The Theft Act 1968

• Theft (Act)

  Theft Act 1968
• Definition of Theft

  Theft is defined under section 1(1) of the Theft Act 1968 which provides that " a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of dishonestly depriving the other if it. "
• Actus Reus elements of theft

  Appropriation s.3(1)

  Property s.4

  Belonging to another s.5
• Mens Rea elements of Theft

  Dishonesty, s.2( 1) A-C ; Ghosh Test

  Intention to permanently deprive, s.6
• Elements of Theft

  It was established in Morris [1984] that all 5 elements of Theft must be established in order to secure a conviction of Theft.
• Appropriation- partial definition


  Appropriation is defined under section s.3(1) which provides that " any assumption by a person, of the rights of the owner amounts to appropriation, this included when he has come to the property( innocently or not) without stealing it, any later appropriation by dealing with it or keeping it as the owner.
• Case Law on appropriation

  Lawrence[ 1972]

  Morris[1972]

  Gomez[1993]

  Hinks[2000]
• Morris[1984]


  An assumption of a single right is sufficient to appropriation. Not all rights must be assumed.
• Lawrence[ 1972]


  Consent is immaterial to appropriation
• Gomez [1993]


  Resolved the confusion on consent created by different case law of Lawrence and Morris and established that Lawrence is the right authority and thus Consent is indeed immaterial
• the Hinks [2003]

  A valid gift can be appropriated and thus if the defendant is dishonest, it can constitute theft. This is contrary to principles of civil law.
• decision to assume the rights of the owner argued that s mere decision to assume rights of the owner is not an assumption of them. Appropriation requires conduct of some kind, even if it is no more than "keeping".
• Offer to sell property belonging to another

  Even if D has gone so far as to offer to sell the thing, he has assumed the right to dispose of the owner's entire interest and it is clear that there is an appropriation.
• Assuming further rights ( when D has temporary rights over the property)


  If D hires a car and decides to drive the car to a car dealer, he does not commit theft by driving the car to the dealer. As a bailee he has proprietary rights in the car. Of course, D steals the car as soon as he offers to sell it, for he is now exercising a right which still belongs to the owner or agent.
• Property s.4

  Section 4(1) provided that property includes : money, real or personal property , things in action, intangible property.
• Things that are not property and thus cannot be stolen

  Land, wild creatures, wild plants, confidential information (Oxford v Moss[1979]), electricity (Low v Blease[1975]), services( covered under the Fraud Act 2006)
• Things in action s.4(1)


  Things in action is a right which can be enforced by legal action.

  Examples include: a share in a company, a debt, a copyright, a trademark, a credit in a bank account and an agreed overdraft.
• Belonging to another s.5


  not necessary to prove to whom the property belonged, as long as it belonged to another person
• Belonging to another s.5(1) definition

  Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest.
• Can you steal your own property?

  Turner [1971] A person can steal its own property if another has possession or control of it at the time of appropriation.
• Property received for a particular purpose, s.3 (3)

  provides that" where a person receives property from from or on account of another, and is under an obligation to the other to retain and deal with that property in a particular way, the property shall be regarded as belonging to another.
• Property received for a particular purpose, s.3 (3) Case Law

  There must be an obligation on the defendant to deal with the property in a particular way(the obligation must be a legal one, under civil law, moral obligation is not sufficient).

  Davidge v Bunnet [1984]

  Where money is given to give to someone else, there is clearly an obligation to deal with the money in that particular way. Wain [1995] Same applies to chary money
• Property obtained by mistake, s.5 (4)

  Where a person gets property by another's mistake, and is under an obligation to make restoration of the property...an intention not to make restoration shall be regarded as an intention to deprive that person of it.
• Section 1(2)


  It is immaterial whether the appropriation is made with a view to gain, or is made for the thief's own benefit
• Actus Reus- Analise


  Ormerod argued that the Actus Reus of Theft is so wide after the decisions of Morris[1984] Gomez[1993] and Hinks[2000] that the effect is that the actus reus of theft is reduced to vanishing point.
• Mens Rea of Theft


  The mens rea of the offence has proved only marginally less controversial than the actus reus.
• The Law Commission opinion on dishonesty

  The Law Commission stated in its Consultation paper No 155 that" in theft... dishonesty is now the principal determinant of criminality.
• Section 2 of the Theft Act 1968


  Defines circumstances in which conduct is nor dishonest. This section seeks to assist somewhat in defining the meaning of dishonesty . But the section does not specify any conduct which must not be regarded as dishonest.
• Dishonesty s.2(1) A-C of the Theft Act 1968

  Where section 2(1) applies, dishonesty id rebutted.

  Inferences may be drawn from the D's conduct, but it is plain that, and it must be made plain to a jury that the question is as to the state of D's mind.
• Dishonesty( Mens Rea) s.2(1) A

  D is not dishonest if he appropriates property in the honest belief that he has a right in law to deprive the other of it. It is irrelevant that no such right exists. The belief needs not be reasonable. This does not necessarily exclude a belief in a merely moral right, it is a jury question.
• Dishonesty( Mens Rea) s.2(1) B

  D is not dishonest if he appropriates property in the honest belief that he would have the owner's consent if the owner knew of the appropriation and the circumstances of it. This specific provision precludes silly prosecutions, as situations like this happen every day
• Dishonesty( Mens Rea) s.2(1) C

  D is not dishonest if he appropriates the property in the belief that the owner of the property cannot be found by taking reasonable steps. The question is one of D's belief, not whether it is a reasonable belief.
• Section 2(2)


  Provides that" A person's appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property." The section is important in emphasizing that D's willingness to pay the market value for appropriated property will not negate dishonesty.
• Dishonesty without intention to cause loss

  Lord Bingham observed that the prospect of loss is not determinative of dishonesty
• What if section 2 does not apply

  If section 2 does not apply, the Ghosh test applies.

  The Ghost Test is the one test of dishonesty in English criminal law and it applies in any case in which dishonesty needs to be proved.
• The Ghost Test 2 limbs

  The Ghost Test has two limbs. The Objective limb and the Subjective limb
• Ghost Test Objective limb


  "Was what was done dishonest according to the ordinary standard of reasonable and honest people?" If no, D is not dishonest. If yes, the subjective limb applies.
• Ghost Test Subjective limb


  " Did the defendant realize that reasonable and honest people regard what he did as dishonest? if yes, he is dishonest, if no, he is not.
• The Ghost Test and ECHR

  The Ghost test potentially conflicts with article 7 of the ECHR on the basis of lack of certainty. Such vague elements as those of the Ghost Test are not, arguably accessible and predictable to individuals.
• Criticisms of the Ghost Test

  Professor Griew suggests that the test confuses the state of mind with the concept of dishonesty. Dishonest as a mens rea element should be purely based on the state of mind of the defendant and then maybe extended by an extra requirement that the honest belief is reasonable.

  Professor Griew also argues that leaving a question of law to the jury may lead to inconsistencies with the potential for different juries to reach different verdicts on identical facts and thus presenting acute problems in respect to Article 7 of the ECHR.