This chapter includes:
- What is Theft?
- Rights of Ownership
- Appropriation and a Positive Act
- Appropriation and Bank Transfers
- Retaining a Wrongful Credit
- Forged Cheques of Appropriation
- Trusts/Personal Representative
- Wild Creatures
- Proprietary Right or Interest
- Belief in Consent
- Dishonesty the Ghosh Test
- Borrowing or Lending
- Conditional Intent
What is Theft?
A person is regarded as being guilty of theft if he dishonestly appropriates property belonging to another with the intention to permanently deprive the other of it.
Penalty for Theft
he penalty is a maximum of seven years imprisonment.
Actus Reus of Appropriation
- Any assumption of the rights of an owner amounts to an appropriation
- This includes where they have come by the property (innocently or not).
- Any later assumption of a right by keeping or dealing with the property as owner is appropriation.
- No reference is made as to whether an assumption of ownership can be applied with the consent of the owner.
Rights of Ownership
If the property is your own, then you have the right to:
- Give away or
- Sell the property
Rights of Ownership with regards to Appropriation
- An assumption of a single right is enough to appropriate for example taking possession or control of the property.
- Therefore, acts that might otherwise be preparatory or an attempt will be included.
Appropriation and Consent
- While the word consent does not appear in the definition of appropriation there can be an appropriation where the owner consents to the removal of their property.
- If the owner has been persuaded to part with the property by fraud or a false representation, then the crime would have been committed.
- In theory once you assume possession or control over somebody else’s property, even with their consent, dishonestly intending to deprive them of it in the future.
- A later change of heart makes no difference.
Borrowing a library book with the consent of the library and taking it home would not amount to an appropriation. Failing to return the book would. If accompanied by dishonesty and intention to permanently deprive, the appropriation would then become theft.
At the point when petrol is being put into a person tank it stills belongs to another therefore the petrol has been stolen even before the person drives away. However, if the individual intended to pay for the petrol whilst filling up the tank but changes their mind afterwards, the appropriation does not become dishonest until the change of mind.
Dishonesty and a Valid Gift
If an individual dishonesty acquires ownership of the property belonging to another by way of a valid gift, they will then have appropriated and stolen the gift.
- If the individual was in possession of the property by consent but with a view to a later non-consensual appropriation, this would be an act preparatory to theft which might constitute an attempt.
Appropriation and a Positive Act
- There must be a physical act, rather than a remote action, before there can be an appropriation.
Appropriation and Bank Transfers
- If the victim causes the transfer, there is no appropriation at that point. However, once the money enters the account there is then both an appropriation and theft.
- Please note this only occurs by fraud or false representation.
Bona Fide Purchases
- Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by their rights which they believed themselves to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.
- Even if the purchaser later discovers the defect in title, they did not commit theft by keeping or dealing with the property.
- If after discovering the defect, they sells the property by falsely representing that they are the owner, this is an offence.
- Property includes money and all other property, real or personal, including things in action and other intangible property.
- Virtually all tangible items are within the definition of property therefore can be stolen.
- Intangible property can be owned even though they lack a physical existence such as debt, shares, trademarks and copyright.
Property of Bank Accounts
- If a third party, makes an unauthorised withdrawal from your account, and causes your balance or agreed overdraft to be reduced, they assumed the right of ownership over the debt your banks owes you. They have appropriated the property at that point.
If you have £55 in your account and a third party withdraws £100 from the account, he will only have appropriated the debt owed to you by the bank of £55. This is because the outstanding £45 was not yours as the bank did not owe that amount to you. Therefore, you have no right to it and the third party cannot appropriate it.
Sarah pays a rogue carpenter and pays David in advanced via cheque. David only finishes half the work and pays the cheque into his bank account. The cheque is then transferred to Sarah’s account for payment and her credit balance is reduced. David has appropriated Sarah’s credit balance.
Retaining a Wrongful Credit
This is where money has been wrongfully credited to a bank account. A credit is considered wrongful if it comes from:
- Stolen goods or
The defendant must also know or believe that the credit was wrongful and dishonestly fail to take reasonable steps to secure the cancelation of the credit.
Charles applies to five building societies for loans to be secured by mortgages, Charles conceals that he has made five applications. Altogether he obtains £100,000 by electronic automated payments and telegraphic transfers. Charles intends to run off with the money. As a result he has committed fraud.
Forged Cheques of Appropriation
- If a forged cheque is presented for payment or money is transferred, and although the intended victim of theft is the account holder, a forged cheque is void.
- Ultimately it is the bank which suffers the loss if it debits a customer’s account as the account holder. It is usually reimbursed.
Tickets and Cheques of Appropriation
- A ticket has both an economic and a practical value as it holds a contractual right to travel.
- A purchaser who is then deprived of their ticket will also be deprived of their right to travel.
- However, if you give away your ticket, you retain no right to the ticket.
- A person deprived of a cheque will lose the check itself and the value that it represents.
