Criminal Litigation

Theft | Criminal Law – SQE1 & SQE2 Examinations –

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Theft is an offence under s 1(1) Theft Act 1968 (TA 1968).
‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the
intention of permanently depriving the other of it’
1. Appropriation (TA 1968, s 3)
2. Property (TA 1968, s 4)
3. Belonging to another (TA 1968, s 5)
4. Dishonestly (TA 1968, s 2)
5. With intention to permanently deprive (TA 1968, s 6)
These elements must exist simultaneously.
The AR is appropriation of property belonging to another (s 1(1) TA 1968).
#1 Appropriation
• Under s 3(1) TA 1968, any assumption of the rights of an owner amounts
to appropriation.
• D need only assume one of the owner’s rights (R v Morris).
o D labels high-priced goods with low-priced labels + purchases for
lower price
o HELD: Only necessary to assume right to label goods
o No need for D to intend by the act of appropriation itself to deprive
V permanently of property
Consent and appropriation
• D can appropriate property even with the consent of the owner, as
appropriation is a neutral act; the state of mind of the owner is irrelevant
(R v Gomez).
o Gomez = assistant manager at electrical store
o Allowed co-accused to buy goods using stolen cheques
o Shop manager (owner) authorised transactions (i.e. gave consent)
on basis of false representation by Gomez
o CoA overruled by HoL – appropriation possible where there is
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Theft of gifts
• Following Gomez, it is possible for a gift to be theft
• R v Hinks – D convinced man of limited intelligence to withdraw £300/day
and give it to her = could be guilty of stealing a valid inter vivos gift
Later Appropriation
• Where MR not present on initial assumption of owner’s right, when D
does form necessary MR, s 3(1) TA 1968 applies: appropriation includes
later assumption of owner’s rights (e.g. keeping / dealing with it as
owner) (A-G’s Reference (No 1 of 1983))
The innocent purchaser
• TA 1968, s 3(2) – exempts D from liability for theft where:
o D purchases goods in good faith for value
o Later discovers that the seller had no title to property
o Decides to keep it
• Applied in R v Adams by CoA to quash conviction under s 3(1)
#2 Property
TA 1968, s 4
• S 4(1) – includes money and all other property, real or personal, including
things in action and other intangible property
o Oxford v Moss – confidential information does not fall within
definition of intangible property
• S 4(2) – Person cannot steal land or things forming part of land and
severed from it by him, except:
a) Breach of trust / fiduciary duty
b) Not in possession of land + appropriates anything forming part of
land by severing it
c) In possession of land under tenancy + appropriates fixture /
structure let to be used with land
• S 4(3) – picking wild mushroom, flowers, fruit or foliage ≠ theft, unless
for reward or sale
o Where X is not wild, s 4(3) does not apply and thus X constitutes
property which can be stolen under s 4(2)(b).
o Where X has already fallen from a tree, it cannot be picked so s
4(3) likely does not apply and it does not form part of the land, so s
4(2) does not apply. It can thus be stolen under s 4(1).
• S 4(4) – person cannot steal wild creatures (and their carcasses) not
tamed / ordinarily kept in captivity / reduced into possession
© Liam Porritt 2020 3
#3 Belonging to another
Under s 5(1) TA 1968, property belongs to another if any person has possession
or control of it, or has in it any proprietary right or interest.
Abandoned Property
• Abandoned property ceases to belong to another (Williams v Phillips)
o Householder does not abandon goods in dustbin, so dustman can
be guilty of theft if appropriates goods from dustbin with relevant
• Property is not abandoned merely because the owner has stopped
looking for it, per Hibbert v McKiernan. As Lord Goddard emphasises, the
issue is whether the owner seeks to retain the property, or is willing for it
to go to another party (here, the members did not wish the golf balls to go
to another party).
• Therefore, if X is of significant value, it is unlikely that the owner would be
willing for it to go to another party. However, if it is of low value, it is
more likely – where the original owner is unknown – that the courts will
infer abandonment, and there will be no theft.
Possession or control (TA 1968, s 5(1))
• Property can belong to persons who have possession or control of the
land on which property is found (even if owner of land unaware of
property’s existence) (R v Woodman).
o Per Woodman, where steps have been taken to exclude trespassers
(here factory fence), property will be the landowner’s.
o However, where insufficient steps are taken to demonstrate
intention to exercise control over the building and things in it, the
landowner will not be deemed to be in possession or control
(Parker v British Airways Board – mere control over which
categories of people enter is insufficient).
