theft

• What is Theft?

  If a person has committed a theft, this means that they have been successful in taking/stealing someone else's belongings. They have done this knowing that the item(s) belongs to someone else but has now decided to steal and keep it for themselves.

  Defined in Section 1 of the Theft Act 1968.
• Definition - Theft Act 1968 Section 1

  'dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it'
• Actus Reusof theft


  • Appropriation - defined in s.3
  • Property - defined in s.4
  • Belonging to another - defined in s.5
• Actus reus - Appropriation

  Section 3 of the Theft Act 1968 - 'any assumption by a person of the rights of the owner'.

  Appropriation means that the defendant has taken something. Obvious examples of this is where the defendant is physically taking something e.g. pickpocketing. However, theft can also be where someone destroys property, sells property, switching price tags etc.

  Regardless of the way they have stolen, they are essentially assuming the rights of an owner when they take something that does not belong to them.
• Actus reus - Appropriation

  For an appropriation to take place, the defendant needs to do something that assumes at least one of the owner's rights.

  Case - R v Vinall
• Actus reus - Appropriation

  The assumption of rights, of an owner, does not have to include an assumption of all the rights.

  Case - R v Morris
• Actus reus - Appropriation (consent)

  Consent is irrelevant for appropriation. (e.g. gifts or shopping - still appropriation)

  Case - R v Hinks

  Appropriation takes place at the first moment the defendant assumes the rights of an owner.

  Case - R v Atakpu and Abrahams
• Actus reus - When does appropriation take place?

  Section 3(1) of the Theft Act 1968 - If there has been a later assumption of the owner's rights, then the Courts can find appropriation at the point the defendant chose to 'keep' or 'deal' the property in question. For example, hiring a bicycle and you decide not to return it. There will be appropriation when you choose not to return it.
• Actus reus - Property

  Section 4(1) of the Theft Act 1968

  • Money (e.g. coins or banknotes)
  • Real Property (e.g. land and buildings)
  • Personal property (all 'moveable items' - jewellery, clothes, sheet of paper)
  • Things in Action (a right which can be enforced against another person by an action in law - credit cards, bank accounts)
  • Other Tangible Property (other rights that have no physical presence - electricity, wifi)
• Actus reus - Property (Real property)

  Real property is a legal term that refers to land and buildings.

  Section 4(2) of the Theft Act 1968 details three circumstances of when land can be stolen:

  1. A person entrusted with the land breaches this trust by appropriating the land themselves.
  2. A person appropriates the land by severing something that formed part of the land (e.g. soil from garden)
  3. A tenant appropriates any fixtures that were just for let.
• Actus reus - Property (Personal property)

  This covers all 'moveable items', as well as trivial matters (such as a piece of paper).

  Typical examples - jewellery, clothes and cars, however dead bodies and body parts can be personal property.

  Case - R v Kelly and Lindsay
• Actus reus - Property (Other tangible property)

  Refers to rights, that can be stolen, that have no physical presence.

  A good example is electricity - someone can get electricity at a lesser rate or because they tampered with an electrical meter.

  Confidential information is something the Courts deem not to be 'property'.

  Case - Oxford v Moss
• Actus Reus – Property (Things Which Cannot Be Stolen)

  Things that do not fall part of the Acts expressed list cannot be items which can be stolen.

  However, Sections 4(3) and 4(4) of the Theft Act 1968 indicate certain exceptions to this:

  Things that are severed from the land can be classed as being stolen (s.4(2)(b)) - some severed items are exempt from being stolen, such as wild mushrooms (s.4(3)) - However, if these are grown for commercial purposes, they will be classed as stolen (s.4(3))
• Actus Reus – Belonging to Another

  Section 5 of the Theft Act 1968: There is a wide definition of 'belonging to another':

  • Possession or control
  • Proprietary interest
  • Property received under an obligation
  • Property received by mistake
• Actus Reus – Belonging to Another (Possession or Control)


  An owner will typically be in possession or control of their property. However, this possession or control can be transferred (even if only temporarily) meaning the original owner can still be charged with theft for trying to take back the property.

