12.

1 Theft
The law relating to property offences was codified in 1968 in the form of the Theft Act, which aimed to simplify, consolidate and reform
the previous ragbag of property offences. It was only partially successful. While the law of theft, burglary, robbery and handling remains
largely as enacted, the law relating to fraud was found not fit for purpose and was replaced first in the Theft Act 1978, and then again in
the Fraud Act 2006.
Theft, and the elements thereof, are defined in ss.1–6 of the Theft Act 1968 although, as will be seen, the Act does not purport to give a
comprehensive definition of the various conduct and mental elements. Theft is defined in s.1 as:
A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other
of it.
Following the usual criminal template, therefore, the actus reus of theft is the appropriation of property belonging to another; and the
mens rea is dishonesty as to the appropriation together with an intention permanently to deprive the owner of the property. Each of these
elements will be examined in turn, beginning with the actus reus which comprises three elements – all of which the prosecution must
prove beyond reasonable doubt.
There must be property.
The property must be appropriated by the defendant.
The property appropriated must belong to another at the time of the appropriation of it.

12.1.1 Actus reus: theft

Property
There is a comprehensive definition of property in s.4 of the Theft Act 1968. Subsection 4(1) gives us a general statement to the effect
that property:
includes money and all other property, real or personal, including things in action and other intangible property.
Subsection 4(2) then qualifies subsection (1) by severely restricting the scope of stealable land (real property). The reason for this is
simple. It is not generally possible to appropriate a parcel of land since land cannot disappear as watches and handbags can. If your
neighbour appropriates one metre of your garden for their garden, your remedy is in civil trespass, not criminal theft.
Real property means land and interests in land, such as a tenancy. Personal property means material objects which can (as a rule) be
bought and sold; for example furniture, clocks, pictures, food, books, clothes and so on. Things in action are not material objects but are
things of value which can be liquidated into money and enforced in the courts. A debt is a good example.

Activity 12.1
Read Wilson, Section 14.2.A.2 ‘Property: general definition’, Section (b) ‘Things in action and other intangible property’ and
answer the following question.
A takes B’s cheque for £100 given to B by C as payment for a bicycle. A pays the cheque into her bank account, causing a
transfer of funds from C’s account to A’s account. What has A stolen?
Subsection 4(2)(a) states the general rule that land and interests in land cannot be stolen and its exceptions.
(2) A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that it
to say –

University of London
(a) when he is a trustee or personal representative, or is authorised by power of attorney, or as liquidator of a company, or otherwise, to sell
or dispose of land belonging to another, and he appropriates the land or anything forming part of it by dealing with it in breach of the
confidence reposed in him…
This exception is intended to cover cases such as that of an executor of a will who, instead of transferring the land to the intended
beneficiary, sells it for their own purposes.
Subsections 4(2)(b)and (c) make a further qualification to deal with the case of people who steal things from off the land which formed
part of the land at the time of the appropriation. So, a person can steal land if:

(b) when he is not in possession of the land [he] appropriates anything forming part of the land by severing it or causing it to be severed, or
after it has been severed; or
(c) when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the
land.
 Subsection 4(2)(b) deals with the case of trespassers who, for example, steal turf or topsoil, garden trees or shrubs, garden fixtures such
as fountains or stone terraces, or parts of the house such as lead from the roof or a fireplace or staircase.
Subsection 4(2)(c) deals with the case of tenants, who cannot steal turf or topsoil, garden trees or shrubs, but can steal fixtures such as
fountains and stone terraces.
Subsections 4(3) and (4) deal with another exception. Again, the property concerned is not land itself but is a thing forming part of the
land.

(3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant [including shrubs or trees]
growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or
other commercial purpose.
(4) Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in
captivity, or the carcase of any such creature, unless either it has been reduced into possession by or on behalf of another person and
possession of it has not since been lost or abandoned…
A person who picks flowers from a flowerbed or greenhouse, or apples from a garden tree commits the actus reus of theft, since apples
and flowers are property. Subsection 4(3) applies to their ‘wild’ counterparts. It affirms that wild flowers, or fruit or foliage from wild
trees or plants on other people’s land, do not count as property capable of being stolen unless it is done for some kind of commercial
purpose. A person who picks wild blackberries or apples, plants or mushrooms and sells them to a restaurant or shop, or processes them
for onward trade, is covered by s.4 and commits theft, assuming all the other elements (e.g. dishonesty) of theft are present.