Stealing one’s own property
• It is possible to steal one’s own property where another is in possession /
control of the property (R v Turner (No 2))
o Car at mechanics taken with spare keys by owner after work on
car without paying bill = theft of car
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Property given to another for a particular purpose
• Here there is an issue that the title of property passes to D before the
formation of any dishonest intent and thus there appears to be no
coincidence of AR and MR.
• When D later forms a dishonest intent, D has legal title to the property, so
it does not prima facie belong to another.
• However, under s 5(3) TA 1968, for the purposes of Act, where property
is received under an obligation to deal with property or its proceeds
in a particular way, the property or proceeds are regarded as belonging
to the other.
• However, per R v Breaks and Huggan, s 5(3) TA 1968 does not have
automatic application:
o It must be sufficiently clear that the money is only to be dealt with
in a particular way.
o Particular arrangements should be made with D, such that…
o D was under a legal obligation to deal with the property in a
particular way.
• Obligations can be imposed upon domestic or social arrangemets
(Davidge v Bunnett).
• The obligation need not require dealing with actual property; can be
obligation to deal with proceeds in a particular way (R v Wain).
Apply with reference to cases:
• R v Hall
o Money given to travel agent by customers for tickets, which is used
to pay off creditor; agent subsequently went bust
o Here, money was expected to go towards general running of
business, with tickets given in return ≠ s 5(3) TA 1968
• Davidge v Bunnett
o D shared flat + bills
o D received cheques towards cost of gas bill
o D cashed cheques and used them to buy Xmas presents
o = Theft, as legal obligation to apply proceeds of cheques to
payment of gas bill
© Liam Porritt 2020 5
• R v Klineberg and Marsden
o Money taken for timeshares + purchasers told by K and M that
money would be paid to a stake-holding trust company to be held
on trust until completion of development
o Money paid into company account, rather than trust company
o Customers paid money under assurance that money would be used
for particular purpose (i.e. trust)
o Obligation to deal with property in the particular way = money
belonged to customers
• R v Wain
o D raised money for charity
o Paid money into separate bank account, then to personal bank
account, w/ consent of charity
o Gave charity cheques which bounced, due to withdrawing money
from account for own use
o = Theft, as money + proceeds of money (i.e. bank balance) for
purpose of charity and therefore money belonged to another (s
Property obtained by another’s mistake
S 5(4) TA 1968
• Here there is an issue that the title of property passes to D before the
formation of any dishonest intent and thus there appears to be no
coincidence of AR and MR.
• When D later forms a dishonest intent, D has legal title of the property
obtained by another’s mistake, so it does not prima facie belong to
• A legal obligation to restore money that is received by mistake is imposed
from the moment D is aware the mistake has been made (A-G’s Reference
(No 1 of 1983)).
• Under s 5(4) TA, where a person recieves property by another’s mistake,
and is under an obligation to make restoration due to knowledge of the
mistake, the property and its proceeds shall be regarded as belonging to
the person entitled to restoration.
• An alternative analysis of trust law reaches the same conclusion: the
person who gives property by mistake retains an equitable interest
(Chase Manhattan Bank v Israel-British Bank).
• This property thus, owing to their interest, belongs to another, per the s
5(1) definition, and as imposed in the criminal case of R v ShadrockhCigari.
© Liam Porritt 2020 6
The MR is dishonest intent to permanently deprive (s 1(1) TA 1968).
[Willingness to pay
• S 2(2) TA 1968 – person can appropriate dishonestly where willing to pay
but owner does not wish to sell]
S 2 TA 1968 – situations where appropriation not dishonest
D may be able to argue that, under s 2(1)(X), he is not dishonest, as he…
• S 2(1)(a) – believed he had the right to deprive [the other] of [the
• S 2(1)(b) – believed [the person to whom the property belongs] would
have consented had he known of the appropriation and its circumstances
• S 2(1)(c) – believed that [the person to whom the property belongs] could
not be discovered by taking reasonable steps
o There is no need for him to take reasonable steps, only to believe
that such steps will not enable him to find the owner
o If owner becomes known after initial belief that impossible to
locate, keeping the property may be theft through later
appropriation (s 3(1) TA 1968)
• D’s belief need not be reasonably held; it need only be genuine (R v
Test for dishonesty
Ivey v Genting Casinos
• The test for dishonesty comes from the obiter comments of Lord Hughes
in Ivey v Genting Casinos.
