Theft Mens Rea: Dishonesty and Intention to Permanently Deprive week 24

The statutory definition of theft is provided by the Theft Act 1968, $s.1(1)$. 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." This offence is classified as triable either way, meaning it can be heard in either the Magistrates' Court or the Crown Court. Upon conviction, the offence carries a maximum sentence of $7$ years' imprisonment. It is important to note, pursuant to $s.1(2)$ of the Theft Act 1968, that it is immaterial whether the appropriation is made with a view to gain or for the thief’s own benefit; the law is indifferent to whether the thief gains or the victim loses, focusing solely on the elements of the offence being met.

The Five Elements of Theft

The crime of theft is comprised of five distinct elements, categorized into Actus Reus (AR) and Mens Rea (MR). The Actus Reus elements include:

1. Appropriation under $s.3(1)$

2. Property under $s.4$

3. Belonging to Another under $s.5(1)$, $s.5(3)$, and $s.5(4)$
   The Mens Rea elements, which are the focus of this study, are:

4. Dishonesty under $s.2(1)$ and the Ivey test

5. Intention to Permanently Deprive (ITPD) under $s.1(1)$, $s.6(1)$, and case law such as Lloyd.

The Coincidence of Mens Rea and Actus Reus

For a theft conviction to occur, the dishonest intent must be formed at the exact time when the property belongs to another. This principle of coincidence was explored in Edwards v Ddin [1976]. If the property already belongs to the defendant at the time the dishonest intent is formed, it cannot be theft. For example, if a defendant takes an object intending to return it, but later decides to keep it after it has already legally passed into their possession, the timing of the intent is critical. If the intent is formed after the property is no longer "belonging to another," the initial appropriation may not constitute theft unless it falls under specific exceptions like $s.5(4)$, where property obtained by mistake is not returned.

Dishonesty: The Negative Approach ($s.2(1)$)

The Theft Act 1968 does not provide a positive definition of dishonesty. Instead, $s.2(1)$ outlines three specific situations where an appropriation is deemed NOT to be dishonest (the negative approach):

1. Under $s.2(1)(a)$, if the defendant appropriates property in the belief that they have a legal right to deprive the other of it, either for themselves or a third party.

2. Under $s.2(1)(b)$, if the defendant believes they would have the owner's consent if the owner knew of the appropriation and its circumstances.

3. Under $s.2(1)(c)$, if the defendant believes the owner cannot be discovered by taking reasonable steps. This does not apply to trustees or personal representatives who appropriate property.

Case law has refined these points. R v Robinson [1977] confirmed that the test under $s.2(1)$ is subjective; the defendant only needs an honest belief, not necessarily a reasonable one. This was reinforced in Small (1987) and Holden [1991]. In Mahmud (2024), the Court of Appeal clarified that the defendant does not need to know the law; what matters is their belief in entitlement, even if they are legally incorrect. In Terry [2001], it was noted that even a belief in a moral right might suffice, similar to the hypothetical scenario of Jean Valjean stealing bread out of necessity.

Dishonesty: The Positive Approach and the Ivey Test

For many years, the leading case for defining dishonesty was R v Ghosh [1982], which used a two-part test: first, whether the behavior was dishonest by the ordinary standards of reasonable and honest people (objective), and second, whether the defendant realized they were being dishonest by those standards (subjective). However, Ghosh was overruled by the Supreme Court in Ivey v Genting Casinos (UK) Ltd [2017].

The current Ivey test for dishonesty involves two stages:

1. A pre-stage where the jury must decide the defendant's subjective state of mind and their knowledge or belief as to the facts.

2. A main stage where the jury applies an objective test to that state of mind, asking whether the defendant's intent was dishonest by the "standards of ordinary decent people."

Dishonesty is considered a matter of fact for the jury to decide without further elaboration, as it is something laymen recognize. This applies even when a defendant claims they acted honestly, such as in Ivey, where a gambler argued his "edge sorting" in baccarat was not cheating. Furthermore, lying is not automatically a sign of dishonesty. In O’Connell [1991] (concealing previous mortgages) and Clarke [1996] (lying about professional background), the courts allowed appeals so juries could determine if the specific lies amounted to dishonesty based on the circumstances.

Intention to Permanently Deprive (ITPD): Standard Definition

ITPD refers to the defendant’s aim, objective, or purpose at the time of appropriation. It involves the intention to remove all value from the property permanently. It is inferred from facts. Crucially, actual permanent deprivation is not required for the offence of theft; the intention is sufficient. If a defendant takes a watch intending to return it but loses it, there is no ITPD at the time of taking, and thus no theft. If the defendant returns the object, it matters whether they intended to return it from the start or only decided to do so later after the object lost its value or usefulness to them.

Constructive Intent and Borrowing under Section $6$

Section $6$ of the Theft Act 1968 addresses situations where a defendant might only intend to deprive the owner temporarily, yet the law treats it as an intention to permanently deprive (constructive intention):

1. Treating property as one's own to dispose of regardless of the owner’s rights ($s.6(1)$). This includes "ransom cases" where property is returned only upon payment (Coffey [1987]; Raphael [2008]). However, if a car is taken for a getaway and left undamaged to be found, as in Mitchell [2008], there may be no ITPD as it was likely to be returned to the owner.

