## Facts

- Feely managed a branch of a betting firm.
- The employer instructed branch managers to stop “borrowing from the tills.”
- Feely nevertheless took about £30 from the branch safe/till.
- After a transfer, a shortage was found; Feely admitted it, gave an IOU, and said he took the money due to lack of cash and intended to repay.
- Feely also claimed the employer owed him about £70, against which the £30 could be set off.
- He was charged with theft under the Theft Act 1968.

## Issues

1. Whether the trial judge improperly withdrew from the jury the question of “dishonesty” by directing that an intent to repay and an asserted employer debt were irrelevant and could not amount to a defense.
2. Whether “dishonestly” in the Theft Act 1968 is primarily a factual question for the jury applying ordinary standards rather than a concept to be exhaustively defined by the judge.

## Decision

- The Court of Appeal (Criminal Division) allowed the appeal and quashed the conviction.
- The trial judge misdirected the jury by treating intent to repay and claimed setoff as legally irrelevant, thereby removing the central statutory question of dishonesty from the jury.
- The jury should have been left to decide whether, on the facts and ordinary standards, Feely’s appropriation was dishonest.

## Legal Principles

- “Dishonestly” in theft describes the defendant’s state of mind and is ordinarily for the jury to determine on the evidence.
- Judges should not attempt an exhaustive legal definition of “dishonestly”; juries apply the current standards of ordinary decent people to the facts.
- An intention to repay does not automatically negate theft as a matter of law, but it may be relevant evidence bearing on dishonesty.
- A defendant’s belief that the victim owed him money (and that the taking could be set off) is not an automatic defense, but it may be relevant to the dishonesty inquiry and must generally be considered by the fact-finder.
- Even where workplace “borrowing” will often be viewed as theft, the prosecution must still prove dishonesty to the jury’s satisfaction.

## Conclusion

The conviction was set aside because the jury, not the judge, had to decide whether Feely acted dishonestly; his asserted intent to repay and claimed entitlement to setoff were relevant to that determination and could not be excluded by a categorical direction.


Regina v. Feely, [1973] 2 W.L.R. 201 (C.A. 1973)