Theft (AQA A-Level Law): Revision Notes
Theft
Overview of property offences
This revision note covers the offence of theft under s 1 of the Theft Act 1968. Property offences form an important part of criminal law, and theft is one of the most commonly prosecuted offences. The Theft Act 1968 was a consolidating Act, meaning it brought together many separate theft-related offences that previously existed under different laws into one unified statute. Section 1(1) introduced a single 'catch-all' definition of theft that applies to various scenarios involving the dishonest taking of property.
The Theft Act 1968 represented a major reform of property offences in English law. Before this Act, theft-related offences were scattered across multiple statutes dating back centuries. The consolidation made the law clearer and more accessible, though judicial interpretation has continued to shape its application over the past 50+ years.
Definition of theft
Under s 1(1) of the Theft Act 1968, theft is defined as:
A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.
This definition contains five key elements that must all be present for a theft conviction:
- Appropriation (explained in s 3)
- Property (explained in s 4)
- Belonging to another (explained in s 5)
- Dishonestly (explained in s 2)
- Intention of permanently depriving (explained in s 6)
The first three elements make up the actus reus (the guilty act), while the last two form the mens rea (the guilty mind). Sections 2-6 of the Theft Act provide detailed interpretation of these elements.
All five elements must be proved beyond reasonable doubt for a theft conviction. If the prosecution fails to establish even one element, the defendant must be acquitted of theft (though other offences may apply). This means you must work through each element systematically in problem questions.
Actus reus of theft
The actus reus of theft requires proof of three components: appropriation of property belonging to another. Each element must be established for the defendant to be convicted.
Appropriation (s 3)
S 3(1) of the Theft Act 1968 defines appropriation as any assumption by a person of the rights of an owner. This includes situations where someone has come into possession of property (whether innocently or not) and later assumes rights over it by keeping it or dealing with it as if they were the owner.
The definition of appropriation is deliberately very wide and does not require any 'adverse interference' with the owner's rights. Importantly, appropriation can occur even where the owner has consented to the taking of the property. This principle was established in two landmark cases:
Leading Case: Lawrence v MPC (1972)
Facts: A taxi driver took £7 from an Italian tourist's wallet for a £1 fare. The victim had held his wallet open, effectively consenting to the driver taking money.
Held: The House of Lords confirmed that consent does not prevent an appropriation from occurring. Even though the tourist had opened his wallet and appeared to consent, this was still appropriation because the driver assumed the rights of the owner over the money.
Significance: This case established that the owner's consent is irrelevant to whether appropriation has occurred.
- DPP v Gomez (1993): This case confirmed that appropriation includes any assumption of the owner's rights, even with consent. The defendant had persuaded his employer to accept stolen cheques as payment for goods. Despite the manager's consent to the transaction, this still amounted to appropriation.
Other important cases on appropriation include:
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R v Pitham and Hehl (1977): The defendant sold furniture belonging to someone else without ever physically possessing it. The court held that selling property is one of the rights of an owner, so by selling it, the defendant had assumed the owner's rights and committed appropriation. This case shows that not all rights of ownership need to be assumed - interfering with just one right is sufficient.
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R v Morris (1983): The defendant switched price labels on supermarket items to pay a lower price. The court held that this was an appropriation because pricing goods is a right of the shop owner, and the defendant had interfered with this right.
The breadth of 'appropriation' means that almost any dealing with property can constitute appropriation. The key limitation comes from the other elements of theft - particularly dishonesty and intention to permanently deprive. This allows innocent behaviour (like trying on clothes in a shop) to be distinguished from theft.
Property (s 4)
S 4(1) of the Theft Act 1968 defines property broadly as including money and all other property, real or personal, including things in action and other intangible property.
This wide definition covers:
- Money (coins, notes, and currency)
- Personal property (tangible items like books, phones, clothing, vehicles)
- Things in action (rights that can be enforced, such as bank account credits or debts owed)
- Intangible property (intellectual property rights, shares in companies)
Important Case: R v Smith and others (2011)
Facts: The defendant robbed someone of heroin they were trying to sell. The defendant argued illegal drugs couldn't be 'property' because possessing them was illegal.
Held: The court rejected this argument, holding that the definition in s 4 includes all tangible property, regardless of whether possession is lawful. The heroin was property that could be stolen.
Principle: Property can be stolen even if it is held illegally by the victim.
However, certain things cannot be stolen under the rest of s 4:
Land generally cannot be stolen (though there are specific exceptions for trustees and tenants who abuse their position).
Wild plants: Mushrooms, flowers, fruit or foliage growing wild cannot be stolen unless they are picked for sale or commercial purposes.
Wild creatures: Animals living wild cannot be stolen unless they have been tamed, are in captivity, or are in someone's possession.
