PROPERTY OFFENCES: THEFT

INTRODUCTION
DEFINITION
Theft Act1968 Act s1
A person is guilty of theft if he dishonestly appropriates property belonging to another with
the intention of permanently depriving the other of it.
SENTENCE
Under s 7, A person guilty of theft shall on conviction on indictment be liable to
imprisonment for a term not exceeding [seven] years. (7 years substituted for 10 years by
Criminal Justice Act 1991.)
ACTUS REUS
Appropriates
s 3(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.
Examples
Pitham and Hehl (1976)
Broom v. Crowther (1984)
Assuming the rights of the owner

Morris [1984]
it is enough for the prosecution if they have proved in these cases the assumption by
the defendants of any of the rights of the owner of the goods in question, that is to say,
the supermarket concerned. per Lord Roskill
Gomez [1993]
In my opinion Lord Roskill was undoubtedly right when he said that the assumption
by the defendant of any of the rights of an owner could amount to an appropriation

within the meaning of s 3(1), and that the removal of an article from the shelf and the
changing of the price label on it constituted the assumption of one of the rights of the
owner and hence an appropriation within the meaning of the subsection. per Lord
Keith of Kinkel at p. 459.
Gallasso [1993]
Court of Appeal taking with consent may amount to an appropriation, there must still be a
taking. This is not to reintroduce the concept of carrying away into the definition of
appropriation. It is to do no more than to give appropriation its ordinary meaning in section 1
and the same for the assumption of owners rights in section 3(1). per Lloyd LJ. at p.289
Referring to the example given by Lord Keith in Gomez:
But Lord Keith did not mean to say that every handling is an appropriation. Suppose, for
example, the shopper carelessly knocks an article off the shelf: if he bends down and replaces
it on the shelf nobody would regard that as an act of appropriation; or suppose a lady drops
her purse in the street, if a passer-by picks it up and hands it back there is no appropriation
even though the passer-by is in temporary control. It would be otherwise if he were to make
off with the purse. per Lloyd LJ
Consent
Consent to or authorisation by the owner of the taking by the rogue is irrelevant. per
Lord Keith in Gomez at p. 464.
Lawrence [1972]
Prior to the passage of the Theft Act 1968, which made radical changes in and greatly
simplified the law relating to theft and some other offences, it was necessary to prove that the
property alleged to have been stolen was taken without the consent of the owner (Larceny
Act 1916, s 1(1)). These words are not included in s 1(1) of the Theft Act 1968, but the
appellant contended that the subsection should be construed as if they were, as if they
appeared after the word appropriates. I see no ground for concluding that the omission of
the words without the consent of the owner was inadvertent and not deliberate, and to read
the subsection as if they were included is, in my opinion, wholly unwarranted. Parliament by
the omission of these words has relieved the prosecution of the burden of establishing that
the taking was without the owners consent. That is no longer an ingredient of the offence.
per Viscount Dilhorne at pp. 632-633.
Morris [1984]
Skipp [1975]
Gomez [1993] AC 442.
Per Lord Keith of Kinkel:
Lawrences case makes it clear that consent to or authorisation by the owner of the taking by
the rogue is irrelevant. The taking amounted to an appropriation within the meaning of s 1(1)
of the 1968 Act. Lawrences case also makes it clear that it is no less irrelevant that what