Electricity of Appropriation
Donovan breaks into Polly’s house and uses her telephone to make a call. Donovan cannot be convicted of burglary as electricity cannot be appropriated.
Land of Appropriation
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:
- When they are the 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; or
- When they are not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed; or
- When being in possession of the land under a tenancy, they appropriate the whole or part of any fixture or structure let to be used with the land
Mary’s neighbour moves her boundary fence during the night decreasing her premises by two metres. While her neighbour did not steal the land, Mary will need to resort to a civil action in trespass to enforce her right of ownership.
- Land can be stolen by trustees or personal representatives appoint by a will.
- This is where they dispose of the land, structure or fixtures other than in a way authorised by the relevant trust deed or will in breach of confidence.
Severing/Fixtures for Non-Occupiers
- This applies to non-occupiers of the land.
- While land cannot be stolen, things on land can be stole by people not in possession but only by severing but is it was severed. This applies to
- Fixtures (items fixed to the land such as bricks, roof slates, cupboards, glass, greenhouses, sheds, fireplaces, plumbing, boilers, radiators etc)
- Growing items (trees, plants) and substance of the land such as gravel, turf and clay
Severing/Fixtures for Occupiers
- This applies to tenants in possession.
- A tenant that is in possession can steal fixtures/fittings or structure but cannot steal the land or a dwelling of which they are in possession.
- If the tenant steals something that is not fixed to the structure such as a painting or washing machine, then that will be theft under the general rule.
Wild Fruit and Flowers
A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not constitute as steal. Unless he does it for reward or for sale or other commercial purpose
- Mushrooms includes any fungus
- Plants include any shrub or tree
While 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 has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned.
Wild animals that can be stolen are:
- Those tamed or ordinarily kept in captivity (zoos, cages, hives, ponds at home);
- Those reduced into and remaining in possession of another person or are in the course of being put into possession.
Wild animals that cannot be stolen are:
- Wild animals that are free and not in anyone’s possession will not be stolen.
Belonging to Another
Property shall be regarded as belonging to any person having possession or control of it, or having it in any proprietary right or interest, whether it be a right of ownership, possession or equitable right (subject to exceptions).
- Although you can only steal property that belongs to another, the owner do not need to own it provided that they have some legal interest in the property.
- Most of the time it is clear when an individual has appropriated something belonging to somebody else to which he has absolutely no legal right at all.
Possession or Control
- You can steal something from anyone who has a mere possession or control of the property provided all other elements of theft can be proven.
- To possess means physical control and an intention to possess.
- To control means simply physical control.
- Drugs cannot be stolen because they are unlawful and therefore do not belong to anyone.
- Abandoned items generally do not belong to anyone and cannot therefore be stolen.
- The qualification concerns whether or not the owner intended to abandon the property.
- If the owner demonstrates an intention to exclude others from the items in question they are not abandoned.
- Leaving property on premises and forgetting about them is not abandonment, neither is losing things.
- If property is found on private or public property, the owner or possessor of the land is entitled to possession provided there is evidence of an intention to possess or control the land and anything on it.
Using a metal detector and digging for antique jewellery in a public park is theft.
Proprietary Right or Interest
- Whether a victim retains a proprietary right or interest in property can be determined by the definition of ownership, possession or equitable rights.
- Under contract law, it is the matter of intention as to when ownership will pass from seller to purchaser. This is often upon payment.
Proprietary Right and Mistake
- When property is acquired under a mistake, the court will decide whether or not the individual stole property belonging to another.
- A seller’s intention to transfer ownership of goods may be completely negated where the mistake is fundamental. This means no title will pass at all if the property is stolen.
- If the mistake is not fundamental the contract will become voidable meaning the ownership can pass to the buyer until the seller takes steps to end the contract. The seller will become the owner of the property and therefore the property will not be regarded as stolen.
Trust Property-Equitable Rights
- A trust is an equitable concept whereby property is placed under the control of a trustee/s subject to certain conditions for the benefit of the beneficiary/ies.
- Trustees have a legal interest and beneficiaries have an equitable interest in trust property.
- A constructive trust operates in the interests of conscience and justice irrespective of the express or presumed intentions of the parties.
- A court may consider property is to be held by someone of a particular status such as an employee, under a constructive trust which will benefit the employer.
- If the employee decides to permanently deprive the employer of the property, it is stealing.
- Where property is subject to a trust, the person to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive the property of any person having such right.
Property received on account
- Where a person receives property from another, and is under an obligation to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded as belonging to the other.
- Applies to those holding money for another under an obligation to deal with it in a particular way. Example; estate agents, solicitors, stockbrokers.
- There must be a legal rather than a moral obligation to retain or deal with property.
Jodie pays her estate agent £300 by way of deposit for work. Therefore, her agent becomes the owner of the money, subject to Jodie’s instruction while still retaining an equitable interest in the amount. If the estate agent then decides to dishonestly appropriate the money it will be considered theft.
Property obtained of another by mistake
- If a person gets property of another by mistake, and they restored it or its proceeds they are entitled for the amount they spent on restoration.
