CRIMINAL LAW (LAWS 1012) 2010/11

Lecture handout (3): Theft and complicity

LECTURE HOURS 29-36

Theft is a core criminal offence with over a million thefts over a year.
There is incongruity between lay perceptions of offence and its legal
requirements.

Definition in section 1: contrary to section 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.

The offence contains five elements, each of which must be proved by the
prosecution. The first five comprise the actus reus:
(i) There must be property (i.e. something capable of being stolen)
(ii) That property must belong to another
(iii) D must appropriate the property
The final two elements comprise the mens rea:
(iv) D must intend permanently to deprive another person of the property,
and
(v) D must act dishonestly.

It is immaterial whether the appropriation is made with a view to

gain, or is made for the thief’s own benefit.

The definition cannot be improved. It involves the appropriation of

property (property crime – property interest); that property must belong
to another. The thief must intend to keep the property either for himself or
someone else. Dishonest borrowing is not theft. You must intend to
deprive the owner permanently. He must do so dishonestly.

Appropriation is an assumption of the rights of the owner (section

3) i.e. you are not the owner but you are assuming his rights.

Section 3: ‘Appropriates’
(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 the 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.
The act of appropriation gives you possession, which you intend to
maintain.

Theft by way of interpretation by the courts (nothing wrong with the

definition): They are very reluctant to let dishonest people go free, and
there are even cases where their conduct falls outside definition of theft,
there are cases which extend illegitimately the definition of theft and now
the key element of theft is not the conduct element; it is a finding of
dishonesty, where the essence of theft is the direct deprivation of the
proprietary interest of someone else.

The key loosening up of theft happened in the House of Lords on the

concept of appropriation. The methodology of theft was appropriation;
that was the key conduct element. Appropriation is partially defined under
section 3 of the Theft Act.

You can come by a property honestly in the first instance and later
appropriate it. You can appropriate it after initial honest taking.
An exception to that is: if you pay money for it and you subsequently find
out someone else has a better claim to it, and the seller had no right it sell
it to you; to keep the property then is not theft.
Appropriation = an assumption of the rights of the owner. That was
intended to mean something more narrow than merely coming by and
receiving property. E.g. if he gives one of us a watch, that should rule out
(leaving aside honesty) any finding of assumption of the right of the
owner on our part, because you have not assumed anything, you have
just taken or received what you were given. In 1968, theft was originally
conceived as theft on its face. Notion of assumption involves something
unauthorised, which the owner had not consented to.
This concept of assumption was argued in the case of R v Morris.

THEFT
Theft is defined in s1 of the Theft Act 1968.Further provisions flesh out the
general definition. To commit theft D must dishonestly appropriate
property belonging to V intending to deprive V of his property
permanently. Most instances of theft are straightforward, but some
complex issues can arise when ascertaining whether D has stolen V’s
property.

The Actus Reus

The actus reus of theft is the appropriation of V’s property by D.
Turning first to the concept of appropriation, we can say that V’s property
(his car, his briefcase, whatever) will be appropriated by D the instant that
D assumes any one of the rights of ownership that V has with respect to
his property. The definition of appropriation set out in s3 of the Theft Act
1968 has been given the widest possible interpretation.

*Morris [1984] AC 320

This case involved a common practice in supermarkets of persons taking
labels off cheap meat and transposing them over the labels of more
expensive meat. They would then put the meat in the trolley to be
charged less. This re-labelling involved the assumption of the right of the
owner to name his price. Clearly there was an appropriation.
The real point (widening of appropriation): when did the theft occur?
When was this meat taken for the purposes of the law of theft?
The better view (this did not prevail): was that the act of appropriation
should be the act whereby the thief deprived the owner of his rights to the
goods. On that view, when the store detectives arrested these people
prior to presenting the goods at the checkout paying the less amount, the
better view was that the prosecution had jumped the gun: they had
focussed on preliminary act by way of preparing for theft, but not the theft
itself. Because possession with intention to deprive would take place when
the meat was handed to shopper at point of payment (sale – clear theft,
but not before that) <- that view did not prevail.

It was held that here that D was assuming just one of the rights of the
owner, not the entirety of the owner’s rights: here the right to price the
goods.
It was sufficient to do that provided the D meant/intended at that time to
physically acquire the goods by some subsequent act. This is a crucially
important decision. The conduct, which on the facts is preliminary to the
act of theft – becomes the act of theft in its own right.
Restrained the appropriation to true assumptions, but broadened the act
to things prior to the act of taking goods themselves.
This was the first extension of actus reus.

*Gomez [1993] AC 442

D and others enter an electrical goods store owned by V. they obtain
valuable goods upon the faces of cheques they know to be fraudulent.
They offer checks and they receive the electrical goods by way of stealing.
This case was an obvious case of an offence now superseded of
obtaining goods by deception. If the individuals had been charged with
that we would never have heard the case - getting goods on basis of
dodgy checks.
For reasons we cannot fathom the prosecution charged the matter under
section 1 of theft. He said the goods were stolen. Admittedly it’s a
technical objection: when the electrical goods were handed by the
manager of the store to D and others, D became the owner. He loaded
them onto his lorry.
On the face of it, he was merely the recipient of the goods that were
handed to him. Once the truth was discovered, the contract could have
been rescinded for fraudulent misrepresentation and ownership would
have reverted, but until that is done a title voidable for fraud is
nonetheless a valid title until the contract is set aside. So what the court
should have done is to tell the prosecutor that he brought the wrong
offence – this is a case of fraud not theft. The Criminal Law Division did
not think important.
How could one assume the rights of the owner in terms of section
3, which requires an assumption of those rights, when V
conferred those rights on D?
The House of Lords ruled that the term appropriation could cover those
circumstances. Nonetheless the House of Lords ruled that the recipient of
ownership from another can still assume and appropriate the rights of
another. That was not insupportable given that in this case, a less than
perfect title is passed?
Second difficulty: how could it be that the property belonging to
another was appropriated when D became owner at the time he
first took possession of it?
House of Lords: For the law of theft the property could be regarded as still
belonging to V. In circumstances where the transfer of ownership and the
acquisition of ownership by D are concurrent (two sides of the same
transaction) for the purposes of the law of theft, the ownership is
regarded as belonging to V rather than D. D and not V can be regarded as
stealing the property.
This is another important extension of the law of theft (it obliterates the
line between theft and fraud). If you acquire by fraud and if you deceive
someone to confer property on you – you will be a thief and fraudster.

There is one limiting feature: the decision is merely hard to defend and
not indefensible - this was the fact that a voidable title and not a perfectly
valid title for all the time that it was conferred on D. Surely it can never be
the case that when a person acquires a completely valid title, he can steal
by the very act through which he acquired that ownership – that is a
genuine oxymoron: valid owner/and by the same token can steal the
property. This was put to the test in Hinks.
Lawrence v Metropolitan Police Commissioner [1972] AC 626
D, a taxi driver, drove a newly arrived foreign student with little English
from Victoria station to an address in London. The student had offered a
£1 note for the fare, which D said was not enough before extracting a
further £6 from the student’s open wallet. In truth the legally authorised
fare for the journey was approximately 50 pence. Although the student
had permitted D to take the excess money, the House of Lords upheld D’s
conviction for theft. The student’s consent was irrelevant.
“That there was appropriation in this case is clear. Section 3(1) state that
any assumption by a person of the property rights of an owner amounts to
an appropriation. Here there was clearly such an assumption…[an
appropriation may occur even though the owner has permitted or
consented to the property being taken”.

*Hinks [2001] 2 AC 241 [2000] 4 All ER 833; [2000] 3 WLR 1590

V was a friendless man who had come into a reasonable sum of money by
way of inheritance and lived in sheltered circumstances where D becomes
responsible for part of his care. He has a low IQ (80) but he is in no sense
in the category of a learning disability. D befriends V; she starts by
persuading V to give small gifts to her and by the time the dependence
deepens she ups the ante. By the end she takes him down to the building
society everyday and he is withdrawing money up to the limit he is
allowed. She takes him for everything that he has.
She was charged with theft, and there is a major obstacle. It was assumed
and not challenged and the case is based on this assumption that the gifts
of money were perfectly valid. He had the capacity to understand what he
was doing and however foolish he was he was aware of all the material
circumstances. He had not been deceived or unduly pressurised. This was
an exploitation of friendship; a creation of deception.
In the course of the argument in the case; it was said if you make this
theft then what limits are there on this offence.

