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Theft
1(1) ofthe Theft Act 1968

Basic definition "A person is guilty of theft if he

l. dishonestlY
2. aPProPriates
3. ProDertv
+. belonging to anather with the
5. intention of permanentlY
deprivina the other of it.

thief and steal shall be construed

accordingly"

(2) It is immaterial whether the

appropriationis made with a view to
gain, or is made for the thief's own
benefit.

Maximum7 years' imprisonment,reducedfrom 10.

Mens rea of theft

Dishonestly In the Theft Acts it is often said.that "dishonesty
does all the work".

It is the first element of two elements of mens rea

in theft - no dishonestY- no theft.

Intention to Is the secondelement of mensrea in stealing.

permanently
deprive

Actus reus of theft

Five elements The actus reus of theft is the remaining parts of the
Act when the mens rea has been removed.

Lawrence ll9711said that theft consistsof four

elements:

i. A dishonest
ii. Appropriation

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iii. Of property belongingto another

iv. With the intention of permanentlydepriving
the owner of it'

It is best viewed as five elements, because

'property' has its own casesto consider, indeed the
Act itself divides it into 5 parts.

Section
What is not Sec 2(1) "A person'sappropriation of
dishonest is .; property belonging to another is not to
be regarded as dishonest
(a) if he appropriatesthe
property in the belief that he
has in law the right to
deprive the other of it, on
behalfof himself or of a third
person; or
(b) if he appropriatesthe
property in the belief that he
would have the other's
consent if the other knew of
the appropriation and the
circumstancesof it; or
(c) (except where the
property came to him as
trustee or Personal
representative) if he
appropriatesthe proPefi in
the belief that the person to
whom the property belongs
cannot be discovered by
taking reasonablesteps.
(2) A person'sappropriation of property
belongingto another may be dishonest
notwithstandingthat he is willing to pay
for the property."

So, the Act does not define "dishonest" but says

what would not be dishonest.
o Where someone appropriates property
believinghe has the right in law to deprivethe
other of it.
o Where the appropriationis done in the belief
that they would have the others consent if
they knew about the appropriation.
r If there is genuine belief that the owner of the
property cannot be discoveredby taking
reasonablesteps. This never applies to
trustees or personal representatives.

The assessmentof what is dishonest involves both

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judge and jury.

More about dishonestv

Societies The Theft Act does not provide us with a definition
changing view of what amounts to dishonesty becausesociety's
view tends to change.

Ghosh (1982) Involved Section 15 of the 1968 Act - obtaining

property by deception.

This requiresevidenceof dishonesty.The main issue

of the case was to establish that the evaluation of
dishonesty could be on both objective and subjective
criteria.

Althoughthe 'objective'assessment of someone's

dishonestyis practical.
The court must take note of what the defendantalso
thought. (Subjectively).

This is referred to as the two-fold test.

The main criticismof which is that it does not

eradicate the potential for inconsistenry between
juries.
There is alwaysa problemto be had where juries
are requiredto apply the "current standardsof
ordinarydecentpeople".

Feely (7973) In addition, the jury must ascertain that the accused
realisedthat what'he was doing was dishonest.
The main problem being if those people'sstandards
did not subscribeto the standards of ordinary
people.For example,RobinHood.

A visitor from a country where public transport is

free, who did not pay for his ride would not be
dlshonest- the first tlme.

Liqhtfoot (1993\ "There is a clear distinction between a person's

knowledgeof the law and his appreciationthat he
was doing anything dishonest".
Section2 Subsection(a) belief in the legal right to
deprive a person of property is not regarded as
dishonesty; Small (1987\

Lloyd (L985\ Removedfilms from the cinema where he worked

which were then copiedand the originalsreturned
to the cinema. Here it was argued that no outright
'taking' had occurred.

Other cases Gilks

relevant to Boaaeln v Williams lL97B1
Dishonesty GreensteinlL976l

Section 3 Aoorooriation

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Is the actus neus Meansthe assumptionof the rights - or just one

of theft right - of an owner, whether or not the thief takes
possessionor uses the property.

More about appropriation

Property must be appropriated or sometimes simply
'taken'.

For example, a lecturer may for all reasonable

purposesown the dry-wipe marker he uses in class.
He may decide when to use it, when to throw it
away, but if he were to sell it that would be wrongful
appropriationand a theft.

Definition of appropriation is any assumption by a

persc,nof the rights - or just one right - of an
'owner'.The rights of an owner are sometimes
referred to as a'bundle of rights'.

