Theft: Actus Reus, Mens Rea, & Related Offences

Introduction

Theft is more than simply taking something. Under the Theft Act 1968, it requires a specific act plus a particular state of mind. In short, the prosecution must prove appropriation of property belonging to another (the actus reus), together with dishonesty and an intention to permanently deprive (the mens rea). Case law such as R v Hinks and Ivey v Genting Casinos shapes how these elements apply in real situations. This guide breaks the topic into clear sections with examples you can apply to problem questions and practice.

What You'll Learn

• The three actus reus elements of theft: appropriation, property, and belonging to another
• The mens rea elements: dishonesty (after Ivey) and intention to permanently deprive (s.6 Theft Act 1968)
• How consent interacts with appropriation, and what counts as “property”
• When something “belongs to another” even if the defendant is the legal owner
• How robbery (s.8), burglary (s.9), and making off without payment (Theft Act 1978 s.3) relate to theft
• Practical steps for analysing problem questions and common pitfalls to avoid

Core Concepts

Actus Reus of Theft

Theft under s.1 Theft Act 1968 requires an “appropriation of property belonging to another.”

1. Appropriation (s.3)

   • Any assumption of the rights of an owner is enough. It can be one right (e.g., switching a price label) as in R v Morris.
   • Appropriation can occur even with the owner’s consent if that consent was obtained by deception (R v Gomez) or even where there is a valid gift (R v Hinks).
   • Appropriation can be a single act. For robbery, the courts accept a “continuing” approach to appropriation so that force used during escape can still be “at the time of stealing” (R v Hale), but that point is specific to robbery.

2. Property (s.4)

   • Includes money, all other tangible property, things in action (e.g., a bank balance), and other intangible property.
   • Limits:
     • Land: you generally cannot steal land itself (s.4(2)), except in defined situations (e.g., a trustee or someone severing something from land without consent).
     • Wild mushrooms, flowers, fruit (s.4(3)): not theft unless taken for reward, sale or other commercial purpose.
     • Wild creatures (s.4(4)): not usually property unless reduced into possession or in the course of being so.
     • Electricity is not “property” for theft; abstracting electricity is a separate offence (s.13).
     • Confidential information is not “property” for theft (Oxford v Moss). By contrast, a bank credit is a chose in action and is property.
     • Certain items can become property by application of skill (e.g., preserved body parts: R v Kelly and Lindsay).

3. Belonging to another (s.5)

   • Property belongs to “any person having possession or control of it, or having in it any proprietary right or interest.” This is wider than simple ownership.
   • You can steal your own property if another has possession or control of it: R v Turner (No 2) (taking back your car from a garage without paying).
   • Property received for a particular purpose (s.5(3)): if you receive money to deal with in a specified way, failure to apply it as agreed can mean it still “belongs to another.” See Davidge v Bunnett (using a flatmate’s money intended for bills for other purposes) and R v Wain (charity donations).
   • Property obtained by mistake (s.5(4)): if you are paid money by mistake, you are under a legal obligation to restore it (A-G’s Ref (No 1 of 1983)). Keeping it can amount to theft.
   • Lost vs abandoned: genuinely abandoned items do not “belong to another,” but courts are slow to treat valuable items as abandoned.

Mens Rea of Theft

The mens rea consists of dishonesty and an intention to permanently deprive.

1. Dishonesty

   • Statutory pointers (s.2):
     • It is not dishonest if the defendant believes they have a legal right to the property (s.2(1)(a)), believes the owner would consent if they knew (s.2(1)(b)), or cannot discover the owner by taking reasonable steps (s.2(1)(c)). The belief need not be reasonable, only genuine.
     • Willingness to pay does not automatically prevent dishonesty (s.2(2)).
   • The test for dishonesty is now the Ivey v Genting Casinos approach:
     • Determine the defendant’s actual state of knowledge or belief as to the facts.
     • Then decide whether their conduct was dishonest by the standards of ordinary decent people.
     • There is no further requirement that the defendant realised ordinary people would view their conduct as dishonest (the second limb of Ghosh is no longer applied).