What is the status of the transaction? This example was put in an

argument. D is an art dealer and visits a country antique store. He sees a
painting in dreadful condition. The owner has no idea about the problems
of painting. D is an expert and knows that once the painting is cleaned it
will be worth thousands of pounds. D says £1000 is a bit steep but
secretly he is happy to close deal at £850. He knows that he has the find
of a lifetime.
What is this a replay of? Smith v Hughes (oats case) provided there is no
deception or undue influence and it is not a mistake of kind. The contract
is perfectly valid.
House of Lords: it would be valid in the civil law but at one and the
same time would constitute an act of theft on the part of the purchaser
were a jury to find his conduct dishonest. And by the same token, they
made a similar finding against Hinks. That even though she became the
owner of property through valid gift made by V she under criminal law
stole that property if one could make a finding of dishonesty. So long as
acquisition of ownership coincides with divestment of ownership; property
could belong to D even though V obtains valid title (Gomez). Any
acquisition of property can be regarded as theft provided that D intends to
keep the property and there is evidence of dishonesty.
First part of appropriation is concluded.

Shute, “Appropriation and the Law of Theft” [2002] Crim LR 445

Once the goods are appropriated they cannot be stolen again by the same
person. Appropriation is a preliminary act and can continue until it is
made complete and constitutes an act of theft. It continues until the act of
possession is effected. In Morris it was made complete as soon as label
was switched. Once this stage is reached, appropriation is over.

The time-frame of appropriation

Atakpu [1993] 4 All ER 215.
D and others hire cars in Germany. Their intention was not to keep to the
terms of hire but to drive the cars to the UK and once they were here they
were going to ring the changes (number-plates etc). The English
prosecutor wanted to charge theft in England (he cannot prosecute
German thefts). The prosecutors wanted to make the argument that the
whole process started in Germany and did not become effective until the
changes were rung in England and those acts could be theft in the
jurisdiction of England and Wales. The argument failed on the basis that
they were completely stolen at some point in Germany. The process of
effective appropriation was complete – they were in complete possession
and control of the cars in Germany.

When is the appropriation complete?

2 examples:
Hale (1978) 68 Cr App R 415
This was a case of robbery, which is a violent theft. To be a robber you
have to use force or threaten force at the time of the theft in order to
steal. Robbery is not just gratuitous beating up; it is a threat of violence
directed to the acquisition of someone’s property. In Hale there is a
struggle and it was held that appropriation was complete as soon as D got
his hands on the property, and the process of appropriation was still
ongoing until D had uncontested possession of the item. Force was used
in order to steal even though the initial act of appropriation did not involve
force or threat.

Contrast this with:

Pitham (1976) 65 Cr App R 45
D is looking after V’s flat and its contents. What D does is invite E and
others round to the flat and offers to sell all the contents. D points to the
wardrobe and says ‘it’s yours for £10’ and E takes the wardrobe after
paying £10 and walks out. E is charged with handling stolen goods (a
more serious crime than theft – 14 years which is more than theft). E
contests this and says appropriation was not complete until the goods out
of house. He says he was a joint thief rather than a handler. He was part
of the process and paid ten pounds for the privilege to be allowed to steal.
The Court of Appeal had none of that and said the matter must be
analysed on the different inference of D and E, and as far as D is
concerned E drops out of picture after receiving £10. The theft was over,
and he was rightly charged with more serious crime.
The matter to be stolen is of course property – theft is not a pure
economic crime, it is a proprietary crime. There may be some form of
fraud. Theft is more circumscribe than the general offence of fraud. It is
about the acquisition of property so the benefit on D is that he must
receive proprietary gain.

Before we had larceny - theft was of tangible property, which was

transportable property. That era is over.
Section 4, which defines property that can be stolen makes all forms of
property the subject matter of theft that includes forms of intangible
property (bank accounts). Land under section 4 can also be subject matter
of theft. Land can now be stolen and can only be stolen by someone who
is a seller or manager of the property on behalf of someone else. So if a
trustee can raise land to a third party in breach of trust, he can steal that
land against the beneficiaries of the trust. Also, a person who is not in
lawful possession of the land (not a tenant) and who comes on to the land
and severs parts of the land from the property is guilty of theft.
Picking mushrooms is exempt from theft, providing it is not done on
commercial basis. Wild creatures (poaching) cannot be subject of theft,
unless the creatures are rendered to captivity.

Property
It can take tangible or intangible forms.

The Theft Act 1968 section 4 brings all forms of property within the
purview of theft although there are restrictions imposed on the ambit of
theft in relation to land, wild plants and wild creatures. The property
appropriated may take an intangible form such as the appropriation by D
of the credit balance in V’s bank account. Appropriations of intangible
property merit special discussion.

Intangible property

Bank accounts
What first of all is the property in a bank account?
V is a company who has the account in question. As we speak that bank
account is in credit to the tune of £10,000. The company does not own
any money. “Money in the bank” is a complete misnomer. What the
company has when it is reduced to its essence, is the right to sue the
bank for the value of £10,000 should the bank rely on its contract to its
customers. It is that right to sue the bank that is the intangible property,
which can be stolen.
The same applies to overdrafts. Lets assume V Ltd is overdrawn by
£2000 but has an agreed overdraft to the value of £10,000. V Ltd owns
property to £8000 in the form of the right to enforce this overdraft
agreement. If V has suffered through the fraudulent machinations of D
and ends up as a consequence more indebted to its own bank than would
otherwise have been the case, nonetheless there would be no theft
against V unless V had a credit balance or the theft diminished his agreed
overdraft facility.
The logic is clear: if D has drawn check on V’s accounts in a dishonest
way, but it simply takes V past his overdraft limit without making the best
of a bad job, it would still enforce the debt. To the bank there will have
been no theft on the power of D because he would have acquired no
property.

Suppose D, a company director of V Ltd, forges a check on V’s account

with bank B. D does commit theft. V’s account with B is a chose-in-action
that can be stolen and according to the Privy Council in Chan Man-sin, D
appropriates that account when he assumes V’s right as owner, to draw
cheques on the account.

It may be said that this reasoning is debatable. Prima facie, D obtained by

deception; he stole nothing – at least, nothing from V. In particular,
although the bank account was clearly property belonging to V, it is
arguable that nothing done by D affected or was even relevant to the
account. The forged check was a nullity, nothing more. Although D
pretended to deal with V’s account, in law he no more dealt with any of
the accounts held by anyone else at the bank. The real wrong was
obtained by deception of the proceeds of the cheque – but the victim of
that crime was bank B not V. NO property right of V’s was harmed by D. If
that is right, why should V be treated as a victim of theft?

On the other hand, and in defence of the current law, it may be argued
that by pretending to deal with V’s bank account, D ‘assumed’ the right of
an owner over the account and therefore appropriated it within section
3(1). Moreover, V will still normally suffer the disadvantage of a wrongful
debit against their account, which will remain in place, and cause an
effective loss to V, until the forgery is discovered (if ever). So, although
the law on this point is problematic, it is not without justification.

The analysis is different where the check is not a nullity. Chan Man-sin
may be contrasted with Kohn where D had the authority to draw
cheques. He abused that authority by withdrawing money for personal
gain. In that case, the cheques were valid and not mere forgeries, so that
the company’s bank account was rightfully debited. Thus D was
properly convicted of theft from the company by appropriating its
bank account.

Another difficult case, is where D, by dishonest conduct, induces V to

debit her bank account in D’s favour. In Williams, as we saw earlier, the
Court of Appeal decided this could be appropriation, and so upheld the
conviction of D, a dishonest builder, who had presented V with a
dishonestly inflated bill, which V had paid by writing a cheque that D
presented to V’s bank, which duly debited V’s account in D’s favour.

