Theft

Theft is defined in s 1 of the Theft Act 1968 which states that:

1 A person is guilty of theft if he dishonestly appropriates property belonging to another

with the intention of permanently depriving the other of it.

The Act then goes on in the next five sections to give some help with the meaning of the
words or phrases in the definition. This is done in the order that the words or phrases
appear in the definition, making it easy to remember the section numbers. They are:

s 2 dishonestly;
s 3 appropriates;
s 4 property;
s 5 belonging to another;
s 6 with the intention of permanently depriving the other of it.

The elements of theft

The actus reus of theft is made up of the three elements in the phrase appropriates prop-
erty belonging to another. So to prove the actus reus it has to be shown that there was
appropriation by the defendant of something which is property within the definition of
the Act and which, at the time of the appropriation, belonged to another. All these seem
straightforward words, but the effect of the definitions in the Act together with case
decisions means that there can be some surprises. For example, although the wording
belonging to another seems very clear, it is possible for a defendant to be found guilty
of stealing his own property. There are two elements, which must be proved for the mens
rea of theft. These are that the appropriation of the property must be done dishonestly,
and there must be the intention of permanently depriving the other person of it. We will
now go on to consider each of the elements of theft in depth.

1. Appropriation

The more obvious situations of theft involve a physical taking, for example a pickpocket
taking a wallet from someones pocket. But appropriation is much wider than this.

Section 3(1) states that:

3(1) 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.
Assumption of the rights of an owner

The first part to be considered is the statement that any assumption by a person of the
rights of an owner amounts to appropriation. The rights of the owner include selling the
property or destroying it as well as such things as possessing it, consuming it, using it,
lending it or hiring it out.

In Pitham v Hehl [1977] Crim LR 285, CA, D had sold furniture belonging to another
person. This was held to be an appropriation. The offer to sell was an assumption of the
rights of an owner and the appropriation took place at that point. It did not matter whether
the furniture was removed from the house or not. Even if the owner was never deprived
of the property, the defendant had still appropriated it by assuming the rights of the owner
to offer the furniture for sale.

In Corcoran v Anderton (1980) Cr App 104, two youths tried to pull a womans handbag
from her grasp, causing it to fall to the floor. The seizing of the handbag was enough for
an appropriation (the youths were found guilty of robbery which has to have a theft as
one of its elements), even though they did not take the bag away.

Later assumption of a right

Section 3(1) also includes within the meaning of appropriation situations where a
defendant has come by the property without stealing it, but has later assumed a right to it
by keeping it or dealing with it as owner. This covers situations where the defendant has
picked up someone elses property, e.g. a coat or a briefcase, thinking that it was his own.
On getting home the defendant then realises that it is not his. If he then decides to keep
the property, this is a later assumption of a right and is an appropriation for the purposes
of the Theft Act 1968.

However, under s 3(1) if the person has stolen the item originally, then any later keeping
or dealing is not an appropriation. This was important in Atakpu and Abrahams [1994]
Crim LR 693. The defendants had hired cars in Germany and Belgium using false driving
licences and passports. They were arrested at Dover and charged with theft. The Court of
Appeal quashed their convictions because the moment of appropriation under the law in
Gomez (1993) (see section 13.2.3) was when they obtained the cars. So the theft had
occurred outside the jurisdiction of the English courts. As they had already stolen the
cars, keeping and driving them could not be an appropriation. This meant that the theft
was completed in the country where they hired the cars, and there was no theft in this
country.

Consent to the appropriation

Can a defendant appropriate an item when it has been given to them by the owner? This
is an area which has caused major problems. Nowhere in the Theft Act does it say that the
appropriation has to be without the consent of the owner. So, what is the position where
the owner has allowed the defendant to take something because the owner thought that
the defendant was paying for it with a genuine cheque? Or where the item was hired (as
in Atakpu and Abrahams), but unknown to the owner the defendant intended to take it
permanently? This point was addressed in Lawrence [1972] AC 626; [1971] Cr App R 64.

The decision in Gomez

The point as to whether the appropriation had to be without the consent of the owner was
considered again by the House of Lords in Gomez [1993] 1 All ER 1.

Gomez [1993] 1 All er 1

Gomez was the assistant manager of a shop. He persuaded the manager to sell electrical
goods worth over 17,000 to an accomplice and to accept payment by two cheques,
telling the manager they were as good as cash. The cheques were stolen and had no value.
Gomez was charged and convicted of theft of the goods.

