Criminal Defence
Theft Offences
Theft is defined by section 1 Theft Act 1968 as dishonestly appropriating property belonging to another with the intention of permanently depriving the other of it. Sections 2 – 6 Theft Act 1968 provide further interpretation of these elements.
Key Elements of Theft
Dishonestly
Section 2 Theft Act 1968 specifies that appropriation is not dishonest if the person doing it believes that:
- ▸ They have a legal right to take the property; or
- ▸ The owner would agree to their taking it if they knew about it; or
- ▸ They could not find the person to whom the property belongs by taking reasonable steps.
It also provides that appropriation may still be dishonest if the person was willing to pay for the property they have taken.
There is no complete definition of “dishonesty”
The leading case on the test for “dishonesty” is the Supreme Court case of Ivey v Genting Casinos [2018] AC 391, and which was adopted in the case of R v Barton and Booth [2020] EWCA Crim 575. The ruling means that the Court/jury must consider the following two-stage test:
- ▸ What was the defendant’s actual state of knowledge or belief as to the facts; and
- ▸ Was the defendant’s conduct dishonest by the standards of ordinary decent people?
Appropriates
Section 3 Theft Act 1968 provides that any assumption of the rights of an owner amounts to appropriation, and this includes where a person has come by the property (innocently or not), without stealing it, any later assumption of a right to it by keeping it or dealing with as an owner.
Property
This includes intangible property (e.g. a credit in a bank account).
Belonging to another
Property “belongs to another” where that person
- ▸ has possession or control of it; or
- ▸ has given it to the defendant subject to an obligation that it is dealt with in some particular way; or
- ▸ has given it to the defendant by mistake and the defendant is under an obligation to restore it to them (in whole or in part); or
- ▸ is the beneficiary of a trust to which the property is subject.
The definition does not include any need for the property to be lawfully held by the person in possession or control of it.
The property must belong to another at the time of appropriation.
Intending to permanently deprive
A defendant may be regarded as having the intent permanently to deprive even though they do not intend the victim to “lose the thing itself” if they intend to treat the item as their own to dispose of regardless of the victim’s rights.
Section 22 — Theft Act 1968
Handling Stolen Goods
Section 22 of the Theft Act 1968 creates various combinations of offences of handling stolen goods knowing or believing them to be stolen.
Offences
A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or he arranges to do so.
Points to Prove
- ✓ otherwise than in the course of stealing
- ✓ knowing/believing goods to be stolen
- ✓ dishonestly received them or
- ✓ dishonestly undertook/assisted
- ✓ in the retention/removal/disposal/realisation of them OR
- ✓ arranged to do so
- ✓ by/for the benefit of another
Handling Stolen Goods — Definitions
Meanings
Stolen goods
(s 24(2)) Stolen goods shall include—in addition to the goods originally stolen and parts of them (whether in their original state or not)—any other goods which directly or indirectly represent or have at any time represented the stolen goods in the hands of the thief or handler of the goods (or any part of them) as being the proceeds of any disposal or realisation of the whole or part of the goods stolen or stolen goods handled by them of goods so representing the stolen goods.
Goods
Includes money and every other description of property except land, and includes things severed from the land by stealing.
Goods obtained through blackmail or fraud are also considered stolen goods for the purposes of the offence of handling, as is cash dishonestly withdrawn from an account which has received a wrongful credit.
Knowing
Means actually having been told by somebody having first-hand knowledge (eg the thief or burglar) that the goods had been stolen.
Believing
Means the state of mind of a person who cannot be certain that goods are stolen, but where the circumstances indicate no other reasonable conclusion.
Dishonestly
(See above)
Receives
Means gaining possession or control of the goods.
Possession
Means either actual physical possession or constructive possession (storing the goods in premises belonging to them).
Undertakes
Includes where the person agrees to perform the act(s) that constitute the offence.
Retention
Means keeping possession of, not losing, continuing to have.
Realisation
Means the conversion of the goods, invariably into money
Arranges to do so
Means arranging to receive, retain, remove, dispose, or convert the stolen goods. This can be done without seeing or having had anything to do with the goods.
