The Law of Theft under the Theft Act 1968

Terminology and Distinctions in Property Offenses

• Theft vs. Robbery:     * Robbery is distinguished from theft by the use of force.     * The inclusion of force makes robbery a more serious offense than simple theft.

• Theft vs. Burglary:     * Burglary involves stealing or entering a property with the intent to steal.     * The distinguishing factor is the illegal entry into a property in order to steal.

The Statutory Definition of Theft

• Theft Act of $1968$: The components of theft are codified under this act, which served largely as a consolidation of previous, often messy, crimes. Previous case law remains helpful for interpreting statutory wording.

• Section $1$ Definition:     * Theft is defined as the dishonest appropriation of property belonging to another with the intention to permanently deprive the other of that property.

• Components of Theft: There are five components categorized under Actus Reus and Mens Rea.     * Actus Reus components:         1. Property ($Section 4$).         2. Belonging to another ($Section 5$).         3. Appropriation ($Section 3$).     * Mens Rea components:         1. Intention to permanently deprive ($Section 6$).         2. Dishonesty ($Section 2$).

Actus Reus: Property ($Section 4$)

• Section $4(1)$ (Broad Inclusion): Property includes money, personal property, things in action, and other intangible property.     * Personal Property: Physical, tangible items such as a computer, car, phone, or television.     * Things in Action: Items that cannot be touched but allow a court action for a specific sum, such as a bank account. A defendant commits theft if they dishonestly transfer electronic money out of a victim's account.     * Other Intangible Property: Examples include debt or company shares.

• Common Law Additions:     * Gas: Can be stolen (Case: White).     * Water: Can be stolen if it is in a container (Cases: Faram's and O'Brien). Freestanding water (lakes/ponds) is subject to land theft rules and must be severed from the land to be stolen.

• Exclusions under Section $4(2)-(5)$:     * Land (Section $4(2)$): Land generally cannot qualify as property for theft, with three exceptions:         1. A trustee stealing property.         2. Stealing part of the land, such as topsoil or plants.         3. A tenant stealing a fixture or structure, such as a light fitting, door, or shed.     * Wild Plants (Section $4(3)$): Wild plants (including fungi and mushrooms) cannot be stolen unless they are picked for commercial reasons. Picking for personal use (e.g., jam for family) is not theft; picking to sell jam is theft.     * Wild Animals (Section $4(4)$): Truly wild animals cannot be stolen. They must be tamed or reduced into possession.         * Case: Creswell — Simply feeding an animal does not mean it is tamed.         * Case: Blades and Higgs — If an animal is trapped or killed, it becomes the property of the person who trapped or killed it.

• Common Law Exclusions:     * Electricity: Not property for theft. There is a separate offense of obstructing electricity under $Section 13$ of the Theft Act.     * Confidential Information: Cannot be stolen (Case: Oxford v Moss — a student who photocopied an exam paper was not liable for theft of the information, though taking the paper itself without returning it would be theft).     * Services: Cannot be stolen via the Theft Act (Case: Bolton — a train ride is a service).

• Human Bodies and Body Parts:     * Long-standing principle: Human bodies cannot be owned.     * Case: Kelly — Body parts can be stolen if they have undergone treatment (dissection or preservation) as they acquire a different attribute from a simple human body.     * Case: Yearworth — A civil law case involving a sperm bank found that men had ownership of their frozen sperm for negligence purposes; this may be persuasive in criminal law but requires statutory reform for clarification.

Actus Reus: Belonging to Another ($Section 5$)

• Definition ($Section 5(1)$): Property belongs to another if they have possession or control of it, or any proprietary right or interest in it.

• Possession and Control:     * Case: Rostron — Golf balls taken from a lake at night were stolen. Players surrendered balls to the club after $5$ minutes of search, giving the club possession and control.     * Case: Turner (No. $2$) — An owner was liable for stealing his own car from a garage that had possession and control (the garage had the keys and a right to possession until repairs were paid).

• Unlawful Ownership: Property can be stolen even if the victim's ownership is unlawful (Case: Smith, Michael, Andrew — theft of heroin).

• Proprietary Interest:     * Case: Marshall — Selling unexpired London Underground day tickets was theft because London Transport retained a proprietary interest in the tickets.

• Abandoned Items:     * Truly abandoned items cannot be stolen, but courts are reluctant to rule abandonment.     * Case: Williams and Phillips — Rubbish put out for collection is not abandoned.     * Case: Ricketts v Basildon Magistrates — Items left outside a charity shop are not abandoned.     * Case: Woodman — Scrap metal on occupied land remained in possession of the victim even if they were unaware of its presence.

