Theft

Theft

Theft is defined in section 1 theft Act 1968, which states that:

A person is guilty of theft if he/she dishonestly appropriates property belonging to another, with the intention of permanently depriving the other of it.

 

The Actus Reus of Theft

The Actus Reus of theft is:

• Appropriation
• Property
• Belonging to another

Appropriation

Appropriation includes taking property, destroying it, using it in an unauthorised way, sell it, or refusing to return it after having come by it legally.

Theft Act 1968 s3 states:

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.
2. Where property, or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferors title amount to the theft of property.

This has resulted in a number of cases that look at this point:

R v Lawrence

D a taxi driver in London took an Italian tourist who spoke little English to a destination where the tourist offered D £1 but D took a further £6 from the tourist’s wallet. The fare should have been 10s 6d (52 1/2p).  D argued that the tourist had consented to the taking of the money from the wallet by holding it open and so D could not have appropriated it.

R v Morris 1983

Conjoined appeals both involving the switching of price labels in supermarkets. Morris was arrested after paying a lower sum for certain items; Burnside was arrested before paying for the goods. The question for the Lords to decide was whether an appropriation required the assumption of all rights of an owner and also if there was an appropriation at what point in time did this occur. It was held that there need not be an appropriation of all the rights of an owner. The appropriation took place when there was an adverse interference with or usurpation of the rights of an owner which was at the point of switching the label, not at the point of taking the goods from the shelf.

R v Hinks 2000

Hinks, a young mother, befriended a 53 year old man called John Dolphin. He had been left money by his father and was naïve, gullible and of limited intelligence. Over a period of 7 months, the appellant influenced, coerced and encouraged Mr Dolphin to withdraw sums, amounting to £60,000, from his building society account and for them subsequently to be deposited in the appellant's account. She was subsequently convicted of theft and appealed on the ground that the sums given were gifts which were valid in civil law. It was held that conviction upheld. An appropriation exists even where the victim consents to the appropriation and civil unlawfulness is not a constituent of the offence of theft.

R v Briggs 2004

The appellant had persuaded her great aunt and great uncle (Mr & Mrs Reid) to move closer to her so that she could look after them. They sold their house and the appellant found a house for them to purchase. The appellant wrote a letter of authority instructing the conveyances acting in relation to the sale, to send the proceeds of sale to the conveyances acting in relation to the purchase. The letter of authority was signed by the Reids. The new house however, was purchased in the appellant's name against the wishes of the Reids. The appellant was convicted of theft and appealed on the grounds that an appropriation had not taken place. The appeal was allowed. The conviction for theft was substituted with a conviction for deception.

Property

Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest. Property includes money and all other property real or personal, including things in action and other intangible property.

Property could be:

• Money
• Real property e.g. severing a part of land, a tenant fixture, trustee in breach.
• Things in action- Right which can be enforced by another person by action in law e.g. debts.
• Other intangible property i.e. things that have no physical presence but can be stolen e.g. gas in a container.

It excludes land or things forming part of the land and severed from it such as harvested crops or picked flowers. Exceptions include:

• When the defendant is in a position of trust, and 'appropriateness' the land or anything forming part of it by dealing with it in breach of the confidence reposed in him or her.
• When the defendant is not in possession of the land and appropriates anything forming part of the land by serving it or causing it to be served, or after it has been served e.g. knocking down your neighbours brick wall and carrying away the bricks. NB severed means the item has been detached from the land.
• When the defendant is in possession of land under a tenancy appropriates the whole or part of any fixture or structure let to be used with the land e.g. if you live in rented premises and when you leave you remove a fixture or a structure e.g. toilet 

Under s4 no offence is committed if a person picks mushrooms which are growing wild, flowers fruit or foliage provided that this is not done for a commercial purpose.

In addition, a person will not commit theft if he captures a wild animal which has been tamed or reduced to captivity. the main implication of this section is that poaching does not normally fall within the offence of theft.