The Court of Appeal quashed the conviction, relying on the judgment in Morris (1983)
that there had to be adverse interference for there to be appropriation. They decided that
the managers consent to and authorisation of the transaction meant there was no
appropriation at the moment of taking the goods.

2. Property

For there to be theft, the defendant must have appropriated property. Section 4 gives
a very comprehensive definition of property which means that almost anything can be
stolen. The definition is in s 4(1) of the Theft Act 1968:

4(1) Property includes money and all other property real or personal, including
things in action and other intangible property.

This section lists five types of items which are included in the definition of
property. These are:

money
real property
personal property
things in action
other intangible property.

In this list, money is self-explanatory. It means coins and banknotes of any currency.
Personal property is also straightforward as it covers all moveable items. Books,
CDs, jewellery, clothes and cars are obvious examples, but it also includes very large
items such as aeroplanes or tanks and very small trivial items such as a sheet of paper.
It has even been held in Kelly and Lindsay [1998] 3 All ER 741 that body parts from
dead bodies can be personal property, for the purposes of theft.

Kelly and Lindsay [1998] 3 All ER 741

Kelly was a sculptor who asked Lindsay to take body parts from the Royal College of
Surgeons where he worked as a laboratory assistant. Kelly then made casts of the
parts. They were convicted of theft and appealed on the point of law that body parts
were not property. The Court of Appeal held that, though a dead body was not
normally property within the defini- tion of the Theft Act, the body parts were
property as they had acquired different attributes by virtue of the application of skill,
such as dissection or preservation techniques, for exhibition or teaching purposes.

3. Belonging to another

For the purposes of theft, the property must belong to another. However, s 5(1) of the
Theft Act 1968 gives a very wide definition of what is meant by belonging to
another.

5(1) Property shall be regarded as belonging to any person having possession or

control of it, or having in it any proprietary right or interest (not being an equitable
interest arising only from an agreement to transfer or grant an interest).

From this it can be seen that possession or control of the property or any proprietary
interest in it is sufficient. One reason for making it wide is so that the prosecution
does not have to prove who is the legal owner.

Possession or control

Obviously, the owner of property normally has possession and control of it, but there
are many other situations in which a person can have either possession or control of
property. Someone who hires a car has both possession and control during the period
of hire. If the car is stolen during this time, then the thief can be charged with stealing
it from the hirer. Equally, as the car hire firm still own the car (a proprietary right), the
thief could be charged with stealing it from them.

The possession or control of the item does not have to be lawful. Where B has stolen
jewellery from A and subsequently C steals it from B, B is in possession or control of
that jewellery and C can be charged with stealing it from B. This is useful where it is
not known who the original owner is, as C can still be guilty of theft. This wide
definition of belonging to has led to the situation in which an owner was convicted
of stealing his own car.

Turner (No 2) [1971] 2 All er 441

Turner left his car at a garage for repairs. It was agreed that he would pay for the
repairs when he collected the car after the repairs had been completed. When the
repairs were almost fin- ished the garage left the car parked on the roadway outside
their premises. Turner used a spare key to take the car during the night without paying
for the repairs. The Court of Appeal held that the garage was in possession or control
of the car and so Turner could be guilty of stealing his own car.

Proprietary right or interest

 Clearly, legal ownership comes within this, but a proprietary right or interest is much
wider than just ownership. There are also equitable rights to property, for example the
trustees of a trust fund have the legal ownership of the fund, but the beneficiaries
have the equitable interest.

4. Dishonestly

There are two points which need to be proved for the mens rea of theft. These are:
dishonesty intention permanently to deprive.

Apart from these the Act also states in s 1(1) that it is immaterial whether the
appropria- tion is made with a view to gain, or is made for the thiefs own benefit. In
other words, if all the elements of theft are present, the motive of D is not relevant. So
a modern-day Robin Hood stealing to give to the poor could be guilty of theft. D does
not have to gain anything from the theft, so destroying property belonging to another
can be theft, although it is also, of course, criminal damage. Theft can also be charged
where D does not destroy the others property but throws it away. For example, if D
threw a water- proof watch belonging to another into the sea, this could be theft.

The 1968 Theft Act does not define dishonesty, though it does give three situations
in which Ds behaviour is not considered dishonest.

