Theft

Question 1

What is the definition of theft?

Answer 1

‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it …’

Question 2

What elements must be proven for theft?

Answer 2

Actus reus:
* Appropriation (s 3 Theft Act 1968)
* Property (s 4 Theft Act 1968)
* Belonging to another (s 5 Theft Act 1968)
Mens rea:
* Dishonestly (s 2 Theft Act 1968)
* With the intention to permanently deprive (s 6 Theft Act 1968)

Question 3

What is appropriation?

Answer 3

‘Any assumption by a person of the rights of an owner amounts to an appropriation …’

Question 4

What is assumption with regards to appropriation?

Answer 4

The assumption of any one of the rights of an owner amounts to an appropriation, for example selling it, hiring it, giving it away or destroying it.Even if D does not intend by the act of appropriation itself to deprive the owner permanently of the property, D may be guilty of theft.

Question 5

Can appropriation happen with the consent of the owner?

Answer 5

In R v Gomez the majority in the House of Lords decided that a defendant can appropriate property even with the consent of the owner.

‘When theft is alleged and that which is alleged to be stolen passes to the defendant with the consent of the owner, but that consent has been obtained by a false representation, has, (a) an appropriation within the meaning of section 1(1) of the Theft Act 1968 taken place, or, (b) must such a passing of property necessarily involve an element of adverse [interference] with or usurpation of some right of the owner?’

Question 6

Can someone steal a gift?

Answer 6

Yes, person could be guilty of stealing a valid inter vivos gift

Question 7

Can appropriation happen later?

Answer 7

In such circumstances, when the defendant does form the necessary mens rea later it will then be necessary to apply the Theft Act 1968, s 3(1), which provides for a later assumption of the owner’s rights to amount to an appropriation:
‘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.’

Question 8

Is an innocent purchaser guilty if theft?

Answer 8

The Theft Act 1968, s 3(2) exempts a defendant from liability for theft where the defendant purchases goods in good faith and for value, then later discovers that the seller had no title to the property, but decides to keep it.

Question 9

What amounts as property for theft?

Answer 9

‘Property’ includes money and all other property, real or personal, including things in action and other intangible property.
Generally, all property may be stolen, although there are certain exceptions in relation to land (s 4(2)), things growing wild (s 4(3)), and wild creatures(s 4(4)).

Question 10

When is the exception for land seen as theft?

Answer 10

In general land cannot be stolen. However, a person can be guilty of theft if, for example:
(a) By a trustee in breach of trust
(b) By a person who is not in possession of the land if they appropriate anything forming part
of the land either by severing it or after it has been severed
(c) By a tenant who takes something fixed to the land that they are not supposed to take.
* s 4(2)(a)- D is authorised to sell land and sells more than they are meant to;
* s 4(2)(b)- D is a trespasser or invited guest and removes a fence or a lavender plant;
* s 4(2)(c)- D is a tenant and removes or sells without removing, a fixed greenhouse.

Question 11

What wild plants fall under the exception to property for theft?

Answer 11

Mushrooms;
* Flowers;
* Fruit; and/ or
* Foliage.

Question 12

How can D be guilty of theft with regards to plants?

Answer 12

D can however be guilty of theft if:
* The purpose of picking from the wild plant is:
- A reward;
- To sell; or
- For another commercial purpose.
* D uproots or cuts parts of the wild plant.
* D picks cultivated plants.

Question 13

What falls under the wild animals exception for property for theft?

Answer 13

D will not be guilty of the theft of:
* Untamed animals; and/ or
* Animals not ordinarily kept in captivity.

Question 14

What animals could D be guilty of theft for?

Answer 14

D can be guilty of theft of:
* Tamed animals (for example, pets such as a cat or dog);
* Animals kept in captivity (for example, in a zoo); and/ or
* Animals in the course of being reduced into possession (for example, have been trapped).

Question 15

What property can be stolen?

