Theft - Theft Act 1968
Theft is one of the most commonly understood crimes. Everybody recognises stealing as theft, and would include shoplifting as one of the examples of theft.
Theft appears to be a straightforward offence. The law on theft clearly embraces a number of ideas, but is sometimes not as straightforward as simple theft appears to be.
Theft is defined in the Theft Act 1968, s1:
1 A person is guilty of theft if he dishonestly appropriates property
belonging to another with the intention of permanently depriving the other of it; and ‘thief ’ and ‘steal’ shall be construed accordingly.
2 It is immaterial whether the appropriation is made with a view to gain, or is made for the thief ’s own benefit. (Catch out Robin Hood)
3 The five following sections of this Act shall have effect as regards the interpretation and operation of this section (and, except as otherwise provided by this Act, shall apply only for purposes of this section).
There are five things to be proved to secure a conviction of theft: three of
these form the actus reus of the offence and two the mens rea. They are summarised in the table above.
Actus reus of theft
Appropriation (section 3)
Appropriation is defined in s3 of the Theft Act 1968 as follows:
1 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.
2 Where property or a right or interest in property is, or purports (presumes) 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.
There are therefore, a number of aspects of appropriation that need to be investigated.
s3(2) stealing a right or interest in property.
The general meaning of appropriation is to take something. More formally, this is the assumption of the rights of an owner. Theft can involve more than the mere physically taking of property; it can include taking the rights that someone has over that property as per section 3(2) of the Theft Act.
A person who owns property can do anything he likes with it (subject to the general law), e.g. he can lend it to someone else, hire it to someone else, damage or destroy it. When a person has lent or hired something to someone, they retain the right of ownership.
That right can therefore be the subject of theft by the person to whom the thing was lent. Appropriation can, therefore, occur in a variety of ways whilst doing something to the property that an owner can do such as possess it, use it, modify it, sell it or destroy it.
In Pitham v Hehl the D tried to sell the V’s furniture even though it was physically kept on the D’s property. Under S3(2) D was found guilty of Theft for assuming the right of the owner to sell their property.
S3(1) any assumption of the rights of an owner
This has resulted in a number of cases on:
1. How many rights, some all or few have to be assumed to be an appropriation?
The case that confirms that a range of activities can amount to appropriation is Morris (1984). In that case, the defendant dishonestly switched the labels on goods in a supermarket so as to show lower prices. He then acquired the goods by
paying only the lower price at the check-out – this was his intention. The switching of the labels and placing the goods in the basket or trolley forms the appropriation as it does not have to be an assumption of the rights of an owner it can be any right.
2. Can a D appropriate property if the owner is deceived into giving consent to them taking or dealing with it?
In Lawrence (1972) a foreign student got in his taxi and asked to be taken to a hotel. The real fare was quite small. The student had little spoken English and offered a bank note to pay for the trip. Lawrence said that it was not enough. The student then offered Lawrence his wallet, and indicated he should take the right amount. Lawrence took money out of the wallet, but about 20 times as much as the fare justified. Lawrence’s defence was that he had not appropriated any money, within the terms of the Act. He claimed that although he may have been dishonest, there was no appropriation. However, Lawrence was guilty of theft, as the court decided that the appropriation was not consented to as D had taken more money than he was owed, he had deceived the V. This is clearly consistent with other cases and a sensible approach, even though there are alternative offences available under the Fraud Act 2006 and its predecessor legislation.
In Gomez (1993) the defendant was an assistant manager at an electrical store. His accomplice asked to be supplied with £16,000 worth of goods, using two worthless cheques. The defendant, with full knowledge that the cheques were worthless, asked the manager to authorise the sale and the manager asked the defendant about the cheques. The defendant pretended to do this with the bank and returned to the manager stating that the cheques were ‘as good as cash’. The cheques were later returned by the bank unpaid.
The defendant was convicted of theft, but there was an appeal on the grounds that there had been no ‘appropriation’ of the goods because the manager had willingly released them. (This would not have been a problem if he had been charged with a deception offence under what is now the Fraud Act 2006).