However, in the later case of Briggs the Court of Appeal though

otherwise:
D, a predatory great-niece of V1 and V2, ‘helped’ the V’s to sell their big
house and buy a little one more suited to their current needs. The big
house was sold, and the proceeds of sale held by a firm of conveyancers,
Bentons. D then arranged for the victims to get Bentons to transfer the
necessary slice of the proceeds to the vendors of the little house, and
against the wishes of the Vs, induced the vendors of the little house to
convey it to D instead of to the Vs. The Court of Appeal quashed D’s
conviction for theft on the ground that D’s conduct did not amount to an
appropriation of the fund belonging to the Vs, and currently in the hands
of Bentons.

With ingenuity, it is possible to distinguish the facts of this case from

those of Williams, but as the judgment in Briggs was given unreserved,
and without reference to Williams (or indeed to Gomez or to Hinks), it
is probably better seen as an aberration. If such a case were to arise
today, D would be guilty of fraud under the Fraud Act 2006.

Williams [2001] 1 Cr App R 362

(see above)

Kohn (1979) 69 Cr App R 395

D was a director of V ltd. He was an authorised signatory for the company
so he could draw checks on the company’s account for the legitimate
purposes of the company. He draws the checks in favour of other
companies in which he has a personal interest. He is siphoning off funds
from the company’s account to others. He had ‘direct access’ to V’s credit
balance and he stole that balance or part thereof the moment that
the cheque that he drew caused a debit of V’s account.

This case was taken further in:

Chan Man-Sin [1998] 1 All ER 1
The difference here is that D was not an authorised signatory but made
forgeries (forged checks) indicative of authorisation. In legal terms a
forgery is a complete nullity and does not affect the interest of any party.
But here the forgery is successful – D effects these forgeries which make
him out to be an authorised signatory for V’s account for the banks and
the account is debited. Applying Kohn and other cases this can be seen
as a straightforward case of theft, whereby through medium of forgery D
could get access to V’s trade and account.
Legal purists: this was an incorrect application of Kohn. The difference
being that as Kohn was an authorised signatory, acting within apparent
authority, the debits of V’s were legally valid. V had to grin and bear it.
The difference with a forgery is that a forgery lacks any authority to debit
the account. Once the forgery is discovered, V’s account will be fully
restored. That is an argument that seeks to prove too much and it is
perfectly possible that forgery will not be discovered and Vs account will
not be replenished. The courts were right not to draw distinction between
abuse of authority and forgery if D gets access to V’s credit balance.
Chan Man-Sin is likely to be followed.
Situation: D is acting dishonestly and obtains a check made out in his
favour by V. D promises to do work at some future point in time for V, but
says he wants some money upfront so V makes a check and hands it to
him. Ignore the piece of paper.
Given D is dishonest when can we say there is act of theft perpetrated by
him against V?
In Williams: Court of Appeal: when the check is paid in and processed by
the bank and causes a debit in V’s account – at that point in time D has
stolen V’s property.
This is a tad artificial on behalf of the Court of Appeal for the purposes of
appropriation: D could not say he has appropriated anything at that point
in time and the appropriation is physically done by the bank employees -
they are regarded as the instrumentality in carrying out the theft on
behalf of D. It is artificial but acceptable.
Court of Appeal in Briggs:
Briggs [2004] 1 Cr App R 34
This case involves obtaining a check by dishonest means and then paying
it in. The Court of Appeal refused to find theft, on the basis that there had
been no appropriation on the part of D. The decision in Briggs is
incompatible with Williams. You have to choose Williams in terms of
policy as it is a better policy decision, and in Briggs there is no reference
to Williams (counsel for the prosecution’s fault) so the Williams decision
is authority for checks dishonestly obtained and then paid into an account.

Navvabi [1986] 3 All ER 102

D was not convicted of theft in respect of every cheque. Most of the
cheques had been when C’s account was in credit or within the authorised
overdraft limit. In these cases D appropriated C’s chose in action. In this
case, however, the cheque was drawn when the overdraft was beyond its
authorised limit. The Court of Appeal held that in the last situation, there
was no theft. If an account is overdrawn beyond its agreed limit, the bank
has no legal obligation to meet the cheque. Hence C had no chose-in-
action against the bank and there was nothing for D to steal.

Confidential information
When does information become property?
Effectively only when it can be patented or if it falls under a copyright or it
is information of a kind that be trained (?). There is an important strand of
equitable authority that has extended the legal conception of proprietary
information to cover information received by a trustee or person in the
position of a trustee where that information has economic value –
industrial espionage.
Outside patents, copyrights and trademarks and confidential information
of economic value acquired by person in position of trust, the criminal law
has rightly refuse any invitation to regard unauthorised accessing of
information (computer hacking offences etc) by hackers as acquisition of
property.

Example: case involved a draft-exam case below:

Oxford v Moss (1978) 68 CAR 183
D is a student of Liverpool University, an engineering student. He has a
shrewd idea of where the engineering exam draft paper might be. He
breaks into the faculty office and finds it. There is the paper. He
photocopies the paper and puts it back where he found it. This would be
easy case of theft had he simply taken the paper and went home with it.
Diversion: though he put the paper back (not focussing on the
information) and in essence borrowed it, did he have an intent to deprive
the university permanently in terms of section 6 of Theft Act 1968?
If the prosecution instead of going to information theft had focussed on
the artefact and said it was the equivalent to taking it outright – section 6
should be looked at. This was not argued.
What was argued: given the nature of this confidential information and
the fact that it was compiled for a specific purpose which was undermined
by D’s conduct, the information should be regarded as a species of
property belonging to the university.

The divisional court dismissed the prosecution’s case and stated that it is
not property stolen under the Theft Act. There was no extrapolation of
theft in this delicate area of access to information. Civil law should be
given that area and not criminal law.

Significance: mere information, even a trade secret does not qualify for
protection as intangible property.
Policy argument: extending the law of theft to include appropriation of
information raises difficult questions concerning the property scope of
protection. Should all confidential information be protected, or just trade
secrets? When is information sufficiently confidential? What if the
information is a matter of public interest?

Hammond “Theft of Information” (1984) 100 LQR 252

BELONGING TO ANOTHER

The property must belong to another.

Section 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 (not being an equitable interest
arising only from an agreement to transfer or grant an interest).

This subsection shows how it extends property to legal and equitable

property.

Property belongs to you in terms of section 5(1) not merely if you are the
owner of the property but it also extends to rights of possession and
control i.e. those rights, which may be enjoyed by persons who are not the
owner of the property.

To be the subject of theft, the property appropriated must belong to

another. The Theft Act 1968 s5 (1) provides that any particular item of
property belongs to any person who has possession or control of it and/or
has any proprietary right or interest in the property. In some
circumstances even an owner can steal his own property. Thieves even
have a current right to possession (it is an illicit right but still a right).
Paradoxical but true: Sometimes the very owner can steal his own
property if for the time being someone has a superior right to possess or
control that property. (see Turner)

(Theft by an owner under section 5(1))

Bonner [1970] 2 All ER 97
Another standard way in which an owner can commit a theft is where
there is more than one owner. If D and V are co-owners of a chattel and D
dishonestly sells the chattel, Do is guilty of theft. Similarly, it has been
ruled that a partner may be convicted of theft of property belonging to the
partnership as was the case in this case.

(Theft by an absolute owner)

In principle, there should be one absolute exception to the general
proposition that property may be stolen from anyone having a proprietary
interest therein.
Exception: E.g. D (the owner) surely cannot steal the television by
retaking it from V. This is because V has no property right in the television
maintainable against D. Vis-à-vis D, the television belongs to no-one else.
By contrast, vis-à-vis T, the television belongs to both D and V; hence T
can steal it from V and D.

A case which illustrates this exception is Meredith:

D’s car had been impounded by the police and removed to a police
station. Without consent, D then recovered his car from the police station.
D was acquitted of theft, after the trial judge ruled that the police had no
right to retain possession of the car against the owner.