happened may also have constituted the offence of obtaining property by deception under S
15(1) of the 1968 Act.
In my opinion it serves no useful purpose at the present time to construe the relevant
provisions of the Theft Acts by reference to the report which preceded it, namely the
eighth report of the Criminal Law Revision Committee. The decision in Lawrences
case was a clear decision of the House upon the construction of the word
appropriates in s.1(1) of the 1968 Act, which has stood for 12 years when doubt was
thrown upon it by obiter dicta in Morris. Lawrences case must be regarded as
authoritative and correct, and there is no question now of it being right to depart from
it. at p.464.
Lord Browne-Wilkinson:
I regard the word appropriation in isolation as being an objective description of the act done
irrespective of the mental state of either the owner or the accused. at p.495.
Lord Lowry (dissenting):
The ordinary and natural meaning of appropriate is to take for oneself, or to treat as ones
own, property which belongs to someone else.... The act of appropriating property is a
one-sided act, done without the consent or authority of the owner. And, if the owner consents
to transfer property to the offender or to a third party, the offender does not appropriate the
property, even if the owners consent has been obtained by fraud. p.469
Lord Lowry referred to the CLRC Eighth Report to construe the 1968 Act:
...the committee continues to recognise the difference between obtaining possession by a
trick (that is, by deception in its new wide sense) and obtaining ownership by false pretences
(again, by deception) but the committee intended, and it seems that Parliament has adopted
the same approach in section 15, that, for the purpose of finding the accused guilty, it would
cease to matter whether the victim was deceived into transferring ownership or into handing
over possession. p.467
I would point out that section 15 covers what were formerly two offences, obtaining
by false pretences (where the ownership of the property is transferred by the deceived
victim) and theft (or larceny) by a trick (where the possession of the property passes,
but not the ownership). In the former case, according to the interpretation which I
prefer, the offender does not appropriate the property, because the ownership (in
colloquial terms the property) is transferred with the owners consent, albeit obtained
by deception. In the latter case the offender does appropriate the property because,
although the owner has handed over possession by consent (which was obtained by
deception), he has not transferred the property (that is, the ownership) and the
offender, intending to deprive the owner permanently of his property, appropriates it,
not by taking possession, but by the unilateral act, adverse to the owner, of treating as
his own and taking to himself property of which he was merely given possession.
p.477-8
Some theft cases can be prosecuted under section 15, but it is fallacious, having
regard to what I perceive as the true meaning of appropriation, to say that all cases of
obtaining by deception can be prosecuted under section 1. p.478.
Commenting on this case, JC Smith says [1993]:
The crux of this case was the decision of the majority not to refer to the Eighth Report of the
CLRC. In my opinion, said Lord Keith, it serves no useful purpose at the present time to

seek to construe the relevant provisions of the Theft Act by reference to [the Eighth Report].
No useful purpose! Except of course that it demonstrated conclusively that the decision of the
majority flatly contradicted the intention of Parliament - intention which was readily
apparent from the fact that Parliament, having received the CLRCs clear exposition of the
effect of their draft bill, enacted legislation identical in all material respects with it. Of course,
the majority were in fact aware of all this. It is apparent, only through Lord Lowrys dissent,
that the case was fully argued by counsel for the respondent.... Clearly there was a decision to
turn a blind eye to the intention of the framers of the legislation and of Parliament.

The civil law/criminal law conflict since Gomez

Mazo [1997]
CA: A transaction might be theft notwithstanding it was done with the owners
consent if induced by fraud, deception or a false representation(emphasis
added). It is apparently common ground that the receiver of a valid gift inter
vivos could not be convicted of theft.
JC Smith comments on the case:
However all-embracing Gomez may seem, a line has to be drawn where a
conviction of theft would cause a conflict with the civil law - in this case the law
of gift. If the effect of the transaction is that D gets an absolute indefeasible
right to the property in question it would be unacceptable for a criminal court to
hold that the transaction amounted to a theft of the property by him.
Simon Gardner, Property and Theft [1998]
The civil law is rightly concerned to respect established property rights, even if
unsatisfactorily acquired whilst the criminal law rightly concentrates on penalising the
unsatisfactory manner of acquisition.
Hinks [2001]
They may conceivably have justified a more restricted meaning of section 3(1) than
prevailed in Lawrence [1972] A.C. 626 and Gomez [1993] A.C. 442. The House ruled
otherwise and I am quite unpersuaded that the House overlooked the consequences of its
decision. On the facts set out in the examples a jury could possibly find that the acceptance of
the transfer took place in the belief that the transferee had the right in law to deprive the
other of it within the meaning of section 2(1)(a) of the Act.
Lord Steyn:
Moreover, in such cases a prosecution is hardly likely and if mounted, is likely to founder on
the basis that the jury will not be persuaded that there was dishonesty in the required sense.
And one must retain a sense of perspective. At the extremity of the application of legal rules
there are sometimes results which may seem strange. A matter of judgment is then involved.
The rule may have to be recast. Sir John Smith has eloquently argued that the rule in
question ought to be recast. I am unpersuaded. If the law is restated by adopting a narrower
definition of appropriation, the outcome is likely to place beyond the reach of the criminal
law dishonest persons who should be found guilty of theft. The suggested revisions would
unwarrantably restrict the scope of the law of theft and complicate the fair and effective

