Theft Actus reus The most important offence under the Theft Act 1968 is theft itself, which

h is defined in s.1: o A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. o and 'thief and 'stea shall be construed accordingly This basic definition contains the five key elements of both the actus reus and the mens rea of the offence. Sections to ! of the Theft Act "#!$ offer some, limited, further guidance on the meaning of each element. %n order to establish liability for the offence, all five elements must be proved.

 This is important. The courts have devoted a great deal of attention to each of these elements, and appropriation in particular. &e will now discuss each element, and the courts' interpretation of them, in turn, starting with the actus reus elements: appropriation, property and belonging to another.

". Appropriation' can be done even with the consent of owner Section 3 attempts to provide a definition of the word 'appropriation', by stating that it is: o Any assumption by a person of the rights of the owner... 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 eeping it or dealing with it as owner. *ou can already see that appropriation means far more than simply !ta ing! something+ "hysically ta ing something, such as taking a wallet out of someone's pocket, would clearly amount to an appropriation. #owever, other less obvious forms of ac$uiring property may also suffice.

Appropriate the right of owner The second part of the definition, for e,ample, deals with a situation where there is no initial dishonesty when the property was ac$uired but the later decision to assume the rights of the owner is dishonest. A%T&'&T( (ou lend me your copy of )ilson so that & can revise for my criminal law e*am. After the e*am+ & sell the boo to another student. #ave & appropriated your boo for the purposes of the offence of theft, Although you gave me the book initially and % therefore came by it innocently at that time, after the e,am % know that % should have returned the book to you. -y decision to sell it was an assumption of your rights as the owner of the book and % have therefore at that point appropriated it.

Appropriate any right of owner is enough Two ma-or issues have arisen in relation to appropriation: is it the assumption of all or any of the rights of the owner. Section / is ambiguous in this respect as it simply states that appropriation is an assumption of 'the rights of an owner'. The #ouse of .ords clarified this issue in -orris 0"#$/1 / switched the labels on two items on a supermarket shelf, intending to buy the more e*pensive item at the price of the cheaper one. 2e was apprehended before he had paid for the goods at the supermarket checkout. 3 had assumed the rights of the owner to label the goods at a particular price.

 This was 0ust one of the owner!s rights. As 3 had not paid for the goods and left the supermarket, he had not assumed all of the rights of the owner (including the right to use, sell or dispose of the goods). 3 was convicted The 2ouse of 4ords confirmed that an appropriation is committed at the point where / has assumed any, if not all, of the rights of the owner. %n this case an appropriation had ta en place at the moment that / had switched the labels+ even though he had not !ta en! the goods.

Appropriation can occur even with the consent of owner .awrence %n that case a ta*i driver 1/2 gave a lift to an %talian student (5) who did not speak 6nglish very well. ' offered / his open wallet so that 3 could take the right amount of money for the fare. The actual fare was 34p but / too 56 from the wallet. 7egardless of 3's dishonesty, the money was offered to / with '!s consent. The 2ouse of 4ords declared that '!s consent+ was not relevant in determining whether an appropriation had ta en place. 0whilst consent relevant to the issue of dishonesty1

6ome78 latest affirmation decision 8ome9 was the assistant manager of a shop. 2is friend asked him to supply goods from the shop in e,change for stolen che:ues. / told his manager that the goods were for a genuine order and that the ban had said the che$ue was 9:. 3 handed the goods over in e,change for the che$ues+ which were not accepted by the ban . 6ome7 was charged with theft. The owner of the goods (for the purposes of this charge) was the shop manager who authorised the handing over of the goods, so he did consent to the appropriation. 3 was convicted

 4ord ;eith said that !it was erroneous and unnecessary to indicate that an act e,pressly or impliedly authorised by the owner could never amount to an appropriation!.

Commentary The effect of the -udgment in 8ome9 is significant as it has substantially widened the meaning of !appropriation' within the definition of theft. Appropriation now bears such a wide meaning, rendering this aspect of the actus reus relatively easy to prove, that we must now rely on the mens rea of dishonesty to limit criminal liability to acts that are 'blameworthy' or manifestly wrong.

Application In a self-service supermarket D takes a loaf of bread off the shelf and places it in his shopping trolley. V drops her purse in the street. D picks it up and hands it back to her. D takes a leaflet, advertising a forthcoming production, from the foyer of his local theatre.

 All of these e*amples do involve an appropriation since they all involve an assumption of the rights of the owner. After the decision in 8ome9, it is irrelevant whether the owner consents to the appropriation or not. <f course, none of these actions would necessarily constitute a theft unless the other actus reus and mens rea elements are present. They serve to demonstrate, however, that the notion of appropriation of property is very wide and may involve doing something that is not, in itself, demonstrably wrong.

Appropriation occur when the point of assumption &hen 3 remove the goods from the control of =, 3 and > into their own control, in law the appropriation has occurred at an earlier stage. &hen, for e,ample, ; put his hand on the wallet inside <=s poc et, and before he removes it, he may be said to have appropriated it because, at that instance, he is assuming the rights of the owner, <. 9ne of <=s rights is to en0oy the undisturbed possession of his wallet? in asserting a right to possess it himself, ; is assuming <=s right. %orcoran v Anderton A got his hands on the bag and there was a struggle for its possession during which the bag fell to the ground. A and = then ran off emptyhanded. the theft was complete when the handbag was appropriated, i.e.

when A grabbed it and tried to take it from her@that conduct was an assumption by A of the owner=s rights.

6ven a 8ift given can be appropriation 03 has the absolute right The concept of appropriation was widened further by the case of #in s 0 AAA1 %n this case, 3 befriended '+ an elderly man of limited intelligence. <ver a period of time 5, accompanied by 3, withdrew substantial sums of money from his ban account and gave them to /. / was charged with theft but claimed that the sums of money had been gifts and that ' had voluntarily relin$uished his rights to them. o This amounted to 3 ac$uired an indefeasible right to the property in civil law The 2ouse of 4ords held that, after 8ome9, '!s consent to the

appropriation was irrelevant and therefore the receipt of the money could amount to an appropriation. "rovided / had the -> for theft, this could also amount to a theft. (3 was convicted so presumably the -ury had decided that she was dishonest.) o %n this case there was no deception, the property was freely given as a gift and 3 ac:uired an indefeasible right to the property (that is, the transaction was valid under civil law, unlike in 8ome9 where the contract of sale would have been voidable in contract law because of misrepresentation). This case serves to demonstrate that appropriation is now virtually meaningless as the consent of the owner is irrelevant and the manner by which the property is appropriated is irrelevant (in 2inks the appropriation was essentially committed by omission, by failure to return the money to V).

%ontrast? Situation where no appropriation' victim causes a payment to be made in reliance on deceptive conduct by D, there is no appropriation by D until the money actual in Ds hand @riggs 3, by deception, had induced her elderly to proceeds of their house sale. The appellate court, however, :uashed 3s conviction for theft of the credit balance. Bourt held that: &here a victim causes a payment to be made in reliance on deceptive conduct by /, there is no appropriation by 3 Bharge under fraud instead %t is true that / procures the whole course of events resulting in '=s account being debited? but the telegraphic transfer is initiated by ' and his voluntary

intervening act brea of causation.

the chain

&t is the same as if ' is induced by deception to ta e money out of his safe to pay /. / does not at that moment Aappropriate= if@' is not acting as his agent. And since / lac in this sense of positive act

/ commits theft only if and when the money is put into his hands.C

Distinguish point from Hint #in s B @riggs. &ssue? %an cases of / inducing ' to transfer property away from ' amount to CappropriationC, Answer? Do CappropriationC until B unless / ac$uires the property Eand this can amount to positive actF The distinction? 112 /!s direct act towards '!s property 1such as in #ilton wherein / instructed the money from a charity account which he was in control to be transferred to pay his debt2 8 can amount to #in sG6ome7 appropriation. 1H2 /!s act of causing ' to transfer '!s property to / 1ie indirectly causing the transfer2 8 does not amount to #in sG6ome7 appropriation until / ac$uires it 8 principle in @riggs.