Although this may seem obvious, Turner (No 2) provides appellate

authority to the contrary.
The trial judge directed the jury to disregard the lien. Consequently the
Court of Appeal was oblige to consider D’s appeal on the footing that
there was no lien. The Court nonetheless upheld the conviction, reasoning
that even as a mere bailee at will, the garage had a possessory interest in
the car (maintainable against everyone except D) sufficient to qualify for
section 5(1). According to the Court of Appeal, ‘there is no ground for
qualifying the words ‘possession or control’ in any way” i.e. by excluding
form section 5(1) any proprietary interests inferior to those of the
defendant.
The decision is absurd. If no lien existed, the car belonged to D
and D alone. The gist f theft is interference with someone else’s
property rights. D did no such thing. He merely exercised
proprietary rights to which he was entitled (albeit in order to
evade a debt).

Turner (No 2) [1971] 2 All ER 441

D owns a car, which is not working. He takes it to a garage for repair and
agrees a price. He leaves the garage without his car. D, being a man of
resource was not minded to pay for repairs. He checks the car is ready
and breaks into the garage and drives away his car. He is charged with
theft of his own car, convicted, upheld on appeal. It should have been a
straightforward case because under the civil law, repairers have a lien (a
right to possession of an object until you are paid). If one had focussed on
the lien/right to possession then this was an easy case of theft because
the owner had no right to possession and car belonged to the garage
owner at that point in time.
Problem is that the Court of Appeal confirms the conviction by approving
the trial judges’ refusal to look at the civil law – ‘I’m not going to look at
whether the repairer had a right to possession against owner. I will say V
was in possession and D acted dishonestly and that is good enough’.
The Court of Appeal agreed with that and confirmed the conviction of
theft.
In textbooks, it is agreed that if you set aside the lien, then the repairer
had no legal right to possession as against the owner. There was no
proprietary interest to take from the repairer.
This is slipshod judging. It is the facts of Turner that should govern it, it is
straightforward on the facts; clearly the repairer had the right to
possession against the owner until he was paid.

Hinks [2000] 2 AC 241

The House of Lords decided that D stole from V even though the gift that
V gave to D (the object of the theft) was a valid gift and in civil law D
became the owner of the property as soon as he took possession (the gift
is perfected).
Hinks gives rise to concept that you can steal property that belongs to
you. To try and curtail the effects of Hinks, it is said that D achieved
ownership at the very point at which V lost ownership.
Divestment and acquisition were part of the same contemporaneous act –
and from that point of view you can curtail Hinks.

It must still be the case, that if you have come by property honestly and
you are the owner then any subsequent dishonesty in relation to property,
which reconfirms its retention cannot be regarded as an act of theft.

LOST AND ABANDONED PROPERTY (who does it belong to?)

Has the owner relinquished all his interests in it?
However dishonest the person is, if he picks up a piece of property, which
no longer has an owner, he can no longer steal. This can be seen in
Woodman.

Beatson and Simester, “Stealing One’s Own Property” (1999) 115 LQR
372; Bogg and Stanton-Ife “Protecting the Vulnerable: Legality, Harm and
Theft” (2003) 23 Legal Studies 402.

Once abandoned, ownership of items vests in the first person to take

possession of them. Possession, in turn, is normally taken by intentionally
exercising control over the items. This may be done physically. Where
chattels are abandoned on occupied land, however, the occupier will often
acquire possession even before the chattel is found. In general, there are
three types of cases in which the occupier acquires a better title than a
finder.
1. if the thing found is embedded in, under or otherwise attached to the
land, it belongs to the occupier or owner of the land regardless of who
finds it.
2. if something is found loose by an employee on the employer’s property,
the employer ahs a superior right to possession of that thing, in priority to
the the employee-finder.
3. Where the item is found loose on the ground, the occupier can acquire
a prior title either by (a) restricting public access to the land upon which
items lie; or where the land is open to public access) by (b) manifesting an
intention to exercise control over the land and the things thereon.
Obviously if the item is found by a visitor inside D’s private home, D has a
superior title since the public does not have general access to the home.
Less straightforward cases of (a) are found in Woodman and Hibbert v
McKiernan.
Woodman [1974] QB 754
The owner (a company) sold all the scrap-metal on his land. V sells to X all
the scrap-metal on the land. X comes onto the land to take away the
scrap-metal. Afterwards, D and the owner, ring-fence the land and land
lies fallow. They don’t want trespassers. What D did is to come onto the
land and take away the rest of the scrap-metal that X could not be
bothered with. D is charged with theft of the scrap metal and he makes
the point that V the owner of the land, no longer had any use for it.
Answer: The scrap metal was still the property of V and the test to be
used was did V intend to exclude a person like D from taking that
property. It is not a case where someone like D was allowed free access to
take it – there was an intention to exclude him from the land and from
taking property, and once that intention is established the property still
belongs to V whether he has any use for the property or not.
The Court of Appeal upheld D’s conviction. Even if ownership of
the remaining scrap had been abandoned by B, ownership would
have reverted to D as occupier of the land, since D had
manifested an intention to exclude trespassers by fencing off the
site.

In Hibbert v McKiernan D trespassed on a private golf course and

dishonestly took eight golf balls, which had been lost – and, it was found,
subsequently abandoned – by their former owners.
The Divisional court held that D was rightly convicted of theft from the
golf club. Even if the balls had truly been abandoned (doubtful), the golf
club as occupier of the land, had a better possessory title than D. D was a
trespasser whose presence on the course was excluded.

On the other had, where the premises are open to the public, the
occupier’s position is weaker and she gains prior title only if she has (b)
manifested an intention to exercise control over the things that are or
might be on the premises. In Parker v British Airways Board [1982]
the Court of Appeal held that Parker’s rights as finder could be displaced
only if British Airways could show as occupiers an obvious intention to
exercise such control over the lounge and things in it that the bracelet
was in their possession before the claimant found it. On the evidence
there was no manifestation of such an intention as would give the
defendants a right superior to that of the claimant; the airline’s instruction
to staff for dealing with lost articles were not published to users of the
lounge, and it did not carry out searches for lost articles.

Parker v British Airways Board [1982] QB 1004

Legal and equitable interests are can be the subject of theft.
There may be circumstances where V transfers money or property to D
and the effect of that transfer is to make D the legal owner of the land,
but in the circumstance where V retains an equitable proprietary interest
in the fund. A simple example would be a trust fund set up for a particular
purpose. D makes himself by agreement with the others, executor of the
fund. Monthly payments are made to D and D pays them into bank
account. It may be the effect of that, is to make D the legal owner of the
money – it is his bank account (informal arrangement – no trustee, just
paid into bank account D has opened; an interest-bearing bank account).
D bails on his friends and clears out his bank account and disappears.
Whether D has committed theft on those circumstances will depends on
whether D was not only the legal but also the full beneficial owner of the
money in the account. He might still be in trouble of fraud offences, but
when we come to theft he may not be guilty of theft if the effect of the
transaction was to make D the full owner of the cash paid into his
account. On the other hand, it will be theft if the effect of the transaction
is that D (legal holder of the money) is holding the money on trust. If
there is a trust, then D will steal with the money, because those
paying into it retain an equitable proprietary interest in the
money. Falling onto either side of the line can be a close call. See
Clowes.

Equitable Interests

The proprietary rights and interests in property referenced in s5(1) include

equitable as well as legal entitlements. On occasion, civil courts expand
the boundaries of what interests may be considered equitable property,
thereby expanding the range of things that can be stolen.

Clowes (No 2) [1994] 2 All ER 316

(dishonest appropriation – diverting funds for their own use)

He was running a Ponsby fund. He claimed to be running an investment

fund promising high returns. How this miracle was created was that he
was using deposits from investors as the means for paying dividends - the
illicit use of funds to create the appearance of a thriving investment fund.
Was he guilty of theft when he absconded with the money?
House of Lord: when the investors gave in money, Clowes the defendant
guaranteed that only a limited range of investments would be purchased
and he guaranteed the minimum rates of return on the investment. He
said: ‘if you invest with me you will do better than 10% and I guarantee
you the 10%’. Typically when you invest in a fund, your rights are
personal and not proprietary against the managers of the fund. You have
a contractual right to dividends and a contractual right to withdraw your
investment. The House of Lords decided that because of the restricted
nature of the investments and the guaranteed return, this then has the
features of a trust fund and consequently it was found that the investors
retained an equity in this fund which had the convenient result of finding
Clowes guilty of theft form investors because they had a proprietary
interest in the fund.