prosecution of theft. In my view the law as settled in Lawrence and Gomez does not demand
the suggested revision. Those decisions can be applied by judges and juries in a way which,
absent human error, does not result in injustice.
Counsel for the appellant further pointed out that the law as stated in Lawrence and Gomez
creates a tension between the civil and the criminal law. In other words, conduct which is not
wrongful in a civil law sense may constitute the crime of theft. Undoubtedly, this is so. The
question whether the civil claim to title by a convicted thief, who committed no civil wrong,
may be defeated by the principle that nobody may benefit from his own civil or criminal
wrong does not arise for decision.
Lord Hutton
in a case where the defendant contends that he or she received a gift, a direction based only
on Ghosh is inadequate because it fails to make clear to the jury that if there was a valid gift
there cannot be dishonesty, and in the present case there is the danger that, if the gift was not
void for want of mental capacity, the jury might nevertheless convict on the basis that
ordinary and decent people would think it dishonest for a younger woman to accept very
large sums of money which constituted his entire savings from a nave man of low
intelligence, and that the woman would have realised this.
In this case:
(1) It was necessary for the judge to make clear to the jury that if there was a valid gift
the defendant could not be found to be dishonest no matter how much they thought
her conduct morally reprehensible.
(2) If the Crown were making the case that the gifts were invalid because Mr. Dolphin
was mentally incapable of making a gift, it was necessary for the judge to give the jury
a specific direction as to what degree of mental weakness would, in the light of the
value of the gifts and the other circumstances of the case, make the donor incapable of
making a valid gift.
(3) The jury should have been directed that if they were satisfied that Mr. Dolphin was
mentally incapable of making a gift, they should not convict unless they were satisfied
that what the defendant did was dishonest by the standards of ordinary decent people
and that the defendant must have realised this.
(4) If the Crown were making the case that the gift was invalid because of undue
influence or coercion exercised by the defendant, it was necessary for the judge to give
the jury a specific direction as to what would constitute undue influence or coercion.
(5) The jury should have been directed that if they were satisfied that the gifts were
invalid by reason of undue influence or coercion, they should not convict unless they
were satisfied that what the defendant did was dishonest by the standards of ordinary
decent people and that the defendant must have realised this.
Lord Hobhouses dissent:
It was for example suggested that the garage repair mechanic employed to change the oil of
a car would have appropriated the car. The reasoning is that only the owner has the right to
do this or tell someone to do it therefore to do it is to assume the rights of the owner. This is
an absurdity even when one takes into account that some of the absurd results can be avoided
by other parts of the definition of theft. The mechanic is not assuming any right he is merely
carrying out the instructions of the owner. The person who accepts a valid gift is simply
conforming to the wishes of the owner. The words appropriate [property belonging to

another] and assume [the rights of that other] have a useful breadth of meaning but each of
them in its natural meaning includes an element of doing something which displaces the
rights of that other person. The rights of that other [the owner] include the right to authorise
another [the defendant] to do things which would otherwise be an infringement of the rights
of the owner.
Theft and deception
It is necessary to have an understanding of the relationship between theft and the old offence
of obtaining by deception which is contained within s.15:
s15(1) A person who by any deception dishonestly obtains property belonging to
another, with the intention of permanently depriving the other of it, shall, on
conviction on indictment, be liable to imprisonment for a term not exceeding
ten years.
s15(2) For the purposes of this section a person is to be treated as obtaining
property if he obtains ownership, possession or control of it, and obtain
includes obtaining for another or enabling another to obtain or retain.
Note now such offences are dealt with under the Fraud Act 2006
Bona fide purchasers and appropriation
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 theft of the property.
Conclusion
Anyone doing anything whatever to property belonging to another, with or without
the authority or consent of the owner, appropriates it; and if he does so dishonestly
and with intent, by that act or any subsequent act, permanently to deprive, he commits
theft. JC Smith, The Law of Theft (8th ed.) para 2-05.
2. Property
According to s 4(1):
Property includes money and all other property, real or personal, including things in action
and other intangible property.
(i) Money
(ii) all other property (t
(iii) things in action See, e.g., Kohn (1979) 69 Cr App R 395 (below); Hilton [1997] 2 Cr App R
445, [1997] Crim LR 761;

