Theft

Elements

Theft is defined by section 1 of the 1968 Act as dishonestly appropriating property belonging to another
with the intention of permanently depriving the other of it. Sections 2 – 6 of the 1968 Act provide
further interpretation of these elements.

"Dishonestly"

Section 2 of the 1968 Act specifies that appropriation is not dishonest if the person doing it believes that

 They have a legal right to take the property; or

 The owner would agree to their taking it if they knew about it; or

 They could not find the person to whom the property belongs by taking reasonable steps. (Does
not apply to people who came by the property as trustees or personal representatives.)

It also provides that appropriation may still be dishonest if the person was willing to pay for the property
they have taken.

However, the 1968 Act does not provide a complete definition of “dishonesty”.

In Ivey v Genting Casinos [2018] AC 391 the Supreme Court set out the test to be applied in determining
the issue:

“…the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual's
knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence
(often in practice determinative) going to whether he held the belief, but it is not an additional
requirement that his belief must be reasonable; the question is whether it is genuinely held. When once
his actual state of mind as to knowledge or belief as to facts is established, the question whether his
conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective)
standards of ordinary decent people. There is no requirement that the defendant must appreciate that
what he has done is, by those standards, dishonest."

Although Ivey was a civil case, and so its application to criminal law was strictly speaking obiter, the
Divisional Court adopted this as the correct approach in DPP v Patterson [2017] EWHC 2820 (Admin), Sir
Brian Leveson observing that it was “difficult to imagine the Court of Appeal preferring Ghosh (the
previous leading case on the meaning of ‘dishonestly’) to Ivey in the future.”

‘Appropriates’

Section 3 of the 1968 Act provides that any assumption of the rights of an owner amounts to
appropriation, including keeping property which was originally come by honestly or by dealing with it as
an owner.
“Appropriates” does not require to be read as “misappropriates” and so there is no need to show that
the property was taken without the owner’s consent. (Lawrence v Metropolitan Police Commissioner
(1971) Cr App R 471: D, a taxi driver, was guilty of theft when the victim (a tourist who spoke little
English) had permitted him to remove cash from his wallet which was far in excess of the fare
payable. DPP v Gomez (1993) 96 Cr App R 359 confirmed that “appropriation” does not require adverse
interference with or usurpation of the rights of an owner.)

‘Property’

This includes intangible property (e.g. a credit in a bank account.)

See section 4 for the limitations on “theft” as it applies to land/buildings, wild plants or animals.

‘Belonging to another’

Section 5 provides that property “belongs to another” where that person

 has possession or control of it; or

 has given it to the defendant subject to an obligation that it is dealt with in some particular way;
or

 has given it to the defendant by mistake and the defendant is under an obligation to restore it to
them (in whole or in part); or

 is the beneficiary of a trust to which the property is subject.

The definition does not include any need for the property to be lawfully held by the person in possession
or control of it. Therefore, for example, a charge of theft will be made out where the property consists
of drugs in someone’s unlawful possession or of property which the “victim” has themselves stolen.

Even where someone has a right of ownership of property which is in possession of another they may
still be guilty of stealing that property. In R v Turner (1971) 55 Cr App R 336 D was found guilty of theft of
his own car after taking it without paying, from the garage which had carried out repairs on it. The
question of who had a “better” right to the car was irrelevant.

The property must belong to another at the time of appropriation.

In most cases this will not be an issue. However, it may arise where the legal ownership of the property
has passed before payment is required. The most common instances are where someone consumes a
meal in a restaurant and leaves without paying the bill or refuels a car and drives off from a service
station without making payment.

If the prosecution can prove that the defendant dishonestly formed the intention not to pay for the food
or fuel before consuming/taking it there is no problem with charging an offence of theft – the property
belonged to another when the dishonest appropriation took place.
The problem arises where the defendant only formed the dishonest intention not to pay for the
property after it was consumed/taken. In such circumstances the property does not ‘belong to another’
when the dishonest intention is formed and there is therefore no theft. (Even if the dishonest intention
was in fact formed before the act, it is often difficult to prove this).