 &n @riggs+ / induced ' to instruct '!s lawyer to pay I to another law firm to buy a property under /!s name. Thus+ I was never ac$uired by /. Although / was not liable for theft+ / was liable on other counts of fraud offences.

 So+ / never ac$uired the money+ it is that ' voluntary act brea the chain of causation And Their 4ordships concluded that appropriation is a word which connotes a Jphysical actC which must not be a remote action triggering the payment which gives rise to the charge.

 Smith and 2ogan: Argument &f / ma e ' act on his behalf+ then will be liable for theft Similarly / deceive ' as to the nature and $uality of the act of transfer =y setting in motion the transaction, defendant, by initiating the whole transaction, can be viewed as effecting the Dcontinuing act of appropriation=

Appropriation occur even 5 will get benefit )heatley v %ommissioner of "olice for the @ritish 'irgin &slands 0 AA!1 3 was a government official who had awarded a lucrative contract to E and received a payment from ' for doing so ' a straightforward case of corruption. 3 was charged under the =5% e:uivalent to the Theft Act s.1 and was convicted. <n appeal to the FB his conviction was upheld %n this case, as in 2inks the property freely handed over as a gift (or bribe). &hat is different about this case is that the victim of the theft not only did not suffer any loss as a result of the theft but actually stood to gain financially from it.

 2owever, this did not prevent the actions of / being an appropriation for the purposes of theft. %ndeed, 4ord =ingham said: o it is certainly true that in most cases of theft there will be an original owner of money or goods who will be poorer because of 3's conduct. o =ut in Morris, D was arrested before paying the reduced price for the goods, so that the supermarket suffered no loss. ... o %t is accepted that the theft was carried out for a purpose which could financially benefit the victim.

DAny assumption included beyond merely physical taking / advertises for sale in his local newspaper the furniture in his mother!s house. #is mother nows nothing of the advertisement. #as / appropriated the furniture, This scenario raises the :uestion of whether the concept of appropriation is now so wide that it is possible to assume the rights of the owner 1with or without their consent2 without ever physically coming into contact with the property. The owner has a number of rights and the following have been treated as an appropriation: "itham and #ehl ("#G!) (/ offering to sell "=s furniture in "=s absence, right to sell a right of ownership)?

 "ilgrim v >ice8Smith 0"#GG1 (3, a supermarket assistant in cahoots with a customer, acting to understate price of goods on wrapper so goods sold for less than true price)? >ogers v Amott 0"#!A1 (bailee offering to sell tape recorder)

)ould your answer differ if /!s advertisement offered the %rown Kewels for sale, &hat if 3 offered to sell the Brown Hewels. 2as he interfered with the rights of the owner. &t has been suggested that this can never amount to an appropriation because / is not in a position to actually threaten the rights of an ownerI (the Brown Hewels are kept securely in the Tower of 4ondon, and even if 5 was gullible enough to pay 3 for them, 3 would never be able to pass ownership of the Hewels to 5). 3o you agree. 3oes it matter whether or not 5's ownership rights are actually under threat.

 #owever+ the Act stated that Aany= assumption may include this type of scenario &t will be better to convict him in theft in the situation that he get the money from the ' instead of theft to the 0ewel

Assumption of right does not mean physically taking it, it can be even destroy it, without any gain to 3 The definition says that JanyC assumption of the rights of an owner amounts to an appropriation. Strictly, therefore, it amounts to an appropriation to destroy another=s property. Thus if A pushes @=s car over a cliff and thereby destroys it+ it can properly be said that he has appropriated the car.

 Kost laymen would not recognise this as a case of theft, and no doubt A would be charged under the Briminal 3amage Act "#G", but a charge of theft could be supported on provided 3 has the K7 This is clearly an appropriation@what could be a clearer assumption of @=s rights than destroying his car @and s.1112 makes it clear that the prosecution does not have to establish, on a charge of theft, that A intended to ma e any gain from his action.

Assumption of right of owner does not mean owner lose the right "itham and #ehl ("#G!) (/ offering to sell "=s furniture in "=s absence, right to sell a right of ownership)? Although the owner retains her rights to the property, / has interfered with at least one of those rights 'the right to sell it. Theft (and indeed an appropriation) need not involve the owner losing their rights or the property itself? any interference with those rights will suffice.

s.11H2' immaterial that appropriation made with view gain or thiefs benefit S.11H2 that it is immaterial that the appropriation is not made with a view to gain. Suppose A wants to purchase a painting from = which = refuses to sell? A may be convicted of theft if he ta es the picture though he leaves in its place money which more than represents its value. Alternatively A may wish merely to deprive @ of the painting without intending to en0oy it himself or to see it for his own profit? A may be convicted of theft because he intends the painting to be lost to = though he has no view to gain for himself.

S./(")' Appropriation include come by property without stealing by assumption of right as keepLdeal as owner Assume as discussed above Suppose then that A borrows =s lawnmower or bicycle or book for a week. &f A will become a thief if, with the necessary intent [discussed below], he removes the lawnmower to his new premises+ or he continues to drive the bicycle+ or he writes his name in the boo . <n the other hand, the fact that the draftsman specifies that there may be an appropriation in these circumstances when A has come by the property without stealing it rather implies that there is no fresh appropriation when a person has already stolen the property and subse:uently deals with it. That mean the items come to A without stealing

Section 31H2: The =ona >ide Furchaser Frotected from 4iability. &here, however, A receives the property in good faith from @ for consideration, if it later turns out that @ had no right to sell the property, no assumption of the rights of an owner by A over that property can amount to an appropriation for the purpose of a charge of theft against him (see s./( )).' Thus if A buys a car from @ in circumstances where A believes that @ is the lawful owner of the car, then if he is later told that % is the rightful owner of the car and that = had stolen it, A=s refusal to restore the car to % would not amount to theft. 2owever, if A later sells the car to 3, he may be guilty of fraud contrary to s. of the >raud Act AA! since he will have impliedly represented that he had title to sell, when he clearly did not.

 The effect of s./( ) is clearly illustrated by the case of Adams The defendant bought something but in fact the things were stolen goods. / had been falsely told that the parts came from a motorcycle previously written off in a crash. #e had no suspicions on their true origin until H83 days after their initial ac:uisition by him. %t was held that there was no actus reus of theft at the precise moment / ac$uired the parts.

Appropriation must be in positive act @riggs Their 4ordships concluded that appropriation is a word which connotes a Jphysical actC which must not be a remote action triggering the payment which gives rise to the charge. %n order for the offence of theft to be committed then 3 must be viewed as having committed an identifiable act of appropriation

. "roperty The :uestion of what constitutes property is important in relation to both theft and many other property offences such as obtaining property by deception and robbery. %t is important that we can state authoritatively what can be stolen and what cannot. Section L112 of the Theft Act "#!$ sets out a definition in the following terms. o 'Froperty' includes money and all other property, real or personal, including things in action and other intangible property. This is so wide that it does not appear very helpful. %t does, however, tell us that property does not have to have physical form in order to be stolen,

although it must be capable of appropriation.

8as, &ater can be steal but not 6lectricity e,cept under abstraction 6as and water are clearly within the definition of property in s.L1l2 and are thus capable of being stolen, as was held in ow v !lease ;lectricity, on the other hand, does not constitute property and cannot, therefore, be stolen. There is a separate offence to deal with the unlawful abstraction of electricity. o The Theft Act "#!$ does create a separate offence of !abstracting electricity! in s."/ which is the e$uivalent to !stealing! electricity.