2. Intention to permanently deprive (s.6)

   • It is enough to intend to treat the property as your own to dispose of regardless of the owner’s rights.
   • Borrowing can be theft if it is for a period and in circumstances making it equivalent to an outright taking (R v Lloyd). For example, removing the “goodness or virtue” of the property before returning it.
   • Money: taking cash with an intention to replace it later is still theft because the same notes or coins will not be returned (R v Velumyl).
   • Ransoming property or dealing with it as your own can show the necessary intention (e.g., R v Raphael; R v Lavender).

Related Offences at a Glance

1. Robbery (s.8 Theft Act 1968)

   • Theft plus the use or threat of force, immediately before or at the time of stealing, and in order to steal.
   • Only a small amount of force is needed (R v Dawson and James). Indirect force can suffice (R v Clouden).
   • Because appropriation can be “continuing,” force during escape can still count (R v Hale).
   • Maximum sentence: life imprisonment.

2. Burglary (s.9 Theft Act 1968)

   • s.9(1)(a): entering a building or part of a building as a trespasser with intent to steal, inflict GBH, or cause criminal damage.
   • s.9(1)(b): having entered as a trespasser, actually stealing or attempting to steal, or inflicting/attempting to inflict GBH.
   • Key points:
     • “Entry” is satisfied even if only part of the body or an instrument is inside (R v Ryan).
     • “Building or part of a building” includes areas like a closed till area in a shop (R v Walkington), and sometimes structures such as large containers used as offices (B & S v Leathley).
     • Trespass includes exceeding the scope of permission (Jones and Smith). Voluntary intoxication and genuine mistake can affect trespass if they negate the necessary mens rea (see R v Collins on knowledge or recklessness as to trespass).

3. Making off without payment (s.3 Theft Act 1978)

   • Dishonestly making off without paying as required on the spot for goods or services, knowing that payment is required or expected, and intending to avoid payment.
   • “Makes off” has its ordinary meaning (R v Brooks and Brooks). Leaving the premises is usually key (McDavitt).
   • If payment on the spot is not legally “required” because the service was not completed as agreed, the offence is not made out (Troughton v MPC).
   • The intent must be to permanently avoid payment. An intention to pay later is not enough (R v Allen).

Key Examples or Case Studies

R v Morris [1984] AC 320

• Swapping price labels was an assumption of an owner’s right, so appropriation was complete before leaving the shop.
• Shows appropriation can be a single act.

R v Hinks [2000] UKHL 53

• A valid gift to the defendant still amounted to appropriation for theft.
• Consent or validity of title does not prevent appropriation; the focus is on the defendant’s assumption of rights and dishonesty.

Oxford v Moss (1979) 68 Cr App R 183

• Confidential information is not “property” for the purposes of theft.
• Taking an exam paper’s information did not amount to theft of property (though other offences may apply).

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

• The defendant took his own car from a garage without paying for repairs.
• Because the garage had possession/control, the car “belonged to another” for theft.

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

• Police officer overpaid by mistake had a legal obligation to restore the money.
• Failure to return engaged s.5(4): property received by mistake is treated as belonging to another.

Ivey v Genting Casinos [2017] UKSC 67

• The Supreme Court set the objective test for dishonesty based on the defendant’s actual belief as to facts and the standards of ordinary decent people.
• The Ghosh second limb is no longer used.

R v Velumyl [1989] Crim LR 299

• Taking employer’s cash with the intention to return an equivalent sum later still showed intention to permanently deprive of the original notes.

R v Lloyd [1985] QB 829

• Borrowing a film reel and returning it undamaged before it was missed was not theft.
• Borrowing becomes theft only if equivalent to an outright taking due to loss of practical value.

R v Hale (1979) 68 Cr App R 415 and R v Dawson and James [1976] 64 Cr App R 170

• Robbery: appropriation can be continuing (Hale) and minimal force suffices (Dawson and James).

Jones and Smith [1976] 1 WLR 672; R v Walkington [1979] 68 Cr App R 108

• Burglary: exceeding permission makes you a trespasser (Jones and Smith); entering a restricted area within a shop counts as “part of a building” (Walkington).