The House of Lords decided that there was a dishonest appropriation of the goods. The electrical store’s manager was lead into giving his consent to the removal of goods by fraud, deception or a false representation. This made the appropriation dishonest. The House of Lords’ judgement widens the scope of theft to overlap with deception in cases where fraud specifically operates to release the goods into the hands of the thief – the appropriation. The consent to remove the property is not ‘true consent’ so the property was dishonestly appropriated, i.e. if the manager had known the cheques were worthless he would not have sold Gomez the goods. This is called an “adverse interference” with the rights of the owner.
3. Can property be appropriated without a clear deception of the owner?
I the case of Hinks (1998) a single mother, became very friendly with Mr Dolphin,
a naive, gullible, middle-aged man of low intelligence, a month after his father died. She effectively took over the running of his life. He withdrew sums of £300 (the maximum permissible under the rules for his account), almost every day. On each occasion he was accompanied by her. Hinks placed the money in her account. After seven months, £60,000 had been moved out of his account and into her account. This was almost all of his money he had inherited from his father.
The House of Lords upheld Hinks’ conviction for theft, even though all transactions
appeared to be a voluntary gift. The House of Lords stated that the issue of consent was related to dishonesty rather than appropriation. Therefore an appropriation can take place even where an item is given voluntarily by the owner.
There have been problems with appropriation where a money transfer has been fraudulently requested. It seems that this will not amount to an appropriation for theft, although there is likely to be an offence of fraud.
The reason for this is that an appropriation in this situation seems to require handling of physical items such as goods, banknotes or cheques.
Summary: The current law on appropriation now seems to suggest that any dealing or taking property that can’t be considered simply to be borrowing or is clearly and freely given to a person is an assumption of a right of an owner.
Important summary of law on an appropriation:
Therefore the link between the elements of appropriation and dishonesty is very close and often form the key aspects of the crime; due to the fact appropriation has been given such a wide meaning by the courts.
Appropriation can only happen at one point in time
Under S3(1) an appropriation can take place where the D obtains property without stealing it but later decides to deal or keep the property as an owner. At the point of keeping or dealing the appropriation takes place, e.g. D borrows a bike at 1pm and then decides to keep at 3pm, the appropriation happens at 3pm.
Once an appropriation has taken place it cannot be a continuing act (coincidence of AR & MR rules do not apply).
In Atakpu and Abrahams 1994 the D’s hired cars in Germany and Belgium using false driving licences and passports. They were arrested at Dover and charged with theft. Their conviction for theft was quashed. The appropriation was held to take place in Germany or Belgium and not continue until the cars reached English legal jurisdiction.
Property (section 4)
The Theft Act 1968 s4 deals with property. The general principle is set out in s4(1) as:
1 ‘Property’ includes money and all other property, real or personal including things in action and other intangible property.
This means everything that you can own including money, land, belongings, cheques and other things of value (things in action) where the value is not defined by the physical thing, for example rights of ownership of stocks and shares or forms of credit.
The Act itself, in s4, goes on to make some further explanation and exceptions. These are set out in s4(2), (3) and (4) as follows:
2 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:
a. When he is a trustee or personal representative who is legally required 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 a way he is not supposed to.
An example of this occurs where I am the trustee of a house and other property; this could arise under a will, particularly where the dead person’s assets are left to children under the age of 18 or to a very old and infirm person. As trustee I would manage the assets, including the house (land). I might well have the right to sell the house, but would have to do so for the benefit of the children or old person. If I were to sell it for a very low price to my wife, or keep some of the sale money for myself, it could form the basis of the offence of theft. Equally, it could be theft if I lived in the house rent free, although this is more likely to be an offence under the Fraud Act 2006.
This means, subject to exceptions, that you cannot steal land.
b. A person can commit theft of things forming part of the land that the owner of the land has not allowed the thief to possess. This, therefore, includes soil, rocks, gravel, buildings (or part of the building such as lead on a church roof) and crops.
c. A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing 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. ‘Plant’ includes any shrub or tree.
It should be noted that some wild plants are protected under other Acts of Parliament and their removal might amount to an offence.
d. Wild creatures cannot be stolen but if the creature is taken from a place they are held in captivity (e.g. zoo, farmer’s field) then this would be theft.
Information is not classed as property
In Oxford v Moss (1978) a student ‘borrowed’ an examination paper for the purpose of obtaining the information on the forthcoming exam. He copied the paper and then returned it. The student was charged with theft of the information contained on the exam paper. (He was not charged with theft of the paper as there was insufficient evidence that he intended to permanently deprive the owner of the paper, merely have access to the information. However, it could be argued that there was theft of the paper as its value reduced when the information was no longer confidential.) The court decided that the confidential information was not property and so there was no offence of theft.