!ntangible property Things in action 0chose in action1 Section L112 makes it clear that choses in action and other intangible property are capable of being stolen. %hoses in action are rights which can only be enforced by ta ing legal action.

;g+ such as a debt, copyrights and trade mar s? patents are not choses in action but they are clearly a form of intangible property.

A debt can be stolen from the person to whom it is owed (though sadly not from the person in debt+).

% 3ebt by che:ue can be stolen 3ebt issue applied to the che:ue A che$ue is tangible property in the sense that it is a piece of paper? o but in its tangible form it is not worth very much. o %ts real value is intangible as it creates a thing in action ' the right of the payee to the sum specified on the che$ue (which the bank then owes to the payee).

%han -an Sin v Attorney86eneral of #ong :ong where the appellant, accountant for companies, forged che$ues to withdraw some from the companies= ban accounts, which he then deposited in his personal account #e was charged with theft of choses in action, namely debts owed by the companies= ban to the companies. o That mean D steal the debt owe by ban" to company The Frivy Bouncil determined that by drawing, presenting and negotiating forged che$ues on the companies= accounts at their bank the appellant was assuming the companies= rights as owners of the credit in the account.

iiBredit balance can be stolen A credit balance in a ban account can also be stolen ' this is not money nor is it tangible but it can be appropriated through a transfer of funds between accounts. A ban balance is, in fact, a thing in action, as it is a debt owed by the ban to the account holder. )illiams 1>oy2 that the presentation of a che:ue by or on behalf of the defendant, causing a diminution of the victim=s credit balance or his bank account, amounts to an appropriation of the victim=s property. )here / presents the che$ue and it is honoured / steals a chose in action+ namely '=s credit balance or right to overdraw his account.

4and is not the property unless / e,ceptions .and, again, is tangible in the sense that has a physical e*istence, but it is unli ely to be stolen in its tangible form. A person!s rights over land are more valuable and these are intangible. Section L1H2 e,pressly states that land is not property for the purposes of the offence of theft. This general rule is, however, sub-ect to the e*ceptions set out in s.L1H2.

i. s.L1H21a2.'Trustee breach the confidence can steal Section M( )(a). A person who falls into a certain category of individual, for e,ample, a trustee or personal representative who deals with the property in breach of the confidence reposed in him can steal land or things forming part of it. >ights over land may be stolen by a trustee (for e,ample by selling it in a way not authorised by the trust agreement)

ii. s.M( )(b) Appropriate part of the land Section M( ) (b). A person who 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. Thus this section does not apply to an owner who is living on the land or someone living on the land by virtue of a tenancy or trustee

iii. Tenancy steal fi,tureLstructure of the land Section M( )(c). A person in possession of the land under a tenancy who appropriates the whole or any part of a fi*ture or structure let to be used with the land. %n this regard a tenant who ta es a fi*ture+ for e*ample a fitted itchen or Adams fireplace+ will commit theft A tenant cannot steal the property he leases but he can steal fi*tures which form part of that property, such as fi*ed cupboards+ shelves or appliances 1s.L1H21c22.

iv. Application M has moved a boundary fence so that two acres of (=s land now appear to belong to M. Since this involves the land itself and no act of severance is involved, only if E falls within s.M( ) (a) can this amount to theft. %n fact persons falling within s.L1H21a2 would be guilty of theft in all the following situations and so no further mention will be made of them. %f not then it is trespass in civil law but not criminal

M removes a layer of turf from (=s land which he then sells. &f M is not in possession of the land he will be guilty of theft by virtue of s.L1H21b). %f he is in possession of the land by virtue of a tenancy he will not be guilty of theft since turf cannot be regarded as a fi*ture or structure under s.L1H21c2.

M cuts down a tree on land belonging to ( and removes it for firewood. Again, unless he is in possession as a tenant+ he will be guilty by virtue of s.L1H21b)@he has severed the tree and removed it from (=s land. A tenant in possession would not be guilty of theft since this is presumably not what is meant by a fi*ture or structure let for use by the tenant.

M dismantles (=s bric and gives it to N.

garage

E will be guilty by virtue of s.L1H2 1b2 if he is not in possession of the land and s.L1H21c2 if he is a tenant in possession of the land. %t is noteworthy that a person in possession of the land under a tenancy will be guilty of theft if he merely sells it to N with a promise to dismantle it laterO 0appropriate is done1 s.L1H21c2 does not re$uire severance.

M dismantles (=s greenhouse and gives it to N. E will be guilty by virtue of s.L1H2 1b2 if he is not in possession of the land and s.L1H21c2 if he is a tenant in possession of the land. ;*cept that if the greenhouse is of a temporary nature and not fi*ed to the land &t may be regarded as an ordinary item of property and stealable by virtue of s.L112.

%nformation cannot be constitute as property As the Theft Act was drafted in "#!$ it is silent on the issue of other forms of intangible property, such as electronic data or information, which may now pose problems in the light of technological advances. &nformation cannot constitute property, even though it may have considerable commercial or other value. %n 9*ford v -oss ("#G$) a student who illicitly read an e*amination paper but returned the paper to its rightful place was held not to be guilty of theft of the information on the paper.

>lower cannot be stolen unless for commercial Section L132 deals with wild flowers, mushrooms+ fruit and foliage, which cannot be stolen by pic ing unless they are pic ed for commercial purposes or for sale. E goes on to (=s land and pic s some mushrooms and some strawberries. %f these are wild and if M intends them for his own domestic use he commits no offence. %f, however, they are cultivated or he intends to sell them he commits an offence. %t is suggested that a purposive approach needs to be applied to this section.

 The altruistic individual who picks the mushrooms or strawberries to sell on behalf of a J%hildren in DeedP appeal, in contrast to the street trader selling for personal gain, will be viewed sympathetically by the courts. The former may not even be viewed as JcommercialP and is unli ely to be held to be dishonest (see s. below).

M goes on to (=s land and digs up a holly tree and saws the top off a fir tree. #e has committed theft in both instances since the e*emption in the subsection refers only to pic ing from plants+ and neither digging up the whole tree nor sawing a portion off a tree can be regarded as pic ing.

%ontrast' not wild A person who picks flowers from a flowerbed or greenhouse, or apples from a garden tree commits the actus reus of theft, since apples and flowers are property.

&ild animals is not property unless kept in captivity or the carcase which kept in possesion S.L1L2 &ild creatures, tamed or untamed, shall be regarded as property? but a person cannot steal a wild creature not tame nor ordinarily "ept in captivity, or the carcass 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 the course of reducing it into possession Section L1L2 suggests that wild animals are property but cannot be stolen unless they have been ept in captivity (for e,ample in a 9oo). o #ild animals can be $poached$, but this offence e%ists separately from the offence of theft and is dealt with in legislation such as the &almon Act '()*, the +ight ,oaching Act ')-) and the Deer Act '(('

 Neither can an animal carcass be stolen unless it has been !reduced into possession!. This would suggest that if / traps a wild rabbit this would not constitute theft, but once trapped the dead animal may be stolen from / by another.

2uman remain cannot be stolen as it is no'one property unless can be stolen if it is for medical purpose <ne cannot steal bodies or body parts because bodies are not personal property. Sharpe ("$OG), 3 dug up a corpse and sold it to a surgeon for dissection. 3 was charged with and convicted of theft, but his conviction was :uashed. As it was said in this case+ !a body wants no owner!. The same rule applies to body parts. :elly a human skeleton was deemed to be stolen #uman body parts or a human corpse are not property unless they are used for e*hibition or teaching purposes.