12.1.2 Identifying the property

A key task in deciding whether theft of property has occurred is to identify the property. Misidentifying the property means the charge
will fail, even though a theft has been committed.

Activity 12.2
Read Wilson, Section 14.2.A.2 ‘Property: general definition’, Section (b) ‘Things in action and other intangible property’ and
state what, if anything, has been stolen in the following questions.
a. A draws forged cheques owned by B for the sum of £1,000 on B’s bank account and pays them into his account, causing a
transfer of funds (a variation of what happened in Chan Man-Sin v A-G for Hong Kong [1988] 1 WLR 196).
b. A eats a meal in a restaurant, although he has no money, and leaves without paying the bill, which is £20.

Bodies and body parts

One cannot steal bodies or body parts because bodies are not personal property. In Sharpe (1857) 169 ER 959, D dug up a corpse and
sold it to a surgeon for dissection. D was charged with and convicted of theft, but his conviction was quashed. As it was said in this case,
‘a body wants no owner’. The same rule applies to body parts.

Illustration 12.1
A cuts a lock of B’s hair because B is a pop star and she wants a keepsake.
A has not committed theft of the hair. This is an offence against the person (battery), not against property. A similar conclusion follows if
the hair is on the floor of the hairdressers, except here there is no criminal offence at all. There are some qualifications to this to cover
cases such as mummies and corpses for dissection which take on the properties of property rather than being simply a corpse. Authority
for this is Kelly [1999] QB 621, in which a Royal College of Surgeons’ technician gave body parts to D, who was an artist. These
included human heads, arms, legs and torsos. D made casts of the body parts which were exhibited in an art gallery. Both D and the
technician were convicted of theft, but in their appeal they contended the body parts did not constitute property. The appeal was
dismissed. A corpse, or part of a corpse, is capable of being property within s.4 of the Theft Act 1968 if it has acquired different
attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes.
Using the same reasoning, in Welsh [1974] RTR 478, a driver was guilty of theft for removing his own urine specimen from a police
station. He did this to avoid a conviction for driving with excess alcohol.

Activity 12.3
Read Wilson, Section 14.2.A.2 ‘Property: general definition’, Section (a) ‘Human body parts’ and answer the following question.
A, a hairdresser, collects his client’s hair with which to make cushions. He keeps the hair in a refuse bag pending stuffing the
cushions. B, a rival cushion stuffer, takes the hair, having put it in her own bag. What, if anything, has B stolen?
No feedback provided.

12.1.3 Appropriation
Prior to the Theft Act 1968 the essence of theft, or larceny as it was known, was the taking and carrying away of personal property. (One
of the key differences between larceny and theft introduced by the Theft Act is that there is no longer any need for a taking and carrying
away of the property. It is not needed but is sufficient.) Appropriation is defined by s.3(1) of the Theft Act 1968 as:

Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property
(innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.
This statement emphasises that it is not necessary to physically take property to appropriate it. Indeed, as the provision makes clear, one
can even appropriate property which is lawfully in one’s possession. A person who finds property, or borrows it, is not committing theft.
However, if they subsequently assume rights of ownership over the property – for example by selling it, lending it to someone else, or
deciding to keep it – this amounts to an appropriation of the property. In deciding whether the defendant has appropriated the relevant
property, the first question to be asked therefore is what the rights of an owner comprise. The second question is whether the defendant
has assumed one of those rights and, if so, which one. If the defendant exercises any of these rights over property belonging to someone
else, he appropriates that property.
In Pitham and Hehl (1977) 65 Cr App R 45, the defendant invited two people into his friend’s house while his friend was in prison and
offered to sell them his friend’s furniture. The Court of Appeal held that this offer constituted an appropriation as it was an assumption of
one of the rights of ownership, namely the right to sell. Compare the recent case of R v Darroux [2018] EWCA Crim 1009. The
defendant filled out claim forms for overtime and expenses, which she gave to her employers. The claims were grossly inflated. She was
charged with theft of the moneys transferred to her account via bank transfer. In order to gain a conviction, the prosecution had to show
that the money coming into her account came there as a result of her assuming a right of ownership over it. Had she? What had she
done? What she had done was to fill out some claim forms, which was a long way from doing anything in regard to the money. Yes, she
had caused the transfer but, no, she did not cause it by way of appropriation. She did it by way of writing a false claim form. The Court
of Appeal quashed her conviction.

