Theft

 S.1(1) of the Theft Act 1968 – ‘Dishonestly appropriate property of another with
intention to permanently deprive the other of it

Actus Reus Appropriation property of another

Mens Rea Dishonest
Intention to permanently deprive

Appropriation

S.3(1) Theft Act 1968 – Definition of appropriation

 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 the right to it by keeping or dealing with it as owner.
 Appropriation is assuming the rights of the owner of the property. Section 3 also deals
with the word ‘later assumption/appropriation’. These are situations where the
defendants do not have the mens rea of theft. When he initially appropriates the
property, but then forms the mens rea at a later stage when he does have the mens rea
of theft.
 Any assumption of the owner’s rights is appropriation and the defendant does not need
to assume all the rights of the owner. Even the slightest right of the owner is sufficient.
 R v Morris (1984) - Defendant swapped the price labels of goods in the supermarket and
then paid goods with lower price. The courts decided that he has assumed the right of
the supermarket over the property i.e. the right to determine the price.

Lord Roskill:

"If one postulates an honest customer taking goods from a shelf to put in his or her
trolley to take to the
checkpoint there to pay the proper price, I am unable to see that any of these actions
involves any assumption by the shopper of the rights of the supermarket...The concept
of appropriation in my view involves not an act expressly or impliedly authorized by the
owner but an act by way of adverse interference with or usurpation of those rights. "

* Consent is relevant to the concept of appropriation (Consent is irrelevant) - this was

later overruled by R v Gomez – discussed below
 Lawrence v MPC (1972) – The defendant was a taxi driver who picked up an italian
student who cannot speak much English. On reaching hid destination, the defendant
 stated that the £1 note the student had given him was not enough. The student
presented his wallet to the defendant who took a further £5. House of Lords held that
absence of consent is not a requirement for appropriation and the elements can be
satisfied with the owner’s consent.
 DPP v Gomez (1993) - House of Lords by majority affirmed that appropriation does not
require the absence of consent. Here, the defendant who was an Assistant Manager of
an electrical shop accepted two stolen cheques and supplied his friends E17,000 worth
of electrical goods. The defendant then deceived the manager of the shop into
accepting the cheques. He was acquitted of theft but later the conviction was quashed
because consent was not relevant to appropriation. This case followed Lawrence v MPC
and overruled Morris.
 As a result of Gomez, the definition of appropriation is widely construed – it appears
that anyone doing anything to the property belonging to another with or without the
consent of the owner, appropriates it
 R v Mazo – decided to limit the influence of Gomez, adopted a narrow interpretation of
Gomez. This case involved the maid who dishonestly took advantage of her employer
who was suffering from short term memory losses. The COA quashed the defendant’s
conviction by arguing that Gomez decided that it is possible to appropriate property
with the consent of the owner if the consent was obtain via fraud. This simply means
there can be no conviction of theft if the defendant had received a valid gift inter vivos
 R V Hinks – Defendant is a 53 year old man who is extremely naive or gullible. The
prosecution argued that defendant encouraged the man to give her £60 000 and a
television set. Defendant was found guilty. The HOL confirmed that a valid gift can be a
subject of appropriation. The court were of the opinion that this was in the interest of
justice
 Hinks has been criticised for several reasons
 The decision creates a conflict between criminal law and civil law. A defendant
who is a recipient of a valid gift may be guilty of theft even though he has perfect
right in the property in civil law. Lord Hobhouse in delivering the dissenting
judgement arguing that it would be simplistic ad erroneous to disregard the civil
law when interpreting the elements of theft. The decision however can be
defended on the grounds that it serve to protect the venerable.
 The House of Lords decision has rendered the mens rea of theft of pivotal
importance. The HOL did not restrict the decision of Gomez to situations
involving consent obtained by fraud. The actus reus is now given such a wide
interpretation that almost anything involving property belonging to another can
satisfy the actus reus. The liability appears to depend on the mens rea
 The decision also requires the defendant to assume his own rights over the
property. This is so because when a person receives a valid gift, the donor gives
up his title and rights over the property, and the recipient acquires title to the
property. Technically , when the recipient receives the property under a valid
gift, the recipient acquires his title
Property

4 “Property”.

(1) “Property” includes money and all other property, real or personal, including things in
action and other intangible property.
(2) A person cannot steal land, or things forming part of land and severed from it by him or
by his directions, except in the following cases, that it to say—
(a) when he is a trustee or personal representative, or is authorised by power of
attorney, or as liquidator of a company, or otherwise, to sell or dispose of land
belonging to another, and he appropriates the land or anything forming part of it by
dealing with it in breach of the confidence reposed in him; or
(b) when he is not in possession of the land and appropriates anything forming part of
the land by severing it or causing it to be severed, or after it has been severed; or
(c) when, being in possession of the land under a tenancy, he appropriates the whole or
part of any fixture or structure let to be used with the land.
(3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or
foliage from a plant growing wild on any land, does not (although not in possession of
the land) steal what he picks, unless he does it for reward or for sale or other
commercial purpose. For purposes of this subsection “mushroom” includes any fungus,
and “plant” includes any shrub or tree.
(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 either 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 into possession.

 Oxford v Moss - Information is not property.