 So a human s eleton used by a medical student would be property which can be stolen.

Commentary There seems no logical reason why a corpse should not be capable of being stolen. &here a person has e,pended time or money in preserving a corpse or parts of a corpse 1such as idneys for use in transplants2 it would seem sensible to hold that these should be capable of being stolen. "resumably where a corpse has been cremated and the ashes retained by a relative+ the ashes should be capable of being stolen.

Fart of body can be stolen blood sample o 7othery urine specimen o )elsh a driver was guilty of theft for removing his own urine specimen from a police station. 2e did this to avoid a conviction for driving with e,cess alcohol. sperm from a sperm ban .

%ontrast? part of body cannot be stolen A cuts a loc of @!s hair because @ is a pop star and she wants a eepsa e. A has not committed theft of the hair. This is an offence against the person 1battery2+ not against property. Sharpe As it was said in this case+ !a body wants no owner!. The same rule applies to body parts

Froperty from the deceased can stolen unless belong to one The issue of JpropertyC of the deceased arose in Sullivan and @allion. 5 went to the home of the 3s, and there died. Then 3 took the money. The trial -udge dismissed the charge of theft of the money ruling that the property did not belong to another when it was ta en. Koreover, at the time of the alleged theft, the money could no longer belong to ' because he was dead. o %t is submitted that the logical outcome is that it belonged to the Brown as bona vacantia, in the event that no one was entitled as '=s principal or under '=s will or intestacy.

Application: )hich of the following may constitute property for the purposes of theft, A 514 note This is tangible property which can be stolen. A che$ue to the value of 514 This is a debt of 514 owed by the ban to the payee and is a thing 1chose2 in action which can be stolen. A ban balance of 514 This is a debt owed by the ban to the account holder and is a thing in action which can be stolen. Air Air is tangible property which can be stolen (but it must belong to another ' see s."!."./). So letting air out of a car tyre+ for e*ample+ might be theft.

6as 8as is tangible property. ;lectricity 6lectricity was thought in "#!$ to be incapable of being stolen and is therefore not property. The Theft Act "#!$ does, however, create a separate offence of !abstracting electricity! in s."/ which is the e$uivalent to !stealing! electricity. A human s eleton belonging to a medical student 1see :elly E1998F2 #uman body parts or a human corpse are not property unless they are used for e*hibition or teaching purposes. So a human s eleton used by a medical student would be property which can be stolen.

A pheasant shot on .ord Snooty!s estate As a wild bird, the pheasant is not property capable of being stolen. 2owever, once shot the carcass of the pheasant would be property belonging to .ord Snooty. '!s pet cat+ <luffy As >luffy is tamed and ept in !captivity! (and so is not a wild creature) she is property capable of being stolen.

/. @elonging to another 8enerally speaking, when property is dishonestly appropriated+ it must belong to another in order for that appropriation to amount to theft. %n many cases this is straightforward and self'evident. %f 3 takes a wallet from 5's pocket, at the time of the appropriation it belongs to another. 2owever, this does not necessarily depend on who 'owns' the property and it may, in a number of situations, be possible to steal property from someone who does not own it.

". Section O."' Ferson who possess or has control over, propriety right and interest Section 3112 gives a general definition of 'belonging to another' which goes beyond ownership: o "roperty shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an e.uitable interest arising only from an agreement to transfer or grant an interest). This definition hinges upon 'possession or control' as well as legal ownership. The breadth of this definition has some unusual results.

Ferson who possess or has control over, propriety right and interest Suppose that M dishonestly appropriates a television set which A rents from @. 3oes E steal the set from A or from =. Thus property can be stolen from a person who owns+ possesses or has control over it. %n the e,ample of the television set it can, therefore, be stolen from either A+ who has possession of it under a rental agreement, or from @ who owns it.

Froperty may belong to more than one person at a time. %f 3 goes into a supermarket and ta es a loaf of bread from the shelves and places it in his shopping trolley, at that point the loaf of bread belongs to both the supermar et (the legal owner of it) as well as / (who has possession and control of it).

Fossible to steal from company' Da separate person "hilippou %n that case the sole directors and shareholders of a company were convicted of theft from that company. %t illustrates the principle that a limited company is a separate JpersonP from whom property can be stolen even by those who control it.

Ban steal Froperty even though owner don't know that it e,ists/ may e%tend to rubbish %n )oodman 0"#GM1, a company, 6BB, owned a disused factory. They sold a $uantity of scrap metal to another company who collected most though not all of it. 3 entered the property and took some of the remaining scrap metal. / was convicted of theft because the scrap metal was in the possession and control of ;%% even though they did not now that it e*isted and even though they had sold it to another.

0%tend to rubbish1 Similarly where householders throw rubbish into a dustbin for collection by the corporation, they have in a sense abandoned the property? but not for the purposes of theft. This does not give the public the right to rummage through the bin to see if there is anything worth ta ing. Thus even in a situation where the householder is e,pected to place his dustbin in the street outside his house for collection, if E, a passerby, or even the dustman, takes anything from the bin there is a prima facie case of theft from the householder.

2ubbish belong to local authority when collected )illiams v "hillips ("#OG) A householder put refuse out for collection by the local authority refuse workers. %t was held by the 3ivisional Bourt that such refuse remained property belonging to the householder until collected, whereupon property passed to the local authority. So refuse workers helping themselves to such property could be convicted of theft, on the basis that the property had always belonged to someone #owever+ it might failed under dishonesty test

0%tend to lost 3olf ball #ibbert v -c:iernan 0"#M$1 3 was a trespasser on land owned by a golf club who collected golf balls lost and abandoned by their owners. 2e was charged with theft. 3 argued that, having been abandoned, the balls belonged to no' one: the ;ing's =ench 3ivisional Bourt disagreed. Although the balls no longer belonged to their previous owners, they did belong to the club. Since / was a trespasser, the golf club had the right to e*clude him from the course and+ therefore+ from the balls. To that e,tent the club had control of the balls and so they belonged to the club for the purpose of s.O.

Commentary Note that this means that other golfers would not be committing theft of balls which they found on the course. These balls+ having been abandoned+ would belong to no8 one as against them. %t is for this reason also that & am not guilty of theft when+ every Saturday+ & collect a do7en or so golf balls from my garden which some unfortunate golfer has hit there from the golf course abutting my property. The golf balls belong to me. & do not own them but+ for the purposes of s.3+ & am the only person who cannot steal them.

D will not be liable if no coincide %orcoran v )hent ("#GG) is a perfect, ifrare, e,ample of how a theft conviction is possible only where the property appropriated belongs to another person at the time of appropriation. 3 ate food in a restaurant with a friend. &hen he left the restaurant, his friend told him that the meal had not been paid for. / did not go bac to pay for the meal although his intentions on entering the restaurant were perfectly honest. 2e was later arrested, charged and convicted of theft. /!s conviction was $uashed on the ground that although all the elements of theft were present, they did not coincide.

 At the time the appropriation (eating2 of the property 1food2 belonging to another 1restaurant2 occurred, he had no mens rea for theft. At the time the mens rea was formed+ he did not appropriate property belonging to another for three simple reasons? o (i) one cannot assume rights of ownership over the contents of one's stomach, o (ii) the food was no longer food (property) it was mush in his stomach and o (iii) it belonged to no one, not even him However, if applied 4iller, he can liable as well [continuing act]

Fossible to steal something that you own provided any possession of interest from the other side %n Turner 1Do. H2 0"#G"1 / had left his car for repair in a garage. / secretly removed the car from the garage, intending to avoid paying the bill for the repairs. / was convicted of theft as the garage had possession and control of the car at the time that 3 appropriated it. #owever, in -eredith 0"#G/1, / left his car par ed illegally in a street while he attended a football match. The police removed the car to a police station. After the match, / went to the police station and drove the car away without the permission of the police.