Activity 12.4
Read Wilson, Section 14.2.A ‘Actus reus’. List as many rights of ownership as you can think of and consider how each of these
rights could be appropriated. Then consider the following questions.
a. What rights of ownership did the defendant in Morris (1983) appropriate? How did he do so?
b. If A takes the key of a car so that he can steal the car later, has he appropriated only the key or also the car?
c. Would Mrs Darroux have appropriated the money transferred into her account if she had drawn a cheque on it?

Consent and appropriation

Is it a necessary ingredient in an appropriation that the act be unauthorised? In Lawrence [1972] AC 626 the House of Lords said no. An
Italian student took a lift in a taxi. At the end of the trip, as he did not speak good English, he held out his wallet for the taxi driver to
take the right fare. The taxi driver took far more than the correct fare and was charged and convicted of theft of the money. He appealed
on the basis that the trial judge should have told the jury that there could be no appropriation if the owner consented. The House of Lords
upheld the conviction, stating that the statutory definition of appropriation did not include the words ‘without the owner’s consent’. So
even if the student had truly consented to the taking of the money it had still been appropriated by the taxi driver.
The House of Lords came to a different conclusion in Morris [1984] AC 320. The defendant had swapped price tags on a tin of beans in
a supermarket in order to purchase the beans at a lower price. He was arrested by a store detective before reaching the checkout and
charged with theft of the can. Upholding the conviction, the House of Lords concluded that it was of the essence of an appropriation that
the act be by way of ‘adverse interference or usurpation of the owner’s rights’. Contrary to Lawrence (where taking the money from the
wallet was an appropriation despite the owner’s authority), their Lordships concluded that taking the goods off the shelf was not an
appropriation because self-service shops authorise this act. It was only when the price labels were swapped that an appropriation
occurred, because this was not authorised and was adverse to the owner’s right. Similar decisions were reached in Meech [1974] QB 549
and a number of other cases including Fritschy [1985] Crim LR 745.
Fritschy (F) was a dealer in gold coins (krugerrands) for a Dutch company. F was asked by V to collect a consignment of such coins
from England for onward delivery to H’s bank in Switzerland. F took them to Switzerland but did not deliver them to H’s bank, instead
keeping them for his own purposes. The question for the court (which does not concern us) was where the appropriation had taken place.
On the authority of Lawrence it had taken place in England. The Court of Appeal, preferring the House of Lords decision in Morris to
that in Lawrence, decided that it had taken place in Switzerland. There had been no appropriation in England because D had taken
possession of the krugerrands with H’s consent and, until he had deviated from V’s instructions and authority (in Switzerland), had not
appropriated V’s property.

The conflict of approach between Lawrence and Morris was finally resolved in Gomez [1993] AC 442. D, the assistant manager of a
shop, agreed with his accomplice, R (a customer), to help him acquire goods in exchange for two stolen cheques. Knowing that the
cheques were stolen, D deceived the shop manager into authorising the sale of the goods to the customer in exchange for the cheques. D
was charged with theft contrary to s.1(1) of the Theft Act 1968 and was convicted at first instance. He appealed, submitting that the
goods had been sold under a contract between the customer and the shop, and that there could be no appropriation of property belonging
to another where the act relied upon was a contract of sale passing ownership to the customer. The Court of Appeal (Criminal Division)
agreed and allowed D’s appeal against conviction. On appeal by the Crown, the House of Lords held that the fact that the act was
authorised in no way prevented it from being an appropriation. It was not of the essence of an appropriation that it constituted some form
of challenge to, or interference with, the owner’s rights.

Activity 12.5
Note that in Gomez it was D, not R, who was charged with theft. What had D done to appropriate the property?
In Gomez, the transfer was defective because the shop manager’s consent was obtained by fraud and so the transfer of ownership could
be undone. Does the person who induces the transfer also appropriate property where there has been no fraud and where the transferee
receives an absolute title to the property?
This was the question the House of Lords had to answer in Hinks [2001] 2 AC 241. In this case D had befriended V, a naive and gullible
man, and encouraged him to make her gifts of money from his bank account. She was convicted of theft, although there was no evidence
of duress or deception, or that V had parted with the money otherwise than by gift. The defence case was that the recipient of a valid gift
could not be guilty of theft. Either there is a valid transfer of title or there is an appropriation. There cannot be both. Lord Steyn said that
whether or not V had gifted the money, D, by acquiring title, had appropriated it. The acquisition of title, on this view, is simply the
clearest possible case of ‘assuming rights of ownership’. This was a surprising decision because the transfer was treated as valid by the
civil law – V could not claim the money back in the civil courts as it was a perfect gift – but it was an invalid transfer by the criminal
law. D was guilty of stealing the money, assuming her obtaining of the money was thought to be dishonest. The same principle applies to
other transactions involving the transfer of ownership such as contracts for sale (Gomez).