See (Edwards v Ddin [1976] 1 WLR 942. See also Corcoran v Whent [1977] Crim LR 52.)

This situation was rectified by the creation of the offence of making off without payment in the Theft Act
1978. For a further discussion on this topic, see “Making Off Without Payment” below.)

‘Intending to permanently deprive’

Section 6 provides guidance on what may be included as falling within an intent to deprive permanently
but there is no exhaustive definition of the concept which is a question of fact for the tribunal.

A defendant may be regarded as having the intent permanently to deprive even though they do not
intend the victim to “lose the thing itself” if they intend to treat the item as their own to dispose of
regardless of the victim's rights.

Examples given in section 6(1) and (2) include a borrowing or lending (if in the circumstances it amounts
to an “outright taking or disposal” (section 6(1)) or parting with the property conditionally where the
defendant may not be able to fulfil the conditions to get it back (section 6(2).

These examples would cover circumstances such as someone who borrows a season ticket for so long as
to deprive the owner of much of its benefit before returning it or someone who pawns property
belonging to another.

In R v Vinall [2012] 1 Cr App R 29 the Court of Appeal said:

“What section 6(1) requires is a state of mind in the defendant which Parliament regards as the
equivalent of an intention permanently to deprive, namely “his intention to treat the thing as his own to
dispose of regardless of the other's rights”. The subsection does not require that the thing has been
disposed of, nor does it require that the defendant intends to dispose of the thing in any particular way.
No doubt evidence of a particular disposal or a particular intention to dispose of the thing will constitute
evidence of the defendant's state of mind but it is, in our view, for the jury to decide upon the
circumstances proved whether the defendant harboured the statutory intention.”

When a vehicle is taken in the normal course of events it can be expected that the car will be recovered,
identified and returned to the owner. For this reason prosecutors should normally proceed on an
offence of taking without consent (see below) where there is no evidence that the defendant intended
to do anything other than simply use the vehicle before abandoning it. However, where there is
evidence that e.g. the index plate was changed or that the vehicle was deliberately written off or
destroyed (for example by fire), that might be sufficient to establish intent to permanently deprive. See
also R v Mitchell [2008] EWCA 850 and commentary on “Steals” under “Robbery” below in this chapter.
 If someone takes cash without the owner’s consent intending to repay it then the fact that they intend
to repay it may go to the issue of dishonesty but will not negate the intention to permanently deprive,

Alternative Charges: Fraud Act 2006

Given the wide interpretation which the courts have made of the elements of theft there is obviously a
great deal of overlap between theft and the various offences under the Fraud Act. Where the offence
consists of taking something without permission then for ease of presentation prosecutors should
charge it under the 1968 Act. Where it consists of tricking somebody into parting with possession then it
will usually be better to charge it under the Fraud Act.

See the separate Legal Guidance on the Fraud Act 2006.

Fraud by false representation (Section 2)

The defendant:

 made a false representation

 dishonestly
 knowing that the representation was or might be untrue or misleading
 with intent to make a gain for himself or another, to cause loss to another or to expose another
to risk of loss.

The offence is entirely focused on the conduct of the defendant.

Fraud by failing to disclose information (Section 3)

The defendant:

 failed to disclose information to another person

 when he was under a legal duty to disclose that information
 dishonestly intending, by that failure, to make a gain or cause a loss.

Like Section 2 (and Section 4) this offence is entirely offender focussed. It is complete
as soon as the Defendant fails to disclose information provided he was under a legal
duty to do so, and that it was done with the necessary dishonest intent. It differs from
the deception offences in that it is immaterial whether or not any one is deceived or any
property actually gained or lost.