2. Borrowing or lending in circumstances equivalent to an outright taking ($s.6(1)$). In R v Lloyd [1985], the court held that borrowing only amounts to ITPD if the intention is to return the thing in such a changed state that "all its goodness or virtue has gone." This was not met when cinema films were borrowed just to make copies and returned undamaged. Conversely, in R v Velumyl [1989], borrowing money is treated as theft unless the exact same coins and notes are returned, as the defendant intends to permanently deprive the owner of those specific physical items.

3. Disposing of property under a condition as to its return ($s.6(2)$). This covers cases where a defendant pawns another's property, intending to buy it back but realizing they might not be able to perform that condition. Risking the loss of the property in this manner is treated as behaving as the owner and satisfying the MR for theft. If the defendant honestly believes there is zero risk of not being able to return it, they might fall outside $s.6(2)$.

Conditional Intent

Conditional intent occurs when a defendant intends to steal only if they find something worth stealing. In Easom [1971], a defendant rummaged through a handbag and replaced it without taking anything because nothing was valuable. The Court of Appeal quashed the theft conviction, ruling that a conditional intent to deprive is insufficient for theft of the bag itself. However, AG’s References (Nos 1 and 2 of 1979) established that while there may be no theft of the bag, there could be theft of the bag's intended contents if the defendant had the intent to steal them.

Case, Statute, and Legal Authority Summaries

Theft Act 1968

The principal statute governing theft and related offences in England and Wales. Section 1(1) defines theft as the dishonest appropriation of property belonging to another with the intention of permanently depriving them of it.

Edwards v Ddin

A case concerning the coincidence of actus reus and mens rea in theft. It established that dishonest intent must exist at the time the property belongs to another. If the intent arises later, theft may not be made out unless a statutory exception applies.

R v Robinson

Confirmed that under s2(1)(a) Theft Act 1968, the defendant only needs an honest belief in a legal right to the property, even if that belief is unreasonable.

Small

A case reinforcing the subjective nature of the defendant’s belief under s2(1) of the Theft Act. An honestly held belief may prevent dishonesty even if objectively mistaken.

Holden

Held that a genuinely held belief can prevent dishonesty, even if the defendant’s belief is unreasonable by ordinary standards.

Mahmud

Clarified that the defendant does not need to understand the law correctly. What matters is whether they genuinely believed they were entitled to the property.

R v Ghosh

Previously the leading authority on dishonesty. It established a two-stage test combining objective dishonesty and the defendant’s subjective awareness of dishonesty. The case was later overruled by Ivey.

Ivey v Genting Casinos (UK) Ltd

The current leading authority on dishonesty. The Supreme Court removed the subjective limb from Ghosh and held that dishonesty is assessed objectively according to the standards of ordinary decent people, after determining the defendant’s actual belief about the facts.

O’Connell

A case illustrating that lying is not automatically dishonest. Whether conduct is dishonest remains a question for the jury based on all the circumstances.

Clarke

Confirmed that false statements do not automatically prove dishonesty; the jury must assess the context and ordinary standards of honesty.

R v Lloyd

Established that borrowing only amounts to intention to permanently deprive where the property is returned in such a changed state that all its “goodness, virtue, or practical value” has gone.

Coffey

A case illustrating that holding property to ransom can amount to treating it as one’s own to dispose of regardless of the owner’s rights under s6(1).

Raphael

Confirmed that demanding payment for the return of another person’s property may demonstrate an intention to permanently deprive.

Mitchell

Held that taking a car temporarily without intent to permanently deprive may fall short of theft if the vehicle is intended to be recoverable and undamaged.

R v Velumyl

Held that borrowing money may amount to theft because returning equivalent money is not the same as returning the identical notes and coins taken.

Easom

The defendant searched a handbag intending to steal only if valuables were found. The court held there was no theft of the bag because the defendant lacked unconditional intent to permanently deprive.

Attorney General’s References (Nos 1 and 2 of 1979)

Clarified that conditional intent may still support theft of the intended contents, even if there is no theft of the container itself.

Legal Concepts Mentioned

Theft

A criminal offence under the Theft Act 1968 involving dishonest appropriation of property belonging to another with the intention to permanently deprive.

Actus Reus

The physical element of an offence. In theft, this includes appropriation of property belonging to another.

Mens Rea

The mental element of a crime. In theft, this includes dishonesty and intention to permanently deprive.

Dishonesty

A key mens rea element in theft, now assessed objectively according to the standards of ordinary decent people following Ivey.

Intention to Permanently Deprive

The requirement that the defendant intends to treat property as their own to dispose of regardless of the owner’s rights.

Conditional Intent

A situation where the defendant intends to steal only if certain conditions are met, such as finding valuables worth taking.