC 2358 (Admin)

Lost property (including that which the owner has given up searching for) is not “abandoned”.

This principle is well-shown by the case of Hibbert v McKiernan [1948] 2 KB 142 where the defendant was convicted of theft after he was found collecting lost golf balls from a local golf course. His argument that the balls had been “abandoned” was rejected. 

Dishonesty

The Theft Act 1968 does not provide any definition of dishonesty, but makes it clear that an appropriation will not be dishonest if:

• The defendant appropriates the property of another with the belief that they have a legal right to deprive the other of it (Section 2(1)(a) Theft Act 1968)

• The defendant appropriates the property of another in the belief that they would have the other’s consent if the other knew of the appropriation and its circumstances (Section 2(1)(b) Theft Act 1968)

• The defendant appropriates property belonging to another in the belief that the person the property belongs to cannot be discovered by taking reasonable steps (Section 2(1)(c) Theft Act 1968)

Development of the test for dishonesty

R v Ghosh [1982] QB 1053 two-stage test for dishonesty:

1. Was what was done dishonest according to the standards of reasonable and honest people? If no, the defendant is not dishonest. If yes:

2. Did the defendant realise that reasonable and honest people regard what he did as dishonest? If yes, he is dishonest; if no, he is not

Ivey v Genting Casinos [2017] UKSC 67 has now overruled the second limb of the Ghosh test.

It now appears, following Ivey, that the test for dishonesty the courts will use moving forward is the first limb of the Ghosh test only.

I.e. “Was what was done dishonest according to the standards of reasonable and honest people?”

S.2 (2) offering to pay won’t get rid of a theft conviction.

Intention to Permanently Deprive

The Theft Act 1968 does not contain any definition of “permanently deprive”.

However, section 6 of the Act specifies that a defendant will be taken to have intended to permanently deprive another person of property if they either:

1. Intend to treat the property in question as their own, and in so doing dispose of the other’s rights to the property; or

2. Borrow or lend the property for a period of time which essentially makes it equivalent to an outright taking of the property.

So, in other words, if the defendant only intends to “borrow” the property temporarily, there will be no theft, even if the defendant is dishonest.

This is because the defendant will not have any “intention to permanently deprive”.

Case example for IPD

R v Lloyd [1985] QB 829 

It was held that the defendant could only have been taken to have an intention to permanently deprive if he had returned the films in a state where their goodness or practical value had been diminished.

If the goodness of the property is altered…

If, however, a defendant treats the property of another in a way that erodes the goodness of that property, or fundamentally damages or alters the character of that property, this will amount to an “intention to permanently deprive”, even if the defendant intends to return the property to the owner.

For instance, a defendant who takes an iron axe from the victim and melts it down into an iron bar, and then returns it to the victim, will be taken to have “intended to permanently deprive” the victim of the iron axe – Richards (1844) 1 Car & Kir 532

Similarly, a defendant who takes a horse from the victim, kills the horse, and then returns the horse’s carcass to the victim, will be taken to have “Intended to permanently deprive” the victim of the horse – Cabbage (1815) Russ & Ry 292

Similarly, if a defendant takes property belonging to the victim, and agrees to return the property to the victim, but only in exchange for payment, this too will amount to an intention to permanently deprive – R v Raphael [2008] EWCA Crim 1014

A defendant who takes property belonging to another and pawns that property, intending to redeem the property and restore it to the victim at a later date, but with no reasonable prospect of being able to do so, may also be taken to have intended to permanently deprive the victim of the property – Phetheon (1840) 9 C & P 552