Answer 15

What property can be stolen?
* Money- notes, coins including other currencies
* Real property- land in certain circumstances discussed already
* Personal property, for example a coat, a ring, a car, water, gas
* Intangible property such as things in action (a right to sue/ recover)- company shares, trademarks, patents, copyright, a debt, a credit in a bank account, forged cheques, cheques drawn on accounts in credit or those drawn on accounts within the agreed overdraft limit (as the bank is obligated to honour the cheque)
* Unlawful or illegal items such as Class A drugs (Smith, Plummer and Haines [2011] EWCA Crim 66)

Question 16

What property cannot be stolen?

Answer 16

Wild plants and animals- except in certain circumstances discussed already
* Electricity (Low v Blease [1975] Crim LR 513)
* Corpses and body parts except those which have been taken into another’s possession or control such as:
* Corpses in hospitals
* Blood given to a blood bank
* Corpses or body parts which have ‘acquired different attributes’ for scientific or teaching purposes (Kelly and Lindsay [1999] QB 621)
* Confidential information does not fall within the definition of intangible property (Oxford v Moss (1978) 68 Cr App R 183)
* Services such as a train journey
* Cheques drawn on accounts over the agreed overdraft limit (as the bank is not obligated to honour the cheque)

Question 17

What is the definition of belonging to another?

Answer 17

‘Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest …’

Question 18

What about abandoned property?

Answer 18

Property can cease to belong to another if it has been abandoned. However, the courts do not readily find that property has been abandoned.

householders do not abandon goods that are put in their domestic waste. The householder intends the goods to be collected by the local authority, so a refuse collector could be guilty of theft if appropriating goods from a bin with the relevant mens rea.
Property is not abandoned just because the owner has stopped looking for it. Smith, Hogan and Ormerod’s Criminal Law notes that a husband who has lost his wedding ring and has long since given up looking for it, will not have abandoned it.

Question 19

How do you assess whether property has been abandoned?

Answer 19

t will depend on whether the owner wants the property or wants it to go to another party, or whether the owner does not mind what happens to it.

Question 20

Does possession and control only apply to the specified property?

Answer 20

No, The courts have found that property can belong to persons who have possession or control, not just of the specified property, but over the land upon which it was found. This can be so even if the owner of the land is unaware of its existence.

Question 21

Can you steal your own property?

Answer 21

Yes,

v Turner (No 2) [1971] 1 WLR 901
FACTS: The defendant took his car to a local garage. He later contacted the mechanic to check if the car was ready and was told that it was. The defendant took the car using his spare keys without paying the bill. He was convicted of theft and appealed.
HELD: The Court of Appeal held that the mechanic was in possession and control of the car and, therefore, the car did ‘belong to another’.

Question 22

When is property that is given to D still considered as belonging to the owner?

Answer 22

The general civil rule is that title in property passes at the time that the parties intend it to pass. The Theft Act 1968, section 5(3) can be used to cover cases where property is handed over for a particular purpose, and the title in that property passes to the accused before D has formed a dishonest intention to use it for an unauthorised purpose.
The Theft Act 1968, s 5(3) provides:
‘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.’

Question 23

What happens if someone acquires someone else’s property by mistake?

Answer 23

As with s 5(3), this provision only requires the obligation, whether that is the case is a matter of law. Under the law of restitution, when someone is aware they have acquired property by a mistake they are usually under a legal obligation to restore it.

‘Where a person gets property by another’s 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 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.’

Question 24

In what 3 situations is appropriation of property not dishonest?

Answer 24

• s 2(1)(a)- D has a right in law to deprive the other of the property;
• s 2(1)(b)- D would have the other’s consent if the other person knew; or
• s 2(1)(c)- the person to whom the property belongs cannot be discovered by taking reasonable steps.

Question 25

Does dishonesty need to be reasonably held?

Answer 25

No, As long as it is genuinely held D will not be dishonest.

Question 26

What is the test for dishonesty?

Answer 26

(i) What was the defendant’s knowledge and belief as to the facts?
(ii) Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people?

Question 27

If you are willing to pay for the property does this stop it being theft?

Answer 27

The Theft Act 1968, s 2(2) provides that a person can appropriate property dishonestly, despite being willing to pay for the property.
This allows people to be convicted of theft when they take property that the owner does not wish to sell, intending to pay for that property.

