Theft and property offences - Theft (s.1 Theft Act 1968)

Learning Outcomes

This article outlines the offence of theft under s.1 of the Theft Act 1968. It details the five key elements required for the offence: appropriation, property, belonging to another (actus reus), dishonesty, and intention to permanently deprive (mens rea). After reading this article, you should be able to identify these elements in a factual scenario and apply the relevant legal principles, including the current test for dishonesty, as required for the SQE1 assessment.

SQE1 Syllabus

For SQE1, you must demonstrate a thorough understanding of the offence of theft as defined in the Theft Act 1968. Your knowledge should enable you to analyse scenarios and identify whether the elements of theft are satisfied. Pay particular attention to:

• The definition and scope of ‘appropriation’ under s.3.
• The definition of ‘property’ under s.4, including what can and cannot be stolen.
• The meaning of ‘belonging to another’ under s.5.
• The test for ‘dishonesty’, incorporating the common law test from Ivey v Genting Casinos.
• The meaning of ‘intention to permanently deprive’ under s.6.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following constitutes an ‘appropriation’ under s.3 Theft Act 1968?
   1. Picking up an item in a supermarket with the intention of paying for it.
   2. Damaging an item belonging to someone else.
   3. Offering to sell property that belongs to someone else.
   4. Receiving a gift dishonestly.
2. Which of the following cannot be stolen under the Theft Act 1968?
   1. A patented idea.
   2. Money held in a bank account.
   3. Confidential information.
   4. Wild mushrooms picked for personal consumption.
3. According to the current common law test, when is a person considered dishonest for the purposes of theft?
   1. When they believe their actions are dishonest by the standards of ordinary decent people.
   2. When their actions are dishonest by the standards of ordinary decent people, regardless of their own belief.
   3. When they know their actions are dishonest by the standards of ordinary decent people.
   4. Only when their actions fall below the exceptions listed in s.2 Theft Act 1968.
4. When might borrowing property amount to an intention to permanently deprive under s.6 Theft Act 1968?
   1. If the borrowing is for a very short period.
   2. If the property is returned in exactly the same condition.
   3. If the borrowing is for a period and in circumstances making it equivalent to an outright taking or disposal.
   4. If the borrower genuinely intends to return the property later.

Introduction

Theft is a fundamental property offence defined in s.1(1) of the Theft Act 1968 (TA 1968). It is essential for prospective solicitors to understand its components thoroughly for the SQE1 assessment. The offence is committed when a person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. This article will dissect the five key elements: appropriation, property, belonging to another, dishonesty, and intention to permanently deprive.

Actus Reus of Theft

The actus reus, or the physical elements of theft, comprises three components: appropriation, property, and belonging to another. Each must be present for the actus reus to be complete.

Appropriation (s.3 TA 1968)

Appropriation is the assumption of any of the rights of an owner over property.

Key Term: Appropriation Any assumption by a person of the rights of an owner amounts to an appropriation, including any later assumption of a right by keeping or dealing with property as owner (s.3(1) TA 1968).

This definition is broad. It means that merely touching, using, selling, or damaging property can constitute appropriation. Critically, appropriation can occur even if the owner consents to the taking, particularly if that consent is obtained by deception (R v Gomez [1993] AC 442). It can also occur upon the acceptance of a valid gift if done dishonestly (R v Hinks [2000] UKHL 53).

Key Term: Later Appropriation This occurs when a person comes by property without stealing it (innocently or not) and later assumes a right to it by keeping or dealing with it as owner (s.3(1) TA 1968).

This covers situations where the initial taking was innocent, but a dishonest intention is formed later.

Key Term: Bona Fide Purchaser A person who purchases property in good faith and for value without knowing it was stolen does not appropriate it by later assuming ownership rights (s.3(2) TA 1968).

Property (s.4 TA 1968)

The subject matter of theft must be 'property'.

Key Term: Property Includes money and all other property, real or personal, including things in action and other intangible property (s.4(1) TA 1968).

This is a wide definition:

• Real property: Land can only be stolen in specific circumstances outlined in s.4(2), such as by trustees, those severing items from the land, or tenants taking fixtures.
• Personal property: Tangible items like cars, jewellery, etc.
• Things in action: Rights enforceable by legal action, like a bank balance or a debt.
• Intangible property: Items like patents or copyrights.

Certain things cannot be stolen:

• Confidential information (Oxford v Moss (1979)).
• Electricity (though abstracting it is a separate offence).
• Wild creatures not tamed or ordinarily kept in captivity, unless reduced into possession (s.4(4)).
• Wild mushrooms, flowers, fruit or foliage, unless picked for reward, sale, or other commercial purpose (s.4(3)).

Worked Example 1.1

Sarah works for a tech company. She memorises a commercially sensitive algorithm developed by her employer and sells the details to a competitor. Has Sarah stolen 'property' under s.4 TA 1968?

Answer: No. Confidential information, such as the algorithm formula, is not considered 'property' capable of being stolen under the Theft Act 1968, following the principle in Oxford v Moss. Sarah may have committed other offences or breached her employment contract, but not theft of the algorithm itself.