In Marshall (1998) the defendant (and others) were video recorded obtaining London underground tickets or travel cards from members of the public passing through the barriers and reselling them to other potential customers. The travellers were asked if they had finished with their card and, if they had, were asked if the defendant might have the card. Where the traveller had finished with his card, he often handed it to the defendant rather than throw it away. The cards often had some value left on them being a day pass for a particular travel zone. The defendant then resold them at a reduced rate to persons intending to travel. London Underground Limited did not receive the revenue which it might have expected to receive from those persons who had bought the tickets. The court decided that the tickets belonged to London Underground and not to the travellers who merely used them as evidence of the right to travel. This principle could be applied to prepaid car park tickets.
In Kelly (1998). Kelly, an artist, had removed a number of human body parts from the Royal College of London without its permission and without the intention of returning them. Usually, there is no property in a corpse. However, in this case, the body parts had been preserved and most of them had been the subject court decided that that the parts of a corpse could be ‘property’ if they had acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes. This has particular implications for those working in hospital mortuaries, undertakers and crematoriums and the potential use of donor organs.
Belonging to another (section 5)
The general principle is set out in s5(1) as:
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).
This means that at the time the property is appropriated it must belong to another. This clearly involves rights that are less than ownership, as the Act refers to concepts such as possession and control.
Possession and control.
A person who owns property has the fullest rights over it. Possession is the physical ability to enjoy the property. In the case of tangible property such as a book, it would be holding it and using it. With intangible property, an owner has the fullest rights to use the benefits of the property, such as spending a credit balance (money in an account) by transferring it to someone else. Possession of the intangible right is having the ability to access the use of the property.
Ownership of property may be separated from possession. If I lend you a book, I still own it but you will possess and control it. Your rights over the book are less than mine. I can still sell it (subject to any rights you may have as to possession), but you cannot sell it without my permission or it is likely to be theft. If I hire a car, I do not own it, but will have possession and control of it.
This can be seen in the case of Webster (2006). The case involved a medal, the Operation Telic medal for service in Iraq. The medal was awarded to Captain Gill, who received such a medal in early 2005. In September 2005 he received a duplicate medal. It was engraved with his name and details and was sent from the medals office which was responsible within the Ministry of Defence for the administration and issuing of medals. Webster was Captain Gill’s staff support assistant. Captain Gill handed the medal over to Webster, who advertised it on eBay and sold it for £605. The defendant accepted that the proper thing to do would have been to return to the medal to the medals office, though he did not believe that he was legally required to return it, believing he had a mere moral obligation to return it. It was argued that would be insufficient for a finding of ownership of the medal by the Secretary of State. There was no dispute that when a medal is given it becomes the property of the member of the forces to whom it is given. However, the court decided that the medal’s office did retain a proprietary interest in the medal and was entitled to call for the return of the duplicate medal. Therefore, the defendant could be convicted of theft.
A legal right to possess property until a bill has been paid
In the case of Turner (No.2) (1971) the defendant, using his spare keys, removed his car from outside the garage at which it had been repaired, so as to avoid having to pay for the repair. The garage was entitled to keep possession of his car until the repairs had been paid for, so the defendant was convicted of theft. It should be noted that making off without payment might be a more appropriate offence.
Important for Exam: It is also the case that a person could be convicted of stealing stolen goods from a thief who had possession of the stolen goods. Whilst the original thief does not own the stolen goods, he is in possession of the goods. The court decided in Kelly (1998) (the body parts case discussed earlier) that s5(1) does not include the word lawful, so any form of possession, even unlawful, will suffice.
A person can be in control of property even though he does not know that he possesses it. In Woodman (1974), the defendant took a van to a disused factory near Bristol and removed a quantity of scrap metal. The disused factory still belonged to a company and the scrap metal at the factory was sold to another company, who removed much of it. They left behind some metal that was difficult to remove, and it remained there for over a year behind a barbed wire fence and with warning notices, until the defendant removed it. Even though the owner of the disused factory did not know the metal remained on its premises, it was still in control of the site as could be seen from the barbed wire and warning notices, so the defendant could be convicted of theft of the metal that the factory owners did not know was there.