Question 28

Can there be dishonesty after the ownership is passed?

Answer 28

No, dishonest intent must be formed at a time when the goods belong to another. A person cannot be convicted of theft if D only forms the dishonest intent after ownership of the property has passed to D. An example can be found in Edwards v Ddin [1976] 1 WLR 942. The general civil rule is that title in property passes at the time at which the parties intend it to pass.

Question 29

What does intention to permanently deprive mean?

Answer 29

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.’

Question 30

What does the court classify as under this requirement: Intention to treat the thing as their own to dispose of regardless of the other’s rights?

Answer 30

(1) The dictionary definition of ‘to dispose of’
- The defendant attempting to sell the owner their own property
- The defendant using the owner’s property for bargaining (ransom cases)
- Rendering the property useless.
(2) Intending to treat it in a manner which risks its loss.
(3) More than ‘dealing with’ is required.

Question 31

Section 6(1) states an intention to treat the thing as their own to dispose of regardless of the others rights, will amount to an intention to permanently deprive which can mean:

Answer 31

(1) The dictionary definition of ‘to dispose of’- ‘to deal with definitely: to get rid of; to get done with, finish. To make over by way of sale or bargain, sell’, R v Cahill. Examples include:
- The defendant attempting to sell the owner their own property, R v Scott
- The defendant using the owner’s property for bargaining (ransom cases), R v Raphael.
- Rendering the property useless, DPP v J.
(2) Intending to treat it in a manner which risks its loss, R v Fernandes.
(3) More than ‘dealing with’ is required, R v Vinall.
(4) Borrowing or lending for a period and in circumstances making it equivalent to an outright taking or disposal, s 6(1). Was the intention to return it minus all its goodness, virtue and practical value? (R v Lloyd)
(5) Theft Act 1968, section s 6(2)- a person who parts with property under a condition as to its return, which they may not be able to perform.

Question 32

A woman goes to a party. All the coats are left upstairs in a bedroom. When she goes to collect her coat she sees a mink jacket. Horrified at the cruelty of a coat made out of animal fur, she takes a pair of scissors from the dressing table and cuts the jacket into small pieces which could not be sown together again. She leaves the pieces on the bed and goes home.

Which of the following best describes whether the woman has intention to permanently deprive for the purposes of theft?

The woman does not have intention to permanently deprive because she does not offer the jacket by way of sale, bargain with it or sell it

The woman does not have intention to permanently deprive because she has not risked the jacket’s loss

The woman has intention to permanently deprive because she has rendered the jacket useless

The woman does not have intention to permanently deprive because she has not borrowed the jacket in circumstances making it equivalent to an outright taking

The woman has intention to permanently deprive because she has taken away all of the jacket’s goodness, virtue and practical value

Answer 32

The woman has intention to permanently deprive because she has rendered the jacket useless

Correct. The extended meaning in s 6(1) Theft Act 1968 is ‘to treat the thing as [her] own to dispose of regardless of the other’s rights.’ DPP v J held that this will happen if the jacket is rendered useless.
The other options, some of which are plausible, are not the best answers or are incorrect.
Borrowing property that belongs to another can amount to intending to treat it as one’s own to dispose of regardless of the other’s rights if it is for a period and in circumstances making it equivalent to an outright taking, s 6(1). However, the woman’s behaviour is not easily seen as borrowing.
Intending to treat the property in a manner which risks its loss may be evidence of intention to permanently deprive according to s 6(1) and case law such as R v Fernandes and R v Marshall. However, on the facts, the jacket has been rendered useless, as it cannot be sown together again.

Question 33

A father buys three soft scoop ice creams from a van for himself and his children. He hands over £10. The man in the van mistakenly thinks the father has handed over a £20 note so gives him £12.50 change in coins. Initially the father does not notice he has too much change as he is grappling with the ice creams and the coins. Eventually the father sees he has been given too much money and decides to keep it. By this time, his children have eaten most of their ice cream.

