R v Smith, Plummer and Haines [2011] EWCA Crim 66

Facts

  • The defendants, Smith, Plummer, and Haines, were involved in the supply of controlled drugs.
  • Victims, who were also engaged in drug dealing, forcibly took drugs from the defendants.
  • The drugs in question were illegal to possess under law.
  • The key issue was whether such illegally possessed items could legally be considered "property belonging to another" under the Theft Act 1968.

Issues

  1. Whether items prohibited by law, specifically controlled drugs, can be considered "property belonging to another" for the purposes of the Theft Act 1968.
  2. Whether unlawful possession of such items can give rise to a possessory interest protected by the law of theft.
  3. Whether the act of taking illegal drugs from someone else constitutes theft under the relevant statutory provisions.

Decision

  • The Court of Appeal held that even when possession of property is unlawful (e.g., in the case of controlled drugs), it can still be the subject of theft under the Theft Act 1968.
  • The court affirmed that those in illegal possession of property have a possessory interest sufficient to satisfy the requirements of sections 1(1) and 4(1) of the Theft Act 1968.
  • It was determined that taking illegal drugs from another person constitutes theft, even though the property itself is unlawful to possess.

Legal Principles

  • Ownership and possession are distinct: possession requires physical control and an intention to exclude others, regardless of lawfulness.
  • The Theft Act 1968 protects possessory interests, not only lawful ownerships, such that even unlawful possession can be sufficient to found a prosecution for theft.
  • Section 1(1) defines theft as dishonestly appropriating property belonging to another with an intention to permanently deprive; section 4(1) clarifies that property may "belong to another" if there is possession or control, or a proprietary right or interest.
  • The offence of theft can be committed even where both parties are engaged in criminal activity and the item is illegal, as this supports the rule of law and discourages self-help.
  • Distinction with previous case law (e.g., R v Turner (No. 2)): the nature and superiority of possessory interests determine protection, regardless of the legality of the property.

Conclusion

The Court of Appeal confirmed that the Theft Act 1968 applies to property illegally possessed, such as controlled drugs, affirming that unlawful possession can create a possessory interest protected by law. This ruling ensures the consistent application of theft law and upholds the principle that proprietary interests, even those arising from illegal possession, are safeguarded against theft.

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