Where property is abandoned, there is no owner of that property.
The real problem is as to what amounts to abandonment. If I lose my wedding ring, I have not abandoned it – I wish to keep it and will look for it, thus retaining ownership but not actual possession. A finder who keeps it could be guilty of theft. However, if I deliberately leave a magazine on a train, I will be abandoning it, as I do not want it anymore and do not care what happens to it, but perhaps hope someone will find it and take it.
Rubbish placed in a dustbin for the council to collect becomes owned by the council. This explains why assistants at household recycling sites cannot just take things left there for themselves, but, subject to council regulations, may ask if they may keep the item personally.
This can be seen in the case of Williams v Phillips (1957) where refuse collectors were convicted of the theft of refuse as they removed it from commercial premises. Their employers had posted notices which provided that any proceeds from selling refuse had to be shared with the council, and warned of criminal prosecutions.
The defendants had collected and sold on sacks of rags and wool they had collected without telling the council. Similarly, ‘lost’ golf balls on a golf course belong to the golf course owner and are not abandoned goods, so can be stolen. However, those lost on public land such as a road alongside the golf course are probably abandoned and have no ownership and therefore cannot be stolen.
Task: Watch the video clip and discuss whether or not the TV belongs to another or is abandoned property.
Property given to the D requiring them to deal with it in a particular way – Section 5(3)
Where property has been given to be dealt with in a particular way and that is not done there can be theft. This is seen from s5(3) of the Act, which states:
Where 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 other proceeds shall be regarded (as against him) as belonging to the other.
This means that the Act recognises that there are obligations that are in existence that may not be quite as formal as a trust, but still give rise for the opportunity to commit the offence of theft. Cases on this usually involve money being given to someone for a particular purpose.
In Davidge and Bunnett (1984) the defendant shared a flat with several others, who gave her cheques on the understanding that their communal gas bill would be paid with the proceeds of the cheques. In fact, she spent the proceeds on Christmas presents and left the flat without giving notice. As she was under a legal obligation to use the proceeds of the cheques for the payment of the gas bill they were regarded as property belonging to another under s5(3). She was convicted of theft.
However, it seems from the case of DPP v Huskinson (1988) that this will only apply if there is some form of legal rather than moral obligation to deal with the money in a particular way. In that case, the defendant was sent a cheque for housing benefit even though he stated he wanted his rent to be paid direct. He used some of the proceeds of the cheque to pay arrears of rent, but spent some on himself. As there was no legal requirement to use the money to pay rent arrears, he was not convicted of theft.
Property given to the D in the form a trust (legal obligation) – Section 5(2)
A trust is where a person gives another their property with certain responsibilities to deal with that property in a particular way. s5(2) of the Act, states:
Where property is subject 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 from any person having that right.
This means that money held in any form of trust is money belonging to another and this can be seen to occur where there is difficulty in showing a legal obligation rather than a moral obligation.
This argument was used to secure a conviction for theft in the case of Wain (1995). This case involved charity fundraising. People running an event were required to complete a registration form and return it to a television company.
Once the form was returned to the charity (Telethon Trust), according to their usual practice, they send out a whole package of documents which provide help in organising events, a recommendation that the money be paid into a separate bank account and information on where to obtain collecting boxes, balloons and such like. In this case, the defendant said that he had never received such a package from Telethon Trust, but nonetheless he did in fact open a separate bank account in the name of the Scarborough Telethon Appeal. The amount raised was £2,833.25.
He was invited along to Yorkshire Television Headquarters, where he presented a dummy cheque to a television celebrity. He did not in fact pay over the money, claiming he was still getting it in. When pressed for payment, he gave various cheques drawn on various accounts that were worthless. The court relied on the fact that the money collected was held by him on trust for the charity and therefore the actus reus of the offence had been committed and the jury would have to consider the mens rea of dishonesty for there to be a conviction.
Property received by mistake by the D
Where property is received by mistake such as an overpayment of wages or two items being sent instead of one ordered and paid for. The relevant part of the Act is s5(4) which states:
Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent 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 make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.
This simply means that, where you are given something by mistake and have a legal obligation to give it back, keeping it may be theft.