Activity 12.6
The House of Lords made it clear that most people who received property by way of gift would not be guilty of theft. Liability in
such a case will depend upon whether D was dishonest in receiving the gift. Most receivers of gifts are not – thank goodness! Now
read Wilson, Section 14.2.B.2 ‘Dishonesty’ and decide whether Mrs Hinks was dishonest in receiving her gift and how the court
approached the question of dishonesty. Once you have done that you might wish to read the dissenting opinion of Lord Hobhouse
who, however immoral you think Mrs Hinks was, is surely right in concluding that she was not. You will find Hinks in the Online
Library.
Belonging to another
A person cannot be guilty of theft if the property they appropriate does not belong to another person. But a person can be guilty of theft if
they appropriate property that belongs to them! How can this be? The answer to this question is to be found in s.5 of the Theft Act 1968
which defines the term ‘belonging to another’. Section 5(1) states that property belongs to ‘any person having possession or control of it,
or having in it any proprietary right or interest’.
The consequence of this rather puzzling subsection is that a person can commit theft of their own property so long as it also belongs to
someone else for the purpose of s.5. To understand this section properly let us assume that the property is a racehorse, which is owned by
a Mr Southwell. For the purpose of the Theft Act 1968 the racehorse belongs to:
Mr Southwell
Mrs Goodwood, part owner
Ms Lingfield, the owner of the stables where the racehorse is stabled
Mr Aintree, the jockey, when he takes the horse for a gallop (during the gallop)
Mr Doncaster, the blacksmith, to whom the horse is delivered for a few hours to be shod (during those hours)
Mrs Wincanton, the owner’s friend, to whom he lends the horse to compete in a race (during the loan period)
The Happy Valley Finance Company, who lends Mr Southwell £50,000, using the horse as security.

If any of these people appropriate the racehorse from any one of the others, they have appropriated ‘property belonging to another’. The
racehorse belongs to Mr Southwell, Mrs Goodwood and the Happy Valley Finance Company since each has ‘proprietary rights or
interests in the horse’. It belongs to the other parties by virtue of their possession or control during the time they are in possession or have
control. This does not of course mean that they are necessarily guilty of theft because of the need to establish all the elements of the
offence, in particular, of course, dishonesty. If Mr Southwell took back the horse from Mrs Wincanton without formally terminating the
bailment he would have appropriated property belonging to another, but he would not usually be guilty of theft since his taking would
not be dishonest and, moreover, Mrs Wincanton would have no right as against him to retain the horse and so he could terminate the
bailment perfectly legitimately simply by taking the horse. In Meredith [1973] Crim LR 253, the defendant took his own car from a
police car park where it had been impounded. He was indicted for theft. The trial judge directed the jury to acquit on the ground that the
police, although having the possession and control of the car for the purpose of s.5(1), had no right to retain the car as against him.

Activity 12.7
Read Wilson, Section 14.2.A.3 ‘“Belonging to another”: who does property belong to?’ and compare Meredith with Turner [1971]
1 WLR 901 CA, which is a good illustration of how a true owner can steal from a mere possessor. Why was Meredith acquitted
and Turner convicted? Are they both right? Make sure you make notes of both cases and your conclusions.
Abandoned property
If property is abandoned it may belong to no one, in which case it cannot be stolen. However, even abandoned property may belong to
someone else, for example the owner of the land or vessel in which the property is found.
In Hibbert v McKiernan [1948] 2 KB 142, D was a trespasser on land owned by a golf club who collected golf balls lost and abandoned
by their owners. He was charged with theft. D argued that, having been abandoned, the balls belonged to no one: the King’s Bench
Divisional Court disagreed. Although the balls no longer belonged to their previous owners they did belong to the club. Since D was a
trespasser, the golf club had the right to exclude him from the course and, therefore, from the balls. To that extent the club had control of
the balls and so they belonged to the club for the purpose of s.5. Note that this means that other golfers would not be committing theft of
balls which they found on the course. These balls, having been abandoned, would belong to no one as against them. It is for this reason
also that I am not guilty of theft when, every Saturday, I collect a dozen or so golf balls from my garden which some unfortunate golfer
has hit there from the golf course abutting my property. The golf balls belong to me. I do not own them but, for the purposes of s.5, I am
the only person who cannot steal them.