What constitutes equitable property is always in development in civil law.

Clowes – the case should never be resolved against the accused unless
the civil law is absolutely clear on the point. I.e. If certain fact are proved
then…
The normal civil law approach, where there can be a sudden change in the
law which makes certain interests proprietary and equitable interests; that
sort of thinking should not occur in criminal courts. They should never
rehearse and examine the civil law on the way to development and
enlargement of it; they just receive the civil law. That was mentioned the
case below.

Where the employee is sufficiently senior to be regarded as a fiduciary, it

appears that any bribes she takes will be subject to a constructive trust. In
AG for Hong Kong v Reid [1994], D had accepted bribes in order to
obstruct prosecutions while serving as a senior Crown prosecutor in the
Colony of Hong Kong. At issue was whether the Hong Kong government
held a proprietary interest in bribes received by D. It was common ground
that D was a fiduciary, the question was whether he was also a
constructive trustee of the money received. What emerges from that case
is that a fiduciary who receives, for himself, a bribe or commission paid for
the misuse of his position will hold the money on constructive trust for his
principal. That receipt falls within section 5(1) and can therefore be stolen.
However, since it was conceded that Reid was a fiduciary, the question
whether an employment situation will necessarily give rise to a fiduciary
relationship was not considered.

The possibility that a secret profit made by an employee can be stolen

was doubted by the Court of Appeal in Att-Gen’s Ref (No 1 of 1985)
[1986] QB 491. The defendant was manager of a public house and an
employee of the brewers to whom the house was tied, in contravention of
the terms of his employment, sought to sell beer purchased privately from
a wholesaler to supplement his profits. The Court thought that such
circumstances would not give rise to a trust, and, even if it did, that it
would not be such a trust as falls within the ambit of section 5(1).

AG for Hong Kong v Reid [1994] 1 AC 324; J C Smith at (1994) 110

LQR 180
To take a bribe is not merely the offence of bribery but the bribe belongs
in equity to D’s employer and that was decided in AG HK v Reid,
overturning many cases to the contrary and as Reid is a Privy Council
opinion then after that decision it is okay for bribe takers to also be
prosecuted for theft. Bribes belong to the employer is not the position.
That would throw open Att-Gen’s Ref (No 1 of 1985) [1986] QB 491– does
a secret profit belong to the employer, because there is an affinity
between taking a bribe and making a secret profit? It may be in civil law,
courts following Reid, the difference between bribe and secret profits are
not strong enough and both belong to employer. A criminal court should
wait for the civil court to decide the mater and not enlarge the civil law
themselves.

*Att-Gen’s Ref (No 1 of 1985) [1986] QB 491

This case is about pub managers selling their own food on the licensed
premises that were managing. On the terms of their employment they
could only sell the food of their employers.
Was this theft? They made this money on the side and did not account for
it to the employer.
The Court of Appeal: though there are civil law arguments that suggest
that these profits were held on trust for the employer; there were
arguments the other way and that it would anticipate in a civil court, the
civil court could then resolve it even if it would enlarge notion of equitable
property.
Court of Appeal: we will resolve the civil law in favour of the D, without
going into the substance of the argument, we will resolve it in favour of
the D. They are not ignoring the civil law, they are taking the approach
that was decided. This is the right way the civil law should approach it.
Example of the approach civil law should take in AG for Hong Kong v
Reid [1994] 1 AC 324; J C Smith at (1994) 110 LQR 180.
________________________________________________________

Property received on account.

A common situation governed analogous to equitable interest but distinct
by statute is where money is handed over to persons for a defined
particular purpose (section 5(3)). D takes money and the money is
designated for a particular purpose.
In the words of the Act, D is obliged to use the money in a particular way.
If that is the case, section 5(3), relieves recourse to any analysis to civil
law and simply states categorically for the purposes of theft law that the
money handed over for a particular purpose is deemed still to belong to D
and can be stolen by him. When section 5(3) is clearly on point, it saves
work and is straightforward.

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 another.
This gave rise to difficulty in Hall.

The Theft Act 1968 s5 (3) provides for situations where D receives money
(or other valuables) from V under an obligation to V to deal with the
money in a particular way. Even if the effect of the transfer of money from
V to D is to make D the legal and equitable owner of the money at civil
law, if s5 (3) applies the money can still be stolen by D.

*Hall [1972] 2 All ER 1009

D was a travel agent and V is the organiser of Club America where he was
trying to organise and get discounts on group travel to America. So he
goes to the travel agents again and a schedule of payments is agreed and
the date for the travel is agreed, and a sequence of payments are made.
What the travel agent then does when he receives the money; is that he
pays that money into the firm’s general account.
D still keeps taking these payments when he realises that his company is
in a very bad way and it is unlikely that he will be able to make the
payment to the carrier in time for the trip. The trip never materialises.
D is charged with theft of the money he received and under section 5(3)
the question was whether this money was received for a particular
purpose, and the answer from Hall was negative.
The money was simply received as forms of graduated pre-payment and
as paid into a general business account it merely established a debt
between D and V. He received money as full legal and equitable owner
and section 5(3) did not apply as it was not particular.
The fund was not ear-marked. If the money had been paid into a special
bank account and separated from the general cash-flow of businesses
then the outcome would have been different and section 5(3) would have
applied.
The effect of Hall had a disturbing effect on charity funds, collecting boxes
typically taking coins and sometimes notes. Some people pay a cheque
and send it off to a charity. There was a series of cases of how people who
used that modus operandi had not received the money for a particular
purpose and so they were not guilty for theft when they used the money
for their own purposes (Wain).

A travel agent generally receives money from customers in return for an

obligation to provide the ticket, and may use the money received from
customers as he chooses. It was held in Hall that this creates a creditor-
debtor relationship. In that case, D had received deposits for air tickets
and paid the money into a general trading account; he then failed to
supply the tickets to the clients. Although his conduct was ‘condemned as
scandalous’, in the absence of special arrangements imposing on him an
obligation to deal with clients’ money in a particular way, he had no duty
to account and therefore did not commit theft.

Wain [1995] 2 Cr App R 660

One standard application of section 5(3) is to charity collectors. In Wain,
D raised money from the public by conducting charitable discotheques
and other events. Subsequently, he failed to hand the money over, so he
spent it. D’s conviction was upheld by the Court of Appeal on the basis
that he was obliged to retain the proceeds of his fundraising for the
benefit of the charity; hence under section 5(3), the money belonged to
the charity for the purposes of theft.

Facts: There was differentiated payment to a business in a general

account and there was payment to a charity and it was said that even
though the method of payment need not involve the coins and notes
collected, the process would always involve acknowledgement that the
notes and coins were collected for charity and could never be used for any
other purpose.
The charitable proceeds were indelibly earmarked with a charitable
purpose and even though they change their form, they cannot be used for
any other purpose. So section 5(3) applies.

Situations where a payment is made by mistake

V pays over a sum of money to D because he has got D’s identity wrong,
or he may miscalculate what he owes D and gives him an excessive
amount. Under the civil law, the result of a mistake on a contract or
transfer can vary and be different.
To short circuit those problems s 5(4) provides that money will belong to
another if it was paid to D by mistake by V. D is not entitled to it at all or
entitled to less: the position under section 5(4) is that ‘to the extent D
must restore the value of the excess to that extent the money or property
transferred is deemed still to belong to V).

Section 5(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.

Illustration of case that section 5(4) reverses: Moynes v Cooper [1956]

1 QB 43

Property obtained by mistake

V may transfer money or property to D under the influence of some

mistake of fact or law. For instance, D may have no entitlement to the
money V has paid to him because V has mistaken him for someone else.
Or it may be that that D is the right person yet he receives an excessive
amount from V because V has miscalculated. At civil law the impact of
mistakes on the validity of transactions varies. Sometimes the mistake
nullifies the transaction and V remains the owner of the property he has
transferred to D. At other times the impact of the mistake may be less
drastic and D will become the owner of the property he has received
despite the mistake made by V. The object of s5 (4) is to avoid some of
these complications. Whenever the effect of the mistake is to place an
obligation on D to make restoration to V in whole or in part of the property
or its proceeds or the value thereof, for the purposes of the law of theft,
the property is regarded as belonging to V.