 Corpses and body parts (cannot be stolen) Exception: R v Kelly – When body is reduced
for educational purpose, it can be regarded as appropriation when it is stolen
 Services – ex. Bus rides, driving licence and private tuition (cannot be stolen)
 Money can, of course, be stolen but it is personal property. Money for this purpose
includes actual notes and coins

Cheques

 Jacky takes a cheque payable to jack and made it payable to her – What is stolen here is
jack’s right to be drawn from the account – things in action
  Rachel steals a check book from Jeremy and bought a washing machine – what is stolen
here is the bank’s debt owed to Rachel – Things in action
 Robin supposed to buy a fridge from Victor. He bought a cheque on Victor’s name but
decided not to buy the fridge. Victor took the cheque without Robin’s permission. The
property here is the valuable security – cheque. When he cashes the cheque – he is
appropriating property belonging to another.

Property belonging to another

Can you steal your own property?

 R v Turner (No.2) – You can appropriate your own property. The defendant took his car
in to a service station for repairs. When he went to pick it up he saw that the car was left
outside with the key in. He took the car without paying for the repairs. He was liable
for theft of his own car since the car was regarded as belonging to the service station as
they were in possession and control of it.

What if the property is abandoned?

 The property is only abandoned if the owner wants to give up proprietary interest in the
property and if he decides not to transfer the interest to anyone else.
 Williams v Phillips - When the property is no longer wanted by the owner and is left out
as a refused for the local authority to collect, it is not abandoned and thus belonged to
another.

What if it is a lost property?

 Hibbert v McKiernan - Golf ball is still considered to belong to a golf club.

 Rostron case- Following Hibbert, the lost golf ball belongs to the golf club

Dishonesty

 S.2(1) TA 1968 - (1) A person’s appropriation of property belonging to another is not to

be regarded as dishonest—
(a) if he appropriates the property in the belief that he has in law the right to
deprive the other of it, on behalf of himself or of a third person; or
(b) if he appropriates the property in the belief that he would have the other’s
consent if the other knew of the appropriation and the circumstances of it; or
(c) (except where the property came to him as trustee or personal representative)
if he appropriates the property in the belief that the person to whom the
property belongs cannot be discovered by taking reasonable steps.
Ghosh Test

1. Whether the defendant is dishonest according to a reasonable man? – Objective

2. Whether the defendant realizes that a reasonable man would regard it as dishonest? –
Subjective

Ivey v Genting Casinos – Overruled Ghosh test

Requirement number one i.e. whether D is dishonest according to a reasonable man is

sufficient (Objective).

Intention to permanently deprive

Section 6 Theft Act 1968

(1) A person appropriating property belonging to another without meaning the other
permanently to lose the thing itself is nevertheless to be regarded as having the
intention of permanently depriving the other of it if his intention is to treat the thing as
his own to dispose of regardless of the other’s rights; and a borrowing or lending of it
may amount to so treating it if, but only if, the borrowing or lending is for a period and
in circumstances making it equivalent to an outright taking or disposal.
(2) Without prejudice to the generality of subsection (1) above, where a person, having
possession or control (lawfully or not) of property belonging to another, parts with the
property under a condition as to its return which he may not be able to perform, this (if
done for purposes of his own and without the other’s authority) amounts to treating the
property as his own to dispose of regardless of the other’s rights.

 If the defendant intends to give the property back to its owner, then there is no
intention to permanently deprive. However, borrowing property may amount to
intention to permanently deprive if it is taken for a period that makes it similar to an
outright taking.

 R v Lloyds - Lloyd worked as a chief projectionist at a cinema. Over a period of some

months Lloyd took films from his place of work, gave them to Bhuee & Ali who copied
them for distribution and gave them back to Lloyd who returned them to the cinema.
The judge left the issue of intention to permanently to deprive for the jury to decide.
They were all convicted with conspiracy to steal contrary to s.1 Criminal Law Act 1977
(liability requires proof of theft under the Theft Act 1968). They appealed contending
that as a matter of law the issue of intention to permanently deprive could not arise in
 the circumstances so the judge was wrong to put it to the jury. Appeal allowed. The
convictions were quashed. The wording of section 6(1) "and a borrowing or lending of it
may amount to so treating it if, but only if, the borrowing or lending is for a period and in
circumstances making it equivalent to an outright taking or disposal" requires all the
goodness, virtue and practical value to be taken from the goods. The films were
returned in much the same condition as when they were taken and thus did not fall
within the definition.

 R v Vinall (2012) - Defendant punched a young man on a bicycle and chased him and
took the bicycle. Defendant was charged with robbery where he needs to prove theft.
Bicycle was found abandoned nearby a bus shelter. The Court of Appeal explained that
intention to permanently deprive is also equivalent to intention to treat a thing as his
own to dispose of regardless of others’ rights.

 R v Lavender [1994] - The defendant removed some doors from a council property that
was due for demolition. He installed the doors in his girlfriend's flat which was also
owned by the council. He did have the intention to permanently deprive under s.6 (1) as
he treated the doors as his own to dispose of regardless of the owner's rights

Parting with the property with a condition as to its return

 When a person pawn the property belonging to another’s consent and if he may not be
able to buy back the property, he may be treating the property as his own to dispose
regardless of other’s right. Therefore he will have an intention to permanently deprive.
There seem to be confusion on whether 6(2) can apply if defendant is convinced he is
able to perform the condition for its return.
 Prof Smith – if defendant honestly believed that he will be able to meet the condition
for its return – 6(2) will not apply
 Prof Richard card – Even if defendant genuinely believes that the will be able to meet
the conditions for its return – 6(2) will apply