CRIMINAL LAW: PROPERTY OFFENCES

Lecture handout

We will cover offences of theft, robbery, burglary and fraud in this lecture series,
all of which are examinable. This means that we will focus on the offences created
by sections 1, 8 and 9 of the Theft Act 1968; and the fraud offence found in section
1 of the Fraud Act 2006, elucidated in sections 2-4 of the same Act.

1. THEFT

A person is guilty of theft if he dishonestly appropriates property

belonging to another with the intention of permanently depriving the
other of it… (Theft Act 1968, s. 1(1))

A person guilty of theft shall on conviction on indictment be liable to

imprisonment for a term not exceeding seven years. (Theft Act 1968, s.
7)

(AR) appropriates
(AR) property
(AR) belonging to another
(MR) dishonestly
(MR) intends to permanently deprive

A. Appropriation

Any assumption by a person of the rights of an owner amounts to an

appropriation, and this includes, where he has come by the property
(innocently or not) without stealing it, any later assumption of a right to
it by keeping or dealing with it as owner. (Theft Act 1968, s. 3(1))

(i) What does ‘assume’ mean, and what are ‘the rights of an owner’?

 Presumably ‘the rights of an owner’ include the right to use something, to

exclude others from it and to give it away.
 It is sufficient to assume any of the owner’s rights. See Morris [1984] AC 320.1

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Since disapproved for its position on other issues, but not that under discussion here, nor challenged
for its result.

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  It is immaterial whether D’s appropriation is ‘with a view to gain, or is made
for the thief’s own benefit’. (Theft Act 1968, s. 1(2))
 The exclusion of the purchaser acting in good faith:

Where property or a right or interest in property is or purports to be

transferred for value to a person acting in good faith, no later assumption by
him of rights which he believed himself to be acquiring shall, by reason of
any defect in the transferor’s title, amount to theft of the property. (Theft
Act 1968, s. 3(2))

(ii) Are rights ‘assumed’ when the owner agrees to what is being done?

 Does V’s consent prevent D’s act from being an appropriation, and so theft?

Lawrence v MPC [1972] AC 626

Morris [1984] AC 320 (Lord Roskill [at 332])

In the context of s. 3(1), the concept of appropriation involves not an act

expressly or impliedly authorised by the owner but an act by way of
adverse interference with or usurpation of those rights.

Gomez [1993] AC 442

Hinks [2001] 2 AC 241

 There are broadly two sets of arguments against the position established by the
majority of the House of Lords in Hinks.
 The first set emphasize the civil law’s primordial position as compared with the
criminal law. It follows that if the civil law treats a transaction as valid, this
should be the law’s bottom line: the criminal law should not qualify the
transaction’s validity by treating it as theft.
 Further, the offence of theft exists to protect V’s ownership2 in the thing, and if
V validly consents to transferring that ownership, as recognised by the civil law,
D’s acts do not amount to an attack on it.
 The second set focuses on concerns of the criminal law itself and includes harm-
based, rule of law and fair labelling concerns.
 See Hinks [2001] 2 AC 241 (Lord Hobhouse dissenting [at 262]):

To treat otherwise lawful conduct as criminal merely because it is open to

[moral] disapprobation would be contrary to principle and open to the
objection that it fails to achieve the objective and transparent certainty
required of the criminal law by the principle basic to human rights.

J Smith, ‘Commentary’ [1998] Crim LR 168

2
Or possession or control (TA 1968, s. 5(1)): the argument applies essentially similarly to these too.

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S Gardner, ‘Property and Theft’ [1998] Crim LR 35
S Shute, ‘Appropriation and the Law of Theft’ [2002] Crim LR 445
A Bogg and J Stanton-Ife, ‘Protecting the Vulnerable: Legality, Harm and Theft’ (2003)
LS 402

 How might the relationship between ‘appropriation’ and ‘consent’ be clarified

for the purposes of the law of theft?

