Theft (OCR A-Level Law): Revision Notes
Theft
Introduction
Theft is a fundamental offence against property defined in the Theft Act 1968. Understanding theft requires careful analysis of both its physical elements (actus reus) and mental elements (mens rea). The offence is structured around five key elements, each defined in separate sections of the Act.
Definition
Theft is defined under section 1(1) of the Theft Act 1968 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 essential elements that must all be proven for a conviction. Sections 2-6 of the Act provide further interpretation and clarification of each element stated in section 1.
Actus reus of theft
The actus reus (physical element) of theft consists of three components that must all be established:
- Appropriation (section 3)
- Of property (section 4)
- Belonging to another (section 5)
Appropriation (section 3)
Section 3(1) defines appropriation as any assumption by a person of the rights of an owner. This includes situations where someone has come by the property innocently or otherwise without stealing it, but later assumes a right to it by keeping or dealing with it as the owner.
The definition of appropriation is deliberately very wide and has been interpreted broadly by the courts. Importantly, appropriation does not mean 'misappropriates'. This means that even where the owner has consented to the taking, there can still be an appropriation.
Key principles:
- No adverse interference or 'usurpation' of the owner's rights is required
- It is sufficient to assume at least one right of the owner
- Consent from the owner does not prevent appropriation
R v Lawrence v MPC (1972) and DPP v Gomez (1993) established that appropriation can occur even with the owner's consent, expanding the scope of the offence significantly.
Case Example - R v Pitham and Hehl (1977):
The defendant sold furniture belonging to another person without coming into actual possession of the property. The court held that selling was a right of the owner, and interfering with that right constituted appropriation.
Case Example - R v Morris (1983):
The defendant swapped price labels on two items in a supermarket. Switching labels and attempting to pay the lower price was held to be an appropriation because it interfered with the owner's rights.
Property (section 4)
Section 4(1) provides a broad definition of property, stating that property includes money and all other property, real or personal, including things in action and other intangible property.
This wide definition encompasses:
- Money (coins, notes)
- Personal property (tangible items you can touch and move)
- Things in action (rights enforceable by legal action, such as debts or copyright)
- Other intangible property (property without physical form)
Importantly, property that is illegally held can still be stolen. In R v Smith (2011), the defendants robbed someone of heroin that was being sold illegally. The court held that section 4 includes all tangible property, even property held illegally.
Exceptions - property that cannot be stolen:
However, section 4 also specifies certain types of property that cannot be stolen:
- Land (with limited exceptions)
- Mushrooms, flowers, fruit or foliage growing wild, unless picked for commercial purposes or sale
- Wild creatures, unless they are tamed, in captivity, or in someone's possession
Case Example - Oxford v Moss (1979):
A university student who examined an exam paper before the exam was held not to have stolen the confidential information because information itself is not property under section 4. However, note the contrasting decision in Akbar (2002).
Belonging to another (section 5)
Section 5(1) states that property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest.
This definition is notably wide and extends beyond just ownership. Property can 'belong to another' even if the person appropriating it is the legal owner, provided someone else has possession, control, or a proprietary interest.
The definition includes situations where:
- Someone has possession or control - This covers situations where the appropriation is not from the owner, but from someone who has the owner's permission to possess the property.
Case Example - R v Turner (1971):
The defendant took his own car from a garage without paying after repairs had been completed. Although he owned the car, the garage had possession and control. The question of who had the 'better right' to the car was irrelevant - the defendant was convicted because the garage was still in possession or control.
- Property given subject to an obligation - Where someone gives property to the defendant subject to an obligation that it should be dealt with in a particular way.
Case Example - Davidge v Bunnett (1984):
Flatmates gave money to the defendant to pay communal bills. She spent the money on Christmas presents instead. The money belonged to another because she was under an obligation to use it for bills.
- Property given by mistake - Where property is given to the defendant by mistake and the defendant is under an obligation to restore it.
Case Example - Attorney-General's Reference (No. 1 of 1983) (1985):
This case clarified that when someone receives property by mistake and is under a legal obligation to return it, the property still 'belongs to another' for the purposes of theft.
Case Example - R (on the application of Ricketts) v Basildon Magistrates' Court (2010):
The defendant took bags containing donated items from outside a charity shop. The court held that bags left outside the shop remained the property of the donor, while bags behind the shop belonged to the charity. This demonstrates that abandoned property is treated differently from property in someone's possession.
Mens rea of theft
The mens rea (mental element) of theft requires proof of two components:
- Dishonesty (section 2)
- Intention to permanently deprive (section 6)
Dishonesty (section 2)
The Theft Act 1968 does not directly define 'dishonestly'. Instead, section 2 provides three situations which are not dishonest, effectively creating three defences to dishonesty.
When Parliament passed the 1968 Act, it deliberately decided that the definition of dishonesty should be left to the common sense of magistrates or juries, to be decided on a case-by-case basis. This approach was based on the case Brutus v Cozens (1972) and reflected Parliament's view that public opinion about dishonesty changes over time.