The appropriation of property belonging to another must be proven to be dishonest and accompanied by an intention to permanently deprive. There must be proof of both elements of mens rea and all three elements of the actus reus.
- The issue is often left to the jury to decide as a question of fact.
- The jury are free to apply their common sense to the issue.
Belief in Right
- An individual’s conduct will not be dishonest if they have any of the three specified beliefs.
- Each belief operates as a defence to an allegation of theft.
- They may state that they were not dishonest according to the Act however, a person may be dishonest aside from the intention to pay.
Belief in Right
- A person’s appropriation of property belonging to another is not to be regarded as dishonest if they appropriate the property in the belief that they had the legal right to deprive the other of it. This is otherwise known as a ‘claim to right’ defence.
‘Claim to Right’ Defence
- The belief must be honest but need be neither correct nor reasonable.
- If the person is ignorant of the law and honestly believes that they are legally entitled to a property, when under contractual principles they are not. In this case they do not have the mens rea of theft.
Legal or Moral Right
Freya’s uncle promises her that when he dies he is going to leave her his Rolex watch. After Freya’s uncle dies she discovered that in his will the watch was in fact left to his son. Freya decides to take the watch in belief that it ought to be hers. In this instance Freya did not honestly assert a belief in her legal right and therefore the defence does not apply.
Belief in Consent
- A person’s appropriation of property is not to be regarded as dishonest if they appropriate the property in the belief that they would have the owner’s consent.
- The belief must be honest and genuine but not reasonable.
- The circumstances of a person’s relationship and conduct towards the owner of the property may or may not provide a basis for genuine belief.
Tony needs money urgently but is overdrawn at the bank. Tony happens to know Mike his brothers debit card pin number and takes his card whilst he is out to withdraw £50 from a machine. Tony intends to repay Mike later and therefore believes that his brother would not mind.
Whether Tony will have a defence that he was not acting dishonesty will depend on how genuine his belief was.
- A person’s appropriation may be dishonest aside from that they are willing to pay for the property.
- It is for the jury to decide if the belief is genuine.
Belief that the Property is Lost
- A person’s appropriation of property is not to be regarded as dishonest if they appropriate the property in the belief that after taking reasonable steps the owner of the property cannot be discovered.
Harry start rummaging through the lost property office at work and discovers a valuable object to which he believes has no legal right. This can be regarded as stolen even though the owner is unknown. Harry must take all reasonable steps, within his power, to locate the owner.
- Where ownership is virtually impossible to trace, appropriating that property would not be regarded as theft. Reasonable steps are subjective to the circumstance the lost property is in. For example, finding £10 in a public area is different from finding a bag outside a school where ownership could be easily ascertained.
Dishonesty the Ghosh Test
- The jury will be directed to the Ghosh test if a person raises a defence that they did not believe what they did was dishonest according to the ordinary standard.
Intention to Permanently Deprive Another of Property
- This is known as the second element of mens rea.
- the defendant must be dishonest in appropriating a property belonging to another and must intend to permanently deprive the owner from the property.
- While the deprivation may have only been temporary, the intention to permanently deprive must be satisfied.
Abandonment with Intent to Permanently Deprive
- Abandonment of property is not inconsistent with an intention to permanently deprive
Francis steals car and abandons it 20 miles away, it is likely that the victim will recover their car because of the registration of car ownership is traceable. In this instance, there will be no inference of intention.
Taking an Unauthorised Conveyance
- A person shall be guilty if, without the consent of the owner or other lawful authority, he takes any conveyance for his own or another, knowing that any conveyance has been taken without such consent.
“To Treat the Thing as His Own to Dispose of”
- Where it is intended that the property taken should find its way back to the owner
Ollie has his car stolen my Stacey and Natasha. Stacey and Natasha offer to give him this car back but only if he pays them £1000. An intention to permanently deprive is still deemed to arise in these circumstances.
Borrowing or Lending
- Borrowing an item signifies an intention to return.
- Mere borrowing is never enough to constitute a guilty mind unless the intention to return the property in such a altered state that all the goodness or virtue has gone.
Caitlin borrowed Holly’s bike and legitimately forgot to return the bike. Caitlin has no intention to permanently deprive at the time.
Borrowing and the Value Price
Gabi takes Johns Card which contains £10 credit. Gabi uses £7.50 during her journeys and returns the card to John. Even though Johns card is not lost most of the value if the essential quality of the property is lost, an intention to permanently deprive will not arise.
Disposal of Property Held under a Condition
- A person, having possession or control (lawfully or not) of property belonging to another, and part of the property is under a condition for it to be returned, which he may not be able to perform. This amounts to treating the property as his own to dispose of regardless of other’s rights.
Lola has possession or control of Graces property. Lola parts with the property under a condition as to its return. This amounts to treating property as his own to dispose of regardless of Graces rights.
- When a person looks for an item of property in order to see whether it is worth stealing but decides not to do anything further. This is a conditional intent to steal which is insufficient for theft.
While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.