Theft Act

According to the Theft Act 1968 (s.1) "A person is guilty of theft if he dishonestly (s.2) appropriates (s.3) property (s.4) belonging to another (s.5) with the intention of permanently depriving the other of it (s.6).”

The Actus Reus is defined as the act itself and is the Latin term for “guilty act.” In the case of the Theft Act 1968 (s.1), the Actus Reus element consists of “appropriates (s.3) property (s.4) belonging to another (s.5).” The Mens Rea element is the supposed intent or mind set of the individual, and is the Latin term for “guilty mind.” The Mens Rea In the case of the Theft Act 1968 (s.1) consists of dishonestly (s.2) and the intention of permanently depriving the other of it (s.6). If all elements of the Actus Reus and Mens Rea are not satisfied, a conviction of theft cannot be attained. Theft carries a maximum sentence of seven years in prison on indictment.

Appropriation (s.3) although sounds simple at first glance, in the sense of physically taking property from another. By definition it is important that the statute covers any possible outcome of appropriation. The wording is “… 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 an owner." This allows for a diverse range of acts of theft to be covered, someone borrowing a piece of property and selling it or deciding to keep it as their own for example. Although the appropriation happened with consent, the moment the property is sold or not returned on request by the owner, the perpetrator assumes the rights of ownership and theft will have occurred.

Property as described in the Theft Act 1968 (s.4) designates that “... property includes money and all other property, real or personal, including things in action and other intangible property.” Money includes notes and coins, and unless the perpetrator intends to give back the exact same coins and notes they “borrowed,” they would be guilty of having “…the intention of permanently depriving the other of it” as was the case in R v Velumyl (1989). Real property includes land and anything fixed to land including buildings and houses, however by grace of the Theft Act 1968 (s.4) “... land cannot be stolen unless; the defendant is a trustee, representative or has authorised power of attorney and deals with the property in breach of trust, where defendant is not in possession of the property but appropriates anything forming part of the land by severing or causing it to be severed, or where defendant is a tenant and appropriates the whole or part of any fixture.” “Things in action” pertains to a right obtained by taking legal action in regards to the debt attached to checks and bank accounts, or any other property which has no physical presence, but exists in the sense that it can be traded like a commodity. Examples of other intangible property would be copyrights, patents and trademarks however; confidential information is not included in this definition of property as was the case with Oxford v Moss (1979) and the Attorny-General for Hong Kong v Chan Nai-Keuung (1987).

The meaning of “belonging to another” according to the Theft Act 1968 (s.5) has been extended to “... Property shall be regarded as belonging to a person having possession or control of it, or having in it any proprietary right or interest ...” This means that property need not be owned by the person it is appropriated from, control or having a vested interest in is enough. R v Rurner (No.2) (1971) provides that, as long as the Mens Rea element of theft is present a person can steal their own property. Property cannot be stolen if it has no owner at the time of appropriation. The Act maintains that ownership still belongs to the person handing over the property and does not belong to the person who has possession or control of it “...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.”

Obtaining property by someone else’s mistake is still considered theft if the other is not notified, as is in the  Attorney-General's Reference (No 1 of 1983) ruling, omitting to act  under these circumstances is a dishonest appropriation. Section 5 of the Theft Act 1968 says “... 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.”

Dishonesty as is in the Theft Act 1968 (s.2) states, rather than what is defined as dishonesty, describes what it is not, therefore, “... a person’s appropriation of property belonging to another is not to be regarded as dishonest; if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person, if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it, or (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.” Dishonesty is the first part of the Mens Rea which needs to be proven in order for theft to have occurred. Also stated in Section 1.2 is that “... it is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit,” this means that if all elements of theft are present, the motive of the defendant is irrelevant, unless said act is a contradiction of Section 2 of the Theft Act 1968. 

In accordance with section 6 of the Theft Act 1968 ”…A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.” This part of the Act covers borrowing items, and extends the Act to include situations where the Mens Rea to permanently deprive is not present. For example, stealing a store card with the intention of using it to buy goods in said store, would still amount to a dishonest appropriation. The second part, “…Without prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other’s authority) amounts to treating the property as his own to dispose of regardless of the other’s rights” addresses situations which may arise when borrowed items are not returned, or where consent was not given. Long term borrowing does not equate to an appropriation R v Warner (1970).

According to the Theft Act 1968 (s.8) "A person is guilty of robbery if they steal and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force." As with the theft offence aforementioned, both Actus Reus and Mens Rea elements of robbery must be present, as well as the Actus Reus and Mens Rea of theft itself in order for a robbery to have occurred. In this sense, the act of robbery in law is the same as theft, with additional aggravating factors of threat or force being used against a person.