Williams v Phillips (1957) 41 Cr App R 5 is a comparable case. A householder put refuse out for collection by the local authority refuse
workers. It was held by the Divisional Court that such refuse remained property belonging to the householder until collected, whereupon
property passed to the local authority. So refuse workers helping themselves to such property could be convicted of theft, on the basis
that the property had always belonged to someone (see also Woodman [1974] QB 754 and Hancock [1990] Crim LR 125).

Activity 12.8
See Wilson, Section 14.2.A.3(b) ‘Theft by owners’. If A, a householder, hires a building skip into which to throw her doors and
windows, which she is replacing, does B appropriate ‘property belonging to another’ if he takes them? In order to answer this
question you must consider whether there is any difference between this case and that of Williams v Phillips.
The property must belong to another at the time of appropriation
In Chodorek v Poland [2017] ACD 244 (82) QBD the Administrative Court confirmed that a person who uses a debit card at an ATM to
withdraw cash commits theft if he has no overdraft facility and knows he does not have the funds to cover the amount withdrawn. All the
elements of the offence are present, namely a dishonest appropriation of property belonging to another with the intention of permanently
depriving the other of it. The property appropriated in this case is money (i.e. personal property), not a thing in action. And, at the time of
the appropriation, the money belonged to the issuing bank and not to him as he was not in credit.
Corcoran v Whent [1977] Crim LR 52 is a perfect, if rare, example of how a theft conviction was not possible because the property
appropriated no longer belonged to another person at the time of appropriation. D ate food in a restaurant with a friend. When he left the
restaurant, his friend told him that the meal had not been paid for. D did not go back to pay for the meal although his intentions on
entering the restaurant were perfectly honest. He was later arrested, charged and convicted of theft. D’s conviction was quashed on the
ground that although all the elements of theft were present, they did not coincide. At the time the appropriation (eating) of the property
(food) belonging to another (restaurant) occurred he had no mens rea for theft. At the time the mens rea was formed he did not
appropriate property belonging to another for three simple reasons: (i) one cannot assume rights of ownership over the contents of one’s
stomach, (ii) the food was no longer food (property) it was mush in his stomach and (iii) it belonged to no one, not even him!
Subsection 5(3) of the Theft Act 1968
This is a deceptively difficult subsection designed to cover the case of someone who has passed ownership and possession in property to
someone else for a particular purpose and that purpose is disregarded. Is the transferee guilty of theft? The subsection reads:

Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property
or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other.
This subsection has the effect that if A gives property (e.g. money) to B to do something specific with it (e.g. pay a bill, deliver to
charity), B commits theft if they do something else with it even if B has become the sole legal owner of the property.
The major problem arises in deciding whether an obligation has arisen to deal with the transferred property in a particular way. By
‘obligation’ is meant legal obligation. Easy cases involve money which is explicitly earmarked by the transferor for a particular purpose.

Illustration 12.2
Chen is collecting for the charity, Prisoner’s Aid, outside a train station. Nico puts £5 into Chen’s collection box. Chen later takes
out the £5 and buys a spicy chicken burger with it.
As far as the civil law and s.5(1) are concerned, the £5 belongs only to Chen. It no longer belongs to Nico, nor does it yet belong to the
charity. Section 5(3), however, deems the money still to belong to the donor, although technically they have transferred possession and
all rights and ownership over the money to the donee. This is because charity collectors owe an obligation to the donors to hand over
their donations to the relevant charity. So Chen is guilty of theft. This is exactly what happened and was decided in Wain [1995] 2 Cr
App R 660.
In Davidge v Bunnett [1984] Crim LR 297, the defendant shared a flat with others who gave her cheques to pay their joint gas bill. It was
understood that D would have to pay the cheques into her own bank account before doing so. In fact, D spent the proceeds on Christmas
 presents. The Divisional Court held that s.5(3) applied, that D was under a legal obligation to use the proceeds to pay the bill and
therefore they were property belonging to another by virtue of s.5(3).
Compare this case with DPP v Huskinson (1988) 152 JP 582, where it was held not to be theft to use housing benefit for purposes other
than paying the recipient’s rent. The point of the relevant legislation was to impose a duty upon the social services to pay benefit to the
recipient. It was not the point of the legislation to impose an obligation on the recipient to apply it directly for that purpose. In short, the
housing benefit was his own to deal with as he saw fit.