Confidential information: Information itself (as opposed to the paper it's written on) cannot be stolen. This was established in Oxford v Moss (1979), where a student who obtained a copy of an exam paper in advance was not guilty of theft of the information contained in it. However, stealing the physical document would be theft of the paper itself.
The distinction between information and the physical document is important. In Oxford v Moss, the student could have been guilty of stealing the paper itself if he had permanently deprived the university of it, but he only copied the information and returned the paper. The information copied was not 'property' under s 4.
Belonging to another (s 5)
S 5(1) of the Theft Act 1968 states that property is regarded as belonging to another if that person has possession or control of it, or has any proprietary right or interest in it.
This definition is wider than simple 'ownership' and includes several scenarios:
Someone with possession or control: Property can be stolen from anyone who has the owner's permission to possess it, not just the legal owner. For example, if you lend your phone to a friend and someone steals it from them, the thief has stolen property 'belonging to another' even though your friend wasn't the owner.
Property given subject to an obligation (s 5(3)): If property is given to someone on the basis they will use it in a particular way, it still 'belongs to' the person who gave it if the obligation is not followed. In Davidge v Bunnett (1984), flatmates gave the defendant money to pay gas bills. She spent it on Christmas presents instead. The money still belonged to the flatmates because it was given with the obligation to pay the bills.
Property given by mistake (s 5(4)): If someone receives property by mistake and is legally obliged to return it, it still 'belongs to' the person who gave it by mistake. This was confirmed in A-G Ref (No. 1 of 1983) (1985).
Common Misconception: Many students assume property must belong to the 'owner' - this is incorrect. Property 'belongs to another' if anyone has possession, control, or a proprietary interest in it. This means:
- You can steal from someone who isn't the owner (e.g., someone borrowing an item)
- You can steal your own property if someone else has lawful possession or control of it
- Multiple people can have 'belonging to another' rights simultaneously
Property doesn't need to be lawfully held: The definition doesn't require property to be held lawfully. Therefore, someone can be guilty of stealing illegal drugs from another person, even though neither party has a lawful right to possess them.
Significant Case: R v Turner (1971)
Facts: The defendant took his own car from a garage after repairs without paying for the work done.
Issue: Could he steal his own car?
Held: Yes - he was guilty of theft because the garage had 'possession or control' of the car. The question of who had 'better rights' to the property was irrelevant - what mattered was that the garage was in lawful possession or control.
Principle: Even the true owner can steal their own property if someone else has possession or control of it.
A practical example is found in R (Ricketts) v Basildon Magistrates' Court (2010): The defendant took bags of donated items from outside a charity shop. The court held that bags left outside still belonged to the donor (as they had not yet passed to the charity), while bags behind the shop belonged to the charity itself. The defendant claimed the items were 'abandoned', but the court rejected this, showing that property belongs to someone unless genuinely abandoned with no intention to retain ownership.
Mens rea of theft
The mens rea of theft consists of two elements: dishonesty and the intention to permanently deprive. Both must be present at the time of the appropriation.
Dishonesty (s 2)
Dishonesty is a crucial element of theft, distinguishing it from innocent mistakes or civil disputes. The Theft Act 1968 does not define what 'dishonestly' means, but s 2 provides three situations where a person is NOT dishonest if they believe:
- They have a legal right to deprive the other person of the property
- The owner would consent to the taking if they knew about the circumstances
- The owner cannot be found by taking reasonable steps
These operate as 'defences' - if the defendant genuinely held any of these beliefs, their appropriation is not dishonest, even if the belief was mistaken or unreasonable.
The beliefs under s 2 are assessed subjectively - it doesn't matter if the belief was objectively reasonable or correct, only that the defendant genuinely held it. This protects defendants who make honest mistakes about their rights or the owner's likely consent.
For example, in R v Small (1988), the defendant took a car that had been left abandoned for two weeks with windows open, keys in the ignition, flat battery, and no petrol. He believed the owner could not be found by taking reasonable steps. The court held that even an unreasonably held belief can still be an honest belief, so he was not dishonest under s 2(1)(c).
The test for dishonesty: Ivey and Barton and Booth
When Parliament passed the Theft Act 1968, it deliberately chose not to define 'dishonestly' beyond the situations in s 2. Parliament wanted the definition to be flexible, allowing magistrates and juries to apply common sense and adapt to changing social standards on a case-by-case basis.
For many years, the test for dishonesty came from R v Ghosh (1982), which had a two-stage test considering both the defendant's own standards and society's standards. However, this was replaced by a simpler test from civil law.
