Theft Act 1968 Offences
Section 1: Theft
Establishing Theft
The actus reus of theft is appropriating property belonging to another: s 1(1).
The mens rea of theft is established if the defendant was dishonest when he appropriated the property and intended to permanently deprive the other of the property: s 1(1).
What is Appropriation?
Appropriation is any assumption of the rights of an owner. This includes keeping or dealing with the property where the defendant initially acquired the property without stealing it: s 3(1). There can be multiple appropriations in the course of one transaction with property. However, there can only be one completed theft of a piece of property by one defendant: R v Atakpu (1994) Crim LR 693.
If the defendant purchased the property in good faith, section 3(2) provides that later assumption of ownership rights which that person believes themselves to have shall not be treated as theft just because the person transferring the property did not have good title to the property.
The following principles apply to determining whether there is an appropriation:
An appropriation is the assumption of any ownership right, even if it is not all of them: R v Gomez [1993] AC 442. For example, switching labels on goods in a shop is appropriation even before the goods are taken: R v Morris [1983] 3 WLR 697.
An appropriation can occur even where the defendant has the owner’s consent to do the act: R v Gomez [1993] AC 442. This is because there does not have to be any immorality or impropriety for something to be an appropriation.
The defendant can appropriate property even if he simultaneously becomes its sole and indefeasible owner: R v Hinks [2000] 4 All ER 833. This might happen, for example, if the victim gifts property to the defendant – the appropriation is receipt of property in the gift.
The defendant must interact with the property at some point, whether by physically touching it or controlling the account in which money is contained. Causing the victim to transfer property to a third-party themselves is not appropriation: R v Briggs [2004] EWCA Crim 3662.
There is no requirement that the victim loses anything in practice. For example, the fact that the victim has the right to be compensated for the lost property by a third-party is irrelevant: Chan Man-sin v Attorney General of Hong Kong [1988] 1 All ER 1.
What is Property?
Section 4(1) defines property as including ‘money and all other property, real or personal, including things in action and other intangible property.’ This does not include land, wild mushrooms and flowers (unless picked for commercial purposes) and wild animals not reduced to another’s possession: s 4(3). Services are also not property.
When Does Property Belong to Another?
Property belongs to another if another person has possession or control over the property, or possesses any property right or interest in the property: s 5(1).
Property can belong to another even where it is illegal to possess that property, such as where the property is illegal drugs: R v Smith [2011] EWCA Crim 66.
It does not matter that the property also belongs to the defendant so long as there is some other person to whom the property belongs: R v Bonner [1970] 1 WLR 838. A thief can also steal from another thief: R v Meech [1956] QB 549.
The victim possesses property if they have a significant degree of control and intend to possess the property. This can be broad, such as an intention to possess everything on the victim’s land: R v Woodman [1974] QB 754.
Legal obligations to return property given by mistake and trust-enforcement rights count as relevant interests in property: s 5(2) and (4). Property is also treated as belonging to another if it was given outright to the defendant, but under a legally enforceable obligation to use it for a specific purpose: s 5(3).
If the victim writes a cheque for the defendant in exchange for consideration, the defendant acquire two pieces of property. The first is physical property in the paper. The second is a chose in action (the right to sue the victim’s bank). However, the chose in action never belonged to anyone else. This is because it vested in the defendant the moment it came into being. As such in this situation, the defendant can only be convicted of stealing the physical paper: R v Preddy [1996] AC 815.
When is the Defendant ‘Dishonest’?
The defendant’s conduct is dishonest if ordinary and honest people, knowing or believing the circumstances to be as the defendant knew or believed, would consider it dishonest: Ivey v Genting Casinos [2017] UKSC 67. It was formerly the case that the defendant also had to appreciate that ordinary, honest people would consider his conduct dishonest, but this is no longer good law: R v Barton and Booth [2020] EWCA Crim 575.
Section 2 of the Theft Act 1968 creates three special categories in which the defendant is not to be regarded as dishonest:
Where the defendant believes he has a legal right to deprive the other person of the property, whether on his own behalf or on behalf of a third-party.