• Special Cases of Belonging:     * Trust Property ($Section 5(2)$): Enforcers of the trust are treated as owners.     * Property for a Specific Purpose ($Section 5(3)$): Relies on a legal duty to deal with property in a specific way.         * Case: Clough — The existence of a legal duty is a question of law for the judge.         * Case: Davage and Bunnett — Money given for a gas bill used for shopping instead resulted in theft liability.         * Case: Wayne — Failure to hand over money raised for charity was theft.     * Property Given by Mistake ($Section 5(4)$): Receiver has an obligation to restore items.         * Case: Attorney General's Reference (No. $1$ of $1983$) — A police officer overpaid by mistake could be liable for theft if she dishonestly decided not to repay it.         * Case: Gresham — Liability for theft after collecting a mother's pension for $10$ years after her death.

Actus Reus: Appropriation ($Section 3$)

• Definition ($Section 3(1)$): Appropriation is any assumption by a person of the rights of an owner. This includes destroying, selling, giving away, or even touching the item without permission.

• Timing: Self-theft occurs the moment the rights of an owner are assumed (e.g., touching a chocolate bar with intent to steal it is appropriation).

• Exception for Bona Fide Purchasers ($Section 3(2)$):     * Purchasing stolen goods in good faith without realizing they are stolen prevents liability for theft.     * Case: Wheeler — An antique dealer sold a medal he didn't know was stolen; conviction quashed.     * Case: Broome v Crowther — Buying a $£200$ item for $£5$ while suspecting it was stolen negates the bona fide purchaser protection.

• The Issue of Consent:     * Case: Lawrence — Appropriation can occur even with the victim's consent (taxi driver taking too much money from a student's wallet).     * Case: Morris — Suggested appropriation required an "unauthorized act" (swapping price labels).     * Case: Gomez — Resolved the conflict between Lawrence and Morris. The House of Lords ruled that consent/authorization is irrelevant; appropriation happens regardless.

• Appropriation and Civil Title:     * Case: Hinks — A defendant can appropriate property even if they acquire legal civil title (a valid gift).     * Hinks befriended a man of limited intelligence and convinced him to give gifts worth $£60,000$. The court ruled that criminal law is distinct from civil law; the gifts were appropriations for the purposes of theft.

Mens Rea: Intention to Permanently Deprive ($Section 6$)

• Scope: The defendant must intend to deprive at the time of appropriation (Coincidence Principle). Success in depriving is not required.

• Section $6(1)$: Treating property as one's own to dispose of regardless of the other's rights constitutes intention to permanently deprive, even if the defendant doesn't mean for the victim to lose it forever.

• Borrowing or Lending: Included if the period and circumstances make it equivalent to outright taking.     * Case: Lloyd — Taking films from a cinema for a few hours to copy them was not theft as they were returned in their original state.

• Abandonment and IPD:     * Case: Mitchell — Abandoning a hijacked car with hazard lights on suggested an intention that it would be returned, thus no IPD.

• Damaged or Altered State:     * Case: DPP v J — Snapping headphones and returning them constitutes theft as the item is rendered useless.

• Taking Risks:     * Case: Fernandez — Gambling or investing a victim's property in a risky enterprise counts as IPD.

• Returning Similar Goods:     * Case: Velumyl — Replacing taken cash with different notes/coins still constitutes IPD because the original specific notes were permanently deprived.

• Selling Back to Owner:     * Case: Rafael — Stealing a car and offering to sell it back to the victim constitutes treating the property as one's own under $Section 6(1)$.

• Conditional Intent:     * Case: Easom — Looking through a handbag and deciding nothing is worth stealing was not IPD.     * Case: Attorney General's Reference (Nos. $1$ and $2$ of $1979$) — Breaking into a building to see what is worth stealing can satisfy the intent to steal; however, such cases are now often prosecuted as attempted theft.

Mens Rea: Dishonesty ($Section 2$ and Common Law)

• Subjective Exceptions under Section $2(1)$ (No Dishonesty if):     1. Section $2(1)(a)$: Honest belief in a legal right to deprive (Case: Skivington — demanding wife's wages at knifepoint was not theft as he believed they were owed).     2. Section $2(1)(b)$: Belief that the owner would have consented.     3. Section $2(1)(c)$: Belief that the owner cannot be found by taking reasonable steps (Case: Sylvester — stripping a car for parts failed this test; reasonable steps depend on the value of the item).

• Section $2(2)$: A willingness to pay for an item does not automatically negate dishonesty.

• Common Law Evolution of the Dishonesty Test:     * Feeley: Established an objective test based on generally accepted standards of behavior.     * Ghosh (Two-Stage Test):         1. Objective: Were the actions dishonest according to ordinary standards of reasonable people?         2. Subjective: Did the defendant realize that reasonable people would see it as dishonest?         * Case: Atkinson — Protected an absent-minded pharmacist.     * Ivey v Genting Casinos ($2017$): The Supreme Court criticized the subjective limb of the Ghosh test.         * Ivy (a gambler winning $£8,000,000$) was found dishonest under a new test.         * New Ivey Test:             1. What was the defendant's actual state of knowledge or belief as to the facts?             2. Was the conduct dishonest according to the standards of ordinary decent people?     * Barton ($2020$): The Court of Appeal confirmed that the Ivey test (heavily objective) has overruled the Ghosh test in criminal law, specifically in a case involving targeting elderly residents for profit.