Theft Flashcards
Theft—Theft Act 1968, s. 1
- Triable either way
- Seven years’ imprisonment on indictment
- Six months’ imprisonment and/or a fine summarily
The Theft Act 1968, s. 1 states:
(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.
Theft
The final line of s. 1 is important and states that the words ‘“thief” and “steal” shall be construed accordingly’. This means that in any Theft Act 1968 offence where the words ‘thief’ and/or ‘steal’ are used (such as in the Theft Act 1968 offence of robbery (s. 8) or handling stolen goods (s. 22)), the ‘thief’ is the person who commits the theft offence and ‘steal’ means to commit theft. All of the elements of the theft offence must be present to ‘steal’. The definition of robbery (s. 8) tells us that ‘A person is guilty of robbery if he steals’. If an element of theft has not been satisfied then the defendant will not commit theft and will not ‘steal’. No ‘steal’ = no robbery.
Where the property in question belonged to D’s spouse or civil partner, a prosecution for theft may only be instituted against D by or with the consent of the DPP (s. 30(4)). This restriction must also apply to charges of robbery or of burglary by stealing etc. but does not apply to other persons charged with committing the offence jointly with D; nor does it apply when the parties are separated by judicial decree or order or under no obligation to cohabit (s. 30(4)(a)). Theft from businesses (classed as ‘theft from a shop’) involving first-time offenders who are not substance misusers and where the value of the goods stolen is less than £100 can be dealt with by way of fixed penalty notice.
Low-Value Shoplifting
Section 176 of the Anti-social Behaviour, Crime and Policing Act 2014 inserts s. 22A into the Magistrates’ Courts Act 1980, which provides that low-value shoplifting is a summary offence. This is subject to one exception: where a person accused of shoplifting is 18 or over, they are to be given the opportunity to elect Crown Court trial, and if the defendant so elects, the offence is no longer summary and will be sent to the Crown Court (s. 22A(2)).
Otherwise, the effect of s. 22A is that offences of low-value shoplifting cannot be sent to the Crown Court for trial or committed there for sentence; they will attract a maximum penalty of six months’ custody and they will be brought within the procedure in s. 12 of the Magistrates’ Courts Act 1980 that enables defendants in summary cases to be given the opportunity to plead guilty by post.
Shoplifting is not a specific offence as such but constitutes theft under s. 1 of the Theft Act 1968; accordingly, s. 22A(3) defines shoplifting for the purposes of this provision, which applies if the value of the stolen goods does not exceed £200. For these purposes, the value of the goods is to be determined by the price at which they were offered for sale rather than the intrinsic value, and also for the value involved in several shoplifting offences to be aggregated where they are charged at the same time (s. 22A(4)). So, for example, where a person is charged with three counts of shoplifting, having allegedly taken £80 worth of goods from three separate shops (a total of £240), the procedure would not apply in that case as the aggregate sum exceeds the £200 threshold.
Low-value shoplifting will be tried summarily (as it must be unless the defendant elects); the maximum penalty is six months’ imprisonment or a fine.
An offence of shoplifting includes secondary offences such as aiding and abetting.
Section 22A(5) amends s. 1 of the Criminal Attempts Act 1981 to provide that it is an offence to attempt to commit low-value shoplifting.
Section 176(6) of the Anti-social Behaviour, Crime and Policing Act 2014 provides that certain powers conferred by the Police and Criminal Evidence Act 1984 on the police and others in respect of indictable offences remain available in respect of low-value shoplifting, notwithstanding that it is reclassified as summary only. The powers concerned include a power of arrest exercisable by a person other than a constable (for example, a store detective), powers enabling police officers to enter and search premises and vehicles in various circumstances for the purposes of searching for evidence in connection with an investigation or arresting individuals suspected of committing offences, and powers enabling a magistrate to authorise such entry and search.