The three defences under section 2:
A person's appropriation of property is not dishonest if they believe:
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They have in law the right to deprive the other of it (section 2(1)(a))
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They would have the other's consent if the other knew of the appropriation and the circumstances (section 2(1)(b))
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The person to whom the property belongs cannot be discovered by taking reasonable steps (section 2(1)(c))
Case Example - R v Holden (1991):
The defendant took old car tyres from his former employer, believing he had permission or would have had permission if he had asked. The court held that the jury should consider whether the defendant had, or might have had, this honest belief, whether reasonable or not.
Case Example - R v Lawrence (1972):
A taxi driver took £7 for a £1 fare from an Italian tourist who spoke little English and held his wallet open. The court held that the belief or absence of belief that the owner consented was relevant to dishonesty.
Case Example - R v Small (1988):
The defendant took a car that had been left for two weeks with windows open and keys in the ignition. The court held that even an unreasonably held belief can be an honest belief.
The modern test for dishonesty:
The test for dishonesty was significantly clarified in Ivey v Genting Casinos (2017), a Supreme Court civil case. Although initially only persuasive authority, this test was adopted by the criminal courts in DPP v Patterson (2017) and definitively confirmed in R v Barton and Booth (2020).
The two-stage Ivey test:
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Establish the defendant's actual knowledge and belief about what they were doing and the surrounding circumstances.
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Apply objective standards - Having established that state of knowledge, determine whether an ordinary decent member of society would regard the conduct as dishonest. The behaviour does not become honest simply because the defendant has different or lower standards.
As the Lord Chief Justice stated in Barton and Booth (2020):
The test of dishonesty formulated in Ivey remains a test of the defendant's state of mind – his or her knowledge or belief – to which the standards of ordinary decent people are applied. This results in dishonesty being assessed by reference to society's standards rather than the defendant's understanding of those standards.
This approach means dishonesty is partly subjective (based on what the defendant knew) and partly objective (based on society's standards).
Intention to permanently deprive (section 6)
While section 6 does not provide a complete definition, it clarifies certain situations that amount to an intention to permanently deprive. The courts interpret this element widely.
Key principles from section 6(1):
An intention to permanently deprive exists where:
- The person treats the thing as their own to dispose of, regardless of the other's rights
- A borrowing or lending may amount to an intention to permanently deprive if it is for a period and in circumstances making it equivalent to an outright taking or disposal
Vinall (2012) clarified that section 6(1) requires a state of mind in the defendant which Parliament regards as equivalent to an intention permanently to deprive, namely the intention to treat the thing as his own to dispose of regardless of the other's rights.
Examples under section 6(2):
Even if property is returned, there may still be an intention to permanently deprive if its value has diminished:
- Selling someone's property back to them and pretending to be the true owner
- Using some of the charge from someone's batteries or eating part of their chocolate bar and returning the rest
- Returning a concert, gig or raffle ticket after it has been used
Case Example - R v Velumyl (1989):
The defendant borrowed over £1,050 from the safe at work, intending to repay it the following Monday. This was against company rules. The court held this was an intention to permanently deprive because the exact money could not be replaced.
Case Example - Lavender v DPP (1994):
The defendant removed two doors from one council house to replace broken doors at his girlfriend's council house. The court held that the defendant intended to treat the doors as his own, regardless of the council's rights, constituting an intention to permanently deprive.
Case Example - R v Lloyd (1985):
The defendant worked in a cinema and took films so copies could be made by associates before returning them. The court held this was not theft because the films were returned in their original state and had lost no practical value. This case demonstrates that temporary borrowing without diminishing value is not sufficient.
Case Example - R v Easom (1971):
The defendant rummaged through a handbag in a cinema but took nothing. The court held that if the defendant decides not to take another's property, this is not theft. This establishes that 'conditional intent' (intending to steal only if something valuable is found) is insufficient for theft.
Case Example - Mitchell (2008):
Where property is taken without an intent to permanently deprive (such as joyriding a motor vehicle) but the vehicle is destroyed by crashing or fire, this may still constitute an intent to permanently deprive, even where the property is no longer in a usable form.
Exam guidance
When answering problem questions on theft:
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Use the ILAC structure:
- Issues - Identify what has happened
- Law - Explain the relevant law
- Apply the law and cases to the scenario facts
- Conclude - Decide whether the defendant is guilty
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Be selective - Do not recite every part of sections 2, 4, or 5 if they are irrelevant to the specific question. For example, avoid discussing wildflowers or wild creatures unless they feature in the scenario.
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Learn sections 1-6 accurately and support your interpretation with relevant and recent case law where possible.
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Work systematically through the five elements: appropriation, property, belonging to another, dishonesty, and intention to permanently deprive.
Key Points to Remember:
- Theft requires five elements: appropriation + of property + belonging to another + dishonestly + with intention to permanently deprive
- Appropriation is very widely defined and can occur even with the owner's consent (Lawrence, Gomez)
- Property includes money, personal property, things in action, and intangible property, but excludes land, wild plants (unless for sale), and wild creatures (unless tamed/captive)
- Belonging to another extends beyond ownership to include possession, control, and proprietary interests
- Dishonesty is tested using the Ivey/Barton and Booth test: (1) establish defendant's knowledge, then (2) apply ordinary decent person's standards
- Intention to permanently deprive includes treating property as your own regardless of the owner's rights, even if you plan to return it in a diminished state
- Key cases to remember: Lawrence, Gomez, Turner, Ivey v Genting Casinos, Barton and Booth, Velumyl, Lloyd