Actus Reus of Theft: Physical Element of Crime

Introduction

The actus reus of theft is the physical element of the offence under the Theft Act 1968. Put simply, the prosecution must prove that the defendant appropriated property belonging to another. Those three parts — appropriation, property, and belonging to another — form the actus reus. The mental elements (dishonesty and intention to permanently deprive) sit alongside but are not covered here.

This guide sets out what each part means, how the courts have applied them, and how to analyse common problem scenarios with confidence.

What You’ll Learn

• The statutory definition of appropriation under s3 Theft Act 1968
• Why consent does not prevent appropriation (with key cases)
• What “property” includes and excludes under s4
• How “belonging to another” works under s5, including possession, control, and proprietary interests
• Special rules on property given for a specific purpose (s5(3)) and property received by mistake (s5(4))
• How leading cases like Lawrence, Gomez, Hinks, Morris, Turner (No 2), and Oxford v Moss apply in practice
• A step-by-step approach to answering theft actus reus questions

Core Concepts

Appropriation (s3 Theft Act 1968)

• Definition: “Any assumption by a person of the rights of an owner.”
• What counts as assuming an owner’s rights?
  • Taking, using, consuming, destroying, selling, or offering to sell someone else’s property (e.g. switching a price label or presenting a stolen cheque).
  • Appropriation can occur even if the original acquisition was lawful; a later decision to deal with the item as owner can also be appropriation (s3(1)).

Consent does not prevent appropriation

• The House of Lords confirmed that appropriation can occur even where the owner consents to the transfer:
  • Lawrence v MPC [1972] AC 626: a taxi driver took an excessive fare with the passenger’s ostensible consent.
  • R v Gomez [1993] AC 442: store manager procured acceptance of stolen cheques; consent was not a defence to appropriation.
  • R v Hinks [2000] 1 AC 241: accepting a valid “gift” from a vulnerable person could still be an appropriation.
• Key point: consent and the validity of the transfer go to the mental element (dishonesty) rather than preventing appropriation.

Timing and “continuing” appropriation

• For theft, appropriation occurs when a right of the owner is assumed. It is not a “continuing act” merely because the defendant keeps the item (see R v Atakpu and Abrahams [1994] QB 69).
• For robbery, the courts have treated the stealing as continuing to link any force with the theft (e.g. R v Hale [1978] 68 Cr App R 415). That is specific to robbery’s timing requirement and should not be confused with theft.

Tip: In problem questions, identify the specific right assumed (e.g. setting a price, using, selling, destroying). That keeps your analysis precise and case-backed.

What counts as “Property” (s4 Theft Act 1968)

• The statutory categories:
  • Money
  • All other property, real or personal (tangible goods, chattels)
  • Things in action (e.g. debts, bank balances)
  • Other intangible property
• Important inclusions and exclusions:
  • Confidential information is not property for theft: Oxford v Moss (1979).
  • Electricity is not “property” under s4 (there is a separate offence: abstracting electricity, s13).
  • Body parts can be property where skill has been applied for medical or scientific purposes: R v Kelly and Lindsay [1999] QB 621.
  • Land (real property): limited scope for theft of land itself (see s4(2)), but fixtures severed from land and things forming part of the land can be property in defined circumstances.
  • Wild mushrooms, flowers, fruit and foliage: not property if picked for personal use (s4(3)); wild creatures are dealt with in s4(4).
• Practical point: In modern scenarios, “things in action” and “other intangible property” can include many non-physical rights. Always ask whether the right or item is recognised as capable of ownership.

Belonging to Another (s5 Theft Act 1968)

• Definition: Property belongs to any person who has possession or control of it, or any proprietary right or interest.
• Possession and control are enough:
  • You can steal your own property if someone else has possession/control: R v Turner (No 2) [1971] 1 WLR 901 (taking a car from a garage without paying).
  • Finders, bailees, and custodians can be victims because they have possession/control.
• Specific purpose monies (s5(3)):
  • Where property is given to be dealt with in a particular way, it may still “belong to another” if there is an obligation to apply it as directed.
  • Examples:
    • Davidge v Bunnett [1984] Crim LR 297: money given for a specific bill was used otherwise — still “belonging to another.”
    • Compare R v Hall [1973] QB 126: travel agent paid client monies into a general account; on the facts there was no enforceable obligation to deal with them in a particular way.
    • R v Klineberg and Marsden [1999] 1 Cr App R (S) 377: clear obligation to pay clients’ money into a trust account.
• Property received by mistake (s5(4)):
  • Where property is received by mistake and the recipient is under an obligation to restore it, it remains the property of the person entitled to restoration.
  • Attorney-General’s Reference (No 1 of 1983) [1985] QB 182: overpaid wages created an obligation to restore; the money still “belonged to another.”