Which of the following best explains whether the money belongs to another for the purposes of theft?

The money belongs to another because the father is under a legal obligation to restore the extra change which belongs to the ice cream seller and the father

The money belongs to another as the father is under an obligation to deal with the money in a particular way

The money belongs to another because the father is under an automatic obligation to restore property acquired by mistake

The money belongs to another because the father is under a legal obligation to restore the extra change which belongs to the ice cream seller alone

The money does not belong to another because it belongs to the father who has possession and control of it

Answer 33

The money belongs to another because the father is under a legal obligation to restore the extra change which belongs to the ice cream seller and the father

Correct. Section 5(4) Theft Act 1968 states that where property is given to another by a mistake and there is a legal obligation to restore it, that property belongs to the other for the purposes of the Theft Act.
The other options, some of which are plausible, are not the best answer or are incorrect.
Where property has been acquired by a mistake, legal ownership passes to the recipient (the father). However, s 5(4) Theft Act 1968 provides that for the purposes of theft, the property will be regarded as still belonging to the original owner, the ice cream seller (as well as the recipient) if the recipient is under a legal duty to restore the property in whole or part.
Section 5(4) does not create an automatic legal obligation to restore. The section will operate only if such an obligation can be established in law such as Attorney-General’s Reference (No 1 of 1983).
Section 5(3) would only operate if the father was under a legal obligation to use the money in a particular way for the ice cream seller.

Question 34

A woman suspects her colleague at work is suffering from the early stages of dementia. She tells him she has got into debt and is due to have her electricity cut off. This is not true. She asks the colleague for £2,000. Although he does not believe her, he hands her the money in cash. He does this because he knows she is a single parent who is struggling financially, he has plenty of money and he feels sorry for her.

Which of the following best explains whether the woman has appropriated the money for the purposes of theft?

She has not appropriated the money because the man consented- he knew she was lying when he gave her the money

She has appropriated the money because she has lied to him in her reasons for needing the money

She has appropriated the money because she thinks he has dementia and is taking advantage of him

She has appropriated the money despite his consent, and despite his intention to give her the money as a gift

She has not appropriated the money because the man intended it to be a gift to her

Answer 34

She has appropriated the money despite his consent, and despite his intention to give her the money as a gift

Correct. It was held in R v Gomez that you can appropriate with the owner’s consent as appropriation is an objective description of the act done independent of the mental state of either the owner or the defendant. Following on from this reasoning, the House of Lords said in R v Hinks that it is possible to appropriate a gift.
The other options are incorrect. When considering whether there has been an appropriation for the purposes of theft, it is irrelevant that:
- she has lied to him in her reasons for needing the money;
- the man intended the money to be a gift to her;
- the man consented- he knew she was lying when he gave her the money;
- she thinks he has dementia and is taking advantage of him.

Question 35

A man asks the receptionist at the front desk of a hotel to get him a taxi to the station. The receptionist rings for a taxi from the company which the hotel always uses. The taxi takes the man to the station. The man pays in cash and the taxi driver gives him change but accidentally gives the man an extra £50 note which had become stuck to the £10 note he intended to give the man. The man does not notice this until after the taxi has gone. The man considers how he could contact the taxi driver to return the note but concludes that this would be extremely difficult and that the chances of tracing the taxi driver are slight. He keeps the £50 note.

Which of the following best explains whether the man is dishonest for the purposes of theft?

The man is not dishonest as he believes that the taxi driver cannot be discovered by taking reasonable steps

The man may be dishonest as he might be found dishonest by the standards of ordinary decent people

The man may be dishonest as his belief that the taxi driver cannot be discovered by taking reasonable steps was not reasonable

The man is not dishonest as ordinary decent people would not find him to be dishonest

The man may be dishonest as he did not take any reasonable steps to find the taxi driver

Answer 35

The man is not dishonest as he believes that the taxi driver cannot be discovered by taking reasonable steps

Correct. The exception to dishonesty as set out in s 2(1)(c) Theft Act 1968 will apply here. The man does not believe the owner can be found by taking reasonable steps. His belief does not need to be reasonable, R v Robinson.
The other options, some of which are plausible, are not the best answer or are incorrect.
Section 2(1)(c) applies where the defendant believes that the owner cannot be discovered on taking reasonable steps. It is not necessary to show that the defendant has taken any steps to find the owner in fact.
The test in s 2(1)(c) is a subjective one, based on the defendant’s beliefs.
If any of the exceptions set out in s 2(1) apply to the defendant, he is not dishonest and therefore the test in Ivey v Genting Casinos will not be applied.