The Ivey Test for Dishonesty
In Ivey v Genting Casinos (2017), a civil case heard by the Supreme Court, a new test for dishonesty was established:
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Establish what the defendant knew or believed about what they were doing and the surrounding circumstances (this is a subjective assessment).
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Then, applying that state of knowledge, decide whether an ordinary decent person would consider the conduct dishonest (this is an objective assessment).
Crucially: The behaviour does not become honest simply because the defendant has different moral standards or doesn't personally think their conduct was dishonest.
Although Ivey was a civil case, the courts quickly recognised its value for criminal law. In DPP v Patterson (2017), the Divisional Court adopted the Ivey test for criminal dishonesty.
The matter was finally settled by the Court of Appeal in Barton and Booth (2020), where the Lord Chief Justice confirmed that Ivey is now the definitive test for dishonesty in criminal law. The court emphasised that dishonesty is still assessed by reference to the defendant's state of mind (what they knew or believed), but this is then judged against society's standards rather than the defendant's personal understanding of those standards.
R v Lawrence (1972) illustrated the relevance of belief about consent: a taxi driver took £7 for a £1 fare from a tourist who held his wallet open. The belief (or absence of belief) that the owner consented was relevant to dishonesty.
Intention to permanently deprive (s 6)
The prosecution must prove the defendant intended to permanently deprive the owner of the property. Merely borrowing something with the intention to return it is generally not theft (though there may be other offences).
S 6 of the Theft Act 1968 provides guidance on what falls within this intention, though it doesn't give an exhaustive definition. The question is ultimately one for the jury or magistrates to decide based on the facts.
Section 6 is one of the most complex provisions in the Theft Act. It extends the concept of 'intention to permanently deprive' beyond simply never returning the item. The key is whether the defendant intended to treat the property as their own to dispose of, regardless of the owner's rights.
When is there intention to permanently deprive?
S 6(1) gives two main examples:
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Treating the thing as your own to dispose of regardless of the other person's rights. In Lavender v DPP (1994), the defendant removed doors from one council house to replace broken doors at his girlfriend's council house (also owned by the council). Even though the doors stayed within the council's property, he intended to treat them as his own, regardless of the council's rights, so he had the intention to permanently deprive.
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Borrowing for a period and in circumstances making it equivalent to an outright taking. This covers situations where borrowing is so extensive or in such circumstances that it's effectively the same as permanently taking the item.
S 6(2) deals with situations where property is returned but its value has diminished:
- Selling someone's property back to them (pretending to be the true owner)
- Using some of the charge from someone's batteries and returning them partially discharged
- Eating part of someone's chocolate bar and returning the rest
- Taking a concert ticket, using it, and then returning it after the event
In all these examples, even though the physical item is returned, its value or usefulness has been permanently lost, so there is intention to permanently deprive.
Key Case: R v Velumyl (1989)
Facts: The defendant borrowed over £1,000 from a safe at work, intending to pay it back the following Monday. This was against company rules.
Issue: Was there intention to permanently deprive if he intended to return equivalent money?
Held: Yes, there was intention to permanently deprive because he could not replace the exact same notes and coins. Even though he intended to repay an equivalent sum, the specific property taken would be permanently deprived.
Principle: Money is treated as specific property - you cannot 'return' money by giving back different notes and coins of the same value.
In Vinall (2012), the Court of Appeal clarified that s 6(1) requires a state of mind where the defendant intends to treat the thing as their own to dispose of regardless of the other's rights. This focuses on what the defendant intended, not just what happened to the property.
Special circumstances
Where property is taken initially without intent to permanently deprive (such as joyriding a car), but the property is then destroyed (by crashing or fire), this may still amount to intent to permanently deprive. In Mitchell (2008), the court held that even where property is no longer in a usable form, there can be intention to permanently deprive if the defendant intended to dispose of it regardless of the owner's rights.