Belonging to Another (s.5 TA 1968)

Property must 'belong to another' at the time of appropriation.

Key Term: Belonging to Another Property belongs to any person having possession or control of it, or having in it any proprietary right or interest (s.5(1) TA 1968).

This broad definition means property can belong to more than one person simultaneously (owner, person in possession, person with control). It is even possible to steal one's own property if another person has possession or control over it (R v Turner (No 2) [1971]).

Specific situations under s.5:

• Trust property: Belongs to both trustees and beneficiaries.
• Property received under obligation (s.5(3)): Where D receives property with a legal obligation to deal with it in a certain way, it belongs to the person entitled to enforce that obligation (e.g., money collected for charity).
• Property received by mistake (s.5(4)): Where D receives property by mistake and is under a legal obligation to restore it, it belongs to the person entitled to restoration.

Exam Warning

Do not assume property found is abandoned. Abandonment requires the owner to relinquish all rights. Property merely lost, or rubbish put out for collection, still 'belongs to another' (Williams v Phillips (1957)). The finder may have an obligation to take reasonable steps to find the owner (relevant to dishonesty under s.2(1)(c)).

Mens Rea of Theft

The mens rea, or mental elements of theft, consists of two components: dishonesty and intention to permanently deprive. Both must be present at the time of appropriation.

Dishonesty (s.2 TA 1968 & Common Law)

Dishonesty is essential but not fully defined in the Act. Section 2(1) TA 1968 provides three situations where appropriation is not dishonest:

• Belief in a legal right to the property (s.2(1)(a)).
• Belief that the owner would consent if they knew the circumstances (s.2(1)(b)).
• Belief that the owner cannot be discovered by taking reasonable steps (s.2(1)(c)).

These beliefs only need to be genuinely held, not necessarily reasonable (R v Robinson [1977]).

Key Term: Dishonesty (Common Law Test) Following Ivey v Genting Casinos [2017] UKSC 67, dishonesty is determined by a two-stage objective test: (1) ascertain the defendant's actual state of knowledge or belief as to the facts; (2) determine whether their conduct was dishonest by the standards of ordinary decent people.

The Ivey test replaces the previous Ghosh test. The defendant's own view of whether their conduct was dishonest is no longer relevant. Willingness to pay for the property does not automatically negate dishonesty (s.2(2) TA 1968).

Worked Example 1.2

Ahmed finds a wallet containing £100 and identification documents on a park bench. He takes the wallet home, intending to keep the cash but not wanting the trouble of returning the wallet. Is Ahmed dishonest?

Answer: Yes, Ahmed is likely dishonest under the Ivey test. Stage 1: His knowledge is that the wallet contains identification and belongs to someone specific. Stage 2: By the standards of ordinary decent people, keeping the cash when the owner is identifiable through the documents would be considered dishonest. The exception in s.2(1)(c) TA 1968 (owner cannot be discovered by reasonable steps) does not apply.

Intention to Permanently Deprive (s.6 TA 1968)

The defendant must intend to permanently deprive the other person of the property.

Key Term: Intention to Permanently Deprive An intention to treat the property as one's own to dispose of regardless of the owner's rights (s.6(1) TA 1968).

This generally means intending the owner should lose the property forever. However, s.6 extends this:

• Treating as own to dispose of: Includes situations where D intends to return the property only upon a condition being met (ransom cases) or where the property's value is exhausted. Selling property belonging to another clearly shows this intention.
• Borrowing equivalent to outright taking: If borrowing is for a period and in circumstances making it equivalent to an outright taking or disposal, such as returning a concert ticket after the event, or returning property only when its 'goodness, virtue and practical value' is gone (R v Lloyd [1985]).
• Parting with property under condition: Pawning property belonging to another, even with intent to redeem, may count if D may not be able to perform the condition for return (s.6(2)).

Revision Tip

Section 6 TA 1968 does not define intention to permanently deprive but extends its ordinary meaning. Only refer to s.6 if the defendant argues they intended to return the property. In most cases, the ordinary meaning is sufficient.

Conditional intent (intending to steal if there is something worth stealing) is generally not sufficient for theft itself, but could form the basis for an attempted theft charge.

Key Point Checklist

This article has covered the following key knowledge points:

• Theft under s.1 TA 1968 requires five elements: appropriation, property, belonging to another (AR), dishonesty, and intention to permanently deprive (MR).
• Appropriation (s.3) involves assuming any owner's right, even with consent if obtained dishonestly.
• Property (s.4) is broadly defined but excludes certain items like confidential information and land (except in specific circumstances).
• Belonging to another (s.5) includes possession, control, or proprietary interest; one can steal their own property if another has control.
• Dishonesty is assessed objectively using the Ivey test, considering D's knowledge/belief and the standards of ordinary people, unless s.2(1) exceptions apply.
• Intention to permanently deprive (s.6) covers outright taking but also treating property as one's own to dispose of, or borrowing equivalent to taking.

Key Terms and Concepts

• Appropriation
• Later Appropriation
• Bona Fide Purchaser
• Property
• Belonging to Another
• Dishonesty (Common Law Test)
• Intention to Permanently Deprive