Therefore, the offence can be committed in various ways:
- ▸ Receiving stolen goods; or
- ▸ Undertaking in their retention, removal or realisation by another person or for the benefit of another person; or
- ▸ arranging to do so.
In all cases, the handling must be done otherwise than in the course of theft (or all thieves would also be handlers).
Allocation and Punishment
Magistrates Court: 6/12 months’ imprisonment and/or a fine
Crown Court: 14 years’ imprisonment
Section 25 — Theft Act 1968
Going Equipped
Section 25 of the Theft Act creates the offences of going equipped for any burglary or theft.
Examples of Going Equipped include:
Carrying tools at night for burglary: A person is found late at night near houses with a crowbar; gloves; screwdriver; torch which could be intended to be used break into a property.
Possessing tools to steal from cars: A person entering a car park with spark plug fragments (used to break windows quietly) or a lock-picking tools with no lawful excuse.
Having a foil-lined bag in shops: A person enters a shop with a “booster bag” or foil-lined rucksack (used to block security tags) with the intention of stealing goods.
Wearing clothing adapted for theft: A person enters a shop wearing a jacket with hidden pockets or trousers with sewn-in concealed compartments intended to hide stolen items.
Offences
A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary or theft.
Theft Act 1968, s 25(1)
Points to Prove
- ✓ not at place of abode
- ✓ had with them
- ✓ article(s) for use in course of/in connection with
- ✓ a burglary/theft
Going Equipped — Definitions
Meanings
Place of abode
This normally means the place or site where someone lives. It could include the garage and garden of a house, but it is ultimately a matter for the court or jury to decide.
Has with him
A wider concept than “carrying” the item, relevant considerations include how immediately accessible the item is, how close it is, the context of any proposed criminal enterprise.
Article
This has a wide meaning. It may include a whole range of items and substances from foil lining to prevent anti – theft alarms going off or a screw driver to open a window.
Burglary
Burglary includes where a defendant intends to commit criminal damage or grievous bodily harm.
Theft
Section 25(5) Theft Act 1968 specifies that “theft” includes taking a conveyance without consent contrary to section 12 (1) Theft Act 1968. But it will not extend to taking a pedal cycle contrary to section 12(5) Theft Act 1968.
Allocation and Punishment
Magistrates Court: 6/2 months imprisonment and/or a fine
Crown Court: 3 years’ imprisonment
Section 3 — Theft Act 1978
Making off without Payment (MOWP)
Section 3 of the Theft Act 1978 creates the offence of making off without payment (also known as ‘bilking’).
Examples include:
- ▸ Leaving a restaurant without paying
- ▸ Filling up with fuel and driving off
- ▸ Walking out of a taxi without paying the fare
- ▸ Absconding from a car wash or valet service
- ▸ Hotel guest checking out early when no staff are present, knowing they have not settled the bill
Offences
Subject to subsection (3) below, a person who, knowing that payment on the spot for any goods supplied or service done is required or expected from him, dishonestly, makes off without having paid as required or expected and with intent to avoid payment of the amount due shall be guilty of an offence.
Points to Prove
- ✓ knowing a payment on the spot required/expected
- ✓ for goods supplied/service done
- ✓ dishonestly
- ✓ made off
- ✓ without having paid as required/expected
- ✓ with intent to avoid payment of amount due
Making Off Without Payment — Definitions
Meanings
Payment on the spot required or expected
This includes payment at the time of collecting goods on which work has been done or in respect of which service has been provided. Payment on the spot does not become due until the goods or services have been provided.
Goods
See above
Dishonestly
See above
Intent to avoid payment
This must be to make permanent default. If the defendant’s intent was simply to defer payment then the offence of Making Off Without Payment (MOWP) will not have been committed (R v Allen (1984) 79 Cr App R 265).
Defences
Subsection (1) above shall not apply where the supply of the goods or the doing of the service is contrary to law, or where the service done is such that payment is not legally enforceable.
Theft Act 1978, s 3(3)
Note
A payment not being legally enforceable may be where the service provider breaks a contract (e.g. a taxi driver who fails to complete a journey) or where the contract cannot be enforced through the courts.
Allocation and Punishment
Magistrates Court: 6/12 months’ imprisonment and/or a fine
Crown Court: 2 years’ imprisonment
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