Practical takeaway: “Belonging to another” is wide. Check for possession/control, proprietary interests, and the special rules in s5(3) and s5(4).

Key Examples or Case Studies

R v Morris [1983] 3 WLR 697

• Context: Price labels were switched in a supermarket.
• Legal point: Interfering with the right to set a price is an assumption of an owner’s right and therefore an appropriation.
• Application: Appropriation can be a single, simple act that interferes with any one ownership right.

Lawrence v Metropolitan Police Commissioner [1972] AC 626

• Context: Taxi driver took more than the proper fare with the passenger’s apparent consent.
• Legal point: Consent does not stop appropriation.
• Application: Consent is relevant to dishonesty, not to whether there has been an appropriation.

R v Gomez [1993] AC 442

• Context: Store manager persuaded a colleague to accept stolen cheques.
• Legal point: Appropriation can occur even where the owner consents to the transfer.
• Application: Do not treat consent as a defence to the actus reus element.

R v Hinks [2000] 1 AC 241

• Context: Defendant received repeated gifts from a vulnerable man.
• Legal point: Accepting a valid gift can still amount to appropriation.
• Application: Focus on assumption of ownership rights; validity of title does not rule out appropriation.

R v Turner (No 2) [1971] 1 WLR 901

• Context: Defendant took back his own car from a garage without paying for repairs.
• Legal point: Property can “belong to another” if another has possession/control.
• Application: Identify who had possession/control at the relevant time; legal ownership is not the only test.

Oxford v Moss (1979)

• Context: Student copied information from an exam paper.
• Legal point: Confidential information is not “property” for theft.
• Application: If the item is information only, consider other offences; theft may not be made out.

Attorney-General’s Reference (No 1 of 1983) [1985] QB 182

• Context: Police officer was overpaid wages.
• Legal point: Money received by mistake can still “belong to another” due to the obligation to restore (s5(4)).
• Application: Overpayments often engage s5(4): check if the defendant realised the mistake and then decided to keep it.

Practical Applications

• Use a three-step structure in problem questions:
  1. Identify the property (s4): Is it money, tangible goods, a thing in action, or another intangible? Watch for exclusions (e.g. confidential information, electricity).
  2. Ask who it “belongs to” (s5): Who had possession, control, or a proprietary interest at the time? Consider s5(3) and s5(4).
  3. Pinpoint the appropriation (s3): Which right was assumed, and when? Remember that consent does not defeat appropriation.
• Common pitfalls to avoid:
  • Treating consent as a bar to appropriation. It is not (see Lawrence, Gomez, Hinks).
  • Assuming all intangibles are “property.” Confidential information is not (see Oxford v Moss). Consider alternative offences for misuse of information or data.
  • Forgetting possession/control. You can steal your own item if it is in someone else’s possession or control (see Turner (No 2)).
  • Confusing theft with robbery timing. For theft, appropriation is not a continuing act; for robbery, the courts may treat the stealing as continuing to connect force and theft (see Hale).
• Practical checks in real-life scenarios:
  • Overpayments: if the recipient realises the error and decides to keep the money, s5(4) may apply.
  • Client funds or “earmarked” money: look for a clear obligation to deal with the money in a particular way (s5(3)).
  • Shoplifting: appropriation can occur before leaving the store (e.g. removing security tags, swapping labels, or concealing goods).
  • Borrowed or bailed goods: appropriation can occur later if the holder decides to deal with the item as owner.

Tip: Keep the actus reus analysis separate from dishonesty and intention to permanently deprive. Write up the physical element first, then turn to the mental elements.

Summary Checklist

• Appropriation (s3): any assumption of an owner’s rights; consent does not defeat it.
• Property (s4): money, tangible goods, things in action, other intangible property; note exclusions and special rules.
• Belonging to another (s5): possession, control, or proprietary interest are enough; you can steal your own item if someone else has possession/control.
• s5(3): funds or property given for a specific purpose may still “belong to another.”
• s5(4): property received by mistake remains another’s due to the duty to restore.
• Key cases to cite: Morris, Lawrence, Gomez, Hinks, Turner (No 2), Oxford v Moss, AG’s Ref (No 1 of 1983).
• Do not confuse theft’s timing with robbery’s “continuing” stealing approach.

Quick Reference