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Not surprisingly the offence of theft is defined in Section 1 of The Theft Act 1968. It is extremely useful to examine the definition as it is possible to identify from it the various elements of the offence that need to be proved in order to secure a conviction. It is possible to examine both the actus reus and mens rea of theft in turn – they are defined in Sections 2-6 of the 1968 Act.
Before we do so, lets remind ourselves about what Section 1 says about theft. Theft is stated as follows 'A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving that other of it …....'
We should also remember that theft is not a new offence that came into being for the first time under the Theft Act 1968. The Act was passed as a result of the work of the Criminal Law Revision Committee on this area of the law. Amongst other things the old law was based on the concept of larceny and needed to be brought up to date. The 1968 Act was an attempt to bring together the law of theft in one modern statute. Many would argue that it has been a success, making the law more accessible both to criminal practitioners and the judiciary as well as the public and jurors.
The new law was deliberately drafted in such a way as to be much wider and broader in its' application than just dealing with situations covering stealing by taking and, as a result one of the elements consists of the principle of appropriation (Section 3). The meaning of appropriation has been tested in the courts on a number of occasions since and attention needs to paid to such cases as Lawrence (1972), Gomez (1993), Hinks (2000) and Briggs (2003).
Appropriation occurs when a person assumes the rights of the true owner. The courts have also determined through case law that any assumption of any of the rights of the owner will suffice and that this can arise irrespective of consent. As is often the case, consideration of examples of situations which have been held to amount to an appropriation will probably help.
In Lawrence (1972) an Italian student arrived in London for the first time. The victim spoke little English and showed a piece of paper to a taxi driver. Written on the piece of paper was the address to which he wished to be taken. The taxi driver, sensing perhaps an opportunity to take advantage of the student, falsely represented the journey to be longer than it actually was. When offered a £1 note, the driver took an additional £6 from the student's open wallet. The taxi driver was subsequently convicted of theft but appealed on the grounds that the victim had consented to the taking of the money. The matter eventually reached the former House of Lords who agreed that there was an appropriation even though the victim had consented.
Lawrence v Commissioner of Police of the Metropolis (BAILII:  UKHL 2 ) 
The House of Lords took the opportunity to reaffirm their view of the law in R v Gomez (1993) which involved an assistant store manager of an electrical store who agreed to take and sell some goods belonging to the store in return for some stolen cheques. It was to be alleged later that the manager of the shop had consented to the transaction on being presented with a shopping list and had been led to believe that the order was genuine. The manager was also led to believe that the cheque was as 'good as cash'. The House ruled that their previous ruling in Lawrence concerning their construction of 'appropriation' was correct and that it should be regraded as authoritative and correct. The assistant store manager's conviction for theft was reinstated.
DPP v Gomez (BAILII:  UKHL 4 )  AC 442, 
In R v Hinks (2000) appropriation was ruled to extend to include circumstances where the defendant acquired a title to property as a result of a gift. Miss Hinks had acquired large sums of money from the person she had befriended and had apparently taken advantage of him in some way as he had a limited degree of intelligence. Her conviction of theft was upheld on appeal. The decision is not without its' critics including the late Sir John Smith. They disagreed on the basis that it flew in the face of common sense and went too far in terms of creativity on the part of the House of Lords. Another critic was Professor Glanville Williams but there are some academics who who do not find the decision quite so objectionable.
Hinks (BAILII:  UKHL 53 ) 
In R v Briggs (2003) the Court of Appeal ruled that appropriation did not include circumstances when the act complained of did not involve a physical one which was considered too remote. The case concerned the defendant's handling of a property transaction on behalf on her elderly relatives. It is important to remember however that the appeal only concerned one charge of theft arising out of the handling of funds and that other convictions, including forgery and obtaining property by deception, were not appealed against. The case supports the view that there are limits to the construction that can be placed upon 'appropriation.'
Briggs (BAILII:  EWCA Crim 3662 ) 
Turning to Section 4 we are helped by being told that property includes real and personal property as well as things in auction and other intangible property. Rather bizarrely this may include the removal of a urine sample previously provided for analysis by the police (Welsh (1974)).
Apparently body parts preserved for scientific examination can also amount to 'property' capable of being stolen as in R V Kelly and Lindsay (1998)- British and Irish Legal Information Institute. Kelly was an artist, he had been given permission to draw anatomical specimens. The specimens were held at the premises of the Royal College of Surgeons. They consisted of various body parts which were used for training surgeons. Whilst visiting the RCS Kelly met Lindsay, a junior technician working for the College. Kelly asked Lindsay to remove some of these body parts including three human heads, six arms, ten legs, part of a brain and three torsos. Casts of the body parts were made by Kelly and they were exhibited in an art gallery.
Kelly and Lindsay were convicted of theft and appealed, arguing that the body parts did not constitute property lawfully in the possession of RCS. The appeal was dismissed and the Convictions were 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.
On the subject of intangible property, many law students find the case of Oxford v Moss (1979) of interest in that it concerned a student who acquired the proof or draft of an intended examination paper as part of a plan to cheat. The student's plan did not include an intention to steal the paper as such, only an intention, presumably, to copy it in some way. The court held that information of this kind did not amount to property for the purposes of the Theft Act 1968. Examples of intangible property include such things as patents, copyrights (something which is causing widespread concern and debate in the context of illegal music downloads), shares and interests in insurances.
Like other elements, the words 'belonging to another' (Section 5), are broadly interpreted and the words are capable of including persons who have possession or control as well as people having a proprietary right or interest. This point can be illustrated by the case of R v Turner (No 2) (1971) in which the defendant left his car with a garage for repairs and returned after the work had been done and took the car away without reporting this to the garage or paying the repair bill. The defendant's defence was that he was merely recovering something that was already his, namely his car. He claimed that he owned the car – so he could not be guilty of theft. How can you be guilty of stealing your own property? The defendant's conviction for theft was upheld on appeal on the basis that it was clear that the garage were exercising possession and control over the car in accordance with the wording of the Act.
