Elements of Theft and Their Problems

The next element I would like to discuss is defined by section 5 of the Theft Act 1968: ‘belonging to another.’  The act states that ‘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.’  Therefore, in order for theft to occur the property must belong to someone else in some shape or form.  That said it is even possible to thieve your own property, so long as someone else holds an interest in it, however small.  This might be the most problematic aspect of this element.  Such was the case in Turner (1971), where the defendant took his car to a garage for repair and after it had been serviced took it from where it was parked, without intending to pay the shop.  The court ruled that the car at the time of retention was in possession of the garage, and that the defendant took it during the time the shopkeeper was in ownership of it, and this amounted to theft.

Outside of theft of your own property, ‘belonging to another’ is not typically a very problematic element of theft.  Section 5(3) on obligation exemptions ensures that property, once it has changed hands (or owners), that the wishes of the original owners are met with regard to the use of the property.  This particularly deals with cases involving money, as was the case in Hall (1973) where a travel agency received money from clients for deposits toward a holiday and did not book them.  In this case the travel agent did not have to deal with the money in a specific way so he could not be legally obligated to use the money under s.5 (3).  Had the clients made arrangements for the money to be used for something specific, s.5 (3) would apply.  Section 5(4) deals with property transferred by mistake, and this states that if property has been transferred by mistake and there is a legal opportunity to return it, the receiver is obligated to return the property.  This is demonstrated in Attorney General’s Reference No. 1 of 1983 where the defendant was mistakenly overpaid and knew of this but did nothing about it.  The court held that the defendant was under an obligation to return the money and that under section 5(4) she was guilty of theft (so long as they other elements were present).  These subsections demonstrate that this element, for the most part, is well defined and covers a wide array of issues and is therefore less likely to be challenging when assessing whether a theft has occurred.

Next I would like to discuss appropriation, the final element that makes up the actus reus of theft.  After much debate between various cases regarding appropriation, the courts have finally agreed that this element be a neutral concept.  Previously opposing positions were found in cases when deducing the meaning of appropriation within theft.  One idea the courts had was that appropriation occurred when it was inconsistent with the wishes of the owner, as per Hall (1973). The courts also considered that appropriation occurred when the potential thief took an unlawful assumption of rights, as was the case in Morris (1983), where the defendant replaced labels with ones showing lower prices on supermarket shelf products, intending to pay the lower price and retain the goods. The idea that you could not appropriate a gift also prevailed for some time, even if the gift was attained dishonestly.  However, the case of Lawrence (1972) held a conflicting view with that of Morris, where it was determined that it is not necessary or relevant to show whether or not the victim consented for appropriation to occur.  The case of Gomez (1993) confirmed the ruling in Lawrence and also put forth a simpler interpretation of appropriation: that it should be an utterly neutral concept, that it occurs when you assume any rights of the owner, and that consent is not relevant in determining whether an appropriation has occurred. This has recently been confirmed by the case of Hinks (2000), but it is important to note that two judges on this case, particularly Lord Hutton, gave dissenting judgments regarding the appropriation aspect of this case; however, the case law prevails.  I believe this element remains somewhat complicated regarding the issue of consent, and that possibly consent should be considered rather than completely disregarded, so long as it was not obtained through dishonest means.  This very concept is discussed in the case of Hinks, and it was found that when discussing the element of appropriation it ought not to be done without considering the mens rea element of dishonesty along with it.  Therefore, it may be possible to argue that appropriation on its own has a definition that is too broad, and so requires one of the other elements within the definition of theft to qualify it and thus tailor its meaning to serve the purpose of the act.  The dishonesty element of theft will be discussed later in this essay.

Now I would like to discuss the last aspect considered in the definition of theft, and that is the ‘intent to permanently deprive.’ As is the case with many criminal offences, intent is an important aspect of the crime.  Intent permanently to deprive is outlined in section 6(1) of the 1968 act, which states that:

‘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 owner 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.’

There is no place in the Theft Act that IPD is actually defined, and instead there are explanations of when IPD may be inferred.  Without an explicit positive definition there are bound to be potential problems.  This element of theft exists to make sure that there is a known difference between borrowing an item and the theft of an item, as section 6 would not apply if the individual had the intent to restore the original item.  This element becomes slightly complicated when dealing with money matters, as was the case in Velumyl (1989), where the defendant took money from the safe of where he worked and intended to pay it back the next day. In this case it is was found that the defendant’s intention to return equivalently valued property was pertinent to the dishonesty element of theft and not IPD because he must have intended to permanently deprive the store of the money as he did not intend to return those exact notes and coins he had taken in the first place.  Though I do not commend anyone who chooses to steal or “borrow” from their places of work, the idea of being punished by law under the Theft Act for taking an item and replacing with its equivalent may be an extremely microscopic evaluation of the circumstances.  It seems entirely artificial to scrutinize the object returned when that object holds all the same attributes and values as the original; such conduct, it would seem, would be more suitably penalized under other legislation; that is, as individuals should not be free to get away with what would otherwise be criminal conduct simply because one element of the definition had not been sufficiently met, a different charge may be more fitting.