Borrowing vs. Theft
Simple borrowing with intention to return is NOT theft because there's no intention to permanently deprive. However, borrowing becomes theft when:
- The borrowing is in circumstances equivalent to outright taking (s 6(1))
- The item is returned with its value diminished (s 6(2))
- The defendant treats it as their own to dispose of regardless of owner's rights
- The defendant takes money intending to 'repay' with different money (Velumyl)
Summary of key cases
Actus reus cases
| Case | Legal principle | Section |
|---|---|---|
| R v Pitham and Hehl (1977) | Selling another's property without possessing it is appropriation. Not all ownership rights need to be assumed. | s 3 |
| R v Morris (1983) | Switching price labels is appropriation as it interferes with the owner's right to price goods. | s 3 |
| Lawrence v MPC (1972) | Appropriation can occur even with the owner's consent. | s 3 |
| DPP v Gomez (1993) | Confirmed that consent doesn't prevent appropriation. | s 3 |
| R v Smith and others (2011) | Illegally held property (drugs) can still be stolen as s 4 includes all tangible property. | s 4 |
| R v Turner (1971) | Even the true owner can steal their own property if someone else has possession or control. The garage had lawful possession of the car. | s 5 |
| R (Ricketts) v Basildon Magistrates' Court (2010) | Bags left outside a charity shop remained the donor's property; bags behind the shop belonged to the charity. | s 5 |
| Davidge v Bunnett (1984) | Money given for a specific purpose still belongs to the giver if not used for that purpose. | s 5(3) |
| A-G Ref (No. 1 of 1983) (1985) | Property received by mistake and subject to legal obligation to return still belongs to another. | s 5(4) |
Mens rea cases
| Case | Legal principle | Section |
|---|---|---|
| R v Small (1988) | An unreasonably held belief can still be an honest belief for dishonesty purposes. | s 2 |
| Ivey v Genting Casinos (2017) | Established the two-stage test for dishonesty: (1) what did defendant know/believe; (2) would ordinary decent person consider it dishonest. | s 2 |
| DPP v Patterson (2017) | Divisional Court adopted the Ivey test for criminal law. | s 2 |
| Barton and Booth (2020) | Court of Appeal confirmed Ivey is the definitive test for dishonesty in criminal law. | s 2 |
| R v Velumyl (1989) | Taking money to pay back later is intent to permanently deprive as exact money cannot be replaced. | s 6 |
| Lavender v DPP (1994) | Treating property as own to dispose of regardless of owner's rights shows intent to permanently deprive. | s 6 |
| Vinall (2012) | S 6(1) requires a state of mind to treat the thing as own to dispose of regardless of other's rights. | s 6 |
| Mitchell (2008) | Destroying property initially taken without intent to permanently deprive may still show the required intent. | s 6 |
Exam guidance
This content will be assessed in Paper 2. In exam questions on theft, you may be asked to:
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Apply the law to scenarios: You'll need to identify and apply each element of theft (appropriation, property, belonging to another, dishonesty, intention to permanently deprive) to the facts given. Work systematically through both actus reus and mens rea.
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Analyse or evaluate definitions: Questions may ask you to analyse how well the statutory definitions work, particularly focusing on contentious areas like the breadth of 'appropriation' or the development of the dishonesty test.
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Discuss case law development: Be prepared to explain how judicial interpretation has shaped the law, particularly the cases of Lawrence, Gomez (on appropriation) and Ivey, Barton and Booth (on dishonesty).
Key Exam Tips for Success
Quote the relevant statutory sections accurately: Learn the key definitions in s 1(1), s 3(1), s 4(1), s 5(1), and understand s 2 and s 6. Being able to quote these shows precision and legal knowledge.
Be selective: Don't recite every part of every section if it's irrelevant to the question. For example, don't discuss wild flowers or wild creatures if they're not relevant to the scenario. Focus on what matters for the marks available.
Use recent case law: Where possible, use recent cases to show your knowledge is up-to-date. Cases like Barton and Booth (2020), Smith (2011), and Ricketts (2010) are good recent examples that demonstrate current legal understanding.
For problem questions: Work through each element systematically using the IRAC structure:
- Issue: Identify which element of theft is in question
- Rule: State the relevant law (statute and case law)
- Application: Apply the law to the specific facts
- Conclusion: Reach a conclusion for each element before moving to the next
This methodical approach ensures you don't miss any elements and makes your answer clear and structured.
For essay questions: Structure your answer with clear paragraphs on different aspects:
- The width of appropriation and its implications
- Problems with the dishonesty test and its evolution
- Reform proposals and criticisms
- Judicial vs. legislative development of the law
Use evaluation throughout your answer, not just at the end. Each paragraph should contain some analytical or evaluative comment, not just description.
Key Points to Remember:
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Theft is defined in s 1(1) Theft Act 1968: dishonest appropriation of property belonging to another with intent to permanently deprive.
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Appropriation is very wide: it includes situations where the owner consents (Lawrence, Gomez) and any assumption of ownership rights (Pitham and Hehl).
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Property belonging to another includes: anyone with possession, control, or proprietary interest - not just the legal owner (Turner, Ricketts).
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Dishonesty uses the Ivey/Barton and Booth test: (1) what did defendant know/believe, (2) would ordinary decent person consider it dishonest by those standards.
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Intention to permanently deprive: means treating property as your own to dispose of regardless of owner's rights, or returning it with diminished value (Vinall, Velumyl, Lavender).
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All five elements must be proved: If any one element fails, there is no theft conviction (though other offences may apply).
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Work systematically: In problem questions, address each element of actus reus first, then each element of mens rea, using cases to support your application.