(Theft of an interest protected by section 5(4): where there is an

obligation to make restitution)
Moynes v Cooper [1956] 1 QB 439
D had asked for a sum (advance) of his wages. He collects his wage
packet and the wage clerk hands over the notes packet and D realises
that they have forgotten the sum (advance) and paid him the full pages.
This was once a leading case of larceny and now it is one of theft. The
prosecution against D failed because the effect of the over-payment was
merely to create D and the employer V. It did not affect the fact that D
became owner of the excess money. To apply section 5(4) to the facts you
have a straightforward conviction of theft for excess. He was obliged to
return the excess (it was a debt) and to that extent the money was
deemed to belong to the employer.

Facts: a wages clerk miscalculated the amount due to D. Although the

employee was thus overpaid, the clerk intended to pay the amount of
money actually paid. Hence title in the whole amount paid passed to D,
and D could not be convicted of larceny. The employer had no proprietary
claim to the money in D’s hands, merely a personal claim in restitution
against D for the money had and received. However, since the passing of
the Theft Act 1968, mistakes of the latter variety are covered by section
5(4) and Moynes would now be guilty of theft, notwithstanding that he in
no way infringed his employer’s property rights.

Modern variant: A-G’s Reference (No 1 of 1983) [1985] QB 182

A-G’s Reference (No 1 of 1983) [1985] QB 182

A policewoman looks at her payslip informing her of payment into her
bank account and sees that they have paid her for a shift that she did not
work. She had rung in sick but had been paid the full amount. Because of
section 5(4) this is theft. The policewoman was guilty of theft by omission,
payment is made into her account and she does nothing. The section is
putting an obligation on you to alert to the mistake that has been made.
She would have committed theft when her bank account was credited
with payment, if she never intends to make restoration at that point of
time.
Reservation: the obligation to make restoration has to be a legal one. This
is spelt out in terms in section 5(4). This argument was made in Gilks.
The effect of section 5(4) can be seen in A-G’s Reference (No 1 of
1983). D, a police constable, had her salary paid by direct debit. By
mistake, she was overpaid on one occasion. On the assumption that she
subsequently decided, dishonestly, not to repay the sum, the Court of
Appeal ruled that she would be guilty of theft. Notwithstanding that she
owned outright the content of her bank account, and was entitled to draw
upon it as she wished, there was a legal obligation upon D to repay to her
employer a sum equivalent to the overpayment once she discovered the
mistake. By virtue of section 5(4), that sum was deemed for the purposes
of theft to belong to the employer and so could be stolen.

*Gilks [1972] 3 All ER 280

The obligation must be a legal one and not a moral obligation to make
repayment/restoration. It is not spelt out in section 5(4) but the argument
was made in Gilks; it did not survive appeal, but it was held that an
unequivocal moral appeal to make restoration would suffice.
A punter, D puts a bet on a horse called Fighting Taffy, which loses, but in
the same race there was another horse called Fighting Scott and the
bookie pays out to D as a win confusing the two fighting horses. He
pocketed the money and was prosecuted under section 5(4). The money
was still deemed to belong to the bookmaker. The conviction is quashed
on the ground that the obligation in question was merely moral, because
it was a gaming transaction, which the courts will not enforce, there was
no indebtedness created by the overpayment by mistake and as a
consequence D could not steal his own money.

Whilst the mistake in this case was of the same type as that in Moynes v
Coopper, no legal obligation to make repayment arose in Gilks because
the overpayment was in virtue of a wager. Thus Gilks would not fall within
the ambit of section 5(4).

Although the decision in Moynes was much criticised at the time, its
undoing by section 5(4) seems something of an overreaction. The
defendant in Moynes is a mere debtor, section 5(4) effectively makes
personal liability the stuff of debt. This surely, is the misuse of the concept
of theft.

Moreover, it is debatable whether the defendant’s behaviour should be

criminalised under any other description either. If, through V’s own error,
V mistakenly gives D an unjustified windfall, prima facie his proper
remedy is a civil law claim in money had an received. It is not obvious that
the criminal law should wade to his rescue. This is not a case where D has
done anything wrong to induce V’s blunder. Taking studious advantage of
another’s unilateral mistake is not normally the stuff of legal intervention.
Sometimes such circumstances warrant a civil law remedy; but it does not
necessarily follow that the criminal law should be available here as a
creditors’ device.
There are two civil cases in terms of section 5(4).
Chase Manhattan Bank NA v Israel-British Bank (London) Ltd [1981] Ch
105
Whenever a mistake is made and the recipient is aware of the mistake
(this case involved overpayment into a bank account) that affects his
conscience and as a result a constructive trust arises, which makes D a
trustee of the excess to V. If that is correct the Gilks decision may now be
regarded as wrong because they are saying an affected conscience which
Gilks would have had, is enough to make you a trustee of the property on
behalf of the person who made the mistake.
This is a controversial civil law development.
Criminal courts should not follow that line, until it is clear that the civil law
is resolved and settled on that point.

In Chase Manhattan Bank NA v Israel-British Bank (London) Ltd, the

plaintiff bank paid $2 million by mistake into another bank for the account
of the defendant, which then went bankrupt. The plaintiff sought to
recover the overpayment. Goulding J ruled in favour of the plaintiff,
holding that a person who pays money to another under a mistake of fact
retains an equitable proprietary right or interest in the money, as
opposed to a purely personal right. If such an analysis is valid, section
5(1) would appear to be applicable. This was the conclusion of the court in
Shadrokh-Cigari [1988] Crim LR 465. By error a child’s bank account was
credited with £286,000. D, the child’s guardian, procured the child to
authorise the issue of four banker’s drafts in D’s favour. Applying Chase
Manhattan Bank NA v Israel-British Bank (London) Ltd, the Court of Appeal
held that D stole the drafts from the bank. Since the drafts had been
drawn by the bank in error, the bank retained an equitable interest in
them. Hence for the purposes of section 5(1) they belonged to the bank.

Both of these cases are of doubtful authority. In Westdeautsche Bank v

Islington LBC, Lord Browne Wilkinson stated that Goulding J’s decision
was ‘based on a concept of retaining an equitable property in money
where, prior to the payment to the recipient bank, there was no existing
equitable interest.

The Mens Rea

Acting/appropriating, dishonestly, intending to deprive someone of their
property right.
The View to gain immaterial
Theft Act 1968 s1(2): it is immaterial whether the appropriation was
made with a view to gain, or is made for the thief’s own benefit.

Dishonesty
This is only partially defined in the act.
The willingness to pay is immaterial, you can still be guilty of theft. Often
a willingness to pay precludes dishonesty, but sometimes it does not.
A person’s appropriation of property belonging to another is not to be
regarded as dishonest -
Section 2 deals with three situations where a person is not to be found
dishonest:
(a) if he appropriates the property in the belief that he has in law the right
to deprive the other of it, on behalf of himself, or on behalf of another
person
If he or she has a belief in their right to take the property and that means
the term is entirely subjective. Maybe your belief is wrong and you have
no right, but if you believe that you have a claim of right, then taking it is
not theft.
This makes Hinks even harder to follow: Hinks had a right to the
property in civil law, if she had gone to a lawyer to see where she stands
and had been told that she could keep, and she believed him/her, it was
not theft. If she had a positive belief that she was entitled to it she could
not be found dishonest for the law of theft.

(b) If he appropriates the property in the belief that he would have the
other’s consent if the other knew of the appropriation and the
circumstances of it.
If D believes that V would consent to the taking had he been aware of it.
This is belief in consent, however, ill founded. Hinks, had the consent of V.
He did hand over his money with consent, which makes the decision
stranger, because presumably she did not apply her mind to the matter
and just took the money.

