Previous Provisions (Larceny Act):
‘A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof’ [1]
Problems:
The Larceny Act had many, very specific crimes. This made charging for theft (or larceny as it was then known) was quite difficult and complicated. The Theft Act simplified many of these offences simply into the umbrella offence of ‘theft’.
Furthermore, the old language of ‘takes and carries away’ became increasingly obsolete – theft does not have to by physical, so the previous act would not cover the novel situations that arose from the rise in computer use.
Theft Act 1968:
Theft:
s1(1) – D will be guilty of theft if they dishonestly appropriate property belonging to another with the intention of permanently deprive them of it.
Dishonesty (Fault / Mens Rea):
s2(1) – D not dishonest if:
s2(1)(a) – D believes they have a right to deprive the other.
s2(1)(b) – D believes they would have the consent of the other.
s2(1)(c) – D believes that the person who owns the property cannot be discovered by taking reasonable steps.
s2(2) – a willingness to pay does not prevent D from being dishonest.
In Ghosh (now disapproved), D (a surgeon) claimed fees for work carried out by other people or that was available on the NHS. The judge told jury to use their common sense to determine whether D was dishonest.
The Court of Appeal upheld his conviction on the facts but stated that a test for dishonesty must have both objective and subjective elements. D’s conduct must be dishonest by the standards of a reasonable, honest person and by their own standards.
In Ivey v Genting, the Ghosh test was doubted for its subjective element. I was a professional gambler and had established a system where he could recognise cards. I won £7.7m, but G refused to pay. G stated that I was ‘cheating’ under the Gambling Act 2005. The Supreme Court removed the subjective element in the Ghosh test for dishonesty (in obiter but confirmed by Booth) [2].
‘theft liability turns largely on proof of dishonesty’. [3]
Criticisms / Reform [4]:
The objective standard derogates the rule of law and conflicts with principle of maximum certainty. It is too broad and different juries may take different views on what is dishonest.
Elliott suggests that dishonesty requirement should be dropped, and that the statutory definition of appropriation should exclude all appropriations ‘not detrimental to the interests of the owner in a significant practical way’. [5] This would provide greater simplicity for jury, but would be less certain than current test until it is developed by courts more.
Glazebrook suggests that no conduct that is not legally wrongful should be sufficient for theft. [6] It should be noted that Glazebrook is assuming that dishonesty is present unless it can be disproved.
Elliott believes that while borrowing is dishonest and involves a civil wrong, it is not severe enough to warrant criminalisation. [7]
Appropriation (Conduct / Actus Reus):
s3(1) – ‘Any assumption by a person of the rights of an owner’
In Hinks, D befriended V and repeatedly took him to withdraw £300 from his account, amounting to over £60,000 in total. Expert evidence suggested that V might have not made the decision on his own. D appealed their conviction and argued that the money was merely a gift, so D could not appropriate it. The House of Lords upheld the conviction, ruling that a valid civil law gift can still be appropriated dishonestly in criminal law.
While it seems as though the judgement here arguably brings criminal and civil law into conflict, Gardener argues that they are concerned with different things. [8]
In Briggs, B purchased a house for their relatives in their own name. B convicted of theft. The Court of Appeal held that B had not appropriated the property but deceived V into transferring property. Appropriation requires some physical act, so the charge changed to a deception offence.
Thief merely has to ‘appropriate’ – this significantly broadens the previous law of ‘takes and carries away’.
In Morris, a shopper switched the labels on goods in a shop so that a more expensive item had a cheaper price. It was questioned whether the act of label switching was an act of theft. The House of Lords held that D had appropriated property, even though he hadn’t physically taken the property away, since this was unauthorised by the owner. Furthermore, intention of permanent deprivation is not required at the time property is appropriated.
Roskill LJ: ‘the assumption of any of the rights of an owner in property amounts to an appropriation of the property’.
In Pitham and Hehl, D offered V’s goods for sale to X while V was in prison. The Court of Appeal held that the offer of sale itself was an ‘appropriation’ even if the property was never touched – merely offering the sale was enough.