Morris [1984] AC 320 (Lord Roskill [at 332])

S Shute and J Horder, ‘Thieving and Deceiving: What is the Difference?’ (1993) 56
MLR 548.

(iii) How long does an appropriation last?

 A continuing act which continues to occur so long as D continues to assume the

owner’s rights?
 An instantaneous act which stops after the first moment when D appropriates?
 Continues so long as D is ‘on the job’?

Hale (1978) 68 Cr App R 415, 418

Atakpu [1994] 4 All ER 215

(1) theft can occur in an instant by a single appropriation but it can also involve
a course of dealing with property lasting longer and involving several
appropriations before the transaction is complete; (2) theft is a finite act—it has
a beginning and it has an end; (3) at what point the transaction is complete is a
matter for the jury to decide upon the facts of each case; (4) though there may
be several appropriations in the course of a single theft or several appropriations
of different goods each constituting a separate theft as in R v Skipp, no case
suggests that there can be successive thefts of the same property. (Ward J in
Atakpu [1994] 4 ALL ER 5, at 223)

(iv) Must appropriation consist in a physical act?

Briggs [2004] Crim LR 495

B. Property

“Property” includes money and all other property, real or personal,

including things in action and other intangible property. (Theft Act
1968, s. 4(1))

 Key terms: ‘real property’, ‘personal property’ and ‘things in action’.

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  As a general rule, the concept of ‘property’ is impliedly limited by the need for
the ‘property’ to be capable of ownership, so as to satisfy the further word
‘belonging [to another]’ in Theft Act 1968, s.1(1).
 Some (limited) exceptions: electricity, services, confidential information,
human bodies.3

Oxford v Moss (1978) 68 Cr App r 183

Kelly [1999] QB 621 AC
Yearworth et al v North Bristol NHS Trust [2009] EWCA Civ 37

 There is further specific guidance on the boundaries of property to be found in

section 4.
 Limitations on the theft of land

A person cannot steal land, or things forming part of land and severed
from it by him or by his directions, except in the following cases, that is
to say—
(a) when he is a trustee or personal representative, or is authorised by
power of attorney, or as liquidator of a company, or otherwise, to sell or
dispose of land belonging to another, and he appropriates the land or
anything forming part of it by dealing with it in breach of the confidence
reposed in him; or
(b) when he is not in possession of the land and appropriates anything
forming part of the land by severing it or causing it to be severed, or
after it has been severed; or
(c) when, being in possession of the land under a tenancy, he
appropriates the whole or part of any fixture or structure let to be used
with the land.
For purposes of this subsection “land” does not include incorporeal
hereditaments; “tenancy” means a tenancy for years or any less period
and includes an agreement for such a tenancy, but a person who after the
end of a tenancy remains in possession as statutory tenant or otherwise
is to be treated as having possession under the tenancy, and “let” shall
be construed accordingly. (Theft Act 1968, s. 4(2))

 Limitations on the theft of things growing wild

A person who picks mushrooms growing wild on any land, or who picks
flowers, fruit or foliage from a plant wild on any land, does not (although
not in possession of the land) steal what he picks, unless he does it for
reward or for sale or other commercial purpose.
For purposes of this subsection “mushroom” includes any fungus, and
“plant” includes any shrub or tree. (Theft Act 1968, s. 4(3))

 Limitations on the theft of wild creatures

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There are, however, some specialised offences to be aware of. See Theft Act 1968, s. 13 (abstracting
electricity), Fraud Act 2006, s. 11 (obtaining services dishonestly).

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 Wild creatures, tamed or untamed, shall be regarded as property; but a
person cannot steal a wild creature not tamed nor ordinarily kept in
captivity, or the carcase of any such creature, unless either it has been
reduced into possession by or on behalf of another person and
possession of it has not since been lost or abandoned, or another person
is in course of reducing it into possession. (Theft Act 1968, s. 4(4))

 How should the boundary of ‘property’, and so theft, be drawn?