(c) (except where the property came to him as trustee or personal

representative) if he appropriates the property in the belief that the
person to whom the property belongs cannot be discovered by taking
reasonable steps.
Finally, the belief that the owner cannot be found. If you pick up a piece
of property, and it is unlikely the owner could be traced and you will be
aware of that. If you take reasonable steps to make sure the owner cannot
be traced – it is not dishonest.

Apart from those statutory contributions, what comprises dishonesty is a

matter for jury. If a claim by the defence falls outside section 2 then it is a
question of fact for the jury. When asked to evaluate fact, the judge is
entitled to guide the jury as to any considerations they may have to the
facts. [Feely]

As a consequence of judicial interpretations, the actus reus of theft could

hardly be wider. A large range of perfectly normal things that D may do
with V’s property may constitute theft provided D is acting dishonestly
and intends to deprive V of his property. Dishonesty is the heart of the
modern law of theft. The concept is partially defined by s.2 of the Theft
Act 1968 but cases not covered by that provision may need to be
resolved, with judicial guidance, by the jury.
Feely [1973] QB 530
Upheld in court of appeal(?)
Assuming that the defendant cannot avail herself of the defences
contained in section 2(1), dishonesty falls to be resolved under the
general test.
Whether the defendant was dishonest is a question of fact for the jury to
decide. In Feely, it was said that the courts should offer them little
guidance and that they should ‘apply the current standards of ordinary
decent people’.
This laissez-faire approach has since been circumscribed, for good reason.
It is unclear under the Feely approach, what is to be done about the
idiosyncratic defendant whose values differ from those of ‘ordinary decent
people’.

The Feely test is a completely subjective approach taken to the question:

If D believed his conduct to be honest then no finding of dishonesty could
be made against him, according to the judges’ guidance, if his belief was
genuine. This is the Robin Hood defence. The Feely test would not last (it
wreaked havoc), and it was it was countered in Ghosh.

*Ghosh [1982] QB 1053

D took without permission money in advance, he puts an IOU and he
doesn’t ask for permission and knows because he knew it would not be
granted. In his mind he thinks: ‘I know I will be able to repay this money
by the end of the month. If the money were not repaid there would be no
economic disadvantage to V and so I am not dishonest’ and consequently
under the Feely test she would have a defence.

This was corrected in Ghosh; the guidance in Ghosh was in two parts.
1. An entirely objective evaluation for the jury against the facts of the
case. They asked themselves: ‘was this conduct dishonest according to
normal community standards? Would ordinary members of the community
(not saints/sinners) do the same?’
… If they come to the conclusion that it was not dishonest, the case falls
then and you do not get to the second stage. If they find that the conduct
was dishonest by the standards of ordinary people, the next question is…

2. Was D aware that her conduct contravened the ordinary community

standards? That is even though D may think that her own conduct is
honest and she would be okay under the Feely test (which no longer
applies), if she is aware of the variance between her standards and those
of the general community then she is dishonest and thus guilty of theft.

The Ghosh test has been criticised, but helps with Article 7 compliance.
Ghosh test has advantages in terms of compliance with Article 7 that a
person will only be convicted of theft in a contested case, if she is on
notice that her conduct is dishonest.
Griew, “Dishonestly – the objections to Feely and Ghosh” [1985] Crim LR
341; Elliot “Dishonestly in theft: A dispensable concept” [1982] Crim LR
395; Halpin, “The Test for Dishonesty” [1996] Crim LR 283.

Intention permanently to deprive

Dishonest borrowing is not theft:

Dishonest borrowing is not theft no matter how much
inconvenience it causes the owner. It is not theft even if D realises he
will not be able to return the item.

Before section 6, we need to prove that at the time D appropriated the

object, he intended to keep that object, either by that act of appropriation
or by (Morris case) some future act. At the time of the appropriation
there must have been a decision on his part to keep the property. That
sounds straightforward to prove, but look at the example of Easom.

Subject to s6 of the Theft Act 1968, borrowing someone’s property,

however unauthorised and dishonest, is not theft. To be a thief, D must
intend that V should be permanently deprived of the property that D is
charged with stealing from him. Difficulties arise when D has resolved to
steal from V but only a particular object or, alternatively, any object but
only if objects found have sufficient value. For instance, D picks up V’s
bag believing that it contains a diamond ring. He puts back the bag where
he found it on discovering that it does not contain a diamond ring. Or D
picks up V’s bag, hoping that it contains something of value. He puts
down the bag on finding that the contents consist of tissues and a comb.
The courts have made heavy weather of resolving whether D had an
intention permanently to deprive V of property in these circumstances.

Conditional intention
Easom [1971] 2 QB 315
Question was whether there was intention to deprive, as there is
appropriation.
D and V are in the cinema and they do not know each other. A seat is
unoccupied between them. On the unoccupied seat is a handbag
belonging to V who is a policewoman and the handbag is attached by a
cord to her little finger. Sure enough D picks up the handbag, opens the
handbag and has a rummage through it and it did not contain anything
that D wanted. There was no money or a credit card, so he has his
rummage and puts the handbag back and is then promptly arrested by
policewoman and charged with theft.
Was there an intention to deprive permanently of the property in that
case?
It was held that there was no intention to deprive at this point. The
intention has not coalesced around an object that he wants to keep. He
has theft on his mind, but has not made up his mind to steal a particular
object at this point. Is it attempted theft? No, that does not work either
because you need a particular object; it cannot be abstract.
Many burglars go into property to see if there is anything worth stealing.
The definition of burglary is entering property as a trespasser with the
intention to steal. One of the seeming ramifications of Easom, was that a
burglar does not have the intention to steal, because he lacked an intent
to deprive permanently. It would have many effects if this were the case.

On the facts of Easom: there was no intent to deprive, and the conviction
was quashed.

The Court of Appeal quashed his conviction ruling that: ‘if the
appropriator has it in mind merely to deprive the owner of such of his
property as, on examination, proves worth taking and then, finding that
the booty is valueless to the appropriator leaves it ready to hand to be
repossessed by the owner, the appropriator has not stolen’.

The decision is probably right, but only in terms of the precise charge of
stealing ‘the purse, notebook etc...inside the handbag’ that was brought.
D certainly appropriated those items. However, at no time did D intend to
deprive the owner of such things. He was looking for something else.
What he intended was to permanently deprive the owner of whatever he
found of value. The general view is that the defendant could have been
convicted if eth charge had been carefully drafted. If had been charged
with theft of the contents of the handbag he could have been convicted
on the basis that he intended to deprive the victim of the contents (if he
found them valuable). To avoid any possible difficulties an attempted theft
charge may be best in cases of this kind.

A different type of case is where D intends to steal valuable contents, if

any, from a handbag which he has no intent to take but puts the handbag
back because it is empty. That is a case of attempted theft, because there
is no actus reus. Although in such a case, D has a conditional intent to
steal the contents, he does not appropriate them since they do not exist.

Husseyn (1977) 67 Cr App R 131

This case followed Easom. There was a replay of the same issue. D walks
past a van and sees that the van doors are open and sees a holdall. He
does not know what is inside but takes it. He turns around the corner and
looks at the find. He sees that it is sub-aqua equipment. Husseyn did not
have that hobby and had no use for it and dumps it and walks off.
He is charged with theft of the sub-aqua equipment. Following Easom,
this charge had to fail, because you could not prove an intention to
deprive permanently, the specific thing he was stealing. His actions show
you he did not intend to deprive of the sub-aqua equipment. But if it was
something he wanted he would have kept it. Maybe Easom was purely
exploratory.
The Court of Appeal: reluctantly quashed the conviction of theft on the
basis of Easom.

The charge should have been intending to steal some or all of the
contents of a bag. That way they do not charge him with theft of a specific
item he did not want, instead land a fish and charge him with theft of
some or all the contents of a bag. Does that solve the Easom problem?
See A-G’s Ref (Nos 1 and 2 of 1979) [1980]

There is a technical problem: they deserve conviction, but theft cannot

exist in the abstract and must be focused on specific items of property
that D intends to keep. This is a problem needs to be fixed…

This was a worry in the case of a burglary in A-G’s Ref (Nos 1 and 2 of
1979) [1980]. It was this case that resolved the issue: it was stated in
terms that, the persons entering property with intent to steal anything
inside worth stealing were guilty of burglary for the purposes of the law of
burglary, a conditional intent would suffice. This case suggested that as
the law stands it would be better if D were convicted of theft of the
contents.