• Although obiter and courts being bound by R v Ghosh as a matter of strict
precedent, R v Gould makes clear that doctrine of precedent is less rigid in
criminal than civil jurisdiction, and thus Ivey may be followed, per DPP v
Patterson and R v Pabon.
1. X’s subjective knowledge and belief appears to have been…
2. Objectively, given that knowledge and those beliefs, D is likely / unlikely
to be deemed dishonest by the standards of ordinary decent people. Why?
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Dishonest intent must be formed at time when goods belong to another
• No theft if formation of dishonest intent after ownership passes to D
(subject to s 3(1), s 5(3) and s 5(4)) (Edwards v Ddin)
• Property passes when parties intend it to pass
o When paid for usually
o When eaten for food (Corcoran v Whent)
o When put in tank for petrol
• S 3 TA 1978 = making off without payment (e.g. where eat meal and
decide not to pay at end of meal)
© Liam Porritt 2020 8
Intention to permanently deprive
• .. is given its normal everyday meaning (R v Lloyd)
o NB s 6 TA 1968 not referred to where it is clear that D does intend
the owner to lose his property permanently
S 6(1) TA 1968
• As D does not intend [owner] to permanently lose the property we
consider whether he may be considered as intending to treat the thing
as his own to dispose of regardless of the other’s rights, under s 6(1)
TA 1968 (R v Vinall – no need for actual disposal / intention to dispose in
a particular way)
• Per R v Cahill, the dictionary definition of ‘dispose’ may be applied: ‘to
get rid of’ or ‘to sell’.
o Taking newspapers believing them to be rubbish to be left on a
friend’s doorstep as a practical joke ≠ theft, as not getting rid of or
• S 6(1) covers cases where:
o D selling things taken back to owner (R v Scott)
§ Here, stealing to return the following day and claim refund
o ‘Ransom cases’ where D will only return property on fulfillment of
a condition (R v Raphael; R v Waters)
§ Raphael – demanding money for return of cars
§ Waters – friend steals mobile phone and tells V will not
return it until Dale comes to talk to them; HELD: if
condition can be readily fulfilled, jury may find no intention
to permanently deprive
o Property rendered useless (DPP v J)
§ Snapping headphones and then returning = theft, as acts
show intention to treat headphones as his own to dispose of
regardless of owner’s rights
© Liam Porritt 2020 9
Intending to treat it in a manner which risks its loss
• R v Fernandes makes clear that intending to treat property in a manner
which risks its loss amounts to treating the thing as one’s own to dispose
of under s 6(1). Express mention in s 6(1) of borrowing and lending is
merely by way of example and non-exhaustive.
o Solicitor who transferred money out of clients’ accounts + invested
in a risky money-lending business ~ money lost
• However, per R v Mitchell, ‘disposal’ requires more than mere ‘dealing
o Here, D was charged with robbery, but the CoA found that taking a
car by force to escape the police and leaving it abandoned did not
amount to disposal nor dealing with the car risking loss.
Where borrowing/lending is equivalent to an outright disposal
• R v Lloyd establishes that borrowing/lending property can amount to an
intention to treat property as one’s own to dispose of regardless of other’s
rights (s 6(1) TA), where borrowing is equivalent to an outright
disposal (R v Lloyd)
o Projectionist borrowed films, copied to videotape, sold videotapes
and returned original film for next show ≠ ITPD
• Per R v Beecham, this requires that the thing is returned in such a changed
state that all its goodness, virtue and practical value has gone
o Stealing railway tickets with intention to return after journeys
TA 1968, s 6(2)
• Under s 6(2), parting with property under a condition as to its return,
which D may not be able to perform is equivalent to treating property as
one’s own to dispose of regardless of other’s rights
o E.g. pawning / using property as security
Interchangeable property
• Courts disregard intention to replace with equivalent property (R v
o D borrowed money from employer’s safe, intending to repay it on
following day after a debt repaid to him
o This may be relevant to dishonesty but does not negative intention
to permanently deprive owner of original notes and coins
• Velumyl issue = ITPD
• Wain issue = whether property can be said to belong to another under TA 1968, s 5(3)
when D has legal title and it is for a specified purpose


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