In AG Ref (No1 of 1983) 1985, D’s salary was paid into her bank account electronically and on one occasion she was overpaid by £74. She was charged with theft but acquitted. On appeal the court held that S5(4) required the D to repay any money received by mistake as soon as the mistake comes to the attention of the D or else D would be guilty of stealing another’s property.
However, in Gilks (1972), D was overpaid for a bet on a horse and decided to keep it. It was held that as betting transactions cannot be legally recovered at law S5(4) did not apply and D was not guilty.
Mens rea of theft
Both Intention to permanently deprive (ITPD) and dishonesty must be proved for the offence to be committed. It is this element of mens rea that distinguishes normal transactions from theft.
It should be noted that the Theft Act 1968 points out in s1(2) that is:
‘immaterial whether the appropriation is made with a view to gain, or is made for the thief ’s own benefit’.
Important for Exam: This means that a person could be convicted of theft when destroying another person’s property, even though he would normally be prosecuted for criminal damage.
Intention to permanently deprive the other of the appropriated property (ITPD) – Section 6
As a general rule, merely borrowing something does not form an intention to permanently deprive.
The offence of theft begins when that ITPD is formed. In most cases, intention can be inferred from the surrounding circumstances.
Section 6(1) helps explain the meaning. It states:
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 or 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.
There are two aspects of this:
1 Disposing of the property regardless of the other’s rights.
2 A borrowing or lending making it equivalent to outright taking or disposal.
Meaning of to dispose of
This can be seen in the case of Marshall (1998), the idea that the underground ticket remained the property of London Underground meant that the subsequent sale to another traveller was a disposal regardless of the other’s rights. This would apply equally, for example, to re-using a cinema ticket that had not been collected.
In DPP v J and others (2002), the defendant took and broke his victim’s headphones and then gave them back. Here the question of whether there was an intention to permanently deprive arose and it is considered that there was such an intention as the right to break the headphones was the owners alone.
This wider approach to the idea of depriving permanently was used again in the case of Lavender (1994). In this case, the defendant lived with his girlfriend at 37 Royce Road, Spalding. His girlfriend was the tenant of the council house. She asked the council to replace damaged doors at that property, but the council refused because she was responsible for any damage to the doors. The council would have replaced the doors if she paid £400, which she did not do. The council also owned 25 Royce Road which was unoccupied because it was undergoing repair. The defendant took two doors from 25 Royce Road to replace the damaged doors at 37 Royce Road. His intention was to use the doors at 37 Royce Road for so long as he remained there and leave them there when he eventually left that address. He argued that swapping the doors did not amount to theft because he was not permanently depriving the council of them.
This argument failed and he was convicted, the court saying that the defendant intended to treat the doors as his own in dealing with the council regardless of their rights. There can be no doubt that what the respondent did was regardless of the council’s right. Those rights included the right not to have the doors at 25 Royce Road removed, and to require the tenant at 37 Royce Road to replace or pay for the damaged doors.
Meaning of borrowing
In Velumyl (1989), the defendant, without any authority from the company and contrary to the company’s rules, took £1,050 from the safe at his place of work on Saturday evening, and lent it to a friend. It was a condition of that private loan that his friend should return it on Monday. A spot check took place before the money was returned. The court asked whether he intended permanently to deprive the owner of the money and concluded that he had no intention of returning the objects he had taken. His intention – at best – was to return objects of equivalent value, so this part of the mens rea had been fulfilled. In simple terms there was an ITPD as he had stolen the specific bank notes and could not replace them exactly.
In Lloyd (1985) the defendant worked as a projectionist at a cinema and was responsible for looking after the films. He took films from the cinema to be copied, but the films were only out of the cinema for a few hours and were always back in time for their projection to take place at the advertised times to those people who attended the cinema to see them. Remarkably, he was not convicted of theft. The court did say that to be a borrowing the circumstances need to make it equivalent to an outright taking or disposal.
However in Bagshaw, 1988, the D had been charged with theft of some gas cylinders but argued that he had only borrowed them. He was found not guilty as the trial judge had failed to explain to the jury that in such a case he could only be regarded as ITPD and keep the cylinders if he had used all the “goodness”, the gas in them. In actual fact he had done this should have been guilty of an ITPD as the borrowing can be regarded as an outright taking.
So the courts seem to be saying that borrowing and an ITPD requires the D to have used up the value of the property.
Important: An ITPD can also be established from a borrowing where the D takes the owners property and will only give it back with attached conditions, eg take a painting and only give it back once a ransom is paid.