 3 was charged with theft, but was ac$uitted. The essential difference between these two cases is that in Turner (No. ) the garage had an e"uitable interest in the car called a !lien! which entitled them to hold on to the car until their bill had been paid.

%ontrast: 7emove own car from police compound does not mean steal The police in -eredith did not have a lien over the car and were not entitled to withhold possession of the car from 3. /!s ta ing of it could not therefore amount to theft. The police could, of course, have fined 3 for illegal parking and failure to pay that fine would have resulted in a prosecution, but they had no rights over the car. "olice had no right to retain it as against the owner. The entitlement of the police to remove a vehicle blocking a highway did not e*tend to eeping the vehicle from the owner. This suggests that in Turner (No. ) the theft charge arose because the garage had a proprietary interest in the car.

Froperty belong to others even the person does not have control of it Subsections 31H28132 e,pand the definition of belonging to another further by detailing situations where property may !belong to another! even where that person does not have possession or control of it or any proprietary interest in it.

. s.O( )' intention to defeat the trust regarded as intention to deprive of property s.O( ) provides: o J&here property is sub0ect 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.P 6:uitable interests in property are protected. %f T is the trustee of property under a trust and @ is the beneficiary, the property can be stolen from either T who has the legal interest or from @ who has the e$uitable or beneficial interest. #owever, it does not cover a person who has an e:uitable interest which arises solely from an agreement to transfer property Es.3112F

3. Section 3132'retain the propertyLproceed in a particular way s.O(/): o J&here a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way+ the property or proceeds shall be regarded (as against him) as belonging to the other.C proceeds of an event or activity are the money that has been obtained from it This is intended to cover the situation in which the accused has been given property, money or otherwise, and is supposed to act in a particular way with that property and where he has acted against his instructions

 4et us assume a case in which M=s fellow employees have given him twenty pounds to go and buy some fish and chips for lunch. Qnder %ivil law+ now M is the owner to the money =ut if then E, on the way to buy the fish and chips, suddenly decides to put it all on a horse at the local betting shop, he is using money of which he is now the owner and he will pass a good title in the twenty pounds to the boo ma er. #e is+ therefore+ appropriating money which belongs to himself ' the fellow employees have neither ownership nor possession nor control of the money. Pnder s.O(/) the money will be+ for the purposes of theft, regarded as belonging to the employees if M was under an obligation to use that particular twenty pounds in a particular way.

Hudges decide whether the obligation arise as matter of law, it is not moral obligation &t is legal obligation but not moral obligation o /ubar )hether or not an obligation arises is a matter of law for the 0udge since the obligation referred to is a legal obligation+ while 0ury decide the fact &t does not matter whether / belief is moralGlegal 1/y e and -unro2 #owever+ if / believe is moral+ might relevant in establish -> dishonesty

%ncluded Bollect money from colleague A legal obligation arose in >loyd v 3FF in a scenario where / collected money in wee ly premiums from colleagues at work who had ordered goods from a food hamper company, then dissipated received income on herself. A legal obligation was held by the /ivisional %ourt to e*ist between / and the food hamper company.

%ncluded collect money for charity The nature of street collections on behalf of particular charities arose in /y e and -unro Their 4ordships confirmed that property in the money passed from the donor member of the public to the charity when the money was put in the collecting tin. &t was then stolen by whoever acted in a way inconsistent with the charity=s ownership of that money.

DFarticular money to Dparticular way e*cluded travel agent use the various booking money to pay for other trading #all The accused had set up as a travel agent and had ta en various sums of money from customers for the purpose of booking them on flights to America. #e paid all the monies into the general trading account. 4ater he was forced to tell these customers that his business was in trouble, that he had not boo ed the flights and that there was no money with which he could refund their deposits. 2e was charged under s." with theft, the prosecution relying on s.3132 to prove that the money belonged to the customers. <n the face of it this looks like a classic e,ample of s.O(/), but a

moments reflection will show that it is not :uite so simple. &as 2all supposed to use the actual monies paid in, or was his sole duty to use the firm=s money to ma e the boo ings, Blearly in the world of business it would be unreasonable for him to put each sum of money into an envelope and boo each customer=s flight with their own particular money. #is sole duty is to ma e sure the boo ing is made and if this is impossible to return an e$uivalent amount of money to the customer. Thus #all=s conviction was $uashed.

%ontrast: if not actual monies but proceed for charity collection )ain The appellant had ta en part in raising money for charity #e dissipated proceeds amounting to nearly 53+444. The appellant was under an obligation to retain at least the proceeds of the actual notes and coins collected. &hen he took money credited to a separate account into which he had paid those receipts, and moved it to his own personal ban account+ he had appropriated what was still the proceeds of the money collected, and accordingly s.O(/) applies.

 Kc8owan 4.H. stated: o J0%1t seems to us that by virtue of s.O(/), the appellant was plainly under an obligation to retain, if not the actual notes and coins+ at least their proceeds, that is to say the money credited in the ban account which he opened for the trust with the actual property. o &hen he took the money credited to that account and moved it over to his own ban account, it was still the proceeds of the notes and coins donated which he continued to use for his own purposes+ thereby appropriating them.P

%ontrast: travel agent may liable if obligated to trust >e :umar defendant was also a travel agent, but on this occasion was obligated to a trust that he would, after deducting commission, transfer money from the agency=s account to another body. %t was determined by the 3ivisional Bourt that he was under an obligation to retain and deal with the money in a particular way.

6,clude when legislation impose no duty /"" v #us inson There a tenant spent his housing benefit on himself rather than in payment of rent. 2e was ac$uitted of theft because the relevant legislation imposed no legal duty to use the money only for payment of rent and s.3132 was+ therefore+ again of no assistance to the prosecution

s.O(M)' Should restore if obtain by mistake by 5 The section provides: o J&here a person gets property by another=s mista e, and is under an obligation to ma e restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the e,tent 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 ma e restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.C

 S. O(M) only come to play only in unusual situation, not merely in mistake condition There are several mistake situation where no need to raised s. 31L2: o %f the ownership does not pass to the accused but remains with the person handing over the property, then the property still belongs to another without the need for s.31L2. o Thus if M as s ( if he can give him a 148pence piece in e,change for pennies and ( mista enly hands over a 348 pence piece it is arguable that ( retains ownership in the OA' pence and, thus, it is property belonging to (.

o %t is conceivable also that the effect of the decision in Bhase Kanhattan =ank NA. v %srael' =ritish =ank (4ondon), a civil law case, is that whenever money is paid under a mistake, the payer retains an e$uitable proprietary interest in the property which would satisfy s.O("), thus rendering reliance on s.O(M) unnecessary. o %n many cases where ownership in the property does pass despite the mista e, it has been caused to pass by fraud on the part of the recipient. o %n cases where this has happened the effect of 6ome7 is li ely to mean that the court will hold that the property still belonged to the victim at the time when the defendant did an act which could be said to be a dishonest appropriation.

o %n other words the ownership will pass when the victim delivers the goods to the defendant and the defendants acceptance will constitute the appropriation. o At the moment of appropriation the property still belongs to the victim and satisfies s.31l2. o %f in any doubt the prosecution can avoid these problems simply by charging the rogue with fraud. S. 31L2 intend to cover the case that ' intent to give 34+ still give 34 to / while in fact+ should not be given 34 Then / under obligation to restore them

%ncluded mistake for overpaid Att86en=s >eference 1Do.1 of 19832 0"#$O1 3 a woman police officer, was mistakenly overpaid by the sum of 5RL. 9n realising that an error had occurred she decided to eep the e*tra payment for herself. %t was held by the appellate court that from the moment when / became aware that the mista e had been made and her account credited she became sub-ect to an obligation to restore? s.O(M) was applicable.