Activity 12.9
Read Wilson, Section 14.2.A.3 ‘“Belonging to another”: who does property belong to?’, Section (c) ‘Special cases of belonging’
and answer the following questions, making sure you take notes.
a. Why was the travel agent in Hall (1972) not guilty of theft? Did he not have an obligation to secure flights for the depositors?
b. Who decides whether D has an obligation to deal with the property in a particular way and what is taken into account in
deciding this?

Subsection 5(4) of the Theft Act 1968

Subsection 5(4) was designed to address problems such as occurred in Moynes v Cooper [1956] 1 QB 439, in which an employer paid an
employee’s salary twice into the employee’s bank account by mistake and the employee spent it. Under the civil law, the funds in the
account (thing in action) belong to the account holder. Subsection 5(4) confirms that the property mistakenly transferred or otherwise
received belongs also to the transferor for the purpose of the law of theft, so that if the transferee treats the property as their own they
will be guilty of theft. It reads as:

Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its
proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging
to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that
person of the property or proceeds.
It has been made clear in a number of cases that reliance on s.5(4) is not strictly necessary to denote the relevant property as belonging to
another. In Shadrokh-Cigari [1988] Crim LR 465, a bank account was wrongly credited with approximately £286,000 rather than the
£286 owing. D took and spent the money. He was convicted of theft of the money on the basis that it remained property belonging to
another, namely the issuing bank.

Activity 12.10
Read Wilson, Section 14.2.A.3 ‘“Belonging to another”: who does property belong to?’, Section (c) ‘Special cases of belonging’
and explain the basis upon which the Court of Appeal upheld the appeal in Shadrokh-Cigari. Is s.5(4) completely redundant
following this case?

12.1.4 Mens rea: theft

Dishonesty
The dishonesty requirement reflects the general principle that criminalisation is inappropriate if the defendant has not acted in a socially
unacceptable or immoral fashion (see Section 1.2 of this module guide). Whether or not an appropriation of a person’s property is
socially acceptable or not depends to a certain extent on why it was done. If the property was a gun, for example, and it was done to
prevent the owner killing with it, it might be considered morally incoherent to convict the appropriator of theft. This would mean that the
defendant would be expected to prioritise a property interest above a personal interest. Why would they? Why should they?
Dishonesty is not defined in the Theft Act 1968. However, s.2 of the Act tells us what dishonesty is not. Section 2(1) states that certain
beliefs of the defendant are inconsistent with having a dishonest state of mind. These are:
a. a belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or
b. a belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or
c. a belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

The gun example above is a possible illustration of where s.2(1)(a) might apply. So also is the case where D takes a sum of money from
V believing they have the right to it because V owes them that same sum (compare Robinson (1977) Crim LR 173). So also is Hinks,
although the court at first instance obviously thought otherwise. An example of s.2(1)(b) is where D takes V’s milk from the refrigerator
of their jointly occupied flat for a cup of tea, having used all their own milk. An example of s.2(1)(c) is where D finds a sum of money in
a public area which, because of its relatively small size, they conclude will never be reported to the police. The key point here is not that
D does have this right (s.2(1)(a)), or does have V’s consent (s.2(1)(b)), or that the property cannot be returned to the owner by taking
reasonable steps (s.2(1)(c)), but that D has this belief. The jury will decide this by reference to all the evidence.
It was once thought that if D did not have one of the beliefs in s.2 then they were automatically dishonest as a matter of law. This view
was rejected in a number of cases in the early years following the passing of the Act. The reason for this was explained by Lawton LJ in
Feely [1973] 1 QB 530. He said that immorality was of the essence of stealing and the mere fact that a person takes property when he
knows he has no right or the owner would not consent does not render the taking immoral.
The facts of the case help us understand this point. D was a cashier in a betting office who, contrary to his firm’s instructions, took some
money out of the till on a Friday, intending to repay it on the Monday. He left a note to this effect in the till. D was charged with theft.
The trial judge held that D’s actions were clearly dishonest. Section 2 did not apply and his intention to replace the money was irrelevant.
The Court of Appeal allowed the appeal. Lawton LJ said that whether or not a person is dishonest was not a matter for the judge but was
a question of fact which should have been left to the jury. He said:
Jurors, when deciding whether an appropriation was dishonest can be reasonably expected to, and should, apply the current standards of ordinary
decent people. In their own lives they have to decide what is and what is not dishonest. We can see no reason why, when in a jury box, they
should require the help of a judge to tell them what amounts to dishonesty.