Dishonestly
If a person cannot be shown to have acted ‘dishonestly’, he/she is not guilty of theft. The decision as to whether or not a defendant was dishonest is a question of fact for the jury or magistrate(s) to decide. Whilst there is no statutory definition of the term ‘dishonestly’, the 1968 Act does deal with the issue by setting out a number of specific circumstances where the relevant person will not be treated as dishonest and one circumstance where a person may be dishonest.
Example
X wants to buy some milk and sees an unattended milk float displaying a sign, ‘Milk—£1 for 2 Litres’. X waits for several minutes but nobody in charge of the milk float appears, so X leaves £1 on the float and takes a 2-litre container of milk. The fact that the milk is for sale and X left payment would be convincing evidence to suggest that X is not dishonest.
The conclusion may be different if Y wants to own a painting that is on display in a museum. Y has made several approaches to buy the painting but has been told that the painting is not for sale. Y knows the painting is worth £10,000 and decides to take the painting from the museum, leaving a cheque for £10,000 in its place. Just because Y is willing to pay the market value for the painting does not mean to say that he is not dishonest.
Dishonesty: Case Law
Where ‘dishonesty’ needs to be considered but s. 2 of the Theft Act 1968 is of no assistance (s. 2 will not cater for every circumstance), the magistrates/jury will consider ‘dishonesty’ in the same way that it is considered in civil cases.
The test for dishonesty in civil cases was set out in Barlow Clowes International (in liq) v Eurotrust International Ltd [2006] 1 All ER 333 and Royal Brunei Airlines Sdn Bhd v Tan [1995] 3 All ER 97.
Test for Dishonesty
When dishonesty is in question, the magistrates/jury will first have to ascertain the actual state of the individual’s knowledge or belief as to the facts (this does not have to be a reasonable belief—the question is whether the belief is genuinely held). Once his/her actual state of mind as to knowledge or belief is established, the question of whether his/her conduct had been honest or dishonest is to be determined by the magistrates/jury by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant had to appreciate that what he/she had done was, by those standards, dishonest.
The test has a role for the state of mind of the defendant (in relation to the facts) but there is no requirement for him/her to appreciate the dishonesty of his/her actions.
Taking this approach means that to prove dishonesty, a prosecutor need only place before a court facts of what the defendant did and thought and then invite the court to hold that he/she was dishonest according to the standards of ordinary decent people.
Right in Law
X is owed £100 by Y. Y tells X that he will not give him the money so X, honestly believing that he has a right in law to do so, takes £100 cash from Y’s wallet as payment for the debt. It does not matter that there is no actual right in law for X to behave in this way; the honestly held belief by X that he does have a right in law means that he is not dishonest. The belief need not even be reasonable, only honestly held, and could be based on a ‘mistake’. If, in the above example, X took Y’s pedal cycle (worth £700) as payment for the debt, honestly believing that he had a right in law to do so, then X would not be dishonest if he/she honestly believed he/she had a right in law to take the pedal cycle as payment for the debt. This would also include the situation where the person acts on the basis of belief in the legal right of another. So if X, acting for the benefit of Y, took property from Z (wrongly but honestly believing that Y was entitled to it), X would not be dishonest.
Consent
- Under s. 2(1)(b), the person appropriating the property must believe both elements, i.e. that the other person would have consented had he/she known of the appropriation and the circumstances of it. For example, a person is about to run out of time on a street parking meter and needs £5 to park for the next hour or risk incurring a fine. Believing that a work colleague would consent in this situation, the person takes £5 belonging to the colleague from a change jar on the colleague’s desk. If the person honestly believes the work colleague would consent to the taking and the circumstances of it, this would not be dishonest. If the person knew that the work colleague would not approve, this would be dishonest.
Lost
- Under s. 2(1)(c), the belief has to be in relation to the likelihood of discovering the ‘owner’ by taking reasonable steps. The nature and value of the property, together with the attendant circumstances, will be relevant. The chances of finding the owner of a valuable, monogrammed engagement ring found after a theatre performance would be considerably greater than those of discovering the owner of a can of beer found outside a football ground. Again, it is the defendant’s honest belief at the time of the appropriation that is important here, not that the defendant went on to take reasonable steps to discover the person to whom the property belongs.