The Actus Reus for robbery consists of the Actus Reus and of theft, as well as three main elements; putting or seeking to put any person in fear of force, however as it was ruled in B and R v DPP 2007, the victim need not be afraid as “... it is the intention of the perpetrator rather than the fortitude of the victim” in question, the force must be immediately before or at the time of the theft and the force itself must be used in order to steal. The Mens Rea element would be the recklessness as to the use of force, as well as the Mens Rea for theft. Robbery carries a maximum sentence of life imprisonment and is an indictable offence triable at The Crown Court only, whereas theft is a triable-either-way offence and sentencing in both scenarios would depend on the circumstances and severity of the case.

The Theft Act 1968 (s.9) covers burglary and is divided into two separate offences. Although the two offenses are separate, there is considerable overlap between the two making it possible to commit a section 9 (1) (a) which is the slightly less serious of the two, and then go on to commit a section 9 (1) (b). According to section 9 (1) (a) a person is guilty of burglary if they enter any building or part of a building as a trespasser with the intent to; steal anything in the building or part of a building in question, inflict on any person therein any grievous bodily harm and of doing unlawful damage to the building or anything therein. Section 9 (1) (b) refers to the intended offences of theft, inflicting grievous bodily harm or criminal damage being successfully committed (or attempting to do so) upon entering said building or part of the building in question as a trespasser. 

The Actus Reus for burglary as in the the Theft Act 1968 (s.9) consists of the actual entry itself to the property in question knowingly as a trespasser, which had to be an effective entry as deemed by the Court of Appeals in R v Brown 1985, however this was later rebuffed in R v Ryan 1996, as well as the Actus Reus’ for theft, criminal damage, grievous bodily harm or attempts of, depending on the intricacies of the case. The Mens Rea element would be the defendants’ knowledge as to whether they were a trespasser and the recklessness of their unlawful entry as well as intending to commit theft, grievous bodily harm or criminal damage in the case of a Section 9 (1) (a), or as in the case of a Section 9 (1) (b), successfully committing the offences (or attempting to do so) of theft, criminal damage or grievous bodily harm once a Section 9 (1) (a) had occurred. The two separate acts allow for unsuccessful perpetrators to be brought to justice, as well as unforeseen or possibly unintended criminal acts to be punished.

In the case of Ellen v Frank, a theft has occurred. As soon as Ellen sold the DVD player she appropriated the property as her own and assumed ownership, which was not the owners original intention regardless as to the length of time the DVD player was in Ellen’s possession. As stated under Section 3 (1) of the Theft Act 1968 "… 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 an owner." An example of common law would be R v Pitham and Hehl 1977 as the rights of the owner also include the rights to sell. All elements of the Actus Reus and Mens Rea for theft are present.

In the case of Grace v Supermarket, appropriation first occurred with consent, as it is lawful to take grocery items from the shelf in a supermarket, as was Frank lending Ellen a DVD player. It was only when Grace left the supermarket with the intention of not paying did she “... dishonestly appropriate property belonging to another with the intention of permanently depriving the other of it.” It is usually the Mens Rea which defines an appropriation as a criminal offence, and in this case it would be difficult to deny Graces’ intentions as to hiding a bottle of sherry inside of her coat and leaving the supermarket without paying. As this is an act which an ordinary decent person would consider dishonest, and by these standards the defendant would have known what she was doing was dishonest, barring any mental illness or impairment, the Ghosh test is satisfied. All elements of the Actus Reus and Mens Rea for theft are present. In R v Morris, Anderton, Burnside (1984), Lord Roskill stated that “appropriation as any assumption of any right of an owner which amounted to adverse interference with, or usurpation of, those rights.” Grace assumed ownership when she stepped over the threshold of the supermarket without paying.

In the case of Ian, an appropriation has occurred without the consent of the property’s owner. In that sense, the Actus Reus exists for theft as well as the first part of the Mens Rea, Ian dishonestly appropriated property belonging to another as he did not have expressed permission. However, in accordance with Section 2 (1) (b) of the Theft Act 1968 “a person’s appropriation of property belonging to another is not to be regarded as dishonest if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it.” Therefore, the Mens Rea element is not satisfied as Ian had previously borrowed the umbrella and as the victim in this case was his friend, Ian believed “… that he would have the other’s consent if the other knew of the appropriation and the circumstances of it.” It would be argued that as it was raining, he believed his friend would not mind him borrowing the umbrella again. It would also be argued that he had no “... intention of permanently depriving the other of it.” No crime has been committed as long as the umbrella was returned in some working order. The case of R v Holden (1991) and R v Llyod, Bhuee and Ali (1985) both ruled not guilty of theft on similar grounds.

