Presentation on the offence of theft

1. Theft
Definition & Actus Reus

2. Lesson Objectives
• I will be able to state the definition of theft
• I will be able to explain the actus reus of
theft
• I will be able to explain cases that illustrate
the actus reus of theft
• I will be able to apply the rules to a given
situation

3. Definition
• Theft Act 1968, s1:
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; and ‘thief’ and
‘steal’ shall be construed accordingly
2. It is immaterial whether the appropriation is made with
a view to gain, or is made for the thief’s own benefit
3. The five following sections of this Act shall have effect
as regards the interpretation and operation of this
section (and, except as otherwise provided by this Act,
shall apply only for purposes of this section).

4. • There are 5 things to be proved to secure
a conviction of theft; 3 of these form the
actus reus of the offence and 2 the mens
rea
Theft
Actus reus Mens rea
Dishonesty
Intention to
permanently
deprive the
other of it
Appropriation Property
Belonging to
another

5. Actus reus: element 1 -
Appropriation
• Appropriation is defined in s3 of the Theft Act 1968 as
follows:
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
2. 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 transferor’s title, amount to
theft of the property

6. • The general meaning is to take something
• More formally it is the assumption of the rights of
an owner
• Theft can involve more than mere taking of
property – taking rights someone has over
property (possess, use, modify, sell or destroy)
• The case that confirms that a range of activities
can amount to appropriation is Morris (1984) –
appropriation of goods includes a variety of
activities including switching labels on goods in
a supermarket

7. • No criminal appropriation where property
has been taken with consent (e.g. placing
goods in basket in supermarket and
walking to till – crime is leaving without
paying)
• The link between the elements of
appropriation and dishonesty is very close
and often forms the key aspects of the
crime
• The idea of consent by the owner
becomes a point of difficulty in some
cases

8. • Lawrence (1972) – appropriation can take place even
where the property has been handed over with the
consent of the owner; there is often a link between the
appropriation and the fact that it is done dishonestly
• Gomez (1993) – the issue of consent occurred here in
relation to releasing goods against worthless cheques; it
was decided that there can be an appropriation even if
the goods are leased with the owner’s consent –
however, it was not ‘true consent’ so the property was
dishonestly appropriated
• Hinks (1998) – appropriation can take place even where
there is a voluntary gift – The HoL stated that the issue
of consent was related to dishonesty rather than
appropriation

9. Actus reus: element 2 –
Property
• The Theft Act 1968 s4 deals with property. The general
principle is set out in s4(1) as:
1. ‘Property’ includes money and all other property, real or
personal including things in action and other intangible
property
This means everything that you can own including money,
land, belongings, cheques and other things of value
where the value is not defined by the physical thing, for
example rights of ownership of stocks and shares or
forms of credit.

10. • The Act itself, in s4, goes on to make some further
explanation and exceptions. These are set out in
s4(2), (3) and (4) as follows:
2. A person cannot steal land, or things forming part of
land and severed from it by him or by his directions,
except in the following cases, that is to say –
a) Where he is a trustee or personal representative, or
is authorised by power of attorney, or as liquidator of a
company, or otherwise, to sell or dispose of land
belonging to another, and he appropriates the land or
anything forming part of it by dealing with it in breach
of the confidence reposed in him; or

11. b) When he is not in possession of the land and
appropriates anything forming part of the land by
severing it or causing it to be severed, or after it has
been severed; or
c) when, being in possession of the land under a
tenancy, he appropriates the whole or part of any
fixture or structure let to be used with the land. For
purposes of this subsection, ‘land’ does not include
incorporeal hereditaments; ‘tenancy’ means a tenancy
for years or less period and includes an agreement for
such a tenancy, but a person who, after the end of
tenancy, remains in possession as statutory tenant or
otherwise is to be treated as having possession under
the tenancy, and ‘let’ shall be construed accordingly.