Obtaining services dishonestly (Section 11)

The defendant:

 obtains for himself or another;

 services;
 dishonestly;
 knowing the services are made available on the basis that payment has been, is
being or will be made for or in respect of them or that they might be; and
 avoids or intends to avoid payment in full or in part.

This offence replaces obtaining services by deception in Section 1 of the Theft Act 1978
which is repealed by the Act.

The defendant must have the necessary intention at the time that the service is
obtained (section 11 (2) (c)).

In many cases, the defendant will also have committed an offence under Section 2 of
the Act by making a false representation that payment will be made or made in full.
Prosecutors must decide which offence better reflects the criminality involved. The
maximum sentence for the Section 11 offence is five years' imprisonment.

Charging practice

Section 11 will cover circumstances where the defendant:

 obtains chargeable data or software over the internet without paying;

 orders a meal in a restaurant knowing he has no means to pay;
 attaches a decoder to his TV to enable him to access chargeable satellite
services without paying;
 uses the services of a members' club without paying and without being a
member.

Liability of company officers for offences by company (Section 12)

This section repeats the effect of Section 18 of the Theft Act 1968. It provides that
company officers who are party to the commission of an offence by the company will be
liable to be charged with the offence as well as the company.

The Elements of the Offences

False representation

Section 2 (2) defines the meaning of "false" and Section 2 (3) defines the meaning of
"representation".
A "representation" means any representation as to fact or law, including a
representation as to the state of mind of the person making the representation or any
other person (Section 2 (3)). An example of the latter might be where a defendant
claims that a third party intends to carry out a certain course of action perhaps to make
a will in someone's favour. It may be difficult to prove to the necessary standard that the
Defendant knew the state of mind of a third party, but easier to prove that he knew what
it might be.

A representation may be express or implied (Section 2 (4)). It can be stated in words or

communicated by conduct. There is no limitation on the way in which the representation
may be expressed.

A representation can be made by omission, for example, by omitting to mention

previous convictions or County Court Judgements on an application form.

An offence may be completed when the defendant fails to correct a false impression
after a change in circumstances from the original representation (if the representation
may be regarded as a continuing series of representations).

A representation can be made to a machine (Section 2 (5)), for example, where a

person enters a number into a CHIP and PIN machine or a bank ATM; or gives false
credit card details to the voice activated software on a telephone line; or gives false
credit card details to a supermarket website to obtain groceries.

Evidence is necessary to prove that the defendant communicated the false

representation to a person or to a machine. It is not relevant whether the false
representation is believed or has any affect on any other person.

In some cases it will not be necessary to call evidence from a victim, but prosecutors
should bear in mind that a victim who is not named on an indictment or in a TIC cannot
be compensated.

Untrue or misleading

A representation is defined as "false" if it is untrue or misleading and the person making

it knows that it is, or might be, untrue or misleading. Actual knowledge that the
representation might be untrue is required not awareness of a risk that it might be
untrue.

Dishonesty

In Ivey v Genting Casinos (UK) (trading as Cockfords Club) [2017], Lord Hughes of
Ombersley suggested that the Ghosh test was wrong. At paragraph 74 he said ‘the
Ghosh test does not correctly represent the law and that directions based upon it ought
no longer to be given’.
He went on to provide an alternative two-stage test:

a. what was the defendant’s actual state of knowledge or belief as to the facts; and
b. was his [the defendants] conduct dishonest by the standards of ordinary decent
people.

In R. v Barton and Booth [2020] EWCA Crim Mr Barton and Mrs Booth appealed their
convictions on the grounds that the trial Judge had erred in directing the Jury on the
issue of dishonesty by applying Lord Hughes’ new two stage test, which was obiter
dictum, and not the two stage test set out in R v Ghosh [1982] EWCA Crim 2.

In dismissing Barton and Booth’s appeal against conviction, the Lord Chief Justice said:
‘We are satisfied that the decision in Ivey is correct, is to be preferred, and that there is
no obstacle in the doctrine of stare decisis to its being applied as the law of England
and Wales’.