Trustees or personal representatives cannot rely on s. 2(1)(c). This is because a trustee or personal representative can never be personally entitled to the property in question (unless the trust or will states that is the case) as if the beneficiary cannot be found, the person entitled to the property in question (now effectively ‘ownerless goods’) is the Crown.
The Theft Act 1968, s. 3 states:
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.
Appropriates
The owner of property has many rights in relation to it—the right to sell it, to give it away or to destroy it are just some examples. ‘Appropriation’ does not envisage that a person assumes all of those rights, just one of them would suffice for ‘appropriation’ to occur.
While damaging or destroying property is clearly an act of ‘appropriation’ (R v Graham [1997] 1 Cr App R 302), it does not follow that an act of destruction of property is also thereby automatically theft of that property. Dishonestly causing the destruction of property can itself amount to an offence of theft (R v Kohn (1979) 69 Cr App R 395) but this does not make theft an appropriate charge where D merely smashes V’s car window by throwing a brick through it. Criminal damage would be the appropriate charge on such facts as there is clearly no ‘dishonesty’ present in such an act.
It is important to note that there can be an ‘appropriation’ without any criminal liability and appropriation itself does not amount to an offence of theft; it simply describes one of the elements of the criminal conduct that must exist before a charge of theft can be made out. An appropriation requires no mental state on the part of the appropriator. It is an objective act.
Where an appropriation takes place and is accompanied by the other elements of the offence, there will be a theft.
Appropriation under s. 3(1) envisages a physical act (Biggs v R (2003) 12 December, unreported).
When and where the particular act amounting to an appropriation took place is of importance when bringing a charge of theft (and in other offences such as robbery and aggravated burglary).
The decision of the House of Lords in R v Gomez [1993] AC 442 significantly developed the meaning of ‘appropriation’. Following an earlier case (Lawrence v Metropolitan Police Commissioner [1972] AC 626), Lord Keith disagreed with the argument (made in Gomez) that an act expressly or impliedly authorised by the owner of the property in question can never amount to an ‘appropriation’ and pointed out that the decision in Lawrence was a direct contradiction of that proposition. The House of Lords upheld the convictions for theft in Gomez and accepted that there are occasions where property can be ‘appropriated’ for the purposes of the Theft Act 1968, even though the owner has given his/her consent or authority.
A number of issues come from this decision:
* Taking or depriving. It is not necessary that the property be ‘taken’ in order for there to be an appropriation, neither need the owner be ‘deprived’ of the property. Similarly, there is no need for the defendant to ‘gain’ anything by an appropriation.
* Consent. It is irrelevant to the issue of appropriation whether or not the owner consented to that appropriation. This is well illustrated in Lawrence, the decision followed by the House of Lords in Gomez. In Lawrence, a tourist gave his wallet full of unfamiliar English currency to a taxi driver for the latter to remove the correct fare. The driver in fact helped himself to (‘appropriated’) far more than the amount owed. It was held that the fact that the wallet and its contents were handed over freely (with consent) by the owner did not prevent the taxi driver’s actions from amounting to an ‘appropriation’ of it.
* Interfering with goods. Simply swapping the price labels on items displayed for sale in a shop will amount to an ‘appropriation’. This is because to do so, irrespective of any further intention, involves an assumption of one of the owner’s rights in relation to the property (the right to put a price on property). If that appropriation were accompanied by the other elements of the offence, then theft is committed.
* More than one appropriation. There may be an appropriation of the same property on more than one occasion. However, once property has been stolen (as opposed to merely appropriated), that same property cannot be stolen again by the same thief (R v Atakpu [1994] QB 69). Appropriation can also be a continuing act; that is, it can include the whole episode of entering and ransacking a house and the subsequent removal of property (R v Hale (1979) 68 Cr App R 415).