R v Welsh 1974 

D, a driver accused of drink driving, poured his own urine specimen down a sink when the relevant police officer was out of the room. It was held that although there is a traditional view that human corpses cannot belong to anyone body fluids can be stolen.

Even though the definition of property has been expanded over the years there have been several situations where the court has had to decide on the question of whether there has been theft as a result of the nature of the property involved. This has come up with some surprising results

Oxford v Moss 1978

The Defendant, a student of engineering, took an exam paper with the intention of returning the paper having used the information gained in order to cheat in his exam. It was held that he confidential information contained in the paper did not amount to intangible property for the purposes of the Theft Act 1968.

Chan Man-sin v Attorney General 1988

D an accountant for H and M withdrew $4.8m from both H’s and M’s accounts using forged cheques. Both accounts went overdrawn, but within agreed limits. D argued that the bank had no right to honour the forged cheques and the transactions should have been void.  It was held that D was guilty of theft of choses in action, i.e. the debts owed by the bank to the companies. 

R v Kelly and Lindsey 1999 

Kelly was an artist. He was given permission to draw anatomical specimens held by the Royal College of Surgeons. The specimens were of various body parts used for training purposes. During the course of his visits he met Lindsay who was a junior technician working for the RCS. Kelly asked Lindsey to remove various body parts over a number of months. These included three human heads, six arms, ten legs part of a brain and three torsos. Kelly made casts of the body parts which were exhibited in an art gallery.  Both Kelly and Lindsey were convicted of theft and appealed contending the body parts did not constitute property lawfully in the possession of RCS. It was held that the appeal dismissed. Convictions upheld. Parts of a corpse are capable of being property within section 4 of the Theft Act, if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes.

Belonging to another

S5(1) Theft Act 1968 states that property is regarded as "belonging to any person having possession or control of it, or havng any proprietry right or interest". it can therefore belong to more than one person at a time and a person ca be guilty of stealing proeprty belonging to himsef as belonging to another means less than ownerhsip and icnludes concepts such as possession or control.

Williams v Phillips 1957

DD Dustmen were convicted of stealing goods from dustbins collected in the course of their duties, and selling the goods to dealers and sharing the proceeds. It was held that they refused put in a dustbin was not abandoned; it was the householders' property until it was taken away, when it became the corporation's property; the men knew that they were not allowed to take anything from the refuse and there was abundant evidence on which the justices could convict; therefore, the appeals must be dismissed.

R v Turner 1971

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.

Where a person recieves property from another person and is expected to deal with it in a certain manner, then that property is regarded as belonging to another if they do not deal with it in the required way. Similary, where a person has obtained property by anothers mistake they are under an obligation to restore the property then the property is regarded as belonging to the person who is entitled to restoration.

R v Gilks 1972

The Appellant placed a bet on a horse called 'Fighting Scott'. The race was won by a horse called 'Fighting Taffy'. The manager of the betting shop mistakenly believed the Appellant had won the bet and paid out £106.63. The Appellant knew that the manager was mistaken but accepted the money. He was convicted of theft and appealed on the grounds that since there was no legal obligation to repay the money following the decision in Morgan v. Ashcroft, 1938 1 Kings Bench, the money was simply a gift and therefore in law belonged to him. He argued that s.5(4) Theft Act 1968 relating to money received by mistake required a legal obligation, moral obligation was not sufficient. It was held his conviction was upheld because there was no need to invoke s.5(4) of the Theft Act 1968 since the property in the £106.63 never passed to the Appellant and therefore the property belonged to another. However, if s.5 (4) had applied, a moral obligation would not be sufficient to constitute criminal liability.

DPP v Huskinson 1988

D received a housing benefit cheque from the DHSS, intended to help with his rent payments, but spent the money on himself instead and was charged with theft. Affirming his acquittal, the Divisional Court said D was under no legal obligation to use that money in any particular way.