R v Smith, Plummer, Haines [2011] EWCA Crim 66; [2011] Crim LR 719

C. Property belonging to another

Property 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 equitable interest arising only from an agreement to transfer or grant
an interest). (Theft Act 1968, s. 5(1))

ss. 5(2)-(4) Theft Act 1968

Turner (No 2) [1971] 1 WLR 901
Gilks [1972] 1 WLR 1341

D. Dishonestly

 There is no general definition of ‘dishonestly’ in the Theft Act 1968. We are,

however, told that the following will not constitute dishonesty:

A person’s appropriation of property belonging to another is not to be

regarded as dishonest --
(a) 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 of a third person;
or
(b) if he appropriates the property in the belief that he would have the
other’s consent if the other knew of the appropriation and the
circumstances of it; or
(c) (except where the property came to him as trustee or personal
representative) if he appropriates the property in the belief that the
person to whom the property belongs cannot be discovered by taking
reasonable steps. (Theft Act 1968, s. 2(1))
By contrast:
A person’s appropriation of property belonging to another may be
dishonest notwithstanding that he is willing to pay for the property.
(Theft Act 1968, s. 2(2))

 Ghosh ([1982] QB 1053) establishes a two-stage approach for problematic

cases:

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 (a) D’s actions must be dishonest according to the standards of reasonable and
honest people; and
(b) D must realise that she is acting dishonestly by those standards.

Ghosh [1982] QB 1053

Hinks [2001] 2 AC 241: ‘[Ms Hinks] had acted dishonestly by systematically raiding
the savings in a building society account of a vulnerable person who trusted her.’ (Lord
Steyn [at 253])

E Griew, ‘Dishonesty: The Objections to Feely and Ghosh’ [1985] Crim LR 34

A Halpin, ‘The Test for Dishonesty’ [1996] Crim LR 283

E. Intention to permanently deprive

A person appropriating property belonging to another without meaning

the other permanently to lose the thing itself is nevertheless to be
regarded as having the intention of permanently depriving the other of
it if his intention is 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, but only if, the borrowing or lending is for a period and in
circumstances making it equivalent to an outright taking or disposal.
(Theft Act 1968, s. 6)

 As a general rule, D’s borrowing of V’s property will not come within the law
of theft. Some borrowings may constitute offences separate to the law of theft.
See for example, Theft Act 1968, ss. 11-12A.

 Will borrowing ever constitute theft? Section 6(1) seems to allow for two
scenarios. First, where D’s intention is to expose V to the risk of permanent
deprivation. Secondly, where D does not intend V to lose the property but does
intend V to lose some feature or quality of it.

Lloyd [1985] QB 829

Mitchell [2008] EWCA Crim 850

 Will D’s conditional intention suffice as an intention to permanently deprive?

Easom [1971] 2 QB 315

AG’s references (Nos 1 and 2 of 1979) [1980] QB 180

3. ROBBERY

A person is guilty of robbery if he steals, and immediately before or at

the time of doing so, and in order to do so, he uses force on any person

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 or puts or seeks to put any person in fear of being then and there
subjected to force. (Theft Act 1968, s. 8(1))

A person guilty of robbery, or of an assault with intent to rob, shall on

conviction on indictment be liable to imprisonment for life. (Theft Act
1968, ss. 8(2))

Robbery is an aggravated form of theft. It consists in:

theft
facilitated by the use or threat of force (and the use or threat or force occurs
immediately before or at the time of the theft)

A. Theft

 It is necessary to prove both the AR and MR of the offence of theft (Theft Act
1968, s.1).
B. Facilitated by the use or threat of force

Dawson and James (1976) 64 Cr App R 170

C. Immediately before or at the time of the theft

 The use of threat of force must be used not only so as to steal, but also
‘immediately before or at the time of doing so’.