(iv) other intangible property (e.g. export quotas (A-G of Hong Kong v Chan Nai Keung
[1987] 1 W.L.R. 1339), patents (Patents Act 1977 s. 30), copyright (Copyright, Designs and
Patents Act 1988, s. 213)).
What cannot be stolen?
s 4(2): A person cannot steal land, or things forming part of land and severed from it
by him or by his direction, [except for specific exceptional cases]
s 4(3): A person who picks mushrooms growing wild on any land, or who picks
flowers, fruit or foliage from a plant growing wild on any land, does not
(although not in possession of the land) steal what he picks, unless he does it
for reward or for sale or other commercial purpose....
s 4(4) Wild creatures, tamed or untamed, shall be regarded as property; but a person
cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the
carcase of any such creature, unless either it has been reduced into possession
by or on behalf of another person and possession of it has not since been lost or
abandoned, or another person is in course of reducing it into possession.
Information/Secrets
Oxford v Moss (1978)
Services
s. 10 of the Fraud Act 2006.
Corpses
See Handysides case (undated) 2 East PC 652;
In Kelly [1998]
Rose LJ the common law does not stand still. It may be that if, on some future occasion, the
question arises, the courts will hold that human body parts are capable of being property for
the purposes of section 4, even without the acquisition of different attributes, if they have a
use or significance beyond their mere existence.
Electricity
Low v Blease [1975]
But see s. 13 TA 1968
Belonging to another

s 5(1):
Property shall be regarded as belonging to any person having possession or control of it, or
having in it any proprietary right or interest...
Slowly (1873)
Abandonment
Woodman [1974]
There was evidence of ECCs being in control of the site and prima facie in control of articles
upon the site as well. The fact that it could not be shown that they were conscious of the
existence of this or any particular scrap iron does not destroy the general principle that
control of a site by excluding others from it is prima facie control of articles on the site as
well. per Lord Widgery C.J.
Turner (No. 2) [1971]
there is no ground for qualifying the words possession or control in any way. It is sufficient
if it is found that the person from whom the property was taken ... was at the time in fact in
possession or control. per Lord Parker C.J.
Meredith [1973]
Edwards v Ddin [1976]
Whose petrol and oil was it when the defendant drove away? Property passes under a
contract of sale when it is intended to pass. In such transactions as the sale of petrol at
a garage forecourt ordinary common sense would say that the garage and he motorist
intended the property in the petrol to pass when it is poured into the tank and
irretrievably mixed with the other petrol that is in it. per Croom-Johnson J.
Whether or not those controlling the company consented or purported to consent to the
abstraction of the companys property by the accused, he will have appropriated the property
of the company..... I am glad to reach this conclusion. The pillaging of companies by those
who control them is now all too common. It would offend both common sense and justice to
hold that the very control which enables such people to extract the companys assets
constitutes a defence to a charge of theft from the company. per Lord Browne-Wilkinson in
Gomez at p.496-7.
Statutory Extensions
Section 5(2):
Where property is subject to a trust, the persons to whom it belongs shall be
regarded as including any person having a right to enforce the trust, and an
intention to defeat the trust shall be regarded accordingly as an intention to
deprive of the property any person having that right.