A different direction for dishonesty – which is slightly more beneficial to the defence – was laid down in Ghosh [1982] QB 1053, a case
on fraud, which carries the same dishonesty requirement. The defendant was a consultant at a hospital. He falsely claimed fees in respect
of an operation that he had not carried out. D claimed that he thought he was not dishonest since he was owed the same amount of money
for consultation fees. The judge directed the jury members, in accordance with Feely, that they must simply apply their own standards as
ordinary decent people. D was convicted and his appeal was dismissed by the Court of Appeal. Lord Lane CJ stated that the jury must
consider if the conduct of the accused was dishonest according to the ‘ordinary standards of reasonable and honest people’ (if not, then
the prosecution fails). If it is dishonest according to those standards then the jury must consider whether the accused ‘must have realised
that what he was doing was by those standards dishonest’.
The significant aspect of this direction is that it permits an acquittal in cases where the defendant is dishonest according to prevailing
social standards but does not realise this. Critics describe the test as a Robin Hood defence.

Activity 12.11
Read Wilson, Section 14.2.B.2 and answer the following question.
Why is the Ghosh test described as a Robin Hood defence?
Ivey v Genting Casinos [2017] UKSC 67
The Ghosh test was abandoned by the Supreme Court in a case decided under the Gambling Act 2005. The question for the Court was
whether Mr Ivey, a professional gambler, was acting dishonestly, that he was cheating, in gambling with cards, which although provided
by the casino, he was able to identify by virtue of a defective pattern on the cards’ reverse side. He argued that he was not dishonest
because, whatever the general public might feel about the honesty of his actions, as a professional gambler he considered what he did to
be simply good gambling and assumed the public would think likewise. The Supreme Court rejected this argument. In so doing, it found
that the second limb was defective in that it introduced an unnecessary and problematic subjective element into the assessment of
dishonesty. Whether someone is dishonest or not does not vary with the defendant’s own assessment of what counts as dishonesty but is
decided according to objective standards of ordinary, reasonable people. In future, only the first question is to be considered, that is
whether, according to the standards of reasonable and honest people, what was done was dishonest. This returns the law to the position in
Feely [1973] 1 All ER 341 and will become the standard test for dishonesty in theft, fraud and other offences in which dishonesty is an
element.
The procedure in relation to directing the jury on dishonesty is first of all to ask it to consider whether s.2 is applicable. If it is, that is an
end to the matter and D is acquitted. If it is not, the jury must then consider whether the defendant is dishonest according to the
Ivey/Feely test, that is according to the standards of ordinary people as represented by the jury.

Activity 12.12
Read Wilson, Section 14.2.B.2.
Do you think the current mechanism for deciding whether a person is dishonest is sufficiently clear and certain to pass muster?
No feedback provided.

Activity 12.13
Read Wilson, Chapter 14.2.B.2 ‘Dishonesty’, Section (b) ‘What dishonesty is’ and answer the following question.
A takes a bruised apple from a market stall and gives it to a homeless person sitting on the floor nearby. What direction should
the judge give the jury on dishonesty?
No feedback provided.