  Case - R v Turner
• Actus Reus – Belonging to Another (Possession or Control)


  Someone may still be in possession or control, even if they do not realise it at the time.

  Case - R v Woodman
• Actus Reus – Belonging to Another (Proprietary Interest)

  Even where the defendant has possession or control of the property, if someone else has a proprietary interest in that item then the defendant can be charged with theft if they take actions with the property that the person with the proprietary interest is against.

  Case - R v Webster
• Actus Reus – Belonging to Another (Property Received Under an Obligation)

  Where the property has been passed over to be handled on behalf of an owner, the person in charge of the property must handle the property in a particular way.

  Case - R v Klineberg and Marsden
• Actus Reus – Belonging to Another (Property Received by Mistake)


  Even when property has been handed over by mistake, there may be an obligation to return that property.

  Case - Attorney General's Reference
• Mens rea for theft

  • Dishonestly - defined in s.2
  • Intention to permanently deprive - defined in s.6
• Mens rea - Dishonesty

  Section 2 of the Theft Act 1968

  Where a defendant has appropriated property belonging to another, we need to check that they had done this conduct dishonestly.

  The Courts do not care about the defendant's motive.

  Instead, we assess if their conduct falls under any exceptions and test them for dishonesty.
• Mens rea - Dishonesty - Exceptions for dishonesty

  Section 2 of the Theft Act 1968

  Three situations where the defendant's conduct will not be seen as dishonest:

  1. Where the defendant has the right in law to deprive someone of property
  2. Where the defendant would have the consent from the other person if they knew of the appropriation
  3. Where the owner of the property cannot be reasonably discovered

  A defendant's willingness to pay does not prevent their appropriation from being dishonest.
• Mens rea - Exceptions to Dishonesty (S. 2(1)(a))

  Where the defendant has the right in law to deprive someone of property, they need to have a genuine belief that they had this right.

  Case - R v Robinson
• Mens rea - Exceptions to Dishonesty (S. 2(1)(b))

  Where the defendant would have consent from the other person if they knew of the appropriation, they need to have a honest belief that they would have received consent.

  Case - R v Holden
• Mens rea - Exceptions to Dishonesty(s.2(1)(c))

  Where the owner of the property cannot be reasonably discovered, the defendant needs to have a genuine belief that the property owner cannot be found.

  Case - R v Small
• Mens rea Tests for Dishonesty - Ivey test

  Case - Ivey v Gentings Casinos

  To test for dishonesty, we need to ask two questions:

  1. What was the defendant's genuine knowledge or belief as to the facts?
  2. Would the ordinary and reasonable person, believing the same facts as the defendant, consider them to be dishonest?

  Case - R v Barton and Booth - confirmed that the Ivey test could be used in the criminal division.
• Mens rea - Intention of Permanently Depriving

  Section 6 of the Theft Act 1968

  We must assess whether the defendant has an intention of treating the property as their own.

  This can be shown through taking, selling, damaging, dealing or disposing the property.
• Mens rea - Intention of permanently depriving

  Replacing an item still shows an intention of permanent deprivation, as replacement is not the same as the original.

  Case - R v Velumyl
• Mens Rea - Intention of Permanently Depriving


  Borrowing or lending an item can amount to theft where the period of time and circumstances of the borrowing or lending change.

  Case - R v Lloyd
• Mens Rea - Intention of Permanently Depriving (Conditional Intent)


  Where a defendant examines property to see if there is anything worth stealing, the law now ensures that defendants can still be convicted of an 'attempt'.
• Mens Rea - Intention of Permanently Depriving (Throwing Things Away)

  A subsequent disposal of the property may be evidence of an intention of permanently depriving if there is evidence of treating the property as your own and disposing of the property regardless of the owner's rights.
• Theft - Sentencing


  Section 7 of the Theft Act 1968

  'A person guilty of theft shall on conviction be liable to imprisonment for a term not exceeding 7 years' - up to 7 years.