Section 5(3):
Where a person receives property from or on account of another, and is under
an obligation to the other to retain and deal with that property or its proceeds
in a particular way, the property or proceeds shall be regarded (as against him)
as belonging to the other.
Davidge v Bunnett [1984]
Mainwaring (1981)
CA:
Whether or not an obligation arises is a matter of law, because an obligation
must be a legal obligation. But a legal obligation arises only in certain
circumstances, and in many cases the circumstances cannot be known until the
facts have been established. It is for the jury, not the judge, to establish the
facts, if they are in dispute. per Lawton L.J. at p.107.
Klineberg [1999]
Hall [1973]
Wain [1995]
CA:

D was plainly under an obligation to retain, if not the actual notes and coins, at
least their proceeds, that is to say the money credited in the bank account which
he opened for the trust with the actual property. When he took the money
credited to that account and moved it over to his own bank account, it was still
the proceeds of the notes and coins donated which he proceeded to use for his
own purposes, thereby appropriating them. per McCowan LJ at p.666.

Section 5(4):
Where a person gets property by anothers mistake, and is under an obligation
to make restoration (in whole or in part) of the property or its proceeds or of the
value thereof, then to the extent of that obligation the property or proceeds or
value shall be regarded (as against him) as belonging to the person entitled to
restoration, and an intention not to make restoration shall be regarded
accordingly as an intention to deprive that person of the property or proceeds.
Attorney-Generals Reference (No. 1 of 1983) [1985]
The value of the chose in action [Ds right to sue the bank with whom she held
an account] - the property - was 74.74 and there was a legal obligation upon
[her] to restore that value to the receiver when she found that the mistake had
been made. per Lord Lane C.J. at p.189.
There must be a legal obligation, as in s 5(3):

Gilks [1972]
.
CA:
In a criminal statute, where a persons criminal liability is made dependent on
his having an obligation, it would be quite wrong to construe that word so as to
cover a moral or social obligation as distinct from a legal one. per Cairns L.J.
p.1345.
Chase Manhattan Bank v Israel-British Bank [1981]
a person who pays money to another under a factual mistake retains an equitable
property in it and the conscience of that other is subjected to a fiduciary duty to
respect his proprietary right. at p.119.
If this is so D is guilty of theft by s.5(1) and there is no need to invoke 5(4) at all.
Shadrokh-Cigari [1988]
CA: Upon delivery under the mistake, the bank retained an equitable interest in [the bankers
drafts]. Such an equitable interest amounted to property within s.5(1) of the Theft Act 1968.
Lord Hobhouse (dissenting) in Hinks, at 266-7:
Where the transferor has made a mistake, the mistake can be so fundamental that the
transferee acquires no rights at all in respect of the chattel transferred as against the
transferor. But there may be cases where the mistake does not have so absolute an effect and
the transferor may only have equitable rights (cf subsection (1)) or restitutionary rights
against the transferee. If, however, the transferee has already had validly transferred to him
the legal title to and possession of the chattel without any obligation to make restoration, a
later retention of or dealing with the chattel by the transferee, whether or not dishonest and
whether or not it would otherwise amount to an appropriation, cannot amount to theft.
However much the jury may consider that his conduct in not returning the chattel falls below
the standards of ordinary and decent people, he has not committed the crime of theft. The
property did not belong to another.
Once the donor has done his part in transferring the property to the defendant, the
property, subject to the special situations identified in the subsections of section 5,
ceases to be property belonging to another. However wide a meaning one were to give
to appropriates, there cannot be a theft. For it to be possible for there to be a theft
there will have to be something more, like an absence of a capacity to give or a mistake
satisfying section 5(4). Similarly, where the donee himself performs the act necessary
to transfer the property to himself, as he would if he himself took the chattel out of the
possession of the donor or, himself, gave the instructions to the donors bank, section
5(1) would apply and mean that that constituent of the crime of theft would at that
time have been satisfied.
If one treats the acceptance of the gift as an appropriation ... there are immediate
difficulties with section 2(1)(a). The defendant did have the right to deprive the donor
of the property. The donor did consent to the appropriation; indeed, he intended it.
There are also difficulties with section 6 as she was not acting regardless of the donors
rights; the donor has already surrendered his rights. The only way that these
conclusions can be displaced is by showing that the gift was not valid. There are even