Theft can still occur even when the owner consented. Issues of consent is not relevant to appropriation (it will only relevant to dishonesty element).
In Lawrence, a tourist (who did not speak English) opened his wallet for the driver to take the fare out. The driver took more money than the fare costed, so was convicted of theft, regardless of the fact that V consented.
It is arguable whether this is theft or fraud, but charge can’t be changed at appeal stage.
In Gomez, D was an assistant shop manager. He was approached by X who secured D’s agreement to accept stolen cheques in exchange for goods. D then deceived the manager into authorising the sale and was charged with theft. The House of Lords held that consent or authority from an owner is immaterial as to whether there was an appropriation.
Again, it is arguable whether this is theft or fraud. Law ‘now astoundingly wide’. [9]
In Darroux, D submitted false records to claim for overtime entitlement and other payments. D convicted of theft. D argued that they merely submitted claim forms, so did not appropriate anything. The appeal was allowed and D acquitted (should have been a fraud charge).
Criticisms / Reform [10]:
The definition (developed by courts) isn’t faithful to intentions of the Parliamentary Committee or Parliament itself. The definition for appropriation is now wider than anticipated, meaning the offence mainly hinges on dishonesty.
The issue of fair labelling is undermined as the offence lumps together thieves and swindlers. Theft and fraud cases are now together and overlap but the law ought to attach different labels to these crimes. There is no satisfactory line to draw between theft and fraud in relation to appropriation. Alternatively, Glazebrook sees no issue in this as it avoids absurd results. [11]
The Gomez definition is so broad that it doesn’t respect maximum certainty principle. It is wrong to criminalise behaviour that wouldn’t be wrong in the civil law.
Property Belonging to Another (Circumstance / Actus Reus):
s4(1) – Property: ‘money and all other property, real or personal, including things in action and other intangible property’
In Oxford v Moss, it was decided that confidential information is not property, but making a copy of an exam paper may be. Ultimately, D’s conviction was overturned as he intended to return the paper.
In Smith, Plummer & Haines, S arranged buy heroin from J. When J arrived, P and H attacked J. S, P and H all kicked J and demanded the heroin; J complied. S, P and H appealed on the grounds that drugs could not be property since their possession was unlawful. The court upheld the conviction.
s5(1) – Belonging to another: ‘having possession or control of it, or having in it any proprietary right or interest’
Issues:
Bank Accounts:
As all money in a bank is kept together, account holders do not actually own the money in their account. The bank simply owes the customer the money. When a customer goes into their overdraft, the position is reversed.
The customer has a right to draw money (‘chose in action’) from their account, which is intangible property. This is what is capable of being stolen.
In Kohn, D was a director of a company (C), so was entitled to draw money from their accounts. D dishonestly withdrew cheques up to the account limit. It was ruled that D was appropriating the right to draw on the account, so was convicted of theft.
In Hilton, a charity officer who was a signatory on the charity’s bank account instructed the bank to transfer some of the charity money into other accounts to pay his debt. H’s conviction was upheld as he had appropriated the charity’s chose in action.
In Marshall, M collected train tickets from travellers that had been used but were still valid. M resold them to other travellers. This creates the issue of whether the tickets belonged to the travellers or London Underground itself.
Cheques and Banknotes:
Cheques are both merely a piece of paper and a valuable security. Both are appropriated if a cheque is stolen.
A banknote is a bearer bond / negotiable promissory note. If a banknote is taken, the property is the bearer bond, not the physical note itself.
Theft of own Property:
If the owner of property takes it from another who has ‘possession or control’ of it, it is possible that they are stealing their own property.
In Meredith, D’s car was impounded by the police. D drove off with it without permission. While D had to pay a fine, he was acquitted of theft as the police had no legal right to hold the car.
In Turner (No 2), D took his car to the garage for repair. He later took the car without paying for the repair. D was convicted as the garage was in ‘possession or control’ at the time T took it back.