Gomez(1993\ The ordinary natural meaningof the word

appropriation, is to take for oneself or to treat as
Consent or no ones own.
consent is
irrelevant Is also the authority for the principle that consent or
authorisation by a 'rogue' is irrelevant and theft
would be committed.

In a 'self service' supermarket removal of goods

from shelves is an authorised act (it is he very
nature of shopping).It becomesunauthorised
dependanton the defendant'sintentions.

Gomezillustratesthat even where consentappears

to have been given, the courts look at the
dishonesty of the act.

Morris (1983\ Concernedthe substituting of lower priced price

labels on more expensive goods. Even though the
lower price was paid at the checkout, it still
amounted to theft.

Appropriation: Adverse interference with those

riohts of ownershio.
Lawrencev An Italian student offering his wallet to a taxi driver
Commissioner of only consentsto the correct money being taken for
Police(I97L) the taxi fare.

Pitham & Hehl A man knowing his friend to be in prison took others
fle77) to his friend's house and sold them furniture it was
decidedthat a theft had taken place.
There had been assumption of the rights of
ownership.

Atakpu & another DD stole vehicles abroad and were stoppedat Dover.
(1es3) The theft was complete abroad and the thieves could
not steal aqain in Enqland

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trust or, in the cttse of a charitable trust.

A trustee who appropriatestrust property with the

intention of defeating the trust is to be regarded as
intending to deprive the person who has the right to
enforce the trust of property (Theft Act 1968, s'
s(2)).
See 5f3) Fronertv 'eceived under an obliEation
Possession. Sec 5(3) "Where a person receives
property from or on account of another,
and is under an obligationto the other
to retain and deal with that property or
its proceedsin a particular way, the
propefi or proceedsshall be regarded
(as against him) as belongingto the
other."

A person who is in possessionof someone'sproperty

may appropriate that property by doing something
inconsistentwith the authorisation given by the
owner.

Examples Money collect for a charitable purpose (a

whip-round) must be used for that purpose. Money
given to make a purchase (as distinct from a
deposit) must be used for that purpose.

Money in the A bank account belongsto the customer Kohn

bank (1979).

Writing of a When a thing in action is createdby the writing of a

cheque cheque,the only personto whom it can belong is
the payee.Thus he cannot steal a thing in action
when a cheque is written in his favour Davies
(1s88).

Sec 5(4) Property received by mistake

Overpayments or Sec 5(4) "Where a person gets property
payments by another'smistake,and is under an
received by obligation to make restoration (in whole
mistake must be or in part) of the propefi or its
repaid. proceedsor of the value thereof, then to
the extent of that obligationthe
property or proceedsshall be regarded
(as against him) as belongingto the
person entitled to restoration, and an
intention not to make restoration shall
be regarded accordinglyas an intention
to deprive that person of the property or
proceeds."

Property When money is paid over on the basis of a mistake,

belonging to the payer of the money retains an equitable
another: proprietary interest ChaseManhattan Bank NA v

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ProfessorGlanvilleWilliams in "Appropriation:a
single or continuousact?" [1978] Crim LR 69:

"A man stealsa watch, and two weeks

later sellsit. In common senseand
ordinary language he is not guilty of a
second theft when he sellsit. Otherwise
it would be possible, in theory, to convid
a thief of theft of a silver tea pot every
time he uses ft to make the tea."

Afthough Gomezdecidesdifferently and impliesthat

there can be no such thing as continuing
appropriation;the courts have decidedto leave this
issueto the "commonsense"of the jury.

Even innocent Sec 3(1) "Any assumption by a person

appropriation can of the rights of an owner amountsto an
become thefr if appropriation,and this includes,where
there is any later he has come by the property (innocently
an assumption of or not) without stealing it, any later
the right of assumption of a right to it by keeping or
owner. dealingwith it as owner."

If the prope*y is Sec 3(2) "Where property or a right or

bought normally interest in property is or purports to be
he obtains transferred for value to a person acting
ownerchip, even in good faith, no later assumption by
if it is stolen him of rights which he believedhimself
to be acquiring shall, by reason of any
defect in the transferor's title, amount to
theft of the property."

Other cases Monaqhan{19791

relevant to Eddv v Niman lt9BL1
appropriation. Anderton v Wish [19801
Gallasso IL9931
Hinks

Section 4 Property
What is propefi Includes
Money, personalproperty, rights of action (e.9.
copyrightand debts).

It is theft for a person (not in possessionof land,

unless a tenant) to sever or ctruseto be severed
things forming part of the land.

It's OK to pick mushrooms,flowers, fruit or foliage

from a plant or trees growing wild, providedit is not
done for sale or other commercial purposes.(What
about supermarket wild mushroom soup?)