R v Brooks and Brooks [1982] Crim LR 584; Troughton v MPC [1987] Crim LR 138; R v Allen [1985] AC 1029

• Making off: ordinary meaning of “makes off” (Brooks and Brooks), service must be complete and payment due on the spot (Troughton), and there must be an intention to avoid paying permanently (Allen).

Practical Applications

Analysing a theft problem step by step

• Identify appropriation:
  • Has the defendant assumed any rights of the owner (e.g., taking, using, switching labels, selling, destroying)?
  • Consent does not prevent appropriation if obtained by deception (Gomez) or even if the transfer was a gift (Hinks).
• Check “property” under s.4:
  • Is it money, tangible property, a chose in action, or intangible property?
  • Exclude items outside theft: electricity (s.13), confidential information (Oxford v Moss), wild flora/fauna unless commercial purpose.
• Does it “belong to another” under s.5?
  • Consider possession/control as well as proprietary interests.
  • Apply s.5(3) (money given for a particular purpose) and s.5(4) (property received by mistake).
  • Remember R v Turner: you can commit theft of your own property if someone else has possession/control.
• Dishonesty:
  • Consider s.2(1) beliefs. If none apply, use Ivey: determine the defendant’s actual belief as to facts, then apply ordinary standards of honesty.
• Intention to permanently deprive:
  • Look for treating the item as one’s own to dispose of; prolonged borrowing equivalent to an outright taking (Lloyd); money cases (Velumyl).
• Related offences:
  • Robbery: was force or a threat of force used immediately before/at the time of stealing and in order to steal? If so, consider s.8.
  • Burglary: was there entry into a building or part as a trespasser with intent (s.9(1)(a)), or did the defendant steal or attempt GBH after entry as a trespasser (s.9(1)(b))?
  • Making off: did the defendant leave without paying when payment was required on the spot, knowing this, and intending to avoid payment permanently?

Common pitfalls

• Assuming consent defeats theft: it does not necessarily do so (Gomez, Hinks).
• Treating all intangibles as “property”: confidential information is excluded for theft (Oxford v Moss).
• Overlooking s.5(3) and s.5(4): money given for a specific purpose or paid by mistake can still “belong to another.”
• Confusing intention to return something with lack of intention to permanently deprive: replacing cash with different notes is still theft (Velumyl). Returning goods only after their value is exhausted can also show intention (Lloyd).
• Robbery timing: force during escape can suffice due to continuing appropriation (Hale).
• Burglary elements: remember the split between s.9(1)(a) (intent at entry) and s.9(1)(b) (offence committed after entry).

Short applied scenarios

• Price label switcher: Appropriation (Morris), property (goods), belonging to another (shop), dishonesty likely under Ivey, intention to permanently deprive by paying less may point to theft.
• Overpaid wages: Money received by mistake (s.5(4)), legal duty to restore (A-G’s Ref (No 1 of 1983)), keeping it can be theft.
• Taking your car from the garage without paying: Car belongs to another by possession/control (Turner) and intention to permanently deprive may be shown if intending not to pay or treat it as own to dispose of regardless.
• Taxi passenger runs off: If fare is due on the spot and the passenger intends not to pay, this is making off (Theft Act 1978 s.3). If the journey was not completed as agreed, payment may not be due (Troughton).

Summary Checklist

• Actus reus:
  • Appropriation (s.3), including with consent (Gomez) and valid gifts (Hinks)
  • Property (s.4): money, tangible items, choses in action; note exclusions and special cases
  • Belonging to another (s.5): includes possession/control; consider s.5(3) and s.5(4)
• Mens rea:
  • Dishonesty: apply s.2(1) first, then the Ivey objective test
  • Intention to permanently deprive (s.6): treat as own to dispose; borrowing equivalent to outright taking (Lloyd); cash cases (Velumyl)
• Related offences:
  • Robbery (s.8): theft plus force or threat used immediately before/at the time, to steal; life maximum
  • Burglary (s.9): s.9(1)(a) intent at entry; s.9(1)(b) offence after entry; entry, building/part, trespass
  • Making off (Theft Act 1978 s.3): payment due on the spot, knowledge, dishonesty, intent to avoid permanently
• Problem-solving approach: apply each element in order and test relevant cases

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