%f no legal obligation then no need to restore 6il s ("#G ) affirms that a legal obligation to restore is a pre8re$uisite for the application of s.O(M). /+ a betting enthusiast+ received payment from a boo ma er predicated on the belief his horse had won the race. This was not the case. As wagering transactions themselves were void+ no legal obligation to repay conse$uentially arose.

%nclude mistake to get pension payment 6resham "ension payments were made into an account of 3s mother for more than 14 years after her death. / failed to inform her employer, the 3epartment of 6ducation, or the bank holding his mothers credit account. A theft conviction was upheld on the premise that these payments had been made by mistake and conse:uently s.O(M) was applicable

7estoration of propertyLproceedLvalue of property A is under an obligation to restore to @ the very property which he received from @ or the proceeds or value of that property

O. Application: / found out e*tra paid from employer Although you have possession and control of it, the e*tra 534 has been obtained by you by mista e. Section 31L2 states that where this happens, and there is an obligation to restore the money to its owner+ the money is to be treated as belonging to the person entitled to restoration of the money. (ou would have a legal obligation to restore the money under civil law and therefore the money is treated as belonging to your employer.

/ use the trip fund to pay his bills &hen 3 puts the che:ues in his bank account, ownership of the money transfers to him. #owever, under either s.O(") or s.O(/) the money may be treated for the purposes of theft as belonging to another. / may be said to have received the money on trust so that his friends have a !beneficial interest! in it under s.3112. %t may therefore belong to both / and his friends at the same time. Alternatively, under s.3132 it may be said that / has an obligation to deal with the money in a particular way (that is, to pay for the trip to 4ondon) and so the money continues to belong to his friends while it is in his account. See &ills 0"##"1.

 2owever, the obligation to deal with the property in a particular way must be a legal one and not a moral one ' see /ubar 0"##O1. This will be a :uestion of fact for the -ury, which is more comple* where there is no written agreement as to what / is obliged to do with the money. <ailure to use the money to pay for the trip therefore may constitute appropriation of property belonging to another, if there is an implied or e*press legal obligation on him to use the money in that way. %f 3 also has the relevant mens rea of dishonesty and intention to permanently deprive his friends of the money, then he may be guilty of theft.

-artin used money from his clients !to be invested as the ban sees fit! for his personal life. -artin has appropriated the money, but the :uestion is whether the money still belonged to his clients or to the ban . These facts are similar to those of %lowes (No. ) 0"##M1. %n that case it was held that the ownership of the money did not pass to the ban , but a trust had been created under which -artin (or the bank) held the money on trust to be invested on behalf of the clients. Therefore the beneficial interest in the money belonged to the clients. Pnder s.31H2 -artin as a trustee has !defeated! the trust and, provided he has the re:uisite mens rea, he can be guilty of theft of the money.

 Alternatively it may be argued that the clients retain a beneficial interest in the property under s.3112 and although Kartin has possession or control of the money, the money also belongs to the clients.

-ens rea There are two mens rea elements to the offence of theft. The first, dishonesty, is important because it is not only a mens rea re:uirement for all offences under the Theft Acts "#!$ and "#G$, but it also, in relation to theft, provides one of the few limitations on liability for the ac:uisition of property which has been innocently come by. &e say above that both appropriation and the notion of !belonging to another! are very wide concepts. %n many cases the only thing that distinguishes a legitimate transfer of property from one which breaches the criminal law is the presence of dishonesty. %n addition to dishonesty, liability for theft cannot be found unless / also intends to permanently deprive the owner of the property.

1. /ishonesty 6uidance on dishonesty is given in s.H of the Theft Act "#!$. 2owever, this section does not provide a definition of dishonesty. %t offers, instead, a number of situations in which / would not be regarded as dishonest. >or a definition of dishonesty we need to loo to common law. Section provides e,amples of appropriations that should not be regarded as dishonest. This section therefore can only apply to Theft Act offences which involve an appropriation (that is, to theft itself and robbery, but not to deception offences or burglary or blac"mail).

 %n approaching a :uestion on theft or robbery, however, you should start with s. . &f one of the situations in s. applies, / will not be regarded as dishonest and there is no need to consider the common law definition of dishonesty.

Statute dishonesty &f s.H does not apply, or if you are answering a :uestion involving a different offence, go straight to the common law definition. The situations in which 3 would not be regarded as dishonest under s. are: o if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or a third party o if he appropriates the property in the belief that he would have the other!s consent if the other new of the appropriation and the circumstances of it o if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by ta ing reasonable steps. 1e*cept where the property came to him as

trusteeGpersonal representative2 &uch as found the lost things

 Section H1H2 e*pressly precludes a defendant from claiming to be honest simply on the grounds that he or she was willing to pay for the property. that a person=s appropriation of property may be dishonest notwithstanding an intention to pay for it

/oes not have to be reasonable but depend on -ury as well Any of the beliefs listed above will prevent liability for theft or robbery provided they are honestly held by /. The belief does not have to be reasonable. The belief may indeed be wholly unreasonable, but the more e*traordinary or unreasonable the belief, the more li ely the 0ury are to decide that the belief is not honestly held+ >or e,ample, if & find a driving licence lying in the street and decide to eep it, % may, in my defence to a charge of theft, argue that & was not dishonest because & believed that & would not reasonably be able to find the owner of it. 8iven that driving licences have the owner!s name and address on them+ this would be an

unreasonable belief and the -ury may find that % cannot possibly have honestly believed that in those circumstances.

s. (")a' belief in legal right The only belief that is relevant here is a belief in a legal right. That A feels that he has a moral claim to the property, or that he is in some vague way 0ustified in ta ing it, is not relevant under this head though it may be otherwise relevant to the issue of dishonesty. #owever+ belief has legal right does not have to reasonble 6g. believing the umbrella ta en from the stand is hisO believing that he is entitled to recover a debt by ta ing the due amount from his flatmate!s wallet @elieving entitled ta ing the rubbish from resident rubbish dump

s. (")(b)' belief in consent in consent %f A honestly believes that @, the owner, would have consented to his appropriation, his conduct cannot be regarded as dishonest. That A=s belief is unreasonably arrived at is irrelevant <lynn 3 had cashed something he fre:uently did in favour of -unior employees, and he believed that his employers would have consented to the taking of the money if they had known about it. s. (l)(b), a persons appropriation of property belonging to another was not to be regarded as dishonest if he appropriated the property in the belief that he would have the other=s consent if the other new of the appropriation and the circumstances of it. <lynn=s appeal against conviction was allowed.

%ontrast: belief in consent' honest (")(b), willing to pay' not honest ( ) Suppose that M enters a shop intending to purchase a bottle of milk. 2e finds that there is no one serving in the shop and so he simply ta es the bottle of mil and leaves. 2is criminal liability will depend upon the circumstances. >or e,ample: o if he honestly believed that the shop eeper would not ob0ect to his taking the milk and paying up later then he will have a defence under s.H1l21b2O

o if, however, he does not now the shop eeper and has no reason to believe that the shop eeper would consent to his simply taking the milk, he only intent do pay after this+ then no defence under this subsection o s.H1H2 says that the appropriation may be dishonest notwithstanding that he is willing to pay for the property.

s.H1121c28 belief that the owner cannot be traced by reasonable step This provision essentially deals with property which is found by A? he is not to be treated as a thief if he appropriates that property in the belief that the owner cannot be traced by ta ing reasonable steps. %f, for e,ample, A finds a 53 note in the street it could only be e*ceptionally that he would believe that the owner can be traced so that in appropriating it he would not be guilty of theft. %f, however, A finds in the same street 6oya=s portrait of the /u e of )ellington, he is unli ely to believe that the owner cannot be traced by ta ing reasonable steps. Nevertheless, if A is an ordinary person who regards the painting as worthless so that it does not occur to him to ta e steps to trace the owner, he cannot be convicted of theft.