So, sellers of daffodils or Christmas trees obtalned

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from the wild would be guilty of theft.

Limitationsto the section includeland and things

forming part of the land cannot be stolen.

However, trustees might sell or disposeof the land

therefore if they use the money from the sale of
land for themselves then they can be charged with
theft of the profit from land.

Oxford v Moss A university student seeing a proof copy of an exam

( 1e 7 9) paper was not guilty of theft becausethe exam
paper was informationand 'information'cannotbe
stolen. Note: The student'saw'the paper he did not
physicallyremove the paper.

Property also 'lhose in action' (not actually used in the fheft Act)
includes things in describesall personal rights of property, which can
action and other only be claimed or enforced by action, and not by
intangible taking physical possession.The term includes shares
property; 'things in a company.
in action'are also
known as'choses 'Other intangible property' includes patents,
in action'. copyrightand design right.

"other intangible The Privy Councif hefd in Attorney Generat of HoAg

property" Kong v Nai-Keunq l79871that export quotas for
textiles in Hong Kong are a form of .other intangible
property', becausesuch quotas may be freely bought
and sold.

Bank accounts
Cheques A cheque as a piece of paper, a cheque form, is
personal property and may be stolen, regardlessof
the balancein the accountupon which the chequeis
drawn Duru 1t9747

Things in action An accountheld at a bank or a buildingsociety is a

Bank accounts in thing in action.
credit
If the account is in credit, a relationship of debtor
and creditor exisG.

The debt cannot be physically handled or possessed,

but it can be enforced by action and is therefore a
lhing in action may be stolen Kohn (1979) preddv
l1e96l.

Overdrawn Thus where the account is overdrawn, there is no

accounts nothing "thing in action" capableof being stolen Kohn
to be stolen (1979).

Electricitv; wild cfe atures; bodies

Electricity Is never "property"underthe Theft Act and eannot
be stolen,this includeselectricityusedin
telephones.

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Wild Greatures Wild creatures are property, but where a wild

creature is not either tamed or ordinarily kept in
Reduced into captivity or is the @rcassof such a creature, it can
possession be stolen only if it has either
means the (a) been reduced into possessionby or on behalf of
process of another person and possessionof it has not since
capturing them or been lost or abandoned,or
killing them. (b) another person is in the course of reducing it
into possession.

Human bodies The traditionalview is that human corpsescannot

cannot be stolen belong to anyone, cannot therefore be stolen.

Body ffuids can be stolen; in Welsh179741adriver

was guilty of theft for removing his own urine
specimen.
It may also be possibleto steal parts of the body
upon which work, e.9., of preservation,has been
done as with Egyptianmummies.

The Human Tissue Bill 2003 - prompted by the Alder

Hey organ-stripping scandal - proposesa regulating
authority to make sure that consentis obtained
before organs and tissues are kept by hospitals.
Thousandsof hearts, brains and other body parts
had been retained without permission.

A new criminal offences of "trafficking" in body

parts, or keeping tissues without consent will be

5 Belo
The identity of the'other' is generally irrelevant. All that is
required is that the propefi belongs to someone other than the
accused.

section 5 (1) Property belongs to any person having possession or

control
It is possible to Sec 5(1) "Propefi shall be regarded as
steal your own belongingto any personhaving
property in some possessionor control of it, or having in it
circumstances any proprietary right or Interest (not
being an equitableinterest arising only
from an agreementto transfer or grant
an interest)."

Occasionallythe property'stolen' actually .belongs,

to the defendant at the time of the appropriation.

Turner (L97t\ Turner had taken his car to a garageto be repaired.

The job was finished and the car was parked outside
overnight awaiting collection.Turner used his spare
set of keys to remove the car without paying.

The jury found Turner guilty of stealing his own car.

The reason was that the garage proprietor had

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temporary possessionand control of Turners car

until the bill had been settled.

Meredith (1973) Is a similar case but here the removal was from a
police pound where the car had been placed because
it was causing an obstruction.

Meredith did not steal his own car presumably

becauseof the lack of any police'right' over it. This
right is calleda'lien'. If the policehad incurredcosts
that could be passedon to Meredith, this might have
altered the case.

Greenberq (L972) Both cases, it involved the filling of petrol tanks of

and Edwards V Ddin cars and then the owners driving away without
( 1 9 7 6 ). paying.

The courts held that at the time of appropriationthe

driving away the petrol was deemed to have
belongedto the defendant.

The charge should not be for theft but for

dishonestly obtaining property by deception.

Abandoned If property is genuinely and honestly abandoned

Propefi. then it cannot be theft becauseit belongsto no one.