If D had been charged with stealing the ‘contents’ of the handbag he

should have been convicted of theft. Again, he certainly appropriated the
contents. Thus the actus reus element of theft is satisfied. This time,
however, the mens rea requirement is also satisfied – by a conditional
intention. Not yet knowing what they were, D intended to steal any of the
‘contents’ of the handbag should they prove desirable. Thus it is
submitted, he appropriated the contents with intent (conditionally) to
deprive the owner of them. Since conditional intention is treated in law as
intention, that looks like theft. The fact that he subsequently returned the
bag and its contents is irrelevant. D planned to steal the contents, subject
only to a condition outside his control (i.e. that they are valuable); he
executes the plan; he appropriates the contents. The actus reus of theft
has already occurred. Certainly, D’s conduct can no longer be regarded as
merely preparatory. Given his moral culpability, D ought to be convicted
of theft.

Although the description of theft of the contents sounds vague, it should

be recalled that the theft Act criminalises theft of ‘any property belonging
to another’. Even though it matters to D, from the point of view of the law
the difference between a ring and credit cards per se is an immaterial
variation.

Statutory extension of intending to deprive permanently

Dishonest borrowing – D takes the artefact and is going to use it, but at
some point he intends to restore it to the original owner.
Default: dishonest borrowing is not theft.
But according to that rule, if you steal notes during the exam period, and
give them back after that is not theft.

Often a thief has no particular agenda regarding the fate of the property
he steals. If D means to pawn the stolen goods, or to use them before
discarding them, he may not intend that the original owner be
permanently deprived, sometimes it may be quite likely that the owner
will recover the property. In order to make it explicitly that the act
extends to such cases, Parliament enacted section 6.

Section 6 makes some provision for borrowings, which are the

equivalent in the words of the section to an outright disposal of
the property.
Section 6(2)- If you take an item and pawn it or subject it to any other
condition you might not be able to fulfil, that is the equivalent to taking
the property. This is useful and straightforward.
Section 6(1) – This is a general provision, which deals with the taking of
the property with an intention to restore the thing itself, but are the
circumstances equivalent to an outright taking?

The better view of this section (there are two schools of thought – it is an
unresolved issue): the taking must in substance deprive the item of its
value, prior to the point of physical restoration. Only then, you are
treating the thing as your own to dispose of regardless of another’s rights.
You have effectively deprived it of any value. This is not made out
correctly in case of Lloyd.

The Theft Act 1968 s6 provides that in certain circumstances D will in law
have an intention to deprive V permanently of a particular object even if
he intends at some point to restore the object to V or anticipates that it
will be restored by some other means. The terms of s6 allow ample scope
for interpretation. There are appellate decisions, which read s6 narrowly
but other decisions take a wider approach.

Lloyd [1985] QB 829

This is one of the earlier decisions on section 6. D, a film projectionist,
borrowed films and passed them onto E, who made and sold pirate copies
of the films. The Court of Appeal ruled that this was not theft. In reaching
this decision the court referred to pre-1968 case law, and (in essence)
took the position that section 6 merely confirmed it. Although section 6
makes it clear that some ‘borrowings’ do involve an intention permanently
to deprive, the court said: ‘mere borrowing is never enough to constitute
the necessary guilty mind’.
More recently a similar approach was taken in Mitchell.

Mitchell [2008] EWCA Crim 850

Here D was one of a gang of thieves who, having crashed their getaway
car, violently hijacked V’s BMW, eventually abandoning it a few miles
away on the road with its hazard lights flashing. For this, D was convicted
of robbery (theft aggravated by violence). Having referred to Lloyd, the
Court of Appeal quashed D’s robbery conviction on the ground that there
was no underlying theft. In this case, D did not intend V to lose her car
permanently, and his intention to take it temporarily could not be
converted into an intention permanently to deprive by invoking section
6(1).
On an appropriate reading of section 6 the court said that the car owner
had not been deprived of the car. This was the right way to construe
section 6.

Contrast this with the wider view has been taken in Chan Man-Sin,
Lavender and Marshall. They hold that the moment you treat the thing as
your own i.e. make use of it peculiar to the owner, you by law under terms
of section 6, intend to deprive permanently.

Compared with the narrow reading in Mitchell section 6(1) does say,
inter alia, that a defendant is ‘to be regarded as having the intention of
permanently depriving the other of it if his intention is to trat the thins as
his own to dispose of regardless of the other’s rights’. Although the word
‘dispose of’ can read in a narrow sense, as meaning to ‘get rid of for once
and for all’, it can also be read in a wide sense, to mean ‘to deal with’. And
there are cases where the courts have taken it in the wider sense, thereby
converting into theft acts by defendants who did not really mean for the
owner to lose his property rights at all.

One such case is DPP v Lavender [1994] Crim LR 297

Lavender lived in social housing, owned by the council. He had been
talking to the Council repeatedly about the need for a new door and then
he lost patience and dishonestly removed a new door from a council
house under construction and replaced his old door. He is convicted of
theft and he makes the telling points that in either case whether the door
was on the new house or his house, the Council was still the owner and he
was not disputing the ownership of the Council, he was just redistributing
it.
Court of Appeal: He had treated the door as his own, to dispose of
regardless of another’s rights. They took a literal view of the section.

The Divisional Court ruled that D had committed theft. Although the
council had not in fact been deprived of the doors, D had nonetheless
‘disposed’ of them within the meaning of section 6(1). With respect, this
result seems odd. There was no disposal of the doors in the narrow sense
– they were not thrown out, destroyed or sold. They were merely moved
and there was not suggestion by his conduct that D intended to treat
them as his own, since they continued o be affixed to council property.
Another case to take this line was Marshall [1998] 2 Cr App R 28. In
this case, D had been making money in the London underground by
begging unexpired day tickets from passengers who had completed their
last journeys of the day and reselling them to other passengers. For this D
was convicted of theft of the tickets from London transport, which had
issued them. On appeal, he sought to argue that, as he knew the tickets
would eventually find their way back to London Transport at the end of
the day, he had no intention permanently to deprive. Rejecting the narrow
construction that was put on section 6 in Lloyd, the Court of Appeal
upheld the conviction.

The Courts have also taken a broad view of section 6 when dealing with
those who have improperly interfered with other people’s bank accounts.
In Chan Man-Sin [1988], discussed earlier, D dishonestly drew cheques
on his employer’s bank account. The Privy Council ruled that D had dealt
with the company’s property (i.e. its chose-in-action against the bank) as
if it were his to dispose of without regard of the company’s rights. But if
unauthorised drawings of this sort are a nullity, then arguably D did not
disposed of this account at all. At law nothing done by D in any way
affected the relationship between the company and the bank. D merely
tricked the bank into crediting D’s own account (and purporting to debit
V’s account). The Privy Council seems to have equated ‘purporting or
pretending’ to dispose of the thing as one’s own with ‘disposing of the
thing as one’s own’. The decision is debatable. Nonetheless, as things
stand, this is the law: the intent to make and apparent to pretended
disposal is sufficient for section 6(1).

What can be said with some degree of certainty is that section 6(1) covers
both the ‘ransom principle’ and the ‘essential quality’ principle, by which
the courts extended the concept of intention to permanently deprive
before 1968. An example of the first is Raphael, where D’s conviction for
theft was affirmed where he had taken V’s car away from him by force
and then attempted to sell it back to him. And an example of the second
is DPP v J, in which the defendants forcibly took V’s headphones,
snapped them, and returned them to V. On appeal, it was held that the
magistrates had been wrong to accept a submission of no case to answer:
a person who took something and dealt with it for the purpose of
rendering it useless demonstrated the intention of treating that article as
his own to dispose of. But a definitive answer to the question of how much
other ground(if any) the section covers is obscure, and destined to remain
so until the day –if it comes – that the matter is finally resolved by the
Supreme Court.