        Issues also arise when determining exactly how and when an individual has intended to permanently deprive insofar as his intention to treat the item as his own.  This occurred in the case of Marshall (1998) in which the defendants obtained London Underground tickets and resold them to prospective LU users.  The defendants claimed that they did not intend to deprive the owner of the tickets, as the tickets would eventually find their way back to the London Underground after they’d been used.  The Court of Appeal, however, held that the defendants treated the tickets as their own to dispose of, in spite of the rights of their owner, and in doing so fulfilled the IPA requirement. And yet, an individual who takes a motor vehicle and assumes all rights over it while it is in his possession, but then abandons it where the original owner may find it, is not guilty of theft under this act. Though this type of act is punishable by other areas of law, discrepancies appear to exist in the interpretation of areas of this element, particularly where treating the item as one’s own is concerned. The decision made in Lavender (1994) demonstrates a controversial interpretation of this element because it found the defendant guilty of theft when he took two doors from a council house undergoing repair and fitted them on another council house to replace the existing damaged doors. The Divisional Court held that ‘dealing with’ the doors was enough to warrant an equivalent action as to ‘disposing of’ them and therefore found him guilty, which in my mind stretches the purpose of this element far too thin.

        Another problem that arises regarding IPD is the question of degree, which is ultimately a question of fact for the jury.  According to Lloyd (1985) it needs to be shown that all the value of the item taken has gone. In this case the defendant had borrowed and returned films after allowing a friend to copy them, and this action did not in any way damage or reduce the value of the property itself; it is arguable, however, that allowing pirated copies to be made may have lowered the market value of the film. Issues may arise regarding this, and as a result it would appear that many illegal activities resembling theft may be better prosecuted if either this element did not exist or other more appropriate legislation were in place.  

        Finally I would like to discuss the dishonesty element of theft.  Like IPD, dishonesty is negatively defined in three circumstances under section 2(1) of the 1968 Act.  Outside of this it is up to the jury and magistrates to determine what the meaning of dishonesty is within the context of the social atmosphere of the times.  A three-stage test exists for jury and magistrates alike to rely on when attempting to assess whether or not a defendant has acted dishonestly, the first two steps of which were established in Feely (1973).  The Court of Appeal in this case held that the primary concern was whether a person is dishonest according to the standards of ‘ordinary decent people.’  The third step was added after Ghosh (1982) and may be answered in two parts: first, we must ask if what the defendant did was dishonest according to the standards of reasonable and honest people, and if so, then did the defendant realize this?  The test for dishonesty is a completely subjective one, but the outcome may be different with different juries, particularly if members of that jury are not familiar with the circumstances in which the defendant may have acted dishonestly.  In situations like this, it may be difficult for a jury to assess whether the actions would be construed as dishonest within the society it occurred in, and therefore prove very difficult to assess.  Also, in any given community there may exist so diverse a population that the very standards the jury is meant to compare the defendant’s actions to are in question because they vary from individual to individual.  However, it is not nearly possible to attempt to outline expressly what dishonesty should be taken to mean, so the best solution is to leave it to the jury and magistrate to determine on a case-by-case basis.

        Dishonesty is an extremely relevant and important element when determining whether a theft has occurred, and as mentioned previously is now closely tied to the appropriation element of theft’s definition.  More often than not no offence, especially theft, is committed if the element of dishonesty is not present, and it may be argued that this is the most crucial component to prove or disprove when convicting or acquitting an individual.  In a just society, no individual should be punished for obtaining or borrowing items he or she had not, in their right mind, obtained dishonestly; one hopes that the subjective nature of the test used to determine if dishonesty is present will ensure that society remains just, but there can never be any guarantee.  As an element, dishonesty remains problematic because of the nature of its determination, and yet no other means than subjective ones would suffice.

        In conclusion, the mens rea elements of theft are the most problematic aspects of the definition of theft, followed closely by the appropriation component.  The property and belonging to another elements, while slightly sticky in some areas, are on the whole well outlined with the 1968 Theft Act.  Appropriation remains an issue as an element on its own because it requires another element, dishonesty, to modify it in order for it to serve its purpose toward this Act.  Both dishonesty and intent permanently to deprive are problematic because of their subjective nature and the law’s inability to outline succinctly how each ought to be interpreted in a blanket sense, leaving much of their interpretations open to the jury and magistrates of an evolving society.

Bibliography

Ashworth, A. (2006). Principle of Criminal Law (5th ed.). Oxford: Oxford University Press.

Dobson, P. (2005) Criminal Law (7th ed.). London: Sweet and Maxwell Limited.

Herring, J. (2006). Criminal Law: Texts, cases, and materials (2nd ed.). Oxford: Oxford

University Press.

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