R v Wain 1995

D raised nearly £3000 from various events for the ITV Telethon. He paid the money into his personal bank account and drew on that a cheque in favour of the Telethon, but this and subsequent cheques bounced. D was convicted of theft, and the Court of Appeal affirmed his conviction. McGowan LJ said D had received money on behalf of the charity and had an obligation to hand over the equivalent sum, if not actually the same notes and coins. Instead, he had appropriated the money by using it for his own purposes.

R v Webster

An army officer eligible for a service medal was mistakenly sent two identical medals instead of one. He gave the second medal to the defendant, who sold it via the Internet. The defendant was convicted of theft, and his convictionn was upheld on appeal: the medal had been sent by mistake and was therefore still the property of the Secretary of State. The mens rea of theft is an ulterior intention permanently to deprive the rightful owner of the property taken; this is a specific intent, and mere recklessness is not enough.

S5(3) covers situations where a person receives proeprty under the obligation to deal with it or the proceeds in a particular way. Once againthe proeprty will be held to 'belonging to another' if he does anything unauthorised with it.

Davidge v Bennett 1984

The defendant received cheques from her flat mates which were to pay for the communal gas bill. The defendant spent the money on Christmas presents and left the flat without paying the gas bill. It was held that she was liable for theft as under s.5(3) TA 1968 the cheques had been given with a clear obligation to apply the money for payment of the gas bill.

This confusion appears in some way to be remedied by s5(2) which si the provison for trust and resolved in R v Wain as stated above.

The Mens Rea of Theft

The means rea of theft is amde up on 2 key elements:

• Dishonesty
• Intention to permantly deprive

Both elements must be proved for the offence to be committed. It is the mens rea of the offence that distinguishes theft from normal transactions. There is no need for the defendant to gain from the dishonest appropriation.

 

Dishonesty

Dishonesty is a matter of fact to be determined by the jury, who are expected to apply their own contemporary standards of morality. The theft Act s2 does not define dishonesty, as it was intended to have no other meaning than its normal everyday, natural meaning. The act did however specify 3 key situations where a defendant would not be considered to be dishonest.

 

Theft Act 1968 s2 states:

• Appropriate 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.
• Property in belief that he would have the others consent if the other knew of the approaching and the circumstances of it.
• Property in the belief that the person to whom the property it belongs cant be discovered by taking reasonable steps.

Where these exceptions do not apply the courts have developed a test to establish whether the defendant was acting dishonest or not.

R v Feely 1973

The appellant was the manager in a betting shop. He borrowed £30 from the till and maintained that he intended to replace it within a few days. The trial judge held that his actions were clearly dishonest and his intention to replace the money was irrelevant.  It was held that his conviction was quashed. The trial judge should have put the issue of dishonesty to the jury.

R v Ghosh 1982

The appellant was a surgeon who claimed money in respect of operations which he had not carried out. He argued his actions were not dishonest as the same sums were legitimately due to him for consultancy fees. The trial judge directed the jury: "Now, finally dishonesty. There are, sad to say, infinite categories of dishonesty. It is for you. Jurors in the past and, whilst we have criminal law in the future, jurors in the future have to set the standards of honesty. Now it is your turn today, having heard what you have, to consider contemporary standards of honesty and dishonesty in the context of all that you have heard. I cannot really expand on this too much, but probably it is something rather like getting something for nothing, sharp practice, manipulating systems and many other matters which come to your mind. " The jury convicted and he appealed it was held the conviction was upheld. The test for determining dishonesty:

1. Was the defendant dishonest by the standards of reasonable and honest people?

(If yes)

2. Did the defendant realise that he or she had been dishonest by those standards.

The test is both objective and subjective.

 R v Holden 1991

The appellant worked for Kwikfit. He took some used tyres and was convicted of theft. He appealed contending that he was not dishonest since other workers did the same and he believed that he was allowed to do the same. However, his contract of employment contained a clause forbidding the taking of used items. It was held that his conviction was quashed by the Court of Appeal. The question of dishonesty under the exceptions in s.2(1) Theft Act 1968 is judged entirely subjectively. It is the defendant's belief alone that counts not what he was actually permitted or forbidden from doing.