Hale (1978) 68 Cr App R 415

4. BURGLARY

A person is guilty of burglary if --

(a) he enters any building or part of a building as a trespasser and with
intent to commit any such offence as is mentioned in subsection (2)
below; or
(b) having entered any building or part of a building as a trespasser he
steals or attempts to steal anything in the building or that part of it or
inflicts or attempts to inflict on any person therein any grievous bodily
harm. (Theft Act 1968, s. 9(1))

The offences referred to in subsection (1)(a) above are offences of

stealing anything in the building or part of a building in question, of
inflicting on any person therein any grievous bodily harm...therein, and
of doing unlawful damage to the building or anything therein. (Theft Act
1968, s. 9(2))

A person guilty of burglary shall on conviction on indictment be liable

to imprisonment for a term not exceeding –

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 (a) where the offence was committed in respect of a building or part of
a building which is a dwelling, fourteen years;
(b) in any other case, ten years. (Theft Act 1968, s. 9(3))

References in subsections (1) and (2) above to a building, and the

reference in subsection (3) above to a building which is a dwelling, shall
apply also to an inhabited vehicle or vessel, and shall apply to any such
vehicle or vessel at times when the person having a habitation in it is not
there as well as at time when he is. (Theft Act 1968, s. 9(4))

enters
a building
as a trespasser
awareness of being a trespasser
intent to commit a crime (s. 9(1)(a)) OR commission of a crime (s. 9(1)(b))

A. The forms of burglary

 D enters a building or part of a building as a trespasser and with intent therein

to steal, inflict GBH or do criminal damage.
 Having entered a building or a part of a building as a trespasser, therein (even
without the prior intention to do so) D attempts to steal or inflict GBH, or steals
or inflicts GBH.
 Further, it is aggravated burglary if D commits burglary and has with her a real
or imitation firearm, offensive weapon, or explosive (Theft Act 1968, s. 10).

B. The inclusion of ‘fringe’ cases

 The paradigm case is where D enters V’s premises as a trespasser intending to

steal, and does so.
 But also, entering a building as a trespasser intending to offend, but not actually
doing so; or entering a building as a trespasser and spontaneously committing
an offence; or where the offence intended to be committed is not theft but GBH
or (in the case of prior intention) criminal damage.
 Why is burglary considered to be of a particularly serious nature?

C. Entering a building or part of a building as a trespasser

Collins [1973] QB 100

Jones and Smith [1976] 3 All ER 54
Ryan [1996] Crim LR 320

D. Intent to commit…

 Depends on the form of burglary:

 s. 9(1)(a) -- the prosecution must prove that at the point of entry D intended to
steal, inflict GBH or do criminal damage. D intends to steal (etc.) even if her
intent is conditional on there being something worth stealing, or some other
contingency.

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  s. 9(1)(b) –D entered and committed or attempted to steal or inflict GBH.

5. FRAUD
Section 1 of the Fraud Act 2006 creates a fraud offence, which can be committed in
one of three ways (Fraud Act 2006, ss.2-4). Section 1 replaces specific fraud and
deception-based offences in the Theft Acts 1968 and 1978 (particularly Theft Act 1968,
ss.15-16).

According to the Fraud Act 2006, D commits fraud if he:

(MR) dishonestly
(MR) intends to make a gain for himself or another, or to cause loss to another or to
expose another to a risk of loss
AND
(AR) makes a false representation, which is untrue or misleading and D knows that it
is or might be untrue or misleading; OR
(AR) fails to disclose information which he is under a legal duty to disclose; OR
(AR) abuses (by act or omission) a position in which he is expected to safeguard, or not
to act against, the financial interests of another person.

A person who is guilty of fraud is liable –

(a) on summary conviction, to imprisonment for a term not
exceeding 12 months or to a fine not exceeding the statutory
maximum (or to both);
(b) on conviction on indictment, to imprisonment for a term not
exceeding 10 years or to a fine (or to both). (Fraud Act 2006,
s. 1(3))

A. Dishonestly

 The Fraud Act 2006 contains no definition of ‘dishonestly.’ The Law

Commission and Home Office intend controversial cases to be resolved by
reference to the approach laid down in theft cases, see Ghosh [1982] QB 1053.