12. • This means, subject to exceptions, that
you cannot steal land or part of it such as
soil, rocks, plants or buildings
• The first exception occurs in s(2)(a): a
person can commit theft of land where he
has the ability to transfer the ownership (or
other rights over land) to another person
and the land or rights being transferred are
not his to transfer (i.e. holding a house in
trust for young children and selling for
personal gain)

13. • The exception in s(2)(b) means that a person
can commit theft of things forming part of the
land that the owner of the land has not allowed
the thief to posses. This, therefore, includes soil,
rocks, gravel, buildings (or parts of buildings)
and crops
• The exception in s(2)(c) refers to tenants of land,
whether a tenant farmer or a student in a rented
house. The tenant can be guilty of theft where
he removes ‘fixtures’; this would include a shed,
separate garage, fittings etc

14. 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 rewards or
for sale or other commercial purpose. For
purposes of this subsection ‘mushroom’ includes
any fungus, and ‘plant’ includes any shrub or
tree
• This means that a person foraging for wild food
is not guilty unless they sell it or are being paid
to do so

15. 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
• This means that a person who traps a wild rabbit
is not guilty of theft. However, once someone
else has caught the wild animal, it can then be
stolen.

16. • Oxford v Moss (1978) – confidential information
is not property within the meaning of the Theft
Act 1968: in this case, an examination paper
• Marshall (1998)- the court took into account the
value (the intangible property in a travel card
when convicting defendants who had asked for
tickets finished with by travellers that still had
some value left on them
• Kelly (1998) – the court decided that body parts
could be property for the purposes of theft even
though the common law is that there is no
property in a corpse

17. Actus reus: element 3 –
Belonging to another
• The Theft Act 1968 s5 deals with this element of
the actus reus of theft. The general principle is
set out in s5(1) as:
1. Property shall be regarded as belonging to any
person having possession or control of it, or
having in it any propriety right or interest (not
being an equitable interest arising only from an
agreement to transfer or grant an interest)

18. • This means that at the time the property is
appropriated it must belong to another. This
clearly involves rights that are less than
ownership, as the Act refers to concepts such as
possession and control
• Possession and control – a person who owns
property has the fullest rights over it. Possession
is the physical ability to enjoy the property –
tangible and intangible
• Ownership of property may be separated from
possession – Webster (2006) – where duplicate
property has been delivered to the defendant by
mistake, the defendant cannot keep the second
item; it remains the property of the person who
sent it in error

19. • There are other rights less than ownership that a person
can acquire in various ways. This can include the right to
retain possession of goods until a bill has been paid.
This can be seen in the case of Turner (No.2) (1971) – a
person can be convicted of theft where he steals another
person’s rights over goods; in this case it was the right to
retain possession of the goods until a repair bill had
been paid; the defendant appears to have been
convicted of stealing his own car, but in fact it was the
right over the car that was stolen
• It is also the case that a person could be convicted of
stealing stolen goods from a thief who had possession of
the stolen goods. The court decided in Kelly (1998) that
s5(1) does not include the word lawful, so any form of
possession, even unlawful will suffice.

20. • A person can be in control of property even though he
does not know that he possesses it. Woodman (1974) –
a person can be in control of property he does not know
he possesses; in the case, scrap metal in a disused
factory
• Where property is abandoned, there is no owner of that
property. The problem is what amounts to abandonment
– if I lose a wedding ring, the finder will be guilty of theft
if they keep it, whereas if you deliberately leave a paper
on a train you will be abandoning it
• Rubbish placed in a dustbin for the council to collect
becomes owned by the council – Williams v Phillips
(1957) – property that has been abandoned by its owner
may become the property of those that remove it; in this
case, the council owned rubbish left for collection

21. 3) Where a person receives property from, or on
account of another, and is under obligation to
the other to retain and deal with that property, or
its proceeds in a particular way, the property or
other proceeds shall be regarded (as against
him) as belonging to the other.
• This means that the Act recognises that there
are obligations that are in existence that may not
be quite as formal as a trust, but still give rise for
the opportunity to commit the offence of theft.
Cases on this usually involve money being given
to someone for a particular purpose.

22. • Davidge and Bunnett (1984) – where
money or cheques are given for a
particular purpose, they must be used for
that purpose or there can be a conviction
for theft
• DPP v Huskinson (1988) – where money
or cheques are given for a particular
purpose, there can be a conviction for theft
only if there is a legal and not merely a
moral obligation to use the proceeds for
that purpose

23. 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.
• This means that money held in any form of trust is
money belonging to another and this can be seen to
occur where there is difficulty in showing a legal
obligation rather than a moral obligation.
• Wain (1995) – where money is held in trust for someone,
the money is money belonging to another – following the
case of Dyke and Munro (2001), this principle will apply
even if there is no specific person who is to benefit from
the trust

24. 4) 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.
• This simply means that, where you are given
something by mistake and have a legal
obligation to give it back, keeping it may be theft