Abandoned Property:
Questions are raised as to whether it is still theft if the property is seemingly abandoned.
In Ricketts, R took bags from outside a charity shop and bins near the rear of the shop and put them in his vehicle, intending to sell them. R was charged with theft. The court held that donations still belonged to the donors until they are gifted, and the rubbish still belonged to the shop until it was collected. Therefore, the conviction was upheld.
Intention of Permanent Deprivation (Fault / Mens Rea):
s6(1) – ‘to treat the thing as his own to dispose of regardless of the other's rights’
s6(1) – ‘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.’
The current law excludes dishonest borrowing but includes temporary appropriation with intention of permanent deprivation.
In Velumyl, D took money from his employer’s safe, intending to repay. D was convicted of theft because he intended to permanently deprive V of the actual notes / coins and only intended to replace them with the same sum of money as he thought V would not mind.
In Lloyd, D took film reels from his place of work to be copied and distributed by others. He returned them, fully intact and within a reasonable time, once they had been copied. On appeal, as D did not permanently deprive his employer, he could not be charged with theft.
s1(2) – It is immaterial whether appropriation is made with a view to gain or is for the thief’s own benefit.
Resources:
References:
[1] Larceny Act 1916 s1(1) [2] Barton and Booth v R [2020] EWCA Crim 575 [3] Jeremy Horder, ‘Property Offences’ in Ashworth’s Principles of Criminal Law (9th edn, Oxford University Press 2019) 393 [4] Jeremy Horder, ‘Property Offences’ in Ashworth’s Principles of Criminal Law (9th edn, Oxford University Press 2019) 388 [5] DW Elliott, ‘Dishonesty in Theft: A Dispensable Concept’ [1982] Crim LR 395 [6] Glazebrook, ‘Revising the Theft Acts’ [1993] Camb LJ 191 [7] DW Elliott, ‘Dishonesty in Theft: A Dispensable Concept’ [1982] Crim LR 395 [8] S. Gardner, ‘Property and Theft’ [1998] Crim LR 35, at 42 [9] Jeremy Horder, ‘Property Offences’ in Ashworth’s Principles of Criminal Law (9th edn, Oxford University Press 2019) 385 [10] Jeremy Horder, ‘Property Offences’ in Ashworth’s Principles of Criminal Law (9th edn, Oxford University Press 2019) 388 [11] P. R. Glazebrook, ‘Revising the Theft Acts’ [1993] Camb LJ 191
Cases Mentioned:
R v Ghosh [1982] QB 1053; [1982] 2 All ER 689; [1982] Crim LR 608 (CA)
Ivey v Genting Casinos [2017] 3 WLR 1212
R v Hinks [2000] UKHL 53 [2000] 4 All ER 833
R v Briggs [2004] Crim LR 495 EWCA Crim 3662
R v Morris [1984] AC 320; [1983] 3 All ER 288; [1983] Crim LR 813 (HL)
R v Pitham and Hehl (1997) 65 Cr App R 45
R v Lawrence [1972] AC 626; [1971] 2 All ER 1253; [1971] Crim LR 667 (HL)
R v Gomez [1993] AC 442; [1993] 1 All ER 1; [1993] Crim LR 304 (HL)
Darroux v R [2018] EWCA Crim 1009
Oxford v Moss (1978) 68 Cr App R 183; [1979] Crim LR 319 (DC)
R v Smith, Plummer and Haines [2011] 1 Cr App R 60
R v Kohn (1979) 69 Cr App R 395
R v Hilton [1997] 2 Cr App R 445
R v Marshall [1998] 2 Cr App R 282
R v Meredith [1973] CrimLR 253
R v Turner (No 2) [1971] 1WLR 901
R (on the application of Ricketts) v Basildon Magistrates’ Court [2010] EWHC 2358
R v Velumyl (1989) Crim L 299
R v Lloyd [1985] QB 829; [1985] 2 All ER 661; [1985] Crim LR 518 (CA)
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