Hansard, HL Debates, col.1424 (July 19, 2005) (Attorney-General); Standing

Committee B, col.8 (June 20, 2006), (Solicitor-General). HC Research Paper 31/06,
p.14

B. Intends to gain or to cause loss or risk of loss

“Gain” and “loss” --

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 (a) extend only to gain or loss in money or other property;
(b) include any such gain or loss whether temporary or
permanent; and “property” means any property whether real
or personal (including things in action and other intangible
property). (Fraud Act 2006, s. 5(2))

“Gain” includes a gain by keeping what one has, as well as a gain

by getting what one does not have. (Fraud Act 2006, s.5(3))

“Loss” includes a loss by not getting what one might get, as well
as a loss by parting with what one has. (Fraud Act 2006, s. 5(4))

 D need only intend to make gain or cause loss or the risk of loss. Hence the
section 1 offence penalises D’s undertaking fraudulent behaviour with intent as
the relevant wrong attracting criminal sanction.

cf Theft Act 1968, s.15

D Ormerod, ‘The Fraud Act 2006 -- Criminalising Lying?’ [2007] Crim LR 193
A Ashworth, ‘The Criminal Law’s Ambivalence About Outcomes’ in Crime,
Punishment and Responsibility, eds Cruft, Kramer, Reiff (OUP 2010)

C. Causation

 The statutory language requires that D must intend to bring about the gain, loss
or risk of loss ‘by’ the false representation, failure to disclose, or abuse of
position, i.e. there must be a causal relationship between the two.

S Gardner, ‘Letter to the Editor’ (and D Ormerod’s reply) [2007] Crim LR 661

D. Fraudulent behavior

Fraud by false representation: section 2

(1) A person is in breach of this section if he --

(a) dishonestly makes a false representation, and
(b) intends, by making the representation --
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.

(2) A representation is false if --

(a) it is untrue or misleading, and
(b) the person making it knows that it is, or might be, untrue or
misleading.

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 (3) “Representation” means any representation as to fact or law,
including a representation as to the state of mind of --
(a) the person making the representation, or
(b) any other person.

(4) A representation may be express or implied.

(5) For the purposes of this section a representation may be regarded as

made if it (or anything implying it) is submitted in any form to any
system or device designed to receive, convey or respond to
communications (with or without human intervention). (Fraud Act
2006, s. 2(1-5))

 ‘Misleading’ is suggested to include cases where D literally tells the truth; but
not the complete truth.
 Following decisions on the old offences of obtaining property by deception,
misrepresentation includes instances in which D does not correct a false belief
that he knows V has, where D created V’s belief in the first place.

Fraud by failing to disclose information: section 3

A person is in breach of this section if he --

(a) dishonestly fails to disclose to another person information which he
is under a legal duty to disclose, and
(b) intends, by failing to disclose the information --
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
(Fraud Act 2006, s. 3)

Law Com No 276, Fraud (2002), paras 7.24, 7.31-34.

Fraud Law Reform -- Government Response to Consultations (2004), paras 22-25.

Fraud by abuse of position: section 4

(1) A person is in breach of this section if he --

(a) occupies a position in which he is expected to safeguard, or not to
act against, the financial interests of another person,
(b) dishonestly abuses that position, and
(c) intends, by means of the abuse of that position --
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.

(2) A person may be regarded as having abused his position even though
his conduct consisted of an omission rather than an act. (Fraud Act 2006,
s. 4(1-2))

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J Collins, ‘Fraud by Abuse of Position: Theorising Section 4 of the Fraud Act 2006’
[2011] Crim LR 513

FURTHER READING

ATH Smith, Property Offences (1994) [especially for history and context]
Smith’s Law of Theft, D Ormerod and DH Williams (9th ed, 2007)
Stuart Green, 13 Ways to Steal a Bicycle: Theft in the Information Age (Harvard
University Press 2012)

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