Where the defendant believes that he would have the consent of someone entitled to give it if they knew of the appropriation and circumstances.
Where the defendant believes that the person to whom the property belongs cannot be discovered by taking reasonable steps.
The mere fact that the defendant is willing to pay does not necessarily make him honest: s 2(2).
Intention to Permanently Deprive
Merely borrowing property is not theft. This is because the defendant intends to return the property rather than permanently deprive the other person of it. Borrowing motor vehicles and conveyances specifically can be an offence under section 12.
However, conditional intention to deprive will do. An example would be where the defendant picks up a handbag intending to steal only if there is something valuable in it: Attorney General’s Reference (Nos 1 & 2 of 1979) [1980] QB 180. Prosecutors must be careful when wording indictments where the defendant has only conditional intent, however – they should not say that the defendant intended to steal a specific item: R v Easom [1971] QB 315.
As explained above, where the victim writes the defendant a cheque, the defendant might be charged with stealing the paper. However, cheques are returned to the victim once presented for payment. This means that normally the defendant will lack intention to deprive the victim of the physical piece of paper and so cannot be convicted of stealing that either: R v Clark [2001] Crim LR 572.
Where the defendant intends to return the property, he may still be treated as having intention to permanently deprive:
- The defendant intends ‘to treat the thing as his own to dispose of regardless of the other’s rights’ by taking to for such a period and in such circumstances that it is ‘equivalent to an outright taking or disposal’: s 6(1); or
- The defendant possesses or controls property belonging to another and parts with it (without authority) to a third party, wherein it will only be returned to the defendant if he performs a condition he may not be able to perform: s 6(2).
For example, it might be theft under s 6(1) if the defendant takes a train season ticket intending to return it after it has expired. It might be theft under s 6(2) if the defendant gives goods to a pawn store.
Section 8: Robbery
Establishing Robbery
The actus reus of robbery is established where the defendant commits the offence of theft where immediately before or at the same time, and in order to commit theft, he uses force on any person or makes or seeks to make any person apprehend being then and there subjected to force: Theft Act 1968, s 8(1); R v DPP [2007] EWHC 739.
The mens rea of robbery is the same as the mens rea for theft, with the additional requirement that the defendant must intend to use force on a person or make another apprehend the use of force.
Force
It is enough that the victim apprehends that force may be used on him, even if there is technically not an assault: R v Tennant [1976] Crim LR 133.
It is possible for force to be treated as used on a person (or feared by the person) even where the defendant only uses force on their property: See e.g. Corcoran v Anderton (1980) 71 Cr App R 104.
There must be some physical interaction with the victim for force to exist, however: P v DPP [2012] EWHC 1657.
Timing of the Force
The courts have been flexible about the timing of the force. The process of stealing is looked at as a whole. This means that force can be used ‘at the time’ of stealing even though it was used after appropriation occurred: R v Hale (1978) 68 Cr App R 415.
Section 9: Burglary
Establishing Burglary
There are two ways of establishing burglary:
The actus reus of the first way is entering any building or part of a building as a trespasser: Theft Act 1968, s 9(1)(a). The mens rea is intention to commit theft, infliction of grievous bodily harm or a criminal damage offence. The defendant must also intend to enter the building, knowing or being reckless as to the facts which make him a trespasser: R v Collins [1973] QB 100; R v Jones (1976) 63 Cr App R 47.
The actus reus of the second way is established if the defendant has entered a building or part of a building as a trespasser and steals or attempts to steal anything in the building or inflicts or attempts to inflict GBH: Theft Act 1968, s 9(1)(b). The mens rea is the same as the mens rea for theft, infliction of GBH, or an attempt to commit these offences. The defendant must also intend to enter the building, knowing or being reckless as to the facts which make him a trespasser: R v Collins [1973] QB 100; R v Jones (1976) 63 Cr App R 47.
Greater sentencing powers are available if the building is a dwelling or a vehicle or vessel in which someone lives: s 9(3)-(4).
What is a Building?