In Barton and Booth, the Court of Appeal has changed the test for dishonesty from a
subjective test to an objective test. The fact-finding tribunal must now decide the actual
state of the individual’s knowledge or belief as to the facts and then determine whether
his conduct was honest or dishonest by the (objective) standards of ordinary decent
people. There is no longer a requirement that the defendant must appreciate that what
he has done is, by those standards, dishonest.

Gain or loss

"Gain "and "loss" are defined in section 5 of the Act. The definition is essentially the
same as in Section 34 of the Theft Act.

Gain and loss extends only to gain and loss in money or other property (Section 5 (2)
(a)), whether temporary or permanent (Section 5 (2) (b)) and means any property
whether real or personal including things in action and other intangible property (Section
5 (2) (b)).

"Gain" includes a gain by keeping what one has, as well as a gain by getting what one
does not have (Section 5 (3)).

"Loss" includes a loss by not getting what one might get as well as a loss by parting with
what one has (Section 5 (4)).

The Defendant must intend to make the gain or cause the loss by means of the false
representation.

The breadth of conduct to which Section 2 applies is much wider than the old Theft Act
deception offences because no gain or loss need actually be made. It is the Defendant's
ultimate intention that matters. If the Defendant gets information by making a false
representation, intending ultimately to make a gain or cause a loss within the meaning
of Section 5 by doing so, he will have committed a Section 2 offence.

Failure to disclose information

There is no requirement that the failure to disclose must relate to "material" or "relevant
"information, nor is there any de minimis provision. If a Defendant disclosed 90% of
what he was under a legal duty to disclose but failed to disclose the (possibly
unimportant) remaining 10%, the actus reus of the offence could be complete. Under
such circumstances the Defendant would have to rely on the absence of dishonesty.
Such cases can be prosecuted under the Act if the public interest requires it, though
such cases will be unusual.

It is no defence that the Defendant was ignorant of the existence of the duty, neither is it
a defence in itself to claim inadvertence or incompetence. In that respect, the offence is
one of strict liability. The defence must rely on an absence of dishonesty and the
burden, of course, lies with the prosecutor.

Prosecutors must be acutely aware of the public interest in such cases, bear in mind the
relative standing of the parties and pay particular regard to any explanation for the
failure given by the Defendant.

A legal duty to disclose information can arise as a result of a contract between two
parties or because of the existence of a particular type of professional relationship
between them; for example, a solicitor/client relationship. In its report on fraud (No. 276
Cm 5560 2002) the Law Commission made the following comments about the
circumstances in which a legal duty might arise:

7.28 ... Such a duty may derive from statute (such as the provisions governing company
prospectuses), from the fact that the transaction in question is one of the utmost good
faith (such as a contract of insurance), from the express or implied terms of a contract,
from the custom of a particular trade or market, or from the existence of a fiduciary
relationship between the parties (such as that of agent and principal).

7.29 For this purpose there is a legal duty to disclose information not only if the
defendant's failure to disclose it gives the victim a cause of action for damages, but also
if the law gives the victim a right to set aside any change in his or her legal position to
which he or she may consent as a result of the non- disclosure. For example, a person
in a fiduciary position has a duty to disclose material information when entering into a
contract with his or her beneficiary, in the sense that a failure to make such disclosure
will entitle the beneficiary to rescind the contract and to reclaim any property transferred
under it.

Establishing a legal duty

There are three considerations:

  Whether the facts as alleged are capable of creating a legal duty is a matter for
the judge;
 Whether the relationship that would create any legal duty exists on the facts
alleged is a matter for the jury directed by the judge;
 Where the matter is not in issue the judge may direct the jury that a legal duty
exists.

The Explanatory Notes to the Fraud Act provide the following examples of a breach of a
legal duty:

 The failure of a solicitor to share vital information with a client in order to

perpetrate a fraud upon that client;
 A person who intentionally failed to disclose information relating to his heart
condition when making an application for life insurance.