Lawrence v Commissioner of Police 1971

The facts of the cases are stated above. His conviction for theft was upheld. An appropriation can take place notwithstanding the consent of the owner.

 

Intention to permanently deprive 

The second element of the mens rea of theft is an ulterior intention permanently to deprive the rightful owner of the property taken; this is specific intent and mere recklessness is not enough.
As a general rule, merely borrowing something does not form an intention to permanently deprive. However, every thief would always raise this as a defence and there would be very few convictions for theft once the accused said "I would have given it back as soon as I realised I had it..." The offence of theft actually can be said to begin when the IPD is formed. In most cases intention can be inferred from the surrounding circumstances of the case.

Theft Act 1968 s6

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.

 

This means that there are two aspects to IPD

1. Disposing of the property regardless of the others rights

2. A borrowing or lending making it equivalent to outright taking or disposal

 

 

Contained in s 6(1) - Can an offender be classed as permanently depriving the other of goods and be guilty of attempted theft whether he was trying to assess whether there is anything worth stealing?

 

Easom 1971- held 'a conditional appropriation will not do'

D in a cinema picked up a handbag and sorted through the contents. He left the handbag with its contents intact in front of the seat which he had vacated. The handbag had been attached by cotton to a police sergeant's wrist. It was held that if D merely had it in mind to deprive the owner of such of his property as, proved worth taking but actually took nothing, he would not have stolen it.

D's state of mind is important- Furthermore there could be no valid conviction of attempted theft unless it were established that he was animated by the same intention to permanently to deprive as would be necessary to establish the full offence.

R v Warner 1970

D took a box of tools and hid them in his shop in a box and covered them with scarves.  He did so because of an on-going dispute between the workers of two neighbouring shops.  He intended to return them "in about an hour". It was held that there has to be proved an intention to permanently deprive the owner; the learned Chairman may have confused the jury by using the word "indefinitely" as well as "permanently.

The object of s 6 of the 1968 Act is in no case to water down the definition of theft found in s 1(1) of the Act, but merely to clarify in certain respects the meaning of the words ‘intention of permanently depriving’ contained in the definition and to give illustrations of the dishonest intent required.

R v Lloyd 1985

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. It was held that the 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 Velumyl 1989

The appellant was a company director. He took money from the company's safe and claimed that he intended to return it after the weekend. It was held that his conviction was upheld. Unless he intended to pay back the exact notes and coins he had the intention to permanently deprive the company of the money taken.

R v Marshall 1998

DDD obtained London Underground tickets from passengers leaving the system and sold them to other potential customers. It was held on issuing an Underground ticket a contract was created between London Underground and the purchaser, under which both parties had rights and obligations which could be enforced. Each party to the contract had obtained a chose in action, represented on the purchaser’s side by the right to travel on the Underground and on London Underground’s side by the right to insist that the ticket was used by no-one other than the purchaser. It was this right that was disregarded when the appellants acquired the tickets and sold them on. The charge of theft related to the tickets themselves, which were not choses in action. The fact that the tickets might return to the possession of London Underground was irrelevant. The Theft Act 1968 s 6(1) applied. The appellants had admitted dishonesty.

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. It was held that 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.

DPP v J and Others 2002

DD who were 14 robbed another boy.  They snatched his headphones and broke them in half, and then returned them to the boy.  It was held that an intention to permanently deprive could be inferred from the acts of the defendants. Once they had snapped the headphones, they had rendered them useless. Moreover by snatching and snapping the article, they had in reality disposed of it. An action, whose result rendered property useless, was in effect no different from an action which risked the loss of that article.

Removal from public places: The 1968 Act makes it an offence unlawfully to remove from a building open for viewing the whole part or part of the article displayed. it does not include sales displays and there to help convict a person who takes a portrait from an art gallery. No intention to permanently deprive is required.