A building is a structure which is relatively permanent. It does not need to be complete, though a structure which is too unfinished may not be a building: R v Manning & Rogers (1871) LR 1 CCR 338. A building will normally be covered with a roof, though structures under construction which are intended to have a roof but one has not yet been installed can be a building: Ealing LBC, ex parte Zainuddain [1994] PLR 1.
Structures which are normally very temporary, such as tents, are probably not buildings even if they have been up for a long time. Sturdier structures such as portakabins might be.
Entering a Building
The defendant enters the building if any part of him enters, no matter how slightly: R v Davis (1823) Russ & Ry 499. This is true even if the defendant has not entered sufficient far to be capable of committing theft or any of the other relevant offences: R v Ryan [1996] Crim LR 320.
Under the old common law version of this offence, if a tool held by the defendant enters the building, this could be an ‘entry’. However, it would not be enough if the only reason it entered the building is because it was being used to secure entry (such as where a drill cuts through a lock through to the other side). It is not clear if these principles apply to statutory burglary. This is because there has not been a case on the point.
Trespassers
Trespass bears almost the same meaning as under the civil law. In brief, a trespasser is someone who does not have permission to enter from someone entitled to give that permission. A visitor who has exceeded the terms and conditions of the permission they were given is also a trespasser: R v Jones & Smith [1976] 3 All ER 54. The only difference is that the classes of people who can give valid permission is broader – it can extend to people who live in the house who are not the occupier or owner: R v Collins [1973] QB 100.
It does not matter that the defendant entered involuntarily or mistakenly thought he was entitled to enter. However, this will be relevant to mens rea.
Dwellings
Dwelling is not defined by the Act, and the Court of Appeal has stated that it is a factual question which should not be specifically defined: R v Flack [2013] EWCA Crim 115.
If a building is usually lived in, it can remain a dwelling even though no one is presently living in it: Hudson v CPS [2017] EWHC 841.
It is not clear whether the defendant needs to be aware that he is in a dwelling for the enhanced sentencing powers to apply. It is possible, by analogy with the rules on trespassers, it is enough that the defendant is reckless.
Aggravated Burglary
Section 10 created an offence of aggravate burglary. It is committed whenever the defendant commits ordinary burglary while having with him a firearm (including airguns and pistols), imitation firearm (even if it cannot be discharged), offensive weapons (those made, adapted or intended to injure or incapacitate) or explosive.
The item must be possessed at the time of the burglary, not merely outside the building or in a getaway vehicle: R v Klass [1998] 1 Cr App R 453.
Whether the defendant has the weapon with him depends on factors such as the distance between the defendant and the weapon, its accessibility to him and the purpose of his acts: R v Henderson [2016] EWCA Crim 965.
There is no need to prove the defendant intended to use any offensive weapon brought with him in the course of the burglary: R v Stones [1989] 1 WLR 156.
The aggravated offence does not apply if the defendant embarks on the burglary without a weapon but arms himself with something nearby on encountering the victim: Ohlson v Hylton [1975] All ER 490. If he arms himself in the building before encountering the victim, this can constitute aggravated burglary provided he was armed when he stole something: R v O’Leary (1986) 82 Cr App R 341.
Section 21: Blackmail
Establishing Blackmail
The actus reus of blackmail is making an unwarranted demand with menaces: Theft Act 1968, s 21(1).
The mens rea of blackmail is intending to make the demand with a view to making a gain for himself or a third party or causing a loss to another: Theft Act 1968, s 21(1).
Unwarranted Demands and proper means
Demands can be explicit or implicit, direct or indirect. A demand is unwarranted unless the defendant believes that he has reasonable grounds for making the demand and believes the use of the menaces is a proper way of reinforcing the demand: s 21(1). This is a subjective test. This means there is no need for the demand or use of menaces to be objectively reasonable: R v Harvey (1981) 72 Cr App R 139.
‘Proper’ means is a wide term, but an act which the defendant knows or suspects is unlawful cannot constitute proper means: Harvey.
The Meaning of Menaces
‘Menace’ has a broad meaning, going beyond threats of violence to persons or property. It includes any action which an ordinary person of normal stability might find detrimental (such as the publication of damaging information) or which the defendant knows the victim in particular will find detrimental: Thorne v Motor Trade Association [1937] AC 797; R v Harry [1974] Crim LR 32; R v Garwood [1987] 1 WLR 319.