In R v Hinks [2001] 2 AC 24, the House of Lords was asked to rule on whether a person could ‘appropriate’ property belonging to another where the other person made her an absolute gift of property, retaining no proprietary interest in the property or any right to resume or recover it. In that case, the defendant had befriended a middle-aged man of limited intelligence who had given her £60,000 over a period of time. The defendant was charged with five counts of theft and, after conviction, eventually appealed to the House of Lords. Their lordships held that:
- in a prosecution for theft, it was unnecessary to prove that the taking was without the owner’s consent (as in Lawrence);
- it was immaterial whether the act of appropriation was done with the owner’s consent or authority (as in Gomez); and
- Gomez therefore gave effect to s. 3(1) by treating ‘appropriation’ as a neutral word covering ‘any assumption by a person of the rights of an owner’.
The essence of the decision by the House of Lords in Hinks is that even though a person obtains good title to property under civil law (the gift), they can still be convicted of theft as the circumstances of the gift-giving are dishonest.
If a person, having come by property, innocently or not, without stealing it, later assumes any rights to it by keeping it or treating it as his/her own, then he/she ‘appropriates’ that property (s. 3(1)).
Keynote
A later assumption of the rights of an owner amounts to ‘appropriation’ and could lead to an offence of theft.
Example
X is shopping in a large department store and has placed several items in his shopping basket. Thinking about other things, X absent-mindedly walks out of the store without paying for the goods. Once outside the store, X realises what he has done but as the store alarm has not activated and nobody has noticed X leaving the store without paying, X decides to keep the goods and walks away from the store. X initially came by the goods innocently but his later assumption of the rights of an owner means he has now ‘appropriated’ the goods and in the circumstances commits theft.
An exception to these circumstances is provided by the Theft Act 1968, s. 3 which states:
(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.
Keynote
If a person buys a car in good faith and gives value for it (i.e. purchases it from a car dealer believing the car dealer owns the car and has every right to sell it and they purchase it at a reasonable price) but then discovers it has been stolen, a refusal to return it to the original owner would not, without more, attract liability for theft. Without s. 3(2), the retention of the vehicle would be caught by s. 3(1). This narrow exemption does not mean, however, that the innocent purchaser gets good title to the car (National Employers’ Mutual Insurance Association Ltd v Jones [1990] 1 AC 24), nor would it provide a defence if the stolen goods are a gift and the ‘donee’ (recipient) subsequently discovers that they had been stolen (the ‘donee’ will not have given ‘value’ for the property).
The Theft Act 1968, s. 4 states:
(1)
‘Property’ includes money and all other property, real or personal, including things in action and other intangible property.
(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)
when 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
(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 any less period and includes an agreement for such a tenancy, but a person who after the end of a 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.
(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. For purposes of this subsection ‘mushroom’ includes any fungus, and ‘plant’ includes any shrub or tree.
(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.
Money
Coins and banknotes are property (R v Davis (1989) 88 Cr App R 347). ‘Money’ does not include cheques or credit balances held in banks and building societies (but see below).
Personal Property
Personal property includes tangible personal property which might be described as ‘things in possession’. The TV in your house, the settee you sit on etc. are all examples of ‘personal’ property.
Things in Action and Other Intangible Property
Under s. 4(1) ‘things in action’ would include patents, company shares and trademarks and other things which can only be enforced by legal action as opposed to physical possession. Other intangible property would include software programs and perhaps credits accumulated on store loyalty cards. Confidential information, such as the contents of an examination paper, is not intangible property per se (Oxford v Moss (1979) 68 Cr App R 183). However, if those contents were written on a piece of paper, the paper itself would be ‘real’ property. It has been accepted by the Court of Appeal that contractual rights obtained by buying a ticket for the London Underground may amount to a ‘thing in action’ (R v Marshall [1998] 2 Cr App R 282).