Dishonesty - Section 2
The meaning of dishonesty is not defined in the Theft Act 1968. (the honesty lab quiz) It was assumed by the draftsmen of the Act that everyone would know what the word meant and therefore a jury or magistrates would be able to decide easily enough. The word was used so as to have no specific legal meaning other than its natural meaning.
The Act did, however, give three specific situations where a person would be deemed not to be dishonest in s2, whilst noting in s2(2) that a person may still make a dishonest appropriation even though he is willing to pay for the property.
Very Important for the Exam – what is not regarded as dishonest. Section 2 is as follows:
1 A person’s appropriation of property belonging to another is not be to 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 a third party; 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.
Before discussing the meaning of dishonesty, we need to consider theexceptions in s2(1).
The first exception requires an honest, but not necessarily reasonable, belief in the defendant of his right to take the item. This is a subjective test, so the sole concern is for the defendant to convince a jury that he reasonably held that belief. An example of this is where an employee is instructed to collect certain goods from a third party. The employee honestly believes he has the legal right to do so (having been told to so by his boss) and therefore will not be dishonest in taking the goods even if, in fact, there is no such right to do so.
In the case of Holden 1991, the D was accused of stealing scrap tyres from Kwik fit, a previous employer. His defence was that he knew others had taken tyres with permission of the supervisor. The manager of the depot gave evidence saying it was a disciplinary offence with immediate dismissal. It was held it is not necessary for the accused to prove his belief is reasonable, as long it is believed to be a genuine belief.
Clearly the more unreasonable the belief the more likely the jury is to believe it isn’t genuine.
The second exception requires an honest belief that the owner of the goods would consent if he knew of the circumstances. An everyday example of this is borrowing a person’s pen without asking, and later returning it, or continuing a normal practice of borrowing tools and machinery between neighbours.
The third exception most usually applies in situations of finding items and then keeping them. This again requires an honest belief by the defendant that the owner cannot be found by taking reasonable steps. An example of this would be finding a £1 coin in the street. There is usually an honest belief that the owner could not reasonably be found, but that would not be so if the defendant had just seen someone pull the coin out of their pocket along with a handkerchief. Clearly, the more valuable the item, the less likely the owner cannot reasonably be found.
In the case of Small (1987), where the defendant noticed an old and very scruffy car parked in the road for over a week with the key in the ignition. Parts were missing, and there was no petrol in it. The defendant thought the car had been dumped and therefore decided to get it going and drive it. His defence to stealing the car was that he believed it was abandoned by its owner and therefore the owner could not be found by taking reasonable steps.
Ghosh Test for dishonesty
Where these exceptions do not apply, the courts have developed a test for dishonesty. There is usually little argument about whether an act is dishonest – for example, shoplifting is obviously dishonest and a jury would have little difficulty with that. However, defendants from time to time claimed that they had not been dishonest and there was no standard test that should be applied. Examples include borrowing from the petty cash at work without permission and contrary to the company rules, but intending to replace the money the next day, or borrowing from the till and leaving an IOU.
The matter was resolved in the case of Ghosh (1982). In that case, the defendant was a surgeon acting as a consultant at a hospital. He claimed that he had himself carried out a surgical operation to terminate a pregnancy and that payment for the operation was due to himself or an anaesthetist for such an operation, when in fact the operation had been carried out by someone else, and/or under the National Health Service provisions. His defence was that he had not been dishonest, as the sums paid to him were due for consultation fees which were legitimately payable under the regulations, or, alternatively, were the balance of fees already owed to him. In other words, he was alleged to have claimed money for work he had not done even though he was in fact owed money for work he had done.
The Lord Chief Justice set out the test for dishonesty:
In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the
If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.
In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider being dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did.
This test is a two-part test, known as the Ghosh test, and can be stated as follows:
1 Would the defendant’s behaviour be regarded as dishonest by the standards of reasonable and honest people?
(If the answer is ‘no’, the defendant is not guilty of theft as he has not been dishonest.)
If the answer is ‘yes’ the second question is:
2 Was the defendant aware that his conduct would be regarded as dishonest by reasonable and honest people?
It can be seen that the first part of the test is objective and the second part of the test is subjective. If both parts of the test are satisfied, the defendant fulfils the criteria for being dishonest.