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Exam Notes for Criminal Law B
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08 DISHONESTY OFFENCESTheft
1. Legislative framework (Theft Act 1968 s 1)
(1) A person is guilty of theft if he dishonestly appropriates property belonging to another
with the intention of permanently depriving the other of it; & “thief” & “steal” shall be
construed accordingly
(2) It is immaterial whether the appropriation is made with a view to gain, / is made for the
thief’s own benefit
Max penalty: 7 years
Theft: Actus reus
2. Appropriation
TA 1968 s 3(1): Any assumption by a person of the rights of an owner amounts to an
appropriation, & this includes, where he has come by the property (innocently / not) without
stealing it, any later assumption of a right to it by keeping / dealing with it as owner
TA 1968 s 3(2): Where property / a right / interest in property is / purports to be transferred
for value to a person acting in good faith, no later assumption by him of rights which he
believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount
to theft of the property
While this provides some protection from liability for theft for a bona fide transferee
for value, if his title is defective he may commit other offences
Broad approach (1): Assumption of any right
The assumption by D of any of the rights of an owner can amount to an appropriation
(Morris – The right to price assumed Endorsed in Gomez (HL))
Extends the scope of the offence so that D’s acts, which might naturally be regarded
as mere preparation / attempts because they involve the assumption of a single right,
constitute the AR of the full offence
Broad approach (2): Appropriation with consent
2 contrary views:
There may be an appropriation even where the owner has consented to the
property being taken (Lawrence)
The concept of appropriation involves not an act expressly / impliedly
authorised by the owner but an act by way of adverse interference with /
usurpation of those rights (obiter in Morris)
Current law prefers Lawrence over Morris: The word “appropriation” is regarded in
isolation as being an objective description of the act done irrespective of the mental
state of either the owner / D (Gomez)
Broad approach (3): Transfer of title to D
An indefeasible gift of property can nevertheless amount to an appropriation as the
owner’s consent is immaterial (Hinks Applied Gomez)
Criticised for its conflict between the concept of property rights in civil law &
criminal law: In civil law, one who obtains property by way of gift becomes the
owner of the property which now belongs to him
Morris (the accepted parts), Gomez & Hinks taken together establish:
An appropriation involves the assumption of any of the rights of the owner
An appropriation is no less an appropriation for having been consented to; An
appropriation does not require adverse interference with the owner’s rights
An appropriation can occur regardless of the transfer of an indefeasible title
Appropriation cannot take place more than once (Atakpu)
3. Property
, TA 1968 s 4(1): “Property” includes money & all other property, real / personal, including
things in action & other intangible property
TA 1968 s 4(2)-(4): All property may be stolen subject to certain exceptions in relation to
land, things growing wild & wild creatures
Anything that is property in civil law can prima facie be stolen, even property that is an
offence to possess (Smith – D stole heroin illegally possessed by V)
Things in action: e.g. bank account / overdraft facility (Kohn)
Not property:
Electricity (Low v Blease) Dealt with under TA 1968 s 13
Services
Confidential information (Oxford v Moss – Exam paper)
Corpses, body parts & fluids
Exception: Where work has been done on the thing (Kelly and Lindsay –
Preserved corpse, applied with lawful skill)
4. Belonging to another
TA 1968 s 5(1): Property shall be regarded as belonging to any person having possession /
control of it, / having in it any proprietary right / interest (not being an equitable interest
arising only from an agreement to transfer / grant an interest)
Even property that is free / appears to have been abandoned is likely to belong to someone
(Mejia and Serrano – Free newspapers; Woodman – Scrap metal from a disused factory
site)
On a literal reading, D (the owner) can steal from V who has possession / even mere control
over the property (Turner (No. 2) – CA held that the garage had sufficient control over D’s
