Topic 13

1. Topic 13 Theft

2. Definition ‘Theft’ is defined in s.1 of the Theft Act 1968: ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.’

3. Actus reus • The actus reus of theft is composed of three elements: • appropriation • of property • belonging to another

4. Appropriation ‘Appropriation’ is defined in s.3(1) of the Theft Act 1968: ‘Any assumption by a person of the rights of an owner amounts to 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.’ Appropriation includes assuming any rights of the owner, e.g. touching, moving, selling, destroying etc.

5. Appropriation case law (1) R v Morris (1983) The defendant’s assumption of any one right of the owner is sufficient to be an appropriation. This means that touching someone’s property is an appropriation, yet it is not theft unless the other elements defined in s.1 are present as well. In this case, changing the price of an item in a supermarket to that of a lower-priced item was considered to be an appropriation.

6. Appropriation case law (2) Lawrence v Metropolitan Police Commissioner (1972) An Italian student who spoke little English got into a taxi in London. The student showed the defendant (the taxi driver) an address written down. At the end of the journey, the fare was 52p and the victim offered the taxi driver £1. The driver stated it was not enough, so the victim opened his wallet and the defendant took out another £6 with the victim’s permission. The House of Lords unanimously decided that this amounted to theft, despite the victim’s consent.

7. Appropriation case law (3) R v Gomez (1993) The defendant worked in an electrical goods shop. He convinced the manager to sell £17,000 of goods to his accomplice.The goods were paid for using cheques known by Gomez to be worthless. The House of Lords followed the decision in Lawrence v Metropolitan Police Commissioner (1972) and confirmed that an appropriation can take place with the owner’s consent.

8. Appropriation case law (4) R v Hinks (2000) The defendant befriended a rich man of low intelligence. She convinced him to withdraw £300 a day and put it into her bank account. The majority of the House of Lords held that the £60,000 she had received from the victim was an appropriation, regardless of it being a gift. The defendant’s charge of theft was upheld.

9. Property ‘Property’ is defined in s.4 of the Theft Act 1968: ‘Property includes money and all other property, real or personal, including things in action and other intangible property.’

10. Property case law (1) R v Kelly and Lindsay (1998) The defendants took body parts from the Royal College of Surgeons. They were found guilty of theft, even though body parts are not usually regarded as property.

11. Property case law (2) Oxford v Moss (1979) A student who took an exam paper, read the questions and then returned it could not be charged with theft of the information on the paper. This is due to the fact that confidential information is not regarded as property. If he had kept the exam paper, this would have amounted to theft of the paper itself. This happened in R v Akbar (2002), when a teacher was convicted of theft after she took exam papers and gave them to her students.

12. Belonging to another ‘Belonging to another’ is defined in s.5(1) of the Theft Act 1968: ‘Property shall be regarded as belonging to any person having possession or control over it, or having any proprietary right or interest.’

13. ‘Belonging to another’ cases (1) R v Dyke and Munro (2002) The defendants collected and kept money intended for a children’s cancer fund. They were charged with stealing money from the public who had put the money in the tins. The Court of Appeal quashed their conviction. It said that the defendants should not have been charged with stealing the money from the unknown members of the public who put it into the collection tin. Instead, they should have been charged with stealing the money from the charity, as ownership of the money had passed to the charity when it had been put in the collection tin.

14. ‘Belonging to another’ cases (2) R v Rostron (2003) The defendant retrieved golf balls from the lake on a golf course. His conviction for theft was upheld by the Court of Appeal, which stated that it is a question of fact for the jury to decide if the golf club had abandoned the balls or if it still owned them.

15. ‘Belonging to another’ cases (3) R v Turner (No 2) (1971) The defendant took his own car from a garage that had repaired it without paying for the repairs. He was found guilty of theft, as the garage had possession of the car, which amounted to a proprietary interest.

16. Mens rea The mens rea of theft requires the defendant to be dishonest and to have an intention to permanently deprive the owner of the property.

17. Dishonesty The Theft Act 1968 does not define the word ‘dishonestly’, but it does give some guidance in s.2(1) as to what would not be considered dishonest.

18. Dishonesty case law R v Small (1988) The defendant took a car that he thought had been abandoned. There was much evidence of this, in that it had been left in the same place for 2 weeks with its doors unlocked and the keys in the ignition. The car had a flat battery, no petrol and a flat tyre. The Court of Appeal quashed the defendant’s conviction for theft, as it was up to the jury to decide if the defendant believed that the owner could not be found after he had taken reasonable steps.

19. Dishonesty test • The Court of Appeal established a two-stage test for dishonesty in R v Ghosh (1982). It combines both an objective and a subjective element. The jury has to answer the following questions: • Has the defendant been dishonest by the ordinary standards of reasonable and honest people? • If the answer is yes to the first question, the court should ask whether the defendant realised that he or she was dishonest by those standards. If the answer is yes to the second question, there is dishonesty.

20. Intention to permanently deprive ‘Intention to permanently deprive’ is defined in s.6(1) of the Theft Act 1968: ‘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.’

21. Intention to permanently deprive cases (1) R v Velumyl (1989) A company director took money from the safe with the intention of paying it back. He was found guilty of theft because he would not return the exact money that he took. Instead, he would replace it with different money of the same value. He was not entitled to take the money and it did not matter that he was going to pay it back.

22. Intention to permanently deprive cases (2) R v Lloyd and Others (1985) The defendant worked at a cinema. He gave the films to his friends to copy and then returned them straight away. There was no theft because the films had not reduced in value, nor were they in a changed state, and the defendant did not intend to permanently deprive the owner of them.

23. Evaluation • The wide interpretation of the term ‘appropriation’. • ‘Property’ does not include land and confidential information. • The definition of ‘belonging to another’ allows a person to be convicted of the theft of his or her own property. • The definition of ‘dishonesty’ is severely criticised by Professor Griew.