The Ghosh testAs can be seen, s 2 only applies in specific circumstances. It does not
create a general rule or definition about dishonesty. In its Eighth Report, the Criminal
Law Revision Commit- tee stated that it had used the word dishonestly in preference to
the word fraudulently because:

The question Was this dishonest? is easier for a jury to answer than the question Was
this fraudulent? Dishonesty is something which laymen can recognise when they see it,
whereas fraud may seem to involve technicalities which have to be explained by a
lawyer.

It appears that, since they took the view that dishonesty was something laymen could
recognise, there was no need for a definition. Not surprisingly, the early cases on the
Theft Act took the view that whether the defendants state of mind was dishonest was a
matter for the jury to decide. In Brutus v Cozens [1972] 2 All ER 1297, the House of
Lords held that the meaning of an ordinary word such as dishonestly was not a question
of law for the judge, but one of fact for the jury.

Ghosh [1982] 2 All er 689

Ghosh was a doctor acting as a locum consultant in a hospital. He claimed fees for an
opera- tion he had not carried out. He said that he was not dishonest as he was owed the
same amount for consultation fees. The trial judge directed the jury that they must apply
their own standards to decide if what he did was dishonest. He was convicted and
appealed against the conviction.

The Court of Appeal considered all the previous cases on the matter and decided that the
test for dishonesty should have both objective and subjective elements.

5. With intention to permanently deprive

The final element which has to be proved for theft is that the defendant had the intention
to permanently deprive the other of the property. In many situations there is no doubt that
the defendant had such an intention. For example, where an item is taken and sold to
another person, or where cash is taken and spent by the defendant. This last example is
true even when D intends to replace the money later, as was shown in Velumyl [1989]
Crim LR 299 where D, a company manager, took 1,050 from the office safe. He said
that he was owed money by a friend and he was going to replace the money when that
friend repaid him. The Court of Appeal upheld his conviction for theft as he had the
intention of permanently depriving the company of the banknotes which he had taken
from the safe, even if he intended to replace them with other banknotes to the same value
later.

Another situation where there is a clear intention to permanently deprive is where the
defendant destroys property belonging to another. This can be charged as theft, although
it is also criminal damage. There are, however, situations where it is not so clear and to
help in these s 6 of the Theft Act 1968 explains and expands the meaning of the phrase.

Penal Code 1860

Of Theft

Theft 378. Whoever, intending to take dishonestly any moveable property

out of the possession of any person without that person's consent,
moves that property in order to such taking, is said to commit theft.

Explanation 1.-A thing so long as it is attached to the earth, not

being moveable property, is not the subject of theft; but it becomes
capable of being the subject of theft as soon as it is severed from the
earth.

Explanation 2.-A moving effected by the same act which effects the
severance may be a theft.

Explanation 3.-A person is said to cause a thing to move by

 removing an obstacle which prevented it from moving or by
separating it from any other thing, as well as by actually moving it.

Explanation 4.-A person, who by any means causes an animal to

move, is said to move that animal, and to move everything which, in
consequence of the motion so caused, is moved by that animal.

Explanation 5.-The consent mentioned in the definition may be

express or implied, and may be given either by the person in
possession, or by any person having for that purpose authority either
express or implied.

379. Whoever commits theft shall be punished with

Punishment for imprisonment of either description for a term which may
theft extend to three years, or with fine, or with both.

Theft in 380. Whoever commits theft in any building, tent or

dwelling-house, vessel, which building, tent or vessel is used as a
etc human dwelling, or use for the custody of property,
shall be punished with imprisonment of either
description for a term which may extend to seven
years, and shall also be liable to fine.

Theft by clerk or 381. Whoever being a clerk or servant, or being

servant of employed in the capacity of a clerk or servant,
property in commits theft in respect of any property in the
possession of possession of his master or employer, shall be
master
punished with imprisonment of either description for
a term which may extend to seven years, and shall
also be liable to fine.

Theft after 382. Whoever commits theft, having made

preparation preparation for causing death, or hurt, or restraint, or
made for fear of death, or of hurt, or of restraint, to any
causing death, person, in order to the committing of such theft, or in
hurt or restraint,
order to the effecting of his escape after the
in order to the
committing of such theft, or in order to the retaining
committing of
the theft of property taken by such theft, shall be punished
with rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to fine.