There is no need for the defendant to be the one who will carry out the menace: Theft Act 1968, s 21(2). In addition, it does not matter that the defendant cannot carry out the threat: R v Lambert [2009] EWCA Crim 2860.
Making Gains and Causing Losses
Gain and loss in this context refers to economic and proprietary gains and losses only: s 34(2)(a). As long as the defendant intends to cause the gain or loss, it does not matter that he fails to achieve this goal for whatever reason: R v Custance [2007] EWCA Crim 520.
Section 22: Handling Stolen Goods
Establishing Handling Stolen Goods
The actus reus of handling stolen goods is receiving stolen goods, or undertaking or assisting in their retention, removal, disposal or realisation by or for the benefit of another person, or arranging to do so: Theft Act 1968, s 22(1).
The mens rea of handling stolen goods is dishonesty in doing the relevant act and knowledge of belief that the goods are stolen: Theft Act 1968, s 22(1).
The defendant cannot be convicted of handling stolen goods in relation to his own acts of stealing the goods. The defendant likely must no longer be ‘on the job’ for a handling offence to be relevant: R v Atakpu (1994) Crim LR 693.
‘Goods’
‘Goods’ refers to money and all forms of property except for land: s 34(2)(b). This includes things in action: R v Forsyth [1997] 2 Cr App R 299.
‘Stolen’
Goods are ‘stolen’ if they were obtained by theft, fraud, or blackmail, or dishonest withdrawal from wrongful bank credit: s 24(4). It is not enough that the defendant believed the goods are stolen – they must have actually been obtained using one of the above offences: R v Haughten & Smith [1975] AC 476.
The goods cease to be stolen once they have been returned to the victim (or someone acting on their behalf) or the victim has lost any right to claim the goods in restitution law (typically when purchased by an innocent buyer): s 24(3). The victim or their representative must have acquired possession of the goods. Merely marking them or having the opportunity to examine them is not enough: Attorney General’s Reference (No 1 of 1974) [1974] 2 All ER 899. The goods also cease to be stolen if someone else takes lawful possession of them. This is most relevant when the police take possession of the goods.
It is irrelevant whether the defendant acquired the goods from the thief, another handler or someone who was unaware the goods are stolen.
Representative Goods
Section 24(2)(a) provides that goods acquired by the thief in return for disposing of stolen goods count as being stolen themselves. So, if T steals a necklace and exchanges it for a car, that car counts as being stolen.
Section 24(2)(b) imposes the same effect on goods acquired by the defendant through the commission of a handling offence. So, if the defendant purchases a necklace from the thief knowing it to be stolen and then exchanges it for a designer handbag, that handbag counts as stolen.
The Different Forms of Handling
The actus reus of the s 22 offence creates four different types of handling:
Receiving goods. This happens if the defendant takes (sole or joint) control or possession of the goods with intent to do so: R v Watson [1916] 2 KB 385. This can be via an agent.
Undertaking the retention/disposal/realisation (by/for the benefit of another). This probably refers to a situation where the defendant sets out to do these things on his own.
Assisting in the retention/disposal/realisation (by/for the benefit of another): this generally needs another party, such as the thief.
Arranging to do one of the previous three acts: this will normally involve an agreement with another person.
The following are definitions for the key terms:
Retention means keeping possession or control: R v Pitchley (1973) 57 Cr App R 30. Merely using stolen goods is not enough: R v Sanders (1982) 75 Cr App R 84.
Disposal refers to exchanging the goods for other goods or services, or destroying the goods.
Realisation means exchanging the goods for other goods or money: R v Bloxham [1982] 1 All ER 582.
The requirement that each of these acts be done by or for the benefit of another person is designed to normally prevent the thief from also being convicted of handling. This is because the thief will necessarily at least retain the stolen goods for a time. The thief can be guilty of handling if he does one of the acts for the benefit of another, however. The purchaser of stolen goods is not considered to be another person who benefits for these purposes: R v Bloxham [1982] 1 All ER 582.