Question 36

A woman is meeting her personal trainer after work. He likes to be paid in cash. She realises that she does not have enough cash so borrows £20 from the envelope in her desk drawer which contains contributions from her colleagues for a leaving present for their boss. She intends to replace the money.

Which of the following is the best argument for why she will escape criminal liability for theft?

She does not have an intention to permanently deprive because she will return the money with all its goodness, virtue and practical value

The money does not belong to another as ownership of the money passed to the woman when she collected it

She does not appropriate the money as she intends to replace it

She does not take property as money is not mentioned as a form of property

She is not dishonest

Answer 36

She is not dishonest

Correct. She may believe her colleagues would consent to her borrowing the money, s 2(1)(a). In cases where any of the exceptions to dishonesty apply, the common law test in **Ivey v Genting Casinos **will not be considered. However, it is unlikely she would be viewed as dishonest under the Ivey test in any event.
If any element of the offence is missing, as here with dishonesty, the offence cannot be established.
The other options, some of which are plausible, are not the best answer or are incorrect.
All the other elements of theft can be established here.
She appropriates the money when she takes it from the envelope as this is an assumption of a right of the owner to handle it and spend it, s 3(1) and R v Morris.
Money is specifically listed as property in s 4(1).
The money belongs to another assection 5(3) will almost certainly apply here. It looks as if there is a legal obligation to spend the money in a particular way. See Davidge v Bunnett.
There is intention to permanently deprive as she does not intend to return the exact same note. See R v Velumyl.

Question 37

What can appropriation include?

Answer 37

(a) A shopper switching a price label on a piece of meat – R v Morris [1984] AC 320.
(b) Property passing with the consent of the owner – DPP v Gomez [1993] AC 442 (where a
shop manager handed over goods on receipt of a fraudulent cheque).
(c) The receipt of a gift – R v Hinks [2000] UKHL 53.

Question 38

Can D commit multiple thefts of the same property?

Answer 38

R v Atakpu [1994] QB 69 confirms that the
defendant can only commit theft of the property once.

Question 39

What can someone cannot steal?

Answer 39

(a) Mushrooms, flowers, fruit or foliage growing wild on land
A person who picks these items is innocent of theft provided this was not done for reward,
sale or other commercial purposes. Thus, if a person picks a bunch of buttercups growing
by the roadside, the flowers will not be ‘property’ under s 1 of the TA 1968 unless they
intend to sell them.

(b) Wild creatures
Although wild creatures are excluded as property, there are exceptions. If a wild animal
is tamed or ordinarily kept in captivity, for example a lion in a zoo, it may be stolen.
Similarly, a wild creature that has been reduced into possession may be stolen; this would
apply if the owner of land had snared a wild rabbit and someone else then took it.

electricity and confidential information.

Question 40

Question 1
A man enters his supervisor’s office and sees a copy of the secret recipe that is used to
make a vegan pie. He memorises it and leaves the office. On the way out, he picks up a
black umbrella that he believes has been left by one of his colleagues; in fact, it is his own
umbrella.
On walking home, the man picks and eats some blackberries that are growing on a bush
by the side of the road. Nearby, he sees a wedding ring in the grass, which has been flung
away by the owner with the intention of never retrieving it, after her husband asked for a
divorce. The man puts the ring in his pocket. He then calls on his elderly aunt and drops off
a loaf of bread that he has purchased for her. In confusion, she gives him a £50 note, which
he decides to keep.
For which item has the man satisfied the actus reus of theft?
A The secret recipe.
B The umbrella.
C The blackberries.
D The wedding ring.
E The £50 note.