Note should be made that rubbish depositedin

council refuse bins, becomesthe property of the
council. The issue of control is quite important here.
Seemingly,abandonedproperty in a'derelict'
conditioncan still be appropriatedif someoneis in
'control of the site'. For example by the erection of
fences to excfude trespassers,see Woodman(1974\.

The Crown The Crown has a prerogative right in royal fish (that
is, whale and sturgeoncaught within territorial
waters) and wild swans, whieh right was preserved
by the Wild Creatures and Forest Laws Act
L97L.

Under the TreasureAct 1996. when treasure is

found, it vests, subject to prior interests and rights,
in the Crown.

Sec 5(2) Trust oroperW

Trust property Sec 5(2) "Where property is subject to a trust, the
'belongs'to the personsto whom it belongsshall be regarded as
trustee AND... includingany personhaving a right to enforcethe
trust, and an intention to defeat the trust shall be
regarded accordinglyas an intention to deprive of
the propefi any person having that right."

Trust property'belongs'to the trustee who has legal

title to it and also to'any personhaving a right to
enforce the trust', that is, any beneficiary of the

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equitabl€ Israel-British Bank (London) Ltd lL9BL1 and

interests Shadrokh -Ciaari I L9BB1.

Consequently,the money belongsto another as

againstthe recipientof that money.

Sec 5(5) Companies can be the owners of property independent of

their members
llay be a Sec 5(5) "Property of a corporation sole
corporation such shall be regardedas belongingto the
as a compaily corporation notwithstanding a vacancy
in the corporation."

The other to whom the property belongs need not be

an individual,but may be a corporationsuch as a
company incorporated by registration under the
Companies Act 1985.

Such a company is a legal entity separate from its

members(shareholders)and directors.It can own
money, things in aetionand other property which
may be stolen from it by personswho are in total
control of it by r€ason of shareholdingand
directorship Attornev-General'sReference(No. 2 of
1982) ll994land Philippou(L989).

Partners Banner l!97O1 A partner, who has a proprietary

interest in partnership property, may steal it, since
his co-partnersalso have such an interest.

Other cases of Kaur lL9Btl

relevance to Turner lt977l
Section 5 cllks-U9lA
Ldtls v Cashmarts [1969]
Lawrence
Hale lL979J

Section 6 fntention permanentlv to deprive

Mens rea ThiS i5 the $econdelement of mens rea necessary
for tllehr

$Cc U1f) "A personappropriating

bhUpbrtybelongingto another without
ftiptrtidg the other permanently to lose
th'e tning itself is neverthelessto be
lb$ardedas having the intention of
p$trhdhently depriving the other of it if
|\iS irrWrttion is to treat the thing as his
own to drtpose of regardless of the
otherbrishts; borrowing or
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This means borrowing is not theft.

But, if having borrowed property it, and later decide

to keep it, this would be theft.

Same as Sec 6(2) Without prejudiceto the

permanently generalityof sub-s (1) above, where a
depriving. person, having possessionor control
(lawfully or not) of property belongingto
another, parts with the property under a
conditionas to its return which he may
not be able to perform, this (if done for
purposesof his own and without the
other's authority) amounts to treating
the property as his own to disposeof
regardlessof the other's rights.

To take a ticket and return it to.the'owner at the

end of the concert.

To take someone'sproperty and sell it back to him

by pretendingto be the owner.

In these casesthe true owners were not

permanently deprived, but they were casesof theft,
becausethere was an intention by the borrowers ts
treat the property as their own, and to deprive the
owners of their rights to the property.

Attorney General's D must intend to permanentlydeprive the other of

Reference(Nos.7 property,and'a chargeof theft will fail if the
and 2 af 1979) CA indictmentis wort'ed,in'away that suggeststhat D
would steal anything 6f,value he were to find.

Equivalent to an ln R v Coffev (ffi87], tAe,owner need not be

outright disposal deprivedof his'Piopertyf6rever if the appropriation
amountedto an'outright disposal.

So, the "borioy+ng" of a theatre ticket until the

render the ticket useless,this is
following dqy;r4ypuld
equivalentto an outright disposalalthough it is
retainedfof"only a day becauseit meansthe owner
has been permanentlydeprivedof it.

Conditional Intention.
Walkinqton(1979) If proper$ is taken with the intent to decide at a
later stage whether to keep the articles, this
conditionalintention is acceptablefor a chargeof
lsr attempt and for the full offence of theft.

Other cases Easom lL97Ll

relevant to Morris
intention to Hussein lL9781
denrive- A-G's References(nos. 7 & 2 of 1979)

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