 %f it does occur to A that the owner might be traced, he may be convicted of theft if he fails to take reasonable steps. 2e is not re:uired to take every conceivable step? no doubt the most usual reasonable step would be to hand the property to the police on the assumption that the owner, if he cares about his loss, will have reported it to them The more important is what he belief is reasonable #is reasonable level maybe unreasonable ob0ectively still acceptable

Bommon law dishonesty'ob-ective test first with sub-ective %f the facts of any case do not fit within s.H, it is necessary to assess /!s dishonesty according to the common law test set out in 7 v 6hosh 0"#$ 1. The Bourt of Appeal in this case set out a two8part test, which contains both sub0ective and ob0ective elements.

 4ord 4ane's alternative approach was to combine sub-ective and ob-ective elements in a two8part test: o %n determining whether the prosecution has proved that the defendant was acting dishonestly, a -ury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. o %f it was not dishonest by those standards, that is the end of the matter and the prosecution fails. o &f it was dishonest by those standards, then the 0ury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.

 The first part of the test is entirely ob0ective ' the conduct is 0udged by the standards of the ordinary reasonable person. %f the conduct is ob0ectively dishonest then the second part of the test, which is both sub0ective and ob0ective+ must be applied. o /id / himself realise that his conduct was dishonest by the standards of the ordinary reasonable person,

3 unaware of the local culture and thought it is free service / comes from a country where public transport is free. 9n his first day in ;ngland he travels on a bus. #e gets off without paying. #e never had any intention of paying. &s / dishonest according to the 6hosh test, %f we apply the 8hosh test we must first ask ' would ordinary decent people regard this conduct as dishonest, The answer must be !yes! ' no8one is li ely to consider that deliberately not paying on public transport is honest.

 Therefore we need to consider the second part of the test ' did / realise that ordinary decent people would regard his conduct as dishonest. %n this case / could argue !no! ' as a stranger to our customs he would not. 2e would therefore escape liability, as 4ord 4ane suggested would be appropriate in this case.

Steal to save the poor case >obin #ood intentionally fails to pay his ta*es in order to donate the money to a charity for the homeless. &s >obin dishonest according to the 6hosh test, %f we apply the 8hosh test ' would ordinary decent people regard this as dishonest, (es 8deliberately failing to pay ta* is, by anyone's standards, dishonest. %f you then ask 7obin 2ood whether he realised that ordinary decent people would regard his conduct as dishonest, he would have to say yes. #e may disagree with them but he nows that it is ob0ectively dishonest to deliberately fail to pay ta,es. #e would therefore be dishonest for the purposes of the Theft Act

1968. (7emember that motive is irrelevant to criminal liability.)

 @ut if he is out of touch with community standards and genuinely thinks that people generally do not regard such conduct as dishonest+ then his conduct cannot be accounted dishonest.

Steal with the mind Danyone will do the same /ave lives near to &an+ who has a conviction for possession of child pornography. 9ne day /ave notices that &an!s car is unloc ed+ and that there is a valuable camera lying on the front seat. /ave removes the camera from the car+ but is seen by a police officer+ who arrests him. /ave says? !& was only ta ing the camera to stop him ta ing any more of his filthy pictures. Anyone would want to do the same.! &s /ave dishonest, &ould a -ury find the act of intentionally taking a camera that does not belong to 3 from 5's unlocked car dishonest. %f so, you then need to ask, would /ave realise that the 0ury would consider his actions to be dishonest, #is statement to the police may indicate that he did not.

Kane ta es some paper and coloured pens from the stationery cupboard at wor to give to her small children to draw pictures with. )hen caught by her boss she tells him that everyone ta es things from the stationery cupboard as they consider it to be a !per ! of the 0ob. &s Kane dishonest, )ould a 0ury consider that intentionally ta ing stationery from the stationery cupboard for purposes other than work is dishonest. This is an open $uestion, as some may consider this to be normal conduct in a wor place and would agree with Kane that it is a per of the 0ob. The 6hosh test may therefore fail at this point. &f the 0ury agreed that it was dishonest, they would then have to consider whether Hane realised that the -ury would find her actions dishonest.

 Again+ her response to her boss suggests not.

nd

:uestion is not compulsory

>oberts the Bourt of Appeal held that it would not, in every case, be necessary for the trial -udge to give a full 6hosh direction. &f the defendant did not raise an issue with regard to the second part of the test, the 0udge need not leave it to the 0ury. A 8hosh direction is only applicable where the defendant might have believed that what he was alleged to have done was in accordance with the ordinary person=s idea of honesty. Thus there is a burden on the defendant to introduce evidence that he did not thin that ordinary people would regard his conduct as dishonest. <nce the defendant says that this is what he did and that he does not consider that he has acted

dishonestly, the 8hosh direction should be given. . &ntention to permanently deprive' permanent deprive regardless owners right or borrow lead to outright ta"ing The second part of the mens rea for theft is an intention to permanently deprive the owner of the property. %ntention is presumed to bear the same meaning as for other criminal offences (and so direct or obli$ue intent would suffice ' see Bhapter O).

 Section 6 of the Theft Act "#!$ gives further e,planation of this phrase, although it is a rather comple, e,planation that may not be very helpful: o A person appropriating property belonging to another without meaning the other to permanently lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if it is his intention to treat the thing as his own to dispose of regardless of the other!s rights? and a borrowing or lending of it may amount to so treating it, if the borrowing or lending is for a period and in circumstances making it e:uivalent to an outright ta ing.

 Not surprisingly the courts have had to interpret what is meant by this section+ The section deals with situations where / may claim that he did intend, eventually, to return the property to the owner. 2owever, the Act states that this may amount to a permanent deprivation if /!s intention is to treat the thing as his own to dispose of regardless of the other!s rights, or the borrowing is for an e,tended period of time andLor if the property, when returned+ is worthless. The cases provide e,amples of borrowings that amount to an !outright ta ing!.

DTreat the thing as his own to dispose of' by regardless the owner right .avender 0"##M1, / too two doors from a council property and used them to replace damaged doors at another council property. Bharged with theft, 3 argued that he had never intended to deprive the council of the doors. 2owever, the 3ivisional Bourt decided that the words !to dispose of! should not be interpreted literally as meaning to sell or throw away. / in this case had treated the doors as his own regardless of the council#s right not to have them taken away from where 3 found them. 2e was therefore convicted of the theft of the doors.

%ontrast? 3 believe the item is abandoned incompatible with the Dintention Small the defendant gave evidence that he had seen the dilapidated motorcar (sub-ect of the theft indictment) every day for two wee s. he thought that it had been abandoned by its true owner. %t is submitted that if a defendant believes that the property has been abandoned+ this belief is incompatible with the intent, which the Act re:uires, of permanently depriving another of property to that other.

>or his own purpose by knowing risking its loss <ernandes 0"##!1 it was held that s.6 may !apply to a person in possession or control of another's property who, dishonestly and for his own purpose, deals with that property in such a manner that he nows he is ris ing its loss!. Someone who deals with property knowing that he is doing so in a way which asks its loss may be intending to Jtreat the thing as his own to dispose of regardless of the other=s rightsC and may, thus, be regarded as having an intention of permanently depriving the other of it.