Answer 40

Answer
The correct answer is option E. The man commits the actus reus of theft when he takes
the £50 as the note is property belonging to another – his aunt – and gifts may be an
appropriation (although it will only be theft if the defendant also satisfies the mens rea).
The man has not satisfied the actus reus of theft for the secret recipe in option A, as
confidential information is not property within the meaning of the TA 1968. To be liable
for theft, the man must steal property belonging to another and the umbrella (option B)
belongs to him, even though he does not realise this. The blackberries are fruit taken from
a plant growing wild so cannot be considered as ‘property’; thus, option C is wrong. The
wedding ring has been abandoned by the owner and so does not belong to another,
hence, the actus reus is not complete in option D.

Question 41

A woman is sitting in her university library when she picks up a text book that is on the desk
next to her. The text book is worth £30. She then leaves the library with the book.
In which of the following circumstances is she dishonest?
A She honestly and reasonably thinks it is her book.
B She honestly but unreasonably thinks it is her book.
C She leaves the sum of £30 in cash to pay for the book.
D She honestly believes the owner would consent to her taking the book as she thinks it
belongs to a friend of hers.
E She honestly thinks that the book has been abandoned.

Answer 41

Answer
The correct answer is option C. The woman may be dishonest as s 2(2) of the TA 1968
states that a willingness to pay is not in itself proof of a lack of dishonesty.
The woman is not dishonest in options A or B because of the provisions contained in s 2(1)
(a); the woman thinks it is her book and so she believes she has the right in law to take it.
Provided the defendant’s belief is honestly held, it does not need to be reasonable and the
jury must acquit her of theft in these circumstances.
She is not dishonest in option D because of s 2(1)(b), as she honestly believes the owner
would consent to her taking the book. With regard to option E, if she genuinely believes that
the book has been abandoned she is not dishonest under s 2(1)(c).

Question 42

Question 3
The defendant is in the final of a national sculpture competition. Realising that his sculpture
is inferior to the work of the other finalist, a woman, he decides to ruin her work. He waits
until the gallery is closed and smashes a window to gain access to the room where her
work is displayed. Once inside, he breaks off part of his rival’s sculpture, which is on
display.He then sees a painting that he likes and so he picks it up and places it in his bag.
Suddenly, the security guard enters the room and, to ensure that he keeps the painting, the
defendant pushes him away as hard as he can. The security guard falls and fractures his
arm in several places as he lands on the floor. The defendant flees the gallery.
The defendant is charged with a number of offences. What is the only offence he should
be acquitted of?
A Burglary with intent in relation to the damaged sculpture.
B Burglary in relation to the damaged sculpture.
C Burglary when he takes the painting.
D Burglary for the assault on the security guard.
E Robbery for the assault on the security guard.

Answer 42

Answer
Option B is the only offence for which the defendant is not liable and, thus, should be
acquitted. He is not guilty of burglary (contrary to s 9(1)(b)) as although he enters the
gallery (the building) as a trespasser, the definition does not cover the commission of
criminal damage (although he would be liable for the substantive offence).
The defendant is liable for the offence of burglary with intent in option A. The actus reus
of s 9(1)(a) burglary is satisfied as the defendant enters the building as a trespasser and
breaks a window in order to do so. He satisfies the relevant mens rea as he intends to
enter as a trespasser as he ‘waits until the gallery is closed’; and he has the ulterior mens
rea of intent to commit criminal damage on entry which is sufficient for the s 9(1)(a) offence.
The defendant is also liable for the burglary offence in option C because, having entered
as a trespasser, he steals (appropriates property belonging to another dishonestly and with
the intention to permanently deprive) the painting. He is also guilty of this offence in option
D as the security guard suffers grievous bodily harm and the defendant either intends or
is reckless as to causing some bodily harm (the mens rea for an assault under s 20 of the
OAPA 1861).
The defendant is criminally liable for robbery in option E when he assaults the security
guard because the defendant commits theft of the painting and uses force at the time of
the theft to do so.