In the case of Peter v Mark, assuming Peter and Mark are friends, it could be that no crime has occurred as was the case with Ian previously how borrowing is not a crime. In R v Llyod, Bhuee and Ali (1985) Lord Lane stated that “... A mere borrowing is never enough to constitute the necessary guilty mind, unless the intention is to return the thing in such a state that it can be truly said that all the goodness or virtue had gone.” Although Mark may have dishonestly appropriated property belonging to another, the intention was never to permanently deprive. If Mark had taken the season pass only a week before he gave it back, it would be hard to argue that much value had been removed. Antithetically, if Mark took the season pass at the beginning of the season, only to return it two weeks before the end; it could be argued a majority of the practical value had gone and Peter could be entitled to seek some form compensation for his losses in a civil court. As a result of Mark returning the pass two weeks before the end of season, regardless as to the length of time it has been in his possession, using Lord Lanes’ definition of “all the goodness or virtue had gone ...” It would be argued that no theft had occurred because the season pass was returned with some practical value and there was no intention to permanently deprive.

Using Section 8 of the Theft Act 1968 and Section 1 of the Prevention of Crime Act 1953, which prohibits the possession in any public place of an offensive weapon without lawful authority or excuse punishable by up to four years in prison on indictment, the case of James v Karl is a fairly open and shut case of robbery and aggravated possession of a knife. The Actus Reus and Mens Rea for theft and robbery are all present as James threatened Karl with a knife to procure his wallet, the Mens Rea is further corroborated by the fact James had armed himself with a knife before he left his house with the intention of committing a robbery. The seriousness of the charge would take into consideration the culpability and harm caused and also James’ previous criminal record. Other elements such as the audience, circumstances and location of the crime would also be considered. As in Section 8 of the Theft Act 1968  "A person is guilty of robbery if they steal and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force." R v Macpherson (2009) would be used to support a conviction of robbery on indictment.

In the case of Mary v Peter, a theft has definitely occurred as all elements of Section 1 of the Theft Act 1968 are present. If Peter did not touch Mary at all, it could be said that no robbery had occurred as Peter did not “...steal and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force,” however, as was in R v Dawson (1976) any contact at the time of the theft will be regarded as force, in this instance this case would be treat as a robbery. It could be argued for the case to be treat as a theft from a person with an accompanying charge battery under Section 39 of the Criminal Justice Act (1988). It could also be argued again, but depending on prosecution or defence stand point that a robbery had occurred, in R v Hale (1978) when the court suggested that “the appropriation should be treat as a continuous act.” As the force had still been used in order to steal yet the timing is not as is worded in the legislation, a degree of common sense should be applied when deciding culpability. Ultimately, the decision would lie with the jury.

In the cases of Olivia v Nigel from the outset, it looks as though Nigel could be guilty of both; Section 9. 1. (a) and Section 9 1. (b) Of the Theft Act 1968. The original offence, Nigel’s entry with the intention of breaking Olivia’s legs is enough to constitute a Section 9. 1 (a) as “a person is guilty of burglary if they enter any building or part of a building as a trespasser with the intent to; steal anything in the building or part of a building in question, inflict on any person therein any grievous bodily harm and of doing unlawful damage to the building or anything therein” even though he was unsuccessful.

Once Nigel entered the property and stole Olivia’s television as an opportunist as she was not in, he satisfied the criteria for a Section 9. 1 (b) “successfully committing the offences (or attempting to do so) of theft or grievous bodily harm.” R v Edwards (1996) would be used to seek a conviction of burglary under Section 9 1. (b) Of the Theft Act 1968 with a sentence of a minimum of three years for a dwelling burglary, given the severity of the circumstances of Nigel’s initial intentions. The Mens Rea element when considering intent in this case for the purposes of this assignment has been assumed as being confirmed, which in reality would be very difficult to prove unless Nigel admitted it, or there was significant evidence to support this. Nigel could have easily denied his original intentions of grievous bodily harm and admitted the Section 9.1 (b) offence. Using the ‘red pencil test’ as was the case with Metropolitan Police Commissioner v Wilson (1984) where everything not proven is removed from the equation, there would be no corroboratory evidence to support a Section 9.1 (a). The Mens Rea element of any crime seems the most difficult to ascertain in many court cases, as it is purely subjective to the case; situation, circumstances and evidence as well as the arguments that are put forward for the jury on the day of trial.