-arshall 0"##$1' application case' by ta"ing ris" loss by ignore the sole right of owner / had obtained une*pired 4ondon Pnderground tickets and re8sold them to other passengers. / argued that when the tic ets were re8used by those who had bought them, they would eventually be returned to .ondon Qnderground. The Bourt of Appeal held that he has disregarded or usurped the sole right of .ondon Qnderground to sell tickets on their transport system. Qnderground had the right to demand that only the actual buyer can use the right which given by contract formed btw them

 The Bourt of Appeal also followed the dicta in >ernandes and held that / had ris ed the loss of the tic ets. 3 had therefore intended to treat the tic ets as his own to dispose of regardless of .ondon Qnderground!s rights. /+ by selling the tic ets+ had effectively abandoned them, not caring what happened to them.

0%tend application1 <n a wide reading it would even cover the individual who contrary to my wishes throws my pri7ed %rown /erby ornament for me to catch? sub-ect, of course, to the proviso that 3 appreciates that his planned course of conduct puts the thing or its virtue completely at ris of a total loss.

%ntent to dispose of thing included even when 3 knew 5 may not Dlose the things 6 may not JmeanC > to lose the thing (the furniture) itself but by purporting to sell it to 8 he has treated the furniture as his own to dispose of (see ,itham v Hehl5 but still liable as well This conclusion is supported by the decision of the Frivy Bouncil in %han -an8sin v Attorney8 6eneral for #ong :ong %n that case the defendant had+ by means of forged che$ues, caused money to be transferred from K and 2s accounts with S.B. =ank into his own personal account with <.T. =ank. The defence argued that once it was discovered that the che:ues were forgeries, 9wner would be able to insist on having the transactions reversed+ and would+ thus+ lose nothing.

 Since the defendant, who was an accountant, would know this to be the position, it could not be said that he intended permanently to deprive them of their property. The "rivy %ouncil held that this was covered by a provision in the #ong :ong statute which was identical to s.6 of our Theft Act 1968. The defendant=s intention was to treat the thing as his own to dispose of regardless of the rights of owner

@orrowing case' liable when all goodness has gone @orrowing may also be e$uivalent to an outright ta ing where the borrowing was e*tended for a period of time or was returned as worthless. The courts initially interpreted this part of s.! narrowly and in 4loyd 0"#$O1 the Bourt of Appeal held that s.! should only be referred to in e,ceptional circumstances. %n that case /+ a film pro0ectionist+ borrowed films from a cinema to copy them (in breach of copyright) but then returned them to the cinema in time for them to be shown.

 This was held not to amount to theft as an intention to borrow was not sufficient for s.! unless the intention was to return the thing in such a state that !all its goodness or virtue has gone!. %n this case all the goodness had not gone out of the films ' they could still be pro0ected to paying audiences.

Application1 3efendant had obtained a machine from 5 while was in dispute with 5 / had obtain the machine so as to give himself a bargaining counter in the negotiations. %t was not altogether clear what would have happened to the machine if the negotiations were not settled to the defendant's satisfaction. =y applying the principle, Pnder s.!("), The prosecution would have to satisfy the -ury that the defendant intended not to return the machine until he got what he wanted, or, at least, that he intended to eep it so long as to be regarded as an outright ta ing of it+ in other words+ till all the virtue had gone out of the thing. So+ / borrowing will be regarded as outright ta ing since he only will returned after all Agoodness= is gone

Application1 borrow the car which rented by 6 # hires a car from H for a wee . : ta es the car+ uses it for a wee and then returns it to K. 2e has not stolen the car from H but so far as # is concerned he has deprived # of the whole of his interest.

%ntend to borrow indefinitely no enough must all goodness is gone Bourts have held it to be a misdirection for a -udge to direct a -ury that $ =may be convicted of stealing ( s goods where M intends to eep those goods indefinitely (see %arner5 A taking or borrowing is e:uivalent to an outright taking probably only where all the value of the property is consumed. So if M ta es (=s season tic et to a football ground+ intending to use it for all the games for which it is valued and then return the tic et to (+ M has stolen the tic et+ for the borrowing is now e$uivalent to an outright ta ing.

%ontrast: =orrow but not returned with the same considered as intention to deprive 3 is in the supermarket with his friend 5. At the checkout he realises that he has left his wallet at home and asks 5 to lend him a Q"A note. 5 does so and 3 hands the note to the cashier. The ne,t day, / gives ' a 514 note that he has -ust withdrawn from the ban . 3id 3 have an intention to permanently deprive 5 of the Q"A note. This scenario is similar to the facts of 'elumyl 0"#$#1 %n that case, / borrowed 51+434 from a safe at work to lend to a friend, intending to repay the money the following -onday morning. / was held to have intended to permanently deprive his employers of the money, as he had not intended to repay the same notes and coins that he had borrowed.

 #is intention was to replace the money with different notes and coins. %n this scenario, as 3 hands the actual borrowed Q"A note to the cashier, he cannot have intended to return the same 514 note to ' and therefore has an intention to permanently deprive ' of the note. 9f course+ for a charge of theft+ / would need to be found to be dishonest and in this case that is unlikely.

s.6 1H28 pawn the item and intent to claim back still considered as theft =y subs.!( ), A is deemed to have the intention to permanently deprive @ of ='s property if A parts with property in A!s possession or control under a condition, which A may not be able to perform. This is intended to cover the kind of case where someone who has property belonging to someone else in their possession or control pawns that property to another

Bonditional intent issue &ntention includes conditional intention? that is, the intention of someone who appropriates property ' say a holdall ' conditionally on the contents proving sufficiently valuable to ta e permanently. To gain a conviction, however, it is necessary for the prosecution to draft the charge so as not to refer to any specific property, for e*ample by charging / with theft of !articles un nown+ the contents of a holdall belonging to M! (see also A'8's 7eference (Nos " and of "#G#) 0"#G#1).

Attempt to steal' can be done even there is nothing or something he want Briminal Attempts Act "#$", now a person may be convicted of an attempt even though+ in the circumstances+ he could not have effected the complete crime. A somewhat similar problem arises where A has not yet made up his mind whether and what to steal. Take the case of the rogue, A, whose practice it is to search other peoples cars to see whether there is anything that takes his fancy. %n =s car he finds nothing at all? in Bs car he notices that there is a copy of the @ible but he is not interested in that? in /=s car he finds a handbag but having ascertained that the contents (lipstick, handkerchief, nail file) are of no value to him he returns the handbag to its place.

 %n none of these cases can A be convicted of theft since he has stolen nothing. =ut there is another matter to consider. 2e must be charged with attempting to steal some property belonging to another. A cannot be charged with attempting to steal Bs @ible or the lipstic from 3s handbag because his conduct proves that he had no intent to steal these. @ut when A saw the handbag in /=s car+ he no doubt hoped that it would contain money and, had it done so+ it is certain that he would have ta en it. %f so, A can be charged with and convicted of attempting to steal money from /.

 %n the other two cases it may be that A had no e,pectation of finding money, nor did he find anything else that took his fancy. @ut if A had found something that had ta en his fancy he would certainly have ta en it, and in such a case it is proper to charge him, as occurred in @ayley v ;asterbroo , with attempting to steal Jproperty belonging toP @ or % without specifying any particular property.

Summary The most important offence under the Theft Act "#!$ is theft itself, which is defined in s.". 6ach actus reus and mens rea element is defined or e,plained in ss. '!. The actus reus elements of appropriation and belonging to another have been interpreted widely by the courts so that not only does the offence of theft overlap with the offence of obtaining by deception (since consent is irrelevant to an appropriation) but also the actus reus of theft is very easily proved without any manifest criminality. The only limit to liability for this offence therefore lies in the mens rea elements of dishonesty and intention to permanently deprive.