difficulties with section 3 itself. The donee is not assuming the rights of an owner: she
has them already.
MENS REA
Dishonestly
2:
2(1) A persons appropriation of property belonging to another is not to be regarded as
dishonest (a) if he appropriates the property in the belief that he has in law the right to deprive
the other of it ...; or
(b) if he appropriates the property in the belief that he would have the others consent
if the other knew of the appropriation and the circumstances of it; or
(c) ... if he appropriates the property in the belief that the person to whom the property
belongs cannot be discovered by taking reasonable steps.
2(2) A persons appropriation of property belonging to another may be dishonest
notwithstanding that he is willing to pay for the property.
Thee pieces of Honesty
s. 2(1)(a)
Skivington [1968]
D held up a wages clerk and demanded his wifes wages. Held: although this was an
aggravated assault, it was not theft or robbery.
s. 2(1)(b):
s. 2(1)(c):
The General Test for Dishonesty
Feeley [1973]
Ghosh [1982]
(a) Was what was done dishonest by the ordinary standards of reasonable & honest
people?
If no, not guilty; if yes, consider (b)
(b) Must D have realised that what he was doing was dishonest according to these
standards?
Feeley [1973]
CA: Jurors, when deciding whether an appropriation was dishonest can be
reasonable expected to, and should, apply the current standards of ordinary
decent people. In their own lives they have to decide what is and is not

dishonest. We can see no reason why, when in a jury box, they should require
the help of a judge to tell them what amounts to dishonesty. per Lawton L.J. at
p.598.

CA:

Ghosh [1982]
In determining whether the prosecution has proved that the defendant was
acting dishonestly, a jury must first of all decide whether according to the
ordinary standards of reasonable and honest people what was done was
dishonest. If it was not dishonest by those standards, that is the end of the
matter and the prosecution fails. If it was dishonest by those standards, then
the jury must consider whether the defendant himself must have realised that
what he was doing was by those standards dishonest. In most cases, where the
actions are obviously dishonest by ordinary standards, there will be no doubt
about it. It will be obvious that the defendant himself knew that he was acting
dishonestly. It is dishonest for a defendant to act in a way which he knows
ordinary people consider to be dishonest, even if he asserts or genuinely
believes that he is morally justified in acting as he did. For example, Robin
Hood or those ardent anti-vivisectionists who remove animals from vivisection
laboratories are acting dishonestly, even though they may consider themselves
to be morally justified in doing what they do, because they know that ordinary
people would consider these actions to be dishonest. per Lord Lane C.J.

Hyam [1997]
Atkinson [2004]
Wood [2002]
Intention permanently to deprive
Borrowing
Lloyd [1985]
a mere borrowing is never enough to constitute the necessary guilty mind unless the
intention is to return the thing in such a changed state that it can truly be said that all its
goodness or virtue has gone.
Deprivation
S1(2) It is immaterial whether the appropriation is made with a view to gain or for the
thiefs own benefit.
Substituting
Velumyl [1989]
Special cases/statutory extensions

Section 6:
(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 others rights; and a borrowing or a lending of it may amount to so
treating it, 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 others authority) amounts to treating
the property as his own to dispose of regardless of the others rights.
Lloyd [1985]
That section has been described by J.R. Spencer in his article in [1977] Crim.L.R. 653, as a
section which spouts obscurities at every phrase. and we are inclined to agree with him. It is
abstruse, But it must mean, if nothing else, that there are circumstances in which a defendant
may be deemed to have an intention permanently to deprive, even though he may intend the
owner eventually to get back the object which has been taken. per Lane L.C.J. at p. 834.
In general we take the same view as Prof. Griew ... namely that section 6 should be
referred to in exceptional cases only. p.835
... we would try to interpret the section in such a way as to ensure that nothing is
construed as an intention permanently to deprive which would not prior to the Act of
1968 have been so construed.
Treating the thing as his own to dispose of
Examples:
(a) Throwing the thing away
(b) Offering it for sale
(c) Pawning the item (covered by s. 6(2))

Marshall [1998]
Borrowing which is equivalent to an outright disposal
Two main types of cases:
(a) When the return will be in a completely altered form
DPP v. J [2002]
(b) When its value has been used up completely

Beecham (1851)