car & so D was guilty of stealing his own car; Cf Meredith: )
Proprietary rights & interests
May be divided between different parties & so a co-owner can steal shared property
from another owner (Bonner)
A company is an independent legal entity & so directors can steal from their own
company (A-G’s Reference (No 2 of 1982))
TA 1968 s 5(2): Trust property belongs to anyone with a right to enforce the trust
Exceptions:
TA 1968 s 5(3): If D receives property from / on account of another & D is under a
(legal) obligation to retain & deal with it / its proceeds in a particular way, it is
regarded as belonging to the other (Hall; Wain)
TA 1968 s 5(4): If D gets property by another’s mistake & D is under a (legal)
obligation to make restoration of it / its proceeds, it is regarded as belonging to the
person entitled to restoration, & an intention not to make restoration shall be
regarded accordingly as an intention to deprive that person of it / its proceeds
“Chase Manhattan” principle (A-G’s Reference (No 1 of 1983) Reversing Moynes
v Cooper)
Theft: Mens rea
5. Dishonestly (TA 1968 s 2)
Not dishonest:
TA 1968 s 2(1)(a): 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 / of a 3rd person
The belief is to be judged subjectively Allows a genuine mistake of civil law
to operate in D’s favour
TA 1968 s 2(1)(b): If he appropriates the property in the belief that he would have the
other’s consent if the other knew of the appropriation & the circumstances of it
The belief is to be judged subjectively D is protected even if he is mistaken
about whether consent would have been given
TA 1968 s 2(1)(c): (Except where the property came to him as trustee / 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
, Objective element of “reasonable steps” It cannot be for D alone to judge
what steps are reasonable
May be dishonest:
TA 1968 s 2(2): A person’s appropriation of property belonging to another may be
dishonest notwithstanding that he is willing to pay for the property
Test: Ivey v Genting Casinos (SC 2017) Rejected the long-standing test in Ghosh
Ghosh
Test: Two-staged direction
o (1) Objective: Was what D did dishonest by the ordinary standards of
reasonable & honest people?
o (2) Subjective: Did D realise that what he did was dishonest by those
standards?
Problems with the Ghosh test
o By couching the 1st limb without reference to D’s state of mind, the jury
is not applying its own standards to the right facts What is
objectively judged is the standard of behaviour, given any known
actual state of mind of the actor as to the facts (Ivey)
o Applied literally the 2nd limb produces what some called the “Robin
Hood” effect: The less D’s standards conform to what society in
general expects, the less likely he is to be held criminally responsible
for his behaviour (Ivey) Surely D should not be able to subvert the
standard of honesty in this way
Ivey
Facts: D used a technique called “edge sorting” to give himself a competitive
advantage when playing a casino card game of chance As a result, D was
able to increase his odds of winning & won £7.7m
Test: Two-staged test (Lord Hughes)
o (1) Subjective: What was D’s knowledge / belief as to the facts?
o (2) Objective: Was D’s conduct dishonest applying the standards of
ordinary decent people?
o No requirement that D must appreciate that what he has done is, by
those standards, dishonest
Problems with the Ivey test
o It is a civil law case However, CA in Pabon made it clear that the
Ghosh test would not be applied today, & so presumably Ivey applies
o Agrees with Ghosh that the jury sets the standard for dishonesty
May lead to inconsistent verdicts
6. Intention to permanently deprive
May be understood (a) in its normal sense of intending V to lose the property / (b) in the
sense of the additional “substituted intention” provided by TA 1968 s 6
Intent may be conditional (A-G’s References (Nos 1 & 2 of 1979) – No defence that D
intended to steal only if he found something worth stealing)
Primary / Direct intent
Excludes borrowing, even if dishonest, if it is intended only to be temporary (Warner)
Substituted intent (TA 1968 s 6)
(1) 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; & a borrowing / lending of it
may amount to so treating it if, but only if, the borrowing / lending is for a period & in
circumstances making it equivalent to an outright taking / disposal
“To dispose of”: Involves treating property as though he had the right to
alienate, not merely to use (Marshall)
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