1. Definition & Actus Reus
Theft
Definition & Actus Reus

2. Lesson Objectives I will be able to state the definition of theft
I will be able to explain the actus reus of theft
I will be able to explain cases that illustrate the actus reus of theft
I will be able to apply the rules to a given situation

3. Definition Theft Act 1968, s1:
A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and ‘thief’ and ‘steal’ shall be construed accordingly
It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit
The five following sections of this Act shall have effect as regards the interpretation and operation of this section (and, except as otherwise provided by this Act, shall apply only for purposes of this section).

4. There are 5 things to be proved to secure a conviction of theft; 3 of these form the actus reus of the offence and 2 the mens rea

5. Actus reus: element 1 - Appropriation
Appropriation is defined in s3 of the Theft Act 1968 as follows:
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 owner
Where property or a right or interest in property is, or 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

6. The general meaning is to take something
More formally it is the assumption of the rights of an owner
Theft can involve more than mere taking of property – taking rights someone has over property (possess, use, modify, sell or destroy)
The case that confirms that a range of activities can amount to appropriation is Morris (1984) – appropriation of goods includes a variety of activities including switching labels on goods in a supermarket

7. No criminal appropriation where property has been taken with consent (e.g. placing goods in basket in supermarket and walking to till – crime is leaving without paying)
The link between the elements of appropriation and dishonesty is very close and often forms the key aspects of the crime
The idea of consent by the owner becomes a point of difficulty in some cases

8. Lawrence (1972) – appropriation can take place even where the property has been handed over with the consent of the owner; there is often a link between the appropriation and the fact that it is done dishonestly
Gomez (1993) – the issue of consent occurred here in relation to releasing goods against worthless cheques; it was decided that there can be an appropriation even if the goods are leased with the owner’s consent – however, it was not ‘true consent’ so the property was dishonestly appropriated
Hinks (1998) – appropriation can take place even where there is a voluntary gift – The HoL stated that the issue of consent was related to dishonesty rather than appropriation

9. Actus reus: element 2 – Property
The Theft Act 1968 s4 deals with property. The general principle is set out in s4(1) as:
‘Property’ includes money and all other property, real or personal including things in action and other intangible property
This means everything that you can own including money, land, belongings, cheques and other things of value where the value is not defined by the physical thing, for example rights of ownership of stocks and shares or forms of credit.

10. The Act itself, in s4, goes on to make some further explanation and exceptions. These are set out in s4(2), (3) and (4) as follows:
2. A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that is to say –
a) Where he is a trustee or personal representative, or is authorised by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him; or

11. b) When he is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed; or c) when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the land. For purposes of this subsection, ‘land’ does not include incorporeal hereditaments; ‘tenancy’ means a tenancy for years or less period and includes an agreement for such a tenancy, but a person who, after the end of tenancy, remains in possession as statutory tenant or otherwise is to be treated as having possession under the tenancy, and ‘let’ shall be construed accordingly.

12. This means, subject to exceptions, that you cannot steal land or part of it such as soil, rocks, plants or buildings
The first exception occurs in s(2)(a): a person can commit theft of land where he has the ability to transfer the ownership (or other rights over land) to another person and the land or rights being transferred are not his to transfer (i.e. holding a house in trust for young children and selling for personal gain)

13. The exception in s(2)(b) means that a person can commit theft of things forming part of the land that the owner of the land has not allowed the thief to posses. This, therefore, includes soil, rocks, gravel, buildings (or parts of buildings) and crops
The exception in s(2)(c) refers to tenants of land, whether a tenant farmer or a student in a rented house. The tenant can be guilty of theft where he removes ‘fixtures’; this would include a shed, separate garage, fittings etc

14. 3. A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for rewards or for sale or other commercial purpose. For purposes of this subsection ‘mushroom’ includes any fungus, and ‘plant’ includes any shrub or tree
This means that a person foraging for wild food is not guilty unless they sell it or are being paid to do so

15. 4. Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession by, or on behalf of, another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession
This means that a person who traps a wild rabbit is not guilty of theft. However, once someone else has caught the wild animal, it can then be stolen.

16. Oxford v Moss (1978) – confidential information is not property within the meaning of the Theft Act 1968: in this case, an examination paper
Marshall (1998)- the court took into account the value (the intangible property in a travel card when convicting defendants who had asked for tickets finished with by travellers that still had some value left on them
Kelly (1998) – the court decided that body parts could be property for the purposes of theft even though the common law is that there is no property in a corpse

17. Actus reus: element 3 – Belonging to another
The Theft Act 1968 s5 deals with this element of the actus reus of theft. The general principle is set out in s5(1) as:
1. Property shall be regarded as belonging to any person having possession or control of it, or having in it any propriety right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest)

18. This means that at the time the property is appropriated it must belong to another. This clearly involves rights that are less than ownership, as the Act refers to concepts such as possession and control
Possession and control – a person who owns property has the fullest rights over it. Possession is the physical ability to enjoy the property – tangible and intangible
Ownership of property may be separated from possession – Webster (2006) – where duplicate property has been delivered to the defendant by mistake, the defendant cannot keep the second item; it remains the property of the person who sent it in error

19. There are other rights less than ownership that a person can acquire in various ways. This can include the right to retain possession of goods until a bill has been paid. This can be seen in the case of Turner (No.2) (1971) – a person can be convicted of theft where he steals another person’s rights over goods; in this case it was the right to retain possession of the goods until a repair bill had been paid; the defendant appears to have been convicted of stealing his own car, but in fact it was the right over the car that was stolen
It is also the case that a person could be convicted of stealing stolen goods from a thief who had possession of the stolen goods. The court decided in Kelly (1998) that s5(1) does not include the word lawful, so any form of possession, even unlawful will suffice.

20. A person can be in control of property even though he does not know that he possesses it. Woodman (1974) – a person can be in control of property he does not know he possesses; in the case, scrap metal in a disused factory
Where property is abandoned, there is no owner of that property. The problem is what amounts to abandonment – if I lose a wedding ring, the finder will be guilty of theft if they keep it, whereas if you deliberately leave a paper on a train you will be abandoning it
Rubbish placed in a dustbin for the council to collect becomes owned by the council – Williams v Phillips (1957) – property that has been abandoned by its owner may become the property of those that remove it; in this case, the council owned rubbish left for collection

21. 3) Where a person receives property from, or on account of another, and is under obligation to the other to retain and deal with that property, or its proceeds in a particular way, the property or other proceeds shall be regarded (as against him) as belonging to the other.
This means that the Act recognises that there are obligations that are in existence that may not be quite as formal as a trust, but still give rise for the opportunity to commit the offence of theft. Cases on this usually involve money being given to someone for a particular purpose.

22. Davidge and Bunnett (1984) – where money or cheques are given for a particular purpose, they must be used for that purpose or there can be a conviction for theft
DPP v Huskinson (1988) – where money or cheques are given for a particular purpose, there can be a conviction for theft only if there is a legal and not merely a moral obligation to use the proceeds for that purpose

23. 2) Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right.
This means that money held in any form of trust is money belonging to another and this can be seen to occur where there is difficulty in showing a legal obligation rather than a moral obligation.
Wain (1995) – where money is held in trust for someone, the money is money belonging to another – following the case of Dyke and Munro (2001), this principle will apply even if there is no specific person who is to benefit from the trust

24. 4) 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.
This simply means that, where you are given something by mistake and have a legal obligation to give it back, keeping it may be theft