Activity 12.14
Read Wilson, Section 14.2.B.2 ‘Dishonesty’, Section (c) ‘Reforming dishonesty’ and outline the proposals for reforming theft and
dishonesty tabled by Professors Smith, Glazebrook, Tur and Elliot.
No feedback provided.
Intention permanently to deprive
A defendant commits theft only if it is their intention for the victim never to recover the property. If D intends only to borrow property
this cannot be theft, however dishonest the taking is. The key point here is that this is a mens rea rather than an actus reus element. Theft
does not require the victim to be permanently deprived of their property. It simply requires D to have this intention at the precise
moment they appropriate the property. Intention includes conditional intention; that is, the intention of someone who appropriates
property – say a holdall – conditionally on the contents proving sufficiently valuable to take permanently. To gain a conviction, however,
it is necessary for the prosecution to draft the charge so as not to refer to any specific property (compare Easom [1971] 2 QB 315), for
example by charging D with theft of ‘articles unknown, the contents of a holdall belonging to X’ (see also A-G’s Reference (Nos 1 and 2
of 1979) [1979] 3 All ER 143).
In the case of fungibles such as money, food, drink and so on, this intention exists even if D intends to return an identical sum, amount of
food, drink and so on. This was made clear in Velumyl [1989] Crim LR 299, in which D had taken money from his employer’s safe and
claimed that he intended to pay it back after the weekend. The Court of Appeal held that D had not intended to return the exact coins and
notes, and that therefore he was properly convicted of theft on proof of dishonesty. (Note: in such cases it would be far better for D to
contend that he was not dishonest, given his intention to replace the money with an equivalent fund.)
Subsections 6(1) and 6(2) of the Theft Act 1968 provide two special circumstances beyond its normal meaning where the intention to
take something temporarily counts as an intention permanently to deprive the owner of the property.
Subsection 6(1) of the Theft Act 1968
A person is to be treated as having an intention to permanently deprive the owner of his property if his intention is to:
This provision refers to cases where the appropriation amounts to an outright disposal but the defendant nevertheless shows no
particular commitment to depriving V of the property permanently (Coffey [1987] Crim LR 498). An obvious example is where D
appropriates V’s property, for example his dog or his painting, intending to ransom the property back to V upon payment of a sum of
money. Another example is where D intends to exhaust the value of the property before returning it. So if D ‘borrows’ V’s ticket for the
Manchester United game against Manchester City intending to return it after the game, D has – by virtue of s.6(1) – the intention to
permanently deprive V of her property because D is treating the ticket as his own to dispose of regardless of the other’s rights.
In Marshall, Coombes & Eren [1998] 2 Cr App R 282, the Court of Appeal ruled that selling on a used but unexpired tube ticket counts,
by virtue of s.6(1), as involving an intention permanently to deprive London Underground of the ticket – even though the ticket will
eventually find its way back to London Underground – since the seller is treating the thing as their own to dispose of (through sale)
regardless of the other’s rights. In DPP v Lavender [1994] Crim LR 297, the defendant removed some doors from a council property that
was due for demolition and then installed the doors in his girlfriend’s flat which was also owned by the council. D was charged with theft
of the doors. It was held that he did have the intention to permanently deprive under s.6(1) as, by installing the doors at another’s house,
D was treating the doors as if they were his own to dispose of regardless of the owner’s rights.
This provision has generally been interpreted rather restrictively. It does not cover, for example, the case of a person who ‘borrows’,
without the owner’s consent, a very valuable piece of jewellery, intending to return it at the end of their year-long holiday. The courts
have insisted that the defendant’s intention must be to exhaust the property’s usefulness, or sell or otherwise get rid of it – for example
by leaving it in a remote or private location (Lavender). In Lloyd [1985] QB 829, D worked as a projectionist at a cinema who allowed B
to take the films to make pirate copies and then return them. The Court of Appeal quashed D and B’s convictions on the ground that they
lacked the intention permanently to deprive the owner of the films, not having sought to dispose of the films, and that s.6(1) did not
cover the case of borrowing for a dishonest purpose, however damaging to the owner’s rights this may be.

Activity 12.15
Read Wilson, Section 14.2.B.1 ‘Intention to deprive the owner permanently of his property’ and answer the following question.
Jack Bilko, a golf professional, discovers that he has forgotten his golf balls when he arrives at the first tee of the Masters
Tournament at Augusta. While his playing partner, Duke Lonard, is not looking, Jack takes a box of balls from Duke’s golf bag
which he uses throughout the course of the round. At the end of the match he replaces all the balls in Duke’s bag. At the
beginning of the next round Duke discovers the box of balls and, concluding their condition is not good enough to play with,
opens another box of balls. If Jack were prosecuted for theft, would the prosecution be able to rely on s.6(1)?
Subsection 6(2) of the Theft Act 1968
By subs.6(2), A is deemed to have the intention to permanently deprive B of B’s property if A parts with property in A’s possession or
control under a condition, which A may not be able to perform. This is intended to cover the kind of case where someone who has
property belonging to someone else in their possession or control pawns that property to another.