The case is distinguishable from R v Meredith (1973) where the court ruled that the police were not exercising control in the case of a vehicle impounded for causing an obstruction. Meredith went to the police station yard and removed the Crook-lock from his car and drove the car away. He was charged with theft of the car (and the lock). The police were found only to have a right to enforce a statutory charge in regard to the car and the jury were directed to acquit. In respect of the lock, which he returned to the police after a couple of days, it was considered that he only had it for a short time before returning it and in the circumstances it did not warrant a conviction.
Examples of what amounts to a 'proprietary interest' include 'treasure trove' once a declaration has been made to such an effect which has the effect of vesting an interest in the Crown. Discoveries of treasure must be reported to the local coroner and to the landowner. The coroner must make a decision regarding the fate of the treasure. The finder is entitled to a finder’s fee if the find is ruled to be treasure but ownership passes to the Crown. In R v Hancock (1990) Hancock was charged with theft from the Crown of 16 ancient coins found in an area which appeared to have been the site of a Romano-Celtic temple. Another example is trust property.
Section 5 also deals with property which has been given for a particular purpose, and treats such property as belonging to another if that party deals with it in an unauthorised way. In the case of R v Hall (1973) the point arose where a travel agent took deposits for air flights to America and placed the sums in general trading accounts. The firm went broke and the the court reluctantly found that the firm were not necessarily under an obligation to deal with the customer's money in a particular way which meant that the customers were not protected and the company could not be accused of theft.
On the other hand in Davidge v Bennett (1984) a defendant who was given money by fellow flat mates. The money was to be used specifically towards the payment of a communal gas bill, was convicted of theft when she spent the money on Christmas presents.
Section 2 of the Act deals with dishonesty which is required in terms of the mens rea of the offence of theft. The Act does not define dishonesty as such but it does set out what does not amount to dishonesty or what, in effect, may amount to a defence.
Section 2 (1) (a) provides that a person is not dishonest if they honestly believe they have a legal right to the property. This point was tested in the case of R v Holden (1991) which concerned a charge of theft arising out of the taking of old tyres by the defendant from Kwik-Fit. The defendant's defence was that he believed others had taken tyres with the consent of the supervisor but this was contradicted by the evidence of the manager to the effect that it was a disciplinary offence. On appeal the court ruled that is was not necessary for the defendant to show that the belief was reasonable only that he had an honest belief.
Section 2 (1) (b) provides that a person will not be dishonest if they honestly believe the owner would consent if they knew about it. In this regard many will recall class discussions where it is suggested that an example of this situation would be that one student used a fellow student student's law books for revision while the owner was away, in the belief that the other person would consent if they knew of their fellow student's predicament.
Finally Section 2 (1) (c) provides that a person will not be dishonest if they honestly believe the owner cannot be found, having taken reasonable steps to do so – if an honest belief is not held then this is theft and often referred to as stealing by finding. The well known case of R v Small (1988) is a good example. In this case the defendant claimed that he found a car that had been abandoned by its owner with the keys in the ignition. The car had a flat tyre and a flat battery and there was no petrol in it. Small assumed it had been abandoned and thought he could take it. His conviction for theft was quashed as he honestly believed the owner could not be found. There is no requirement that the defendant's belief is reasonable so it was immaterial that a reasonable person would have known he could have identified the owner by contacting the DVLA.
In most cases, as is consistent with the modern approach to the need for assistance for the jury, the aim is to avoid unnecessary technical guidance. The overall object of the Theft Act was, after all, to make the law easier to understand and accessible. In many cases guidance will not be required and juries will be able to apply their own common sense. In the event of guidance being required, the jury will be told that they must decide if the defendant was dishonest by the ordinary standards of the reasonable and honest man and additionally that if the answer to that question is yes, that the defendant also knew that what they were doing was dishonest by that standard. The two-fold test is therefore partly objective ( the standard of the reasonable man) and partly subjective (their knowledge). Invariably the jury will fall back on what they consider to be reasonable when considering the first part of the test.
The above test was set out in R v Ghosh (1982) which concerned a hospital consultant who believed that he was entitled to offset monies due to be paid by him to the hospital against monies that they owed him.
R v Ghosh (BAILII:  EWCA Crim 2 ) 
Section 6 deals with the element of the 'intention to permanently deprive.' The courts have determined that this means that this is an intention to take forever or to take for a time, which in effect means an outright taking, even though the defendant may have intended to return the property. In R v Lloyd (1985) the defendants had been involved in the temporary borrowing of films from a cinema to enable the accomplices to make unauthorised copies of the films for commercial gain. The defendants were lucky in escaping conviction when the Court of Appeal ruled that the 'borrowings' had not affected the value of the films so as to amount to an outright taking because all the 'goodness' of the property had not been taken out of it.
R v Lloyd (BAILII:  EWCA Crim 1 ) 
An example of a borrowing which could lead to a conviction might be the taking of something such as a season ticket which is then used for the duration of its validity and then returned after it had expired. Such a taking would in effect have been to equate to an intention permanently to deprive, as it effectively deprives the holder of the season ticket to the benefits of its use.
This essay looks in detail at the criminal liability for theft as defined under Section 1 of the Theft Act 1968.
The definition of theft is explained and the reasons for the Theft Act being introduced and the way it has been drafted are looked at.
To illustrate appropriation and to clarify the meanings of the various Sections of the Theft Act a number of notable cases are referred to:
The essay lends itself to further discussion and elaboration using the links provided.
(Word count 2145)
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