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The Offence of Theft

What is Theft?

We all know what a theft is but the legal definition may surprise you.
Theft is defined by the Theft Act 1968 s1 as:
  • Dishonestly
  • Appropriates
  • Property
  • Belonging to another
  • With the intention to permanently deprive.

The Crown Prosecution Service must prove each element of the offence in order for a person to be found guilty of theft.

So what does each element of Theft mean?

The section of the Act goes on to explain each element that needs to be proved:

DISHONESTLY

s2 Theft Act 1968 defines dishonesty, although case law has defined it further.

s2 of the Act states that there is no dishonesty if a person believes:
  • They would have a legal right to take the property for themselves; or
  • The owner would consent to them taking it if they knew; or
  • If they cannot find the person the property belongs to by taking reasonable steps to do so.

But caselaw then goes on to define dishonestly further.

For many years the case of R v Ghosh [1982] EWCA Crim 2 established a two-stage test to prove dishonesty:

  1. According to the ordinary standards of reasonable and honest people, was what was done dishonest?
  2. If it was dishonest by those standards, did the defendant realise that reasonable and honest people would regard the conduct as dishonest?

But, much to the excitement of criminal practitioners, in 2018 the Supreme Court set out a new test:

Ivey v Genting Casinos [2018] AC 391:

…the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

The new test is from a civil case but the Divisional Court adopted it as the correct approach.

APPROPRIATES

s3 of the Act defines appropriation as assuming the rights of the legal owner of the property without consent. It can include where permission was originally granted, for example, taking a car for a test drive from a garage but not returning it.

PROPERTY

s4 defines property. It includes money and all other property, real or personal, including things in action and other intangible property. There are further limitations on property contained in the Act.

BELONGING TO ANOTHER

s5 sets out ‘belonging to another’ and where property belongs to another if that person has possession or control of it. An example would be, the legal owner giving permission to a friend to use their camera for the weekend and it is stolen by someone else – belonging to another is still made out.

WITH THE INTENTION TO PERMANENTLY DEPRIVE

This is contained in s6 of the Theft Act 1968 and is not as straightforward as it may sound. Treating the thing as his own would amount to a theft. So, for example, if a legal owner gave a friend a camera to use for a weekend and then the friend forgot to return it, and despite the owner’s requests for it to be returned the friend still kept it, that would amount to a theft.

There are many other offences contained within the Theft Act 1968 such as Robbery or Burglary, as well as other dishonesty offences such as Fraud, which can overlap with theft.

These offences can be complicated and if you find yourself accused you should seek independent legal advice. Our solicitors regularly represent clients at the police station and court for offences ranging from shoplifting to complex frauds.

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